Volume 7 — Missouri Reports

Louis Circuit Court. 1st. That judgment was rendered by the circuit court against the two defendants, Mylius & Bascom, although Mylius was not served with process and did not appear to the action. See 3 Blk. Com. 279 et seq. et passim. 2. That the finding of the jury is against the weight of evidence.

Louis Circuit Court. 1. That the court below ought to have admitted the deposition of Joseph Dowling to be read to the jury. 2 That the replications of the defendants in error to the pleas of the plaintiff in error, not having been filed for terms after the one at which they ought to have been put in, were irregularly filed, and judgment of nonpros to have been entered up against them. See Code of 1835, page 458, sect. 9; I Chits. PI. 257; Pugh v. Robinson, 1 T. R. 118.

Louis county. The error assigned is, that the court refused to set aside the judgment by default The decision of the court below was correct. 1st. Because the affidavit swears to no defence to the action. 2d. Because there was no diligence in making a defence. Lecompte & wife, vs. Wash, 5 Mo. Rep. 557. 3d. That the motion was not made in time, being after damages were assessed. Revised Code 460, sec. 31.

Charles Circuit Court. It will be contended on behalf of plaintiffs, that the court erred in instructing the jury that the claim of the inhabitants of the town of St. Louis was confirmed to the exclusion and extinction of the title of James Mackay. It will be contended that the court did not err in excluding the sheriff’s deed to Frederick Dent.

Charles Circuit Court. The jury found a verdict for defendant.

Louis county. The only question presented by the transcript in this cause is, can a justice of the peace entertain jurisdiction of a set-off against a municipal corporation ? The act regulating justices’ courts, Rev. L. L. p. 34S, 55, declares that no justice of the peace shall have cognizance of any action against a corporation.

Louis county. The appellant assigns for error, that the court should have granted a new trial for the following reasons : 1st. On the ground of surprise, and cites in support, 1 J. J. Mars. Rep. 319-20 ; 2 J. J. Mars. R. 515 ; 3 Taunton, 484; 4 Chit. Practice, 59,60; 7 Taunton, 309 ; 8 Taun-ton, 730; 1 Black R. 295-8. 2d. On the ground that the copy of the assignment was improperly rejected by the court.

Louis Circuit Court. The appellant maintains that the court below ought not to have overruled his motion to set aside the judgment rendered against him by the court below for want of a plea, and to grant him leave to plead issuably to the merits instanter» and relies on the following positions: 1. That the affidavit of the defendant below shows a good cause for setting the judgment aside. Stat. of Mo. p. 460, s. 31; I Tidd’s Practice, 507-8 : 3 Chit.

Louis Circuit Court. 1st. The statement of the evidence evinces that the ver» diet was against evidence, &c. 2d. It and the case of Austin, et al. v. Blue, lately decided in the supreme court, as to what is a negotiable note, and our statute, supports the other position taken on the 'new trial. And, 3d. If a negotiable note, the defence is still good.

Louis county. The plaintiff in error, Thurston, contends that the court below committed-error in overruling his motion for a new and in support of this position, makes the following points : ^st‘ jury found a verdict against the weight of evidence.

Louis Court of Common Pleas. The only question in this case is, whether an affidavit for an appeal from a justices’ court, can be legally made by any oilier person, than the one aggrieved; or in other words, can an affidavit for such an appeal be made by an agent?

Louis county, and thence transfered from the Court of Common Pleas. 1. A justice of the peace has no jurisdiction in cases of breaches of a by-law passed by a private corporation, unless the law incorporating the same, expressly confer such jurisdiction. 2. That if there were no original jurisdiction in the justice of the peace, neither the circuit or common pleas could obtain jurisdiction over the case by the appeal. 3.

Louis Circuit «Court. The counsel for the appellee insists that the co\u-t below committed no error in overruling the demurrer ancAv giving judgment for the plaintiff, and relies on the statute of this State as sufficient authority on this subject. See Revised Code, page 449 and 383.

<p>An acknowledgment of indebtedness, in writing, in a specific sum, and for a valuable consideration, raises a promise to pay, and is in law a note.</p> <p>ledgment'0^ indobtedness, m writing, in asPeFfiesum and for a valuable consideration, raises a promise to pay, and is in law a note.</p>

Louis Circuit Court. 1. That the circuit court erred in refusing to give the instructions asked by the counsel for the defendant, because it is clear from the testimony in the cause that there existed a tenancy : that the appellant was to all intents and purposes a tenant; that his tenancy had been recognised by William Dalmore, one of the appellees, by the acceptance of rents, and the doing of other acts which showed that Dalmore considered and treated Tiernan as a tenant.

Louis Circuit Court. The judge of said St. Louis circuit court erred in permitting the said appellees by their counsel to amend their declaration, and then gave judgment for them without continuing said cause at the said trial thereof, when said amendment was made.

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

Louis county. An appeal from a justice can only be entertained upon a final judgment in the cause. See article 8, sec. 1, and following, regulating Justices; Revised Code, 369. Upon an appeal granted from a justice, all the papers in the cause must be sent up, before the circuit court is possessed of the cause.

Louis Criminal Court. 1st. That the stealing of goods at different times, of the value of 4d, 6d, and 3d, was punishable at common law as grand larceny. 1 Hawk. Pc. ch. 33, sec. 33. That if this severity was seldom practiced, it was because of the rigor of such proceeding. Ibid. That consolidation was a favorite principle of common law, both in civil and criminal cases, and that in the latter it was always adhered to, when unopposed by considerations of humanity.

<p>1. The error of law alluded to in the second section of the act regulating “Practice at Law,” (R. C. 1835, p. 470) — on a motion for a second new trial — must be a misconception of the instructions of the court, or of the general law governing the case (where no instructions have been given,) or an entire disregard of such instructions, which must be inferred from by a comparison of the verdict with the facts in evidence.</p> <p>2. But where there is conflicting testimony submitted to the jury, and the facts found are supported by the testimony, there is no ground for supposing a misapprehension or perversion of the law, and consequently no ground for a second new trial.</p> <p>The error law alluded see.'of the act regulating Law,”1(R. 1835, p. 470,) —on amotion for a second mustheTmis'-conccption of tionsofthe court, or of governing the n^nstrue°re tions have such^fnstruc ilous, which ferredfromby a comparison withthe in evidence.</p> <p>there is con-mony ted to the iaets found10 are supported by the testimony, there fo^supposing a misappre-perversion of the law, and consequently no ground for trial°°nd n°W</p>

<p>Where the issues are submitted to the court, and its verdict is against the evidence, the judgment will be reversed.</p> <p>mitted to the verdict is a-gamst the jndgmentwill be reversed.</p>

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

Louis Circuit Court. The appellant insists that the judgment is erroneous, for the reasons assigned in arrest of judgment. 1st. The instrument of writing sued upon, as described in the declaration, does not impart a consideration. 2d. The instrument as described in the declaration, is but a written agreement, and a consideration must be averred and proved in order to sustain an action upon it. 3d. The declaration is insufficient, in that it alleges no promises by the…

1st. Leave to file three rejoinders to the plaintiff's third replication was properly refused, because: First, The defendant did not show that it was necessary to the attainment of justice, that such leave should be granted. Rev. Stat. Mo., “ Practice at Law,” 3d art. sec. 30.

For the reversal of the judgment, the counsel for the appellants will insist in argument upon the following points and authorities: 1st. In order to give validity to a bond or other deed, there must be a delivery and acceptance thereof. 2d. This is a statute bond, and the acceptance thereof can only be in the mode prescribed by the statute ; and if there be no such acceptance, the bond is void. 3d. The statute concerning constables, requires bonds of this description, when…

The counsel for appellant will insist, that the circuit court erred in the decree rendered in this cause, and that said court should have made a decree against said Smith for the payment of complainants debt against Crowther. 1st. The statute of frauds requires every declaration or creation of trust of any lands, tenements, &c., to be reduced to writing, and signed by the party declaring such trust, except resulting trusts, and trusts by implication of law.

The only question in this case is, whether the court erred in sustaining the demurrer? To show that the court erred, the counsel for the appellants refer to the following authorities: .1 Kent.

That where there is a contract to perform labor for apecified length of time, or do a particular act, and the party undertaking to do the act or perform the labor is prevented from doing so by the party employing him, he may sue and recover the full amount of the contract. 3 Mo. Rep, 230; 4 Mo.

Error from the Cooper Circuit Court. 1st. That the court erred in rejecting the original grant as incompetent evidence to go to the jury. 2d. The notice of claim to the land mentioned in the concession-j and the proceedings had before the board of commissioners, commencing with the notice of claim and ending with a confirmation of the claim, was competent proof to go to the jury, and the court erred in rejecting it. 1 Missouri R. 777; 4 M. R. 450; act of congress “for the…

. Appeal from the Boon Circuit Court. 1st. That Jamison brought the lot into market by showing it to the sheriff as Donohoe’s. He induced the sale, and consequently the purchase by the complainant, and cannot now defeat his title. See Fonblanque’s Equity; 3 Littel, 55; Springle & Bobb’s heirs v. Morrison, 351; Harrison & Gray v. Edwards, 4 Monroe, 196; 2 Starlries’ R. 841; 1 J. C. C., 354; J. J. Marshall, 36; 3 Monroe, 515 ; 1 J. J. Marshall, 216 ; 5 Monroe, 437.

The only point in the case is, whether an improvement on public lands is subject to execution? We contend that it is, and cite Laws of Mo. 260, sec. 17: 262, sec. 59; 281, sec. 28, and 2 B. Com. 196-280. sec. 25. 1st. That the property sold under execution was not sub» ject to the sale, and therefore the plaintiff by the purchase obtained no right thereto. 2d. That if it were subject to sale, the record preserved was not proper for'the recovery of it.

1st. The court erred in not instructing the jury to discharge the items of the account, not proven by him in the examination in chief. 2d. The court erred in permitting the plaintiff to prove the value of any work, without proving that the plaintiff had done the work. 3d. The court erred in permitting .the plaintiff as rebutting evidence to prove in chief his cause of action. 4th.

1st. We rely that the deed of trust was a valid executed J deed, and inhibited by none of the principles settled m the numerous decisions made on deeds of assignment by this court.

1st. That the court erred in permitting the note sued on to be read to the jury upon the proof adduced by plaintiff of its execution. 2d. That the court erred in giving to the jury the instructions prayed for by plaintiff. Sd. The court erred in not giving to the jury the instructions'asked for by defendant. 4th. The court erred in overruling the motion for a new trial. 1st. As to third persons, a partnership continues until proper notice of its dissolution is given.

1st. That upon the proofs in the cause the chancellor, upon the receision of the contract, ought to have given complainants interest upon the money paid, down to the time of pronouncing Of the decree, from the time it was paid. 2d. That the decree should have given the costs of the proceedings at law and in chancery to complainants, and that the court erred in overruling the motion for a new hearing as prayed for.

1st. The court erred in admitting Duncan, the grantor in , , r , the deed, to testily; he was interested in increasing the remaining funds after paying Arnold’s debt, which were to revert to himself. 2d. The deed of trust was void in law, and gave no title to Williams, the plaintiff: first, because it was covenanted, and the property did remain in the grantor’s possession after executing the deed. 3d. The deed was fraudulent and void, in fact, because the grantor used the…

Error from the Circuit Court of Cole county. 1st. The court erred in not sustaining the defendant’s motion to quash the original writ. 2d. The court erred in not permitting the defendant to prove that the matter of difference involved in the suit had been decided and settled by the arbitrators selected by the parties, as proposed to be proved by defendant. 3d. The court erred in refusing to give the several instructions to the jury as asked for by defendant. 4th.

<p>1st. The court below erred in overruling the motion of the plaintiff to treble the damages found by the jury.</p>

1st. The mortgage from decedent to defendant was void in law: First, The mortgagor was largely indebted at the time of its execution. Second, The property remained with mortgagor, and never followed the deed. Third, It contained a disposition of all his property to one creditor. Fourth, The defendant’s debt was fictitious, and not real.

1st. The court erred in giving the instructions asked by the plaintiff, for the following reasons, upon the supposition of facts contained in the plaintiff’s instructions, the jury are… Held: because at the same time a right was vested in the defendant, that a right was vested in the plaintiff. But he cannot so hold, because, First, He was not the owner of the improvements, and consequently, not holding in his own right, during the four months next preceding June 22d, 1838.

1st. That there was no judgment in one of the cases in the transcript of judgment offered. It contains a statement of debt and interest and costs ; and the entry is “the defendant appeared and acknowledged that the above is just.” 2d. The transcripts show no written confession of judgment signed by the party, and is void by statute. See Digest. 3d. The executions purporting to issue thereon, do not run in the name of the State, and are void.

1 st. An entry upon the possession of another (with or without title) without his consent, is in contemplation of law a forcible entry. 4 Bibb, 389, 426; 3 Marsh. 347. 2d. That from the evidence in this case, the plaintiff, Kin-caid, had such possession of the land mentioned in the complaint, as would entitle him to maintain the action of forcible entry and detainer, and that the court erred in refusing him a new trial. 3d. That the possession of land is not limited, in…

The instructions as given by the court, below assume the ground that the proceedings by forcible entry and detainer, cannot be sustained to recover the possession of unenclosed public land, and this seems to be the only point presented by the record, for the decision of this court. That forcible entry and detainer can be maintained in such case, see Revised Statutes ofAEo. page 281, sections 28 and 29, on that page.

The defendant below, and appellant in this court, contends that the court below erred: 1st. In granting permission to the plaintiffs to amend the writ of summons, by inserting the name of the third plaintiff therein, after the writ of summons had been set aside by the court. 2d. In ordering the defendant to plead at the return term, after such an amendment being made. 3d. In giving judgment upon the demurrer for the plaintiff instead of for the defendant. 1st. That the court…

The court erred in giving the instruction: 1st. Because the plaintiff had proved himself the owner of the property; that Wills took, and by the ''command of Chapman, sold it. Chapman commanded the trespass to be done, and therefore is liable, whether he bought the property or not. I Ch. PI. 181. 2d. The trial of the right of property the two last times was illegal. A verdict between the parties is conclusive as to that matter. Phil.

The first and second counts, it is believed, are defective; but it is contended that the third count is good ; if so, the court should have given judgment against the defendant. See 1st Chit. Cr. Law, page 205, and 522, side paging ; the People v. Curling, 1st John. Rep. 320. Authorities cited to sustain the indictment: Revised Statutes of Mo. 1835, sect. 7, p. 184, and sec. 21, p. 187; Chit. Cr. Law, 238-9, side paging; Hildebrand v. The State, 4th semi annual part, 5th vol.

1st. As the indictment against the defendant was for a felony, it was error to give a judgment against him for a misdemeanor. 2d. There was error in permitting evidence of two assaults to be given to the jury, when the defendant was only charged with one.

1st. That the general statement of the petition, that the plaintiff is the legal owner of a note against the defendants, Joseph Atkins and John A. White, &c., includes an averment, that Joseph Atkins and John A. White made the note by the name and description of “Atkins & White.” 2d. That if the averment in the petition was unnecessary, it can only be- regarded as surplusage, and may be rejected. 3d. That the action by petition in debt may be maintained on any note or…

1st. The circuit court erred, in refusing a continuance to defendant upon his motion therefor, after plaintiffs amendment. See Revised Statutes, p. 458, 3d art., 5th and 6th sections. 2d. That the party himself, or a licensed attorney alone, has a right to sign any pleading or proceeding.

1st. That the court erred in permitting the article of agreement to be read in evidence. 2d. That the court erred in overruling the motion of Grant, to set aside the finding of the court sitting as a jury, and grant a new trial. 3d. That the agreement was variant from the one set in the declaration.

It is believed that the only question worthy of the consideration of this court, is whether the court erred in permitting the confessions of the appellant to go to the jury. To show that the court committed no error, see 2d Starkie’s Evidence, page 2, and notes thereto; Arch. Or. Plea, page 116 & 117,

<p>Application for Mandamus to Auditor Public Accounts.</p>

The defendants contend that the court erred in sustaining the demurrer to their plea as aforesaid. See 1 Story Equ. 321 — 2; the People v. Janson, 7 J. R. 332, and Pain v. Pack-ford, 13 J. R. 174.

1st. That there is no judgment on the demurrer of the defendant in error, to the special pleas in bar of the plaintiffs in error, and that the issue in law remaining undisposed of, arising on that demurrer, it. was error in the circuit court to proceed to trial of the issue of fact on the third plea. Statutes State of Mo. page 462, sec. 1: 1st vol. Decisions of Sup. Court Mo. page 501, State of Missouri v. Gather and others.

1st. That the court erred in overruling the motion in arrest of judgment. 2d. The court erred in overruling the motion for a new trial. 3d. The court gave erroneous instructions.

Louis Circuit Court. The court below erred in admitting the deposition of Gall to be read; and, also, after it was admitted, in refusing to exclude so much of it as related to a note, stated by Call to have been negotiated by him to A. M. Rucker, and by Ruck* er transferred to the plaintiff. Hubby v. Brown & Nichols, 16 Johnson’s Rep. p. 70; Hartford Bank v. Barry, 17 Mass. R. p. 94; Mann v. Swan, 14 Johnson’s R. p. 269 ; Manning v. Wheatland, 10 Mass.

Louis county. 1st. The court erred in suffering improper evidence to be given to the jury, on the part of the appellees. 2d. In overruling appellant’s motion for a new trial for reasons filed.. Mo. Digest, p. 220, sections 6 and 7; Mo. Digest, p. 220 & 221; McLean administrator of Brock-man, v. Thorp, 4th vol. Mo. Decisions, p. 257; Mo. Digest, p. 221, sections 13 & 15; Mo.

Louis county. That the appellee cannot maintain petition in debt in this cause. See the act incorporating the Bank of the State of Missouri, sec. 29, p. 19, of the Board Acts of 1836 and 1837. Also, there is no assignment averred -in the petition in this case as required by law. See the act in the Digest of Mo.., page 449, giving the remedy by petition in debt of the instrument sued on, as the law requires.

The court of common pleas erred in overruling said motion for a new trial, for the reasons therein filed, because the jury found a verdict greatly against the weight of testimony, which motion ought to have prevailed. See page 361, section 16, Mo. Digest. 1st. That by the evidence it is clearly shown, that the charges nnd specifications contained in the bill of items are correct, and the customary charges made by physicians and surgeons for like services in St. Louis.

Louis Circuit Court. 1st. That the circuit court erred in permitting the depositions to bo read in evidence, because the defendant below had no notice of taking the same, as required by the statute. 2d. That the circuit court erred in permitting the plaintiff below to offer evidence to the court pending a motion made reject said depositions, as to the residence of the witnesses whose depositions were read, after the plaintiff had closed hiscase’ 3d. No evidence whatever was…

Louis county. The question is, as the plaintiffs made out their case, was the evidence offered by the defendants, sufficient to justify the court in giving a verdict and judgment for the defendants. The plaintiffs contend that it is not.

1. The law is settled that, where one partner signs the name of the firm, as makers, endorsers, or acceptors of a note or bill, without the knowledge or assent of the other parner, to discharge his individual debt, or for purposes not connected with the partnership business, and the payee or person receiving such note or bill, knows the circumstances tinder which it is given, the other partner is not liable, Foote v. Sabin, 19 Johns. Rep. 154; Dobbv. Halsey, Johns.

Louis Circuit Court. 1st. Did the court err in refusing the instruction to the jury asked by the appellants, upon the trial of the issue upon the plea in abatement ?

Louis county. The only question here is as to the validity of the plea,. ^ea s^ows au ainount °f us|iry that covers the whole' claimed, and avers the note void. The demurrer admits the usury, and so admitting avoids the note under the? statute- See R. C. page 333, sec. 4. 1st. That the record shows nothing to rebut the conclusion that evidence was given under the common counts, upon which the court below might properly have rendered the judgment it did.

<p>1. It is a general and well established principle of law, that in contracts, the timo of limitation depends on the law of the country in which the action is brought, and not on the law of the country where the contract is made. For although contracts are to be construed according to the laws of the country in which they are made, or according to the laws of that country, in reference to which they aré made, yet the remedy on them must be conformable to the laws of that county in which the remedy is sought.</p> <p>3. The saving of actions against persons out of the State in the 7th sect, of 2d art. of the statute of “Limitation,” (R. C. 1835, p. 394,) extends to foreigners, or those who have resided altogether out of the State, as well as to citrons of the State, who may be absent for a time. 'Whether the defendant he resident of this state, and occasionally absent, or whether he resides altogether out of the State, is not material. If the cause of action arises abroad, it is sufficient to save the statute from running in favor of the party to be charged, until he comes within this State.</p> <p>ral'and Sweli established principle of law, that in Ume^oThmi tation de-Uv^ofThe16 country in which the ac-tionisbrought the law of*thc country contract is made. For although contracts are to according'1*to the laws of in"^reference to which they are made, yet the remedy be try in which tlio remedy is sought.</p> <p>The saving ga¿°t'0pe3r.a' sons out of the msec, of gtdat¿te°ofth° ‘Limitation,’ j®" tends to for-thoseTwho1 of the State, the State, who foraa ’ fcndant be re-casionally ab-ther he^ *" sjde3 alt°»ethe State, is the^oauso of action a-savo £Ilc statute from running in fa-tefbe charged, until he comes within this State,</p>

The appellant has brought his cause here by appeal, and he assigns for error on the part of the circuit court, that they refused, First, To arrest the judgment; Second, To grant him a new trial.

Louis county. 1st. That the circuit court erred in refusing the instruc-i tions asked by the defendant’s counsel. The three first of which were in substance : That the possession of personal property by the vendor, after the sale, whether absolute or in trust, is fraudulent and void in law as against creditors prior or subsequent, and would be subject to execution or attachment, as any other property of the vendor in possession. 6th vol. Mo.

Louis Circuit Court. 1st. We hold that the circuit court had jurisdiction of the motion for a new trial, and was competent to grant or refuse it, that it was constrained to do one or the other of these two things. Here then was a function without any specific legal remedy. The court was right in -coining at the difficulty in some way that justice might be done.

of Saint Louis county. 1st. That the court erred in excluding all evidence of the marriage of Auguste Yoght with her first husband, by general reputation, living together, and holding themselves out. as such to the world.

Louis Circuit Court. The appellant insists that the court below did err in rejecting the proposed witness on the ground of incompetency by reason of interest in the suit. 1st. Because the witness could have had no interest going to his competency, other than that arising from his liability to contribution. Peake’s Ev. 144,145; 1 Stark, on Ev., 140, 145; 10 John. Rep. 21; 4 Bibb, 320, 330; 18 John. Rep. 352; 2 Aikers (Vermont) Rep. 138; 15 John. Rep. 270; 16 Mass.

Louis-county. The main question that arises in this case is, had the justice jurisdiction on this bond ? We contend not. And did the court of common pleas err in refusing to dismiss for want of original jurisdiction? We contend it did. See session acts of 1840-1, creating the court; R. C. page 430, section 1; R. C. page 431, sec. 8; R. C. page 348. 1. The appellee contends that the case is clearly within the jurisdiction of the justice of the peace.

Louis county. 1st. That the plea is good and should have been sustained, and demurrer overruled. The plea alleges a corrupt usurious transaction between the plaintiff below and George W. Call, the maker of the note, and that the whole amount of this note is made up of usurious interest, on which appellant’s endorsement was procured. 2d. That if the plea is even bad, the declaration is worse.

Louis County. The court below erred in not granting the appellant a new trial for the reasons filed. The circuit court erred in overruling the appellant’s motion in arrest of judgment, for the reasons filed. The court below erred in not giving a judgment of non-suit in this cause, when moved so to do by appellant’s counsel. 2d Starkie on evidence, 148.

On the part of the appellants in this cause it is insisted, that the facts of the case bring them within the 3d section of the statute respecting bonds and notes, (Rev. Statutes of 1.835, page 104,) which provides “That thenatureof the de-fence of the obligor or maker of a note shall not be changed by the assignment, but he may make the same defence against the bond or note in the hands of the assignee that he might have made against the maker. 1st. That there was no…

Louis county. 1st. That the court erred in admitting the evidence of William J. Austin, one oí the makers of said several notes, as witness for defence, as he was interested in the direct result of the suit. For the amount of the notes he is alike liable to either party, but to the extent of the costs of this he is alone liable to defendant, who introduces him. Gil. Law of Ev., vol. 1, pages 223, 224; Saunders on Pleas, Ev. 2, vol. 2, 443: Easts.

1st. The court erred in overruling appellant’s motion for a continuance, upon the affidavit filed.

Louis Circuit Court The reasons assigned by the defendant for quashing the attachment are: 1st. That the claims sued on are debts contracted out of this State, and the affidavit does not show that the debtors, or either of them, absconded or secretly removed their property or effects to this State with intent to defraud, defeat, hinder, or delay their creditors, as required by the statute. 2d. That the plaintiffs and defendants are both non-residents of the state of…

<p>Appeal from the Circuit Court of Benton county.</p>

<p>Appeal from the Circuit Court of Platte county.</p>

<p>The decisions of this Court in State vs. Heatherly, 4 Mo. R. 478; and' State v. Spear,. 6 Mo.. R. 644, recognised and affirmed.</p> <p>The-decisions of this court Heatherly,V4v-M°- S- 478 and State v. Spear, 6 Mo. R. 644, rec-ognised and affirmed.</p>

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

<p>Action for a forcible entry and detainer. Plaintiff proved that he had been in possession, and had delivered the same to L. to keep for him, and that afterwards he found defendant in possession, who refused to deliver up the same, and .then proposed to prove that defendant had paid L. thirty dollars to deliver possession of the premises to defendant. Held hy the court, that this evidence was properly excluded. That there was no evidence on the record of any fraud on the part of defendant, and that, for any thing appearing upon the record, the defendant might have believed that L. was possessed of the premises in his own right.</p> <p>fo^ííe'entry and detainer. Plaintm proved that he possession, and had delivered the same t0 l. to keep wards he antin posses-Jion> who refused to dehver up the then1'proposed Prove that defendant had paid L. thirty _ of the defendant.0 the evidence was ciufed!y That there was no the record of [™u0f¿e!1 fendant, and thfng appeS fendant might j^was gossessed^of h^his^ovm68 n£ht</p>

<p>A verdict found upon conflicting testimony will not bo disturbed by tills, court.</p> <p>found u^on'st conflicting _ nof^distur-<-ourt this</p>

<p>Appeal from the Circuit Court of Benton county.</p>

<p>Appeal from the Circuit Court of Livingston county.</p>

<p>When the security in a note, within the jurisdiction of a justice of the peace, and the payee reside in one county, and the principal debtor resides in another county, the payee, on being served with notice by the security, to- commence suit, has his election to sue the security alone, or the principal debtor; and is not compelled to go to a distant county, and sue the principal debtor alone.</p>

<p>1. Defendants executed their note to plaintiffs, describing them in their note, as “surviving partners of J. B. & M. Camden & Co.” Held to he amere descriptio personarían, and ■ unnecessary to be inserted in tlie declaration.</p> <p>2. A variance between the writ and declaration cannot be reached by a motion to quash the writ. (See Jones v. Cox, ante 173.)</p> <p>3. After the court has given judgment on demurrer, the same matter is never allowed to be urged in arrest of judgment</p> <p>note to bing them in “surviving M partners of J. dcn& &' Co”.” Held to be a desa}P-ivt persona-rum, and un-^erte1/in°the declaration,</p> <p>varia”N between the writ and dec of^hereached by a motion writ^See^ a°jeeSj^ )0X'</p> <p>After the en^judgment teris never al-rest of judgment.</p>

<p>1 In an indictment for perjury, against a party toa suit, it is necessaiy to show, by proper averments, that he was sworn under circumstances which authorised his being sworn as a witness in the cause. See R. S. 1835; Title “Justices’ Courts,” p. 361.)</p> <p>3. Unnecessary and useless averments in an indictment, may be rejected as surplusage.</p> <p>an indict-ry to show,by mente thathe wasswomun-tier oircum-stances which fu-honsedhi3 as a witness (See it's!,6' 1835, Title £ MUStlfiGS^ Courts,” p,</p> <p>Unnecessary avements^in of“aindic1!3?eij;t eTL^urpius-</p>

<p>To entitle a person to a right of pre-emption under the act of Congress for that purpose, he must either he twenty-one years of age, or the head of a family.</p> <p>\ right. of pre-thFact of congress for that purpose, he must either he ^ara^f^e, or the head of afamily‘</p>

<p>An indictment under the act concerning' “Groceries and Dram Shops,” (Laws of Mo., Session 1840-1, p. 82,) for keeping a “grocery” without a license, should contain an averment that the liquors sold were “not to be drank at the place of sale.” If the liquors were sold to be drank at the place of sale, thej vender would be indictable for keeping a “dram-shop” without license, without regard to the quantity sold, and could, notbe indicted for keeping a “grocery.”</p> <p>under'tho^'act «tewerief dram-sliops,”' yes^on°i840-l, p. 82) for “Grocery” without a license, should contain an (heHquorsliat sold were ‘not to be drank at the place of fj^’oxs ^ere s°ld,to drank at tlis place of salej would^Tmin-dictable for «e(i^?shop« without Ii-cense, vnih-out regard to sofd could not be indicted for keeping a “grocery.”</p>

<p>Error to the Daviess Circuit Court.</p>

<p>Appeal from the Clay Circuit Court, sitting in Chancery.</p>

<p>Appeal from the Carroll Circuit Court.</p>

<p>Appeal from the Clay Circuit Court.</p>

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

<p>Appeal from the CJay Circuit Court.</p>

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

<p>Petty larceny is a trespass, within the meaning of the 22d sec. of 3d. art. of the act concerning practice and proceedings in criminal cases, (K. S-1835, p. 451,)"and the name of a prosecutor must be endorsed on the indictment</p> <p>Scott, Judge, dissenting.</p> <p>-within the meaning oithe 22d sec. of 3 actJ concern-in| F’^dce ings in erimi-(R sC*83o and p. 481.) prosecutor0 a must be endorsed on the indictment,</p>

<p>1. In slander, although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance, an action cannot be maintained; and although the same idea is conveyed in the words charged, and those proved, yet if they are not substantially the same words, though they contain the same charge, but in a different phraseology, the plaintiff' is not entitled to recover.</p> <p>2. Quaere. Whether a court can instruct a jury as to the weight and tendency of evidence?</p> <p>In slander, although the words proved etq0ul^e words charged ration, yet not ,t!ie , stance, an ae-mlfntafned-136 and although ¡s conveyedin ^arged^and those proved, Jot^suhstan-dally the same words, though they contain chtrgeUnd in differentphxa-piaintiiris not re~</p> <p>-Quaere. Whether a strait'T jury as to the tendency 3 of evidence.</p>

<p>In determining whether a contract was a conditional sale or a mortgage, in cases where the form of the instrument is not conclusive either way, resort must be had to the circumstances attending the transaction: And if, upon a full view of the whole matter, doubts may be reasonably entertained as to the real intent of the parties, courts of equity have inclined to regard the transaction as a mortgage.</p> <p>In determining whether a contract was a. conditional sale or a mortgage, in cases where the form of the instrument is not conelu-sive either must be°had stances atUm' tending- the And Tf1l<upon a full view of matter^doubta sonaHyenter tainedasto ofthe^arties^ courtsofemi-@n ty have men-ned to regard tion^asafmort-gage.</p>

<p>Trespass guare clausum, fregit. Plea, that the close, &c. was the freehold of the United States, and not the freehold of plaintiff. Held: that the plea was bad, as possession, without title, is sufficient to maintain this action against a wrong doer.</p> <p>Trespass the cl°?e’ ofthe Sd^not^the that the P,ea was as possession, without title, is sufficient to , mamta-n this action against a wrong doer.</p>

<p>.party cannot plead any matter to a scire facias on a judgment, which he might have pleaded to the original action.</p> <p>A party matter ato sdre facias on wltefT'h'e’ might have pleaded tothe tion.</p>

<p>Appeal from the Circuit Court of Franklin county.</p>

<p>Appeal from the Circuit Court of Gasconade county.</p>

<p>Appeal, from the Circuit Court of Washington county.</p>

<p>Appeal from the Washington Circuit Court.</p>

. sued Josi-as Reevs before a justice of the peace, and judgment being given against Reevs, he appealed to the circuit court. That court also gave judgment against him, and he prosecutes here his writ of error to reverse the judgment.

<p>Appeal from the Washington Circuit Court.</p>

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

<p>Appeal from the Circuit Court of Ste. Genevieve county.</p>

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

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

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

<p>Where parties mutually covenant, the one to convey, and the other to perform certain acts as the consideration of the conveyance, the failure of either to perform his part of the covenant gives aright of action to the other on the covenant, although such failure may work a forfeiture of the rights of one of the parties, for the other may waive such forfeiture.</p> <p>Where parties enantMhe^ne to convey, and perform certain acts as the of the convey-me^f^either to perform his covenantgdves aright of ac-turn to the other on the failure may work a forfeiture of the oítlie parties for the other such'forfeiture.</p>

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

<p>Error to the St. Charles Circuit Court.</p>

<p>A departure from the usual course of the voyage of a steamboat, for the purpose of saving property, is a deviation which discharges the insu-ler</p> <p>iromme^sual course of the steamboat, for the purpose of saving proper-¿y, is a (iischarges\he insurer.</p>

<p>Error to St. Louis Circuit Court.'</p>

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

<p>A proposition in writing, accepted by the other party, to sell “all that piece of property known as the Union Hotel Property,” held not to be a sufficient description oJ the property to take the case out of the operation of the statute of frauds, it being uncertain what property was comprehended in the words “Union Holel Property,” without resorting to parol testimony.</p> <p>A’proposition ^^ed'by the other party, that piece of ProPerty Known as the UnionHotcl be a sufficient description of the property to take the case out of the operation of the statute of frauds,itbeing uncertain what property was comprehended in the words “Union Hotel property,” without resorting to parol testimony.</p>

<p>In suit by assignee of a note payable “without defalcation,” but not negotia-» ble like an inland bill of exchange, for want of the words “negotiable and payable,” the payor cannot plead a set-off, though he may plead a total failure of consideration.</p> <p>In suit by as-signee of a note payable “without defalcation,” but not negotiable like an inland bill of exchange, for worls°«nego-H^leaudpayable/tthepay- or cannot thongh he may plead a total failure of consideration.</p>

<p>A writ of error will not lie on a judgment of non-suit; hut the party must move to set aside the non-suit, and preserve the evidence and proceedings in the cause in a hill of exceptions.</p> <p>A writ of error will not lie on a judgment of non-suit; but the parly-must move to set aside (he non-suit, and preserve the evidence and proceedings in the case in a bill of exceptions.</p>

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

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

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

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

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

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

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

<p>In a suit in chancery, where infant defendants had not been served with pro.-cess, hut, upon inspection of the record, it appeared that, on theirraotion, a guardian, ad litem, had been appointed, who proceeded in the cause: The court held that the decree against the infants was not void, and therefore could not be impeached in a collateral suit.</p> <p>In a su»t where infant aerv* ed with pro-inspection of™ record, it 0n their mo- ^ had been ap-procetded^n í£,e cause • ,. The court held that the decree against the infants was not void, and therefore could not he impeached in a collateral suit.</p>

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

<p>1. A parly cannot recover on an implied contract, when there is an express contract in force.</p> <p>2. The refusal of a correct instruction, unaccompanied with any exposition-. of the law of the case to the jury, is error.</p> <p>A party can-a.nimp°¿IdTOn ^g^a^ere ¡3 an express m</p> <p>The refusal of a correct instruction, unaccompanied with any exposition of the law of the case to the jury is error.</p>

<p>Error lo St. Louis Circuit Court.</p>

<p>Error to St. Louis Court of Common Pleas.</p>

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

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

<p>In proceedings under the act concerning partition of land, the interests of all the claimants of the land should be set forth and proved.</p> <p>In pr0Cee<l-in£s under the act concerning parmion of land, the the claimants of the land. should be set forth and Ted-</p>

<p>3. The assent of creditors will be presumed to a deed of assignment . made for their benefit, containing no stipulations or conditions prejudicial to their interests. Therefore, where such a deed was made for the benefit of certain preferred creditors, who were named as parties to the deed, but did not execute the same, their assent was presumed, they not being required to execute the deed before receiving the benefit of its provisions.</p> <p>2. Endorsers are viewed by courts as creditors, and a deed of assignment made for their security is valid, although no payments had been made by them at the time of the execution of the deed.</p> <p>3. The neglect or delay of the assignee in making out a schedule of assets and liabilities, referred to in the deed as part thereof, will not render the deed inoperative.</p> <p>The assent wiU^be^pre-sumed t° a deedofassign-mentmade for containin^no stipulations or prejudicial to Therefore6^3’ where such a for the^enefit of certainpre-terrea creditors, who were deed, but did not execute the same, their presumed,3 they not being ecute befoie receiy-mgthebenefit of its provis-i0ns'</p> <p>Endorsers are viewed by courts as cred-Duvall & oth-othMS,Def’ts, nishees. a°ed ofassignment made tor their security is valid, al-*enl\adPa>' teen madefy t¡me 0f the ex-J“£°n of the</p> <p>The neglect or delay of the assignee in making out a ‘schedule of assets and liabilities referred to in the deed as part thereof, will not render the deed inoperative.</p>

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

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

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

<p>A. gave his notes for the payment of the purchase money of a certain tract of land, and, at the same time, the payee agreed, under seal, that if there should be any suit concerning the land, the notes should not be paid until the same had been “entirely .got rid of and c eared away,” and then ihe expenses of the suit were to be deducted from the notes Helds that this agrément could mot be set up in harto a suii on the noies, as it did not amount to a defeaser.ee or a release. The party aggrieved had his action on the covenant.</p> <p>A gave his notes for the ^"purchase money of a rPn7)m triiPrat land, and, at agreed under geaj that if there should be any s.uit concerning the land, the ñoMmpaid1 jJ®^11® «me tirely got rid awav^and6^ tIie ex> penses of the suitweretobe deducted from Held, that this agreement not set up in bar to a suit on the notes, as it did not amount to a defeasence, or a release. The party aggrieved had his action on the covenant</p>

<p>3. The omission of the middle letter*if a name is not a misnomer or variance.</p> <p>2, A judgment rendered against a party who had no notice of the proceedings, is utterly void.</p> <p>The omission of the middle letter of a name is not a misnomer or variance.</p> <p>rendered who^had^no notice of the ^tteriydvouiS.1S</p>

<p>A mortgage deed, under the statute of this State, being made only to secure the payment of a debt, may be assigned by writing unsealed. statute oí this State, be-ingmade only secure the debt, maybe sealed.</p> <p>dorser ofabíll of exchange boarded with the drawer, husiness^h^a different house payment deli-veredto the drawer was held insuffi-the”endoKe^e The notice should have been served on or^eftaThís dwelling of'transacting business, or racts shown from which heinferre1!.*14</p>

<p>Error to St. Louis Court of Common Pleas.</p>

<p>Error to St. Louis Court of Common Pleas.</p>

<p>1. The teim ''‘beyond sea,” in the first section ofthe statute of “Limitation,’’ of 3823, means “out of the State.” (Napton, Judge, dissenting.)</p> <p>2. Where an immaterial issue, tendered by the plaintiff, was. found for the defendant, and it appeared from the record, that the awarding a repleader ; • ; lot- necessary to effect substantial justice between the parties, tl>.c ' ■’.t properly gave judgment for the plaintiff, non obstante vere-The term “beyond seu,!> in the first sec- ol the statu! e of “Limitation,” of 1825, means “out of the State.”</p> <p>Where an immaterial issue, tendered by</p> <p>the plaintiff, ^deftndanf and it appear-reeordüiatthe pleader was not necessary between the court properly ««edicto.</p>

<p>The evidence in this case not being preserved in a hill of exceptions, the ' court affirmed the judgment.</p> <p>The evidence in this case not being preserved in a bill of exceptions, the court affirmed the judgment.</p>

<p>,. . ,, WKere a party seeks to consolidate suits on accounts, and to dismiss the suit so consolidated for want of jurisdiction in the justice, and appeals from the decisions of the justice against him thereupon, he will he held to strict pi oof of the pendency of the several suits before the justice.</p> <p>Where a party seeks to con solídate suits on accounts, and to dismiss Ihesuitso consolidated, for want of jurisdiction in the justice, and appeals from the decision of the justice against him thereupon, he will be held to strict proof of the pendency of the several suits before the justice..</p>

<p>Tlie same point'! are decided in this case as in the case of McNair v. Dodge, surviving administrator of Dodge. Ante, p. 404.</p> <p>The same points are decided in this case as in the case of Mc-Nairv.Dodge. surviving administrator of Dodge. Ante, p 404.</p>

<p>The bona fide vendors of a bill of exchange, on which the endorsement of the payee is forged, are entitled to notice of the dishonor of the bill. To entitle the holder to recover from the vendors, he must use reasonable diligence : What is reasonable' diligence, must depend upon the circumstances of the particular case.</p> <p>The bona fide vendors of change, on which the dorsement of the payee is tmldto müc¡ °f thj To entitle the soverfrom the vendors,he must use reasonable culi-What diligence!*51** depend cumstances of the^particular</p>

<p>If a creditor, whose debt is secured hy mortgage, proceeds under the act concerning mortgages, and the whole_of the mortgage premises are sold in satisfaction of part of the debt, he cannot, afterwards, proceed against the same lands in the hands of a purchaser, in order to obtain payment of a part of the same debt, thereafter becoming due.</p> <p>If a creditor, secured by 1S mortgage,proceeds under the act con-gages'^ind'the whole of the premises6 are of the debt,he wards,proceed against the same lands, in purchaser, in °afnerpayment apartofthe same debt, thereafter becoming due.</p>

<p>Error to St. Louis Court of Common Pleas.</p>

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

<p>3. Mere negligence on the part of the payee in not sueing, or in giving time " to the principal debtor, will not discharge the security: hut if the payee has a specific lien on the property of the debtor, sufficient to satisfy the debt, and voluntarily surrenders that lien, or loses it by his own negligence, the security will be discharged.</p> <p>■2. A new trial will not be awarded, when it is evident that the party could derive no benefit thereby.</p> <p>ge^^o"6 the part of the suang^or'ln giving time to the principal debtor, will , tile security*! but if the specific Hen ty of tliedebt' or, sufficient debt*anduvo-or limUirily^sur-lien, or loses negH°-ence°Wn the security charged.^10'</p> <p>A new trial awai^edwhen it is evident couW^denve7 thferebyfit</p>

<p>it is not necessary to entitle a plea in any court, as the plea will Re considered as having reference-to the declaration, which must necessarily he in the same court as the plea ; hut if the plea is entitled in the «county court,” it will not he considered as having reference to a declaration filed in the «circuit court.”</p> <p>a^Jea°M ^ny court, as the considered* as havinS reference to the declaration, ^cessarily^e in the same bepiea,butifthe court,’ it will eredasháving reference to a declaration filed in the'eircult court’</p>

<p>In a plea, in the nature of a plea in abatement, in attachment, (Laws of Mo. session 1838-9, p. 6,) it is not necessary to put in issue the goodness of the plaintiff’s reasons for his belief. (Scott, Judge, dissenting.)</p> <p>In a le^ jn the nature of a me’t,inattaeh" 1838-9, p. 6,) saryto putln issue thegood-plaintiff’s rea-lllR</p>

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

<p>Error to St. Charles Circuit Court.</p>

<p>Appeal from the Boone Circuit Court.</p>

<p>In an action on a covenant, parol testimony of the knowledge and under--standing of the parties at the time of entering into the covenant, is • inadmissible to control the force and effect of the covenant.</p> <p>Jn an actjon a covenant, the1™0' standing, of jjj® ¿me^ofen-tering into the-inadmissible feet of the co-</p>

<p>Petition in debt. — Plea, that the plaintiffs were not the legal owners of tb® note, and issue thereon. Held: That it was not necessaryfor-the plaintiffs to prove the partnership set out in the petition ; it was admitted by the plea.</p> <p>that the p.ah»E?™era of the note' -and issue •thereon. ÍÍGldí that it was not üie^pMntiffs .to prove the out in the admitted ^by the plea. ,</p>

<p>Upon a review of the evidence in this cause, the court held thatthe verdict of the jury was sanctioned by the evidence.</p> <p>upon a re-cause, the^cir-that the ver-by the</p>

<p>A court of equity will not make a decree according to the wishes of all the parties, when such decree would be contrary to the established rules and usages of such courts. Therefore, where the complainant, who was a cestui que trust, filed his bill against another cestui que trust, and the trustee, praying a decree for a conveyance of all the land to complainant, and concluded with a prayer for general relief, the court properly decreed a conveyance to the cestui que trusts jointly, although the defendants were willing that the conveyance should be made according to the prayer of the bill.</p> <p>A cour¿ of equity will not make a decree according to all the partied ^reeSwould be contrary to ruies and u-^^o^such fore where the vX^was^a eestui ipir bill against st- and Uie trustee praying a fi-cree for a con-^land0* to complainant a prayer [°8rfSxhe court properly de-the ?“e . • trusts jointly, although the ^e?^ willing 'hat the c veyance made^accord-'"ra^r^of the Uillf</p>

<p>1. The third section of the act concerning “Bonds and notes,” (R, S. 1835, p. 105,) declaring that the nature of the defence of the obligor or ma-Irer, shall not be changed by assignment, but he may make the same defence against the bond or note, in the hands of the assignee, that he might have made against the assignor, was intended to embrace equitable as well as legal defences.</p> <p>2. In chancery. B. purchased a lot of ground from K., paid part of the purchase money, and gave his notes tor the residue; and E. at the same time, covenanted to make a deed of general warranty as soon as the payments were completed. At the time of the sale the Jot was incumbered, but this was known to B., who was not, however, placed in possession. Subsequently the lot was sold to satisfy the incumbrances. R. became utterly insolvent, and assigned the notes to others, who obtained judgment at law against E. on the notes. The prayer of the bill was for a rescisión of the contract — a perpetual injunction of the. judgments — a cancellation of the notes, and a return of the purchase money paid. The circuit court dissolved the injunction and dismissed the bill. The supreme court reversed the decree of the circuit court and decreed according to the prayer of the bill.</p> <p>The third sec-act concerning ^¿"1, p. 305.) the nature of obíigor o^ maker, shall e^hy assign-may make the same defence note, “íhe h.ands of the assignee, that he might assignor, was intended to embrace eqni-as weli as legal de-fences.</p> <p>,Jnciiaqcory. * purchased a lot of ground parTof’the^ purchase ney, and gave his notes and^^aUhe same time, covenanted make a deed wan-anty1' as soon as ihe payments were comple-tíme o/the*136 sale the lot was inenm-liered, but known to B who was not, phcecTinpos-session. Subsequent]y lot was sold to cumbrances™" It. became vent, and" as-notes'to*16 others, who menls6;d "law tfe notes8 prayer of the rescisiónfof the contract— perpetual m-.junction ofthe a'canceiiation of the notes, and a return of the purchase The Circuit court dissolv-the rniunction, and missed the pj.emeTcourt~ reversed the decree of the circuit court, acfordingto |jje j5[jayer</p>

<p>Although work may riot he done according to the contract, and there is no waiver of the contract; yet, if the work is afterwards accepted, the person performing the work is entitled to recover its value.</p> <p>Although work may not be done according to the contract, and there is no waiver of the afterwards ac-person'perfor-recover itsva-</p>

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

<p>Appeal from the Circuit Court of Morgan county.</p>

<p>1. After the dissolution of a partnership, one partner cannot draw, accept,. or endorse bills to bind his co-partner.</p> <p>2. A transfer of a bill or note, payable to order, can only be made by the-person who is legally interested, and if the person to whom it is assigned, when he took the paper, knew that the person making the transfer had no right to make it, such transfer is inoperative.</p> <p>solution of partnership, cannotr*draw accept or en-as to bind5his co-partner,</p> <p>A transfer a bill or note, payable to order, can only the^erson7 who is legally if the person to whom it is assigned; when he'took the paper, knew that the person making the transfer had no right to make it, such transfer is inoperative.</p>

<p>Error to tbe Circuit Court of Scotland county.</p>

<p>A party in declaring on an agreement may set it out according to its Ie-gaj effect, and is not bound to use the very words of the instrument but if he undertakes to set out the contract according to its legal effect, he-must do so in direct terms, and not by way of innuendo.</p> <p>2. Where a party undertakes to convey land upon the performance of a particular act — as the payment of money — it is not necessary to aver, in a declaration on the covenant, a demand fora deed.</p> <p>^ . declaring^ on mayfe^iTout according to its legal effect, and is not theverywords ment* Biff he undertakes contract11 ac-legal effect líe mu3t do so in nnd^no^'by elido °f Í1WU'</p> <p>Wliere a party undertakes to convey land upon the performance of a larticular act — as the payment of money — it is not necessary to aver, in a declaration on ho a demand for adeed.</p>

<p>Petition in debt. The date of the note was indistinct ; it being uncertain whether the date was “2” or “4.” The circuit court, upon inspection of the note, decided it was “4.” as set forth in the petition. Held : That whether the date was “2,” or “4,” was a matter of inspection, and the circuit court having satisfied itself upon that point, the supreme court would not undertake to pronounce the decision erroneous, particularly as only afacsimile of the note was preserved in the bill of exceptions.</p> <p>' Petition in of^the^note was indistinct, certain^whc-"4.” The cir-^inspection of the note, de-as set potion? whether the date was “2” oTtn-spection ; and the circuit court having upjfn that I)oinh the su-prenre court would not un-bounce tlrede£ vision erroneous — particularly as only a fac timih of ,the note was preserved in the hill of exceptions.</p>

<p>Appeal from the Circuit Court of Pike county»</p>

<p>Error to the Howard Circuit Court.</p>

<p>In an action by partners to recover a partnership demand, it will be incumbent on the plaintiffs to prove that they were partners at the time of the contract, and the common reputation of the neighborhood is insufficient to prove such partnership.</p> <p>Partnerships are usually proved by the oral testimony of clerks, or other agents or persons who know that the alleged partners have actually carried on business in partnership. 2.</p> <p>In an action recoverTpavt-nership_ de-be incumbent prove thatthey were timiofthe^112 contract, reputation of hootHsíusuffi-dent to prove flUCii D3.TtüS]> ship.</p> <p>Partnerships proved bythe of^lerk™'or^ other agents wlnTknow lil® al*e§' have actually si^essln partnership.</p>

<p>Error to the Marion Circuit Court,</p>

<p>Error to the Circuit Court of Marion County.</p>

<p>Error to the Monroe Circuit Court.</p>

<p>The affidavit required to be made by the party appealing from the judgment of a justice of the peace, may be filed in the circuit court, after a motion to dismiss is made.</p> <p>The affidavit required to be made by the party appeal mg from the judgment of a Justice of the Peace, may be filed in the circuit eouz-t, after a motion to dismiss is made.</p>

<p>Where a bond is altered or changed in a material part by the obligee — as by the erasure of the names of some of the obligors, without the. as- . sent of the others, all the obligors are discharged.</p> <p>Where a bond chantfedVna material part an obligee. by the era-e some of the obligors,with-out the assent Mi-*’ gors are disc!i&r{í6cl»</p>

<p>1. A plea in bar waives all matters in abatement, and a defendant cannot set them up after having answered to the merits of the action : fore, where the plaintiff’s demurer to the defendant’s plea in abatement was sustained, and the defendant then plead in bar, it was held that the defendant waived the matter in abatement.</p> <p>i. A memorandum made by the cleric at the foot of a judgment, that it should bear ten per cent, interest, forms no part of the judgment, and if the clerk has erred in making the memorandum, the error may be rectified on motion in the circuit court. olea all^ar matters in and*^defendant cannot set havingUan- er merits'1 of the action: There-pUinttAPsTdEv muner to the defendant’s plea in abate, Sined^andthé defendant then plead m t,arj ^ was the waived the Statement.</p> <p>a memoran-t^clerk'at^ the foot of a bear per cent. interest, forms no part of the m4!£gthe nemorandum, the error may be rectified on motion in the circuit court.</p>

<p>Appeal from the Circuit Court of Callaway county.</p>

<p>Appeal from the Circuit Court of Cooper county.</p>

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

<p>Error to the Monroe Circuit Court.</p>

<p>1. The statute concerning “Wills,” (R. C. 1835, p. 617) requires that the subscribing witnesses to a Will should attest, not only the corporal act of signing, but the sanity of the testator at the time of signing. Proof by one of the subscribing witnesses only, that the testator was of sound mind, is insufficient.</p> <p>2. The judgment of the circuit court will not be reversed for improperly refusing to give an instruction, when the giving of the instruction would not have availed the party asking it.</p> <p>The statute 1835, p. 617,) requires that the subJvll¡ will, should at-. corporal act of the testator ^¡^Proof ?f the subscribing witnesses on-tltor^was^of sound mind, is insufficient,</p> <p>The inonl of the ■will not be re properly*1 *ífe" fusing to give when the giving of the in-3trucuon would not the party^sk-ing it.</p>

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

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

<p>A party will not be heard in relation to a matter in which he is contradicted by the record.</p> <p>^ heard relation to which he is tyíhe'reconl.</p>

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

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

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

<p>1. It is error to instruct the jury that they are the judges of the law and the evidence. The jury are to decide according to the evidence, as they receive it from the witnesses, and the law as ‘delivered to them by the court.</p> <p>2. The circuit court should not permit juries to take law hooks to their room for the purpose of investigating the law of the case ; but they may he permitted to take a law hook in their retirement, when the paragraph applying to the case is separately marked out, as in the case of a statutory provision.</p> <p>. I-} is error to instruct the jury that they Jaro jhc,judges of the him and the evidence. 'file jury are to decide ac-C0|.djn;Tt0 the evidence, as they receive it ji'om the wit-«esses, and Uw a;, (k,_ livered to them by the court.</p> <p>The circuifc court should not permit juries to take }j™l booksrto jhe purpose of tholaw of tie case; they may be permitted to booiAifTheir recrement, wlion the paragraph apply-caféis1^epa-case of a statutory provision.</p>

<p>' i. In chancery. An application was made to enter lands with the United States’ Eegister and Eeceiver. The clerk in the offices, who was acting both tor the Eegister and Eeceiver, delivered to the applicant an informal and void certificate of entry, and made out a formal certificate in the name of another, which he retained in his possession. On this certificate an assignment, with a blank for the name of the assignee, was executed in the name of the person mentioned in the certificate of entry. The clerk in the offices sold the land described in the certificate to one S., and inserted his name in the blank in the assignment on the certificate. S. afterwards procured a patent for the land from the United Slates. Held, that under the circumstances S. was not a bona fide purchaser : that the title he procured from the United States enured to the benefit of the applicant to enter the land, who paid the purchase money.</p> <p>2. Although the validity of a patent cannot be questioned in a collateral proceeding, yet, if one. enters lands of the United States with the money of another, in his own name, and procures a patent for the same from the general government, a, court of equity will decree the title to him to whom the money belonged. Such a proceeding does not invalidate the patent, but recognizes its validity.</p> <p>3- The State courts have jurisdiction of causes instituted for such purposes, and a decree compelling the fraudulent patentee to convey to the equitable owner, does not violate the compact between this State and the United States, by which the State binds herself to abstain from passing any law interfering with the primary disposal of the soil by thejUnited States; and with any regulation Congress may find necessary for securing th e title in such soil to the Iona fide purchaser.</p> <p>(Tompkins, Jud^e, dissenting.)</p> <p>An application was made to enter lands with the United States’ Register and Receiver. The Clerk in the offices, who was acting both foff the Register and Receiver, delivered to the applicant an informal and void certificate of entry, and made cA't a formal certificate in i-io name of another, which he retained in his possession. On this certificate an assignment wit h a blank for the name of the as-signee was executed, in tile name of the person mentioned in the certificate of entry. 'File clerk in the offices sold tii.s land described in the ccrii-ficate to ono i.i. and inserted his name in the blank in the assignment on the certificate. S. afterwards procured a patent for the land from the United States. Held: that under the circumstances S. was not a bo-pje pur-ijrocmred from states" enured the benefit (he apiJ¡. cant to enter paj¿ piir. money-</p> <p>TOlUitjMjfa16 patent cannot in a collateral*1 proceeding, yet ifoneen-terslands of luSth ^th10*16^ °f hisown name, apatont°forreS the same from government, a will decree^5" the title to him to whom the money longed. Such a proceeding does not 1 a e- 6 pa tent, but recognizes its validity.</p> <p>COu^ghaveju-risdiction of ted^for^such and gelling the tentee tcT con-to the e-«/¿UMsnotvi-state and states/by*11 which the State binds herself to ab-^aw interfering disposal ^ States; and Nation” y ConSress “ay find necessary for securing the spiUoThe^o^ “^aser6 p,K~</p>