Volume 27 — Missouri Reports

Louis Criminal Court. John Dalton and Michael Gaughy were jointly indicted for a felonious assault, with intent to kill, upon one Charles llauf-meister.

Louis Gowt of Common Pleas. This was an action for .the possession of an omnibus. The cause was tried by the court without a jury upon an agreed statement of the facts, of which the. following is the substance : Plaintiffs purchased the omnibus mentioned in the petition, of the-value of five hundred dollars, of John Stephenson, in New York, and instructed him to ship it to them at St. Louis, Missouri.

Louis Land Court. The plaintiff, Virginia King, sets forth in her petition that she inherited from berm other Genevieve Howard an interest of one-eightli in a certain lot in the city of St. Louis ; that she was entitled to one-eiglith on the 28th of August, 1846, and the other children respectively one-eiglith ; that on said 28th of August, 1846, “ she was induced to make an arrangement with the defendant, Louis Howard, by which she conveyed to him her interest in said lot…

<p>1. Instructions should not be given unless supported by the evidence.</p>

Louis Cowrt of Common Pleas. This was an action for an assault and battery. On the first trial of the cause the jury gave a verdict in favor of the plaintiff and assessed the damages at the sum of two thousand dollars. The supreme court granted a new trial on the ground of the excessiveness of the damages. (See Report of case, 22 Mo. 170.) On the new trial the evidence showed a permanent loss of one eye.

Louis Circuit Cowrt. Plaintiffs commenced a suit by attachment against Edward St. Michel. Eraneis A. Hunt interpleaded, claiming the property attached by virtue of a deed of assignment executed by said St. Michel for the benefit of his creditors. Said Hunt had likewise interpleaded in various other attachment suits commenced by parties other than the plaintiffs in this suit.

Louis Circuit Court. The city of Carondelet recovered two judgments in the St. Louis circuit court — one for $366.66 against John F. Barada as principal, and Alexander Desnoyer and Etienne Hebert as sureties, on an official bond executed by them — the other judgment being for $1263.64, against said Barada as principal, and Alexander Desnoyer and Antoine Chouquette as securities, on another official bond.

<p>1. Where a builder contracts to build a house, he can hare no lien for services rendered in superintending his own workmen.</p>

Louis Comb of Common Pleas. Roger C. McAllister and Thomas O’Elaherty, partners, obtained a judgment against John Lowrie, Patrick Dennin, and David E. Rees, for the sum of $2100.94.

Louis Circuit Court. On the 22d day of June, A. D. 1850, letters of administration were granted to Thomas Harney upon the estate of Milton Duty. On the 5th of March, 1856, the probate court revoked the letters for the reason that a will was produced and admitted to probate. Harney appealed from the judgment of the court revoking hi&letters. The circuit court, on appeal, rendered its judgment revoking said letters, and from that judgment Harney has appealed to this court.

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

Louis Land Court. This case has heretofore been before the supreme court. For the report of the decision of -the supreme court see Des-saunier v. Murphy, 22 Mo. 95. In addition to the facts in evidence on the former trial, Henry W. Williams was examined as a witness in behalf of defendant.

,Si. Louis Land Cowrt. This was an action of ejectment to recover possession of a portion of a lot in the Cul cle Sac common field near St. Louis. Plaintiffs claim title under the legal representatives of Joachim Roy, to whom they allege the lot was confirmed by act of Congress of June IB, 1812. The defendants, in addition to a formal denial of the facts stated in the petition, set up the statute of limitations as a bar.

Louis Court of Common Pleas. This was an action by Andrew J. Coons and Isaiah C. Brown against William North, to recover money paid by mistake. The court found the facts as follows: “ George Smith, on the 14th of November,. 1851, executed the deed of trust in plaintiff’s petition described for the purpose of securing to the defendant the payment of the sum of $538.96.

Louis Land Court. The object of this suit was to compel the trustees under a deed of trust to advertise and sell the premises described therein, and to apply the proceeds in payment of certain promissory notes alleged to be secured by said deed.

Louis Court of Common Pleas. This was an action of ejectment to recover an undivided three-tenths of so much of a tract of three by forty arpens in the “ Grand Prairie common field” of St. Louis as the defendant should be shown to be in possession of. Plaintiffs claim title as the legal representatives of widow Hebert, to whose representatives the said lot was confirmed by act of Congress of April 29, 1816.

Louis Court of Common Pleas. This was an action to recover damages for the loss, through the negligence of defendant, of a barge belonging to the plaintiff. The barge was lying at the wharf in the city of St. Louis, and was struck by a ferry-boat belonging to defendant.

Louis Law Commissioner’’s Court. This was an action (originally commenced before a justice of the peace) on a due bill or non-negotiable promissory note • for one hundred dollars executed by defendant Schneider in favor of one George Woldsmith and assigned by said Wold-smith to the plaintiff, Bersch. At the trial the plaintiff introduced in evidence the note and proved the assignment to himself.

Louis Court of Common Pleas. Smith Baldwin and John C. Bredell were partners in trade. John 0. Bredell died January 5th, 1853, leaving a will, which was duly admitted to probate, by which Edward Bre-dell was appointed his executor. Said Edward Bredell received letters testamentary, dated January 15, 1853. On the 6th of April, 1853, he gave bond as surviving partner under sections 59 and 51 of the first article of the administration act of 1845, (see B,.

Louis Circuit Court. Francis Timmerman made an assignment of his effects to William Muir for the benefit of his creditors. In the schedule annexed to this deed the claim of the plaintiffs is thus described: “ Names — Messrs.

<p>1. An application for a new trial on the ground of newly discovered evidence should, as a general rule, he accompanied by the affidavit of the party seeking the new trial; the affidavit of a third person should never be received without an explanation of the reason why the party himself omitted to make it.</p>

Louis Land Cowrt. The petition in substance sets forth that on the 14th day of August, 1855, plaintiff was the owner of a certain lot in the city of St. Louis; that he held the same subject to an encumbrance by deed of trust to secure two notes — one for $616, payable in twelve months — the other for $682, payable in twenty-four months from date ; that when said note for $616 became due he was unable to pay the same ; that McMurray loaned plaintiff $300, plaintiff agreeing…

<p>1. It is no infringement of that provision oE the constitution giving the accused the right in all criminal prosecutions to meet the witnesses against him face to face to receive in evidence against the defendant in a criminal prosecution a deposition taken before the committing magistrate in the presence of the accused — the deponent being dead at the time of trial.</p>

Louis Court of Common Pleas. I. The court should have given the instructions asked by defendants. II. The verdict was against the evidence in the case. III. The court should have granted a new trial on the ground of surprise as fully disclosed in the affidavit. (2 E. C. 1855, p. 1285, art. 18, § 3 ; 3 Graham & Wat. on New Trials, 875.)

<p>1. An action for use and occupation can not be maintained unless the relation of landlord and tenant exists between the parties founded on an agreement express or implied.</p> <p>2. A bathing tub and lead water pipes fastened to the walls and floor of a building by nailing are fixtures as between a vendor and vendee.</p>

Louis Court of Common Pleas. The case has heretofore been before the supreme court.. Por a statement of the facts see the report of the decision of the supreme court, 22 Mo. 587. On the second trial the-plaintiff, Louis G-.

Louis Lcmd Cowt. The amended petition in this case states that the defendant, Stillwell, entered on certain premises in St. Louis as the tenant of the plaintiff Ridgley; that he continued to occupy the same during the year ending February 15,1857, and was indebted to the plaintiff for the use and occupation thereof for the year aforesaid; that when the defendant took possession he agreed to pay the plaintiff rent therefor, and by virtue of said tenancy and agreement became…

Louis Land Court. This was an action commenced by scire facias to enforce a mechanic’s lien upon a house and lot.

Louis Cou/rt of Common Pleas. This was an action in behalf of Elvira Barbee to recover damages for an alleged unlawful seizure by defendant Wimer, as sheriff of St. Louis county, by the order and direction of the other defendants, of a negro slave alleged to be the sole and separate property of said Elvira Barbee.

Louis Court of Common Pleas. Demurrer to a petition. John Magwire is plaintiff and William S. Allen, administrator of Elisha Hall, deceased, defendant. The facts as they appear in the petition are substantially as follows: Elisha Hall died in the year 1854, testate. The executors named in his will failed to qualify and the defendant Allen became administrator of his estate.

Louis Court of Common Pleas. This was an action on a policy of insurance against fire.

Louis Land Court. The object of this action is to charge the separate estate of Cornelia Wilson, wife of John D. Wilson, with the payment of certain specific sums of money alleged to have been fraudulently taken and applied by the said John D. Wilson in payment of debts due by the wife in respect of her separate property.

Louis Court of Common Pleas. This case has heretofore been twice before the supreme court. (See 19 Mo. 529 ; 22 Mo. 569.) On the last trial the court, among other instructions given and refused, gave the following at the instance of the plaintiffs: “1.

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

Louis Law Commissioner’s Cowrt. This was an action to recover the value of services rendered by plaintiffs, as attorneys at law, in the examination of the title to certain real estate and in the drafting of a deed of trust. The evidence tended to show that defendant applied to one McKnight for a loan of money on real estate; that McKnight referred defendant to plaintiffs for an examination of the title to the said real estate; that plaintiffs made such an examination.

<p>1. It is the settled practice of the supreme court not to interfere with the verdicts of juries because they are against the weight of evidence.</p>

Louis Court of Common Pleas. The petition in this case states that on the 28d of April, 1849, plaintiff entrusted to one Andrew Duhring, who was then on the point of departing to California, an amount of jewelry of the value of $1,556.67 ; that on or about said date said Duhring started for California; that he died before reaching Sacramento city; that the jewelry was delivered to certain auctioneers in Sacramento city, who sold the same on account of whom it might concern;…

Louis Circuit Court. The petition in this case is as follows: “ Plaintiff states that he was the owner of a slave named David, aged about twenty-three years, a slave for life and dark copper color; that heretofore, to-wit, on the 31st day of October, 1854, the plaintiff delivered said slave to the defendant for safe keeping, and for which the plaintiff agreed to pay the defendant thirty cents per day, including the board of said slave; that said slave has never been…

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

, Louis Court of Common Pleas. This case has heretofore been before the supreme court. (See 21 Mo. 211.) The plaintiff introduced in evidence a letter of defendant, which is as follows: “ St. Louis, February 7, 1852.

Louis Law Commissioner's Court. Wegman, a constable of St. Louis township, in obedience to a writ of attachment issued by John Black, a justice of the peace in and for said township, seized as the property of Snead a wood-boat lying at the wharf in St. Louis. The justice afterwards, on the petition of said constable, ordered said boat to be sold as perishable property. The boat was sold under this order for $100.

Louis Court of Common Pleas. Pearce instituted a suit by attachment against James a-„¿d Henry Burns (the latter of whom died pending the suit), *ff the firm of Burns & Bro., on two promissory notes. Eoberts- and Kerr were summoned as garnishees. They answered denying all indebtedness to Burns & Brother. On the trial of this issue the plaintiff introduced the following memorandum: “ Warsaw, Benton Co., Mo., January 24,1854. Ee-ceived of Messrs.

Louis Land Court. Plaintiffs in their petition (filed September 19, 1855) alleged an indebtedness on the part of defendant for lumber furnished to defendant for the construction of a certain building in the city of St. Louis. The plaintiff prayed judgment for the amount of the alleged indebtedness and also that execution might issue against the building, against which it was alleged plaintiffs had filed a lien demand. The suit was commenced in the circuit court.

Louis Circuit Court. This was an action by Charles S. Hempstead against John D. Wilson, administrator of the estate of Thomas Hempstead, deceased, and John Biddle.

Louis Cowt of Common Pleas. The defendant’s offer to prove a custom, as appears from the bill of exceptions, was as follows: “ The defendant then offered evidence to show, that, under bills of lading similar to the one offered in evidence by the plaintiff, it was the nsnal and general custom, upon the arrival of boats at Cairo, Ill., from New Orleans, with cargoes for St. Louis, and the condition of the river was such that the boats could hot reach St. Louis, to reship the…

Louis Land Court. This case bas heretofore been before the supreme court. (See 19 Mo. 496.) Plaintiif seeks to recover in this action a lot in the city of Carondelet, in block No. 53. The lot sought to be recovered is seventy-five feet front on Second street by one hundred and sixty feet in depth, and is a part of the south-east quarter of said block as surveyed, its northern line being the line of division between the north-east and the south-east quarters of said block.

Louis Land Gowrt. This was an action to recover possession of part of a tract of six by forty arpens, alleged to have been confirmed to J. B. Gamache, sr., or his legal representatives, by act of Congress of June 13,1812. The land sought to be recovered lies within the United States survey of Carondelet common. Defendant claims title under the confirmation of the common of Carondelet. The titles aro the same in general as in the case of Gamache v. Piquinot, 17 Mo. 315.

Louis Land Court. This was an action in the nature of an action of trespass quaere clausum fregit, instituted September 26, 1856, to recover damages for an alleged wrongful entry upon certain premises described as block No. 3 in. N. P. Taylor’s addition to St. Louis.

- Louis Land Court. This was an action to recover possession of three fifty-fifths of a tract of land confirmed to Leon N. St. Cyr. There was a recovery had as to one fifty-fifth of said tract of land in behalf of Yirginia Christy, one of the plaintiffs. The other plaintiffs were cut off by the rulings of the court on the statute of limitations. With respect to said Yirginia, it was admitted that if she was entitled to recover she was entitled to recover one fifty-fifth part.

<p> Appeal from Pulaski Circuit Court. </p> <p>cited Franse v. Owens, 25 Mo. 329; Rutherford v. Wimer, 3 Mo. 12.</p>

I. The court properly assessed the damages and rendered judgment at the first term. . (20 Mo. 96; R. C. 1855, p. 356, 1222; 24 Mo. 27; 6 J. J. Marsh. 354; 4 Monr. 415 ; 1 B. Mon. 150 ; 22 Mo. 433 ; 6 How. Pract. R. 326.) II. The attorneys who filed the motion, in the name of defendant, to set aside the judgment and quash the execution, had no right to appear for the defendant or to make any such motion. (Keith v. Wilson, 6 Mo. 435 ; 3 Monr. 190.)

I. The court erred in not permitting defendants to amend their pleading so as to include the sum of sixty dollars proven to have been paid on said notes. I. The court had no right to allow the amendment. It was proposed after the evidence was closed, and changed the defence in matter of substance.

<p>1. In cases commenced since the revised code of 1855 went into effect, (May 1, 1856,) the courts are not authorized to mate findings of facts; if made, they do not form part of the record, and -will not he regarded hy the supreme court for any purpose.</p>

I. The court erred in overruling the motions to quash and in arrest. (State v. Brown, 8 Mo. 210 ; Neals v. State, 10 Mo. 499; State v. Black, 9 Mo. 681.) The indictment must negative every license specifically authorizing the sale of intoxicating liquors; (State v. Haden, 15 Mo. 447;) also every other legal authority for selling. (24 Mo. 363 ; State v. Sutton, 25 Mo. 300; see also 1 R. C. 1855, p. 685.) I. The indictment was good.

I. Both counts in the indictment are bad. The motion to quash should have been sustained. II. The instructions on the part of the State were wrong, and those asked by defendant should have been given. I. The indictment is sufficient. (R. C. 1855, p. 631, sec. 36 ; State v. Buford, 10 Mo. 703 ; State v. Sutton, 24 Mo. 377.) The instructions given to ■ the jury presented the law of the case fairly to the jury. The instructions refused were not the law.

This was an action to recover possession of a tract of one hundred and sixty acres of land. In support of her title the plaintiff introduced in evidence, against the objection of defendant, an exemplification of a patent to one Aaron Dresser certified by the Commissioner of the General Land Office. Certain preliminary proof was offered and received with a view to show the loss of the original.

<p> Error to Buchanan Cowrt of Common Pleas. </p>

It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court. cited 2 Story Eq. § 1050, 1201-1211, 385, 428, 489; Kent, Comm. 305-6; 2 Mo. 109 ; 15 Mo. 370 ; 21 Mo. 331; 1 Stark, on Ev. 74; 1 Greenl. Ev. § 27, 204; 19 Mo. 204; 14 Mo. 488; 2 Smith L. Cas. 544.

A judgment was rendered by a justice of the peace against one Rasb. On the 2d of March, 1858, an execution was issued by said justice on said judgment. On or about the 27th of March, the constable returned said execution endorsed “ no goods and chattels found,” &c. On said 27th of March, an execution issued from the office of the clerk of the Atchison circuit court upon a transcript of the said judgment, returnable to the April term, 1858, of said court.

This was an action upon a negotiable promissory note for $1,500, dated May 8, 1857, made by W. W. Norris and John Taylor in favor of said Norris, and endorsed by Norris to plaintiff Trigg. Norris failed to answer. Taylor answered denying the execution of the note sued on.

This was an action of unlawful detainer. In the complaint, in the justice’s docket, and throughout the proceedings, the cause was entitled as follows: “ George W. Eurgu-son and John Brock, to the use of Thomas J. Ham, Hilliard Hicks, Alexander Hale and James E. Wilcoxen, plaintiffs, against Reuben Basket and Moses Lewis, defendants. Unlawful detainer.” Judgment was rendered in favor of plaintiffs by the justice of the peace before whom the proceeding was instituted.

This was an action of forcible entry and detainer brought by plaintiffs, as trustees of school district No. 2, of township 48, range 17, in Cooper county, to recover possession of a lot of ground with a school-house thereon.

<p> Appeal from Greene Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>cited Hays v. People, 1 Hill, 853; State v. Chandler, 24 Mo. 372; State y. Smith, 2 Humph. 458 ; 11 Ired. 476.)</p>

This case has heretofore been before the supreme court. (See 25 Mo. 857 ; 26 Mo. 186.) A former judgment in said cause was reversed at the January term, 1858, of the supreme court. The mandate and opinion of the supreme court were received by the clerk of the Andrew circuit court after the commencement of the April term, 1858, of said court. The clerk, of his own motion, docketed the case on the third day of the term.

This was an indictment for obstructing a public road. The court gave the following instruction at the instance of the prosecution: “ If the jury believe from the evidence that before the 1st day of May, 1856, the county court of Dallas county had made an order establishing a county road in the county of Dallas and had directed the same to be opened and described as alleged in said indictment, and that the same had been opened, and that the defendant since the 1st day of May,…

This was an action for malicious prosecution. The petition set forth that defendants knowingly, wilfully, and maliciously went before a certain grand jury and caused and procured plaintiff to be indicted for the crime of perjury, without then and there having probable cause, &c. On the trial, the plaintiff introduced one T. W. Cunningham as a witness, and proposed to prove by him that he was a member of the grand jury that indicted plaintiff; that defendants went before said…

<p>1. Judgment affirmed because no exceptions were taken to the admission or exclusion of evidence, and no instructions asked, given or refused.</p>

Andrew Johnson furnished materials for and performed work and labor on a house belonging to John McHenry. He filed his lien on the 16th of January, 1855. On the 1st of February he commenced the present suit against said Mc-Henry, in the ordinary form, on an account for materials furnished and work and labor done. The petition contained no prayer for a special execution against the building upon which the labor, &c., had been expended.

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

This was an indictment for selling liqnor without license. The defendant pleaded a former conviction for the same offence. The cause was tried by the court without a jury. The court found the defendant guilty as charged. The court refused certain declarations of law, the erroneous character of which is apparent from the opinion of the court. cited Greenl.

. This was a suit by attachment against W. W. Norris. One Harvey Bunce was garnished as having in his hands funds belonging to defendant Norris. Upon the trial of the issue raised as between the plaintiff and the garnishee, the plaintiff adduced in evidence two deeds of trust executed by Norris to Bunce as trustee. Plaintiff contended that these deeds were fraudulent in law on their faces as to creditors. The court ruled that said deeds were fraudulent in law.

This was a suit by attachment upon a promissory note executed by John K. Kerr, dated February 20, 1845. A negro woman and her two children were attached as the property of said Kerr. Francis P. Penniston interpleaded, claiming said slaves as trustee for Mrs. Kerr, by virtue of a deed executed by Robert P. Penniston, the father of Mrs. Kerr. This deed was dated February 28, 1843.

Barbara Price and George 0. White entered into the following agreement to submit a matter in difference between them to arbitration: “ Know all men by these presents, that we, Barbara Price and George C. White, both of the county of Osage and state of Missouri, respectively agree to submit a matter now in difference between us to an arbitration, the following persons having been selected to arbitrate and make an award accordingly, to-wit: John M. Laughlin, Samuel S. Farrier…

This was an action on a warranty of soundness of a slave. At the trial, plaintiff offered in evidence the declarations of said negro slave with respect to her symptoms, made when she was sick to those in attendance upon her. The court refused to permit the evidence to be introduced. The plain tiff took a nonsuit, with leave to move to set the same aside. I. The court erred in excluding the offered testimony. (Marr v. Hill & Haynes, 10 Mo. 323.) '

George M. Williams was appointed by the county court of Polk county curator of the .estates of three minors, who were and still are under the age of fourteen years. At the time of this appointment said minors resided in Cedar county. They owned land in Polk county. On the motion of their mother, Mrs. Lacy, the county court revoked the appointment of Williams. He appealed to the circuit court.

This was an action on the following promissory note: “ $77.50. Twelve months after date, I promise to pay Wm.

This was an action in the nature of an action of ejectment to recover possession of certain premises in the county of Polk. The action was commenced in the year 1852, in the Polk circuit court. On motion of Stewart, the original defendant, one Toler, through whom he claimed title, was made a co-defendant.

This was a proceeding instituted to contest tlie validity of tlie will of one John Simpson. Said will was admitted to probate in the year 1853. The testimonium clause of the alleged will, together with the attestation thereof, are as follows : “ In witness whereof I have hereunto affixed my signature and seal this 12th day of July, in the year of our Lord 1852. John jxj Simpson.

This was an action under the landlord and tenant act to recover possession of certain lots in the city of St. Joseph.

The facts of this case would appear to be substantially as follows: Jacob Bain and J. L. Wyatt instituted separate attachment suits before a justice of the 'peace against one Par-mer. One Chrisman was summoned as garnishee in said suits, and judgments were rendered against him. These judgments the justice seems to have consolidated into one judgment in favor of Bain and Wyatt.

This was an action to enforce against the steamboat St. Mary a lien for the payment of'wages alleged to be due the plaintiff. The complaint against the boat is as follows: “ James Byrne, the plaintiff in the above entitled cause, complains and says that he has a demand against the said steamboat amounting to twenty dollars, for- fourteen days’ services f him, the said James Byrne, on board the said steamboat, on account of S. G-.

I. The judgment of the circuit court was final and absolute unless reversed on appeal or writ of error. (6 Peters, 729 ; 1 Peters, 340; 2 Peters, 169; 11 Mass. 226.) The parties to the partition can not have the judgment set aside on this motion. The judgment was rendered at the instance of the plaintiff. The defendants were duly and properly represented by their guardian. (18 Mo. 461; 8 Mo. 257.) The judgment or order of sale and sale itself were all duly and properly made.

<p>1. Infants may be made parties plaintiff in statutory proceedings for partition. (Johnson v. Noble, 24 Mo. 252, overruled.)</p> <p>2. Infants can not appear by attorney; they may appear by guardian.</p> <p>3. An interlocutory judgment in an action for partition, ascertaining the rights of the parties and appointing commissioners, &c., can not regularly be rendered, without the consent of the defendant, at the first term at which he is bound to appear.</p>

This was an action before a justice of the peace to recover five dollars and fifty cents for three weeks and four days’ board furnished by plaintiff to defendant.

Louis Court of Common Pleas. One Kreutzinger was indebted to the firm of Ellis & Ca-vender, as a security for which said firm held a mortgage on his stock of goods. Kreutzinger also delivered to said firm, as a security for said indebtedness, a policy of insurance on said stock of goods, executed in his favor by the St. Louis Mutual Fire and Marine Insurance Company of St. Louis.

This case has heretofore been before the supreme court. (See 20 Mo. 433.) The following is the first instruction given at the instance of the plaintiff: “ 1.

Since the dismissal of the writs of error in these two cases, (see 20 Mo. 70,) the defendants, David and Samuel Morton, petitioned the supreme court to grant writs of certiorari directed to the judge of the Marion circuit court. In obedience to these writs, transcripts of the records in said cases were filed in the office of tbe clerk of the supreme court, on which said defendants made assignments of error.

Charles Circuit Court. The instructions numbered one and five, mentioned in the opinion of the court, are as follows : “ 1.

B. B. Hall in 1854 was appointed guardian of one Adams, an insane person. In 1856 the county court, without notice to him, removed said Hall from his office of guardian, and appointed one Brown guardian in his place. From this order displacing him Hall prayed an appeal to the circuit court. The court granted the appeal. It afterwards rescinded the order granting the appeal. An affidavit was made by Hall and an appeal bond.

<p> Appeal from Franklin Circuit Court. </p> <p>cited State y. Buckner, 25 Mo. 167 ; 1 Mo. 700 ; 3 Mo. 28 ; 6 Mo. 444 ; 8 Mo. 500 ; 9 Mo. 19 ; 12 Mo. 492 ; B. 0. 1855, p. 1191; 1 Archb. C. P. 173 ; 1 Chitty, C. L. 636 ; State v. Prance, Overton, 424; 1 Wend. 91; 1 Ills. 109 ; 5 Terg. 340 ; 11 Humph.’ 154; 4 id. 136 ; Pyrtle v. The State, 9 Humph. 663 ; Whart. on Horn. 369; 15 How. Prac. 557.</p>

<p>1. A judgment rendered by a probate court against an administrator, requiring him to pay over to the distributees a certain sum of money as assets of the intestate’s estate, is, in the absence of fraud or collusion, conclusive upon the securities of the administrator in a suit on his official bond.</p>

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

<p>1. A sheriffs deed must be under seal; if not sealed, a court of 'equity can not aid its imperfect execution; nor should a court presume such a. deed 'to be sealed against the express admission, in an answer, of the party invoking such a presumption, that the sheriff omitted by mistake to seal the deed.</p>

The facts are set forth with sufficient fullness in the opinion of the court. I. The court erred in receiving as evidence the transcript of the record on the claim of Smirl. It could not be used as evidence of title in any way; nor could the supposed deeds in said transcript contained be received as evidence against the plaintiff without some proof of their execution.

<p>1. The old Bank of Missouri, haying accepted the provisions of the act regulating banks and banking institutions, &c. (see Sess. Acts, 1857, p. 14) established, as required by the 12th section of the 10th article of said act, a branch hank at Palmyra, in Marion, county, and furnished to it a capital of_" $62,600. The parent bank appointed all the directors, nine in number, there being no private subscription of stock at the time. Afterwards, books of subscription were opened at Palmyra, and $62,500 in stock were subscribed ; some of these shares were forfeited and only $33,660 were paid in on the stock subscribed. The parent bank, claiming under these circumstances the right to appoint six out of the nine directors, ordered an election for the three remaining directors on the 1st of March, 1868. The directors of the branch bank also resolved that an election should be held for three directors on said day, and notice was given to that effect. An election was accordingly held and a large majority of the stockholders voted for five directors instead of three; a small minority voted for three persons as directors. The latter were declared duly elected. Held, 1st, that under such circumstances the parent bank was authorized, by the 15th section of the 10th chapter of said act above referred to, to appoint six of the directors, and that the private stockholders were entitled to appoint no more than three; that the furnishing of capital, within the meaning of said section, is not the subscribing of stock merely, but the payment of the same; 2d, that the election being legally an election for three directors only, the votes given for five directors were illegal and were properly disregarded, and the three directors voted for were properly declared elected.</p>

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

This was an action in the nature of an action of trespass quare clausum fregit. The defendant justified under an act of the legislature, approved December 8, 1855, (see Sess. Acts, 1855, Adj. Sess. p. 456,) authorizing him to open and keep open a neighborhood road in Washington county. The proceedings under said act were adduced in evidence by the defendant.

This was an action of unlawful entry and detainer to recover possession of certain premises in the town of New London.

<p>1. Where a person hires a slave for a year and the said slave is ■wrongfully taken out of his possession during the term of service, the measure of dam- ■ ages in a suit against the wrongdoer is the value of the services of the slave during the residue of the term, even though the suit should be instituted before the expiration of such term.</p>

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

The following is the notice referred to in the opinion of the court: “ Sir — You are hereby required forthwith to commence suit against Eichard Phillips, principal in a certain note held by you, signed by said Phillips as principal and by the undersigned as security, dated 1st of February, 1855, and payable twelve months after date, for four thousand dollars, for value received. [Signed] Amos Eiley.” I. Notice by security to sue a principal who is a non-resident of the…

This was an action brought by the sheriff of Jefferson county to recover from Louis Robert the amount bid by him for a certain tract of land at a sale in a partition proceeding, in which said Robert and others were plaintiffs and B. T. Adams defendant. The defendant denied in his answer that a memorandum in writing of the alleged sale had been made by any one lawfully authorized.

<p> Error to Hamdbal Cowt of Common Pleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>I. Prom the plaintiffs’ own testimony defendants were only shown to be carriers of persons and property on the Hannibal and St. Joseph Railroad. They carried upon no other thoroughfare. They were not in the habit of shipping their freight on board of steamboats or of storing it at Hannibal. Defendants were not common carriers. They were not responsible as common carriers for the loss in question. They transported the hemp safely to Hannibal. (See Story on Bail. § 546, 446; 4 Term R. 581.) The defendants had a right to exempt themselves from liability as common carriers. They did so by giving notice. (13 Barb. 853 ; Sto. on Bail. § 549; 2 Kent, Comm. 605; 2 Camp. 415; 3 B. & C. 606; 6 How. 882; 2 Comst. 204.)</p> <p>I. A carrier can not limit his common law liability by the publication of a notice such as is relied on in this case. (6 How. 882; Sto. on Bail. § 570, 571; see 2 Hill, 623; 19 Wend. 240; 19 Wend. 272.)</p>

I. No motion to set aside the dismissal was necessary. The clause of the statute requiring the filing with the justice of any paper on which the suit is founded before any process issues is merely directory. (6 Mo. 516.) By the by-laws the original articles of association had to be kept by the secretary for the use of the members.

I. When county courts malee allowances to guardians, these adjudications are conclusive unless attacked and set aside in a proper proceeding on the ground of fraud in obtaining them. No fraud was shown or found in this case. The statute of limitations also is a bar to the present proceedings. The cause of action, if any, accrued more than five years previous to the commencement of this suit. The finding is defective on this point.

I. Prima facie the note was binding on the partnership. The burden of showing a want of authority rests upon tlio defendant. (Story on Part. § 133.) The execution of the note by Webb in the name of the firm was admitted.

<p>1. Under the act of December 22, 1824, (R. C. 1825, p. 211,) the trustees of the town of St. Charles had power to lease the common of the town.</p> <p>2. It is not sufficient to invalidate such a lease that it was executed in the name of the trustees of the town and not in the name of “ The inhabitants of the town of St. Charles” — the corporate name of the town.</p> <p>3. In order that a defendant may defeat a recovery in an action of ejectment by showing an outstanding title in a third person, such outstanding title so set up must be a present, subsisting and operative title, such an one as the owner thereof could recover on if he were asserting it in an action.</p> <p>4. Possession of land is presumed to be in the true owner. Being presumed to be in the possession of the whole, another entering upon him, whether under color of title or not, can acquire title as against him, under the statute of limitations, only to such portion as is actually occupied by him for twenty years adversely to the true ewner; he is confined to his actual adverse possession, and the burden is on him to show such actual adverse possession and its extent.</p>

Charles Circuit Court. This is an action of ejectment to recover possession of lot No. 28, in block No. 8, in St. Charles common. Plaintiff is an infant. She claims title under a lease made to herself on the 23d of October, 1856, by the city of St. Charles. This lease was made upon the surrender by plaintiff of a lease made by ihe trustees of the town of St. Charles on the 18th of June, 1831, to one Asa Griffith.

<p>1. The supreme court will not review instructions unless they are excepted to at the time they are given or refused.</p>

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

<p> Error to St. Louis Court of Common Pleas. </p> <p>The following is the petition in this case: “ Plaintiff states that defendant owes him three hundred and twenty-five dollars on account of thirteen gravel train or construction cars left by plaintiff with defendant, in May, 1854, for safe keeping. Plaintiff states afterwards defendant sold said cars and received the proceeds, to-wit, the amount above stated, which he has not accounted for, although demanded; that the same were worth said sum; and therefore he asks judgment.”</p> <p>Judgment by default was rendered against the defendant. The cause coming up for an inquiry of damages, the court instructed the jury that “ the defendant having failed to answer the plaintiff’s petition, the plaintiff is entitled to a verdict for the amount of the proceeds of the cars as stated in the petition, without any other proof, and also interest on that amount from the commencement of this suit.”</p> <p>I. The court instructed the jury erroneously. (Robinson v. Lawson, 26 Mo. 69; Wood v. Steamboat Fleetwood, 19 Mo. 530 ; Arnold v. Palmer, 23 Mo. 411; 18 Mo. 396 ; 11 Mo. 10.)</p>

Louis Criminal Court. This was a prosecution for assault and battery. The cause was taken by appeal to the St. Louis criminal court. The jury in the latter court returned the following verdict: “We, the jury, in the case of The State v. Thomas S. Warne, find the defendant guilty of assault and battery, and can not agree as to the penalty.” The court assessed the fine at one hundred dollars.

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

The plaintiffs in their petition allege substantially that the partnership firm of Bell & Stieknell was indebted to them on two promissory notes ; that Bell sold out his interest in the partnership to Erasier ; that Erasier on coming into the firm agreed with Bell & Stieknell to assume and pay certain debts of the firm, among others the notes due plaintiffs. Plaintiffs seek to recover the amount of said notes of the said Erasier’s administrator.

<p>1. A suit on a promissory note by an assignee against the maker is triable at the first term, although the assignment is denied.</p>

The facts sufficiently appear in the opinion of the court. I. The language of the dower act does not embrace the increase of a female slave after it comes to the husband. (3 Mo. 98.)

<p> Appeal from Hannibal Court of Common Pleas. </p>

Louis Land Court. This was an action of ejectment to recover possession of a certain lot in the city of St. Louis. Plaintiff claims title through the widow of one Philip A. Pulte, who died seized of the said premises in the year 1844.

Genevieve Circuit Court. This was a cause submitted to the circuit court upon an agreed statement of facts. Joseph Coffman died leaving a last will and testament, by which, among many other devises, he devised a plantation known as the Bellefontaine tract to his three grand-children, Mary, Joseph and Bernard Pratte. At the time of the testator’s death there was a crop of wheat growing on said plantation.

The facts sufficiently appear in the opinion of the court. I. Lowe had no beneficial interest in the land purchased by the notes belonging to the St. Louis creditors. The judgment in favor of Jones was not a lien upon the mere legal title in Lowe.

Louis Land Court. The complaint is in substance as follows: The plaintiff alleges that the defendants, “ with force and strong hand, entered upon and into the… Held: the lot aforesaid from your complainant. Wherefore your complainant prays,” &c. I. The complaint shows that at the time of the alleged entry the tenants of plaintiff were in possession of the premises. The landlord can not maintain the action. ('24 Mo. 107 ; 26 Mo. 216.) The instructions given were erroneous.

Louis Cowl of Common Pleas. I. One partner can not maintain assumpsit against another partner whilst the partnership concerns remain unadjusted. (Thompson v. Elliott, 5 Mo. 118; Springer v. Cabell, 10 Mo. 640 ; Murray v. Bogert, 14 Johns. 318 ; 17 Johns. 80 ; 11 La. 681; 2 La. Ann. 154, 277; Rice’s Dig. 75.)

Louis Circuit Court. Francis Dugdale contracted with the Central Plank Road Company to construct the eighteenth and nineteenth sections of said road. ■ Dugdale afterwards entered into an agreement with Michael O’Leary and James B. Neenan, as subcontractors, for the construction of said sections.

<p>1. Fraud in the consideration of a negotiable promissory note is no defence to an action thereon by an endorsee to whom the same was endorsed before maturity without notice.</p>

Louis Law Commissioner’s Court. I. Justices of the peace have no jurisdiction of actions on penal bonds. They have jurisdiction only in the cases specified in the statute. No remedy is provided for the defendant in an execution. This case is outside of the classes of cases referred to in the twenty-third and twenty-eighth sections. The snit, if maintainable at all, should have been brought in the name of the state. There is a misjoinder of defendants.

Louis Court of Common Pleas. This was an action against the steamboat Reindeer to recover the value of a slave alleged to have been transported out of this state in said steamboat. Judgment by default was rendered against the steamboat. This default the court refused to set aside. I. The court should have set aside the' default and permitted the defence to be made, and should have set aside the final judgment and permitted an answer and a regular trial.

On the 13th of October, 1797, James Mackay obtained from the Spanish government a grant of 30,000 arpens of land, which was located in separate tracts. The whole of said grant of 30,000 arpens was afterwards confirmed to the said Mackay or his legal representatives, by the act of Congress of July 4, 1836, with the exceptions made by the second section of said act. Portions of said grant had been conveyed away by the United States previous to the confirmation.

This was an action brought by the administratrix of the estate of Charles 0. Vallé, deceased, to foreclose a mortgage.

Louis Criminal Cowt. The following is tlie indictment in this case: “ The grand jurors of the state of Missouri within and for the body of the county of St. Louis, now here in court, duly empannelled, sworn and charged, upon their oath, present that ‘William North and William P. Scott — they being a partnership under tlie name and style of North & Scott, late of St. Louis, in St. Louis county — on tlie first day of July, in the year of our Lord, 1856, and on divers other…

Appeals from Clark Circuit Court. I. The charter, so far as it authorized a tas per acre, is unconstitutional. (Constitution of Missouri, art. 13, § 19.) This provision, applies to counties and all corporations created by the act of the legislature, as much as it does to the state in raising revenue for state purposes. The state not possessing the power to levy ah “ acre tax,” it could not delegate this power.

Louis Court of Common Pleas. Under and by virtue of an execution in favor of Cochran and Clark against Brooks, the sheriff of St. Louis county levied upon certain personal property as the property of said Brooks. Goddard made claim to said property as his own, and supported his claim by his affidavit as required by the local act of March 3,1855. (See Sess. Acts, 1855, p. 464.) The plaintiff Cochran gave an indemnification bond, with two sureties, in the penal sum of $2,400.

This was an action in favor of Levi Dodd against Isham 0. Winn on a promissory note executed by David C. Glascock, M. McDonald, R. F. Richmond, Minor J. Winn, James G. Caldwell and said Isham 0. Winn.

Louis Gowrt of Common Pleas. This was a suit by Irwin Z. Smith on two certain promissory notes against John Sigerson, the maker, and Anapias Eice, the endorser thereof. The suit was instituted in the St. Louis court of common pleas. After the institution of this suit, said Sigerson, on the 10th of October, 1857, confessed a judgment, in the St. Louis circuit court, on said notes in favor of said Smith.

Louis Criminal Court. In this cause, directed by the opinion of the supreme court, reported in 21 Mo. 272, a retaxation of the costs was had. In retaxing the costs, the court sustained the taxation against McO’Blenis as originally made.

<p> Error to Ralls Circuit Court. </p> <p>I. Hardin was an incompetent witness. (18 Mo. 564; 24 Mo. 262; 28 Mo. 182; 3 C. B. 299.)</p>

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

Louis Gowrt of Common Pleas. This was an action by Wayman Crow and others, members of the firm of Crow, McOreery & Co., on the following promissory note : “ $11,850.

<p>1. Where am employee, -wrongfully discharged Before the completion of Ms term of service, brings an action, before the expiration of such term, to recover damages for the breach of the contract, it is error to rule that the measure of damages is the contract price of his services for the whole term.</p> <p>2. A child allowed by its father to leave home and to work and shift for himself may maintain an action in his own name to recover the value of services rendered by him.</p>

<p>1. If relevant testimony with respect to an alleged written contract be introduced by either party to a suit, the other party is entitled to have said contract read in evidence.</p> <p>2. A judgment will not be reversed on account of the admission of irrelevant testimony, unless it is calculated to injure the party complaining of its admission.</p>

<p>1. Where a justice of the peace takes a recognizance to keep the peace, he is required to transmit to the clerk of the proper court only the recognizance, and not the affidavit and warrant.</p>

The petition in this cause sets forth substantially that in the month of November or December, 1854, plaintiff purchased of one Jarvis a certain tract of land for $550; that he gave to said Jarvis three several promissory notes, payable in March, 1855, July, 1855, and January, 1856; that Jarvis executed and gave to plaintiff an agreement in writing whereby he agreed to convey said tract to plaintiff when the latter should pay said notes ; that Jarvis put plaintiff in…

Louis Circuit Court. This was an action brought in the year 1854 by Daniel Blodgett on a bill of exchange for five hundred dollars drawn by Nelson Blodgett on Cheever & Co. (of which firm defendant was a member) and accepted by them.

On the'30th of January, 1858, one Samuel W. Riggs, being largely indebted, executed a deed of trust of certain described real and personal property to one Logan as trustee.

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

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

Appeal from Butler Circuit Co-wrt. I. The verdict was legally insufficient to warrant the judgment. The judgment should have been arrested.

This was a prosecution for an assault upon one Margaret D. McGee. The court instructed the jury as follows: “ 1. If the jury find from the evidence in the case that the defendant laid hands on Mrs. McGee and kissed her without her consent, they will find him guilty and assess a fine against him not exceeding one hundred dollars and not less than one dollar. 2.

<p> Error to Ralls Circuit Cou/rt. </p> <p>This was an action to recover possession of two yoke of oxen. It appeared in evidence that said oxen were a portion of the stock of a farm held and leased by the plaintiff. The defence relied on was that said stock was owned by said plaintiff Cayton and one Robertson as partners, and that Robertson sold said oxen to defendant. The defendant introduced in evidence the following agreement: “ Francis M. Cayton, the party of the first part, agrees to furnish a tract of land large enough to make a good stock farm ; also agrees to furnish farming utensils sufficient for use of said farm; and also agrees to furnish four brood mares or more as he may choose, and one hundred (more or less) stock cattle; and also agrees to furnish one hand to work on said farm. And the party of the second part agrees to take charge of said farm and stock, and work and pay strict attention to the same ; also agrees to improve said land sufficient for all the stock that may be on it, at the expense of each party ; and for such services the party of the first part agrees to give the party of the second part one-third of the proceeds of the farm and stock after replacing all the stock put on the farm in the first place. The parties are to live on the farm. This copartnership to last five years, unless one of the parties becomes dissatisfied. Witness our hands and seals. [Signed] Francis M. Cayton (seal). David C. Robertson (seal).”</p> <p>The two yoke of oxen in controversy composed a portion of the stock of the said farm furnished by said Cayton. They were sold by Robertson to the defendant at the price of forty dollars per yoke. This price was paid. The court, at the instance of the defendant, instructed the jury as follows: “ The written instrument read in evidence and signed by Francis M. Cayton and David C. Robertson constituted Cay-ton and Robertson partners as to third persons of the cattle and stock and proceeds of the farm named in said written instrument; and if the jury believe from the evidence that Robertson sold the cattle in controversy to the defendant, and that they were when so sold a part of the stock named in the said writing, such sale to Hardy by Robertson was good in law to divest the title of Cayton, and the verdict should be for defendant, unless the jury should further find from the evidence that said Robertson sold said stock with the intent to defraud the plaintiff, his copartner, and that defendant purchased with notice of such intent.”</p> <p>The plaintiff took a nonsuit, with leave, &c.</p> <p>I. The court erred in instructing the jury that the instrument of writing read in evidence constituted Cayton and Robertson partners. It did not constitute them partners either inter sese or as to third persons. (Colly, on Part. 14, 19 ; 4 East, 144; 3 Wils. 40 ; 15 Mo. 481; 15 S. & R. 137 . 17 Mass. 197; 14 Pick. 192; 12 Conn. 69; 18 Wend. 175 ¡ 20 Wend. 70 ; 17 Ves. 404 ; 4 B. & Or. 867 ; 1 Rose, 191 ■ 18 Wend. 184; 6 Mete. 82; 6 Halst. 181; 15 Ills. 31; 4 Paige, 148.)</p> <p>I. Cayton and Robertson were clearly partners, both as between themselves and as to third persons. Each party had the power to dispose of the stock of the farm aside from the power he would have as partner. The agreement clearly contemplates sales of the stock and proceeds.</p>

This was an action by Philo Gillett against Beverly Camp and Elvira Camp, his wife, to recover compensation for money paid and expenses incurred by him in the education and maintenance, before her marriage, of the defendant Mrs. Camp. At the close of the evidence, the court at the instance of the defendants gave the following instructions: “ 1.

This was a bill in chancery filed March 11, 1847, by certain of the heirs of Tomas Madden, senior, deceased, against certain other of the heirs of said Madden and his administrator. The object of the bill was to bring all the heirs into hotchpot, to obtain a settlement of the accounts of the administrator, a sale of the lands of the intestate, and an equalization of the heirs in the distribution of the estate.

I. The heir was a necessary party. The foreclosure in no way affected the right of the heir to redeem. The demurrer was improperly sustained. (7 Mo. 374; 1 Powell on Mortg. 282; 7 Cranch, 69 ; 2 Gfallis. 371; 2 Mason, 181; 11 Wheat. 103 ; id. 304; 1 Stark, on Ev. 191; 2 N. H. 190; 1 Wheat. 6; 1 Munf. 373 ; 2 H. & Munf. 139 ; 14 Johns. 79; 4 Day, 431; 2 Sto. Eq. § 1026 ; 2 Hare, 237 ; 1 Black.

The following is the instruction referred to in the opinion of the court: “ The court instructs the jury that if the jury believe from the evidence and circumstances proved in the cause that the defendant David Clark authorized his son James Clark to borrow plaintiff’s bull for him the said David, and that the said James as agent of the said David did borrow said bull from plaintiff for his father, the law implies a contract upon the part of the said defendant David Clark to…

This action was originally commenced before a justice of the peace. The account filed with the justice contained items for costs paid and expenses, &c., incurred in taking up and posting as strays a lot of mules.

I. There being no proof of a dissolution, Reed was still a partner, and bis declaration, made both before and after tlie deed of trust was made, that Redden owed the firm of A. Reed & Co. nothing, that he had paid up every thing, was certainly competent evidence in. this case. The court also erred in refusing to strike out the interplea. I. There was no error in refusing to strike out the inter-plea. The only books in which there were any charges against Redden were produced.

Louis Circuit Court. The following is the description contained in the deed of John Steiner to Mary Steiner: “ The west half of the east half of the south-west quarter of section 14, township 44 north, range 6 east; and also a piece or parcel of land of the south-east side of the north-west fractional quarter of the same section, township and range — butted and bounded as follows: Beginning at a stake on the line between said section 14 and section 23, from where the corner…

The error complained of in this case is the affirmance of an award made under the following agreement of submission : “ Whereas M., J. & J. Eickes, a firm composed of Morgan Eickes, John Eickes and Jacob Eickes, have taken a quantity of pine and oak timber growing and being upon the land of M. Erissell and M. A. Todd ; and whereas'it has been agreed between M., J. & J. Eickes on one part, and Erissell and Todd of the other part, to refer the amount of damages they, said…

The object of this action is to obtain a decree of title to certain lands in Jefferson county. The plaintiffs are Isaac A. S. Herrington, wlio sues by Ms next friend, and Ms father Isaac Herrington. The defendants are John Herrington, James A. Beal and Bazile Hiney.

Louis Cowt of Gommon Pleas. This was an action to recover damages for an alleged breach of the following agreement: “ Articles of agreement between Judd, Walker & Co. and Patterson & Ferguson, made and entered into at St. Louis this twenty-first day of January, A. D. 1856, witnesseth, that for and in consideration of the sum of sixteen dollars per thousand feet according to the St. Croix scale and measurement — which scale bill shall exhibit the number of pieces, logs and…

This was an application to the county court of Perry county for an allowance of an account in favor of the plaintiff against the estate of John Meyers, deceased. On appeal to the circuit coxirt, judgment was rendered in behalf of plaintiff. No instructions were asked or given. It was not shown that the plaintiff supported his claim by his affidavit in the cii'cuit court.

<p>1. Communications made to an attorney at law as such are privileged, and the attorney can not be permitted to testify concerning them without the consent of the client. This rule applies to the case where two persons, having hostile interests, consult the same attorney, at the same time, with respect to the matter in dispute, and one of such parties calls upon the attorney to testify with respect to the declarations and admissions made by the other at the consultation.</p> <p>2. Whether a communication is a privileged one is a question for the court.</p> <p>3. A mortgagee is not hound to notice the partition of the mortgaged premises in a suit instituted for that purpose. If, however, in a partition suit, in which he is a party defendant in right of his wife, he should set up his mortgage, and an issue joined with respect to the existence of the mortgage should he determined against him, he would, it seems, be bound by the judgment. If no more appears from the record than that the mortgage was set up by the mortgagee, that issue was taken as to its existence, and that no notice was taken of the mortgage in the interlocutory or final judgments, the record would furnish only prima facie evidence that the question of the existence of the mortgage was passed upon; it might be shown by parol evidence that the question was never actually submitted to or passed upon by the court.</p> <p>4. Where, during the pending of a suit to foreclose a mortgage, third persons become interested in the premises by purchase, it is not necessary, in order to authorize a decree against them in respect of the interest acquired by them, to make them parties to the suit; they may be made defendants, on their own motion, under the sixth section of the act concerning mortgages, (ft. C. 1855, p. 1089.)</p>

Louis Circuit Cowt. This was an action of ejectment to recover a piece of ground at the south-east corner of Main and Bates streets, in the city of St. Louis. Both parties claimed title under Pierre Chouteau. The plaintiff, for the origin of his title, relied on a deed made by Chouteau to Merriwether Lewis in 1810. The defendants deduced title under a deed from Chouteau to Frederick Bates in 1815.

I. The law of the case was fairly presented to the jury. (State y. Hays, 23 Mo. 318.) The fifth, sixth and seventh instructions asked by the defendant were not the law; they were not warranted by the evidence. The temper and disposition of the deceased were not involved in the prosecution. (Whart. Crim. Law, 296; Whart. on Horn. 249 ; Wright v. State, 9 Yerg. 344; State v. Hawley, 4 Harring. 562.) The defendant was not prejudiced by the instructions.

I. A guardian de son tort is a character unknown to the law. The court instructed the jury erroneously. I. No objection is made to the instructions in the motion for a new trial. (15 Mo. 515; 13 Mo. 215 ; id. 455; 26 Mo. 530.) Error in instructions can not be reached by motion in arrest. (10 Mo. 698.) The court did not err in giving or refusing instructions. (19 Mo. 102 ; 18 Mo. 249; 17 Mo. 382, 49; 8 Mo. 522.)

<p> Error to Buchanan Court of Common Pleas. </p> <p>I. The judgment should have been against the property attached and not against Holley personally. (R. C. 1855, p-256, sec. 60.)</p>

I. The statement was verified as required by law, the attorney Robinson being presumed to be a credible person. (R. C. 1855, p. 305, § 4; id. p. 1234, § 20.) The rulings in Bridgford v. Steamboat Elk, 6 Mo. 356, and Hamilton v. Steamboat Ironton, 19 Mo. 523, were unauthorized by the statute. The affidavit is good under the new code.

I. No facts are averred in the petition showing a partnership between the parties to the suit. The words “ equal partners” denote the share or extent of interest of each of the parties. If the land is partnership property, it still may be partitioned. The legal title is vested in plaintiff and defendant jointly. I. The plaintiff seeks to convert a regular petition for account and settlement of a partnership transaction into a statutory action for partition.

<p> Error to Johnson Circuit Court. </p> <p>I. The indictment sufficiently describes the offence. (United States v. Batchelder, 2 Gall. 18 ; State v. Bullock, 18 Ala. 416; Thompson v. People,* 3 Parker C. Cas. 214; 6 Verm. 594; Whart. C. L. 190; Barb. C. L. 333; 16 Mass. 385; 6 Saund. 135.)</p> <p>I. The indictment is bad. (State v. Bankhead, 25 Mo. 558.)</p>

The following are the instructions referred to in the opinion of the court: “1. That if the jury believe from the evi-. dence that plaintiff and defendant contracted to marry each other and that defendant failed and refused to marry plaintiff, they must find for the plaintiff. 2. That the pleadings in this case admit that defendant refused and failed to marry plaintiff. 8.