Volume 20 — Missouri Reports

Louis Circuit Court. This was an action brought in April, 1851, by W. P. Penn, administrator of Shad. Penn, deceased, to recover a balance due the intestate on a running account, the particulars of wbicb appear in tbe opinion of tbe court. Tbe defendant relied upon tbe statute of limitations, and also filed an off-set, tbe particulars of wbicb appear in tbe opinion. At tbe trial, tbe plaintiff offered bimself as a witness.

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. A distributee of an estate is not a party to the action, nor a person for whose immediate, benefit it is defended, within the meaning of the new practice act. While the administration is open, the administrator acts for the creditors, as well as the distributees.

■Appeal from, St. Louis Circuit Court. This was an action on the case, commenced in 1846, by Warren Reed against Frederick R. Conway, then surveyor gene - ral of Illinois and Missouri. The declaration contained four counts.

Indictment for hog stealing. The indictment contained three counts. The first count charged that the defendant, on, &c., with, &c., at, &c., “ one hog of the value of five dollars, the personal property of Eli Wilson and Wm.

Jlppeal from Franklin Circuit Court. The case is fully stated in the opinion of Judge Byland. Among a large number of other instructions given by the court below, of its own motion, was the following: 12.

<p>1. If a material averment permitted to be inserted in a petition at the trial byway of amendment is unanswered, it is to be taken as admitted. But if the answer contains a defence to the petition with the additional averment, the court should proceed to try the case in the same manner as if the averment had been in the petition at first and was unanswered.</p>

In 1849, Jones and others formed a joint stock company, for the purpose of going to California in quest of precious metals.

This was a proceeding by the Hannibal and St. Joseph Railroad Company, under their charter, to run their road through the land of Samuel Morton. The proceeding was begun before the judge, during the sitting of the Marion Circuit Court.

•Appeal from Lincoln Circuit Court: This was an action begun by Wade, to recover the value of personal property, consisting of a negro woman, two cows and their calves, and a lot of bacon and other articles, alleged to have been wrongfully taken by Jones, the defendant. Jones answered that he took the property as constable, under an execution issued by a justice of the peace, and directed to him.

■Appeal from Jefferson Circuit Court. This was a petition for an injunction to restrain Dixon from selling and shipping wood on and from the “ Selma landing,” to which the petitioners claimed an exclusive right for that purpose. The petition alleged that the defendants were utterly insolvent.

Jlppeal from Franklin Circuit Court. In 1830', Leonard Farrar and Richard, his son, agreed to-exchange tracts of land owned by them respectively. Leonard conveyed immediately to Richard, but Richard did not convey to Leonard, the latter desiring him to wait until he sold the-land, and then convey directly to the purchaser. In 1836. Leonard died without having_ received a conveyance from his-son.

<p> •Appeal from Franklin Circuit Court. </p> <p>The case is stated in the opinion of the court.</p>

<p>1. The allowances made to administrators in their annual and final settlements have the effect of judgments, and at'e conclusive between the parties at law; hut may he set aside in equity upon a proper showing.</p> <p>2. A party seeking equitable relief under the new system of practice must state facts which would have been a ground for such relief under the old system.</p> <p>3. A statement that the administrator illegally procured allowances in his favor does not make out a case for equitable relief.</p>

Jlppeal from Jefferson Circuit Court. Tbe case is stated in tbe opinion of the court. It was orally argued by Mr. Noell and Mr. Fox, for appellants, and Mr. Polk and Mr. Whittelsey, for respondents. made tbe following points ; 1. Tbe proceedings of foreclosure set up by-defendants as a bar to the redemption demanded by plaintiffs were void, because Jacob Bollinger, who was made defendant, was then dead, and the suit should have been instituted against bis heirs.

•Appeal from Jefferson Circuit Court. This was a motion to quash an execution in favor of the respondents againt the Mammoth Mining Company, issued from the Circuit Court upon a transcript of a judgment recovered before a justice of the peace.

This was an action begun in 1853, on the bond of Jeremiah Blackwell, as one of the administrators of William Whaley, to recover the distributive share of Israel Whaley, one of the heirs of William Whaley. It appeared that Blackwell and one of the sons of the intestate, who had since died, acted as eo-administrators, and that the son transacted the business of the estate, and held the assets.

This was an action brought to the use of three of the legatees of Joseph Reyburn, deceased, against Ruggles and his securities, upon his bond as Reyburn’s administrator.

•Appeal from Washington Circuit Court. This was an action originally begun before a justice of the peace by Livingston against Dugan, to recover money paid for medical attendance upon a slave, and for services in nursing. It appeared that a suit was pending by Dugan and his brothers against Livingston, to recover the slave, Livingston being in possession, under a claim of title by purchase in good faith for a valuable consideration.

«Appeal from Cape Girardeau Circuit Court. The case is sufficiently stated in the opinion of the court. It was argued by Mr. N. Holmes for appellants, and Mr. Noell, for respondents. •

This was an áction upon the following sealed note : “Jackson, Mo., May 24th, 1852. “Twelvemonths afterdate, we or either of us promise to pay to John P. Edinger, sheriff of Cape Girardeau county, Missouri, the sum of two hundred and seventy dollars, for value received, in the purchase of a tract of land sold to make partition thereof amongst the heirs of Joseph Whitney, deceased.

<p>1. It is settled that the fee of land disposed of hy the United States remains in the government until a patent issues, and that a patent is a better legal title than a prior entry.</p> <p>2. A patent may he obtained under such circumstances that the patentee will hold the title in trust for the party making the prior entry, and may be compelled to convey by a proceeding in equity.</p> <p>3. Under the new practice, a party who relies upon facts which would constitute a ground of equitable relief as a defence to an ejectment, must set them out in his answer with the same particularity that would formerly have been necessary in a bill in chancery.</p> <p>4. The mere statement in an answer that the defendant’s entry was prior to the entry upon which the plaintiff’s patent issued, is no ground of equitable relief.</p>

This was a bill of review filed in 1851, by the heirs of William Creath, to reverse a decree rendered against them in 1840, upon a bill in chancery, filed by Zenas Smith.

•dppeal from St. Francois Circuit Court. This was an action brought in 1852 by six of the eleven children and heirs of Marie and Joseph Pratte, to recover an undivided three-elevenths of 20,000 arpens of land on the head waters of the St. Francis river, known as tbe Iron Mountain tract, confirmed to Joseph Pratte bj act of congress of July 4th, 1836.

•Appeal from Franklin Circuit Court. Action for the possession of land. The plaintiff claimed under a mortgage executed to him by John E. L. Brown, dated July 22, 1844, and recorded January 26, 1846. Suit was brought against Brown alone to foreclose the mortgage, the plaintiff purchased the land at an execution sale under the judgment of foreclosure, and received from the sheriff a deed dated April 9, 1852.

Louis Circuit Court. The case is stated in the opinion of the court. It was argued by Mr. Gantt, for the city, and by Mr. Shepley, for the defendant in error. relied upon the following points : 1.

Louis Court of Common Pleas. This was an action brought by the administrator of William' Christy to recover back taxes paid by him and a preceding administrator to the city of-St. Louis, beyond one-sixteenth of one per cent, per annum,upon real estate of their intestate, situate in what was known as tbe new limits, brought into the city by the charter of 1841. The facts are the same as in the case of Walker v. The City of St. Louis, 15 Mo. Eep. 563.

<p> Jl'p'pcal from St. Louis Court of Common Pleas. </p> <p>This was an action against Rider, the master, and Allen, the ■clerk, of the steamboat Timoleon, to recover damages for a trespass in transporting a slave of the plaintiff out of the state of Missouri, whereby the slave was lost.</p> <p>The cause was submitted upon the following agreed facts *. In the fall of 1849, the plaintiff’s slave came on board the steamboat, took passage for some point on the Illinois river, paid his passage money to Allen, the clerk, and went up the river on the boat to the point of his destination. Both Rider, the master, and Allen, the clerk, knew that the slave was going on the boat. Before this suit was begun, the plaintiff brought a suit in rem against tbe steamboat for taking the slave, and recovered judgment for his value, which had been satisfied.</p> <p>Upon these facts, the court below gave judgment for the plaintiff for the value of the slave, from which defendants appealed.</p> <p>relied upon these points: 1. The recovery and satisfaction in the suit of the same plaintiff against the steamboat Timoleon, is a bar to this action. The statute is a penal one, and is to be construed strictly. The words, “ without prejudice to any right of action at common law” must be construed as merely intended to give the owner of the slave a choice of remedies. 2. If even a recovery can be had in this case against Rider, the master, Allen, the clerk, is not liable either by the statute or at common law. It is the business of the master, not of the clerk, to decide who is to go on a boat.</p>

<p>1. Under ordinance No. 3037 of the city of St. Louis, approved July 29, 1853, supplementary to ordinance No. 2952, approved January 7, 1853, flour manufactured in the city was not required to he submitted for inspection before sale.</p>

Louis Circuit Court. The case is stated in the opinion. The following instruction asked for the defendant was refused: “If the jury shall believe from the evidence that, at the time of the execution of the note sued upon, and the issuing of the attachment process, Benjamin E. Otis and Robert Scott alone composed the firm of B. E. Otis & Go., and not B. E. Otis &-Otis, as is alleged in the affidavit upon which the attachment was sued out, and that, at the time of the…

Louis Court of Common Pleas.' The case is stated in the opinion of the court. relied upon the following points : 1. An infant cannot execute a power coupled with an interest, though it is otherwise with a naked power.

Louis Court of Common Pleas. This was an action for tbe possession of a lot in Carondelet, claimed to have been inhabited, cultivated and possessed by Gregoire Sarpy, prior to December 20, 1803, and confirmed by tbe act of congress of June 13, 1812. The plaintiff claimed under a deed from the heirs of Gregoire Sarpy.

In 1851, Gabriel Prewett died, leaving a last will, by which he devised all his land to his wife for her life, and after her death, to her children, if she should have any. If she should die without children, then he desired all his land to be “ sold to the best advantage, and appropriated to the use of education of orphan children.” He specified as one of the tracts belonging to him eighty acres entered in the name of his wife.

Louis Circuit Court. The case is sufficiently stated in tbe opinion of the court. It was argued by Mr. E. Casselberry, for appellant, and Mr. Barton Bates, for respondent.

Jlppeal from St. Louis Court of Common Pleas. This was an action brought by Cunningham to obtain the legal title and the possession of a lot of ground in the city of St. Louis, which he claimed under a sheriff’s deed, by purchase at a sale under an execution against William T. Gray, upon a judgment rendered February 6, 1850. The record did not show at what time the debt accrued, upon which this judgment was founded.

Louis Circuit Court. This was a petition by the widow of Andrew Duhring, for dower in a lot on Main street, in the city of St. Louis, in the possession of Henry Duhring. Barrett Williams and Andrew Duhring were partners in business in St. Louis, from 1834 to 1839.

Louis Court of Common Pleas. Action commenced in June, 1851, for tbe possession of 160 arpens of land on the river Des Peres in St. Louis county, being part of a tract of 1600 arpens granted by Zenon Trudeau in 1797, to TherSse Barrois and Erancoise Brazeau, and confirmed by the act of congress of April 29, 1816. On the 2d of April, 1811, the said Therése and Erancoise made a division of the tract, and executed to each other deeds for their respective halves.

Louis Court of Common Pleas, This was an action brought by the city of Carondelet in 1852, for the possession of a tract of land bounded south by the northern boundary of the city of Carondelet, as incorporated in 1851, north by the St. Louis common, as surveyed, east by the Mississippi river, and west by the Carondelet common fields.

Louis Court of Common Pleas. The case is sufficiently stated in the opinion of the court. insisted upon the following points : 1. This is not, in legal language, a guaranty. It is an independent, original undertaking of Cutter. (8 Kent’s Comm. 121. Smith’s Mercantile Law.) 2. The contract is to be taken most strongly against the maker. (Chitty on Oont. 95, 96.) 3.

Louis Criminal Court. Indictment for adultery. The second count of the indictment was precisely as follows : “ And the grand jurors aforesaid, upon their oath aforesaid, do further present, that Richard J. Byron, late of St. Louis county, on the first day of January, in the year of our Lord 1853, and on divers other days and times, between that day and the day of the finding of this indictment, unlawfully and wickedly did lewdly and lasciviously abide and cohabit with one…

Jlppeal from, Jefferson Circuit Court. Scire facias upon a forfeited recognizance. The case is stated in the opinion of the court. 1. The governor has no power under the constitution to release parties from the obligations of their recognizances. 2. If he has the power, it has not been exercised as to Davidson, whose obligation was distinct from that of Wright.

■Appeal from St. Louis Criminal Court. Indictment for keeping open an ale house on Sunday, and for selling ale on the same day. The indictment contained two counts, one for keeping open and the other for selling. The defendant pleaded in bar, that, at the time of committing the acts mentioned in the indictment, he was licensed to keep a dram-shop.

This was a bill in equity filed in the Pike Circuit Court in 1844, by McQueen against the heirs of Auguste Chouteau, for the specific performance of a contract to convey a quarter section of land. On the 25th of June, 1829, the administratrix of Auguste Chouteau leased to John J. Grimes, for the term of one year, for the annual rent of one dollar, a league square of land granted to said Chouteau by the Spanish government, but then unconfirmed.

This was an action under tbe new practice, commenced by the widow and heirs of James F. Clendenin, against S. 0. Rice, and the heirs of Jane Lowe, and against S. 0. Rice and Perry Askens, guardians for some of said last named heirs, for the specific recovery of two slaves, named Matthew and Mary, children of a negro woman named Emily.

This was an action commenced before a justice of the peace in Morgan county, by Golahar, road overseer, to the use of his road district, against Gates, to recover the statutory penalty for obstructing a county road. The cause was taken by appeal to the Circuit Court, and afterwards, by change of venue, to the Circuit Court of Moniteau county.

•Appeal from Holl Circuit Court. This was a suit brought by a portion of the heirs at law orT George Stewart, deceased, for a partition of the south-east andi south-west quarters of section four, in township fifty-nineJ range thirty-eight, in Holt county, Missouri,^ to which the said George Stewart was alleged to have died intestate.

Action by Capíes and others against Branham on a subscription paper to recover $100.

This was an action, under section thirty-five of article nine of the act concerning “ crimes and punishments, (R. C. 1845,) brought by Eackler in 1851, to recover the value of certain goods alleged to have been stolen from him by two slaves of the defendant. The facts, as they appeared in evidence, were about these : Certain goods were stolen from the store of the plaintiff, one night in October, 1850. Defendant was then in California.

This Ivas an action against the steamboat Robert Campbell, for the non-performance of a contract of affreightment. The petition stated that William Rdds, master of the boat, on the 12th of December, 1852, agreed, on behalf of the boat, to transport 400 hogs of the plaintiff, from Boonviile, on the Missouri river, to St. Louis, at fair rates, and failed to comply with the contract.

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

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

<p>I. Judgment affirmed for'want of hill of exceptions, the cause having originated before a justice.</p>

This was an action against a boat under the statute to recover the value of a horse alleged to have been lost by reason of the negligence of the officers and crew of said boat. The facts appear in the opinion of the' court when the cause was formerly here. (17 Mo. Rep. 461.) The case now comes here after a trial by jury. At the trial, the deposition of Sublett, who was a passenger on the boat upon the trip when the horse was lost, was read on behalf of the plaintiff.

This was a proceeding to vacate the will of William Nortb-ctttt, previously established in the Roone county court.

Petition by Schneider to foreclose a mortgage executed by Staihr and wife, in 1851, upon the wife’s undivided interest in the real estate of her deceased father, to secure a note of the wife’s brother, upon which her husband was security. After the execution of the mortgage, the real estate was sold by the sheriff in partition by order of court. The sale was upon credit, and the purchase money had not yet become due.

<p>1. The supreme court will not reverse a judgment for excessive damages un-Jess in a very clear case.</p>

This was a proceeding, originating by petition in the county court for an order upon the executor of Cornelius Davy, to pay over to Overton and wife, the petitioners, the wife’s distributive share of certain moneys in the hands of said executor. The order was made, and the executor appealed to the Circuit Court. The following facts were agreed upon : Davy died in 1852, leaving a last will. The clause upon which this controversy turns is contained in the opinion of the court.

<p>1. Trial by court of an appeal from a justice, and no question of law saved. Judgment affirmed.</p>

Petition by Tally and wife to enjoin the sale under an execution against Tally, of a slave, given to Tally’s wife upon her marriage. The marriage took-place in 1838. The debt upon which the judgment was rendered was contracted before the marriage. The judgment was rendered in 1843. The execution issued in 1853. The plaintiff was dead when the execution issued. These facts appear in the petition. A demurrer was filed and overruled.

This was a demand against the firm of J. W. & J. E. McIntosh, presented for allowance in the county court against the administrator of J. E. McIntosh, deceased, having in charge the effects of said firm.

Tbis wa£ a bill in chancery filed by Anthony to obtain the title to a lot in St. Joseph. The facts appear in the opinion of Judge Gamble when the cause was formerly in this court. (17 Mo. Rep. 394.) After the cause was remanded, it was referred to a commissioner to take an account.

•Appeal from Polk Circuit Court. 1. The court had no right to render judgment upon the amended petition until it was verified by affidavit. 2. The court erred in refusing to give defendant time to plead after the amendment.

This was a demand exhibited for allowance in the county court against the estate of Walker Doores, founded upon the following note: “ One day after date, I promise to pay Edmund Byars four hundred and six dollars for Elias Fisher, French Doores and H. H. Southworth, being money advanced by said Byars in a suit for the above named. “ Walker Doores, Attorney for Elias Fisher, French Doores, and Hunter H. Southworth.” At the trial in the Circuit Court, this note was read in…

<p> Error to Benton Circuit Court. </p> <p>Tbe case is stated in tbe opinion of Judge Ryland.</p>

This was a proceeding to set aside a partition sale of certain real estate, of which Hinkle became the purchaser. The cause was submitted to the court without a jury, and the following facts were found: Before the sale, Samuel B. Shannon, John S. Shannon and Captain Trigg agreed among themselves to purchase the land at the sale, provided it did not sell for more than twelve dollars per acre, and authorized S. B. Shannon to attend the sale, and bid that price for the land.

This was a motion to set'aside a sheriff’s sale in partition-. The parties to the partition suit were the heirs of William Stone, deceased, only a portion of whom joined in this motion. At the hearing, it appeared that the land-sold consisted of parts of two adjoining quarter sections, comprising in all upwards of one hundred and eighty acres.

Action by Doan, the assignee, against Moss, the maker of the following note: “Due John S. Bishop three hundred dollars, for value received of him.

This was an action by Morrow’s general assignees for the benefit of creditors against Bright, for about eight hundred dollars due upon a note, account stated and agreement, all of ■which were included in the assignment. Bright pleaded as a set- off five hundred dollars paid by him since the assignment, on a protested note of Morrow’s, on which he was endorser. The assignment was dated April 9, 1853.

This was an action commenced before a justice of the peace, to recover the value of an improvement on public land. At the trial in the Circuit Court on appeal, it appeared that the plaintiff never actually lived upon the land. The improvement consisted of a field inclosed by a fence. There was evidence tending to show that defendant promised to pay plaintiff for the improvement.

This was an action against the securities in a constable» bond, for failure to return an'execution and pay over money collected under it.

This was a proceeding commenced in the Callaway Circuit Court to vacate the will of John Wilburn, previously admitted to probate in the county court, on the grounds of his alleged mental incapacity to make a will, and of undue influence exercised by his wife over his weak intellect. The petitioners were Ms daughters and their husbands, and Sinclair Wilburn, one of his sons. The statutory issue was made and tided by a'jury, who could not agree upon a verdict.

Hppeal from Cooper Circuit Court. Tbe plaintiff should have been permitted to read bis account book in evidence. (2 Phill. on Ev. p. 682-3, 691. Oowen & Hill’s note, 491. Beach v. Mills, 5 Conn. Rep. 496-7. 1 Greenl. Ev. §117, 118, note 1. 1 Smith’s Lead. Cases, top p. 304 and notes. Ingraham. v. Bockins, 9 Serg. & R. 285. Curran v. Crawford, 4 S. & R. 8. 12 Pick. 139. 18 Mass. 427. 1 Rawle, 441.

1. The judgment, as originally entered in the Yulo District Court, was in the nature of a judgment in rem, and an action cannot be sustained on the same in this state. (Sallee v. Hays, 8 Mo. Rep. 116.) 2. The final judgment in this cause, in the Yulo District Court, is not a general judgment, nor judgment of recovery, but merely a re-instating of the former judgment — a mere revivor. (4 Mo. Rep. 222. Ib. 10. 3 Yerger, 426.) cited 2 Am. Lead.

The facts are sufficiently stated in the opinion of the court. Í. The word “judgments” in the fourth subdivisión of the first section of the fourth article of the administration law, includes the judgments of sister states, as well as our own. 2. By the constitution of the United States, the citizens of each state are entitled to all privileges and immunities of the citizens of the several states.

Action to recover damages for the breach of an alleged contract. The record shows that the plaintiff offered evidence tending to prove the contract and the breach of it, and no evidence appears to have been offered by defendant. No exception was taken to the admission or rejection of testimony. Two instructions asked by plaintiff were given, and one asked by defendant was refused. The jury found a verdict for the defendant.

among others, made the following points : 1. Powers-having failed to set up the rescisión of the contract as a de-fence at law is forever precluded. ( Cadwalader v. Mchison, 1 Mo. Rep. 470. 2 Mo. Rep. 77. 3 Mo. Rep. 321.) 2. Rrowder’s intestate being a hona fide assignee of the note sued upon, could not be affected by the decree rescinding the-contract, being no party to that proceeding. 3. The statutes of this state forbid an injunction in this case.

.Appeal from Audrain Circuit Court. Action originally commenced before a justice of the peace.

This was a petition by Dumey against Sehoeffler and wife to recover possession of certain real and personal estate.

Tbe facts are sufficiently stated in the opinion of the court. The court erred in requiring the grand jurors to testify and disclose the evidence given by Mrs. Tindle before the grand jury. (Art. 3, secs. 15 and 17, tit. Practice and Proceedings in Criminal Cases, R. C. 1845. 1 Grreenl. Ev. §252. IB Maine, 82. 2 Halstead, 347. 1 Chitty’s Crim. Law, 316. 2 Hale, 161. Roscoe’s Crim. Ev. 149.)

Action for slander. The petition stated in substance that the defendant charged the plaintiff with “ swearing to a lie before the grand jury,” and that this charge was made in allusion to the testimony given by plaintiff before the grand jury while investigating a charge of open lewdness and lascivious behavior against a slave. A demurrer to the petition was sustained by the Circuit Court. 1. The words are actionable in themselves.

Clair Circuit Court. The case is fully stated in the opinion of Judge Ryland. The action of the court below was in direct violation of the statute, which expressly provides that no member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them.

•Appeal from Jacleson Circuit Court. The facts appear in the opinion of the court. 1. The note, at the time it became due, was within a justice’s jurisdiction, and the plaintiffs were bound to sue at the first law day after the note became due. (8 Mo. Rep. 202, 451. 10 Mo. Rep. 553.) 2. The facts were agreed upon and in such a case no instructions are necessary. The judgment of the court is the declaration of law upon the special facts or verdict. 1.

This was a suit by Smith, the assignee for value, against Ashby, the maker, upon the following note : “ Twelve months after date, I promise to pay John W. Moodie, or order, one hundred and seventy-one dollars and •fifty cents, for value received, without defalcation or discount. “Thos. T. Ashby. “November 15, 1849.” This note was by Moodie assigned to plaintiff in July, 1850.

A judgment was rendered for Brill below, in November, 185B, and Meek took an appeal to the Supreme Court, where it was dismissed because not prosecuted.

This was a motion filed by Hull to quash an execution upon a judgment entered by the clerk in vacation in favor of Dow-dall against Parker upon confession, and for an order upon the sheriff to apply the money made under the execution, upon a subsequent attachment issued by Hull against Parker. It appeared that Parker filed a written statement in the clerk’s office in vacation and authorized judgment to be entered in favor of Dowdall, on the 22dof April, 1854.

This was an action of slander against Jacob Winters and Elizabeth, his wife.

In 1836, the plaintiff, wbo was the daughter of Rice Wood, deceased, intermarried- with Albert Gr. Wood. In 1848, her father died intestate, leaving a widow and four children, including herself. Afterwards, on a division of the estate, the widow’s dower was assigned and delivered to her, and consisted of real estate, some slaves and other personal property.

This was an action commenced before a justice of the peace-to recover the amount of an assessment made against Harris as a stockholder in the Chouteau Spring company, under the 12th.… Held: defendant came into the office, and wrote on the books of the company an assignment of his stock to William J. Pettit. Some days after-wards, defendant went to the office with Pettit, produced his stock certificate, and requested the treasurer to cancel it, and issue another to Pettit.

•Appeal from Andrew Circuit Court. This was an action on the case commenced in 184T. The declaration contained two counts. The first count alleged that, on the 28th day of March, 1847, the defendant “wrongfully and unjustly” set fire to prairie grass on or near his land, and that the fire extended to the land of the plaintiff and burned his fence.

John W. and John Rich were indicted in the Circuit Court of Stone county, at the June term, 1853, for an assault. Upon their motion, the cause was subsequently removed by change of venue to the Circuit Court of Lawrence county. They there moved to quash the indictment, assigning as a reason that the law establishing the county of Stone was unconstitutional, because its effect was, to reduce the population of Taney county below the legal ratio of representation.

among other points, relied upon the following: 1. The instruction given below that the jury were bound to take tbe testimony of a witness as true, unless impeached, is manifestly wrong. 2. The verdict is fatally defective, in not specifying the degree of the offence of which the defendant was found guilty. (R. C. 1845, p. 883-, art. T, sec. 1. 8 Mo. Rep. 495.) 8. The use of intoxicating liquor by the jury in their retirement avoids the verdict.

Jippeal from Camden Circuit Court. Gates was indicted at the October term term, 1848, of the Morgan Circuit Court, for attempting to deter a witness from giving evidence upon an indictment against him for perjury. At the April term, 1849, on account of the alleged prejudice of the judge, a change of venue was awarded to the Renton Circuit Court. A trial was had and the defendant convicted. He appealed to the Supreme Court and the case was reversed and remanded.

<p>1. A recognizance taken by a justice, conditioned that a party charged with crime shall-appear before the proper court at its next term, is not void for omitting to add “to answer the charge” or “to answer an indictment.”</p> <p>2. A recognizance cannot he quashed. Its validity can only be contested upon a scire facias after forfeiture.</p>

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

Indictment of a road overseer for neglect of duty. The indictment was quashed below and the State appealed. Enough of the indictment is contained in the opinion of the court to show the point decided. cited 1 Chitty’s Crim. Law, 170. R. C. 1845, p. 869, sec. 17. „ cited 2 Mo. Rep. 228. 3 Mo, Rep. 45. 1 Chitty’s Crim. Law, 179.

<p>1. A grand jury may be summoned and an indictment found at an adjourned term by statute.</p>

1. When a statute contains provisoes and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provi-soes. (1 ■Chitty’s Crim. Law, 283. 2 Hale, 171. Hawk. C. 2, c. 25, s. 112. State v. Mams, 6 N. Iiamp. 533-4.) 2. The indictment is not double. (Storrs v. State, 3 Mo. Rep. 7.) 3. The venue is sufficiently laid. (1 Chitty’s Crim. Law, 198. State v. Edwards, 19 Mo. Rep. 677.)

<p>1. An indictment against a man and woman, which charges that they were “ guilty of open, gross lewdness and lascivious behavior, by publicly, lewdly and lasciviously abiding and cohabiting with each other,” &c., in the words of the third specification of section 8 of article 8 of the act concerning “ crimes and punishments,” (R. C. 1845,) is good, although it does not state whether they were married or unmarried.</p>

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

<p>1. See State v. Bess, ante.</p>

Indictment for selling liquor without license. At the trial, the only witness introduced was a boy, examined on behalf of the state. He testified that Williams one day came into the shop of the defendant, who was a practising physician, and stated that he was sick and wanted some brandy. Defendant at first refused to let him have it, but finally gave him a drink for which Williams paid him twenty cents. Williams did not look pale.

Louis Court of Common Pleas. This was an action commenced in January, 1852, for the possession of a lot in the northern part of the city of St. Louis, claimed by the plaintiff to be within what is known as the Bra-zeau reservation, when truly located. The following is deemed a sufficient statement of the facts .• On the 10th of June, 1794, the Spanish lieutenant governor conceded to Joseph Brazeau four by twenty arpens of land.

<p>1. In a partition suit, judgment that partition he made is an interlocutory judgment from which no appeal lies.</p>

The counsel were proceeding to argue this case upon its merits, when they were stopped by the court, it appearing that a nonsuit had been voluntarily taken below, upon the refusal of the court to strike out an answer alleged to be insufficient. Mr. Buckner appeared for appellant, and Mr. Broadhead for .respondent.

•Appeal from Marion Circuit Court. This was an action upon two bonds for the payment of one thousand dollars each.

Jlppcal from, Franklin Circuit Court. This was an action for the possession of several congressional subdivisions of land in Franklin county, both parties claiming title under Charles Gratiot, the patentee, the plaintiff under an execution sale upon a judgment of the United States Circuit Court for the district of Missouri, and the defendant under an execution sale upon a judgment of the Circuit Court of Warren county.

This was a petition filed in 1854, praying the Circuit Court to set aside a sheriff’s deed to Murphy for land in Franklin county, sold under a special execution against the plaintiff upon a judgment of foreclosure of a mortgage. The sale took place October 3, 1850, and the sheriff’s deed was dated March 24, 1851.

Action by the assignees against the maker of a note negó - tiable under the statute, but not assigned for value. The defence was, that the note was given for the purchase money of land conveyed to the defendant by a deed containing a covenant of general warranty, which passed no title. A judgment was rendered against Hobein before a justice of the peace on the 30th of September, 1843, a transcript of which was filed in the Circuit Court, January 1st, 1844.

This was an action commenced before a justice of the peace, for the board of certain hands employed on section nine of the Pacific railroad, upon which the defendant and one Farrar were principal contractors. At the trial in the Circuit Court on appeal, there was evidence tending to show that one Clifford, who had quit work and run away, was a sub-contractor under Ra-gan and Farrar upon section nine. Plaintiff was what was called a boarding boss on this section.

Action commenced before a justice of the peace for the board of hands employed on section nine of the Pacific railroad, tried in the Circuit Court on appeal without a jury. There is a bill o£ exceptions in the record, which contains a finding of the facts by the court, and a motion for a review setting out the evidence.

This was' an action brought in January, 1852, to recover damages for the breach of a covenant of seizin contained in a deed from Relfe to Vandoren for certain land, dated August 13, 1836. The land was within what is known as the Iron Mountain tract, confirmed to Joseph Pratte by act of congress of July 4, 1886, and Relfe had no title at the time of his conveyance to Vandoren.

This was an action commenced beEore^ a justice of the peace to recover the price of a crop of growing wheat alleged to have been sold to the defendant. At the trial in the Circuit Court on appeal, the plaintiff offered to show the following facts : Early in March, 1852, he and the defendant made a verbal agreement, he to sell and the defendant to purchase a tract of land upon which he then resided, possession to be given the ensuing fall.

This was a petition to obtain the legal title to certain real estate in the town of Washington. Charles Eberius died in 1889, leaving the defendants his heirs at law. At the time of his death, he held a title bond for the property in controversy. After his death, the defendants, in a statutory proceeding against the administratrix of the obligor in the bond to enforce a specific performance, obtained a decree vesting in them the legal title.

Action for the possession of six lots in the town of Washington, claimed by the plaintiff under a sheriff’s deed upon an execution sale, under a judgment against B. fr A. King. Matthew Caldwell, the landlord of the defendant, also claimed title under the Kings.

Action originally commenced before a justice of the peace in the -name of Yates, administrator of Ferris, afterwards appealed to the Circuit Court, where, at the April term, 1853, Yates having died, Ashley, the succeeding administrator, was, on his motion, substituted as plaintiff, without the appearance of the defendant, or the service upon him of a scire facias.

This action was brought bj tbe beir of Sarah A. Perkins, to recover possession of a tract of land in Lincoln county. The defendant claimed title under a deed executed by Sarah A. Perkins (to whom the land was patented before her marriage) and her husband, Charles E. Perkins. The certificate of acknowledgment to this deed was as follows : “ State of Missouri, county of Lincoln, ss.

This action was brought in 1851 by the children of Isaac B. Gibbons, to recover, upon the legal title, slaves claimed by them under a deed executed in Kentucky in 1829 by their father, since deceased, under whom also the defendant claimed by purchase in Missouri in 1831.

■Suit to obtain tbe legal title to land in Franklin county. Tbe defendants filed a plea to the jurisdiction of tbe court, upon tbe bearing of which, it was admitted that one of the defendants resided in Green county, in this state, where the sum.” mons was served upon him, and the other in California; whereupon the suit was dismissed, and the plaintiff appealed. Suits concerning real estate must be brought in the county where the land or the greater part thereof is situate.

This was an action brought to recover the statutory penalty for a refusal to enter satisfaction of a mortgage, and to compel the defendant to deliver up a note to be cancelled. The facts-are stated in the opinion of the court. The purchase under execution by Evans & Relfe of Phelps’ equity of redemption esrtin-guished the mortgage and with it the mortgage debt. (1 Hil-liard on Mortgages, 329, §61, 330, §64. 2 Ib. p. 1 and' 2.) 1.

Genevieve Circuit Court. This was a petition filed in March,1854, to foreclose amort-gage executed by Pascal Detchemendy to Pierre Chouteau and others in 1822, to secure various debts owing to the mortgagees in severalty. The mortgage is the same referred to in the cáse of Moreau v. Detchemendy, (18 Mo.

The case is stated in the opinion. Written arguments on behalf of the state were filed by Mr. Carr and Mr. Clover. There was no appearance for the defendant.

Habeas Corpus. From the jailor’s return to a wfit issued by this court, it appeared that the petitioner was in custody under a mittimus issued by a notary public of St. Louis county, for an alleged contempt in not producing certain books and papers in obedience to a subpoena duces tecum issued by the notary, before whom he had been summoned to give his deposition as a witness on behalf of the plaintiffs in a certain cause pending in the St. Louis Circuit Court.

Louis Court of Common Pleas. This was an action commenced in January, 1854, upon a note dated October 1, 1848, expressed on its face to bear interest from date, payable annually.- The petition stated that the plaintiff, in 1852, had commenced a suit against the defendant to recover the instalments of interest then due, in which the defendant had pleaded that the clause in the note specifying that interest was payable annually had been inserted after its execution without his…

•Appeal from St. Louis Law Commissioner's Court. Tbis action was commenced before a justice on an account for forty-seven dollars and thirty cents. Tbe defendant filed as an off-set a demand against the plaintiff for one hundred and thirty-seven dollars, upon which there was a credit for the amount of the plaintiff’s demand, leaving a balance due of eighty-nine dollars and seventy cents, for which amount the defendant had judgment in the commissioner’s court.

Edward Bates, Judge of the St. Louis Land Court, presented his petition for a writ of mandamus to the St. Louis county court, requiring the latter to allow and pay to him out of the county treasury such an amount as, together with two hundred and fifty dollars received from the state treasury and forty-one dollars received on account of judgment fees, would make up his quarter’s salary of seven hundred and fifty dollars ; or show good cause to the contrary.

•Appeal from St. Louis Court of Common Pleas. This was an action commenced August 27,1853, by Brooks, to recover in the form of damages the value of a stock of goods seized and sold by the defendant, Wimer, as sheriff of St. Louis county, under executions in favor of the other defendants against William W. Price, dated respectively June 16th, and July 14th, 1858.

Louis Court of Common Pleas. This action was brought by Page & Bacon, to recover money in the hands of the defendant, Gardner, as general assignee under the statute, (R. C. 1845,) of George K. Budd, collected on accounts claimed by the plaintiffs, as purchasers under a deed of trust executed by Budd previous to the assignment, and to recover possession of uncollected accounts claimed by them in like manner.

Louis Circuit Court. This was an action under the act concerning “ bdSí^and vessels,” (R. C. 1845,) to recover the value of a bag of gold belonging to the plaintiffs, lost while in custody of the clerk of the steamboat Caroline, to whom, as alleged in the petition, it had been delivered for transportation from St.' Louis to Pekin by an agent of the plaintiffs, who was a passenger on the boat.

Louis Court of Common Pleas. This was a statutory action against a steamboat, brought in 1846, for an alleged breach of a contract to carry $572 in bank notes from St. Louis to Pell’s landing, on the Ohio river. The case now comes here after another trial since it was last reversed and remanded. (16 Mo.

Action to recover a balance due upon a note, after a sale of real estate under a deed of trust given to secure it. The defendant answered, setting up fraud in the sale, by which the plaintiff acquired the title to the property covered by the deed of trust for much less than its value. When the case was called for trial, the defendant moved for leave to file an amended answer and for a continuance.

This action was brought in April, 1853, to recover an unappropriated balance of money advanced by the plaintiff to the defendant in 1846, for the purchase of hemp on the plaintiff’s account. The defendant, in his answer, denied the justice of the demand, and relied upon the statute of limitations.

•Appeal from St. Louis Circuit Court. This was a bill in chancery, filed in 1848, to compel an account for the value of rock, quarried upon premises demised by the complainants to the defendants.

This was a proceeding under the statute (S. 0. 1845, eh. 40,) for the removal of the county seat of Clark county from Alexandria to Waterloo. Commissioners were appointed, who selected Waterloo as the site, and an election was ordered, pursuant to the statute, to take the sense of the tax payers upon the subject.

Frangois Circuit Court. This was a bill in chancery, filed in March, 1848, by the heirs of John Keeton, to recover certain slaves, (with the value of their hire and services,) claimed by them to have been held by William Keeton, the defendant’s intestate, (who had administered upon the estate of their father,) as their trustee, and by the defendant to belong to his intestate’s estate.

Louis Circuit Court. This was an action by Bidault & Co. to recover sixteen hogsheads of sugar, or the value, consigned to defendants as the factors of one Whiting, who claimed the sugar under an alleged sale to him by the plaintiffs, which, as the latter insisted, did not pass the title, by reason of his fraud. The allegations of the original petition are stated in the opinion of the court when the cause was -formerly here. (19 Mo.

Louis Court of Common Pleas. This was an action to recover the price of a drove of hogs, alleged in the petition and denied in the answer to have been sold and delivered. At the trial before a jury, it appeared in evidence that the defendants were engaged in the business of slaughtering and packing hogs for themselves, and also slaughtering for other packers.

Louis Circuit Court. This was an action brought to recover the price of wheat, alleged in the petition to have been sold and delivered at Chicago, Illinois, to be paid for upon its arrival in St. Louis* The case was once before in this court. (19 Mo.

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

Jlppealfrom St. Louis Law Commissioner’s Court. Action upon an account, begun before a justice, (where there was a judgment for the defendant upon a trial, a motion to dismiss having previously been overruled,) and appealed to the law commissioner’s court, where, on defendant’s motion, the suit was dismissed on account of the insufficiency of the account filed.

<p>1. Where there are three successive deeds of trust on real estate, the surplus proceeds of a sale under the second must be applied in payment of the third, and not of the first.</p>

Louis Court of Common Pleas. Action upon a note negotiable under the statute, given by Mochel, payable to Philip Burg or order, and by Burg endorsed to the plaintiff before maturity. The name of the defendant, Schiffman, was written upon the back of the note prior to the endorsement.

Louis Court of Common Pleas. This was a proceeding instituted by Wheeler to restrain the collection of a note, and to compel the holder to deliver the same up to be cancelled. The facts appear in the opinion of the court. insisted-that Barber was to be regarded merely as Wheeler’s agent for negotiating the note, and so the maxim that, of two innocent parties, he whose act has been the cause of the loss must bear it, was applicable. 1.

Jlppeal from St. Louis Court of Common Pleas. This was a petition in the nature of a bill of interpleader, filed by Kimball, to compel the defendants to litigate among themselves their respective claims to a fund in his hands, as the factor of Stone & Walworth, of New Orleans. The defendants Donald and others claimed as attaching creditors of Stone & Walworth, the plaintiff having been summoned as garnishee in suits brought by them.

<p> Error to St. Louis Circuit Court. </p> <p>The case is sufficiently stated in the opinion of the court.</p>

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

Louis Court of Common Pleas. Page & Bacon sued Lathrop as the drawer of a draft on-David Green, of Baltimore, for $1000, dated December IS^ 1849, at twenty days’ date, payable to their order, and signed “ Green & Co., by H. F. Lathrop, agent.” In the body o£ the draft was the following memorandum : “ This draft being drawn on your letter of credit to me, dated Baltimore, November, 30, 1849.” It was endorsed as follows : “ Pay Samuel Harris & Sons, or order, without recourse…

Louis Circuit Court. The petition alleged that the plaintiffs and defendants were tenants in common of a tract of land in St. Louis, and that the defendants had received all the rents and profits. The plaintiffs prayed for an account, and for judgment for their proportion. A demurrer to the petition, for want of jurisdiction, was sustained by the Circuit Court.

Jlppeal from St. Louis Court of Common Pleas. The case is sufficiently stated in the opinion of the court. The general principle that the liability of a retiring partner, as to parties who have previously dealt with the firm, continues until notice to them of the retirement, is only applicable when there is no change in the partnership name, so that every thing appears to go on as before. (Story on Partnership, 246-7-8.

Jlppeal from St. Louis Law Commissioner'’s Court. Action for wages, begun before a justice. At the trial'before a jury, upon appeal, the plaintiff introduced evidence tending to prove the services for which he claimed to recover, and closed bis case, without having proved the worth o£ the services, and thereupon the court instructed the jury that he could not recover.