Volume 8 — Missouri Reports

The record presents two general questions for the consideration of this Court: First, Did the grantor intend that the appellant, William Wilson, should take any, and if so, what interest in the slaves, in the event that has happened ? Second, Do the rules of law prohibit such an interest as was contemplated by the grantor, from being created in personal property, by a conveyance inter vivos ?

1. Verdict was found without sufficient evidence, and court erred in refusing to grant new trial.— See evidence in bill of exceptions. 2. Court improperly refused second instruction asked by plaintiff, that betting upon Presidential election is against our statute of gaming.— Rev. Code,. 1835, p. 290, sec. 1, 3; 4 Mo. Rep., 536, Shropshire vs. Glascock &• Garner; 4 Mo. Rep., 599, Bpynton vs. Curie, and authorities cited. 3.

1. The court erred in refusing to give plaintiffs’ first instruction.— See Chitty on Contracts, 4 Amer. edit., pp. 527, 8, and authorities there collected; Watkins vs. Stockels’ Administrator, 6 Har. and John., 436 ; Brogden vs. Walker, 2 Har. and John., 292. 2.

1. Court erred in not permitting question to be put to jurors respecting their opinion as to bet made in this case, and whether, if the same was made on presidential election, they had a fixed opinion to find against such defence. — See Black. Com., 3d vol., (side-paging) 357-63, and notes, as to challenges of jurors propter affectum. 2.

1. The evidence being clear, that the defendant promised the plaintiff to pay him whatever sum he might pay on account of the garnishee judgments, if he would execute to the defendant a new note, and that said note was executed upon the faith of such promise, the plaintiff had a right of action upon the breach of such promise.— 1 Mar., 475 ; 2 Bibb., 450; 1 Monroe, 233. 2.

1. The defendant’s plea in bar is good. The deed of an infant is either void or voidable. — See 2 Burrow’s Rep., 1804. First: If void, it may be treated by all as a nullity. If void, nothing passed by Cook’s deed to Gordon, and he had no interest of which he could be defrauded.

1. That the court below erred in permitting plaintiff’s counsel to re-introduce and re-examine, in chief, Taylor and Duncan, under the circumstances of this case. — See 3 Chitty’s Practice, 901, 2, and note; 1 Stark. Ev., 181; 12 Mod. Eng. R.; 2 Carr & Payne, 121, Giles vs. Powell. 2.

<p>ERROR to Lincoln Circuit Court.</p>

<p>APPEAL from Callaway Circuit Court.</p>

1st: That administrators and executors are to be allowed all costs and expenses by'them incurred in the discharge of their duties. 2d: That it is their duty to prosecute all suits and claims in which the personal estate of their intestate, or testator, are interested. 3d: That this suit related as well to the personality as to the reality, and if a decree had been made against the defendant, he would have been required to account and pay over to the administrators the rents…

APPEAL, from Callaway Circuit Court. In actions of trespass, assault, and battery, in the Circuit Court, if the plaintiff recover any-damages, he is entitled to judgment for costs.— Rev. Statutes, title, “ Costs,” see. 13; 6 Mo. Rep., 450. 1. That it does not appear, by the bill of exceptions, what evidence was before the court on the motion relative to costs; this Court cannot see that the court erred. 2.

1. That the Circuit Court improperly admitted the agreement offered by Bennett to be read in evidence, under the averments and allegations of plaintiff’s declaration.— 2 Black. Com., 379. 2. That the Circuit Court erred in permitting the deed for the right of way, or entrance to Stone’s lot, to be read in evidence to the jury. — 2 Black. Com., 379. 3.

1. That, according to well-settled principles, motions in arrest of judgment can only extend to such errors or irregularities in the cause, as appear of record.— See 2 Tidd’s Practice, 948, 949; Second part of Archibold’s Practice, 280; Stephen on Pleading, 95, 96; 3 Blackstone, side page, 393. 2.

1. That the levy, by execution, on property by an officer, is evidence of right to it in the defendant; and the defendant gave no evidence of right in the claimant to repel the presumption. 2,, That after seizure by an officer, he cannot excuse himself from liability for its value, by reason of any force to seize, or recapture it, than that of a public enemy. — 2 Saund. Rep., 343; 5 Burr, 2812; 4 T. Rep., 789; 2 Pick, 304; 2 H. Black., 113; 4 Littell’s Reports.

I.The plea by McCulloch is not sustainable; because— 1. A court at law cannot entertain jurisdiction of a plea by a security alleging matter in discharge of the bond. 2. The plea sets forth no contract made by the obligee and principal to extend the time for the payment of the debt. 3. There is no consideration plead, as constituting the basis of a contract, and it was a nudum pactum. 4. There is no allegation that the extension was for a fixed and definite time. II.

<p>ERROR to Randolph Circuit Court.</p>

<p>ERROR to Ralls Circuit Court.</p>

<p>1. A court of equity has no power to decree a partition of personal chattels between joint-tenants, or tenants in common.</p> <p>C. An appeal will not lie from a decree of a court of equity, that partition be made between the parties. Such decree is interlocutory.</p>

1. That the Circuit Court erred in setting aside the order of the County Court, and granting a new trial; for the hill of exceptions taken in the County Court was so wholly defective, that the Circuit Court could, by nothing on the record, determine whether the County Court decided right or wrong.— See Laws of Missouri of 1835, sec. 6, p. 63, and see. 8, p. 64; 7 Mo. Rep., 4; 4 Mo. Rep., 18, Foster and Nowland, and 626, Searcy vs. Devine; 5 Mo. Rep., 110. 2.

To reverse the judgment in this cause, the appellants rely on these points : ■ — ■ 1. That, to establish a lien for the plaintiffs, the clerk’s record of such lien is the best evidence, and no secondary evidence can be given, unless the absence of the other is accounted for. 2. That, on an inquiry of general assumpsit, counts for work done, evidence of a special contract by the same workmen, at the same time, and for like work, at a much less price, is competent evidence. 3.

Louis Court of Common Pleas. POINTS POR THE APPELLANT. 1. The plaintiff below had right of possession only of such land as was reserved for the use of schools in the second section of the ápt of Congress of 13th June, 1812, “making further provision for settling the claims to land in the territory of 'Missouri.” — 2 Story’s Laws, 1257, act of 13th June, 1812; 3 Story’s Laws, 1972, act of 26th May, 1824; 4 Story’s Laws, 2220, act of 27th Jan., 1831; Act of General Assembly of…

1. The decree of confirmation, and the patent issued thereon, in favor of the legal representatives of James Mackay, form a good title for the land in controversy, as against the United States, and one which will he indisputable, if the claim of the representatives .of Lafleur be not valid. This position will not be denied. — 10 Peters’ Rep., 340, 100 3 Story’s Laws 1841 1959; 4 Story’s .Laws, 2135, 2250. 2.

Louis Court of Common Pleas. 1. That a transhipment from one vessel to another, except from necessity, is a deviation.— 1 Phil. Ins., (2d edit.) ch. 12, sec. 1, p.485; Story on Bail, sec. 562. 2. That a variation from the usual and direct course of the voyage, even but for a few leagues, is also a deviation.— 1 Phil. Ins., 480, ch. 12, sec. 1; Hilbeftet al. vs. Ibyn, cited in Delany vs. Stoddart, 1T. Rep., 24. 3.

That where the judgment offered in evidence is not the foundation of the action, and not made profert of by way of palet per recordum, a variance in the date is not sufficient to reject it in evidence, it being stated by way of inducement. The only question presented by the record, for the decision of this Court, is, Did the court properly reject the record of the judgment offered in evidence by the plaintiff?

1. The defence offered by the defendant could only be allowed by way of set-off. 2. The same cause of action, and no other, which was tried before the justice, shall (on appeal) be tried in the Circuit Court: and no off-set shall be pleaded in the Circuit Court, which was not pleaded before the justice, if the summons was served on the person of the defendant. — Rev. Stat., 371, sec. 16. 3.

Louis Circuit Court. 1. The court below committed error in rendering judgment against appellant for $662 83, when the bond is only $13. 2. As the bond in this case was executed on the 30th June, 1838, and the act of the legislature on which the motion was based'was not passed until the 15th of February, 1841, the Circuit Court did wrong to entertain the motion of plaintiff below, and give judgment against the appellant, upon it, in a summary way. 3.

Louis Court of Common Pleas. 1. The statute excludes this defence.— R. L., 105, sec. 4; ^Green’s N. I, Rep., p. 1; 4 Halstead, 130, 134, under a similar statute. 2. The plea is not good. It is not a plea of no consideration, for one is shown: it is not a valid plea of a failure of consideration, for that, such as it was, was executed. It amounts simply to a partial failure only, if any thing, for the party has still the use and possession of what he purchased.

1. That the evidence of Granville Wilcoxson ought to have been excluded from the jury. 2. That a new trial ought to have been granted. 3. That the instructions of the court, asked by the plaintiff, ought not to have been given. 4. That upon the facts proved, the plaintiff had no right to a recovery. — 3 Mo. Rep., 317. As to the powers of the agent, see 6 John. Rep., 69, Van Allen and Another vs. Vanderpool etal.; 6 Cowen, 186, Corlies vs. Cumming. 1.

1.The securities are not liable unless the officer acted officially. l2. There is no authority vested in a constable to receive or collect money officially, unless there be a judgment. He may then receive the money without an execution; and his securities will be liable.— Stat. Mo., 367. 3. Parol evidence of an execution or judgment can never be given, until their loss is shown. Authorities are deemed unnecessary on this point. 4.

1. The defendant sustained the character of bailee, and could not be held liable on the common counts. — 1 Tomlins’ Law Die., 632 ; 1 Chitty’s Plead., 373, 379. 2. The common counts will only lie where the contract is executed, and nothing remains to be done but the payment of the money, and where the special contract remains unperformed, even by default of the defendant, the declaration must be special. — 1 Sand. Plead, and Ev.,*67. 3.

1. That hearsay is competent original evidence only, where the fact sought to be proved, from its nature absolutely, or at least usually, excludes proof by direct evidence; as in questions of relationship, character, prescription, pedigree, and the like. — 1 Starkie’s Ev., 30; Peake’s Ev., 22.

1. The court erred in sustaining the'demurrer to the third plea; time, by way of description of record, is not material. — Martin vs. Miller, 3 Mo. Rep., 135; Brooks vs. Remis, 8 Johns. Rep., 455. 2.

1. There is no evidence that Sisk, the appellee, ever took Martha, the appellee, into his employment, under a contract, express or implied, to pay her wages if she saw proper to leave his employ in a few months. 2.

<p>ERROR from* Shelby Circuit Court.</p>

<p>ERROR to Audrain Circuit Court.</p>

Louis Court of Common Pleas. 1. When the plaintiffs’ account was allowed by the constituted agents of the company, and a certificate of stock ordered to be issued according to agreement, the refusal of the president to sign and deliver such certificate, being the act of the company, through their agent, was a breach of Uie original contract between the parties, which gave the plaintiffs the right to have the amount of their demand in money. — Chit. Cont., 112. 2.

Louis Circuit Court. I make the following points: — 1. The bill of sale from Armstead to Tiffin was regularly proved by proving the hand-writing of a deceased subscribing witness, and that the oilier witness (who being unable to write, made his mark,) was out of the State; the grantor having also signed only by a mark. — 1 Starkie, 329. 2.

<p>The third section of the act of February 27, 1843, concerning the register of lands, providing, that “ the fee allowed the register of lands, upon the payment of taxes' upon lands or town lots, and all other fees, at the State treasury, shall he paid into the State treasury by the person paying taxes,” is not inconsistent with the 32(1 section of the act of Feh. 27, 1843, to “ provide for the sale of lands for the taxes,” allowing the register certain fees for every tract of land or town lot which he shall certify out for sale, &e. The former, act refers to those fees only which were allowed the register by the act of February 3, 1841, entitled, “An act to establish a register’s office; therefore, the register is entitled to the fees allowed him in said 32d section, and the auditor may draw his warrant in favor of the register for the fees allowed him under this section, as the services are rendered.— See Session Acts of 1840 ’41, p. 119; also, Session Acts of 1842 ’43, p. 105, 137.</p>

Louis Court of Common Pleas. 1. The note on which this action was brought is a note for the payment df money, and, therefore, it can be discharged by a tender of nothing but money. — • 2 Starkie’s Ev., 1391. 2. If the pleas demurred to in this case are good, then the necessity of a statute of set-off is done away with.

The appellants insist that the judgment below should be reversed— 1. Because a justice of the peace is responsible to the party injured, for all nonfeasance, misfeasance, and malfeasance in office which he may commit, or of which he may be guilty.— Chitty’s Plead., 89, 90,151,152,153. 2. Because the declaration in this cause shows a sufficient state of facts to entitle the plaintiffs to recover, those facts taken to be true, as they are upon the general demurrer. 3.

<p>ERROR to Clay Circuit Court.</p>

Louis Criminal Court. POINTS AND AUTHORITIES. 1. The court should have continued the trial of said cause until the January-term, the affidavit of the said McLean, for that purpose, being entirely sufficient, and containing every allegation required by statute.

<p>1, The transcript of the (locket of a justice of the peace is evidence only of such matters as he Is by law required to place there. Therefore, where the justice stated on his docket that the agent of the plaintiff released one of the defendants from the note sued on, it was held no evidence of a release.</p> <p>2. In a suit against two or more on a joint note, the plaintiff may enter a nolle prosequi as to one without discharging the others. — See R. S. 1835, title, “ Practice at Law,” art. 3, see. 18, p. 459 $ and act of Feb. 13, 1839, concerning Practice, sec. 1, Session Acts of 1838, '539," p. 99.</p>

The testimony introduced by the defendant is wholly inadmissible, because it would be allowing parol testimony to vary the terms of the written agreement, or to superadd a substantive collateral agreement wholly inconsistent with the terms of the former. — 2 Slarkie, 551, 554, 555,570; Chitty on Contracts, p. 25; Lane vs. Price, 5 Mo. Rep., 101. 2.

The counsel of Whitney insist that the Circuit Court ought to have set aside the verdict, and granted a new trial, for the following réasons, to wit:— 1. Because the verdict was against the instructions of the court. 2. Because the verdict was against, the third and fourth instructions given by the court, on the part of Whitney. 3. Because the court erred in giving the fifth instruction asked on the part of the State. 4.

1. Whenever a security pays the debt of his principal, equity will subrogate the former to all the rights and remedies of the creditor against the latter.— Wendall vs. Van Renssellaer, 1 Johns. Held: still the maxim, JVuttum tempus occurrit reipublicce, is applicable to the Stateonly. — Ballantine on Limitations, 18; 4 Bibt ’s Rep., 62; 9 Wheat. Rep., 737.

Louis Circuit Court. .The plaintiff in error submits that the instructions ought to have been given, and being refused, the judgment ought to be reversed, for the following reasons: — 1. The advertisement under which the sale was made is insufficient, in that it does not state with sufficient precision where and at what time the sale is to be made. — Geyer’s Dig., 268. 2.

1. An equity of redemption, on the 6th October, 1824, was the only interest to which McNair and Wife were entitled, and which, at that time, could not be the subject of levy and of sale, on a fi.fa. at law. 2. If an equity of redemption at that time was saleable on fi.fa. at law, it could not legally apply to this case; because the fi.fa. was on a judgment at law, obtained on the mortgaged debt. 3.

1. The court erred in refusing to give the instructions asked for by the appellant. 2. The court erred in giving the instructions asked for by the appellee. 3. The court erred in overruling the appellant’s motion to set aside the verdict, and grant a new trial. 4. The court erred in overruling the appellant’s motion to arrest the judgment. 1.

<p>1. A justice of the peace, in certifying transcripts from his docket, may embrace several judgments in one certificate, and it will not be necessary to certify each judgment separately.</p> <p>3. A judgment which is voidable only, cannot be questioned in a collateral proceeding. It will stand good until reversed on appeal or writ of error.</p> <p>3. The return of a constable on a writ is only prima facie evidence of the truth of the facts therein contained.</p>

Loui3 Criminal Court. POINTS AND AUTHORITIES. 1. The indictments charge the offences in the words of the statute, and are therefore good. — The Stale vs. Comfort, 5 Mo. Rep., 357; The State vs. Martin, Ibid., 361; The State vs. Mitchell, 6 Mo. Rep., 147, wherein it is Said, “It has often been decided, that if the offence in the indictment charged be described im the words of the statute, it is sufficient,” 2.

Louis Court of Common Pleas. The appellant insists that the finding of the court was not justified by the evidence, and consequently that the court erred in overruling his motion for a new trial. He makes the following points:— 1st: The action was assumpsit, which is not supported by proof of a contract under seal. 2d: The instrument under seal was either in force, or not in force.

The only question made by the bill of exception in this case is, as to the correctness of the judgment of the Circuit Court in allowing one of the donees in the deed, Martha Ann Partlow, to give evidence in the cause on the part of the defendant.

relies upon the following points: — 1. The decree should have been for complainant. There had been a waiver of the forfeiture upon all lots, at the sale, the complainant purchased. 2. The forfeiture could have been compensated for in damages, and the court should have directed the inquiry. 3. The purchase money should have been refunded. 4. The defendants, re-selling the property, had no right to enforce a forfeiture. relies upon the following points: — 1.

ERROR from Greene Circuit Court. 1. The court erred in permitting the declarations of the Sims’ to go to the jury, such declarations being no more than hearsay evidence. 2. The court erred in giving the defendant’s instruction, such instructions leaving the jury to judge of what constituted a legal title to the property. 1. That court did not err in admitting the declarations of the young Sims’ as to the ownership of the property, as they were in possession of the same. 2.

Louis Circuit Court. The plaintiff refers the court to the evidence in the case, and to the following amongst other authorities: —“A mere possessory title in the lessee of the plaintiff, on whose… Held: that the having land taxed in the name of a particular party, and his paying the taxes so assessed, vested any kind of title in him to the premises so assessed. 3. The court was right in overruling the instructions prayed by plaintiff.

The only question that will he presented to the Court is, as to the true construction of the words, “beyond sea,” to be found in the statute of limitations of the 21st of February, 1825. And, since the decision of this cause in the Circuit Court, this question has been settled in favor of the plaintiff in error, by this Court, in Shreve vs. Administrator of Whittlesey, 7 Mo. Rep., 473.

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

1. That the erasure of the name of Johnston from the note, after its execution and delivery to plaintiff, without the knowledge and consent of Medlin, renders the note void, and discharges him from the payment thereof, even though the erasure was made by a stranger, or any other person whomsoever, except it was done by Medlin, and that no action can be brought upon it even in the hands of an innocent holder for valuable consideration.— 1 Peters’ U. S. C. C. Rep., 560; 6 Mass.

1. Did not the court err in permitting Byrd, after the issues were made up, and after the lapse of a term, to withdraw his replication, and file a demurrer to the pleas ? 2. Did not the court err in sustaining the demurrer to the pleas of total failure of consideration? 1. The court gave judgment for the wrong party. 2. The court erred in permitting the plaintiff to withdraw his replication, and file a demurrer. 3.

It is insisted by the appellant, that the second count, of the declaration is bad, and subject to a general demurrer, and that the demurrer being to the whole declaration makes no kind of difference. If there be any one count bad, a demurrer to the whole declaration reaches it, as well as if put in specially to that count. — Digest of 1835, p. 458, 459. 1.

Points relied on by plaintiff:— 1. That the indictment is general and uncertain. Every crime must appear on the face of the record with a scrupulous certainty. — 1 Chitty’s Crim. Laws, 172; 10 Petersdorf Abr., 470. The manner of the whole fact ought to he set forth. An indictment accusing generally is bad. — 1 Chitty’s Crim. Laws, 229; 2 Hawkins, 25, 57,59; 1 Salker, 198.

The point in this case is this: — Were the two defaults legally entered against defendants at the July and November terms of the Circuit Court?

Louis county. The cause assigned as special cause of demurrer, on the part of the defendant, is, that the instrument sued upon and set out in the petition was a writing under seal, and was declared upon and described as a note. The instrument, as we have before shown, on its face describes it as a note; it reads as a note;, and the chairman so executed it.

1. The subject-matter was within the jurisdiction of the justice. — Rev. Code, 348. 2. A writ of prohibition will not be allowed where the subject-matter is within the jurisdiction of the subordinate tribunal; if error intervenes, the remedy is by appeal.— Vick The People, on the relation of David Keen, vs. S. S. Seward, 7 Wend. Rep., 518; 3 Black. Com., 113,114, n. 29. 3.

For reversing the judgment, the appellant relies upon the error committed in bringing the suit. The form of the action is case, but should have been trespass. - — Morgan vs. Hughes, 2 Durnford and East, 226, is in point, and a leading case. 2. That Lenox was a judicial officer, acting in a judicial capacity, and within his jurisdiction, and therefore not liable to an action. — Yates vs. Lansing, 5 Johns., 292; Ibid., S. C., 9 Johns., 295.

POINTS AND AtlTHOMTIES. 1. That the Circuit Court of Clay county erred in taking and entertaining jursidietion of the said cause, because the same was not properly certified to said Clay Circuit Court from the Circuit Court of Clinton county, as required by law upon a change of venue. — Digest of 1835, p. 787; Ibid., p. 614; 3 Mo. Rep., 147, Jim, a slave, vs. State; 5 Mo. Rep., 538, Porter vs. State. 2.

Louis Court of Common Pleas. submit the following general points:— 1. The decree of foreclosure, and all the proceedings under it, are void, being coram nonjiulice. 2.

Louis Court of Common Pleas. For the appellants, it is insisted— 1.

of St. Louis County. POINTS AND AÜTHOEITIES. 1. A new trial will be granted on affidavit of a surprise in the evidence, when the testimony could not reasonably have been anticipated, and when it is material to the issue, — Graham on New Trials, 168,172,184; 11 Price, 383; a case cited in 2 Harris’ Dig., 1524; as to the time of giving notice, see Chitty on Bills, 506, note 12; Man. Rep., 172, 403; 1 Peters, 84, cited; Chitty on Bills, 513, 515, and notes. 2.

Louis county. The plaintiff in error makes the following points:— 1. That the court erred in admitting the testimony of Moser, who testified that he possessed the property under a written lease from Blattner, when the lease was not produced, nor its absence accounted for. He testified also that he had sold to Blattner, and no conveyance was shown. 2. That the plaintiff was not entitled to recover on the case made, and the court ought to have given the instruction asked. 3.

1. It does not appear, from the face or body of said indictment, when it was found, nor in what court, nor at what term of the court. — See Kirk vs. State, 6 Mo. Rep., 469. Nor is said bill of indictment certified by the foreman of the grand jury, according to the directions of the statute. — See Digest 1835, p. 481, sec. 19. 2. There is no sufficient venue laid in said indictment. — See State vs. Grove, 1 Mo. Rep., 547; State vs. Palmer, 4 Mo. Rep., 453. 3.

<p>ERROR to the St. Genevieve Circuit Court.</p>

<p>Where a witness residing in another State is here compelled to enter into recognizance for his appearance as a witness before the courts of this State, he will be allowed mileage from his place of residence.</p>

1. That Dade was not a justice of the peace, duly and legally commissioned and qualified as such, and therefore had not authority of law to take the recognizance on which the scire facias issued in this cause: and, in support of this point, I refer to Statutes of Mo., 345, sec. 11,12,13,14. 2. That the recognizance was and is radically defective in the description of the alleged offence. — See 9 Mass. Rep., Cone vs. Dorony, 520; 16 Mass.

That the court erred in making said decree, and in overruling the motion to set it aside. That said decree was made at the return term of said bill, which was erroneous.

The plaintiff in error insists that the deed is insufficient, and ought to have been excluded by the court below. The bill of exceptions shows the defendant below objected to the reading of the said deed, and that his objection was overruled. As to whether the instrument above referred to is a sealed instrument or not, see Rev. Code, Mo. Laws, p. 118, sec. 3; 3 Mo. Rep., p. 80, and 5 Mo. Rep., p. 281.

Only two points are presented by the facts in this case: 1. Whether the removal of complainant from Livingston to Chariton county, upon the proposition of his father, that he would give him the land,, form a valuable consideration, which, together with the meritorious consideration of blood between father and son, is sufficient in equity to,entitle the son to a decree of title, as against his father, upon the assignment of the duplicate.

The plaintiff insists that the plea of set-off is bad, and that upon the demurrer the judgment should have been for him. The plea avers that one of the notes on Wear, the assignor, to plaintiff, of the note sued on, was to be paid in notes and accounts. — 5 Mon., 83. The plea does not show that the demand offered to be off-set was due and owing to Wear before and at the trial of the assignment of this note to plaintiff.

Louis Court of Common Pleas. 1.That, as assignee of H. H.-Raisin & Co., he was vested with the same authority over the property and effects assigned which R. & Co. had possessed before the assignment. 2. That it was his duty, to the assignors and creditors, to make those effects as available to the extinguishment of debt as circumstances would perigit. 3.

Louis Court of Common Pleas. 1. There is no evidence of sufficient notice to the appellant, of the dishonor of the bill. The clerk of the Bank states, that he left a notice at the counting-room of the appellant, which he believed was made out by the notary in New Orleans, and forwarded by mail to St. Louis. But, upon being cross-examined, he admits that he never examined the notice, did not know its date or what it contained, or even whether it was signed by the notary.

Louis Court of Common Pleas. 1. The allegation being that the deed was fraudulent, it was equally competent for a court of law or a court of equity to entertain it; the object being not to vary or contradict the deed, as such, but to disprove its legal existence, and rebut its operation. — 3 Black. Com., 443; Bright vs. Eynon, 1 Burr, 396; Pemberton vs. Steeples, 6 Mo. Rep.,'59; 3 Starkie’s Ev., 1017, note L.; Ibid., 1015,1016; Ibid., 1294, note E. 2.

Louis Court of Common Pleas. 1. The bill of items filed in the case before the justice of the peace was sufficient to apprize the defendant of the nature of the claim against him. — • Sublette and Vasquez vs. Noland, 5 Mo. Rep., 516, 519. 2. The bill of items filed in this case, like the common count for money had and received, can be supported by proof that defendant received money for the use of ■the plaintiff. — Chitty on Contracts, 475. 3.

The only point in the case is, whether the Circuit Court erred or not in excluding the deed and certificates from the jury. The law that must govern the ease will be found in Geyer’s Digest, p. 128, 9, sec. 6.

<p>1. The third section of the act of February 26,1843, entiled, “An act to repeal the Charters of certain incorporated companies,” declares, that “It is hereby made the special duty of the attorney-general of this State, to apply to the Supreme Court for a quo warranto against” certain insurance companies, &e. The attorney-general made application to the Supreme Court for said writ of quo warranto, as therein directed. The application was refused, on the ground, that the writ of quo warranto was a writ of right, and issued as a matter of course oif demand of the proper officer.</p> <p>2. It would seem that the general assembly confounded the proceedings on a writ of quo warranto, with those on an information in-the nature of a quo warranto, by making it the duty of the attorney-general to apply to this Court for a writ of quo warranto.</p>

The writing upon which Bailey claimed possession is a mortgage. King at least had the rights of Hinton, the mortgagor, by virtue of his purchase at constable’s sale, of the negro girl, as the property of Hinton. — Rec., p. 12; Secus in New York, sed vide Stat. of Mo. 1835, p. 409. 2. The court instructed the jury that Hinton, the mortgagor, was a competent witness. 3.

<p>ERROR to the Marion Circuit Court.</p>

Louis Court of Common Pleas. The only point presented is, whether the defendant had notice of the non-payment of the note, by the makers.

1. There was a manifest variance between the warrant produced in evidence and the one set forth and described in the declaration, and the warrant, therefore, ought to have been excluded from the jury. 2. Where a parly introduces evidence of the conversations of his adversary, he makes the whole conversation evidence. — See Carver vs. Tracy, 3 Johns. Rep., 427; Fenner vs. Lewis, 10 Johns. Rep., 38; Credit vs. Brown, 10 Johns. Rep.> 365; Wailing vs. Toll, 9 Johns.

1. The court below erred in refusing to permit the appellant to show that Ryan was in the possession of the negro for many months, in Boonville; that he used and treated her as his own property; that Bowles kept his claim secret from Allison, and that the possession of Ryan was with the knowledge and consent of Bowles; and that Bowles permitted Ryan to bring said negro with him from Virginia, where plaintiff resided, to Missouri. 2.

1. The verdict in this cause applies as well to the common law counts as to the counts under the statute, and it is only where the trespass is founded upon the statute that treble damages can be given. 2.

Covenant will lie upon a sheriff’s bond, and the court erred in deciding to the contrary. — 1 Chitty, pp. 131,3, 4,; 1 Pirtley’s Digest, 227, see. 132; 2 Bibb, 465; 3 J. J. Marshall, 496, Davis vs. Noaks; 4 Bibb,314; 1 Saunders, 58, a, note 1; 3 Comyn, 250; 3 Johns. Rep., 44, Hallett vs. Wylie. 1. Covenant will not lie upon a sheriff’s bond.— See Wm. Clark, Governor of Missouri, to the use of William Gentry vs. Durat, &e., 1 Mo.

1. The Circuit Court erred in permitting the deed of assignment from Thomas and Philip Miller to Ewing and Irvine to he read in evidence: because— 1st. The deed does not contain any assignment of the bond sued on to Ewing and Irvine. 2d. The deed of assignment was only made for the purpose of enabling the assignees to sell the property assigned, and to collect the outstanding debts due the firm of T. & P. Miller, and apply the same to the payment of debts due by that firm.…

The plaintiffs contend, that the evidence offered was competent and legal, and will maintain the action; because— 1. The plaintiffs were partners,- sharing in the profit and loss of the business.— 7 Mo. Rep., 560. 2. Infants may be partners; — Gow on Partnership, 1, and in same note (1), must join in an action by the firm; same, 128. 3. Contracts, gifts, and grants beneficial to the interest of infants, will be enforced, and the law implies acceptance.

1. By the demurrers filed to the pleas of defendants, the State admits, that Waid Howard, as sheriff, resigned his office of sheriff of the county, before the collection of tlie revenue, or any part thereof and whilst the same was wholly due and unpaid, and that Joseph Taylor was duly commissioned and qualified as sheriff of the county, and, as such, was ex-officio collector, and did collect the State revenue for the year 1839, amounting to the said sum of $317 75 cents, and…

1. The sale of the slave in controversy, at the time, place, and under the circumstances of the ease, by Richard Morris to W. Robinson, the plaintiff below, was a valid sale, and vested the plaintiff with an absolute and unqualified right of property in the said slave, and the court erred in giving to the jury the instruction which it gave upon-the motion of the defendant, Campbell. — 4 Kent’s Com., 138; 12 Wendell, 61; 8 Johnson, 96; 2 Atkins, 317; 2 Johns.

The plaintiffs in error insist— 1. That they cannot he brought into court by motion (without notice) and her made to answer in damages to any one who may claim to be the assignee of their judgment creditor; the office of a motion being merely to obtain a rule or order in the progress of a cause. — 3 Bl. Com., side-page, 304; 1 Call, 476; 4 H. & M., 276. 2.

<p>APPEAL from Morgan Circuit Court.'</p>

— In Chancery. 1. The court permitted the complainant, upon the hearing of the cause, to read and give irrelevant and incompetent proof. 2. The finding of the facts, by the court, was against the evidence. 3.

Louis Court of Common Pleas, 1. The evidence proves that St. John was discharged from all liability on the check, because of the delay in presenting it for payment. — Byles on Bills, 123, 124; Bailey’s Bills, 229, 2d Amer. ed., 1836; Chitty on Bills, 384, 419, 465, 545, 9th Amer. ed.; 4 Starkie’s Ev., part 4, p. 225; 21 Wendell’s Rep., 372.

Louis Circuit Court. I. The court erred in refusing to permit the plaintiff to prove that, upon the decision of the constable’s jury in favor of Kennerly’s claim, he directed the defendant to sell the property, offering at the same time good and sufficient indemnity to defendant therefor, which the defendant refused to do. — Watson on the oSioe and duty of sheriff, 195; 8 Johns.

1. The clause in Conner’s deed to Gooch, saving the rights of Conner as to his mill and works, is not a covenant or agreement upon which suit will lie; or by which Gooch is estopped from alleging the fraud, misrepresentation, or mistake of the grantor, in procuring such reservation. — 4 Cruise’s Digest, p. 11,15, 213, sec. 56; 15 Mass. Rep., 183; 1 Starkie, 262; 2 Ibid., 557; Greenleaf’s Ev., 30. 2.

1. The law of this case is properly stated in the first, second, and third instructions on the part of the defendants, which were refused by the court.- — -8 Wend. Rep., 403, Seymour vs. Vanslick; Stone vs. Seymour and Buck, 15 Wend. Rep., 19; 3 Johns. Digest, 451, 452; 7 Cranch’s Rep., 572; same case, 2 Cond., 611; 1 How. U. S. Rep., 250, United States vs. Eckford’s Executors. 2.

1. In order to entitle the complainant to a decree against the defendants for a specific performance of the contract for the lot in question, it devolves upon him to show that he has fully paid for the lot, as slated in his original bill of complaint; or that he has fully satisfied the plaintiff therefor, under the alleged agreement and settlement of accounts, as set forth, in his said amended bill of complaint.

FIRST VIEW. By the agreement of June, 1838, between McMurtry and McClelland, the $1,000 bond of January, 1838, became and was collateral security for a similar amount of the $1,920 note payable in 1837.

The plaintiff insists, that, to make a good return, the officer must certify how he executed the writ, and must make actual return of the same. — Mo. Dig., 1835, p. 254, sec. 5, 6; Ibid., p. 260, sec. 52, 53. I.The demurrer to the second assignment of breaches was properly sustained; because — 1. The assignment sets forth two sufficient causes of action in respect of the same demand, and is, therefore, bad for duplicity.— 1 Chitty’s Plead., 259; Com.

1. The general demurrer should have been sustained. 2. The action was misconceived, and should have been assumpsit. 3. Because the averments made do not show any cause of action. 4. The declaration contains no cause of actibn. 5. No judgment can be rendered on the declaration. 6. No action of debt will lie on the contract declared on. 1. The leave to plead was not leave to demur specially, and, therefore, the special demurrer was properly rejected. 2.

1. The hook offered as Hayward & Cobh’s Revisal and Digest of the Laws of Tennessee does purport to be printed under the authority of said State, as evidence of its legislative acts. 2. Caruthers and Nicholson’s Compilation does purport to the same effect. 3. The judicial records and proceedings of the County Court of Warren county, Tennessee, are admissible as evidence in the courts of this State. 4.

The plaintiff in error will insist that the court below erred in admitting the record offered in evidence for the variance between the declaration and the record.

1. Moss Prewitt was an interested witness, and ought to have been excluded.— 2 Porter’s Alabama Reports. 2.

1. The property taken and sold by defendants, if the property of the estate of the deceased, Hanks, was properly sold as against the plaintiff, and whether the same were of the estate of the deceased, Hanks, was a question for the decision of the jury. 2. The court erred in not giving the instructions prayed for by defendants. 3.

1. The name of South having been erased by the plaintiff from the back of the bill of exchange in the possession of plaintiff, and he being not mentioned in the declaration, is to be considered as an entire stranger to the whole transaction, and a notice sent to him at Palmyra is of no more legal force and value than would have been a notice sent to any other citizen, or to any other town in Missouri. 2.

1. It was the duty of the defendant to have made a reasonable effort to find Jennings’ property, and he should not have contented himself with going to his house and demanding property.

1. A sheriff has power and authority to sell real estate in mass, or in the entirety, under execution, although it may be susceptible of division, and may, in fact, consist of several pieces; the statute, pointing out the mode of selling land under execution, is merely directory, and a non-compliance with its provisions does not render the sale void. — Woods vs. Morrell, 1 Johns. Chan.

1. The declaration is defective. There is no cause of action sufficiently set out. The inuendo attached to each count does not help it, there being no sufficient colloquium, or previous statement. — 4 Mo. Rep., Dyer vs. Morris, 214. 2. The Circuit Court clearly erred in sustaining the objections to the questions propounded to the witnesses, Bridgman and Hendricks.

1. The declaration is radically defective, and shows no cause of action against the defendants. Held: that where the parties had fixed their own measure of damages, the court would not interfere with their intention. In Reilly vs. Jones, 1 Bing., 302, (8 English Com.

Louis Court of Common Pleas. 1. The land was granted to the State, for the use of the inhabitants of the township, for the use of schools. (Act of Congress, 6th March, 1820, sec. 1, clause 1, and ordinance.) The State thus became a trustee, and could not relieve itself of the' trust by any act of its own. 2. The trust is perpetual — the use to the inhabitants of the township — not at any particular period, but at all times, the future as well as the present. 3.

1. The Circuit Court erred,in giving the instructions asked by the plaintiff,, (below) Paul, and in refusing to give the third instruction asked by the defendant, Hill. — See 1 Dana, 359; 1 Ibid., 166; 4 Bibb, 78. 2. That the Circuit Court erred in overruling the motions for a new trial, and in arrest of judgment. — -See Rev. Stat., 1835, p. 339, sec. 1, 2, and 3 ; Jones vs. Luck, 7 Mo. Rep., 551.

1. The Circuit Court erred in overruling the motion, made by the securities, to quash the recognizance. Can a prisoner brought before a circuit judge upon “habeas corpus,” be recognized to answer to an indictment for an offence of a nature wholly different from that for which he was committed by a justice of the peace? Is not such recognizance “coram non judice,” and void? — Delacur vs. Reed, 2 Hen.

The Circuit Court erred in overruling the demurrer. — 1 Chitty’s Plead., 353-6 ; Johnson vs. Wygant, 11 Wend., 48 ; Champlin vs. Rowly, 13 Wend., 258 ; Cunningham and others vs. Morrell, 10 Johns. Rep., 203 ; Ibid., 258.

<p>APPEAL from Monroe Circuit Court.</p>

1. The instructions given are not according to law, nor did the evidence given in the cause authorize the giving of the instruction. 2. The instructions asked by the defendant ought to have been given. 3. The court erred in modifying the defendant’s instructions, and then refusing them. 4. The finding; by the jury, was against evidence. 5. The finding was for more than the value of the property. 6.

Louis Criminal Court. 1. The act of March 18th, 1835, concerning “ Inns and Taverns,” so far as the .same relates to the selling of wines or spirituous liquors, was virtually repealed by the provisions of the act of February 16th, 1641, concerning “Groceries and Dram-shops.” 2. The right conferred by the license of the defendant must be exercised in conformity to the existing laws.

<p>ERROR to Jasper Circuit Court.</p>

<p>APPEAL from Scott Circuit Court.</p>

<p>This case involves the same question determined in the case of Lambert vs. The State, anti p. 492.</p>

Louis Criminal Court. 1. The instructions, if any were asked, are not preserved in the bill of exceptions, therefore it does not appear from the record that the court misinstructed the jury. 2. The evidence sustains the charge, that ale is a “ fermented liquor;” and the selling of it, after nine of the clock in the morning of Sunday, is prohibited by the Slst sec. of the 8th art. of the act concerning “ Crimes and Punishments.”

1. Archibald Hill, being a justice of the peace for Preston township, bad no right to try the case in Platte city, that being in Carroll township, and consequently beyond his jurisdiction. To show that he had no jurisdiction, authority is deemed unnecessary, as the power is nowhere given to him by the statute to try the case in a different township from his own. 2.

Louis County. The court below erred in refusing the continuance demanded, and in forcing the defendant below to a trial, because the plaintiff below had been allowed, at the term when the case was called for trial, to amend his declaration. The principle on which it is contended there was error in this proceeding of the court, is settled in the case of Risher vs. Thomas, 1 Mo. Rep., 739, and after-wards affirmed in Dempsey vs. Harrison & Glasgow, 4 Mo. Rep., 267. ■ 1.

The court erred in admitting as evidence M. Camden & Co., and the amendment thereof; the amendment being made in this ease, not only after one term, bul after a lapse of two years from tire judgment. 2. The court erred in admitting in evidence the recognizance to J. B. & P. Camden & Co., with the amendment thereof, for the same reason as above, and with greater force, if possible, securities thus being made responsible to strangers.

1. If defendant’s witnesses testified in the manner they are made to speak in the bill of exceptions, this Court can never discover that the circuit judge erred in his finding and judgments. 2. The amount in controversy being trifling in comparison to the costs that will be incurred in the further litigation of this suit, this Court will not disturb the judgment, unless the error be very clear and manifest.

<p>"Where judgment hy default has been rendered against the defendant in an action of forcible entry and detainer, he will not be entitled to an appeal, although he first moves to set aside the judg. ment by default, and such motion is overruled.— See act of January 28, 1839, concerning “forcible entry and detainer,55 see.II session acts of 1838, ’39, p. 47.</p> <p>But where, .in such case, the appeal has been allowed by the justice, the cause will not be dismissed from the docket of the Circuit Court if the judgment against the appellant was improperly given, as where he has not been served with process as the law requires. In such case it is th e duty of the Circuit Court to try the cause desovo, without regarding any error or imperfection in the proceedings before the justice.</p> <p>Where process may be served by leaving a copy of the su mmons iC at the usual place of abode ” of the party with some white member of his family, “ above the age of fifteen years,” & return that the copy was left ‘‘at the dwelling-house” of the party,' “with his wife,” and the same read to her, is insufficient. The law will not presume that “the dwelling-house” of the party was his “ usual place cf abode,” nor that his wife was “ above the age of fifteen years. ”</p> <p>Where, in an action of forcible entry and detainer, a judgment by default has been improperly entered against the defendant, the proper course to be pursued by the defendant seems to lie to apply to the Circuit Court under the 37th section of the act of January 28, 1839, concerning forcible entry and detainer, to compel the justice to allow the appeal.</p>

1.From the terms of the contract, the payment of the last instalment of the purchase-money, and the execution of the deed, are mutual and dependent agreements.— Sugden on Vendors, 245, 246; I Chitt. Plead., 353-5, and note 637 ; 1 Sand. Rep., 320, note 4; 2 Ibid., 352, note 3; Bank of Columbia vs. Hagner, 1 Pet. Rep., 456. 1.

1. James Edgar-was an incompetent witness for the plaintiff below. 1st: He was a party to the record. — The Commonwealth vs. Marsh, 10 Pick. Rep., 38; Supervisors of Chinango vs. Berdall, 4 Wend. Rep., 453-57; Lampton vs. Lampton’s Executors, 6 Mo. Rep., 619. 2d: He was directly interested in holding Levy jointly liable with himself to the payment of the note.— Brown vs. Brown, 4 Taunt. Reports, 752; Ripley vs. Thompson, 22 Eng. Com.Law Rep., 89; Marquand vs. Webb.,16 Johns.

'1. The introduction of the transcript of what is called the docket of justice Funkhowser, was illegal and improper, because it was not properly certified and authenticated, and because it contained much extraneous and irrelevant matter, that was calculated to mislead the jury. This was good cause for a new trial. — Rev. Stat. Mo., p. 347, sec. 32, p. 419, sec. 9;. 7 J. J. Marshall’s Rep., p. 415, 421, 423. 2.

Louis Court of Common Pleas. ’ 1. The court below erred in overruling the first instruction asked by the defendant, Chambers’, counsel. No rule of law is better settled than that embodied in that instruction, viz., that when there is a written agreement, or indeed any special agreement, the party must recover on that, and cannot waive it and resort to a quantum meruit, or implied assumpsit.— Champlin ««.Butler, 18 Johns. Reports, 169; Munford vs. McPherson, IIbid., 414; 3 Mo.

<p>PETITION FOR A MANDAMUS.</p> <p> In the Supreme Court. </p>

First, The plaintiff below is not a creditor or purchaser within the meaning of the fifth section of the act for the prevention of fraud, passed January 4, 1825, (Rev. Stat. of 1825, p.402,) or of the fourth section of the same act, revised and passed February 11, 1835, (Rev. Stat. of 1835, p.283,) and entitled, by virtue of this act, to insist that his intestate acquired title to this slave by five years’ continued possession, there .being no registered deed or will…

1. The marriage contract between Francis Tayon and Pelagia Chauvin was improperly received, because it does not appear that the instrument belonged to the archives'of the French or Spanish government, therefore it was not evidence of itself; and there was no other proof offered. — Acts 1838, p. 42-5.

The act respecting constables, (sec. 8, p. 117,) authorizes a proceeding by motion against a constable, for failing to return any execution.

1. The testimony of H. McAfferty, which was offered by the plaintiff,, and re* jected by the court, ought to have been received. 2. The instructions asked by the plaintiff, as to the boundaries of the half quarter section of land in dispute, were in conformity with the opinion of this Court, given when the case was last before this Court.— Campbell vs. Clark, 6 Mo. Rep., 221. 3.

1. The note mentioned in the bill is not a negotiable note within our statute defining what notes are negotiable, and therefore, the complainant could not si^ Harley at law, he being a remote endorser, but he may maintain his suit in equity against him for the debt.— See 2 Story’s Equity,-and authorities there; 5 Cranch, 322; 7 Ibid., 69, 97; 1 Brockenborough Circuit Court Rep., 126; 2 Condensed United States Rep., 268, Riddle & Co. vs. Mandeville & Jamison. 1.

<p>APPEAL from St. Charles Cirouit Court.</p>

1. The return of the officer, of “No property found,” in an execution in favor of the assignee, against the maker of the note, is, in an action against the assignor, only prima facie evidence in favor of the plaintiff. 2. The proof of the price which the property brought when it was sold raises no presumption of what it would have been sold for at a period of time long anterior. 3.

APPEAL to Johnson Circuit Court. Foster, the payee of the bond, by the assignment to Holden, divested himself of the legal title to the bond, and the title thereof was, by said assignment, vested in Holden, the first assignee ; and as Foster, at the time he made the assignment to Christy, was not the legal owner of the bond, and had no interest therein, he could not, by the assignment, transfer any title or interest to the plaintiff, Christy, and consequently Christy could…

Appearance and pleading to the merits cured any defect in the service of the writ. (Whiting et al. vs. Budd, 5 Mo. Rep., 543; Barnet and Ivers vs. Lynch, 3 Mo. Rep., 261, 2d edit.) Want of service cured by appearance and defence.— Griffin and Kinote vs. Samuel, 6 Mo. Rep., 50. That defendant cannot take advantage of any error or defect in the process after he has appeared to it.— 1 Tidd’s Practice, 91, 434. 1.

1. Any promise or agreement made to pay Fox the one-half he got for the contract is void for want of consideration. — See 1 New York Digest, 39; 6 Johns. Rep., 194; 8 Ibid., 444. 2. If any promise was made by Byrd to pay one-half he got for the contract, it was conditional (viz.) “To pay when he got some money,” and until he (Fox) shows that he (Byrd) has had money subsequent to the promise, he is not entitled by law to recover.— See 1 New York Digest, 38; 14 Johns.

1. At the last trial in the Circuit Court, the plaintiff was permitted to change his cause of action, and in this there was error. — See Rev. Stat.,, title, “Justices’ Courts,” sec. 16, p. 371. 2. The Court erred in excluding proof that D. Bruten, senior, was a preemptor, for surely one is not liable in trespass for removing rails cumbering hÍ3 own land, especially when knowingly placed there against his will. 3.

The question involved in this case is, “ Were the instruments of writing on which the suit was founded notes or bonds.” In this case, the writings did not purport to be sealed, either in the body of the paper nor in the testatum, but to each signature was attached the word “ Seal,” with a scrawl around it. There was no seal made by wax or by any actual impression, and the question presents itself, whether it can be taken as a seal under our statute.

Louis Court of Common Pleas. The confirmation by act of 13th June, 1812, is a grant by the government, which is not to be construed as the deed of an individual, most strongly against the grantor, but by it nothing passes except what is necessary to effectuate the purpose of the grantor.- — -11 Peters’ Reports, Warren Bridge vs. Charles River Bridge; 6 Peters, Arredondo’s ease.

Louis Criminal Court. First: The venue ought to have been changed. The petition and affidavits are, I believe, in exact conformity to law. The only ground of refusal taken by the Criminal Court was, that it did not appear that the auxiliary affiants were respectable. I contend, that, as nothing appears against them, they must be presumed respectable: in the sense of the law, respectable means credible; and all competent witnesses are credible until successfully impeached.

1st. The Circuit Court, upon the trial of the cause, was bound to give judgment for Robertson, upon the facts of the case, as agreed between the parties, under the law of the case, as decided by this Court at its last term, and the said Circuit Court hath neither given or shown any good reason, excuse or justification, in its opinion filed in the cause, for overruling the said decision of this Court. 2d. That the sale, by Morris, of the negro in controversy, to the…

1st. The Circuit Court'erred, in giving the instruction asked by attorney for Muldrow, and in refusing to give the instructions asked by attorney for Cawthorn. —Rev.Stat., p.86, sec. 14.

The court erred in overruling the plaintiff’s demurrer to second and third pleas, because the plaintiff’s declaration is good in form and substance, and theSdefendant’s second and third pleas are bad. 2d. The court erred in giving judgment against the plaintiff for costs. 1st point, as to overruling plaintiff’s demurrer, see the following authorities, to show that all the concatenating circumstances are alleged to make a good declaration in that form of action.— See 2…

1st. Upon the motion to dissolve the injunction, for the'want of equity on- the face of the bill, the Circuit Court ought not to have dismissed the bill, and given a decree against complainants for the costs. — See Harden, 12; 1 Bibb, 518; 1 Mon., 190; 3 J. J.Mar., 302; 6 Craneh, 51. 2d. The appellants contend, that the Circuit Court of Marion, sitting as a court of chancery, had undoubted jurisdiction in this cause, both defendants in the bill being non-residents of this…

1. The court below erred in refusing to allow the counsel of the plaintiff below to ask their witness, “whether he had ever heard John S. Farrar, one of said defendants, say anything as to the childishness or mental imbecility of the deceased, Leonard Farrar, at the time of the making the paper claimed to be his will.” — • 1 Phil. Ev., 90, 4th American, from 7th London edit., by Cowen & Hill; Ibid., (same edit.) 92; 2 Starkie’s Ev., 22; Bauerman et al. us.

1. The verdict was clearly against the evidence. 2. Several of the jurors had prejudged the case. 3. The indictment is insufficient. 1.

The Circuit Court erred: 1st. In granting the defendant a new trial. We contend, that I. S. Thomas was a competent witness for the plaintiffs, 'and that he had not such an interest in the event of the suit as would exclude his testimony.

The complaint made by the plaintiff before the justice of the peace is radically defective, and not such as is contemplated by law, and therefore will not authorize the judgment rendered thereupon by the Circuit Court, 2. The Circuit Court permitted the plaintiff to give to the jury incompetent and irrelevant evidence upon the trial of the cause. 3. The Court gave to the jury erroneous instructions upon the motion of the plaintiff. ¥ -4.

1. To sustain the judgment of the Circuit Court, the appellee relies on the provisions of the act of the General Assembly of this State, entitled, “An act to provide, for the sale of Township School Lands, in Saline and other counties,” approved, February 25,1835, (Statutes, 571): and it is contended, that this act is neither repealed nor abrogated, by the general law in relation to schools and school lands, approved March 19, 1835, (Ibid., 561). 2.

Louis County. 1. A new trial should be granted when the verdict of the jury is so manifestly against the weight of evidence, that it is apparent the jury must have failed to give'the cause a fair consideration, or must have mistaken the law as applied to the, facts. Graham, “New'Trials.” 2.

Louis County Court. 1st. The court below should have excluded the testimony of one Joseph Le Blond from the jury, for the reason, that said Le Blond was an inhabitant of said town of Carondelet, and had such an interest in the result of this suit, as to render him an incompetent witness to testify in this cause. — Angelí and Ames on Corporations, 16; Greenleaf on Evidence, 380; 2 Johns.

Louis Court of Common Pleas. 1. The interest that Benton had in the lot in question, embraced in the mortgage, was not vendible on execution. (Geyer’s Digest, 307, 8; Old Revised Code, 593-5; 12 Mass. Rep., 387.) That a statutory right to redeem not vendible on execution, Old Rev. Code, 462, shows alienee subject to prior judgment. 2. Incumbrance is held extinct by merger, or not, according to’ justice and equity. — 6 Johns. Ch. Rep., 395. 3.

Louis Circuit Court. 1. The first instruction is broad; because, holding a slave to service at the salt works, near Shawneetown, did not, of course, set him free. — See Constitution of Illinois, article 6, sec. 2. 2.

Louis Circuit Court. No exception was taken at the time to the opinion of the court, in overruling the motion to dismiss, because the jury fee had not been paid, and the grounds upon which such motion was overruled has not been preserved; and if the Circuit Court erred in overruling said motion, and exceptions had been taken, the defendant should there have rested his case.— Revised Code, p.464, sec, 20; 7 Mo. Rep., 250, 285 ; 4 Mo. Rep., 445; first part 8 Mo.

Louis Circuit Court. 1. It is alleged in appellant’s bill, and admitted in the answer of said McEvoy, that the amount of said note was owing in stone work. 2. It is charged in said bill, that a demand was made on said McEvoy, for the payment of said note, and admitted in his, said McEvoy’s answer, and that he did not, and would not, pay off said note when so demanded of him by said appellant. 3.

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

Louis Court of Common Pleas; 1. A promissory note may be given in evidence, under the money counts, in an action by the assignee against the maker. — Tatlock vs. Harris, 3 D. and E., 174th American edit., 85, Pierce vs. Crafts, 12 Johns. Rep., 90; Wild vs. Fisher, 4 Pick., 421; Ramsdell vs. Soule, 12 Pick., 126; Olcott vs. Rathbone, 5 Wend., 490. 2.

Louis Circuit Court. 1. If it be said in a lease, that the lessee shall repair, &c., an action will be for not repairing. — 3.Com. Dig., 237. 2. If a man assign an apprentice, though not assignable in law, it amounts to a covenant that the apprentice shall serve the assignee. — 1 Lord Raymond, 683. 3.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. 1. The benefit accruing to the defendant, as a distributee of the estate, from the increase of the assets consequent upon the plaintiff’s taking her note and mortgage in lieu of the judgment, and forbearing to present the same for allowance against the estate until it should be barred, was a sufficient consideration.— 1 Leigh’s Nisi Prius, 27, and note (c) 28, 29; 2 Black. Comm., 445 (n. 8.) 2.

Louis Court of Common Pleas. 1. The instrument sued on, given in evidence, shows that the issue of the plea of the statute of limitations ought to have been found for the defendants below, and therefore a new trial should have been granted.' — ■ Rev. Code, 1825, p. 510. 2.

Louis Court of Common Pleas. The only question of importance presented by the record in the case, is the action of the court below in directing a nonsuit, when, from the evidence on trial, it appeared that the plaintiff’s cause of action originated in a contract entered into by him and another.

Louis Court of Common Pleas. By the common law, it is in the discretion of the Court to set aside a judgment by default, on affidavit of merit, so that a term is not lost to the plaintiff. Held: that the power of the court over the subject of new trials did not cease, but that, by virtue of common law powers, the subject might be considered at the suggestion of the party, if substantial justice had not been done, but not as a matter of right on motion.

'APPEAL from St. Louis Circuit Court. 1. Barret’s 4th, 5th and 6th pleas were good. 2. Barret’s 2d and 3d pleas were good. 3. The demurrer to the replications thereto Were good; but whether these pleas Were good or not, 4. Barret’s amended plea (7) was certainly good, whether sworn to of not, rind should not have been stricken out.

Louis Court of Cbmmon Pleas. The appellant’s pleas not having been answered, they might consider them as confessed, and could not be prepared to sustain them. It operated, therefore,- as a surprise, to compel them to go to trial&wkey;See 1 Mr. Rep., Resher vs. Thomas, p. 739, and 4 Mo. Rep., Dempsey vs. Harrison, 270. 1.

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

Louis Court of Common Pleas. 1. The record from the Court of Probate ought to have been admitted as evidence for the defendant below, because it could properly have been proved a true copy by oral testimony, and because it was relevant testimony. — 1 Starkie’s Ev., 155; Peake’s Ev., 28, 29 ; Roscoe’s Ev., 54; 1 Phillips’ Ev., 309. These references show, that a sworn copy of a record was admissible evidence before the jury in the present case. — 6 Mo.

Louis Court of Common Pleas. 1. The notice was insufficient to charge the defendant below. — Story on Bills, p. 451, sec. 382; Ibid., 316, see. 289; 2 Hills’N.Y. Rep., 587; Story on Bills, p. 316, sec. 289; 10 Johns. Rep., 490, Ireland vs. Hip.; 5 Martin’s Rep., (new series,) 359,137; 6 Ibid., 506; 3 Little’s Rep., 498, Bank of Logan vs. Butler.

Louis Court of Common Pleas. 1. The judgment of non pros, was regularly entered, for good cause apparent on the record. — See Rev. Code, 1835, p. 460, sec. 32. 2. No good cause was shown for setting aside the judgment: the affidavit of Mr. Goode is not a part of the record, and if it can be taken notice of, furnishes ño apology for neglecting to reply for an entire year. 3.

Louis Court of Common Pleas. 1. The Bank was not entitled to recover on the evidence given: First, Because there was no legal evidence that the note had been discounted at the bank. The fact, if it had existed, would not have been a substitute for diligence against tlie maker, unless the note had been made and endorsed for the purpose of being so discounted; but whether such be the law or not, there was no evidence here of the fact.

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

Louis Court of Common Pleas. 1. It is respectfully submitted, that the St. Louis Court of Common Pleas committed error in overruling the appellant’s motion for a new trial, for the reasons embodied, in that motion, applying the law to the facts contained in the record. 2.

1. The first and second instructions given to the jury, at the instance of the plaintiff, are erroneous. 1st. They both assume as true the fact of the warranty, (a matter denied by the plea) and direct the jury to find for the plaintiff, if the other material fact in the issue (the unsoundness) be proved. 2d. The second instruction prescribes an improper measure of damages.

<p>1. Insurers are responsible for a loss occasioned by a risk insured against, notwithstanding such loss may be attributable toa the negligence or misconduct — not amounting to barratry — of the assured or his agents.</p> <p>2. Where a steamboat was insured, among other risks, against Jire, and afterwards was put on the floating dock, for the purpose of being repaired, and while on the dock was burned, and such burning was occasioned by the carelessness and negligence of the workmen having the boat in charge, the insurers were held liable for the loss.</p> <p>3. Where the assured stipulates in the policy that the boat shall be completely provided with i( master, officers and crew,” it is no breach of such stipulation that the boat was placed, temporarily, in the charge of workmen, for the purpose of repairs»</p> <p>4. Where the assured agrees that the boat shall be completely provided with te master, officers and crew,” it is necessary to aver, in an action on the policy, that the boat was so provided.</p>

Louis Circuit Court. 1. This proceeding by motion on a bond, for the forthcoming of property attached, is under the Act of Assembly of Feb. 15,1841. — Acts of 1840-41, p. 15. 2. The act was prospective, and does not authorize judgments on such bonds by motion, except in eases where the judgment in the original suit shall he .rendered after the passage of the act.— See the phraseology of the act. 3.

Louis Circuit Court. ■ I. It is alleged in the 8th plea, and admitted by the demurrer, that, at the time of the loss, the boat was not provided with master, officers and crew, within the meaning of the warranty contained in the policy, and that the loss happened while, such non-compliance with the warranty continued.

Louis Court of Common Pleas. 1. The assignment was void, as against the letter and policy of the late Bankrupt Act. 2. The assignment, if otherwise good, was void as assigning the property of Selmes to pay the debts of McFarlane. 1.

Louis Circuit Court. 1. To maintain the action, the plaintiff had to prove that the defendant was a member of the firm of Fontenelle, Fitzpatrick & Co., the drawers of the bill on which this suit is' founded.

Louis Court of Common Pleas. 1st. Appellant contends, that the court below erred in its instructions to the jury: First, Because appellee having failed to go to the jury, on the written lease between him and appellant, and having based his right to recover on the ground of use and occupation, he can recover only so much as the premises were reasonably worth. — Rev. Code, 1835, p. 377, sec. 12.