Volume 3 — Missouri Reports

<p>ON AN APPEAL from the Howard Circuit Court.</p>

<p>ERROR from Cooper. Circuit Court.</p>

<p>1. Consent to appear and submit-to the judgment of a Court, waives all objection ta-want of form or regularity in an appeal from an Inferior Court.</p> <p>2. The Circuit Court can exercise appellate power on appeals regularly taken from the County Court.</p> <p>3. When parties in the County. Court consent to an appeal to the Circuit Court for the opinion of the Circuit Court upon the law arising from the facts of the case, in such case the power of the Circuit Court is precisely what it would be -in. a cause carried up in due form of law, and in such case the Circuit Court may enter into the trial de novo.</p> <p>4. A decision of the Circuit Court will be deemed correct, when nothing on the record shows it incorrect.</p>

<p>ERROR from Howard Circuit Court.</p>

<p>1. Oppression growing- out of fraud, and exercised in a country where no legal means of redress existed, forms a clear claim to relief. (Note a.)</p> <p>2. If the defence be purely legal, it must be made at law, and cannot be made irt equity, unless a good excuse be shown why it was not made at law.</p> <p>3. If the transaction be founded in fraud, the relief is in both law and equity, in some instances; but if a Court of Law adjudicate the point, the matter is forever ended.</p> <p>4. In cases where it is doubtful whether Courts of Law can give relief, Courts oí. Chancery will entertain jurisdiction.</p>

<p>An action of debt will not lie for the payment of a stipulated sum in property.</p>

<p>1. When parties understand acontraet differently, the jury mustgive to theevidence of the contract, a plain common sense construction.</p> <p>2. If A. sell a horse to B. for a note on C., and afterward A. bring an action against. B. for a failure to deliver the note on C., the measure of damages will be, not the value of the horse at the time of sale with interest, but what the note purports to be worth. (Note a.)</p> <p>3. An instruction given by the Court, which is not required by the testimony, is therefore wrong.</p> <p>4. If, in a contract for a note, the note delivered does not answer the description, it will not satisfy the contract; unless the parties knew they were contracting for the note delivered.</p>

<p>ON AN APPEAL from Boone Circuit Court.</p>

<p>ERROR from St. Charles Circuit Court.</p>

<p>l. An infant cannot'appear by attorney.</p> <p>2. If an infant appear by attorney, as-well as by next-friend) it will 'be error;</p> <p>а. Every plaintiff and defendant.will be taken to.be of full age till the point is madé- and evidence heard:</p> <p>4. Judgment against an infánt is good till reversed;.</p> <p>б. The act respecting suits for freedom, leaves the common law as it was, as regards the rights of infants to sue.</p> <p>6. Irregularity is no cause of reversal, until the Court below have acted on the irregularity.</p>

<p>If letters of administration purport to he granted by proper authority, and are in due form and sealed with the office seal of the County Court, they will be good without the signature of the Clerk, until set aside for want of formality.</p>

<p>2. To submit a cause to a jury, after it has been submitted to a Court, is not error, but at most only an irregularity.</p> <p>i. The plaintiff in ejectment may enter a remittiter when the finding is for too much, to avoid a new trial.</p>

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

<p>A. and B. became the joint purchasers of a lot, which was afterwards divided by s-; deed of partition, executed by each party, and conveying to each an estate in fee simple. A.’s house stood in part on the street adjoining the lot divided, and three feet and upwards of B.’s house was on that part of the lot conveyed to A. At the close of the> deed of partition, it was covenanted that as a part of B.’s house was on A.’s part of the lot divided, and a part of A.’s house on the adjoining street, when the corporation of the town in which the lot was situated, or any competent authority, should demand, of A. the land which he enjoyed on the street, then on the demand of A., B: should abandon or remove from the three feet or upwards which he enjoyed belonging to A. Held that B.: was rather a tenant by sufferance, and that A. could recover the three feet and upwards without proving a demand on. himself by the corporation- or other competent authority.</p>

<p>ERROR from the Circuit Court of Franklin county.</p>

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

<p>ít is fair to infoi' every thing' against a Sheriff’s return which its departure from the statute Will warrant.</p>

<p>ERROR from the Callaway Circuit Court.</p>

<p>ERROR from Marion Circuit Court.</p>

<p>ERROR from the Circuit Court of Lincoln county.</p>

<p>ERROR from Callaway Circuit Court.</p>

<p>ERROR from Callaway Circuit Court.</p>

<p>ERROR from the Howard Circuit Court</p>

<p>ERROR from the Circuit Court of Boone county.</p>

<p>ON ERROR from St. Louis Circuit Court.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>1. A note given for the payment of a certain sum in work, is not assignable.</p> <p>2. To maintain an action on an instrument for personal services, it is necessary that a special request for the performance of the services be first made.</p>

<p>ON ERROR to St. Louis Circuit Court.</p>

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

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

<p>IN ERROR to St. Louis Circuit Court.</p>

<p>The husband and wife cannot convey an estate granted to the wife and her heirs during coverture. (See R. S. of 1825, p. 221.)</p>

<p>í. A security cannot maintain an action against a Constable on his official bond, for neglect in serving process against his principal, in consequence of which the priir cipal becomes insolvent, and the security is compelled to pay the money. If the security has a remedy against the Constable, it is by action on the case.</p> <p>2. But a security may protect himself by paying the debt and calling on his principal immediately to refun 1.</p> <p>3. If a security notiñes a creditor to sue, any indulgence thereafter to the principal, to the injury of the security, will discharge the security from liability.</p>

<p>An instrument warranting a Jack to be a sure foal getter, anil a sound and healthy Jack, and promising to refund seventy-five dollars with interest, in ease he proves otherwise, is a liquidated claim, and may be given in evidence before a Justice of the Peace without notice.</p>

<p>APPEAL from Howard Circuit Court.</p>

<p>The act of 1831, declaring assaults, batteries, affrays, riots, routs anil unlawful assemblies, offences not indictable, but punishable before Justices of the Peace in a summary way, held constitutional.</p>

<p>Permitting a pack of cards to be used, with which money is won and lost, is an of-fence punishable under the statute against gambling. (Note a.)</p>

<p>authenticated record of a judgment or decree, rendered in a sister State without actual notice to the defendant, is not entitled to full faith, credit and effect in this State. (Note a.)</p>

<p>ERROR to Callaway Circuit Court.</p>

<p>i. Reading the notice of an appeal in the presence of the appellee, is not a sufficient service ;• it must be given in writing.</p> <p>B. The notice of an appeal from a Justice of the Peace, served after the lapse of a term-of the Circuit Court at which the cause might have been tried, but ten days ■before the term at Which the cause was actually tried, is insufficient.</p>

<p>APPEAL from the Jackson Circuit Court.</p>

<p>1. Where the record doe6 not show whether the indictment was or was not correctly-endorsed, the decision of the Circuit Court on that point will be held correct.</p> <p>3. unlawfully throwing down the roof and chimney of a dwelling house, in the peaceable possession of another, with force and arms, is an offence indictable at common law, and not one of those made cognizable before Justices of the Peace.</p>

<p>The increase of live stock belongs to the person holding the particular estate, ami not to the remainder-man.</p>

<p>■APPEAL to Howard Circuit Court.</p>

<p>ON APPEAL from the Boone Circuit Court.</p>

<p>ERROR from the Circuit Court of Boone county.</p>

<p>ERROR to the Circuit Court of. Boone- county.-</p>

<p>ERROR to the Circuit Court of Howard county.</p>

<p>At the April term of the Supreme Court, for the year 1828, held at the town of St. Charles, within and for the second judicial district in the State of Missouri, the following opinion was given by the Judges and is now (Dec. 1832) directed to be published, to-wit:</p> <p>1. An administration bond being joint and several, may be put in suit by any person aggrieved, against any one or all of the obligors; and the security may be sued as soon as the principal commits a breach of the condition, and before conviction of the principal either by judgment or verdict,</p> <p>s. A breach setting out a failure to make annual, and a failure to make final settlement, is well assigned.</p> <p>3. Permission from the Court to an administrator “ to retain in his possession the money of minors,paying lawful interest therefor,” in pursuance of the act January 81st 1815, does not cancel the obligation to make annual and final settlement, or interfere with the power or duty of the security to compel him to do so, after the expiration of the time for which the money was loaned.</p>

<p>APPEAL from Circuit Court of Montgomery county.</p>

<p>ON WRIT OF ERROR to Circuit Court of Marion county.</p>

<p>ERROR to the Circuit Court of Callaway county.</p>

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

<p>A notice to take depositions on the 22d of the month will not authorize the taking of them by adjournment from day to day, on the 26th, without having commenced the taking on the 22d.</p>

<p>ON ERROR from the St. Louis Circuit Court.</p>

<p>ON ERROR to St. Louis Circuit Court.</p>

<p>ERROR to the Circuit Court of Boone county.</p>

<p>APPEAL from the Circuit Court of Clay county.</p>

<p>ERROR to the Circuit Court of Boone county.</p>

<p>ERROR to the Circuit Court of Saline county.</p>

<p>Where the defendant pleaded a tender to an action on a bond for one hundred dollars, to be discharged in horses on a certain day, it was held that the tender should have been made at the house of the obligee, unless he had repaired to the house of the obligor on the day the debt became due, in which case a tender at the -house of the obligor would have been good.</p>

<p>APPEAL from Randolph Circuit Court.</p>

<p>1. A. with B as security, executed his note to C. for $100. A. to indemnify B., assigned to him several notes on solvent men to the value of 35160. B. sold the notes so assigned, to C., in discharge and satisfaction of the note on himself and A. When A. assigned the notes to B., C. had a judgment against them for $91 31. In a suit by A. to recover the difference in the value of the notes assigned to B. and the note given to C., it was held that the Court did right to refuse to instruct the jury, that if they believed the notes in the declaration mentioned, were assigned to B. as a pledge to secure him against the note to C., and that he gave up to C. all the notes so assigned in satisfaction of that note, and if they believed also that the notes so assigned were, at the time they were given up to C., worth more than C.’s note, they must find for the plaintiff the amount of the difference of such value.</p> <p>2. Where property is pledged to indemnify against a debt, when the debt falls due the pledge may lawfully apply the property in discharge of the debt.</p>

<p>ERROR to the Circuit Court of Boone county.</p>

<p>ERROR to the Circuit Court of Randolph county.</p>

<p>Where a suit was commenced by an assignee, Charles R. Rogers, and the note in evidence was assigned to C. R. Rogers, it was held that a motion to instruct the jury that there was no evidence to prove that C. R-. Rogers to whom the note was assigned, was the plaintiff Charles R. Rogers, was properly refused.</p>

<p>ERROR to the Circuit Court of Boone county.</p>

<p>A. covenanted with E. to build a house of a certain description for a price mentioned in the covenant. B. covenanted to pay the price agreed on for the work when done. After A. had performed a considerable part of the work under the covenant, B. refused to let him proceed any further. A. desisted and brought an action of assumpsit for the amount of work done. It was held that A. could not recover in assumpsit, but that as B. prevented him from fulfilling his covenant, he might have sued on the covenant and have alledged the prevention, in which case he would have been entitled to his money, as if he had'performed his covenant. (Note a.)</p>

<p>Where a party has a covenant or sealed instrument in regard to the matter of the contract, he must rely on that, and cannot abandon his contract or agreement at pleasure, and resort to assumpsit for work and labor generally. (Note a.)</p>

<p>í. A notice of appeal, not objectionable in the language, given by an agent, and assigned “William Runkle by Wm. K. Yanarsdale,” is good.</p> <p>2. It is error to dismiss an appeal from a Justice, and then to reverse his judgment.</p>

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

<p>Where covenants are mutual and independent, either party may recover damages from, the other for an injury which he may have sustained by non-performance. (Note a.)</p>

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

<p>1. Having made two grants of land in 1769 on the same day, one of -which was after-wards confirmed by the united States, is not sufficient evidence that the grantor was at the time an officer of the French or Spanish government, invested with power to grant lands.</p> <p>2. A grant existing on the land book called lime, terrien will not be considered as existing by matter of record, without evidence that the livre terrien is of itself a record.</p>

<p>ON A WRIT OF ERROR from St. Louis Circuit Court</p>

<p>X tennae covert is not liable on a note executed by herself, even though her husband has been absent in another State for many years.</p>

<p>Where an immaterial issue had been found for the defendant, it was held that the Circuit Court erred in overruling a motion of the plaintiff for judgment on a material issue.</p>

<p>A. conveyed an estate in fee simple, with a covenant of quiet enjoyment to B. He further covenanted in the same deed, to surrender a part of the estate thus conveyed on i he happening of a certain event. It was held that this latter clause did not authorize A. to hold until the happening of that event, and that B. was entitled to immediate possession.</p>

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

<p>A carrieris.responsible for all losses, except such as.are inevitable, or such as arise .'from the act of Cod, or the. enemies, of his country,, or -such. as. are excepted in his contract. (Note a.)</p>

<p>A receipt, acknowledging the receipt of a keel boat in good order, and promising to return the same in a reasonable time in like good order, covers all defects in the boat except secret defects.</p>

<p>APPEAL from'the Circuit Gourt of St. Charles .county.</p>

<p>1. Where a person does not intend introducing slavery into the State of Illinois, yet does in fact introduce it, he will forfeit his slave unless he can show some reasonable and necessary cause for introducing the slavery.</p> <p>2. Where a slave was settled in the State of Illinois, but with aninten on the part of the owner to be removed at some future day, it was held that hiring said slave to a person to labor for one or two days, and receiving the pay for the hire, entitled the slave to her freedom, under the second section of the sixth article of the Constitution of Illinois. (Note a.)</p>

<p>INFORMATION in the nature of a quo warranto.</p>

<p>A writ of error lies in a capital case, but a bill of exceptions will not be allowed. (Note a.)</p>

<p>ERROR to the Circuit Court of Howard county.</p>

<p>ON A MOTION FOR A MANDAMUS to the Circuit Court of Saline county.</p>

<p>1. Fraud may be presumed, but not without some evidence on which a presumption may be raised.</p> <p>2. To constitute a sale fraudulent in fact, as against creditors, it must be made with intent, on the part of the vendor, to defraud, delay, or hinder creditors.</p> <p>3. Where the transaction on the part of the vendor is bona fide and for a full and valuable consideration, the fraudulent intent of the vendor alone, will not render the conveyance void, although it might be void for other reasons.</p> <p>i. A debtor may prefer one creditor to another, and may transfer all his property to one, and leave the other wholly unpaid.</p> <p>5. A conveyance will be deemed bona fide and honest, unless fraud is proved, or can be presumed from some evidence upon which a presumption may be raised.</p> <p>6. An intention to secure a member of a firm against the ultimate consequences of an insolvency supposed to exist, is not a valuable consideration for a deed of sale; hut a liability may form a good consideration for a mortgage or sale of property, but the liability must happen before the consideration is complete.</p> <p>7. Secret trusts and powers are not favored by the law, and are not permitted to stand in the way of creditors and purchasers.</p> <p>8. Retaining possession, after a sale of personal property, is such evidence of fraud, as should be left to a jury.</p> <p>9. If A. purchase of B. for a valuable consideration, and honestly to secure himself and not to defraud creditors, his purchase will be good, although he knew at the time that B. was greatly indebted and actually in insolvent circumstances.</p> <p>10. Where possession does not accompany the sale of property, the sale will be fraudulent and void as respects creditors. (Note a.)</p> <p>11. A bill of sale made secretly, and to be kept secretly, where the possession remains with the vendor, will be void as to creditors.</p> <p>12. A bill of sale’s being conditional, where the property remains in possession of the vendor in pursuance of that condition, does not save the transaction from being fraudulent as to creditors and purchasers.</p> <p>13. Where a vendor makes a deed with intent to defeat his creditors, it is void notwithstanding the vendee had no such intention on his part. See note 3 in this case.</p>

<p>1. Unless the law require a full detail of a judicial transaction to appear, where the main conclusion of a transaction appears to he right, the law will in general presume the details to be right also; but in ex parte cases, where it is believed every thing must appear to be correct, this presumption will hardty be made.</p> <p>2. A party who wishes to detain property as an estray, must show an exact compliance with the law on the subject of taking up estrays, both on his own part and on that of the justice before whom the appraisement is made.</p>

<p>1iVhen a demurrer to a bill of discovery is overruled, the bill, or so much as remains unanswered, is taken as confessed; and the confessions of the bill are, in law and equity, as complete as the confessions could have been, had the bill been answered and every part thereof charged to exist, being expressly admitted.</p>

<p>MOTION FOR A PEREMPTORY MANDAMUS to the Circuit Court of Howard county.</p>

<p>The acta of the General Assembly of 17th January, 1831, to provide for the sale of the township school lands, is not repugnant to the nature of the grant, nor does it conflict with any provision of the Constitution of this State. The General Assembly having power to provide for the sale of these lands, for the use of schools, a purchaser of any of these lands under said act, acquires a valid title in fee simple to the same.</p>

<p>l. An appearance in Court, and an acknowledgment of an agreement to refer all matters in difference to the arbitrement of certain persons, is a sufficient recognition of .the agency of a person who has made the affidavit and recognizance required in an appeal from a Justice of the Peace.</p> <p>3. An agent who receives money or property for his principal, or a factor who sells goods or property, or receives goods or property which remain unsold, is not liable to an action until the money, goods, property or account of sales be demanded.</p>

<p>ON ERROR Rom the Howard Circuit Court.</p>

<p>ON ERROR from the Boone Circuit Court.</p>

<p>Where the subject matter of a suit is as properly cognizable before the Circuit Court as before a Justice of the Peace, the plaintiff may have costs awarded him although he recover less than fifty dollars damages. (Note a.)</p>

<p>A.and B. hold a joint lien on a tract of land. B. assigned his part to C. on a piece of paper separate and distinct from the instrument by which the debt was secured. B. afterwards died, and A. administered on his estate. It was held that A., as administrator, was not bound to take notice of-the assignment of B., h.is intestate, to C.</p>

<p>1. Admissions made by a person, after he has parted with his interest in a bond or note, cannot be given in evidence in prejudice of the assignee. (Note a.)</p> <p>2. An instruction to the jury, to decide between the parties according to what they might think was right and equitable, is too indefinite to be sustained by the act of Jan. 18,1831.</p>

<p>U In an action of trover for-the value -of a horse, witnesses-sta-ted that the horse was-worth from fifty to seventy dollars. A-verdiet was found for thirty dollars. It was held that on application a-newvtrial should have been granted.</p> <p>2-. In an action of. trover for the value of a horse, witnesses-stated that the horse was-worth from fifty to seventy dollars.- A-verdiet was-found for thirty dollars. The Court gave judgment against the plaintiff for costs. It-was held that under the-evidence, the Circuit-Court did'-not-exereise its discretion soundly in -adjudging the ■ costs against the plaintiff.</p>

<p>1. Justices are allowed the whole of the first day of a term.of the Circuit) Court, to make return of a writ of certiorari. A motion therefore, to dismiss a writ on the first day,.is premature.</p> <p>2. When the writ of certiorari and the record are in Court, the Justices will be allowed to amend.</p> <p>3. Any decision, order or decree of, the Circuit Court, which puts an end to the proceedings between the parties to a cause in that Court, may be reversed upon appeal or writ of error.</p>

<p>A writ of error will not Sio from the Circuit Court to the County Court</p> <p>M’Gikk, C. J., dissenting.</p>

<p>A contracted to hire a negro to B for one year. The - contract was not reduced to writing. The negro was delivered at the time agreed on, and the year’s services performed. This contract was held not to be within the 1st section of the act defining the effect of contracts and promises. It was further held, that proof of an acknowledgment of an unwritten contract within the year would not take it out of the statute. (Note a.)</p>

<p>1. When application for relief against a judgment atlaw'is delayed, it furnishes a presumption against the equity of the defence set up.</p> <p>2. A bill stating that a bond had been-executed in consideration of the transfer of sundry small accounts, and a small stock of hogs, and that the accounts had not been collected in consequence of insolvencies, and the want of proof by reason of the absence of the obligee in the bond, who had gone to a foreign oountry, and collections previous to the transfer of the accounts, contains no equity.</p> <p>3. The bill should have shown that the obligor agreed to make up losses by insolvency, and to remain in the country to prove the accounts.</p>

<p>The proceedings under the statute of wills, to contest the validity of a will admitted to prohate hy the Court of Probate, must be at law and not in equity.</p>

<p>1. An affidavit made by an appellant in a Justice’s Court in these words, viz: “That he did not appeal, but because he was injured by the judgment of the Justice,” is good in substance.</p> <p>2. In the proceedings of Justices’ Courts, substance and not form is regarded.</p> <p>3. A warrant was issued under the 7th section of the act regulating Jusliees’ Courts, and served, not by arresting the body, but by reading as in case of an ordinary summons, and on the non-appearance of the defendant a judgment by default was rendered against him. Held, that under such service the defendant might appear and defend : that he had all the benefit of the process the law contemplated: that the arrest of the body is designed for the benefit of the plaintiff, which he may waive ; and that if the defendant, after the judgment by default, take the cause to the Circuit Court, he is precluded from any objections to the regularity of the proceedings, the law requiring that on appeals from Justices’Courts, a trial de novo shall he had in the Circuit Court on the merits, without regard to the irregularities and informalities of the Justice.</p> <p>4. An affidavit is essential to give to the Circuit Court jurisdiction of an appeal from a Justices’ Court.</p> <p>6. Where it appears that there is an appeal from a Justices’ Court, regularly in the Circuit Court, the Court must try it, unless there was no legal cause before the Justice.</p>

<p>1. A certificate by a Judge of another State, authenticating a record under the act of Congress, in these words, “ I certify that the certificate of the Clerk is in due form of law,” is sufficient.</p> <p>2. In an action on a foreign judgment if it appears from the record that the judgment has been satisfied, it will be a variance from the declaration.</p> <p>a. When property sufficient to satisfy an execution is levied on, it is a satisfaction of the judgment.</p> <p>4. In an action on a judgment, if the record contain a bill in Chancery, filed by the defendant against the plaintiff, the defendant will not be permitted to read the bill in evidence.</p> <p>5. If it appears from the record of a judgment that its payment has been enjoined, and no disposition of the injunction appears, the objection will be fatal in an action on the judgment.</p>

<p>St cannot be assigned for error that the Court gave an improper verdict, the propel course is to move to set aside the verdict and except to the opinion in refusing it, as in case of the verdicts of juries.</p>

<p>On re-argument.</p>

<p>1. A payment made to the payee of a note by the maker, after the assignment of the same, and before the maker had any notice of such assignment, is not a good defence to an action by an assignee of the note; and it is immaterial whether the note be due and payable or not, when it- is assigned.</p> <p>5. It is'the duty of the maker to look after his note, and to know whether it has been assigned, before he pays it.</p>

<p>ON ERROR from St. Louis Circuit Court;.</p>

<p>APPEAL from the Circuit, Court of Crawford county.</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>1. The Clerk of the Circuit Court has authority to issue an execution on a transcriptof a judgment of a Justice of the Peace, filed in his office.</p> <p>2. What is clearly implied by a statute, is as much a part of the statute as if ex-, pressed in words.</p> <p>3. A recital in an execution issued by a Clerk of a Circuit Court, on a transcript of a-judgment of a Justice, that execution had been issued by the Justice, and returned by the Constable not satisfied for the want of property, is not evidence of these facts.</p> <p>4. In an action of ejectment, brought to recover land sold under an execution issued by a Clerk of a Circuit Court on a transcript of a judgment of a Justice, it is essential, to make title in the plaintiff, that he prove that execution had been issued by the Justice, and the proper return made therdon by the Constable, before the execution was issued by the Clerk of the Circuit Court; the record of the Justice is evidence of these facts. (Note a.)</p>

<p>APPEAL from St. Charles Circuit Court.</p>

<p>j . A former recovery pleaded in bar to a bill for relief against a judgment at law, alledged to have been obtained by fraud,'will not avail the defendant.</p> <p>2. Whore a defendant files his pleas and puts in his answer to a bill a.t the same time, and the pleas are overruled, it is error to taire the bill for confessed; the course should be to take the bill for confessed as to so much as was unanswered, and to set the cause for hearing on so much of the bill as was answered and the answer.</p>

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

<p>APPEAL from Circuit Court of St. Louis county..</p>

<p>APPEAL from the Circuit Court of Washington county.</p>

<p>APPEAL from -the Circuit Court of Washington county.</p>

<p>t. Li creating a fee simple in estate in lands by deed, words of perpetuity, as are necessary.</p> <p>2. In an action on a covenant of seizin of a life estate, the purchase money with interest is the measure of damages.</p>

<p>1. The property acquired by settlers on public lands is novel in its character, peculiar to the Western States, and is not like that of a bailee or trustee. Nor is the possession of sueh settlers, that of mere wanton trespassers or wrong doers.</p> <p>2. J. and M. cut and corded on the public lands a quantity of wood ; S. afterwards purchased from the government the land on which the wood had been out and corded, and took it away: held that J. and M. may, in an action of trover against S., recover the value of the wood. (Note a.)</p>

<p>ERROR to St. Louis Circuit Court»</p>

<p>APPEAL from the Circuit Court of St. Louis county.</p>

<p>ERRORto the Circuit Court of St. Louis county.</p>

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

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

<p>t. The practice of asking instructions from the Courts on abstract questions of law,- and upon all matters of law and fact, (instead of presenting the precise questions and such only as arise from the evidence of the cause,) has been repea'edly and strongly reprehended by this Court. Such general instructions should rarely, if ever, be given.</p> <p>i. Proof of wonts spoken- in the third person, will not support a charge for words spoken in the second person, and so vice versa.</p> <p>X. The plaintiff may prove the repetition of the slanderous- words after the commencement of suit, in aggravation of damages.</p>

<p>The Circuit Courts have jurisdiction of assaults and batteries committed prior to th© passage of the act of 18th January, 1831, declaring assaults, batteries, &c., not indictable offences.</p>

<p>ERROR to the Circuit Court for St. Louis county.</p>

<p>1. On a certiorari to bring lip the proceedings of Justices under the act concerning forcible entries and detainers, the Circuit Court will look only to the record of the Justices, and set aside their proceedings for irregularity: the Court will not correct the errors in law, of the Justices, nor can a bill of exceptions be taken to their opinion.</p> <p>it. Iraegularity is error of fact or error of law appearing in the proceedings.</p> <p>3. It seems to be the most convenient way to carry on the proceedings in these eases in the same manner as they are conducted in the Justices Courts, without the formality of written pleas.</p> <p>4. On certiorari bringing up the proceedings of the Justices under the act concerning forcible entries and detainers, the Circuit Court on setting aside the proceedings of the Justices, has no authority to remand them to the Justices, the functions of the Justices having ceased.</p>

<p>ON APPEAL from St. Louis Circuit Court.</p>

<p>ERROR to the Circuit Court of St. Louis county.</p>

<p>1. An administrator’s Rond executed in 1813, under the Territorial government, to the Judge of Probate, must (in 1830) be sued on in the name of the State of Missouri, she, by virtue of the act of 1825, concerning executors and administrators, being the successor in office for this purpose to the Judge of Probate within the meaning of the 4th section of the schedule to the State Constitution.</p> <p>2. A prior and subsequent administrator of the same estate cannot be sued jointly on their separate bonds.</p>

<p>ON ERROR from the Cape Girardeau Circuit Court.</p>

<p>1. A return to an attachment, not stating on what property in the hands of tlie garnishee the writ was levied, is too defective to warrant a judgment by default against the garnishee.</p> <p>2. After a motion to set aside a judgment by default, it is too late to move for leave to amend the Sheriff’s return to the writ.</p> <p>3. If by a writ of attachment, the Sheriff is not required to summon any garnishee in particular, but he does so, he must in his return shown what property of the defendant’s he found in the possession of the garnishee, in order to justify the act of summoning him to appear and answer.</p>

<p>APPEAL from the Circuit Court of New Madrid county.</p>

<p>1. In a case where a man marries in another State, .and there is issue by that marriage, and subsequently by mutual consent the husband and wife part, and the man moves to this State and again marries, his former wife living, and has children by his second wife, the children by the second wife are deemed legitimate, and are entitled to distribution in the estate iff the father by the following clause of the 8th. section of the act, entitled an act to direct descents and distributions : that “ the issue of all marriages-deemed null inlaw, or. dissolved, by a divorce, shall nevertheless be legitimate.” .</p> <p>2. The act directing descents and distributions, does not pretend to make lawful those marriages which were hull' before, but it acts prospectively with regard to the children then in being. • . ’ ,</p> <p>3. In the statute concerning divorces, where the subject of legitimacy is mentioned,, it is only done to prevent the fact of a-divorce changing in any wise, the capacity of the children or issue, when it is granted.</p> <p>4i The law respecting divorces can only operate in the case provided by the very act,, upon the question of legitimacy, which is, where a divorce is granted in pursuance of the act, for the cause that there was a previous marriage.</p> <p>6. A person once clearly and positively legitimated, ought not to he bastardized by-implication or construction.</p>

<p>Í. Evidence introduced to show the rules established among trick-masons for me»* suring their work, illegal when it conflicts with terms of the covenant.</p> <p>t. Covenants are to be construed according to the plain and obvious meaning of the terms used by the community at large, and not according to their meaning as used amongst brick masons, or any other particular class of men, who may understand them in a different sense.</p> <p>3. When improper evidence has been admitted',, (he Court should exclude it in express terms, and it is not enough to do so by implication.</p>

<p>1. The statute requiring affidavit to be made upon lost notes, does not require the words “ by accident” to be used. The word “ lost” sufficient.</p> <p>2. In suits before Justices of the Peace, statement of the cause of action not necessary, except in cases for damages on account of wrongs done.</p>

<p>ON APPEAL from the Cooper Circuit Court.</p>

<p>ON ERROR from the Howard Circuit Court.</p>

<p>An. insufficient affidavit made for a writ of attachment before a Justice of the Peace, may be amended in the Circuit Court upon application to file a legal and sufficient-one.</p>

<p>APPEAL from the Chancery side of the Circuit Court of Lafayette county.</p>

<p>1. A writing signed by a party praying an appeal- from a Justice of the Peace; is an affidavit within the meaning of the statute, until certified by the Justice.</p> <p>8. It is the duty of Justices of the Peace to keep a docket, in- which he shall keep fair and accurate entries of all suits instituted before him with the proceedings thereon; and if a Justice of the Peace has failed.to certify to a paper intended as-an affidavit, it is error in the Circuit Court to permit him to come into Court and there certify to the same.</p> <p>3. The appellant in a recognizance is bound to make it to the appellee, and not “to the State of Missouri.’’ A recognizance so taken is considered not merely informal, but substantially defective.</p>

<p>1. The possession of a bond is, prima facie, evidence of a right in the possessor to reoeive the money from the obligor, if he choose to pay it;, and it also gives him the power to sue for the money in the name and to the use of the obligee.</p> <p>2. A new trial ought not to be granted, where the testimony is equal in the Circuit Court And when the testimony is stronger against a verdict than it is for it, still that affords no reason for the interference' of the Supreme Court, unless it should strongly preponderate. ,</p> <p>3. An administrator, by statute, is made a competent witness with regard to all facts which occurred before his administration commenced.</p> <p>4. A man may make his wife his agent.</p> <p>5. That'theacts of the",agent bind the principal,though some should be to his advantage and some not so; and whatever the agent says or does, in relation to the act by him to be performed, is a part of the res gesta, if done or said while the transaction is> passing; and proof of agency may be made by matter ex post facto.</p>

<p>WRIT OP ERROR to the Circuit Court of Pike county.</p> <p>Wash, J., not sitting.</p>

<p>APPEAL from the Circuit Court of Marion county.</p>

<p>WRIT OF ERROR to the Circuit Court of Ralls county.</p>

<p>In an order made to suspend from practice an Attorney of a Court, the cause of suspension must be in the order itself, and the order must alledge the precise cause for which the suspension is made.</p>

<p>APPEAL from the Circuit of Marion county. In Chancery</p>

<p>„ The office of a bill of exceptions being to sav^fa^^l^t^^^i^ljo#ial>is eessary that such facts be set forth in the bi])(ro tnerwise the Conrtjjjvove can have no grounds to reverse the judgment of the Cmiffcimlnvg.</p>

<p>APPEAL from the Circuit Court of Marion county.</p>

<p>I. In case of mortgage, the statute of this State gives the mortgagee, on failure of the' mortgagor to pay, the right only of recovering his debt and damages,</p> <p>a. A mortgagee petitioning to foreclose a mortgage, is not required to give notice to a subsequent mortgagee of his intention to foreclose, no more than a prior judgment creditor is bound to.give notice to a-subsequent judgment creditor of his-intention to sell. v</p> <p>s. A Court of Equity will permit a subsequent mortgagee or his alienee to come in and redeem, but he must come and not wait to be called.</p>

<p>£. The territorial legislature tf this State, when it was a territory, had no power 4o> pass retrospective laws, impairing the obligation of contracts.</p> <p>2. Where, by an act of the legislature, commissioners are' appointed to fix a county seat, &c. on a lot of ground, not less than 60 nor more than 200 acres, and the commissioners are unable to procure more than 40, and cause public buildings to be erected on the same, an act of a subsequent legislature confirming the acts of the commissioners, impairs no private rights which originated for acquisition by the commissioners of foity acres only,</p> <p>s. It is a settled principle of law, that, where an agent does any act for the use of his principal, and the principal enjoj-s the benefits and fruits of the act, he shall not afterwards be allowed to say that the act was illegal.</p> <p>4, Where commissioners have been appointed, by an act of the legislature, with pow„ er to cause public buildings in a county to be erected so soon as suificientfundsshall have been obtained for the same by the sale of town lots, and proceed to let out the said buildings before having the necessary funds in hand, they render themselves individually liable; the county is not bound for their contracts for said buildings,, because they have not pursued their authority.</p> <p>5. But where the act of the legislature makes the commissioners the judges of the kind of building to be erected and whether the sum is sufficient to accomplish the-object, and the estimate is to be made on tbe sum procured, and not on the sum; raised and collected, they will be regarded as having pursued their authority, nntfc the county will be liable for the contract they have made.</p> <p>6. When a principal refers any act to the judgment or discretion of his agent, and. the agent acts erroneously, the principal is nevertheless bound.</p> <p>7. Statutes must be understood ami interpreted with reference to their context and subject mailer.</p> <p>6. Long acquiescence in the ac*s of an agent, and the enjoyment by the principal of the fruits of the agency, is strong evidence of the correctness of the conduct of the agent, and of the liability of the principal.</p> <p>s. A principal may recognize an authority ex posé factos and make the act his own.</p>

<p>1. The 6th section of the act of 1826, concerning Courts, gives to the Courts of Probate exclusive original jurisdiction in all cas’es relative to the probate of last wills and testaments, the granting of letters testamentary and of administration, and the repealing of the same. (Note a.)</p> <p>а. Theaetof 1827, in amendment of the act of 1826, concerning Courts, transfers to the County Courts all the jurisdiction which the act of 1826 had given to the Probate Courts, and which the act concerning wills and testaments does not seem intended to restrain.</p> <p>3.' It being a well settled rule of law, that the best evidence the nature of the ease will admit of must be produced, if it should appear that better evidence might have been brought forward, the circumstance of its being withheld furnishes a suspicion against the party withholding it, that it would have prejudiced his interest if it had been produced.</p> <p>4. One witness to a will lost or destroyed, is enough to establish the due execution of the will, if he prove that he saw the other witness subscribe it in the testator’s presence.</p> <p>5. The loss or destruction of a record being first proved, its contents may be proved by secondary evidence.</p> <p>б. A will being lost or destroyed, probate may be granted upon a copy; also, where there is no copy, the contents of the will may be proven and the will established by ¿he subscribing witnesses, or others who have read it. (Note b.)</p>

<p>1. The act of January, 183i, entitled “An act in addition to an act to regulate executions,” is an additional act to the general execution law of Feb. 1826, and not to that of Dec. 30tb, 1824, which was intended only to regulate proceedings against corporations.</p> <p>3. The law regulating corporations does not intend that the form of the writ of execution shall run against the “body,” there being none in that case to take in execution, but only that it shall run against the lands, goods, effects, &c.</p>

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

<p>1. To set up the right of prescription, between private individuals, on a possession short of thirty years, the title must commence in a fair and formal manner.</p> <p>2. Prescription requires a continued, uninterrupted,peaceable,public and unequivocal possession by one who is master, or who has good reason to think himself so, and it cannot be allowed against the crown.</p> <p>3. Before the change of government, no one was authorized to-be owner of any land in this State, without the grant or permission of the proper officer.</p> <p>4. The object of the act of Cengress of 1812, confirming lots, &c., was to confirm to the inhabitants of the towns and villages therein enumerated, the lots occupied or posesed by them prior to Dec., 1803.</p> <p>6.An estoppel must be certain to every intent, and precise and clear.</p> <p>6. There can be no estoppel, if the matter alledged be not material,</p> <p>7. A person is always estopped by his own deed, and will not be allowed to aver any thing in contradiction of what he has once solemnly and deliberately avowed.</p> <p>8. Absence beyond the seas for seven years,.without being heard from, raises the presumption of deaths</p>

<p>1. The reported decisions of the Courts, and the opinions of eminent Lawyers, contained in their writings, are evidences of the unwritten law among civilized nations.</p> <p>2. In Europe, the will of the Sovereign, in judicial matters, is known through the Courts of Justice.</p> <p>3. In Louisiana, under the French Government, Indians could not lawfully be reduced to slavery.</p>

<p>ERROR from the Washington Circuit Court.</p>

<p>It is nota good assignment of a breach of warranty that the land belonged to'th© United States at the time the warranty was made.</p>

<p>1. After the Court has on motion of a party excluded written evidence from a jury, that party has no right to submit it to the jury and then to require the Court to exclude it a second time.</p> <p>2. It is error for a Court to tell a jury to find as they think proper upon the evidence, (Note a.)</p> <p>3. An administrator may sue under the act to simplify proceedings at law.</p>

<p>APPEAL from Pulaski Circuit Court.</p>

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

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

<p>Contracts entered into with negroes and mulattoes in Illinois, under the act of ibot arc not rendered obligatory by the Constitution of that State. ’</p>

<p>If the testator declare by his last will and testament, that one of his children shall take no part of his estate, this is a good,provision under the statute for such child, and the testator shall not be deemed to have died intestate as to such child.</p>

<p>ORDER of Suspension of an Atttorney at Law by the Circuit Court of St. Louis County.</p>

<p>1. In proceeding by attachment, the affidavit required by our statute m'ay be mád'é before a Justice of the Peace of another State. In such case the official character of the Justice sufficiently appears, by the Clerlr of the County Court where he resides certifying that he was then an acting Justice duly commissioned, &c., and two of the commissioners of the same Court certifying that the person is Clerk and his official acts'entitled to due faith and predit.</p> <p>2. If a non-resident fails to give security for costs before action brought, he may be allowed to give it even after a motion made to dismiss for that cause. (Note a.)</p> <p>3. A non-resident may have an attachment in this State against a non-resident.</p> <p>4. In an attachment where the defendant demurs, the demurrer must be disposed of, before judgment can be given against the defendant. If not disposed of, it is error.</p> <p>6. If the Circuit Court improperly awards execution, the party complaining must first move that Court to set aside the execution, before it can be assigned for error in the Supreme Court.</p>