Volume 21 — Missouri Reports

Louis Law Commissioner’s Court. Action commenced before a justice of the peace for abalance of wages as clerk. The plaintiff filed an account, in which he charged the defendant with his salary at the rate of $41 66 a month up to January 1st, 1854, without stating whether it was under a contract or not. After the 1st of January, and up to March 3d, 1854, when the plaintiff left, the defendant was charged in the account with a salary of $50 a month, under an alleged contract.

Louis Law Commissioner’s Court. In addition to the facts stated in the opinion of the court, it-was found by the court below that the property was attached on the 19th of February, and sold by the constable under an order of court on the 2d of March following; and that it was sold by the trustee under the deed of trust on the 19th of March, but not taken away by the purchasers.

Louis Circuit Court. This was a proceeding commenced in the St. Louis Circuit Court to establish the will of John Williams, previously rejected in the Probate Court. It is the same case reported in 19 Mo. Rep. 609, and there reversed for an insufficient finding of the facts.

Louis Law Commissioner’s Court. This was an action in rem against a steamboat upon a demand for the use of a wharf-boat belonging to the plaintiffs, lying at the St. Louis levee. It was agreed in the court below that the wharf-boat lay alongside the public wharf, and was .used by the defendant for three days, and that wharfage was paid to the city of St. Louis during that period. There was a judgment for the plaintiff.

<p>1. Under the 4th section of article 7 of the practice act of 1849, where an account sued upon, containing more than twenty items, is annexed to the petition and averred to be made a part of it, it seems that the account may be considered as set forth in the petition. At all events, the party should be permitted to verify the account by affidavit at the trial.</p>

Louis Law Commissioner'’ s Court. Action commenced in February, 1854, on a note dated September 23, 1841, payable one day after date. ' The defendant relied upon tbe statute of limitation. At tbe trial, there was evidence tending to show that the defendant suddenly removed from St. Louis, where he had previously resided, in the fall of 1841, and that it was not known to his neighbors where he had gone to.

Louis Court of Common Pleas. This was an action of ejectment begun in 1848, for a lot in block 16 of the city of St. Louis. The defendant was in possession under a deed executed by Joseph Yasquez and wife in 1816, during the wife’s minority. The plaintiff claimed under a deed executed by the same parties in 1846, after the wife had become of age.

<p>I. The burden of proof is on the party seeking to subject a railroad company to liability as garnishee in a suit against a contractor, to show facts which would have enabled the contractor himself to maintain a suit against the company.</p>

<p> Error to St. Louis Law Commissioner’s Court. </p>

Jlppeal from St. Louis Court of Common Pleas. This was an action for the possession of a piece of land lying on the Mississippi river, east of block 42, in the city of St. Louis. Block 42 is bounded north by Cedar street, east by Main street, south by Mulberry street, and west by Second street, and was confirmed to Auguste Chouteau under Devol-sey.

Louis Circuit Court. This was an action to recover the amount of two drafts accepted and paid by the plaintiff, Archer, at the instance and request of the defendants, McMechan & Co., for the accommodation of William J. Moore. The cause was tried by the court without a jury. It appeared in evidence that the plaintiff was a commission merchant in St. Louis, in which capacity he had done business for Moore, who resided at Brunswick.

Louis Circuit Court. This was a demand presented for allowance in the Probate Court, against the estate of Kennedy Lonergan, founded upon a bill of exchange dated April 22, 1847, drawn by said Loner-gan upon William O. Lofland, and accepted by him, payable to the order of William Clark, and -claimed to have been endorsed to the plaintiff.

Louis Circuit Court. This was a demand presented in the St. Louis Probate Court for allowance against the estate of Rene Paul, deceased, founded upon alleged breaches of a bond for $4000, executed to the state of Missouri, by said Paul as security, on the 16th of March, 1844, conditioned for the faithful discharge by Frederick W. Beckwith of his duties as curator of Philomena Smith, a minor.

Louis Court of Common Pleas. This was an action for the possession of a lot of ground fronting thirty feet on Third street, in block 84 of the city of St. Louis. The titles of the respective parties are sufficiently stated in the opinion of the court. The deed of Catha-rine Laviolette only conveyed a life estate.

<p> «Appeal from St. Louis Circuit Court. </p> <p>The opinion of the court contains a statement of the case.</p>

Louis Court of Common Pleas. This was a bill in chancery filed in the St. Louis Circuit Court in 1847, to settle a partnership account extending through two partnerships. The answer alleged an account stated and settled of the affairs of the first partnership. The complainant filed a general replication.

•Appeal from St. Louis Circuit Court. This appeal was prosecuted by Hardy to reverse an order or decree of the Circuit Court, made in the cause of Boyle v. Hardy, whereby Hardy was adjudged to pay to C. C. Carroll, the commissioner to whom the cause was referred to take an account, to the use of one Ligget, six hundred dollars for services as clerk of said commissioner.

Louis Court of Common Pleas. This was an action brought in 1853 against the securities in the bond of John W. Twichell, as United States marshal for the district of Missouri, to recover money collected by bim under an execution in favor of the plaintiff against Amos Sands. The facts were as follows : The execution issued upon a judgment of the United States Circuit Court, rendered at the April term, 1850.

Louis Court of Common Pleas. Walter brought an action of forcible entry and detainer against Catheart before a justice of the peace. Catheart removed the cause by certiorari to the Circuit Court, giving bond conditioned as required by statute, in the sum of $1000, with Patrick T. MeSherry, as security. While the case ivas pending in the Circuit Court, the plaintiff moved for an order on the defendant to give additional security.

Louis Court of Common Pleas. For a statement of the facts, see the preceding case of Walter v. Tabor. The present suit was brought upon the original certiorari bond therein referred to. There was a judgment for the plaintiff below.

Louis Circuit Court. Action on an open account, commenced in March, 1851.

Louis Law Commissioner’s Court1 Action for the specific recovery of personal property. The-record shows that a trial was had before a jury, who retired'to-consider of their verdict, and after an absence of about fifteen-, minutes, returned into- court and reported that they could not agree, and that there was no possibility of their agreeing, whereupon they were discharged by the court, and the cause continued.

, Louis Court of Common Pleas. This was an action up'on a fire policy for $4400, dated November 3, 1852, upon the stock and fixtures in a queensware store on Main street, in the city of St. Louis, destroyed by fire on the 7th of February, 1853. Among other conditions in the policy, was one which is set out in the opinion of the court.

Louis Court of Common Pleas. This action was brought by Hart, as assignee of Hesse, to recover a balance claimed to be due on account of a loss under a policy of insurance. The defendant answered, putting in issue the assignment from Hesse to the plaintiff, and pleading as a set- off a note executed by Hesse and his partner to Doan, King & Co., and assigned to the defendant before the date of the alleged assignment from Hesse to the plaintiff.

Louis Circuit Court. Action upon a policy of fire insurance, to recover a balance claimed to be due on account of a loss. The cause was tried by the court, a jury being waived. The evidence being heard, the court adjourned until the next day, taking the case under advisement.

Louis Court of Common Pleas. This was an action upon a policy of fire insurance for $3000, dated October 29, 1851, upon a mill in Illinoistown. The 6th condition annexed to the policy is set out in the opinion of the court.

Louis Circuit Court. This was a suit, the object of which was to correct a mistake in a deed in the description of the land conveyed. The defendants were, the grantor in the deed, the several parties in possession of different portions of the land, and a party having an interest with the plaintiffs under the deed. The plaintiffs prayed judgment for the title and for the possession.

Louis Court of Common Pleas. This was an action upon a penal bond given by Charles Frank and John Valentine, as principals, and Philip Walter, as security, to E. G. Clark, a constable of St. Louis township, conditioned for the delivery, upon the return day of the writ, of certain property which had been seized under an execution issued by a justice of the peace in favor of Waterman & Byan against Benjamin Mendheim.

Louis Court of Common Pleas. This was an action brought in the name of Meier, upon a constable’s bond given to the state. The breach of the condition was alleged in the petition to consist in a seizure and sale by the constable of property of the plaintiff, which was by law exempt from execution. A demurrer to the petition was sustained by the court below, and the plaintiff appealed.

Louis Circuit Court. ’This was an action upon a note. Judgment by default was rendered for want of an answer. Afterwards, the defendant’s attorney filed a motion to set aside tbe default, and in support thereof, filed his affidavit, stating that an answer was prepared and sworn to by the defendant, denying the execution of the note, and left with him to be filed, but that he was detained in the country by sickness until it was too late to file the answer in time.

<p>1. No exceptions saved.</p>

Louis Circuit Court. This was an action of replevin brought by James W. Kings-bury against Hardage Lane, in 1843, for two negro women. Lane pleaded property in himself to the slaves. In November, 1849, the death of the defendant, Lane, was suggested, and . the appearance of his executors entered. In December, 1849, there was a trial .and verdict for plaintiff. The case was brought to this court and reversed.

Louis Law Commissioner’s Court. This action was brought to recover for lime sold and delivered. The items were specifically set forth in an account annexed to the petition. The answer contained a general denial of-indebtedness, and specific allegations, to the effect that the plaintiff had been overpaid for lime furnished prior to that sued for, to an amount exceeding the plaintiff’s demand, and this was set up as an offset.

Louis Law Commissioner’s Court. This was an action for goods sold and delivered, brought against Hawley & Allen, as partners in the management of the Cheltenham Springs. Hawley did not answer, and a judgment by default was rendered against him. Allen answered, denying any partnership with Hawley, by whom the goods were purchased.

Louis Circuit Court. This was an action in the nature of ejectment, for an undivided one-third of lots 6, 7 and 8, in Smith, Bates & Lisa’s Addition to St. Louis. The petition stated that the lots were originally owned by Smith, Bates & Lisa, as tenants in common, and that all the interest of the latter had become vested in the plaintiff.

Louis Court of Common Pleas. This was an action by the owners of the steamboat James Hewitt, to recover damages for the sinking of said boat by the negligence of the defendant. At the trial, there was evidence tending to show that, at the time of the loss, there was an insurance upon three-fourths of the boat, and that immediately afterwards, and before the commencement of this suit, the interest insured was by the plaintiffs abandoned to and accepted by the underwriters.

^Appeal from St. Louis Law Commissioner’s Court. Halsall brought an action against Meier before a justice of the peace and recovered judgment. Meier took an appeal to the law commissioner’s court, and entered into a recognizance. The recognizance was in the form prescribed by the statute, (R. C. 1845,) but Meier was named as plaintiff and Halsall as defendant in tbe action.

Louis Law Commissioner’s Court. Action for money had and received. From the whole record, the following appeared to be the facts : Lee & Martin had an account against the Central Fire Company, which they transferred to Brantner & Welbourn in payment of an indebtedness to them. Brantner & Welbourn subsequently made an assignment to the plaintiffs, for the benefit of their creditors, of all their property, including the account transferred to them by Lee & Martin.

Louis Law Commissioner’s Court. Action against a steamboat begun before a justice of the peace. The account filed is set forth in the opinion of the court. The constable’s return to the warrant stated that the •writ was executed “by going on board the steamboat Morri-sett, and by seizing and attaching, as the property of said boat, the anchor, hawser and tackling of said boat.”

<p>1. In a suit against a boat begun before a justice, a statement in the account-filed that the demand is for services as “ deck hand” sufficiently shows that it is a lien.</p>

<p>,1. The provision in the act establishing the St. Louis Land Court, (Sess. Acts, 1853, p. 90,) that no judgment of a court in St. Louis county shall be ¡a lien upon real estate until an abstract is filed in the Land Court, does not repeal the provision in the revised code of 1845, that there shall be no priority as between judgments rendered at the same term of a court.</p>

Louis Law Commissioner’s Court. Action before a justice of the peace. The complaint filed by the plaintiff stated that the defendant committed “ a trespass upon him, by letting various droves of cattle upon his meadows and hay stack.” There was a judgment for the plaintiff before the justice. An appeal was taken to the St. Louis law commissioner’s court, where the same was dismissed, and an appeal taken to this court.

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

•Appeal from St. Louis Circuit Court. This was a suit for partition. When the petition was filed, Sarah Cooper, one of the plaintiffs, was entitled to one-eighth of tbe land in fee, and to a life estate in all the residue, and each of the other parties was entitled to one-eighth, subject to her life estate. During the progress of the suit, some of the parties acquired the outstanding life estate to the extent of their shares.

Jippeal from St. Louis Court of Common Pleas. This was an action to recover the amount of a note, which the petition stated was executed by Kilburn & Massoa- pasable to the defendants or order, and by defendants/ delivered to Hastings & Mower, who endorsed ang same to the plaintiff.

Louis Law Commissioner’s Court. This was an action brought by' Sutter to recover a balance of one hundred and fifty dollars, alleged to be due to him from Streit, on account of hauling staves. The answer admitted the hauling, but alleged a settlement and satisfaction on the 18th of January, 1858.

<p>1. Under the first section of the amendatory act of 1847, concerning executions, every head of a family may hold properly to the amount of $150, ex,empt from execution, whether he owns any of the property mentioned in 'the first and second subdivisions of the eleventh section of the act of 1845 or not.</p> <p>s2. The securities in a constable’s bond are liable for his trespass in seizing property exempt from execution. (State v. Moore, 19 Mo. Rep. affirmed.)</p>

Louis Land Court. This was a petition filed in September, 1854, to redeem a deed of trust on real estate.

Louis Court of Common Pleas. The facts shown by the record in this case are the same as when it was formerly here, (IT Mo.

<p>1. No exceptions saved in a case originally begun before a justice of the peace. Judgment affirmed.</p>

Louis Court of Common Pleas. This was an action in the nature of ejectment, brought in December, 1849, by Augustus H. Evans against Isaac T. Greene, to recover a lot of ground on Main street, in the northern part of the city of St. Louis. Elizabeth Ashley, under whom the defendant was a tenant, was made a co-defendant in May, 1850. At the October term, 1853, when the cause was called for trial, the intermarriage of Elizabeth Ashley with John J. Crittenden was suggested.

Louis Court of Common Pleas. This was an action by Johnson to recover the worth of his services as clerk of a boat from April 1st to September 15, 1852.

tdppeal from St. Louis Circuit Court. Scire facias upon a mechanic’s lien. The following were the facts: One Bocker, being the owner of the property in August, 1849, commenced a building thereon, and on the 28d oE November, 1849, the building being then incomplete and in progress of erection, executed a deed of trust thereon under which the defendant acquired title in December, 1850.

Louis Circuit Court. This action was brought to recover the proceeds of certain merchandise consigned to Mogridge & McFaul, as commission merchants.

Louis 'Circuit Court. This was a petition by the heirs and administrator of William Christy, to enjoin the sale by the city of St. Louis of several lots in Christy’s Addition, previously purchased by the city at a sale for special taxes.

-Appeal from St. Louis Circuit Court. The facts are sufficiently developed in tlie opinion of the court. It may be added however, as a point was made upon it by the appellant, that upon the second hearing before the referees, the defendant renewed his motion to reject the petition of the plaintiff, because he was not present to be examined as a witness. No new effort had been made to get his deposition. The referees overruled the motion. 1.

Louis Circuit Court. Action for the breach of a contract for the sale of a boat.

Louis Court of Common Pleas. William Hall and James Hall commenced a suit in the Court of Chancery of the state of New York, against James Harrison and others. Harrison appeared to the suit and answered the bill. Pending that suit, James Hall died, and Lewis Hall, Benjamin E. Morgan and Maria Hall, as his administrators, were substituted in his place as complainants. The suit resulted in a decree in favor of the complainants against Harrison for the payment of a sum of money.

Louis Court of Common Pleas. This was an action in the nature of ejectment for a lot in the north-east quarter of block 8T, in Eiler’s survey of the town of Carondelet. Roth parties claimed title under the town, the plaintiff under a deed dated September 1, 1834, and the defendant under a deed dated January 29, 1850.

Louis Court of Common Pleas. This was an action of ejectment for a lot in the city of St. Louis, bounded south by Cherry street, west by Main street, and east by the Mississippi river, begun by the plaintiffs in error in 1840. It is the same case reported in 8 Mo. Rep. 65, where it was reversed and remanded, and now comes here after another trial.

Louis Circuit Court. This was an action in the nature of ejectment for about forty-nine acres of land claimed by the plaintiff as a part of the St. Louis common, confirmed by the act of congress of June 18, 1812, and within Brown’s ofiicial Surrey of said common.

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

Appeal from St. Louis Criminal Court. The indictment, which was quashed by the court below, is set out in the opinion o£ Judge Ryland.

•Appeal from St. Louis Criminal Court. Woodward was indicted under the 2d section of the act concerning “Lotteries.” (R. C. 1845.) The indictment contained four counts.

Louis Criminal Court. William Bean was indicted under the 18th section of article eight of the act concerning crimes and punishments, (R. C. 1845,) for keeping a bawdy house. The indictment charged that the defendant, “ on, &c., at, &c., a certain common house of ill fame unlawfully and wickedly did keep and maintain,” &c. The name of the prosecutor was not endorsed upon the indictment.

Louis Criminal Court. 1. A general verdict upon an indictment containing several counts will not stand. (State v. Montague, 2 McCord.) 2. The verdict is beyond the limit of the law. (R. C. 1845, p. 698.)

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

Louis Criminal Court. At the June term, 1852, of the St. Louis Criminal Court, McO’Blenis and fourteen others were jointly indicted for riot. At the January term, 1853, trial was had, which resulted in the conviction of McO’Blenis, McBride, and five other of the defendants, and a fine for different amounts was assessed against each. The defendants, McO’Blenis and McBride, filed their motion for a new trial, which was overruled, and they prayed an appeal to the Supreme Court.

This was an action brought by James Halbert, in 1852, to recover a slave claimed by the defendants as belonging to the estate of Nathan Halbert, their intestate. At the trial, it appeared in evidence that Nathan Halbert was a son of the plaintiff, and that the slave was given to him by his father, and remained in his possession up to the time of his death, some ten or fifteen years afterwards.

Scire facias sued out by the administrator of the mortgagee in 1854, to revive a judgment of foreclosure rendered in 1848, and to compel the administrator of the mortgagor to show cause why the mortgaged land should not be sold to satisfy the judgment. ' The scire facias recited that both the mortgagor and mortgagee had died since the rendition of the judgment, and that the mortgagor had parted with all his interest in the land before his death.

Trespass for the seizure and sale under an execution against James Walker, of a horse, some cows, calves and other cattle belonging to the plaintiff. The. defendants were Nancy Bor-land, the plaintiff in the execution, and her securities in a bond given to indemnify the sheriff for selling after a sheriff’s jury had found the property to belong to the plaintiff. There was a judgment by default for want of an answer, and a writ of inquiry ordered.

Action by Funk for the value of a female slave alleged to have been converted by Dillon. The plaintiff claimed the slave as the property of his wife, the daughter of William P. Flint. The defendant had hired the slave of Flint.

Suit by attachment upon a note not due. After the usual averment setting forth the execution of the note, and describing it, the petition stated that the note was “ due and unpaid.” The affidavit set forth the 7th, 8th and 3d grounds of attachment, specified in the act (R. C. 1845.) The defendant and not the State was made the obligee in the bond given upon suing out the writ.

Action begun .in the Platte Circuit Court, and taken by change of venue to the Weston Court of Common Pleas. The record showed two amended petitions and answers* The original and first amended petition were for a balance alleged to be due on account of money received by defendant from plaintiff’s intestate, after deducting a payment of $502.

<p>1. Under the act to establish a probate court in Buchanan county, (sess. acts of 1851, p. 514,) an appeal may be taken in vacation within thirty day3 after judgment.</p> <p>2. A manifest clerical error in the record making it appear that the appeal was taken before judgment, is no ground for dismissing the appeal, the bond showing that the appeal was taken within the time allowed by law.</p>

This suit was commenced before a justice of the peace by Hood against Mathis & Williams for a year’s “ rent of ten acres of land.” There being a judgment against the defend- ' ants in the justice’s court, they appealed to the Circuit Court, giving the statutory bond, conditioned for satisfaction “if the judgment of the justice be affirmed, or if on the trial anew in the Circuit Court, judgment be given against the appellants.” At the trial in the Circuit Court before a jury,…

This was a petition to set aside a sale made under a mortgage, by the mortgagee. The plaintiffs were the heirs at law and widow of Josiah N. Beatie, deceased, and the defendants were Martin Butler, the mortgagee, and William Fowler, the purchaser of the mortgaged lots.

This was a suit brought by Wilson against Drumrite & Yaughn, the object of which was to redeem two hundred acres of land, held under a conveyance from the plaintiff to Drum-rite, purporting to be absolute, but claimed by the plaintiff to have been intended as a mortgage. The defendant, Vaughn, held one hundred and twenty acres under a deed from Drum-rite, but was alleged to have purchased with notice of the plaintiff’s equity.

Petition by Sarah Despain against the administrator of Lewis Despain and John Carter for the specific performance of a contract for the sale of a piece of land. Robert W. Donnell and Hugh D. Louthen, purchasers from Carter, with notice pending suit, were afterwards made co-defendants. The facts are sufficiently developed in the opinion of the court.

•Appeal from Andrew Circuit Court. Action for a balance due upon a bond for the direct payment of money.

This was a petition for partition filed by Henry T. Chiles and his wife, who was a daughter of John Bartleson, against the defendants, who were also children of said Bartleson. John Bartleson died seized of the land, leaving a will, the material provisions of which are as follows : § 3.

Bill in chancery, filed in 1847, by a portion of the heirs of Jacob Wyan, deceased, against the other heirs and executors, for a partition of the real estate and a distribution of the personal assets belonging to the estate. Jacob Wyan died in the spring of 1842, leaying six children, to some of whom he had made advancements during his life.

The case is stated in the opinion of the court. 1. The verdict was obtained by the fraud of the plaintiff in suppressing the truth, and should be set aside. ‘ 2. The damages are excessive. (15 Mass. 365. 4 Mass. 1. 16 Pick. 541. 13 Mo. 427. 5 Mo. 205.) 3. The surprise of the defendant at the trial is a ground for setting aside the verdict.

The case is stated in the opinion of the court. It was argued and decided at the January term, 1854, but the opinion of the court was not filed until the present term.

This was an action begun in the Platte Circuit Court, taken by change of venue to the Weston Court of Common Pleas, and afterwards to the Clinton Circuit Court, to recover the value of a store blown up with powder by the act of a clerk of the defendants, while it was in their possession as lessees.

Action on a note by John Henderson’s administrator de bonis. non against Joseph Henderson.

This was an action begun by Sartin against John Saling and Henry, his son, who was a minor, to recover the value of a mare, alleged in the petition to have been “ seized, carried away and disposed of by the defendants to their own use.” At the trial, the plaintiff offered evidence tending to show that, being the owner of the mare, he sold her to one Scott, who was living with him, upon condition that no title should pass until Scott cleared certain land, which he failed to…

Action for the possession of lot 48 in the town of Winston. The petition alleged that a tract of land was patented to Joseph Winston ; that Winston conveyed the land, “ with the town of Winston thereon situate,” to William M. Macey ; that Macey conveyed to plaintiff the lot in controversy, by a deed annexed to the petition ; and that defendant had wrongfully entered into possession of said lot.

Noland was fined in the major’s court of the city of Independence, for selling liquor within the limits of the city, and appealed to the Circuit Court. By the 11th section of the charter, (Sess.

Duval presented to the county court of Laclede county for allowance a demand against the county for attendance upon Mrs. Basney during her last sickness, and for money paid for her funeral expenses. The county court refused to allow the demand, and he appealed to the Circuit Court.

This was a motion to quash an alias execution issued in 1854 without leave of court, upon a judgment rendered in May, 1847. It appeared that an execution issued upGn the judgment in 1847 which was returned, unsatisfied, and that no execution had since issued until the present. The motion to. quash being sustained by the Circuit Court, the plaintiff appealed. 1.

'This was an action by the assignee against Anderson and otheis, upon a note, signed “ steamboat Ben Lee & owners, by W. R. Wilson, captain.” The petition stated that tbe defendants, “ by their promissory note thereto” annexed, promised to pay, &c., and that the note was assigned to the plaintiff, and contained no further allegations. Judgment being rendered against the defendants for want of an answer, they appealed.

This was an action to recover damages for tbe alleged breach of an agreement under seal, by which the plaintiff contracted to furnish to the defendants “ one wagon and team (in conjunction with Alfred Bowman, part of said wagon and team,) and provisions for an overland trip to California, in consideration of which the defendants bound themselves, “ jointly and severally, to pay to said Craighead the one-half of all the net profit that they may make from the first six months’…

<p>1. An appeal lies from the order of a county or probate court approving an administrator’s sale of real estate.</p>

jError to Buchanan Circuit Court. Suit by attachment on three notes, signed H. T. Frame. The name of the defendant was stated in the petition, affidavit and bond as “ Henry T. Frame.” The writ issued against Iiiram T. Frame, and the sheriff’s return stated that it was levied on property of H. T. Frame. At the return term, Hiram T. Frame filed an interplea, claiming the property attached.

This suit was brought by Hall to recover damages for a deceit alleged to have been practiced upon him by the defendant; in a sale of land.

This was an action begun before a justice for the value of rails alleged to have been wrongfully taken by the defendant. At the trial in the Circuit Court on appeal, the plaintiff offered evidence tending to show that he bought the rails of a party who made them on public land, and that afterwards, the defendant, under a claim of having entered the land, forbade him to remove them.

Action by the payees against the maker of a note executed in Philadelphia, not negotiable under our statute.

<p>1. The purchaser at a tax sale of several tracts, separately sold and bid off, is entitled to a deed from the register reciting the fact that thay were so sold and purchased.</p> <p>2. But it is not necessary that the deed should recite that the register, upon due examination, is satisfied that all the requisites of the law have been complied with, as the execution of the deed furnishes as good eyidence that he is so satisfied as would a recital.</p>

The case is stated in the opinion of the court. 1. The judgment should be reversed for the improper exercise of discretion by the Circuit Court. The defendant’s answer had been lost without his fault, and he was prevented by sickness from being present to file a new one ; and the court refused either to continue the case, or grant a rule for a perfect transcript. (1 Mo. 529. 6 Mo. 544. 9 Mo. 18.) 2. No judgment by default could he rendered against the defendant.

<p>1. The sale bill made out and sworn to by the clerk at an administration sale, though prima fade, is not conclusive evidence, in a controversy between two parties claiming to have purchased the same property at the sale.</p>

Error to Benton Circuit Court. There is a sufficient statement in the opinion of the court to show the point upon which the case was reversed.

This was an action brought by Moore & Moore, alleging that they were administrators de bonis non of Jesse Renfro, deceased, against Price & Lusk, as securities in the bond of William Martin, the prior administrator. At the trial, the plaintiffs offered in evidence letters of administration, which, on their face, purported to be general. The plaintiffs read in evidence, from tbe record of tbe county court, tbe order appointing them administrators de bonis non.

Action on a non-negotiable note, made by Lingenfelter; Hunter & Brumfield, payable to the plaintiff, Terrell. The suit was begun before a justice of the peace in 1851, and appealed by the defendant, Hunter; to the Circuit Conrt, where it was tried by the court without a jury.

<p>1. The receipt of a share of the profits of a concern does not necessarily create a partnership in the stock, as between the parties.</p>

Harrison, being summoned as garnishee under an execution in favor of Major against McMullin, answered that he hired a slave from McMullin, for a specific period, at a rate agreed upon, but that the slave was diseased at the time of the hiring and known to be so by McMullin, and died of the disease shortly after coming into his possession, without having done any work for him, and so he did not owe any thing for the hire.

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

Action begun in the Circuit Court to recover the sum of $128, delivered bj tbe plaintiff to the defendant in California, in gold dust, to be paid to plaintiff’s wife in Missouri.

Action for the conversion of a mare. The defendants purchased the mare at a constable’s sale under an execution in their favor against one Ray. At the trial, the defendants offered evidence of admissions by the plaintiff that he had sold the mare to Ray. The plaintiff, in rebuttal, offered to prove declarations of Ray that the sale to him was upon a condition, and that the condition had never been complied with.

The facts are stated in the opinion of Judge Ryland. 1. The court erred in giving the 5th instruction for the state. (Wharton’s Crim. Law, 395. Monroe v. State, 5 Geo. 2 Comst. 202.) 2. The 7th instruction was erroneous. (18 Mo. Rep. 423. 8 Smedes & Marsh. 401.) 3. The 3d instruction ashed by defendant should have been given. 4. The 4th instruction asked by defendant should have been given. (11 Humpb. 154.) 5.

The facts are sufficiently stated in the opinion of the court. A juror having separated himself from his fellows, without being attended by an officer of the court, without the consent of the court, after the cause was submitted to the jury, and before the jury had agreed on their verdict, said verdict was void. (3 Harris’ (Penn.) Rep. 4T0. Wesley v. The State, H. Humphrey’s (Ten.) Rep. 512. McCann v. The State, 9 Smedes & Marsh.

<p> Appeal from Montgomery Circuit Court. </p> <p>The facts are sufficiently stated in the opinion of the court.</p> <p>in their brief, insisted that the Circuit Court should have instructed the jury to acquit if they had a reasonable doubt as to the sanity of the defendant,</p> <p>in his brief, argued the single point that the Circuit Court did not err in overruling the motion to discharge the defendant on account of the delay in bringing him to trial; and that the onus was oü the defendant of showing that the delay was not for one of the causes preventing a discharge.</p>

1. The first instruction declares all of the defendants guilty under the indictment if one was present, and is clearly erroneous. (19 Mo. 529.) 2. No sufficient venue is laid in the indictment. (1 Chitt. Crim. Law, 218, 222. 2 Chitt. Cr. Law, 4.)

The defendant was indicted under tbe 38th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845.) The record… Held: the said William Freeman did then and there beat, bruise, and wound in and upon the face and body and arms of'him-, the said William Freeman,, whereby he the said William Freeman was greatly wounded' and disfigured), and received great bodily harm, contrary,” &c. A motion to quash this indictment was sustained by the Circuit Court.

The defendant was indicted under the 38th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) for assaulting and wounding one David Enix, under circumstances which would have constituted murder or manslaughter, if death had ensued. The indictment is set out in the opinion of the court.

Laclede Circuit Court. The defendant was indicted under the 38th section of the 2d article of the act concerning crimes and punishments, (R. 0.… Held: the said Lovelace did then and there beat, bruise and wound in and upon the head of him, said Lovelace, and did then and there bite off the thumb of him, said Lovelace, whereby the said Lovelace was then anff there greatly maimed, wounded and disfigured, and received: great bodily harm, contrary,” &c. A motion to quash this…

Gray was indicted with others, under the statute, for a felonious assault, and upon a separate trial was convicted. No motion to quash the indictment or arrest the judgment was made in the court below.

The statute makes •the selling by the quart and by the pint two distinct offences. The indictment charged the sale of a quart of intoxicating liquor and the absence of all license authorizing the sale. The statute pro-iiibits the sale of any quantity without a license, and that is the fact essential to the charge.

Jippeal from Laclede Circuit Court. The defendant was indicted for selling liquor on Sunday..

There was no misnomer. The names in the indictment and plea are the same in sound. But, though different in sound, it would make no difference. The true question is, not whether the names differ in sound, but whether they are the same in derivation or common use. (1 Wash. C. C. R. 290. 2 N. Hamp. 558. 3 Ohitty’s Prac. 170. 13 Mo. Rep. 92. 14 Mo. Rep. 417.) 1. No writ of error lies. (R. C. 1845, tit. “ Practice and Proceedings in Criminal Cases,” art. 8.) 2. The plea was good.

The indictment is insufficient. It neither charges that the defendants assembled “ with intent,” nor that, “ being assembled,” agreed, &c. The character of the violence intended is not stated. (9 Mo. 285.) A threat is not an act prohibited in the sixth section. (14 Mo. Eep. 147.) 2. The fine should have been separately assessed. .(10 Mo. Eep. 440. 7 Dana, 229.)

Coleman N. Blankenship was indicted by the name of Coleman N. Blackenship, for breaking open a letter. A demurrer to a plea in- abatement for misnomer was overruled by the Circuit Court, the indictment abated, and the defendant discharged.

Action under the 8th article of the practice act of 1849, for the specific recovery of a horse. The plaintiff produced evidence tending to show that he loaned the horse to one Johnson, from whom defendant purchased, and proved declarations of Johnson, made while he was in-possession of the horse, that plaintiff was the owner, and to this last evidence defendant excepted.

<p>1. A. sued B. for causing to be sold under an execution against A. certain' property selected and claimed by A. as exempt from execution under the act of February 6,1847, (see Sess. Acts, 1847, p. 52). Held that it is no defence to this action that A., at the time of the levy and sale, had other property, not specifically exempt from execution, more than sufficient to pay the debt, which he concealed from the officer, so as to keep it out of the reach of the execution.</p>

<p>1. Judgment affirmed, because no exceptions were saved in a case originating 'before a justice of the peace.</p>

Action to recover damages for tire breach of a contract to transport the plaintiff to California, and to procure the cancel-lafcion of a note given pursuant to the contract. It appeared in the petition that a suit on the note was pending on appeal from a justice of the peace.

Action commenced before a justice of the peace, against Carver and Douglass, described in the summons as trustees of Cave Spring district No. 3, township 53, range 3, upon the following note: “ $75.

The facts sufficiently appear in the opinion of the court. I. The 30th, 31st, and- 32d sections- of article 2 of the administration law of 1845-, do not vest an absolute property in the widow, but only a right of election; and-if she dies without electing what property to take, and without applying to the county court and having the same allowed her, no title passes to her legal representatives. II.

This was an action brought by the administrator of William S. Griddle, to recover the value of a female slave, alleged to have belonged to the estate of his intestate, and to- have been-converted by the defendant. At the trial before a jury, it appeared in evidence that the slave originally belonged to the defendant, the father of the plaintiff’s intestate, but had been in possession of the plaintiff’s intestate more than five years before his death.

This is an action brought by Morse for the breach of an agreement by which the defendant leased to plaintiff a certain tract of land, together with the privilege of using water from the dam of Maddox, the defendant, for driving a saddle-tree manufactory. A breach assigned was, .that Maddox entirely shut off the water from plaintiff’s manufactory, so as to render it impossible for him to continue his business.

This was a motion for judgment on a delivery bond taken by the sheriff.. On the 20th of January, 1855, T. R. Selmes obtained a judgment against Smith & Dick. On the same day, an execution issued, and was levied on a stock of goods- belonging to the defendants. The goods were by the sheriff advertised' to be sold on the 12th of February, 1855.

Action by Brown against North upon a promissory note. The defence relied upon in the answer was, that the note was obtained by the fraudulent representations of the plaintiff.

This was an action -for the conversion of certain mineral ashes of the plaintiff, as administratrix -of Archelaus Lee, deceased. The defendant claimed the ashes under a purchase at an execution sale of the intestate’s property. There was evidence tending to show that the ashes were purchased in by the defendant for the benefit of Archelaus Lee ; and that the said Archelaus advanced part of the consideration.

This was an action commenced before a justice of the peace, to recover the value of certain boards and laths, alleged to belong to plaintiff, and to have been wrongfully taken by defendant. It was in evidence on the trial before the Circuit Court on appeal, that Alexander, the plaintiff, had purchased a farm from one James Lane. At the time of the purchase there were upon said farm certain boards and laths stacked up in the yard preparatory to building.

This was an action brought to recover possession of certain leasehold property, alleged in the petition to have been formerly held by the defendant, Dixon, in partnership with one Skeel, deceased. Plaintiffs also claimed damages for the detention of said property. The plaintiffs claimed the entire leasehold property, as purchasers at an administrator sale by one Foxton, as administrator of the said Skeel.

This was an action in the nature of an ejectment, to recover possession of certain tracts of land. The facts, as found by the court, are as follows: The defendant, Benj. W. McIntosh, by a deed dated September 21st, 1847, conveyed to Seth B. McIntosh certain tracts of land.

Francois Circuit Court. The facts of this case sufficiently appear in the opinion of the court and the statement of the case as reported 19 Mo. Rep. 425.

This case was decided on a demurrer to the petition. The petition set forth that the plaintiff, Clarissa Hornsey, now wife of R. Hornsey, was formerly the wife of one G. Nuckolls, since deceased; that she had been divorced from the said Nuckolls, she being declared by the court to be the innocent and injured party, and the said Nuckolls the guilty party; that the said Nuckolls died July, 1854, without any child or other descendant in being capable of inheriting, leaving the…

This is an application to the Supreme Court by John E. Morgan, a member of the house of representatives, of the eighteenth general assembly, for a mandamus, directed to the auditor of public accounts, requiring him to draw his warrant on the state treasurer for an amount certified by the speaker of the house of representatives, to be due to the said John E. Morgan, as a compensation for services as member of said house.

Louis Court of Common Pleas. This was an action brought by James E. Randolph and Car-man Randolph against the defendant, Keiler, on a transcript of a judgment, alleged in the petition to be a judgment of the “Inferior Court of Common Pleas, in and for the county of Sussex, state of New Jersey.” It is alleged in the petition “ that on the 11th day of November, A. D. 1845, before Lewis Howell, then judge of the Inferior Court of Common Pleas in and for tbe county of Sussex,…

Louis Circuit Court sitting in Chancery. There was a motion made by the respondents in this cause, after a joinder in error, to strike out the bill of exceptions, allowed and signed by the judge, on the ground that it had been allowed and signed out of time, against the objections of the defendants, the present respondents.

Lords Law Commissioner’s Court. The facts are fully set forth in the opinion of the ’court. 1. The two justice’s transcripts were improperly admitted, not being duly certified. 2. There was no consideration to support a promise of indemnity. 3. The alleged verbal promise, if any was made, is within the statute of frauds. 4. The plaintiff was not entitled to recover without showing a bond from the defendant.

<p> Error to St'. Louis Land Courts </p> <p>This was an action by the plaintiffs, some of whom appeared by their mother, as their natural guardian, to recover damages-caused by the construction, by the defendant, (a company incorporated'under the act of February 27, 1851,) of a plank road. The said’plank road was located by the said company;,, with the consent of the county court of St. Louis county, over and upon- a county road of said county which ran over the land of the plaintiffs, and had been used as a public highway’for more than twenty years before the commencement of the said plank road. There was evidence showing, that Mary B. Williams, who appeared as the guardian of the minor plaintiffs, was in possession, together with her children, of the premises to which the alleged injury was done, and gave her- consent to the construction, of the said plank road. It is 'unnecessary to set forth the nature of the damage done, as the plaintiffs were forced to take a nonsuit bj the giving of the following instruction, asked for by the defendant r</p> <p>“If the jury believe from the evidence, that the acts and injuries complained of in the plaintiffs’ petition, were done in, and were consequent from the making of the Natural Bridge Plank Road, and that the making thereof was upon a state or county highway or road, with the consent of the county court of St. Louis county, and that said state or county highway or road had been used for twenty years or more immediately preceding the commencement of said plan! road as a public road' or highway, then the jury should find for the defendant.”</p> <p>To the giving of this instruction plaintiffs excepted.</p> <p>1. The question to be decided here is, whether a common county road or highway, established many years ago, before plank roads or railroads were thought of in this state, can be transferred to a private corporation by the legislature or the county court, for the purpose of being converted into a private road, without making just compensation for the injury done to the owner of the soil by the building of such road. When private property is taken for public uses, just compensation must be made. (1 Geo. R. 530-86 ; 2 Kent, 340.) The legislature had no right, even if they had intended to do so, to enter upon and appropriate limd of private individuals for purposes other than those to which it had been originally dedicated in pursuance of the road law. (3 Hill, 567 ; 18 Wend. 9 ; 25 Wend. 462-4. See also, 2 Strange, 1004.) The intention of the legislature was to pass to private corporations whatever right the public had in a public highway, leaving the question of damages for appropriating the soil to be settled between the owner and the corporation. When the right of way was originally granted, a common dirt road was all that parties contemplated.</p> <p>cited 1 Pick. 417 ; 12 Mo. 414 ; 14 Mo. 20 : 15 Mo. 651; 9 Conn. 436 ;■ 8 Cow. 146. This is an action for a lortt and the acts done and caused to be done were authorized by law. (1 Pick. 435; 12 Mass. 482.) The acts done and caused to be done, by defendant, which are complained of by plaintiffs, were done by the permission of Mary B. Williams, the person then in possession of the premises described in the petition.</p>

<p>X. A contract to make and deliver a written lease of a building, is a contract relating to land or some right or interest therein, within the meaning of section 1, of the act of 1853, (Sess. Acts, 1853, p. 90,) establishing the Land Court, and the Land Court has exclusive jurisdiction of actions for the'breach of such contracts, and that, too, although the parties stipulate that in case of a refusal to execute the lease agreed upon, a certain sum should be paid by way of stipulated damages.</p>

Louis Court of Common Pleas. This was an action on a policy of insurance, containing the following clause: “It is agreed that, should the insured change master or owners, notice shall be given by him to the insurers without delay, when the insurers may end the adventure if they so elect by returning a pro rata premium.” The other facts of the case are fully set forth in the opinion of the court. Mr. Spaulding’s brief in Tenn. M. & F. Ins.

Louis Circuit Court. This was a suit by tbe plaintiff suing as a poor person to establish her right to freedom.

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court. 1. The note in question ’having been once delivered, a suit can be maintained on it, notwithstanding a subsequent voluntary delivery of the note to Patterson to be held until the quit claim deed mentioned in said receipt of Patterson was executed. The delivery was absolute.