Volume 30 — Missouri Reports

Louis Criminal Court. The defendant, Levi Ostrander, was indicted for the murder of William McCoy. The defendant was put upon his trial upon the indictment, and the trial resulted as set forth below in the opinion of the court. The defendant was after-wards put upon his trial a second time and convicted of murder in the first degree. I. The court was under a perfect legal obligation to record the verdict rendered by the jury of murder in the second degree.

Louis Criminal Court. This cause was submitted to the jury upon the following among other instructions: “ The distinction between grand and petit larceny lies in the value of the property stolen.

Louis Land Court. The facts in evidence in this cause sufficiently appear in the opinion of the court. The. following are the instructions given for the plaintiffs alluded to below in the opinion of the court: “ 1.

Louis Court of Common Pleas. This case has heretofore beeu before the supreme court. (See 24 Mo. 561.) It was a suit on a policy of insurance against a “ total loss only” on the freight list of the steamboat Cataraet on a trip from St. Louis to New Orleans. The defence was that the loss was not total; that pro rata freight had been received by the plaintiff. The boat descending the river struck a snag about one hundred and forty miles below St. Louis and was badly damaged.

<p>1. Tlie twenty-first section of the ninth article of the act concerning crimes and their punishments (R. C. 1855, p. 642) is properly invoked by an accused person only after trial and conviction; the accused should be tried as if he were an adult, and afterwards, upon suggestion, the court should ascertain the age, and if he be found to be under sixteen years of age, the court should adjust the punishment in accordance with the statute.</p>

Louis Court of Common Pleas. The facts in this case sufficiently appear in the opinion of the court. At the instance of the plaintiffs the court gave the jury the following instruction : “ 1.

Louis Court of Common Pleas. Plaintiffs effected an insurance with the defendant to the amount of $5,000 upon their interest in the steamboat Mayflower against fire and perils of the river for one year from January 20, 1855. In the policy it was provided that it should be lawful for said steamboat, during the continuance of the policy, to navigate the usual waters of the Mississippi, Ohio, Illinois, Tennessee, and Cumberland rivers.

Louis Circuit Court. This was an action on a policy of insurance against fire. The policy was issued upon a written application of plaintiffs and the personal applicátion of and verbal statements of plaintiffs or one of them. The defence relied on is that there was a concealment of facts material to the risk.

Louis Land Court. This case has heretofore been before the supreme court and is reported in 23 Mo. 561. This was a suit instituted by Lucy Johnson, widow of Col. John W. Johnson, deceased, to obtain an assignment of dower in the real estate belonging to said Johnson at the time of his decease. She claims one-half thereof as a dower under the third section of the dower act of 1845. The petition in the cause is set forth at large in the report of the cause in 23 Mo. 561.

Louis Criminal Cowl. I. There was no legal asportavit proved. The fourth instruction given by the court is erroneous. The court plainly tells the jury that a larceny had been committed, the very thing they were called upon to decide. The instruction more than revives the rigor of the old common law.

<p>1. The admission of testimony that is merely irrelevant, and which could not have influenced the jury in forming their verdict, is no ground for the reversal of a judgment hy the supreme court.</p>

Louis Land Court. This was an action in the nature of an action of ejectment to recover possession of an undivided third of the south half of block No. 204 in the city of St. Louis. The suit was instituted May 7, 1857, by Octavia Shaw. The defendant denies plaintiff’s right, but admits possession as alleged, and asserts that he holds possession as tenant of Benoist, Page and the heirs of James Gordon.

<p>1. I-' the error complained of in the proceedings of an inferior court can he redressed on appeal or writ of error, a mandamus will he refused by the supreme court.</p> <p>2. Questions of jurisdiction as between the several courts of St. Louis county-may be determined by the supreme court on appeal or writ of error.</p>

<p> Appeal from Si. Louis Cowt of Common Pleas. </p> <p>Eor the facts of this case, see opinion below.</p>

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

<p> Appeal from St. Louis Court of Common Pleas. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>I. The petition is fatally defective. (Story on Ag. § 453 ; 23 Penn. State, 384 ; Angel on Carr. § 577; 3 M. & W. 1; Chitty on Carr. 355; Pierce on Railw. 286, 294; Redfield on Railw. 386; 20 Ohio, 415; 38 Eng. L. & Eq. 477; 5 Exch. 357; 19 Law Rep. 469; 6 Cush. 75; 37 Eng. L. & -Eq. 286; 6 La. Ann. 495; 1 Barb. 231; 20 Barb. 450; 7 La. Ann. 321; 6 Ind. 208 ; 25 Ala. 695 ; 15 Ill. 550; 3 M. & W. 1; 1 McMullen, 385; 15 Georg. 349; 9 Cush. 112; 4 Seld. 175 ; 10 Cush. 228 ; 28 Eng. L. & Eq. 48; 11 Mo. 361; Stephen on Plead. 147; 3 Caines, 329; 2 Johns. Cas. 581; 36 Eng. L. & Eq. 486; 37 Eng. L. & Eq, 281; 38 id. 477.)</p> <p>I. The petition contained a good cause of action. (4 Seld. 175 ; 25 Ala. 657; 28 Eng. L. & Eq. 48; 33 id. 48 , 19 Law Rep. 469; 1 Rob. N. Adm. 45, 131; 17 Pet. 20; Story on Ag. § 453 ; Pars, on Cont. 86, 93 ; 4 Mete. 60; 20 Ohio, 1, 415; 7 West. Law Jour. 369; 13 Law Rep. 74; 3 Ohio State, 201.) The judgment by default cured all the defects, imperfections or omissions of the petition. (R. C. 1855, p. 1256; Stephen Plead. 147.)</p>

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court. I. The court required an impossibility. It was impossible for the defendant to produce a record that did not exist, or to account for the absence of a record that never had' an existence.

Appeal front St. Louis Circuit Court. This was an action brought on the official bond of William B. Watson, as constable, against him and his securities, for wrongfully levying upon and converting certain property belonging to the plaintiff Goldsall. It appeared in evidence that one Kahn obtained a judgment before a justice of the peace against one Lewis Davis. An execution issued and ■ was placed in the hands of Watson.

Louis Cowt of Common Pleas. This was an action in the nature of an action of replevin to recover possession of personal property in possession of defendant.

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court. I. The court erred in finding that the attorney of plaintiffs directed defendant to levy the execution on goods and merchandise “ in the store of Nelson Chamblin.” It does not appear that Chamblin had any interest in the goods in the store pointed out. So also in finding that there was “ sufficient” merchandise “ belonging” to Chamblin to satisfy the execution.

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. The court erred in striking out a portion of the answer in this case. The first instruction given, on motion of the plaintiff, is erroneous. The lease was forfeited only from the time the lessor declared it forfeited. The stipulation with respect to double rent was a penalty, and not liquidated damages.

Louis Circuit Court. This was a suit against Champion as maker and the other defendants as endorsers of a negotiable promissory note. The note was signed “ B. E. C. Champion & Co.,” and the signature proved to be in the handwriting of Champion. All the other signatures were proved to be genuine, and due demand, refusal of payment, protest and notice were proved; also the copartnership of plaintiffs, and of defendants C. D. and J. T. Sullivan.

Louis Law Commissioner’’s Court. This was an action commenced before a justice of the peace to recover the balance of an account. The plaintiff claimed for “ services in putting up hay” in one Hickman’s meadow. There were two credits of cash in the account, one of thirty dollars and the other of five dollars — reducing the amount to ninety-seven dollars.

<p>1. No written assignment of a promissory note is necessary in order to entitle the holder to sue thereon in his own name.</p>

Louis Circuit Cowrt. I. The petition, though awkwardly worded, was sufficient. (See 23 Mo. 254.) The motion in arrest was properly overruled. It is doubtful if such a motion now exists. (3 Abb. P. R. 428 ; 8 How. Pr. R. 160 ; 3 Seld. 576.) The verdict cured the defect, if any. The objection should have been made at the trial.

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

<p>1. Inadequacy of consideration for the conveyance of land is not, of itself, a sufficient ground of relief, unless it is so gross as to raise a presumption of fraud.</p> <p>2. Where a person, owning real estate of the value of three thousand five hundred dollars, but who had no knowledge of its value, was illiterate, being able neither to read nor write, was induced by a person, in whom she had confidence and who acted in a double capacity as agent for both parties, to dispose of said real estate to another for seventy-five dollars; held, that the transaction was stamped with fraud, and the facts would warrant a decree setting aside the conveyance on the ground of fraud.</p>

Louis Court of Common Pleas. The following are tlie instructions given by the court, of its own motion, and on which the case was submitted to the jury: “ 1.

Louis Land Court. The facts of this case are sufficiently set forth in the report of the cause when the same was in the supreme court for review before. I. The court should have arrested the judgment. The plaintiff had no cause of action if the breach of the covenants was made by the execution of the deed by Beckwith in December, 1848, as administrator by order of court. The heirs of Chambers, and not the administrator, were the proper parties plaintiff.

Louis Court of Common Pleas. This was an action by Abraham Newmark against the Liverpool and London Fire and Life Insurance Company to recover for a loss by fire on his stock of goods covered by a policy, issued by the said company, for five thousand dollars. There was another policy issued by the Citizens’ Insurance Company on the same goods.

Louis Circuit Court. This is the same case which was heretofore in the supreme court. (See Fine v. St. Louis Public Schools, 23 Mo. 570.) The plaintiffs claim title to an undivided interest in the premises, a lot of one by forty arpens in the St. Louis common field, as heirs and legal representatives of Philip Pine, to whom said lot is alleged to have been confirmed by the act of Congress of June 13, 1812.

Louis Land Cowt. I. The plaintiff was entitled to a decree. Possession was given to plaintiff; he expended money and made repairs and paid the instalments of rent. (15 Mo. 365; 2 Story’s Eq. .§ 763.) It would be a fraud upon plaintiff if the contract is not fully executed. (20 Mo. 81.) Under the pleadings it was not incumbent on plaintiff to prove a written contract. Defendant does not set up in his answer the statute of frauds. (11 Mo. 659.)

Louis Circuit Court. The facts in evidence are sufficiently set forth in the opinion of the courij. The court gave the following instructions at the instance of the plaintiff: “ 1.

Louis Circuit Cowt. I. Tlie right to recover damages does not accrue until the period of twenty days from maturity has elapsed. (R. C. 1855, p. 295, § 11.) If suit be instituted between maturity and the period of twenty days thereafter, plaintiff has no cause of action so far as damages are concerned. I. The principal sum was not paid within twenty days after demand. The plaintiff was entitled to recover damages.

Louis Circuit Cowrt. This was a suit for the value of a horse. The horse was sold by a constable under two executions, one in favor of Sullivan, the other in favor of Westcott, both of whom are parties defendant in this suit. The levy was made by order of both of the defendants. Upon claim being made by the plaintiff in this suit, separate bonds were given to the constable, who proceeded to make sale.

Louis Law Commissioner’s Court. I. So far as the defendants Kimball and Ware were concerned plaintiff’s receipts raise a presumption of payment of the wages due August 26, 1854; it was error to refuse defendants’ first and second instructions. (1 Pick. 332; Coxe, 35.) Upon the evidence under the law as declared in defendant’s third instruction, the defendants Kimball and Ware were entitled to judgment in their favor.

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

<p>1. A. became possessed and took charge of two slaves and a certain amount ■ of money as a trust fund for the benefit of-his sister; he appropriated the money and the proceeds of the sales of the negroes to the purchase of a tract of land in this state, and in removing his sister and her family from Kentucky to this state; this purchase was made in good faith, and the property was subsequently conveyed to the sister and her children in satisfaction of the trust, and was occupied by them until the death of the mother, and was afterwards divided by proceedings in partition among her heirs, Held, in a suit instituted many years after the date of the original transac"</p> <p>. tion, that there was no claim in equity against A. or his estate growing out of the receipt of the trust fund.</p>

<p>1. Justices of the peace have no jurisdiction of actions for torts — as for unlawfully taking and detaining personal property — where the damages claimed amount to ninety dollars.</p>

<p>1. Instructions are calculated to mislead and are erroneous which place the case before the jury upon a portion of the facts only, and which, in effect, restrict the issue, and exclude from the consideration of the jury questions that must he passed upon.</p>

Louis Land Court. This case has heretofore been before the supreme court. The decision of the court is reported in 25 Mo. 484. Tho facts of the case as bearing upon the decision of the court are sufficiently set forth in the said report in 25 Mo. 484. It is deemed unnecessary to set them forth again. • II. The legal title must be admitted to be in Louis La-beaume or his legal representatives.

<p> Appeal from St. Louis Land, Cowrt. </p>

Louis Court of Common Pleas. I. The defendants should have been permitted to file an answer after the verdict on the plea in abatement. This was the earliest opportunity defendants had of filing an answer. Had they filed it sooner it would have been a waiver of the plea in abatement. They should have been allowed the usual time. They had interposed no unusual plea, nor caused any unnecessary delay. It was impossible to comply with the terms imposed.

Louis Court of Common Pleas. This was an action to recover damages for an alleged wrongful sale, by the direction of the defendant, of certain real estate belonging to the plaintiff, and conveyed by him to a trustee to secure a certain note for f 2,140 executed by the plaintiff and held by the defendant.

Louis Law Commissioner’s Court. This was a suit originally instituted before a justice of the peace against Francis Shields and Patrick Long 011 the following promissory note : “ $105. August 25, 1857.

Louis Law Commissioner's Court. I. There is nothing either in the pleadings or the evidence to explain how the Blocks ever could have sustained the relation of endorsers entitled to have demand of payment of other defendant and notice of nonpayment. They stood, prima facie, in the relation of makers of the note. The payee had a right to regard them as personally liable.

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

<p>1. Where several causes of action are embraced in the same petition, they should be separately stated.</p>

Louis Circuit Court. This was an action by Louis A. Gamier against A. A. Le Beau, E. 0.

Louis Cowl of Common Pleas.' This was an action by Jacob D. Seheifer against Herman Kahlman, Ferdinand Strange, Frederick Schulenburg, Adol-phus Bockler and Francis Saler. There are several causes of action joined in the same petition, all based upon indebtedness incurred by the defendants as partners. The defendants were alleged to be partners in the building of a railroad bridge over the Gasconade river.

<p>1. The supreme court will not grant new trials on the ground that the verdicts are against the weight of evidence.</p>

Louis Circuit Court. I. The court improperly overruled the motion. It appeared from the affidavit that the absent witnesses resided in the city of St. Louis, and the subpoena shows that the sheriff ■had ample time to search for them, He returned them “ not found.” The inference from the return is that the sheriff knew where to find said witnesses ordinarily; that he searched diligently for them, and that they were not in reach of process.

Louis Criminal Court. The facts sufficiently appear in the opinion of the court. I. The court improperly summoned a juror. (Sess. Acts, 1857, p. 661.) The witnesses ordered to be separated disobeyed the order; yet the court permitted them to testify. The court improperly permitted the organization of the company to be proven by reputation. It is not sufficient that the bank was organized under a general banking law.

Louis Circuit Court. This was an action by L. C. Garnier against J. L. Papin, C. D. Sullivan, J. T. Sullivan and S. Myerson on a negotiable promissory note for five hundred dollars, dated August 17, 1857. The defendant Papin was sued as maker, the others as endorsers. The plaintiff dismissed as to Myerson.

Louis Circuit Court. This was an action for an assault and battery. The defendant demurred to the petition. The demurrer was overruled, and a judgment by default rendered against defendant, and an assessment of damages was had. The defendant moved the court to set aside the judgment and grant a new trial.

Louis Circuit Cowrt. This was an action to recover 1188.57 for goods sold and delivered. The defendants set up that the indebtedness sued for was cancelled. In support of this defence the defendants adduced in evidence er, dated New York, July 17, 1857, written by the plaintiffs to the defendants. In this letter the account between the plaintiffs and defendants is stated.

<p>1. To enable a defendant to avail himself of a want of demand on the part of the plaintiff of a sum of money claimed to be due, the defendant should set up the matter in his answer, and accompany the same with a tender of the amount due; in which case, if the plaintiff will further prosecute his suit, and shall not recover a greater sum than is tendered, he shall pay all costs. (B. C. 1855, p. 448.)</p>

Louis Circuit Court. The facts sufficiently appear in the opinion of the court.

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

Louis Land Court. This was an action to recover the rent of certain premises, a portion of a tract of one by forty arpens known as the Lirette arpent. The plaintiff, as assignee of Norman Cutter, claimed rent of said premises from September 10, 1855, to September 10, 1857, during which time, it is alleged, the defendants held said premises as tenants of said Norman Cutter at a yearly rent of two hundred and twenty dollars.

Louis Circuit Court. Edward C. Blackburn and Milton N. McLean were partners as atfctorneys at law. McLean died, and the plaintiff, Bicords, was appointed administrator of his estate. Blackburn also died, and said Eicords then took charge of the partnership effects, giving bond as required by the statute. It is in this capacity, having in charge the settling up the affairs of the partnership, that the plaintiff now sues.

Louis Land Court. This was a suit to enforce a mechanic’s lien. It is sufficient to state, in addition to the facts set forth in the opinion of the court, that the amount found at the settlement on December 20, 1856, to have been due the plaintiffs at the time of the completion of the work, November 29, 1856, was 11,610.87. The note given the plaintiffs on the 20th of December was for this sum, including legal interest up to that date — 11,635.03.

Louis Circuit Court. George Bent, of Taos, in New Mexico, died in the year 1848, leaving two illegitimate children, Robert and William Bent. These were his children by one Maria Cruz Padilla, who was at the time of their birth the wife of Jesus^ Maria Gallegos. George Bent devised certain real estate in St. Louis county, Missouri, to said Robert and William Bent. William Bent died after his father.

Louis Land Court. This was an action in the nature of an action of ejectment brought by the plaintiffs as heirs of Nathaniel A. Ware, deceased, on the 1 4th of January, 1857, to recover possession of an undivided third part of lots numbered 5, 6, 7 and 8, being block No. 225 in the city of St. Louis, containing two hundred and forty feet front on Lewis street and running back to the Mississippi river.

Louis Land Court. This was an action brought to recover possession of the north half of block No. 854 in the city of St. Louis. The defendants are the Board of President and Directors of the St. Louis Public Schools and the tenants under said board. Said block is bounded as follows : west by Main street, north by Cedar street, east by Front street, or the levee, and south by Mulberry street.

Louis Land Cowl. ^ This was an action to recover possession of a portion of a tract of one by forty arpens of land situated in the Grand Prairie common field, near St. Louis. This case has heretofore been before the supreme court. (See 24 Mo. 567.) The action was commenced September 19,1855. Said tract of one by forty arpens was confirmed by act of Congress of July 4,1836, to William Bizette’s representatives, and surveyed by United States survey No. 3340.

W. S. Littlepage was indicted in the Webster circuit court for gaming. He entered into a recognizance with W. S. Tol-ley and Hamilton McAnally as securities to appear at the October term, 1859, of the Webster circuit court. He failed to appear and bis recognizance was declared forfeited, and judgment rendered against him and his securities. On the 2d of December, 1858, a scire facias issued in the following form: “State of Missouri — County of Webster, ss.

<p>1. Where property is conveyed in trust, bona fide, to secure the payment of certain debts due, and a third person, by virtue of a sale under a judgment against the grantor in the deed of trust, subsequently obtains title, subject to such deed of trust, to a portion of the property embraced in said deed, such purchaser will not be entitled to intervene in proceedings instituted to enforce the deed of trust against all the property embraced in it, and to require that that part of the property in which he has no interest shall first be appropriated to the payment of the trust debt.</p>

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

H. Johnson and others in April, 1859, recovered a judgment against John B. McAllister. On the 20th of May, 1859, an execution was issued, placed in the hands of the sheriff, and levied the same day on a stock of goods as the property of said McAllister. After the sheriff had made this levy, George B. Chadduck claimed to be the owner of said goods by virtue of a deed of assignment executed by the said Mc-Allister for the benefit of certain creditors.

This case has heretofore been in the supreme court. (See McNeeley y. Hunton, 24 Mo. 281.) It was reversed and remanded in'behalf of the defendant at the January term, 185T, of the supreme court.

Elisha Blevins and Willis J. Peak were indebted to Thomas B. Wallace upon two promissory notes, each for $616.86, one dated May 14, 1867, payable in three months; the other dated May 15, 1867, payable in sis months. Said Blevins was in possession of a receiver’s receipt, issued to him by the receiver at the land office at Warsaw, Mo., on the entry by him of a tract of forty acres. This receipt was dated March 24,1856.

The facts sufficiently appear in the opinion of the court. I. The court erred in striking out that part of the answer relating to the non-delivery of the bond. If after defendant had signed the bond, he declined giving the same, and plaintiff afterwards, contrary to defendant’s direction, delivered the bond to the county, plaintiff can not recover the amount he paid on the bond.

On the 28th of July, 1858, Andrew L. Kerr, Jasper M. Perry, Joseph E. Dickey and Ambrose M. Day entered into an agreement as follows: The aforesaid parties do hereby agree and bind themselves, each to the others, in the sum of five thousand dollars, that they will purchase the steamboat David Tatum, or some other steamboat which may be selected by a majority of said parties, said purchase to be made as soon after this time as can conveniently be done, and said boat, when…

This cause grows out of an action of ejectment brought in the Moniteau circuit court in February, 1856, by T. E. Dickerson against David Chrisman, to recover possession of certain real estate in the town of California. In this suit the plaintiff claimed title by virtue of a deed from one Browning.

This was an action commenced February 26, 1856, in the Johnson circuit court, to recover damages for an alleged wrongful taking and carrying out of the state and conversion of a female slave belonging to the plaintiffs.

■Appeal from Miller Circuit Court. The defendant 'Williams was indicted at the October term, 1859, of the Miller circuit court for perjury alleged to have been committed by him in delivering his testimony before the grand jury at the October term, 1858, of said court, touching a charge of forgery preferred against one Charles H. Ingram, then undergoing investigation.

The defendant Terry was indicted for perjury charged to have been committed before the grand jury then sitting.

The plaintiff seeks in this action to recover damages for the loss of two horses caused by their being run over by the cars of the defendant, the North Missouri Railroad Company. The plaintiff alleges in his petition that the accident occurred at a place where the road was not enclosed by a lawful fence; that it did not occur at a crossing of a public highway. The evidence adduced showed that at the place where the accident occurred the road was not enclosed by a fence.

This was an indictment against Charles H. Pemberton for murder.

In the year 1846, John S. Bright, then living in Mercer county, Kentucky, executed a deed conveying, together with other property, a slave named Fanny to Harold F. Smith, also a resident of Kentucky, in trust for the wife and children of the said Bright.

<p>1. Where a person is indicted for a felonious assault and is acquitted, the acquittal is a bar to any further proceedings; an appeal can not be prosecuted to the supreme court by the State.</p>

I. The court below erred in instructing the jury that, admitting all the testimony to be true, they are not entitled to recover ; because plaintiff has failed to prove an offer to . rescind the contract by returning or offering to return the negro girl Celia, mentioned in plaintiff’s petition before the commencement of this suit.

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

This was an action on a promissory note. The note was given to plaintiff for a bill of groceries previously sold by him to the defendant Hamm. The plaintiff was a grocer in the city of Weston. The note was executed and delivered by the defendants to an agent of plaintiff on Sunday. It was dated back the preceding Saturday.

Demurrer to a petition. The petition is entitled thus: “ Henry T. Wright, who sues as trustee for the use and benefit of Archie G. Dawson, administrator of the estate of Mary Dawson, deceased, plaintiff, against Abram Tinsley,” &c. The defendants are the executors of the will of Caleb Tinsley, deceased, and his devisees and heirs.

This was an action on a judgment rendered in the state of Indiana. The transcript offered in evidence was authenticated in the manner set forth below in the opinion of the court.

I. This case is an exact parallel to the case of the State v. Davidson, 20 Mo. 406, in which the court held that a recognizance could not be quashed. Its validity can only be contested upon a scire facias after forfeiture. I. The court did not err in setting aside the judgment of forfeiture of the recognizance, and in quashing the recognizance.

This is an action by Reuben T. Lindsay against Joseph Davis. The petition has two counts.

John Birner died in 1845, leaving a will, dated September 1, 1845, of which the provisions are as follows: “ First, I direct that all my debts, &c.; second, I direct that if my wife Margaretta should have a child by me, that such child shall have and receive of my estate the sum of two hundred dollars out of my estate, to be paid to such child on arriving at age.

The plaintiff sets forth in his petition in this cause that the defendant, in July, 1857, was a justice of the peace, duly elected and qualified, for Boonville township, Cooper county; that on July 11,1857, the plaintiff recovered two judgments before the defendant as justice of the peace against one Christian Mittleback, each for $181.40, together with costs; that he directed said justice forthwith to issue executions upon said judgments ; that the said justice did so…

, I. The court erred, in excluding from the jury the deed from Bartlett to plaintiff. As between the parties to the deed, it is valid, although not acknowledged or proved, as the law requires to make it good against third persons. The defendant does not claim that he is the owner of the slave, but that plaintiff is not. He is not a third party within the meaning of the eighth section of the act concerning fraudulent conveyances.

In the year 1855 proceedings for the partition of the real estate of Joseph Cannefox, deceased, were instituted by his widow and heirs. All the parties to the suit were made parties plaintiff, among others Sarah J. Humphries, a minor daughter of said Cannefox, whose husband had previously died. She appeared by attorney, no guardian being appointed.

The facts sufficiently appear in the opinion of the court. I. The court improperly excluded from the jury the will of W. P. Flint. The instructions given were erroneous. The verdict and judgment are entirely erroneous. The verdict is a verdict in trover for damages. The court could not on such a verdict render a judgment against the securities. (4 Black. 19 ; 13 Mo. 209.) The verdict is not in conformity to law.

The facts sufficiently appear in the opinion of the court. I. The court should have overruled the motion filed by Gibbs to be made a party defendant in this suit. No authority has been shown to authorize'such a proceeding. If he had the legal title, as he asserts, a judgment against Mills could not affect him. He had no standing in a court of equity.

<p>1. A vendor of land has'a lien thereon for the unpaid purchase money.</p>

This was an action against Thomas L. Price and others to recover damages for an alleged wrongful entry upon a certain lot in the city of Jefferson, “ of which the plaintiff then was and still is in possession and owner,” and the building of an embankment thereon. The plaintiff alleges special damages. The embankment was built in the construction of the Pacific railroad.

This was an action by the plaintiff Bledsoe against John Games, Gideon Games, and Jonathan C. Duvall.

This was an action to recover a balance due on two negotiable promissory notes executed by the defendant in favor of “ Henry W. Peter, treasurer of the White Cloud City Company, for the use and benefit of said company.” These notes, it is alleged in the petition, were assigned to the plaintiff by 0. Bailey as president of said White Cloud City Company, and H. W. Peter as treasurer thereof.

This was an action by Samuel Grant against Washington R. Kidwell on a negotiable promissory note, for $1,054.04, dated September 27,1858, and payable six months from date, of which said Kidwell was the maker and one George Yates the payee. The petition alleges .an assignment of said note by endorsement by said Yates to plaintiff on the-day of March, 1859. ' The defendant in his answer admitted the assignment of said note by Yates on the 29th of March, 1859.

The facts of this case, in brief, are as follows: James M. Taylor sold certain tracts of land to George R. Cowherd, giving him, said Cowherd, a bond conditioned for the conveyance of said land to said Cowherd upon the payment of the purchase money. Cowherd gave his negotiable promissory notes to Taylor for the instalments to be paid. One of these notes was assigned by Taylor to the plaintiff Andrew Adams. Another note was assigned to the defendant George W. Nelson.

This was a bill in chancery filed in 1849 before the new code of practice went into effect.

This was an action against William Thompson. The indictment charges “that William Thompson, late of, &c., on, &c., with force and arms, in the county aforesaid, did then and there feloniously assault one James Davis with a certain handle of a hoe, a deadly weapon, by feloniously assaulting and striking him, the said Davis, with the said hoe handle, with intent, in so doing, him the said Davis then and there feloniously to maim, wound and disfigure, contrary,” &g. This…

This was an action for the possession of a female slave named Hylvia and her three children. The suit was commenced November 18,1857. The defendant, Rebecca Gow-an, in her answer denies the right of the plaintiff to the possession, and sets up the statute of limitations. The testimony adduced in support of the issues is set forth in the opinion of the court. The court, at the instance of the defendant, gave the following instructions among others : “ 1.

I. The court erred in giving the instruction asked by the defendant.

The fifth, sixth and nineteenth sections of a revenue ordinance of the city of Lexington approved May 13,1858, are as follows: “ Sec. 5. Persons owning shares of stock in incorporated companies, taxable by law, are not required to deliver to the assessor a list thereof; but the president, or other chief officer of such corporation, shall deliver to the assessor a list of all shares of stock held therein, and the names of the persons who hold the same. Sec. 6.

I. The justice of the peace had no jurisdiction of the cause. (R. C. 1855, p. 925, § 2, 3. If the defendants or either of them were liable at all, they were liable purely as trespassers, and the evidence disclosed no state of facts upon which a contract, either express or implied, could arise.

The following is the promissory note sued on: “ $65.00. St. John, Mo., April 8, 1856. Twelve months after date, I promise, on behalf of the trustees of school district No. 2 of school township No. 14, of Putnam county, Mo., to pay, to the order of Giles Hodges, the sum of sixty-five dollars, for value received. [Signed] Trustee, A. S. Runyan.” I. The court erred in striking out defendant’s demurrer.

It is sufficient to state, in addition to the facts stated in the opinion of the court, that at the same term at which Winsor was permitted to come in and file his answer, the plaintiff admitted the facts stated therein, and the cause was submitted to the court and judgment rendered for plaintiff. I. The plaintiff showed no cause why an order of publication should be made against Nay.

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

Error 4o Carroll Circuit Court. I. The court erred in sustaining the demurrer. There was such a part performance of said contract as took the case in a court of equity out of the statute of frauds. A fraud would be worked upon plaintiff if the defendant is allowed to set up the statute of frauds. A court of equity should interposé against the setting up of the statute of frauds. Equitable relief should be afforded. (2 Sto. Eq. § 717-720, 746, 760-1, 798, 764, 742; 1 Sto.

This was an action to recover damages for slanderous words spoken by the defendant of the plaintiff. The words were charged in the. petition to have been spoken falsely and maliciously. The words charged aiid the evidence adduced in the cause are-set forth in the opinion of the court below. Testimony was adduced by defendant to show the general bad character of plaintiff.

The following is the instruction referred to below in the opinion of the court: “ If the jury believe from the evidence that the prisoner, at the county of Cole, at any time within three years next before the finding of this indictment, felo-niously, burglariously and forcibly broke into and entered the meat-house and building of Jesse B. Baber by forcibly breaking the lock thereof, with intent to commit a larceny hy feloniously taking and carrying away any goods, chattels…

This was an action to recover possession of a tract of land containing three hundred and twenty acres, situated in Carroll county. The plaintiffs claim title under one Samuel Duly. The defendant put in issue the alleged right of possession of plaintiffs and set up the statute of limitations.

x The defendants asked the court to give the following instructions : “ 2. The jury can not find against defendant Kincheloe unless they believe he authorized Dickenson wrongfully to obtain possession of'said slaves from plaintiff, or afterwards withheld them from plaintiff, knowing that Dickenson had improperly brought said slaves away. 8.

This suit was commenced March 5, 1856. The facts in evidence sufficiently appear in the opinion of the court. Plaintiff asked the court to instruct the jury as follows : “ 1. Before the defendant can set up any claim to the ne-groes, he must show that he is a purchaser from Cyrus Miller, the donor, or from the children, his donees. 2.

This was an action to recover one hundred and twenty-eight dollars and seven cents, the amount apportioned to the defendant as his share of the cost of macadamizing the street in front of his lot in the city of St. Joseph.

This was a suit originally commenced before a justice of the peace on an account for twenty-two dollars and seventy cents. The defendant filed an offset amounting to twelve dollars. Judgment was rendered by the justice in favor of the defendant for twelve dollars, and costs. The plaintiff took an appeal to the circuit court.

This was an action against the Hannibal and St. Joseph Eailroad Company and others to determine and quiet the title to several pieces of land. Plaintiffs, as appears from the petition, claim title to said lands as a portion of the swamp lands given to the state of Missouri by act of Congress of September 28, 1850, and granted by the state to Macon county by act of March 8, 1851, and acquired under the county by plaintiffs.

This was an action commenced before a justice of the peace under the twelfth section of the general railroad act. (R. 0. 1855, p. 414.) o The plaintiff had performed work in the construction of the Hannibal and St. Joseph Railroad, under McCormick, Knight & Riley, who were contractors under Therrill & Reed, who were contractors under J. Duff & Co., the original contractors. Notice to the company was served on the engineer of McCormick, Knight & Riley.

Terror to Marion Circuit Court. This was a suit brought by the Hannibal and St. Joseph Railroad Company to recover back the sum of six hundred and fifteen dollars and eighty-sis cents paid by the plaintiff to the defendant Shacklett as tax collector of Marion county, being tlie amount of state, county and asylum taxes levied and assessed on the property, real and personal, belonging to plaintiff in Marion county in the year 1858.

Louis Court of Common Pleas. On June 26, 1854, the plaintiffs, members of the firm of Pinneo & Co., commenced a suit by attachment against Eugene Fribourg, and summoned the defendants Hart & Jecko as garnishees. As the ground -of attachment the plaintiffs charged that Fribourg had fraudulently concealed and disposed of his property and effects so as to hinder and delay his creditors. Fribourg filed a plea in the nature of a plea in abatement.

This was a suit by one Redmond, a man of color, against Edward C. Murray and Edward B. Osborn.

This was an agreed case between the town of Paris and the Branch of the Farmers’ Bank of Missouri located at Paris, designed to test the question of the right of the former to tax the money and effects of the latter. The facts agreed upon are substantially as follows: The town of Paris was incorporated by an act of the general assembly approved November 19, 1855. (Sess.

Charles i Circuit Court. The facts sufficiently appear in the opinion of the court. I. The court improperly admitted the declaration of the ch.ld. It was no part of the res gesta. (1 Tenn. 280.) I. The declaration of the deceased was admissible as a part of the res gesta. No consciousness of approaching death was necessary. (3 Cush. 181; 1 Swan, Tenn., 279 ; Whart. Am. C. L. 312.) .

Louis Court of Common Pleas. This was an action to recover damages for the wrongful conversion by defendants of two thousand and forty-seven barrels of flour belonging to'plaintiffs. The cause was tried ' by the couriTwithout a jury, and the court, at the request of both parties, found a special verdict.

The facts sufficiently appear in the opinion of the court. I. The court should have - granted the motion for a new trial. (Wilson v. Branson, 8 Geo. 136; 3 Gra. & Wat. on N. T. 953 ; 9 Dana, 134; Levy v. Brown, 6 Engl. 16.) I. The court properly overruled the motion for a new trial. There was no surprise that would justify the granting of a new trial. The proceedings of the defendant from the beginning were marked by negligence. (See 12 Mo. 380; Gra. & Wat. N. T. 194.)

Louis Law Commissioner’s Court. This was an action to recover damages for an injury to an infant son of the plaintiff, an injury alleged to have been caused by the negligent driving of a carriage by a servant of defendant. At the trial, when the cause was called for trial, the plaintiff demanded a jury, and the defendants demanded that the action should be tried by a jury of twelve men, insisting upon 'that number under the constitution.