Volume 23 — Missouri Reports

Louis Circuit Court. The facts of this case, so far as it is necessary to set them forth, are as follows : Nelson, the defendant in error, obtained a judgment in an action of replevin, against Brown, plaintiff in error, in the St. Louis Circuit Court, for one cent damages and costs. The date of this judgment is January 20th, 1851. On the 22d day of March, 1854, an alias execution issued upon this judgment, returnable to the April term of said court.

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

<p>1. By an act of incorporation of a mutual insurance company, (sess. acts, 1849, p. 381, sec. 11,) it was provided that, in case of loss hy fire sustained by any member, the directors should publish a notice of the sums assessed upon the several members, which sums were required to be in proportion to the original amounts of the premium notes of the members, and to be paid within thirty days next after the publication of the notice ; and also that “ if any member shall, for the space of thirty days after such notice, neglect or refuse to pay the sum assessed upon him as his proportion of any sum as aforesaid, in such case the directors may sue and recover the whole amount of his deposite note or notes, with costs of suit.” Held, in a suit on certain deposite notes, upon which there had been various assessments, that an allegation in the petition that “the defendant, though often requested, has refused to pay said assessment or any part thereof, and the time limited for the payment thereof by the by-laws has long since elapsed; that by the neglect and refusal of said defendant to pay said assessment, the whole amount of his said premium notes has become due and payable agreeably to the provisions of the act of incorporation of said company,” was sufficient to bring the case within the above provision of the act of incorporation authorizing a recovery of the whole amount of the deposite notes.</p>

Louis Law Commissioner’s Court. This was a suit for the possession of a mare alleged to belong to plaintiff. Upon the trial, at April term, 1855, the plaintiff introduced testimony showing a derivation of title by various intermediate transfers from one Rey, who was in possession of said mare in 1849 or 1850. Some of plaintiff’s witnesses stated that the mare had been taken by defendant out of the possession of plaintiff by virtue of a writ issued by a magistrate.

Louis Law Commissioner’s Court. This was an action originally commenced before a justice of the peace, to recover twenty dollars, alleged to have been overpaid by plaintiff in making change. Plaintiff obtained judgment before the justice, and the cause was appealed to the law commissioner’s court.

Louis Court of Common Pleas. The opinion of the court contains a sufficiently full statement of the facts. I. A judgment is no bar to another action unless the same matter were in issue in both cases. The issue in this case and that in the case before the justiee, are not the same. There, the question raised was, whether the paper was the property of Richardson. Here, his property is admitted, and the question is, whether the respondent unlawfully detained it.

^Appeal from St. Louis Circuit Court. This was an action on a promissory note for $535. The consideration of the note was the erection of a house by plaintiff for defendant. The defendant set up in his anwer a failure of tbe consideration of tbe note, in tbis, that tbe house constructed by plaintiff for defendant, bad, from tbe use of inferior materials, and tbe unworkmanlike manner in which it bad been constructed, fallen down and become utterly worthless.

Jlppeal from St. Louis Court of Common Pleas. The facts are sufficiently stated in the opinion of the court. cited the following authorities : 20 Mo. 229 ; 18 Mo. T4,140; Douglass v. Waddle, 1 Ohio, 191 ; 7 Mo. 440; 12 Ohio, 167 ; 9 Ohio, 159 ; 9 Vermont, 345 ; 12 Verm. 219 ; 16 Verm. 554 ; 2 Mich. 555 ; 1 Doug.

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

<p>1. The law commissioner’s court of St. Louis county can not entertain an appeal from a justice of the peace, in a case where plaintiff seeks to recover damages for an entry into his close, and the tearing down of the wall of a tenement thereon. The appeal should he taken to the Land Court.</p> <p>2. Qnere: has the law commissioner the authority, on appeals from a justice of the peace, to affirm the judgment of the justice on the appellee’s motion, and his filing a transcript of the proceedings before the justice’s court ?</p>

•Appeal from, St. Louis Court of Common Pleas. Application for an injunction and restraining order. The petition alleges that the plaintiffs, Wm. R. Martin and Charles Gr. Martin, are partners, composing the firm of Martin & Brother. The other plaintiffs compose three other firms, under different styles, all of which are set out in the petition. The petition further alleges that on the 12th day of August, 1854, said Wm. R. and Charles Gr.

<p> Appeal from St. Louis Court of Common Pleas. </p> <p>Tbe opinion of tbe court, taken in connection with the instructions set forth below, contains a sufficiently full statement of tbe facts of this case.</p> <p>Tbe following instruction, among others, which it is unnecessary t'o set forth, was asked on tbe part of tbe defendant, and refused : “2. Expenses incurred by tbe plaintiff in getting bis boat off tbe bar on which she grounded, are not recoverable in this action, unless they were indispensable to save her from danger of being totally lost. Tbe existence of such danger is not proved by showing that the boat, when aground, was in a situation to be peculiarly liable to loss, if certain perils assailed her ; but it must be shown that some particular peril, threatening her destruction, was actually present and apparent, and was so immediate and imminent as to make the incurring of the expense of getting her afloat a measure of indispensable necessity, in order to save her from being totally lost. If, therefore, the jury should be of opinion that the plaintiff has failed to prove that his boat, as she lay aground, was the subject of an actually present and apparent peril, which immediately threatened her total loss unless she was got afloat; or if they believe from the evidence that the danger to her, if any, was future and remote, and depended on the occurrence of events which might or might not happen, they will find for defendant.”</p> <p>The court then gave the following instructions :</p> <p>1. The mere grounding of the boat, though she may have been thereby liable to be detained a long time from the prosecution of her voyage, gives the plaintiff no right to recover from the defendant the expenses attending her detention, nor the expenses of getting her afloat that she might resume her voyage.</p> <p>2. If the jury believe from the evidence, that the steamboat Timour No. 2, through no fault or neglect of its officers or crew, grounded at the place and in the manner and at the* time stated by the witnesses, and that in consequence thereof the boat was in immediate danger of being lost or seriously damaged, or that it was in the highest degree probable at the time that it would be lost or seriously damaged unless it should be launched or set afloat in the manner stated by the witnesses, or by other than the efforts in the power of the officers and the crew to make ; and if they further believe that the master and owners of the boat, in view of said danger and probability of loss or serious damage, in good faith, for the purpose of saving said boat or rescuing it from said peril, incurred any of the expenses sued for, and said expenses were reasonable and proper, under the circumstances, as they then existed, the plaintiff is entitled to recover.</p> <p>8. Whether it was in the highest degree probable at the time that the boat would be lost or seriously damaged, must be determined by the facts and circumstances as they then existed, and not as subsequent events show it would have resulted if nothing had been done to the boat.</p> <p>4. If the boat, as she lay aground at the time, was not in immediate danger of being lost or seriously injured, or it was not highly probable that it would be lost or injured, unless other efforts than those of the officers and crew were made to rescue said boat, then the plaintiff is not entitled to recover.</p> <p>5. By the terms of the policy, in case of a peril such as is stated in the foregoing instruction, it is the duty of the assured, his agents or assigns, to use every practicable effort for the safeguard and recovery of the boat, and the insurer is bound to pay all reasonable charges incurred thereby in good faith, in the proportion the sum insured bears to the agreed value of the property, which, in this case, is one-fourth ; but the insurer is not bound to pay for the wages or provisions furnished to the officers or crew, while the steamboat was detained, except for such extra services, if any, as were rendered by said officers or crew in protecting and recovering said boat from said peril.</p> <p>6. If the jury find for the plaintiff they can allow nothing for the wages of the officers and crew whilst the boat was detained, except for such extra services rendered by them, if any, in protecting and recovering the boat from the alleged peril. They can allow nothing for provisions furnished the officers and crew during the detention of the boat, nor any of the expenses of forwarding the cargo of the boat to its place of destination.</p> <p>7. If the jury find for the plaintiff, they can not allow the plaintiff for the wages of the officers and crew whilst making ordinary efforts to get the boat afloat, so that it might resume its voyage. If the voyage was abandoned, and afterwards the officers and crew were employed in rescuing the boat from said peril, then the plaintiff will be entitled to recover for reasonable wages after said abandonment.</p> <p>To the giving of these instructions defendant excepted.</p> <p>I. The grounding of the boat was not in itself a peril insured against, when happening in the ordinary course of navigation, and without the intervention of any extraordinary cause. (1 Phillips on Ins. § 1086, p. 617; 3 Kent’s Com., 6th ed., ’323, note h. ; Wells v. Howard, 3 Barn. & Adol. 20 ; Kings-ford v. Marshall, 8 Bingham, 458 ; Hazard v. N. R. Marine Ins. Co. 1 Sumner, 218, 228.)</p> <p>II. Supposing the grounding to be a peril insured against, it would be only the extraordinary operation of that peril that would be considered as within the terms of the policy. If the boat, in this case, was not the subject, as she lay on the ground, of any extraordinary peril, but only that of indefinite detention, the underwriter was not responsible for expenses incurred in getting her afloat. (1 Phillips on Ins. § 1086.)</p> <p>III. The expenses incurred by respondent were in view of apprehended danger of total loss or of serious injury to the boat. The second instruction asked on behalf of appellant was intended to set before the jury what was considered to be the true principles by which they might have distinguished between a reckless and unnecessary expense, incurred merely to enable the boat to proceed upon her voyage, and a proper and necessary expense to save the boat from being lost. It was erroneous in the court to refuse that instruction. (Oliver v. Maryland Ins. Co. T Cranch, 487, 493.)</p> <p>cited the following authorities : Maryland & Phoenix Ins. Co. v. Bathurst, 5 G. & Jo. 159 ; 2 Arnold on Ins. 993, 994 ; 3 Kent, 324-5; 3 Mas. 27; 1 Phillips on Ins. § 1049, 1429, 1533 ; Idle y. Boyd, 3 Moore, 115 ; 1 Conn. 243 ; Dacoste v. Newnham, 2 T. R. 407 ; 4 Mass. 551.</p>

Louis Law Commissioner’s Court. This was a suit originally instituted before a justice of the peace. Plaintiff obtained judgment, and defendants appealed August 25th, 1855. On the 2d day of October, 1855, the plaintiff, the appellee, presented the appeal to the Law Commissioner’s Court and moved the court to cause the same to be filed, and to affirm the judgment of the justice on the ground that the appellants had failed to prosecute their appeal according to law.

•Appeal from, St. Louis Law Commissioner’s Court. Tbe only question arising in this case grows out of the ruling of the court below in excluding a witness offered on the part of the plaintiff.

<p>1. An affidavit made before a justice of the peace, under the 4th section of the act concerning strays, (R. C. 1845, p. 1039,) by one taking up a stray, is no evidence of the facts therein stated in a suit brought by such person against one claiming to be the general owner of the stray.</p> <p>2. It is not necessary that the taker up of a stray should, in order to acquire title under the law concerning strays, keep the animal so taken up within aji enclosure for the time limited bylaw; it is sufficient if he bestows such care and attention upon the animal as a prudent and careful man bestows upon his own animals of the same kind.</p>

Louis Law Commissioner’s Court. This was a suit to recover upon a contract, set forth in the petition as follows: 4 ‘ That in consideration that the plaintiff would use his utmost diligence in aiding and assisting to apprehend one Gr.

Louis Law Commissioner’s Court. This was a suit to recover of defendants, Mogridge & Mc-Faul, the value of certain barrels of oil shipped by plaintiff to the firm of Mogridge & McFaul. The facts sufficiently appear in the opinion of the court.

<p> Jippeal from St. Louis Court of Common Pleas. </p> <p>Tbe facts sufficiently appear in the opinion of the court.</p> <p>cited State v. Mix, 15 Mo. 15B ; Dunlap v. Patterson, 5 Cow. Rep. 243 ; 1 Devereux, 508 ; Newell v. Wright, 8 Conn. 823 ; The Santísima Trinidad, 7 Wheat. 288 ; The Nereide, 9 Cranch, 416-17. See also Keiser et al. v. Moore, 14 Mo. 28, 33.</p> <p>cited State v. Anderson (19 Mo. 245).</p>

<p>1. A policy of insurance, made in" the name of a particular person, will not cover and protect the interest of any person other than the one named in the policy as the assured, unless the words “ for whom it may concern,” or other equivalent words, indicate that it is intended that the interest of such other person should be covered by the sames nor can a custom or usage he shown contravening this rule of law.</p>

•Appeal from St. Louis Land Court. This was an action in tbe nature of an action of ejectment to recover possession of a lot in the city of St. Louis. The answer denies the title of plaintiff, and asserts title in August Seibert, the principal defendant, under whom the other defendants were holding as tenants. Both parties claim title under Eugene Riehl.

•Appeal from St. Louis Circuit Court. This was a suit to recover of defendants on account of a breach of the condition of a bond given by Roland as guardian of the relator, and Lehman as security.

Louis Land Court. This was a suit originally commenced before a justice of tbe peace. Tbe plaintiff, Cecille Aubucbon, styled berself in ber complaint “ Administratrix of the estate of Gr. Aubucbon, deceased,” and complained that defendant, Lory, “did take and move fence off tbe lands belonging to tbe estate of the said Gr.

Jlppeal from St. Louis Court of Common Pleas. This was an action in tbe nature of an action of ejectment, to recover possession of certain lots of ground, situate in what is called and known as Stoddard’s Addition. Plaintiff, Eas-ton, claimed title under a New Madrid location, made in the name of James Smith, upon which a patent, dated May 28th, 1827, had issued to the said Smith or his legal representatives.

jError to St. Louis Law Commissioner’s Court. Tbe petition in this cause is as follows : “ The plaintiff states that Emil Rebhan was a contractor with the defendant from some time previous to the first day of December, 1854, to the 20th of March, 1855, for the construction of that part of the said railroad, in said county of St. Louis, which lies between a point about two hundred feet south of the River des Peres and McGilton’s stone quarry, and which is now, and has been…

Louis Land Court. This was an action brought by Joseph H. Harvey and Louisa Harvey, his wife, to recover possession of certain lots in the town of Bremen. The plaintiffs claimed possession in right of the wife as one of the heirsv-at law of Nicholas N. Destrehan, who died seized of the lots in controversy, June 16th, 1848. The lots in controversy were allotted to Mrs. Harvey in a partition suit, as her portion.

•Appeal from St. Louis Land Court. This was an action in the nature of an action of ejectment, commenced in the St. Louis Land Court, on the 30th day of January, 1854, for the possession of the south-west quarter of block No. 18, in Eiler’s survey of the former town (now city) of Carondelet, against Constant Cachelin, a tenant of the other defendants. After the commencement of the suit, the other defendants, on their own motion, were made parties.

Louis Land Court. The following agreed case was submitted to the Land Court under article 20 of the practice act of 1849 (Sess.

Louis Land Court,. This was an action in tbe nature of a proceeding to foreclose ' a deed of trust or mortgage.

Louis Circuit Court. Plaintiffs, C. K. Dickson and T. T. Gantt, filed a demand in the Probate Court of St. Louis county, against the estate of Jacques Desiré. Held: both that the covenant is broken as soon as made, and also that it does not run with the land. In taking a deed for land, the grantee may have two kinds of covenants, those which run with the land and those-which do not, or both, as he and his grantor may agree.

dippeal from, St. Louis Land Court. This was an action in the nature of an action of ejectment, to recover possession of a lot in the city of St. Louis. Plaintiff claimed title by virtue of a deed of conveyance, dated May IT, 1853, executed by one Thomas J. Meier as trustee for one John T. Schultze. The defendants answered, denying all the allegations of the petition.

Louis Land Court. This is an action commenced September 14,1853, to recover damages for tbe breach of the covenants of seizin and against encumbrances, contained in the words “ grant, bargain and sell” in a deed of Thomas E. Smith, defendant’s intestate, to one Elias B. Smith. This deed purported to convey in fee a lot of ground in the city of St. Louis, and was dated November 2lst, 1848.

jError to St. Louis Law Commissioner’s Court. This was an action commenced before a justice of the peace to recover damages alleged in the complaint to have been caused bj the accumulation of water up^on a lot in possession of defendant, adjoining a building in possession of plaintiff.

Louis Court of Common Pleas. This was a writ upon certain promissory notes, purporting to Have been executed “for the St. Croix Lumber Company,” an association and copartnership of which defendants were alleged to be members. The notes were signed thus : “for the St. Croix Lumber Company.

The facts sufficiently appear in the opinion of the court. I. The plaintiffs are in no condition to complain, and have no equity however unauthorized the act or the city of St. Louis may have been in making the deed to Morton. The city of St. Louis had absolute title to the land in controversy. The city then having the title, without the representatives of Mackay having any claims upon them whatsoever, could dispose of the land in conformity to law to whomsoever she pleased.

<p>1. Accommodation endorsers of a promissory note may, as between themselves, be co-securities, and where, in such a case, one of such endorsers pays the whole amount of the note, he will be entitled to contribution from the other, whatever may be the order of the enndorsements.</p>

Louis Court of Common Pleas. Demurrer to a petition. The petition is substantially as follows : That on the 21st of November, 1853, the defendants addressed and transmitted to one A. K. Lee, at the city of New Orleans, Louisiana, who received the same, a letter, in the words and figures following, to-wit : “To Mr. A. K. Lee, New Orleans. St. Louis, Nov. 2lst, 1858. Dear sir — Please send us, as soon as possible, 50 bales good moss, well dried and put up in good order.

•Appeal from St. Louis Court of Common Pleas. This was an action against thé defendants as first endorsers of a bill of exchange. The bill was dated May 12, 1853 ; was drawn by M. Langhorne on J. J. Childs, of New Orleans, in favor of the defendants, and payable thirty days after date. After several endorsements, the bill came to the possession of and-was held by the Bank of the State of Missouri.

<p>1. A. gave to B. his title bond for the conveyance to B. of a tract of land upon the payment of the purchase money agreed upon, for which B. gave to A. his promissory notes. Held, that the heirs of A. are properly made co-plaintiffs with his administrators, in a suit brought to recover the amount due on the promissory notes, in which it is sought, on account of B.’s insolvency, to subject ths land to the payment of the debt.</p>

Louis Court of Common Pleas. This was an action in the nature of an action of ejectment, brought by the heirs of Emily Chauvin. It is one of several suits (the case of Chauvin v. Wagner being one) brought by said heirs, and came on for trial after the decision of the Supreme Court in that case, to the report of which (see 18 Mo. 531) reference may be had.

•Appeal from St. Louis Law Commissioner’s Court. This was an action originally commenced before a justice of tbe peace. The account filed before tbe justice was for work done and materials furnished in the construction of a stone wall by plaintiffs. The cause was, appealed to tbe Law Commissioner. Tbe performance of tbe work was proved on tbe trial, and its value; also that during its progress defendant made payments upon tbe same.

Louis Law Commissioner’s Court. This was an action brought before a justice of the peace and appealed to the Law Commissioner’s Court, where it was tried by the court sitting as a jury.

Louis Court of Common Pleas. The facts of this case, as set forth in the petition, are substantially as follows : John Williams & Co. furnished stores and supplies to the steamboat Columbus, for the amount of which Pulton, the master of said boat, gave his promissory note. Plaintiffs, in order to prevent the seizure of said steamboat under the act concerning boats and vessels, became endorsers upon this note, and paid it at its maturity.

Louis Circuit Court. This was a suit to recover compensation for services rendered by plaintiff as bar-keeper for defendant. The services of plaintiff as bar-keeper were admitted by defendant, but all indebtedness was denied, and it was alleged that these services were rendered under a special agreement and understanding that defendant was to pay for the clothes, board and lodging of plaintiff, and allow him reasonable pocket money for his services.

<p>1. Jones v. Brinker, (20 Mo. 87,) and The State, to use of Tourville, v. Rowland, ante, (p. 95,) affirmed.</p>

•Appeal from St. Louis Court of Common Pleas. This was an action brought to recover the value of certain personal property, which defendant had seized and carried away, and of which plaintiff claimed to have been in the lawful possession as owner in trust for the benefit of the creditors of Osborne, Camp & Co., they having made an assignment of the same for the benefit of their creditors.

<p>1. The city of St. Louis is not subject to the process of garnishment.</p>

Louis Court of Common Pleas. This was an action for the possession of a horse alleged to belong to plaintiff.

<p>1. Section 42 of the “ act to regulate executions,” (R. C. 1845, p. 483,) which provides that if the purchaser "refuse to pay the amount bid by him for property struck off to him, the officer making the sale may again sell such property at any time to the highest bidder; and if any loss shall be occasioned thereby, the officer shall recover the amount of such loss, with costs, by motion before any court,” &c., does not authorize a judgment on motion against one who has been substituted in the place of the purchaser at the sale, with the consent [of such purchaser, and who has been reported as the purchaser by the sheriff; this summary remedy by motion can be had only against the actual purchaser at the sale.</p> <p>2. Qnere : whether this section embraces a sale in partition.</p>

Louis Court of Common Pleas. On the 1st November, 1851, an agreement in writing was made between defendant, Jeter, and the trustees of the post-office building. Jeter, on bis part, contracted to furnish all the materials and do all the work with diligence and dispatch necessary to the erection and entire completion of said building in accordance with certain plans and specifications (except certain portions of the work particularly named).

<p>1. Case affirmed.</p>

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

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

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

•Appeal from St. Louis Circuit Court. This a suit upon the same certificate of deposite as that involved in the suit of Payne v. Clark & Bros., formerly in this court, and reported 19 Mo. 152. The object of the present suit is to recover the amount mentioned in the body of the certificate — $1014. The only question now presented is as to what amount of interest the plaintiff is entitled to recover.

Loxiis Circuit Court. In December, 1852, two suits were instituted by attachment before John Black, a justice of the peace within and for the township of St. Louis, by one Small against one Snead. The writs of attachment were directed to Peter Wegman, then a constable of said township, who executed them by seizing a certain wood-boat, then lying at the wharf in St. Louis, as the property of said Snead, the same being in his possession and control.

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

Louis Circuit Court. This was an action in the nature of an action of trespass. Plaintiff claims the land, upon which the alleged trespasses were committed, under ihe town of Carondelet, as being a portion of the common of that town, south of the River des Peres.

<p> •Appeal from St. Louis Land Court. </p>

Jlppeal from, Ste. Genevieve Circuit Court. I. Tbe first submission under wbicb the arbitrators were sworn was abandoned. An entirely different one was made and they acted under it, but were not sworn.

<p> jError to St. Louis Land Court. </p> <p>Tbe facts sufficiently appear in tbe opinion of tbe court.</p> <p>cited Gamache v. Pequinot, 17 Mo. 810, 825; City of St. Louis v. Toney, 21 Mo* 243.</p> <p>cited Sarpy v. Papin, 7 Mo. 503; Menard’s beirs y. Massey, 8 How. 293 ; Burgess v. Gray, 16 How. 48.</p>

Louis Court of Common Pleas. This was a suit to recover a sum of money alleged to have been paid and delivered to defendant, Kellogg, by one G. De Baun, jr., in satisfaction of a bill of exchange presented by said Kellogg, as notary, to the said De Baun, as the acceptor thereof, for payment. Plaintiff, Thompson, drew his bill of exchange on George De Baun, jr., who accepted the same.

The facts are stated in the opinion of the court. argued the following points : I. The Circuit Court erred in forcing the defendant to make bis peremptory challenges before the State. (R. C. 1845, p. 878-9, § 3, 4 ; 3 Ohitty’s Practice, 872.) II. The defendant ought to have been allowed to prove the threats of the deceased. His defence was, that he hilled to save his own life, or to save himself from great personal injury.

•Appeal from St. Louis Criminal Court. The recognizance entered into in this cause was declared by the St. Louis Criminal Court to be forfeited, and judgment was rendered thereon against the principal and surety, who bring the case to this court by appeal. At the time the recognizance was taken by the judge of the St. Louis Circuit Court, the Criminal Court was not in session.

This was an indictment for selling liquor without a license. Defendant moved to quash the indictment, and made an order of the County Court of Crawford county a part of the motion.

Louis Land Court. This was an action in the nature of an action of ejectment, to recover possession of a lot in the city of Carondelet.

This case has heretofore been in this court, and will be found reported 20 Mo. 99.

<p> ^Appeal from Lewis Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p> •Appeal from Ste. Genevieve Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

Louis Circuit Court. The Circuit Court erred in the first instruction it gave to the jury. The proceedings in the District Court of New Orleans, and the sale by the sheriff, in pursuance thereof,'to Carson & Brooks, were effectual to pass the title of the steamboat Jamestown to the said C. & B., discharged of the lien of the respondent’s demand. They were in the nature, and had the effect, of a proceeding in rem in admiralty.

The governor refused to issue the bonds on the ground that the law was unconstitutionally passed. An ag'reed case was made, the substance of which is stated in the opinion of the court. The act referred to was deposited with the laws in the office of the secretary of state, authenticated in the manner pointed out by the first section of the second article of the act concerning laws (R. C. 1845).

■Appeal from Washington Circuit Court. Tbe facts of this ease sufficiently appear in tbe report of tbe former decision of this writ, contained in 21 Mo. 545. cited Stone v. Stone, 18 Mo. 391; Davies v. Davies, 5 Mo. 189; Lawrence v. Baubier, 2 Bailey’s. Rep. 651; Ex’rs of Hopkins v. Mazyck, 1 Hill Cb. R. 251; Lawdner v. Chisholm, 2 McCord’s Ch. R. 462 ; Lansdown v. Lansdown, 2 Moseley R. 364 ; Hall v. Reid, 2 Barb. Cb.

This was a suit instituted by the administrator of John Logan bo recover rent claimed to have become due under the reservation contained in a deed from John Logan to the defendant, Caldwell. It appears by the finding of the court that defendant Caldwell had paid for the use and occupation of the promises up to the death of Logan.

The amended petition in this case is as follows : “ Plaintiff states that in the year of our Lord 1848, he was appointed guardian of Elvira Debo, a minor at that time, under the age of twenty-one years., by the Probate'Court of the county of Lafayette, in the state of Wisconsin, at which time the said Elvira owned an interest in several negroes in Marion county, Missouri, worth about ¡$1000, and which interest is now much larger ; and said negroes are still in the said…

I. The parties defendant were not in court when the judgment was rendered. Two of them were not served with process. The memorandum attached to the petition is no appearance in court. (Sess. Acts, 1847, p. 106 ; R. C. 1845, p. 804-5.) There are only two modes of commencing a suit under the practice acts of 1845 and 1849 ; first, by the voluntary appearance of the party ; second, by filing a declaration or petition and suing out a summons.

<p>1. Until a sale of personal property is rendered complete by delivery and acceptance, it will remain at the risk of the seller.</p>

Frangois Circuit Court. This cause was formerly in this court. (See 20 Mo. 132.) The petition is as follows : “ Plaintiff states that on the 14th day of February, 1851, at Grass Valley, California, he delivered to defendant five hundred and fifty dollars — five hundred of which was to be left at Potosí, Missouri, with Priscilla Davidson, wife of plaintiff.

<p>1. Where, in a suit under article 8 of the practice act of 1849 (Sess. Acts, 1849, p. 82) for the possession of a slave, it appeared from the finding of the facts by the court, that the slave belonged to plaintiff, was in the possession of defendant, and had escaped therefrom after the commencement of the suit, but it did not appear whether the possession of defendant was wrongful or rightful; held, that the finding was defective, and that a judgment for defendant was erroneous.</p>

This was a suit for freedom, originally brought in the Schuyler Circuit Court, from which court it was removed by change of venue to the Circuit Court of Shelby county. Upon the trial to establish the freedom of plaintiffs, the following instrument in writing, executed by Elizabeth Schropshire, was offered in evidence : “ State of Missouri, county of Schuyler.

Jlppeal from Pike Circuit Court. This was an application to the Probate Court of Pike county, by the administrator of Sarah Ann Hayden, deceased, widow of James It.

<p>1. It is error to dismiss an appeal from a justice of tlie peace for “ any error, defect, or other imperfection in the proceedings of the justice.”</p>

•Appeal from, Lewis Circuit Court. This was an action against Edward Towler to recover compensation for injuries sustained in consequence of the act of a slave of defendant in setting fire to and burning a stable, &e., belonging to plaintiff. The defendant dying, the suit was revived against his administrators.

Jlppeal from Monroe Circuit Court. A motion was made in this cause in the Supreme Court by respondent’s counsel to strike out the bill of exceptions on the ground that it was allowed and signed out of time.

<p>1. In order to entitle the assignee of a note not negotiable to sue the assignor, without fi. st instituting a suit against the maker, it must appear that such suit would be wholly unavailing.</p>

•Appeal from Pike Circuit Court. The facts sufficiently appear in the opinion of the court. I. There is no evidence to support the verdict. The action is an action of forcible entry and detainer under the 2d section of the act.

<p> Error to St. Louis Court of Common Fleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

The county court of Jefferson county made an order that a sale of the school lands (portions of the 16th section,) of school township No. 6, made by the sheriff under a previous order of the county court for that purpose, be set aside and held for naught, and that the sheriff again advertise and sell the said lands, &c. From this order, Wilson, the purchaser, appealed to the Circuit Court; which court refused to set aside the order of the county court.

This was a suit against “ the trustees of school district No. 1, T. 53, R. 3 W., in Pike county.” The petition is as follows : “ Plaintiff states that the defendants, on the 15th of March, 1848, entered into a contract of that date with William Watson, to build a frame school-house on lot 273, in the town of Bowling Green, in said county, for said school district; that in that contract the said trustees promised said Watson that if he would build and erect a frame…

<p>X. A written advertisement or notice of a trustee’s sale, signed by the trus- • tee, is not a sufficient note or memorandum within the statute of frauds.</p> <p>2. In order that an entry of a sale made by an auctioneer may satisfy the requirements of the statute of frauds, it must be made at the time of the sale ; an entry made a month or more after the sale is not sufficient.</p> <p>3. In order that a delivery of possession to a vendee of land may amount to such a part performance as to take the case out of the statute of frauds, the situation of the parties must be such as that a refusal to carry out the paTol contract of sale will work a fraud upon the purchaser.</p> <p>4. A grantor in a deed of trust, who is also residuary cestui que trust, is a necessary party to a suit brought by a purchaser at the trustee’s sale for a specific performance of the contract of sale.</p> <p>5. Where trustees are empowered by a deed of trust to act separately, yet, if they elect to act jointly, as by giving a joint notice of sale, one can not act alone.</p>

<p> Appeal from, Jefferson Circuit Court. </p> <p>cited Practice Act, art. 11, secs. 5, 6; Sautier v. Kellerman, 18 Mo. 509 ; Practice Act, art. 30, section 6 ; R. 0. 1845, sec. 5 ; Ohauvin v. Labarge, 1 Mo. 556.</p> <p>cited Practice Act, art. 11 secs. 5, 6; Greeves v. McAllister, 2 Binney, 591 ; Doty v. Wilson, 14 Johnson, 278 ; note to Depeau v. Waddington et ah, Amer. Lead. Oases.</p>

The facts stated in the petition, a demurrer to which was sustained, sufficiently appear in the opinion. cited Brightley’s R. 36'; 15 New Hamp. 396 ; 6 Watts, 306. cited Hunt V. Simonds, 19 Mo. 583.

This was an action in the nature of an action of trespass, for wrongfully and without leave entering upon the land of plaintiffs, and cutting and carrying away timber, &c. The answer, after denying the facts stated in the petition, sets up an ownership of the land in defendants.

<p>1. The measure of damages in an action on a covenant of warranty is the purchase money with interest.</p> <p>2. The fact that a recorder may have entered of record in his office deeds of conveyance of lands subsequently sold and conveyed by himself, raises no presumption that at the time of his own conveyance he was aware of a defect in his title.</p>

The facts of this case sufficiently appear in the opinion of the court, and in the report of the ease of Clark v. Maguire (16 Mo. 302). Upon the trial, the following instruction was given to the jury, on the motion of plaintiff: “1. The burden of proving the defence of fraud rests upon the defendants.” The court, on its own motion, gave the following : “ 2.

Plaintiff sought in this action to restrain Tompkins, constable, &c., from selling certain personal property of plaintiff under an assessment of a school tax, claimed by plaintiff to have been illegally made and void; also to restrain the trustees of the school district, who are xnado parties defendant, from taking any steps against plaintiff to collect the said tax. The cause was tried by the court without^a jury, and the injunction was dissolved.

Genevieve Circuit Court. This -cause was decided on a demurrer to the petition.

This was an application for a mandamus in the name of the county of Dunklin by Nathaniel G. Murphy, superintendent of public works in and for said county.

Louis Land Court. The petition sets forth substantially that on the 7th of January, 1858, J. M. Cannon, one of defendants, without any valuable consideration, conveyed to his wife, Ann F. M. Cannon, certain real estate, “ for her sol.e and separate use and benefit;” that on the 18th day of May, 1853, Louis 0.

Louis Circuit Court. This was an action in tbe nature of an action of ejectment for the possession of a lot of ground in the city of St. Louis.

Louis Court of Common Pleas. This was a petition for an injunction by the city of St. Louis and the county of St. Louis “ for themselves… Held: used or occupied by it; and all engines, locomotives, tenders, cars, machinery, and all other property of whatsoever kind which were then or thereafter might be owned by said company ; and all tolls, income, revenue, issues and profits of the property thereby conveyed ; and all privileges, franchises, easements, rights and interests…

•Appeal from St. Louis Land Court. This was an action of ejectment, brought by William Mil-burn and others, as commissioners appointed by the St. Louis County Court under authority of an act of the general assembly of March 8, 1851, to recover possession of part of the 16th section in St. Louis township. On the trial below, plaintiffs adduced the following evidences of title-: 1.

<p>1. The confirming force of the act of Congress of June 13th, 1812, extends to common field lots, &c., as well outside of as within the survey of the outhoundary line of the town of St. Louis, the plat of which survey is commonly known as “Map X.”</p> <p>2. Where several persons unite in petition for a commission to perpetuate testimony, a verification of such petition by the affidavit of one of such petitioners is sufficient.</p>

<p>1. It is erroneous, in a suit for work and labor done by plaintiffs as surveyors, to permit a book-keeper of plaintiffs to testify that the services sued for were charged on plaintiffs’ books to defendant.</p>

<p> Appeal from Si. Louis Land Court. </p> <p>cited Bell on the Law of Property, 518, 519 ; Norton v. Tourville, 2 P. Will. 144 ; Hulme v. Tenant, 1 Bro. Ch. R. 14; 17 Johns. 581; 5 J. J. Marsh, 230 ; 3 Yesey, 193 ; 2 Atkins, 69 ; 3 Mylne & Keene, 220 ; 15 Yes. 599 ; 4 Russell, 112 ; 2 Roper on Husband and Wife, 246; Clancy on Rights, 346 ; 2 Story’s Eq. 1400 ; 10 Mo. 757 ; 18 Cond. Eng. Ch. R. 46 ; 22 Wend. 528 ; 3 Maddox, 200.</p> <p>cited Sess. Acts, 1853, p. 90 ; McOune v. Hull, 20 Mo. 596 ; M. E. Church v. Jacques, 3 John. Ch. R. 77,113 ; 1 White & Tudor Lea. Cases inEq. 405; 17 Johns. R. 548, 577, 582; 2 Sand. Ch. R. 288 ; Coates v. Robinson, 1Ó Mo. 757 ; 1 Rawle, 237 ; Thomas v..Eolevell, 2 Whart. 11, 16 ; 3 Whart. 315 ; Young v. Ball, 9 Watts, 137 ; Doty v. Mickell, 9 S. & M. 435, 447 ; Montgomery v. Agricultural Bank, 10 Smed. & Mar. 565, 576 ; Morgan v. Elam, 9 Yerg. 375, 391, 398 ; Sutton v. Baldwin etal., 8 Humph. 209.</p>

<p> Appeal f rom Si. Louis Land Court. </p>

Louis Court of Common Pleas. cited Phill. on Ins. § 1102, 979, 989 ; 2 M. & S. 247 ; 3 Sto. 351; 3 Johns. Ch. 93 ; 3 Johns. 321 ; 14 id. 138; 8 Mo. 99 ; Story on Bail. § 509 ; Millar’s Ins. 394.

Louis Land Court. The petition of plaintiff is as follows : u The plaintiff states she was married to John W. Johnson in the year 1881, in the city of St. Louis, in the state of Missouri, and she and said Johnson lived together in said city as husband and wife until the 1st day of June, 1854, when said Johnson died without any child or other descendant in being capable of inheriting his estate.

Louis Land Court. This was an action commenced in the year 1854, in the nature of an action of ejectment, to recover possession of an undivided interest in a lot of one by forty arpens in the St. Louis common field. The defendants were the Board of President and Directors of the St. Louis Public Schools, the City of St. Louis, and about eighty others, who hold in severalty and not in common.

•Appeal from St. Louis Land Court. Tbe petition of the plaintiff, Harper, sets forth substantially that plaintiff is entitled to the possession of the land in contro - versy ; that one Otis West, under whom plaintiff claims, purchased the same at a sheriff’s sale on execution under a judgment against Daniel Harper, one of the defendants, and received the sheriff’s deed therefor dated May 15, 1846 ; that defendants have been in unlawful possession of said premises since May…

Louis Court of Common Fleas. This was a suit instituted by Joseph A. Eddy against Henry Baldwin, Julia A. Baldwin his wife, Samuel Willi, and T. Gr. Stewart.

Louis Land Court. This was an action to recover rent alleged to be due plaintiff. Under instructions given by the court, which it is unnecessary to set forth, a verdict was rendered for plaintiff for the whole rent reserved.- The opinion of the court sufficiently sets forth the facts. cited 1 Co. on Litt. 143, a 151, 448, 482 ; 8 Cowen, 206 : 18 Gilb. on Rents, p. 30, 59 ; 8 Cowen, 209, 728 ; 2 Co. Inst. 412 ; Cruise Dig.

<p> dip peal from St. Louis Land Court. </p>