Volume 28 — Missouri Reports

Clair Circuit Court. I. The recognizance is void and the demurrer was properly sustained. The indictment was for a felony and was pending in the St. Clair circuit court, and a justice of the county court of Dallas county had no right to let the prisoner to bail. (State v. Ramsey, 23 Mo. 327.)

I. The court erred in permitting the State to give evidence of a selling in less quantity than a quart and by the drink. (State v. Arbogast, 24 Mo. 368.) II. The court gaye improper instructions on the part of the State and refused proper instructions asked by the defendant. There was no law at the time the indictment was found, nor at the time the defendant sold the liquor by the quart, prohibiting the seller from permitting it to be drank at a place under his control.

There was a variance in the proof and allegation. The indictment in this case is similar to the indictment in the case of the State v. Arbogast, 24 Mo. 363. The offence consists in selling in any quantity less than a gallon without a license. It is not necessary to prove the exact quantity as charged.

I. Under our statute of wills, the subscribing witnesses must sign at the time the will is signed by the testator. (R. C. 1855, tit. Wills, § 4,18,19, 20, 80 and 33.) II.

I. The will vested the title to the slave Hannah absolutely in Margaret Dean. The word “ heirs” in the fourth clause of the will is a word of limitation and not of purchase. That clause comes directly within the rule .in Shelly’s case.

I. The court erred in overruling the demurrer and motion in arrest. There was no evidence of any contract between the parties. A promise to pay for improvements, made after the entry of the land, is a nullity. ( I. This court will not interfere with the verdicts of juries on the ground that they are against the weight of evidence. (24 Mo. 97; id. 216 ; 20 Mo. 312.)

I. The court below ought to have set aside the judgment by confession, because the statement sets out no particulars of the time, place, quantity, description or price of the supposed consideration of the note, and is a mere evasion of the statute under which it is made.

William Ray obtained a judgment against William Stobbs before a justice of the peace of DeKalb county. A transcript of the judgment was filed in the office of the clerk of the De Kalb circuit court. An execution was issued by said clerk directed to the sheriff of Andrew county. Real estate .belonging to the defendant Stobbs, situate in Andrew county, was levied on and sold under this execution. The defendant was a resident of DeKalb county.

I. Defendants had the right of appeal from the county to the circuit court. (The county of Cooper v. Geyer, 19 Mo. 257.) II. The appeal was taken in due form of law and the court committed error in dismissing the appeal.

This was a suit instituted by Basye on a certain bond executed by the defendant Ambrose, in favor of said Basye and one Bachman.' The latter had assigned his interest in the contract to the plaintiff. The bond is sufficiently set forth below in the opinion of the court. Evidence was given bearing upon the question of the breach of the bond by the defendant.

This was an action for partition of lands commenced by the collateral heirs of Larkin Cason, deceased, against his widow. With respect to one tract of eighty acres the widow set up as a defence that it did not belong to said Larkin Cason, inasmuch as it had been purchased with money given to her by her father James Luggett to be invested for her in land.

I. The court erred in “ striking out” the issues which had been directed and refusing to order them anew upon defendant’s motion. The objections filed upon the return of the inquest, showed good cause for quashing the proceedings and setting aside the verdict. (R. C. 1845, p. 745, § 14 & 15 ; Payne v. Taylor, 3 A. K. Marsh. 116'8 ; 1 Bibb, 578 ; 4 Ben. Monr. 410 ; 7 id. 450.) I. There is no error in the striking out the issues submitted to the jury.

Petition for Mcmdamus. This was an application to the supreme court in behalf of the clerk of the Callaway county court for a mandamus directed to the auditor of public accounts requiring him to audit a claim of said clerk to fees for certain services rendered by him under the revenue act of November 23,1857, and to issue his warrant on the treasurer.

This was an action by N. A. Davis against W. B. Farmer on the following instrument: “ Isham Shoat v. N. A. Davis. Civil action in the Greene circuit court. We, Isham Shoat as principal, and W. B. Farmer and B. S. Lane as sureties, are held and firmly bound for the payment of all the .costs that have accrued or may accrue in the above case.

This was an action to recover damages for slanderous words spoken of the plaintiff. The petition contains three counts.

<p>1. The conduct of a husband toward a wife may be such as to warrant her in leaving him, although it would not entitle her to a divorce ; if her absence be caused by his misconduct, or if he place himself in such a situation as to prevent her return, he will not be entitled to a divorce, although she may have lived separate from him for a number of years.</p>

On the 1st Monday in October, 1852, the defendant purchased a certain tract of land, at a sale of land for taxes in Moniteau county. The lands were sold for the taxes for the years 1849,1850 and 1851, assessed against the said tract as the property of W. .S. Garner, deceased. The defendant obtained a deed from the register of lands dated May 8,1855. Both the parties in whose behalf this proceeding is instituted were at the date of the defendant’s purchase minors.

This was an action for an unlawful detainer. The plaintiff adduced in evidence an instrument in writing, dated September 16, 1857, by which it was stipulated, among other things, that Smith, the defendant in this suit, “ is to retain the occupancy of the house and grounds now in his possession and rented heretofore from John Lewis, until the first day of January nest, at which time the rents, &c., * * * * It is understood that said Smith is to give the said Young-peaceable…

This was an action to recover the value of a building and shed alleged to have been wrongfully detached and removed from a certain main building on a lot belonging to the plaintiffs. The facts as they appeared in evidence are substantially as follows: The lot belonged to the heirs of one Peter Powell. At a sale in partition among said heirs on the 30th of March, 1855, the said lot was sold and the plaintiffs became the purchasers.

I. A divorce should have heen- granted on the evidence. (Bishop on Marriage and Divorce, 442; Burgess v. Burgess, 4 Eng. Eccl. R.' 812, 527 ; 4 Barb. 217.) Defendant was at least entitled to maintenance for a reasonable time. I. The testimony makes out no case against defendant. (26 Mo. 855 ; 18 Mo. 308 ; 24 Mo. 97.)

I. The circuit court has exclusive jurisdiction of actions to enforce mechanics’ liens. (R. C. 1855, p. 1065 ; Gaty v. Brown, 11 Mo. 140.) But if the Kansas common .pleas has jurisdiction of the subject matter, it does not so appear from any thing averred in the petition. Its jurisdiction is limited to the township of Kaw; (Sess. Acts, 1855, p. 60, § 1 & 19 ;) and it is not shown by averment that the building is within the township.

I. The testator John Hill not having named his son William Hill in his will, there is nothing in the will by which the court can be justified in saying that William Hill was intentionally omitted, and that therefore John Hill did not die intestate as to William, and this case is not like that of Guitar et al. v. Gordon et al., 17 Mo. 408 ; nor is it like the case of Hockensmith & wife v. Slusher, 26 Mo. 237; 9 Fost. 533 ; 18 Pick. 162 ; Bradley v. Bradley, 24 Mo. 311.

Claybrook’s testimony, referred to in the opinion of tlie court, was to the following effect, that he had heard Taylor say in California to some of the plaintiffs that he had sold his interest in the ranche, and intended coming home to Missouri and told them to go down and see about their stock ; that “ they talked like they would go down.” The fifth and sixth instructions alluded to are as follows: “5.

Demurrer to a petition. The petition alleges substantially that in the year 1855 the defendant Jones became indebted to plaintiff in the sum of $41.47 for money paid by plaintiff to Messrs.

The following is the indictment in this case : “ The grand jurors, &c., present that John Gardner, of, &c., on, &c., at, I. The indictment is not good either upon the statute or at common law. (2 Bailey, 149; 8 Mo. 494; 1 Cliitt. G. L. 168.) It should have been stated that the acts constituting the offence were openly and notoriously committed; that the act was committed publicly, or in a public place, or in public view.

This was a suit for divorce by Amanda J. Lusk against Alfred T. Lusk.

This was an action in the nature of an action of trespass de bonis asportatis. The plaintiff alleges that the defendant wrongfully entered the close of plaintiff and took and carried away a large quantity of bricks belonging to plaintiff. The defendant admits the taking of the bricks, but set up that they were sold to him by one McCain, a partner of the plaintiff in their manufacture.

I. The drafts having been obtained by fraud their transfer by Pilkington passed no title to Phillips, and Pilkington could recover their proceeds so long as they could be identified, no matter how many changes they might undergo. (1 Mo, 46 ; 26 Mo. 494Story’s Eq. § 437,439, 513,1256 ; 5 Dana, 196.) ' The plaintiff instituted the proper form of action.

I. The only question here is as to the answer. If the answer sets up facts which, if true, entitle the party in law to a deduction in damages from the amount due by the note, then the court mistook the law in striking out the answer. The point is considered as settled in the cases of House v. Marshall, 18 Mo. 371, and that of Grand Lodge of Masons v. Knox, 20 Mo. 433. I. The answer does not state that the appellant is damaged any amount.

En'or to Carroll Circuit Court. I. Inasmuch as the lands are situate in Carroll county and this is an original suit affecting the title to the lands on account of fraud in the sale, no other court has original jurisdiction of the subject of this suit.

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

Demurrer to a petition. The following is the petition: “ Plaintiff states that one Nathaniel ~W. Coffee departed this life in Overton county, in the state of Tennessee, some time in the month of August, in the year 1833, and left at his death a son, to-wit, Granville Coffee, who was his only heir and distributee.

I. Ray also being a mortgagee of this property and having taken it into his possession immediately after the mortgage was given, and not as the mortgage authorized him when the notes became due, was properly made a party defendant in this suit. It seems that ample time had elapsed for him to have paid these debts, had he been disposed to do so. On the contrary, he does not appear to have attempted any thing of the kind, but was treating the property as his own.

This was an action by Jesse E. Morris against Zachariah Morris, John P. Campbell, L. J. Morrow and W. Morrow. Campbell died and the suit was finally dismissed as to all the defendants except Zachariah Morris.

I. The county court had no right to reject the petition for the removal of the county seat. The circuit court committed error in dismissing the appeal. The commissioners gave no notice of their intended meeting. The general law requires such notice. The law required all the commissioners to qualify. The circuit court should have heard de novo the petition of the inhabitants for the removal of the supposed county seat, as also their objections to the location.

This was an action against the steamboat Castle Garden to recover damages for the breach of a contract to transport certain goods, wares and merchandise from St. Louis to Warsaw, on the Osage river, and to tow a flat-boat loaded with whisky and lumber from the mouth of the Osage to said Warsaw.

This was an action by Hardin P. Bray against Daniel N. Thatcher, Lilburn P. Smith and Azariah L. ■ Hupp.

This was an action in the nature of an action of ejectment to recover possession of certain real estate in the town of California. The suit was instituted in February, 1856. Plaintiff claims title under a deed from one Browning, dated July 12, 1855, and recorded September 11, 1855. The plaintiff claims also rent from the defendant and compensation for waste.

This was an action, under tbe act to prevent certain trespasses (R. C. 1855, p. 1552), to recover damages for an alleged carrying away by defendants of a large amount of lead ore from tbe land of plaintiffs. Tbe land upon which tbe alleged trespasses were committed is section six, township twenty-five, range thirty west, situate in Newton county. Plaintiffs claim said land by virtue of a lease from the Pacific Railroad, dated “June 11, 1857, for a term of ten years.

Louis Land Court. I. The jury could only assess single damages. When damages are to be trebled, it must be done by the court, not by the jury. (1 Oow. 584, 160 ; 8 Johns. 844 ; 4 Mo. 564; 7 Mo. 149; 8 Mo. 350; 12 Mo. 511; 1 Mo. 280.) The fourth instruction authorizes the jury to assess treble damages against the defendant. This was error; nor is it any the less error that the defendant prayed a similar instruction, which was also given by the court.

Louis Law Commissioner’s ' Court. I. The act of March 3,1855, is merely cumulative in its provisions and not obligatory. Parties claiming personal property seized under execution or attachment are not obliged to enforce their claims under it. I. Bradley omitted to set forth his claim in writing as required by the third section of the act of March 3,1855.

Louis Land Court. The court, at tbe instance of the plaintiff, gave the following instructions to the jury : “ 1.

Louis Circuit Court. I. Where a party has received;m,oney which in equity and good conscience he has no right to retain, he is liable, in an action for money had -and'received, to the person to whom in justice and conscience the money belongs, (7 Mass. 288 ; 10 S. & R. 219 ; 6 S. & R. 369.; l'Dall. 148; '2 Dali.-.154; 1 Harr. & Gill, 258; 13 Wend. 488; 2 Nenio',' 91.) The bill of exchange was payable out of the proceeds of :the .castor oil.

Louis Laip Commissioner’s Court. I. The court erred in refusing to instinct the jury as requested. The award was a bar to the suit. (15 Wend. 99 ; 2 Hill, 271; Kyd on Awards, 261, 10 ; 12 Johns. 311; 19 Wend. 285.)

Louis Court of Common Pleas. This was an action against the defendant as owner of the steamboat “ Editor” to recover wages alleged to be due plaintiff under a contract entered into by him to serve as pilot on said boat. In April, 1856, the steamboat Editor was running in the Upper Mississippi trade from St. Louis to St. Paul. James E. Smith was the master, and the defendant Robbins the owner.

Louis Circuit Court. This was a suit by attachment against Thomas A. Pelle-tier and John D. Pelletier. The affidavit charged that the defendants “ had fraudulently conveyed and assigned their property and effects so as to hinder and delay their creditors. There was a plea in abatement denying the truth of the affidavit.

<p>1. The charter of the St. Louis and Iron Mountain Eailroad Company did not confer upon a justice of the peace jurisdiction of an action against the company to recover damages for injuries sustained by reason of the construction of a culvert.</p>

<p> Error to St. Louis Laio Commissioner’s Court. </p> <p>The promissory note upon which this suit is founded is negotiable.</p>

Louis Court of Common Pleas. Alpheus E. Koehls. and Henry Golberg were partners in trade under the style of Koehls & Golberg. They held two promissory notes payable to their order as partners. These notes, during the existence of the partnership, were endorsed to the Mutual Sayings Institution for collection and as collateral security for an indebtedness then existing from Koehls & Golberg to said institution.

En'or to St. Louis Court of Common Pleas. This was an action instituted to recover possession of an undivided interest in a certain lot in the city of St. Louis. Pelagie Labadie, at the time of her death prior to the year 1814, owned a lot on Main street in St. Louis.

Louis Court of Common Pleas. On tlie 9th of January, 1843, John Magwire recovered a judgment in the St. Louis court of common pleas against Dennis Marks for 11,575.35, and on the 21st of April, 1843, Magwire recovered another judgment against said Marks for $960.54. On the 3d of December, 1847, executions issued upon these judgments, and the sheriff by direction of Ma-gwire levied the same on certain personal property.

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

Louis Land Court. Demurrer to a petition. The petition is as follows: “ The plaintiff states that one William F. Wright in his lifetime, by an indenture made between him of the one part, and Peter Difley of the other part, dated the 27th day of April, 1852, the said William F. Wright did lease unto the said Peter Difley a certain lot of ground and premises therein more particularly mentioned and described, situate in the city and county of St. Louis, in the state of…

<p>1. A bill of peace to restrain a person from instituting ejectment suits against another, on the ground that such suits would be vexatious, can not be maintained unless the title to the land in dispute has been fully and satisfactorily litigated at law; the institution of repeated ejectment suits, if the same are abandoned before trial, can not furnish a foundation for the maintenance of a bill of peace to restrain vexatious litigation.</p>

Louis Court of Common Pleas. Eoger C. McAllister, having recovered judgment against one Beasley, caused execution to issue thereon.

Louis Criminal Court. George H. Lamb was indicted for the murder of his wife Sarah S. Lamb by drowning her in the Mississippi river, in December, 1857. The evidence chiefly relied upon on the part of tbe State was the confession of Lamb voluntarily made by Mm before Rudolph Herkenrath, a justice of the peace, in the city of St. Louis, before whom he was taken for examination.

Louis Circuit Court. This was an indictment against Stephen H. Houser for the murder, in Gasconade county, on the 25th of July, 1853, of William D. Farris. The indictment was found at the September term, 1856, of the Gasconade circuit cout. A change of venue was taken to the St. Louis criminal court. Houser was convicted in the criminal court, Lackland, Judge, presiding, and the judgment against him was reversed in the supreme court.

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

Louis Law Commissioner's Court. This was an action to recover in behalf of the steamboat Keystone freight and charges upon certain iron castings shipped by the defendants at St. Louis and consigned to Eldridge Bro. & Co., at Wyandott, Kansas territory. It was in evidence that the consignees refused to receive the castings at Wyandott. The boat brought them back to St. Louis.

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

<p>1. The supreme court ■will not grant new trials on the ground that verdicts are against the weight of evidence; it is the province of the jury to attach such credit to the testimony of witnesses as they may think it entitled to.</p>

Louis Land Court. This was an action commenced September 17,1856, against Benjamin Johnson and Prances A. Graham.

Louis Court of Common Pleas. This was an action for the possession of a slave called Eliza and her three children. As evidence of title, the plaintiff, Louis Beaupied, adduced in evidence the will of John Howdeshell, deceased, the former owner of said slave Eliza. The will was dated October 27, 1849, and proved January 19, 1853. It contained the following clauses : “ Fourth.

This was an application to the supreme court for a mandamus directed to the St. Louis circuit court. The following is the petition for the mandamus : “ To the honorable the judges of the supreme court of Missouri — October term, 1858 — the petition of James Cas-tello is respectfully submitted.

Louis Law Commissioner’s Court. The facts sufficiently appear in the opinion of the court. I. It is not in contemplation of the law to give a lien upon a boat unless the work was actually rendered on board the same. (See Blass v. The Robert Campbell, 16 Mo. 266; Jones v. Steamboat Morrisett, 21 Mo. 142.) I. The court committed no error in refusing to dismiss.

Louis Law Commissioner's Cowl. These were suits before a justice of the peace to recover wages alleged to be due plaintiffs for work done on the defendant. The defendant not appearing, judgments by default were rendered against the defendant on the 19th of September, 1857. On the same day, without first making motions to set aside the judgments by default, appeals were prayed and granted and affidavits and bonds were filed.

Louis Court of Common Pleas. This was an action on the following promissory note: “ 120,202.97. New York, March 19, 1849.

Demurrer to a petition for partition. The petition was an amended and supplemental one filed October 20th, 1857, in a suit for partition originally instituted, August 21, 1854, by Susannah Anderson, widow of Ransom T. Anderson, deceased, against the heirs of said R. T. Anderson. Susannah Anderson having died, her heirs filed an amended and supplemental petition.

Louis Land Court. I. The plaintiff was not estopped. The widow, in tlie most solemn and authentic manner, elected to have dower according to the provisions of the first section. She has no claim to the benefit of the eleventh section. She can not allege ignorance of law. She made her election between the provisions of the first and eleventh sections. No notice is required to be given to the widow to put her upon her election. She was sui juris, free from all disability.

Louis Gowrt of Common Pleas. The facts sufficiently appear in the ojiinion of the court. I. When Miller recovered the judgment in this case he had no interest whatever in the cement or the receipt. When the suit was brought he had only a lien on the cement for four hundred dollars. When the note was paid, his interest ceased. Miller never could be regarded as holding the eement for the use of Daniels.

Louis Law Commissioner'1 s Court. George Smizer entered into a contract with James 0. Rai-ney and Jacob Grimm, of which the following are the substantial provisions: “Whereas Joseph Probeck contracted to do certain mill-wrighting for the undersigned, George Smizer, and whereas he, the said Joseph Probeck, has failed, leaving the work unfinished, &c., we, James 0.

<p>1. A slave was placed in a private jail-yard for safe keeping. Tlie bailor at the time knew, through, occasional visits to the yard, that a negro boy watched at the door of the enclosure and opened the same for purposes of ingress and egress. Held, that this fact would not, in an action to recover damages for the escape of the slave through negligence on the part of the jailor, prevent the bailor from complaining of the trust reposed in the negro boy as an act of negligence.</p>

<p>1. When the record proper of a cause shows that a demurrer to a petition has been regularly heard, considered and overruled, the objection will not be entertained in the supreme court that the court overruled the demurrer without hearing counsel.</p>

Louis Court of Common Pleas. This was an action on a promissory note executed by defendant in favor of the Bank of Belleville. The note was assigned to the plaintiffs. The answer put in issue the establishment of the Bank of Belleville under the laws of Illinois, and further set up that the note was without consideration and was procured by fraudulent representations. The plaintiffs gave in evidence the general banking-law of Illinois approved February, 15,1851. (See Sess.

<p>1. After a defendant in an action before a justice of the peace appears and consents to a continuance, it is too late to object to the jurisdiction of the justice on the ground that the defendant did not reside in the township in which the suit is brought.</p> <p>2. A notice to take depositions that is unsigned is insufficient; depositions taken upon such a notice, the opposite party not attending, either in person or by attorney, at the time and place specified in the notice, may be suppressed.</p>

Louis Cowrt of Common Pleas. Plaintiff alleges in his petition that on the 28th of October, 1854, he executed his promissory note to O. E. Labeaume for $416.25, payable sixty days after date; that this note was endorsed by said Labeaume and by A. & A. Wood & Co.; that said note while the property’of A. & A. Wood & Co. was by said firm deposited with Sellew & Co. as collateral security for a sum of money borrowed by said A. & A. Wood & Co. of Sellew & Co.; that afterwards the…

Louis Gou/rt of Common Pleas. The facts sufficiently appear in the opinion of the court. I. The owners were liable for a loss caused by the sinking of the barge. The court erred in striking out those portions of the deposition of Credell, in which he stated that he would not on his own responsibility trust Decker to stand on watch. This was clearly competent as the opinion of a skillful pilot, fully acquainted with Decker’s skill and competency.

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

Louis Court of Common Pleas. This was an action against defendant as endorser of a promissory note. The defence relied on was that Evans had not received due notice of protest of the note. At the trial it appeared that notice of protest had been given by a letter directed to the defendant Evans and deposited in the St. Louis post-office. Evans at the time of protest lived between two and three miles from the court-house, in St. Louis county, outside the city limits.

Louis Court of Common Pleas. This was an action to recover the hire of a certain slave alleged to have been hired by the plaintiff to defendant, and the value of certain other slaves alleged to have been wrongfully taken and converted by the defendant. Harney, the plaintiff, was appointed administrator de bonis non of the estate of Milton Duty, deceased. The slaves in controversy belonged to said estate.

Louis Circuit Court. The petition in this case is as follows: “ Plaintiffs state that they have a demand against said steamboat Indiana, amounting to the sum of $323.39, damages and charges, for that the master of said boat, as also Stoops, clerk of said boat, in navigating the waters of this state, undertook and agreed by his certain writing, which is hereto annexed and made part hereof, signed by said clerk in behalf of said boat, to carry and transport certain goods,…

Louis Law Commissioner’s Court. This was an action against the steamboat Low-Water to recover “ one trip’s wages as a rousabout,” alleged to be due plaintiff.

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

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

Louis Court of Common Pleas. This was an action 'by- plaintiffs, as: endorsers- of. a- bill of exchange, payable.at sight, drawn at-New-York by one B. F. Maniere on Smoot, Russell &• Co.,-at Leavenworth city, in Kansas territory,-in favor of John Dorsey, and by! him endorsed to defendants and by them- endorsed to-plaintiffs.

<p>1. A defendant -will not be permitted at the trial of a cause to amend by denying facts admitted in his answer.</p>

Louis Court of Common Pleas. Plaintiff states in his petition in substance that the defendant owes him two hundred and eighty dollars with interest from October 8, 1856, for services rendered the defendant by the plaintiff as pilot on defendant’s boat; that on the 3d day of September, 1856, “James F. Smith, the master of defendant’s boat, being duly authorized in that behalf, accounted with the plaintiff, and the sum then found to be due to the plaintiff for his services…

Louis Circuit Court. I. Woodboats are included in the boat and vessel act. The foreman or mate was not master. The boat was not in the habit of carrying passengers and freight. (See 10 Mo. 531.) A proceeding in rem would lie against the boat to enforce the payment of the wages of such foreman. (2 P. Wms. 367; 11 Pet. 175 ; 8 S. & R. 118; Abbott on Ship. 196, 822.) I. The demurrer was properly sustained. Plaintiff was the actual commander or master of the boat.

Louis Court of Common Pleas. This was an action for the possession of a mirror. Evi dence was introduced tending to show that the mirror was sold by plaintiffs to one Hyde, under the understanding and upon the condition that the mirror was to become the property of Hyde if he should pay for it; until he should so pay, the mirror was to remain the property of the plaintiffs.

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

Louis Court of Common Pleas. I. The court should have allowed the amendment sought. The interplea was founded upon the claim made by the in-terpleader before the sheriff under the sheriff and marshal’s act. (Sess. Acts, 1855, p. 464.) Weaver had an “ interest” in the property attached. He was entitled to make claim to the property. The court erred in giving the instruction. (See 3 How. Prac. R. 322; Voorhies’ Code, 193; 2 P. Wms, 758 ; 27 Mo. 229.)

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

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court. I. The court below erred in directing the clerk to disregard the finding of damages contained in the verdict of the jury and to enter judgment for the defendant, with an order for a future assessment of damages. If a jury return an imperfect verdict, they may be directed to retire and correct it. (2 G-reenl.

Louis Law Commissioner’’s Court. This was an action to recover back $102.66 alleged to have been paid by plaintiff to defendant under a mistake of fact and induced by the fraudulent representations of defendant. The cause was tried by the court without a jury upon an agreed statement of the facts. The facts thus agreed upon are substantially as follows: Labarge, the plaintiff, and Ren-shaw, the defendant, on the 10th of May, 1855, made an exchange of lands.

This was an action against Benjamin M. Hawkins and his sureties on his official bond. The breach assigned was the making of a false return of a writ of execution. The cause was tried by the court without a jury.

Lonis Circuit Court. William Shephard and Thomas Spence contracted with the St. Charles Western Plank Road Company “ to do the necessary masonry, grading, gutters and all things else pertaining to the complete graduation and masonry of the first division of the St. Charles Western Plank Road.” It was further stipulated that the company would pay the contractors “ at the rate of sixteen cents per cubic yard for all excavation of earth done on said road under this contract;…

Louis Court of Common Pleas. This case has heretofore been before the supreme court. The decision of the supreme court therein is reported in 23 Mo. 265.

Louis Court of Common Pleas. This was an action against James Castello, sheriff of St. Louis county, to recover possession of six bank bills — five bills of the denomination of one hundred dollars, and one bill of the denomination of fifty dollars, all bills of the Bank of the State of Missouri.

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

Louis Gowri of Common Pleas. This was a suit against the defendant as endorser of a promissory note. The defence relied on was that tbe consideration for said note bad failed, or that, by tbe wrongful taking of certain personal property, which bad been conveyed to defendant’s trustee to secure defendant against his liability on account of bis endorsement, the plaintiffs became liable to him to an amount exceeding the amount of tbe note.

Louis Cowrt of Common Pleas. Demurrer to a petition. The petition is as follows: “ Plaintiff states that the defendant is indebted to her in the sum of 1548 for money had and received to and for the use of said plaintiff, as by the following account will appear; [here follows an account of cash payments commencing May 12, 1849, and ending November 12, 1855, amounting to $548 ;] all of which will also appear by reference to the endorsements on a certain policy of insurance…

<p>1. Judgment affirmed.</p>

<p>1. Where a presumption is one of fact merely, a court is not warranted in declaring it to the jury as a presumption raised hy law.</p> <p>2. The presumption of the payment of a debt, arising from the fact that a subsequent demand due on the same account and arising from the same cause has been regularly discharged, is a presumption of fact.</p>

Louis Court of Common Pleas. This was a bill in, chancery filed originally in the St. Lonis circuit court in the year 1847 for the purpose of settling a partnership account extending through two partnerships. Boyle, Hardy and West were partners. West sold out his interest in the partnership to Boyle and Hardy, who carried on the same business until the dissolution of their firm. Boyle by his bill sought an adjustment of the accounts of both firms.

Louis Land Cowt. This was an action to recover damages for an alleged wrongful entry by defendant upon a lot of ground belonging to the plaintiff and a wrongful removal of earth from the same. The defendant admitted the entry and the removal of the earth and levelling of the lot, and set up as a defence that the same was done by the permission and sanction of the plaintiff. The lot was levelled even with the grade of the street.

Louis Land Cowrt. This was an action of forcible entry and detainer brought before a justice of the peace March 21,1857, and removed to tbe land court by certiorari.

Louis Land Court. This was an action in the nature of an action of ejectment. Both plaintiffs and defendants claim title under Thomas M. Knox. Knox was the owner of a tract of land fronting 218 feet six inches on the Garondelet road, in the city of St. Louis. This tract was the north part of a tract known as the Petit tract. This tract interfered with the common of St. Louis and with land'assigned to the public schools.

Louis Court of Common Pleas. This was an action for the possession of certain goods, wares and merchandise in possession of defendants, A. F.W. Webb and John H. Young. The plaintiff Hall sues as trustee under a deed of trust dated January 1, 1852, executed by Eestcome P. Perry.

Louis Land Cowl. This was an action in the nature of an action of ejectment by the Board of President and Directors of the St. Louis Public Schools against William Risley for the recovery of a portion of block No. 856 in the city of St. Louis.

Louis Land Court. This cause was heard before the supreme court upon the following agreed statement of facts: “ This was an action of ejectment brought by the plaintiff Blackmore against the defendant Boardman to recover possession of the premises in the petition mentioned and described, being a lot or parcel of ground situated in the city of St. Louis, containing one arpent and 66-100. The defendant answered, and the cause, by consent, was tried by the court.

Louis Land Cowrt. This was an action in the nature of an action of ejectment to recover possession of four arpens of land, being a part of United States survey No. 124, in the common field of Caron-delet. The land embraced by said survey No. 124 was assigned to Carondelet for the support of schools November 14, 1853.

Louis Land Court. This cause has heretofore been before the supreme court. (See Gutzweiler v. Lachman, 23 Mo. 168.) It was an action in the nature of an action of ejectment, commenced September 16,1854, to recover possession of certain leasehold premises in the city of St. Louis. Plaintiff claimed title by virtue of a deed of conveyance dated May 17, 1853, executed by one Thomas J. Meier as trustee for one John T. Schultze.

Louis Land Court. This is an action in the nature of an action of ejectment to recover possession of an undivided interest of a lot of ground embraced in a larger tract of one .by forty arpens situate in the St. Louis common field. Said lot was confirmed by act of Congress of June 13, 1812, to the legal representatives of Auguste Condé. The claim of Cóndé’s representatives was proven up before Recorder Hunt in 1825 under the act of 1824.

Louis Land Court. This was an action in the nature of an action of ejectment to recover possession of a portion of a lot of one by forty arpens in the Grand Prairie common field, near St. Louis, being the lot covered by United States survey No. 1664. Both plaintiff and defendant claim title under the proof made before Recorder Hunt on the 3d of March, 1825, pursuant to the act of Congress of May 26, 1824.

Louis Land Court. This was an action of ejectment for a portion of a block of ground in the city of Carondelet. The plaintiff was obliged to make title through a judgment and sale in a partition suit, commenced under the partition act of February 21,1845, in which all the parties were petitioners, and some of them were minors who appeared in the suit by guardian.

Louis Land Court. This was an action to enforce a mechanic’s lien against the bridge of the Merimac Bridge Company. The defendants are James P. Langford, Jas. N. Stevenson, Jacob 0. Gremm and Henry Gremm, and the Merimac Bridge Company.

Louis Land Cowrt. Demurrer to a petition. Plaintiffs alleged substantially that Lewis Martin died leaying plaintiffs and defendants in this suit his sole heirs ; that all of said heirs joined in a petition for partition of certain premises that had descended to them as heirs of said Martin; that a decree or order of sale was made; that a sale was made and the sheriff acting under the said order sold the premises to the defendant William C. Martin; that immediately prior to…

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. The leasehold property is to be treated as real estate. The plaintiff was entitled to .judgment against the defendants upon their answer.

Louis Land Court. This was an action for the partition of certain lands commenced by Christopher Neiman and others, all the parties interested joining in the petition. At the October term, 1856, of the Land court, the court ordered the sale of three of the tracts of land embraced in the petition. During the same term the sheriff sold said parcels, John Early became the purchaser of one tract, and L. Babcock of another.

Louis Land Cou/rt. The facts sufficiently appear in the opinion of the court. I. The lot in question was not embraced in the deed from Gamble to Tabor and Collins. The call for the “ public road” is the governing call therein. I. The deed to Tabor and Collins embraced the land in dispute. (See 2 Greenl. Cruise, 334-5, note; 12 Ill. 38 ; 29 Maine, 178; 17 Mass. 211; 3 Greenl. 71; 11 Ill. 97; 29 Maine, 120; 1 Ired. 283 ; 3 Pike, 18.)

Louis Land Court. By the act of Congress of April 29,1816, a common field lot in the St. Louis Grand Prairie common field was confirmed to the legal representatives of Jacques Labbé. By the same act, the common field lot next south of the lot so confirmed to Labbé’s representatives was confirmed to the legal representatives of Frangois Lachapelle. These confirmations were surveyed by the United States.

Louis Court of Common Pleas. This was an action to recover six hundred and eight dollars for the board, lodging, washing and clothing of a certain slave boy, named Richard, belonging to the estate of Presley N. Ross. The defendant Cole was one of the administrators of said Ross. Said Richard was a son of the plaintiff. Ross died in 1845. Plaintiff also belonged to the estate of Ross.

Louis Land Court. This was an action commenced to enforce a mechanic’s lien on the engine house of the Liberty Fire Engine Company of St. Louis. The said company and the city of St. Louis were defendants. A judgment by default was rendered against the company. At the trial the plaintiff adduced in evidence ordinance No. 3595 of the city of St. Louis. By the thirteenth section of this ordinance, it is provided among other things as follows : “ Sec. 13.

Louis Land Court. This was an action in the nature of an action of ejectment to recover possession of a parcel of ground in the city of Carondelet. The cause has heretofore been before the supreme court, whose decision is reported in 23 Mo. 331. The defendant Barada was in possession as tenant of Sullivan and Papin, who were permitted to become parties defendant.

This was an action in the nature of an action of ejectment, commenced May 4, 1855, to recover possession of a tract of 58 54-100 acres, being the east fractional half of the south-east fractional quarter of fractional section fifteen, township thirty-seven north, range two east, in Washington county.

St. Louis Circuit Court. This was an action of ejectment brought by William Mil-burn and others, as commissioners appointed by the St. Louis county court under authority of an act of the general assembly of March 8, 1851, to recover possession of part of fractional section sixteen, in St. Louis township. At the trial, the plaintiffs adduced the following evidences of title: 1.

<p>1. Tbe survey of tbe outboundary line of tbe town of St. Louis — the plat of which is commonly known as “Map X” — is not conclusive upon persons claiming title under confirmations by virtue of the first section of the act of Congress of June 13,1812; said act is operative to confirm to individuals common field lots and outlots as well without as within the said outboundar ry line as established by said survey.</p>

This was an action in the nature of a suit in equity. The plaintiff is William E. Dunnica; the defendants are John Coy, Elizabeth Coy, Collins Coy, and John Prewitt.

This was a suit by attachment brought by Richard D. Wood and others, members of the partnership firm of “Wood, Bacon & Co.” The attachment bond commenced thus: “ We, ‘Wood, Bacon & Co.,’ by our attorney, P. S. Brown, as principal, and ‘ Northup & Co.’ as securities, acknowledge,” &c. It was signed as follows: “Wood, Bacon & Co. [seal], by their attorney, P. L. Brown [seal] ; Northup & Co., by H. M. Northup [seal].” Squires, the defendant, moved the court “ to dismiss the…

<p> Appeal from Benton Circuit Court. </p> <p>This was an indictment for grand larceny. The indictment charged the defendant, William Z. Martin, with felo-niously stealing two oxen, the property of Stephen L. Cheat-ham. The court gave the following instructions at the instance of the prosecution: “ 1. If the jury believe from the evidence that said Cheatham was the owner and possessed of the cattle mentioned in the indictment, and that defendant knowingly took and drove them away, in Benton county, against the consent of said owner, without any claim of right, and with the intent to deprive said owner of them and to convert and appropriate them to his own use, and thereby to defraud said owner of them, they will find him guilty. 2. If the jury believe from the evidence that said Cheatham was the owner of the cattle and that they strayed away from him and went to Mr. Baker’s, ahd while they were at Baker’s and at the time defendant took and drove them away (if he did so) said Cheatham was still the owner of them, then the said ownership drew to said Cheatham the possession, and the defendant is not the less guilty from the fact of having taken them at said Baker’s, nor from the mere fact of their having so strayed away, if the facts otherwise fix his guilt.”</p> <p>The court gave certain instructions asked by defendant, but refused the following: “ 7. If the jury shall believe from the evidence that tlie cattle had strayed away from Cheatham before he moved’ away from the place the cattle strayed from, and that Cheatham afterwards moved six or seven miles from that place, and that Cheatham did not know where they were, yet, although the defendant may have been the person who took the cattle, it was not a felonious taking of the cattle from Cheatham’s possession. 8. Whenever the declarations of the defendant are given in evidence to establish a fact against him, and his declarations when proved tend to prove a fact in his favor, whatever he said in his own favor should be taken as true unless it is disproved by other evidence in the cause. 9. If the jury shall believe from the evidence that the cattle strayed away from Cheat-ham, and he did not know where they were, and that they were running about the premises of the witness Baker, and that it was not known who was the owner of them, and that there were no marks about them so that the owner could be known, they were lost property within the meaning of the law. 10. If the jury shall believe from the evidence that Cheatham lost the cattle out of his possession and that defendant found them and did not know the owner of the same, and, believing that they were lost, took them openly in the day time, they should acquit him. 11. If the jury shall find from the evidence that the cattle had been lost out of the possession of Cheatham for a considerable length of time, the defendant is not required to prove how he came into the possession of the property to disprove any presumption of guilt.”</p> <p>I. The court erred in determining that Gallaher was a competent juror. He had formed am opinion on a material fact to be tried. He knew the cattle to be Cheatham’s.</p> <p>II. The court erred in refusing to admit the testimony as to Kendrick’s admissions ; also in giving the second instruction asked by the state. (See State v. Conway, 18 Mo. 321.) The instruction was calculated to mislead the jury. The property had strayed away; it was lost to the owner. <(3 Chitt. C. L. 916.) The court should have given the seventh instruction asked by defendant. Defendant could not be convicted of grand larceny for taking stray cattle. He could only be indicted under the act concerning strays. (R. C. 1855, p. 1511, § 33, 34.) At most he could only be indicted under section fifty of article three of the act concerning crimes and punishments, (R. C. 1855, p. 582,) or under the act concerning strays. The court should have given the eighth instruction. (1 Greenl. Ev. § 218; 2 Carr. & Pag. 629.) The court should have given the ninth and tenth instructions. (18 Mo. 321.) So also the eleventh. Cheat-ham had lost the cattle. They had been out of Cheatham’s possession at least three months before they were found in Martin’s. (See 15 Mo. 168 ; 12 Ill. 259.) The court should have sustained the motion in arrest. The property is not described in the language of the statute.</p> <p>I. Gallaher was a competent juror. When a juror qualifies himself under the statute and the court below accepts him, this court can not say error was committed. (Baldwin v. State, 12 Mo. 226.) There was no error in excluding the testimony as to one Hendrick’s admissions. The instructions given presented the law arising upon the facts properly to the jury. (2 Har. 530 ; Whart. 651; 2 Tyler, 399, 387.) Our statute concerning lost property would seem not to apply to domestic animals. Such animals when strayed are not considered as lost. The seventh instruction asked by defendant was properly refused. It withdrew from the jury the question of felonious intent, and restricted the issue to the single question of knowledge on the part of Cheatham as to where the cattle were when taken by defendant. The penalty in the thirty-third and thirty-fourth sections of the stray law is cumulative, and for an offence not amounting to larceny. The penalty is for a conversion of the stray after it has been taken up and posted. There could be no larceny in such a case, because the original taking and possession were lawful. The eighth instruction was properly refused. (Wharton C. L. 320; 9 Leigh, 635.) So the ninth and tenth instructions were properly refused, for the reasons that rendered it proper to give the second instruction. The indictment is sufficient. (22 Mo. 453.)</p>

This was an action commenced before a justice of the peace on a promissory note for one hundred and fifty dollars, dated October 5, 1855. At the trial the plaintiff read in evidence the note and rested. The defendant then offered to read the deposition of one William E. Hall, taken in Washington city.

Tliis was an action in the nature of an action for money had and received against the city of Boonville by the corporate name and style of the “ Mayor, councilmen and citizens of the city of Boonville.” The plaintiff was arrested under a warrant by a constable of the city of Boonville for a violation of an ordinance of said city in relation to auctions, approved May 10, 1845. The following is the third section of said ordinance: “ Sec. 3.

This was au action commenced October 17,1857, against W. W. Norris and others on a promissory note for $5,643.86. A writ of attachment was issued October 17, 1857, against Norris, and Harvey Bunce was summoned as garnishee of said Norris. Upon the trial of the issue raised in this garnishment proceedings, three several deeds of trust, executed by said Norris, to said Bunce as trustee for various creditors of said Norris were adduced in evidence.

This was an action on two promissory notes, for one thousand dollars each, executed by defendant in favor of plaintiff. The defence is that said notes were given in consideration of the sale by plaintiff to defendant of a certain tract of land the title to which had failed. It appeared in evidence that West, the plaintiff, in 1857, sold to Best a certain tract of land for two thousand five hundred dollars, and executed a deed therefor with covenants of warranty.

The facts in evidence sufficiently appear in the opinion of the court. The court gave the following instructions at the instance of the plaintiffs: “ 1. In ascertaining the boundaries of United States lands according to the government surveys, the boundary lines actually run and marked by the public surveyors are to be taken as the true boundaries, although such marked boundaries may not correspond with the courses and distances.

This was an action on a bond executed by the defendants, whereby they promised to pay plaintiff, “Richard Long, trustee for Benjamin E. Horne,” the sum of two hundred and six dollars. The error complained of is the striking out, on motion of plaintiff, of the answer of the defendants. In this answer the defendants allege, substantially, that the plaintiff, assuming to act as trustee for one Benj.

The following is the instruction given by the court: “ If the jury believe from the evidence in this case that the defendant, in the county of Greene, within one year before the finding of this indictment, did sell any whisky in a quantity less than one gallon,- they must find the defendant guilty, unless the jury further find from the evidence that the defendant was a dealer in drugs and medicines and that the whisky was used only for medicinal purposes.”

Tbe facts sufficiently appear in tlie opinion of tlie court. I. The court erred in refusing to hear defendant’s testimony. Section twenty-two of the act to tas and license merchants (R. C. 1855, pi 1077, § 22) allows a dealer in drugs and medicines to sell liquor in any quantity when it is used only for medical purposes. The circuit court seems to have entertained the idea that defendant had first to show that the liquor was prescribed by a practicing physician.

This was an action on a negotiable promissory note for two hundred and twenty-eight dollars, dated March 10,1858, and payable one day after date. The note was drawn payable to the order of A. W. Mason. The plaintiff in his petition alleged that said Mason, by his duly authorized agent, had assigned said note to plaintiff.

I. The justice of the peace had jurisdiction of the action. (Sess. Acts, 1847, p. 157; id. p. 247 ; Sess. Acts, 1853, p. 321; Sess. Acts, 1855, p. 414; Sess. Acts, 1851, p. 232.) I. The circuit court committed no error in dismissing the suit. The justice had no jurisdiction. The defendant was incorporated prior to the passage of the general railroad act of 1855.

The facts sufficiently appear in the opinion of the court. I. The court improperly admitted the statements and declarations of defendant. The third instruction asked by plaintiff was improperly refused. The second and third instructions given for defendant should have been refused; they were calculated to mislead the jury.

<p>1. A defendant can not introduce evidence to support a defence not set up in his answer. If the evidence discloses a defence not set up in the answer, the court may, in furtherance of justice and on such terms as may he fit, allow the defendant to amend his pleading so as to make it conform to the facts in proof, provided the amendment does not substantially change the defence.</p>

The petition in this case is substantially as follows : Plaintiff states that he is the owner of and occupies for agricultural purposes a certain forty acre tract; that on the-day of-, 1858, a certain forty acre tract of goYernment land [describing it] was subject to entry at the graduation price of one dollar per acre ; that, the same is adjacent to plaintiff’s farm aboye described; that, on the day and year aforesaid, the defendant agreed with plaintiff that if plaintiff…

On the 22d day of July, 1858, the plaintiffs filed their petition against defendant on a promissory note. Summons in the usual form issued July 23,1858. This writ was served October 5,1858.

The facts sufficiently appear in the opinion of the court. I. The court having adjourned over from August until November, all its proceedings in the latter month were but the proceedings of the regular August term. The court was authorized to hold the court in November in continuance of the regular term. (R. C. 1855, p. 540, § 48.) No additional process was required to enforce the appearance of witnesses or parties.

At the May term of 1857, of the Caldwell comity court Wilbur E. Boggs presented for allowance against the county an account for three hundred and ninety-six dollars and ten cents for making an index to the record of deeds. The account was “ disallowed.” At the March term, 1858, he asked and obtained leave to introduce testimony touching the same account. The court having heard the testimony adhered to its former decision. An appeal was prayed and granted to the circuit court.

Error to Kansas City Court of Common Pleas. I. The Kansas city court of common pleas had jurisdiction of probate matters. It could grant letters of administration.

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

<p>1. The Kansas city court of common pleas has no jurisdiction to enforce mechanics’ liens. (Ashburn v. Ayres, 28 Mo. 75, affirmed.)</p>

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

<p>1. A person to whom a negotiable promissory note has been endorsed may maintain an action thereon in his own name, although it was endorsed to him merely for collection. In a suit on such a note by an endorsee the caption of the petition was as follows : “A., to the use of B., plaintiff, Y. C., defendant.” In the body of the petition the plaintiff alleged title in himself by endorsement from B. Held, that the words in the caption “ to the use of B.” might be regarded as mere surplusage.</p>

<p>1. Judgment affirmed.</p>

The facts sufficiently appear in the opinion of the court. I. The court erred in permitting the note to be read in evidence. The note was endorsed in blank and said blank was not filled up. The same rule does not apply as in case of negotiable paper. The holder of a non-negotiable note with a blank endorsement thereon can not maintain an action thereon in his own name without filling up the blank. (8 Mo. 9.)

The indictment in this case is as follows: “ The grand jurors for, &c., &c., present that David Welch, late of, &c., on, &c., at, &c., did then and there, when required by one of the assessors in and for the county of Webster, unlawfully fail to give a true list of all his taxable property as required by law, contrary to the form,” &c. By the second count'of the indictment it is charged that the defendant “ did unlawfully deliver to the assessor a false and fraudulent list…

The facts are sufficiently set forth in the opinion of the court. I. The evidence offered by defendant to show that the money collected belonged to Fisher’s estate was surely competent under the issues in the cause. It rebutted the idea that the money was received under the power of attorney. The defendant denied the reception of the money as agent; he offered to prove that it belonged to a stranger.

It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court. I. The court erred in excluding the testimony offered. (2 Mo. 109; 25 Mo. 63; Sugd. Mend. 135; 1 Blackf. 58 ; 5 Blackf. 383.)