Volume 24 — Missouri Reports

Error' to St, Louis Land Court. This was an action of unlawful detainer, originally commen» ced before a justice of the peace. The justice having dismissed the complaint, an appeal was taken to the Land Court. The cause was tried by the court sitting as a jury. The court found for plaintiff. Defendant moved in arrest of judgment for the insufficiency of the complaint or petition. This motion having been overruled, the cause was brought to this court by writ of error.

<p> 'Appeal from, St. Louis Land Court. </p>

Louis Land Court. This was a petition for an injunction to restrain the sale by the city of St. Louis of St. George’s church. The plaintiffs are the trustees of St. George’s church.

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

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

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. The condemnation and the appropriation by the city to public use of fifty feet of the leased premises do not affect the contract for rent between tbe landlord and tenant. (8 Kent’s Com. 464 to 470, 2d ed. ; 15 Wend. 404 ; 24 do. 254 ; 7 do. 21; 11 Ohio, 408 ; 15 Mo. 467 ; 15 Pick. 198.) I. The title to rent is founded upon the presumption that the tenant enjoys the land during the contract.

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

<p> Appeal from, Si. Louis Court of Common Pleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

Louis Land Court. This was an action, in tbe nature of an action of ejectment, to recover possession of an undivided interest of thirteen thirtieths of a tract of land in St. Louis county. Plaintiffs claim title as the heirs and legal representatives of Benito Yasquez, to whose legal representatives they allege the said tract of four by eight arpens was confirmed by the act of Congress of June 13, 1812.

Louis Circuit Court. This was a suit brought by an endorsee of a bill of exchange against the acceptor. Defendant, in his answer, set up a want or failure of consideration; also denied the endorsements. When the case was called for trial, the defendant not being present, it was submitted to the court upon proof of the several endorsements, and the court found for plaintiff, and rendered judgment accordingly.

<p> •Appeal from St. Louis Criminal Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

Louis Court of Common Pleas. Plaintiffs state in their petition substantially that on the 16th day of April, 1850, one Thomas Crew caused the life of Jacob Lesher to be insured for his own benefit by the Phoenix Life Insurance company in the sum of $500 ; that Lesher died March 1st, 1851; that on the 3d of July, 1851, Thos.

<p>1. Where a cause is tried by the court without a jury, there should he a finding of the facts by the court.</p> <p>2, Quere, whether a garnishee who fails to set up in his answer, as a defence to the garnishment, the fact of a previous assignment of the debt by the defendant in the attachment, for the reason that he had no notice of such as.signment, is entitled to relief against a judgment against himself for the debt in favor of the plaintiff in the attachment.</p>

<p>1. Where one acting as a factor receives merchandise for shipment to a particular consignee, and makes advances upon the same, and the merchandise, being refused by the consignee by reason of its being in a damaged condition, is sold for less than the sum advanced ; held, that the factor is entitled to have his advances made good.</p>

Louis Court of Common Pleas. In this suit, the plaintiff, Walter, claiming title to a certain stock of goods, under an assignment by Gustave and Ferdinand Yogeler to himself, as trustee, to secure a debt of $4000 due to one Carl Yogeler, which said stock of goods had been seized by defendant, Wimer, as sheriff of St. Louis county, under a writ of attachment issued in favor of certain persons, also defendants, and had been sold by said Wimer, seeks to recover damages for the…

<p>1. The withdrawal of an answer, when a case is called for trial, is an admission of the traversable allegations of the petition.</p> <p>2. Judicial notice will be taken of the fact that the state of Missouri is east of the Rocky mountains.</p> <p>3.- The drawer of a bill of exchange is liable, in case of non-payment, according to the law of the place where the bill is drawn.</p>

<p>1. A person who, building upon his own land, makes use of the wall of an adjoining proprietor, does not thereby render himself liable for one half the cost of such wall; if any injury has been sustained, the appropriate remedy is an action for damages resulting from such injury.</p>

Louis Court of Common Pleas. On the 1st of October, 1853, plaintiffs commenced a suit by attachment against Mudgett & James, averring in their affidavit, as grounds for the attachment, that the defendants had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors. In the month of October, 1853, the respondents were summoned as garnishees of said Mudgett & James.

<p>1. A judgment against infant plaintiffs, appearing by attorney, maybe recalled or set aside on motion of such plaintiffs, although at the date of the judgment one of such infant plaintiffs may have attained his majority.</p> <p>2. The judgment being entire, must be recalled and set aside as to both plaintiffs.</p> <p>3. After the judgment is recalled, the suit may he dismissed.</p>

<p>1. A pork packer engaged to examine, salt, brine, repack, and brand a lot of meat, and to “guarantee New Orleans inspection;” held, this agreement amounted to a guaranty that the pork should pass inspection in New Orleans as branded by the packer.</p>

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

<p> Appeal from St. Louis Land Court. </p> <p>cited Sess. Acts, 1847, p. 69; R. C. 1845, p. 244; Hardison v. Steamboat Cumberland Valley, 13 Mo. 226 \ Gordon v. Scott & Mudge, 15 Mo. 249 ; 11 Mo. 214; 18 Mo. 410; 19 Mo. 239 ; R. C. 1845, p. 826, 828 ; Hull v. Dowdall, 20 Mo. 359 ; 5 Mo. 248 ; 5 Mo. 323.</p>

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

Louis Land Court. Plaintiffs, the administrator, and heirs of one Brueggeman, deceased, set forth in their petition a contract entered into by defendant to conyey certain real estate to plaintiff’s intestate.

•Appeal from St. Louis Court of Common Pleas. The following facts appeared in evidence on the trial of this cause. One Strattman sold a grocery store and stock to Klute and Meyer, who immediately sold the same to one Kleeburg, in accordance with a previous understanding to that effect.

Louis Criminal Court. The charge against the defendant, Cafferata, was that he “ on Sunday, July 1st, 1855, and after the hour of nine o^clock in the forenoon of said day, did keep open his confec-tionary for business purposes, situate, &c., within the corporation limits of the city of St. Louis, contrary,” &c. The fourth section of article 2 of the ordinance concerning misdemeanors, (Rev. Ord. 1853, p. 514,) with the violation of which defendant was charged, is as follows:…

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

.Appeal from St. Louis Court of Common Pleas. Plaintiffs, real estate brokers, allege in substance in tbeir petition that the defendant, Allen, employed them to sell for him a certain tract of forty-ono acres of land ; that defendant represented to plaintiffs that be bad a good and perfect title to said land, and authorized and directed plaintiffs to sell the same for the sum of $41,000. on the following terms, &c.; that plaintiffs, relying upon said representations, and…

Louis Land Court. This was an action of forcible entry and detainer. The evidence tended to show that the defendants entered certain rooms upon the third floor of a house in the city of St. Louis, which rooms were at the time in the possession of plaintiff, and removed a door belonging to said rooms, and the sash of the windows of said apartments, and thus forced plaintiff out of possession.

Louis ■Court of Common Pleas. John Stewart and others instituted a suit, in the nature of an ejectment, against Pope, to recover possession of certain premises in the city of St. Louis, and also damages for the detention thereof. Dent, under whom Pope held as tenant, was admitted as a co-defendant.

Louis Land Court. William H. Cozens, as appears from the bill of exceptions, testified as follows : “ That he is a surveyor of lands, and has been such sinee the year 18E6.

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. Oral evidence is admissible to show that a title to real • estate, vested by terms absolute, is nevertheless held as a mere security or in mortgage. (1 Hilliard on Mort. ch. 3, p. 29 and following; Robertson .v. Brant, 16 Mo. 142; 1 Wend., 486 and 437 and cases there cited; Adams’ Eq.

<p>1. A final judgment must tie rendered in a cause beforean appeal can be taken to the Supreme Court.</p>

Louis Land Court. This was an action in the nature of an action of ejectment. Held: that a elaim presented by a living person on behalf of tbe estate of one deceased is su£5-cient. But in this case the claim seems to have been made in tbe name of a person who did not exist when it was made. It is submitted that tbe proceeding is merely void. IF.

, Error to St. Louis Court of Common Pleas. The following tripartite agreement, under seal, dated May 24, 1848, was executed by J. S. Morrison, Charles Collins and Charles S. Clarkson : “ Whereas, Joseph S. Morrison now holds a certain lot of ground on Broadway, in the city of St. Louis, under a lease from Mrs. Ashley, on which lot is now standing a hemp warehouse, lately built by Charles Collins under contract with said Morrison ; and whereas, it has been contracted and…

'Appeal from. St. Louis Court of Common Pleas. Foster, one of tbe defendants in this suit, was superintendent of water-works of the city of St. Louis for two successive terms of one year each, ending the first Monday of June, 1853, and as such executed the two bonds upon which this suit is brought, with West as his security in each bond. The petition contained separate counts upon each bond.

<p>•dppeal from St. Louis Criminal Court.</p>

The following were the only instructions given to the jury : “ The jury will acquit unless the evidence exclude from their minds all reasonable doubt as to the guilt of accused. The conduct of tbe accused, before and after the death of Thomas J. Calhoun, may be taken into consideration in determining the guilt or innocence of the accused.

This was an application by Wm. McFarland and wife originally to the county court of Barry county, (whence an appeal was taken to the Circuit Court,) for an order upon the administrator of one J. H. Baze’s estate, requiring him to pay over to plaintiff’s $225, the proceeds of the sale by said administrator of personal property belonging absolutely to the widow of defendant’s intestate, who had since intermarried with plaintiff McFarland, and who joined with her husband…

This was a petition by the heirs at law of John Adams, deceased, under the 31st section of a statute concerning wills, to set aside and vacate the probate of a will. The petitioners alleged imbecility of mind and body, and undue and fraudulent influence of the second wife of the testator, as the grounds for their prayer.

This was an action by an assignee of an obligation described in the original petition as a promissory note. When the cause was taken up for trial, plaintiff offered in evidence an instrument of which the following is a copy: “ On or before the 25th day of December, 1855, I promise to pay C. F. Russell, trustee of Zacnette Russell, the sum of $800, for value received. Witness my hand and seal this 9th day of November, A. D. 1854. [Signed] Benj.

Demurrer to a petition. John Coy, Elizabeth Coy, Collins Coy and John Prewitt were defendants.

In this suit John Dumey, claiming under the will of one Frederick Henneger, prays for a partition of certain lands, which he alleges passed to and became vested in himself and one Sarah Dumey, a defendant, under said will. Sarah Du-mey, by her guardian, answered, admitting the alleged right of plaintiff and making a similar prayer.

This was an action to recover the value of goods, wares, &e., alleged to have been “ sold by plaintiff to defendant, and by defendant, per ■ boy Anderson, received of plaintiff and at the request of defendant.” The following, instruction was' given to the jury at the instance of the plaintiff: “1.

<p>1. A will contained the following provision: “ I give and bequeath unto my wife Sarah the who'e of my estate, both personal and real, during her life or widowhood; hut if my wife should again marry, so soon as the same takes place, my whole estate, both real and personal, I give and bequeath to John and Sarah Dumey, a boy and girl living with me, to be equally divided among themheld, that the limitation over of the personal estate upon the second marriage was valid.</p>

James Stinson executed the following deed of gift to his daughter, Mary White : “ Know all men by these presents, that I, James Stinson, of Cooper county and state of Missouri, for and in consideration of the natural love and affection which I have and bear to my beloved daughter, Mary White, of Renton county and state aforesaid, and for and towards tbe better support of her, the said Mary and her heirs, and for divers other good causes and valuable considerations thereunto…

This was a suit upon a promissory note against Wm. Upton and G. W. Dameron. The defence set up by Dameron was that he had signed the note as security for Upton, and that plaintiffs had failed to institute suit against the parties liable on the note within the requisite time after a requisition to sue given by Dameron to one of the plaintiffs, who were the payees of the note.

This was a suit against Addams as acceptor o£ a bill of exchange drawn in favor of plaintiffs by the firm of D. & T. S. McDonnell, upon the partnership firm of McDonnell & Addams, of which latter firm defendant was a member.

«Appeal from Platte Circuit Court, This was a suit for the possession of a negro slave.

Plaintiff, in this action, sought to recover damages for the killing by the defendant of a buffalo bull.

•Appeal from, Ray Circuit Court. This was a proceeding, under the act concerning boats and vessels, against the steamboat El Paso, to recover damages for the wrongful transporting upon said boat, by the master thereof, of a slave of plaintiff, named Ann, from the city of Lexington to the city of St. Louis. The boat was seized, and, upon the giving of bond by the master, Thornburgh, with security under the ninth section of the act concerning boats and vessels, was released.

This suit was originally commenced before a justice of the peace, to recover the price of an improvement sold by Burns to Hayden. The case was appealed to the Circuit Court.

«Appeal from Carroll Circuit Court. A. P. Mullins executed a note under seal to Dewey, dated October 1, 1852, for $110, payable October 1, 1854. This note contained the words “ negotiable and payable without defalcation or discount, which said amount may be discharged in good young cattle at market price.” This note was assigned by Dewey to the plaintiffs in the present suit. The date of the assignment is August 18, 1853.

This was an action to recover damages for an alleged assault upon tbe minor son of plaintiff by tbe minor son of defendant.

The facts of this ease sufficiently appear in the opinion of the court when compared with the report of the same case when on error before, in 21 Mo, 444.

The following instruction was given to the jury at the instance of the defendant: u Although the jury shall believe from the evidence that the defendant knew that the filly was unsound from the loss of her teeth, yet unless they shall further find from the evidence that the defendant made some statement or representation as to the soundness of the filly which was not true, or used some artifice to conceal the unsoundness, or to throw the plaintiff off his guard, so that he…

Gibson, one of the defendants, produced to the clerk of the Miller county court an instrument of writing as the last will and testament of Hugh Gibson, deceased ; which was admitted to probate as such; and which said instrument of writing and the probate thereof are as follows : — [Here follow the will and the probate thereof. It is unnecessary to set them forth.

<p>1. Depositions to prove a will rejected by a probate court may, in a proceeding to establish the will, instituted in the circuit court under section 31 of the act concerning wills, be taken under the general law concerning depositions.</p> <p>2. Declarations, made by a testator at times before the date of the will that it is sought to invalidate, that the persons mentioned in the.will as legatees « should never have any of his property,” as also declarations made on divers occasions after such date, that “he had no will,” alone and unsupported by other facts, do not furnish any legal evidence whatever of incapacity on the part of such testator, or of undue influence, and are inadmissible in evidence.</p>

Blue attached certain slaves as the property o£ John K. Kerr.

This was a suit brought by Whitsett, as administrator of Bainbridge Christy, deceased, against Wm. Horne, Andrew Horne, and A. M. Horne, upon a promissory note executed by said defendants in favor of said Christy.

<p> Error to Howard Circuit Court. </p> <p>cited R. C. 1845, p. 404, 540; 8 Mo. 8, 52; 8 Shep. 26; 16 Term. 538; 18 Term. 9 ; 10 Ala. 316; 11 id. 656 ; 1 Strobh. 82 ; 15 Conn. 28 ; 9 Barb. S. C. 316; 13 Penn. 601; 2 Kent’s Com. 458 ; Story’s Confl. of Laws, 203.</p>

•Appeal from Henry Circuit Court. The petition alleged the execution of a mortgage of certain premises by the defendant Pigg and wife, to secure a promissory note executed by said Pigg and others to one Brehm ; that Brehm dying, his administrator obtained a judgment on said note against Pigg and the other makers thereof for $1646; that said administrator assigned said judgment to the plaintiff in the present action ; that Pigg paid upon said judgment the sum of $848 90, for…

Jlppeal from Buchanan Court of Common Pleas. Petition for a partition of real estate by Levi Johnson, an infant, by his next friend, R. H. Wrinkle. A demurrer to the petition on tbe ground of the incapacity of the plaintiff to sue as a party plaintiff in a suit for partition was sustained.

Francis Conner, in the year 1784, died intestate in the state of Yirginia, possessed of the family of slaves in cóntroversy in this suit. He left bins, surviving his widow, Sarah, and two children, Paul Conner and Lucy Conner, the mother of the plaintiff's in this suit. Lucy Conner afterwards married Flem-ming Terrill, under whom the defendants in the present action claim title.

Wm. B. Sterritt recovered a judgment before a justice of the peace against Henry Smith. Execution issued June 2,1855, and on the same day W. M. Belt was summoned as garnishee. Belt answered, admitting an indebtedness to H. Smith at the time of the service of garnishment in the amount of $55 for goods sold.

This suit bas heretofore been before this court. (See report of the decision of Supreme Court, 20 Mo. 308.) It appears that after the money had been collected by the constable on the execution, and before the return day of the writ, it was demanded by the plaintiffs in the execution, Moutrey’s administrators ; and the court below, in the present suit, gave judgment against the constable’s securities for the amount collected and for interest on the same at the rate of one…

•Appeal from Callaway Circuit Court. This cause has been heretofore in this court. The decision of this court -will be found reported in 21 Mo. 285.

' This was an action for the possession of a negro slave named Sam. Plaintiff relied for proof of title upon a deed executed by defendant’s testator.

Plaintiffs in their petition allege in substanee that they were the owners of and in possession of a certain saw-mill; that said mill was erected under and by virtue of an order of tbe Circuit Court of the county of Greene ; that since the erection of their mill by plaintiffs, defendants, unmindful of the statute in such case made and provided, and without authority, have commenced the erection of a dam a short distance below said mill, and so near as to cause the water to…

This action was originally commenced before a justice of the peace. Judgment having been rendered for plaintiff, an appeal was taken to the Circuit Court.

•Appeal from, Dallas Circuit Court. I. The evidence showed, and the instruction given by tbe court assumed, that tbe mare and colt bad been tahen up as strays. Tbe taker up then became, in tbe first instance, lawfully possessed of tbe goods. (1 Cbitty’s Plead. 157.) Tbe original taking was not only lawful, but praiseworthy. (4 Pick. 249.) Non-compliance with tbe statute only deprived tbe taker up of tbe right to defend tbe action.

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

The facts sufficiently appear in the opinion of the court. I. The act of performing the marriage ceremony, or joining in marriage, is the offence on which the penalty of the statute is inflicted. (Hill v. Williams, 14 Serg. & R. 287.) The statute inflicts the penalty upon the person' alone who joins the minor in marriage. It can not, by any implication, be extended to those who may confederate and advise the act. II.

The facts sufficiently appear in the opinion of the court. I. The court below had no power to consolidate the two actions, because the issues tendered to the two defendants were-entirely different. (R. C. 1845, p. 825, § 21.) II. The permission of the court below to Peery to read in-evidence the depositions of Stephenson, Boothe and Wheeler, was erroneous, because no notice was given to Moore, and they were not taken in any cause in which Moore was at the time a. party.

Demurrer, to a petition. Plaintiffs, minor children of one Tabitha A. Temple, deceased, and grand-children of one Angelina Price, instituted suit by their father and natural guardian; alleging that one Elizabeth Burton had devised certain slaves to one Newton Burton in trust for the children of the said Angelina Price, of whom the mother of plaintiffs was one; that said Newton Burton failed to take upon himself the discharge of the trust; that one Alexander Price, one of the…

Allen Gwinn seeks in the present proceeding to recover of Rooker the amount paid by him as security upon certain sealed notes, executed in the name of the firm of H. Gwinn & Co.3 •which firm was composed of said Rooker and H. Gwinn. These sealed notes or bonds were executed by H. Gwinn, in the name of the firm, for a partnership debt. A. Gwinn signed these bonds as security.

Jippeal from Hickory Circuit Court. The facts sufficiently appear in the opinion of the court. I. The court erred in rejecting evidence of the handwriting and signature of the grantor in the deed of gift. (Yalentine v. Piper, 22 Pick. 85 ; Morgan v. Curteneas, 4 McLean, 366 ; Clark y. Sanderson, 3 Binn. 192 ; Woodman y. Segar, 25 Maine, 90.) II. A copy properly authenticated of a deed which has been admitted to record in another state is admissible in evidence in this state.

This was an action to recover damages for an entry upon and the cutting of timber upon the land of plaintiffs.

<p>1. A mortgagee wrongfully disposed of the mortgaged premises; held, in at suit against him by the mortgagor, that the measure of damages was properly assumed to he the value of the premises sold at the time of the sale, the circumstances of the case not calling for the exercise of any rigor.</p>

•Appeal from Buchanan Court of Common Pleas. cited Austin v. Feland, 8 Mo. 309 ; Whaley v. Cope, 4 Mo. 238. I. Mutual debts alone are subjects of set-off. A joint debt can not be set off against a separate debt; nor a separate debt against a joint debt. (Einney v. Turner, 10 Mo. 207 ; State, to use of Cowan, v. Modrel, 15 Mo. 421; Gorden v. Bourne, 2 Johns. 155.) The ease of Austin v. Eeland is not in point, and if it were, the later cases overrule it.

•Appeal from, Chariton Circuit Court. This was a petition to the county court of Chariton county by the administrator of the estate of Alexander Trent.

<p>1. A-will was executed in the following form: “I, A. B., of, &c., do, &c., make this my last will and testament in manner and form following, to-wit: first, that all my just and lawful debts he paid; second, that my wife, C. D., be my sole heir to all my estate remaining on hand after the payment of my just debts, real and personal, to-wit: lands, negroes, horses, cattle, hogs, sheep, farming utensils, household and kitchen furniture, money and effects. Given under my hand this day and date above written.” Held, 1st, that the children of A. B. were not named or provided for in this will within section eleven of the act concerning wills (R. C. 1845, p. 1080) ; that consequently he died intestate as to such children ; 2d, that evidence is not admissible to prove that at the time of making the will the testator declared, that he would name no other persons in his will — that he had done all for his children he intended to do — and that he designed all he had at his death to go to his wife absolutely.</p>

<p>i. A will, after a devise to the wife of the testator of eighty acres of land, proceeded as follows : “ It is my will that at the death of my wife C. B., or at her marriage, or whenever she may as my widow voluntarily consent to it, that my land he sold, and that together all my other estate, to-wit, any amount arising from the sale of personal property, the proceeds of the sale of all my negroes that may belong to my .estate, to-wit, the two men Joe and Isaac, and the children of Winney, if not amicably and equitably divided, shall be sold at the time my daughter Elizabeth shall become oí age, or to the age of twenty-one, as before mentioned, and shall be equally divided between my nine heirs now next named,” &c. Held, upon an application for an order directing the executor to sell lands other than the eighty acres devised to the widow,, and distribute the proceeds among the parties entitled, that the land could not be sold, the widow still living, except with her consent.</p>

jError to Cooper Circuit Court. I. It is only necessary that the petition should show that a slave committed the wrong complained of ; that the defendant at the time was the master or owner of the slave; and that plaintiff had sustained damage to his property by the commission of the wrong. (R. C. 1845, tit.

I. Tbe Circuit Court erred in excluding the evidence. It tended to prove the charge of theft as alleged in the petition. Except in cases when the allegation is unproved in its entire scope and meaning, no variance between the allegation in the pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defence.

•Appeal from, Livingston Circuit Court. I. The facts set up in the appellant’s answer were well pleaded, and if true formed a good defence to the plaintiff’s action.

•Appeal from Benton Circuit Court. I. It is true no appeal can be taken from a judgment by default, unless application be made to the justice to set it aside, and such application is refused (2 Rev. Code, 971, sec. 2); but granting an appeal is at least prima facie evidence that such application was made and refused, it was not necessary that the application should have been made in writing, or that the making or refusal of it should appear on the justice’s docket (2 R. 0.…

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

I. The fact that the petition or a copy of it did not accompany the writ did not affect the validity of the writ. It was upon this ground the court quashed the writ and return, and dismissed the proceedings. In doing so, the court clearly erred. II. The petition, affidavit and bond authorized the clerk in issuing the writ. The petition and affidavit were amended out of abundant caution by leave of the court, and before the motion was determined.

I. The court below did not find facts which- constitute a wrongful detainer, but assert the legal conclusion that “ defendant wrongfully detained said pony.” There is no finding of the fads. (See Practice Act, 1849, art. 15, sec. 2.) II. The finding shows a total failure of proof of the charging part of the petition, and then makes a new case for the plaintiff below, of which defendant below had no notice.

tdppeal from Saline, Circuit Court. I. The unavoidable absence of Barkley, after using due diligence, he having at the time a meritorious defence, comes within the spirit and meaning of the 9th section of the act concerning arbitrators,. II. If it dóes not, the court has the power and it is its duty to vacate an award rendered under such circumstances.

I. The amount of money bet is immaterial, and was not tra-versable. The indictment follows the language of the statute. (R. C. 1845, p. 404.) II. Several offenders may, for different offences of the same kind, be in some cases included in the same indictment, the word severally being inserted, which makes it several as to each ; but they must admit of the same plea and sentence.

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

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

•Appeal from Polk Circuit Court. I. Time and place are alleged with sufficient certainty to every material averment. (1 Chitty C. L. 220 ; Commonwealth v. Wentz, 1 Ashm. 269 ; Commonwealth v. Dedham, 16 Mass. 141; United States v. La Coste, 2 Mason, 140.) II. The indictment is sufficient without averring or setting out any order of the court or judge for the warrant. (State v. Copp, 15 N. H. 214; 2 Chitty C. L. 831 ; 4 T. R. 366; Archb.

<p>1. An indictment was- in the following form ; “ The grand jurors for the State of Missouri, for the body of Putnam county, sworn, upon iheir oaths present, that B. E. G., late of Putnam county aforesaid, on the first day of October, in the year 1855, at the county aforesaid, did then and there unlawfully buy a certain commodity, to-wit, five deer skins, then and there of the value of five dollars, of a certain slave, called John,” &c. Held, that a venue was properly laid to the commission of the offence.</p>

<p> Error to Grundy Circuit Court. </p> <p>cited State v. Edwards, 19 Mo. 674.</p>

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

The only question presented is, whether the court exereised its discretion soundly in refusing the continuance. A continuance should have been granted; continuances may be granted in criminal -cases for like causes and under like circumstances as in civil cases. (R. C. 1192, sec. 19.) The refusal to grant a continuance to a party showing good and sufficient cause for it has uniformly been considered by this court as a sufficient ground for reversal.

<p>1. An indictment founded on- section 34 of article 2 of the act concerning Crimes and Punishments (It. C. 1845, p. 350), charging an assault with a loaded gun, with intent to kill, will not he rendered defective hy an omission to state therein the manner of the assault or the mode in which the gun was used, or attempted to he used.</p>

<p> Error to Cooper Circuit Court. </p> <p>I. The court erred in overruling the demurrer. (State v. Jackson, 17 Mo. 544State v. Leonard, 22 Mo. 449; 1 Chit. C. L. 249; 3 T. K. 106; 1 Chit. PI. 227; Steph. PI. 318 ; 7 Wend. 129 ; 10 Johns. 289.)</p> <p>II. The court erred in overruling defendant’s motion in arrest of judgment. The provision of the statute upon which the indictment is founded does not include the use of fire-arms as an aggravated or indictable offence, unless a shot be fired. (R. C. 1845, p. 350, sec. 34; Ros. Crim. Ev. 776; 1 Ros. on Crimes, 720.) The offence charged is only punishable in a summary manner before a justice of the peace. (R. C. 1845, p. 672.) Neither count in the indictment charges the defendant “ with an attempt to commit an offence,” so as to bring the case within the provisions .of article 9, sec. 1. (R. C. 1845, p. 408.) The only weapon charged to be used was a gun, yet no shot was fired. No count in the indictment attempts to charge that the gun was a dangerous or deadly weapon. (State v. Jourdan, 19 Mo. 212.) If the gun be charged to be used as a fire-arm, must there not be a shot-fired also ? And if the gun be charged in the indictment to be the instrument with which the assault is made, must the gun not be charged to be a deadly weapon, there being no shot or discharge of the piece averred ?</p> <p>I. The indictment is sufficient. (R. 0. 1845, p. 350, sec. 34.) The assault being charged as having been made with a gun, is a sufficient averment that the weapon was deadly. It is equally an assault with a deadly weapon, whether the gun is used in an attempt to shoot or strike; and being a deadly weapon whether used in one mode or the other, the offence is properly charged when the indictment alleges an assault with a gun, without stating the manner in which it was attempted to be used. Courts will take judicial notice that a gun is a deadly weapon.</p> <p>II. The objection to the indictment that the section of the statute under which it was framed excludes the use of fire-arms as an offence prohibited by it when no shot is fired assumes, 1st, that a gun is not a .deadly weapon, except when used in shooting ; and 2d, that an assault by means of a gun could not be made in a manner likely to produce death or great bodily harm, unless in an attempt to discharge it, which is an absurdity.</p>

<p>X. Mares are cattle within section 57 of article 3 of the act concerning Crimes and Punishments. (R. C. 1845, p. 364.)</p>

Jlppcal from JYewton Circuit Court. Tbe court refused to instruct tbe jury, at the instance of tbe defendant, tbat “ tbe usual opening of tbe door of a grocery, and going in on Sunday, is not such a keeping open of a grocery door as is contemplated by tbe statute.”

<p>1. An indictment under section 17 of article 8 of the act concerning1 Crimea and Punishments, charging that the defendant did on, &c., &c., “unlawfully bet a sum of money, to-wit, fifty cents, at and upon a game of chance, played with and by means of half dollars and cracks in the floor of a house, which said half dollars and cracks was then and there a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property,” is sufficient.</p>

<p>1. An indictment, under section 57 of article 3 of the act concerning Crimea and Punishments (R. C. 1845, p. 364), against a negro slave for maliciously killing a mare, must charge the act to have been done “ feloniously.”</p>

<p>1. Although the failure of the foreman of a grand jury to certify under his-hand an indictment to be a true hill is no cause for arrest of judgment after a trial and conviction, it is ground for quashing the indictment before-trial.</p>

Louis LanaT Court. This was a suit for partition instituted by Louis B. Bompart and Louis F. Bompart — sons of Louis and Francois Bompart— against Aurore, widow of said Louis Bompart,. Emelie, widow of said Francois Bompart, the children and grand-children of' said Louis and Francois, also against Marie Madeleine Delo-rier, Charles Roderman and Celeste Roderman, his wife.

Louis Circuit Court. Robert McO’Blenis was indicted at the April term of the St. Louis Criminal Court, in the yaar 1855, for the murder of Benjamin F. Brand. The indictment contained but one count, and that was for murder in the first degree. The cause was taken by change of yenue to the St. Louis Circuit Court.

Louis Circuit Court. A review of the decision made by this court in the case of O’Blenis is respectfully and earnestly urged, 1st, because that decision was made by a divided bench on a constitutional question ; 2d, because of the importance of the question involved, regarded either as a limitation on the judiciary department of the government, or as a personal security of the citizen against the oppressive action of the government; and, 3d, because of the grounds on which…

Louis Land Court. William Christy and Martha T. Christy, on the 20th of September, 1832, executed the following deed : “ This deed, made and entered into this twentieth day of September, eighteen hundred and thirty-two, by and between William Christy and Martha T. Christy, his wife, of the one part, and Edmund T. Christy and Howard E. Christy, of the other part, witnesseth, that for and in consideration of one dollar, to them in hand paid, the receipt whereof is hereby…

The facts are stated with sufficient fullness in the opinion of the court. I. The venire was not a legal body, being deficient in number. (R. C. 1845, p. 878-9, secs. 34 and 35 of art. 6 of act regulating the practice and proceedings in criminal cases.) By the common law each defendant on a joint trial is entitled to the full number of his challenges. (2 Hale P. C. 263-8 ; 2 Hawk. P. 0. ch. 41, § 9; Oo.

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

cAppeal from Si. Louis Land Court. This was an action by scire facias to enforce a lien alleged by plaintiff to exist upon certain culverts belonging to the North Missouri Railroad Company, for the construction of which plaintiff had furnished materials, and upon which he had performed work and labor. The defendants demurred to the writ on the ground that there was “ no - law authorizing a lien on the culverts of a railroad.” The demurrer was sustained. cited Sess.

Genevieve Circuit Court. The court found the facts as follows : “ That Huck, the defendant, occupied the mill and used and enjoyed it for seven years and four months ; that the reasonable rents and profits of the mill for that time, at the rate of $450 a year, amounts to $8300 ; that Huck has expended for repairs of mill the sum of $1090, and in the erection of a dwelling-house near the same ithe further sum of $1000 — making in the aggregate $2090, and ■■which, deducted…

<p>1. Where a father, upon the marriage of his daughter, delivers to her and his son-in-law a slave, and the slave remains in possession of the son-in-law for six years or longer, these are circumstances from which a jury may well find a gift of the slave to the daughter and son-in-iaw.</p>

Jippeal from Hannibal Court of Common Pleas. This was an action to recover compensation for services alleged to have been rendered by plaintiff as collector for defendant, the Hannibal and St. Joseph Railroad Company. Plaintiff, being at' the same time one of the directors of the company, was appointed a collector by the following resolution: “ September 17, 1851.

<p>1, Mere proposals preliminary to a contract form no part thereof unless incorporated into it.</p>

<p>1. Judgment reversed because the evidence did not support or justify the finding of the facts by the court.</p>

Jlppeal from Bollinger Circuit Court. The following demand, properly verified, was presented to the county court of Bollinger for allowance against the estate of Albert Gr. Morgan, deceased, to-wit: “ October 25, 1850. Albert Gr.

•Jipjieal from, St. Francois Circuit Court. This was a suit commenced before a justice of the peace against A. W. Harrison, agent of the Mississippi Mining and Manufacturing Company, upon the following due bill or note: “ Due, Fiat River Mines, September 7, 1854, Daniel P. Coff-man, twenty-seven dollars and fifty-seven cents. [Signed] A. W. Harrison, agent for Miss. Mining & Man.

This was a petition in behalf of John P. Murphy, by his-next friend Thomas C. Murphy, to establish the will of one Richard Murphy, which had been rejected by the county court. Upon the trial, the said Thomas C. Murphy, who had been appointed one of the executors of said will, and was also one of the two attesting witnesses, was admitted as a witness in behalf of the plaintiff to prove the execution of the will, and that the said R. Murphy was of sound and disposing mind.

This was an application to the county court of New Madrid county for the allowance of a demand against the estate of Charles H. Russell, deceased. The following notice was given to the administrator : “ State of Missouri, county of New Madrid.

I. The court erred in admitting the testimony of Sweeny ; (State y. Weiss, 21 Mo. 498 ;) also in giving instructions 1 and 2 for the State, and in refusing defendant’s instructions. The indictment should have been brought against Slade for violating the law as a grocer. Being indicted as a dram-shop keeper, and the proof showing no violation of that law, defendant should have been acquitted. This verdict will be no bar to an indictment for violating the law as a grocer.

•Appeal from Stoddard Circuit Court. The defendant, Miller, was indicted for dealing as a merchant without a license.

Louis Law Commissioner’s Court. I. This action will not lie under the circumstances. The appellants had never received any part of the said goods into their possession or under their control. They were in the custody of the law, and no part of them had been converted in any shape by the law ; but were, and remained, in the custody of the officer of the law.

Louis Circuit Court. The following instructions were given upon tbe motion of defendant: “ 1.

Louis Land Court. Touissant Tourville died in the year 1833, owning the land in controversy. He left eight children him surviving. Paschall and Catherine, two of said children, by deeds dated respectively April 1,1834, and April 10, 1834, conveyed their shares (two-eighths) to Pierre and Charles Tourville. Defendant claims title through mesne conveyances from said Pierre and Charles Tourville.

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

<p>X. A report of a referee, to whom a cause hadheen referred under article 18 of the practice act of 1849, upon the whole issue, must he reviewed in the same manner as if the cause had been tiied by the court, and the court had made a finding of the facts.</p>

<p> Appeal from St. Louis Court of Common Fleas. </p> <p>cited Henderson’s Adm’r v. Henderson, 21 Mo. 879.</p> <p>I. The appellant did not file the proper notice to save the case for the opinion of the court. No motion or exception was made until fifteen days after the report had been filed.</p> <p>II. The court properly gave judgment on the report for the defendant. 1st, as to the item of $200 — the appellant procured the probate court to give her credit for that amount on the ground that it had been improperly inventoried as part of the effects of the estate. This was an admission on the record that the account was not due, and is inconsistent with her suit. 2d, as to the item of $100 — the record omits the transcript of the appellant’s settlement in the probate court, but the referee found that the appellant in her settlement treated the account as having been paid, having returned the account as collected, and that being paid, it formed a part of the balance of $299 48, with which she was charged in her final settlement.</p>

«ftppeal from St. Louis Court of Common Pleas. I. The appellant did not file the proper motion to save the case for the opinion of this court. No motion or exception was made until fifteen days after the report had been filed, and no extension of time was asked or given by the court. II. Treating however the exceptions filed by the appellant as being in time and proper under the code, they omit to notice any points which can be reviewed in this court.

•Appeal from St. Louis Criminal Court. The defendant moved the court to give the following instructions : “1. If the jury believe from the evidence in the cause that George W. Rucker sold at public outcry, at Ms place of business, the tobacco as charged in the indictment' — the growth and production of this state — and that his services in selling the same were a mere gratuity, without reward or compensation, then you must acquit. 2.

<p>X, Under the revised code of 1855 (R. C. 1855, p. 1189), the trial of misdemeanors may be submitted to the court by the defendant and prosecuting attorney.</p>

jError to St. Louis Court of Common Pleas. This was an action upon a policy of insurance. The defendant insured tbe plaintiff in the sum of $8000, upon tbe freight list of the steamboat Cataract on a voyage from St. Louis to New Orleans.

Hppeal from St. Louis Land Court. This was an action in the nature of an action of ejectment for the possession of a portion of a tract of one by forty arpens, situate in the Grand Prairie common field, near St. Louis, which said tract of forty arpens “was cultivated and possessed by Jean B. Provenchere, prior to the 20th day of December, 1803, as a common field lot of the Grand Prairie common fields - adjoining and belonging to the town of St. Louis,” &c. It was admitted…

Louis Land Court. The facts are set forth in the opinion of the court. I. The deed of the executor of Robert N. Moore did convey the land sued for.

Jlppeal from St. Louis Court of Common Pleas. I. The court erred in excluding the proof which appellant offered to make, because the assent of the beneficiaries named in said deed cured any defect which might arise from the terms and provisions thereof, and testimony to prove such assent was competent to rebut alleged fraud, whether constructive or actual. II. Upon the whole case as proved and offered to be proven, the judgment should have been for the plaintiff.

Jlppeal from, St. Louis Court of Common Pleas. This was an action for the delivery of personal property. The plaintiff claimed to have a special property in the goods as trustee for the creditors of True W. Hoit. The plaintiff relied upon two deeds from Hoit to himself — one dated November 20, 1854, and the other dated December 12, 1854.

Louis Law Commissioner’s Court. I. A laborer employed by a sub-contractor is not entitled to the benefit of the statute. The object of the notice required is that the company may be enabled to protect itself against the contractor in case he fails to pay his hands. This object would be defeated by holding that the hands of a sub-contractor were entitled to this remedy.

Jlppeal from St. Louis Court of Common Pleas. This was an action against D. D. Page, H. D. Racon, T. Brown, and E. Wyman, as drawers of a bill of exchange. The bill was drawn by Page & Bacon, of St. Louis, which firm was composed of defendants, upon the Bank of America, New York, in favor of Morris L. Hallowell & Co. Process was duly served upon Bacon, Brown and Wyman.

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

<p>1. Certificates of deposit are not within section 7 of the act concerning bills of exchange (R. C. 1845, p. 173) ; consequently no damages are allowable thereon by said act in case of non-payment.</p>

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

<p>1. A petition alleged that the plaintiff and defendant “jointly leased” certain premises of one A., and that the defendant collected 1he rents and failed to account to plaintiff for his share, one-half, of said rents. Upon the trial plaintiff offered in evidence a lease of said premises from a third person to said A. and an assignment by A. to plaintiff and defendant. Held, that this was a variance, and that the court might properly refuse to receive the assignment in evidence unless the plaintiff would amend his petition so as to correspond with the proof.</p>

<p>1. An agister of cattle can not be rendered liable for the loss of a horse committed to his charge upon the mere proof of the loss of 1he horse; negligence must be shown.</p>