Volume 2 — Missouri Reports

<p>Parol evidence is admissible to prove the loss and the contents of exeentions, together with the return thereon, (Note a.)</p>

<p>í. A copy oí a record made out by an officer entrusted with the keeping of the records, will be presumed to be correct. (Note a.)</p> <p>2. A transcript of the record of the Supreme Court, seat to the Circuit Court, containing an aceount of the proceedings of the Supreme Court, in a cause sent from such Circuit to the Supreme Court, is, when tiled in the Circuit Court, a record of that Court; and a transcript of such transcript, made out and certified by the Clerk, is evidence of the facts therein contained.</p> <p>3. Where the defendant withdrew Ms plea, &c., filed another plea to a new deelara- , tion which the plaintiff had leave to tile, issue joined and trial — held to’be an admission of jurisdiction in the Court where the proceedings were had.</p>

<p>ON AN APPEAL from the Cape Girardeau Circuit Court.</p>

<p>A variance between the writ and declaration, and the verdict and judgment, in the Christian name of the defendant, is fatal and avoids the judgment.</p>

<p>A power oí attorney from A. to B., to sue for and recover a debt due to said A. from C., and when recovered, to receive and receipt for the said judgment; one half of which was to be to the proper use of the said attorney, the other half to the use and benefit of said A; B. was styled in the power of attorney “ the true and lawful attorney in fact, irrevocable of said A.” — held that B. cannot claim to have it paid over to him by the Sheriff collecting under execution.</p>

<p>Declarations made by a Sheriff, previous to the day of sale of property taken in execution, that the sale would be fraudulent on account of a mortgage which one W. held on the properly, are inadmissible to defeat the title of a bonajide purchaser of the property at the Sheriff’s sale. No declarations made by a vendor, except those made at the time of the sale, are admissible to defeat the title of an innocent purchaser.</p>

<p>ON WRIT OE ERROR from the Cole Circuit Court.</p>

<p>ERROR to the Circuit Court of Ray county.</p>

<p>ERROR to the Circuit Court of Howard county.</p>

<p>A levy of an attachment on property, generally, without saying whose property-held to be bad; and a garnishee summoned, without any further levy, is not bound to appear.</p>

<p>APPEAL.in Chancery from the Chariton,Circuit'Gourt.</p>

<p>1. The ordinance of 1187, was intended as a fundamental law, for those who may choose to live under it, rather than as a penal statute.</p> <p>2. In construing the ordinance, the Court will not be tied down to the particular exceptions contained therein, but will look at its spirit and object.</p> <p>3. Any sort of residence contrived or permitted, by the legal owner of the slave, upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance, and thereby introduce slavery de facto, would entitle such slave to freedom.</p> <p>4. A citizen of Illinois, and resident there, may own and employ slaves in this State ; and the occasional visits of the slave to that State, do not constitute sucha residence as entitles the slave to freedom.</p>

<p>An indictment against a Justice of the Peace for a wilful misdemeanor in office should show such facts as would amount to such misdemeanor, independent of the word wiful; and to make this out, the indictment should charge the act to have been done, knowingly and corruptly.</p> <p>The instrument should alledge the,fact to he wilful; not that the defendant wilfully did an illegal act; which was held bad on demurrer.</p>

<p>A notice on the day of the trial of a cause, before a Justice of the Peace, by one of the parties in the trial, that he intended at a subsequent day to take an appeal_ held, not to be a sufficient notice of sueh appeal. (Note a.)</p>

<p>Warrants issued by the Governor for the apprehension of fugitives from justice, aro required to be under the Great Seal of the State ; and the impression of the seal being unintelligible, makes void the warrant,</p>

<p>Writs of error do not lie from the Supreme to the County Courts.</p>

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

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

<p>1. A testator dying, and leaving a widow, of whom-no mention is made in the withheld, as to the widow to have died intestate.</p> <p>2. The widows of alien residents, who die in this State, are entitled to dower, s. The debts of the deceased must be first paid, before the allotment of dower.</p> <p>4. The personal estate of the deceased, is the primary fund for the payment of hicdebts.</p>

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

<p>1. If A. undertakes to keep the horse of B. for pay, and keeps him according to the request of B., and the horse escapes without any negligence on the part of A., he is not liable.</p> <p>2. Any act to be done, on the part of the undertaker, which forms a part of the agreement, should be set forth in the declaration; but a mere incident to such underking need not.</p> <p>3. Matter more in the knowledge of one party than the other, must he pleaded by the party having that knowledge.</p>

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

<p>1. To man tain an action of detinue for goods, the plaintiff must have the right of property in himself and the immediate right of possession; — the gist of the action being the wrongful detainer and not the original taking.</p> <p>2. In setting forth the cause of action, it must be shown that the goods, &c., were the plaintiff’s, and an omission to do so will be fatal, even after verdict.</p> <p>3. Where the plaintiff sued as administrator, showed property in the intestate, and possession and detainer by the defendant, since the death of the intestate — held, that an action would not lie; the possession and detainer being against the administrator in his own right.</p>

<p>1. By the laws of Kentucky, regulating descents and distributions, slaves are held-to be real estate; and for want of issue of the intestate, of father, mother, brothers, • sisters and their descendants, if there should he no paternal or maternal kindred capable of inheriting on the one side or the other — the whole goes to the wife or-husband of the intestate.</p> <p>2. Slaves belonging to the estate of deceased persons, go to the administrator, to be' by him disposed of as the law directs.</p>

<p>ERROR from the Franklin Circuit Court.</p>

<p>1. The Supreme Court may award execution; to carry into effect their decisions.</p> <p>2. It is no variance from the judgment, for the Clerk to blend in the execution, the interest, damages, and costs. (Role a.)</p> <p>3. Under a proceeding by attachment, the plaintiff may dispense with bail, on the appearance of the defendant.</p>

<p>ERROR from the Circuit Court of St. Louis.</p>

<p>1. Where a declaration in assumpsit charges a joint contract, and the Court sitting as a jury, find that some of the defendants did assume, and others did not assume in manner and form, &e., and gave judgment for those who did not assume, and against those who did — held, to be error.</p> <p>2. Errors in the judgment of the Circuit Court, in departing from the pleadings or verdict, will be noticed by this Court, though no objection be made in the Court below.</p> <p>3. A former recovery may be given in evidence, on the plea of non-assumpsit.</p> <p>4. The declaration must alledge that all promised ; that the promise was a legal one at the time it was made; and that the demand was due and owing at the time of bringing the action. And the proof must support the allegations.</p>

<p>The act of the General Assembly, passed 19th February, 182S, which gires Justices of the Peace jurisdiction, m cases of breaches of the peace — held, to be repugnant to the Constitution of the United States and this State. (Note a.)</p>

<p>ERROR from the St. Louis Circuit Court.</p>

<p>Indians {alien captive in war, prior to the year 1709, by the French, and held or sold as slaves, in the province of Loui-iana, while the same was held by the French-held to he lawful slaves; and if teníales, their descendants likewise. (Note a.)</p>

<p>Where evidence, was offered under a .special count, but rejected by the-Court, and" afterwards received under a general county, this Court will not reverse the,judg.. nient of the Circuit Court for that cause alone.</p>

<p>1. Courts of Chancery cannot', relieve against judgments at lavr,- for the mistakes orv negligence of the parties, even should the mistakes have been occasioned by the' suggestions of the Court. (Note a.)</p> <p>2. If a party has once submitted his case to a Court of Law, and it was proper for the • Court to adjudicate thereon, and does so, he is-.precluded from any relief in Chan-eery..</p>

<p>IN ERROR from Cape Girardeau Circuit Court.</p>

<p>The Circuit- Court have a right which is inherent, to make their own rules ; but those rules, before they become obligatory, should have a reasonable publicity given to them.</p>

<p>IN ERROR from the Cape Girardeau Circuit Court.</p>

<p>a. The improvement of the real estate of an intestate, by the administratrix, is a misapplication of the funds of the estate, and the security will be liable for the waste committed.</p> <p>3. Under an agreement that the security will be permitted to mate use of any equitable defence he may have,’ &C- — -held that evidence is admissible to show the increased value of the estate ; for which, under the agreement, the security will be entitled to a credit.</p> <p>Tompkins, J., dissenting.</p>

<p>'inhere mortgaged property is soM and the proceeds of the sale are insufficient to pay the mortgage debt, tile mortgagor is personally liable foi the remainder of the debt, unless it ivas a part of the agreement that the mongagee should rely solely upon the mortgaged premises.</p>

<p>Where A. sells lands to B-., under a power of attorney, receives the purchase money- and pays over the same to his principal; and afterwards B. sues A. and recovers, judgment for the purchase money so paid, on the ground that the power of attorney under which A. acted was void and of no effect — A. will be left to his remedy against his principal to whom he paid over the purchase money.</p>

<p>APPEAL in Chancery from the Circuit Court of St. Louis county.</p>

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

<p>ERROR from the St. Louis Circuit Court.</p>

<p>t. It is the duty of the grand jury to inquire diligently into all offences against law committed in their several counties.</p> <p>2. In the exercise of their duties, they may cause such persons to come before them to give evidence, as they believe most likely to hare a knowledge of any violation* of the taw.</p> <p>a. A witness summoned to appear before the gi and jury and give evidence, and refusing to tellct what person or persons have so bet on Faro, other than himself, and not naming himself,’ is liable to impris inment.</p> <p>4. It is the province of the Conn to judge, whether any direct answer to the question propounded will furnish evidence against the witness.</p> <p>5. The witness is not bourn] to answer, when his answer may di close a fact which forms a necessary and essential link in the chain of testimony, sufficient to convict him of crime — and of this he is to judge.</p>

<p>Where the error is in the judgment of the jury, on the facts, this Court cannot correct it — the party should move for a new trial, and except to the judgment of the' Court overruling the motion.</p>

<p>IN CHANCERY, appeal from the Circuit Court of Jefferson county.</p>

<p>ERROR from, the Jefferson Circuit Court.</p>

<p>The ordinance of 1787, which provides that “neither slavery nor involuntary servitude shall exist in lite N. W. Ten ¡tmy,” d. es not imjiaii any rights ikcn existing —and negroes born and held as slave», previous to the passage of said ordinance, are not entitled to their freedom by reason theieof.</p>

<p>APPEAL in Chancery from the Circuit Court of St. Louis county.</p>

<p>•!. A defective description in a confirmation of a tract of land, must be supplied in the same way that defective descriptions are supplied in other instruments.</p> <p>5, A copy of a deed made and recorded in 1816, and certified by the ex-oificio recorder, will not be received as evidence in any cause depending, the law not authorizing the recorder to make out and certify copies.</p>

<p>To support an action of detinue,.the plaintiff must have a property either general'our special in the chattelif special, it must grow out of an actual possession or fo®coupled with an interest therein. (Note a.)</p>

<p>ERROR from the Circuit Court of Cole county.</p>

<p>1, in an action of trespass, &c., to recover freedom, the plaintiff is not entitled to. damages after the institution of suit.</p> <p>2. The action may b£ sustained without the plaintiff Sling his petition and obtaining leave of the Court to sue^Ttjlfe'se are benefits intended for the plaintiff, and which he may waiver ' ^ - a</p> <p>3. An avermept-by the plairStafT “ that he was and is a free man, and that he is hold» en as a slaye,” is suflicienTcmder the statute, if proved, to sustain the action.</p> <p>i. In every civil ease, where a p'arty intends to rely on the statute of limitations, he . must plead it, otherwise He cannot avail himself of its provisions.</p>

<p>ON ERROR from Howard Circuit Court.</p>

<p>An agreement that land should be ehargable wi(h, anda security for the- payment of a debt, though not a legal is yet an equitable mortgage.</p> <p>2. A purchaser with notice of the land subject to such incumbrance will not he protected in equity.</p>

<p>X. Neither the 6th section of the act of 1827, nor the act of the 4th of July, 1826, concerning judgments anti executions, repeals the 73d section of the act of January, 1816, giving to widows the right to remain in the mansion house of their husbands, and the plantation thereto belonging, until the assignment of dower.</p> <p>2. The right of the widow to remain in the mansion house may be assigned.</p> <p>3. Ejectment is the appropriate remedy to regain possession, should the widow he evicted; the remedy by action for damages given by the 73d section of the before mentioned act being cumulative.</p>

<p>1. The confessions of a prisoner, extorted by pain, or ¡made under the influence of hope or fear, are inadmissible evidence. .(Note a.)</p> <p>2. It is the province of the Court and not of the jury to determine .whether a confes. sion is made with :that degree of freedom whicli is necossaiy to make it admissible evidence.</p> <p>3. Tiie discharge of a jnry.after they had heard the evidence and retired, in consequence of the sickness of ane of the Jurors, is.not error,o».»,trial,for.burglary.</p>

<p>1. Where an act-of a Legislature gives to individuals a,corporate capacity upon the. performance of certain acts, a.person contracting wi(h these individuals by their corporate name, is precluded from denying the performance of those acts which were necessary to give them a corporate existence.</p> <p>2. The act of the State of Illinois, establishing a Bank at Edwardsville, does not give to its President and Directors the power of assigning notes made payable to them? selves.</p>

<p>A negro is mortgaged in the State of Kentucky, and afterwards,but before forfeiture of the mortgage, is carried by the moitgagor into the State of Illinois with a view to residence, from which State she is taken by the mortgagee and brought to Missouri, where she institutes an action for freedom against the mortgagee — held, that under the laws of Kentucky, which is the common law of England in this respect, the mortgagor is the legal owner of the slave; that he could emancipate her; and. that the slave, by her residence in the State of Illinois, acquit ed a iuh modo right to freedom by the ordinance of 87, which liberated her from the dominion of the mortgagor, and gave her a right to freedom until the mortgagee, by the means rendered necessary by the terms of the mortgage, again subjected her to slavery.</p> <p>Wash, J., dissenting.</p>

<p>APPEAL from St. Louis Gircuit Court,</p>

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

<p>I. On a prosecution for an offence which must he commenced within a given time after its commission, if the first indictment is quashed, and the second one, in order to prevent tile bar of the statute of limitations, sets out the proceedings under the first, they must be stated with the precision and certainty required in original criminal proceeding.</p> <p>S. When an indictment is quashed, and the period elapsed within which a prosecution should be commenced, the second indictment should lay the offence on a day within the time limited by law for the prosecution of the offence ; and the State, on the trial, should show the facts which bring it within the exceptionof the statute of limitations.</p>

<p>If plaintiff fails to file security for costs agreeably to order of Court, his suit shall be dismissed, and he shall be adjudged to pay the costs.</p>

<p>APPEAL from the Cape Girardeau Circuit Court.</p>

<p>If on an appeal to the Circuit Court from a Justice of the Peace, the plaintiff recover nothing, he shall pay the costs of both Courts.</p>

<p>ON WRIT OF ERROR from Perry Circuit Court.</p>

<p>). To make a letter to an agent evidence in a case, the agency must first be established.</p> <p>2, A written instrument cannot be contradicted, but may be explained by parol tes timony. (Note a.)</p>

<p>APPEAL from Cape Girardeau Circuit Court.</p>

<p>Si Writ of error lies on the judgment of the Court overruling a motion to set aside*-, non-suit. (Note a.)</p> <p>a. To read,in evidence ap instrument of writing, without proof of execution, it mush; be made the foundation of the action. (Note b.)</p> <p>a. An instrument sued on, purporting to be executed by the opposite party, can be-offered in evidence, without any proof of execution.</p> <p>4, Where a bill of exceptions is doubtful, the Court will not intend any thing for the-benefit of the party whose duty it,was to make the matter plain. (Note c.)</p>

<p>ERROR-to Howard Circuit Court.</p>

<p>ERROR from the Howard Circuit Court-</p>

<p>if Under the act simplifying proceedings at law, the defendant is allowed six days to plead as in other cases.</p> <p>3. Error in taking judgment by default before the time of pleading expires, is not cured by opening the judgment on-the motion-of the plaintiff, unless the defend-' ant-has notice thereof.</p>

<p>APPEAL from Lafayette Circuit Court</p>

<p>ERROR from the Boone Circuit Court.</p>

<p>ERROR from Ray Circuit Court.</p>

<p>1. The arrest of a judgment is a final decision, and a. writ of- error will lie thereon.</p> <p>2. An indictment, charging the defendant did suffer a gambling device to be set up and used in his house, at which, a game of. chance called. Loto was played, &c., is good.</p>

<p>1. The Court can assess damages without the intervention of a jury if neiher. party require one.</p> <p>2. In an action on an assigned note, the plaintiff need not show that he sues in the character of assignee.</p> <p>3. The Supreme Court considers nothing, as error which, has not been decided on-below.</p>

<p>A person injured or defrauded by any fraudulent conveyance, may maintain an ac-tion of debt for double damages against the parties privy thereto, before conviction;», of the criminal charge.</p>

<p>li A negro may be hired to work at'th'e Saline in Illinois for twelve months without! becoming free.</p> <p>3. A negro hired in good faith to work at the Saline for one year, may at the end of that year be hired a second, without working his freedom.</p> <p>s. An involuntary escape of the negro at the end of twelve months, will not cause a forfeiture.</p> <p>4. If the owner of slaves.take them into Illinois with intent to residft-there, and do reside there, keeping the slaves, they become free.</p> <p>5. If the owner stay in Kentucky, and send his slave to work in Illinois, he becomes free. (Note a.)</p> <p>6. A slave is incapable of acquiring-a permanent settlement or regular domicil by residence.</p> <p>7. The Constitution of Illinois cannot- be controlled by the ordinance of 1787.</p> <p>8. The admission of A. that he is a .slave, is no evidence against him in a suit for freedom.</p> <p>9. A sjave who resided at the Ohio Saline as a-laboror,in the year 1817, is entitled to his freedom.</p>

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

<p>A bill of exceptions does not lie in criminal cases.</p>

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

<p>APPEAL from the Circuit Court of Jackson county.</p>

<p>j. A contract for two dollars and forty- pouuds-ofi beef is n.ot entire in its nature.</p> <p>3. On a contract to pay money and property, debt will be sustained for the amount of money.</p> <p>i. An order for money and property is divisible.</p> <p>4. The Court gaye judgment without finding a verdict — held not erroneous.</p>

<p>MANDAMUS to the Howard Circuit Court.</p>

<p>if the facts be stated as to time or place with repugnancy or uncertainty, the indict ■ ment will be bad. (Note a.)</p>

<p>ERROR from the Howard Circuit Court.</p>

<p>An appeal from a judgment by nil elicit, rendered by a Justice of the Peace is Sustainable without a motion and refusal to set aside the judgment.</p>

<p>APPEAL from Howard Circuit Court.</p>