Volume 22 — Missouri Reports

Louis Land Court. This was an action, in the nature of an action of ejectment, to recover possession of the south-east quarter of block No, 79, in the St. Louis common. It is alleged in the' petition that on the 23d day of June, 1848, the “ city of St. Louis,” being the owner in fee simple of the above tract of land, conveyed the same to John Laughton and D. II.

Louis Circuit Court. This was an action, in the nature of suit in chancery, brought by the plaintiff, Elizabeth Pensenneau, widow of Laurent Pensenneau, against defendants, the heirs at law of said Laurent, to establish and set up a trust as against the said defendants.

Writ of Error to St. Louis Circuit Court. This was an action in the nature o£ an action of ejectment, brought by Paul Reaume and others, to recover possession of one-fifteenth part of certain premises in the possession of defendants. The premises claimed are a portion of a lot of one by forty arpens,- situate in the St. Louis or Big Mound prairie, in the city of St. Louis, and confirmed by act of congress to the representatives of Francis Moreau.

Louis Court of Common Pleas. The facts of this case are sufficiently set forth in the opinion of the court, it being entirely unnecessary to set forth the instructions given and refused by the court below. 1. The confirmation was not to Louis Lemonde. (6 Peters,- 766 ; 10 Peters, 334; Strother v. Lucas, 12 Peters, 458 ; Stoddard v. Chambers, 2 How. 284; Bissell v. Penrose, 8 How. 316; 8 How. 335 ; Landes v. Brandt, 10 How. 348.) 2.

Lppeal from St. Louis Land Court. 1. The confirmation to Charles Mercier is void, because he was dead before the claim was presented to the recorder. An entry in the name of a dead man is void. (6 Pet. 261; 3 A. K. Marsh. 1080; 4 Pet. 345.) So also a patent. (12 Pet. 297-8 ; 1 Mo. 540 ; 4 Bibb, 385; 10 How. 373.) 2.

Louis Land Court. 1. There was no sufficient adverse possession. There should be an actual, hostile, distinct, visible and notorious corporeal occupation of the land during the whole of the time the statute has to run. (5 Cow. 219 ; 2 Johns. 230; 2 N. & McC, 343 ; 1 Ríce, 10 ; 1 Mete. 528 ; 10 Johns. 477; 4 Mass. 416 ; 2 Aik. 364; 4 Bibb, 544 ; 1 Marsh. 59, 506 ; 5 Litt. 22 ; 6 S. & R. 21; 11 Gill & Jo. 371.) 2.

Louis Circuit Court. For the report of this case, when on error before, see 19 Mo. 78. In addition to the evidence offered at the former trial, the plaintiff introduced evidence tending to prove a tender of the mortgage money. At the close of the plaintiff’s case, the defendant asked the following instruction: “ 1. The jury are instructed that the plaintiff can not recover;” which the court refused, and defendant excepted.

Louis Court of Common Pleas. This was an action on a policy of insurance, which had been twice renewed by endorsements.

<p> Appeal from St. Louis Court of Common Pleas. </p> <p>The' facts appear in the opinion of the court.</p>

Jippcal from Washington Circuit Court. Plaintiff filed his petition in the Circuit Court'of Washington county, praying that Todd, the sheriff and collector of said county, might be enjoined and… Held: nor at the time notice, was given of holding said court, and that they had no notice that the note had been added to the list handed to the assessor by plaintiff’s agent, until after the court of appeals had passed, and the tax-books had been handed to the collector.

Louis Land Court. This was au action in the nature of an .action of ejectment to recover possession of an undivided one-fifth part of a tract of about forty arpens, situate in the Grand prairie common field, near St. Louis. The land claimed, was part of United States survey No. 1589, under a confirmation by act of congress of 29th April, 1816, to “ William Bizette or his legal representatives.” Plaintiffs claim title as'the legal representatives of William Bizette.

Jippeal from St. Louis Land Court. The incorporated town o£ Carondelet was proprietor of a large tract of land, consisting of several thousand acres, granted to the inhabitants as a common in Spanish times, and confirmed to them by the United States. The general assembly of this state by act of February 6, 1889, (Sess. Acts, p. 210,) empowered the trustees of the town to grant leases of,this land, renewable forever, reserving rents.

•Appeal from St. Louis Court of Common Pleas. This is an action in the nature of an action of ejeetment, by plaintiffs, Aubuchon and Tallé dit L’Anglais, to recover an undivided portion of a tract of three by forty arpens, in the Grand prairie common field of St. Louis.

Louis Law Commissioner’s Court. This was an action originally commenced before a justice of the peace, and taken thence by appeal to the law commissioner’s court. The cause of action was founded on the following instruments, notes or due bills : On the trial before the law commissioner’s court, the following agreement or stipulation was given in evidence on the part of the plaintiffs : “ John A. Ubsdell and Charles Pierson v. Henry D. Cunningham.

Jlppeal from St. Louis Court of Common Pleas. This case has heretofore been in this court. The case is' reported 18 Mo. 166. This was an action of forcible entry and detainer, brought before a justice of the peace, and removed by certiorari to the Circuit Court, and afterwards by change o£ venue to the St. Louis Court of Common Pleas.

Louis Circuit Court. Scire facias to enforce a mechanic’s lien. Among other facts which it is unnecessary to state, it appeared upon the trial that the plaintiff, Gorman, had accepted from Sagner, for whom the work and labor that gave rise to the lien was done, and who was at that time owner of the building upon which the same was done, two promissory notes payable in ninety days and four months, and also a deed of trust upon said building to secure the payment of said notes.

Louis Circuit Court. Scire facias to enforce a mechanic’s lien under the St. Louis mechanics’ lien act of February, 1848. The scire facias issued against Brown, the contractor for the erection of the building upon which a lien is claimed to exist, and Scarritt & Mason, owners thereof.

Louis Land Court. The facts of this case fully appear in the opinion of the court. 1. The date of the last item in the account filed, is the date of the accruing of the accounts. Although this statute of February 24, 1843, provided an extraordinary remedy, it should be liberally construed. The notice of lien may be given either within thirty days after thé debt accrues, or thirty days after the completion of the building.

Louis Court of Common Pleas. Demurrer to a petition. The petition is as follows : Plaintiff states that said defendant, Meegan, in the month of December, 1853, at the request of plaintiff, undertook to make certain repairs upon the steamboat Asia, then the property of plaintiff, of the value of $11,000, and, for that purpose, it became necessary to, and defendant did, by his servants and agents, haul said boat out of the Mississippi river upon a certain marine railway,…

Louis Circuit Court. This case came originally from the Probate Court of St. Louis county, whence it was taken by appeal to the Circuit Court. Anthony Bennett, appellant, presented to the Probate Court, for allowance, against the estate of defendant’s intestate, a claim for a balance of $699 48, alleged to be due to the said Bennett upon purchase of one half of the steamboat Saluda from the said Bennett.

Louis Circuit Court. This was an action to recover the value of certain lumber furnished to the defendants as partners, at their request, and particularly at the request of defendant, Dennis. No answer was filed by any defendant except Dennis, who denied that at any time he did business as a partner with the other defendants; that they alone were partners, and that he (Dennis) was their clerk.

Louis Land Court. This is an action in the nature of an action of ejectment. The facts as found by the court and agreed upon by the parties, are as follows : In the year 1849, John Girard, the defendant, leased from one Maria Solms, the premises in question for the term of ten years. Besides the rent reserved, he (Girard) agreed to pay $100, and gave his promissory note for the same, secured by a deed of trust upon the said lease.

<p> Error to St. Louis Court of Common Pleas. </p> <p>The case is fully stated in the opinion of the court.</p>

Louis Court of Common Pleas. This was an action to recover a slave which had originally belonged to one John Howdeshell, who, on the 10th of September, 1838, made the following bill of sale: “ Know all men by these presents, that I, John Howdeshell, o£ the state o£ Missouri and county of St. Louis, have this day bargained and sold unto Nathan Jones, of the state and county aforesaid, two black children, slaves, one called Jane, a girl, seven years old, the other called…

•Appeal from St. Louis Circuit Court. Conrad & Bennett exhibited an account before the Probate Court of Si. Louis county, against the estate of Francis T. Belt, claiming a balance due them of $215 50. The Probate Court disallowed the account altogether. The cause was taken to the Circuit Court, which gave judgment in favor of plaintiffs for the sum of $11 87, from which judgment they appealed to this court.

This was a writ originally commenced before a justice of the peace on a promissory note for seventy dollars, made by the defendant, Luce, to Boachboard, the plaintiff’s intestate. The defence relied upon by the defendant was a payment of the note. The defendant filed his affidavit of the loss of the receipt, given to him, the said defendant, by Beachboard in his lifetime, for the amount due on said note.

<p> Appeal from, St. Louis Land Court. </p> <p>The case is sufficiently stated in the opinion of the court.</p>

•Appeal from, St. Louis Court of Common Pleas. This was an action for an assault and battery.

Jlppeal from St. Louis Circuit Court. The facts are stated in the opinion of the court. 1. The Circuit Court committed error in vacating the previous entries, and at April term, 1843, rendering a different judgment against the appellant, without notice to him, and no appearance on his part, and that, too, after a new trial had been granted. 2. There was also error in vacating the order granting a new trial.

<p>1. A justice of the peace has jurisdiction of a suit to recover the balance of the purchase money of land, where the credits allowed bring tile amount claimed within the sum for which the justice can entertain suits.</p>

Louis Circuit Court. This case was formerly before the Supreme Court, and is reported in 18 Mo. 360. Being then reversed and remanded to the Circuit Court, a new trial was there had, which resulted in a verdict and judgment for the plaintiffs.

<p>1. A barge was hired of A. by a steamboat, and it was agreed in writing that on the giving of notice the harge should'be delivered up to A., “with the understanding that if froze up in the ice the sum above mentioned (eight dollars per day) is not to be paid, but only for the time the barge is in actual service, subject to his order, by giving notice one trip previous to leaving port, and is to be delivered in good order, the usual wear and tear excepted.” The barge was destroyed by the ice in the Mississippi, without fault on the part of the defendant. Held, that the steamboat was not liable on the contract for the non-delivery of the barge. Whether the steamboat assumed the obligation to return the barge at all events, and notwithstanding any overpowering force, is a question of intent, to he determined by a proper construction of the terms of the contract. (Scott, J., dissenting.)</p>

<p> Error to St. Louis Land. Court. </p> <p>The facts are fully set forth in the opinion of the court.</p> <p>cited State v. Morton, 18 Mo. 53 ; Wood v. Jackson, 8 Wend. 9; 2 Myl. & Cr. 602 ; 3 Edw. Ch. 20 ; 8 Page, 210.</p>

Louis Land Court. Petition by the widow of Elliott Lee for dower. The plaintiff was married to Lee in 1824, in St. Louis. He died in 1851, without issue. From 1825 to 1887, he was seized in fee as tenant in common with others of the land in which dower was claimed. In 1836, a petition was filed for a partition of the land among the .parties interested, according to their respective interests. The plaintiff was not a party to this suit, though her husband was.

<p>1. Lee v. Lindell, ante, p. 202, affirmed.</p>

<p>1. The Spanish law superseded the French law in the district of Illinois (afterwards Upper Louisiana) as early as the year 1777.</p> <p>2. By the Spanish law prevailing- here as early as 1777, persons about to he married could not, by marriage contract, introduce a foreign Jaw, (as for example the French law,) to regulate their property relations as husband and as wife; as by stipulating for the establishment of a community between the parties according to the custom of Paris.</p> <p>3. A. and B. being about to marry, entered into a marriage contract, dated August 5th, 1777, containing clauses of which the following is a translation : “ The said future spouses to be one and common in all moveable property and immoveable conquests (en tous biens meubles, et conquets immeubles), according to the ancient custom established in this colony, to which they submit themselves by force of the present contract j” “the said future spouses take each other with the property and 'rights to them now belonging, and such as may happen to come and belong to them hereafter, whether by succession, gift, legacy or otherwise; which property, from whichever side it may come to them, shall enter wholly into community without any reserve.” Held, that these clauses were ineffectual to bring a lot of one by forty arpens of land in the St. Louis prairie, owned by the husband at the time of the marriage, into a conjugal community, in any such sense, that, on the death of the husband, the wife would be-entitled to one half thereof.</p> <p>Note. — The importance of this cause, both as regards the amount of value involved, and also the principles established by the decision of the court, is such, that the Reporter has considered himself justified in giving an extended report of the views presented to the court by counsel. The brief of Mr. R. M. Field, filed by him on a motion for a re-hearing, will, it is thought, he of interest to the profession, and it is accordingly printed at large. — [Repoetee.</p> <p>4. By the Spanish law of succession, which prevailed here prior to September 1st, 1807, brothers of the half-blood would, in the case of- an intestacy, be preferred in the succession to paternal aunts, and that, too, although the intestate acquired the property from his father. The Spanish law paid no regard to the quantity of the blood of the intestate in the veins of one claiming to succeed to an estate, except in the case of brothers and sisters of the whole blood and their descendants, who took before, and to the exclusion of, the brothers and sisters of the half-blood; nor did it pay any regard to the line from which the property came, except in the single instance of a deceased brother, leaving both paternal and maternal goods, and half-brothers and sisters on both sides.</p> <p>5. By the Spanish law of second marriages, a widow, having become such when over the age of twenty-five years, on her second marriage forfeited to the children of the first marriage all the property that she may have acquired from her deceased husband, by a lucrative title, either immediately, or mediately through an intestate succession to a deceased child of the first marriage. Immediately upon the second marriage the title to the property vested in the children, she, however, retaining the usufruct during her life.</p> <p>6. The 12th section of the territorial act of July 4th, 1S07, provided that, “ There shall be no distinction in the distribution of any intestate’s estate between kindred of the whole or half-blood, unless when the inheritance came to the person so seized, by descent, devise or gift of some one of his or her ancestors; in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance.” Held, 1st, that the words “ of the blood” exclude only those who have none of the blood of the ancestor from whom the estate came, without reference to proportion or quantity; 2d, that all such as have none of the blood are entirely excluded ; as where an estate came direct to the intestate from his father, brothers of the half-blood on the one side of the mother being in that case entirely excluded from the inheritance; 3d, that this exclusion is limited to an exclusion of those who are not of the blood of the immediately antecedent ancestor ; as where an estate has passed by descent to two brothers, and upon the death of one brother his half has passed to the other, the intestate, the half-brothers of such intestate on the side of the mother are not excluded from inheriting that portion of the estate that came to the intestate from his deceased brother.</p> <p>7. Where A. conveys to B. contiguous lots, by separate granting words, descriptions, and habendums, and B. builds a house upon one of the lots, and makes an enclosure about the same, and accidentally, through mistake or ignorance of the boundaries, and without any design of taking possession of it, extends the enclosure over upon the other lot, so as to embrace a small portion of said lot; held, that this is not a possession within the meaning of our statute of limitations ; although the .actual detention — “pedis pussessio”— exists ; there is wanting the intention on the part of the possessor, which is necessary to constitute a civil possession,</p> <p>8. Quere — Whether one who has taken possession of a small portion of a large lot or trac.t of land, under a deed, not of the lot, hut merely of whatever interest the grantor may be found to have in it, has, without any thing more, a possession extending over the whole lot, within the meaning of our statute of limitations.</p>

Louis Court of Common Pleas. This was an action brought by the Pacific Railroad to recover calls made upon a subscription of ten shares of stock of plaintiff taken by defendant, Hughes. The action is founded on the sixth section of the original act of incorporation, approved March 12,1849. (Sess. Acts, 1849, p. 220.) Defendant’s subscription was made February 8, 1850.

Louis Land Court. This was a suit instituted by Ann C. Speck, against L. Rudolph. Wohlien as-the only heir of Diedrick W. Wohlien, and also of Anna Wohlien, his wife, and against John Wolff, as the surviving administrator of the said Diedrick W. Wohlien. Plaintiff, in her petition, prayed that the title to a certain lot, situate in the St. Louis common, might be vested in her, the said plaintiff.

Louis Criminal Court. The defendant, Allen, a justice of the peace, was indicted for misdemeanor in office, in maliciously and without just cause issuing a warrant for-the arrest of one Myers. No one’s name was endorsed on the indictment as prosecutor. It is not necessary to set forth the instructions given by the court. The question of malice was put to the jury very fairly and favorably to defendant.

<p>1. Where, under an indictment under section 38, of article 2, of the act concerning crimes and punishments, (B. C. 1845, p. 351,) the jury render a verdict against the defendant, and assess his punishment at $300; held, that it is not erroneous to enter a fine of $500 against the defendant.</p>

Appeal f rom St. Louis Criminal Court. The facts sufficiently appear in the opinion, of the court. 1. The court below erred in arraigning the defendant after the jury had been empannelled and sworn, and the trial had been proceeded with ; and the discharging of the jury, without their rendering a verdict after the defendant had been put upon his trial under a charge of felony, is tantamount to an acquittal. That an arraignment is necessary, see 1 Chitty Crim.

<p>1. An appeal on the part of the State can not he taken in a criminal case, where judgment has been given for the defendant on a demurrer to a plea to the indictment. This is not a case within the 10th section of article 8 of act to regulate proceedings in criminal cases. (R. C. 1845, p. 889.)</p>

Jlppcal from Buchanan Circuit Court. This was an action begun October 11,1854, upon a sealed note or bond, dated September 16, 1839, and payable January 1, 1840. The defendant relied upon the statute o£ limitations. It was admitted that, when the note was executed, the defendant resided in Kentucky, where he continued to reside until 1846, when he removed to Missouri, where he has since resided; and thereupon there was a judgment for the plaintiff.

jError to Calloway Circuit Court. Petition for the specific performance of a contract to convey a portion of land purchased by the defendant at a sale, alleged in the petition to have been made at the court-house door in the town of Eulton for the purpose of distribution among the heirs of Elijah Dawson, deceased.

<p>1. The Supreme Court will not disturb a judgment rendered upon an insufficient publication, unless amotion to set the same aside has been made in the inferior court.</p>

<p> Error to McDonald Circuit Court. </p> <p>cited 20 Mo. 263 ; 10 Mo. 257.</p>

<p> JLppeal from Galloway Circuit Court. </p> <p>The case is stated in the opinion of the court.</p> <p>that a remainder in personal property could not be limited by parol; cited 1 Black. Comm., 398, and' note 11; 1 P. W’ms., 290; 2 Kent’s Comm., p. 852, and notes ; 18 Conn. Rep., 42; Cro. Jac., 459; 1 Bailey’s (S. C.) Rep., 100 ; 1 Dana, 237 ; 3 Dev. (N. C.) Rep., 263; 10 Johns. Rep., 11; 11 Wend., 259 ; 4 Kent’s Comm., 264 ; Fearne on Remainders, 460, 461, 463, 464, and notes ; 2 Vesey, Sr., 171; Pollexfen, 29 ; 6 Yes., Jr., 440; 11 Yes., Jr., 257 ; 2 Ves. and Beames, 63 ; 19 Yes., Jr., 73 ; 1 Merivale, 20; lb. 271; 2 Roper on Legacies, (2d ed.,) 393; 1 Yes., Sr., 133, 134.</p> <p>cited 2 Hall, 543; 2 Strob. Eq., 243 ; 8 Murph., 493 ; 3 Mon., 276 ; 3 Bibb, 40 ; 2 Kelly, (Geo.,) 207; 2 Bouvier’s Inst., 294-5; R. C., 1845, p. 588.</p>

Action for an assault and battery. The facts are stated in the opinion of the court.

<p>1. A note is executed to three partners, two of whom upon a settlement of the partnership aifairs, for value, sell and transfer hy delivery their interest in the note to the third. Held, that the third might sue on the note in his own name.</p>

This was a motion to set aside a partition sale. The case was once before in this court, (see 20 Mo. 294,) and was reversed and remanded.

Action by Jackson Coggburn on an account for goods sold and delivered, commenced before a justice of the peace. At the trial in the Circuit Court on appeal, it appeared that the goods were purchased at a store in which the plaintiff was doing business, either as agent or proprietor, and the only dispute was, whether the store belonged to the plaintiff or to Green B. Coggburn, and upon this point evidence was offered by both parties.

Tbe facts appear in the opinion of the court. insisted that there was a sufficient delivery to take the contract out of the statute, and cited Elmore v. Stone, 1 Taunt. 457; Chaplin v. Rogers, 1 East. 192; 11 Johns. Rep. 284. cited Shindler v. Houston, 1 Comstock, 661.

Petition by C. A. & E. H. Perry against Lewis Calvert, Simeon L. Stewart and Malinda Stewart, his wife, praying to have a deed set aside and cancelled.

Jlppeal from Weston Court of Common Pleas. Action for slander and malicious prosecution, brought by Huntington and wife against House. Tbe petition was verified by tbe affidavit of Huntington for himself alone. Tbe defendant answered. When tbe case was called for trial, tbe defendant moved to dismiss tbe suit as to tbe wife of Huntington, because tbe petition was not sworn to by ber, nor ber agent or attorney. Tbe motion was sustained.

This was a demand presented in the county court by Catharine Agee, (formerly Catharine Worsham,) for allowance against the estate of John M. Agee, her deceased husband.

Petition by Elizabeth Messersmith, the grantor, against the heirs of Hiram Messersmith, the grantee, praying the annulment of a deed and the restoration of the land conveyed, for the non-performance of a condition inserted in the deed.

Clair Circuit Court. Action to recover in the form of damages the value of plaintiff’s slave, alleged to have been killed by the accidental discharge of a gun in the hands of the defendant, a minor, by reason of his negligence. The defendant answered by his guardian ad litem, denying the negligence. The facts sufficiently appear in the opinion of the court.

<p> Error to Jackson Circuit Court. </p> <p>This was an action in the nature of ejectment for the possession of certain lots in Independence. Both parties claimed under Azariah Holcomb, who, by deed, dated December 29, 1832, conveyed said lots to “W. W. Phelps & Co.” On the 11th of January, 1838, W. W. Phelps, Oliver Cowdry and John Whitmore conveyed to the plaintiff.</p> <p>The defendant, Strode, claimed-title by regular conveyances, under an execution sale in 1835, upon a judgment against W. W. Phelps and Oliver Cowdry.</p> <p>At the trial before the court without a jury, the plaintiff offered to prove that at the date of the conveyance from Holcomb to W. W. Phelps & Co., said firm was composed of Phelps, Cowdry and Whitmore ; but this evidence was excluded, to which the defendant excepted. The court below declared the law to be, that the deed to W. W. Phelps & Co. operated to vest the legal" title in W. W. Phelps only, and that the entire title passed by the sheriff’s deed under the execution sale, and was vested in the defendant, Strode, and gave judgment accordingly.</p> <p>The plaintiff brought the case here by writ of error.</p> <p>that the deed to W. W. Phelps & Co. vested the legal title in the parties composing the firm, cited 4 Kent, 462; 1 American Lead, cases, 336, 341; 1 Brock. 463 ; Story on Partnership, § 101; 2 Brock. 150.</p> <p>cited 4 Mass. Rep. 424; 3 Sumner, 435, 470, 471; '2 Johns, cases, 321; Jackson v. Sisson, 9 Johns. Rep.- 73 ; Jackson v. Carey, 8 Johns. Rep. 385; Cole v. Cole, 15 Johns. 159 ; 3 Kent’s Comm. (6th ed.) p. 37, 38; Bacon’s Abridg. tit.. Evidence, letter G. tit. Grants, letter C.; Story on Partnership, (3d ed.) § 92.</p>

<p>1. The legislature can not authorize a municipal corporation to tax, for its own local purposes, lands lying beyond the corporate limits.</p>

This was a proceeding commenced before a justice of the peace, under sections 44, 45, 46 and 47, of article 1 of the act concerning “Roads and Highways,” (R. C. 1845.) On the 26th of March, 1855, there was filed with the justice a list of names, with a figure opposite each, at the foot of which was the following memorandum: “ You will please issue on the above delinquent list.

•Appeal from Buchanan Court of Common Pleas. This was an action in the nature of trover, for the conversion of a paper, upon which was an account against the Hannibal and St. Joseph Railroad company.

Action for money paid by plaintiff to the use of the defendant, Frederick Dellinger. At the trial, it appeared in evidence that in 1848 Samuel Dellinger applied to William C. Young, stating that his brother, the defendant, who was ihen in Virginia, had written requesting him to send him some money, and that he had none on hand, and desired to borrow. Young consented to loan him $300, and at his request enclosed a draft for that amount in a letter to the defendant.

dip peal from Stoddard Circuit Court. This was an action commenced before a justice of the peace on the following instrument of writing : “ On or before the 20th day of November, 1854, I promise to pay John Batchelor or order, two hundred and twenty-five bushels of merchandise, corn, to be delivered on the farm I have bo’t of him; value rec’d, this the 19th day of January, 1858. Wm. H. Bess.” At the trial, the defendant moved to dismiss the suit for want of jurisdiction.

•Appeal from, Moniteau Circuit Court. Action brought by Rollins against Claybrook, for the breach of a contract stated in the petition to be for the sale of “a certain lot of pork hogs, which the defendant then had up fattening, which were to weigh' in the whole not less than four thousand pounds.” The purport of the petition and answer, and of the evidence offered at the trial, is sufficiently stated in the opinion of the court, and it is only necessary to add the written…

<p>1. The supreme court will not reverse a judgmentfor the giving of an instruction which could not have prejudiced the appellant, nor for the refusal of instructions not warranted hy the evidence.</p>

<p>1. Judgment reversed because it appeared from the record that, after a judgment for costs was rendered against the plaintiff, a final judgment by default was rendered against the defendant without his appearance and without setting aside the former judgment.</p>

This was an action to recover the. possession and obtain the legal title to one acre of ground upon which was a horse gristmill. At the trial before the court, without a jury, the plaintiff, Yaughn, read in evidence articles of agreement, under seal, between himself and William R. Huckstep, dated March 3, 1845, by which the latter obligated himself, upon the payment of a certain sum, to convey to the former eighty acres of land.

The facts sufficiently appear in the opinion. among other points, made the, following : 1. The petition does not state facts sufficient to constitute a cause of action. The complaint is that Mrs. Garner used words by which she meant that plaintiff had been guilty of adultery, and it does not, appear that the plaintiff is or ever was a married woman. • (3 Mo. 160.) 2.

Action in the nature of trover for the conversion of a mare. The defendants justified under an execution issued by a justice of the peace against the plaintiff, for the costs of a prosecution commenced upon his information against certain parties as vagrants, who were acquitted of the charge. The cause was submitted on an agreed statement of facts, which is set out in the opinion of the court.

•Appeal from Platte Circuit Court. The case sufficiently appears in the opinion of the court. insisted that the allowance was a judgment, or at least such a settlement of accounts that it bore interest from its date. (R. C. 1845, tit. Interest.) 1. Judgments at common law do not bear interest. (4 McCord, '212.) 2. The allowance is not a judgment within section 3d of the act regulating interest; nor is it a “settlement of accounts” within the 1st section of said act.

The case is stated in the opinion of the court. that no contract was implied, cited Williams v. Hutchinson, 5 Barb., S. C., Rep. 122 ; 3 Comstock, 312 ; Andrus v. Poster, 17 Vermont, 556 ; 5 Watts & Seg. 513 ; 1 Parsons on Contracts257. cited Preto v. Brown, 4 Mass. 675 ; 14 Pick. 512; 4 Wend. 403; Story on Contracts, § 11; 12 Wheaton, 341.

<p>1. It lies in the discretion of the court, whether it will compel the State to elect the count of an indictment on which the defendant shall he tried. (State v. Jackson, 17 Mo. 544. affirmed.)</p> <p>2. An indictment, under the 38th section of article 2 of the act concerning crimes and punishments, (R. S. 1845, p. 351,) which charges that the defendant feloniously assaulted and wounded M. D., wife of D. D., with a large stone held in his hand, &c., alleged to have been a deadly weapon, likely to produce great bodily harm and death, and her the said M. D. did then and there strike, beat, wound, and ill-treat with great force, which was likely to produce death, &c., is sufficient. The words “ with intent her the said M. D. then and there to wound and ill-treat,” may be rejected as surplusage.</p> <p>3. As to what constitutes a wounding within section thirty-eight of article two of act concerning crimes and punishments.</p> <p>4. State v. York, infra, p. 462, affirmed.</p>

The indictment, which is set out in the opinion of the court, being quashed below, the circuit attorney, on behalf of the State, appealed to this court.' 1. The indictment does not follow the words of the statute. It should have charged the defendant with killing certain cattle, instead of a certain horse beast. (2 Hawk. ch. 25, § 110.) 2.

<p> Error to Greene Circuit Court. </p> <p>The facts fully appear in the opinion of the court.</p>

The' indictment is defective in not charging that an election was held for the election of a member to congress, and that John S. Phelps and Waldo P. Johnson were then running as candidates for said election.

<p> Appeal from Greene Circuit Court. </p> <p>referred to R. O. 1845, p. 404, § 27, and Sess. Acts, 1847, p. 40, 41, 42, § 1 and 9.</p>

<p>1. The constitutionality of a law establishing a new county can not be inquired into upon a motion to quash an indictment found in a court of such county. (State v. Rich, 20 Mo. 393, affirmed.)</p> <p>2. An indictment under the 37th section of the 2d article of the act concerning crimes and punishments, (R. C. 1845,) which charges that the defendants (Y. & Y.) “on, &c., at, &e., upon the body of one J. M. J., then and there being, and assault did then and there unlawfully and feloniously make, and the said Y. & Y., with sticks, rocks, stones and knives, then and there, being deadly weapons, &c., in and upon the head, face and body of him, the said J., then and there did assault and beat, with the intent him, the said J., then and there feloniously to kill, contrary,” &c., is good.</p>

tftppeal from Newton Circuit Court. The case is stated in the opinion of the court. insisted that there was a variance between the indictment and proof. that there was no variance, cited 8 Humph. 216 ; 17 Ala. 486 ; 20 Mo. 75; R. O. 1845, p. 478, § 13.)

Scire facias upon a recognizance. The defendants pleaded mil tiel record. At the hearing,- the State offered to read in evidence a recognizance' signed by the defendants, purporting to have been taken in the Cooper county court, conditioned for the appearance of one of them at the next term of the Circuit Court, to answer such indictment as. might be preferred against him for burglary, and that he should not depart without leave.

Indictment of a road overseer for not keeping his road in repair.

This was an action begun September 15, 1854, against Stevens and his securities, upon his official bond as constable. It appeared from the petition that the bond was dated August 7, 1851; that it recited the appointment of Stevens as constable in the place of one Patton, removed, and was conditioned in the usual form of a constable’s bond. There was no allegation as to the time when Stevens’ term of office expired.

Scire facias upon a forfeited recognizance. The recognizance was filed in the office of the clerk of the Circuit Court on the 9th of October, 1854, and was as follows : “State of Missouri — county of Callaway.- Be it remembered, that, on the 15th day of September, A. D. 1854, Robert D. Randolph and Robert Randolph, sr., of Callaway county, personally came before me, a justice of the peace within and for said county, and acknowledged themselves to owe to the state of…

Jlppeal from New Madrid Circuit Court. This was a suit, instituted August 9tb, 1853, to redeem a slave, alleged by plaintiff to be held by defendant as mortgagee.

Francois Circuit Court. This was an action brought by Thomas Grider against Cyrus Dent, to recover compensation for.the seduction by defendant of Susan Grider, daughter of plaintiff. There was a verdict for plaintiff, and the damages were assessed at the sum of $2000, and judgment given for that sum.

Jlppeal from, Jefferson Circuit Court. This was an action on a recognizance of appeal, executed by Daniels $s principal, and Strickland as security, on appeal from the judgment of a justice of the peace in an action of forcible entry and detainer, wherein Wilcox, appellant here, was plaintiff, and Daniels, respondent here, was defendant.

This was an action commenced June 17, 1853, by Maria L. Richardson (the husband having afterwards been made a party by an amended petition) for the recovery of a female slave and her two children, alleged in the petition to have been wrongfully taken by the defendant, May 1, 1849, and unlawfully detained by him.

This suit was originally commenced before the New Madrid Circuit Court, whence it was taken by a .change of venue to Cape Girardeau Circuit Court. It was an action by plaintiffs, as trustees of the Methodist Episcopal ehurch south, to recover damages for the alleged removal by the defendant of a meetinghouse belonging, to plaintiffs.

The facts sufficiently appear in the opinion of the court. 1. The court erred in deciding that the personal representative was an indispensable party to this action. (Story’s Eq. PI. § 84, 175, 186, 196,; 2 Atkins, 886; Edwards on Parties, 91, 92 ; 3 P. Wms, 333, note a.)

•Appeal from, Franklin Circuit Court. This was a suit instituted by Horatio N..

Charles Circuit Court. James Green was, in his life-time, a partner with Yirden, plaintiff in error, in a saw-mill. After Green’s decease, letters of administration on his estate, bearing date April 6th, 1853, were granted to Robert H. Parks, defendant in error.

This was a suit originally instituted in the Circuit Court of Monroe county, whence it was taken by change of venue to the Circuit Court o.f Shelby county. The plaintiff (Holliday) prayed judgment for the possession of a certain negro slave named Nance, and her child, and damages for their detention. Defendant (Atterbury), in his answer, denied plaintiff’s alleged ownership of said negro slave and child, and claimed to own them in his own right.

•Appeal from Hannibal Court of Common Pleas. The fact3 sufficiently appear in the opinion of the court. The jury having found for the plaintiff (appellant), no motion was made for ai new trial. The error complained of is in the judgment rendered by the court after verdict. So far as the plea of usury was concerned, there was no dispute about the facts, and no issues to be settled not apparent from the pleadings and papers.

Petition to the Franklin Circuit Court praying for the reformation of a will.

Appeal fr.om St. Charles Circxdt Court. This was a suit commenced April 19, 1855, founded upon the following obligation : “ $175. Twelve months after date, we or either of us promise to pay to the County of St. Charles, one hundred and seventy-five dollars, to bear interest at the rate of ten per cent, per annum from date till paid, it being for that amount borrowed of the road and canal fund of said county.

This is a suit brought to recover a balance of money claimed to be due upon hemp delivered to defendants under a contract of which the following are the material portions : “ Hannibal, Missouri, April 14, 1852.

Louis Circuit Court. In this suit, originally brought by Morgan against Bowman and one Greer, plaintiff sought to recover compensation for injuries sustained by him through the alleged fault of defendants, in carelessly and negligently causing certain goods belonging to plaintiff to be destroyed by fire when stored in a warehouse belonging to defendant (Bowman).

Louis Circuit Court. This was a suit brought by Frederick William IY, king of Prussia, against Felix Coste, administrator of Frederick William Kuepper, deceased.

<p> Appeal from St. Louis Law Commissioner’s Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

Louis Court of Common Pleas. This has heretefore been in this court, and is reported in 19 Mo. 529. The following instruction, to the giving of which the defendant excepted, was given to the jury by the court: “6.

<p>1. Where in a suit against a keeper of a iivery stable to recover damages for injuries sustained in consequence of the negligent driving of a carriage of defendant by one of his servants, testimony was oifered on the part of defendant to show that the general character of the driver was that of a prudent and careful driver; held, that such testimony was properly excluded.</p> <p>2. On a motion for a new trial on the ground of .newly discovered evidence, the affidavit of the party to the suit will not itself suffice; the affidavit of the new witness must be produced or its absence accounted for.</p>

<p>1. Although every proprietor of laud has a right to the support of the soil of an adjacent lot, as a natural servitude or easement, yet this servitude does not impose upon the adjoining proprietor the obligation of furnishing an increased support where lateral pressure is increased by the erection of buildings, unless such a right of servitude has been conferred by grant or the lapse of time.</p> <p>4. Where excavations are made upon one of two contiguous lots, the proprietor making the same will be responsible for all damage caused to buildings or other property upon the adjoining lot by reason of such excavation having been negligently made.</p> <p>3. It is however erroneous to rule that the proprietor having the excavating done is bound to use such care and caution as a prudent man, experienced in such work, would have exercised, if he had himself been the owner of the injured building. Such a ruling tends to mislead, as one who is proprietor of both the contiguous lots might very prudently subject himself to expense and inconvenience for the protection of his building, that could not justly be imposed upon one making excavations upon an adjoining lot belonging to him.</p> <p>4. The excavator can not set up as a defence that he used such care as his builder and superintendent, a skillful and careful person, deemed necessary. The decisive question is, whether there was actual negligence in making the excavation.</p>

<p> Jlppeal from St. Louis Court of Common Pleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

Louis Court of Common Pleas. This was a suit commenced by attachment upon two promissory notes, executed by defendants, James Burns and Henry Burns, amounting in the aggregate to $283 50.

•Appeal from St. Louis Court of Common Pleas. This was a suit commenced by attachment against James and Henry Burns (the latter of whom died pending the suit), of the firm of Burns & Brother, on two promissory notes. Roberts and Kerr were summoned (the former, June 19th, 1854, the latter, July 14, 1854,) as garnishees, and interrogatories filed.

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

Louis Court of Common Fleas. This was a suit brought by Louis G. Picot against James Signiago, to recover damages for the breach of a contract. Picot entered into a contract with one Porter Bush, to do all the necessary brick work, according to certain specifications, of a market-house, then about to be erected by said Picot.

<p> Jlppeal from St. Louis Law Commissioner’s Court. </p> <p>The facts are sufficiently stated in the opinion of the court.</p>