Volume 32 — Missouri Reports

Louis Land Court. This was an action of ejectment to recover possession of a narrow strip of land on the northern side of a common field lot in the Grand Prairie, confirmed to Francis Leschappelles, Leg. Rep., by act of April 29, 1816, and surveyed as survey No. 1592, in 1838.

Louis Land Court. This was an action to recover the’ possession of a tract of land in the city of St. Louis, and within the out-boundary of the town, as surveyed under the act of June 13, 1812. The plaintiffs claimed title under a confirmation by the act of Congress of July 4, 1836, to Joseph Brazeau, or his legal representatives, and also by virtue of inhabitation, cultivation and possession prior to Dec. 20, 1803, and the confirming act of June 13, 1812.

Louis Land Court. Action of ejectment upon an entry, and preemption by Sally Adams, under the preemption act of 1830, made with the register and receiver of the St. Louis land district, for part of what is known as Duncan’s Island.

Louis Land Court. The land in controversy is within the corporation of' 1809 of the town, now city, of St. Louis. The corporation of 1809 was in full force when the act of 1812 was passed, which reserved all vacant lands in St. Louis for the support of schools therein. The land in suit is the same that was in controversy in the case of Kissell v. The Schools, 16 Mo. 553, and 18 How. 19, which decidéd that the plaintiff’s entry was void.

Louis Land Court. Eor statement see the opinion of the court.

Louis Land Court. The facts of the case appear from the opinion of the court. The title and deeds upon which the question presented arose, will be found set forth at length in the case of Reaume v. Chambers, 22 Mo. 36. I. The deed of 1818 being more than thirty years old, and having been produced from the proper custody, was admissible in evidence without further proof.

<p>The evidence in the record does not show such error in the verdict as to authorize the court to interfere. .</p>

Louis Land Cou/rt. This was an action of ejectment, brought by Hogan against Page, in the St. Louis Land Court, for a portion of a common field lot of one by forty arpens in the St. Louis Grand Prairie. The answer of defendant admitted that at the time of the institution of the suit he was in possession of nineteen ninety-sixth parts of the premises sued for.

Louis Circuit Court. This was an ejectment, commenced in the St. Louis Land Court, July 1,1854, and, taken by change of venue to the Circuit Court in 1856, and tried at the September term, 1859. The land claimed was a tract of one by forty arpens, in the St. Louis Grand Prairie common fields, and alleged to be the southern arpent of the one and one-half arpens confirmed to Philibert Gagnon by the act of Congress of April 29,1816, and surveyed as United States survey No. 1591.

Louis Circuit Court. I. It is manifest that the court below, in finding that the land in question “ was unproductive and could not be made to produce enough to pay the taxes thereon,” had reference to a renting by the year; for it is a sheer absurdity to say that forty acres of land lying in the heart of the city of St. Louis could not be made to produce an income above the public taxes by the grant of lease for a term of years. II.

Louis Land Court. The terms of the deed are set out in the opinion of the court. Tlte questions presented in the case were argued at length, in a written argument by B. A. Hill, Esq., counsel for appellant, and other parties interested in the question.

Louis Land Court. This case was before the court as reported in 25 Mo. 156. After the case was remanded the plaintiffs amended their petition, setting forth the transaction between Gabriel Paul and René Paul, and setting up the written declaration of trust on the part of René in favor of Gabriel Paul, and alleging that Fulton was a purchaser with notice, and praying a decree for one half of the land.

Louis Land Court. The facts are sufficiently stated in the opinion of the court. I. This being a suit in equity, the court will look into the whole record and the evidence to see if there be error in the decree. II. The answer admitted the affirmative allegations of the petition ; the affirmative of the issue made by the answer in setting up a defence, and the burden of proof thereon, rested with the defendant. (1 Greenl. Ev. § 74; Gres. Eq.

Louis Court of Common Pleas. A suit upon the same cause of action with the present, will be found reported in 21 Mo. 598. This suit was brought upon a note, payable three years after date, alleged to have been executed by the defendants, and which was in the hands of a third party who refused to deliver it to the plaintiff, although he was the legal owner thereof and entitled to its possession.

Louis Circuit Court. After the decision of the Supreme Court, in the case of Speck v. Wolilien, in 22 Mo. 310, deciding that the approval of the administrator’s report of sale at the same term at which the sale was made was void, the plaintiff, with John Wolff, the surviving administrator, in 1857, filed their petition in the St. Louis Probate Court, praying an approval of the sale of the real estate made by the administrators at the March term, 1845.

Louis Circuit Court. The finding of the court below is set out in the opinion.

Louis Land Court. Plaintiffs by amended petition alleged in substance, that on the 1st-June, 1853, they were entitled to the possession… Held: even in a case in equity, that where an administrator, at a fraudulent sale made by him, became the purchaser of slaves belonging to the estate of his intestate and afterwards held them as his own, he was protected by the statute. b. Even though John McCourtney may have intended to defraud his creditors by making the deed to Martin,-…

Louis Land Court. This is an action of ejectment, brought 28th January, 1860, by plaintiffs against defendants, to recover possession of two lots in Labadie’s addition to the city of St. Louis.

Louis Court of Common Pleas. The deposition of Joseph Lessler should have been admitted. The ground of his exclusion was that he was the assignor of a chose in action called to testify as to facts in relation thereto which occurred prior to his assignment. But it is contended that the endorser of a negotiable promissory note is not the assignor of a chose in action within the contemplation of our statute concerning witnesses. (Hicks v. Wirth, 10 How. Prac.

Louis Land Court. The facts are stated in the opinion. I. Both sales by the trustee were void. 1. The first sale was void because the different tracts were put up and- sold in one parcel, when they should have been sold separately. Had it been a sheriff’s sale it would have been set aside. (7 Mo. 346 ; Conway v. Nolte, 11 Mo. 74.) 2.

Louis Land Court. This is an action, in the nature of an action of ejectment, to recover the possession of a lot of land in block 145, in the city of St. Louis, commenced in the St. Louis Land Court, on the 22d day of September, 1858. The defendant in his answer denies the allegations in the petition, which, of course, puts the plaintiff on proof of his right to recover. The cause was tried by the court below without a jury.

Louis Land Court. I. The deed was made in 1810, when the Spanish law was in force, and does not seem to have been a purchase by the grantees, but a donation for considerations not expressed. (10 Mo J 262; 2 Hennen’s Dig. 1066.) The entire deed should be looked to, and the subsequent acts of the parties should have great weight. (3 John. 394; 26 Mo. 49 ; 28 Mo. 478.) II.

Louis Circuit Court. I. The petition is fatally defective. a. It does not show the note declared on to be negotiable by the law of this State. (R. O. 1855, p. 295, § 15.) It does not set out the words which give the note negotiability. b. It contains no averment of demand and refusal, or of facts -which excuse the laches of the holder. The averment that said note was not protested at defendant’s instance and request, he waiving protest, is insufficient.

Louis Circuit Court. This was an action on a bill of exchange by the endorser against the acceptor. Held: and the plaintiff did not apply said balance to the debt of the bill, then Carson would be discharged from all liability on the bill, plaintiff failing to make such application at its own risk. 4.

Louis Land Court. This was an action upon the breach of a covenant in a lease.

Louis Circuit Court. This was an action upon an award at common law.

Louis Law Commissioner's Court. This was a suit in trespass, commenced August -12, 1857, to recover the sum of one hundred dollars, for entering the premises of the plaintiff and tearing down and carrying away a frame house, The answer denied the trespass, and alleged the title to be in defendant.

Louis Law Commissioner’s Court. I. The civil rights of a person sentenced to the penitentiary for a term less than life, are suspended by virtue of such sentence. He is civiliter mortims during such time. (1 R. C. 1855, p. 642, § 22.) Among the civil rights of a person is the right to sue and be sued. (1 Wend.,Blk.

Louis Circuit Court. I. Defendant not having been personally served with process, the case was not triable at the return term. (R. C. 1855, p. 1259, Prac. Act, § 4 & 5.) The general rule by the statute is that all cases shall be continued at the return term, and the 24th, 25th and 26th secs, of Art. 6, p. 1235, changes this rule only in cases where there is personal service in cases of bills, bonds and notes.

Louis Court of Common Pleas. The matters upon which the court pass are sufficiently stated in the opinion, and as only one point is decided, the other questions presented by the counsel are omitted. I. The court improperly admitted as evidence the articles of association of the stockholders of the Bank of Commerce,. because not properly authenticated, and because there was no evidence that the affidavit required by the laws of the State of New York was subscribed and filed.

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

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

Mosely, Auditor Public Accounts, to compel him to audit and allow an account of the relator for making out a copy of the tax book of St. Charles county, for 1861, at the rate of ten cents per hundred words. The auditor appeared and waived the preliminary rule, and the cause was submitted to the court.

Louis Circuit Cowrt. The fifth instruction, asked by defendant’s counsel and refused by the court .below, was supported and warranted by the evidence, and ought to have been given.

Louis Circuit Court. The facts are stated in the opinion of the court. I. The judgments offered in evidence were not competent evidence.. It was intended to make the jury believe, that because Hayden was able to sustain his title to the property, therefore the intent of Hayden was not fraudulent. I. The records were properly admitted in evidence, for they were used only to prove that verdicts were given in those cases as collateral facts. (1 Greenl.

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

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

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

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

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

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

Louis Court of Common Pleas. The facts are sufficiently stated in the opinion, excepting that at the trial the defendauts offered testimony to prove that Robert A. Reilly was the real owner and manager of the boat, and that he employed the master, the defendants having no management or control of the boat, being trustees only.

Louis Circuit Court. The facts are fully stated in the opinion of the court. The following are the instructions asked by the interpleader and refused by the court: 1. The court declares the law to be, that a foreign assignment will operate wherever personal property of the assignor is found, according to the law of the assignor’s domicil, except as against the citizens of the State in which such property may be found. 2.

Louis Court of Common Pleas. I. A married woman cannot be sued alone, without the appointment of a nest friend, or joining her husband. (R. C. 1855, p. 1218, Art. II., § 7; Cost v. Cost, 4 How., Prac. R., 232; Eliz. Smart, by next friend, v. Comstock, 24 Barb. 411.) II. The petition did not state facts sufficient to constitute a cause of action against Mrs. Van Wagoner, to entitle the plaintiff to the relief prayed for as against her separate estate.

<p>Evidence — Objection.—Where an objection is made to the admission of evidence in the court below, the reason of the objection must be stated, or the matter will not be reviewed by the Supreme Court.</p>

Louis Court of Common Pleas. The facts are stated in the opinion. I. The appellant fulfilled the contract by delivering the goods at the place to which .they were consigned, in good order, and at a seasonable hour, according to the usual custom of delivery of goods, at the port to which they were consigned. (Eletcher v. Marine Ins. Co., 18 Mo. 199; 2 Arnold, Ins., 779.) II.

Louis Court of Common Pleas. Watson, as constable of St. Louis township, seized a negro slave by virtue of executions issued by L. Waite, a justice of the peace, in favor of Parker et al. against one Dunnell.

I. The appellants being non-residents, and that fact being shown, they were entitled to twenty days within which to-appeal. (R. C. 1855, p. 971, § 8.) IT. If the statute allowed a non-resident twenty days to appeal, the privilege thereby granted carried with it all means and powers necessary to carry out that privilege.

Louis Law Commissioner’s Court. Plaintiffs commenced suit in the Law Commissioner’s Court, March 17,1859, upon a mechanic’s lien, filed in the office of the clerk of the St. Louis Land Court, March 14, 1859, for the sum of one hundred and fifty-seven dollars and sixty cents.

Louis Court of Common Pleas. I. The St. Louis Common Pleas had no jurisdiction of the cause of action. The action was substantially for the infringement of a patent right, of which only the courts of the United States have jurisdiction. (5 Stat. U. S. 117; act July 4,1836; 2 Kent. 405 ; Curtis on Pat., § 405 ; Parsons v. Barnard, 7 J. R. 144; Gilson v. Woodworth, 8 Paige, 132; Dudley v. Mayliew, 3 Comst. 9.) The error is not cured by verdict.

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

Louis Criminal Court. I. The count under which defendant was convicted was defective. (R. C. 601, Art. 5, § 9.) The essence of the offence was obstructing the due course of justice. It does not allege that the testimony of Polk was material. It does not allege that a subpoena or other process had been, or was about to be, issued or served upon Polk.

Louis Law Commissioner’s Court. On the 12th May, 1859, two suits were brought against James Meegan, before Peter W. Johnstone, a justice of the peace; one in favor of David F. Goodfellow’s executors, for thirty-five dollars and forty-five cents, for grazing oxen from July 28,1858, to September 18,1858 ; and the other suit was in favor of Mary G. Goodfellow, for eleven dollars and fifty five cents, for grazing oxen from September 18,1858, to October 21,1858.

Louis Circuit Court. The facts are sufficiently stated in the opinion of the court. The paper in the handwriting of Mr. Dayton, referred to, was an unsigned deed between the parties, similar to the instrument sued upon, which recited that the plaintiffs were interested in the claim with the heirs of their deceased brother, Louis Clamorgan.

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

<p>No briefs on file.</p>

Louis Circuit Court. The facts are sufficiently stated in the opinion of the court. For the plaintiff the court gave the following instructions: 1. If the jury believe from the evidence that the defendant, at the time when this attachment was issued, had absconded from his usual place of abode in this State, so that the ordinary process of law could not be served upon him, they will find for the plaintiff. 2.

Louis Circuit Court. The defendants, by virtue of an attachment in their favor against one Roberts, had seized a steamboat belonging to the plaintiff, used in transporting coal from the plaintiff’s railway and mines to Jefferson city. Roberts pleaded in abatement of the attachment, and the suit was dismissed. The plaintiff sued to recover damages for the seizure and detention of the boat.

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

Louis Circuit Court. I. Helgenberg was a proper witness. As he had withdrawn his answer, and default had been entered, his testimony could not benefit himself.' The defence of Boernstein was peculiar to himself, of which Helgenberg could take no advantage. (Page et al. v. Butler et al.,-15 Mo. 547 ; 1 Green. Ev., § 355 ; Steel v. Boyd, 6 Leigh, 547; 4 Sanf. 616; 3 Smith, 7 N. Y., 507; Acts 1856-7, p. 181.) - II.

Louis Land Court. Plaintiff brought his action for forcible entry and detainer against the defendants, before a justice of the peace, from whence the case was removed by certiorari to the St. Louis Land Court. The plaintiff claimed that he was in the actual possession of part of lot eighteen, in Robt.

Louis Circuit Court. The facts are stated in the opinion of the court. I. The agreement described in the petition is under seal, and does not bind any one of the firm except the partner signing it. (Henry County v. Gates, 26 Mo. 315.) II. The agent had no authority to execute the note described in the petition. III.

Louis Land Court. Plaintiff filed his petition the 14th December, 1855, in the St. Louis Land Court, to foreclose a mortgage upon certain lands in St. Louis township, made by Vespasian Ellis in January, 1839, to secure, among other notes, three notes of five hundred and odd dollars each. The notes and mortgage were executed to John Riggin, mortgagee, who endorsed the said three notes before maturity to Thomas J. Payne for value.

Louis Circuit Court. The facts are sufficiently stated in the opinion. Held: by the Supreme Court of Pennsylvania, “that there was no plausible reason to sustain the objection. How, otherwise, could the alleged imbecility of mind be proved than by the evidence of those who grew up with him, who marked his conduct in infancy, in the prime of life, and in his decline ?

Louis Land Court. The facts are stated in the opinion. The following instructions were given and refused. Asked by plaintiff and refused : 1.

Louis Law Commissioner’s Court. The testimony in this' case shows such an utter confusion of ideas, as to matters sacred and profane, as to become really amusing; and for this reason we submit it in full, for permanent preservation. The plaintiff called as a witness John E. Lubbering, who testified as follows: “ I know the parties to this suit. The defendants kept Hyde Park during the spring of 1859; I was engaged there from the first of May to the last of July.

The opinion sufficiently states the facts of the case. The following are the instructions given for the State: 1. The defendant is charged with murder in the first degree, by having wilfully, deliberately, and premeditatedly killed Lorenzo D. Barlow. The word “wilful,” as here used, means intentional, not accidental.

Louis Land Court. The plaintiff sued the defendant in the St. Louis Land Court, for dower, beginning the suit February 23, 1859.

Louis Land Court. This suit was brought on the 21st of September, 1859, in the St. Louis Land Court, to recover forty-seven acres of land in St. Louis county.

Louis Court of Common Pleas. The facts are stated sufficiently in the opinion. The following are the instructions given and refused upon the question of solvency: The plaintiff asked the following instructions, which the court refused: 1. If the jury believe from the evidence that when the deed of Hall to Willi was made, Henry Baldwin was indebted, but that such indebtedness could not be collected by legal process, then they should find that he was then insolvent. 2.

Petition of Coroner of St. Louis County for mandamus. Held: in allowing fees for such service, especially where the verdict of the jury shows a natural death, the coroner should make it appear to the satisfaction of the commissioners that the circumstances surrounding the death were of such a nature as rendered the inquest proper if not necessary.

<p>Application for leave to file an information in the natwre of a quo warranto.</p>

I. There was no error in giving the instructions asked for by the plaintiff below, or in refusing those asked for by defendants. Snyder being unable, on account of the lien, to make Beazley a title to the horse first swapped to him, Beazley had a right to return the horse and take back his mule— the consideration for which he had parted with the mule having failed.

I. The only question presented by the record for the decision of this court, is, whether or not the Circuit Court of Pettis county erred in permitting the defendant in error, Everett, to take a non-suit.

I. Appellant contends that the offence with which appellee is charged is not “ infamous,” which can only be punished on presentment or indictment; (Cons. U. S., art. 5, Amendments ;) but may be punished in a summary manner, if the legislature so directs.

.Error to Cooper Circuit Court. 1. The court below erred in not allowing the exception of plaintiff in error to the ruling of the commissioner, which excluded the evidence of Stephens as to facts occurring anterior to his assignment to Frampton. (See § 3 p. 1577, R. C. 1855.) Stephens was a competent witness, independently of the assignment. But he could certainly testify as to half the amount sued for.

I. Admitting that the proceedings in the County Court were in all respects legal and proper, the evidence showed that Minor was constable de facto. That from his election, in 1858, to the expiration of his term of office, in 1860, ho was in the actual and notorious exercise of his office, and had never been ousted therefrom.

There is but one point presented by the record for the opinion of this court: Whether a mistake in a title bond for the conveyance of real estate can be reformed and corrected, and a specific execution be decreed of the contract so reformed ?

I. The instruction given to the jury by the court below, at the instance of the plaintiff, is manifestly erroneous. A party cannot abandon at will and pleasure any contract or agreement entered into for rowing or navigating any boat or vessel on the navigable waters in this State, but must specifically perform the same, according to the intent and meaning of sucb contract or agreement.

The facts are sufficiently stated in the opinion. The following instructions given do not appear in the opinion: By the court: 8.

JEhror to Osage Circuit Court. The only point in this case,'is whether, after the term at which a final judgment is rendered, the court can interfere with it. There was no irregularity in the proceedings in this cause. There was an answer regularly filed in the cause, and the issues tendered by it were presented to the jury on the trial; the answer was read to the jury at the trial.

I. That the appearance and pleading to the merits of the action by the respondent here before the justice of the peace, was a complete waiver of the right to a verbal plea in the nature of a plea in abatement.

I. The 14th section of the act to incorporate the Osage Yalley and Southern Kansas Railroad Company (Laws of Mo. 1847, adj. Sess., p. 62) is unconstitutional. It delegates to the County Court, without any restriction or limitation whatever, the absolute authority to confiscate, by the subscription of stock and formal taxation, the entire property of every citizen of the county.

Henry Binswanger, as administrator of Solomon Binswanger, deceased, had sold the goods of the intestate, and taken in payment the notes of the defendants, Yertrees et al., payable to himself as administrator, and upon such notes, upon default of payment, had obtained judgment. The plaintiffs, having obtained judgment against Henry Binswanger, issued execution and summoned the defendants, Yertrees et al., as garnishees of said Henry.

This suit was instituted in the Callaway Circuit Court against defendant in error, on a note, dated May 23,1857, payable two years after date, for four hundred and fifty-two dollars and fifty cents, with interest from date till due-at six per cent-um, and after due ten per centum. Defendant executed the note as security to Joseph G-. Martien, as to whom the suit was dismissed for want of service of writ.

I. The plaintiff is expressly required by law to prosecute all civil actions in which any county in his circuit may be concerned, and to defend all suits brought against any county in his circuit. (1 R. C. 1855, p. 275, § 13.) The fee law provides for the payment of his fee for such services (1 R. C. 1855, p. 756, § 2), and by the forty-second section a penalty is prescribed for demanding or receiving a greater fee than is allowed by the act. II.

This was a suit commenced in the Moniteau Circuit Court, at its September term, 1859, by the defendant in error, for the recovery of certain bricks, under the statute for the claim and delivery of personal property. Defendant answers and denies the taking of any of plaintiffs’ bricks, claims them as his property, and asks the court to render judgment in his favor for the return of the brick taken from him by the sheriff, and for damages.

The opinion sufficiently states the case. I. Parol testimony is inadmissible to contradict, enlarge, vary, or add to a written instrument. (Lane v. Price, 5 Mo. 101; Singleton v. Eore, 7 Mo. 515 ; Woodward v. McG-augh, 8 Mo. 161; Walker v. Engler, 30 Mo. 130.) Under this principle, the first instruction asked by plaintiff ought to have been given by the court.

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

<p> Appeal from Weston Common Pleas Court. </p>

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

This suit was commenced by the plaintiff, William W. Erazer, in the Circuit Court of Newton county, at its April term, 1869, by attachment, upon the following petition, to-wit : “ The plaintiff states that at Granby, in said county, and on or about the 10th day of January, 1859, he purchased from the defendant Roberts, who was acting in his own behalf, and as the agent of the defendant Sanders, all the interest of the said Roberts and of the said Sanders in the property,…

<p>Sá¡,e — Fraud.—When a vendor sells property having a latent defect of which he is aware, but which he fails to disclose to the vendee, knowing that the latter is acting upon the supposition no such defect exists, he is guilty of a fraud, and the fraud may be pleaded as a defence to an action for the price of the property.</p>

I. The plaintiff contends he had a right to sue on this note as administrator, and having done so, the plaintiff’s petition was not answered by defendants in the first statement of the answer filed by them. That part of the answer was therefore properly stricken out. See cases referred to in defendant’s brief in the case of Lessing v. Yertrees, decided at this term of the court.

I. The declarations of the intestate, made at the time of the execution of the deeds, were proper evidence as part of the “ res gestee.” They formed a part of the instructions, and were explanatory of the main fact, the intention of the testator in executing the deeds. They were verbal acts, made “ dumfervet opus,” and, as such, are always admissible as evidence. (See 1 Phil. Ev. chap. 7, § 7, p. 281 & 232; 1 Greenl. Ev. § 108 & 109 ; Growther v. Gibbons, 19 Mo. 366.) II.

The only question presented in this case is, does the answer of the defendant present facts which constitute a defence to the plaintiff’s action ?

This was an action to recover the value of a lot of China hemp seed which, it is alleged by plaintiffs, was wholly lost to them through the negligence, carelessness and inattention of defendants as commission and forwarding merchants. Defendants were commission and forwarding merchants at Maxwell’s Landing, on the Missouri river, in Jackson county.

This was an action for money lent by the plaintiff to defendants. The answer denies the loan, and denies any indebtedness to plaintiff. At the date of the alleged loan the money was in special deposit with the defendants, and was afterward stolen from them. I. The instruction given by the court, upon its own motion, makes no distinction between a special and general deposit. (See Coffin v. Anderson, 4 Blackf., Ind., 408.) II.

The court erred in not arresting the judgment. There should have been a separate finding of the jury on both counts, as they were separate and distinct causes of action. (See Mooney v. Kennett, 19 Mo. 551.) The jury must find all the facts put in issue. (Fenwick v. Logan, 1 Mo. 283; Hickman v. Bird, 1 Mo. 350 ; Talbot v. Jones, 5 Mo. 217.) Upon a consideration of the whole case, the court below should have set aside the verdict of the jury.

<p>Practice — Motion to strike out. — A motion to strike out- part of a pleading, described by reference to line and page, does not sufficiently specify the part referred to, and the Supreme Court will not review the action of the inferior court upon such motion.</p>

I. The court erred in refusing to strike out parts of defendants’ answer, as moved by plaintiff. The defences set up are inconsistent. In the fifth and sixth counts defendants deny the validity of the contract, and deny all responsibility thereon. In the first and second counts the defendants admit their responsibility on the contract, but attempt to confine and limit that responsibility. In the third count they plead a full compliance with the contract as they construe it.

This was a suit upon a sealed agreement between the plaintiff and one Brauchman of the one part, and the defendant of the other part. Brauchman assigned his interest to Basye, who sued for the breach of contract by defendant, alleging also a parol variation of the contract. The defendant demurred for defect of parties plaintiff and for want of allegation of performance of the plaintiff’s portion of the agreement. The demurrer was sustained and plaintiff appealed.

I. The court erred in excluding from the jury the testimony of witness Stone and the receipt of defendant produced by said witness. The records of the County Court, which were read in evidence, proved that defendant Allen was the agent of said county to receive the railroad funds,-and the testimony of Stone proves conclusively the receipt of certain money by defendant as such agent; and this testimony was relevant and legal, and should not have been excluded. II.

I. The eighth error of the court is the most prominent one in the case. It is in relation to the computation of interest. The defendant excepted to the report of the commissioner because the commissioner compounded the interest annually at the rate of six per cent.; and the court sustained the exception and referred the case back, with directions to compute at simple interest and not compound it.

The point made by the demurrer, that the suit is not brought in the name of the proper parties, is untenable. Any person who is to be affected by the unauthorized act of a public officer, may claim the protection of the government and its name, and sue by such government on his relation. (See Story’s Equity Plead, p. 56, § 49.) The petition charges that they have made the subscription, and are threatening to issue the bonds and levy a tax for the payment of them.

I. The Circuit Court committed error in giving the first instruction asked by the respondent. II. The Circuit Court erred in giving respondent’s third instruction, as it is surely neither the law or the policy of Missouri to submit the pleadings to a jury, to hunt out what allegations are and what are not material. That is abstractly the law, but it is a duty of the court and not of the jury to hunt and declare them. III.

I. It was not necessary that the sale should have taken place before the courthouse door to make the tax deed good. The evidence shows that the sale was made at the courthouse, which is in accordance with the notice. The sale being made publicly, near the door, within full view of and within hearing distonce of the door, was a substantial compliance with the law; and the rights of the parties could not have been affected thereby. II.

<p> Appeal from Randolph Circuit Cowt. </p>

At the trial of this cause, the respondent offered in evidence the records of the White Cloud City Association, all made prior to the charter of the White Cloud City Company, the charter having been approved February 11, 1858, and record and articles of association made from May 11, 1857, to February, 1858, which was objected to by the defendant as irrelevant and incompetent; which objections were overruled; which opinion was clearly erroneous.

The facts are stated in the opinion. I. The plaintiff had a right at any time before th* jury was sworn to dismiss his suit as to any of the defendants. The defendants Sarah A. and Mary A. Collier, who had been obtruded into the case, and were not necessary parties to the controversy between the plaintiff and the original defendants, had no right to compel the plaintiff, against his consent, to carry on a suit against them.

The facts are fully stated in the opinion. I. The interest of A. M. Mitchell in the lots in controversy was liable to be seized on the attachment. (B. C. 244, § 19 ; Lisa v. Lindell, 21 Mo. 127; Lacky v. Seibert, 23 Mo. 93.) In this State, the interest of a tenant in common, in any given part of the common property, is liable to be seized and sold on execution. This is an authority derived from our statute, and which is variant from the rule of the common law.

This action was brought by Hall against Huffman' to recover damages for the non-performance of covenants or agreements on the part of Huffman, contained in a lease of ground made by said Hall to Huffman.

Even if the money could have been appropriated, as it was by the court, as between the original parties, that is, as between the sheriff and the county, yet the law does not permit such an appropriation when it will interfere with the rights of securities or other third parties who are to be affected by the transaction.

I. The court erred in refusing to give the third instruction asked for plaintiff, and also in giving the instruction which it did on its own motion. This instruction given by the court is erroneous in this — that it denies the plaintiff’s right of recovery on the bond sued on; first, unless plaintiff had a title “ before the maturity of the note;” and second, unless plaintiff had tendered a deed “ before the institution of the suit.” Both of these propositions are erroneous.

I. The question in this case is whether the slaves of an infant femme, which have been hired out by her guardian before the marriage, pass to her husband jure marito where the marriage and the death… Held: that this was such a possession by the wife as that the marital rights of her husband would attach, the possession of one joint tenant being the possession of another. (Burgess v. Heape, 1 Hill’s Ch., S. C., 404.) YI.

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

The facts are sufficiently stated in the opinion.. I. If the defendant in error, or his heirs, now that he is dead, is entitled to any relief whatever (which is denied), it is not such as is declared by the judgment of the Circuit Court in the case.

The defendants were indicted at the September term for the year 1860, of the Christian Circuit Court. The indictment contains two counts, the first charging defendants with disturbing a congregation met for religious worship, and founded on the 30th section of the 8th article of the act concerning crimes and their punishment.

. The appellant here obtained a judgment against John McHenry in the Greene Circuit Court, in 1855, for one hundred and ninety-seven dollars and eighty-one cents, and execution therefor was issued from the office of said Circuit Court directed to the sheriff of said county of Greene, and returnable to the March term, 1856, of said court. At that time the respondent here was the sheriff of the county of Greene. .

I. The deed of Stout to Smelser could not be read in evidence, unless the certificate shows that the party acknowledging the deed was personally known to the officer taking it to be the person making the deed. The deed was not certified, proved or acknowledged according to any law in force at the time. II. If a deed can be read as an ancient deed, the party must show possession or acts of ownership to correspond. (Greenl. Ev. § 141-145; it. O. 733, § 58.) III.

I. The court committed no error in overruling defendant’s motion to quash. The indictment is not bad for duplicity, since the stealing of several articles of property at the same time and place constitutes but one offence. (Lorton v. The State, 7 Mo. 55.) II. It is not necessary, where horses are the subject of larceny, to allege any value, since to steal a horse of any value is grand larceny. (1 E. C. 1855, p. 575, § 25.) The indictment is therefore sufficient. III.

<p> Appeal from Greene Circuit Court. </p> <p>The defendant was indicted at the January term of the Greene Circuit Court, for the year 1860, for an indecent exposure of his person on a public highway. The defendant filed his motion to quash the indictment, assigning the following reasons therefor:</p> <p>1. Because there is no offence charged.</p> <p>2. Because it does not use the language of the statute descriptive of any offence known to the law.</p> <p>This motion was sustained by the court, to which the State excepted and brings the case to this court by appeal.</p> <p>I. The indictment may not use language sufficient to make it good, under art. 8, § 8, of the act in regard to Crimes and Punishments, (R. C. 1855, p. 624,) but it will be found to be a good indictment at common law. (Arch. Crim. Plead. 494; State v. Appling, 25 Mo. 315; 4 Black. Com. 65,».; Gresham et al. v. The State, 2 Yerg. 589 ; 1 Russ. Crimes, 46.)</p>

I. The indictment was sufficient, and the court committed no error in overruling the motion of defendant to quash. The indictment is framed under sec. 39, art. 2, Crimes and Punishments, R. C. 567, and charges the defendant with a felonious assault. Had death ensued from the wound inflicted by defendant, it would, under the averments of the indictment, have amounted to manslaughter in the third degree.

The defendants were indicted at the September term, 1860, of the Christian Circuit Court, under the 30th sec. of the 8th art. of the act in regard to crimes and their punishment, (1 R. C. 1855, p. 630,) for disturbing religious worship. “The grand jurors, &c., present that Young Stubblefield and Martin Edwards, both late of the county aforesaid, on the first day of January, in tlie year 1860, with force and arms, in the county afaresaid, did then and there wrongfully,…

The defendant was indicted at the September term, 1860, of the Christian Circuit Court, before P. EL Edwards, judge, for dealing as a merchant, under an act to license and tax merchants, (Acts 1858-9, p. 54, § 2,) without taking out license. At the March term of the court for the year 1861, the defendant filed his motion to quash, which was sustained by the court, and the State appealed.

The plaintiff had no right to recover on the evidence offered and given in the cause. There was no evidence tending to show that Borgmier, administrator of John Hanenkamp, had notice of the fact that Ewing had administered on the estate of the minor child of his intestate in Cole county, or that there was any demands against her unpaid.

I. The defendant was not present when the verdict was returned. The record should affirmatively show that he was present. No person indicted for a felony can be tried unless he be personally present during the trial. (R. C. 1855, p. 1191; Pr. Or. Cases, art. 6, § 16.) So it is at common law ; the verdict in all cases of felony and treason must be delivered in open court, in the presence of the defendant. (1 Arch. C. P. 173, n. 2 ; 1 Chit.

Were the declarations of Young competent testimony for Tutt if they were made while he was the owner of the bill ? We think they were competent testimony. Suppose Young had never negotiated the bill, and had sued Tutt in his own name. We think, in that case, his confessions would be competent. Then the transfer of it did not change the law, so far as Tutt was concerned, nor his defence, nor the rule of evidence.

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