Volume 25 — Missouri Reports

JBrror to St, Louis Circuit Court. This was an action of assumpsit, commenced in the St. Louis Circuit Court in the year 1841. The declaration consisted of six counts, four of which charged the defendant, John B. Camden, as drawer of two bills of exchange, of which-the following are copies: “Exchange for $1689 35. Philadelphia, 24th October-, 1839.

Louis Land Court. I. The only question in this case is whether the holder of a junior patent will be allowed to defeat an older patent for the same land by showing that the grantee named in the latter is a fictitious person. It seems to be too well settled by authority, and too obvious in reason and common sense to admit oi debate, that to every valid grant there must be a grantee capable of taking.

<p>1. A patent to a fictitious person is a nullity.</p>

Louis Law Commissioner’s Court. This was an action against the trustees of the “African Methodist Episcopal Church” to recover the value of the services of plaintiff as sexton of said church. The plaintiff recovered before the justice of the peace. An appeal was taken to the Law Commissioner’s Court.

This was an action for the price of a hogshead of sugar alleged to have been sold and delivered to defendant by plaintiffs. The court found the following facts : “ That the plaintiffs were the owners of ten hogsheads of sugar, which were on the last day of November, 1854, lying on the wharf of the city of St. Louis ; that the defendant purchased five of the said hogsheads by sample at their store, and requested them to have the sugar weighed early next morning.

Louis Land Court. I. The court erred in finding from the evidence that certificate No. 119 was legally issued and legally entered. On the injured land only one certificate could lawfully issue, and that was No. 118, the first issued. There can be no doubt that all the confirmations were on the same concession, and that both certificates issued on the same injured land.

Louis Law Commissioner’s Court. This was an action to recover the value of goods alleged to have been sold and delivered to defendant. Upon the trial it appeared that the goods were purchased by and delivered to the wife of defendant; that the wife had left her husband’s dwelling prior to the sale of the goods and during his temporary absence on business; that she never returned. The court gave the following instructions at the instance of the plaintiff: “ 1.

Louis Criminal Cowrt. I. Section 9 of article 5 of the ordinance relating to markets is void. 1st, There was no power vested in the city -under its charter to pass such an ordinance. (Amended city charter of March 3, 1851; Taylor v. Griswold, 2 Green, 223 ; Phillips v. Wickam, 1 Page, 598 ; 2 Kent, 295.) Said section was in restraint of trade. (Angelí & Ames on Corp. § 332-8; Dunham v. Trustees of Rochester, 5 Dow. 462; Freeholders v. Barber, 2 Halst. 64.) II.

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

Louis Land Court. This was an action of unlawful detainer commenced October 10,1854.

Louis Circuit Court. This was a suit for partition against the heirs of Ellis Wainwright,. Plaintiff, to show title in himself, introduced a decree in a suit in chancery, commenced in the year 1849, in which the plaintiff in this suit was complainant, and the heirs of said Ellis Wainwright defendants. By this decree an undivided interest of one-half in the premises in controversy in the present suit was vested in the complainant.

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

Louis Land Court. I. Where one enters into the possession of land under an agreement with the landlord that be will execute a lease for three years, and the landlord after the entry refuses to comply with his contract, this is a frartd that authorizes a repudiation of the contract in toto.

<p>1. A writ of error will lie dismissed for the reason that it is left blank as to the names of the parties to the suit.</p> <p>2. No amendment of such writ can he allowed in the Supreme Court.</p>

Louis Land Court. This was an action to enforce specific performance of a contract of sale of land. Issues were framed and submitted to a jury, and the following, among other instructions, was given to the jury: “ 1. Possession of the land in question, as mentioned in the pleadings, may be either actual or constructive. Actual possession needs no explanation; it may be seen there for itself. It may be with or without inclosures, buildings or cultivation.

Louis Court of Common Pleas. This was an action upon the following guaranty, bearing date October 27,1832 : “ We agree to guaranty that Mr. M. Drummond will do all that he says he will do in building machinery for a two horse grist-mill for Mr. Pfeiffer. [Signed] Kingsland & Cuddy.” Drummond had agreed, August 4, 1852, to build and finish for Pfeiffer the machinery for a two horse grist-mill.

Louis Circuit Court. This was an action for a divorce brought by the wife against the husband for wilful desertion and absence without reasonable cause for two years.

Louis Land Court. I. The second clause of the will gave to the wife the absolute estate, “ to her and her heirs and assigns forever.” The fourth clause gave her the same estate, for it gave her the absolute power over the estate. A devise with power to pass a fee passes a fee. (Doe d. v. Hendland, 8 Cow. 277.) “ My estate to be at her absolute disposal” passes a fee. (Jackson v. Babcock, 12 Johns. 389.) The power of appointment did not limit the fee.

Louis Land Court. The petition in this cause sets forth substantially that plaintiff Connor became the purchaser, at a sale by Joseph A. Eddy and Jabisli B. Eddy, of certain lots in a subdivision of a tract known as the Sarpy arpent; that the said Eddys conveyed the same to plaintiff by deed with general warranty ; that by deed of the same date plaintiff conveyed said lots to Messrs.

Louis Law Commissioners Court. One Whiting, acting as a forwarding merchant in New Orleans, shipped for St. Louis, per the steamboat Virginia, five cases of scythes. When said goods were received on board of said steamboat, the said Whiting demanded and the cleric of said steamboat paid to said Whiting the sum of $153 42. Said sum was entered as “ charges” in the bill of lading.

Louis Court of Common Pleas. This was a suit by attachment founded on a promissory note.

Louis Court of Common Pleas. I. Under the issues and the instructions of the court below, the allowance of the defendant’s offset depended upon the proof of the fact of partnership between the plaintiff and Bibliographic Institute of Hildburgliausen, and it was therefore error in the court to exclude any evidence tending to prove that fact.

<p> Appeal from St. Louis Law Commissioner’s Court. </p> <p>cited Cummins v. Walan, 4 Blackf. 307; Dense v. Worrell, 1 Hall, 382; Mann v. Clifton, 3 Blackf. 304; Coe y. Given, 1 Blackf. 367 ; Strange, 691; Cooke v. Berry, 1 Wilson, 98 ; Knox v. Work, 2 Binn. 582; Ford v. Eilley, 2 Salk. 653; Alexander v. Byron, 2 Jolins. Cas. 318; Jackson v. Roe, 9 Jolms. 77.</p>

Louis Circuit Cowrt. This was a suit instituted in the St. Louis Circuit Court at the April term, 1850, by William Farrell, to set aside the will of Michael Farrell, plaintiff’s brother, on the ground of mental imbecility and undue influence. The said will was duly proved. The petition made James Brennan, sole devisee under said will, defendant.

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

Louis Cowrt of Common Pleas. This was a suit brought by E. W. Clark & Bro., bankers, payees of the bills of exchange set forth below, against Solon Humphreys and Henry Corwitli as part owners of the steamboat “ Michigan.” “ Exchange for 11500. St. Louis, Mo., 10th July, 1854.

Louis Land Court. This was a suit in the nature of an action of ejectment brought by the plaintiffs as heirs of Henry Linderman, against the heirs of Homer Edson, to recover possession of a tract of fifty arpens of land in the county of St. Louis. The defendants set up title in themselves. Taylor Johnson is the common source of title. In support of their title the plaintiffs introduced a transcript from the clerk’s office of the Circuit Court of St. Louis county.

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

Louis Criminal Court. I. The evidence offered by defendant was clearly competent and should have been admitted. The condition of Shoultz’s mind was an important consideration for the jury in passing upon his guilt or innocence.

Louis Land Court. This was a suit brought by the heirs of Gabriel Paul against William Fulton and Marshall Brotherton, the latter the executor of the will of René Paul, deceased.

Louis Circuit Court. This was a suit to establish against the estate of Joseph P. Scull, deceased, a demand of 11124.06, being the balance alleged to bo due upon a promissory note for $7097.25, executed by said Scull. At the trial in the Circuit Court the plaintiff proved the execution of the note. The defendant then offered in evidence the depositions of Sterling IT.

<p> Appeal from Stoddard Circuit Cowrt. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

<p>1. Judgment affirmed; no bill of exceptions filed.</p>

Louis Criminal Court. This was a prosecution for an assault and battery originally instituted before a justice of tlie peace. Tlie cause was taken by appeal to the St. Louis Criminal Court. The defendant, diaries Devlin, was put upon bis trial in the Criminal Court, and evidence having been given on both sides, the case was closed. Tlie court then called the next case on the docket, which was a case of misdemeanor, and the same jury was sworn in said second cause.

Louis Criminal Court. This was an indictment for adultery. Upon the trial the State, to prove the marriage of the defendant, Robert McDonald, at the time of the alleged adultery, offered the declarations of defendant, made before and after the alleged adultery, to the effect that Rebecca McDonald was his wife, and that he had intermarried with her in the state of Pennsylvania. The court admitted these declarations against the objection of defendant.

Louis Land Cowrt. Demurrer to a petition. Plaintiffs state in their petition substantially that in the year 1819, the late Ool.

Louis Land Cowrl. The facts sufficiently appear in the opinion of the court. I. The affidavit is in strict conformity to the requirements of section 3 of the act concerning landlords and tenants in the county of St. Louis. (R. C. 1845, p. 1101; Willi v. Peters, 11 Mo. 395.) It was not necessary to allege that Martin was a sub-tenant of Getzendanner.

Ajjpeal from St. Louis Lcmd Court. The facts sufficiently appear in the opinion of the court. I. The affidavit was sufficient. Whatever defect there might have been in it was cured after verdict. (2 R. C. 1855, p. 1256, § 19.)

This was an action in the nature of an action of ejectment to recover possession of lot No. 3, in block No. 11, in the city of Hannibal. It was commenced August 16, 1851. Plaintiff claims title under one Abram Bird. The lot in controversy is embraced in a tract of 640 acres patented to the said Bird or his legal representatives. The patent bears date December 1st, 1824. The city of Hannibal is located upon said tract of 640 acres.

<p> Appeal from, Franklin Circuit Court. </p> <p>It is deemed unnecessary to state the facts more fully than they are set forth in the opinion of the court.</p> <p>I. The Franklin Circuit Court had no jurisdiction of the cause, the order of removal by the Warren Circuit Court being illegal and insufficient to take away the jurisdiction of the latter court.</p> <p>II. The court erred in forcing defendant to trial. The causes of continuance were sufficient in law to support the motion. This court has always recognized discretion thus unsoundly exercised as error. (1 Mo. 700 ; 3 Mo. 28 ; 6 Mo. 444 ; 8 Mo. 500 ; 9 Mo. 19 ; 12 Mo. 492.)</p> <p>III. There was a variance. If a murder be elevated to murder in the first degree because done in the perpetration of a felony, or in the attempt to perpetrate a felony, then the fact of the felony is a material fact essential to the crime, and on every just and established principle of pleading it should be charged. (3 Mo. 364 ; 20 Mo. 58 ; 24 Penn. 389.)</p> <p>IY. The court erred in refusing the instruction asked by defendant. (Lewis C. L. 405, 431; 4 Hump. 136; Swan v. State; Mitchell v. State, 5 Yerg. 340 ; Dale v. State, 10 Yerg. 551; Pirtle v. State, 663 ; Hale v. State, 11 Hump. 154.)</p> <p>V. The evidence being purely circumstantial was not legally sufficient to establish the crime charged. (Wills on Circ. Ev. 149, rule 4; Burrill.on Circ. Ev. 737; 1 Stark. Ev. 511; 25 Miss. 584.)</p>

I. Newby was entitled in damages to the full value of bis land appropriated and taken for the road, and the court in the assessment thereof had no right to take into consideration the probable or incidental advantages which might or should accrue to Newby from the road in its enhancement of the value of his adjacent lands. (See Constitution of Missouri, article 13, section 7; 5 Dana, 32; 7 Dana, 87; 9 Dana, 114.)

I. The court should have sustained the motions to strike out so much of defendants’ original answer as justified the entry upon and taking the land by virtue of the “ act to incorporate the Pacific Railroad,” approved March 12th, 1849 ; the “ act to expedite the construction of the Pacific Railroad and the Hannibal and St. Joseph Railroad,” approved February 22d, 1851; the act to amend the act entitled “ An act to incorporate the Pacific Railroad,” approved March 1st, 1851,…

Appeal 'rom St. Clair Circuit Cou/rt. The facts are su libiently set forth in the opinion of the court. The act of December 13,1855, under which the indictment was found, took effect 1st May, 1856. The act of 1857 does not repeal or modify the law of 1855, but releases defendant from a pending prosecution for an offence against that law, upon the performance of certain conditions. It is an act of legislative pardon.

<p> Appeal from Lafayette Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>The probate court of Ray had jurisdiction to determine this motion. (R. C. 1845, tit. Administration, art. 6, secs. 1, 3 ; tit. Courts ; Evain v. Henry, 5 Mo. 469.)</p> <p>The motion to dismiss was properly sustained by the Circuit Court, because the probate court had no jurisdiction of the matter and proceedings of plaintiffs. The court had no power upon a mere motion to determine the rights of the parties to the property in controversy. If it had jurisdiction of the subject matter at all, it could only have been acquired and exercised upon a petition or bill alleging a cause of action, and by notice to the adverse party, as in a regular suit. The motion was filed and proceedings commenced at an adjourned term of the probate court, and without notice to defendant. The proceedings involved the question of the right of property in the notes and evidences of debt in controversy. The notes, &c., claimed were not described in the will, and the question of ownership could only have been determined by proper pleadings and issues, and not upon a mere motion. No title to the property could pass without the assent of the executor, even though it were described in the bequest in said will, and no assent of the execxrtor to the claim of plaintiff was shown in said motion, and without such assent the probate court had no power to make the order prayed for in plaintiff’s motion. (Toller’s Exec’rs, 306 ; 2 Williams’ Exec’rs, 981; 1 Carter, 570 ; 6 Pick. 125 ; Roper on Leg. 841.) The power to order the payment of legacies upon settlements of executors does not include the power to determine upon a motion whether the property claimed by a legatee is or is not a legacy; nor has the probate court the right to order payment of a legacy specifically described in the will without the executor’s assent. (R. C. 1845, p. 100, secs. 1, 2, 3.) As to the jurisdiction of the probate court of Ray county and the mode of exercising it, see the act establishing probate court in Linn county. (Sess. Acts, 1853, p. 390.)</p>

<p>1. An indictment charging a sale by defendant of intoxicating liquors “ without his then and there having a dram-shop keeper’s license, inn-keeper’s license, or any other legal authority to sell said intoxicating liquor at said place, in manner and form aforesaid, contrary,” &c., sufficiently charges a want of authority to sell.</p>

Clair Circuit Cowri. ' I. A new trial should have been granted on account of the verdict. The verdict was bad. ■ It only finds part of what, was in issue. The issues were, whether the slave belonged1, to plaintiff as averred; and if so, what was her value, and what the damages arising .from the detention, if wrongfully •• detained. The jury failed to find the value, and this omission is fatal. (1 Chit. Plead. 141; 7 Bacon Abr.

<p>1. "Where a purchaser at a sheriff's sale practices any deceit or imposture, or is guilty of any trick or device, the object of which is to get the property at an under value, the sale may be set aside in favor of the defendant in the execution.</p>

<p> Appeal from Platte Circuit Court. </p> <p>I. Tbe deed, is tbe deed of tbe principal, Hardin D. Martin. (Townsbend v. Corning, 23 Wend. 436; 4 Hill, 353; Wilburn v. Larkin, 3 Blackf. 55 ; Dening v. Bullett, 1 Blackf. 55 ; 1 Amer. L. Cas. 428.)</p>

The indictment is bad. Merely using vulgar and obscene words is not indictable under the statute. To constitute the offence there must be some open and notorious act of public indecency. But if the mere.use iff language is sufficient, the indictment is still bad. Neither charge is sufficiently laid.

This was a suit for the possession of, and to obtain the legal title to, a tract of one acre of ground upon which was a horse grist-mill. The plaintiff introduced in evidence an instrument under seal, being articles of agreement between himself and one W. R. Huckstep, dated March 3, 1845.

Errror to Kansas City Court of Common Pleas. The defendant having appeared and answered could not avail herself of an imperfect return of the summons; and whether good or bad it had answered the end for which it was made. It had caused defendant to appear and answer. (See Bartlett v. McDaniel, 3 Mo. 40.)

Clair Circuit Court. The indictment is sufficient. The facts and circumstances constituting the offence are averred in the indictment, and the expression “ under circumstances which would have constituted manslaughter if death had ensued” may be rejected as surplusage. (R. C. 1845, sec. 38, p. 351; Jennings v. The State, 9 Mo. 852.) It was not necessary to aver that the weapon used was a dangerous or a deadly one.

<p> Appeal from Cooper Court of Common Pleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>cited Stephen on Pleading, 160 ; 3 Bouv. Inst. 261; Chitty PI. 518 ; Wood v. Steamboat Eleetwood, 19 Mo. 529; Swartz v. Chappell, 19 Mo. 304; Eucker v. Eddings, 7 Mo. 115 ; Brighter v. Cooner, 18 Mo. 347 ; Foster v. McO’Blenis, 18 Mo. 88.</p> <p>Tlie bill of exceptions should have been presented and signed in term, or ten days thereafter, as counsel agreed it should be. The bill of exceptions was not presented and signed during the term, nor within ten days thereafter, and was signed against the consent of respondent. The bill of exceptions not having been presented and signed in proper time should be stricken from the record, and the judgment below affirmed. (Farrar v. Finney, 21 Mo. 569.)</p>

This was a suit to set aside a conveyance made by one Mead of a tract of forty acres of land, dated September 20th, 1852, on the ground that it was a voluntary conveyance, and made to defraud the creditors of said Mead, of whom one Fonda was one.

This was a suit originally brought before a justice of the peace by E. W. Brown, against Sarah J. Lewis and Daniel P. Lewis, to recover the sum of $75, the alleged value of services rendered by plaintiff in treating at his eye infirmary an affection of the eyes of a child of the defendant Sarah J. Lewis.

I. It is submitted whether such a “ strong and unequivocal” case is not here presented as to require this court to direct a new trial, regardless of the errors of the court below in giving and refusing instructions, but on account of the entire failure to prove a felonious assault. The prosecutor was too much intoxicated to either observe or recollect what transpired at the time; and even he says that he does not know that defendant struck at him or intended to strike at him.

The facts sufficiently appear in the opinion of the court. I. The Circuit Court ought to have permitted the plaintiffs to read a part of Smith’s deposition in chief, and to reserve a part as rebutting evidence, because the portion sought to be read was strictly evidence in chief, and the portion sought to be reserved was strictly rebutting evidence, and not necessary to the narrative of the witness. (1 Greenl. Ev. secs. 51 and 52; R. C. 1845, tit.

<p>1. Young et al. y. Smith et al., ante, p. 341, affirmed.</p>

Reuben Hume died December 1st, 1851, seized of certain tracts of land. He left him, surviving, his widow, Elizabeth Hume, and children, of whom Nancy J. Stephens, the wife oí plaintiff, was one, and grand-children. An undivided interest in said tracts of one-seventh vested in said Nancy, the wife of plaintiff. At the death of said Reuben Hume, issue of the marriage of the said Nancy and plaintiff was living. The wife of plaintiff died before the institution of this suit.

I. The leave to file the answer was tantamount to a set ting aside of the judgment by default. No objection being made as to the time of filing the answer, or the answer itself, it was not competent to the court by a mere exercise of arbitrary power to defeat its own action and the rights of the defendant.

The plaintiff sets forth in his petition that defendant on the 2d day of April, 1856, employed plaintiff for the term of twelve months as an engineer to run his steam saw mill for fifty dollars per month, and agreed also to furnish him, plaintiff, with a dwelling house and fuel for the same time, and to pay his wages monthly; that he commenced work of defendant in compliance with said contract on the 27th day of May, 1856, and continued in his employ, faithfully discharging…

The statute regulating costs in this case provides that if the defendants are acquitted the jury shall determine and return with their verdict whether the prosecutor or the county shall pay the costs, and requires the court to render judgment accordingly. (See R. C. 1845, p. 249, section 10.) This provision does not make the prosecutor responsible for costs, in the event of acquittal, absolutely, but only conditionally.

This was a suit on a promissory note for 15532.03 executed by defendants, Henry T. Walker and Charles E. Holly, and also to foreclose a mortgage executed in behalf of plaintiffs — the members of the firm of Doan, King & Co., the payees of said note — by Holly, one of the makers.

Plaintiff, Morin, presented to the probate court of Platte county for allowance a demand against the estate of James B. Martin., deceased, of one-half of $3400, with interest from July 1, 1849, to July 16, 1855, deducting certain items allowed as credits amounting to $256.50. The claim was allowed in the probate court and an appeal was taken to the circuit court.

Clair Circuit Court. This was a suit on a negotiable promissory note executed by defendant, Weidemeyer, in favor of one Martha Thompson. The note was endorsed by said Martha to the partnership firm of Corbin & Barnes. Plaintiff claimed title to said note by virtue of an assignment made to him by Corbin & Barnes for tbe benefit of their creditors.

This is a suit by the plaintiff, the public administrator of Cooper county, as administrator of the estate of Mary Walter, deceased, against Henry R. Walker, her surviving husband.

I. The right of succession to the estate of intestates is governed by the laws of the domicil of the deceased at the time of the death. By the laws of Kentucky, which was the domi-cil of Bostick and his wife at the time of her death in 1830, all her personal property, whether the same had been reduced to possession or consisted of rights in action or interests in remainder in slaves, was vested in him absolutely jure mariti.

This was a suit instituted by William Edwards and Elizabeth Edwards his wife, against Solomon Welton, Ivy Welton and Elvy Atkinson.

This was a suit upon two promissory notes executed by defendant Zeplianiah Spiers, in favor of plaintiff, one for $332.96, dated November 8, 1855, payable December 25, 1855, the other of the same date for $300, payable January 1,1856.

I. Sidonia Sliorwood was an incompetent witness. She was incompetent, being a party for whose immediate use and benefit said suit was prosecuted, and who would be entitled to part of the money sought to be recovered. II. The testimony of the witness David C. Montgomery was not relevant to the matter in issue, and was improperly admitted.

This was a suit commerced before a justice of the peace by attachment, on the 4th of February, 1857. The following is the statement of the cause of action: “ St. Louis, March 28th, 1856. Messrs.

In his application to the Supreme Court for a mandamus, the applicant, George Stacker, sets forth that he instituted a suit upon an account before a justice of the peace against one David Andrews ; that he recovered judgment against the defendant before the justice ; that the defendant appealed to the circuit court of Cooper county; that at the March term, 1855, of said circuit court, the cause was referred, by consent of parties, to Isaac Lion-berger, and was continued for…

This was a suit originally commenced beíjpre a justice of the peace — from whose court the cause was taken by appeal to the Cooper court of common pleas — against one Amick, a deputy constable, and S. D. Smith, one of the trustees of school district No. 5, to recover damages for an alleged illegal levy upon and sale by said Amick, under a warrant issued by the trustees of said district, of a quantity of oats belonging to plaintiff.

This was a suit against David E. G-. Rollins and others upon a promissory note for $250. The following is the return of the service of process by the sheriff: “ I do hereby certify that I served the within petition and writ on the within named David E. G-.

This was a suit commenced before a justice of the peace to recover the value of a watch alleged to have been wrongfully taken from the possession of plaintiff.

This was a suit upon the following instrument in writing: “ I promise to pay G-. W. Crow one hundred dollars if the M. T. Lewis county road is not opened and kept open along the creek where it is now located, or if said Crow should make null the present proceedings of the court and commissioners as already had and done by them. I also agree that if sard road is opened and kept open that said Crow shall have all the damages that may ever be assessed me for the same-.

William Mitchell was indicted, under section 28 of article 8 of the act of 1845, for disturbing religious worship.

The facts sufficiently appear in the opinion of the court. I. The recovery against defendant as garnishee was a good bar to the action, and record should have been admitted in evidence. (Wolf v. Cozzens, 4 Mo. 431.) And so if the note had been settled upon transfer, such settlement was a good bar. ”11.

I. The indictment (if framed on any section of the statute at all) was framed on the 38th section of article 2 of the act concerning crimes and punishments. (R. 0. 1855, p. 567.) It is not good under this section, because it does not cliarge the assault was made “ with intent to commit a rape.” This is the essence of the offence, and it was necessary to allege it in the indictment, and prove it on the trial. II.

This was an action upon a promissory note for $300. The defendant set up in his answer that the consideration of the note had failed; that the note was given for part of the purchase money of two slaves sold by plaintiff to defendant; that the plaintiff had warranted the said slaves to be sound and healthy ; that they were not sound and healthy as warranted.

This was a suit instituted by John Boatman and Elizabeth, his wife, before a justice of the peace, to recover $40, the rent of a farm for six months. The cause was taken by appeal by the defendant Curry to the Kansas city court of common pleas.

Henderson Wetherford and Clemsey Wetherford were jointly indicted in the Morgan circuit court at the March term, 1852, for a felonious assault upon one Cline, with intent to kill. After several continuances, at the April term, 1854, Clemsey Wetherford failing to appear, a forfeiture of her recognizance was taken.

Petition for a mandamus. This was an application in behalf of Calhoun as clerk of the circuit court of Clay county, for a mandamus to the auditor of jpublic accounts, requiring him to audit and allow two bills o'f costs — one in the case of The State v. Edmund, a slave — the other in the case of The State v. Peter, a slave.

This was a prosecution instituted in the name of the “ City of Eayette,” before the mayor of said city, against John Sha-froth, for violations of an ordinance of said city ££ to regulate the liquor traffic.” The complaint, or rather one of the complaints, is in the following form: “ December 26, 1856.

Louis Laúd Cowrt. The city of Carondelet seeks in this- -action to recover possession of certain lots of ground in the possession of the city of St. Louis. Carondelet asserts title to said lots under the act of Congress of June 13,1812, as a portion of the common confirmed to her by said act. The city of St. Louis also asserts title thereto as common confirmed to her by said act of Congress.

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. I. The documentary evidence adduced by the defendant, consisting of the articles of capitulation, the treaty of peace, the act of 1771, the act of 1790 and the act of 1793 demonstrate the existence of negro slavery and its legality from 1763 until 1793. II. The testimony of Messrs.

Louis Land Court. This was a suit in the nature of a bill in equity. ■ The plaintiff in his petition asserts title in himself to a tract of four by four or sixteen arpens of land embraced within United States survey No.-, for Louis Labeaume or his legal representatives ; and alleges substantially that on the 25th of June, 1794, Don Zenon Trudeau, lieutenant governor of Upper Louisiana, conceded to Joseph Brazeau a tract of four by twenty arpens; that on the 9th of May, 1798,…

Louis Laud Court. This was au agreed case submitted to the St. Louis Land Court under article 20 of the practice act of 1849.

Charles Circuit Court. This was a proceeding instituted by the North Missouri Railroad Company to obtain the condemnation, for the use of said company in the construction of its railroad, of a lot in the city of St. Charles belonging to defendant, Norman Lackland.

<p>1. North Missouri Railroad Co. v. Lackland, (ante, p. 515,) affirmed.</p> <p>,2. Where a railroad company, after having commenced proceedings for the condemnation of land upon which its railroad is located, exercises its right of dismissing the proceedings before the judgment of the court upon the report of the viewers or commissioners is rendered, the company should pay the costs and expenses growing out of the suit.</p>

The facts sufficiently appear in the opinion of the court. I. The “just compensation” to which the defendant was entitled was the value of the land taken without regard to any supposed advantages of the road to the defendant. (Constitution, art. 13, § 7.) II. This value should be assessed by a jury of twelve men. III.

The commissioners appointed by the court to “ assess the damages” sustained, adopted the following rules: “ 1. The commissioners should assess and give damages for the land taken for the road at its market value at the time taken. 2.

Ei'ror to Franklin Circuit Cowrt. I. The right of eminent domain can not be granted to a private person or corporation for private uses. (2 Kent, Com. 889, note and cases cited; 2 Dali. 804.) A railroad company whose road is nowhere by the law declared to be a public road is nothing more than a private person in the law. (Harding v. Goodlett, 3 Yerg. 41; Gardner v. Trustees of Newburg, 2 Johns.

The facts sufficiently appear in the opinion of the court. I. The answer of Menefee was a good defence, and should not have been struck out.

This was an action against the Hannibal and St. Joseph Bailroad Company to recover the value of timber cut and carried away from the land of the plaintiff, Peter Lindell. The jury found a verdict for the plaintiff, and found the value of the timber taken by the defendant from- the land of the plaintiff to be $1554.35. The plaintiff moved the court for judgment for treble the value of the timber as found by the jury.

<p>1. "Where the facts in evidence will warrant it, the court should instruct the jury that they may reject the whole of the testimony of a witness who has wilfully sworn falsely in regard to any material-fact.</p>

<p>1. A writ of quo warranto is a writ of right, and issues- as a matter of course upon demand of the proper officer.</p>

Tin's was an action in the nature of an action of ejectment. The plaintiffs assert title to the tract of land in dispute as heirs of one Henry Clark. The defendant in his answer denies plaintiffs’ title, asserts - title in himself, and sets up the statute of limitations.

<p>1. An indictment, founded on section 28 of article 8 of the act concerning crimes and punishments (B.. C. 1845, p. 404), charging that the defendant, on, &e., at, &c., “ did disturb a congregation of people then and there met for religious -worship, by then and there making an assault upon one H., so near to the place of worship of said congregation of people as to disturb the order of the meeting, contrary,” &c., is insufficient.</p>

Louis Land Court. I. The description of the property was insufficient. II. Blood should have been made a party. He was owner when the demand accrued, when the lien was filed, and when tlie suit was brought. III. No other judgment could have been entered in this case than a judgment against the property. The owner should have a hearing.

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

<p> Appeal from Pike Circuit, Court. </p> <p>I. The court erred in excluding the testimony of Mrs. Whitlock.</p>

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. The evidence tended to show | tenancy from month to month. Defendant was entitled to only a month’s notice to quit. The notice given was sufficient. Even if defendant had been a tenant at will the notice was sufficient.

A suit was instituted in the Marion circuit court for partition of certain tracts and lots of land among the heirs of Pocahontas Sloan, deceased. In this proceeding, John D. S. Dryden, as commissioner appointed by the court, sold to Charles Schwartz and wife and William Lindig a certain lot in the town of Palmyra, 305 feet in width, and 289i feet in length. Said lot had formerly belonged to Samuel 0.

This was an action on a promissory note for $350 executed by defendants.

I. The court erred in giving the instruction asked for by plaintiff. The words alleged in the petition are not of themselves slanderous. There is no allegation that by the laws of Illinois taking or stealing of corn is a crime, and the courts of this state will not take judicial notice of the laws of ano-tlier state regulating tbeir own internal affairs. Nor is there any allegation that he meant by the words used to charge plaintiff with a felonious stealing.

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. The records of the county court, and the approval by said court of the proceedings of the guardian under the order, are the only competent evidence to show that the order of court has been complied with, and parol testimony can not resorted to until it is shown that record testimony has been lost.

<p> Error to Marion Circuit Court. </p> <p>I. The trustees had no right by authority of law to require Morton to curb and pave the streets in front of his property. The street is public property, a matter of public concern, and can therefore be made only by a general tax imposed upon the citizens and proprietors in proportion to the value of their property. The proceedings against Morton, if sustained, would be the imposition of a special and partial tax upon one individual for a public benefit; or, in other words, the taking of private property for public use without just compensation. The legislature has no power to do this, and could confer no such power upon the trustees of the town of Palmyra.</p> <p>II. Morton was never requested to pave and curb. The ordinance can not be construed into a inquisition upon Morton. The notice in the Palmyra Whig is not a sufficient notice to Morton.</p> <p>III. There is nothing in the record showing that the trustees of Palmyra ever paid out money for which this suit is brought.</p> <p>IV. This suit should have been brought by the trustees, and not by the inhabitants as appears by the record.</p>

I. It is the doctrine of this court that motions for new trials arc always addressed to the discretion of the court in which the trial was had. (16 Mo. 393.) But it is submitted that this court is not in this case called upon to control the discretion of the circuit court as to the weight of testimony. That court expressly declined acting upon the question because the judge then sitting was not the judge before whom the cause was tried. II.

<p>1. A material man instituted proceedings by scire facias, under section 8 of tbe “act for securing liens to mechanics and others,” (E. C. 1845, p. 735,) to enforce a lien; the original debtor — the contractor — and the owner of the building were made parties to tire proceeding; the plaintiff dismissed the proceeding as to the debtor; held that, haying dismissed the proceeding as to the debtor, there was no party on the record to defend the suit, and the cause could not proceed against the owner of the building alone.</p> <p>2. The general mechanics’ lien law of 1845 was in force in St. Louis county as far as it was not inconsistent with the local act of 1843.</p>