Volume 5 — Missouri Reports

The court below upon these facts dismissed the bill of the complainants, and they have appealed, and insist for its reversal upon the following facts. That the court erred in dismissing the bill.

1. It will be insisted that the circuit court erred in not dismissing the bill for want of jurisdiction, there being no sufficient proof of the loss of the bond sued upon, which alone gives jurisdiction. 2. That the court should have decreed that the complainant be required to accept the deed of the defendants, they having shown title to the lots. 3.

Under the general assignment of error, I insist, in the first place, that the process is insufficient and ought not to be answered to; and if so found, judgment cannot be supported in this case, there being nothing to support it. In suits at law, or in chancery, if the defendant appear to a good declaration or bill, the defects in the ser« vice of the process is cured.

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

ERROR from the circuit court of Cooper county., To reverse the order for dissolving the attachments in this cause, the plaintifis’ counsel rely upon the following points and authorities: 1. That the circuit court erred in not permitting the plaintiffs to file their bond in favor of the defendant, conditioned as aforesaid.

The plaintiff, James Mahan, charges in his declaration that the defendant, in a conversation concerning evidence which the said Mahan had given on an arbitration, said of him that he had sworn a lie, had been guilty of perjury, had perjured himself, &c. The defendant pleaded not guilty.

The only point in this case is, whether the court below ought to have given the instruction asked by thede-fendant, to wit: “The defendant moves the court here to instruct the jury that upon the evidence given they cannot find a verdict for the plaintiff.” 1. The defendant is not liable at common law as master or owner — see 2 Kent’s Com. 259, 260; Foster and others v. The Essex Bank, 17 Mass. Rep. 508, 510;Snie v. Trice, 2 Bay’s R. 345; Wingis v. Smith, 3 McCord’s R. 400. 2.

The questions raised on the . record, and which will be insistedon by the plaintiff in error, are .as follows: 1. That the court erred in permitting the defendants to prove the acts of Joseph Irving, as administrator of his father, to show the property in the negroes in dispute were his property; this embraces the objection to the .defendant’s 2d, 3d and 4th instructions, and the 11th of the plaintiff. 2.

<p>1. In an action against a ferryman, for damages, &c., defendant pleaded, that his fees were not tendered, and that plaintiff entered his boat without his assent. Held, to be double, and' amounting to the general issue — and therefore bad.</p> <p>•2. A ferryman is a common carrier, and liable not only for gross negligence, but for all losses, except such as are occasioned by the act of the person employing him, the act of God, or the enemies of the country.</p> <p>In an action ■againsi a ferryman, for dam- ■ ages, &c. def. pleaded, that his fees were not •tendered, and that plaintiff entered his boat without his assent. Held, to be double, and amounting to the general Issue— and therefore bad.</p> <p>A ferryman is a common carrier, and liable, not only for gross negligence, but for an iosseBj exception as ^the act ofMhe employing him, the act of God,or theene-iry.</p>

The appellee makes the following points, and relies upon the following authorities to sustain and affirm the judgment of the circuit court in this case: 1.

APPEAL in ejectment from Boone cricuit court. insisted on the following points to reverse the judgment — motion for a new tiial overruled : 1. That the court erred in permitting the judgment of Hart v. Laughlin without the declaration and other parts of the record. 2. That the court erred in permitting the deed from the sheriff tobe read without further proof. 3. That the court ought to have rejectedthe certificate of the cleric. 4.

The court below erred im permitting the verbal’contract to be given in evidence, and in refusing to grant a •new trial, for the reason that said contract was not to be .performed within a year from the makingof the same; it was in the statute of frauds and void. — See Blanton v.Knox, 3 Mo. Rep. 342; Chi tty on Contracts, 208-9; X Barnwell and Alderson’s Reports, 723.

ERROR- to the circuit court of-Marion county. The points raised here for appellant are, 1. That the court erred in refusing to set aside the judgment- and' grant a continuance. 2. That the court erred in giving judgment for the plaintiff, without a finding upon ail the isspesin the cause.For the last point, see Leak v. Elliott, decided by this court-at its last term, and the authorities relied on in that case; also Archbold’s Appendix, page 145; likewise,-3 vol. Mo.

This was an action of debt, brought by Thomas Ragland, in the Monroe circuit court, as assignee of Nathaniel Ragland, against James Ragland, on a bond, executed by said James to said Nathaniel, Pleas, non est factum, without affidavit, payment and off-set. Before the trial of the cause, on the third day of the term, the-defendant moved the court to suppress certain depositions taken by the plaintiff and filed in the cause. 1.

<p>Plaintiff in ejectment offered no evidence to sustain his title, but sought to reverse the judgment (which was for defendant) because improper evidence was given by defendant. Held, that the judgment sf the circuit court was right.</p> <p>'Plaintiff in ejectment offered no •evidence to bus-■seeks'to reverse^ the judgment (whichwasfor proper isms given by de-Pendant IJeld, at^the c 1 r!dcourt1 -was right.</p>

This was an action of assumpsit, brought by Cave and Morris, against the administrator of Sumner. The declaration contains two counts; one for goods, &c. sold and delivered to Sumner, and the other for money laid out and expended for Sumner’s use.

ERROR' to the circuit-court of Montgomery county. This was an action of debt, brought by Martin against Hays. Verdict-and judgment-for plaintiff. The defendant moved'for a new- trial, and the court granted it. The error assigned is,- that the court improperly granted a new trial. Since the case of Johnson and Thompson,; decided by this court, in 3 vol. Mo. -Decisions; it is too late-ro question whether the improperly granting a new trial be error.

Genevieve county. There are four errors assigned for reversal. I shall -consider but two of them. It appears from the bill of exceptions preserved on the record, that on the trial the plaintiff offered in evidence to the jury a deed from William Shannon and wife for the land in controversy, hav-ving first proved the signature of the grantor, there being no subscribing witness to the deed.

Mary, the above appellant, was indicted, tried and convicted of murder, at a special court, held for Crawford county, in August, 1837; and thereupon appealed her cause to this court. Held: then all the above proceedings are coram non judicie, and void.

The first point relied upon by the appellants is, the circuit court erred in refusing the defendants below a new trial. Second; the circuit court erred in trying the cause at the return term of the writ: Because the bill obligatory, and the assignments thereon were not filed with the clerk as required by law. Third; the circuit court erred in disregarding the defendants’ affidavit for a new trial.

The plaintiff in error contends, first, that the circuit court erred in arresting the judgment below. Secondly, * the circuit court erred in giving judgment for costs against her; and thirdly, if the judgment for costs be right, yet the circuit court erred in rendering a judgment de bonis propriis, when the action was brought by her as administratrix, and not in her individual right. Then, as to the first error, the court gives leave to amend.

<p>The word “ such ” in the 3 5th sec. of the 7th art. of,the act concerning crimes and punishments, is probably a typographical or clerical inaccuracy, and should be rejected — the offence specified in that section having no necessary or natural connection with the one provided against in the section preceding.</p> <p>The word “such” act concerning crimes and pun-ably ical or clerical a°ou™ey>an<? ed — the offence1" specified in that aection having no ural^connectioif" with the one prov¡ded a inst in the section prece-</p>

, Upon this evidence-the- court instructed the jury, on motion of the plaintiffs^ “ that if the jury believe from the evidence that the defendant received- the goods at the lower bank, and undertook to keep them for a reasonable reward, and attempted to carry the goods up the bank, and in so doing lost the goods, he is responsible, unless it was out of his power to save them from acts of God or the enemies of the State.”' The giving of this instruction is assigned for error,…

<p>Parol proof is not admissible to vary, add to, or contradict a witten instrument.</p> <p>P?T0} ry^add to^or^on-tradict a written ¡“Btromem.</p>

The only point in this case is, whether the circuit court erred in rejecting the testimony offered, and in overruling the motion for a new trial? There is no rule of evidence better established than that the admissions of a party are always testimony against himself, and upon this ground the judgment of the circuit court ought tobe reversed — see Swift’s Digest, 126; 1 Starkie’s Ev. 61; 2 Starkie’s Ev. 20, 22; 1 Phil.

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

The plaintiff seeks a reversal of the judgment below, • anda judgment in favor of his demand, upon these grounds: First. That the demand presented by him to the Boone county court, is a demand against the estate of James T. Moss, deceased. Second.

The plaintiff in error insists that the court erred: 1. In permitting defendant’s testimony to go to the jury — 1 Starkie’s Evidence, 165. 2. In instructing the jury to find for the defendants— Mora v. Carter, 3 J. R. 271; Michol v. Munford, 4 J. R. 529; Brooks v. Marbury, 11 Wheaton. 78, 232.; Kuden-berge v. White, 1 J. C. 156; Conard v. Atlantic Insurance Co. 1 Peter’s 449; Brooks v. Marbury, 78, 225, 235, 11 Wheaton.

The plaintiff has assigned for error the several opinions of the court, and will insist before this court upon, the following points-: 1. That the court erred in refusing to- give the instruc-lion prayed for by the plaintiff. 2. That the court erred in not setting aside the non-suit, and in refusing to grant him a new trial.

The plaintiffs in this court have assigned for error the several points made before the court below, in the progress of the cause, and rely for a reversal on some one or all of them. 1. They insist that their second plea was a good plea in bar, and that the demurrer of the plaintiff ought to be overruled; and cite the following authorties — 17 John. Rep. 384; 2 John. C. Rep. 554; 7 John. Rep. 332; 3 vol. Mo.

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

The only point in this case is, whether the court erred in sustaining the demurrer of the plaintiff below to the plea of the defendants? That the plea of non assumpsit was good without an affidavit — see Burckhartt v. Watson, first Semi-annual part, Decisions of the supreme court of Mo. 72; Carroll v. Corn, 1st vol. Mo. Rep. 161; Fenton, v. Williams, 3d vol. Mo. Rep. 22.8.

First point. The only instruments upon which a petition in debt can be maintained are such as are exclusively for the payment of money or property, and this obligation being not only for the payment of moneys, but also for the doing .of a collateral thing, will not support a petition in debt. Second'point. The legal right to the money specified in the obligation, was not in the plaintiff below at the time of the commencement of the suit. 1.

insisted: 1. That the circuit court erred in permitting the defendant to introduce or give evidence to the jury of the conversations of plaintiff and defendant, either before,, at, or after, the executing of the writing by Peebles, acknowledging the receipt of the money, &c., relative to what the contract of the parties was in relation to the-purchasing of the wheat, &c. 2.

APPEAL in chancery, from the circuit court of Cooper county. In the argument of this cause,, the counsel for the appellants will insist: 1. That the complainant gave no evidence:, nor was: there any evidence given, to prove the payment of the' purchase money of the lot, as charged in the bill. 2. That, without such proof, the complainant is not entitled to a decree for a conveyance of the lot. 3.

<p>cited:</p> <p>5 Johnson’s Chancery Repoi;ts, page 482; 2 Vernon, 612; 2 Atkins, 62 and 377; 1 Atkins, 63; 5 Munford, 482; 1 Russell, 485; 1 Fonblanque, 269; 3 Coke, (book 3) 328, top, 325, 333, note G, 328.</p> <p>cited:</p> <p>Revised Code of 1825, page 790; Rev. Code of 1835, page 617; 7 Peters’ Reports, (Brasher v. Wash,) 616..</p>

<p>1, By a marriage agreement between husband and wife, before marriage, the slaves of the wife were conveyed to atrustee for the bene--fit of the wife, subject to her sole use and disposition. After the death of the wife intestate, the admr. of the wife brought replevin against the husband, to recover the possession of one oi the slaves. It was held:</p> <p>í. 1. That there is nothing in the subject matter of such contracts, or the situation of the contracting parties, to invalidate it — on ths contrary, such agreements are consistent with the policy of our laws, and binding.</p> <p>3. 2. During the coverture, the effect of such contract is to place th* legal ownership in the trustee, and the beneficial interest in ths wife, not subject to tire control of the husband.</p> <p>4. 3. On the death of the wife, the legal estate continues in the trustee, for the use and benefit of the personal representatives of the wife, who arp to be determined by reference to our statute of descents — Rev. Code, p. 222,</p> <p>By a marriage agreement between 'husband and wife, before marriage, the Slaves of the wife were conveyed to a trustee for the benefit of the wife, subject to her Sole use and disposition. After the-death of the wife intestate, the admr. of the wife brought replevin against the husband, to recover the possession of one of the slaves. It was held-:</p> <p>i. That there is nothing in the &uch contracts, or the situation of of1arties^to^invali ^te1 it — on tho contrary, such consistent1with tjj6 poiiCy of our laws, and binding,</p> <p>2 Duriiwthe coverture, tho effect of such contract ia to place the legal ownership in the trustee, and the beneficial interest in the wife, not subject to the control of the husband.</p> <p>3. On the death Sogaíestate0’ coi> tinues in the trus-teo, for the use tativee of the wife, ■who arc to be de-forenoedtobour6" statute of descents — Rev. Co._</p>

cited the following authorities: 3 vol. Chitty’s Criminal Law, pages 814 ’15,’16, 811, 813, 809; 1 vol. Russell, page 564; Revised Code, page 170. cited: Revised Law, page 171, sec. 31; 2 vol. Russell on Cr., 708 ’9; 3 vol. Starkie’s Evi. 1527 to 1533; Semi-annual part Mo. Rep. 304; Mo. Dig. 491, sec. 16; 1 Chitty’s Or. Law, 644; 1 Russell on Crimes, 56‘4, ’65.

<p>The finding by the jury of excessive damages, not warranted by th<S evidence, is good ground for a new trial; and the refusal of the court to grant one, under such circumstances, is error, which will be corrected in the supreme court.</p> <p>theory sivo damages, not warranted by the groumMoí^a^íew trial; and the re-lusal of the court defsuch°oircuHiI stances, is error, which will be</p>

<p>1. To take a case out of the statute of limitations there must be aft acknowledgment of a debt; and an acknowledgment that the debt remains unpaid.</p> <p>£. Where the defendant acknowledged that he had “got $200 front plaintiff;for land sold in Kentucky” — that “he had never denied it” — that “the §200 were just,” &c.; these expressions, though notvery satisfactory, will yet justify a court in refusing to grant a new trial, after a verdict for the plaintiff.</p> <p>To take a case there must be an acknowledgment that the debt remains unpaid.</p> <p>dint^ck'nowd-*0* edged that he had “got $200 from soldán Kentucky1’ — that “he had never denied «Wwere'just ” &e.; these aions, though not wlíí yet* court in refusing tó grant a new tm1, aftera tiff. °</p>

<p>ERROR to the circuit court of Montgomery county.</p> <p>cited:</p> <p>1 Barnwell and Alderson, 336; 2 Tucker’s Com. 438; 5 East’s Rep. 162; 2 Term Rep. 759; 1 Bibb, 88.</p> <p>cited:</p> <p>Fonblanque, top page, 460, 24, 623; 1 Marshall’s Rep, 243; 1 Maddox, 44'5; 4 Johnson’s C. R. 654.</p>

<p>in attachment. The writ commanded the she”iff to attach the defendant, by h.s land-", &.C., that he be and appear at the circniteourt, &c„ without, anv clause of summons. Nor did the sheriff in his return say any thing of having summoned the defendant. On the hearing, the attachment, for certain reasons, was dissolved. Held that, there having been no summons in assumpsit, the court did not err in dismissing the suit.</p> <p>attachment, ^andT/ümsher-iff to attach the defendant, by his {^"be’and ’appear cti&c., without any cla“®e the sheriff in his return say any summoned th^ defendant. On nearing, the wasXXT</p> <p>Held that, there having been no sumpsitfthe court did not err in missing the suit,</p>

<p>ín petition and summons, the sheriff’s return stated that he had react the summons to defendant, but did not state that he had either read the petition or left a copy, &e. Held, that after judgment by default, tire return of the sheriff may be amended, in pursuance of the 7th and 8th sec. 6tb art. of the act respecting practice at law,, either in th6 circuit or tha supreme court.</p> <p>In petition and summons, the sheriff's return stated that he had read the summons to defendant, but did not state that ie had either read the petition or left a copy, &c. Held, ihat ‘after judgment by default, the return of the sheriff may be amended, in pursuance of the 7th and 8th sec. 6th art.of the act respecting practice at law, either in the circuit or supreme court.</p>

<p>1. d a proceeding under the I7th see. nf the act for the relief of insolvent debtors, the allegation ol the < r ditor was, “ hat the def. had disposed of all his property to his near relations, arid ill particular to one W. J. T , in irtis’, lor the benefit of several of It is near relations, by deed,” &c. On the trial of the issue made upon this allegation, it is error in the court toinstruc the jury, “that if defendant conveyed any of his property to any of his creditors with intent to take the insolvent oath,they must find tor the plaintiff.” The first branch of the allegation being too general to support an issue, tin, instruction should have been confined to the particular conveyance charged to have been, made to W. J. T.</p> <p>2. Where (here are several a'legations. and as many issues, the jury should find on each issue particularly, but it is noi a latui etrorfor them to find generally on all the issues.</p> <p>3. Where a convey anee is made by a person, with an intent to take the benefit of the insolvent act, such conveyance is so lar fraudulent perse, as to deprive the party of the benefit of the act.</p> <p>4. The evidenee was, that the applicant lorreiie1'under the inso'vent law had, shortly before his application, conveyed to his brother property worth more than $5,000, to secure the payment of certain enumerated dents, amounting to less than $3.000; and the property was not liable to be sold tinder two. years. Such a state of facts would well justify a jury in finding a verdict against the applicant, not only because it was a lair interdice that the deed waa. made in contemplation of taking the benefit of the act, but because it secured an obvious benefit to the maker; and on either supposition was fraudulent and void.</p> <p>tn a proceeding Bee "or the the* relief of solvent debtors, the creduor°:wa°|^' “that thedef. had disposed of all his n ear Teta Ho na pnd in parii.-.ular to one w. J. T. benefit’of'sevcral’n of his near tions, by deed,” of theissu^made upon this allega- ... struct the jury, “that if defendant his property1^ any of his credi. tors, with intent v“nt oath',° they*1" must find’for ' plainnfK” The fheVuegaíon^e-ing too general to support an issue, ghould^tave^een confined to the particular con-made to w! J. T.</p> <p>Where there arc several allegá-issües^he^ury^ should’ find tm ea°'! issue fta¡rsl„ot a^fata/er-ror for them u> find generally 0» a11 tlie ia3U®s’</p> <p>a couroy. anco is by 8 to take the benefit of the insolvent act, such eonveyaice is the party of the benefitoí</p> <p>The evidence was that the ap- ^ for u^er the°insoI-* vent law had, sh°rtly before'-, conveyed^o^his brother property worth more than paymentof” «prtain enumera-' l?d debí-si amóun-the11 property was not hable t0 be sold a^aro^of facts would well a jury in thelppU-' cant, not only because'it was a [“er ^deed"was*131 made in content-' of taking ’“buM^cause it secured anob-'/ vious benefit to "Ifker:anti . fraudu-' and void,</p>

1. If the process was irregular in any respect, such defect was cured by the appearance of the defendant, and •going to trial on the merits — Rev. Code, 350, sec. 4; 3 Mo. Rep. 369, Barnett & Ivers v. Lynch. 1. It is expressly required, both by the constitution of the State of Missouri and her statute law, that “all writs and process shall run in the name of the State ©f Missouri” — vide Con. of the State of Mo. art. 5, sec. 19; also Rev. Code of 1835, page 351, sec. 1©.

1. There was no proof that the United States did negligently and wilfully run against a certain keel-boat,-named the Tom Roberts, and thereby cause the damage complained of. The verdict, therefore, was against evidence. 2. The verdict is against the weight of evidence. There were only three witnesses as to the facts relating to the manner in which the injury was done.

Louis county. 1. At the time of the proceedings before the jusiice, Montgomery was not within the justice’s jurisdiction, and consequently that the proceedings before the justice, were coram non judice. 2. The facts present a case of utter variance. The execution on which the property was sold professes to issue in aid of a transcript' from the justice of a judgment for debt of $88 01, and interest $1 76.

§>t. Charles county. The appellant, in support of his general propositions as to the error of the court in refusing and giving the' above instructions, will contend: 1. That .the.deeds to the appellee, referred to in the in-structions_given, are mill.and void; and on this point refers the court to the “act regulating conveyances,” Rev,. Stat. Miss* ,p. .11,8; Mo. Rep. vol. 1, p. 583; Perry v,.

Louis county. 1. Because the deed set .out in the answer of the garnishee, Darby, is no deed of assignment.- The deed proposes to be a deed, inter ■parties and tripartite, between Edward A. Sheer, of the first part, and the creditors of the said Sheer, parties to the deed, of the second part, and John F. Darby, of the third part.

The statute provides, “ that any ferryman or other person, 'who may be convicted of crossing any slave across the Mississippi river, unless such slave have a pass, &c. shall forfeit and pay, for the use of the person injured, all damages and costs that may accrue to the owner of the slave, the full value of such slave, to be recovered by action on the case.” That there was no pass or permission in writing, is agreed.

1. The only question for this court now to decide is,-whether the circuit court erred in excluding said survey,- and all evidence, written- and parol, in relation thereto! Plaintiff contends that the circuit court erred in making that decision; and that, if the survey was-returned, examined, approved and certified by the surveyor general,it was sufficient to make it competent testimony to go to-the jury.

This is a proceeding based purely on the statute authorizing the proceedings against boats or vessels. The act of the legislature was passed for the purpose of securing to mechanics in building steam-boats, and to pilots, engineers, &c. engaged in navigating the boats and vessels, the same security for their labor and wages, as is given to mechanics and others by liens in the building of houses, &c., of which not even the attaching creditor can deprive them.

1. The first count, in the indictment is bad and insufficient, and does not show the nature of the agency or employment of the defendantby Ai thur, Stearns, & Co. 2. That the verdict is not responsive to the issue, and does not find the prisoner either guilty or not guilty ore the charge contained in the indictment; and does not warrant the sentence pronounced* by the court.

Louis circuit court. 1. A delivery of the note may be inferred, for a delivery to the payee necessarily implies his existence at-the time, and that the contract was consummated and completed. As to bills and notes, which in this respect are exceptions to written contracts in general, a delivery will be piesumed — 7 T. R. 596; 5 East, 476; 1 Har.& Gill, 324; 1 Har. & John. 323. 2.

1. That the circuit cour-t is not empowered to order the' payment of any money out of the county treasury, especially at a criminal term. 2. That the account allowed by the circuit court is not chargeable upon the county treasury. 3. That the circuit court has power only to ascertain and settle the reasonableness of the sums charged; and the county court has the exclusive original jurisdiction to determine the liability of the county for the demand. 4.

1. The defendant’s plea is not sustained,because- the instrument in writing offered in evidence by him, containing the deed from Brazeau to the defendant’s intestate, conclusively shows that the intestate had not the right to convey at the time of the execution of her deed to plaintiff. 2. The decision of the supreme court, in' the suit of Dougal v. Fryer, establishes the fact of the breach of covenant alleged — 3 Mo. Rep. 40.- 3.

Charles county. It is a general principle that the assignor of an instrument is not liable until after a failure to recover the amount from the maker. For aught that appeared on the trial, the assignee may have recovered from the maker of the instrument the whole, amount estimated to be diie on the lease at the1 time of the assignment, or it may be that he can still recover that amount if he will take the proper steps. .

Louis county. There is but one question in this cause, and that is,, whether the statute on divorces contemplates any other cruel treatment or indignities than such as arise from blows and cuffs? I contend that it does. That a continued and systematic course of cruelty arid insult, to produce a moral degradation of the wife, is as completely within 'the meaning of the statute as the infliction of personal abuse — see Revised Code, p. 225.

1. The instrument sued on was not a sealed instrument. Its date, is August 17, 1836. See Rev. Code, p. 118, sec. 3, which states that an instrument expressed on its face to be sealed, and having a scrawl affixed by way of seal, shall be adjudged a sealed instrument. The bond is exhibited, by consent, in the bill of exceptions, and expresses in the body of it to be under seal, and the name ended by a dash or scrawl.

The law on which the court below founded its decision is found in art. 3, sec. G and 7, Rev. Code of 1835, p. 51. It is insisted by the petitioner that this law is intended only for the direction of the administrator in the management of the estate of the deceased person, and that it is not intended to control the mortgagee in seeking his remedy.

1. It may be assumed from the authorities cited, that an injunction is parcel of chancery or equity jurisdiction. 2. That pH original jurisdiction in civil cases, and especially in equity or chancery cases, has been given to the general assembly for the purpose of distributing the same. That the general assembly hath, by statutory enactment, made the distribution, and in so doing, has given to this court the original jurisdiction in this case. 3.

Louis county. Plaintiff in error deems that the amendment, permitted to defendant in error below, was permitted against law.

1. The copy of the deed read in evidence, was no evidence of defendants title, because there was no proof of the execution of the original — 2 Mo. Dec. 148; Stro-ther v. Christy, 2 Peter’s Condensed Rep. 28. 2. Because there was no proof of its loss — 2 Peter’s C.R. 28; ib. 173. 3. Because said deed was never recorded with the recorder of St. Louis county. 4.

1. The transcript of the executions and constable's return thereon, of Scott■ & Rule v, Molloy, was improperly admitted in evidence, inasmuch as tho same should have been filed in the clerk’s office in order to warrant an execution. 2. The title of defendant, under Finneys, Keyte & Mul-lihin, all of them bona fide purchasers for value, without notice of fraud, is good — Old Rev, Code, p. 101-2, sec. 3; Bac. Abr. 307-8-9; 13 Johns.

Louis county. The plaintiff relies on the following points: 1.

1. First, the certificate of the sheriff’s sale, under the act of 1821, cannot be made the foundation of any title. T. Because it was not signed by the sheriff', J. C. Brown, but¿by J. K. Walker, in hisown name. 2. Because it was not filed in the clerk’s office within ten days after it was made, as the law requited. 3. It was not in conformity with the law, as it gave a wrong time for redemption'. 4. Because eight parcels of land were sold in a lqmp, and the sale was void. 2.

1. Gabriel P. Cerre had no such interest in the matter under consideration, as -was in law sufficient to exclude bis testimony — 1 Starkie’s Ev. 20, 21,22; also, 102,103, 104; also, Saund. PI. and Ev. 941,944-5; 1 Stark. Ev. 10.5, 108, 107, &c. ■- 2.

The State relies upon the act of assembly of 1837, (see page 63,) entitled “an act directing the mode by which fines, penalties and forfeitures may be recovered,” in order to sustain this indictment. But the title to the act, and the phraseology of the law itself, show that it was intended merely to recover a penalty, &c. by indictment, analagous to an information ex officio at common law for a penalty, or a qui tam civil proceeding — 2 Chitty’s Crim.

<p>A person having a claim against the estate of a decedent, and wishing to give legal notice to the administrator of such claim, must state in his notice its naturg. whether he claims in his own right or by right of his wife, &c.</p>

1. The circuit court erred in refusing to give the instructions asked by defendant. 2. The court erred in refusing a new trial; and 3. The court erred in giving judgment for plaintiff below, which should have been rendered for defendants.

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

<p>Action of assumpsit. Plea, statute of limitations. Replication, that before cause of actior accrued, defendant removed from the State where the 'debt was contracted, the domicile of said defendant be- . ing then and theretofore beyond seas. EHd, that the issue on such a plea is immaterial, such a case not being within the proviso to our statute of limitations. Arcpleader ordered.</p>

As a preliminary question of the first magnitude in this and many other cases that will arise, it is important to settle the comparative value of a register’s certificate, and a patent for the same land. Our law (Statutes of Missouri, page 234,) makes the register’s receipt evidence in an action of ejectment, and a patent is nothing more; and so far as their dignity is, concerned, the law makes the receipt and patent precisely the same.

<p>1. An indictment, under tlie 31st sec. 2d art. of the aoi concerning Crimes and Punishments, charged that defendant “feloniously, unlawfully, and with malice aforethought, did shoot at,” &c. It should have adopted the words of the statute, “on purpose and.of his malice aforethought.” Error held fatal.</p> <p>2. in such an indictment, it will be sufficient to charge the intent in the words of the act, and it need not be stated “with intent felo-niously to kill.”</p> <p>An indictment, 'setf&iart! of the act'concerning on. & Pun. nR)usly,^unlawÍ°" fully and with malice afore-shoofat’”&c it should have ' adopted the words of the statute, of Ms malice aforethought.” Error held fatal.</p> <p>anindict-ol'^gfcientto1 ba charge the intent in the words _of “with intent feloniously to</p>

<p>An indictment, under the 2d sec. of the act concerning Grocers, passed in 1837, (see Sess. Acts of 1837, page 64,) charging that defendant “did sell, retail, and deliver ten pounds of nails,” &c. “without a license,” &c. is defective; because it is not specified that defendant deató in the selling of such articles, and that they were “goods, wares, and merchandise, not the growth or manufacture of this State.”</p> <p>An indictment, of the aet eemlng passed in 1837, (see Sess, ing' that defi “dM »efi,retail,and de-livor ten pounds “withoutali-" ©anee,” &c. is do-fec.tive5 ^because that def.S§eo2{ la the selling of s“c!l articles, and «goods^wawsand merchandise, not growth or testate'1™ °</p>

The defendant contends that the indictment is defective in this, that — 1. It does not allege that defendant did deal in the selling of goods, wares or merchandise. 2. The indictment does not charge the sale to have been made at any store, stand, or place occupied for that pur* pose. - Each of these circumstances constitute part .of the statutory definition, and both are necessary.

The indictment in this case contains two counts for the murder of Thompson, alias George Thompson, and the offence is charged in the language of the statute. Oa the trial of this cause, there were eleven witnesses examined on the part of the State with regard to the facts connected with the offence, and two other persons were examined as to the confession of Bower.

<p>It is no excuse for failing to take an appeal before a justice, within the ten days allowed by law, that the justice was from home during-the time, unless it could be made to appear that he was absent during the entire t.en days, and that that yvas the sole cause of the failure.</p> <p>It is no excuse for failing to take an appeal before a justice within the ten days allowed by law, that the justice was from home during the time, unless it could be made to appear that he was absent during the entire ten days, and that that wasMhe sole cause of the failure.</p>

The first error assigned presents the question, whether the evidence of Waldo, that went to the jury, was legal or not? The first evidence offered by him on the trial, as Ihe record shows, was a paper purporting to be a transcript of a judgment of a justice of the peace of Franklin county, in behalf of J. & L. L. Waldo, against John A. Veitch, for $38 63 debt, and also costs. This paper bore date 16th August, 1834. There are two objections to this judgment being evidence: 1.

There are three points presented for the consideration of this court: 1. Whether the defendant can plead fraud, covin and misrepresentation in bar to this action, although brought upon a sealed instrument. 2. Whether the circuit court did not err in sustaining the plaintiff's demurrer to the defendent's bill of discovery. 3. Whether the obligation from McCoy to Imboden, under whom Jones claims title to the land, was not legal evidence for the defendant.

The declaration contains two counts: the first in right of the wife; the second in the joint right of both bus-, band and 'fife. To this declaration six pleas were filed; 1. Non deiinet. 2, Property in the defendant. 3 and 4. That plaintiffs were never lawfully joined in marriage. 5¡ and 6. The statute of limitations.

t The question presented fot the consideration of this; «ourt is,.did the circuit court err in this proceeding;- and* iin the judgment given for plaintiff?

1. Error assigned, illegal evidence on behalf of plaintiff. Triplett offered in evidence a bond given by himself, Maupin and Worthington, to James Breckenridge, for $>65 85 cents, as evidence to show that Maupin owed him his demand of $33 25. This bond, then, not being the foundation of the action, should have been proved according to law before it went to the jury. It was not bo proved, and the circuit court erred in permitting it to go in evidence — Collins v. Bowman, 2 Mo.

The plaintiff assigned the following as reasons for the reversal of the judgment below: ;1. The circuit court •erred in coercing him to trial at the appearance teim. .2. The cii’cuit court erred in refusing him a .new trial... As to the .fiifet point, this is settled 'adversely to the opinion of the circuit court by the statute to regulate the practice at law.

<p>Our statute making promissory notes assignable, and authorizing the assignee to sue in his own name, makes the assignee the legal owner of the instrument, and consequently erroneous to institute suit in the name of the assignor for the benefit of the assignee.</p> <p>Our statute ma-not ^assignable, and authorizing’ the assignee to name1 makesrtie assignee owner of the in-consequently erroneous to tute suit in the Sgnor°for theaS" benefit of the as-signee.</p>

The following points and authorities are relied upon by the plaintiff tú' reverse the judgment of the circuit court: 1.

The appellant will insist upon the following points-: 1. That the court improperly sustained the demurrer to defendant’s plea in abatement — Stevenson & Hoard v-Robbins, 5 vol. Mo. Reports. 2. That the court erred in overruling the defendant’s motion to dismiss the writ of attachment.

ERROR from the -circuit court of Howard county. For the reversal of this judgment the following points and authorities will be relied upon by the counsel for the plaintiffs in error: 1. The motion of Williams to quash the attachment and to be restored to the attached property, was not such an appearance to the suit (there having been no service upon him of the process) as warranted a judgment by default against him for want of a plea. 2.

The point which presents itself is, that it does not ap«-pear from the record that Beatty, the plaintiff’, is the legal owner of the note sued upon.

<p>Betting at cards is indictable under the 16th section of the 8th aniel; of the act concerning crimes and punishments.</p> <p>Betting at cards is indictable under sction of a*t concern-crimes and punishments,</p>

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

ERROR from the circuit court of Callaway county. I shall insist upon the following points in this court as sufficient to entitle the plaintiffs to a reversal of the judgment of the circuit court: 1. I contend that the Statute of Limitations in the present case, does not operate as a bar, nor can it be successfully pleaded. 2. Supposing it may be pleaded, yet the proof offered by plaintiff ought not to have been rejected by the court.

The errors complained of by Spencer are: I. That the plaintiff ought to have filed with the justice a statement or specification of a grievance to himself, before the justice had any jurisdiction to issue the original summons. 2. The summons was and is void, because it does not run in the name of “ The State of Missouri.” 3. It does not appear that the summons was ever served by any constable or person authorized to serve it. 4.

ERROR from the circuit court of Cooper county. Hughes assigns for error: 1. That the court below erred in excluding as evidence from the jury the instrument of assignment read as evidence in this cause. 2. The court below erred in refusing to grant a new trial, both of which involves the same point — that is, whether the instrument of assignment is void upon its face.

<p>1. The circuit court, as a court of chancery, has concurrent original jurisdiction with the county court, in compelling administrators, executors, &c. to make just inventories, settlements, distributions and payment of legacies. But whore either court has exercised jurisdiction, and no appeal has been taken, the subject matter adjudicated cannot again be made the subject of litigation, unless attacked for fraud in obtaining the judgment. Tompkiks, Judge, dissenting.</p> <p>2. A testator, by will, manumitted his slaves at specified times after his death, willing that one of them, a female, should servo the executor for four years and then have her freedom; and alter making various specific legacies, embracing the mass of lps property, he desired “that his crop of grain, farming utensils, household furniture, Ac. should be valued and acted on according to law,” and concluded “that if there was a residue from hire of negroes, crop, &c. he wished it given to E.” (the complainant.) Held, that it was the intent of the testator, in desiring his crops, farming utensils, &e. to be acted on according to law, not that they should be distributed as in cases of intestacy, but that they should be appraised and sold for the payment of his debts — otherwise, the last clause, constituting a residuary legatee, would be nugatory. And the female slave, wh* was directed in the will to bo hired out for four years, having during that time and before she acquired her freedom, borne a child, it was held, that the value of the child should be applied to relieve th'e residue, out of which the debts and expenses were paid, and should in that way at least inure to the benefit of the residuary legatee, E.</p> <p>The circuit court as a court of sery,has risdictVon with1' the county court, in compelling ocutors^&c.\oX" make just twies, settle-of legacies/ when either court riKictfon1SandJno appeal has been taken, the subject «cUannotag'ain be made thoS ject of litigation, ft1^ fraud hi ob-taiaingthe mont. Tompkins, a ge,</p> <p>A testator, by oified atlmea his death, willing serve for four years and thenhave'her te^making^arious specific the\aTsbof°ldaS property*, he desired “that his crop utensils* house08 hold furniture &c. should be valued oonün^tolaw” and concluded' “that if there was hir^of'negroes crepj'&c.^wfah-ed it given toS,” ant*5 ^íelíthñtit was the* intent the testator, in siring his erops, ^.eTfo^eaeUdon according to law, shoaM bedutri buted a/ia'cases of intestacy, bus that tiiey s[10Uu appraised and ^ for th.e last clause, con-^eewould b’/nugatoryTAnd the female slave, ■^rwUl'to'be'1 hired6out for four years, having du-that time and red°herBfreedom,1 borne a child, it was heldD^at gh0uld°be applied te relieve the resi-duo out ofjvhich see3 and should in that wa^1gtb1^af1ltn“(r® U-gatee, E.</p>

<p>i. A judgment against one of two several obligors, without aatisfa~tion, is no bar to an action against the other.</p> <p>~. Petition in debt by assignee against one of two joint and several obligors. Pleas, non-assignulent awl paynaent. Issues taken. Plaintiff proved the assignment, but did not read the bond in cvi-dence-defendant offered no proof of pay:] eat Judgment, that plaintiff recover, &c. I-Ie]d, that the eoti~ t, acting as a jnry, did not err in finding for plaintiff; notwithstanding he failed to rcad his bond as evidence of indebtedness, for the making of the bond was not denied and was in possession of the court.</p> <p>3. It was unnecessary to find the issue of pa~'ment, as the defendant offered no evHence to sustain his pica, antI it it worn, the general finding of the court "that plaintiff recover," dec. was at least an indirect response to that isaac.</p> <p>A judgment a. one of two obligois, “tlu.ac‘ an action against other, Petition in debt a^n^fone of two joint and sev-obligors, payment, issues Plaintiff read the bond in evidence. Dcfen-Judgment that plaintiff recover, ^e'court'acting as a jurj^ did not err in finding for to read his bond, as evidence of in-JhemakbS’ofThe bond was not de-nied. and was in P°8sr®S8I0n of tIle</p> <p>wasnnnaC3SM. ry to find the issue ofpay.nenr,asthe to"* sustain his plea, >E w°ie» of^he*court" «that plaintiff recover,” &c. was at least an indirect response to that issue.</p>

<p>To An action on a promissory note, a plea, that after making the note defendant executed a deed, conveying certain property to defendant on condition that, if defendant paid a certain sum of money, being the identical debt secured by the note sued on, by a certain day, the deed to be void, otherwise to be absolute, without averring that such deed was made and accepted as a satisfaction of the note, is bad.</p> <p>To an action on a Pr°™BS"y mating the note defendant exeeu-^^rnan" d«fcn-dont on condition that, if defendant paid a certain sum the'ident'icaídébt secured by the note sued on, by otherwise to be abolutc, without died was inr.de and accepted as a " " ’ satisfaction of the note, is bud.</p>

<p>cited:</p> <p>Mo. Stat. 449, sec. 3, 4, 5,</p> <p>cited:</p> <p>3 vol. Mo. Dec. p. 399; Rev. Code, p. 449.</p>

<p>One of two payees to a note, may assign all his interest in such note to the other payee, who may sue as the legal owner of the note.</p> <p>One of two payees to a note, may assign all Jus into-who may sue as the legal owner tie note.</p>

<p>1. A deed of assignment by a debtor to a trustee for the benefit of certain creditors, on certain terms specified in the deed, does not prima jade vest the legal title to tlis property assigned in such trustee, for the purposes mentioned in such deed. Though good between the parties, when assented to, before it can operate to defeat an execution or attachment, it must be established in proof that the persons named in the deed are creditors to the amounts assumed.</p> <p>2. A deed conveying “one bundle of orders, one bundle of fee biils, two bundles- of notes, two bundles of accounts, and one of receipts,” is void for uncertainty.</p> <p>A deed of assignment by a debtor to a trustee for the creditors, órTcer" tain terms ed in the deed, /a°fe vest illegal title to the ty assigned in the purposes tioned in such deed. Though farties^when sented’to, before nean operate to tion or auach-U" ment, it must be established in Ions n'amld m (he deed are creditors to the amounts assume .</p> <p>A deed conveying “one bundle ■buncUerof°foe bill?, two bundles of notes, two bundles of accounts, ceipts,” is void -or uncortointy.</p>

<p>APPEAL from the circuit court of Pike county.</p> <p>cited:</p> <p>T. 1~. 1512; Phil. Ev. 138, ~O2-3; Bul. N. P. 40; 4 Bibb, 35; Hen. & Man. I~7, 2 vol.; Co. Lit. 352, a.; 4 Corn. Dig. 75; 3 [[Y;333;49;349;78]Vlo. R. 5, 38; 6 Con. R. 345.</p> <p>cited:</p> <p>4 Bibb, p. 4; Hen. & Mun. 3 vol. 127; 8 Mo. Dcc. 464; 3 S. A. Pt. 298; 3 vol Mo. Dec. 283, 411.</p>

<p>In petition in debt, brought by a mercantile firm, consisting of several partners, on a note executed to them in the name of their firm, it must be averred in the petition that the note set out was executed to plaintiffs by that name.</p>

Upon an indictment for murder, at common law, it is conceded, the accused could be convicted of manslaughter; but, under the statute of this State, with regard ter crimes and punishments, it is respectfully submitted this cannot be done. Murder, under the statute, consists of. two degrees, (Digest, 167:) The first degree is punishable with death; the second with not less than ten years’ imprisonment in the penitentiary..

There was error m the judgment of the county court, and the circuit court, therefore, did not err in reversing the same, for the following reasons; 1. There was no affidavit or oath made or filed in the •county court, upon the exhibition of demand by Perry, as ■administrator, as required by law. 2. The judgment given against Perry, administrator, is a judgment against him personally, and not in his representative character. 3.

Points in the case. — 1. Can a plaintiff amend his cause of action on an appeal from a justice of the peace, after the appeal is filed in the circuit court? 2. Can the plaintiff) on such amendment, increase, vary, or alter the nature or quantity of the demand? 3. Can the plaintiff below file a bill of discovery-in cases originating before a justice of the peace, after the same is filed by appeal in the circuit court? 4.

Several questions are presented: 1. Did not the sale, by George Gallaher to McCabe, of the interest of James Gallaher, with his knowledge and consent while under age, accompanied by his ratification and approval when of age, give McCabe a good title? 2.

The question is, whether Friar was not, as having the prior lien, entitled to the whole proceeds of the sale; and did not the circuit court err in ordering a pro rata payment thereof? — 2 Tidd’s Prac. 849; 1 Will. Rep. 39; 3 Salk. Rep. 212; 1 Will. Rep. 37, 39; 7 Term Rep. 20, 24; do. do. 20, 24; 4 East’s Rep. 534; 7 Term Rep. 20, 24; 1 Black.

To reverse the judgment of the circuit court, the appellant relies upon the following points: 1. That the-court erred in permitting Ross to testify.. 2. That the court erred- in overruling the motion for anew trial — see Butler- v.. 'Whitemore, 10 Mass. Rep. 442; Adams v. Bean, 12 Mass. Rep. 137; Moss v. Riddle & Co. 2 Cond. Rep, S. C. U. S. 277; Bowling and others v. United States, same book, 94.

. For the plaintiffs in error, it is contended that the court-erred in refusing the instruction asked by the defendants below. That the motion for a new trial and in arrest, should have been, sustained: 1. Because the original agreement between the parties was not filed with the justice before suit brought— see Statutes of Mo. Digest 183ó, p. 350, sec. 6, 7, 8j 3-vol. Mo. Rep. 233. 2.

The point relied on to reverse the judgment of the circuit court is, could the circuit court permit replications to be filed at the next succeeding term of said court, without the consent of the defendants? And did not said court err in compelling the defendants to take issue upon said replications, or to permit a judgment to be had against them by default? (See Statutes of Missouri, p. 458, sec. 9.) 1.

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

The only point presented in this case, is the sufficiency of the affidavit. To show that the affidavit is sufficient, we refer to Tidd’s Practice, vol. 2, page 709. The counsel for McCutchen will insist that the circuit court committed no error in refusing the continuance upon the application of said Steel. By the 3d section of the statute regulating Practice at Law, 462 of the Digest, power is given to courts of record, for good cause, to continue causes.

To-reverse the judgment of the circuit court, the appellant will insist on the following points: 1. The circuit court erred in giving the instructions asked by the defendants below: 2. The court ought to have given the instruction asked by the plaintiff below. 3. The court ought to have sustained the motion for a new trial.- ^ 4. That, under the joint plea of not guilty, the evidence was no justification. (See 1 Chit. Plead. 598; 1 Saun.

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

The circuit court erred in its supplemental instructions to the jury, and also erred in refusing a new trial. Authorities to 1st Point. — Hines v. McKinney, 3 Mo. Rep. 382; Fenton v. Perkins, 16, 23. 2d Point. — Downing v. Garner, 1 Mo. Rep. 751; 2 Stark. Evi. 800-8; 1 Chit. Plead. 183, 184; 1 John. Cases, 20, 16, 228; 2 John. Cases, 27; Percival v. Jones, 2 John. Cases, 49; Hess v. Morgan, 3 John. Cases, 84. 1.

Points relied on by Atwood, appellant: 1. That the summons was against Atwood and Hudspeth,.to answer, ■&c., and the same was not regularly served by any authorized officer — Rev. Code, 351, sec. 14; do. 353, sec. 22; do. 354, sec. .7. 2.Ihat from the time the-summons was issued, throughout, no me ilion was made or any notice taken of Hud-speth, either before the justice or in the circuit court. 3.That the court erred in not making the justice correct his record according to…

1. That the circuit court erred in not- setting aside and reversing the judgment of the justice, because the whole proceedings before the justice were irregular, and there was no sufficient service of the summons — Rev. Code, 350, sec. 1. 2. That the circuit court ought to have permitted Edward Thomas to file new and other security in the appeal bond or recognizance, that the said Edward might use the said Moses Thomas as a witness. 3.

Genevieve county. The appellant submits that the above evidence does not support the indictment, and the court therelore erred in refusing him a new trial. The only questions before this court are: 1. Did the court err in refusing the defendant a new trial? 2. Is the evidence such as would warrant the jury in finding the defendant guilty?

On the part of the plaintiff in error it is contended'. 1. That the circuit court of Jefferson county had no jurisdiction in this case, because the venue was not changed according to law — Stat. of Mo. 436-7. 2. Consent of the defendant does not give jurisdiction, and the court cannot act in changing the venue except in accordance with the law — the law there regulating the change. 3. That the evidence does not support the verdict.

The plaintiffs in error insist upon the following points: 1. That the judgment of the circuit court is erroneous in adjudging costs against the defendants, where the recovery is below the jurisdiction of the circuit court— Stat. of Mo. 1825, p. 227-8, sec. 11; do. p..473, sec. 1; Dougherty v. Downey, 1 Mo. Rep. 674; Buckner v. Amour, 1 Mo. Rep. 534; Mo. Laws of 1825, p. 268, sec. 4; Haydon v. Sloan, 3 Mo. Rep. 328.

The plaintiff in error will rely upon the following points and authorities: 1. That the plaintiff below should have- been compelled to go to trial on the issue joiued upon the truth of the affidavit on which the attachment issued, or the suit should have been dismissed, none of the garnishees having answered, and having property-of Mense’s in their hands — Acts’ of 1836-7, p. 9,. sec. 5; Stat. of Mo. p. 79, sec. 22. 2.

The defendant presents the following points in order to the reversal of the judgment of the circuit court: First count in the indictment is bad, because there hs no place stated where the offence was committed, and the court erred in overruling the demurrer. Time and place must be added to every material fact in an indictment — State v. Hardwick, 2 Mo. Rep. 228; Rex v. Holland, 5 T. R. 607; Rex v. Matthews, 5 T. R. 162; Rex v. Dezlett, 1 T. R. 69; 1 John. Rep. 70.

The appellant makes the following points in order to the reversal of the judgment below: 1. The order of reference is illegal, because it gives cognizance to referees of matters not depending before the court. 2. Report of referees is illegal, because not made by the persons appointed by the court. 3. The above is neither an arbitration nor a l-eference, but a mixed proceeding unknown to the laws. 4. Neither the report nor judgment is supported by the evidence. 5.

1. That the circuit court erred in not vacating and setting aside the judgment of the justice on the reasons filed. 2. That the circuit court ought to have allowed Atwood his set-off on the trial in the circuit court. 3. That Atwood was entitled to have his bill of discovery answered at, and before, the trial of the cause. 4. That Atwood was entitled to his account and receipts as payments of, and as off-sets, on the trial in the circuit court. 1.

The following points are insisted upon by the plaintiff in error: 1. That the injunction was improvidently granted in the first instance, the bill not disclosing sufficient grounds for the interposition of a court of chancery. 2. The bill does not state that any application had been made to the justice to quash the execution prayed to be enjoined. 3. That the demurrer to the bill ought to have been sustained. 4.