Volume 31 — Missouri Reports

This was an action for an unlawful detainer commenced November 8, 1857. The defendant Deriar was a contractor for the construction of the St. Louis and Iron Mountain Railroad. In July, 1854, he obtained leave from the plaintiff to build a shanty on the land of the latter, which he was to occupy until the completion of the road. The road was to be completed by the contractors by January 1,1856.

The plaintiff in her petition sets forth that the defendants executed an agreement in writing, dated July 21,1856, which is set forth below in the opinion of the court, by which they bound themselves to subscribe to the capital stock of the plaintiff certain sums; that the plaintiff located the depot in compliance with the condition of said agreement.

Louis Circuit Court. This was an action to recover damages for the negligent loss of a draft or bill of exchange drawn in favor of plaintiff by the banking-house of S. E. Rogers at Omaha city, Nebraska territory, on the defendants at St. Louis. The draft was presented to the defendants and protested for nonpayment.

Charles Circuit Court. This was an action for a divorce by John Simpson against Jane Simpson. The court refused to grant the divorce. It made a decree granting to the defendant an allowance of two hundred dollars per year out of the estate of the plaintiff, and allowing the defendant to “ act for herself and receive and hold in her own right her wages and earnings without interference or control of said plaintiff.” I. Plaintiff was not bound to support defendant.

This was an action on a promissory note. On the second day of the return term, a judgment by default for want of an answer was taken against the defendants. On the same day and before the adjournment of the court, the defendants mdsed the court to set aside the judgment by default and for leave to file an answer immediately. The court overruled the motion. There was no bill of exceptions signed by the judge. The term continued more than three days.

Louis Law Commissioner’s Court. This was a suit originally brought before a justice of the peace. The case was carried by appeal to the St. Louis law commissioner’s court. The grounds on which the decision of the supreme court is based are sufficiently apparent from the opinion of the court below. I. The justice had jurisdiction. The suit was brought in the name of the pi’oper party.

<p> Appeal from Franklin Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p>

Louis Court of Common Pleas. This was an action to recover the entire amount of a note made by one Newton to defendants and endorsed by them to plaintiff. The note was given in consideration of and as the premium note of a policy of insurance issued and delivered by the plaintiff to the said Newton, whereby plaintiff insured Newton in the sum of four thousand dollars on his steamboat called the “ Scotland,” for twelve months from August 8, 1857.

The facts sufficiently appear in the opinion of the court. The legality of the taxation of the fee of four dollars was raised upon a motion to retax. I. There was no conviction. The circuit attorney was not entitled to the fee of four dollars. (See R. C. 1855, p. 756, § 2.) The fifth clause refers to many cases where it is made his duty to prosecute or defend without indictment. The fees of the clerk, sheriff and witnesses were all the legal fees in the case.

The facts sufficiently appear in the opinion of the court. I. The court erred in overruling the motions to quash and in arrest. A horse race is not a gambling device.

Error lo St. Charles Circuit Court. The facts sufficiently appear in the opinion of the court. I. The memorandum or entry made by the sheriff’s deputy at the sale was a sufficient compliance with the statute of frauds. (Wiley v. Robert, 27 Mo. 388.) No tender of a deed by the sheriff was necessary. Defendant would not be entitled to a deed until payment of the last instalment of the purchase money.

I. The plaintiff’s cause of action did not abate by the death of the defendant; it survived against his administrators. (R. C. 1855, p. 133, § 26, 27; 15 Mo. 619; 18 Mo. 166.) I. The action of forcible entry and detainer is a real action. So is ejectment. Neither form of action abates by the death of defendant. Ejectment must be revived in the names of the heirs or devisees. (Fine v. Gray, 19 Mo. 33.) The rule is the same in the case of forcible entry and detainer.

Appeal, from, Gasconade Circuit Court. The facts in evidence sufficiently appear in the opinion of the court. The provisions of the will set forth below in the opinion of the court are all the granting provisions, except one with respect to the payment of debts and funeral expenses. The cause was tried by the court without a jury. The court refused the following declarations of law asked by the plaintiff: “1.

<p> Appeal from Franklin Circuit Court. </p> <p>The facts sufficiently appear in the opinion of the court.</p> <p>I. The verdict is unauthorized and against the evidence. The court evidently misled the jury by the fifth instruction. Defendants were compelled to take the work into their own hands. They acted in accordance with the terms of the contract and the direction of the engineer. Plaintiff acted as overseer under them. He could not recover on the contract the contract price allowed him.</p> <p>I. The instructions given were unexceptionable. (29 Mo. 99 ; 27 Mo. 309 ; 26 Mo. 102; 23 Mo. 228.)</p>

Louis Court of Common Pleas. The facts sufficiently appear in the opinion of the court. I. The five himdred dollars are not a conclusive measure of damages. Plaintiffs could recover only such amount, short of five hundred dollars, as the proof shows they were damaged. By the terms of the contract he was bound to make good beer. It was necessary for defendant to frequent the cave; his life was endangered by entering it. Plaintiffs had the power to remedy this.

Charles Circuit Court. Henry F. Luckett, plaintiff in this suit, sold to tlie defendant Williamson a tract of land for $7,500, of which $2,500 was paid in cash and the remainder in two equal annual instalments.

Louis Gowt of Common Pleas. The facts sufficiently appear in the opinion of the court. I. The plaintiff had a choice of remedies. He could have refused to take the house unless constructed according to the terms of the contract. In that case defendant could have recovered nothing from the plaintiff for work and materials. He could accept the house and refuse to pay the full contract price. The defendant could then have had an action on a quantum meruit.

Louis Circuit Court. This was a suit by attachment brought by John O. Potter and others against John McDowell. The petition was filed April 7, 1858.

Louis Land Court. Demurrer to a .petition. The plaintiffs are William Carr Lane and Mary E. Lane, his wife; the defendant, William L. Ewing. The suit is in behalf of said Mary E. Lane.

Louis Criminal Court. The facts sufficiently appear in the opinion of the court. I. The recorder was the proper party to certify the transcript. That part of ordinance No. 3471, which requires the clerk to certify to appeals, is inconsistent with the provisions of the charter and void. (R. C. 1855, p. 974, § 12.) At least the certificate of the recorder was sufficient. He occupies the same position under the charter as a justice of the peace.

This was a petition for a rule or citation directed to the defendant Logan requiring him to show cause why he should not distribute funds held by him as trustee under an assignment for the benefit of creditors made by one Samuel W. Riggs. Plaintiffs claimed a portion of said funds as creditors of said Riggs.

Louis Court of Common Pleas. This was a suit brought by the administrator of Catherine' Mueller, deceased, against Bidlingmaier and others, securities on the administration bond of Jacob Mueller, deceased, who had been administrator of said Catherine up to thfe time of his death and the appointment of the plaintiff Kehr as administrator de bonis non.

Louis Land Court. This was an action brought to recover possession of a lot of ground in the city of St. Louis.

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. The instruction given on the matter of dedication was erroneous. The act of 1812 did not confirm the lot to the Catholic inhabitants as a place of public devotion. If it did not, then the school title is good. The Catholic inhabitants abandoned the land and removed the cross, and never after-wards claimed it.

Franpois Circuit Court. This was an action for an assault and battery. The petition charges that the defendant on the 6th of May, 1858, assaulted and beat plaintiff with a rock, and assaulted and cut plaintiff with a knife, and inflicted divers wounds and bruises with said rock and knife in and upon the head, arms and side of plaintiff, by which plaintiff was damaged five hundred dollars. The defendant’s answer was a general denial of all the allegations of the petition.

<p>1. In an indictment for the fraudulent and felonious uttering, publishing and selling of a counterfeit bank note, it is not necessary to describe said note specifically; (R. C. 1855, p. 1178, § 81;) where, however, the said note is described specifically, the proof must conform to the allegations.</p>

Louis Court of Common Pleas. Scott and Bunn, two of the defendants, sued one Hives and recovered judgment. Execution was issued and levied upon certain goods as the property of said Hives. Said goods were claimed by plaintiff, and an indemnification bond was given to plaintiff Cochran as claimant. Said goods were then sold. This suit is brought on said bond. The defendants set up that said goods were fraudulently conveyed to Cochran by Hives.

<p>1. A judge would not be required by the supreme court to sign as a bill of exceptions a document containing neither the testimony nor the motions made and overruled, but simply calling for their insertion therein.</p>

Louis Law Commissioner’s Court. The facts sufficiently appear in the opinion of the court. I. The action was not upon the note itself but upon the assignment. It was not a direct promise to pay money but an implied undertaking by the assignor to pay if the maker did not, provided due diligence be used by the assignees in coercing or trying to coerce payment from the maker.

<p>1. Where a contract is by parol, it is the province of the jury to ascertain its terms; the determination of the legal effect of such contract, -when its terms and their meaning are ascertained and fixed by the jury, is for the court.</p>

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

This was an action to recover the value of certain railroad ties that had been levied on by the defendant under a writ of attachment as the property of one Broad. Said ties are claimed by the plaintiff to have been his at the time of the levy, by virtue of a sale and delivery to him by one Taylor as agent of said Broad.

Louis Land Cowt. The plaintiff seeks in this action to recover damages for an alleged wrongful and malicious expulsion of plaintiff by defendant from certain premises. The plaintiff sets forth that on the 4th of February, 1852, he leased certain premises from the defendant for a term of four years ; that on the 24th of February, 1855, the defendant unlawfully and maliciously ejected and expelled plaintiff from said premises.

Louis Cov/rt of Common Pleas. The facts are fully presented in the opinion of the court. I. It being admitted on the record that the garnishees had no personal property of the defendant in their hands, the question presented is whether the garnishees were liable as debtors of the defendant. The attachment law contemplates the garnishment of only two classes of persons: 1st, those holding property of the defendant, and, 2d, those indebted.

Louis Criminal Court. The defendant Schoenwald was indicted for the murder of one John Lemuel Acres. The court gave the following among other instructions: “ While I have thus defined murder in the first degree, the jury may remark that I fail to define murder in the second degree. I do this purposely, because, in my opinion, the case is not one of murder in the second degree, or one requiring instructions on the law of murder in the second degree.

Louis Law Commissioner’s Court. This was an action commenced before a justice of the peace to recover the price of a horse. The statement filed with the justice was as follows : “ B. F. Stout to Patrick Quinn, Dr. To one horse sold him on the 2d day of November last — $90. St. Louis, February 1, 1858.” The justice rendered judgment for plaintiff. An appeal was taken to the law commissioner’s court. The defendant’s objection to the sufficiency of the statement was overruled.

The points decided are sufficiently apparent from the opinion of the court. I. This action is upon a written contract under seal for the delivery of cross-ties. Maurice was not a party to the contract. Credit was given to Camp alone. There was no privity between plaintiffs and Maurice. The demurrer and motion for a new trial were by both defendants. If Maurice had separately demurred on the ground of misjoinder- the suit ought to have been dismissed as to him.

I. A will of real estate, under the statute of wills 32 Hen. VIII., is a conveyance and can not operate on real estate not owned by the testator at the time of the making thereof. The present law of Missouri does not and the statute of 1835 did not change this rule. The statute of 1807, repealed in 1835, can not be considered by the court now. The present will is different from the will in the case of Liggat v. Hart, 23 Mo. -.

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

Charles Circuit Cowrt. The facts in evidence sufficiently appear in the opinion of the court. I. The court erred in sustaining the demurrer. The plaintiff set up an equity between tenants in common. Plaintiff had the right to claim that the removal by defendant of the outstanding title from a part of the land owned in common enured to the benefit of plaintiff. (Picot v. Page, 26 Mo. 398 ; 5 Johns. Oh. 388, 406 ; 3 Dana, 326 ; 25 Wend. 389 ; 5 Conn. 529; 10 .Johns. 292; 2 Eq.

The facts of this case sufficiently appear in the opinion of the court. I. The right of a slave to choose between freedom and slavery is recognized. (7 Dana, 30 ; 4 Leigh, 272; 19 Georg. 35 ; 10 Leigh, 602; 13 Gratt. 219 ; 1 Gill. & Jo. 390 ; 12 B. Monr. 557 ; 10 B. Monr. 69; 28 Mo. 254.) If a slave has no power to make an election where his freedom depends on that election, then the condition in the will is a condition subsequent.

Charles Circuit Court. The facts sufficiently appear in the opinion of the court. I. The court erred in giving and refusing instructions. There was no injury to or interference with the soil owned by the plaintiff. Plaintiff is not entitled to recover for loss or injury consequent upon a proper use by another of the adjoining soil.

Louis Land Court. The facts sufficiently appear in the opinion of the court. I. A patent to a fictitious person is void. (25 Mo. 24.) The court should have .given the instructions asked by defendant. The instruction given makes the case turn on an issue wholly irrelevant. The junior patent was to a person capable of taking. The land was subject to sale and the patent issued by legal authority.

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

Genevieve Circuit Court. I. A sheriff’s sale of real estate is good if made during the first three days of the term, although no court is actually held. (R. O. 1855, p. 539, § 44, 45, 46, p. 746, § 45.)

The facts sufficiently appear in the opinion of the court. I. The instructions given upon the part of the plaintiff were illegal, because the evidence shows that the defendant was indicted and convicted for selling upon the 4th and 7th days of October, 1858, upon the same evidence as given in this cause.

Louis Land Court. I. The agreement did not provide for having the land surveyed. It is a sale in gross, not a sale by the acre. The court erred in instructing the jury.

This cause came before the supreme court on a motion made by Stevens, defendant, in the case of Boxley v. Stevens, reported ante, p. 201, for an order prohibiting the sheriff of St. Louis county from selling the real estate of the said defendant Stevens under an execution until within fifteen days of the next October term of the supreme court.

This was an action brought in 1856 by the sheriff of Jefferson county, to recover from Louis Robert the amount bid by him for a certain tract of land at a sale in a partition proceeding, in which said Robert and others were plaintiffs and B. T. Adams, defendant. The defendant denied in his answer that a memorandum in writing of the alleged sale had been made by one lawfully authorized.

<p>1. Plaintiff brought his action before a justice on an account amounting in the aggregate to one hundred and thirty dollars, reduced by credits to eighty two dollars within the jurisdiction of the justice. Defendant filed a set-off amounting to eighty-nine dollars and seventy-fire cents, including items identical with the corresponding items in the plaintiff's credits. Both accounts are admitted to be correct. Defendant claimed judgment against plaintiff for seven dollars and seventy-five cents, and plaintiff claimed judgment for forty dollars and seventy-five cents, the difference between his original account and the admitted set-off of defendant. Held, that defendant was entitled to judgment for forty dollars and seventy-five cents.</p>

Louis Circuit Court. This was an action on a negotiable promissory note for 1811, made by William P. Davis, dated April 17, 1857, payable six months after date, to the order of defendants Carson and Springer, and endorsed by them, and then negotiated by said Davis to the plaintiff.

Louis Circuit Court. The facts of this case are sufficiently stated in the opinion of the court. I. A note-broker is the mere agent of negotiable securities to realize moneys from sxxch securities for his principal. It is not his province to make inquiry as to the genuineness of prior parties on the note received by him, unless there are circumstances connected with the transaction calculated to create suspicion in the minds of men of ordinary prudence.

The plaintiffs Edward and Delia McCullough, by their mother and guardian Ann McCullough, brought this action in 1858 against the defendant James McCullough to have the title of about a hundred acres of land vested in them.

Genevieve Circuit Court. This was an action brought in 1853 by the State, to the use of Conrad C. Zeigler, administrator of William Morrison, against Eloy Lecompte, administrator of Maria Theresa St. Gemme and her securities, upon her administration bond.

Louis Land Court. The facts appear in the opinion of the court. Held: that the notice was defective for not showing that the rent was due from M. as tenant.” (Camp v. McCormick, 1 Denio, 641.) A notice of rent being due given by a landlord to an officer pursuant to the revised code, p. 746, sec. 12, is in the nature of process, and should state facts enough to show that the landlord is entitled to a…

The facts upon which this action is based will appear from the opinion of the court. The court below, on its own motion, gave the jury these instructions ; “ 1. If the jury find the issue for the plaintiff they should assess his damages at the reasonable valuó of the time lost by plaintiff and expenses incurred by reason of his removal to and return from Clarksville. 2.

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

Louis Circuit Court. This was an action on a negotiable promissory note executed in March, 1857, by Ames to Hofelman’s order, payable eight months after date. The note was endorsed by Hofelman and L. Lawrence, and when due, was presented at the place made payable, and not being paid, was duly protested and the endorsers duly notified of the nonpayment so as to be bound and liable.

The instruction given by the court below and referred to in the opinion of the court is in these words: “If the jury believe from the testimony in this cause that William A. Whitehead received the notes specified in the receipt mentioned in plaintiff’s petition, and agreed therein to collect said notes or account for the same, then and in that case it devolves upon said Whitehead to account for the same, either in money, the return of said notes, or copies of judgments, with…

<p>1. Where a judgment is entered against the defendant, and afterwards the court on motion arrested the judgment, but no final judgment was entered after the motion in arrest was sustained, the case is still pending in the court below, and an appeal, being prematurely taken, will be dismissed.</p>

Louis Court of Common Pleas. This was an attachment suit brought by the plaintiff in July, 1857. The writ was returned by the sheriff as 'executed by attaching and taking into possession certain property as property of defendant, consisting of millinery goods. Cullum filed his interplea, claiming that in July, 1857, he was the owner and entitled to the possession of the goods attached by the sheriff.

The following is the first instruction referred to by the court: “ To entitle the defendant to avail himself of the statute of limitations in this case, it must be shown that the administrator published a notice oí his letters of administration, as required by law, in some newspaper in this state; that if no notice was ever published in any newspaper in this state to the effect that letters of administration had been granted to the administrator on said estate of Collins as…

Louis Land Court. ' This was an action of trespass for damage done the plaintiff by the Railroad Company, in wrongfully entering upon the lands of plaintiff, and the digging up and carrying away of the soil, &o., of said land. Defendant asked the following instructions, which were refused by the court below: “1.

Louis Circuit Court. The facts will appear in the opinion of the court. These are the instructions asked by the appellant, and refused in the court below: “ 1. That the proceedings under which it is alleged that the property of the plaintiff was condemned for public use is null and void, and the plaintiff can not recover in this action on account thereof. 2.

Louis Lcmcl Court. This was an action of ejectment, instituted in February, 1855, to recover from defendant a tract of land in the lower part of the city of St. Louis. In support of their claim, the plaintiffs showed a confirmation to the representatives of Pierre Frangois Devolsey, by the act of July 4, 1836, of a tract of land six arpens in front by forty arpens in depth.

Louis Court of Common Pleas. This was an action by the administrator of John Perry to recover from John P. McGuire abalance of 12,454.87, on an open and running account between the parties during Perry’s lifetime. Suit was commenced by attachment January 20, 1855. Defendant being a non-resident was brought in by publication, and filed his answer. Afterwards, on 17th May, 1856, he filed an amended answer denying the indebtedness to Perry, but that Perry was indebted to him.

Louis Law Commissioner’s Court. This was an action brought before a justice to recover damages alleged to have been done to a building, described as situated in “ block No. 84, of the city of St. Louis;” the justice rendered judgment for plaintiff, and defendant appealed to the law commissioner’s court.

Upon the record, in this case the following questions arise : 1st. Is the instrument of writing purporting to be the agreement between Aaron, Jacobs & Co. and R. Keiler & Co. an absolute bill of sale, or an assignment in trust for the benefit of creditors ? 2d. Can one partner make a general assignment of the partnership effects for the benefit of creditors, so as to bind his copartners and pass the title? 3d. Was the sale of the goods complete before the inventory thereof…

I. This was a proceeding in equity, and nó final judgment could be rendered therein at the appearance term. The defendant had a right to plead at any time before the end of the sixth day,, there being no order to plead sooner. (R. C. 1855, p. 1259, § 5; p. 1230, § 5.) II. Though this suit is partly upon a note, yet seeking lien upon specific property, the respondent is not entitled to concurrent judgment with those creditors who sue upon notes to the same term.

I. The act of 1835 (R. C. 1835, p. 250, § 2) reads: “ The printed statute books of sister states and the several territories of the United States, purporting to be printed under the authority of such states dr territories.” This was the only law on the subject in 1835.

I. The statute on which this proceeding is based (R. C. 1855, p. 1241, \ 62-3) provides that the person against whom such a proceeding as this is instituted may be summoned, &c.,. and upon the return of the order of notice, duly executed, &c. The whole tenor and spirit of the act seems to require a personal service of the notice, not .a mere constructive notice by publication. II.

I. If tlie mortgage to Thomas had not been made at the time the deed was, it can not be supposed that he intended to lose his lien for the purchase money when he takes the mortgage on all the land for all the debt remaining unpaid, and takes it on nothing else.

I. The statute requires the trustees to know a valid certificate is in the hands of the proposed teacher before they can employ him and pay out public money; then, of course, they can only employ so long as he has a valid certificate. The law in that particular should be construed strictly, otherwise great injury would be done our common school system.

I. The application for a continuance should have been granted. The statute (p. 1260, § 8) is imperative. The application for a continuance, if otherwise good, must be sustained unless the opposite party “ shall admit the truth of the facts disclosed in the affidavit and agree that they be received in evidence,” in which event the court shall refuse to continue the cause. By observing this provision of the law, no injury can result to the applicant.

I. The statement made by Driskell to Jones that he was released, as the note had been given to Mateer, the principal, .operated as a release. It put the surety off his guard, and may have prevented him from giving the statutory notice. It is not necessary that the surety should have been injured. It is sufficient if he might have been. (8 Pick. 122,131; 23 Verm. 430, 456.) II.

I. The testimony excluded was clearly competent and should have been admitted. This is not like the case of. Harriman v. Stratton, 24 Mo. 324. II. This case is founded on the statute of our state, not on the common law, and is clearly within the statute. III. The burning of the barn and stables, and the hemp and corn and oats and hay stored in the barn and stables, is arson in the third degree under, our statute.

<p>1. Keene v. Barnes, 29 Mo. 377, affirmed.</p>

<p>1. Where a sheriff’s sale under execution is made by him in the usual way and at the usual place, the sale will not be set aside because the sheriff did not give special notice to the plaintiffs’ attorney of such sale, unless it appears that the sheriff promised to give such special notice and failed so to do.</p> <p>2. Mere inadequacy of price is not sufficient ground for setting aside such sale where it has been conducted fairly and properly in all respects.</p>

I. The only question involved in the case is whether a party can show such possession as is contemplated in section 62 by showing title to the land. If actual possession, pedis possessio, is necessary, then tracts of land not in the actual possession of either claimant would not be embraced in the provisions of the section.

I. The deed was properly executed to the heirs of Edwin Swink, deceased, as he died before the execution of said deed, and the sheriff could not properly make the deed to any one except to Swink’s heirs. The execution under which the said lands were sold was atttested by the clei’k of Wright circuit court, with his private seal thereto attached, there being no official seal of said Wright cii’cuit court.

<p> Error to Cole Circuit Comt. </p>

Error from Newton Circuit Conrt. I. Tbe court below erred in overruling the demurrer of the plaintiffs in error, because the defendant in error failed to comply with the law. When a receiver is appointed he is required to give either written or printed notice to the debtors of the defendant. (R. C. 1855, p. 250, § 39.) And when no receiver is appointed, the attaching officer shall have all the power and perform all the duties of a receiver under this act.

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

I. The indictment is sufficient under the statute. (R. C. 1855, p. 384, § 60.) It avers that the defendant wilfully and maliciously broke and injured the door of a dwelling house, specifying to whom the same belonged, and the time and place the offence was committed, which is all the description of the offence necessary under the law.

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

I. The plaintiff contends that if the provision of the city charter is constitutional, that it does not authorize the city to charge the cost of macadamizing the street crossings to property which does not adjoin such crossings. The argument is that the city is only authorized to charge the cost of macadamizing the streets to the property adjoining the improvement. This is a misconstruction of the law.

I. The court below ought to have set aside the judgment because the statement did not set out concisely the facts out of which the debt arose, on which the note was given, and because the statement as to the account is insufficient, giving no particulars nor items, and is a mere evasion of the statute-under which it was made.

I. Annual settlements are not such judgments as will authorize a suit in favor of the guardian against the ward, for the reason that the law requires the guardian to make an annual and to make a final settlement; and before he can make final settlement, lie must give notice in some newspaper of bis intention. Then the settlement becomes final and the ward is brought before the court to defend it.

I. The conversion of the land into money and promissory notes, payable to the sheriff for the benefit of the husband, or the husband and wife, were choses in action which he might sell or assign for a valuable consideration. (Webb’s Appeal, 21 Penn. 249.) It seems generally admitted in the United States that a transfer for value, or release of a chose in which the wife has a present interest, will bar her survivor-ship. (Hill on Trustees, 2d Amer.

Appellant was indicted at the August term, 1859, of Chariton circuit court for burglary and larceny. A change of venue was awarded to Linn circuit court, when defendant was put upon his trial.

This was a proceeding commenced by the respondent against the appellant, together witli a number of others, in the mayor’s court of the city of Lexington, in which action the city, under and by virtue of certain ordinances, sought to widen South street sixteen feet, by taking a part of the lots of appellant and the other owners on the north side of said street alone.

On the trial defendant offered to prove by plaintiff’s witness that plaintiff and his family had weak bones, very liable and easy to break and which were hard to cure. The court excluded the evidence about the bones.

The plaintiff .on tlie 18th June, 1859, sued out of the Cooper circuit court a writ of attachment, against the property of John Weber. The writ was delivered to the defendant, Bunce, sheriff, on the day that it issued, with directions to levy forthwith. On the 2b‘th of April, 1859, the defendant, Aehle, had sued out a writ of attachment, in same court, against the property of Weber; and the defendant, Bunce, on 30th April, levied on Weber’s property.

<p> Appeal from Carroll Circuit Court. </p> <p>Findley and Robertson were partners in business. On the 19th of August, 1857, Robertson sold out his entire interest in their stock of goods to Findley, together with all the rights, credits and evidences of debt due the firm, and Findley promised to pay all demands against the firm of every nature whatever, and to hold Robertson free and harmless from all liabilities of the firm. For the purpose of securing Robertson against all the liabilities of the firm, Findley as principal and G-uillett as his security executed to Robertson a bond, bearing date 19th August, 1857. This action is brought on that bond and was produced in evidence at the trial. Both defendants were served, and Findley not appearing, judgment by default was rendered against him. G-uillett appeared and answered, admitting the execution of the instrument sued on, but alleged that it was executed by him some three or four days after its date, 19th August, 1857 ; that said sale between Findlay and Robertson took place three or four days before said instrument was executed, and that when executed the date was left blank, and after-wards filled up. At the trial defendant, Guillett, offered as a witness in his behalf, his co-defendant, Eindley, to prove that the goods were sold and delivered by Robertson to him, Eindley, three or four days before the instrument sued on was executed. The court refused to permit Eindley to testify.</p> <p>I. The petition as against Guillett does not state facts sufficient to constitute a cause of action. The petition does not show that the sale was made at the instance or request of Guillett, the surety, but it does show that the sale was made before execution of the instrument sued on, and that the consideration of said instrument as to Guillett was past executed. The petition where it recites a portion of the instrument (and the instrument itself which is made part of the petition,) states that, e< whereas William C. Eindley did, on the 19th day of August, 1857, purchase from Edward O. Robertson the stock of goods, wares, &c.” This is the only part of the petition or instrument of writing which purports to set forth the consideration of the instrument. It speaks in the past tense: “ Whereas William C. Eindley did, on the 19th of August, purchase,” &c.; and although upon the face of the petition and instrument it appears that the sale and instrument were made on the same day, that can make no difference, as the lapse of an hour after the sale would have the same effect as the lapse of a month. The case of Parker v. Bradley, 2 Hill, 585, is almost identical with this, and is relied on as decisive that the petition in this case is fatally defective. (See also as to executed consideration : Pfeiffer v. Kingsland, 25, Mo. 66 ; Leonard v. Vredenburg, 8 Johns. 28; Chaffee v. Thomas, 7 Cowen, 360 ; Dearborn v. Bowman, 3 Mete. 155 ; 2 Amer. Lead. Cas. 126 and seq. and 146.) The undertaking of a surety is to be construed strictly. (Blair v. Perpetual Ins. Co. TO Mo, 559.) Sureties are favorites, both of courts of law and equity — both in law and equity contracts involving their rights will, so far as respects them, receive a more rigid and less liberal construction than between the original contracting parties. As against a surety, the contract can not be carried beyond the strict letter of it. (Ludlow v. Simonds, 2 Caine’s Cases in Error, 29 & 49.)</p> <p>II. Findley was a competent witness for Guillett, a judgment by default having been rendered against him at the previous term. (United States v. Leffler, 11 Pet. 86 ; Bradley v. Neal, 16 Pick. 501; Chaffee v. Jones, 19 Pick. 262 ; 1 Greenl. Ev. 355-6 ; Ganett v. Ferguson, 9 Mo. 126 ; Coons v. Green, ib. 200.) The whole matter as to which it was proposed to examine him was simply whether as between plaintiff and Guillett there was any thing which amounted to a valid consideration for Guillett’s undertaking; his own liability, was already fixed and certain. (Beale v. Finch, 1 Kernan; 128; Sess. Acts 1857, p. 181; Blodgit v. Morris, •4 Kernan, 482.)</p> <p>I. It is denied on behalf of respondent that the instrument of writing sued on and read in evidence to the jury, was or is, as against said Guillett, invalid and void upon the alleged ground that.it showed on its face that it was made upon a consideration which, as to said Guillett, was past and executed. It is insisted for respondent that the sale of goods, wares and merchandise, and the assumption of partnership liabilities, together with the execution and delivery of the instrument of writing sued on, (as mentioned in said petition and the instrument itself,) all taken together, constitute but .one-original entire transaction; that the execution and delivery of the instrument sued on was but the consummation,of the trade — was in fact the trade itself.. Beyond and outside of this instrument itself, there is no evidence whatever, of a trade between the parties — was in fact no such trade. This instrument is .at once the bargain of sale, and transfer and assumption of partnership liabilities, the security, tor its performance ; and, as such, was and is based upon a good and valid consideration, both as to the security and the principal. Even if the promise of defendant Guillett, in this instance, was founded on a past or executed consideration, it does not necessarily follow that it is therefore invalid and void. If the past consideration moved at his instance or request, it is good and binding. I refer to the following authorities: 14 Johns. 188; 8 Johns. 28; 10 Johns. 243'; 11 Johns. 221; 3 Hill, 584.)</p> <p>II. It is confidently affirmed for respondent that Eindlcy was and is incompetent as a witness for his co-defendant Guillett, he being a party to the action. (See R. O. p. 1577, § 7; 23 Mo. 579; 17 Mo. 367; 19 Mo. 263; 15 Mo. 28.) The last case was decided under the old law. Cases in 17 and 19 Mo. under the law of 1849, and that in 23 Mo. under the act of 1855. Under the former, it was held very properly that the only effect of that statute was to restore competency to a particular class, not to exclude any by a new rule. The latter goes much farther, and undertakes to define and does define by positive rules who shall and who shall not be a competent witness. Incompetent witnesses by that act are divided into nine classes — among them, parties to the action constitute one class.</p>

These are the instructions asked by the defendant and refused by the court “ 3. That if they believe that defendant had cause to believe that his life was in danger, or that great bodily harm was about to be inflicted by the deceased, and acted under that belief at that time, the law is for the defendant, if the .jury believe that defendant acted under that belief at the time, and that he stabbed Powel in. order to save his own life. 5.

The lot in controversy was a part of Hockaday’s addition to the town of Eulton, in Callaway county. On the 29th August, 1835, said Hockaday filed in the office of the clerk of the circuit court of Callaway county a plat of said addition, on which this lot, square No. 203, is marked “Market square.” On the 26th November, 1844, said Hockaday and his wife deeded the said lot to the defendants as trustees of the Presbyterian church.

I. The court below erred in overruling the demurrer to the plaintiff’s petition. The petition is not founded on the statute entitled “An act for the better security of life, property and character,” approved 12th December, 1855. Hence the petition is bad, because it does not aver that the injury complained of was occasioned by the negligence or unskilfulness of defendants’ agents or servants in running the locomotive or cars on said railroad.

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

This is the instruction given by the court at the instance of the State: “ If the jury believe the defendant, in the county of Laclede, within one year before the finding of this indictment, made a loud and unusual noise, or threatened or quarrelled or fought in the town of Lebanon, in said Laclede county, in the presence or hearing of one or more persons then in or near said town of Lebanon, and that such act or acts were wilfully done, they must find defendant guilty.” The…

Keiler & Co. sued Sylvain Levy, by attachment, and levied on a stock of goods as the property of defendant. Jacob Levy filed an interplea claiming the attached property.

The defendant was indicted under the statute for an assault upon one Pleasant Caps. At the trial defendant offered Henry Caps as a witness to prove that Pleasant Caps had fired a pistol, drawn a knife, and did other acts which threw the defendant on the defensive. The court gave this instruction for the State: “ 7.

I. The court below erred in overruling the demurrer to the plaintiff’s petition. Said petition was not founded on the statute entitled “ An act for the better security of life, property and character,” approved the 12th December, 1855, and the petition does not aver negligence or unskilfulness on the part of defendant’s officers, agents, or servants, in the running of defendant’s locomotive or cars on said railroad.

The service of process in this case is not in accordance with the law.

This was an action for damages. Plaintiff was employed by one McCoy to build the brick walls of a house on a lot adjoining a lot owned by defendant. Before he had completed said walls, defendant had been excavating on his own lot, and managed so carelessly and negligently that the bank of defendant’s lot fell and knocked down a part of plaintiff’s wall.

I. The first count in the indictment is insufficient. The acts made indictable in the statute does not make criminal the acts charged in the first count of the indictment as alleged. The thing obtained is a deed or title to forty acres of land, which is neither money, personal property, a right in action, or other valuable thing or effects, within the meaning of that section ; nor is the deed a valuable thing itself: the land it conveys may be, but not the deed.

Louis Land Court. Henry M. Shreve, by his will, after bequeathing his personal property, &c., devised all his real estate, within the corporate limits of the city of St. Louis, to his daughter, Rebecca A. Carter, and his grand-daugliter, Harriet Y. Reel, one of the plaintiffs.

Louis Circuit Court. This was a suit on a.bill of exchange drawn by Orr & Hull, in favor of the plaintiffs, accepted by the firm of Betts, Mellen & Go., of which Theodore Betts, John D. Mellen, Joshua Jackson, John O. Mellen, and A. A. K. Sawyer, were partners. The writ was personally served upon Betts, and a return of non est was made as to Jackson, John O. Mellen and Sawyer. Betts and John D. Mellen appeared and answered at the return term.

Louis Court of Common Pleas. The facts are stated in the opinion of the court. I. The petition does not aver the fact of delivery, either expressly or by fair implication. In an action on a note, an express assumpsit must be alleged. .Merely reciting the note in hcec verba is not sufficient. (Cook v. Simmons, 2 Call. R. 39.)

Louis. This was a suit, commenced before a justice of the peace, appealed to the law commissioner’s court of St. Louis county, and again appealed to the supreme court, to recover for the keeping of a horse of the defendant.

<p>1. The adjudging of costs under sec. 12, Eev. Code, 1855, p. 443, when the plaintiff’s demand is reduced by proof of payments below the jurisdiction of the court, is not subject to any inflexible rule, and must be left to the discretion of the court.</p>

Louis Law Commissioner’s Court. This was a suit commenced before a justice of the peace upon the following due-bill: “$112. — St. Louis, December 13, 1856. — Due S. S. Brainard, one hundred and twelve dollars, on account of H. Holmes — 3. P. Capelle.” The facts are stated in the opinion.

<p>1. After the dissolution of a partnership, one partner cannot give notes in the name of the firm, or in renewal of a note of the firm, so as to bind the other members without special authority.</p> <p>2. Where the partners had, prior to the dissolution, agreed with the holder of the note of the firm, that it should be renewed upon part payment at maturity, and a new note given for the balance, such agreement will be an authority to one of the partners, after the dissolution, to give a new note in the firm name in renewal; and the termination of the partnership is not a revocation of such authority.</p>

Louis Common Pleas. This case was before the court at October term, 1858, and is reported in 27 Mo. 311. The case was again tried in the lower court, in accordance with the opinion given. The defendants prayed that the cause should be tried by a jury, which was refused. The court below gave and refused instructions. The court below erred in refusing a trial by jury. (Rev. Stat. 1855, p. 1261, § 12.) This was a suit for money.

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

Louis Circuit Court. This was a suit upon a promissory note by endorsee against endorser. The defendant was duly subpoenaed to attend as a witness for the plaintiff at the trial. Failing to attend, the court, on motion, struck out the answer of defendant, and rendered judgment for the plaintiff. The defendant filed his motion for new trial, supported by an affidavit that his absence was not contumacious. The motion was overruled, and defendant appealed.

Louis Court of Common Pleas. This was ail action for the possession of personal property, brought against G. W. Manning, constable of St. Louis township, who, by virtue of executions issued by a justice of the peace in favor of the other defendants, and against James I). Kincaid, had levied upon a slave girl, named Fanny, as the property of said Kincaid.

Louis Circuit Court. This was an action againt the parties to a bond given to the sheriff, to recover the value of machinery, tools and fixtures of a gas-fitting and plumbing establishment, together with a quantity of pipe and materials of trade, which had' been levied upon by virtue of an execution in favor of Tasker against one Cooke.

Louis Comt of Common Pleas. This was a suit against the sheriff and the plaintiffs in execution, to recover damages for the faking the goods and merchandise claimed by the plaintiff as trustee in a deed of trust. The verdict and judgment were entered for the plaintiff, and defendants appealed. The deed of trust was void upon its face, under the decisions of Stanley v. Bunce, 27 Mo. 269; Billingsley’s adm’r v. Bunce, 28 Mo. 547.

Louis Circuit Court. This was a suit upon an indemnifying bond given to the sheriff to recover the value of property levied upon under execution, &c., and claimed by Decker as trustee in a deed of trust made by the execution debtor. The defence set up in the answer was, that the deed of trust was made for the purpose of defrauding creditors. The verdict and judgment were for the plaintiff.

Louis Land Court. This was a suit upon a mechanic’s lien, filed in May, 1857, the cause of action having occurred in November, 1856, brought in the St. Louis land court. At the trial the plaintiff proved his account, and asked for judgment for the value of the work and labor, and materials.

<p>1. The statement of a witness resident in the county, in his deposition taken tour months before the trial, that he expected to leave for Texas, and the return of a subpoena “ not found,” does not show that the witness is beyond the jurisdiction of the court, so as to authorize the reading of the deposition.</p> <p>2. A witness should not be allowed to state his understanding of the character of a transaction. He should state the facts, and let the jury draw the inferences.</p>

Louis Circuit Court. This was a suit upon a negotiable promissory note for three hundred dollars by endorsee against endorser. The answer set up the defence that the plaintiff, after the maturity of the note, for a valuable consideration, gave the maker of the note, of which the defendants were accommodation endorsers, time of payment without the assent of the defendants.

Louis Court of Common Pleas. This was a suit upon a penal bond taken by the sheriff of St. Louis county, under the local act of March 3, 1855, to recover the value of goods of plaintiff Mosher, seized by virtue of an attachment in favor of Russell & Bennett, and against Pollard, Anno & Co. The answer of defendants denied the title of Mother, and alleged that he was but the agent of Pollard, Anno & Co., to whom the goods belonged.

Louis Land Court. This was a suit to enforce a mechanic’s lien by the original contractor, for putting up gas pipes, &c., in the defendant’s theatre. The lien was filed and suit commenced within the time limited by the statute. After the completion of the work, the defendant gave his three notes to the plaintiff, which the plaintiff produced upon the trial, and'offerod to surrender the same to the plaintiff.

Louis Circuit Court. Z. Ward and J. J. Page bought real estate of Lewis Hampton, and to secure the payment of the purchase money executed their notes at one and two years, with a mortgage upon the property. Subsequently, they sold the real estate to the defendant Becker, who assumed to pay said notes and mortgage as part payment of the purchase by him.

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

Louis. This was a trial of an issue between the plaintiff and the garnishee in an attachment suit, commenced before a justice of the peace, and appealed to the law commissioner.

<p> Appeal from St. Louis Land Cou/rt. </p>

Louis Land Court. For statement of case, see opinion. I. The title under which defendant claims was never confirmed by the United States, and is consequently null and void. (2 Pet. 243; 12 Pet. 511; 4 How. 461; 9 How. 209; 16 How. 48 ; West v. Cochran, 17 How. 414; Chouteau v. Eckert, 2 How. 375; Le Bois v. Brammel, 4 How. 464; 3 How. 773.) The after-acquired title of Chouquette did not enure to the benefit of his grantee.

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

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

Louis Circuit Court. The opinion states the facts. Upon the trial by the court without a jury, the plaintiff asked the following instruction, which was refused: “ If the endorser, Andrew Beinstadler, resided outside of the city of St. Louis, and the notary, after inquiry made and upon inquiry of the maker of the note sued upon, was informed that the endorser resided out of the city in the county, and thereupon the notary addressed a notice to the endorser through the…

<p>I. It is error for a court to instruct a jury upon a state of facts which there is no evidence in the cause to sustain.</p>

Louis Circuit Court. For statement see opinion. As a subsequent endorser, Waugh was an incompetent witness against the prior parties to the note. (Harris v.Harris, 25 Mo. 567.) Waugh was a competent witness as an adverse party. (R. C. 1855, p. 1577, § 8; Fagan v. Long, 80 Mo. 222.)

Louis Land Court. For statement see opinion. I. The plaintiff’s instructions correctly declared the law of the case. (Willi v. Peters, 11 Mo. 396 ; Shepard v. Martin, 25 Mo. 193.) II. G-etzendauner got the actual possession of the premises sued for from the plaintiff under the lease. The recording would only affect the question of title. There was no privity shown between defendant Martin and plaintiff to constitute a tenancy.

Louis Law Commissioner’s Court. This action wa.s commenced in a justice’s court, to recover back from the defendant the sum of fifty dollars, alleged to have been overpaid by the plaintiff upon a promissory .note given by him to defendant.

<p>1. Where the appellant fails to file the transcript of the record within the time limited by statute, and the appellee produces such transcript, the judgment will he affirmed unless good cause to the contrary be shown.</p> <p>2. What will he good cause must depend upon the facts presented in each ease, within the discretion of the court.</p>

<p>1. Judgment affirmed on motion for failure of appellant to file transcript.</p>

<p>1. Judgment affirmed for failure to file transcript, with ten per cent, damages, the record showing no meritorious ground for the appeal.</p>

<p>1. Judgment affirmed for failure of appellant to file transcript.</p>

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

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

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

Louis Circuit Cowt. Rogers, Anderson & Co. made an assignment for the benefit of their creditors to Charles R. Anderson, who, resigning his trust, the plaintiffs were, by the circuit court, appointed assignees. The defendant Watson, as constable, under an execution in favor of Beard et al. against the assignors, levied upon part of the assigned effects.

<p>1. Judgment affirmed for failure to assign errors.</p>

<p> Error to St. Louis Circuit Court. </p> <p>I. Actions for injury to persons or personal property are transitory. (Mostyn v. Eabrigas, Cowp. 161; S. O., 1 Smith’s Lead. Cas. 480 ; Thursby v. Plant, 1 Saund. 237 ; Thrale v. Cornwall, 1 Wils. 165; 1 Chit. PI. 272, 275 ; Bulwer ease, Pt. 7, 4 Coke. 57-62 ; Maurice y. Henry, 7 Taunt. 306; Whitham y. Stains, 2 Bos. & Pul. 354; Rafael v. Yerelst, 2 Wm. Black, 1058 ; Trimby v. Yiguier, 1 Bing., N. C., 151; 2 Bing, N. C., 202.)</p> <p>II. The case of Livingston v. Jefferson, 1 Brock. 203, is not applicable to the case at bar. That was an action for trespass upon real property.</p> <p>III. In this country, all actions based on privity of contract, or injuries to persons or personal property, unless otherwise provided by statute, are transitory. (2 John. Cas. 325 ; Henwood v. Cheeseman, 3 Serg. 500; Wright v. Grier, 9 Watts, 177; Elliott y. Powell, 10 Watts, 455 ; Lester v. Wright, 2 Hill, 320 ; 2 Caines, 374; 15 Mass. 280 ; 10 Pick. 280 ; 9 Pick. 59 ; Story’s Conf. Laws, § 552.) Our statute would seem conclusive as to local actions. (R. C. 122.)</p> <p>I. As to the locality of the action. (Livingston v. Jefferson, 1 Brock. 203 ; 3 Blk. O. 294; 1 Ch. PI. 298 ; Waster y. Winepiseago Lake Co., 5 Foster, 525 ; 4 D. & E. 503, 20 E. L. & Eq. R. 445 ; 1 Taunt. 380.) Actions for flowing land and for obstructing the flow of water are local. (Irwell ■Nay. Co. v. Douglas, 2 East. 497; Rundle v. Delaware & R. C., 1 Wal. Jr., 275 ; Thayer v. Brooks, 17 Ohio, 489; 17 111. 534.) Action of assignee of the grantee against the grantor is local. (Leeman v. Ellis, 6 Mass. 331; White v. Sanborn, 6 N. Hamp. 220.) Actions on covenant of seisin or warranty are local. (Gould PL 115 ; Clark v. Gifford. 1 Caines, 5 ; Phillips v. Decker, 10 Mass. 267 ; Clark v. Scudder, 6 Gray, Mass. 122.)</p> <p>The legislature of this state can not confer jurisdiction upon its courts of actions arising in foreign countries, which are local under the laws of the countries where the action arises. (Henry on For. Laws, ch. 8, § 3, pp. 59 and 63 ; Story ConfL. L., § 541, 522, 553, 554, 586 ; Rafael v. Yerelst, 2 Wm. Bl. 1058 ; State v. Knight, 1 Taylor, 44.)</p>

Louis Circuit Court. The facts of the case are stated in the opinion of the court. I. The proceeding to set aside a will'formally probated is not an action brought by one party against another, nor is it instituted under the present Practice Act. II. If the devisees are necessary parties because they take an interest under the will, then in case of a suit to probate a will all the heirs-at-law must be made parties defendant, because the will would affect their inheritance.

Louis Law Commissioner’s Court. The facts are sufficiently stated in the opinion.

Louis Circuit Court. Suit upon a life policy of insurance made by the defendant, a company chartered by the state of New-York, and dated July 1, 1856, upon an application dated Juné 16,1856.

Louis Court of Common Pleas. This was a suit upon a bill of exchange drawn by one Pike on defendant in favor of Pike, endorsed by him to the Ohio Life Insurance and Trust Company, and by it endorsed to the plaintiff.

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

Louis Land Court. I. As the action of the land court was not reviewed, it is not necessary to give any statement of the facts beyond that contained in the opinion.

Louis Court of Common Pleas. The respondent filed his motion to affirm the judgment of the St. Louis court of common pleas, for the reasons that the appellant, 1st, saved no exceptions- to the rulings of the court below during the proceedings had in said cause ; 2d, made no motion in arrest of judgment, or to set aside the judgment by default rendered in said cause; 3d, presented no bill of exceptions; 4th, is debarred from taking any exceptions in this court not expressly…

Louis Circuit Court. This cause was set for trial on May 19th, 1859, and was called for trial on 23d May, at which time defendant prayed for an attachment against an absent witness who had been duly served with a subpcena, issued May 5, 1859.

Louis Circuit Court. Gardner, as trustee under a deed of trust made by one Adela Douthett to secure the payment of certain notes therein mentioned, sued Armstrong to recover damages occasioned by the refusal of the latter to comply with his purchase, at auction, of the premises described in the deed.

. Louis Circuit Court. This was an ejectment originally instituted in Lincoln county, September, 1846, but afterwards removed, by change of venue, to St. Louis circuit court.

<p>1. Judgment affirmed, the transcript of the record not being filed within the time prescribed by statute.</p>

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

Louis Court of Common Pleas. This was a suit upon a policy against fire, in the sum of five thousand dollars, issued by the defendant on the starch factory of the plaintiff, March 8, 1858.

Louis Circuit Court. This was a suit upon a policy of insurance against loss by fire, upon a starch factory and its machinery, dated March 11,1858, in the sum of five thousand dollars. The policy provided that the charter and by-laws .and conditions of insurance annexed to the policy should form part thereof.

Louis Court of Common Pleas. Smitli Baldwin and John C. Bredell were partners in business. John C. Bredell died January oth, 1858, leaving a will which was duly proved, and of which Edward Bredell, the relator, was executor, who took letters testamentary on the 15th of January.

<p>1. Judgment affirmed for want of assignment of errors.</p>

Louis Circuit Court. The third instruction for plaintiff was erroneous in declaring the measure of damages to be the value in the retail market. (Sedg. on Dam. 530 ; Gardner v. Field, 1 Gray, Mass. 151; Porter v. Curry, 7 La. 233.) It is not error to refuse instructions that are only a repetition of others that are given. (8 Mo. 339 ; 13 Mo. 82, 465; 17 Mo. 310; 18 Mo. 93.) The law as to tire statute of frauds was correctly declared in the instructions given by the court.

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

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

Louis Circuit Court. This was an action brought upon the statute of damages. (R. C. 647, § 2.) The suit was commenced April 27, 1858, by petition in the circuit court of St. Louis county, the plaintiff alleging that her husband was killed by the negligence of the driver of defendant’s stage, and that he died June 5, 1857.

Louis Court of Common Pleas. Benjamin & Co. deposited goods with defendants, and took a warehouse receipt; they afterwards transferred the goods to the plaintiff; the receipt was returned and a new one given by the defendants to the plaintiff, who held the goods as collateral security for a debt of five hundred dollars. Defendants removing from their store, left these goods with some of their own, and Benjamin & Co. afterwards obtained them.

Louis Circuit Court. This was a claim presented in the St. Louis probate court, at the December term, 1858, upon the following account: “Francis Dugdale Estate Dr. to William P. Fenn. Aug. 4,1858.

Louis Land Court. Suit upon a mechanic’s lien for materials furnished to defendants between February 15th and May 1st, 1858, to be used in the… Held: that when a plaintiff in a scire facias upon a mechanic’s lien has been nonsuited, he may file another upon the same demand, and proceed thereon, though the former claim remains on the records of the court. I. The statute being in contravention of the common law, and granting special privileges, must be strictly construed.

Louis Court of Common Pleas. The facts and instructions appear in the opinion of the court. I. If there was misconduct on the part of the servant sufficient to authorize a discharge, he was not entitled to wages. (Posey v. Garth, 7 Mo. 94.) II. The instructions are inconsistent; and if so, the judgment must be reversed. (Schnerr v. Lemp, 17 Mo. 142; Wood v. Steamer Fleetwood, 19 Mo. 529.) III.

Louis Court of Common Pleas. Suit upon a judgment recovered in New-York admitting a credit. The answer claimed that the defendant was entitled to a larger credit than the petition stated. No evidence was offered by either party at the trial, nor was the record of the judgment sued upon produced. The court rendered judgment for the plaintiffs. The production of the record was not dispensed with by the pleadings. The record should have been produced.

<p>1. Judgment affirmed for want of assignment of errors.</p>

Louis Court of Common Pleas. The facts appear in the opinion of the court. I. The method adopted by the court, on its own motion, for adjusting the loss, was in violation of the terms and conditions of the policy sued upon. By the seventh condition, defendant is only liable for such rateable proportion of the loss on the merchandise insured under its policy as the amount insured by defendant bears to the whole amount insured thereon.