Volume 4 — Missouri Reports

<p>1. Declaration in Trespass v£ it armis.</p> <p>% Plea of Justification.</p> <p>3. In such plea the Tirespas's must be admitted.</p> <p>4. But the Trespass is sufficiently admitted; by stating that defendant took the horses in the declaration mentioned.</p> <p>8. A defendant justifying a taking as Constable by virtue of an Execution, is not bound to set out the judgment.</p> <p>6. He was bound to obey the writ — and had no right to compare it with the judgment.</p> <p>7. In such plea it is not necessary to shew a sale of the property ta- . ken.</p> <p>0. The allegation in the declaration that defendant detained, converted, &c. the property is matter of aggravation, and need not be answered in the plea:</p> <p>JDecIarat¡on in trespass vi it ar mis.</p> <p>Bleu of justification.</p> <p>[n such plea the frospucs must be admitted.</p> <p>But the trespass its sufficiently admitted, by stating*, that dofcnda.it look the horses in the declaration mentioned.</p> <p>& defendant jus-titying a taking as j1' oxeou" ¡s not bound to set out the j udg-</p> <p>oí° y athe°«>ra~~ and had no right to compare it with • . ^necessary4 to a sale of the property taken,</p> <p>Tlie aneo.at;on in the deciaraüon tliatdj-ioiula-'tdc-fco^th’^proporty is matter of ag-an" plea.</p>

<p>1. In chancpry. Thpcomp’t. and Y. executed their promissory pote to defd. — Y. made a payment thereon. Defd. sued Cqmp’t. ajqne, ip Kenty. and got judg’t. at law, without giving preditforthe full amount paid by Y.-^-Sued out execution, collected part; and took property in execution, which \vas claimed by one B. — who got possession thereof, having given a Replevin Bond, by which he was bound to pay the value of the property should the right be decided against him. Right of property not determined. Comp’t. removed to this Stated without the judg’t. being paid or satisfied, and is ^ued here thereon — and judg’t. obtained, without any credits.</p> <p>2. The court decreed to defd. his judg’t. obtained at law in this State^- and damages on the part enjoined (deducting the credits) to be paid over to deld. on his assigning to comp’t. the. interest he acquired by the replevin bond — comp’t. paying costs of suit thereon. *</p> <p>}n Chancery. The cpmp’t. and Y.'¿xr fendant. Y. made a payment there-sued compía-lone, in Kenty. and got judg’t. at vtngoredit&r full8 amount paid py Y. — Sued property in tion, which was whogot pion thereof, ying given a re-üvhich hewasy bound to pay the yalue of the prop-nghtS be him.</p> <p>Right of property Comp’tí6 removed to this State, out the judg’t.' isfied, and is sued hére thereon — and judgment obtain-..credits.°Ut a”y</p> <p>Tho court decreetl defendant his judgment at taw ‘n tllis State 'jP'1 part enjoined (<ie-ducting the cred-f°g j 0!er j,is assigning complainant the int«resthe acqui- ¡,, bond — com-plainantipaj ing rests of suit there-</p>

<p>1. To shew hot ice of an appeal from the judgment of a J. P. to the circuit Eourtj it was proved, that the-appellee, about nine days before the return term of the circuit court, said that “R. had served-on him a written notice of Brown’s appeal.’’ — It was also proved that R. had, about three weeks before the said term of the circuit court, absconded on account of debt (as was supposed) and had not since been heard of.</p> <p>2. Held sufficient evidence that legal notice in writing was giren ten days before court.</p> <p>To shew notice of Md31mentfofriatlje ih toThe circuit bburt, it fee’ thabout ^ine' days before tlu return term of the liadserv1 •fedohhimaa lén notice of brown’s; appeal.”</p> <p>three weeks be-of^the6 circuit™ bourt)6 absconded bn accountof debt (as was supposed) and had not since been heard of.</p> <p>suffic;entev-idence that legal writing frfore court,</p>

<p>ON ERROR from the Howard circuit court.</p>

<p>1. B. sold to S. a negro, and executed a Bill of sale in substance as follows. “.For and in consideration of &c., paid &c. — I have sold to B. S. a negro &c. Sound in body and mind and slave for life. I bind myself to warrant the right and title of said negro from all and every &c.”</p> <p>2. Held to be a warranty as to title only and a mere representation as to soundness.</p> <p>3. ff a slave warranted sound, be only slightly diseased, and cometo its death by negligence or cruel treatment of the purchaser, the seller is not liable for the full value or price — but only to the extent of injury occasioned by the disease.</p> <p>4. McGirk C. J. dissenting. — The words in the bill of sale amount to a warranty of soundness.</p> <p>B. sold s. a negro, find executed a stance as follows.</p> <p>“For and in consideration of &e. paid &c. I sold to B. s. a negro &e. sound ‘in body and mind</p> <p>to warrant the right and title of every person &o!”</p> <p>as to title and a mere as Held to be a war. ra?ty representation to soundness,</p> <p>rr ted sound be only slightly diseased, death.0™? riegli-gcnce or cruel treatment of the purchaser, the seller is not liable for the full value orprice — but only to. the extent of by the disease,</p> <p>McGirk j. c. dissenting. — The tf°saiVamountbto a warranty of soundness,</p>

<p>1. By out statute no proof of the Execution of an instrument declared upon is necessary, unless denied by plea supported by affidavit.</p> <p>2. And if illegal evidence thereof be given (where none was required) it will not make error.</p> <p>3. The statute applies to Executors and_ Administrators^ sued on notea of their testators or intestates.</p> <p>4. S. sold slaves to F. After the death of S. the slaves were taken by P. — thereupon the creditors of S. sued F. as Executor de son tort. P. proved that after the sale and whilst the slaves were in possession of S. he declared they were not his, but belonged to F. Held, that the plaintiff might prove that S. also said at another time vi hilsl the slaves were in his possession, that they were his own slaves.</p> <p>5. The brother of S. and a distributee, not a competent witness for plaintiff.</p> <p>6. A bill.of exceptions details certain evidence, & then says, “whereupon the court decided” &c. Held, that this does not shew that all the evidence given in regard to the matter was preserved in the bill of exceptions.</p> <p>7. Plaintiff may give in evidence records of judgments against S. to shew his indebtedness at the time of the sale of the slav"s, although not between parties or privies.</p> <p>8. A person may be charged as Executor de son tort, although there be' a rightful Executor or Administrator.</p> <p>9. S. lived in Tennessee and there died possessed of personal property in that State. After the death of S. the defendants took the property and brought it to Missouri. Held, that defendants may bo charged as Executors de son tort in this State.</p> <p>10. And defendants are liable according to the laws of Missouri — and the laws of Tennessee heed not be proved.</p> <p>11. Verdict, we the jury find the issues for the plaintiff not sufficient under the pleadings in the case. What it should find.</p> <p>Pleadings.</p> <p>plaintiff.0 °l</p> <p>Evidence fendants. for de-</p> <p>E,vi.defSe for. P aum rebutting.</p> <p>Points made by plaintiff in error!</p> <p>By our staíute no ?ion of an Tnítrument declared up-unless plea supprated by affidavit. ,</p> <p>And if illegal evidence thereof be given(where none was required) it will not make er-</p> <p>The statute applies to executors and administrators sued on notes of their testators or intestates.</p> <p>S. sold slaves to F.-after the death oí ^.-thereupon creditors of S. ed F. as executor proved1 that’after the sale & whilst the slaves were in declared*11 they 6 were not his, but belonged to F. might 'prove ^that S. also said at another time whilst his SpossesTioif,in that they were his slaves.</p> <p>f „ and a distributee’ not a competent witness forplff.</p> <p>. a bill of excep-li8ns details ccr-theih"nesVaysei“w7tere-éomt decided” &c. Held, ^ew tha/alf the evidence given in regard to the mat-thobFiTof1'ex-ccptions. •</p> <p>Plff. may <nVe evidence “records of judgm’ts at the time of the sale of the slaves, tweenSparUea bor privies.</p> <p>A person may be utorgde sonToTq although there be a rightful tor.or a ministra-</p> <p>s. lived in Tenn. &ossessedeofdler’son sonalSproperty In that state. After deferfdants^ Stook the property and brought it to Mo. dunte charged as^executors de son tort this state.</p> <p>And defendants are liable according t° the laws laws ofTen. need not be proved.</p> <p>Verdict- * under the plea-dinss“ "f -we the issues far the plff; —not sufficient under the pleadings in this case —what it should</p>

<p>1. All writs must run in the name 'of the state — and the state and county being placed in the margin and seperated by a lino from the commencement of the writ, is not a running in the name of the state.</p> <p>A. 11 writs must iun in the name 0f tha state — and the state and county separated by a writ, isnot-q. running in the name of the state.</p>

<p>1. Onmotion in the circuit court to dismiss an appeal from a J. P. it appeared an appeal was prayed — an affidavit made and certified — an appeal bond signed and filed, but not tested by the justice — Reid, sufficient evidence of an appeal — and that it was the duty of the J. to have certified the appeal bond: and the circuit courtjiidflight in permitting a new one to be filed.</p> <p>On otion in the circuitcout to dis-misa an appeal from a J. P. it ap-made certified — an ap-bond signed “sted^by íh^jus^ Held, suffi. cient evidence of and an appeal — and that it was the duty of the J. to have certified the appeal bond; and the circuit C. did right in permitting a new one to he filed»</p>

<p>1. Action of covenant for not making deed'on a certain day — plea, that defendant offered to make the deed and that plff. refused to accept it. Replication denying the tender — issue—Held, that proof that plfF. said he was ready to make the deed — and that defendant said he was ready to recieve it — but that both^ agreed to wave the making at that time — did not support the pica.</p> <p>2. More than nominal damages may be recovered on the covenant sued on, the breach oi which is assigned.</p> <p>3. The deed declared on, does not itself convey the title.</p> <p>4. Il a breach, as assigned, is too large,-the declaration may be amended — and it can be no reason for refusing to reverse on account of a misdirection of the judge to the jury.</p> <p>Covenant</p> <p>jDeed declared on.</p> <p>Breaches assigned</p> <p>Plea. Action of cove-kitís ^eed^on^a certain day — plea, that defendant deed antfthatplff.to refused to accept it. Replication der-^sfue^-Heldi that proof that plff. said he was ready —and tha^defen-dant said he was ready to recieve greed to wave the making at that time — did not port t e p ea.</p> <p>jiore t],an nom;_ nal damages may received on the th^breacli1 "of011’ which is assigned, The deed declar-jí" tfe. nvey 6</p> <p>If a breach, as as-thfned¿daratiorf8 be amended —and it can be no r^erseon account of a misdirection of .the judge to the jury.</p>

<p>ERROR to the circuit court of Cooper county.</p>

<p>ON ERROR from the Howard circuit court. .</p>

<p>1. A sheriff advertises real and peisonal property to be sold under execution during the session of the next circuit court for his county. The court in consequence of excitement in the county, adjourned at an unusually early hour of the first day of its session. Held, asuffi-cint and legal excuse for the sheriff in not selling at that term.</p> <p>2. When execution issues in an attachment case, for the sale of the property attached, the sheriff has no right to try the right of the property; but must sell.</p> <p>Motion «gainst sheriff,</p> <p>„ . , n a mgne</p> <p>Evidence on hear-ing-</p> <p>Points decided by sup. ct.</p> <p>sesSreaiffandVeier" sonaíeproperty 6to be sold under execution during the cir. ct. for his county. The court *n 'uem'ntTIn cty.^a^oumeda! an unusually ear-17 b°ur °í the sión. aHeld, a sufl ficient & legal excuse for the sher-that*terra.6 lng'at</p> <p>When execution issues in an attach-mentíase, for the ty aiZacAea^the1" shff. has no right to try the right musteeii.8rty ’ Ut</p>

<p>APPEAL from the circuit court of Saline county.</p>

<p>1. If work be done under a special agreement, the agreement must ba complied with, before the party can recover any thing — and this is equally the case whether ail the work be done oronly a part done.</p> <p>2. It seems that the work must be done and the contract complied with both as to time and manner, before'the party can recover at all.</p> <p>3. This is not the case if the other party prevents the doing of the work —or the times of the contract arc vatied by agreement — or performance is prevented by the act of God.</p> <p>Assumpsit, Declaration,</p> <p>Plea and issue, Evidence,</p> <p>instructions may ed to jury,</p> <p>If work be done under a special greement, the a-comjdSd with,\>e-fore the party can recover any thing —and this is ly the case whether all the work be done oronly apart done.</p> <p>v. Hill &. oven'ul®d></p> <p>It seems that the work must be fract with both as to time and manner, before the party</p> <p>This is not the case it the other party _cnM.he times the oontraoi are varied by ment — or perfor-manee is ted by the act of Got*<</p>

<p>1. To constitute perjury the party must knowingly and wilfully sweat falsely as to some matter material to the issue.</p> <p>2. If perjury was committed by the party in denying any matter, it is not perjury the less because on cross examination or further exam’nation'he confessed or stated the matter which he had before denied.</p> <p>3. To constitute a perjury the matter sworn to must be material to the * issue.</p> <p>4. Plff. to prove his character read part of the deposition of a witness who stated that he had never known his character impeached except in the present case. To invalidate this, the defd. should have been permitted to inquire whether he had not known it impeached in other cases. • •</p> <p>Action of slander, Pie»,</p> <p>Evidence rejected' an excePte t0,</p> <p>ry prayed by plff.</p> <p>Instructions toju-«jr prayed by</p> <p>To constitute perjury the party arMwilfullyswear falsely as to some matter material to the issue.</p> <p>If perjury was party11^6 denying any matter, it is not perjury the or‘further examination he confessed or stated the ?ia.tt®rfwh’c51.118</p> <p>a matter sworn to must be t0’tl18 is-</p> <p>piff. to prove hi* character read ^ °0f a wftn°esa who stated that he had never known ¡^che” exceptYñ the present case, T° invalída-íeiliis, ba® e b°ee¿ pelt-ted to enquire whether he had peaohedYíiVher cases.</p>

<p>1. The act of the Legislature of Mo. directing a stay of execution on judgments obtained before justices of the peace, is unconstitutional both as it regards the constitution of this State and of the U. S.</p> <p>The act of the le-oí Mo. directing a stayof executiononjudg-mente obtained SUnconstitutional both as it regards ^ u.S.</p>

<p>WRIT of error to the circuit court of Pike county.</p>

<p>WRIT of error lo the circuit court of Marion county.</p>

<p>1. Assumpsit on a promissory noto — pleas non as5t. within 6 years — and non as’t. within 10 years. At the time the note was made, the limitation was 5 years — at the timo it became due, it w.as 10 years.</p> <p>2. Held that the plea of non assumpsit within ten years is good.</p> <p>Assumpsit on a promissory note— aonas’t. ^ndnonL^wfth^ In 10 years. At time the note umltation^wim 5 years — at the time became due, it was 10 years‘</p> <p>that thepjea of non assumpsit yRhm ten years g0° '</p>

<p>1. Notest of theBank of the Commonwealth of Kent’y., are híÜs of credit within the meaning of the constitution of the U. S.^</p> <p>%. A promissory note, the consideration of which was said hills of credit* is void.</p> <p>Notes of the bank °ve.J¿ 0f°Ken?y.~, are bills of credit within the mean-tufion of theTlLs'</p> <p>A nromissor note, the eration of which was¡said bills of</p>

<p>1. B. hada deed for certain lands, not recorded — -B. heard B. say he had title to the lands — Held, that.D. who afterwards purchased the lands from another, had sufficient notice of B’s title to put him on further inquiry — and if he purchased without further inquiry, he purchased with notice of B’s title.</p> <p>2. No decree can he made against,the answer, unless it be contradicted by two witnesses — or one witness and strong corroborating circumstances.</p> <p>3. Actual possession of land by self or tenant, is notice to all of title.</p> <p>4. If a purchaser with notice of title in another, sells to one having no notice, the latter is protected in his purchase.</p> <p>5. B. purchases land at public sale — and by a subsequent arrangement the deed is made to G. — Held, that B. is not the agent of G. in regard to the purchase, 'and that G. is not affected by any notice B. may have had of title in another. It is a case of substitution and not of agency.</p> <p>6. Administrators sell land to G. under an order of court, to pay debts —they give him a title bond to convoy on payment o'f purchase money. — Before payment, G. sold and Conveyed the land toB., B.went into possession. The land was afterwards sold under execution against G. for the purchase money — and the purchaser at the sheriff’s sale paid the purchase money. Held, that G. had no title subject to sale on execution — that the purchase money being paid, there was no lion on the land therofer — that the purchaser at the sheriff’s sale got no title and lost his money — and that B. was entitled to the land in lav/ and equity.</p> <p>cmainUndsf not recorded. D. heard. B. say. he {^s^Held that d. wlio afterwards purchased the ^"‘ha^auffioient notice of B’s title Pu.t him on fur-*pSased^ without further inquiry, he .pur-ticíTof fPs title!</p> <p>No decree can be made against the be contradicted by two witnesses ññdstron oratfn^eircum-0 ' stances.</p> <p>oManVp^self or tenant, is notice to all of title.</p> <p>If a purchaser tie in another, sells to one having no notice, the in his purchase,</p> <p>D. purchases land at ^Úbse^ent*’ arrangement the’ deed is made to G. Held> that ift g, in regard to th« purchase, and that ^"'’^otfce^ j/ayhave had of title in another. ^i^amPnot 0f agency.</p> <p>Administrators ^ of*' COHrtj t0pay debts —they give him a ^^“payment1' of purchase mo-Before pay-to^nveycdUieland toB.,Ihwentinto possession. The '“rdsVsoldftunder execution against G. for the pur-X2Tat the sheriff’s sale paid the purchase tie subject to sale on execution— that the purchase there wbas noPíien on the land there-for- — That the sheriff’s^sale'got no title and his ”l°ney — and. tied to thelandin law and equity,</p>

<p>APPEAL from the circuit court of Pulaski county.</p>

<p>1. One S. purchased goods of plff. — which the cleric of plff. without directions, charged to S. alone. It was proved that S. and defd. at tire time were in partnership in buying and selling goods — no evidence was given to shew that the goods were not purchased on account of the firm — Held, that there was no evidence on which to predicate an instruction, “that if the goods were sold to S. individually and not on the credit of the firm, then defd. was not liable.” Held that defd. was liable if the goods were purchased by S. — and defd. was a partner at the time — and the goods went into the partnership fund.,</p> <p>2. Notice was given to take depositions on the 14th July — tobe continued if necessary from day to day until completed — The depositions of two witnesses were taken, commenced on the 14th, and continued from day to day until the 16th July, when they were completed— Held, that as the depositions for any thing appearing on their face might have been taken in an hour — something must also appear to justify the delay — and unless something did so appear they ought to be suppressed — what was done each day should appear on the record.</p> <p>One S. purchased of plff— without direc-tioris, charged to alone. ^twa® ^f^at the "time were in partnership in buying given to shew that the goods were on firm — Held, that there was no evi-is.predicaT^an instruction, “that if th® goods were no/on ' the credit of the firm>tlien d<jfd^</p> <p>was liable if the S£°d*dw®re ¡^& wgJ a pan_ nor at the time— g°°ds nershlptfiuid.piU "</p> <p>. e® a¡pof¿v6n tions on the 14th J.uly — be until completed—</p> <p>The depositions of two witnesses were taken, commenced on the 14th and continued from day to day until the 16th July, when they</p> <p>—Held,that as the depositions for any thing appearing on their face might have been taken in an hour —something must also appear to justify the delay — & unless something did so appear they ought to be suppressed — what was done each day should appear en the record.</p>

<p>1. Suit on a bond — plea that the bond was fraudulently obtained by plff. — that the consideration was a slave sold by plff. at public sale— who to induce others to bid, himself bid $500 — that the slave was afflicted with a hidden disease well known to plff. — that defd. offered to return the slave, field, that the plea was good.</p> <p>Suit on bond-m-plea that the bond that the ationwasa slave public sale — who tq induce others tobid, himself bid f|°e~wasaaffected a hidden dis-well known ¿ offined tore-turn 'the slave, Hekl, that the eais-&00 •</p>

<p>1. riea, former recovery in another court — Replication, nul ti el record, concluding with an averment and prayer of debt and damages — no rejoinder^and'judgment by default — Held that the judgment by default was properly taken. .</p> <p>2. Debt on bond — plea non est factum without affidavit — Held, error, to strike out the plea for want of an affidavit.</p> <p>3. Debt on bond — defd. pleaded 1st, that the bond was given for slaves bought of one H., and by him represented to be slaves for life and his' property — and avers thpy were not his property. 2nd, that the bond was given for slaves sold to him by plff. and represented to be his property, and avers she held them by will from her husband, which will made no provision for children — Held that both pleas amount to pleas of failure of consideration — and are bad.</p> <p>Plea eryin another nuí'tieTreooni1011’ concluding with ' an averment and prayer of debt and joinder and judgment by default field that j udgment by default was properly taken.</p> <p>iU.c-tum without davit--HelJ, error, tdeaforVan/of an affidavit. Dobt on bond-plea non est fac-</p>

<p>ON ERROR from St. Louis circuit court.-</p>

<p>■ 3> The defd. offered to read the deposition of one Waltei D;Scott which, was objected to on account of Scott being interested — and the evidence was excluded — the proof to shew interest, was “that the defd. and one Walter D. Scott had once been partners” — Held that the identity of the witness with the person who had once been the partner of defd. was not proved; and could not be inferred from the iden-. tity of name — therefore no interest was proved — and his deposition, should have been 'admitted.</p> <p>defd. offered) read the deposi-. terD°Scott which was objected to on, account of Scott ^¿nd theevited denee was exclu-. ded, the proof to, opc/waiter'D.' Scott had once identity of the witness with the., Perso^ who had., of defd. was not proved; fnferred^om the*' identity of name Í therefore no in-. t¡0n should have been admitted...</p>

<p>1. Forcible entry and detainer before justices of the peace — Cause taken to the cir. ct. by'^Certiorari — Judgment of the justices affirmed— 'rhe exceptions taken in the cir. ct. to the proceedings before the justices, no where appear on the record — nor does the paper supposed to contain them, appear to have been filed in the cause. Held, that it not appearing upon what matter the cir. ct. decided — its judgment must betaken to be correct.</p>

<p>i. The county appointed a commissioner to act jointly with one to be appointed by the city, to contract for the building a bridge on such p lan as they should think best — .they contracted with plff. below, and it was agreed they might extend the wing walls, paying for such extension.</p> <p>%. Held — That the commissioner may adopt and qse any seal as his own, and it would be the seal of the county for that purpose.</p> <p>3. The law requires the county court, first, to decide on the plan and materials and then the commissionei to bo appointed to contract accordingly — The law not being pursued in this case, the appointment is illegal and the person appointed not the agent of the county.</p> <p>4. That the city accepted the extra work on the wing walls and paid therefor, is no evidence that the county agreed to do so.</p> <p>Tll0 oounty ap. pointed a commis-“«ner to aetjomt-appointed by the City, to contract f°J íhe a piangaes they should think best anditwás agreed they might ex-^an^l^n^for ^fch extension,</p> <p>own, and it would be the seal of the county for that Held — that the commissioner may adopt and use any seal as his</p> <p>re uires the county court, first, to decide on terialsand'thTn" the commissioner to be appointed to contract accordingly — The law not being pursued in this case, the appointment is illegal and the ‘person appointed not the agent of the county.</p> <p>That the City accepted the extra’ work on the wing walls and paid therefor, is no evidence that the county agreed to do so.</p>

<p>1. Not more than one new trial can be granted to either party unless the jury have erred upon a question of law or been guilty of misconduct &c.</p> <p>2. The power of the cir. ct. in granting and refusing now trials, is subject to be reviewed by sup. ct. and its judgment therein reversed.</p> <p>3. For the errors of the jury in matters of law, but not for the errors ot the court, a second new trial, may be granted.</p> <p>4. It seems the 2nd new trial will be considered as improperly granted, unless the question of law on which the jury are said to have erred, be presented on the record.</p> <p>Not more than one new trial can ther party unless the jury have ed upona^question guilty of mlscon-duct &c.</p> <p>The power of cir. ct. mgranting and refusing- new tr¡aiS) is subject to be’reviewed by SUP • ct- and its _ Reversed* * 6rem</p> <p>yor the errors of in-thejuryinmattera law’ but not for court a second trial, may b* granted-</p> <p>considered as improperly granted, "¡"n ofu^on*" which the jury are said to have te^on'the record</p>

<p>1. D. had a negro which J. wished to purchase — D. owed R. a sum of money, and it was agreed between D. and J. that J. should have the negro, if he would pay R. the sum D. owed him and procure It’s receipt and discharge to D. — J. thereupon gave his bond to R. and R. • gave the receipt to D. — the negro obtained his freedom. Held that the consideration of the bond to R, was the discharge of the debt due him by 1), — and that R. was not affected by the slave obtaining his freedom.</p> <p>D.had a negro which J. wished to purchase — D. owed R. a sum agreeilbetweenaS d. and J. that J. pay R’/the^una1 £>. owed him and ^i'Tand'dis-" charged d! — J. thereupon gave R8 'ave'the re & ceipftoD. — 1The negro obtained Held that thiecon-Bideration of the bond to R. was the discharge of the debt due him by D. — and thatR. was not affected by the slave obtaining his freedom.</p>

<p>1. In prosecutions before justices of the peace for assaults and batteries, under the acts of 19 Feb. 1825 and 18 Jan. 1831 — The defendant must appeal, if at all, on the day of trial, and an appeal taken on a subsequent day is void.</p> <p>in prosecutions before justices of ^ults and batteties, under the acts of 19th Feb. 1825, and 18 Jan. 1831 — The defendant must appeal, if at all, on the day of trial, and an appeal taken on a Subsequent day is void.</p>

<p>ERROR to St. Louis circuit court.</p>

<p>APPEAL from the circuit court of Scott county.</p>

<p>X. An acknowledgement by B. that he had given the note sued on — had not paid it and did not intend paying it, because it was given for land to which the payee had no title — is not sufficient to take the case out of the statute of limitations.</p> <p>2. To take a case out of the stat. lim. there must be either an express promise to pay, or an acknowledgement of a real subsisting debt, on which thelaw wouldraise apromiseto pay a particular sum.</p> <p>had given the note sued on — -had not P“en¿ ^ because it was ’ £iv.ei? f°r land t0 not sufficient to tIie case out un"</p> <p>To take a case ,°.ut the stat-,' eithei. an express promise to pay, or ment ofareafs^b-sisting debt, on which the law would raise a promise to pay a particular sum.</p>

<p>1. In replevin — plea of property in one P. and N. — Replication—that P. and plaintiff are the same — without noticing N. — held—bad.</p> <p>Plea of property in the plff. and another,- good in bar or abatement.</p> <p>in replevin — plea of property in one cation — tiiaupP'& plaintiff are the same — without lleI<i</p> <p>Plea of property or abatement1 ™</p>

<p>APPEAL from New Madrid circuit court.</p>

<p>ERROR to the circuit court of Howard county.</p>

<p>ERROR to the circuit court of Howard county.</p>

<p>1. In actions on lost bonds, the affidavit of loss áse. may be made before a J. P.</p> <p>2.' In suits in the county court to establish a demand against an administrator, profert of a bond sued on is not necessary.</p> <p>3. No objection to the piff’s statement will be good unless a general demurrer would lie — andjwant of profert is only cause of special demurer</p> <p>4. It seems that whether a copy of the note or account sued on accompanied the petition, is matter in pais, and can only be put on the record by bill of exceptions.</p> <p>aot;ons on jost bonds, the affida-vitofloss &c.may before a</p> <p>In suits in the the county court mand against an administrator, profert of a bond cessary.13 n0t</p> <p>No objection to the plff’s statement will be good demurrer would lie — and want of caus^of8s° ecaal demurrer. 1</p> <p>It seems that whether a copy of count°sued on companied the petition, is matter reeord by bill of exceptions.</p>

<p>J. Bill in equity — Bill states that executions issued from cir. ct. against A. and were levied on certain lands which were sold by shff'., and that B. & C. became the purchasers and afterwards sold to comp’ts. —that A. had before the sale purchas ed the land of D. — and being in insolvent circumstances, had, to defraud creditors, caused D. to make the deed, before the sale, to A’s infant children — Prays that the deed to A’s children be set aside and a conveyance made by D. to comp’ts.</p> <p>% Held thatB. & C. and D. shouldhave been made' parties.</p> <p>3. The judgments were obtained before a ,T. P. & transcripts filed in tho cir. ct. and executions issued by the clerk — Held that it must appear before an Ex’n. could be issued by the clerk, that an ex’n. had been issued by the J, P. and returned nulla bona — and without this proof a decree could not be made against any of the defds.</p> <p>4 An Ex’n. returned “not satisfied by levying on the property of A. and making $29” insufficient — it must shew that A. had no more goods &e.</p> <p>in equity-Bill states that ex-frc0’^i°”rcuitUcourt were levied on certain sbwhg“1g1.]^r& that B^and^1. ■’ , became the purcha-wards'sóU^o" complainants— that A. had before the sale pur-d — and^eingin.0 ciroum-sta-nces, had, to caused Dto make the deed, before s_ prays that the deed to A’s chil-.dl'®n be set aslcle ^ade by D^to11106 complainants,</p> <p>been made parties, Hold that b. & C. and D should have ’</p> <p>were'obtained be-forea J P and transcripts filedm andraeciitions issued by the clerk Held that before anBxn. could be issued by the: clerk, that an sued by the J P and retumedjiulla ouuhTs^roTf l*1' decree could not he made against any of the defds. The judgments</p> <p>“¡íof satisfied™/^ levying on the 7 property of A and iufficifnf-S” m" must shew that A had no more goods &c.</p>

<p>1.Forcible entry and detainer — judg’t. for plff.-s-certeovari to justices and cause removed to circuit court — cause there dismissed for want ** of notice of the writ.</p> <p>2. If a notice be seived by leaving a copy it must appear to have been left with a white person of the family.</p> <p>3. The return shewed it was served on one F. whom the shff. considered a member of the family — parole evidence was offered to shew that F. was a member of the family — Held that this should have been received if necessary — but was unnecessary, and did not supply the other defects, — and the rejection of it by the coXirt was not therefore error.</p> <p>Forcible entry and cert^rá rito justices and cause removed to caust there dü-m;ssed for want of notice of the wnt-</p> <p>go^eifby leaving a copy it must ap-to have been left with it white person of the family.</p> <p>The return shew-edit was served ered a member of the family — parol fered"^ shewthat F was a member of the family—</p> <p>dioulíhave'been received if sary — but wasun-not supply the 1 other defect, — & the rejection of pfníp'pnf ror. ^</p>

<p>1. Action of debt by Gentry and wife (in the name of the State) against • Fry as guardian of Elvira Fry the wife of Gentry and his securities on their bond — marriage alleged since the bond was made — Breach that Fry had received large sums of money as such Guardian &c.— plea, that by an act of the general assembly of Ho., Gentry and his said wife were divoced from the bonds of matrimony — Demurrer to plea and joinder — Judg’t. for defds. — and writ of error.</p> <p>2. Opinion of Judge McGirk — The act of the General Assembly granting the divorce is unconstitutional — and the plea bad.</p> <p>3. Opinion of Judge Tompkins — The act of the General Assembly is unconstitutional; and the plea bad.</p> <p>Action of debt by Gentry and wife Fry as Guardian of.®lvira/f17 the his securities^ their bond — mar-qage alleged made — nd</p> <p>Breach that Fry jiad received n/ya^uch Guarí dian&e.plea,that by ar^ act of the ffnMo., Gen«ryy& said wife were divorced from the bonds of matrimony — Demurrer to plea and joinder-judgment for defds. — and writ of error.</p> <p>Argument of plfff counsel (incorpa rated bythejudgi into his opinion)</p> <p>j Ro]< Abr 359j 1 Sid'. 64.</p> <p>Reeves — Dom. Rela. 176.</p> <p>Powel ou con-</p> <p>Jacobs Die. con.</p> <p>Pothicr on obliga-3¿21U‘ S'con' op'</p> <p>g_ eon_ R 555.'</p> <p>Federalist No. 44.</p> <p>^rx36-7theC°n'</p> <p>Story’s com. on Beo.707?1’ ° ’</p> <p>Black, com. 433.</p> <p>Bae. Abr. 523, 530.</p> <p>Kcnt75-</p> <p>Reeves Dom Re-iat. 196.</p> <p>Hofl’. legal outlines 148.</p> <p>1 Ruth. Tnst.214.</p> <p>Ü. S. eon. Rep. 376.</p> <p>1 Kent com. 391.</p> <p>2 Kent com. 70, 16 Mass. Rep. 157, 2 flayward41216.</p> <p>2 Kent com. 91. 1 Johns. Rep. 424. ' 14 Mass. Rep. 227. 4 Con. R. 380. 1 N. H. Rep. 242.</p> <p>4U. S. con. Rep. 5.</p> <p>» om 109 Clancy's rights of women 91</p> <p>Jacob Dio. 4, all the law dower.</p> <p>Reeves Dom. rela-3rd.</p> <p>6 John. Rop. 112.</p> <p>5 . womani2nghtS Butler’s note to Coke on Littl. 304.</p> <p>4 Bac. 426. 5 T. ft- 89. l Bur. 542. RStmug. 875. ’ F. N. B. 80.</p> <p>4 u. s. con. Rep.</p> <p>_ ... . sec.I703. ;</p> <p>1 Kent com. 391. S. con.rep. 6Cranch87. 7 do 164. 9 do 43.</p> <p>4 U S con rep 539.' ’</p> <p>lb. 578.</p> <p>3 Dalla»Rep. 386.</p> <p>7 Join’s. Rep. 477. Story’s^com^HO, S00, ‘</p> <p>Ferguson’s Rep. 276.</p> <p>Cited by Kent 96.</p> <p>Federalist No. 47. 48, 49.</p> <p>Jour.of the conv’n</p> <p>Story com. 196.</p> <p>Federalist No. 47.</p> <p>Ib.</p> <p>Story com. 197, sec. 267.</p> <p>Also Tucker’s Blac. 48, sec. 5.</p> <p>t 4g</p> <p>Encyclopedia, Divorce,</p> <p>Josep!uis-</p> <p>„ , ,. , 23. 1 Inst. 134.</p> <p>Taylor’s civil law</p> <p>su-P°*íerjyarúage. 2 Kdnt 87. Quarterly review tí o. se p. 509,</p> <p>Code Nap. No. 9. 33,75,97.</p> <p>Tlio. Coke L. 146, n. E. ibed, 659. n. 9. 1 Bla. com. 44. Hoff, leg. out. 150.</p> <p>4 Bac. 551. 2 Kent 85, 7, 8.</p> <p>Hoff, legal outlines 273.</p> <p>1 Blac. com. 9.</p> <p>1 Kent. 420.</p> <p>2 Dali. 410,14. Tiros. C. L. 146, n. E.</p> <p>2 Burns Eel. 501.</p> <p>x Blac. com. 442.</p> <p>L- outl¡nea 3 Dall.Rep. 386.</p> <p>1 Cranch 177.</p> <p>Blac R L.660Í</p> <p>of|^3hn’s- ep' Crauch32l. 166.</p> <p>Jac' 1C' ug</p> <p>2 Kent com. Tuckers notes 435-440.</p> <p>Jeff, notes on Virginia 196.</p> <p>Revised codé. Constl*</p> <p>Geyer,s ¿¡g_ 13?i</p> <p>3 JMo. Decís. 414.</p> <p>Geyer’s dig. 169 & Í05.</p> <p>109414417-</p> <p>Argument of délas, counsel (inr corporated by the phtionf)1*0 18 °~</p> <p>Opinion of Judge McGirk. — The act of the General nigthe dívofce^B unconstitutional, —and the plea a ‘</p> <p>Opinion of-Judge* Tompkins. — The act of the General Assembly granting the divorce is unconstitutional, —and the plea bad.'</p>

<p>Error to the circuit court of Montgomery county.</p>

<p>Ejectment. — The declaration charges that the plff. is legally entitled to the premises, plea not guilty — verdict for plff. and judgt. arrested bythecir. ct. — Per curiam — the act regulating ejectments requires the plff-t0 allege that he is legally entitled to the possession, of the premises &c. The declaration is therefore bad, even after verdict.</p> <p>declaration ges that the plff. is legally entitled a^not^uilt6 verdiet° for plff. and judgt.</p> <p>the act regulating ejectments requires the plff. to legally entitled to the possession of therefore bad, even after verdict,</p>

<p>APPEAL from the circuit court of Marion county.</p>

<p>APPEAL from the circuit court of Lincoln county.</p>

<p>1. To prove notice of an appeal from a J. P. to the cir. ct.; a witness stated that more than 10 days before the first day of the cir. ct.,he served on the appellee a notice signed by appt., that an appeal had been taken from the judg’t of justice E. (before whom the case had been tried) that he did not recollect whetner the names of the parties were inserted, but believed they were.</p> <p>2. Held, prima facie evidence of legal notice — and should have been received by the cir. ct. as such.</p> <p>3. Notice to produce a notice, need not be givenjlo authorize the con~ tents of the first notice to be proved by parol.</p> <p>notice of an appeal °from a j. p. to the cir. ct. thaTmonTtUan 10 days^efore the first day of the °n the a^elle^a notice signed by app’t, that' ah ap-ken from ''the ta~ judgt.ofjusticeE. (before whom the CdlC tha^he" did not recollect whether the names but believed they were.</p> <p>evfcfence'oi lega! notice — and “ should have received ^by^he cir- ’ ’</p> <p>Notice to producto a notice need not be given to authorize the con. eoft*!l^efirst by parol,</p>

<p>1. Bill in equity by one legatee and heir against the other legatees and heirs to establish and carry into effect the provisions far as they can be proven. The bill charges the will t^ltavo been duly made — and to have been taken from the depository •lost or destroyed and coukl not be found by comp’t. — that some legatees live in Ky. *2. P. C. Tho jurisdiction in this case is exclusive in the county courts — and a court of chancery has no jurisdiction. 3. Probate may be granted of so much of a will as can be proved.</p> <p>™ ga¡nat the other legatees and estabiisH feet theprovisions of a will so far as Cxhebbiur0’ charges the will to have been duly made and to hayo been taken from ble depository by de^roye^and °r could not be found by compt. — that tees^livein Ky^a"</p> <p>p. c. The juris-a diction in countyUcouits--1S and a court of chancery has no juris ic ion.</p> <p>Probate may be granted of so can be proved.</p>

<p>S. "When A. has certified a transcript of the record of a judgment of another state, as clerk, the attestation of the judge (under the act of Congress) need not state that he is clerk.</p> <p>S. The declaration on the record of a decree, stated the decree to be for $125 51, “being the balance of hire fora negro boy John” — Tho decree is for $125 51 — “being the amount which the hire of the boy John exceeds the original advances made by the defd. to compt. and interest thereon” — Por. C. There is no variance.</p> <p>A. has car-a transcript °of an* other state as ¿ct of Congress) need not state that h®</p> <p>The declaration ^1*10 r0tca01ed°tIlg decree’to be for $125 51, “being ^ “Tnegro boy John,”--the decree is for $125 de-^““tb^fe*etha¡ h¡re of the boy John exceeds the “ITby thrdefdh t0 COmpt. and interest thereon”__ Por. c. There is no variance.</p>

<p>Error to the cireuit court of Montgomery county.</p>

<p>The keeping a roulette table, at which a game of chance was played for money, and inducing and permitting a person to bet thereat, and at which ho did bet and loose money, is an offence for which_a J. P. may-issue his warrant and cause the oiiender to be apprehended.</p> <p>roulette table, at chance ^fTplayla ed for money, and inducing and per-to'bet thereat0,'and at which he did is an° offence" for whicha j?°p! may issue his warrant, and cause apprehended. The keeping a</p>

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

<p>ON error from the St. Louis circuit court.</p>

<p>ON error to the St. Louis circuit court.</p>

<p>ERROR to St. Louis circuit court.</p>

<p>A having a claim toa tract of land, 15 arpens front, by 40 back, which by survej1, was found to contain 787 arpens, applied to the Board of Commissioners for confirmation of 840 arpens, which was granted, and the excess thrown off on the west. The excess was afterwards covered in part by a N. M. claim, patented, and by purchase of U. S, patents. Held, as to the excess, to be a more question between an unconfirmed Spanish grant, and a subsequent grant by U. S. The subsequent grant is good at law.</p> <p>, ^ a traeíof lamT ¡5 arpens front,by 40 back, which by to™oentain3787Und arpens, applied to t'oarcl com-640 arpens, which was granted, and offon'thewest'™</p> <p>The excess was afterwards cover-claim,patented, & by purchase of u. s- patents. Held be amere^uestifon betweeh an un-P°nfirmed sPon* • t bv U. s. The 5.’tí-sequent grant is good at law.</p>

<p>Judfft. was obtained against the Bank, and the record stated that the parties appeared by their attornies. Afterwards on motion, and affidavit that the person on whom notice was served¡ was not at the 'time of service an officer of the Bank, the judgt. was by the cir. ct. set aside. Held to be erroneous. The record, after the term, could not be contradicted by affidavit.</p> <p>t°betain" lanlffand the record stated, that p5r,ties.ai)T. ^"es. 7Áftm> " wards on motion, j>nd affidaviuhat whom'notic™ was served, was not at *e® °*0fet^°0 -n(1gt. was by the cir. ct. ^erroneouseThe rGeCord; after the term could not be by</p>

<p>ERROR to the circuit court of Washington county.</p>

<p>On appeal in chancery cases, the supreme court, unless the evide be preserved by bill of exceptions cannot see whether the cir. 'erred in deciding on it.</p> <p>On appeal in chan-eery cases, the SuP* ® “ ^ e°e y ¡de neo be preserved by bill of exceptions, in deciding on it.</p>

<p>OIS1 appeal from the Washington circuit court.</p>

<p>ON APPEAL from the St. Francois Circuit Court.</p>

<p>1. Sait on bond for $1800. Deft, craved oyer and Set out the bond which bad a condition for payment of $900, by instalment a; plea non eat factum Without affidavit.</p> <p>2. Opinion of Judge McGirk. The plea cannot be stricken out as a nul* lity.</p> <p>3. The bond must be produced on trial, and a variance may be lakert advantage of.</p> <p>4. The issue of non est factum could not be found for deft.</p> <p>5. Plea non est factum and plea payment. After finding non est fac* turn for deft, the finding payment for him also, can have no effect.</p> <p>6. But plff. Cannot have judgment, whilst it appears on the record, that there is a condition Which is not set out in his declaration.</p> <p>7. Opinion of Judge Wash — Concurs in the principles maintained above ;but not in their application.</p> <p>8. Opinion of Judge Tompkins. The declaration is bad, and deft, might have craved oyer and demured, but by pleading non est fac* turn, he waived the variance.</p> <p>9. Cir. ct. erred in finding non est factum for defendant.</p> <p>|“g0QIi ^ *ed oyer and set * the bond, ^^fur pa& mein 0f $900 by fútal-ments; plea non affidavit</p> <p>Opinion of Judge ^nn¿tkbé^trick-a en out as a nullity.</p> <p>The bond must be P™d a variance may be taken advantage of.</p> <p>The issue of ñon est faotum could deft.6 °Un °r</p> <p>Plea non est faction and plea payment. Aftei finding non est fac-tum for deft., the finding payment for him also, can have no effect.</p> <p>But plff. cannot have judgt. whilst it appears on the record, that there is a condition which is not set out in his declaration.</p> <p>Opinion of Judge Wash. Concurs in the principles maintained above, but not in their application.</p> <p>Opinion of Judge Tompkins. The declaration is bad, dnd deft, might have craved oyer and demured. But by pleading non est factum ne waived the variance.</p> <p>^ m factum for deft.</p>

<p>The authority given, by the act of the General Assembly, to the May- or and Aldermen of St. Louis, to license, tax, and regulate by ordinance, drays &c., does not empower them to prevent slaves from being employed t o 'drive such drays &c.</p> <p>. ofV" the Geni. Assem-blYi the Mayor Louisei^e¡j.° cense, tax and regulat®by °r<Ji-does not^mpower them to prevent ití¿*»<»from being ¿C(UV9</p>

<p>APPEAL from the circuit court oi Franklin county in chancery.</p>

<p>APPEAL from the Cape Girardeau circuit court.</p>

<p>APEAL from the circuit court of Carroll county.</p>

_ , _ . . . r ' Peyton sued Rogers m an action of trespass of assault and battery. There was but one’ count in thedec-laration, and the defendant pleaded son assault demesne.—At the trial of the cause the defendant proved an assault and battery committed on him by the plaintiff. — - The plaintiff was'then permitted by the.court to give .evidence of an assault an battery committed on him at another time by the defendant.

The president and directors of the bank brought their action-against the defendants. — The defendants pleaded several pleas, that which alone is material to be noticed here is, that the note sued on, was made by the defendants to the plaintiffs in consideration of paper of said bank of the commonwealth of Kentucky and that the said paper was bills of credit, within the meaning of the constitution of the United States, issued on the credit of the State, The replication to…

<p>3 A dedimus directed to a judge or justice of another state, and au-thorising him to cause to come before him “such persons as shall be named by the pllf. his agent or atty.” is not pursuant to the provisions' of the statute, and should pe quashed on motion.</p> <p>2. Under the provisions of the statute regulating the interest of motley, allowing creditors six per cent per annum, in cases where money has been “withheld by an unreasonable and vexatious delay of payment,” it is for the jury to determine whether the money has been unreasonably and vexatiousiy delayed, and it is error, if the court instruct the jury “to allow interest at the rate of six per cent per annum from the time they believed the def. received the money of the plff.”</p> <p>3. Construction of the statute of limitations.</p> <p>4. It is not sufficient to take the case out of tho statute for a pltf. to prove by a witness, that in a conversation between def. and witness, relating to the subject matter of the controversy, within five years before the commencement of the suit, def. informed the witness “that he musthave some money orpltf. would sue him.”</p> <p>5. Nor would an acknowledgement by def. that pltf. had not received the amount ofhis demand, be such an acknowledgement as would imply a new promise to pay on the part of def. which is necessary to take the case out of the statute.</p> <p>dedimus direc-aj.ud£e. or state, and author-izin£ himt0 cause as shall be named fay thepltf: the provisions of the statute, and bf- 8uash-</p> <p>Under tlie provisions of the statute allowing creditors six per cent per wlíere'money^iaa been «withheld by an unreasona-delay” qf epay-0l,S ment,” it u for the juryto money has unreasonably and voxatiously ff the cour^Tnl struetthe jury “to allow interest at centre” from the time they believed the moñey pltf.”</p> <p>Construction of lim-tations.</p> <p>It is not sufficient to take the case fora^pit/to prove by a witness, that in a conversation witness* 'relating to the ’ subjectS matter of the con-fiv^years before the commencement of the suit, witn^s"‘that 'lie must Have some moneyor plaintiff would sue him.”</p> <p>Nor would an knowledgement by def. that pltf. the amt. o^his demand, be such an acknowledgement as would im-to'pty on the'part of def. which i« necessary to take sct^je_out °*</p>

<p>1. Action of covenant and breach assigned, for not making deed on a certain day — plea, that def. attended at the time and place, and offered to make the deed — and that pltf. then and there waved the same and excused the def. from making it. — Held to be a good plea.</p> <p>2. It is no objection to such a plea, that there were other breaches assigned, and that the plea does not answerthem all — provided such breaches are answered severally by separate p.leas.</p> <p>3. Such a plea is admissible at law. Tompkins J. dissenting on this point.</p> <p>4. More than nominal damages may be recovered on the covenant sued on, the breach of which is assigned.</p> <p>5. No affidavit of the merits of an issuable plea is necessary, when there is evidence on file before the court,Tully establishing the truth of such plea.</p> <p>Action of cova-naIit and breach maíung deedoiTa certain day — plea, that def. attended place,eandoffered to make the deed —5nd that plain-same, and excused the def-fr°m making g¿od pelea.t0 e 8</p> <p>it is no objection suc]> a plea, other^breaches assigned and that Plea does not provide*6such~ breaches’ are answered severally by seParate Plea3,</p> <p>Such a plea ia admissible at law.Tompkins J-point?2 °n * 18</p> <p>na° dam;?" s"may be recovered on the covenant sued w 1 11 '</p> <p>No affidavit of the merits of an sary Tvhen There is evidence on file before the court, the trutl? oTsuch</p>

<p>ERROR to the Howard circuit court.</p>

<p>APPEAL from the Green circuit court.</p>

<p>APPEAL from the circuit court of Carroll county,</p>

<p>APPEAL from the circuit court of Howard county.</p>

<p>APPEAL from the circuit court of Callaway county.</p>

This case arises out of the insolvent debtors act. (Rev. Code, p. 445) On the ISth of May 1832, the plaintiff sued out process against the defendant, who on the 22nd of the same month, made out and delivered the schedule and took the oath required by the act, and was finally discharged.at the Sept, term of the circuit court 1832.

PETITION for a mandamus. The petitioner in this case moved this court to grant a mandamus against the.

ERROR from the Pike circuit court. . The plaintiffs in error were indicted for exercising the business of auctioneers, without license, contrary to the provisions of the statute. During the progress of the trial in the circuit court, various questions were raised and the opinion of the court thereon excepted to.

Henderson brought an action before a justice of the peace, for the value of fifty days work at 76 cents per day. Henderson had judgment before the justice for his demand. Held: that the contract of copartners are joint and several, and that the plaintiff may sue one or all at his election, and that the only way that the defendant could compel the plaintiff to sue all was by plea in abatement. — See 1 Chitty’s plead. 30; 18 Johns’.

QUO WARRANTO. The information charges that the defendant claiming of right to act as judge of the circuit court for the second judicial circuit of this State,' did without any legal commission or authority, exercise and transact certain business, rights, duties, &c. of the office of circuit judge, for said circuit &c. The defendant pleads a commission of judge of the said circuit court; granted to him by the Governor oí the State, on the 11th day of December, 1830.

<p>1. Bill in equity — bill states that one A. died leaving a will, and letters of adrar, with the will annexed were granted to compt. and the widow of the testator — that she took possession of the whole estate and compt. merely aided her with advice &c. — that after her death, B. one of the present defs. was her executor and residuary legatee. A legatee under the will of A. brought, liis bill in equity against compt. for the amount of his legacy, and made B. and others defendants to that bill — and obtained a decree in his favor. — Bill prays that B. the exec, of A’s admx. may be compelled to refund the amt. he paid under the decree.</p> <p>2. Held, that the legatee was clearly entitled to satisfaction from the personal representatives of A. — that the decree in his favor was conclusive of the amount of his legacy — and that compt. who was compelled to pay the legacy, had an equitable claim for it on the' admx. of A. and since her death, on her execr., one of the personal defs.</p> <p>3. The compt. is not concluded by the fa?t, that one of the present defs. was made a co-defedant with him in the suit brought by the legatee — because he was improperly joined with him in that suit, and moreover, it does not appear that the same matters were litigated.</p> <p>Statement of the</p> <p>BiU ,n it Bj¡n states, that one A. died,leav-ofadmmwith t;ie wm annexed, were granted- to ofatnhde — that she took possession of the whole estate and compt. ,mcre-advice &c! — that after her death, B. one executor anefresi-duary legatee. A legatee^under^the his bill in equity against compt. for the B.Sand’others fendants to that decree favor. — Bill prays that B. the execr. be^corn'eTled^to reliundthe amt. paid</p> <p>„ , . „ , Opinion oí tho c0U1't-</p> <p>Held, that the ’ atee was clearly eiititled to satis-personal tativesof A. — that the decree in ins siveofthc amount of his legacy — and that compt. led to pay the aey, had on^the'admx'1 A. and since’her death, on her ex-ecr. one of the present defs.</p> <p>The eompl. not concluded by the wasmadeaoo-de-the fendant with him ínthesuitebrought because efe was improperly joined with him in that over, it does not appear that “ ’</p>

<p>Ail entry by the cleric that judgment was confessed in open court— and that the amt. was liquidated by the clerk, at a certain sum, is not a judgment of the court, on which a recovery can be had.</p> <p>Statement of the case.</p> <p>Opinion of the</p> <p>b derk^that pidgment was confes-1? 0,Pen ®oun amt. was Hquida-t.ed by the clerk, notment of "the*1 court^on which a recovery can be had.</p>

It appears by the record that some time in the year 1817, Pascal Cerre, sold a lot or square of ground in the city of St. Louis, to one Thomas Hanly, for about the sum of $>7,500, to secure the payment of which, Hanly executed a mortgage to Corre, payable some time in the year 1823; that after the execution of this sale and mortgage, Hanly sold 35 feet fronting on main street, running back to the river 150 feet, to P. M. Dillon, and gave Dillon a deed therefor in gene.al…

This was originally a case in the county court. John O’Fallon presented certain copies of the supposed will of John Mullanphy, to the county court for probate.— The plaintiffs in error, come in and entered, a caveat against the proceedings of the executor; such proceedings were had thereon, that the county court decreed and adjudged that John Mullanphy died intestate.

Mullanphy in his lifetime, brought an action of trespass quare clausum fregit, against the defendants for breaking and enteringhis close &c. The defendants pleaded not guilty, and also that the closewas theirs; the plaintiff then set out another close; the defendants to that part of the said close, bordering on the waters edge of the river Mississippi, and westward sixty feet, say they are not guilty; and as to the residue of said close, westward of said line, they say it is…

Rachael is free. — 1 see act of Congress of March 6th 1820; Story’s U. S. Laws, page 1762, sec. 8, which for» bids slavery north of 36 degrees, 30 minutes; also the ordinance of 1787, for government of territory north west of Ohio — 1 vol. L. U. S. 475. 1 Mis. Rep. Winny v, Whitesides, 472; 3 Mis. Rep, Nat v. Ruddle 400 anc] Julia v. McKenney 270; as to the child, Merry v. Tiffin and Menard, 1 Mis,-Dec. 725.

Louis circuit court. Merry the appellee, brought an action before two justices of the peace, against Hicks the appellant, (and another who was not served with process,) for an unlawful detainer of a house and lot in . St. Louis. The justices gave judgment for Merry, which on certiorari was affirmed in the circuit court and from the circuit court, Hicks has appealed to this court. Reasons for reversing the judgment &c. in this cause: ■ 1.

ERROR from St. Louis circuit court. The questious arising on the record are: Had the plaintiff according to her own shewing a right to the slave? 2. Was there any evidence of a conversion by defendant, at a time when the plaintiff had a right to the possession?

Julia brought an action against Meechum for freedom, The defendant pleaded not guilty, and that the plain tiff is his slave: a verdict and judgment were given for the plaintiff Julia. Meechum by his counsel Mr. Drake, moved the court for a new trial. It appears by the bill of exceptions, that Lewis a negro, gave testimony for the petitioner.

IN chancery. — Appeal from the circuit court of Washington county. Gallagher, sold his interest as an heir in the land, and covenanted nothing beyond that, but had he sold an estate in fee, when the facts of the cause shewn, he had no such title, yet a specific performance should be decreed, because the vendor may have the means of curing the defect.

ERROR from the St. Louis circuit court. This Was an action commenced in the circuit court of thecounty of St. Louis, by the defts. in error, against the pltf. in error, and one James Robb, and one John F. Foster.

<p>On the trial of an indictment, a motion for a new trial or in arrest of judgt. will not be sustained, on the ground that the court ordered one of the venire, who on his voir dire stated “that he had formed an opinion from having conversed with def. but that he felt himself then in a state of mind to do justice between the parties,” to stand aside. Such an order is in accordance with the practice of the cii. cts. and tends to secure impartial jurors.</p> <p>on tbe trial of an indictment a mo-Arrest* of judgt! wilimit be sustained, on tho of tho venire, who on his voir dire 'an.6 opinionfromTav-ing conversed with deh but that ^®en° ¡n a™tate of between tlie par ties,” to stand aside. Such an order is in accordance with the practice of the cir. cts. and tends to secure impartial jurors.</p>

Points and citations of authorities by counsel: 1. The circuit court erred in allowing an appeal and awarding a peremptory mandamus to the justice. 2. The appeal ought to have been dismissed, because the circuit court could not lawfully entertain it. 3. The court ought not to have reversed the judgment of the justice. 4.

<p>1. To render a certified copy of a deed, recorded in another State admissible in evidence here, it should appear by the certificate of the elk. in certifiing the official character of the judge, that he is the presiding judge or justice of the court of which he is elk. — therefore, a certificate of the elk. of the county ct. of Hartford co. that A. B. is presiding judge of the 6th judicial district, composed of Baltimore and Hartford cos. is insufficient.</p> <p>2. Quiere. Would the words “duly commissioned and sworn” in the final certifit. of the elk. be equivalent to the words of the act of Cong, “duly commisssionedand qualified”?</p> <p>3. The attestation of two witnesses is not necessary to a deed of emancipation in Mo. made in pursuance of the act of the Md. legislature, passed in 1752, where the emancipation is to take place infuturb.</p> <p>, caBe?ment ° * 6 court-Opinion of the</p> <p>To render a certified copy 0f a MotherCita^ ¿I1 missibie in^evidence here, it should appear the cllTin certifying the' official character of the theSp’residinge 18 judge or justice of the court of which fore8 ^certificate of the elk. of the county ct. of ís wesTdffiíjudgé of the 6th judicial district composed Hartford*cos insufficient. *</p> <p>commissioned and iuiom” in the cik^be equivalent to the words of the act of Cong, “du-luctóS,1,S|;Cl'</p> <p>The attestation of j““niTltn‘3Ssea is deed^of^manoi-pation in Mo. in pursu-the^Md* legislature, passed in where the be^fpiace^n1/^ turo.</p>

The defendant William Gordon, insists on the following points, as establishing error in-the admission in evidence by the court of the paper purporting to be a letter from James B. Bowlin to James Brotherton: 1st. That the said paper purporting tobe a letter, varies from the letter set out in the indictment.

G. A. Bird, Circuit Attorney. The error assigned heie, is, that judgment was rendered for the defendant, when by the law of the land, it should have been for the State — the defendant denies the error, 1. The plaintiff insists that said Wilson Primm J. P. &c. had no jurisdiction over the offence for which said, and others were indicted. 2.

Thomas Medlock relies upon the following points as establishing error in the judgment of the circuit cour$ sustaining the plea of James Brown, because: 1st. Noting in the plea denotes it to be the declaration of Thomas Medlock qui tam. 2nd. Deft, by his plea says he don’t owe the plaintiff only Thomas Medlock. He is charged with owing Thomas Medlock and the State of Missouri also.

-Louis county. Marguerite S. McNair, brought her action of ejectment in the circuit court, against Peter Lindell and obtained a jüdgment there, to reverse which,Lindell appeals to this court.

On the 13th July 1827, Russell filed his bill against the four first defendants; and at the next November term the circuit court, he filed an amended bill, making Lindell a party; before hearing, the bill was dismissed as to Collier —after hearing, the bill of the complainant was dismissed, and to reverse the decree of the circuit court, the com-comes into this court.

Louis circuit court. Bentzen the appellant was sued in the circuit court by Zierlein the appellee and had judgment against him, to reverse which he has appealed to this court.

This was an action of debt by petition and summons; the plaintiff as usual and as required by the statute inserted a copy of the note sued on, the defendant pleaded five .several pleas and issues were made thereon, the court found all the issues for the plaintiff and gave judgment for the debt and damages; On the trial the plaintiff offered the note in evidence, ’the defendant objected to receiving the Same on the 'ground that it varied from that set out by the petition.

E. Moore, the widow and administratrix of the effects Nelson Moore, brought an action of replevin, against Robert and Alexander Moore, for several horse beasts; the defendants pleaded non cepit, and property in themselves and property in a stranger. Issues were taken on those pleas, and the parties went to trial. A verdict and judgment were given for the plaintiff. The defendants moved the court for a new trial, for the following reasons: 1st. The verdict is against law. 2.

Gillespie brought an action- on petition and summons against Atwood, to recover a sum of money due by a promissory note. The statute requires the plaintiff to file his petition and to incorporate therein a copy of the note. This the plaintiff attempted to do.

The appellant submiis, 1st. That Spellman is not interested in the subject of this suit, nor could the plaintiff have any decree against him — therefore it was not necessary to make him a party. — 2nd Maddox ch. 184, he is not a party to the interest involved, and therefore need not be a party to the suit. — 1 John: ch. R. 349; 3 Péere Wms. 311, note J. 2.

The plaintiff in error contends 1st. That the record of the proceedings and judgment in the case of Seeligson against Louis Leo Wolf defendant, and Brown Cozzens garnishee,is not competent evidence in this case — 1 Phil. Ev. 222; 1 Starkie, 181. 2. Upon the evidence as given, the verdict ought to have been for the plaintiff, and therefore the court erred in refusing a new trial. The only points arising here, are 1st. Was the record rightly admitted in evidence? 2nd.

John Logan, the sheriff of the county of Perry, presented an account to the circuit court of Perry county for allowance, in substance as follows: “County of Perry, to John Logan, late sheriff, Dr. For employing a guard of three persons, to guard a prisoner, Richard Hynes, committed to the jail of said county, from 13th day of April, to 3rd of October inclusive, 1834, 173 days, at 75 cents each, — $‘389, 25.” The circuit court allowed the account, and directed the county…

1st. That the court erred in suffering the depositions to be read so far as they related to the contents of a judgment and decree, without a certified copy of the judgment and decree — Mo. laws, p. 223, S. 3; 1 Starkie Ev. 353 and 354. 2nd. The testify of certain executions, replevy bonds and endorsements on some, and they fail to give any regularly certified copy of these executions, replevy bonds or endorsements. 3rd.

We maintain 1st. The court erred in giving the first instruction asked by the deft. We hold the law to be, that a conditional promise or acknowledgment, may take the case ought of the operation of the statute, if the condition be performed or complied with. — See 11 Wheaton 309; 2 vol. C. R. U.S. p. 461. 2nd. We maintain that the 2nd instruction ought not to have been given, because the doctrine laid down in it,, applies only to the admissibility of the testimony.

In support of the error assigned in this case, the pltf. relies on Chittyon Bills, p. 126-7, 8, 9, 30, and notes. The defendant in error contends that the set-off is not 'allowable — 1. Old Rev. code, p. 143, sec. 1, shows that ■there is no set-off allowable, when the note is payable “without defalcation,” so that this plea is prohibited by the statute. 2.

Thepltf. sues out a writ of error and assigns for error, 1. That the court erred in quashing the indictment, because the same is 'good and sufficient in law. 2. Because even if the indictment is bad, it is against the jaw of the land to quash an indictment for a nuisance, on motion for deft, or defts. As to sufficiency of indictment, see 4 Blac. com. 168: as to quashing indictment for anuisance, see B. Bac.

The appellee relies on the following points: 1. That those points intended to be raised, are not presented by the record. No exception is taken to any decision of the court except the decree; and there is no motion for a new trial. The court in lieu of the-jury, found the issues, and, the issues being found as they yrere, the decree must inevitably follow. All the error committed, if any was, in finding the issues, that is in discharging the functions of a jury.

The question presented by this record is, whether the certificate of the recorder of land titles, set forth in the bill of exceptions, shewed any title in the pltf’s. intestate? The negative is maintained by'the deft, in error, and the acts of Congress of 13th June 1812, p. 160, Land laws; and of 26, May 1824, p. 884, id.

Two questions present themselves in this case. 1. Does the evidence amount to the crime of larceny, and justify a conviction under the first instruction of the court? or does it show a mere breach of trust? 2.

The plaintiffs in error contend: 1st. That the deeds of the commissioners passed no title to said Gamble, because the property sold was not properly ' advertised — because the first deed was not a good one, and having made one and acknowledged ■ it, the commissioners were fundi officio, because there was-no proof that the sale was made according to law, or on the day for which it was set. 2.

Statement of the case made, and opinion of the court delivered by Tompkins J. The indictment, charges that, the defendant did suffer or permit a certain gambling device, adapted, devised designed for the purpose, of, playing a -game of chance, then and there to be used for the purpose of gaming,. in a certain hquse.then and there occupied by him;,which said gambling device so suffered or permitted to be used as aforesaid,.then and there consisted of a.common.box , used ás a…

APPEA.L from the circuit court of Ray county. The defendant in this court moves the court to dismiss the appeal, and assigns for cause: 1st. That the law does not allow to the State the right of appeal. 2d. That there was no affidavit to authorize the grant of appeal.

Statement of the case made, and opinion of the court delivered by Tompkins J. This was an indictment found at the February ici™ of the circuit court of Carroll county, for the year 1836. The defendant is charged with betting át a game of chance, under the 16th section of the 9th article of the' Act concerning Crimes and Punishments, in force the 1st Decembér,' 1835.

1st. Doct. Jennings^ the man who alone heard the contract, stated the contract as it was, and consequently the jury found the verdict contrary to evidence. Therefore, we insist the court erred in refusing a new trial.— See Clemens v. Laveille and Morton, lst’sem. anl. part Mo.

Statement of the case made, and opinion delivered by McGirk Judge. Jacob Baker brought suit in chancery against John. Welch. The bill charges, that in the year 1814, John Welch, the father of the defendant, became indebted to Baker in a large sum of money, about the sum of twelve hundred and seventy dollars, for which Welch gave to him to secure the payment, three several notes, payable a lew days after date.

Statement of the case made, and opinion of the Court, delivered by Tompkins, Judge. APPEAL from the circuit court of Boone County,, sittings at a court of chancery. Held: to be a good and sufficient consideration if the wife makes a charge on her equitable estate for the benefit of the husband, or even agrees to part with a contingent interest. It is said the amount of the thing settled should bear some reasonable proportion to- the consideration received.

Statement of the case made, arid opinion delivered by McGirk, Judge. Amy, the plaifitiff in error, brought an action of assault,&c., against Jonathan Ramsey in the circuit court of Callaway county for her freedom. The defendant plead that the plaintiff was his slave, issue was gained to this plea.

(in error) The plaintiff therefore insists on all the points-made at the trial for a reversal, and, in particular, insists That the court erred in refusing to let the plaintiff give the deed of emancipation in evidence. That the law of the case is, if Josiah Ramsey was allowed to keep possession of the plaintiff for more than six years after the execution of the paper relied on by the defendant then he had a right to emancipate the plaintiff.

This was ah action of assumpsit, brought by Feagan against Meredith, before a justice of the peace. The trial was by jury, verdict and judgment thereon for $>20 in favour of the plaintiff.' From which judgment, the defendant appealed to the Monroe circuit court, where the cause was tried again.

This was an action of detinue, brought by Martin against Withington, for a sack of coffee. The defendant pleaded . 1st. Non detinet. 2nd. Property in defendant. 3rd. That goods were delivered to him as bailee, and not demanded. And 4th. That he and defendant bought the goods in partnership, and that no division had been made. The plaintiff joined issue to the first plea, and replied to the three . 0tjjerS) to which defendant joined issue.

This action was instituted before a justice of the peace, by the plaintiff against the defendant, on the 27th January, 1837, on the following paper: “Samuel Bryant in account with William Saling,… Held: that here is a good foundation for an assumpsit upon the lending on one side, and the borrowing on the other ; and the words in the conclusion of the note will make no variation.

This was ah indictment against the defendants for exercising the business'of anauctioneer without having license.

This was an action of debt by petition and summons, instituted in the Marion circuit court by plaintiff against defendants, on a bond for the… Held: that horse racing was an illegal wager, and a contract founded upon it could not be supported in law. See Chitfy oñ Contracts, 240 to 243; Cowper 281; Kenyon’s opinion in Good vs. Elliott; 3 T. R. 385; 6 T. 11. 499. When we adopted the 9 th Anne, we took it with the same construction then put on' it by the English courts,. 2nd.

This was an action of assumpsit instituted in the court below, by the defendant in error vs. the plaintiff in error, pleas non assumpsit, and statute of limitations. The case was tried in the Ralls circuit court, judgment for defendant below. The case was taken to the supreme court, judgment reversed, and case remanded. It was then sent to the Monroe circuit, in consequence of Judge Hunt having been counsel for the defendant below.

Points and citations of .authorities, made by JFrusten Polk, attorney for plaintiff in error. 1. The city attorney is a creature of the corporate authorities — vide City Ordinances, p. 113. If so, he may be displaced by them', for the. same power that creates may destroy. For the regulations therefore, governing the action of the authorities of the city in regard to the office, we are not obliged to look to the charter, when that office is not created in the charter. 2.

ls,t. Because the facts established a cause of action under the statute; Rev. G. 1825, 747; and no pi’evibus conviction was necessary; Mellen v. Conway, 2 Missouri Decisions, 213. 2d. Independent of the statute, the plaintiff was entitled to recover for carrying away, and harboring, his slave. 3d. The instruction was an invasion of the right of the jury to determine the facts; see the cases of Cunningham- v. Sublette, Speed v. Herrin, decided by this court. 1st. The statute…

Louis county. Points and citations of authorities, made by Gamble, attorney for plaintiff in error. 1st. The plaintiff in error alleges that though this was a condition precedent to the promise to pay upon a past consideration, yet as the performance has been prevented by the act of the law, the plaintiff is entitled to recover — 3 Com. Digest, 125; Bul. ÍV. P. 184. 2nd.

1st. it may be as well to consider firstly the error* thirdly assigned, viz: that the court below erred in over' ruling the demurrer of plaintiffs in error to the second additional plea of Oozzens and Ames. .

Louis Circuit Court. The main question in this case is this: was it necessary for the circuit attorney, in person, to commence this action before the justice? or to state the question witb a more direct relation to the subject in hand, was it necessary for the circuit attorney, in person, to commence before the justice an action on the 8th section of the act regulating estrays, approved February 19 th, 1825?

1st. That the statutory trespasses and common law trespasses, cannot be joined — the judgment being entirely different. ' 2nd. That the statutory judgment of fine and double damages is erroneous in this case, as neither count of the two is on the statute. 3rd. That if one of the counts is on the statute, it is double, that is, comprehends several offences, as in one count. 4th.

1st. It does not appear that the jury were sworn by any officer authorized to administer the oath. In this case there is no affidavit attached to the proceedings of the jury to show what oath they took, or how, or by whom, they were sworn, but the sheriff, in his return, states that they were sworn by him. Our statute, page 419, section 9, determines what officers may administer oaths, and the sheriff is not one of them.

Louis county. 1st. That the facts do not shew the commission of any * indictable offence by the passing of the note in the indictment set forth, even if Downing is to be held responsible for the act of Conaut. - The single act of passing a note, is not a putting in circulation within the meaning of the first section of the act, the offence there prohibited being the original emission.

1st. St. Ange had no authority to make the grant; 3 Miss. Dec., page 243, case of Hill and Thomas v. Wright.

Louis circuit court. 1st. As at common law all games were lawful, if this contract be void, it must be made so by statute. But by our statute, which is substantially a transcript of that of 9th Anne, C. 14 — horse racing is not prohibited or noticed — R. L. 409. 2nd.

Admitting the testimony before the court to be competent, the questions arising thereon are, Was the paper alleged to be the will of John Mullan-phy, of which a copy is before the court, executed with the due formalities of law? If so, is the supposed copy, a true copy of that will ? The paper alleged to be the will, is not the same in its detail, as when executed.

Seaton Stoner, on application for. the writ of habeas corpus. '1st. The petitioner insists that every person born within the jurisdiction of the United States, (and not of alien parents,) of whatever color, is a citizen of the U. States, and is entitled to all the privileges and immunities of citizens in the several States; — see art, 4, sec. 2, U. S. constitution. 2nd.

Statement of the case and opinion of the court, delivered by M’Girk, Judge. The defendant was indicted in the circuit court of St. Genevieve county, for an assault with intent to wound, and for an assault with intent to kill. A:-verdict was given against the defendant, and on motion Of the defendant the court arrested the judgment. The State brought the cause here by a writ of error.

APPEAL in Chancery. Statement of the case made, and the opinion of the court, delivered by Tompkins, Judge. ' Cook filed his bill in the circuit court of St. Genevieve county against Davis. That court- decréed for Cook, and both parties being dissatisfied with the decree, appealed to this court. Evidence was given in this cause, and the matters in issue were found for the- complainant, and a decree in his favor was made in accordance.

Statement of the case,and opinion of the court, delivered by Tompkins, Judge. Johnson brought his action in the circuit court against Buckner, charging, that on the tenth day of March, in the year 1821? Buckner made his promissory note to the plaintiff’s intestate,-by which be, Buckner, promised to ■pay the intestate the sum of ninety-three dollars and twenty-two cents, on the first day of October, then next. The.'defendant pleaded first — the general issue.