Volume 19 — Missouri Reports

Louis Criminal Court. The defendant was convicted and fined for a violation of the quarantine ordinance of the city of St. Louis, which is set out in full in the case, of the City of St. Louis v. McCoy, 18 Mo. Rep. 289. He appealed to this court. The power to regulate commerce is exclusively vested in congress. 9 Wheat. 204. 7 Howard, 283. The transportation of passengers is as much a branch of commerce as the transportation of merchandise. 7 Howard, 405.

Louis Court of Common Pleas. Tbe appellants were summoned in an attachment suit as the garnishees of one Claverdetscher. The plaintiff filed allegations stating that the garnishees had in their hands goods and chattels belonging to and delivered to them by Claverdetscher ; also that they were indebted to Claverdetscher.

Louis Court of Common Pleas. The court below erred in permitting evidence of the sale of the stall by Beck to Ferrara to go to the jury. No such issue was made by the pleadings. LinJc v. Vaughn, IT Mo. Hep. If there was any variance between the pleadings and the proof, it was not a material one under the new practice.

<p>1. Case not properly saved.</p>

Louis Court of Common Pleas. Tbis was an action in the nature of ejectment, begun by Elisha Fine against Thomas Gray, on the 12th of November, 1850, in the St. Louis Court of Common Pleas. After issue joined, the plaintiff died, and his death was suggested at the September term, 1852, of said court, and the suit continued.

tAppeal from St. Louis Circuit Court. After a sale and delivery of merchandise, the vendor cannot recover the goods for the reason that the vendee was insolvent at the time he made the purchase, and then knew himself to be so. Story on Sales, §446. Cross v. Peters, 1 Greenl. 376. 2 Mason’s Rep. 236. 6 Wend. 77. 12 Pick. 307. cited Story on Sales, §176. Bokley v. Bigelow, 12 Pick. 312.

<p> Error to St. Louis Court of Common Pleas. </p>

Louis Circuit Court. 1. The endorser of a negotiable note is not a security within the meaning of the act, and cannot discharge himself from liability by notice, 2. If it were otherwise, the notice in this case is not sufficient. 3. The court erred in refusing damages. Clark v. Schneider, 17 Mo. Rep.

'Appeal from St. Louis Law Commissioner’s Court. The appellant contends that the law in regard to entire contracts, of which there has been a partial or imperfect performance only, is, that the plaintiff, whose performance was the. condition precedent to the performance of the defendant, cannot ■ recover upon the contract itself, unless performance was prevented by the act of the defendant; bat that, if the defendant has received and enjoyed any benefit from the plaintiff’s…

•Appeal from St. Louis Court of Common Pleas. John O’Fallon, J. B. Brant, J. Gr.

Louis Court of Common Pleas. This was an action brought by Lindel! to recover back money paid for the defendant, Brant.

Louis Circuit Court. The contract of insurance requires uberrima ft des between the parties, and the concealment or suppression by either party of a material fact will avoid the policy ; and the effect is the same, whether the concealment is There is no law making the contracts of a person who is not solvent absolutely invalid, nor is it believed that, in this respect, there is any difference between corporations and individuals.

Louis Court of Common Pleas. 1. The court below erred in not stating all the material facts admitted by the pleadings to be true, and those proven on the trial. New Code, art. 15, sec. 2. Gubin v. Hudgens, 15 Mo. Rep. 400. Brant v. Robertson, 16 Mo. Rep. 140. 2. The leasehold estate was held by the lessees as tenants in common. The lease was made to them in their individual names. 2 Randolph’s Rep. 187. 5 Mo. Rep. 507. 15 J. R. 160. 5 Ohio Rep. 264. 3.

Louis Circuit Court. The facts sufficiently appear from the opinion of the court. The court erred in placing this demand in the fifth class, instead of the sixth. It was not exhibited “within one year after the granting of letters” of administration on the estate. The day on which letters are granted is to be included, and the day of the same date of the succeeding year excluded. A part of the day is to be counted as a whole day.

Louis Circuit Court. 1. It was not necessary to' state in the petition how the bond sued on was assigned.

•Appeal from St. Louis Court of Common Pleas. This was an action of ejectment, begun by Frederick Nor-cum, in 1848, for block 16 of the city of St. Louis, in which the recovery was for thirty-seven feet on Main street, by one hundred and thirty-four feet in depth. The defendants appealed to this court. The facts are in all respects, similar to those in Youse v. JYorcum, 12 Mo.

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Louis Court of Common Pleas. This was an action instituted under the act concerning boats and vessels, by James Patrick and others against the steamboat John Quincy Adams, for damages done to the steamboat Shelby, of which the plaintiffs were owners, by a collision alleged to have been caused by the negligence of the officers and crew of the J. Q. Adams. At the trial, there was much conflicting evidence upon the question of negligence.

Louis Circuit Court. This was an action commenced by Jerome Tibeau against Joseph Tibeau.

«Appeal from, St. Louis Law Commissioner’s Court. 1. “James A. Hardy” being found to be a firm composed of tho plaintiffs, no assignment by James A. Hardy, as an individual, was necessary in order to vest the title to the note in the plaintiffs. 2. The-plaintiffs are entitled to judgment in this court.

Louis Circuit Court. 1. There was evidence of a delivery and acceptance which should have gone to the jury. Dodsley v. Varley, 12 Adolph. & Ellis, 634. Elmore v. Stone, 1 Taunt. 458. Story on Sales, §277. Story on Contracts, 513. 2 Kent’s Comm. 499. 2. But if there was no delivery, the contract, having been made in Illinois, was not subject to the operation of our statute of frauds. The lex loci contractus controls. Story’s Con. of Laws, §242 («,) 261, 262, 285.

<p> Jippeal from St. Louis Law Commissioners Court. </p>

Louis Circuit Court. 1. The court erred, in finding that the facts in evidence showed an election by Ulrici and wife to take under the will, in any such manner as to bar them from claiming their rights otherwise acquired. The deed and will are to be taken together, and by them Gabriel made a complete division of his property among his children.

Louis Court of Common Pleas. This was an action of ejectment, commenced in 1847, to recover the northern portion of a tract of sixteen by forty arpens of land, confirmed to Benito Vasquez.

<p> •Appeal from St. Louis Law Commissioner'*s Court, </p>

Louis Court of Common Pleas. This was an action of assumpsit, begun by Carroll against Paul in 1847, and after the death of Paul, revived against Ms administrator. A statement may be found in the opinion of this court, when the case was formerly here. (16 Mo.

Jippcal from St. Louis Circuit Court. This was an action of assumpsit, commenced in 'February, 1849, by Timothy S. Goodman against John Simonds, on a bill of exchange, dated September 12,1847, drawn by Wallace Sigerson, of Cincinnati, Ohio, on John Simonds, in favor of j ohn Sigerson, for $5000, four months after date.

Jlppeal from St. Louis Circuit Court. This was an action begun before a justice of the peace by Clemens against Broomfield, to recover rent for one month and a half ending August 16, 1850. There being a judgment for the pic.intiff before the justice, the defendant appealed to the Circuit Court.

<p>A court trying a case without a jury should find all the facts upon the legal effect of which there is really a dispute between the parties. Thus, where a defendant, who was sued upon a note and pleaded payment, gave evidence of certain facts, which he claimed amounted to payment, it loas held, a general finding that the defendant was indebted to the plaintiff, i«as not sufficient.</p>

<p> JLppeal from St. Louis Court of Common Pleas. </p>

jError to St. Louis Court of Common Pleas. Gates brought suit by attachment on an open account against Clavadetscher, returnable to the September term, 1852. The sheriff returned that Clavadetscher was not found. At the September term, tbe plaintiff took tbe usual order for publication of notice, to be made according to law. At the February-term, 1858, tbe plaintiff took judgment for want of an answer, and submitted the case for proof of his damages to tbe court.

Louis Court of Common Pleas. This was an action brought under the article of the new code entitled “ claim and delivery of personal property,” by Bergesch against Keevil. Annexed to the petition was the affidavit required by the statute, signed by the plaintiff, but without a jurat.

«Appeal from St. Louis Law Commissioner’s Court. I. Tbe court erred in sustaining the motion of the plaintiff for judgment notwithstanding the answer, because there is a specific denial of the allegations contained in the plaintiff’s petition. The answer sets up a consistent, substantial defence, independent of the denial, and does not admit the monthly value of any services whatever.

Louis Circuit Court. Kerr sued Clark for the rent of a house for the two quarters ending April 1st, 1852. Clark answered that he rented the house verbally for five years, thereby becoming a tenant at will; and that, on the 17th of February, 1852, finding that he was unable to pay so high a rent, he left the house and delivered the possession thereof to the plaintiff or his agent.

Louis Law Commissioner’s Court. This was a suit instituted by the respondent on the 22d of December, 1852, against the appellants, upon the following premium note: “ $150. “Eor value received in policy dated May 26, 1851, insured by the St. Louis Mutual Fire and Marine Insurance company, we promise to pay said company (or their treasurer for the time being,) the sum of one hundred and fifty dollars, in such portions, and at such time or times as the directors of said company…

Louis Laio Commissioner’s Court. The petition of Smith, the plaintiff below, stated that Schibel, the defendant, was indebted to Charles Luciane on account of borrowed money, and that Luciane assigned his claim to Selar Simons, who assigned the same to the plaintiff. The plaintiff prayed judgment. A demurrer to this petition being overruled, the defendant sued out a writ of error.

<p> Error to St. Lotds Court of Common Pleas. </p>

Louis Circuit Court. Walsh and others presented to the Probate Court, for allowance, a demand against the estate of B. B. Edmonson, deceased, for an amount assessed to him upon the adjustment of a general average, for loss and damage to the steamboat Marshal Ney and cargo. The demand being allowed in the Probate Court, the executor appealed to the Circuit Court, where, on a' trial by the court without a jury, judgment was again given for the plaintiffs.

Louis Court of Common Pleas.- 1. The contract on. which the plaintiff relied was void by the statute of frauds. It was not pretended that any written contract existed, except what was contained in the certificate signed by Grreely & Gfale. Conceding that they were the agents of both parties, competent to bind them, the contract was not with the plaintiff but with, a different person. Champion v. Plummer, 1 N. H. Rep. 252. Sherburne v. Shaw, 1 N. H. Rep. 157. JYiehols v..

Louis Court of Common Pleas. 1. The deed upon which this controversy arises was executed subsequent to the introduction of the common law and the British statutes anterior to the fourth year of the reign of James I. The statute of uses (27 Henry VIII) was therefore in force. It is well settled that the statute of uses only executed the first use, where a use was limited upon a use. The second use was left unexecuted and was called a trust. 1 Cruise’s Dig.

Louis Law Commissioner’s Court. Action against a constable and his securities for a false return of an alias execution issued by a justice of the peace. A justice, having no powers except those given him by statute, cannot issue an alias execution.

<p> Appeal from St. Louis Circuit Court. </p>

<p>1. A return to a writ against a boat which omits to state that the officer seized the hoot is defective.</p> <p>2. It is not too late to amend the return after motion filed to set aside the judgment. Maulsby v. Farr, 3 Mo. Rep., overruled.</p> <p>3. The officer who executed the writ may amend his return, although when leave is given to amend, he has ceased to be the officer of the court.</p> <p>4. It is not necessary for the officer to state in his return that he retains the boat in custody.</p>

Louis Court of Common Pleas. 1. The first, second, third, fifth and sixth instructions asked by the plaintiff should have been given. 2 Gxeenl. Ev. §302. 5 Dane’s Abr. 373, (ch. 158, §7 to 13, §22.) 2 Bae. Abr. 171, tit. Duress, A, and note. Com. Dig. tit. Pleader, 2 W, 19. Ohitty on Con. 206-7 and notes. 1 Saund. Plead, and Ev. 44. Watkins v. Baird, 6 Mass. 711. Waterman v. Barrett, 4 Harr. 311.

Louis Law Commissioner’s Court. The court, in this case, gave the following instruction for the plaintiff: “If the jury believe from the evidence, that the plaintiff, as the agent, or at the request of defendant, sold the ground described in plaintiff’s petition, and that the defendant received the proceeds of said sale, they will find for the plaintiff a reasonable compensation for such services.” The following were given for the defendant: “Unless the jury believe from the…

<p> Error to St. Louis Court of Common Pleas. </p>

Jlppeal from St. Louis Circuit Court. Petition filed by the respondents to enjoin the appellant from selling land for taxes alleged to be illegal. The cause was submitted to the court upon an agreed statement of facts.

<p> Appeal from St. Louis Circuit Court. </p>

Jippeal from, St. Louis Court of Common Pleas. Action to recover the value of a mule alleged to have died from injuries received in hauling a loaded dray across a sewer constructed by the defendants, and negligently covered. The facts sufficiently appear in the opinion of the court.

Louis Court of Common Pleas. George Engelmann, on the 1st of December, 1851, became the purchaser of certain real estate belonging to Priscilla and Jacob Cooper, minors, at a sale by Isaac J. Cooper, their guardian, made by order of the Probate Court.

Louis Law Commissioner’s Court. This was an action brought by Magner, to recover the amount of a debt due him from Thomas O’Keefe, deceased, against Ryan & Delaney, as executors of their own wrong. The indebtedness was admitted. The following facts appeared in evidence : O’Keefe died owning a lease on a house, the lower story of which he had' occupied as a shoe shop, and the upper story as a boarding house.

Louis Law Commissioner’s Court. Doggett, having recovered judgment against Meyer before a justice of the peace, for an amount within his jurisdiction, caused the St. Louis Marine and Eire Insurance Company to be summoned as garnishee on the execution.

Louis Circuit Court. argued at length the following, among other points : 1. The instructions given did not present the law to the jury fairly, nor in accordance with the former opinion of this court, and the instructions ashed by appellant should have been given. 2. Irrelevant evidence was admitted, calculated improperly to prejudice the minds of the jury. 3. The transcripts from the justice of the peace should have been excluded. A justice’s signature does not prove itself.

<p>1. An indictment against A. for inciting- E. to a murder, by mistake charged that he incited A. Held, fatal.</p>

<p> Appeal from Dunklin Circuit Court. </p>

Louis Criminal Court. The evidence did not sustain the indictment. The indictment charges the defendants with creating, putting in circulation, signing, countersigning and endorsing notes, bills, &c., purporting that money will be paid to the holder or receiver thereof, &c. The notes offered in evidence purported to be payable to hearer. .

1. The affidavit upon which the proceeding was based did not show a case of petit larceny. It did not show that the value of the property stolen was under ten dollars. 2. The Circuit Court should have taken jurisdiction of the appeal. To hold that no appeal lies would be monstrous. The constitution gives circuit courts a superintending control over justices of the peace. 1.

<p>1. It will not vitiate an indictment for petit larceny, to charge that the larceny -was feloniously committed.</p> <p>2. Under section 22 of article 3 of the act concerning practice and proceedings in criminal cases, an indictment for petit larceny is properly quashed, unless the name of a prosecutor is endorsed upon it, or a statement which brings it within the exceptions to the requirement that the name of the prosecutor he thus endorsed.</p>

<p>1. Hiring a slave to maul rails, without the written consent of his master, is not a dealing with the slave, within the meaning of section 33 of the act concerning a slaves,” (R. C. 1845.)</p>

Barton was jointly indicted with one Burke alias Ringold, for grand larceny, and on a separate trial was convicted. The evidence showed that the larceny was committed at Shaw’s hotel, in the city of Louisiana. Franklin S. Torrey went to bed there on the night of August 9th, 1853, having about forty dollars in money in his pantaloons pocket, and a gold watch, which he placed under his pillow. The money consisted in part of two Mexican dollars and two five franc pieces.

Louis Criminal Court. The indictment describes an offence within the meaning of the statute. The defendant is criminally liable for falsely pretending that he owned the slave when he did not. State v. JYewell, 1 Mo. 252. The fact that a warranty was given makes no difference. on the point that no indictable offence was charged, cited 2 Russ, on Crimes, 303. Arch. Or. PI. 277. Sexy. Codington, 1 C. & P. 661. 3 Arch. Or. PI. by Waterman, 470-1, 473 (note.) PexY.

<p> Appeal from St. Louis Criminal Court. </p>

<p> Appeal from St. Louis Criminal Court. </p>

Louis Criminal Court. Anderson, a negro slave, was indicted for an attempted rape upon a white female. The indictment contained two counts.

•Appeal from St. Louis Criminal Court. Gresser was indicted for grand larceny, for stealing a cow, of the value of twenty dollars. The owner of the cow testified that he turned her out to graze upon the commons, and two or three days afterwards found her dead and partly cut up near the soap factory of one Kohler. Information derived from Kohler led him to go to the defendant and accuse him of stealing the cow.

<p> Appeal from St. Louis Criminal Court, </p>

Louis Criminal Court. Indictment for embezzlement. The indictment concluded 11 c against the peace of the statute and of the statute in such case made and provided.” The defendant filed a plea of “ not guilty,” and two special pleas in bar. The first special plea in bar is sufiieiently stated in the opinion of the court. A demurrer to this plea was sustained.

This was a proceeding in the Cooper county court to change the location of a specified part of a county road leading from Boonville to Pisgah. The proceeding originated in a petition of Gilbert Reeves and others, which specified the part of the road sought to be changed, and the private convenience that would result therefrom, and asked the court to appoint commissioners to review the proposed change.

On the 11th of May, 1850, Charles H. Gregory recovered judgment before a justice of the peace. Execution issued, and Jesse C. Evans and Richard A. Campbell were summoned as garnishees on the 6th day of December, 1852. Evans answered that he owed Davis $31 75. Campbell answered that he owed him $3 50. The justice rendered judgment against the plaintiff in the execution, from which he appealed to the Circuit Court.

.Appeal from Cooper Circuit Court. 1, The agreement made by Smith and Rice with the creditors, on giving this power of attorney to confess the judgment, whereby the debt was to be collected from each rateably, is such as should be enforced by a court of equity by injunction. See 4 John. Ch. Rep. 22. 2.

This was a motion filed by Doniphan & Baldwin upon the report of William M. Paxton, trustee, appointed to manage the estate of John Florish, an imprisoned conyict, under the tenth article of the act concerning “ Practice and Proceedings in Criminal Cases,” (R. O. 1845.) The trustee reported that the assets of the convict consisted of the proceeds of the sale of a tract of land amounting to $3000, and that he had allowed debts against the estate, to the amount of $4008 92, of…

This was a bill in equity, filed by Mary J. Austin, daughter of Garret Austin, deceased, against her father’s administrators, B. Watts and R. Hughes, and against S. C. Major and G. Patrick, who had purchased from the testator’s widow three slaves belonging to the estate, praying a decree for a legacy of $800, left her in her father’s will, and that it might be paid by the administrators, or by the purchasers of the property, and for general relief.

The amendment at this stage of the proceedings, and after the death of Brown, the principal, (the defendants being his securities,) was notin furtherance of justice. The discretion of the Circuit Court is not an arbitrary one. The case of Caldwell v. McKee, 8 Mo. Rep. 334, explains fully the position of this court upon cases of this character. The cases hitherto have been cases where the decision of the Circuit Court would only affect the costs or the time of trial.

The Circuit Court erred in instructing the jury that no title to the hemp passed by the bill of sale. 1. The agreement passed no title to the hemp. By the terms of the agreement, acts were to be done, in order to complete the sale and pass the property. 2. There was no delivery of the hemp, and as against an attaching creditor, delivery is essential to pass the property. Lanfear v. Sumner, 17 Mass. 112. Parsons v. Dickerson, 11 Pick. 353. 3.

Action on a note payable to Barry county, to the use of the state school fund. The cause of demurrer assigned was, that the county could not sue for money belonging to the school fund, and so the suit was brought in the name of the wrong party. The note, on its face, imports a consideration. A note payable to a county vests in the county all the rights which would be vested in an individual by a note payable to him: R. C. 1845, p. 289, sec. 3. 12 Mo. Rep. 97.

•Appeal from Camden Circuit Court. The instrument sued upon as a warrant is not written or printed in Roman letters without ornament, nor is it in the form prescribed by statute, and the county court had no authority to issue it. The statute prescribing the form of county warrants, and prohibiting the use of ornaments, is merely directory.

This was an action of unlawful detainer, begun before a justice of the peace. The substance of the complaint is stated in the opinion of the court.

Action on an alleged warranty of soundness in the sale of a ■ slave. The defendant denied the warranty, but insisted that the slave was sound. There was a trial by jury, conflicting evidence on the question of soundness, and a verdict for the •plaintiff.

This was a proceeding founded upon sections 9,10, 11 and 12, of article 2 of the act concerning administration, (R. C. 1845,) commenced in the county court against the defendant for concealing and embezzling effects belonging to the estate of the plaintiff’s intestate.^ On the trial, it appeared that, if the defendant ever had any effects belonging to the estate in his possession, he had parted with the possession before the institution of this proceeding, and the court…

<p> ■Appeal from Moniteau Circuit Court. </p>

contended that, under the new code, the plaintiff might sue in his own name, and relied upon Walk.er v. Mauro, 18 Mo. Rep.

This was an action commenced before a justice of the peace and appealed to the Circuit Court, to recover forty dollars, being part of the price of a horse sold to the defendant. It appeared in evidence, that defendant agreed to pay forty-eight dollars for the horse, of which eight dollars was to be paid in goods, and forty dollars in a debt due from one Carey to the defendant.

•Appeal from, Daviess Circuit Court. insisted that, as it appeared from the record that judgment was rendered in vacation, and as it was not shown what the laws of Yirginia were on the subject, they would be presumed to correspond with our own. contended that the record was conclusive. Our courts presume that the proceedings of the courts of sister states are in accordance with their local statutes. 9 Wend. 331. 9 J. R. 385.

1. The relief sought is exclusively a matter of equity jurisdiction, and the appeal therefore subjects the whole case, fact and law, to the review of this court. 2. The evidence does not repel the presumption of the fairness of the conveyance, or establish.the alleged fraud. 1. The facts found by the court below warranted the decree. 1 Story’s Eq. §238. Bridgman v. Green, 2 Yesey, sr. 626. Clarkson v. Hen-way, 2 P. Will. Rep. 203. Griffith v. Robins, 2 Madd. Rep. 105.

1. Debts having been contracted by the company exceeding the capital stock actually paid in, and while the defendants were directors, they became liable in their individual capacity to pay the same. R. C. 1845, tit. corporations, art. 1, sec. 1. 2. The plaintiff is entitled to recover from the defendants the amount he was compelled to pay out of his individual means to satisfy the debts so created by them. 1.

among others, made the following points : 1. The act making the register’s deed prima facie evidence of title is unconstitutional. If the legislature can make it prima facie-, it can also make it conclusive evidence of-title, and thus give the register absolute control over private property within the state. 2.

<p>Application for a mandamus on the auditor of public accounts.</p>

The petition stated that an election of sheriff was held in August, 1852, at which the petitioner, and Samuel Hadley, who was constitutionally ineligible, were.the only candidates ; that the number of votes polled was 1217, of which 778 were illegally cast for said Hadley, and 439 were legally cast for the petitioner.

jError to Jackson Circuit Court. This was a bill in equity in the Jackson Circuit Court by Woodson, an execution purchaser, to declare a settlement of a tract of land in Jackson county, made by James Pool upon his wife and children, void for fraud upon his creditors.

This was a suit commenced by Benjamin F. McCarty and Mary Ann, his wife, for the possession of a slave named Mary and her increase. Held: even when not so expressly provided, that the provision is not merely directory, but a condition that must be fulfilled, in order to clothe the guardian with the power to act. 2.

This was a petition for divorce and alimony, filed by Mary A. Bowers against Samuel C. Bowers. The plaintiff obtained a decree, and the defendant appeals. The facts found by the court below are sufficiently stated in the opinion- of the court.. 1. The finding of the court below was not supported by the evidence. 2. The finding does not support the decree. No fact was found which entitled plaintiff to a divorce. 3.

•Appeal from Platte Circuit Court. The petition does not state facts sufficient to warrant the decree. It states that the defendant left the plaintiff without cause, but does not state that she remained absent for two years without reasonable cause.

1. The facts shown in tbe petition entitle the plaintiff to a divorce. In Lewis v. Lewis, 5 Mo. Rep. 278, this court decided that the charge of infidelity was such a personal indignity as was contemplated by the statute. In Cheatham v. Cheatham, 10 Mo. Rep. 296, this decision was overruled. At the next session of the general assembly, (in 1849,) the law was changed.

The petition does not show that plaintiff is entitled to the money when collected, nor that the defendant promised to pay it to him. No contract or liability is shown.

<p>1. It is error to instruct a jury to presume one fact from another fact proved, unless the presumption is one which the law raises.</p>

Keeton, by his entry of the land, acquired no title to timber cut prior to the entry. The timber remained the property of the United States, and the injury, if any, done by Audsley, was to the United States, and not to Keeton. The cases of Turley v. Tucker, 6 Mo. Rep. 583, and Gale v. Davis, 7 Mo. Rep. are consistent with this posi- ’ tion.

Evidence of the declarations of the plaintiff’s son was inadmissible. The plaintiff could not be permitted to prove the veracity of her own witness, by showing that, previous to the trial, he had made statements which corresponded with his testimony at the trial. 1 Greenleaf’s Ev. §469. 1 Phill. Ev. chap. 8, p. 3 and 7 et seq. (3d Am. from 3d London ed.) Buller’s N. P. 294. 1 Peters’ C. C. R. 203. Note 533 to 2d vol.

<p> Appeal from Buchanan Circuit Court. </p>

This was an action brought under the code, in the name of the-state of Missouri, to the use of William Russell and Sarah J., his wife, against Robertson Moore and others, upon a bond executed by Moore as principal, and the other defendants, as .his securities, conditioned that Moore should faithfully perform his duties as sheriff of Chariton county, according to law.

1. It was the duty of the referee to report the evidence offered, and his action in receiving or rejecting it. 2. The declaration is fatally defective, in uniting causes of action arising before the death of Petticrew and since the administration of Williams — causes of action against the executor as such, and against him personally. This defect is not cured by the verdict. 1 Chitty’s PI. 235, 236.

The second count of the indictment is good, and ought not to have been quashed. It is in the language of the statute, and is as certain as it is. This case comes within the principle of the States v. dimes, 1 Mo. Rep. 372. Page v. State, 6 Mo. Rep. 205. Grave v. State, 10 Mo. Rep. 232, and State v. Ladd, 15 Mo. Rep. 430. The charge of dealing with a slave, without circumstance, is as certain and definite as the charge of betting at a faro bank. 1.

<p> dipped! from, Chariton Circuit Court. </p>

<p>1. An indictment of a white person for being present at an unlawful meeting of slaves, must state the facts which constitute the meeting unlawful.</p>

<p>1. On the trial of a party indicted for selling liquor in less quantity than one quart without a license, evidence that he had sold at a time different from that charged in the indictment was held inadmissible for any purpose.</p>

The discharge of the juries by the court, without the consent of the defendant, before the end of the term, was a bar to all subsequent proceedings. The special plea therefore, was good, or at least the motion for a discharge should have been sustained. It is not necessary for the defendant to wait for a verdict before a writ of error will lie.

<p> Appeal from Polk Circuit Court. </p>

<p> Appeal from Laclede Circuit Court. </p>

The indictment does not run in the name of the state of Missouri, as required by the constitution. 2. It is submitted that a new trial should have been granted on account of the failure of proof.

The indictment does not charge the defendant with any indictable offence. The act of 1845 is repealed by the act of 1847, so far as relates to the matter charged m the indictment.

Jippeal from Polk Circuit Court. Physicians, who sell liquor as a medicine, are not within the meaning of the act. The intention of the legislature is to prevail even against the letter of the act. The sale of liquors, as a medicine, is not the mischief which the statute was designed to remedy. The act does not exempt physicians.

<p>1. Ail indictment which charges the defendant with permitting a “ gambling device” instead of a “ gaming device” is sufficient.</p>

jError to Marion Circuit Court. Proceeding against a constable and his securities for a failure to levy an execution and for a false return of the same. The execution was issued by Justice Lizenby, who afterwards died, and was succeeded in office by Wesley Lair. This proceeding was begun before Justice Roberts, who gave judgment against the constable and his securities for the amount of the execution and the statutory penalty.

<p> Error to Marion Circuit Court. </p>

<p> Error to Marion Circuit Court. </p>

<p>X. Any trustee having reasonable doubt as to the proper disposition of funds in his hands has a right, for his own safety, to apply to a court of equity for directions, making the persons interested parties to the proceeding.</p> <p>2. Under the code, it is improper to dismiss a suit because all are not made parties who should have been, the court having power to order others interested to be made parties.</p>

<p> Appeal from, Warren Circuit Court. </p>

<p> •Appeal from, Washington Circuit Court. </p>

This was an action of ejectment begun in Marion county, and taken by change of venue to the Circuit Court of Lewis county. Both parties claimed title under Ezra S. Ely, as follows : On the 5th of January, .1838, Ezra S. Ely, of Philadelphia, being largely indebted to his wards, Mary Ann Carswell (the wife of plaintiff) and the children of one Brady, conveyed the property in controversy, together with other real and personal property, to Margaret Carswell and Samuel McClellan.

•Appeal from Lewis Circuit Court. argued the following points : 1. The words “ all that may remain,” &c., in the will do not raise a power of disposition in the widow of the testator, lde v. Me, 5 Mass. 503. 16 J. R. 585. 4 Kent, 319. 2. If those words did raise a power of disposition, there is no evidence that the widow intended to execute the power by her conveyance to the defendant.

<p>I. A wife residing with her husband upon the property of another cannot, under ordinary circumstances, he joined as a defendant, in an action of ejectment.</p>

<p>1. A debtor who employs another to' buy in his property, at a sheriff’s sale, with no other view than to prevent a sacrifice of it, is not guilty of a fraud.</p> <p>2. A case will not be reversed for the exclusion of evidence, unless an exception is taken at the trial.</p>

<p> •Appeal from, St. Frangois Circuit Court. </p>

Y’allé brought this suit to obtain from Bryan the legal title to a tract of land, claiming to be the equitable owner. It appeared that Louis LeClerc, in his life-time, furnished his son, Erancis, with money to enter the land for him, (Louis.) Erancis entered the land in his own name. After the death of both father and son, the land was sold by each of their administrators under an order of court. The plaintiff claims under the father.

Frangois Circuit Court. This was a petition, filed by O. E. and L. Delassus against Poston, to enforce a vendor’s lien for an unpaid balance of the purchase money of land. McGready was subsequently made a co-defendant. In March, 1840, the plaintiffs, and their sister, the wife of Peter R. Pratte, being the owners of the land, sold the same to George W. Hoy, who executed three notes for the purchase’ money, the last of which was payable on the 30th of March, 1842.

<p>1. Where a mother-in-law performs menial services in the family of her son-in-law, it is for the jury to determine from all the circumstances, whether it was under an implied contract for wages, or not.</p>

<p> •Appeal from St. Francois Circuit Court. </p>

Jlp'peal from Ste. Genevieve Circuit Court. Petition to foreclose a mortgage given to secure the purchase money of land sold and conveyed by Coffman & IIorine to Huck.

<p> Appeal from, Perry Circuit Court. </p>

1. On the death of Marie Pratte, the community created by the marriage contract was dissolved, and one half of the community property became, by title absolute and irrevocable, the property of her heirs, subject 'only to the payment of the community debts. 2.

<p> •Appeal from, Perry Circuit Court. </p>

<p> Appeal from Perry Circuit Court. </p>

<p>1. Judgment reversed because the court instructed the jury that there waa no evidence on a given point, when the record showed otherwise.</p>

<p> •Appeal from Jefferson Circuit Court. </p>

<p> Jlppeal from Crawford Circuit Court. </p>

This was an action by six of the seven heirs of C. C. Valle, to recover an undivided interest in the Mine La Motte tract of land. The record showed the following facts : In 1838, C. C. Valle died, owning an undivided one third of the said tract. Lewis E. Linn and E. E. Pratte owned the other two thirds. On the 19th of December, 1838, letters of administration on Valle’s estate were granted to B. St. Gremme and E. E. Pratte.

This was an action to recover possession of certain slaves,’ wbicb tbe plaintiffs claimed as administrators of John Logan, and tbe defendants, as executors of Rosannab W. Logan.

./Ippeal from Mississippi Circuit Court. Action to recover damages for the conversion of a slave. The defendant answered that he held the slave as administrator of Mary T. Griffin.

Louis Land Court. The deed of April 8, 1835, was a good jointure, and is a bar to the widow’s dower, under the last clause of the 12th section of the act concerning dower, (R. C. 1845.) It is in the very words of the statute, unless it is necessary that the words “ for the jointure of the wife” should be inserted in the deed.

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Louis Law Commissioner*s Court. Action against a steamboat, commenced before a justice of the peace, and appealed to the law commissioner’s court.

<p>1. Under the act of 1847, a garnishee is not entitled to an allowance for the fees of an attorney, hut only for his own time and trouble in answering.</p>

Louis Court of Common Pleas. The title conveyed by Collier having been entirely defeated, the measure of damages is the purchase money .and interest. 10 Mo. Rep. 466. The title derived by Gamble from Collier being a nullity, he abandoned it, and purchases from the person holding the real title. But he obtains no facility for making this purchase from Collier’s deeds to him. •Suppose he had sued Collier on the covenants before buying the real title.

Louis Circuit Court. I. The deed of the husband to Miron Leslie vested no title in Leslie, as the statute executed the use, and the title passed to Edmondson. Cornish on Uses, 21, 27. Lewin on Trusts, 102.

Louis Court of Common Pleas. Civil action under the code. The plaintiff, in his petition, stated that he was the owner of a lot on the west side of Main street, in the city of St. Louis, upon which there was a four story brick building, the south wall of which was on the south line of the lot; that the defendant was the owner of an adjoining lot on the south, upon which he erected a building, the joists of which he inserted in plaintiff’s south wall, without his consent,…

<p>X. Where a defendant, who is sued upon a foreign judgment, does not deny the judgment in his answer, but relies solely upon a set-off, he cannot object to the admission of the transcript in evidence on the ground that it is not properly authenticated.</p>

Louis Court of Common Pleas. The facts are sufficiently stated in the opinion of the court.

<p>1. In a suit upon a note, under the code, an answer, which denies any knowledge sufficient to form a belief as to whether the plaintiffs compose the firm to whose order the note was payable, is erroneously stricken out.</p>

•Appeal from, St. Louis Circuit Court. This was an action to recover the value of certain improvements erected by Leach upon ground which he had held under a lease from Goode. By the terms of the lease, it was stipulated, that if, at its expiration, the parties could not agree as to the disposition of the improvements, there should be a valuation of the same, and Goode should pay Leach the amount of the valuation, provided it did not exceed two-thirds of the original cost.

<p> Jlppeal from St. Louis Law Commissioner’s Court. </p>

<p>1. Under the code, one partner is a competent witness for his co-partner, who is sued upon a demand against the firm.</p>

Louis Court of Common Pleas. The facts stated in the agreed case do not support the judgment. It clearly appears that Harper, when he was killed, had thrown away his pistol, and retreated from the combat. He was not then engaged in the violation of any law. It is true that he held u a billet of wood over his head in a threatening position.” But there was no attempt to execute the threat, and if there had been, Coryell was in a position which afforded him entire security.

Louis Law Commissioner’s Court. The petition alleged that the defendant spoke, in the German language, of and concerning the plaintiff, Mrs. Stieber, and another woman, false and slanderous words, which being translated were as follows : “ Ye are whores ; ye carry on roguery and are rogues; ye go to church and whore with the priests.” The petition contained no other material averment, and stated no special damage.

<p>1. The entry, by a county or probate court, of the non-appearance of a party who has given notice of a demand against an estate, is not a judgment from, which an appeal lies. The party must give a new notice.</p> <p>Qm. Whether, in such case, the first notice would he an exhibition of the demand, within the meaning of the statute, so as to prevent a bar, or for the purpose of classification.</p>

Jlppeal from St. Louis Circuit Court. This was a demand presented for allowance as a lien against the steamboat Pawnee, on account of coal furnished to said boat by the plaintiff, at Memphis, in the state of Tennessee. It appeared in evidence that the boat was engaged in the New Orleans and St. Louis trade, and was on one o£ her regular trips from New Orleans to St. Louis, when the coal was furnished.

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. The lumber furnished by the respondents was not furnished to any one of the persons authorized by the statute to bind the boat. The statute is in derogation of the common law, and must be strictly construed. The question is, whether the ship carpenter was an agent of the boat, within the meaning of the act concerning boats and vessels.

Louis Law Commissioners Court. The respondent was too late with his objection to the complaint, after a trial in the justice’s court without objection, and after continuances in the law commissioner’s court. See 5 Cow. 15. 7 Cow. 366. 1 M. & S. 230. 2 Hill, 637. 3 Mo. Rep. 348. 5 Mo. Rep. 533. R. C. 1845, §13, §18, p. 670. The complaint was sufficient within the decision in 6 Mo. Rep. 356.

Jlppeal from St. Louis Law Commissioner’s Courts This court has held that the statute giving double damages in cases of trepass, does not take from the party the old remedy, and he may pursue which-ever he chooses. Montague v. Papin, 1 Mo. Rep. 544., Papin v. Kuell, 2 ib. 26. No written statement is required, when an action is commenced before a justice for a trespass. Bonahoe v. Campbell, 4 Mo. Rep. 34. In trespass, all are principals.

Louis Law Commissioner’s Court. Skinner sued Vrowman by attachment. Thompson, claiming the property attached under a deed of trust from Vrowman to Mm to secure a note payable to Martin, filed an interplea. Thfe issue thus made was tried by the court, without a jury, and there was a judgment for the claimant. The record contains no finding of the facts. The plaintiff in the attachment appeals to this court.

<p>1. An uncertified deposition may be read in evidence, after the death of the witness, upon the testimony of the officer that the deposition was regularly taken.</p> <p>2. An allegation in a petition, not material to the plaintiff’s right of action, is not admitted by a failure to deny it in the answer. Thus the value of an article for which a plaintiff seeks to recover is not admitted if not denied.</p> <p>3. An inconsistent instruction is erroneous.</p>

Louis Circuit Court. The admissions of Langhorne, made after the boat was placed in the custody of the law, and had been ordered to be sold, were not competent to establish the plaintiff’s demand. It is against the re'ason and spirit of the act, that the owner should be allowed thus to affect the rights of the creditors of the boat, after she has passed from his possession and control. 2.

<p> Error to St. Louis Circuit Court. </p>

Louis Court of Common Pleas. 1> When a boat is seized, and not bonded within five days, under the ninth or tenth sections of the act, she must be sold under the eleventh section, for the benefit o£ all the creditors.

Louis Court of Common Pleas. This was an action to recover for work and labor, alleged to have been done by the plaintiff for the defendant, at his instance and request. At the trial, the plaintiff was permitted to read in evidence the deposition of Charles Dehault, under the circumstances stated in the opinion of the court, the defendant excepting. After a judgment for the plaintiff, the defendant appealed.

Louis Circuit Court. When this cause was called far trial in the Circuit Court, no abstract having been filed in accordance with a rule of the court, the defendant claimed a nonsuit, which was granted by the court.

Louis Court of Common Pleas. This was an action in the nature of an ejectment, begun in 1852, by Mary Louise Guyol and two others, claiming to be children of Antoine Roy and Felicité Vasquez. The facts stated in the petition sufficiently appear in the opinion of the court. A demurrer to the petition was sustained, and the plaintiffs sued out a writ of error. 1. The property acquired from Bolduc entered into the community existing between Roy and wife.

Louis Circuit Court. The court erred in striking out the answer, as it contained a good defence to so much of plaintiffs’ claim as arose after the dissolution. Story on Part. §153. Bisset on Part. 90. Godfrey y. Saunders, 3 Wilson, 94. 1 Livermore on Agency, 80, 84. Wells v. Boss, 7 Taunt..403. Bank of Wilmington v. Almond, 1 Whart. 169. Grow on Part. 149.

Louis Laiv Commissioner’s Court. The petition stated that the defendant assaulted and laid violent hands upon the plaintiff, and “ wrongfully, illegally and unjustly caused him to be arrested by a police officer of the city of St. Louis, under a pretended charge of having violated a city ordinance,” whereby he was compelled to give bail for his appearance or be imprisoned in the calaboose ; and that the defendant, “ wrongfully, injuriously and oppressively, illegally and…

<p> Error to St. Louis Circuit Court. </p>

Louis Court of Common Pleas'. This was an action brought by Rogers, to recover damages for the sinking of the steamboat Archer, of which he was owner, by a collision with the-steamboat Die Vernon, of which the defendant was part owner. The issue made by the pleadings was, whether the collision was occasioned by the negligence of the officers and crew of the Die Vernon or of the Archer.

•Appeal from St. Louis Court of Common Pleas. This was an action of ejectment, brought-in 1848, to recover a parcel of land of one arpent in front on Carondelet avenue, in the southern part of the city of St. Louis, by two arpens in depth, in the possession of the defendant. The plaintiffs are tlie legal representatives of Antoine Soulard, and exhibited the following evidences of title : 1.

Louis Court of Common Pleas. This was an action brought by Hunt against the officers of the various insurance companies in the city of St. Louis, to recover damages for an alleged conspiracy to ruin him in his business.

.Appeal from St. Francois Circuit Court. The appellant was indicted in November, 1851, under the thirtieth section of the act entitled “ an act to regulate the sale o£ the sixteenth sections,” (R. O. 1845, p. 994,) and the thirty-first section of the ninth article of the act concerning crimes and punishments, (R. C. 1845,) for trespassing upon section sixteen of congressional township thirty-four, range seven east^ claimed as school land belonging to the inhabitants - of…

Francois Circuit Court. These were two actions brought in the name of the state of Missouri, to the use of the inhabitants of township thirty-four north, range seven east. One was an action in the nature of ejectment. The petition stated that on a certain day, the plaintiff was entitled to the possession of section sixteen in said township, and that the defendants afterwards entered into the said premises and unlawfully withheld from the plaintiff the possession thereof.

Louis Circuit Court. 1. The fifth section of the act of 1845, concerning “Wills,” (R. O. 1845,) required that the witness to this will, who wrote the testator’s name, should have stated that he subscribed the testator’s name at his request; and without that statement, the paper was void as a will. McGee v. Porter, 14 Mo. Rep. 611. The making of a mark was not of itself a sufficient signing.

Louis Court qf Common Pleas. On the 12th of September, 1849, Samuel Gunn sued out of the St. Louis Circuit Court an attachment against Bernard F. Roe, a resident o£ Iowa, for three hundred and nineteen dollars, and executed an attachment bond in the usual form, with Jacob P. Thomas as security.

Louis Law Commissioner’s Court. The note taken by the constable under color of his office, was given for an illegal consideration and is void. The duty of the constable was to levy the writ. The act of the constable was a criminal offence by statute, (R. O. 1845, p. 390-1, §16, 17, 19, p. 506, §38.) Transactions prohibited under a penalty are void. Chitty on Contracts, 695 and cases there cited.

Louis Circuit Court. This was a petition filed by Eleanor Mount, in February, 1852, to recover dower in certain real estate in the city of St. Louis, of which her husband, Britton Mount, died seized in February, 1832. .The defendants claimed title under an administration sale, after the death of Mount, to pay debts due from the estate.

Error- to St. Louis Circuit Court. An agreed statement of the facts is set out in the opinion of the court. Only debtors can be summoned as garnishees under a fi. fa. R. O. 1845, p. 476, §6. 7 Mo. Rep. 435. 13 Mo. Rep. 451. The consignee of goods before sale cannot be treated as a debtor.

Louis Court of Common Pleas. The facts of this case sufficiently appear in the opinion of the court, when it was formerly here (17 Mo. Rep. 247) and in the opinion which follows. (among other points, which were settled when the cause was formerly here,) insisted that the court below ferred in giving the third instruction, which was an extract from the former opinion of this court, and was a mere comment upon the facts, calculated to mislead the jury.

Louis Court of Common Pleas. This was an action for the recovery of personal property or its value. The defence set up in the answer is stated in the opinion of the court, delivered when the cause was formerly here. 18 Mo. Rep. 186. The case now comes here after a trial upon the issue made by the answer.

Louis Law Commissioner’s Court. Action on a note commenced before a justice. Tbe defence relied upon was, that tbe plaintiffs had accepted tbe notes of W. D. Skillman in payment of the note sued upon. Tbe facts and tbe instructions are set out in tbe opinion of Judge Ryland. After a judgment for tbe defendant, tbe plaintiffs appealed.

Jlppieal from St. Louis Law Commissioner’s Court. In this case, which was commenced before a justice, the court below found the facts and declared the law arising upon them, according to the practice under the new code. No instructions were ashed and no exceptions taken. After a judgment for the plaintiff, the defendant moved for a review of the law and evidence, which being overruled, he excepted and appeals to this court.

<p> Error to St. Louis Circuit Court. </p>

<p> Error to St. Louis Circuit Court. </p>

Louis Court of Common Pleas. Dovol brought a suit to the February term, 1852, of the St. Louis Court of Common Pleas, against the mater and indorsers of a negotiable note, and recovered judgment against all of them. John F. Lay and Pleasant Devinney were two of the indorsers and defendants in said suit.

Louis Circuit Court. This was a proceeding to enforce the specific performance of an agreement alleged to have been made by the defendant’s intestate to convey to the plaintiff’s intestate the unexpired term of a lease for ninety-nine years, of a lot in the Carondelet common. Accompanying the petition was a translation of the agreement purporting to have been made between the parties, but not signed by either of them.

<p>1. Prior to the taking effect of the Revised Code of 1845, the lien of a judgment was extinguished by the death of the judgment debtor.</p> <p>2. An execution has never been allowed against the estate of a decedent in this state since May, 1, 1827.</p>

<p> appeal from Hannibal Court of Common Fleas. </p> <p>cited Story on Promissory Notes, §166-7 and notes. §181, 196. Gordon v. Phelps, 7 J. J. Marsh. 619. 4 ib. 238. Hosford v. Nicholas, 1 Paige’s Rep. 226. 2 Kent’s Comm. §39, p. 459-61.</p> <p>cited Leavenworth v. Brockway, 2 Hill’s (N. Y.) Rep. 201-3. Allen v. Watson, 2 Hill’s (S. C.) Rep. 319-22. Harrison v. Mlnnt, 12 Louisiana, 465.</p>

Louis Circuit Court. This was a petition in the nature of a bill of interpleader, filed by O. Bennett & Co., against Robert Robinson, jr., and John B. Wolcott. The claims of the respective defendants are stated in the opinion of the court.

Louis Court of Common Pleas. This was an action brought by Theresé Joyal in 1851, to recover ten feet of ground fronting on Third street, in block 55 of the city of St. Louis, in the possession of Matthew Rippey. The plaintiff claimed the ground by devise from her husband, Joseph Joyal, as a part of a lot of sixty feet, French measure, in front, by one hundred and fifty feet in depth, confirmed to him by the act of congress of June 13, 1812.

jError to,St. Louis Court of Common Pleas. This case was once before in this court, and was reversed and remanded. (17 Mo. Rep. 376.) After it went back to the court below, the defendant was allowed to amend his answer by inserting an additional item for money paid since the former judgment, for wfiich he claimed to be credited in taking the account. The cause was again referred, and the referee reported a balance in favor of the defendant, which report was confirmed.

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court when the cause was formerly here, (15 Mo. Rep. 557,) and in the opinion which follows. ■ 1. The court below erred in deciding that it stood admitted that the paper referred to in plaintiff’s petition for the production of papers, was executed, and that its contents were truly stated.. The affidavit was sufficient to excuse the parties from contempt.

•Appeal from Washington Circuit Court. Wm. Edwards and others were indicted under the sixth section of the seventh article of the act concerning crimes and punishments, (R. C. 1845.) The indictment is set out in the opinion of the court. Before trial, Wm. Edwards applied for and obtained a change of venue to Washington county. Other defendants took a change of venue to other counties.

Jippectl from St. Louis Circuit Court. The defendants were indicted under the 34th and 38th sections of article 2 of the act concerning… Held: the said Jeremiah Ryan, then and there feloniously, wilfully and by their act and procurement, did beat, batter, bruise, wound and contuse, giving to him, the said Jeremiah Ryan, then and there, with the stones and brickbats aforesaid, in and upon the head and side of him, the said J. R., divers wounds, bruises and contusions, each…

<p>1. In an indictment under the 15th section of article 8 of the act concerning crimes and punishments, (R. C. 1845,) for enticing and permitting persons to play upon a gambling device, kept by the defendant, it is not necessary to allege that money or property was bet, won or lost. An indictment which follows the language of the statute is sufficient.</p>

Indictment for selling spirituous liquors in less quantities than one quart without a license. The defendant admitted the sale, and then produced in evidence a receipt of the county collector for the ad valorem tax upon his stock of groceries for six months, covering the time when the offence charged in the indictment was alleged to have been committed.