Volume 9 — Missouri Reports

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The question whether slavery existed in Canada, was a fact for the jury, which the court excluded from from their consideration, by its instructions. 2. That instruction can be justified only on the supposition that there was no evidence whatever of slavery in Canada, or not sufficient to go to the jury. 3. There was sufficient evidence to be left to the jury: 3 Mo. Rep. 544.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The widow in this case takes, in the first instance, under the 3d section of the act concerning dower, R. L., 228, subject to the payment of debts.

The appellant insists: 1. That an inferior court must exercise sound legal discretion in matters of continuance, and such opinion is revisable by this court. 2. That reasonable diligence was used by the party, to procure the attendance of the witness by a summons five days before trial, for a witness in the same county but eighteen miles from the place of trial. 3.

■POINT’S AND AUTHORITIES. The appellant by hi's counsel, will rely upon the following points and ■authorities in this court, to reverse the judgment of the circuit court. 1.

POINTS AND AUTHORITIES, The plaintiff insists to reverse the judgment: 1. That the officer is estopped by his return, and no evidence can he given by him to shew property levied on by him as debtors property belongs to a stranger. 5 Wend. Rep. 207; 2 J. J. Marshall, 26; 3 Mar-: shall Rep. 412-393; 1 Litt. R. 17; 3 Litt. R. 41; 1 J. J. Marshall, 12; 6 Mass. R. 325; 15 Mass. R. 83; 9 Mass. R. 388; 3 Monroe R. 351; 2 Hen. and Menf. 105; 1 Litt. Rep. 16. 2.

<p>1. It is error in the circuit court to allow amendments to be made, except upon terms not prejudicial to the rights of parties.</p>

Louis Circuit Court. POINTS AND AUTHORITIES. I. Judgment should not have been entered oft the award, because there were no subscribing witnesses, as required by statute. Revised Code, 71, § 6. 1. The award was complete, and the office and character of the arbitrators had terminated when the witnesses signed.

The plaintiff insists to reverse the judgment: 1. That no demand of defendant for money is necessary, as this action is in tort. 2. That the officer is bound to use due diligence to serve a capias. 3. That the damages for neglect of duty in serving execution is fixed by law, and does not depend upon proof of actual injury sustained. 4. Sheriff is bound to use diligence to levy execution. 1, J. J. Marshall, 551.

The plaintiff insists to reverse the cause : 1. That assumpsit will lie upon principles of equity when a benefit is conferred to defendant, or injury to plaintiff by defendant’s acts. 2. That an officer holding execution upon a failure of defendants to pay it, upon promise, becoming responsible and paying it, can in assump-sit recover the money; and is upon a good legal consideration. 3.

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

Louis Circuit Court. POINTS. 1. There is no proof that the board of health ever made the order served upon the appellant, nor that it was served upon him by an authorized person. 2. The board of health had not authority to make the particular command in said order or notice. 3. The nuisance complained of was caused by the wrongful acts of the appellee. 4. It was the duty of the city to correct this nuisance.

The appellant insists upon the following points to reverse the judgment of the inferior court. 1st. Because Young being surety only to the principal debt, is not co-security with Kelly in the same degree. The security of Kelly was personal to Fugate and for his benefit alone. Theobald on Princip. Security, 202. Contribution only exists between securities in same degree and for the same debt, ibid, 197.

The counsel for the plaintiff in error, rely upon the following points and authorities to reverse the judgment of the circuit court: 1st. There was evidence of the speaking of the words as charged, and also of the intention of the defendant when he uttered them, as well as of the understanding of the hearers, and that where there is evidence from which a jury may find one way or the other, a court ought not and will not set aside their finding, although such finding may be…

The only point made is, that the court erred in sustaining the demurrer. 1. The first three counts of the plaintiff’s declaration are good, because the instruments sued on were covenants duly sealed by the law of Kentucky, and must be regarded so here. 1 Starkie Ev. 372 ; 3 Tomlin’s Law Dictionary, 441 ; 1 Shep. Touch. 51 ; 6 Binney, 329 ; 2 Coke, 274 ; 2 Bibb, 14; 4 Kent, 462, note C. 2.

1. The giving the notes by the owner of the boat did not discharge the lien, so as to prevent the prosecution of the claim, under the act of Assembly, against the boat by name. 6 Missouri Rep. 552, 555. 2. The giving of a note is not an extinguishment of the original cause of action, unless there was an express agreement that it was given and received in extinguishment, and that the plaintiff took upon himself the risk of the payment of the note.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. The counsel for the plaintiff in error insists that the judgment of the court below ought to be reversed for the following reason : 1. That the court erred in the instructions given. 3. The court erred in refusing the instructions asked by the defendant. First, then, in regard to the instructions given.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. The instructions prayed by the defendants disclose the true law of this case. 1. The original demand was liquidated by the negotiable mercantile paper, the endorsement and delivery of which to Simonds, Morrison & Boggs, who have ever since held and owned them, transferred all right of action to the said parties.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. 1. The right of the plaintiff below is limited and governed entirely by the words of the second section of the act of Congress, of 13th June, 1812, and is confined to “all towns or village lots, out-lots, or common field lots,” included within an out-houndary line directed by that act, and not rightfully owned or claimed by any private individuals. 2 Story’s Laws 1257, act of June, 1812 ; 3 Story’s Laws 1972, act of May…

The following are the points relied on by the appellants to reverse the judgment in this case: 1st. The damages are excessive, the verdict is against the weight of evidence, and the circuit court ought to have granted a new trial. See 4 vol. Mo.

1. The court erred in instructing the jury. The instructions directed the jury to find for the defendant. Hughes vs. Ellison, 5 Mo. Rep. 112. Error in court to instruct that the evidence is not sufficient. La-beaume vs. Dozier, et al. 1 Mo. Rep. 618. Error to give an instruction which takes the case from the jury. Morton vs. Reed, 6 Mo. Re.p. 64. Berry vs. Dryden, 7 lb. 224. 2. That upon the evidence, plaintiff was entitled to recover.

<p>1. An improper refusal of a justice to grant a continuance, is no ground to dismiss a suit upon an appeal to the Circuit Court.</p> <p>2. Upon an appeal to the Circuit Court, the trial is to be had de novo, and no act of the justice can ba assigned for error.</p> <p>3. When a justice improperly refuses to grant a continuance, an application to the Circuit Court for a mandamus is the proper course.</p> <p>4. Making a writ returnable to a day not the regular law day of the justice, is not a ground to dismiss the suit.</p>

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

POINT'S AND AUTHORITIES, 1. The decree and sale thereunder, divested the title to the land out of Talbot, and vested it in the purchaser at that sale, and the transcript of the record of these judicial proceedings was evidence against al^ the world of the fact of the proceedings, and of all the legal consequences of that fact. 1 Green leaf’s Ev. secs. 538, 539. 3 Phillips’ ,Ev. (Cowen & Hill’s edition,) 1821 & 1822, and cases cited. 2.

Louis Court of Common Pleas. The Appellants make the following points : 1st. That where a bond or note is made by several persons, one of whom is principal and the others securities, and the obligee or payee, makes an agreement with the principal for a consideration, to extend the time of payment without the consent of the securities, this discharges the securities.

Louis Court of Common Pleas. Caldahan, for Plaintiff in Error. POINTS AND authorities. 1. The executions of the plaintiffs in error, by the directions given to the sheriff to delay the levy for an indefinite period, became dormant, and constructively fraudulent: the plaintiffs, therefore, lost their preference.

Louis Circuit. Court. POINTS AND AUTHORITIES. if land be conveyed as bounded by “a way” upon one side, this is not merely a description, but a covenant that there is such a way. Parker et al vs. Smith, 17 Mass. Rep. 413. I would refer the court to the decision of the supreme court of Mis-souri, in the case Burnsides’ Executors vs. Russell, that very point was settled, as in the ease of 17 Mass. Rep.

Louis Circuit Court- For reversal of the judgment of the court below, the plaintiff in error makes the following points: 1. The court below committed error in admitting the instrument of writing offered by the defendant in error. That this instrument was irrelevant to the issues, considered by itself, there can be no question. Nor is it made relevant by the testimony of the witness Anderson.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. 1.The judgment by default was irregularly taken, and should have been set aside: First, By our statute, Rev. Code, p. 458, six days are given to plead in term time. Second, This must mean six days on which the court actually sits, because oyer can by law be craved of the instrument sued on, at any time during the period allowed for pleading, and craving oyer is one kind of plea.

<p>I. A party cannot be compelled to take a non-suit. It must be by his own consent.</p>

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

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

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

<p>1. All the parties to a deed are estopped from denying the recitals therein.</p> <p>2. The recital in a deed of conveyance of the payment of the consideration, is in the United States, held to he an exception to the rule.</p>

<p>1. The nature and effect of a contract, depend upon the law of the State in which the contract is made, or is to he performed ; and the form of action given as the remedy for a breach of the contract, upon the law of the State in which the remedy is sought.</p> <p>2. An instrument of writing which our laws regard as sealed, though executed in a State in which the law would not so regard it, is, so far as the remedy to enforce such contracts is concerned, to he regarded as sealed in our courts.</p> <p>3. A plea of the statute of limitation without affidavit, under the act of Feb’y 27th, 1843, is bad, and may be stricken out on motion.</p>

Louis Court of Common Pleas. POINTS AND AUTHORITIES. L It is respectfully submitted that the St. Louis court of common pleas committed error in non-suiting the plaintiff, because the authorities are conclusive, that courts will not refuse to try actions like the one the evidence in the bill of exceptions presents, on-the ground of the same b.eing an idle waste of time. 21 Cora. Law Rep. p. 213, and notes; 3 Price’s Rep. p. 212. 2.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. 1. The court of common pleas had no power to enter judgment of non-suit, after the 'cause was submitted to court.’ R. S. of 1835, title “Practice at Law,” art 4th, sec. 24. 2. The appellant proved all that it was incumbent on him to prove, in order to maintain his action on the draft. 3. The draft, though not a bill of exchange within the meaning of our statute, is still admissible in evidence under the money counts.

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

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

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

<p>1. A note made payable to “D,” agent of the proprietors of the town “S,” is payable to “D” individually, and not as agent.</p>

<p>1. A slave can only be emancipated in Missouri by an instrument of writing executed in accordance with the act of 1835.</p> <p>2. The admissions, or declarations of a person holding another in slavery, as to the residence of the slave in Illinois, cannot be given, until a foundation for such testimony is laid by proof of such residence With the consent of the owner.</p>

<p>1. A judgment ih these, words, viz: “It is therefore considered by the court, that the defendant recover of the said plaintiff his costs, and charges by him in this behalf, laid out and expended, and that he have thereof execution,'* is not a final judgment. A final judgment in favor of a defendant should be in this form: “It is Iherefore considered by the court, that the said plaintiff take nothing' by his writ, and that the defendant go hence without day, and recover against the plaintiff his costs and charges by him, about his defence, &c.”</p>

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

<p>1. M. gave L. a letter of credit, on which goods were obtained. Held, that M. paying the amount of the goods so sold, is entitled to recover of L., although the goods were charged to L, & D„ and is presumed to have paid at the request of L. although no suit had been brought against him.</p>

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

<p>1. An appeal fiom the judgment of a justice, under the act to regulate the proceedings ot Justices’ Courts, in cases of breach of the peace, R. C, 1835, musí Re perfected on the day of trial.</p> <p>2, Such appeals are not governed by the act to regulate proceedings of Justices’ Courts,in civil cases.</p>

1. That the facts stated in the bill and admitted by the demurrer,, show the complainant entitled to a pre-emption right to the land in dispute, by the virtue of the act of Congress of the 1st June, 1840, and the acts to which it is amendátory. (See Acts.) 2. That Jesse and James Lewis, being joint pre-emptors on n. w. qr. s. 18, t. 52, r. 84, were confined to the same, and had no right to any other lands by virtue of the act 22d June, 1838. (See the act.) 3.

<p>1. The by-laws of a corporation must not be repugnant to its charter.</p> <p>'2. The charter of the city of St. Louis establishes the office of Recorder, and fixes his fees, and the corporation can pass no by-law reducing his fees, or depriving him of them in any case ¡n which, by the charter, he would be entitled te receive them. J P J</p> <p>3. A provision in the charter, by which the corporation is empowered to fix the compensation of its officers, does not necessarily carry with it the power to take away fees allowed by the charter.</p>

Louis Court of Common Pleas. POINTS . AND AUTHORITIES. 1.On behalf of the appellant, we insist that the court erred in striking out the proof that the goods were delivered in as good condition as when received, and in refusing an opportunity to prove that the goods were not in good condition when received at New Orleaus, and that they were delivered to Webb in the same condition as when received.

<p>1. A writ of error or appeal, will not lie on a refusal of a circuit court to issue a mandamus to the county court.</p>

<p>1. A court has power to take cognizance of a motion for a rule against a part¡r to show cause liy a judgment of the court obtained ky him, should not be sot aside.</p>

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

In Chancery. POINTS AND AUTHORITIES. 1. The answer denies that the transaction was a loan of money, and security for its repayment, and the proof is not sufficient to establish the fact against the denial of the answer and the deed of the defendant. Thompson vs. Patton, 5Littells’ Rep. 74; Clason vs. Morris, 10 John! Rep. 541; Flint vs. Sheldon, 13 Mass. Rep. 445; Stackpole vs. Arnold, 11 Mass. Rep. 27; Aborn vs. Burnett, 3 Blackford’s Rep. 102; 1 Phillips’ Ev. 567-571. 2.

The plaintiff insists upon these points : 1.' It was against law to enter a non pros., or non-suit the plaintiffs without a rule absolute to give security for costs. 2. The bond given upon the replevin, was sufficient to secure all damages and costs. 3. The court should have set aside such non pros, on motion. 4. The court erred in amending the judgment at a subsequent term, against the security in the replevin bond. 5. There was nothing in the record to amend by. 6.

1. That Mercer, by interfering with the work against the consent of Little, and throwing off the stone from the abutment, where they had been placed by him for the purpose of constructing the work, is such an act of forcible prevention, as discharged him from the performance of the contract. 6 Mo. Rep. 160, and authorities there cited. 2.

<p>1. A party who is liable to be called on as a witness, by his adversary, in a justices’ court5 is equally liable in the circuit court on an appeal.</p> <p>2. Where there are more than one plaintiff or defendant to a suit, originating in a justices’ court, and the testimony of such parties is desired, all should be required to testify. The testimony of those required to testify, or in the event of their refusal, then the testimony of the opposite party can only be used against such as are called upon to testify, and is no evidence against the others.</p>

Louis Circuit Court. POINTS AND AUTHORITIES. In behalf of the appellant, the following propositions are advanced: 1. The demurrer of the defendant, to the replication to the first plea, ought to have been sustained; the replication (infancy) was had; the plea (limitation) was good. But if the plea were ill, still the declaration was bad. 2. The demurrer of the plaintiff to the 3d and 4th pleas of the defendant, ought to have been overruled.

The plaintiff brings this cause here by writ of error, and to reverse the judgment of the court below, relies op the following points : 1. That in trespass all are principals; and those who direct a trespass, or assent to a trespass for their b'enefit after it is done, are equally liable with those who actually commit it; 7 Mo. Rep. 175.

1. The circuit court improperly excluded the bond on Thomas Watson, offered by Daniel Ashby. The matter in issue was, whether or not Daniel Ashby was, at the time he was summoned as garnishee, indebted to Thomas . Watson, and the bond would have conclusively shown that Ashby owed Thomas Watson nothing, but on the contrary, that Thomas Watson was indebted to Ashby. See act of 1835, concerning “Attachment,” art. 2, sect. 15, 16, 19, 20; Adm’r. of Brother-ton v. Anderson, 6 Mo.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The demandants were entitled only to dower of the unimproved value of the premises. 2. That they were only entitled to damages from the time of making demand of dower, i. e. from Oct. 10th, 1843. 8. That the plea filed by defandants below, plaintiffs in error here, was good, and entitled the defendants to costs,.and a judgment according to the plea. 4.

<p>1. When a set-off is filed before a justice of the peace, which exceeds the jurisdiction of the justice, he should treat it as a nullity. And on an appeal to the circuit court, such set-off cannot on motion, he reduced by a credit, so as to be in the jurisdiction of a justice, but the court will regard it as though no set-off had been filed before the justice.</p> <p>2. A set-off may be pleaded before a justice after judgment by default is set aside, if before a trial is had.</p>

1. That complainant is without lemedy at law. 2. The jurisdiction of a court of chancery, in Missouri, extends to all cases in which adequate relief cannot be had in the ordinary course of proceeding at law. (Rev. S. Mo. 506.) 3. That a court of equity has jurisdiction where there is a clear right, and there is no remedy in a court of law, or the remedy is not plain, adequate and complete, and adapted to the particular exigency.

The appellant relies upon the following points and authorities. 1. The record and proceedings in the case of Turner vs. McCarty, were illegal and irrelevant as evidence in the cause. There never was a final trial and judgment upon the merits of the cause.

The points and authorities relied upon by the appellant are : 1. That the plea which was by the court stricken out, was a good plea. See Revised Code, 521. But even admitting the plea to be bad, it should have been objected to by demurrer, and the court ought not to have permitted the plaintiff to withdraw his general replication, and take any advantage of it by motion. 3.

The appellant relies upon the following POINTS AND AUTHORITIES. 1. Whenever timber is severed from the soil, it becomes personalty, and is a proper subject for the action of replevin, (see Cresson and others vs. Stout, 17 Johns. Rep. 116,) and more especially under our statute' which gives the action for detention merely. 2. A trespasser acquires no property, either general or special, to timber by cutting it. See Turley vs. Tucker, 6 Mo.

ERROR’ to St. Charles. POINTS AND AUTHORITIES. 1. The executrix not having given notice to creditors as required by the 25th section of the act concerning “Administration,” Rev. Laws 1835, p. 101 — the defendant, as administrator de bonis non, cannot set up the limitation of three years in bar of the plaintiff’s demand. Emerson vs. Thompson, 16 Mass. 431 j McLin vs. McNamarin, 2 Dev. & Batt. 85; Pendleton vs. Phelps, 4 Day 476. 2.

The bill of complaint should have been dismissed for want of equity. A court of equity has no power to decree the sale of a chattel, and the distribution of the proceeds among the owners thereof. Gudgeil & Austin vs. Mead and others, 8 Mo. R. 53. 2. The court had no power to confirm the sale, because the sale so far as related to the rights of the plaintiff, was void. 3.

1. The declaration is defective. Admitting all the facts set forth, the plaintiff is not injured, because be was not prevented from prosecuting his suit by the alleged acts of the defendant, and he has no right to have the property levied upon, applied to the satisfaction o' his demand, until he has established it by the judgment of the court. See points made in this case, 8 Mo. R.p. 620-1.

1. The verdict of the jury was against evidence and the weight of evidence, and the court erred in refusing to grant a new trial. 2. The circuit court erred in refusing instructions asked by defendant, as it requires three or more to commit the offences charged in the indictment.

POINTS. 1. Is the complainant Berry entitled to the discovery sought in a court of equity, and relief prayed for. 2.

1. The mortgage was given to secure the payment of several demands, and the interest of the mortgagees being several, each had a right to enforce his claim under the mortgage. Burnett vs. Pratte, et al. 22 Pickering, 556. The mortgagees were tenants in common. Statute of 1835, concerning conveyances, sec. 6, p. 119. 2. The mortgagees, Palmer and Lovering, were properly made parties defendants.

1. The appellant contends that the indictment does not pursue the words of the statute, and is therefore bad. See Revised Code p. 202, sec. 6; 5 Mo. Rep. 359, 361. 2. The indictment is bad for duplicity. 3. The indictment is for a.misdemeanor, and charges a felony.

1. The appellees insist that as the bill of exceptions shows there was other evidence given on the trial besides that incorporated in the bill of exceptions, the judgment will not be reversed. 2. That the appellant was not entitled to recover upon the evidence preserved in the bill of exceptions. 3. That this court will not reverse a judgment because an erroneous instruction was given, unless the party shows by his bill of exceptions, that he is entitled to recover.

The Plaintiff makes the following POINTS. 1. The bond was assigned to McClelland, who was indebted to the maker Kilgore, and he notified of the assignment. It could not be legally transferred by the cancellated of the assignment. That McClel-land did not pay McMurtry for the bond at the time, can make no difference — he promised to do so, and the sale was good. 2. It was a fraud on Kilgore to permit McClelland to hold the note until he broke, and then to re-transfer it.

1. The bill charges that the deed from Paul to Marshall is fraudulent and void, and at the same time admits it to be a mortgage, and prays to redeem. 2. It does not show any title in complainant: 1st. The sheriff’s deed is insufficient in not showing that the property was advertised for sale according to law, or that it was sold according to law. See Stat. 1835 p. 258, §38-’9-45. 2d. The judgment rendered by the justice is void, there being no service of process.

1. That it is not necessary that a constable’s bond should set out the name of the township — but that a bond conditioned only to discharge 'the duties of his office as constable, is sufficient. Statute ’35, p. 116, § 2 & 7 ; Sess. Acts 1842-3, p. 75! 2. If it be necessary, it may be shewn that it was omitted by mistake, and the omission supplied by proof. Starkie’s Ev., title Parol Evidence, side p. 556, 657, vol. 2 & note 1; 18 Mass. Rep. 158 ; 2 Dallas, 180.

insists upon the following: POINTS. 1. That the court erred in overruling the motion of the defendant to dismiss the suit. 2. That the court erred in giving the plaintiff’s instructions. 3. That the court erred in refusing defendant’s instructions. 4. That the court erred in overruling the motion for a new trial.

<p>ERROR to Callaway.</p>

1. To entitle Fanning to recover in this action, he was bound to prove the commission of a trespass by Maston, and the amount of damages resulting therefrom. ,(2 Starkie’s Evidence 802.) 2. That if Maston had a pre-emption right to the land at the time the timber was cut, he was not liable in this action. (See acts of Congress, 1838-40. Mo. Decisions, January Term 1845, Lewis vs. Lewis; 2 Star. Ev. 815.] 3.

1. By the death of Samuel Allen,'the lands conveyed to bim descended upon his heirs, and they were necessary parties to the complainant’s bill. If so, no decree could lawfully be entered for the sale of said land until all of said heirs were before the court, and the same reasons demand that Glover & Anderson, the subsequent mortgagees, should have been made parties; 1 Tucker’s Com. part 2, p. 130; 6 John. Ch. R. 450; 1 lb. 350; 2 Tucker, 496; 4 John. R. 606 ; 7 Monroe, 496.

POINTS. 1. That if the record of former recovery was not good under the issue of nul tiel— yet that it was good evidence under the general issue, and might thus constitute a good defence to the second count, and consequently a good bar to the whole action, since the defendant below was found not guilty under the first count. 2.

POINTS. 1. The confirmation to Woods of his grant according to the survey, gave him a complete title to all the land within said survey. See 2 Howard, Stoddard vs. Chambers. 2. The deed from Woods to appellants being filed for record, within three months from its date, was a sufficient recording under the statute, although not actually copied on the record for several days after the expiration of the three months. And being recorded, passed the title from its date.

1. It is not competent for the mother to consent to the marriage of her minor child, when that child has a guardian. The county court has power to appoint a guardian, not only when there is no parents, but also when the parents shall be unfit for the duties devolving upon them. When so appointed such guardian supersedes the parents in their natural right and has entire control over the ward. 2.The plea is bad because it does not allege the father to be dead or disqualified.

1. The bond sued on, was found on file in the office of the clerk of the county court, and the approval of the court, even if considered necessary, will be presumed. Jones and others, vs. the State, to the use of Blow, 7 Mo. Rep. 81. 2. It was given after the election of the defendant, Moore, as sheriff and before entering upon the duties of his office as collector, and although it was executed several months sooner than the statute required it is nevertheless valid.

<p>ERROR to Ste. Genevieve.</p>

1. The instrument of writing offered in evidence, did not correspond with the declaration — is not a promissory note. 2. There was no evidence of the assignment by the firm of Bird & Glasgows, as set out in the declaration — it being proved to be in the hand writing of a memher of another and different firm. 3. The firm of Bird & Glasgows was proved to consist of persons different from those described in the declai ation. 4.

POINTS. 1. A court of equity has no jurisdiction, the subject matter being proper for a court of law. 2. The proper parties are not made, and on this bill the court cannot do complete justice. 3. The merits are with the defendant.

Charles. POINTS. The plaintiff contends : 1. The jury must be supposed to have taken the law from the court, and if misled by the court as to the law that governs the case, they erred in a matter of law. 2. The statements of the Judge in this case, were calculated to mislead the jury as to the construction of the law and the legal right of the plaintiff to' recover. 3.

1. Nothing can be assigned for error in this court “except such as was made the subject of exceptions below.” See Swearingen vs. Newman, 4 M. R. 456; Shelton vs. Ford&Whitehill, 7 Mo. R. 211; Steamboat T. vs. Erskine & Gore, lb. 251. 2. The defendant excepted, first, to the introduction of the lease, made an exhibit in the bill; second, to the overruling of the motion to set aside the decree; third, to the exclusion of certain deeds offered by them in evidence.

The evidence and proceedings in the cause not being preserved in a bill of exceptions, the court will presume that the circuit • court properly overruled the appellant’s motion to set aside the verdict and grant him a new trial.

<p>Where a cause is tried by the court sitting as a jury, and no exceptions are taken until after a verdict is rendered, the judgment will not he reversed in the supreme court.</p>

POINTS AND AuTHORITIES. 1. It is not alleged in the declaration that the order of the county court upon Isaac Cotton, the original Adm’r. to pay over the moneys and effects in bis hands to the plaintiff, the Adm’r. de bonis non — was made upon a final settlement of his, the original Administrator’s, accounts. This objection goes to tbe whole declaration. Revised statutes, p. 44, § 34. 2.

It is insisted by the counsel for complainant, (Bogarth,) that the circuit court did err in dismissing said bill; First, Because he could not have adequate remedy elsewhere. Second, Because, when said complainant bought said land and executed said bond, it was with the understanding that said sale was in all things legal, and that*the sale would be valid' to convey to the purchaser a bona fide title.

<p>APPEAL from St. Francois.</p>

1. The final settlement made by Caldwell in 1838, was in every respect in conformity with the law, and from the time of his resignation all his powers then ceased. Revised Statutes 1835, title, Administration, 1st art. sec. 30 & 31. 2.

The .plaintiff insists that the judgment was erroneous, and should be reversed, for the following reasons : 1. The circuit court erred in excluding from the jury, the record offered in evidence by the plaintiff, from Hart county court, in the State of Kentucky. See Laws of U. S. May 26, 1790, ch. 11; Ferguson vs. Hartwood, 7 Cranch 408.

<p>A note given to “U. administrator of the estate of II. dec’d,” is the indiv'dual property of K. The words “administrator, &c.”are a mere descript.io persona.</p>

Louis Court of Common Pleas. POINTS. 1. The words “Surveyor General,” to the name of Silas Reed, in his account with the Bank, and him used in drawing checks, were mere “descriptio person®,” and could not operate to give any official •character to the money to his credit under that style in the Bank. (7 Mo. Rep., p. 351, 298; 9th Mo. Rep., p. 169.) 2. The evidence shows that when the Bank was garnisheed, the Bank owed Silas Reed $1,644 72. 1.

Louis Circuit Court. POINTS AND AUTHORITIES. 1- There was no attachment of the specific money collected by the sheriff, the same not having been seized, by the attaching officer and kept in his custody. Rev. Laws of 1835, $ 6, p. 77. 2. The money could not be attached in the sheriff’s hands, because, First. The money collected by the sheriff is not the property of Marvin, until paid over to him.

Louis Criminal Court. The State relies on the following points and authorities, to reverse the decision of the criminal court: 1st. It was in the power of the legislature to repeal the act granting to the managers the power to raise money by lottery, so long as that power remained in their hands. See Freliegh vs. the State, 8 Mo. Rep. 606 ; State of Delaware vs. Phalen & Paine, 8 Harrington, R. 452. 2.

Petition for Mandamus. POINTS AND AUTHORITIES. 1st. The attachment bond of Richards, Bassett & Aborn, was substantially defective. See Session acts of 1837, p. 8, § 1. Session acts of 1839, p. 7, § 3, and p. 8, § 19. 2d. It is such a defect as cannot be amended. See Mantz vs. Hend-ley, 2 Hen. & Munn, 308; McDaniel vs. Sappington, Hardin’s R. 94; Stephnson vs. Robbins, 5th Mo. R. 21; Caldwell vs. McCree, 8th Mo. •R. 385; Bridgeport vs. Steamboat Elk, 6th Mo.

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

Louis Circuit Court. The appellant claims a reversal of the judgment of the circuit court on the following grounds : 1. The enquiry was executed at the return term of the case, which was irregular, the defendant having then no day in court. Rev. C. 1835, title, Practice at Law, art. 3, § 35; art. 7, § 10, 11 and 12. 2.

Louis Circuit Court. To generalize the questions in this case, before examing the instructions in detail, I submit the following propositions : 1st. That upon reason and authority a loss to a steamboat occasioned by tho ljursting of a boiler, is a loss covered by the policy. 11th Ohio Reports, 147. 2nd.

Louis Court of Common Pleas. POINTS AND AUTHORITIES. 1. The court erred in admitting the copies of instruments annexed to the deposition of Jones. There was no evidence offered of any thing to prevent the production of the Originals. 2. The court erred in permitting the plaintiff to read in evidence the record from New York; and this error is not cured by the court after-wards on the plaintiff’s motion, telling the jury that the record was not before them. 8.

Louis Circuit Court. POINTS. 1st. The limitation in the conveyance of Clamorgan to Brazeau, and Brazeau to the children, did not restrain the children of Clamorgan from making partition before they were twenty-jive years of age. The words of the limitation are, that they should not be able to use the same by selling, pledging, or mortgaging it, before the youngest should attain the age of twenty-five years. 2nd.

Louis Circuit Court. POINTS AND AUTHORITIES, 1. The certificate of the Recorder of Land Titles, dated 18th August, 1842, was improperly admitted in evidence, 3 Story’s Laws U. States, 1972, act for procuring cultivation, &c., before Recorder D. C. The land in question was not a “lot” in the meaning of act of 13th June, 1812, and was not therefore confirmed by that act; and the Recorder had no jurisdiction of it. 2.

Louis Circuit Court. The only question involved in the case is understood to be, whether the delay of the constable to levy the execution in favor of Field, had the effect to postpone it to the attachment ? And it is insisted, that no delay of the officer not procured or directed by the party, can have the effect to deprive the latter of his lien; 5 Cowen, 390; 12 Wend. 405; 4 Rawle, 376; 5 Watts, 302.

<p>ERROR to St. Louis Court of Qommon Pleas.</p>

<p>1. Under the statute of 1835, regulating proceedings against boats it is not necessary that the complaint should follow the words of the statute.</p> <p>2. A demurrer assigning special causes, is to be regarded as a special demurrer, although it may contain a general assignment.</p> <p>1. Whereby a rule of the St. Louis circuit court, leave to plead is refused upon overruling a special demurrer, the sup. court will not interfere with a judgment entered up by the circuit court upon overrulling such a demurrer. It is a matter of practice to be regulated by the discretion of the circuit court.</p> <p>4. When a judgment upon demurrer is entered for the plaintiff, the plaintiff’s cause of action is admitted as stated in his pleading, and the only matter for the jury on an enquiry is to ascertain the amount of damages.</p>

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The legislative power vested by the Constitution in the General Assembly is absolute over all matters of domestic government, unless restrained by provisions contained in the State or National constitution. 2. The State Constitution imposes no restriction upon the power of the General Assembly in this respect. 1 Tucker’s Commentaries, 162-3-4. 3.

Louis Circuit Court. POINTS AND AuTHORITISS. 1. The deed from Janes to Loper was improperly admitted in evidence, it not having been sufficiently proved ; Rev. Code, 121, sections 14, 15, 16. There is a failure in the certificate to alledge the identity as the law requires; and also it is not stated that the clerk •personally knew the subscribing witness, &c. 2.

Louis Criminal Court. The appellant contends that the city of St. Louis has exclusive jurisdiction by its charter, to license and regulate all ferries within its corporate limits, and refers to the following acts of the legislature: Sec. 2d, 3d art. of act chartering the city, approved the 8th February, 1839; page 160 of session acts, giving the city exclusive power within the city to license and regulate the keeping of ferries; and also fi d see. 3d art. of the charter,…

Louis Circuit Court. . The appellants submit the following propositions : 1st. The plaintiff claimed vindictive damages, and, in the third instruction given, the court says he was entitled to it, thus placing before the jury the motives of the defendants, and “ all the circumstances which give character to the assault,” as proper for their consid« radon.

Louis Court of Common Pleas. POINTS AND authorities. 1. The promise of the defendant to pay the money for the wood boat, if he should fail to replace it, was proper evidence under the count for an account stated. If a fixed and certain sum is admitted to be due to a plaintiff, for which an action would lie, it will be evidence to support a count upon an account stated; 1 Chitty’s P. 391. 2.

<p>In a suit brought by a husband against his wife for divorce on the ground of habitual di unk-enness for more than two years, the wife may recriminate, that he has been guilty o adultery. A-nd such fact being found will prevent his getting a divorce.</p>

Louis Court of Cbmmon Pleas. Of the errors assigned, the plaintiff relies on the following: 1st. The court erred in not permitting Bredell to be stvorn in chief. If interested at all, his interest was such as went to his credibility, not to his competency. 2d. The court erred in the instruction which it gave to the jury.

Louis Circuit Court. The only questions to be presented are— 1st. Can the profits of the land be set off against the principal, as -well as the interest of the debt P 2nd. A question of fact only, which was not. disputed in the circuit court. Do the answers and the testimony as saved, show that the profits of the land did equal or surpass the debt and interest? 3d. The sheriff’s return on said execution was unlawfully excluded from being given in evidence.

Louis Court of Common Pleas. POINTS. 1. Tho question of the sufficiency of the first additional plea does not arise ¡.a chis case; and, even if it did, the plea embraces a good de-fence. :3 ,3ac. Abr. 384; Rev. Code 1825, p. 384, sec. 7; do. p. 500, sec. 13 knd, by the Spanish laws, the v/idow forfeited her right to the aci¡. Litions made by the husband during marriage, by elopemeni and aduit.'cy. See Dupondan’s opinion. 2.

<p>When there is a r.inning account of articles furnished hy a mechanic, for a'biiildii'.'í, if i'ie last item be furnished within six months of the commencement of the suit, he is entitled to recover on the whole account.</p>

Louis Circuit Court. On the part of the plaintiff in error, it is contended that the judgment below should be reversed because the issues which were joined to the country, were tried by the court without the consent of the defendant. This is against the legal and constitutional right of the defendant, and the trial cle facto having been had, ex parte, makes no difference. The record shews that there was a verdict by the court, and judgment upon said verdict.

Louis Circuit Court. POINTS. 1. During the term, the lessee may remove fixtures set up for trade, but after the term they become a gift in law to him in reversion, and are not removeable. Poole’s case, 1 Salkeld 368; Holmes vs. Tremper, 20 John. Rep. 29; 2 Kent’s Com. 544 and 345; Lydé vs. Russell, 1 B & A, 394; 20 vol. Com. Law Rep. 407. 2. Unless the lessee uses his privilege during the term to sever them, he cannot afterwards do it.

Louis Court of Common Pleas. It is contended for the plaintiff that the contract having been rescinded, there was, at the time of bringing suit, no valid contract existing, affecting the right of the plaintiff to recover alone, and in his own name, for he alone had paid the money for which he had received no consideration.

Louis Circuit Couit. 1. The case described in the bill comes within one of the classes of cases in which chancery will decree a specific performance, notwithstanding the statutes. See Fonblanqiie’s Equity, p. 150 — top page; Sugden on Vendors, bottom page, 114 & 115; 2 Story’s Equity Commentaries, page 66. 2. Even if the contract described in the bill had not been specific in its terms, it could not be dismissed.

Louis Court of Common Pleas. The plaintiff in error relies for a reversal of the judgment of the common pleas, on the following grounds : 1. The confirmation by the recorder of land titles, confirmed by the act of April, 1816, vested in James Mackay, a tract of thirty arpents, bounded west by the east line of the St. Louis commons. 2.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The letter of Madison Y. Johnson, offered in evidence by the complainants below, tending to prove the first issue, to-wit: whether the deed of the lot in question, made by J. H. & M. Y. Johnson, was made with the intent to defraud their creditors, was improperly excluded by the court. 2 Starkie’s Evidence, 29, that “all a man’s acts and declarations shall he admitted in evidence whenever they afford any presumption against…

Louis Court of Common Pleas. POINTS AND AUTHORITIES, 1st. The court below erred in instructing the jury, that they were bound, on the evidence before them, to find for the defendant. This instruction virtually took the whole case from the jury. Chamberlin vs. Smith’s admr.; 1 Mo. Rep. page 341, 2nd ed.; Labeaume vs. Dodier, et al.; 1 Mo. Rep., 441, 2nd ed.; Hughes vs. Ellison, 5 Mo. Rep. Ill; Morton vs. Reed, 6th Mo. Rep. 73; Glasgow and Harrison vs. Copeland, 8 Mo.

Louis Circuit Court. POINTS AND AUTHORITIES. 1st. On the demurrer. The plaintiff’s declaration leaves the. money in the hands of O’Neil until his death, and shows no person ,o existence who was permitted bylaw to pay it to his successor, or to meddle with it. No administration appears to have been taken on the estate of O’Neil. There was then, no breach of the condition of the bond. This case is not like the case of Dariand vs. Cotton, et. al., 9 Mo.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The ansv/er of the garnishee is evidence in his favor, and is to be taken to be true until disproved. Davis vs. Knapp & Shea, 8 Mo. Rep. 657. 2. Like an answer in chancery, that of a garnishee must be disproved by the testimony of two witnesses, or one witness and circumstances equivalent to the testimony of another. 2 Story’s Eq., 734-44.

Louis Circuit Comí. POINTS AND AUTHORITIES. 1. That the affidavit annexed to the complaint is insufficient. He swears only to the “ best of his knowledgewhereas it should have stated the complaint to be absolutely true; 6 Mo. R. 357 8; Chittv on Bills, 348. 2.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The said writ was illegally issued, because issued on hearsay alone. The recital in the writ shows that it was issued on Dayton’s affidavit, and the matter of the affidavit which is the basis of the writ, is only the information to Dayton by Paulding ; 10 Wend. 420 ; II J. R. 175. 2.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The complaint was sufficient and legal. See session acts 1839, p. 13; Dig. 1835, p. 103, § 4. 2. The warrant was defective, but the defendant forfeited all right to take advantage of such defect. See sess. acts 1840-’41, p. 103, § 8 and § 9. 3. Nor could such defect in the warrant have been fatal in any event. See Sherman vs. The Proprietors of the Connecticut River Bridge, 11 Mass. 357. 4.

Louis Circuit Court. POINTS AND AUTHORITIES. 1. The statute of this State does not irnpo.se a lien upon, or authorize an action against a vessel by name, upon a note given by the master— such note may be evidence of the amount due, but the cause of action must be alleged and proved to be one of those enumerated in the statute. Revised Code, 1835, p. 102, acts 1838. 2.

Louis Circuit Court. POINTS AND AUTHORITIES. , cou:ft erred in giving the instruction asked for by the plaintiffs below. 1. That instruction assumes that the defendants knew that the note in question belonged to plaintiffs; and that they knew this at the time they credited Anderson with the proceeds of said discounted note. 2. It assumes that said note at the time it was discounted, belonged to the plaintiffs. 3.

<p>ERROR to-Greene Circuit Court.</p>

Lester was condemned to be hanged, by the circuit court of Jackson county, on the 2d January, in the year 1846. He moved in arrest of judgment, and his motion was overruled.

<p>Petition for Mandamus.</p>

<p>APPEAL from the Polk Circuit Court.]</p>

1. In the argument of this cause the counsel for appellants will insist that the guarantee of Childs to pay for the building materials which were sawed and furnished by plaintiffs to McCourtney, as therein and thereby specified, was and is a direct unconditional and positive undertaking on his part, and not a collateral or conditional one; and that the plaintiffs, to sustain their action were only bound to prove the making of the guaranty, and the delivery of the materials…

The plaintiff has assigned for error, the said several opinions of the court excepted to, and he will rely in the argument of his cause in this court, upon the following POINTS AND AUTHORITIES.

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

<p>No appeal will lie from the refusal of a circuit court to discharge a prisoner, on a writ of habeas corpus.</p>

<p>1. The clause in the charter of Jefferson City which gives to the mayor and hoard of aldermen, power to “regulate the police of the city,” gives them no power to pass an ordinance for the punishment oí indictable offences.</p> <p>-, By the charter, the aldermen have the same criminal jurisdiction as is possessed by justices of the peace under the general law.</p>

<p>A prosecutor is not necessary on an indictment upon the 15th section, 7th article, act concerning crimes and punishments, R. C. 1835, for disturbing the peace of a family by -loud noises, &c., in the night — that not being a trespass either to the person or property of any one.</p>

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

The plaintiff insists upon these points to reverse the judgment: L That evidence to prove witness’ understanding ©f the legal effects of a contract, to be. different from the substantial contents of an absent contract, is illegal and incompetent; 7 Mo. Rep. 515. 2. If defendant has collected money for plaintiff, and a demand is made, and .no payment, a recovery can be had, and for interest from refusal. 3.

The onus probandi, lies upon the defendant pleading an erasure in his agreement sued upon after signature, to prove it, for the presumption of law is, that such erasure was made before signing, and being an alteration only, made by a stranger, does not avoid it. 2d. That the declaration of persons in possession of the writing sued on, made out of the presence of the party to be charged, is no part of the res gestee, is hearsay, and illegal evidence. 3d. That all testimony…

1. From all that appears upon, the record, J. Barton Bates had no authority either to practice as an attorney at law, or to prosecute the said notice for said defendant. See 3rd Monroe, page 192; 6 Mo. Rep. 439; Theobald on Principal and Agent, page 244 and 256. 2. The judgment being general was not therefore void, and if not void, it was both binding and operative until reversed upon appeal or by writ of error.

1. That the lot in controversy was confirmed to the children of Russ. 2. That their title as proved was sufficient to maintain the action. 3. That the deed to Andrew Henry, did not operate a bar to the recovery of plaintiff, because it was not a present operation and subsisting title. 8 John. R. 375; 6 Peters’ Rep. 312. 4. That a trespasser in the condition of defendant, cannot protect himself by shewing an outstanding title in a stranger, superior to plaintiff’s. 4 John.

It will be contended on the part of the appellant: 1. That the order of James Clemens, endorsed on the original execution, was a supersedeas to that execution, and that by the seizure under that execution, no property of defendants was altered. 1 Mo. Rep. 154, Brown vs. the sheriff of Cape Girardeau. 2. It will be contended that there is in the present case, and in a supersedeas on a writ of error, a strict analogy. See Bac. Ab., title Execution, letter Q. 3.

The point relied upon by the plaintiffs, is, that the court ought to have given both the instructions asked for by the plaintiffs. The mortgage deed being the instrument sued upon, and being read in evidence to the court without any objections, was not only good evidence, but the very best that could have been offered; and the court in deciding that it was not sufficient to warrant a verdict for the plaintiffs, violated the plainest principle of evidence.

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

For the reversal of this judgment, the plaintiff in error will insist upon the following POINTS AND AUTHORITIES.

Assigns the following as sufficient reasons for a reversal of the judgment of the circuit court: 1. That the lien of a judgment creditor expires upon the debtor’s death upon his real estate. 2. The lien at law is a general lien, and not becoming specific by a levy before the death, upon any portion of the realty, the judgment creditor cannot acquire a general lien upon the lands of the deceased, after the death. 3.

Charles Circuit Court. Insists that this court has jurisdiction of this case. This court is a tribunal created by the constitution, and where powers are conferred, and duties devolve upon it, by the constitution, no enactment of the legislature can take them away. The constitution, article 5th, sec. 3, says this court shall exercise a general superintending control over all inferior courts of law.

The appellants rely upon the following points and authorities to reverse the judgment of the circuit court: 1. This being a suit by attachment, and the truth of the affidavit being the true issue submitted for trial, it was right and proper that the plaintiffs should have been allowed to give the jury any evidence tending to show an intent to remove their property for the purposes, and in the manner sworn to in the affidavit.

<p>The sci.fa. to revive a judgment, set out the judgment as follows: “As well the sum of $1,200, a certain debt, as the sum of $248 for his damages which he had sustained, as well by reason of the detention of that debt as for Ms costs,” ^-c. On the issue upon the thepU-iof nul tiel record, the record offered in evidence shewed a recovery of $1,200 debt, £2-18 damages and cosis. Held, to be a fatal variance on the plea.</p>

To reverse the judgment of the circuit court the plaintiff in error will insist upon these points : 1. That the defendant was not liable if he bona fide believed the person to be a free man, and merely permitted him as such to go on his boat as a passenger. See 7 Dana Ky. Rep. 252; Story on Bailments, section 591; 2 Cowper, 476.- 2. That the damages were excessive and outrageous.

The plaintiff in error relies on the following points : 1st. The evidence offered was legal and relevant, and ought to have been given to the jury. Whether sufficient to prove the facts relied on, was for the jury, and not the court. 2d. The facts sought to be proved were, sufficient to defeat plaintiff’s entry. See the late case of Hill vs. Groom.

<p>1. In an action upon an assigned note, it is only necessary for the plaintiff to offer prima facie evidence of the assignment, to entitle him to read the assignment in evidence to the jury.</p> <p>2. Proof that the maker had admitted the assignment, is sufficient evidence to authorize the plaintiff to read the assignment in evidence.</p>

<p>In an action of slander, the meaning of the word “fuck" need not be averred. Although lexicographers may be too modest to give its definition, it is nevertheless an English word, the meaning of whi h is well understood.</p>

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

<p>Where a parol agreement has been entered into between A and B, and A subsequently takes from B a higher security, the law presumes the parol contract to be merged.</p>

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

The plaintiff seeks here to reverse the judgment of the court below, and will urge that it can only be sustained upon the hypothesis, that either, or both of two following propositions are true, to wit: 1st. That the party for whose use this action is brought, had no interest in the subject matter of the decree. 2nd. That he is bound by the decree, to which he was not a party.

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

To reverse the judgment of the circuit court in this case, the plaintiffs here rely on the following points. 1.

1. The sale was made under an irregular process,because it did not follow the judgment by setting forth fully the. names- of the defendants therein; Bingham on Executions, p. 178-186; 6 Term. Rep,p. 52o, Tidd P. 998. An irregular fi. fa. is void, and of course all acts done under it; 1 Cow. R. p. 711; 3 Marshall Rep. 618. 2.

1. The judgments of the circuit Court of Franklin county, allowing the demands of Alexander McKinney against the estate of Robert Me-Kinn'ey, are conclusive in this proceeding.

The plaintiff contends to reverse t'he judgment, 1st. That the bond, judgment, execution and default of the sheriff, are fully proven. 2nd.

It is insisted by the appellant that the circuit court committed error, for the following reasons: 1. The rights of the plaintiff’s intestate to the slaves, depended on the fact whether the defendant had given them to his daughter.

On behalf of the appellants it will be contended, 1st. That the instructions given by the court below at the instance of the plaintiff were wrong; tending- to mislead the jury. 2d. That the instructions refused the defendants below should have been allowed. 3d. That the circuit court erred, in refusing to admit the evidence offered by the defendants, showing that the lands entered by John Perry on the 26th November, 1839, under the pre-emption act of congress of the 9th…

In support of the decree of the circuit court, the counsel for the ap-pellees will insist upon the following : POINTS AND AUTHORITIES. 1. The defendants, and their ancestors, had the legal title twenty, and the posession thirty years, and they will not be disturbed by this court, unless the complainants establish a clear equity in themselves, to be clothed with the legal title. Bird, et al. vs. Ward & Cravens, 1 Mo. R. 281, new publication. 2.

1. The evidence was not sufficient to prove either malice or want of probable cause. The weight of evidence is decidedly the other way; therefore a new trial should have been granted. 2. Plaintiff’s own statement to Hickman, Riney not being present, was illegal evidence. He could not in that way make evidence for himself. 3. Riney’s evidence before the justice ought to have been admitted. The question was not what Vanlandingham swore, but whether what he swore was true.

Makes the following appoints: 1. The deed and defeasance made at the same time, taken together, have the effect of a..mortgage. Gibson having the power to redeem at any time before January 1,1840, by refunding the money and returning the note. 2. Gibson’s sale and assignment to Steele, invested Steele, in equity with the same right. 3.

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

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

The grounds relied on by the plaintiff to reverse the judgment, are 1. That there is a material variance between the note specified in the petition, and the note read in evidence. The note specified in the petition is described as one which draws interest at the rate of ten per cent, per annum, and the note read is for the payment of four hundred dollars with ten per cent, after date. The variance fatal, as the difference is descriptive of that which is material. 2.

The account of the plaintiffs was fully proved, and the only evidence on the part of the defendants, was the testimony of Applegate in relation to the rate of exchange. Admitting the rate of exchange to have been as stated by this witness, still there was a balance due to plaintiffs. 1. Plaintiffs in error cannot object in this court to any proceedings in the circuit court, unless the objections were made, and exceptions saved in the ciruit court. 2.

The counsel for plaintiff in error contend that the judgment of the court below should be reversed for these reasons : 1. The court below committed error in permitting Nolley to testify as a witness for defendant, he being a co-obligor with said defendant: 2. The court committed error in not granting the plaintiffs a new trial upon their motion to that effect, for the reasons therein given. 3.

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

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

Makes the following POINTS. 1. The counts are double and repugnant, in charging the notes passed to be both forged and counterfeited. 2. They are repugnant in describing different notes from those set out in the indictment. 8. They are repugnant in describing them as promissory notes, when those set out are not notes but drafts. 4.

Francois Circuit Court. 1. The instructions of the court contain a correct exposition of the law governing the case. In order to maintain an action for a malicious prosecution, it is necessary for the plaintiff to show, 1st, that the prosecution was instituted from malicious motives; and, 2nd, that there was no probable cause for instituting the prosecution. If either of these be wanting, the action must fail.

To sustain the decision of the circuit court, insists : 1. That the evidence objected to, ought to have been admitted, as it was a continued transaction. 2. The instructions asked by defendant, ought to have been rejected ; the first being too general, and the others restricting the issue. 3. The instructions of the court were properly given. 4. The indictment is sufficient. Johnson vs. State, 7 Mo. R. 183; Stat. 535, Cr. & Pun.

<p>]. Where the circuit court has ordered the defendant to file a bill of particulars of a set off of which the defendant has given notice, upon failure to comply with the oidei, it is competent for the circuit court to exclude all evidence of a set off.</p> <p>2. Evidence that defendant had given witness a- draft on plaintiff, and that plaintiff had promised to pay it when presented, requested time, and did not pay the «iraU, and that at same time plaintiff said he was indebted to defendant five or six hundred dollars, and that their business was unsettled, is competent under the plea oí -jon-as-sumpsil.</p>

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

The only point made by plaintiff in error is: That the court erred in giving the following instruction: “That if the negro died during the year, without the fault of the de= fendant, that the plaintiff could only recover on his bond up to the time of the death.” He insists that the hiring is in the nature of a sale of the services of the slave for a year, and that defendant took him at his own risk. The contract was complete on the delivery of the slave.

Seeks to reverse the judgment below for these reasons : 1. The admission of illegal, incompetent and irrelevant testimony. First, the deposition of Robertson, (book-keeper of the bank,) to prove the contents of his books, and the acts of the officers of the bank in discounting and renewing notes. Second, the admission of Abraham Buford, jr., to prove the loss of the original note, by applying to the bank for it — the same never having been in his possession.

<p>1. As a general rule, a bailee may deliver goods deposited with him, to the bailor or his order, although they may have been sold by the bailor since his deposit.</p> <p>2. Where a bailee having a Hen on goods, agreed with a vendee of the bailor to deliver them to him upon payment of charges, and then refused to comply with his agreement^ and delivered them to the bailor, it is evidence of a conversion.</p>

Presents the following points on behalf of appellants : I: The contracts of Jones & Goode are radically different, and could not consistently with law be joined together in the same action. 2. The bond sued upon was not the foundation of the suit against Goode, nor was the endorsement thereon the foundation of the action of debt against William T. Jones. Brown v. Lockhart, 1 Mo. R. 409. 3. The evidence therefore was illegal and inadmissible without proof, if then. 4.

Make the following POINTS. 1. The collector’s bond ought to have been read. It tended to prove that the collector Avas legally in office. The only objection to it is that it was not recorded — this does not avoid the bond or nullify the acts of the collector. The law is only directory. 2. The exhibit (A) in Barcroft’s deposition, ought to have been read as a part of the deposition.