Volume 33 — Missouri Reports

<p>Constitution. — An act of the General Assembly empowering a guardian to sell the land of his wards, and to apply the proceeds thereof to their benefit under the direction of the court, is not in violation of the constitution of this State.</p>

Charles Circuit Court. I. The instructions given by the court were right. The conveyance was only a quit-claim deed, which in its very nature implies that no specific quantity or title is contracted for. No contract, bargain or representation is shown in the case whereby appellants were to get for the price fixed anything more than respondent happened to own at the time.

<p>Officer — Return.—The return of an officer as to the execution of a process delivered to him caunot be questioned collaterally, but is conclusive upon the parties to the suit.</p> <p>Replevin. — In an action upon a delivery bond it is immaterial, so far as the liability of the obligors is concerned, at what point of time the property came to the hands of the plaintiff, so that he acquired the possession by means of the suit prior to its final determination.</p>

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

<p>Practice, Criminal — Grand Jury. — A challenge to a grand juror or to the array must he made before the jurors are sworn, and can only be made for the causes stated in the statute. (R. C. 1167, § 2.)</p> <p>Practice, Criminal — Demurrer.—That a plea in abatement is not sworn to is no cause of demurrrer.</p>

This was an action of ejectment. Upon the trial, the plaintiff gave in evidence— 1. A patent to Andrew Jamison for the north-west quarter of south-east quarter of section 32, township 34, range 4 east, containing forty acres, dated March 15, 1837. 2. Plaintiff read a deed from J. H. Relfe and wife and Andrew Jamison to John L. Yan Doren, dated August 13,1836. 3. Copy of deed from J. L. Yan Doren to Luther Halsey, dated May 20, 1837. 4.

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

<p>Review. — Under the practice act of 1849, where the judgment is entered upon a finding of the court, the party excepting must make his application for a review of any question of law or fact as provided by sec. 3, art. 15, of said act.</p>

Louis Land Court. I. There is no breach of the bond; and if there were, the plaintiff lias received full accord and satisfaction by tbe charge of the two lots of Howard as advancements in fee. As to the breach of the bond : The bond provides for indemnity to Mrs. Sweringen, as heir of William and Martha Christy, under the conditions of the deed of 20th September, 1832, upon the happening of the contingencies mentioned therein.

Plaintiffs filed their petition in the Circuit Court of Washington county for relief against certain sheriff’s sales, under execution, of property mortgaged by the ancestor of their grantor, alleging that the judgments under which the sales were made were for the mortgage debt, and that subsequently the debtor had satisfied the mortgage debt, whereby he became entitled to be restored to the possession of the land into which defendants had entered under their sheriff’s deed.

The facts are sufficiently stated in the opinion. The following are the instructions given for plaintiffs: 1.

This is a suit brought before a justice of the peace by George Weinwick against Joseph and Nicholas Bender, on a note executed by them to John Shafer, and by him assigned to plaintiff. The justice rendering judgment against plaintiff, he appealed to the Circuit Court, where judgment was rendered for plaintiff for sixteen dollars and sixty-four cents, from which defendants appeal.

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

<p>Nonsuit. — It is only proper to take a nonsuit where, at the trial, the action of the court is such as to preclude the plaintiff from a recovery. In no other case will the Supreme Court interfere. (See infra Layton v. Itiney.)</p>

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

I. The jury alone had the right to pass upon the question of fact raised by the defendant. (See Flournoy v. Warden, 17 Mo. 435.) II. Although the deed may not have been recorded in the county where the laud was situated, the affidavit of the loss of the original being read, parol evidence was admissible of the contents; much more, was a copy of the only copy that could be produced.

I. The gist of the offence being described by the words of the statute, the indictment is therefore correct, as it follows the very language of the law. (See 1 R. C. 1855, p. 626-7; State v. Fulton et al., 19 Mo. 680 and following.) II.

A body of councilmen under a town charter cannot pass ordinances or by-laws contravening or conflicting with the general statutes and policy of the State; if they do, all such ordinances and by-laws are null and void. (See the following authorities: 1 Black Com., 396, 398 ; 2 Kent, 268, 296, side p.; 1 Kent, 525, 8 table; RedfieldR.

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

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

<p>Practice — Answer.—-The answer of the defendant must not only deny all information as to the allegation of the petition, but also all knowledge thereof, and the averment of one without the other is insufficient to controvert a material allegation.</p> <p>Practice — Infants.—As against infants defending by a guardian ad litem, all the allegations of the petition must be proved.</p> <p>Pleading — Infants.—Infants answering by guardian ad litem may deny generally the allegations of the petition.</p>

<p>Time. — In the computation of time, where the computation is to be made from an act done, the day when such act was done is included; but it will be excluded whenever such exclusion will avoid a forfeiture. (B. C. 1855, p. 1027, § 22, s. d. 4.)</p>

Charles Circuit Court. The Circuit Court erred in refusing to give the instruction asked for by the appellant. It is well settled that in partition sales the sheriff, like an auctioneer, is the agent of both parties; hence a memorandum made by the sheriff in a partition sale is binding on the purchaser, and takes the case out of the statute of frauds.

Charles Circuit Cou/rt. I. Two questions only were raised by the demurrer, viz: 1st, Was there a defect of parties plaintiff? and 2d, did the petition state facts sufficient to constitue a cause of action ? (R. C. 1855, p. 1231, § 6,10.) The objection of multifariousness and of misjoinder of defendants were therefore waived by defendants, and cannot now be set up to sustain the action of the Circuit Court.

<p> Appeal from Lincoln Circuit Cou/rt. </p>

I. The decree of the court is warranted by the facts proved. By the agreement, defendant was to enter eighty acres of land in Jefferson county for the plaintiff. The proof shows plaintiff furnished the money, and that defendant did enter the land, and for the plaintiff. It is no objection that defendant entered under the graduation act. If this be a fraud on the Government, defendant cannot take advantage of his own wrong.

The first instruction asked by the defendant should have been given, because the evidence introduced by the plaintiff did not show that the defendant spoke the words charged, and the evidence that he spoke, interrogatively, similar words of like import would not support plaintiff’s action, there was a fatal variance, and this was a proper question for the court to determine.

<p> Appeal from St. Charles Circuit Court. </p> <p>The statements of Murdock were not admissible testimony against defendant without it being first shown aliunde that Murdock and defendant were combining and confederating together in the perpetration of a fraud. There is no distinction in principle between such admissions and those of an alleged partner. The partnership must first be proven, and this is never allowed to be done by the statements of the alleged partner himself. (Field & Beardslee v. Liverman, 17 Mo. 218; Reed v. Pelletier, 28 Mo. 173-177; Whitney v. Ferris, 10 Johns. 66; Buckman v. Barnum, 15 Conn. 68; Commonwealth v. Eberle, 3 Sergt. & Rawle, 9,16,19; Patton v. Freeman, Coxe, 113,115 ; Reichart v. Castator, 5 Binney, 109,113.)</p> <p>II. Even if a proper foundation had been laid for the admission of Murdock’s statements, the one which implied a doubt as to the legal sufficiency of the deed of trust would have been inadmissible on any grounds whatsoever. (Crockett v. Morrison, 11 Mo. 3, 5; Polk’s lessee v. Eobertson, 1 Tenn. 463 ; Craig v. Baker, Hardin, 289 ; Leforce v. Eobinson, Littell’s Sel. Cases, 22; Boston Hat Co. v. Messenger, 2 Pick. 223; O’Neal v. Glover, 5 Gray, 161.)</p> <p>III. The court erred in excluding the evidence offered by defendant to show that the Fisher judgment was satisfied by Murdock from his own resources. The plaintiff was taking out of the multiplicity of minor circumstances to elicit unfavorable presumptions as to the bona fides of the transaction ; one of which was that from the large additional indebtedness assumed by Murdock at the execution of the deed of trust, the money to pay it was secretly furnished by the defendant.</p> <p>I. When two issues are tried before a jury and a general verdict rendered the court cannot reverse for error committed by the court in relation to one issue, when the verdict may be sustained upon the other issue to which appellant took no exception.</p> <p>Whether the verdict of the jury was rendered upon the ground that the defendant had made a fraudulent conveyance of his property, or that he had absconded or absented himself from his usual place of abode, does not appear and cannot possibly be ascertained; either would be sufficient to sustain a verdict, and evidence was given upon both.</p> <p>The defendant had the power to withdraw the issue of absconding, &c., from the jury if there was no evidence at all upon that subject, by requiring such an instruction from the court, by having the opinion of the jury separate upon each issue, or by requiring a special verdict, (%. e. a finding of the facts by the jury.) Having neglected to avail himself of this right, he cannot now be heard to question the finding of the jury.</p> <p>II. The admissions of Murdock, the beneficiary in the conveyance charged to be fraudulent, and proven to have been made about the time of the execution of the conveyance, to the effect that Coshow was not indebted to him, were entirely competent against the grantor, because,</p> <p>1. They were admissions made against the interest of the party making them.-</p> <p>2. The issue before the jury was as to the right of the party making the admission at the time, viz., whether Coshow was indebted to Murdock at the time he conveyed the property to him. (1 Greenl. Ev. 181.)</p> <p>3. The party whose admission was charged with being pariiceps fraudis, and evidence had already been adduced to show, viz:</p> <p>a. That Coshow had made a fraudulent deed by circumstances tending to show the following facts: That Coshow was in good circumstances; that he was not indebted to Murdock ; that he suspiciously left the county of his residence ; that Murdock, who was his nephew, met him outside of the county by appointment; that the object of leaving his residence was “ to serve the Howells as Bigelow did that is, to hinder and delay them in collecting their debts — the last admission of the defendant himself sufficient of itself to stamp the conduct of Coshow as fraudulent without a single other fact.</p> <p>b. That Murdock was the beneficiary in the conveyance.</p> <p>Under these circumstances the declaration of the beneficiary was entirely competent. (Crockett v. Morrison, 11 Mo. 3.)</p> <p>The defendant introduced evidence tending to prove that Murdock did pay the Fisher debt, and the source from which he obtained the money was entirely irrelevant; presumption being that it was his own money, (and not. Coshow’s,) the defendant could not suffer by that presumption.</p> <p>III. The giving of the sixth instruction cannot be relied on by Coshow as error.</p> <p>a. His conveyance recites the consideration to be a debt, evidenced by a note for $15,000, payable by him to Murdock. He cannot be allowed on the trial to substitute an entirely different consideration, and prove that the consideration was not a debt but a collateral security to protect Murdock in the event that Murdock would thereafter pay Coshow’s debts. The deed recites a debt; if, therefore, no debt existed and none created, the deed was without consideration, unless the court permit Coshow to contradict his own deed — to alter the terms of his own deed by parol evidence — to substitute one consideration for another.</p> <p>b. But if Murdock did promise to pay Coshow’s debts in consideration of the conveyance, the promise wtis verbal and within the statute of frauds, and was, therefore, no valid consideration.</p> <p>Murdock, in that case, would have the property without liability to Coshow’s creditors, for he made no promise to them; and without liability to Croshow, because that promise was by parol. That would make it fraudulent in law.</p> <p>c. And lastly, what consideration did Murdock receive from Coshow for his undertaking to pay Cosliow’s debts ? He obtained Coshow’s note for $15,000, wherewith to pay Co-show’s debts, but without assuming any liability which the creditors could enforce.</p> <p>Coshow’s property was gone, to which the creditors had a right to look. Murdock had assumed no liability to the creditors, and still held the property without himself paying any value for it.</p> <p>In this aspect the conveyance of Coshow to Murdock was voluntary, and made to the grantor’s own use, viz., to pay his debts.</p> <p>In any way in which the conveyance may be viewed, it is fraudulent in law and in fact. (Pottle v. McDowell, 31 Mo. 62.)</p>

Genevieve Circuit Court. I. The court below committed error in declaring the law to be, that the giving up the property, levied on as William Cleveland’s, by the constable, operated as a release to the defendant (respondent) to the amount of the value of the same. The property so levied on was, by an arrangement between appellant and said William Cleveland, exchanged for the interest of the wife of Cleveland in the estate of her father, Obadiah Scott.

Charles Circuit Court. This cause is brought here on a writ of error from a judgment of the Circuit Court of St. Charles county, on an action to recover damages against defendant for using the street in front of plaintiff’s lot in the town of St. Charles as a railroad track.

I. The verdict of the jury is wrong, and is the result of misdirection by the judge. The instructions given are inconsistent and ambiguous, and well calculated to mislead the jury. (27 Mo. 142.) They make the defendant liable, whether he committed or directed the trespass. This is not the law of the case. (2 Kent, s. p. 260 ; 2 Black. Com. s. p. 153; 1 Oh. PI. 68; Sartin v. Saling, 21 Mo. 387.) II. The court erred in refusing the instructions asked by defendant.

Charles Circuit Court. John Bte. Savoye owned a tract of land, being a part of the Prairie Basse or St. Charles common field and domain, having a front of two arpens, and a depth of fifty-three arpens, surveys Nos. 221 and 222. Savoye died, having made a will, dated April 30,1806, and bequeathed the tract of land above dscribed to Helen Perrott and Felicité Perrott. Helen Perrott intermarried with Paul Denoyer, and said Felicité Perrott intermarried with one Joseph Corley.

<p>Practice — Motions.—A motion to set aside judgment must be made part of the record by bill of exceptions, or the action of the court thereupon cannot be reviewed.</p> <p>Practice — Appeals.—An appeal taken at the September term, 1859, from a judgment rendered at the September term, 1856, is not taken in time.</p>

<p>Practice. — Judgment affirmed, transcript not showing the papers by which the suit was begun.</p>

<p>Practice — Exceptions.—Exceptions to the action of the inferior court, in giving or refusing instructions, must be taken at the time of trial, and not by motion for new trial.</p>

The appellant sued the respondents upon the following instrument of writing: “ We, the undersigned, agree to pay and deliver to William White, or order, seven hundred and seventy-seven dollars and sixteen and three-fourths cents in railroad stock of the North Missouri Railroad Company, the same to be delivered to him on or before the fifteenth day of July next, which amount is understood to be seven shares and.77-f- of a share.

<p>Animals. — The increase of domestic animals belongs to the owner of the female, except where the dam is hired for a limited period, when the increase belongs to the usufructuary.</p> <p>Husband and Wife. — Where husband and wife live together, the possession of the separate property of the wife by the husband will be deemed in law the possession of the wife, who has the title.</p>

The plaintiffs filed their petition as follows: Plaintiffs state that about the month of-, A. D. 1858, Squire Worrell employed plaintiffs to build a dwelling-house in the town of Waterloo, in Clark county, Mo., which is situated on lot No. 200, in block No. 23, in said town mentioned aforesaid. Plaintiffs further state, that they (plaintiffs) completed said house on or about the 19th day of December, 1858, according to contract with said Worrell.

Louis Court of Common Pleas. The contract of insurance is substantially a contract for indemnity, is construed most strongly against the insurer, and should, if it can fairly be done, be so construed as to give the insured the indemnity for which he contracted. (Citizens’ Ins.

<p> Appeal from St. Louis Circuit Court. </p> <p>The facts are stated in the opinion.</p>

Louis Court of Common Pleas. I. The court erred in admitting in evidence the statutes of New York. 1. Because said statute was not pleaded, nor was any right asserted or claimed in the petition under the laws of Now York. If the plaintiff claimed anything under the laws of New York, it was his duty to have pleaded that right and that law. (Leake v. Elliott, 4 Mo. 446; 7 Mo. 22.) Not having donó so, it was irrelevant and error to introduce the laws of New York. 2.

<p>Instructions — Evidence.—Instructions which there is no evidence to support are properly refused.</p>

Louis Cou/rt of Common Pleas. If the work was ordered to be done by the judges of the county either on the bench to plaintiff, or to the engineer and agents of the county, by whom plaintiff was ordered to do the work, and did do it, it was perfectly proper proof.

Louis Land Court. This was an action of ejectment, brought to the March term, 1857, of the Sfc.

Louis Land Court. The petition states that on 12th August, 1858, the plaintiff was lawfully possessed of a lot of land in Carondelet, being the south-west quarter of block 6 in Eiler’s survey, fronting 160 feet 5 inches on east side of Main street, by a depth of 160 feet 5 inches ; and that on that day the defendants forcibly and unlawfully entered into possession of the same, and unlawfully detain a part thereof, viz., 160 feet 5 inches on Main street, by a depth of 180…

Louis Land Court. This suit was filed on the 14th day of September, 1853, and is for the recovery of two-fifteenths of 120 arpens in the Grand Prairie common field. The land was granted to William Bizette in 1769, by his estate sold to Charles Bizette in 1775, and was confirmed by the act of 29th April, 1816, to William Bizette or his legal representatives, and duly surveyed as No. 1589.

Louis Circuit Court. This was an action of trespass, instituted for the purpose of determining the right of the plaintiff below, appellee here, to freedom. The cause has been repeatedly in this court on former occasions.

<p> Error to St. Louis Land Court. </p>

<p>Practice — New Trial. — To warrant the setting aside a verdict upon the ground of newly discovered evidence, it must not only appear that the evidence is new, material and applicable to the issue, but that it is not cumulative, and could not have been obtained upon the former trial with reasonable diligence. (See S. C. 28 Mo. 397.)</p>

Louis Land Court. I. There was no error in admitting the deposition of Antoine Smith. (R. C. 1845, p. 793 ; Sess. Acts, 1851, p. 250; Tayon et al. v. Hardman et al., 23 Mo. 539.) II. There was no error in the court allowing the amendments made as to names of plaintiffs. (2 R. C. 1855, § 1, p. 1258.) III. Relative to the action of the court upon instructions, the plaintiffs submit the following : The main issues made by the pleadings and evidence were, 1.

Louis Land Court. This was an ejectment for part of the same common field lot in controversy in the case of Page v. Scheibel, 11 Mo. 167. The plaintiff claimed title under Calvé. The defendant claimed title under a New Madrid location and patent to Genereux, and defended also under the statute of limitations. Against plaintiffs’ title they claimed that Calvó had abandoned the lot under the Spanish government.

Louis Court of Common Pleas. I. The only question raised by the record is this: Did the former recovery by plaintiff of his wages for July and August bar this action ? In other words, was the contract so entire a thing that plaintiff could bring separate suit for his wages at the end of each month, or would a recovery of one month’s pay bar any other suit ? II.

Louis Criminal Court. I. The St. Louis Criminal Court possesses no jurisdiction or authority to entertain any proceedings or to determine any question in relation to the rights of parties to a forfeited recoguizauce: 1. The St. Louis Criminal Court has such “ original and appellate jurisdiction” as is “vested in the several Circuity, Courts of this State in criminal cases,” and in none other. (R. C. 1855, p. 1589, § 1.) 2.

Louis Court of Common Pleas. •This case was before the court in 20 Mo. 155. After the remanding of the cause, the plaintiffs amended their petition, setting forth the respective titles of plaintiffs and defendants, but asked judgment simply for the possession of the premises, thus making the action an ejectment.

Louis Court of Common Pleas. Tlie facts are sufficiently stated in the opinion of the court.

Louis Land Court. Gray brought ejectment at the October term, 1858, of the St. Louis Land Court, against Heslep for an undivided fourth of a parcel of land in the city of St. Louis, eighty feet eight inches on Clay street and extending to the river, and bounded north by Montgomery street.

The first section of the sixth article of the charter of the city of Lagrange, approved February 24, 1853, (Acts of 1852-3, p. 225,) provides, that “upon the petition of a majority of the resident tax-payers on real estate within the corporate limits of the city, for that purpose, the city may levy and collect a special tax of not exceeding one per cent, per annum on such real estate, to be appropriated to the subscription and payment for the improvement of roads leading…

Louis Land Court. This was an action of ejectment, commenced on 28th January, 1854, to recover a lot of ground in Carondelet, having a front of 170 feet on Fourth street by 270 feet, more or less, in depth,, bounded on the north by lot of M. S. Oerré and John B. Sarpy, east by Fourth street, south by a county road, and west by Fifth street. The trial in the court below resulted in a verdict and judgment in favor of. plaintiffs for the land and 1336 damages.

<p>Practice — Supreme Court. — The Supreme Court will not try questions of fact, nor weigh the evidence by which such questions are solved.</p> <p>Trials — Burden of Proof'. — The burden of proving that the land sued for is within the boundaries of the confirmation rests upon the plaintiff.</p>

Louis Land Court. This action, in the nature of a bill in equity, was brought by the plaintiff to be relieved against an alleged forfeiture by the defendant of a lease for ninety-nine years of lots number 29 and part of 27, in survey number one, of the commons of Carondelet, on two grounds. I. On the ground of accident and mistake, mutual to both parties.

Louis Circuit Court. The legal title under which plaintiffs claimed was the act of Congress of April 29, 1816, confirming the claims recommended by Becorder Bates.

Petition for Mandamus. [After the decision of the case of the State, ex rel. Register v. Secretary of State, the General Assembly passed a resolution forbidding the auditor to issue his warrant, and application was made to the court at an adjourned term at St. Louis to obtain mandamus.] It will at once be seen that the constitutionality of the joint resolution of the General Assembly is the main question in the controversy.

<p>Mandamus. — Under the act of March 15,1861, (Sess. Acts 1860-61, p. 37, § 7,) the duty of the secretary of State was merely ministerial, to verify the correctness of the account, and a mandamus will lie to compel him to perform the duty. Bay, J., dissenting.</p>

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

I. Respondent’s 3d instruction asserts the proposition that the wife may, without regard to the authority from her husband, transfer his property, there being no evidence in the case that she had authority to act as his agent. II. Respondent’s 4th instruction is wrong, without a qualification to the effect that the road was not fenced at the place where the injuries complained of were done, and that the same was not done at a crossing of a highway. (Burton v. N. Mo.

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

I. A final judgment was irregularly and improperly rendered at the time it was done. A writ of inquiry of damages should have been returnable to a subsequent term of the court. (Prac. Act, 2 R. C., art. 12, § 10, p. 1280.) I. The inquiry and assessment of damages having been made at a term subsequent to the return term, and the defendant having been duly served, were properly made, and final judgment regularly taken at that term. (Doane et al. v. Holly et al. 26 Mo. 187.)

I. The defendant has the right to plead to the merits of the action at any time before the demand sued on matures. (Attachment, 1 R. C. art. 1, § 64, p. 257.) One of the notes does not fall due before 1st March, 1863. Judgment could not be taken before that time; and as all the notes are included in one action, the right to plead applies of course to all.

James N. Burnes, one of the appellees, commenced his suit by attachment in the Weston Court of Common Pleas, in November, 1859, against one George W. Simmons. The defendant Hood, as marshal of the court, attached, by virtue of the writ of attachment in the suit, two roan horses and and one two-liorse wagon, as the pi-operty of said Simmons.

I. The instructions given for plaintiff all erroneously assume that there was evidence tending to show that defendant, Taylor, signed the note sued on, or authorized it to be done. The third and sixth instructions are wrong, because they submit to the jury the question of ratification.

. The court evidently committed error in admitting in evidence the first deed offered by plaintiff, dated 30th January, 1858, but based upon a sale in 1848. That sale was made under the law of 1847, and it is contended that by virtue of the 30th section of said act, “ it shall, without further proof, be received as evidence, &o., and shall be prima facie evidence of title,” &c.; thus altering the law as it was understood to be at common law.

I. The court below erred in overruling the plaintiff’s motion to strike out. The rights of the parties hereto affected by the sale of the administrator under order of court is governed by § 3 8, p. 142, R. C. 1855, and not under § 10, p. 143. Now, what right does the statute say shall be sold of property encumbered by deed of intestate ? The statute says that all the right, title and interest of the decedent in the land shall be sold; and the administrator followed the law.

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

I. The defendants insist that the court below committed error in striking out the answers of defendants, and especially the amended answer of Stephenson & Maupin. On the part of Call & Clark it is insisted that as they have not the legal title, (it being in Stephenson & Maupin by virtue of mortgage,) they cannot perform what they would be required to do. A fundamental doctrine of specific performance is, that the defendant must be able to do what he is asked to perform.

I. The court below did right in permitting plaintiff to amend by changing the Christian name of the defendant. (R. C. 1855, § 3, p. 1253; Middleton & Riley y. Erame, 21 Mo. 412.) II. Even if the court below had erred in permitting the plaintiff to amend, the judgment could not be set aside by motion; it must be done by petition and affidavit. (R. C. 1855, p. 1281, § 13, 14, 15 & 16.) III. It was too late, after verdict and judgment, to take advantage of a misnomer.

<p>Witness — Party.—A defendant in the record is not disqualified as a witness for his co-defendant by that fact alone; he is competent to testify as to some matters. When- the witness is sworn, objections may be taken to so much of the testimony as may be inadmissible. (Kleinman v. Boernstein, 32 Mo. 811, affirmed.)</p>

I. The Circuit Court, in deciding that a premium on exchange could not be demanded and received upon the note sued on, assumed that the branch of the Merchants’ Bank of St. Loui's, at Brunswick, had its location, so far as the right to charge the one per cent, premium on the note was concerned, in St. Louis.

I. The act to prevent illegal banking and the circulation of depreciated paper currency does not apply to the plaintiff. The charter of the North Missouri Railroad Company was granted by act of the Legislature, approved March 3, 1851, (Sess.

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

<p>Pleading — Answer.—Where the petition alleges the making of a note and its endorsement to the plaintiff, it is not sufficient answer to deny the ownership of the note. The allegations of the petition must be denied. Corporations. — There is no such person in law as the Branch Bank of the State of Missouri.</p> <p>Practice. — A frivolous answer is properly stricken out.</p>

This action was brought by Cockrill, as guardian, on the 21st day of October, 1861, to recover the sum of four thousand dollars, with interest, which he alleged was due him from defendants by their promissory note, executed to him for said amount. The defendants, Dye and Wood, filed no answer.

I. The gist of the action is the breach of the contract. The action for a breach of contract is a personal action, not a real action. A real action is an action concerning real estate, or an action whereby the same may be affected, as in suit to recover the land or the possession. A suit to sell the land by enforcement of a lien or otherwise, a suit to abate a nuisance, and in all such like cases which affect the land and not the person, the venue is local.

In this case are interpicas by Bridgett Ann O’Driscoll, by Bartholomew O’Driscoll and Elizabeth O’Driscoll, his wife, in right of the wife, and Bartholomew O’Driscoll, claiming to be administrator of Eliza O’Driscoll, deceased.

This action was brought by the plaintiff as administrator of Flaherty to recover the amount of two promissory notes executed to the said Flaherty by defendant.

<p>Practice — Nonsuit.—Where the plaintiff takes a nonsuit voluntarily, without being forced thereto, the Supreme Court will not review the action of the court below.</p>

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

Louis Land Court. On the 25th day of March, A. D. 1854, plaintiff conveyed to the St. Louis Oil Manufacturing Company the lot of ground described in plaintiff’s petition. The consideration for this sale was seven thousand five hundred dollars.

<p>Practice — Evidence.—Exceptions to the admission of evidence must be taken at the trial when the evidence is offered, otherwise they will be considered as waived.</p> <p>Practice — Jeofails.—If a matter material to the plaintiff’s cause of action be not expressly averred in the petition, but be necessarily implied from what is expressly stated therein, the defect will be cured by verdict.</p>

<p>Practice — Affirmative of Issues. — Farrell v. Brennan, 32 Mo., 383, affirmed.</p>

<p>Sales. — If a vendee of goods unreasonably refuse to accept them, the vendor is under no obligation to allow them to perish on his hands, or to become reduced in value; but he may sell them at auction and hold the buyer responsible for the difference between the price they actually bring and the price agreed to be paid.</p>

Louis Lazo Commissioner’s Court. This was a suit instituted in the Law Commissioner’s Court on an account for painting and glazing. The defendant Jones in the petition is charged as the debt- or, and the defendant Saugrain as the owner, of the ground or property sought to be charged with the lien of demand.

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

Louis Law Commissioner’s Court. This was a cause wherein plaintiff sues the defendants Lang-ford By the evidence it appears that one Coleman, a sub-contractor, first got the goods and chattels from plaintiff, and the point made by appellant that he (Coleman) should have been joined as a co-defendant is not tenable. The statutory defendants being joined, is sufficient for the plaintiff to maintain his suit.

Louis Court of Common Pleas. I. The insertion in the blank of “ ten per cent, after maturity,” if material at all, was only materializo tanto — that is, for the difference between six and ten per cent., for the note would bear six per cent, after maturity. II.

Louis Laio Commissioner's Court. I. The court below erred in overruling the demurrer filed by the defendants, Coste, Barnet & Weber. The defendants Barnet & Weber were not, nor was either of them necessarily or properly parties to the action. They were not “ parties to the contract” on which the action was founded, nor “ interested in the matter in controversy and in the property charged with the lien,” or in either.

Louis Law Commissioner’s Court. I; The appeal was properly taken to the Law Commissioner’s Court instead of the Land Court, and the Law Commissioner’s Court erred in dismissing the appeal for want of jurisdiction, and this entirely independent of the act of February 18,1859. (Acts, 1859, p. 457, § 4.) II.

<p>Practice. — Judgment affirmed with damages, no exceptions having been taken to the action of the court below.</p>

Louis Circuit Court. This suit was brought to the September term, 1859, of the St. Louis Circuit Court, on a promissory note against Lorenzo P. Sanger, Jesse Arnot,… Held: such alteration did not vacate the bill. (Brutt v. Picard, Ey. & M. 37.) Where the change in the instrument is merely the perfecting of an imperfection it is not such an alteration as avoids the instrument. (Atwood v. Griffin, 2 Car. & P. 369-370 ; Chit, on Bills, t. p. 194.) A bill was dated 1st August.

Louis Court of Common Pleas. Defendant Rice, residing in St. Charles county, was sued jointly with the other defendants, residing in St. Louis county, upon a note made by Barclay and endorsed by Robbins, Hungerford, and by Rice, successively. Robbins and Barclay were served with process in St. Louis county; Rice was served in St. Charles county; Hungerford was not found. Robbins and Barclay answered, and the case tried and judgment rendered.

Louis Court of Common Pleas. It is not disputed that the law under which the tax claimed of plaintiffs and paid by them, as stated in the petition, was unconstitutional and void, so far as related to a part of the goods, &c., in respect of which such tax was imposed. This being so, the demand made by defendant was without legal authority or justification, and the money was wrongfully received, and that with notice it would be sued for as illegally exacted.

Louis Court of Common Pleas. No principle of law is better established than that an agent, acting within the scope of his authority, cannot be held personally liable. That where an agent, by his contract, makes the principal liable, he is not held individually; especially where a corporation is principal, which can act only by agents.

Louis Circuit Court. To hold the drawer, demand must be made, or due diligence exercised to make a demand. As to what is due diligence is a question of law; but there is no universal rule. It depends altogether upon the circumstances of each case. (1 Par. Bills, 443 ; Plahto’s Adm’r v. Patchin, 26 Mo. 389.) The presentment of this bill of exchange was sufficient. The demand by the notary’s clerk must be sufficient here if it was in accordance with the uniform usage there.

<p> Appeal from St. Louis Circuit Court. </p> <p>The respondent, in October, 1857, instituted an action against the appellants, Eddy, Jameson & Co., in New York, upon an indebtedness for eight hundred dollars and five hundred dollars. The appellants answered, and during the pending of the suit an agreement was made whereby thirteen hundred dollars’ worth of scrip or stock of the Gardener Gold Mining Company was pledged by the appellant for the security of the debt upon which the action was brought, and out of which agreement the counterclaim set up by appellants in the Circuit Court arose.</p> <p>Under this contract Eddy, on behalf of appellants, deposited $1300 worth of stock or scrip of the Gardener Gold Mining Company with Coe & Wallis, of New York, and his individual note for $350, and it was agreed that if Eddy failed to pay $500 on the 20th June next following, and $855 on 20th August, the amount of scrip so delivered as well as last named note should be turned over to respondent as pledges and collateral security, with power of sale, and proceeds to be applied to their credit; and that respondent might enter up judgment forthwith for $1300.</p> <p>Further, thát until time of payment Eddy should have the privilege to redeem the scrip at rate of one dollar per share for new and ten cents per share for old issue.</p> <p>The contract contains the following further provision : “It is further mutually understood by the parties hereto that the said stock which shall be returned as aforesaid to said Berlin, if any, upon the failure by the said Eddy to comply with his said payments, shall be deemed and considered as the property of the said Eddy, pledged to the said Berlin as collateral security for the balance of his claim against said Eddy, with leave to the said Berlin to sell the same at any time at public sale or at the stock exchange, the said Eddy to be credited witn the net amount of said sale on account.”</p> <p>The stock was deposited by Eddy with Coe & Wallis; upon the failure of appellants to pay respondent, Coo & Wallis transferred said stock to respondent; respondent had a large amount of same kind of stock already in his possession, and he mixed up his own with the appellants’ stock so that he could not tell one from the other; after he obtained this scrip of appellants he made sales, but whether of his own or this he cannot tell. On the 26th of August, 1858, he sold $1300 worth of stock at thirty-three and one quarter cents per share, and this is the credit which the court gave in favor of appellants.</p> <p>It further appeaved that this stock of appellants ranged, in the New York stock market, from thirty-seven and a half and fifty cents to one dollar per share before and after the sale of 26th August, in same place and at auction sales, and brought the above prices. The cause was tried by the court, which held the sale of 26th August as binding on appellants, and gave verdict and judgment for amount of New York judgment, less proceeds of sale of 26th August. The following declaration of law, asked by appellants, was refused:</p> <p>“ If the court believe from the evidence that on or about 20th August, 1858, Coe & Wallis delivered to plaintiff the sci'ip or certificates of shares of stock mentioned in said contract and in the deposition of plaintiff; that plaintiff hold and was the owner of largo quantities of other scrip or certificates of the same stock, and placed and mixed the certificates delivered to him by Coe & Wallis with his'own in such manner that they could not be distinguished or separated, and that plaintiff, on the 26th August, 1858, sold at auction 1300 shares of said stock taken indiscriminately from all the stock held by him, then the defendants are not limited in the credit to which they are entitled to the price brought by said 1300 shares at said auction sale, but are entitled by way of credit in this action to the highest price proved to have been the value of said stock between the date of the delivery thereof to plaintiff and the time of the commencement of this suit.</p> <p>I. I£ the intermingling of the stock occurred by the defendants’ consent, they would be entitled to pro rata proceeds as part owners or tenants in common, to be credited on their debt.</p> <p>II. The confusion of goods having occurred by act of plaintiff wrongfully and without defendant’s consent, whereby it has become impossible to ascertain the proceeds of sales of trust stock, (except for the plaintiff who neglected to furnish the proof,) they'are entitled to be credited the highest auction price which the stock would have brought up to the time of the institution of this suit. (Seymour v. Wickoff, 10 N. Y. 6 Seld. 223; Lewis v. Whitmore, 5 N. H. 365 ; 3 Stephens, N. P. 2702; 6 Hill, 461; Willard v. Rice, 11 Met. 493; Brown v. Sax, 7 Cow. 95.)</p> <p>The measure of damage, where a party refuses or has made it impossible by his own act to ascertain real value, is the highest value which the article will bear. (1 Strange, 505 ; Lafton v. White, 15 Yes. 433 ; Ringgold v. Ringgold, 1 Har. & J. 11.)</p> <p>' I. For the conversion of the stock by the plaintiff to his own use, the proper measure of damages is the value of the stock at the time of the conversion ; therefore the instruction asked for by the defendants was properly refused. (21 Mo. 290-294.)</p> <p>' II. There was no conversion of the stocks by the plaintiff. The mixing them with other stocks of precisely similar value and description, all being transferable by delivery merely as bank bills, does not constitute a conversion, and plaintiff liad a right under the agreement to have the proper number sold for account of defendants, and the sale having been fairly made, the defendants are only entitled to credit for the amount of the net proceeds of such sale.</p> <p>III. The answer of the defendants does not charge that the plaintiff converted the stock to his own use, but on the contrary expressly charges that plaintiff caused said stock to be sold according to the contract, and received the proceeds of such sale and converted these proceeds to his own use, and the amount of these proceeds is the issue tendered by the answer.</p>

Louis Land Court. This was an action in the nature of ejectment, for a lot of thirty feet front, on the east side of Nineteenth street, by one hundred and twenty-seven feet deep, in the city of St.… Held: Marsh v. Brooks, 8 How. 223. YI. Admitting, for argument’s sake, that both parties have prima facie titles, the defendant has older survey and possession, and the plaintiff shows no right to the possession as against defendant’s prima facie title.

I. The 43d section of the 6th article of “An act to incorporate the City of Palmyra,” approved November 23, 1855, (Acts Adj’d Session, 1855, p. 186,) provides that “all ordinances passed by the city council shall, within one month after they shall have been passed, be published in some newspaper published in the city,' and shall not be in force till so published.” The defendants denied that any valid ordinance-or law of the city authorized the subscription.

Louis Court of Common Pleas. Suit on note made by Skinner, endorsed by Cole, 'for one thousand twenty-six dollars and thirty cents; protested and notice given to endorser.

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

Louis Criminal Court. 1. Has a manufacturer the right to deal in the selling of goods of his own manufacture, at a store, stand or place occupied for that purpose, without having a license ? 2. Has a manufacturer the right to deal in the selling of goods of his own manufacture, at a store, stand or place occupied for that purpose, without having a license, said store, stand or place being also the place where said goods are manufactured ?

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

Louis Court of Common Pleas. Appeal from St. Louis Circuit Court. It is not contended that the records of the justice’s court were “ records or judicial proceedings,” under the act of Congress of 26th May, 1790, though some courts have held this doctrine, (3 Mon. Ky. 62; 5 Day, 363,) but that they were competent evidence in connection with the testimony of the witness Saxton as sworn office copies.

Mror to St. Louis Court of Common Pleas. It is proven and admitted on all sides in this case that a contract was made for the sale and delivery of a certain designated lot of flour, supposed at the time to contain 1900 barrels ; but after the whole lot was sold, be it more or less, it was ascertained that there were 1936 barrels.

Louis Land Court. I. The court erred in holding that the words of the will and codicil did not create a trust in favor of xlnn Howdeshell and appoint George Hall the trustee. It is declared by every writer on devises, wills, or trusts, that no particular form of words is necessary to create a trust by will. (Hill on Trustees, p. 65 ; Prest, on Est. 191; Pow. on Dev. 13 ; 1 Jarm. on Wills, 333-4, and cases cited; 2 Black.

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

Louis Criminal Court. I. The defendant having been put upon his trial under a charge of murder, and nine jurors having been selected and accepted both on the part of the State and himself, it was error on the part of the court to permit the men so passed upon and accepted to separate unconditionally in order to await the filling up of the panel on the following day. (1 Gra. & Wat. on New Trials, 62, and notes; Commonwealth v. McCaul, 1 Ya.

<p> Appeal from St. Louis Land Court. </p> <p>This was an action of ejectment. Thomas M. Knox was the common source of title, and it was admitted that the plaintiffs were entitled to the possession of the locus in quo, unless said Knox had conveyed the premises to the grantor of the defendant, by the following description, to wit:</p> <p>“ Commencing at a point in said Knox’s northern boundary line, being distant along said line from the western edge of the Carondelet avenue, as laid out by the city authorities, twelve chains and forty links (12 chains, 40 links); thence with said Knox’s northern boundary line north 70J degrees, west seven chains one link (7 ch. 1 link), to Knox’s northwestern boundary; thence south 33 deg. 30 min. west to Knox’s southwestern corner; thence south 70£ deg., east eight chains seventy-nine links, along Knox’s southern boundary line to a stake, which is distant from the western edge of Carondelet avenue ten chains sixty-two links; thence at right angles to the last mentioned line north 19 deg. 45 min., east three chains twenty-one links, to the place of beginning; the property hereby conveyed containing, within said lines, 2rg-°(r acres, and is situate directly opposite the St. Louis Arsenal, and being the same property on which is situate a quarry. To have,” Ac., &c.</p> <p>The premises were part of the Petit claim as laid out on the map of the city commons, a claim which had never been confirmed or located by United States survey.</p> <p>Knox, the common source of title, for reasons of his own, always claimed that his north line was 87 or 88 feet south of the north line of the Petit tract on the Commons map, and extended southwardly 218 ft. 6 in., and he accordingly thus took possession and made his fences.</p> <p>Eor the purpose of describing the premises conveyed by the deed of June 7,1843, as set out above, a survey upon the ground was made by the surveyor Cozens, and the lines were run and the courses and distances actually measured upon the ground to correspond with the enclosures and fences of Knox. The stake in the southeastern corner of the survey was found by Cozens in making the survey for this suit, and is 10 chains 62 links from Carondelet avenue, and this point with the courses and distances, it was claimed, would control and fix the location of the whole premises.</p> <p>Plaintiffs asked the following instructions, which were refused :</p> <p>“ The lot sold by Knox to Deaver, by his deed of June 23, 1843, had on it a natural object, to wit, a quarry, and the land described in said deed must be so located as to include said quarry, and the lines must also follow the courses and distances in said deed. If the position of the stake in said Knox’s southern boundary, which was ten chains sixty-two links from the Carondelet road, can be identified upon the ground, it will fix all the courses and distances called for in said deed.</p> <p>“ If the description in said deed of June 23,1843, was from a survey actually made upon the premises for the purpose of making said description in said deed, then the courses and distances in said deed, and the lines of said land, must follow the lines of actual survey, although the line was not surveyed on Knox’s true northern boundary; and the call for Knox’s northern boundary line is not such a call for a permanent object as will control the other calls, and for courses and distances.”</p> <p>The defendant asked and the court gave the following instruction :</p> <p>“ The plaintiffs, claiming under Knox by a deed dated October, 1845, cannot recover against the defendant claiming under Deaver, who purchased from Knox by deed of June 7, 1843, as to any land which is twelve chains and forty links west of Carondelet avenue and south of the northern line or boundary of the land held by Knox before the making of the deed of June 7, 1843.”</p> <p>I. The point presented by the instructions asked by the plaintiff is the following:</p> <p>The actually locating and surveying of a tract of land upon the earth’s surface is the very highest evidence of the true location of the tract of land so surveyed, and the actual running out the courses and distances upon the earth’s surface will control other calls of a deed describing the tract by the courses and distances of the survey. When actual courses arc established they must control. (Campbell v. Clark, 8 Mo. 553, 555, 558 ; S. C. 6 Mo. 219.) Lands sold by motes and bounds are supposed to have been surveyed, and the deed is given to convey what has been surveyed. (Alshire v. Hulse, 5 Ham., Ohio, 534, and S. C. 1 Wright, 171.)</p> <p>In a conveyance of land by marked objects (corners put down), the rule is, “ that the monuments placed at the angles, when certainly ascertained, fix the position of the land.” (Evans v. Green, 21 Mo. 170,196.) See, as to a false assumption of the true boundary, p. 201, “ it is now, it seems, ascertained,” &c. Particular attention is called to that case as involving a legal question similar to that in this case. (Mclver’s Lessee v. Walker, 9 Cranch, 178; Thornburg v. Churchill, 4 Mon. 32 ; 1 Green. Ev. 369, n. 1.)</p> <p>The survey and description of the deed did not actually commence in what was Knox’s true north boundary; but it did commence, and did follow, what Knox asserted to be, and claimed to be, his north boundary. He was mistaken in matter of fact; but he had a survey made so that there should be no mistake as to what he intended. (1 Green. Ev. 369, n. 1.) “Secondly: to lines actually run and corners actually marked, at the time of the grant.” Jackson ex dem. Livingston v. Freer, 17 John. 29, was also a case of actual survey.</p> <p>The instructions asked by plaintiff correctly set forth the law.</p>

Louis Circuit Court. I. The suit was commenced within six months after the true date of the last item in the account, by filing the complaint on the 14th day of June, 1859, accompanied by affidavit and bond. (1 R. O. 1855, ch. 20, § 8 & 42.) II. In Williamson v. Steamer Missouri, 17 Mo. 374, the boat was shown to be without the jurisdiction of the court at the time of the filing of the complaint, and until after the expiration of the lien and the return of the first writ.

Louis Cimdt Court. I. The tender which was made by the Bank of Missouri, in the silver coin of the United States, was good. ■ Gold and silver coin, and gold or silver coin, are the constitutional,… Held: insufficient. In the case of People v. Dubois, 18 111. 333, the party presented two five dollar bills to the bank for redemption, which the officer of the bank offered to redeem in quarter dollars issued under act of February, 1853.

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

Louis Land Court. This was an action for ejectment. The defendants were in possession under a lease from Rosalie Chataigne or Robidoux, dated January 1, 1850, for fifteen years from that date. Rosalie Robidoux died in 1858. The plaintiffs claim possession as tenants in remainder in fee, by virtue of what they claim to have been a deed of settlement, executed November 16, 1820, by J. B. Robidoux and Rosalie his wife.

I. There is no proof that the plaintiffs authorized, assented to, or even knew of the receipt and payment by the treasurer, Hatch, of notes of less denomination than five dollars. The decisions of law asked by the plaintiffs should have been given by the court below. II. The law plead in bar does not apply to this case. It applies to banking corporations and money dealers only.

Louis Court of Common Pleas. Sanderson sued Field, Goodale, Smith, Barton, and Truesdail, the plaintiff and appellant here, and Myerson, upon a note made by Goodale to Field and Barton, endorsed to Smith and Barton, who endorsed to Truesdail, who endorsed to Myerson, who endorsed to Sanderson.

Louis Circuit Court. I. The main proposition in this case is, whether a free person of color can own a slave. The appellant insists that free persons, of color are guaranteed the right to reside in this State. (R. O. 1095, § 8.) That license is the only prerequisite. II. The constitution of Missouri guarantees to every settler in this State the right to bring slaves into the State from any other slave State as long as slavery exists here.

Louis Circuit Court. I. The law is unmistakably clear, that any change made in a note.by a party not interested in the note itself, or liable on it, or entitled to proceeds, does not vitiate the instrument unless done at the instance of some one within the above exception. The distinction ignored by the court below, clearly taken in all the books, is that the same change in a written instrument is either an alteration or a spoliation according to the person who makes it.

<p>Practice — Instructions.—Instructions given must be applicable to the case made by the evidence.</p>

<p>Practice — Exceptions.—The record must show the reasons of objections to evidence, and also the evidence upon which instructions are predicated.</p>

Louis Land Court. 1. The court erred in admitting the deposition of Voorliis. The 28th section of the act concerning depositions (R. C. 1855, p. 658) specifies the cases in which depositions maybe read and used in evidence, and in no other cases may they be so read and used.

Louis Land Court. This was a suit in ejectment for a lot of ground in St. Louis. Title shown as follows : “ Concession by Cruzat to John B. Provenché for one by three arpens of land at the mouth of the Taillon creek, now Mill creek, in 1784.

Louis Law Commissioner's Court. I. Neither the justice before whom the suit was commenced nor the Law Commissioner’s Court had jurisdiction of the subject matter of the action. The suit was founded on a penal bond, the penalty being one hundred and sixty-one dollars and twenty cents. (1 R. C. 1855, p. 266, § 14.) II. Because, at the time this suit was brought, plaintiff had no cause of action against the defendants. The bond was made to P. W. Manning as obligee.

Louis Law Commissioner’s Cowrt. This was an action instituted before a justice of the peace, on the following account: “ 1855. — Andrew Smith to Bernard Smith, Dr. To amount of cash due Bernard Smith by defendant as plaintiff’s portion of cash, by defendant received for work done on North Missouri Railroad, section 24, in St. Charles county, ninety dollars; interest on same since 1st January, 1856, 3 years and 9 months.” There was a trial before the justice, which resulted…

Louis Circuit Court. This was an action brought by the Mechanics’ Bank, based on a lease alleged to have been executed on the 15th day of November, 1858, whereby said bank leased to Charles De Wald, Philip Klein, and Constant Schnerr, certain premises in the city of St. Louis, being the basement story of the building situated on the southwest corner of Third and Chesnut streets ; that among other things the said DeWald, Klein and Schnerr covenanted to pay plaintiff for said…

Louis Circuit Court. I. The note mentioned in the pleadings promises to pay the sum of fifteen hundred dollars, one year after date, with interest at the rate of ten per cent, per annum. The law of this State is that interest is collectable from the maturity of the principal sum and not from date. (Ayres v. Hayes, 13 Mo. 252, 261.) The suit brought on the note and for interest could therefore include only the principal sum, with interest on that from maturity.

Louis Law Commissioner’s Court. Defendant proved that he paid Umberson, the contractor, in full before the service of the notice. The notice was served on the 1st day of September, 1859 ; the papers filed in the office of the clerk of the St. Louis Land Court were filed September 10th, 1859.

Louis Lato Commissioner’s Court. Action on account for seventy-five dollars for services in bread shop of defendant three weeks. Suit before a justice, and judgment for twenty-four dollars and fifty cents. Appeal by plaintiff to the Law Commissioner’s Court.' Plaintiff called John Wearen, who testified that he knew the parties; that “ plaintiff was salesman for Garneau for three weeks.

Louis Circuit Court. This suit was instituted by the holder of a promissory note • against the appellant, (endorser,) the note being for four hundred and forty-nine dollars and thirty-three cents, drawn by the Farmers’ and Mechanics’ Insurance Company, dated Pittsburgh, March 12th, Í858, and payable four months after date, to the order of Charles Boswell, and by him endorsed.

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

Louis Circuit Court. The answer of Maddock alleged that the note “ was given for a precedent debt due from the said defendant Elliott to the payees in said note named, and no consideration was paid to, or received by, this defendant for the execution of said note, and the same was and is void as to this defendant.” The answer further alleged that the defendant “ executed said note described in said petition upon the suggestion and at the request of Mr. Moore, one of the…

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

I. The law commissioner has no jurisdiction because the amount claimed in the petition exceeds one hundred dollars. The action is in the nature of a common law action of trespass or trover. The wrongful taking and the conversion to defendants’ use are the gist of the action. Without these allegations there is no cause of action stated: with them as stated, tlfe action is to recover damages for a tort, and the recovery must be in damages.

Louis Court of Common Pleas. This is an action on the following agreements : First agreement. — “We hereby agree and bind ourselves not to levy on or sell, or cause to be levied on or sold, any of James M. Clark’s property, under a certain confession of judgment by him given us this 28th day of May, 1858, till the expiration of four months from date above, said confession of judgment having been given us to better secure the payment of his account, viz., three hundred and…

<p>Aecord — Satisfaction—Payment.-—-The giving of a promissory note is not a payment, unless it be so agreed between the parties.</p>

Louis Circuit Court. I. The act to establish the Land Court of St. Louis county was passed December 12, 1855, and by the second section of that act to the Land Court was given “ exclusive original jurisdiction in actions brought in St. Louis county for recovering the possession of any real estate therein ; for enforcing any right, claim, demand or lien to or upon the same,” &c. By the 15th section of the same act “ liens of mechanics, builders, &c., &c., in said county are…

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

Louis Land Court. I. The justice before whom this suit was commenced had no jurisdiction of the case, as it was neither alleged or proved that the property sued for was within his ward; and by 33d sec. of 2 R. C. 1855, p. 1016, his jurisdiction in landlord and tenant proceedings is confined to cases in his ward. The justice had no jurisdiction except that given in 26 Mo. 601, and consent even cannot give it.

<p> Appeal from, St. Louis Criminal Court. </p>

Louis Circuit Court. I. The proof is abundant that Redding was a creditor and one who had come forward very generously to aid Richards, without any expectation of profit. Such a creditor it was not only right for Richards to secure, but it was his duty to do so. Such preferences are sustained by ample authority.

Louis Land Court. This was an action of ejectment brought by the appellant against Baker and others, tenants of Aloys Soderer, (who on motion was made co-defendant,) for a lot of ground on Franklin avenue, in the city of St. Louis.

<p> Appeal from St. Louis Circuit Court. </p> <p>This suit was instituted in the St. Louis Circuit Court by plaintiffs against the defendants and appellants, as partners doing business in the city of St. Louis under style of C. H. Fredericks & Co. There was no affidavit that the defendant Morris was a nonresident. The summons issued July 26, 1859, against both defendants, directed to the sheriff of St. Louis county, and was served on defendant Fredericks July 28, 1859, but as to defendant Morris there was no return by the sheriff. There was filed an affidavit of one Edwin P. Gibson, stating that on the 5th day of August, 1859, he served notice of this suit, with a copy of the petition, on Hiram Morris, the defendant. The affidavit did not state, nor did it from the record elsewhere appear, where defendant Morris was at the time of this service. The defendant Morris did not appear to this suit. After judgment against him by default, he appeared only for the purpose of his motion in arrest of judgment, setting forth that he had no notice of the institution of this suit, and denying’ also that his person was within the jurisdiction of that court. This motion was overruled and excepted to by said Morris, who thereupon brought his appeal to this court.</p> <p>I. The defendant Hiram Morris was never notified of the institution of this suit, as required by law.</p> <p>II. It does not appear that defendant Morris, at the time of the commencement of this suit, was residing without this State, or at any place within the United States or their Territories.</p> <p>III. The Legislature of this State has no power to extend the jurisdiction of its courts beyond the territory of the State ; therefore, § 18 of art. 5, chap. 128., 2 Mo. R. C. 1855, is void.</p> <p>I. As to the defendant Morris, the motion in arrest of judgment was rightfully overruled. The service on the defendant Morris was good and sufficient. (R. C. 1855, § 18, art. 5, Practice in Civil Cases.)</p> <p>II. In the case of defendant Fredericks, the motion to set aside judgment and for new trial was rightfully overruled. The proof of partnership offered by plaintiff, as admitted in evidence by the court, was in compliance with the statute. (R. O. 1855, chap. 62, § 49.) The sufficiency of the evidence was left to the court sitting as a jury. The appeal in this case is clearly frivolous, and the respondents ask the court for ten per cent, damages, according to law in such cases.</p>

Louis Circuit Court. I. The decree was illegal. There is no power expressed in onr statute of divorce and alimony by which the Circuit Court is authorized to allow alimony pendente lite, when the wife is defendant. (R. C. 1855, p. 664, § 8.) Sec. 11 cannot affect the question, as it refers to alimony in cases of abandonment where there is no action pending.