Volume 26 — Missouri Reports

Louis Circuit Court. I. The court acted improperly in turning the plaintiff out of court and refusing to let the jury pass upon the question of malice. The powers of the surveyor of Illinois and Missouri stand upon the acts of 1816 and 1796. He has power to engage a sufficient number of skillful surveyors as deputies, to cause the lands to be surveyed. He was but the recorder of the surveys and the delineator of the plats of surveys. He has no power to survey himself.

The following is the petition in this canse : “ The plaintiff states that defendant owes him 11012.45 for provisions, boarding and lodging furnished for employees on said road; also for others, at the special instance and request of defendant; also for brandies, wines, hay, straw, ice, clothing, bedding, áttention to persons wounded on said road; also for work and labor done and performed for defendant; also for money paid out and expended for defendant, all at the special…

<p>1. An action upon an administrator’s bond must be brought in the name of the state.</p>

<p>1. To enable the Supreme Court to determine whether error lias been committed in giving instructions to the jury, the evidence must be preserved in a bill of exceptions.</p> <p>2. The insufficiency of an indictment may be taken advantage of in the Supreme Court, although no motion in arrest of judgment was made.</p> <p>3. An indictment charging that the defendant feloniously, wilfully, on purpose and of malice aforethought assaulted C. H. with a loaded pistol, and then and there, with said pistol, feloniously, &c., did shoot said C. H. with the intent to kill him, is sufficient under section 35 of the second article of the act concerning crimes and punishments. (R. C. 1855, p. 565.)</p>

Louis Circuit Court. This was a bill in chancery filed in the year 1845 by Ris-don H. Price against Augustus H. Evans. The heirs of said Price were afterwards made complainants, and certain purchasers from Price were also made defendants.

<p> Error to St. Louis Court of Common Pleas. </p> <p>This was an action on a policy of insurance on the freight list of the steamboat Australia from St. Louis to Port Pierre, on the Missouri river. The policy was made out “ against the absolute total loss of the boat by burning or sinking.” The prayer of the petition was twofold; first, for a reformation of the policy by making it declare the insurance to be “ against absolute total loss only,” and secondly, for judgment as for a total loss.</p> <p>The case was tried by the court sitting as a jury. The court found the facts and rendered judgment thereon for the defendant.</p> <p>I. The policy in question does not contain the terms of the agreement entered into by the parties, but on the contrary contains a clause wholly at variance with the agreement, and if sustained would render the policy utterly valueless to the plaintiffs as a contract of assurance. The clause in the policy declaring the insurance to be “ against the absolute total loss of the boat” was wholly unauthorized and in direct violation of the agreement between the parties. The testimony shows indisputably that the agreement between Able and Risley was that the plaintiff should be insured against a total loss of the freight list. Not one word was said, nor even an allusion made to the loss of the boat. The freight list was the subject insured. The defendant by agreement insured the plaintiffs against loss on their freight list, received their money for the premium, and after this, without the knowledge or consent of plaintiffs, inserted a clause in the policy which was not contemplated and which destroyed the original agreement between the parties.</p> <p>I. There was no case made for reforming the policy. (Lyman v. U. S. Ins. Co. 3 Johns. Ch. 630; Gillespie v. Morn, id. 585 ; Henkle v. Royal Exch. Ass. Co. 1 Yes. 317; Andrews v. Essex E. & M. Ins. Co. 3 Mas. 6.)</p> <p>II. The charter of the company requires all the contracts of insurance to be in writing. If the proof would authorize the court to reform the policy, still the plaintiffs could not have relief, for there is no power in the court to decree that the plaintiffs may recover upon a different contract from that stated in the policy. (2 White’s Lea. Cases in Eq. 571; Miller v. Chetwood, 1 Green Ch. 199 ; Best v. Stow, 2 Sandf. Ch. 298 ; Chetwood v. Brittan, 1 Green Ch. 438; Elder v. Elder, 10 Maine, 80 ; Jordan v. Sawkins, 3 Brown Ch. Cas. 388 ; 1 Yes. 402; Rich v. Jackson, 4 Brown Ch. Cas. 514; Clinan v. Cooke, 1 Sch. & Lef. 22; Woollam v. Hearne, 7 Yes. 516; Dwight v. Pomeroy, 17 Mass. 303 ; Osborne v. Phelps, 19 Conn. 63 ; Brooks v. Wlieelock, 11 Pick. 439; Westbrook v. Harberson, 2 McCord, 112.)</p> <p>III. If the policy is to stand as it is, there can be no recov ery, for there was no absolute total loss of the boat.</p> <p>IY. If the policy is to be reformed, it must read so as to insure against “ an absolute total loss only,” and in that case there can be no recovery, because, 1st, the plaintiffs could not abandon for a technical total loss. (Willard v. M. and Man. Ins. Co. 24 Mo. 561.) 2d, The defendant did not contract that the boat should earn freight within any given time. The plaintiffs were not therefore authorized to abandon the voyage on account of a detention of the boat for a long or shorter period. The plaintiffs took upon themselves the chances of a short or of a protracted voyage. (Jordan v. Warren Ins. Co. 1 Story, 342 ; Anderson v. Wallis, 2 Maulé & Sel. 240.) 3d, The boat was repaired, and re-engaged in business, and for aught that appears might have performed the voyage ; but her owners made no effort to do so. They had no intention of resuming the voyage at all. Its abandonment was their own voluntary act, without any necessity caused by any peril insured against, and by that act they lost all recourse upon the defendants. (Salters v. Ocean Ins. Co. 14 Johns. 138 ; Jordan v. Warren Ins. Co. 1 Sto. 342.) 4th, In order to entitle plaintiffs to recover there must have been a destruction of the voyage, either by the actual destruction of the whole cargo, so that it could not be delivered in specie, or by at least such an injury to the boat as would authorize her abandonment to the underwriters — that is, a technical total loss. There was no absolute total loss within the terms of the policy. (Ogden v. General Ins. Co. 2 Duer, 204 ; Hugg v. Augusta Ins. Co. 7 Howard, 595.) 5th, The plaintiffs voluntarily gave up the cargo to the shippers and allowed it to be sold without demanding any part of the freight, although they were entitled to full freight on all they gave up. This was their own voluntary act, without any legal necessity. By it they put an end to the voyage. By thus relinquishing freight which they might have received they lost all claim on the defendant. The defendant’s contract was to indemnify them against “ absolute total loss only,” and the loss could not be said to have been of that character when they were entitled to freight and voluntarily waived an exaction of it. (Herber v. Hallett, 3 Johns. Cas. 93; G-riswold v. N. Y. Ins. Co. 3 Johns. Cas. 321; Jordan v. Warren Ins. Co. 1 Story, 342.)</p>

This was an action on the following instrument: “West Ely, Mo., December 25th, 1860. Know all men by these presents, that I, William T. Dickson, have this day hired of Mr. L. G-. Caldwell a negro girl named Annie, to have the said girl until the 25th day of December, 1851, at which time said girl to be delivered up to said Oaldwell.

Indictment for selling a commodity to a negro. The indictment charged that “ on the fifth day of June, 1856, and at the said county of Marion, one John Guyott unlawfully then and there being a tavern-keeper, and duly and regularly licensed to keep a tavern, unlawfully then and there did sell to a certain slave — the name of which slave, and the name of tbe owner or master or overseer of which said slave are to the jurors unknown — intoxicating liquor, to-wit, one gill of…

<p>1. Inferior tribunals not proceeding according to the course of the common law are confined strictly to the authority given; it must appear on the face of their proceedings that they have jurisdiction.</p> <p>2. Justices of the peace have no jurisdiction, under the “ act to define the jurisdiction and regulate the proceedings of justices’ courts in cases of breaches of the peace” (B. C. 1855, p. 977), in cases of assault and battery, unless the offence be committed in their respective counties.</p> <p>3. Where, in the case of a prosecution before a justice of the peace for an assault and battery, a conviction is had and the defendant appeals to the circuit court, he is entitled to have the prosecution dismissed if the transcript of the justice does not show that the offence complained of was committed in the county in which the justice held his court.</p>

<p>1.The Supreme Court will not review instructions unless the evidence is preserved in the bill of exceptions.</p>

<p> Error to Lewis Circuit Cowrt. </p>

I. The court erred in striking out defendant’s answer. It set up a good defence. If the answer was insufficient, the court did not exercise properly its discretion when it refused time to answer. It was one of those cases in which the plaintiff would not have been entitled to judgment at the first term. No exceptions were taken to the answer until the last day of the term, though it had been filed for nearly a week.

This was a suit instituted by John Stalcup against William Garner, John M. Garner and others.

<p> Appeal from Jefferson Circuit Cowrt. </p> <p>I. The evidence does not sustain the finding.</p>

<p> Error to St. Louis Court of Common Pleas. </p> <p>This was an action instituted by Peter Wiles against Turner Maddox, sheriff of St. Louis county, to recover possession of two mules alleged to have been wrongfully seized and taken away by the defendant. A delivery bond was given in behalf of defendant. The answer traversed plaintiff’s ownership, and alleged that defendant, as sheriff, seized and sold said mules as the property of D. J. & N. Childs, jr., in obedience to the command of several executions in his hands against said D. J. & N. Childs, jr.</p> <p>At the trial the plaintiff proved that on and prior to the 25th day of January, 1856, he was in possession of the mules, claiming to have bought them of D. J. Childs on the 19th day of January, 1856, and that on said 25th day of January, 1856, the defendant seized them under an execution, took them away and sold them. Plaintiff also proved the value of the mules and of their hire, and rested.</p> <p>The defendant then offered in evidence the record of a judgment in the case of Meegan v. D. J. & N. Childs, jr., et al., rendered October 31, 1855, and also an execution issued thereon dated November 2,1855, with the defendant’s return thereof. The return showed that the mules were levied on and sold under that writ and twelve others, and that the proceeds of the sale were applied towards their satisfaction. To the reading of this record and execution the plaintiff objected. The objection was overruled. The defendant then offered in evidence the remainder of the executions mentioned in his answer. The court excluded them. Some of these executions were placed in the hands of the sheriff before the 19th of January, 1856; some after that date. Defendant then proved that the mules belonged to the firm of D. J. & N. Childs, jr., in the month of January, 1856. On the cross-examination of a witness, plaintiff offered to prove by him that on the 30th day of October, 1855, and ever since that time, the partnership property of D. J. & N. Childs, jr., was not, and has not since been sufficient, to pay the partnership debts of said firm. The court, on the objection of defendant, excluded this testimony.</p> <p>The plaintiff, in rebuttal, read the record, dated January 3, 1856, in the case of Meegan v. D. J. & N. Childs, jr., et al., as follows: “ By consent of parties, it is' ordered that the judgment rendered herein, in October 31, 1855, be set aside as to the defendant Dominick J. Childs, and that this cause be dismissed as to the said Dominick J. Childs.” Plaintiff also offered to prove, by defendant himself, that at the date of the levy by him he knew that said judgment had been set aside as to Dominick J. Childs. The court excluded the testimony. Plaintiff also proved, by Dominick J. Childs, that on the 19th day of January, 1856, he, as one of the firm of D. J. & N. Childs, jr., sold and delivered the mules to plaintiff ; that this sale was made for partnership use; that the consideration paid by plaintiff for said mules was four hundred and fifty dollars.</p> <p>The court, of its own motion, gave the following instructions : “ 7. If the jury believe from the evidence that the clerk of this court on the 2d day of November, 1855, issued the execution read in evidence by the defendant in favor of James Meegan and against Nathaniel Childs, jr., and others; that said executions were received by said defendant as sheriff of St. Louis county on said day and year; that the mules in dispute were owned at said time by Dominick J. Childs and Nathaniel Childs, jr., as copartners, doing business under the name and style of D. J. & N. Childs, jr.; that the defendant, as sheriff as aforesaid, on the 25th of January, 1856, levied upon the said mules as the property of said Nathaniel Childs, jr., to satisfy the said executions ; that when this suit was commenced said mules were in the possession of said defendant as sheriff as aforesaid under said levy, and that at said time the said executions remained in the hands of the said sheriff unsatisfied, then the jury will find for the defendant, if the plaintiff’s title was acquired by purchase from said copartners or either of them subsequent to said November 2d. 8. If the mules in controversy were the property, on the 2d day of November, 1855,. of the partnership of D. J. & N. Childs, jr., then under the judgment and execution issued thereupon there was a lien upon the mules to the extent of the interest of Nathaniel Childs, jr., if he was a member of said firm, from the time said execution came to the hands of the sheriff; and if the defendant as sheriff subsequently levied upon and took possession of said mules under said execution, then the plaintiff can not recover in this action, under the evidence, if he purchased said mules from Dominick J. Childs, the other member of the firm, or from the firm itself, subsequently to the time said execution came,into the hands of the sheriff.”</p> <p>The plaintiff thereupon took a nonsuit with leave to move to set the same aside.</p> <p>I. The court erred in refusing the third, fourth and fifth instructions asked by plaintiff, and in giving, on its motion, those marked seven and eight. Even if it be admitted that a separate execution may be levied on partnership effects, yet it does not follow that the execution is a lien on such property before levy and after the writ has been placed in the hands of the officer. The doctrine laid down by the court below would make it impossible for one partner to give valid title to personal property sold and delivered, if there happened to be in the hands of the sheriff an execution against his co-partner. (1 Mart. & Yerg. 309 ; 7 N. H. 352; 4 Dev. 367 ; 8 N. H. 238 ; 13 Conn. 461.)</p> <p>II. The court erred in excluding testimony offered by plaintiff and in admitting testimony offered by defendant.</p> <p>I. The sheriff under an execution against one partner for his separate debt may seize the tangible property of the partnership, and when he does so he acquires a special property in the goods seized. (Coll, on Part. § 821, 822; Story on Part. § 261, 2, 3, 311; 2 Johns. Oh. 548; 20 Maine, 89 ; 1 Gall. 367.) The execution was a lien on the personal property of all the defendants from the time the same was delivered to the sheriff. (R. C. 1845, tit. Execution, § 16.) The execution under which the sheriff levied upon the mules was against both partners, and issued upon a judgment against both and for a firm debt, and the same being regular upon its face and issued by a court having jurisdiction over the subject matter justified the sheriff in levying upon the said mules. (Higdon v. Conway, 12 Mo. 294.) A sheriff may justify by pleading the execution without showing the judgment. (1 Mo. 246, 94; 4 Mo. 2; 6' Mo. 148 ; 6 Johns. 196; 3 A. K. Marsh. 452; 19 Mo. 319.) It is not the judgment but the execution which creates the lien on personal property. The plaintiff showed no title in himself. He claimed to have purchased the mules from one partner while the execution was in the hands of the sheriff, and there was no evidence showing or tending to show the consent of the other partner to such pretended sale, which was essential to vest title in the plaintiff; for their copartnership business consisted, not in buying and selling mules, but in sawing and dealing in lumber.</p>

Louis Court of Common Pleas. This was an action on a guardian’s bond, brought in the name of the State of Missouri by John Garnett, to the use of Eliza Brent. The bond was executed by Pierce C. Grace, as principal, and by G. W. Goode and I. W. Taylor, as sureties. This was a suit on the bond against A. J. P. Garesché, administrator of said Grace, and against Goode and Taylor, the securities on the bond.

Louis Land Court. In tbe year 1843, George M. Moore made a deed of conveyance, with covenants of indefeasible seizin and of warranty, of certain real estate to one Ashford. In 1845 Ash-ford conveyed with like covenants to one Warren. In 1848 a proceeding was commenced in the St. Louis Circuit Court by A. and B. J. Yancourt to obtain a decree for the specific performance of an agreement made by said Warren to convey said real estate to said Yancourts.

This was a suit to recover a balance alleged to be due to the plaintiff for the construction of the Hannibal, Ralls County and Paris Plank Road. It is deemed unnecessary to set forth the facts adduced in evidence; they sufficiently appear in the opinion of the court.

This was an action of ejectment instituted August 18, 1848. The facts of the case are fully set forth in the report of the case as heretofore decided by the Supreme Court. (See 17 Mo. 71.) Plaintiffs assert title in their declaration to the north half of lot 91 in the town of Louisiana. Plaintiffs (as also the defendants) claim title through Joel Shaw and Samuel K. Caldwell, who were jointly interested in the lot as the original proprietors of the town of Louisiana.

Louis Land Court. This was an action by Maeder against the City of Caron-delet commenced February 5, 1855. On the 8th of August, 1843, Carondelet made a lease of a lot in Carondelet common to John Maeder.

Plaintiff, Frederick Fuhr, set forth in his petition that on the 23d of January, 1854, and for a long time, say two years, prior to that day, he was “ legally in possession, for the purpose of mining of lead ore, of a lot of ground in the Gum Diggings,’ in Washington county, about one mile and a half north-west from Potosi, containing one acre, more or less, and set apart from the adjoining ground by stakes,” &c.; and, for the purpose of exploring said ground and raising…

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

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

The plaintiffs, John H. Sallee and Elizabeth Sallee, his wife, in their petition and the amendments thereto, stated that on the 4th day of January, 1821, Sarah Garnett, the aunt of said Elizabeth, made, in Jessamine county, Kentucky, her deed conveying to Henry Chandler, the father of said Elizabeth, certain slaves, Mary and Levi and the future increase of said Mary, in trust for the use and benefit of said Elizabeth ; she, the said Sarah, reserving to herself in said deed…

Louis Criminal Court. David I. Morrow was indicted at the May term, 1855, of the St. Louis Criminal Court, under the “ act for the entire abolition of lotteries” (R. C. 1845, p. 723), for unlawfully selling, and unlawfully causing to be sold, lottery tickets. Upon the plea of not guilty the jury found a special verdict, which is as follows: “ The State v. D. I. Morrow.

<p>1. Quei-e, -where the petition is in the ordinary form of a petition in trespass, not concluding contra formarn statuti, and not containing a prayer for treble damages, whether a judgment for treble damages under the “ act to prevent certain trespasses” (R. C. 1815) could be supported.</p> <p>2. Where the court in which the cause is tried refuses to treble the damages, the supreme court will not review this action unless the evidence bearing upon the question of “probable cause” be preserved.</p> <p>3. The burden of showing “ probable cause” is on the defendant; but it is not necessary that he should set it up in his answer.</p>

The facts are sufficiently set forth in the opinion of the court.

I. To say of a man that he whipped his wife is not actionable. The first and third counts contain words making this charge alone. Defendant’s fourth instruction should have been given. II. The words as charged must be proved, or a sufficient number of them to contain the charge must be proved. It is not sufficient to prove equivalent words. The court ought to have excluded Burns’ deposition. His statement does not contain the words as charged in the fourth count.

I. The court erred in permitting the bill of review to be entertained and in setting aside the judgment. (R. C. 1855, p. 666, sec. 14.) I. The petition did not state sufficient ground for divorce. A final decree was improperly taken at the first term. The decree for divorce was obtained by fraud. (See Vanmeter v. Jones’ Exec’rs, 2 Green Ch. 523; Loyd v. Mansell, 2 P. W’ms, 73 ; Bradish v. Gee, 1 Ambl. 229; Lamersdale v. Lit-tledale, 2 Yes. 450.)

<p> Error to Clay Circuit Court. </p> <p>I. The court ought to have made a written finding. (Bates v. Bower, 17 Mo. 650 ; 19 Mo. 122; 20 Mo. 262, 132,188, 262.) No bill of exceptions could have been obtained. The finding of the facts is a necessary part of the record. (See Nearns v. Harbert, 25 Mo. 352.)</p> <p>I. The law does not require that the written finding of the court shall be spread upon the record. It could then only become a part of the record by bill of exceptions. There being no bill of exceptions for aught that appears to this court, a written finding may have been made by the circuit court. (Art. 15 of Practice Act, 1849; Lindon v. King, 22 Mo. 336.)</p> <p>II. This court can not look into any case unless it is accompanied by a bill of exceptions. (State v. Weidner, 22 Mo. '327 ; Ames v. Bircher, ib. 586.)</p>

I. The indictment is good. It is not necessary to aver more specifically the kind of liquor sold. (1 R. C. 1855, p. 688, sections 1, 2, of Dram-shop Act.) The offence consists in selling intoxicating liquor without a license. Under a dram-shop license, it may be sold in any quantity less than ten gallons; under a merchant’s license in quantities not less than one gallon. “ Any kind of license” is negatived in the indictment.

I. The sale of spirituous liquor in any quantity and permitting it to be drank at a place under the control of the vendor, is illegal, except it be by one having a license as a dram-shop keeper. (R. C. 1855, p. 688, § 1, 2.) The offence is therefore sufficiently charged in the indictment. I. The only question in this case is, whether the indictment is sufficient.

This cause was removed by change of venue from the circuit court of Greene county to Polk circuit court.

<p>1. After a judgment for costs is rendered against the plaintiff, it would he error to render a final judgment by default against the defendant without Ms appearance and without setting aside the former judgment.</p> <p>2. McAdams v. McHenry, 22 Mo. 413, affirmed.</p>

Clair Circuit Court. I. The court erred in dismissing the cause. The act authorizing the dismissal on payment of costs and attorney’s fee of two dollars is not constitutional. (State y. Sloss, 25 Mo. 291.)

<p> Appeal from Morgan Circuit Court. </p> <p>I. There was no proof whatever tending to show that the slave Grace was assigned to Mrs. Farris as dower in the slaves of her first husband. The first and fifth instructions asked by appellant ought to have been given. They were in the nature of a demurrer to the evidence. The instructions given for plaintiff assume that there was such evidence and are therefore wrong.</p> <p>I. The marriage between Daniel Bankston, the elder, and his wife, the mother and father of Daniel Bankston, the younger, was sufficiently proved, as was the heirship of Daniel Bankston, the younger.' (2 Phillips on Evidence, 286.)</p> <p>II. The administrator of Daniel Bankston, jr., deceased, was the proper person to sue. (19 Mo. 9.)</p> <p>III. Dower may be assigned to a widow by consent as well as by process of law, as was done in this case.</p> <p>IV. The proof shows that the instructions given for plaintiff and those refused to the defendant were properly given and refused, and that the verdict is not for too much.</p>

This was an action commenced before a justice of the peace to recover damages for wrongfully removing a partition or division fence.

jError to Cole Circuit Court. The facts are sufficiently set forth in the opinion of the court. I. The appearance of defendant and his asking leave to file his answer was a waiver of all defects in the writ or return. (1 Comst. 227.) The filing of the answer in accordance with the leave granted was unquestionably a cure of all defects in the sheriff’s return. (Withers v. Rodgers, 24 Mo. 341; Powers v. Bowden, 13 Mo. 154.) II.

The facts sufficiently appear in the opinion of the court. I. The general fee law of 1855 did not repeal the act of 1851. The act of 1855 provides that the fees of circuit attorneys shall be as therein specified “ unless in cases where it is otherwise directed by law.” The act itself seems to contemplate exceptions. The act of 1851 is not of a “ public, general and permanent nature” within section 20 of the act concerning the revised statutes.

This was a suit on a promissory note for $5,532.03 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 the note — by Holly, one of the makers. At the April term, 1857, of the court — the return term — final judgment was rendered against defendants. This judgment was reversed at the July term, 1857, of the Supreme Court.

<p>1. Judgment reversed for want of a finding of the facts.</p>

The county court had power to order the sale of real estate for the payment of debts, and whether the decedent may or may not have made a conveyance of his land in his lifetime, or whether such conveyance was valid or void, is not a question for the county- court to determine, as they, simply to satisfy the demands of creditors, order a sale of all the interest which the intestate had in the land which could be subjected to the demands of creditors.

This was a proceeding instituted in behalf of the city of Boonville under its charter for the purpose of opening and extending Chestnut street in said city over real estate belonging to the heirs of Joseph Ormrod, deceased. A summons was issued for a jury of freeholders to assess the damages and benefits. Notice of the proceeding was given to John M. McCutchen, administrator of said Joseph Ormrod, deceased.

This was an action for goods alleged to have been sold and delivered to the defendant, Mary Beatty. During the pendency of the suit, the defendant intermarried with John Cobb, who was thereupon made a party to the suit. The court, at the instance of defendants and against the objection of plaintiff, instructed the jury as follows: “ 1.

The following is the indictment, the quashing of which constitutes the error complained of: “The grand jurors for the state of Missouri, for the body of the county of Macon, upon their oaths present that Hamilton Hilton, Elijah Levitt, John Baker, John Davatt and William Owens, late of the said county of Macon, on the first day of March, in the year 1857, at, &c., did by force rescue one Christian Comfrey from Allen C. Gunter, by whom he was then and there held in custody…

This was an indictment against James J. Porter for larceny and embezzlement as the agent of the Pacific Railroad. The indictment contained three counts; one for embezzlement, framed on the 39th section of article 3 of the act concerning crimes and punishments (R. C. 1855, p. 579); one for larceny, on section 25 of article 3 of said act, and the third for embezzlement, on section 37 of the act concerning railroad corporations (R. C. 1855, p. 430).

This was an action instituted by Thomas T. Ashby against A. P. Dorris, William Kerr and G. B. Winston.

This was a proceeding by scire facias upon a forfeited recognizance alleged to have been entered into by Robert D. Randolph as principal, and Robert Randolph as security, conditioned for the appearance of the former at the October term, 1854, of the Callaway circuit court. A demurrer to the scire facias was sustained. The supreme court reversed the judgment on the demurrer.

This was an action of forcible detainer. Plaintiff stated in her complaint that on the first day of March, 1856, she was entitled to the possession of a certain tract of land [describing it] “ and the house and appurtenances thereto belonging; and that Andrew K. Bell and James Bell wrongfully and without force, by entering into and upon said premises then held by complainant’s tenant, obtained, and continue in, possession of said premises after demand,” &c. The cause was…

Hockaday obtained a judgment before a justice of the peace against Sandford Jamison in January, 1857, on a promissory note due in July, 1847. An execution issued and John Sallee was summoned as garnishee.

This was an action for the possession of a negro slave named Jim. The plaintiff, Jno.

This was an action upon the official bond of Joseph B. Smith, as collector of Buchanan county, Missouri, for the two years commencing September 1st, 1854, and ending September 1,1856. The bond was dated August 16,1854, and contains the condition required by statute in such case.

This was an action on the official bond of George Merlatt as collector of the revenue of the city of St. Joseph for the fiscal year 1855. The plaintiffs; are the mayor and council-mcn of the city of St. Joseph. The bond sued on is dated April 11, 1855. The fiscal year commenced April 11, 1855, the second Monday of April. Meriatt was collector for the year 1854. The securities on the bond for this year were persons other than the securities on the bond for 1855.

This was a suit for divorce by Henrietta E. Schmidt against Herman P. Schmidt. The cause was tried by the court. The court rendered a decree in favor of plaintiff. In the finding of the facts made by the court it is not stated that plaintiff was the innocent and injured party. It appears from the finding that “ there was no evidence introduced showing the annual income of the party belonging to defendant.” The court found that he had property worth about $1100.

<p> jError to Clay Circuit Court. </p> <p>This was a suit for partition of real estate that had formerly belonged to Christopher Slusher, deceased. The plaintiffs are William H. Hoekensmith and Susannah Hoekensmith his wife, a daughter of said Slusher. Plaintiffs asserted an interest in said real estate on the ground that said Slusher had died intestate as to said Susannah Hoekensmith, not having named or provided for her in a will executed by him and by which the lands in controversy were devised. The court found the facts as follows : “ That Christopher Slusher by his last will and testament read in evidence, dated May 16,1858, and admitted to probate on the 26th day of December, 1853, made a bequest to Harrison Hoekensmith of one thousand dollars in the following -form: I give and bequeath to Harrison Hoekensmith the sum of one thousand dollars that the plaintiff, William H. Hoekensmith, is the Harrison Hoek-ensmith mentioned in the said last will and testament; that the plaintiff, Susannah Hoekensmith, is and was at the date of said last will and testament the wife of the said William H. Hoekensmith, and known to be such by the said Christopher Slusher, and daughter of said Christopher Slusher, deceased ; that the said William H. Hoekensmith on the 13th day of May, 1856, received from the executors of the said last will and testament of the said Christopher Slusher, the bequest of one thousand dollars, and gave them the receipt for the same read in evidence. And the court draws the conclusion of law upon the facts aforesaid that the Christopher Slusher, deceased, did not die intestate as to his said daughter Susannah Hoekensmith, and can not be so deemed ; and that said plaintiffs have not, nor has either of them, any right, title or interest in the land in controversy.”</p> <p>I. Christopher Slusher, having failed to name or make provision for plaintiff, Susannah Hoekensmith, in his will, died intestate as to her. The devise to Harrison Hoekensmith was no provision for Susannah Hoekensmith. (R. C. 1845, p. 1080 ; Gage v. Gage, 9 Foster, 542 ; 18 Pick. 166.)</p> <p>II. The court erred in permitting testimony to be given tending to show that “ Harrison Hoekensmith” is the plaintiff William H. Hoekensmith, the son-in-law of Christopher Slusher and the husband of Susannah Hoekensmith. (Stephens ,v. Walker, 8 B. Monr. 601; 14 Johns. 9 ; Bradley v. Bradley, 24 Mo. 311; Goode v. Goode, 22 Mo. 522; 9 Maryl. 346.)</p> <p>III. The receipt of W. H. Hoekensmith was incompetent evidence. Admissions of the husband are not permitted to affect the title of the wife.</p> <p>I. The receipt was admissible in evidence. The evidence was admissible, tending to show that William H. Hocken-smith was known and called by Slusher and others by the name of “ Harrison Hockensmith.”</p> <p>II. The testator by naming the husband of his daughter thereby sufficiently indicated that said daughter was in his mind at the time he made the will. She was not, therefore, unintentionally omitted. (Long v. Foster, 1 Mass. 146 ; Wild v. Brewer, 2 Mass. 570 ; Church v. Crocker, 3 Mass. 17 ; Wild y. Goss, 14 Mass. 356 ; Merrill v. Sanburne, 2 N. H. 499 ; Wilson v. Fosket, 6 Mete. 400; Block v. Block, 3 Mo. 594 ; Guitar v. Gordon, 17 Mo. 408 ; 9 Conn. 209; 10 Wend. 338; 9 Pick. 176 ; 1 Barb. 155 ; 28-Mo. 316.)</p>

This was an action on a promissory note executed by defendant, Matson, and one Lennox, and endorsed to the Bank of the State of Missouri, the plaintiff.

The facts appear in the opinion of the court. I. The court erred in refusing to vacate and set aside the probate and to delare the instrument of writing not to be a will. It was not a testamentary instrument, nor did it have the requisites or characteristics of a will. (See 1 Jarman, 12; 1 Atk. 269; 8 P. Yms. 337; 7 John. Ch. 57; R. C. 1855, p. 1569; 1 Jarm. 215 ; 13 B. Mo. 307 ; 2 Paige, 396.) I. The instrument in controversy was a testamentary instrument.

This was an action for slanderous words. The slanderous words charged, leaving out the innuendoes, are: “ He stole my cow “Henry Evans stole my cow;” “he had stolen a cow“ he had stolen a cow belonging to the estate of James Franklin“ he had stolen a cow belonging to the estate of James Franklin, deceased.” “ Henry Evans had stolen a cow belonging to the estate of James Franklin, deceased.” The answer denies specifically the speaking of the words charged; and proceeds thus:…

This was an action on several promissory notes. The defendants in their answer admitted the execution of the notes, but set forth at great length the circumstances under which they were executed, alleging that there was granted a privilege of renewing at the maturity, &c. All of this answer, except the admission of the execution of the notes, was stricken out on motion of the plaintiff.

This was an action for slanderous words. The words charged, leaving out the innuendoes, are as follows: “He whipped his mother“ he whipped his mother and-told me so “ one Mr.-told me that he had whipped his mother and left.” The court sustained a demurrer to the petition. The words charged are actionable. The gravamen in an action of slander is social degradation.

This was an action of unlawful detainer. The following is the complaint: “ Plaintiff states that defendant unlawfully detains from him a tract of land belonging to plaintiff, lying in Jackson county, Missouri, described and known as eighty acres of land lying immediately east of the lands of the heirs of Jonathan Colcord, deceased, and immediately east of the dwelling house on said lands occupied by Mrs. Rebecca Col-cord, being the same farm occupied by Robert Daniel, jr.,…

The quashing of the following indictment, which was founded on the act regulating marriages (R. C. 1855, p. 1062), constitutes the error complained of: “The grand jurors for the State of Missouri, <fcc., upon their oaths present, that James P. Alsup on the 19th day of July, A. D. 1856, at the county of Polk aforesaid, was then and there a minor under the age of twenty-one years, and was then and there the son of John P. Alsup, who was then and there the father and natural…

At February term, 1851, of the county court of Saline county, an order was made appointing commissioners to open a certain road. The commissioners made their report at the May term, 1851.

This was an action upon two promissory notes against C. M. Smith and Charles H. Thornton, administrator of F. W. Huffaker, deceased. The notes were alleged to have been executed by Smith and Huffaker as partners, under the name and style of “ C. M. Smith.” Default was taken against Smith. Thornton answered. To show that Huffaker was a partner of Smith, plaintiffs introduced in evidence declarations made by said Huffaker.

This action was commenced January 26, 1853, in the Platte circuit court. It was removed by change of venue to Weston court of common pleas.

I. If tlie plaintiff agreed to wait a year for the repayment of the money loaned, it was evidently upon the condition that the payment should be secured by mortgage upon the land. The court was of opinion that as there was no expressed time proved when tire mortgage should be executed, therefore defendant had the entire year in which to do it. This is not law. The law implied that it should be done in a reasonable time.

The error complained of in this case is the sustaining of a demurrer to the following petition: “ Plaintiff states that said county of Lawrence owes him the sum of $1883.25, the balance due him for building a court-house on the public square in the town of Mount Yernon, in said county of Lawrence, the permanent seat of justice of said county, and furnishing the materials for the building said house; that he built said house under the direction and supervising control of…

I. An appeal lay to the circuit court to reverse tbe informal judgment of tbe county court declaring a non-compliance with the terms of the charter. (Sanders v. Rains, 10 Mo. 173.) The court erred in affirming the judgment of the county court. At the time of the rendition of said judgment said court had no jurisdiction of the persons of said Nuck-olls ; nor had it jurisdiction of the subject matter of the suit, to-wit, the charter.

The following finding of the 'facts sufficiently shows the nature of this suit: “ The court finds the facts of this case to be, that on the 17th day of May, 1854, and for some time prior thereto, defendants, under the name, firm and style of Hovey & Buchanan, were engaged as partners in the practice of law at Independence, Missouri, holding themselves out to the public as qualified- for and engaged in the practice of law ; that it was a part of their business, as such…

This was an action in the nature of an action of ejectment to recover possession of a part — to-wit, north-west quarter and the south-west quarter — of section 9, in township 48, of range 16, in the… Held: the common law prevailed; id est, the party plaintiff must recover upon a strict legal title. In this state it is not so.

This was an action against Elijah Cady on a promissory note for $492.60. On the 17th day of January, 1856, an attachment was issued in aid of said suit, and on the 19th day of the said month it was levied on certain real estate in Weston as the property of Cady.

This was an indictment for selling liquor without a license. It was not stated in the indictment when the alleged offence was committed. I. The indictment is bad. A new trial should have been granted.

This was an indictment against John Stotts and Thomas Stotts for a felonious assault upon one Alexander Smith— John Stotts being indicted as principal in the first degree, Thomas as being present aiding and abetting. I. Thomas Stotts ought to have been admitted as a witness. (1 Arch. C. P. 152-8 ; 2 Ya. Cas. 317.) I. Thomas Stotts was not a competent witness. (State v. Ward, 15 Mo. 128.)

This was an action commenced in April, 1851, against Alvah Jackson and John Spillman on two promissory notes dated January 1, 1840 — one for $44, the other for $44.65— both payable one day after date. The plaintiff by an amended petition introduced another cause of action — a judgment rendered in the circuit court of Allen county, Kentucky, in May, 1839, for 1253.93. This was a judgment by default, and was against William Coleman, Alvah Jackson and John Spillman.

<p> Appeal from Buchanan Court of Common Pleas. </p> <p>This was an action by the administrator of Christian Car-riger to recover certain sums of money alleged to have been received by William W. Whittington, defendant’s intestate, as the agent of said Carriger. Evidence was introduced that in 1846 said Carriger had a pre-emption claim; that he went to California leaving Whittington his agent; that he received the rents accruing, and also sold the claim to one De Witt; that he received in 1847 fifty dollars for rent of this land; in 1848 twenty dollars ; that in 1850 he received from De Witt five hundred dollars, the purchase money agreed to bo paid for the pre-emption claim; that Carriger died in 1846 on the way to California. It did not appear that his death was known to Whittington and De Witt at the time of the sale. The court instructed the jury as follows: “ If the jury believe from the evidence that William Whittington, as the agent of Christian Carriger, received of Neff, in the spring of 1847, fifty dollars, and in the spring of 1848, of Patton, twenty dollars, and in the spring of 1850, of De Witt, five hundred dollars, with interest, for the price of Carriger’s farm, and that the plaintiff, Charles F. Holly, as public administrator of Andrew county, has charge of said Carriger’s estate, they will find for the plaintiff the amount so received by said Whittington.”</p> <p>The court refused the following instructions, among others, asked by defendant: “ 1. Unless the jury believe from the evidence that Christian Carriger was alive at the time William Whittington made the sale and received the money in evidence, they will find for defendant. 2. If the said William Whittington was the agent of Christian Carriger, deceased, and received the money in evidence as such agent, then the jury will find for the defendant, unless the plaintiff has proved that said money was demanded before the commencement of this suit. 5. If more than five years have elapsed since said money was received and before suit, they will find for defendant. 6. If the jury find from the evidence that Carriger merely authorized William W. Whitting-ton to sell for him, the said Carriger, the land mentioned in evidence, then so soon as said Carriger died said Whitting-ton had no further authority to act as such agent; and if he was so dead at the time of said sale then the juiy will find for the defendant.”</p> <p>The court erred in refusing the first and sixth instructions asked by defendant; (Story on Bail. § 488; Hunt v. B,ous-manier, 8 Wheat. 174;) also in refusing the other instructions asked by defendant; (Cocherill v. Kirkpatrick, 9 Mo. 697 ; G-reenl. Ev. 82 — 8 ; 16 Mo. 478 ; Benton v. Lindell, 10 Mo. 559 ;) also in giving the instruction asked by plaintiff.</p> <p>I. The court properly refused the instructions asked by defendant.</p>

This was a suit by Henry County, to the use of the road and canal fund of said county, on the following instrument: “ Twelve months after date, we or either promise to pay Henry County, for the use and benefit of the road and canal fund of said county, the sum of one hundred and fifty-six dollars, for value received, with interest from date.

The following is the petition in this case: “ The plaintiff, William N. Thompson, states that the defendants, W. H. Crutcher, R. M. Crutcher and Robert C. Mosely, on the 25th day of April, 1857, executed to the plaintiff their promissory note, and obligation of said note, binding themselves to pay to the plaintiff $15,500 on the first day of October next following said date, for the consideration and sale and purchase of 540 acres of land.

At the March term, 1857, of the Cooper circuit court, a judgment was rendered in favor of Marshall Shapleigh and Francis J. Eue, against Hemy G. Brent. An execution was issued and William E. Baird was summoned as garnishee. The usual interrogatories were filed.

Samuel Allen presented to the Calloway county court for allowance a demand against the estate of Samuel J. Allen, deceased. Adams, the administrator, was the husband of the widow of said Samuel J. Allen. The demand presented was the balance of an account of the sale of certain slaves belonging to Samuel Allen. The balance claimed was $770 with interest. In the account as presented, however, the interest was not calculated and placed at the foot of the account.

This action was commenced in the year 1850. Plaintiffs are the heirs and widow of J esse Overton.

The defendant, Larkin Packwood, was indicted for the murder of John T. Dougherty. The case was removed by change of venue from the circuit court of Davis county to the circuit court of Caldwell county.

The petition of plaintiff, Thomas Lumley, jr., set forth that on the 31st day of July, 1854, he purchased of defendant, Sidney S. Robinson, two several tracts, [describing them,] one tract containing forty acres, the other containing one hundred and sixty acres; that he paid to defendant one hundred dollars in hand, and executed and delivered to defendant three several promissory notes, each dated July 31, 1854— one for $300, payable December 20, 1854; one for $166.66,…

<p> Error to St. Louis Court of Common Pleas. </p> <p>The object of this action, which was commenced August 21, 1854, is to subject the defendants to personal liability as stockholders of a corporation called “ The St. Louis Marine Railway and Dock Company, established and organized under an act of the general assembly, approved January 18, 1849.” (See Sess. Acts, 1849, p. 144.) The petition sets forth substantially that in and prior to August, 1851, the defendants were, and thenceforward continued to be, stockholders in The St. Louis Marine Kailway & Dock Company, a corporation created by an act of the general assembly, approved January 18, 1849; that at the same time plaintiffs were the owners of a certain steamboat called the James Hewett; that the said corporation was the proprietor of a certain marine railway, dock, &c., and then held itself forth as ready, prepared and furnished with good and sufficient agents, dock, machinery, works and means for raising and repairing steamboats, and especially said steamboat James Hewett; that in consideration of a certain sum said corporation agreed to raise said steamboat free from the water, in the dock of said corporation, in a condition to permit the repairs, and thereafter to deliver said steamboat to the owners thereof again in good and sound condition as received and repaired, and to do the same in a good, safe and workmanlike manner ; that said corporation did not perform its undertaking ; that the steamboat was delivered to the corporation for the purposes aforesaid August 17, 1851; that by reason of the insufficiency of the docks, machinery, &c., and by reason of the want of skill, care and due diligence on the part of said corporation, its agents and servants, the said boat was stove in and broken, and before she was raised out of the water and in a condition to be repaired was precipitated over the side of said dock into the Mississippi river and sunk in deep water, and rendered utterly worthless and totally lost; that on the 25th day of October, in the year 1851, the plaintiffs instituted an action against the said corporation for the recovery of the damages sustained by them by reason of the non-performance of the aforesaid contract; that, in that action they recovered a judgment against the corporation November 23, 1853, for $18,080, which judgment still remains unsatisfied, an execution issued thereon having been returned “ nulla bonathat from the time of the establisment of said corporation, up to and long after the making and breach of said contract as above set forth, the corporation did not, nor did any of its officers, agents or servants, give notice, in any newspaper printed in the county of St. Louis, of all the existing debts of said corporation, as required by law; that by reason of tbe non-performance of the contract aforesaid plaintiffs have sustained damages in the sum of $18,085, for which and interest they ask judgment.</p> <p>Defendants, in their answer, admit the recovery as alleged of the judgment against The St. Louis Marine Railway & Dock Company in the month of November, 1853; admit that upon the rendition of that judgment the relation of debtor and creditor was established between plaintiffs and the corporation; but deny that prior to the rendition of the judgment any such relation existed. They allege that the action resulting in said judgment was brought for the alleged misfeasance, negligence, unskillfulness and remissness of the agents and servants of the corporation in respect of the steamboat James Hewett, which allegation was denied by said corporation, and upon which allegation and denial the issue was joined which resulted in the verdict on which said judgment was rendered. Defendants deny that the liability of the corporation to the plaintiffs for and on account of the sinking of the James Hewett constituted a “ debt” in any proper sense of the term, either popular or technical; and say that it was impossible for the said corporation, in making publication of existing debts, to mention and enumerate among them a claim for damages the legal validity of which the corporation wholly disputed and repudiated; that it appears from the record of the judgment in the case of Cable et ah, v. St. Louis Marine Railway & Dock Company and the pleadings therein, that the said action was not brought upon the con tract between the owners of the James Hewett and the said corporation, but proceeded upon the negligence, misfeasance and unskillfulness of the agents of the corporation ; that all the debts of the corporation existing prior to Jauuary 17, 1852, have been fully paid and satisfied; that upon said last mentioned day, and afterwards in each year during the con tinuance of the corporation to do business and have an office for the transaction of business, the said corporation did give notice, as required by law, of all existing debts of the corporation ; that in 1858 also notice was given as required by law; that in the month of May, 1853, all the property and effects of the corporation, of whatever kind, were sold at public sale to satisfy the debts of said corporation, and all the assets and effects were consumed and exhausted by said sale and in paying said debts; and since the month of May, 1853, the said corporation has had no place of business whatever, nor any property; nor has any board of directors or other officers been since that time chosen to take charge of any of the affairs of said company, nor has said company since that time had any affairs to take care of.</p> <p>The cause was submitted to the court upon the petition and answer and the following agreement: “In this case all the facts set up in the answer respecting the publication of notice by the directors, and the payment of all previous debts by the company (excepting the claim of the plaintiffs for the loss of the James Hewett steamboat) which accrued prior to the 17th of January, 1852, are admitted. It is also admitted that in May, 1853, all the property and effects of the corporation, of whatever kind, were sold at public aution to satisfy the debts of the corporation owing, and that after said sale the said company had no office or place of business, or any election of officers, and has not since that time (May, 1853) done or attempted to do any business as a corporation. And thereupon the cause is submitted to the court upon the pleadings and this agreement, the record in the case of Cable et al., v. St. Louis Marine Railway & Dock Company being also in evidence.”</p> <p>The petition in this action (Cable v. St. Louis M. R. & D. Co.) which was commenced at the February term, 1852, of the St. Louis court of common pleas, set forth that plaintiffs were, in August, 1851, the owners of the James Hewett; that the corporation was the owner of a marine railway and machinery, &c., and held itself out to the public as ready and prepared, &c., for doing the work of raising and repairing steamboats, and especially the James Hewett, which, in consideration that plaintiffs would pay a certain sum, defendant undertook to raise from the water, repair and redeliver to plaintiffs again in good and sound condition as received and repaired, and to do the same in a good, safe and workmanlike manner; that defendant did not perform said promise ; that the boat was delivered to defendant on the 17th of August, 1851; and that, by reason of the insufficiency of their dock and the want of skill and care on the part of the agents of defendant, the boat was broken, stove, sunk and ruined, to the damage of the plaintiffs, &c. The answer of the corporation set forth that the loss complained of arose from inevitable accident and not from any want of skill or care on the part of the corporation or its agents. On the issue thus formed there was a trial, and a verdict and judgment for plaintiffs, which was affirmed by the supreme court. (See 21 Mo. 133.) The judgment was for $18,080, and was rendered November 23,1853.</p> <p>The court held that the plaintiffs could not recover. A motion for a review was made and overruled.</p> <p>The 18th section of the first article of the act concerning corporations, approved March 19, 1845, (R. C. 1845, p. 234,) is as follows: “ Every corporation hereafter created shall give notice, annually, in some newspaper printed in the county where the corporation is established, and in case no paper is printed therein, then in the nearest paper, of the amount of all the existing debts of the corporation; which notice shall be signed by the president and a majority of the directors; and if any of the said corporations shall fail to do so, all the stockholders of the corporation shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such notice shall be given.”</p> <p>I. The 18th section of article 1 of the act concerning corporations is unquestionably in its nature remedial. The familiar principle that remedial statutes are to be liberally construed, to suppress the mischief and promote the remedy, fully applies. The defendants do not deny that there was a contract between the owners of the boat and the company ; but, on the contrary, in stating “ that the action (Cable y. St. L. M. It. & D. Co.) was not brought upon the contract between the owners of the James Hewett and the said corporation,” it is admitted that there was a contract. The gist of the action against the company was the contract of the company. The same contract is also the gravamen of this action. In both the breach of the contract is averred to have resulted from the insufficiency of the docks, machinery, works and means by the company provided, and from the want of skill, care and due diligence on the part of the company and its agents in the premises. In the action against the company, the defendant, not denying the existence of the contract, or its breach, took issue upon this insufficiency, want of skill, &c., and the issue was found against it. It was an immaterial issue, relating merely to the cause of the breach, and not disputing, but admitting, the fact. So in this action, where the contract and the breach thereof are alleged and not denied, it is sought to tender again an immaterial issue in regard to the ground of the recovery against the company. But suppose there was no express contract between the owners of the boat and the company, it is admitted that the boat was delivered to the company to be docked, repaired and redelivered to the owners. The law implied a contract. This implied contract was broken ; whether through malfeasance, non-performance or misfeasance is wholly unimportant.</p> <p>II. Previous to the publication of the required notice the stockholders stood in the position, in law, to the world, of members of an unincorporated copartnership, and were neither guarantors nor sureties, but principals. They were mere individuals, with a corporate capacity for certain purposes, but without the exemption from personal liability usually enjoyed by stockholders in a corporation. The law prescribed the condition on which this position might be changed, viz., the publication of the notice; but they chose not to avail themselves of it. They had it fully in their power to relieve themselves from all personal liability, but they would not. Their incorporation enabled them to carry on, as a corporation, a particular business, to use a given name, to have a common seal, and to do other things in a corporate capacity; but as to those who transacted business with them, and as to the community at large, they were to every intent only persons represented in their individual characters by certain officers and agents appointed and employed by them, and responsible to all parties with whom, through those officers and agents, they contracted. The law never intended to confer on them personal immunity from liability, unless they performed a certain act; but, on the contrary, declares and imposes individual liability up to the time that that act should be done. It is, then, clearly consonant with the letter and spirit of the law that they shall be regarded as principals, and subject to all the responsibility attaching to that character. • (See Allen v. Sewell, 2 Wend. 827; 6 Wend. 335; 2 Hill, 269; 2 Denio, 123; Bailey v. Bancker, 3 Hill, 188 ; Corning v. McCullough, 1 Comst. 47.)</p> <p>III. The demand of plaintiffs against the company was a debt within section 18. In the month of August, 1851, the company was liable to the plaintiffs for the value of their boat. All the facts necessary in law to create and fix this liability existed at that date; it simply remained to fix its amount. This was done by the judgment in November, 1853, which related back to and was based upon the state of facts existing in August, 1851. This liability was, in August, 1851, a debt of the company within the meaning of the statute, and having been contracted before any publication was made as required by the law was binding on the defendants as stockholders. The statute was remedial and requires a liberal construction. The word “ debt” should not be construed in its strict legal sense. The word “ debt” is universally employed as expressing whatever one man owes another in any form of liability arising out of contract. This is its “ general and popular use” — its “ natural, plain, obvious ordinary and familiar signification and import. (See the lexicographers — Johnson, Walker, Barclay, Bailey, Richardson, Webster, Worcester and' Tomlin; Bouvier’s Inst. § 575 ; Gray v. Bennett, 8 Mete. 522.) The law of suits by attachment throws no little light on this subject. The question would necessai-ily arise as to what is a debt that would authorize a suit by attachment. In New York, where the plaintiff was required to swear that the defendant was indebted to him, the court said it did not follow that the demand is to be so certain as to fall within the technical definition of a debt. Being indebted is synonymous with owing. It is therefore sufficient if the demand arise on contract. The court held that an attachment would lie in an action founded on a bill of lading, whether the goods shipped were not delivered or were delivered in a damaged condition. (Lenox v. Howland, 3 Caines, 323; 3 Barb. 229; see also Hunt v. Norris, 4 Martin, 517 ; Peter v. Butler, 1 Leigh, 285 ; Roe-lofson v. Hatch, 3 Mich. 277; also 2 Bell’s Comm. 319.) In Massachusetts, under a statute requiring every corporation to give notice, annually, in some newspaper, of the amount of all assessments voted by said corporation, and actually paid in, and all existing debts, and declaring that if any corporation should fail to comply, the members thereof should be personally liable for any debt then due, the meaning of the word debt was considered in connection with a question of the competency of a witness. The action was in assumpsit, against a corporation, for unliquidated damages for breach of contract. The corporation offered as a witness a person who was one of its members when the cause of action arose ; but it appeared that no notice had been published as required by the statute, and his admissibility was contested on the ground of his personal liability for the demand of the plaintiff against the company. The court held him, for that reason, incompetent as a witness. (Mill Dam Foundry v. Hovey, 21 Pick. 417, 455 ; see also Carver v. Braintree Manuf. Co. 2 Sto. 432.)</p> <p>IY. The judgment obtained by the plaintiffs against the company is the measure of their recovery in this action, and conclusively establishes the amount for which the defendants are liable. (Slee v. Bloom, 20 Johns. 669 ; Moss v. McCul-logh, 7 Barb. 279; Daneby v. Brown, 24 Yerm. 197, 209 ; Bank of U. S. v. Dallam, 4 Dana, 574.)</p> <p>I. The controversy turns entirely upon the meaning of the word “ debt” as employed in the 18th section of the first article of the act concerning corporations. (R. C. 1845, p. 234.) The demands for which, in default of publication, the stockholders are to be made liable, are of the same kind with those of which the publication should take notice, and no others. The word “ debts” is used, de industria, as a less comprehensive word than claims demands, or rights of action; and its meaning, both in popular language and among professional men, is well ascertained as something very distinct from dioses in action. There was no debt owing by the corporation to the plaintiffs on account of the sinking of the James Hewett until the rendition of the judgment on the 23d of November, 1852. No action of indebitatus assumpsit or debt would have lain against the corporation upon the facts stated in the petition filed to the February term, 1852. The contract to repair the vessel was mere inducement. The gist of the action was the malfeasance of the agents of the corporation, and the action was in substance ex delicto. (Acks v. Ball, 14 Mo. 396; Com. Dig. tit. Debt; Chitty on Plead. 374,123 ; 13 Mo. 549.) Until November, 1853, the corporation wholly denied its liability by reason of the matters stated in the petition of plaintiffs, and stoutly contested that liability in a suit at law. The damages claimed for the misfeasance, &c., were in the strictest, sense of the term unli-quidated. To require the directors to acknowledge, and even to proclaim, a debt on account of such an affair, would be equivalent to taking from them all chance of a successful defence. Either the claim of the plaintiffs for the loss of the James Hewett is a debt (prior to judgment) and should be notified as such in its annual advertisement, or it was not such a claim as could be enforced against the stockholders for want of an advertisement during the year preceding the misconduct out of which the claim grew. Publication was duly made in 1852 and 1853, and all demands accruing prior to January 17,1852, had, with the exception of that of plaintiffs, been fully paid. The legal acceptation of debt is a sum of “ money due by a certain and express agreement.” (3 Black. Comm. 154-5.) Debt is by no means so broad a term as demand or claim. A release of all demands or of all claims would discharge all debts but not e converso. (2 Thomas’ Coke, p. 362, note B; Jacob, L. Die. tit. Debt; Bac. Abr. tit. Debt, A.) The idea that until publication the corporators are in the position of an unincorporated company is utterly untenable. There is no color for it. The statutes construed in the cases cited on the part of plaintiffs in error are different from the one now before this court.</p>

<p> Error to St. Louis Law Commissioner's Court. </p> <p>This case is the same case heretofore decided by this court, and reported in 22 Mo. 124.</p>

Louis Court of Common Pleas. This was an action to recover a balance of 1677.50 alleged to be due plaintiff for work and materials furnished at defendant’s request. The cause was tried before a jury, who found for plaintiff and assessed his damages at $751. The court set this verdict aside and referred the cause against the objection of plaintiff. The referee heard the cause and found against the plaintiff.

Louis Court of Common Pleas. This was an action against defendant as endorser of a negotiable promissory note made by Edward Illsley & Co. to the order of defendant, Paul P. Patchin, and by Mm endorsed to Henry Plahto. The note was dated at St. Louis. The de-fence relied on was want of due presentment for payment to the makers.

Louis Cowrt of Common Pleas. I. The instructions given at the instance of plaintiff were improper. They presented issues not made by the pleadings, and were not supported or warranted by the evidence. They were calculated to mislead and embarrass the jury. (19 Mo. 30.)

Louis Land Court. It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

Louis Lato Commissioner’’s Court. This was an action commenced in a justice’s court upon an account filed amounting to thirty-eight dollars. The defendant filed by way of set-off an account amounting to fifty dollars. A trial was had in the justice’s court, which resulted in a judgment against the plaintiff for twelve dollars and costs. An appeal was taken to the law commissioner’s court.

Louis Court of Common Pleas. Demurrer to a petition. Plaintiff stated in his petition that defendant, Eliza Haycraft, by her certain instrument in writing or obligation, “ promised, in consideration of the ser-Tices to be rendered by plaintiff in and. about procuring a commutation of the sentence against her (said defendant’s) sister Sarah, then under sentence to be hung, and for the affection the said defendant bore to her said sister, to pay to plaintiff or order, on…

<p>1. A., in 1826, conveyed to B. all the land embraced in a certain Spanish concession “ except that heretofore sold by the said A.,” and warranted the same free from the claims of himself, and all persons claiming under him except those who then had deeds of record. Previous to the execution of this deed, A. had, in 1818, conveyed to his son C. a portion of said concession. This deed was duly recorded the day of its execution. At the date of the deed to B. in 1826 both A. and B. acted as if the deed to C. had not been in existence ; and by many acts and declarations A. indicated that he intended by the deed of 1826 to convey to B. the land embraced in the . deed of 1818. The deed of 1818 having been discovered to be in existence, A. procured in 1838 a reconveyance from his son C. of the parcel conveyed to him in 1818; this deed of reconveyance was recorded in 1845. In 1845, A. conveyed the land thus reconveyed to him to D. B/s assignees entered into the possession of the tract in 1831, and continued in possession thereof, dealing with the property as their own, until ejected by D. Held, that the deed of 1838 did not enure to the benefit of B.’s assignees; that no estoppel could be worked as against A., B. and his assignees having been guilty of gross negligence in not examining the records to discover what conveyances had been made by A. and placed of record previous to the execution of the deed of 1826.</p> <p>2. The deed of Pierre Chouteau to his son Auguste P. Chouteau, dated September 22, 1818, operated to convey to said Auguste only that portion of Chouteau’s Spanish concession as lay -within the concession as surveyed by the United States; the tract thereby conveyed did not extend to Labeaume’s ditch.</p> <p>3. A warranty is implied in every partition.</p> <p>4. A joint tenant or tenant in common can not purchase in an outstanding ' adverse title and hold the same for his own benefit.</p>

Louis Court of Common Pleas. Plaintiffs, who reside in St. Louis, Missouri, sued Chamblin by attachment, and garnished several insurance companies in St. Louis, debtors to Chamblin. Prior to the commencement of the attachment suit, Chamblin made an assignment, dated February 4, 1857, valid by the laws of Minnesota, to John B. Brisbin, by which among other things he assigned to Brisbin the debts due him from said insurance companies.

<p>1. An alien residing in a foreign country can not take land by descent in this state.</p>

Louis Circuit Court. This was an action, under the act concerning boats and vessels (R. C. 1845, p. 180), by the owners of the steamboat “ Grand Tower” against the steamboat “ C. Bealer,” to recover the value of a barge and 850 sacks of salt lost by reason of a collision of said boat alleged to have been caused by the unskillful and negligent management of said steamboat “ C. Bealer.” The alleged collision took place on the Mississippi river.

Louis Criminal Court. The second instruction, referred to in this opinion of the court, is as follows: “ 2.

Louis Criminal Cov/rt. Stephen H. Houser was indicted in Gasconade county for the murder of William D. Farris. The cause was removed by change of venue to the St. Louis criminal court. At the trial, at the May term, 1857, the deposition of one Mary Henson, taken before the examining magistrate, was read in evidence against the defendant.

Louis Law Commissioner's Cowt. This was an action to recover the value of three head of cattle alleged to have been killed by defendant through the negligence of its agents, in running over them a locomotive. It was further alleged that the cattle were killed at a point on the road where it ran through inclosed fields; that defendant had failed to erect and maintain fences as required by law; that the cattle were killed by reason of this failure.

Louis Land Court. This was an action in the nature of an action of ejectment to recover possession of lots numbered 172 and 173, in the subdivision of Carondelet common, south of the river Des Peres. Suit was commenced June 29,1854. Defendant in his answer admitted possession of so much of said lots as was embraced by United States survey No. 3317, commonly called “ Deschamps’ survey he denied the title of plaintiff.

<p>1. Under the act of December 22, 1824, (R. C. 1825, p. 211,) as well as under-the act of February 6, 1839, (Sess. Acts, 1839, p. 210,) the trustees of the-town of Carondelet had power to make leases of the common of the town;, they might under said act, in accordance with a town ordinance to that effect, make leases containing a clause of forfeiture for nonpayment of rent reserved; such forfeiture, when declared in proper form, could not he relieved against, although no demand of rent had been previously made. (Taylor v. Carondelet, 22 Mo. 105, affirmed.)</p>

Louis Land Cowrt. This was a proceeding to set aside a forfeiture of a lease executed in favor of plaintiff’s intestate, in April, 1846, by the board of trustees of the town of Carondelet.

Louis Land Court. Demurrer to a petition. The plaintiffs are the board of president and directors of the St. Louis Public Schools.

Louis Land Court. This was an action for partition. Plaintiffs assert title to a portion of the premises in controversy under Lambert Sallé, dit Lajoye. Blumenthal, one of defendants, in his answer, denied the title of plaintiffs ; alleged that neither plaintiff nor his co-defendant had ever been in possession of premises in controversy ; that he had been in possession adverse to the world since the year 1847.

Louis Gowrt of Common Pleas. Demurrer to a petition. The petition is as follows: “ Plaintiffs state that said defendants on the 17th day of October, 1853, made their certain promissory obligation, under their hands and seals, which is in the words and figures following, to-wit: ‘ Know all men by these presents, that we, Benjamin P. Hickman and Kobert Fisher, as principals, and James M. Hughes, surety, are held and firmly bound unto Addison L. Hardcastie, George F. Hardcastie…

Louis Court of Common Pleas. This was a suit brought by and on the relation of Adolph Kehr, as administrator de bonis non of Catherine Müller, deceased, against Bidlingmaier and others, securities in the administration bond of Jacob Muller, deceased, who was the administrator of said Catherine up to the time of his death and prior to the appointment of Kehr.

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

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

Louis Court of Common Pleas. This suit against the Globe Mutual Insurance Company was commenced March 27, 1855, The defendant, at the trial, called as a witness W. W. Greene, president of the Globe Mutual Insurance Company, the defendant, who, being examined on his voir dire, stated that he was a stockholder in said company. The court ruled that he was incompetent. It is deemed unnecessary to set forth the facts bearing upon the other questions discussed.

Louis Law Commissioner'’s Court. I. It is the right of the plaintiff to have the law declared. If the law as laid down by the court be such as, on the case made, would not entitle plaintiff to a judgment, it is his undoubted right to take a nonsuit. The plaintiff was deprived of this right by the action of the court. The plaintiff was waiting for the court to decide on the instructions in order to determine whether or not to submit the case on the facts or to take a nonsuit.

<p>Appeal from St. Louis Circuit Court.</p> <p>The facts are sufficiently set forth in the opinion of the court.</p> <p>cited 16 Mo. 532; 1 Dev. 456 ; id. 310; 4 Dev. 512; 16 Ala. 343; 17 Ala. 726; 1 Ired. Eq. 423; 9 Ves. 98; 1 Eden, 223; 3 How., Miss., 394; 3 P. Wms, 197; 2 Atk. 206; 5 Johns. Oh. 196 ; Marmaduke v. McMaster, 51.</p>

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. I. The court erred in striking out the demurrer to the quo warranto. The demurrer was well taken and should have been considered and sustained. II. The court below, by overruling the motion for judgment, interposed by the relator to the plea of appellant, adjudged and determined judicially that such plea was a good answer to the proceedings on the part of the relator.

Louis Land Court. This was an action of unlawful detainer. The only question for determination is whether a certain lease created a term for fifteen or sixteen years.

Louis Land Court. This was an action for partition. The commissioners appointed to make partition made their report to the court. The plaintiff moved the court to dismiss the suit at his costs ; which motion the court granted, and the plaintiff accordingly took a nonsuit. The defendants resisted the action of the court in permitting plaintiff to take a nonsuit. I. Plaintiff could not, without the consent of the defendants, dismiss the cause after it had progressed so far.

Louis Land Court. This was an action for partition of certain premises in the city of St. Louis. The petition asserts a common title in said premises in plaintiff, Hilary Durham [alias Dearing] and in the defendant, his mother, Henny Durham. Both plaintiff and defendant are free persons of color. Plaintiff claims title in himself and asserts the same in defendant, by descent, through Matilda Durham, a sister of plaintiff and daughter of defendant.

Louis Court of Common Pleas. This was an. action on a bond executed by defendants in a suit, under article 8 of the practice act of 1849, for the possession of a horse. Heckwolf and Kuhn, two of the defendants in the present suit, sued Berghoff for the possession of said bond. They gave the customary bond required by section 3 of said article 8, and the horse was given into their possession. When the cause came on for trial said plaintiffs voluntarily took a nonsuit.

Louis Criminal Court. This was a prosecution before a justice of the peace, for an assault and battery. The following is the complaint upon which the proceeding was based: “ State of Missouri, county of St. Louis, ss.

Louis Land Court. This was an action to redover damages for an alleged breach of a covenant contained in a deed from John E. Darby, defendant,- to the plaintiff, D. H. Armstrong, dated July 16, 1845. The petition set forth the deed from Darby in hose verba, whereby, in consideration of $1200, he did “ grant, bargain, sell and convey” to Armstrong certain real estate in St. Louis county.

Louis Court of Common Pleas. The steamboat Navigator was seized and sold, in a proceeding in the St. Louis court of common pleas, under the boat and vessel act. Publication was made, in accordance with the requirements of the statute, to all creditors having claims against said steamboat to file and prove their demands in said court of common pleas.

Louis Gircuit Gowrt. Friede, the defendant in this case, was the owner of a building in course of erection by one Jeter, a contractor. Rippey, plaintiff, furnished materials to said Jeter. The ground of this action is an alleged promise by Friede to pay, out of moneys in his hands due to Jeter, the value of such materials in consideration that plaintiff would not encumber the building with a lien under the mechanics’ lien law.

Louis Land Cowrt. Harley, plaintiff in the present action, instituted a proceeding under the St. Louis landlord and tenant act of 1845 (R. C. 1845, p. 1101) and the amendatory act of March 10r 1849 (Sess. Acts, 1849, p. 65), to obtain restitution of certain premises for tlie alleged nonpayment of rent to the amount of one hundred and fifty dollars.

Louis Land Cowrt. This was an action of unlawful detainer. It appeared in evidence that the plaintiff had leased the premises in controversy to one Heitzig in 1846. Defendant admitted that he was in possession thereof under and by virtue of said lease. Plaintiff claimed that there was a forfeiture of said lease. Plaintiff was a person of color.

Louis Law Commissioner’s Court. This was an action for work and labor and materials furnished. It was originally commenced before a justice of the peace. At the trial the defendant offered in evidence a receipt purporting to be a receipt in full. The plaintiff objected to the reading of the receipt until certain alleged alterations and erasures were explained. The court desired for its own information evidence to be given in reference to the alleged alterations.

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

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

Louis Circuit Court. This was an action for divorce commenced May 1, 1852. The ground of the action was such cruel and barbarous treatment as to endanger the life of the plaintiff, the husband, and the offering of such indignities to his person as to render his condition intolerable. Particular acts of violence were alleged«extending through a period of time commencing in May, 1848, and ending April 29, 1852.

Louis Land Court. This was an action for partition. William Christy died in the year 1837 possessed of numerous and valuable lots and tracts of land.

Louis Court of Common Pleas. This was an action (commenced February 18, 1856) against John Hogan on a judgment rendered in a municipal court of the city of Alton, in the state of Illinois, in the month of October, 1838, against said Hogan and one W. G Pinckard.

Louis Circuit Court. This was an action (commenced September 25, 1855) against Turner Maddox, sheriff of St. Louis county, to recover possession of a stock of drugs, medicines, &c., in possession of said Maddox by virtue of a levy of an execution against one William L. Maddock. Zeigler, plaintiff in the present suit, claimed title to said stock of drugs by virtue of a deed of trust executed by said Maddock to secure certain promissory notes.

Louis Land Court. The following is the recognizance mentioned below in the opinion of the court: “ We, the undersigned, Louis Mon-treil, as principal, and Antoine Fortay, Antoine Pelcher, Joseph -, acknowledge ourselves indebted to Maria Smith and others, the plaintiffs in this suit, in the sum of one hundred dollars, to be void upon condition: Whereas Louis Montreil and Louis Lauvalette have appealed from the judgment [of] Silas W. Barnett, a justice of the peace within and…

<p>1. To maintain an action of forcible entry and detainer, it is not necessary that the plaintiff should prove an entry by the defendant with actual force : there may be a forcible entry in the sense of the statute without the use of violence or of threats.</p>

Louis Land Gowrt. I. The defendant acknowledged plaintiff as his landlord. The offer to pay rent is such an acknowledgment. The fact that plaintiff did not consider the sum offered a fair rent for the premises and therefore refused it, does not change the defendant’s position as the tenant of the plaintiff. (See 26 Term. 192; 17 Wend. 473 ; 10 Mctc. 298.) cited Hatfield v. Wallace, 7 Mo. 113; Holland v. Reed, 11 Mo. 605.

Louis Court of Common Pleas. This case has heretofore been before this court. (See report of decision 20 Mo. 494.) This was an action on the following promissory note: “ 14,138.50. St. Louis, October 1, 1848.

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court. I. There was no evidence whatever against Shinkle and Jackson. The court ought to have directed the jury to retire and find a verdict for each of them, as requested at the close of plaintiff’s case. (See Bald. C. C. 533 ; 22 Mo. 351; 8 Mo. 26; Wood v. Mathias, 21 Mo. 308 ; Young v. Croughton, 17 Mo. 367 ; Brown v. Lewis, 25 Mo. 335.) They were made parties to stifle their evidence. II.

Louis Circuit Court. On the final settlement of the executors of Isaac McHose, his eldest child, Mrs. Margaret Rose, and her husband, filed their petition for the distribution to them of one-sixth of the estate (consisting entirely of money and notes) of the decedent. The probate refused this prayer, and Rose and wife appealed to the circuit court.

Louis Law Commissioner’’s Court. The plaintiff asked the court to instruct the jury as follows : “ 1. If the jury believe from the evidence that Chil-ton and his wife separated and that during said separation her husband made no provision for her maintenance, and that the claim in controversy was for necessaries suitable to her condition in life, they will find for the defendant. 2.

Louis Law Commissioner’s Court. I. The writs issued by the justice were nullities, being made returnable in nine days after their date, instead of in not less than fifteen days. (See Sess. Acts, 1847, p. 87, \ 1.) The act of 1847 is still in force. (R. C. 1855, p. 1027, § 28.) There was no such appearance in the cause as would preclude the defendant from objecting to the irregularity of the summons. The cases cited by counsel for the defendant in error are inapplicable.

<p>1. If a new trial bo sought on the ground of newly discovered evidence, it ought to appear not only that the evidence so discovered is material, but that it is of such a character that it would, if introduced, probably produce a different result.</p>