Volume 6 — Missouri Reports

“To reverse the judgment of the circuit court the appellant will insist upop the following points.” 1. That the court erred in rejecting the evidence offered 'to prove what Polly Johnson had sworn and said in regard 'to the description of the appellant, see Norris Peake 275-6, 1st, Starkie evi. 144-5 3d, Starkie evi.

There are but two points in this cause. • 1. The court had no jurisdiction at a special term, unless the defendant had been charged with the offence for which he was tried and in confinement at the time of ordering the special term, see law's of Mo. 159. sec 48. , 2d. The court erred in refusing to give the following in-instruction ' for deft. ‘-That the jury must • aciquit if they have reasonable doubt of his guilty.” • ■

“The plaintiffs will insist in this court upon the following ,. . . 1.That the sheriff Woods was liable in this action if guilty either of a voluntary or negligent escape,, and to tain it will read the following authorities, see digest 1834-5,. 260, 52, 53. see section. 3d 579, 580, title sheriffs;- and, also 13 J. 255 page, 2,,R. 131-ÜJ Bonafous vs Walker. 2' Wm.. Blackstone 1048, 9-John R. 140, same, book 329„ Bac 513, 1 SaundR. 35 note (1.) 3 Mass R'. 101-2.11 Mass.

1. There was no service .of process agajnst Mason, and the Circuit Court erred in rendering final judgment against him on the demurrer. ■ ... . , Sec. 13th sect, of 1st art of E. Q. of 1835 title practice at law and 2d, sect, of 3d art,same title,Hempstead vs Darby Mo. E. p. 25, Bonny v. Baldwin and Spencer 3d, Mo. E. p. 49. 8. There is no averment in the petition ■ that the note set out was executed to the defendants in error by the name the firm.

. To reverse the opinion of'the circuit court the appellants will rely upon the folio wing-points and authorities. 1. “That the court had full power to correct the mistake, see 2d John Ch. Rep. 585, Storys Equity 154., 2. That the proof was sufficient to shew the mistake and; if so the court should have made a decree correcting it, 3.

The case is brought here by writ of error. And the sufficiency of the facts sworn by that witness to take the case out of the statute of limitations is the question now made for the decision of this court, see the case McLaneadrnr. of Brockman vs Tharp 4 Mo. decisions 258, and books there cited.” “The only material point I consider in this case is whether the evidence given hy plaintiff of the promise to pay, was sufficient to take it out ofthe statute of limitation.

‘•It is contended that in this action, it being for a charge perjury may be committed by a witness. See Mahan vsBerry 6th semi-annual of 5th vol.

“The plain till contend.: that a covenant, although the time of performance has been enlarged by parol, must nevertheless be sued upon, and such agreement is a sufficient excuse for the non performance of a condition' precedent in the time specified in the covenant, if performance or an excuse therefoi is alledged under the paroi agreement.

“To reverse this judgment the appellant will insist upon the following points and authorities. 1. That the court erred in giving the first instruction asked by plaintiff below. The warrant of the justice of the peace, the return of the constable thereon, and the recognizance for the appearance in the Cole Circuit Court to be read without proof of their execution. • _ See M’Oarty v Sherman 3 John Rep. 429, 2 Starkie Evi. , , n, , n • 812.

•tThe court , , , . , . so to tax the costs and this court is now asked for a mandamus on that court, to shew cause, &c. see Rev. Sta. Crimes and Punishments page 216 sec. 35. See do practice and proceedings in criminal cases article sec- 41 page 497. See also session acts of Legislature of IS38 page 60. Title Crimes.”

“The oah question riresented by the record is whether ander the ;u-i of the loth of March 1835 concerning “securities,” S. Mo. 574) a notice to sue, not in writing, is sufficient to discharge a security-from his obligation.

“The appellants will contend that the judgment of the Circuit Court ought to be reversed upon the ground that Horsley ea was a competent witness, to pyove the facts proposed by him, and ought not to have been rejected by the Court below. See 4th John Rep. 129, M’Cleod vs Johnson, and note [a] and authorities there cited, see 5th Massachusetts reports, David Webster vs William Levi 334, et seq. See 2 John R. 394, Jackson, on the demise of Caldwell, vs Ilal-Jenback.

1. The. writing read in evidence does not appear to be the one sued upon, or that is set forth -n the petition. 3. The judgment of the court below is given against Isaac N. Griffin and Henry Kinote, when from the return of the sheriff it appears that the sheriffs summons was only served on Kinote. ■ 3.

mists that, from the testimony preserved in the record of this cante, he .should have had a new trial, and further, from theid.mce pre-<orved in this cause, it must appear that he i; elided to a now trial, to ¡.ue nty. record from which he cites, in confirmation the the Court below without further

1st that the act charged is an indictable offen. e. 2. That if the act charged is indictable, it is sufficiently and properly c'ia.-ged in the indictment. Authorities c/U-'d, in support of first point, Rev. Co. p. 297, 9th sec. article Oth, Mo. Rep. vol. 4th Gorden vs Zu-malt, p. 570.

The Court below erred in overruling the motion to dismiss judgment against both the defendants aforesaid, and cites, in support of this position, the statute of the State of Missouri defining and limiting the jurisdiction of justices of the peace in civil case-, revi ed Statute of 1835, page 348, 1st art. section 7, al.-o same book page 351, sec. 11 and 14, further, same book, p-ge 354, sea 7, art. 3.

The following opinion was delivered at the August term of the year 1839, and the cause, on motion of the plaintiff, in error, being kept under advisement, and the two judges who were then on the bench, being still of opinion that its former judgment was correct, now direct their opinions to be transcribed for publication.

1st. There was no notice, at the time of the sale, that the mare was unbound, 3 Hen. & Mun. Argentbright vs. Campbell, p. 144. Sugden on vendors p. 315, and Wildgoose vs, Weyland, Gillaspie 147, p. 67, &c. 2nd. An express warranty need not be in express terms, see 19th Johns 290. 2 Harr and Gill 495. Wood vs. Smith 4 Carr and Payne 45. See Oneida Manufacturing soc. vs, .Lawrence, 4 Con. N. 440. Jones vs. Bright, 5 Bingh 533.

1st. The Auditors sale'to Suggett.for the'.non-payment. of taxes &c., is illegal and void; because, 1st. The proceed-' ing being by special act, in derogation of common right! the statute itself must be strictly construed against the power. ■2nd. The proceeding being ex-parte and under a special au-lhoiity, the greatest strictness is required: nothing ean be presumed in favor of the- act, but every requisite of the law must be shown to have been complied with, Pit.

1st. That there is not in the re J :■ , Menee of the locality of the claim, nor that it ot'.-r--«.•:) i’.c fund in question. 2nd. Tbs laying down that cl.-nni cu too registers map, was not v ¡.minted by any law, and w.,-: hi, unauthorized deforcement of the plat. 3rd, The claim as laid down in the may, does not in fact embrace all the land in question. 4th.

lat. The circuit conrt of Lincoln county erred in granting a change of venue upon the application of William C. Prewitt, the master of the prisoner, and the circuit court of Warren obtained no jurisdiction by said order. 2nd. The circuit court of ■ Warren erred in passing sentence of death on said prisoner, such sentence being without warrant of law. 3ul. The circuit court of. Warren erred'in over ruling the motion for a new trial.

1st. That the court erred iu not dismissing said appeal ass said appeal was not taken within ten days after the judgment of non-suit, and for costs. See revised statutes, page 369, section 3, p. 359,1,2, & 3. 2nd. That the non suit in this case was wrong.

First, The failure of the clock to perform is no defence at law to the note. The party would be left to his action on the warranty. One cause of action cannot be set off against another Second, In equity the failure of the warranty could only be a defence to the note in case of the insolvency of the war-rantor or under such circumstances as that an action on the warranty would be unavailing.

It is not necessary to aver the names of the games play-' ed, see Revised Statutes pago208,-17tli section, 8th article same act. Pirtles digest vol. 1, pages 517 and 518. 3 J. J. Marshall’s report 133 Montu vs>. Commonwealth of Kentucky. The indictment being founded on the statute,, it is necessary that'the charge contain every element or constituent of the offence, and an expanded definition of the offence must be made 15th sec. R. C., p. 207.

1st. The court erred in refusing to permit the defendant to introduce the record of the case of John Davis vs. Spencer Cooper, as • evidence to the jury. • . ' 2nd.' The circuit court ’erred in refusing, to permit the defendant- to introduce, as evidence, the execution and writ of venditioni exponas in said cause and the return thereon. ■ 3rd.

<p>1* Covenant "by A §-B'against Cas admlr of B-upbn-an- agreement'of' D to deliver to pltffs at stipulated periods, 1000 saw logs. Plea,, tliat D in liie life time delivered 200 of the logs &c. and. as to the residue was prevented torn delivering fyc, by" B one of'the pltffs. who on&c. assaulted and mortally wounded D-, by means of -which' &e D died, and- so was prevented from fulfilling his covenant.— Flea demurred to and demurrer overruled. Held, that, the plea-, was good.</p> <p>2". Where tlie covenantee forcibly prevents tho covenantor from'fulfilling his-covenant, the-covenanteo is released'from'its performance.</p> <p>3. There is an obvious distinction between covenants for the non-payment of money, or transfer of land, or other- property, and those in. in which the party stipulates for work and labor. Tho former, class are not' released by the death of the obligor, even though Kis death, was occasioned by the act of the obligee, the physical capacity or incapacity of tho obligee having no connection with tho performance required. Otherwise where-the personal, services, of a party, are stipulated for:</p> <p>4. A xeloase- from! one obligee is a- release as to all', and' the act alleged in the pica im this. case. is. equivalent to a release of the whole-obligation.</p> <p>Covenant by C as^adni’Tof D, upon an a-ITtT doiivor stipulated p^t riods, 1000 thlt'if ii^hia life time, the logs &c. ,wid as to the dtesiduc was prevented 5ngm&c.elbyeB "one of the pitas, who on ,&C. assaulted wounded* d!^' by means of which *0. D died, and so ling his cove-dhmurred^to demurrer Held, that was</p> <p>coJ^^lc^10 forcibly pre-his covenantor^ released from the performance.-</p> <p>obvious" dis*11 nants for the ™ money "or transfer of and party stipu-^he former' deaíh of the obligor, eren t'hough ,. , , occasioned by obligee,°f the physical ca-capacity havingliguo connection formance quired. Oth-th'o ^personal services of a partyarestip-olatod for.</p> <p>A release from oneobii-feancaa to all and the act alledged the plea in this case is to a release of the whole obligation.</p>

<p>The Supremo Court will not disturb the verdict of a jury, or that of the circuit court sitting as a jury, where the evidence in the case has not been preserved in a bill of exceptions and no motion has been made in the court below for a new trial.</p> <p>Courfw^Unot disturb the jury,"or that °° asTa^ jury”^ Jenoe*in^the" “been made in case has not boon preserved in a biil of exceptions, and no motion has the court be]ow.foi*a new triah</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 the firm, it need not be averred in the petition that the note set out was executed to •the plaintiffs by that name.</p> <p>sistingof sev-^me of th* need red m the pc-th® was executed ^attaint</p>

<p>•X. In -proceedings under iho act concerning “buildings,” (It. C. 1835. p. 107.) to enforce a lien,- the only cáse in which tho land on which the ' building has been erected and a certain spaco-'around the building; can-be made subject to tho lion of tho workman, is where the ów.ner of the land has caused the building to be erected.</p> <p>2. Therefore on a" scire facias issued againct tho.'owner of the land to • show .cause why execution should pot issue against tho land, it isa good defence, that tho land on which tho building, was erected', was at the time &c. the property of deft, and that deft, did not causo the building tc’be erected. '</p> <p>3. This act was not intended to exempt mechanics &e, from tho opera - tion‘ of-the established rules of law.in relation to contracts. ’ Therefore, where one of tho dofcndcnls pleaded coverture at the time ^-e. . such plea was held, good.</p> <p>in proceed-' “"tde*on_ cerning ‘buii- - ^a case'in which c*antd eon building has ecreerct*jd space around be'm'ade subject to the juchante, is whore the owner of the land lias oaus-ir?gt5to be^l" rooted.</p> <p>Therefore, on a scire fa-das issued a-owner of °tho land to show causewhycx-ecution ' su°UagainsVS' thc land it feneeS°that the land on which the building was erected, was at the time i$-c. the pro-perty of deft, and that deft, did not cause the building to be erected. This act was not intended to exempt mechanics &c. from the operation of the established rules of law in relation to contracts. Therefore, where one of the defts. pleaded coverture, at the time §-c.. such was held</p>

<p>Appeal from the Circuit Court of St. Louis eounty.</p>

<p>An estate was granted to A with a condition annexed, that she .should; not sell or incumber* the same before attaining the age of twenty five years, B, with a full knowledge of this condition, took a conveyance of the estate from A previous to her attaining that age.— After attaining the age of twenty-five years, A convened the estate to C who evicted B. Held, that in an action of covenant by B a‘gainst A, the consideration* money paid by B to’A, and interest thereon, were the true measure of damages, and nót-the present* value of the property* . •</p> <p>An estate was granted condition ¡m-that not sell or in-^before attaining th* years, B with’ of "his"’ condition, yeyanoe°of estate T¡^8 toiler age. After at-j taining the age of 25 years, A con* /veyed the estate to C, who evicted B. Held, that in an action of covenant by B a* gainst A, the consideration money paid by B to A, and interest thereon, were the measure of damages, and not the present value of the property.</p>

<p>Error to the Circuit Court of St. Louis county.</p>

<p>1. 'Where a demurrer "was filed to the declaration, hut no judgment nn-tererton the demurrer and issue afterwards joined on a plea to the action, the Supremo court will presume that defendant withdrew his demurrer.</p> <p>9 Where a hill of exchange, drawn by plaintiff on defendant, the consideration of which was goods sold and delivered <Sfc. was protested for non payment, the amount due maybe recovered in an action o assumpsit for goods sold &c.</p> <p>od to the de-no judgment; ontorod on the demurrer,, and issue ai-^oifa pica to the action; wilfprésumo defendant-withdrew his demurrer,</p> <p>Where a bill of exchange drawn by plaintiff on defendant the consideration goods1soldWaS and delivered ifc. was pro-•tostod for non amount ^uo6 maj lie reeovtion of as-sumpsit for ¡goods sold S¡c.</p>

1st. The circuit court had jurisdiction of the case. 2nd¡ The defendants as to the facts of the case are concluded by their demurrer on the record. 3rd. That -the .question “Testamentum vel non,” is a question .of fact not .to be enquired into by the -appellate court. 4th. The 'circuit court has committed no error in matter of law fhat will justify a reversal of 1.

1st. The error of the circuit court is in permitting the defendants to prove by a witness, that the defendant Cass a Bridgman heard the words spoken by another and that she only repeated-,them. On this point, see the case of Anthony vs. Stephens 1 vol. Mo. Rep. page 254. 2nd. Point relied on is the error of the circuit court in refusing to grant a new trial for the reasons filed. See the testimony in the case, also see the decision in the case of Estes vs. Antrobus 1st vol.

, , . ,. ,, ... 1. I lie circuit court erred, m overruling the motion m arrest of judgment, for the following reaspns. The merit counts upon two distinct offences, with different pun ishnients, the judgment and finding of the jury arc general, this is a misjoinder and therefore erroneous. 2. The circuit court erred in overruling the motion for a new trial, because the evidence does not maintain the indictment.

1st. That all the property acquired by an infant by his own labor while living with, and under the care, custody, and control of his father belongs to his father. 2 Kent’s Com. 193. Reev’s domestic relation 290. Gale vs. Panote 1 N. II. Rep. 28. Bigelow’s Digest 553. Benson vs. Ren-nigton 2 Mass. Rep. 113. Nightingale vs. Withington 14 Mass. Rep. 272. 1 Black. Com. 453. • 2nd.

1. That the doctrine of amendment does not apply to, or mean the introduction of a new substantive defence. But only to new mould or put into proper form the defence first relied on, and the plea here filed was a new substantive defence. Rev, Code 458 sec S. Do. do. 467, sec. 1-2. 5 Coweii 37. 18 John Rep. 310. 17 do 3. 2 Wendell 259. 1 Wendell 126. 2.

1st. The indictment is insufficient, and no lawful judgment can be given upon it. I he circuit court erred in refusing to arrest judgment. 1st. Chitty pi. 187. King vs. T. Mason. 1 D. east 268. Supra 582; 'Hamuel vs. State. 5 Mo. Rep. 260. 2d. To vend clocks manufactured in the state, was not a violation of the law. L. M. 428, sec 1, L. 1838, page 92. 3d. The circuit court erred in refusing a new trial. 4th.

Authorities cited:' Revised Code of 1835, page 487, 'sect, 19,-and page 488 sections 26,27, 28.. , . t n • i , , ,, 1. Can this court legally consider the case at all as now presented here there never having been anyfinal judgment or conclusive disposition of the cas.e in the court below?1 2. Did the circuit court err in overruling the several tions of the defendant? 1 3. Did the court err in sustaining the motion of the State to remand the papers to the clerk of St!

1st. That the remedy by petition in debt, is onlysumma-rP w^ere the service of process has been personal, 2nd. That when the service of the writ has not been on defendant in person, the general practice gives the rule, and the second term is the trial term. 3rd. The general practice is the common law of the land, and the exception will not be extended beyond the letter of the law creating it. 1 Kent Coin. 433. 1.

1st. That Maison was-a competent witness, and that the court erred in refusing the defendant Campbell leave to use him as such on the trial of the cause. .See 15th Johnson’s Rep. 223, Condruson vs. V-anslyck. 14 John 122. Phil. Ev. 61. 2nd.

To reverse the judgment of the circuit court, the plaintiff will insist upon the following points. 1st. That the line-running from the half mile corners established by the United States surveyor, was the true boundary between the lands of the plaintiff and defendant. 2nd.

<p>Under the provisions of the 1st sect, of the act o'f Jan’y 28th 1839 (Laws of Mo. session 1838-9.) relating to forcible entry and detainer, the proceedings may be removed^ to the circuit court by certiorari, at any time before the day appointed by the justice for the hearing of the cause, whether that day be the one named in the summons, or a day to which the trial is adjourned.</p> <p>Under Uio 1 he'"nit”socu <jf tho act of IH3ÍÍ (Laws of ting to ford-data.!ner üvf proceedings mu y bo romo-, vod to tho cir-euit court by certiorari, at any time boa'ppointod^y thejusticefor the hearing of tho causo, day°bo°thoin't one named in which the tri^is adjourn-</p>

1st, The inquest of the jury is defective in not finding the state of facts with regard to the injury of the navigation °f tíie stream’ and whether fish would be obstructed in their passage in the stream by the dam, as the Law and his writ required. 5 Littell 338. 1 Marsh, 535, do. 552. 2 Bibb 4. 2nd.

That the court erred in refusing to grant a new trial because, 1st. The testimony shows a plain case of excusable homicide, this covers the three first reasons assigned for a new trial. 2nd.

of Warren county. 1. That the court went behind the judgments of the Franklin circuit court, and enquired into the original merits of the claims thereby ascertained. 2. The court permitted the objector to give in evidence the «Indiana record, upon which the Franklin judgments were founded, and enquired into the legality and regularity thereof. 3.

1. Tresspass will not lie where there is an authority given to enter on the lands of the plaintiff’, and to cut and carry off timber until the defendant is satisfied. See 13th John-sons’ reports 414,1 p. 2. The permission given by plff. was general and unrestricted, and pl’ff. cannot recover in any form of action, much less trespass. 1. The court committed no error in refusing to instruct the jury to find as in case«of anon suit. 2.

1st. The verdict was contrary to the evidence in the cause. 2d. That the damages assessed by the jury were excessive. 3d. That the verdict was against law. Cites 2nd Cnitly’s pleadings, notes 75 and authorities cited' Starkl 275- 6 Taunt 322< 1 Marsh. 581. 4 Taunt 745. 2 Taunt. 150. Blk. Rept. 103. Starkie vol. 3, p. 1769. Pirtle dig. 222. 6 Monroe 612 to 615. Mar-f°r<l vs Martin &c. Pirtle 225 and 226. 2 Starkie Ev. 641. 2 J. J. Marshall, 593, 594, Dance vs. Boyd. 5th vol.

1st. From the evidence the verdict is wrong. 3 vol. Mo. Rep. page 464, Lightner vs. Mann. 2nd. The court misinstructed the jury. 1st. The jury was warranted in finding a verdict for plaintiff below on the evidence there given. 2nd. The court did right to íefuse a new trial, see 3rd vol. Mo. rep. 464, Lightner vs Mann. 1 vol. do. 14 Mc-Night vs. Brady and Wells. 4 vol. do. 295, Oldham vs Henderson. Hardwich vs Holmes decided at Oct. term of this court 1839, at Palmyra.

1st. I submit that the 4th ground of the motion, presented good cause for a new trial, and that the refusal was an improper exercise of the discretion of the court. 2d. Independent of this ground the verdict was wrong 3d. The issues are not found by -the verdict; the set off is not noticed, and the error is fatal. See Rogers vs. Pratt decided by this court from which this cause is not distinguishable, also Leak vs. Elliott, and Jones vs. Snedegar adm’r, 3 vol.

1st. The action was well brought on the writing sued on; covenant lies on it. 1 Chitty’s PI. 131, 2 and 3. 2nd T. Com. 120. 1 Bibb 383. 2 Jacob Law Die. 118. ' 2d. The breaches in each count of the declaration are well assigned, being in the words of the covenant. 1 Chitty PI. 408-9. Ib. 365. 2 Tuck. Com. 125. 4 Mo.

2 Kent’s Com. 560. Mo. Digest sec. 5, 640. 3 Chittty’.s g-en’l prae., page 916, sec. 21. 1st The jury was warranted from the evidence to fin4' the. verdict for. plaintiff below. 2nd. The court gave no wrong instructions for plaintiff. 3rd. The court refused no proper instructions asked by .the defendant. ' 4th. The court did right to refuse a new trial: see 2nd Kent Com. 295. 1 Bla. Corn. 431. Si.ii Johnson’s Rep. •421. 3d vol. Mo.

<p>Relies on 'the following authorities: Revised Statutes, page 208; also, page 484. Thou shalt not commit adultery, Moses’ 7th commandment.</p>

1st. The instrument sued on is not a negotiable note, under ouy law, for lack of the words negotiable and payable.. 2nd. Kit be a negotiable instrument, then the defendant;; could not be made liable in the summary mode of declaring by petition in debt, but only as in the case of a bill of exchange. 3rd.

1st. That the court refused a change of venue. 2nd. That the court erred in over ruling the exceptions of the defendants to the answer of the plaintiff, to the defendants bill of discovery. 3rd. That the court permitted the plaintiff' to read his answer to the defts. bill of discovery, after he had closed his case, and against the consent of the defendants. 1 Rand. 1S2 and 187. 4th. That the court misinstructod the jury. 5th.

. A deed of mortgage with power to sell, legally enables the mortgagee to sell on failure of the mortgagor to pay the debt secured, and that such sale rests in tho purchaser a valid title. 1 Pow. on mort. — 18 Vesy 344' — 2 Cruise 105. sec. 43 and 44. 27 Eng. Com. L. Rep, 268. 1st. That under our law a mortgage with a power of sals ia mortgagee is void. — 2nd. That the only method of obtain- ^ t0 mortgaged premises is, with us, by a sale under a petition for foreclosure.

1st. The declaration no where avers that there was an undertaking or promise, either express or implied, by the defendant to the plaintiff; the declaration was, therefore, bad, and the judgment should have been arrested: seel Ghitty 329 and note. 2 Call 39. 3 Mum. 566. 2 Wash. 187. 2 Tucker 145. 2nd.

Charles county. 1. That according to the evidence and the law of the case as preserved on the record, the jury should have found for the plaintiff, and probably would have done so if the case had been left to them without any erroneous instruction of the court. 2.

Louis county. 1. That the assignment is void on its own face, because it imposes the condition of pxecu.ting a release by the plaintiff and by creditors in like condition, before they can take any interest in the trust fund: 5 Ohio Reports 293. 11 Wendall 1ST. Mr. Justice Story in 4 Mason’s Reports 206 sustains $n assignment with this clause requiring a release upon what he considérs the- then weight of authority.

Louis county. 1. There is no fraud in fact proved; this will be apparent from an inspection of the record, &c. 2. The deed is a valid one. 1. It was a sufficient deed to pass the partnership effects, Collyer on partnership 4-24-5, and 492-3, as to all partners suing and being sued where there is a dormant partner. Angelí on assignments 49, 50 &c. 1 Paige’s Ch’y. Rep. 517. 4 McCord’s Rep. 519. 4 Wash. Rep. 232. 4 Day’s Rep. 428. 5 Cranch Rep. 300. — ■ 2.

The- first error assigned is- general. • The second erroir assigned is the circuit court’s giving-judgment, as by default, for. want of a plea, whilst a motion, to quash writ was pending and undetermined, need not be-farther noticed than, by saying, that altho’ the circuit court does not consider a motion, as equivalent to a plea for the-purpose of staying proceedings until such motion be decided,, it is presumable that such doctrine will, scarcely be affirmed,, or deemed a…

Louis county. The contract in this case being expressly to payy^e 7y,qngy $7id return the slave, the obligor must perform his contact. Shitty on contracts 273. Qomyn on landlord and tenfuit ,113. ' ’ ' ' ‘ It is insisted on part of def’t. in error, that the demurrers were rightly overruled. Wheeler’s law of slavery pages 152-3-4-5-9. Story on Bailments 225-250-9, 274. Boyce vs. Anderson 2 Peters Rep. 150. Chitty on con. 273. Story on Bail. 265, 263,269,273.

■Error to the circuit court of St. Charles county. 1. The plaintiff -here 'insist; that the court erred in instructing ■ the jury on the evidence before then, that said kieed‘-passed no title 'to plaintiff, and the covenants in it did mot dtop the 'defendant from maintaining his action. 2 The court also erred in rejecting the evidence offered by'defendant below. Revised Code of Missouri page 745, -sections SI, -32, 33. 1.

I contend that the court committed error in refusing tho instructions. The second instruction supposes a state of feels, if possible, still slronger against the plaintiffs, for it supposes the s il Tous ant Lebeau to hare been the only person who so inhabited, cultivated, and possessed, the premises in question, prior to the ‘20th December, 1803.

Louis Circuit Court. 1. The court erred in refusing the plaintiff’s instructions. 2. The instructions given by the court were erroneous, for the reasons already stated demand and notice were not requisite under the statute, nor the declaration. 3. The court erred in overruling the plaintiff’s motion for o new trial. The instructions refused should have been given, those given, being opposite in their character, as a consequence. should have been refused.

1. The court instructed the jury wrong. 2. The court refused to give proper instructions asked by appellant. 3. The court erred in taking testimony as to the rent, and and in giving judgment therefor. 4. The court erred in.-refusing to grant a new trial. Rev. code, 277, 376. Act of Assembly of February 6, 1837, supplementary to “an act- concerning forcible entries and detainers.” Rev. eo'de page 280, section 18.

Louis county. 1. We rely upon the 4th section of the act to amend the practice acts, approved February 13, 1839, which provides, indiscriminately, and in emphatic and comprehensive terms, that all -actions on bonds, bills, or notes, shall be tried at the return term, if there have been twenty days personal sendee. Practice act, article 3, seo. 1, R. 0. 457. 2. The amendment must operate, at least as such, or it is '& repeal of the petition and summons law.

Louis county. That the said second plea -of'defended t-is good in law, and the demurx-erthereto ought to have 'been overruled by the'.court below. Perkins vs. Parker,' 1 Mass.-.Rep. 117. Ste-. vens vs. .Gaylord, 11 do. 265/ Hull vs; Blake,-13 do. 153. Foster vs/Jones, 15 dd. 185.

1. This action was well brought in the name of the payee, as nominal plaintiff, to the use of F. D. Ortley. Waggoner vs. Colvin, (11 Wendell 29.) 15 Johns. 247; 20 ib. 367; and 7 Cowen 176. 7 Greenleaf 28. 9 Mass. 423. 3 Greenleaf 73. 15 Mass. 534. 2 Breeze 227. 3.

Louis circuit court. 1. By the sixth section of the supplement, it is provided, that in all suits of this kind, the court shall be governed by its ordinary rules of practice. 2.

Louis Circuit Court. The only question for the adjudication of this court is, as to the. liability of the defendants, under the assignment of the note by their intestate to the plaintiff: And, the decision of that question, must depend upon the construction to be-given to the statute upon the subject of “assignments,” passed Feb’y Ilth 1825.

Louis county. On the reasons assigned on behalf of the garnishees in support of their motion, the plaintiff shows: 1. The record shows there was such a corporation, and the law recognizes it, Rev. Code of 1825, p. 164,175. Its existence continued under the law till 1st February, 1838. id. 174, secs. 18, 30, 16. Angel and Ames on corporations, p. 406, 510. 2.

I. That the act concerning petit jurors, which was read in evidence, is the only authority for summoning petit jurors in the circuit court in St. Louis county. y. That the failure of the county court to execute that act, does not suspend its operation, and subject the citizens of the county to the discretion of the circuit court. 3.

Louis County. It is contended by the appellants counsel, that the court below erred, first, in not sustaining the plaintiffs demurrer „ to the defendants first plea. Second. In over ruling the plaintiffs demurrer, on the ground of the defectiveness of the complaint of the plaintiff's. 1 Chit. Plead. 552 side paging. 1 Chit. pi. 362. 1 Saund. 33 a note 2. I Chit, plead. 363 side paging and 2 New. Rep. 355.' Gould’s pleading, page 176, chap. 4, sect. 15.

The circuit court, in this case-, committed error in this, to wit: First, that the plaintiff’s complaint is ip pursuance of the statute authorizing such proceedings against boats and vessels. Missouri digest, page 103, 3d. That upon the first discovery of the loss of the goods, the owner thereof insured had a right to abandon to the insurer, the plaintiffs in error, and did so abandon. See Hughes on Insurance, pages at top 334 and 335. Also 3d vol.

Louis county. 1st, Presentment was necessary, in this case, to charge the defendant Moore as endorser. Chitty on bills, 262,402. 2nd. Protest of a promissory note, or inland bill of exchange, is altogether superrogatory and is not evidence of the facts stated in it. Chitty on bills 218. 6 Wheaton 146, 572. 8 Wheaton 326. But two isolated questions arise, to wit: Was the protest of the notary evidence of demand? Was a demand necessary ?

Louis county. By the record and assignment of errors in this case, these-two questions are presented for the consideration of this court *St’ c0'mP^a^nt against the boat defective or insufficient, either in form or substance 1 2nd.-Did the court .err in rescinding its order-granting Ieave to the plaintiff to amend; or in other words, can a complaint under the statute against a steam boat be amended? 1st. By the statute authorising proceedings against steam boats, it is…

Louis Circuit Court. L We are not too late for this application, (2 voh Mo. TL. 329.) Nor is the plaintiff estopped from denying the legality of the proceedings before the justice, by having j aid the amount of judgment. 6 Cowen 300. 10 Wendell 351. 2. The proceedings before the justice were whi lly irregular, null and void. R. C. 84, sec. 3. R. 0. 86, sec. 17. 1 Pet. U. S'. C. C. Reports 30, 36 10 Wheat. 192. 2 Crunch 445. 2 Mass. 213. 5 Han. and Johns. 130.

Louis comity. 1. A demurrer connot be amended. It Í3 believed there is but one instance on record, in which it was ever attempted. Maynard vs. Ho¡ kins, Say 46. This is manifest upon principle. The party cannot thus be permitted to chango under or depart from the grounds of demurrer as originally taken. An improper grant of oyer does not affect a case in which it is granted. Wright’s Reports 10.

<p>1. In criminal trials the State may challenge, peremptorily, three jurors.</p> <p>2. Indictment for murder: tho jury having retired to consider of their verdict, returned into court, and asked the court whether, on an indictment for murder, they could find the defendant guilty of manslaughter only? Tho court told tho jury, that they were the judges of the law and the facts: that they mightfind their verdict as they pleased, and that when the verdict should he rendered the court would decide upon its validity: Held, to amount to an instruction, and that having been given orally, the judgment must, under tho provisions of the act of Feb, 13,1839, (Laws of Mo. session 1838-9, p. 27,) be reversed.</p> <p>3. Tho court adhere to their former decision, viz: that on an indictment for murder, the defendant may be convicted of manslaughter.</p> <p>In crisaioat trials tbs state may challenge, peremptorily three jurors.</p> <p>Indictment for murder, Ting^retr *ia" red to con-eider of their verdict, returned into court, and asked the ^^oñ^an'ln" dictment^for could find the defendant guilty of manslaughter on-■lyt The com t told the jury, that they 'were the jud•ges of the law and the facts: that they might iind their verdict, as they plea end, and that wk/’n the verdict t'hvU-O tC reni^ere^ the court would decide upon :ts validity: Held, to am’t having been thVjudgment must> under the provision» the act of session 1838-revfrsel^ be</p> <p>adhere to°Urt their former 0n an iñdict-Ifent f°r m“r-dor, the de-may</p>

1st. That a partial as well as a total failure of consideration is a defence in an action on a note for the purchase money of an article sold — to defeat the recovery in whole or in part. 2nd Kent Com. 473-4, third edition. 8, Cowen 31. 8 J. R. 452. 14 J. R. 377. 9 J. R. 232. 15 J. R. 230. 6 Pickering Rep. 427. Fegan vs. Meredith 4th Mo. Rep. 514. 2nd.

AppeaLfrom Howard Circuit, Court. It.is contended in-, behalf of the prisoner, that a new trial-should have been granted, (after setting aside the verdict of the jury) by the circuit court, for divers reasons: The first of which is, that no copy of the indictment, was furnished the-prisoner or his counsel, before the trial in the circuit; court; see Rev. Statute, page 485, sec. It is not a waiver of any of the legal lights of the prisoner,, that-he went to trial without…

1st. That the Court erro;] in refusing to permit the defendant to cross-examine Childs, as he proposed to do after he had been sworn in chief by the plaintiff, 4. Wendell’s Rep. 369, Jackson on the demise of Lowell vs Parkhunt, see 1. Phillip’s E. 228, old edition, 273-4, Cowan’s Edi. 2. Wendell 166, same book 583, 5, Mass. 334-5-6, 11, Dicking 273-4. 2nd.

1st. T/io proceeding in tho name of Wilson ought to have been dismissed, because it was commenced and carried on ■without his authority, knowled j;e or consent. M’Alexander vs Wright 3, Monroo Rep. 189. Robison vs Eaton, 1. term Rep. 62, opinion of justice I'an-Ness in Denton vs Noyes. C. John, Rep. 306 and cases there cited. 2nd. Alison ought not to have been excluded as a witness Parker vs M’William 19, Eng. Com. L. R. 204. Bea-mon vs Ellice 19, Eng. Com. and R..Cond. 538.

1. That they may impeach the consideration of this bond either in the whole or in part, and that, by parole testimony, see revised Statutes p. 359-60, section 7. 2nd. That the justice having bylaw,chanceryjurisdiction, the circuit court, on appeal, had the same, and should have decided the case upon the principles of chancery adjudications, and if so, the law is clear and well settled see Sugden «on Vendors, 382, 3, and (note 200) in points.

1st. That the Circuit Court erred in suppressing the deposition of Samuel Williams taken by defendants on the 18th of February 1840, and filed in this cause, sec. 1. Philip’s Ev. 226. 2, Cains Rep. 131, Steinback vs Columbia Insurance Company. 1. Stark 2. part 127-8-9. 2. That the court erred in refusing defendants a continuance of the cause for the want of the evidence of said Williams contained in the deposition. 3rd.

It is insisted that the plaintifi was entitled to a judgment for costs of suit upon the finding of the jury, and the judgment of court thereon. Stat. of Mo., costs 129 page, § 13. page 348, § 2 and 4. I contend that the costs were rightly adjudged in favor of defendant. Digest 348, sec. 2, 3, 4.

1. The court erred in giving to the jury the instructions asked for by plaintiff. 2. The court erred in refusing to give all the instructions prayed for by defendant. 1 Marshall 600. 1 Pirtle’s digest 458. sec. 6, title fraud. 3. The court erred in refusing to set aside the verdict and grant a new trial.

The first ground upon which a new trial was asked and refused by the court was, “That the court erred in permii-ing the State to introduce new testimony, after the testimony on both sides had been closed.” Decisions of Supreme Court, 1st semi-annual part, I83S. Mary (a slave) v. The State, page 71. Hamnel v. State, 2 semi-annual part 1839, p. 260. The indictment is bad, both for uncertainty and duplicity..

1st. The indictment is not signed by the prosecuting attorney or any one for him. Snd. The indictment does not sufficiently describe the offence. 3rd. The court entered judgment for the fine without finding the defendant guilty of the charge. 1st point. See Rev. Statutes Mo., page 89, sec. 4, title “attornies at law,” also title “practice at law,” page 458, sec. 6. 1st Chitty crin, law 335, side page. 2nd point. See statute 209, sec. 30, crimes and punishments. 3rd point.

First. By the 5th section of the act “costs” Rev. Stat. 128, all plaintiffs recovering judgment are entitled to costs as incident to such recovery. Second. This general right is limited by sections 13 and 14, of the same act in the two following classes only. 1. By section 14, if the suit be properly cognizable before a justice of the peace, costs shall be adjudged against the plaintiff. 2.

. 1. That the pleas are affirmative to avoid the patent and. consideration of the note ab initio.. 2. That he must prove every fact necessary, and produce the patent. 1. That the burthen of proving the existence of a patent for the Truss mentioned in the pleadings, devolved upon the plaintiff, and having failed to give or offer any, the non suit was proper. See 3 Phil, on evidence, 490, apothecary’s company v. Bently. Ky and Mood N. P. 159. 1 John. 513. 1 Starlue 322, 3, 4.

1. That one partner who is the active partner, may assign all the goods to pay debts. 2. The more especially, as the other partner is non-resident. 3. That the letter of instruction to make the deed is sufficient authority for the execution of the deed; and makes it the deed of both partners. 4. The deed of ratification subsequently made, relates back to the execution of the deed, and makes it the deed of bothab initio. 5.

Louis, May Term, 1840. That the indictment should contain in itself every thing necessary to enable the party indicted to make a full defence, without intendment, implication, or reference. It is the right of such party to plead to the jurisdiction of the court. The indictment in this case, does not inform the party as to the court in which it is found, and is therefore defective, and the defect fatal.

Horror from the St. Louis Circuit Court. 1st. That so far from any assent or understanding between the plaintiff and defendant being necessary to have been shown, neither the assent should have been exhibited, nor the understanding had, if the law be obeyed. 3. Story’s comm, on const. 665-27 sect, of the 3rd art. of const. of Mo. 9th sect, bill of rights Mo. 6 art. amdt. of constitution 105. 2.

Louis Circuit Court. 1. The first error assigned Is the court giving judgment for the defendant. Yol. I Land laws U. States, page 620. Janis vs. Gurno, 4 vol. Mo. Rep. 458. 2. A transcript of testimony taken.before Theodore Hunt, as recorder of land titles, was then offered to be read in evidence, which was refused by the court. This we believe also to be error. Act of 26th June, 1824. 3.

That the defendant is estopped by his own hand and seal from setting up as a defence, the matters contained in the 3rd, 4th, 5th, and 6th pleas. Demurrer was properly used in this case. 1 Cbitty pi. 634. That the estoppel here arises by the deed sued on. Co. Litt. 352 a. That defendant is estopped from denying that the requirements of the statute in relation to the sale of the common have been fulfilled.

Louis Circuit Court. 1. The promise of the defendant was not original, but collateral to pay on the default of Sefion, and within the statute of frauds, Matson v Wharan 2 T. R. 8Q_, Burkmyre v D arnal 1 Salk, 27, Anderson v Hayman 1 H. Bl. 120, Jones v Cooper. Cowp. 22?, Chase v Day, 17, Johns R. 114, Fell on guarantee p. 31, Leonard v Vredenburg 8, John, 11.29. 2.

It is submitted that the motion for a new trial was erroneously refused. 1st. The weight of testimony as preserved on the record is decidedly in favor of the verdict of the jury. 2.

The record appears to be correct, and it is difficult for me to see what points arise in the case. There can be none, save the over-ruling the demurrer, and that will appear to have been properly decided by the circuit court. 5 vol. Mo. decisions, Hamilton adm’r of Rundlett vs. Stewart, p. 266.

Louis county. The circuit court erred in this cause in overruling the demurrer filed herein. See 4 Bibb Rep., the case of Wright vs. Coleman page 252 and 253: also 7th Monroe’s Rep’ts, Townsend vs. Burgher, pages 224 and 225, and particularly at the bottom of page 225; also, 6th Monroe’s Kentucky Reports page 335, and 1st Bibb’s page 252, and the statute of Kentucky upon which those decisions are founded, 2nd volume of their digest page 319. 2.

Louis county. The plaintiff here insists that his declaration is good, and that judgment below should be reversed and final judgment given here for plff. '^ie declaration alleges no 'presentation of the warrants at the Treasury for payment. Murray v Judah, C. Corren 490,. Mohawk Bank v Broderick in 10 Wendell’s R. 306, Bayley on Bills p. 219.

Louis Circuit Court, 1st. The circuit court did not err in opening the judgment of the county court and granting a new trial. Rev. Code 63, and particularly sec. 8. 2d. The circuit court erred in deciding that the first judgment in the' county court was no.t. a bar to the second suit.

Charles circuit court. 1st point. An instrument of writing, such as the one on which this suit is brought, under our statute may be legally assigned, so that the suit should be brought in the assignee’s name. 2nd. An instrument of writing, such as the one now sued upon, may be surrendered by words without writing. 3rd. Yerbal testimony is competent to prove a surrender of such a lease as that now in controversy. 4th.

Charles circuit court. 1. That the title under the inhabitants of St. Charles is the better title. Arredondas case, 6th Peter,s Rep. 727 &c. 10 Martin’s Rep. 416, Baldwin v. Stafford. Act of 13th June 1812, and letters of Clement B. Penrose and Thomas P. Riddick, 2d vol. U. S. State papers, pages 446-7-8 & 9. 2. If this is not the case, the plaintiff’s title under Giguare is better than that of the defendant under Piper.

Louis Circuit Court. 1st. The jury having found for the appellee on the 4th plea, when there was no rejoinder and no proof either of a demand of rents, the judgment is erroneous and should be reversed. 2d. The instructions given by the court below are wrong. ■2 Stark. Ev. 568. 4 Hen. and Mun. 440. 3d. The instructions asked for by the defendant below ought to have been given. 4th. The verdict was excessive. 3 Cranch 298. 3 Wheat 200. 6 Wheat. 209.

Louis County. Plaintiff contends that the complaint is good, and that the demurrer to the pleas should have been sustained, and a reversal of the judgment of the circuit court is therefore sought here. The 4, section of the act of 1835 concerning boats and vessels, 6. Bac. abr. pleas and pleading, (B.) p. 186. Is the 'complaint good under the Statute1?

Louis circuit court. 1st. Plaintiff insists that demurrer admits -every fact stated in the complaint which is sufficient to entitle the plaintiff to recover. 2nd. That any boat found in the waters of the State is liable to be sued for supplies furnished it for the last six months wherever the contract may have been made or the supplies furnished. 3rd.

Louis Circuit Court. The plaintiff insists that the complaint is good, and that judgment should be reversed and judgment for plaintiff. The only point to be considered is whether the complaint is good under the statute? The complaint has been verified by affidavit, such as it is. But no essential requisite of the statute has been sworn to by the affiant. 3 Call 416; 1 Wash. 74; 2d H. and M. 315, also 48; sec. 1 R. C. 102; sec. 4 R. C. 103; sec. 21,104; sec. 4,103.

Louis county. 1st. That the cause of action sued on by the appellees, was not a lien upon the boat under the statute, acts of assembly of 1838-9 p. 12; Abbot on shipping 104, 107; 3 Kent’s Com. 132-3. 2nd. That if it was a lien, yet the lien was divested by the proceedings and sale upon the justice’s judgment, 2, bac. abr. 721. 4, east 345. But two questions arise here: Is this a lien within the act ? If it be, did George Collier purchase subject to it? R. Laws p. 102.

Louis Circuit Court. 1st. That the said circuit court gave judgment below it. favor of defendant in error, and against plaintiff in error whereas, by law, the said circuit court ought to have giver .judgment below in favor of plaintiff in error, and agains' defendant in error. 2d. That the said circuit court overruled plaintiff in er ror’s motion for a mandamus to issue to defendant in erro: commanding them to grant plaintiff in error an appeal whereas, by the law of the…

Plaintiff in error ave rs that the circuit court erred below in this cause, as will appear from the record, by giving plaintiff in error judgment v. defendant in error, whereas by law said circuit court ought to have given judgment for plaintiff in error and against defendants in error. Circuit Court erred m allowing defendants in error to amend. Circuit Court erred in overruling plain tiff in errors demurrer.

En or to the Circuit Court of Gasconade County. The following points are insisted on by the plaintiff in error. 1st. That where possession of a chattel remains with an insolvent, contrary to or not in accordance with the deed conveying it, is fraud per se as to creditors. Edwards vs Harbin 2 term Rep. 587; Hamilton vs. Russell, 1 cond. Rep. 318; Hodgson vs. Butts, 1 cond. Rep. 476. 2nd.

Genevieve Circuit Court. 1st. The circuit court erred in refusing to give instructions 1, 2, 6, 7, 8, 9, 10, as required by defendant, and in giving the instructions asked by plaintiff. 2nd.

1st. That the owners of the land cannot maintain the action of trespass unless the possession be vacant or he be himself in the actual possession. If there be a tenant in possession he, not the landlord, must bring the action. And it is immaterial whether the injury complained of be done to the possession or to the freehold, Campbell v Arnold 1 John Rep. 311 Welcham v Freeman 12 John Rep. 183. 2nd.

Did the circuit court err in overruling the defendants motion to compelí the State to elect which count of the two she would go to trial upon? 2nd. Did the circuit err in refusing to give the jury the 3rd instruction asked for by the defendant? 3d. is there error in overruling the defendants motion for a new trial? 4th. Did the court err in giving the jury further instructions when they came into court and made the request?

1st. That the plea purporting to be the joint pleas of the defendants not being an answer, or even purporting or professing to be an answer to any antecedent pleading, must of necessity be treated as a nullity, and can neither require a replication nor a demurrer. 2d. That if replications could be filed, they could only be filed during court, because the plea absolutely requires two replications, and two replications to one plea can only be filed by special leave of the…

Authorities cited—Digest 388 sec. 1-2-3, 4 do 370 sec. S, do 369 sec. 2. The reversal and dismission of the case by the circuit court, which it is insisted was correct, for the reason that the proceedings before the justice were a nullity, and the circuit court could not make them the basis of further proceedings in the cause in that court after the irregularity was shewn, all the court could do was to place the partiesen statu quo.

<p>Appeal from the Circuit Court of Washington County.-</p>

Francois Circuit Court. 1st. That the defendants having been tried convicted and fined with trial before the justice under the law giving to the magistrate jurisdiction in cases of breaches of the peace (see revised code 1835 page 372,) could not be indicted and again tried and punished for the same offence. State Constitution page 28, sec. 10, acts of 1835 page 214 sec. 15. 2nd.

Appeal in chancery from the Gasconade circuit court. 1st. That a party to a bill for specific performance may admit a verbal contract to convey and still insist upon the statute of frauds as a bar to the performance. Rowe vs Teed 15 Vis. C. R. 371. 2d. That the statute in this case presents a complete bar to the prayer of the bill for a specific performance, there be* ing no contract, other than verbal, between Truesdell and .

1st. That the court erred in permitting testimony to go to the jury respecting the number of times the fence had been thrown down, that not being a matter in issue. 2nd. That the court erred in permitting a witness to express his opinion on the comparative practicability of making a road down two different bluffs, the said witness not being an engineer. 3rd.

That a judgment on account filed under the law regulating builders liens, is only a lien from the time of its rendition, and is a general lien upon all the real estate of the defendant situate in the county when the judgment is rendered unless the plain tiff in the action issues a sci. fa. according to the provisions of the statute and thereby renders his lien specific as to the building and the five hundred square feet subject to the builders lien under the statute, Stat.…

1st. That the circuit court took the recognizance of bail without authority of law, and that the same is void. 2nd. That the absolute forfeiture of the recognizance of bail, entered on the first day of the term by which the bail were prevented from surrendering Millsap during the term, was a proceeding against law. 1.

• 1st. That the equitable title of Jones in the lots sold to Shaver, constituted a valuable consideration for the bond sued upon. Greenleaf vs Cook, 4th Cond. R. 7; 2 Peters 182 Story J.; Violet vs. Potter, 2 Cond. Rep. 214; Chitty on Contracts 5 to 8. 2nd.

The circuit court erred in excluding proper and competent evidence offered on behalf of the State. 2. The court erred in not permitting the evidence offered by the State to go to the jury as circumstantial evidence to sustain the indictment. 3. The court erred by giving instructions to the jury which the state of facts from the record did not warrant. As to the statutory provisions on this subject, (see Digest page 312, section 3; 4 Mo. Rep. 487.)

It is insisted that the offence as alleged in the information and summons, is not warranted by the statute, the first being conjunctive, the latter in the disjunctive. Act 1839, page 52, sec. 18. The offence proved is not punishable by the grocers law. 16 sec. 36 page 55.

<p>An appeal will not lie from the judgment of tho circuit court on an incidental matter, the suit being yet undetermined.</p> <p>An appeal will not lie from the judg ment of the circuit court on an incidental matter, the suit being yet undetermined,</p>

1. Is not this indictment good in form and substance? ■ 2. Did not the circuit court err in sustaining the motion of the defendant and in quashing the indictment? 3. The court erred in overruling the motion made on behalf of the State to permit a prosecutor to be endorsed upon said indictment, (before the defendants motion was decided,) if a prosecutor in such case should be considered necessary under the statute. Digest 202, sec. 6-7-8; 4 Blk.