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Entered according to Act of Congress, in the year Eighteen Hundred and Fifty-nine, By C. ROBEKT BAEOLAY, In the Clerk's Office of the District Court of the United States, in and for the Eastern District of Missouri. BT. LOUIS:— B. p. STUDLffiY AND CO., PEINTEES. OOI^TEISTTS. Cases Omitted in the Text, vi. Index, ix. List or Cases, xxi. List of Judges, xciv. Text — ^Abstkact of Cases, ..'. 1 Constitutiok of the United States, List of Refeebnces to, 707 Constitution of Missouri, List of Eefekenoes to, 708 List of Statutes Construed, &c 712 St. Louis Coukt of Common Pleas — Act Establishing, Consteuf.d, &c 782 The St. Louis Criminal Court — Act Establishing, Construed, &c 783 •* The St. Louis Land Court — Act Establishing, Construed, &c 783 The Law Commissioners' Court — ^Act Establishing — Construed, &c 783 List of Laws declared Constitutional 783 List of Laws declared Unconstitutional 785 St. Louis Laws 786 Local Acts — Construction of , 787 Acts of Congress Construed, &c 789 CASES OMITTED IN THE TEXT.* CRIMINAL LAW— PRACTICE. The defendant was indicted under the statute (R. S. 1835, 209, § 31) for selling "fermented liquors" after nine o'clock on Sunday morning, and was found gtiilty. The fact was that he sold Ale, and some evidence was given tending to show that ale was a fermented liquoi* — Held, that whether ale was a fermented liquor or not was a question of fact for the jury. Bach V. 2he State, viii. 497. NOTES— CONSIDERATION. The defendant executed his note to the plaiutiif for the latter's " equitable title" to certain lands ; but the plaintiff had no available title whatever, and it was heid that there wa.s a total failure of consideration. Jones v. Shaver, vi. 642. When the purchaser is in possession of the land sold, and a deed of it has not been refused, a parol agi-eement by the vendor to convey, constitutes a valuable consideration for a promis- sory note for the purchase money. Ott v. Oarland, vii. 28. The defendant gave his note for a part of the price of an improvement on public land, the vendor warranting the "claim against all fiiture claims or pre-emption rights" — Held, that the fact that the claim was diuided by a river, and that the land oflicer refused refased to permit the defendant to enter the portion of land on one side of such river, did not constitute a failure of consideration. The remedy, if any, is on the warranty. Johnson v . Lewis, x. 1 53 . The defendant made his note to the plaintiff for the purchase money of certain lands, payable in instalments, so as to meet amounts becoming due on a mortgage to which the lands were subject. The failure of the defendant to pay his note as the instalments fell due disabled the plaintiff from paying the mortgage, and it was foreclosed upon the land. — Held, that the failure of the plaintiif to pay the mortgage constituted no ground of defense against the note, since such failure was caused by the defendant's own fault. Clark v. Condit, xi. 79. Nor is such defense available in chancery. Same Case, xiii. 222. Where the vendee of lands executed a negotiable note for the pm'chase money to a third party, the fact that the vendor failed to make to the vendee a good title is no defense to the note. Glascock V. Band,xiv. 550. Where a note given for a quit claim deed was payable unless the grantees should, within twelve months, establish the fact that the grantors had no title, it was held, that if the grantees failed to establish such fact within the twelve months, they could not afterwards avail themselves of it as a defense to the note on the ground of failure of consideration. Carter v . Harber, xviii. 204. PRACTICE. Where, in cases arising under the practice act of 1849, facts are set up in an answer by way of an equitable defense to the action, and not as a set-oif, the plaintiff is not requu'ed to reply. Blodgettv. Greene, xxU.. 525. The defendant was summoned before a Justice to answer the suit of M . McC . on a note assigned to the latter. Judgment was rendered m favor of J. M. McC ., from which the defendant appealed and gave an appeal bond to J. M. McC. — Held, that he thereby admit- ted that the plaintiff was as well known by one name as the other. Thruston v. McGlandhan, V. 521. *NoTB. — Binco the text was in print I have compared it throughout with the list of cases, with a view to a verification of its completeness, and have thus discovered the omissions which are here supplied. D. E. B. PREEACE. This Digest is presented to the indulgent consideration of the profession in Missouri, under the consciousness that more time might well have been devoted to it, demanding as it does much patient research and accurate labor. The work is one of such variety and extent, that it would seem to require years, instead of months, of assiduous application. Had I fully appreciated the task which was before me when I entered upon its execution some sixteen months ago, it is quite possible that the undenaking -^ould have been abandoned at the outset. The entire twenty-seven volumes have been reviewed, and the head notes of the cases revised, and corrected where they seemed to require it. In the accom- plishment of this part of the work, I have brought the matter of the cases into a narrower and more convenient compass, whether with more clearness and perspicuity, or more correctly, is for others to judge. I have given the points directly adjudged in each case, and then added such dicta as occurred to me as of value for preservation and reference. To the latter, the name of the judge pronouncing the judgment of the court is subjoined. As a new feature in a Digest, T have prepared at much cost of time and exam- ination, a list of cases in which the Constitution of the United States or of this State, or statutory enactments of this State or of the United States, have been construed, commented upon or referred to, and connected the statutes of this State commented upon, as closely as practicable, with corresponding or analagous statutes now in force, adopting therein the order and arrangement of the Revised Statutes of 1855. If this edition should meet with a ready sale, I shall hereafter publish, with corrections, a second, combining therein such future cases as shall then have been reported ; and in such second edition it will be my aim, with more time at command, to perfect the work to the best of my ability, and, by stereotyping, • render it permanent, leaving the after volumes of Reports to be published in PREFACE. the supplemental volumes of the Digest, which I intend to prepare from time to time as they are demanded by the acoumulationof additional volumes of Eeports. Imperfect as this compilation may seem to those who are accustomed to the accuracy and perfect finish of the elementary works of the law, it has been attended with an amount of uninviting labor and dry research which, it is not probable the general reader will fully appreciate. Its preparation has involved the examination of over four thousand cases, and some six thousand legislative acts and parts of acts, and the collation and correction of more than thirty thousand references. I have labored industriously to avoid inac- curacies, but if any should be found, notwithstanding my efforts to avoid them, the extent of the work and the shortness of the time in which I have had to accomplish it, will suggest an apology, and for the rest I must beg the indul- gence of the profession, for whose convenience and advantage I claim to have labored faithfully if not well, in the accomplishment of a task at once profitless and uninteresting. My best thanks arc due, and are hereby tendered, to all who, in any way, have aided me in the accomplishment of this undertaking. Nothing could exceed the kindness with which my brother members of the bar in St. Louis have answered my inquiries, and given me the benefit of their experience. I gratefully acknowledge my obligations to Charles D. Drake, Esq., whose learnpd treatise on Attachment has conferred upon him distinction as an author, for many valuable suggestions, which have tended materially to facilitate the completion of the work ; and it is due to say that I am indebted to Warren Currier, Esq., for the arrangement of the matter under the titles, " Chancery," " Pleading," " Practice," and " Practice in Supreme Court." I am also under especial obligations to L. K. Kinsey, Esq. Should this Digest render the labor of the professional student any the less arduous, or at any time or in any way aid the profession in the dry research to which they are daily subjected, I shall be abundantly repaid in the reflection that my labors have not been useless. D. ROBT. BARCLAY. St. Louis, June, 1869. INDEX. A. Abandonment;. . .see Insukance, VI ;. . .Public Linds, 123-131. Abatement;. . .see Action, VII;. . .Justice Peace, 36 ;. . .Pleading, III. Abuttal ; . . .see Adjoining Peopeietoes. Acceptance of Bills of Exchange ;. . . see Bills of Ex. and Peom. Notes, VIII. Accomplice ; ... see Ckiminal Law, XIV. Accord and Satisfaction ; . . . see Pleading, 40. ACCOUNT 1 Account Book;. . .see Evidence, 4, 5, 180-184. Account Rendered;. . .see Evidence, 178, 179. Account Staled ;. . . see Account. Accretion;. . .see Ripaeian Eights, 2. Acknowledgment of Deeds ;. .see Conveyances, 21-27 ;. .HnSE. and Wife, 19, 76-85. Acquittal, Effect of;. . .see Beeaches of the Peace, 11 ;. . .Ceiminal Law, 310-313. ACTION, 1 Action on the Case ;. . . see Action. ADJOINING PROPRIETORS, 9. . .see Chanceet, 93 ;. . . .Teespass, 46. ADMINISTRATION, 9 Administrator de Bonis Non;. . .see Administeation, XIX. Administrator's Bond;. . .see Administration, III. Admissions ;. .. see Evidence, VI, VII. Ad quod damnum;. . .see Mills and Milldams. Adultery ;. . .see Criminal Law, 1-7 ;. . .Dower, 33;. . .Husband and Wife, 99. Advancements on Shipments ;. . . see Common Careiek, III. Adverse Possession;. . .see Limitatioxs, 13-16, X. Affirmance;. . .see Administration, 65;. . .Infants, II. Affreightment;. . .see Boats and Vessels, 37-47. AGENCY, .- 32 Agister;. . .see Bailment, IV. Agreed Case;. . .see Peactice, 190-192. Agreement ;. . . see Conteact. ALIENS, 38 Alimony;. . .see Husband and Wife, 124-128. Allegations;. . .see Pleading, 1-10, 123-131. Alteration;. . .see Bills of Ex. and Peomissoet Notes, 11-14, 16;. . .Covenant, 33 ; . . .Evidence, 43. AMENDMENT, 38 Anchorage;. . .see Boats and Vessels, 36. Ancillary Administration ;. . .see Administeation, IV. 113. Answer ;. . . see Pleading. APPEAL, 42 Appeal Bond;. . .see Recognizance, II. Appearance;. . .see Practice, I. B INDEX. Application of Payments ; . . .see Payment, II. Appraisement;. . .see Admiitisteation, 138. ARBITRATIONS AND REFERENCES, 50 Argument;. . .see Practice, 167, 168. Arraignment;. . .see Ckiminal Law, 308, 309. Arrest of Judgment;. . .see Judgment, X. Arson ;. . .see Criminal Law, 8, 9 ;. . .Mabteb and Slave, 9, 12. Assault and Battery ;. . . see Bheaches of the Peace. Assault to Commit Manslaughter;. . .see C^ijyasiAL Law, 10-12. Assault with Intent to Kill;. . .see Criminal Law, 13-25. Assessment of Taxes;. . .see Revenue, I. Assets;. . .see Administration, IV. ASSIGNMENT, 54 ASSUMPSIT, 59 ATTACHMENT, 65 ATTORNEY AT^ LAW, 75 AUCTIONEERS, 77 Auditor of Public Accounts ;. . . see Account, 3 ; . . . Legislat pKB. Autrefois Acquit or Convict ;. . .see Criminal Law, 310-313. Average ;. . .see Insurance, 2, 3. Award;. . .see Arbitrations and References, III. B. BAIL, 78 BAILMENT, 79 BANKING, 81 Bank of Edwardsville ; . . .see Banking, V;. . .Local Decisions, VXIL Bank of Missouri;. . .see Banking, IV. ;. . .Petition in Debt, 6. BANKRUPTCY, 84 Bar;. . .see Pleading, IV. Bastardy ;. . .see Descents and Distributions, IV. Bawdy-House ; . . .see Criminal Law, 26-30. Bearing a Challenge;. . .see Criminal^Law, 50. Benefits;. . .see Laws, 23, 27, 28 ;. . .Wat, 24. Betterments ; . . .see Ejectment, III. Betting ; ... see Criminal Law, 79-86. Betting on Election ;. . .see Criminal Law, 87-91. .BILLIARD TABLES, 85 BUI of Credit ;. . .see Laws, 67, 68. Bill of Discovery ;. . .see Practice, VI. Bill of Exceptions ; . . .see Chancery, 189;. . .Ceim. Law, XVII;. . .Practice, XIV. Bill of Particulars ;. . .see Practice, 283. BUI of Review;. . .see Chancery, 149. Bill of Sale;. . .see Sale, IV. BILLS OE EXCHANGE AND PROMISSORY NOTES, 85 BOATS AND VESSELS, 97 BOND, 108 BONDS, NOTES AND ACCOUNTS, 112 BOUNDARY AND DESCRIPTION, 123 BREACHES OF THE PEACE, 125 Breach of Promise of Marriage ;. . .see Husband and Wife, 7-14. BRIDGES, 12§ , Brown's Surveys ;. . .see Public Lands, 162. Buffaloes;. . .see Inclosures 2 ;. . .Criminal Law, 96 . INDEX. Buildings ;. . .see Mbohakics' Lien. Burden of Proof; . . see Evidence, VIII. Burglary;. . .see Ckiminal Law, 31. Cancellation;. . .see Conveyances, 82, 83 ;. . .Bills or Ex. and Pkom. Notes, 15. Capias ;. . . see Eeplevin, X. Caronddet Commons;. . .see Public Lands, 161-163. Case ;. . . see Action. Certificate of Deposit;. . .see Banking, II;. . .Damages, 14;. . .Interest, 9. CERTIORARI 128 Challenge to Jurors;. . .see Criminal Law, 292-294. Champerty ;. . .see Bonds, Notes and Accounts, 21. CHANCERY, 128 Change of Venue ; . . see Criminal Law, V ; . . Error, 17;.. Mandamus, 10;.. Venue. Character;, .see Criminal Law, 156, 167;. .Evid., 185-187 ;. .Hus. and Wife, 8,115 ; . . .Libel and Slander, VI ;. . .Seduction, 1, 4;. . .Witness, 11, 15. Charter;. . .see Corporation, I. Checks on Banks and Bankers ;. . . see Banking, III. Chose in Action;. . .see Assignment, I. Church Registry;. . .see Evidence, 177. CIRCUIT ATTORNEY, 152 Circuit Court;. . .see Courts ;. . .Jurisdiction, III. Claim and Delivery of Personal Property ;. . .see Replevin. Classification of Demands against an Estate;. . .see Administration, X. CLERK OF COURT, 153 Clock Peddlers ; ... see Peddlers. Codicil;. . .see Will, VII. Collector ;. . . see Eees, III ; . . . Laws, 32 ; . . . Revenue, V. Collector's Bond;. . see Revenue, 29-35. Collision;. . .see Boats and Vessels, XI. Colloquium;. . .see Libel and Slander, III. Commencement of Action;. . .see Action, III. Common ;. . . see Public Lands. COMMON CARRIERS, - 153 Common Field Lots ;.. . sec Public Lands, 109-1 13. v Common Pleas Court;. . .see Jurisdiction, VI. Community Property;. . .see Husband and Wife, X. Compensation;. . .see Administration, XV;. . .Legislature. Complaint;. . .see Boats and Vessels, IV;. . .Forcible Entry and Detainer, II. Compramtsc ;... see Action, 19 ;. ..Administration, 146, 147;. .Att'y at Law, 2; . . Consideration, 19, 20. Computation of Interest ;. . .see Interest, I. Concealment;. . .see Administration, V;. , .Limitations, 44-48. Condemnation of Land to Public Use;. . .sec Way, V. Condition Precedent ;. . . see Contract, VI. Condonation;. . .see Husband and Wife, 108. Confessions ;.. .see Criminal Law, 366-371. Confirmations;. . .see Public Lands, X. Consequential Damages;. . .see Adjoining Proprietors. CONSIDERATION, 156 Consolidation of Actions;. . .see Action, 15-18. Conspiracy;. . .see Action, 7. CONSTABLE, Igl INDEX. Constable's Bond; . . . see Constable, III. CONSTITUTION, 164 Constitutional Law;. . .see Laws. Construction of Bond ; . . see Bond, IV. " Statute ;. . .see Bonds, Notes and Accounts, VIII. " Contract ; . . .see Contract, II. " Covenant ;... see Covenant, 1-7, 47. " Deeds ;. . . see Conveyances, II. " Guaranfy,-. . .see GuAEANTT, I. CONTEMPT, 164 Continuance; ... see Crim. Law, 322-324 ; . . . Ereok, 8 ; Justice of the Peace, 28 ; Practice, V;. . .Practice in Sopkeme Court, 40, 41 ;. . .Scire Tacias, 15. CONTRACT 164 CONTRIBUTION, , 173 Conversion; ... see Tort ; . . . Trover, IV. CONVEYANCES, 174 Conviction, Effect of;. . .see Criminal Law, 310-313. CORPORATION '■ 186 COSTS, 1 92 Counterfeiting; . . .see Criminal Law, 32-39;. . .Laws, 63. COUNTY, 197 Count!/ Buildings; . . .see County, III. Count)/ Court;. . .see Courts, IV. COUNTY TREASURY, 199 County Warrant; . . .see County Treasury, II. COURTS, 199 COVENANT, 201 Crimes and Punishments :.. ■ see Criminal Law. CRIMINAL LAW, 208 Cross-Bill ;. . . see Husband and Wieb, 111. Cross-Examination ;. .. see Witness, 2, 3. Cruel and Barbarous Trriitment; . . .see Husband and Wife, 107. Crueltt/ to Animals; ... see Criminal Law, 40. Crudty to Slaves; . . .see Criminal Law, 41. Curtesy ;. . .see Husband and Wife, V. Custom ;. . .see Contract, 6-9. Custom of Paris;. . .see Husband and Wife, 21, 89, 91. D. DAMAGES 254 Dealing with. Slave;. . .sad Slaves and Slavery, 42. Death ;. . . see Action, VII, VIII. DEBT, 259 Declarations ; . . .see Evidence, VI. Dedication of Land to Public Use ;. . . see Wat, I. Dedimus;. . .see Depositions, I. Deed;. . .see Conveyances. DEED OE TRUST, 261 Delivery;. . .see Conveyances, 18-20 ;. . .Sale, II. Delivery Bond ;. .. see Attachment, 23-28 ; . . . Execution, IX. DEMAND, 264 Demands against an Es-Me:, . .see Administration, X, 99-107. Demurrer ;. . .see Chancery, 157-164;.. .Error, 25, 44-46, 48, 52;. . .Pleadins, VI. DEPOSITIONS, 265 INDEX. DESCENTS AND DISTRIBUTIONS, 269 Destruction of a Dwelling House;. . .see Ckiminai Law, 42. Detinue ;. . . see Repletih. Devastavit ;. . .see AoMiifiSTKATiON, XVII. Deviation ;. . . see Insukance, V. DEVISE AND LEGACY, 271 Disclosure by Grand Juror ;. . .see Criminal Law, 43. Dissolution of Partnership ;. . .see Paetneeship, VI. Distress for Rent;. , .see Landloed and Tenant, 35-37. Distribution;, .see Administration, XII;.. Boats and Vessels, IX;. .Descents AND Distributions ;. . .Execution, XI. Disturbance of a Neighborhood or Family ;. . . see Criminal Law, 44-46. Disturbance of Public Worship ;.. .see Criminal Law, 47-49. Divorce and Alimony;. . .see Husband and Wipe, XIV. Docket;. . .see Criminal Law, 320, 321 ;. . .Error, 30. Doubt;. . .see Criminal Law, 334, 336,338, 339. DOWER, 276 DRAMSHOPS, 282 Drunkenness ;.. .see Chancery, 50 ;... Contract, 31 ;.. .Criminal Law, 148, 149, 163, 303 ;. . .Husband and Wife, 111. Dueling ;. . . see Criminal Law, 50, Dunklin County ;. . .see Local Decisions, V. Duplicity in an Indictment ;. . .see Criminal Law, 231-233. Duress ;. . . see Contract, VII. Dying Declarations ,■ ... see Criminal Law, 363, 364. E. Easement ;. . . see Adjoining Proprietors ; . . . Trespass, 19;... Wat, III. EJECTMENT, 286 ELECTION, 292 EMANCIPATION, 292 Embezzlement;. . .see Criminal Law, 51-55. Emblements ;. .. see Conveyances, 74 ; . . . Public Lands, VIII. Eminent Doynain ;. . . see Way, V. Entry ;. . . see Public Lands, II. Enurement ,-.... see Conveyances, 75-80 ; Covenant, 53 ; . . . . Public Lands, 114-122,193-196;. . .Uses and Trusts, 5, 19. Equity;. . .see Chancery. Equity of Redemption ;. . . see Mortgage, X. Erasure;. ..see Bonds, Notes and Accounts, 88, 90 ;... Conveyances, 81;... Covenant, 33. ERROR, 293 Escape;. . .see Criminal Law, 56, 372;. . .Jurisdiction, 50 ;. , .Sheriff, 6, 7. ESCHEATS, 300 ESTOPPEL, ..300 EVIDENCE, .304 Examination of Witnesses ; . . . see Witness, I. EXECUTION, 324 Executor de son tort;. . .see Administration, XVIII. Executors and Administrators :. . . see Administration. Exemption ; . . .see Execution, V. Exhibiting Animals ;. . .see Corporation, 43. Experts;. . .see Practice, 133;. . .Witness, 27,28. Factor ,• ... see Agency, IX. INDEX. F. ' Fcdse Pretenses ;.. .see Criminal Law, 57-59. Fayette City ;. . .see Local Decisions, VL FEES, 341 Fdony ;. . .see Criminal Law, 60-62. Fence ;.. . see Inclosukes. Fencing Railroads ;. . . see Railroads, II. FERRY, 342 Finding of Facts ;.. . see Practice, 172-189. FIXTURES, 343 Flight;. . .see Criminal Law, 373. Flowage :... see Mills and Mill-Dams. FORCIBLE ENTRY AND DETAINER, 344 Foreclosure ; . .. see Mortgage, VII. Foreign Corporations ;. . . see Corporation, IX. Foreign Judgmen's ; . . . see Judgment, VII. Foreign Laws ; . . .see Laws, 6-9. Foreign Record ;. .. see Record, I. Foreign Sovereign and State:. . .see Aliens, 3, 4. FORFEITURE, 350 Forgery ;.. .see Criminal Law, 64-66. Forwarding Agent ;. . . see Bailment, 3. FRAUD, 350 FRAUDS AND PERJURIES, 354 Fraudulent Concealment;. . .see Fraud, VI. Fraudulent Conveyance ;.. .sea Crimisx-l Law, 63.. FRAUDULENT CONVEYANCES, 359 Fraudulent Representations ; . . . see Fraud, V. Fraudulent Sales ;. . . see Sale, VI. FREEDOM, 365 FUGITIVES FROM OTHER STATES, 369 G. Gambling ;. . .see Criminal Law, 67-91 ;. . .Gaming. GAMING, 369 GARNISHMENT, 370 GIFT, 376 Grand Jury ; ...see Criminal Law, VI. Grocers ; . . .see Merchants and Grocers, GUARANTY, 376 Guardian and Ward ;.. .see Guardians and Curators. Guardian's Bonef;. . .see Guardians and Curators, V. Guardian's Carnal Knowledge of Ward;. . .see Criminal Law, 92. GUARDIANS AND CURATORS, 378 H. HABEAS CORPUS, 380 Handwriting ; ... see Evidence, 191 . Hannibal Court Common Pleas ;. . .see Courts, V. Hannibal and St. Joseph R. R. Co. ;. .. see Local Decisions, IV. HEIRS, 381 Hog Stealing;. . .see Criminal Law, 116. INDEX. Homicide;. . .see Ceiminal Law, 124-151. Horse Racing ; . . . see Gaming, 2. Horse Stealing;. . .see Ckimikal Law, 101, 107. Hunt's Minutes ;. . . see Public Lands, 89, 90. HUSBAND AND WIPE, 382 I. Impeachment of a Witness ;. . . see Witness, II. Improvements ; ... see Ejectment, III ; . . . Heies, 2 r. . . Paetition, 31, 32. BSCLOSUEES, 397 Increase ; ... see Devise & Legacy, V ; . . . Dowee, 17;.. Slaves . 686 Waste ,- ... see Administeation, XVII. WAY, 687 WEIGHTS AND MEASURES, 690 Wharfage ;. .. see Boats and Vessels, 36. Widow;. . .see Administration, XXI;. . .Evidence, 114;. . .Witness, 102-104. WILL 691 WITNESS, 695 WOODS, MARSHES, AND PRAIRIES, ..706 Writ of Error ; . . . see Eeeoe. LIST OF CASES. WITH RETERENCES TO THE VOLUMES AND PAGES OF THE REPORTS, AND TITLES AND PARAGRAPHS OP THE DIGEST. Abbott V. Miller, x. 141 Admin, 52. " Sickles T., xxi. 443. ■ Abeles, Patrick v., xxrii. 184. Abington v. Travis, xv. 240 . . ffvsb Sf Wife, 31 . Able V. -Shields, vii. 120 Bonds, N. S/- Accls, 28, 29, 78 . : . . Witness, 9. Able V. Union Ins. Co.. xxvi. .56. . . Chancy, 17. Abrahams v. Krautler, xxiv. 69 . . Trespass, 46. Aekli, Steil V., xv. 289. . Acks V. Ball, xiv. 396 Costs, 22. Acock, Pinley v., ix. 832. Acuff, The State v., vi, 54. ■ Adam, Tramel v., ii. 155. Adams v. Childers, x. 778 Bailmt, 6. " V. Uarinon, iii. 222 Epid, 187 Lib and Slan, 1 5, 22. " MeMartin v., xvi. 268. " Potter v., xxiv. 159. " Powell v., ix. 758. " Richardson v., iv. 311. " V.Wiggins FeiTry Co., xxvii, 95.... Boats Sr Ves, 99. " V. Wilson, X. 341 . . Bond, 1 . .Recog, 16. Addams, Tutt v., xxiv. 186. ^tnalns. Co., Dreher v.,.xviii. 128. Agee V. Agee, xxii. 366. . . .Husb ^ Wife, 18. " Moore v., vii. 289. Agnew, Muldrow v., xi. 616. " Walsh v., xii. 520. Aguila, The State v., xiv. 130. Aiken v. Todd, xx. 276 Prac Sup Ct, 22. Akerd, Cates v., v. 124. Albers v. Eiiers, xviii. 279 Mec Lien, 31, 32. Alexander, Barron v., xxvii. 530. " City of St. Louis v., xxiii. 483. " V. Haden, ii. 228 Attach, 9, 83. " V. Hayden, ii. 211 Bonds, N^ Accls, 66 Practice, 46 ... . Prai: Supr Ct, 8, " V. Lane, xxi. 536 Consid, 13. " V. Merry, i.x. 510. . . Convey, 24. . . Execution, 131 . .FrSfPerj, 12 " v.Moore,xix. 143. .i?'r^Pcr;',17. " V. Schreiber, x. 460 . . Covenant, 48. " V. Schreiber, xiii. 271 Coven- ant, 5.T. " V. Warrance, xvii. 228. . . Chancy, 124 . . Husb Sf Wife, 42 . . Lan #• Ten, 4,0.... Uses Sr Tr, 6. Alford, Perrv v., v. 503 All, Holmes' v., i. 419. Allen V. Allen, xxvi. 327 Evid, 91, 134. " Y. Brown, V.323 Aiictnrs,i Nem Trial, 11 Witness, 16. " Brownlce v., xxi. 123. " Budde v., xxi. 20. Allen, Carondelet, town of, v., xiii. 556. " City of St. Louis v., xiii. 400. " V. Davis, xi. 479...Bon6.. Pub Lands, 21..iJe- pleu, 8. " V. The State, T. 36i...Crim Law, 128, 370. " Williams t., xxvi. 600. Bowers v. Bowers, xix. 351 . .Hash and Wife, 103, 104. " Higbee v., ix. 350. Bowles, Allison v., viil. 346. Bowlin, Evans v., ix. 402. Bowling, Davis v., xix. 651 . " The State v., xiv. 508. Bowman, Dallam v., xvi. 225. " Morgan v., xxii. 538. " T. Pacific Ins Co.,xxvii, 152. .Ins, 17. Bowmer, Collins v., ii. 195. Boyce, Beckwith v., ix. 556. " Beckwith v., xii. 440. " Biddle v., xiii. 532. " V. Cayce, xvii. 47. .Husb and Wife, 32. " Garesche v., viii. 228. " V. Papin, xi. l6:.Pub Lands, 149. " V.Smith, xvi. 317... Execution, iS:..N Trial, 21-23. " Williams v. xi. 537. Boyd, Gilbert v., xxv. 27. " V. Holmes, ix. 711 . .Mortgage, 39. " Maupin v., v. 106. " Poteet v., x. 160. '• V. Sargent, i. 437.. Debt, 5.. Error, 45. . Pleadg.i, 114. Boyer, Borapart v., viii. 234. " V. Williams, v. 335. .Pub Lands, 49. Boyle V. Hardy, xxi. 62. .Partnship, 34. " McLean v., 19. 495. " V. Skinner, xvii. 2i(, .. Appeal, 72. " V. Skinner, xix. S2.. Bills Ex and P Notes, 10. .Practice, 188. Boynton v. Curie, iv. 599. . Gaming, 2. " V. Reynolds, iii. 79 . . D^t, 6 . . Seed, 1 . Bozarth V. Bozarth, xxiv. 320... Devise and Leg, 27. Braches v. Anderson, xiv. 441 . . .Partnshp, 23. " bieman v., xiv. 24. Bracken v. March, Iv. 74. .Depositims, 11 Partnshp, 18. Bradbury, Graham v., vii. 281. Bradford, Bedford v., viii. 233. " Keating v., xxv. 86. " V.Pearson, xii. 71 . .Practice, 241 . . Prac. Sup. Ct, 47. Bradley V Bradley, xxiv. 311... Evid, 89.. Will, 23. Brady V. Hill, i. 316 .. Partnshp, i\..Payt, 12 . . Prac Sup Ct, 56.. Setoff, 36. Bragg V. Brooks, viii. 40. . Costs, 21. Brainard, Bent v., i. 283. Brake v. Corning, xix. 125 .. Set-off,' 19. Brand v. VanderpoOl, viii. 507 . . Coniroci, 33. Branham, Caples v., xx. 244. " Moreau v., xxvii. 351. Brannin, Collins v., i. 540. Branson, Smbblefield v., xx. 301. Brant, Finney v., xix. 42. " V. liigpna,x. 728.. Mai Pros, 4, 14. " Lindell v., xvii. 150; xix. 50. " V. Robertson, xvi. 129. . .Executn, 40. . Morlg, 13, 14 . . Prac Sup Ct, 77, 78. Bray, The State v., i. 180. B'-azeau, Clark v., i. 290. Breckenridge, Hagg v., xii. 169. " Soper v., iv. 4. Bredell, Waldstein v., Xvii. 352. Breen, Higgins v., ix. 493. Brennan, Farrell v., xxv. 88 Brent v. Cobb, xxvi. 196. . .Infants, 20. Brewer v. Dinwiddle, xxv. 351 . . .judgti 82. " The State v., viii. 373. Brice, Halsted v., xiii. 171. Brickey, Brufiey v., v. 395. Bridgeford v St. Bt. Elk, vi. 356. . .Boats and Ves, 73, 75. Bridges v Bell xiii. 69 Witness, 25. " Franciscus v., xviii. 208. The State v., xxiv. 353. Bridgman v. Bridgman, xxiii. 272. . .Arb and Rif 4, 19. . .Lib. and Slan, 2. " Church v., vi. 190. Briggs V. Block, xviii. 281 . . .Attachl, 43. . . Gamisht, 12, 27,44. " V. Glenn, vii. 572 Bends N and Accts, 90. Bright, McKnight v,ii. 110. " Morrow v , xx 298. " V White, viii. 421 . . . Laws, 7. " V.Woods, viii. 428. ..Laws, 7. Brill V Meek, xx. 358 Appeal, 17. Brinegar, Grant v., vi 450 Brinker, Jones v., xjrf. 87. " Smith v., xvii. 148. Brisbin, Bryan v., xxvi. 423. BiTscoe, Jones v., xxiv. 498. Broaddus v. Ward, viii. 217. . . Chancy, 44. Broadhead v Koyes, ix. 55 . . . Contract, 11... Covenant, 15. Broadwater v. Dame, x. 277. . . Contract, 31. . Eoid, 46. . .Replev, 9. " Dame, v., ix. 18. Broadwell v. Yantis, x 398. . .Executn, 39. . . Lien, 4. . . Vendor and Par, 2, Brock, Patterson v., xiv. 473. Biockman v. Dessamt, xxi. 585../artS(i«!«B, 58. Brockway, Scott v., vii. 61. Brooke, Barge Resort v., x. 531. Brooks, Bragg v , viii. 40. " McKee v. xx. 526. " Medlin v., ix. 105. " Ramsey v., xx 105. " V. Wimer, xx. 503. . .Assignmt, 30. . Fraudlt Convey, 35. Broomfield, Clemens v., xix. 118. " v. The State, x. 556 See Austin v. The Slate, x. 591. Brosius V. McGaagh, xxvii. 230 . Practice, 185. Brothertou v. Anderson, vi. 388 Gamisht, 48, 49. " ' Grant v., vii. 458. " v. Thompson, xi. 94 . . . Attacht, 26. " Wimer v., vii. 264. Browder, Powers v., xiii. 154. LIST OF CASES. Brown, Allen v., v. 323. " Anderson v., ix. 638. " Baker v., x. 396. " V. Bank of Misaouri, ii. 191 . . .Agency, 2 Evid, 33. " V. Benton, i. 227 ...Sci Fa, 7. " Benton v., i. 393. " V. Brown, vii. 283 Practice, 306. " V. Burras, viii. 26 Executn, 57, 58. . . Judi/t, 42 A'^ 7 rial, 26 Prac- tice, 150 Witness, 2, 30. " Clark v., xtii. 140 — xxv. 559. " V. Cleaveland, v. 65 ... . Convey, 85 . . . PlKidi), 83. " Cli'mens v., ix. 709. " V. Crawfoi'd County, viii. 640 Sch L mds, 1 . I " V. Emerson, xviii. 103 Practice, 62. " V. Finley, xviii. 375 Demand, 5.. . . Fravd, 17. " V. Fricke, i. 430 Jus Peace, 17. " (iaty v., xi. 138. " V. Gau-B, X. 265 Assum, 13. " V. Henderson, i. 134. . . .Sheriff, 1. " Ke'sy v., iv. 8. , " v. Kins, X 56 Record, 37. " V. Knox, vi. 302 Assiqnt, 25, 26, 41. " V. Lewis, xxv. 335 Witness, 30. " V. Lockhart,i. 409. . Bonds, N ^ Accts, 8. " Mass v., vii. 305. " McCnrdy v., viii 549. " McDowell v., xxi. 57. " Mecilock v., iv. 379. " Miller v., iii. 127. " Mooro v., xiv. 165. " Nelson v., xxiii. 13. " V. Noith, xxi. 528 Consid. 34. " V, Pearson, viii. 159 Jus Peace, 38.. . Practice, 62. " Pomeroy v., xix. 302. " V. Pratte, ix. 331 .. . Rds ^ Highways, 12. " V. Kaven.. Admin, 169. Bucklev, Powell v., xiii 317. " " St. Bt. Brady v., vi. 558. Buckner v. Armour, i. 534. . Costs, 26. .Juris- dictn, 44. .Practice, 101. " V. Johnson, iv. 1 00 . . Limitatns,- 35, 36. " Johnson v., iv. 624. '• Posey v., iii. 604. " The State v.. xxv. 167. Budd. CoUier v., vii. 485. " Whiting v., v. 443. Budde V. Allen, xxi. 20. .Pleadg, 133. Buflington, Calhoun v., x:xv. 443. " Mauro v., xxvi. 184. " Morgan v., xxi, 549. Bnford v. Byrd, viii. 240. .Bond, 3. .Fraud, 2 . . Pleadg, 30. " V. Caldwell, iii. 477. .Sale, 14, 15. Hill v., ix. 859. " V. Smith, vii. 489 . . Mortg, 57. " The State v., x. 703. Buhs, The State v., xviii. 318. Bull V. Sigerson, xxiv. 53. .Agency, 40. Bullitt V. Overfield, ii. 4. .Evid, 40. " Overfield v., i. 749. Bullock, White v.. xviii. 16. Bumgardner v. Howard Circuit Court, iv. 50 Laws, 77. Bunco, Stanley v., xxvii. 269. Bunding v. Blumenthous, viii. 695 Prac- tice, 90. " V. Miller, X. 445.. J«rf;7t, 41, Burbridge, Lindsey v., xi. 545. Burckhart v. Watkins, iv. 72. . .Pleadg, 56. . Practice, 22. Burokhartt, Berry v., i. 418. Burd V. Boss, xv. 254. . . Witness, 61. Burdett, Yantis v., iii. 457, iv. 4. Burdyno v. Mackey, vii. 374. .Eject, 17, 18. Burgess v. Gray, xv. 220. .Pvh Lands. 75. " V. Quimby, xxi. 508.. .Evid, 125. " The State v., xxiv. 381. Burk v. Baxter, iii. -Ml . .Fixtures, 6 . . Trover, 11. Burk v. Jlumoy, iv. \\6,, Chancy, 130.. Ex- ecution, 6, 8. " V. Howard, xiii. 241 . .Husb ^ Wife, 54. Limitatns, 40. Burke, Dovmey v., xxiii. 228. Burks, Wilson v., viii. 446. LIST OF CASES. XXIX Burlando, Chouteau v., xx. 482. Burnley, Swain v., i. 404. Bums, Davis v., i. 264. " Dorsey v., y. 334. " V. Hayden, xxiv. 215.. Consid, 16.. iV Trial, 23. " V. Hunton, xxiv. 337. ..4ppea/, 47. " V. Hunton, xxiv. 339. .Appeal, 47. " V. Mason, xi. 469.. .Portns/ip, 9. " V. Patrick, xxvii. 434 . For En ^ Det, 19. " Pearce v., xxii. 577. Burris v. Page, xii. 358. .Husband Wife, 41. Burtows V. Alter, vii. 424 .... Assignt, 16.... Fraud, 2. Burrus, Brown v , viii. 26. Burton, v. Collin, iii. 3\b .. .Appeal, 66. . .De- . mand, 2. " V. Martin, iv. 200. . Costs, 8. " Shaw v., V. 478. " V. Sweaney, iv. \. '.Trespass, 23-25. Bury V. City of St. Louis, xii. 298. .P/eodi/, 111.. Practice, 217. Busby, Donnell v., xv. 415. "■ Smith v., XV. 387. i Busch V. Diepenbrock, XX. 568.. JW Peace, 11. " Pavey v., iii. 447. Bushnell, Street v., xxiv. 328. Butcher v. Death, xv. 271 . . .Amendnct, 21 . . . Practice, 120. " V. Keil, i.,262. . Practice, 326. Butler V. Barr, xviii 357 . .Bds and highways, 4, 6, 8. " Beatie v., xxi. 313. " Chariton County Court, xiii. 112. . . LavQS, 75. " Dobson v., xvii. 87. " V. Johnson, ii. 7. .Agency, 36. " Page v., XV. 73. " Pond v., X. 448. " Rees v., xviii. 173. " Wooden v., X. 716. Butterworth v. Ratcliff, vii. 550 . . Prac Supreme Court, 87. Buxton V. Carter, xi. 481 . .Eject, 2. Byars v. Doores, xx. 284. .Agency, 26. By bee v. Kinote, vi 51. .N Trial, 54; Byrd, Buford v., viii. 240. " y. Fox, viii. 574. . Parlnshp, 31. " V. Governor, ii. 102. .Admin, 176. " Governor, v., ii. 194. " Hickman, v., i. 495. " V. Knighton, vii. 443. .Action, 1. Byrne v. Harbison, i. 225. .Mandam, 3. " V. Rodney, i. 742. .Appeal, 11. " The State v., i. 748— xxiv. 151 . " V. St. Bt. Elk, vi. 555. .^oois and Ves, 67,100. " V. St. Bt. St. Mary, xxvii. 296. .Boote and Ves, 72. " V. St. Louis Pub Schools, xii. 402 Venue, 5. " V. Thompson, i. 443. .Appeal, 22. Byron V. Sarpy, xviii. i55 .. Pub Lands, 124, 125, 129. The State v., xx. 210. C. Cabanne v. Lavallee, i. 394. ..Error, 44. Cabeon v. Douglass, i. 336. . . Gamisht, 14. Cabell, Springer v., x. 640. Cable, Clark v., xxi. 223. Cable, V. McCune, xxvi. 371 . . . Corpn, 29. " V. St. Louis Mar. Railway & Dock Co., xxi. 133. . .Acfion, S3. Cabunne v. Lindell, xii. 184 Eject, 10 Pub Lands, 190, 191. Cachelin, Harrison v., xxiii. 117, xxvii. 26. Cadwaleder v. Atchison, i. 659 . . . Chancy, 74. Cadwallader v. Cadwallader, xxvi. 76 Fraud, 8. Cafieratta v. Cafferatta, xxiii. 235 .. . Evidence, 123. Cafferata, City of St. Louis v., xxiv. 94. Cage V. Ellis,'i. 444. . . Prac Sup Ct, 71. Cahill V. Ragan, xx. 451 Contract, 1. Cain, Ex parte, ix. 760 Crim Law, 403. Caldwell, Blair v., ill. 353. '' V. Bower, xvii, 564. . . . Warranty, 13. " Buford v., iii. 477. " V. Dickson, xvii. 575. . Contract, 43. " V. Dickson, xxvi. 60. . . Contract, 43. Finley v., i 512. " V. Head, xvii. 561 Convey, 27, 39. " V. Lookridge, ix. 358 Admin, 155, 1 56 . . Sci Fa, 5. " Logan v., xxiii 372 " McElroy v, vii, 587. " v. McKee, viii. 334 Admendmt, 1. P7-ac Sup Ct, 31. " Muldrow V , vii. 563. Caldwell County, Bogarth v., ix. 355. Calhoun y . Buffington, xxv. 443 Crim Law, 41 1. Callahan v. Griswold, ix. 775. . .Admin, 127, 189.. Judgt, 25, 30. Callaway, Cook v., i; 545. " Truesdell v., vi. 605. Callaway County, Gathwright v., x 663. Callaway County Court v. Craig, ix. 836 Limitatns, 42 . . Witness, 62. " County Court, Craig v., xii. 94. " " V. Inhab. of Rnd Prairie Tp. x. M9.. Mandam, 9. " County Court, NoUey v., xi. 447. Calloway v. Mnnn, vii 567. .Appeal, 63. " V. Nifong, i. 223. . .Prac Sup Ct, 2. " V. The State, i. 211 . .'Breach Peace, 12, 19. . Crim Law, 358, 359. Calver, Stout v., vi. 254. Calvert, Perry v , xxii. 361. " , V. Eider, xx. 146 .. . Slaves and Slaveni, 24, 25. " " V. St. Bt. Timoleon, xv. 59b.. .Slaves and Sla, 23. Cambden, Freeman v., vii. 298. " Murphy v . , xviii .122. " Patterson v., xxv. 13. " Snowden v., viii. 502. Camden v. St. Bt. Georgia, vi. 381. ..Boats and Ves, 63-65. Camden County, Young v., xix. 309. ' Camp, Gillet v., xix. 404. " Gillett v., xxiii. 375, xxvii. 541 . Campbell, Bryson v., xii. 498. " V. Clark, vi. 219.. PuiiLanrfs, 1. " V. Clark, viii. 553 . . Pub Lands, 1 . " Conway v., xi. 71. " V. Edwards, i. 324. . Chancy, 95. " V. Heard, viii. 519. .Revenue, 10. LIST OF CASES. Campbell, Hembree t., viii. 572. " V. Hood, vi. 2n....ATriaZ, 51... Partnership,, 4. . .Practice, 276. " V. Luitrell, xiii. 27. . .Executn, 140. " Meyer v., xii. 603. " Neidenberger t., xi. 359. " Perpetual Ins. Co. v., X. 141. " Ramsours v., xix.- 358. " Robertson v., viii. 615. " Robinson v., viii. 365. V. Russell, iii. 578. . . Warranty, 11. " Schulenberg v., xiv. 491. " V. The State, ix. 351 . . Practice, 307. " The State v., x. 724. , " Thayer v., ix. 277. " Vaulx v., viii. 224. " Wing v., XV. 275. Camplin, Houck v., xxV. 378. Camster v. Shannon, ii. 94 Asmm, 46. Canal Boat City of Joliei, Haist v., xxiv. 24. " " " " Lala v., xxiv. 23. Candell, Moore v., xi. 614. Canefox v. Anderson, xxii. 347 BUXs Ex and P Notes, 94. " v. Crenshaw, xxiv. 199 . . Inclosures, 2. Canifax v. Chapman, vii. 175. . .Executn, 56 . . Trespass, 10. Cannon, Batley v., xvii. 595. " V. McManus, xvii. 345.....4itocA«, 62. " Price v., iii. 453. " Whitesides v.', xxiii. 457. ' Cape, Whaley v., iv. 233. Cape Girardeau Co. Court, Davis, v., i. 151. Caples V. Branham. xx. 244 .... Bills Ei: and P Notes, 105 . . Bonds Nand Accts, 19,20 Pleadg, 129. Capron, Cox v., x. 691. Carder v. Forehand, i. 704 Seduc, 1. Cargill V. Corby, xv. 425 .... Partnshp, 10, 24, 25. Carlin v. Paul, xi. 32 . . Way, 12. Carlisle, Fox v., iii. 197. " V. Mulhern, xix. 56 Admin, 171 Practice, 177. " V. Rawlings, xviii. 166 Action, 56. Carman v. Johnson, xx. 108. . ..-Eject, 25 Pub Lands, 12. Carpenter v. The State, viii. 291. . . Crim Law, 257 Jus Peace, 1. Carrv. City St. Louis, ix. 190. .Ht Louis, 17,18 " Dyer v., Xviii. 246. « " V. Edwards, i. 137. . . Judgt, 68. . . .Prac Sup a, 4. " V. Holbrook, i. 240 Error, 7 . . .Mortg, 2, 31. " Holmes v., i. 56. " Peters v., xvi.. 54. " V. St. Bt. Michigan, xxvii. 196 Com Car, 20, 21. Carrico v. The State, xi. 579. . CrimLaw,ll7. " V. Tomlinson, xvii'. 499. . . Chancy, 83. Carriger v. Whittingtbn,xxvi.311. .Agency,32. Carroll' V. Ci^r of St. Louis, xii. 444 St. Louis, 2, 3. " V. Com, i. 161 Bvid, 163. " V. Hai-dy, xxi. 66 Uos^, 20. " V. Paul, xvi. 226 . . AcCt, 1 . . Assum, 55 ....N Trial, 56 . . .Pleadg, 71 . . Practice^ 24i&. CarroU v. Paul, xix. 102. ..Practice, 166, 212. " Paul v., xii. 437. The State v., vii. 286. Carson v. Blakey, vi. 273 Mortg, 56. " V. Clark.i. 159. .Bonds, Nf' Accts, 91. " v. Ely, xxiii. 265.-.jie«zon, 9. " V. St. Bt. Elephant, xxiv. 27 . . Boats ir Ves, 18. ' V. St. Bt. Daniel Hillman, xvi. 256. . Boats and Ves, 9. " Switzer v., ix. 732. " V. Walker, xvi. 68 . . Courts, 1 . .Executn, ' 13, 14, 88, 89. Carter v. Blankenship, iii. 583. .Practice, 273. " V. Buxton v., xi. 481. " Despain v., xxi. 331. " v. Feland, xvii. 383. . .Limitatns, 13. . . Trover, 20, 26, 30. " Fugate v., vi. 267. " v. Harber; xvi. 204 ... see Coses, p. vi. " PeppeTj v., xi. 540. " Perkins v. xx. 465. " V. Soulard, i. 576 . . Covenant, 47. Cartmill v. Hopkins, ii. 220. .Limitatns, 53. . . Seal,\. Carver, Rogers v., xxi. 517. Case, St. Bt. Reveille v., ix. 498. V. Barcroft, v. 128. .Action, 21 . .Petn in Debt, 7. V. Clark, ii. 11 . .Jus Pedce, 5. Hornsey v., xxi. 545 — ^xxiii. 371. Pipkin v., xiii. 347. Robert v., xxv. 584. Sibley v., vi. 164. V. Smales, iv. 77. .Pkadgi 47. v. The State, vi. 6i6..Dramhops, 27. Town of Potosi v., xxvii. 372. Cashman v. Anderson, xxvi. 67 . .Amendment, 25.. Error, 43. Cason V. Murray, xv. 378. . .Fraudlt Conven/, 19-21. " Suggett v., xxvi. 221. " V. Tate, viii. 45 . .Appeal, 44 . .Jus Peace, 34. " V. White, viii. 21 6 . . Witness, 47. Cassell V. Fagin, xi. 207. .^'rror, 28. Castleman, Pennington v., vi. 257. Cates V. Akerd, V. 124. .Appeal, 82. " McAdams v., xxiv. 223. Cathcart v. Foulke, xiii. 561 . . Coitlract, 15. . . Contribution, 1. " V. Walter, xiv. 17 . . . For En ^ Det, 22, 46. " Walter v., xviii. 256. Catiche V. St. Louis Circuit Court, i. 608.. Freedom, 7, 8, 18. Cato V. Hutson, vii. \i2... Gaming, 4-6... Pleadg, 62. Caulk, Post v., iii. 35. Gave v. Hall, v. 59. .PUadg, 26. " Stewart v., i. 572. Caviri v. Smith, xxi. 44i.. Evid, 125. " V. Smith, xxiv. 221 . .Evid, 126. Cawthom v. Haynes, xxiv. 236 . . . Depositions, 2i.. Evid, SS. = '^01,8. " V. Muldrow, viii. 6 1 7 . . Practice, 307 . CaycOj Boyce v., xvii. 47. " V. Eagsdale, xvii. 32. .Attacht, 59. Cayton v. Hardy, xxvii. 536. .Par^iership, 30. LIST OF CASES. ZXZl Central Plank Bpad Co. v. Clemens, xvi. 359. Corp'n, 7, 8. Cerre v. Hook, vi. 474. .Pvb Laruis, 79. Chadwell, Kerby v., x, 392. Chamberlain v. Paris, i. 517. .Jadgt, 55. " V. Smith, i. US... Interest, 19. . . N Trial, 1. Chamberlin v. Mammoth Min. Co., xx. 96. . . Judgt, 9, 14. " Moore v., xr. 238. " V. Smith, i. 482. .Practice, 131 . . Prac Sup Ct, 54. Chambers v. Astor, i. 327. . .Pleadg, 18, 19. . Practice, (61. " Astor v., i. 191. " V. Kelly, xii. 514. .Attachmt, 50. " V. King, viii. 517. . Contract, 55. " V. Lane, v., 289..Pj-actJCC, 84. " V. Lecompte, ix. 566. . .Frauds and Perj, 38, 39, 44. " Lee v., xiii. 238. " Reaume v., xxii. 36. " V. Smith, xxiii. lli ... Admin, 106, 107... Covenant, 53. Chamblin, Wales v., xix. 500. Chamlin, Masick v., xxii. 175. Chandler v. Garr, viii, 428. .Pleadg, 81. " Sallee v., xxvi. 124. " The State v., xxiv. 371. Chapman, Canifax v., vii. 1 75. " Chenault v., v. 438. " Chilton v., xiii. 470. " Fackler v., xx. 249. " V. Spicer, x. 6S9 .. Depositions, 20. Chappell, Donpjtoe v., iv. 34. " Swartz v., xix. 304. Chariton County Court, Butler. v., xiii., 112. " " Veal v., XV. 412. Charles, The State v., xxiv. 379. Charleson v. Hunt, xxvii. St.. Positions, 29. Charless, Lane v., v. 285. " V. Marney, i. 537 . .Jus Peace, 21 . .Pro- cess, 24. " V. Eankin, jodi. 566. .AdjoinPrqp, 1, 2. " Eankin v., xix. 490. Charleville v. Chouteau, xviii. 492 Admin, 121. .Pui Lands, 175, 176. Charlotte v. Chomeau, xi. 193. . .Freedom, 13 . . /Slaves and Sla, 8. " V. Chouteau, xxi. 590. .Freedom, 14, 15 Becord, 34 Slaves and Sla, 1. " V. Chouteau, xxv. 465. .Evid, 27. . Freedom, 16. .L^ws, 8, 9. Charpiot v. Sigerson, xxv. 63. . . .Frauds and Perj, 42, 43. Chase, Block v., xv. 344. " V. Chase, viii. 103.. Set-off, 37. Chauvin v. Labarge, i. 556. .Action, 20. " Laberge v., ii. 179. Little v., i. 626. " V. Lownes, xxiii. 223..i4jnenrfni(, 7.. JSusb and Wife, 80, 81. " Martin v., vii. 277. " M'Girk v., iii. 236. " V. Wagner, xviii. 531 . . .Estop, 25, 26 . :Husb and Wife, 78-81. Cheatham V. Cheatham, x. 296 Hush and Wife, lOl, 113. Chenault v. Chapron, v. 438. ..4ttacAmt, 53, 86. Chevalier, Chouteau v., i. 343. " Rector v., i. 345. Chickering, Greene v., x; 109. Child, Thompson v., vi. 162. Childers, Adams v., x. 778. " V. Goza, i. 394. .Error, 37. Childress v. Cutter, xvi. 24. . . DescandDis, 2, 5, 6, IS.. Evid, 177. .Husb and Wi fe,Sl\, 89.. Eecmd, 21. Childs V. Bank of Missouri, xvii. 213. . Corpn, 25., Pleadg, 137. " Baskerville v., viii. 703. " Rankin v., ix. 665. " V. Shannon, xvi. 331 . Boats and Ves, 85. " V. St. Bt. Brunette, xix. 518 BoaU and Ves, 34. Chiles V. Bartleson, xxi. 3ii.. jDeuise ^ Leg, 9. " Harbin v., xx. 314. Chilton v. Chapman, xiii. 470. .Seair, 44. " Ish v., xxvi. 256 " Lepper v., vii. 221. " Reese v., xxvi. 598. " The State v., xxvi. ] 70. Chinn v. Stout, x. 109.. Dower, 46. Chloe, Rennick v., vii. 197. Chouquette v Barada, xxiii. 331 .. . Limitatns, 13.. Practice, 186.. . Will, 22. " ReiUy v. , xviii. 220. " Tigh v., xxi. 233. Chouteau, Bollinger v., xx. 89. " v. Burlando, xx. 482 Aamin, 78 . . . Convey, 26 . . .Executn, 137 . . Limitatns, 65. " Charleville v. xviii. 492. j " Charlotte v., xi. 193— xxi. 590 — xxv. 465. " V. ChevaUer, i. 3i3.. Record, 13. " V. Consoue, i. 350.. £n-or, 53. " Dillon v., vii. 386. " V. Douchouquette, i. 669. . .Husb and Wife,^S. " V. Douchouquette, i. 71 5.. ^rror, 22. " V. Eckert vii.,16. .Pui Lands, 159, 160. " Governor v., i. 731. " Guyol v., xix. 546. " Harvy v., xiv. 587. " V.Hewitt, Jf. .131 Action, 2 Amendmt, 3. " Hicks v„. xii. 341. " V. Hill, ii. in.. Admin, 60. " V. Hope, vii. 428 . . Slaves and Sh, 23. " LaGrange v., ii. 19. " Marguerite v., ii. 71— iii. 540. " McQueen v., xx. 222. " V. Merry, iii. 254 . . Husb and Wife, 47. " V. Nuckolls, XX. 442. . . Consid, 6. . . Judgt, 21, 45, 46. . .Lien, 18. . . Practice, 181. " v. Paul, iii. 260. . .Agency, 24. ..Husb and Wife, 68.. Pakitn, 1, 8. " Paul v., xiv. 580. " Pecare v., xiii. 527. " v. Pierre, ix. 3 . .Evid, 20 . . Freedom, 5, 13. ..Jury, 3. '• v. Russell, iv. 653. . Contract, 5. " V. Searcy, viii. 733 Practice, 224, 236. xxxu LIST OF CASES. Chouteau v. Sherman, xi. 385 .. .Fraudlt Con- vey, 17. V. St.'Bt. St. Anthony, xi. 226... Com Car, 3, 4, 6, 18. T. St. Bt. St. Anthony, xii. 389. . . Com Car, 5. " V. St. Bt. St. Anthorty, xvi. 216. . . Com Car, 6, 7, 9. " t; St. Bt. St. Anthony, xx. 519. . . Boats ^ Ves, 93 . . Com Car, 6-9. Stevens v., xi. 382. " Theoteste v. ii. 144. " Thompson v., xii. 488. " Timmons v., xiii. 223. " V. Uhrig, X. 62... Practice, 221... Prac Sup Ct, 58. Chouteau Spring Co. v. Harris . . . xx. 382 . . Corpn,'n. Chrisman, Bain v., xxvii. 293. Clinsty V. City of St. Louis, xx. 143. . . Corpn, 33. . .Meoenue, xix. 21. " Davis v., viii. 569. " Farrar v., xxiv. 453, " V. Home, xxiv. 242 Evid, 160. . . Secur, 12. " James v., xviii. 1 62. " Littleton v., xi. 390. " V. Myers, xxi. 112.. .Practice, 327. " V. Price, vii. 430. . .Assum, 9. . .Prac- tice, 209. " Strother v., ii. 148. ChryStal, Pacific U. R. v., xxv. 544. Chunn, The Slate v., xix. 233. Church V. Bridgman, vi. 190. . .Lib and S.an, 19, 39, 40. " Shelton v., x. 774. Cinnamond v. Greenlee, x. 578 . . . Witness, 84, 88. Citizens' Ins. Co., Fields v., xi. 50. " " V. Glasgow, ix. 406... /ni, 2, '3,29, 31. " " Gould v., xiii. 524. " " Shepard v., viii. 272, City Bank of Columbus v. Philhps, xxii. 85 . . Consid, 23 . . . Ins, 48. City of Boonville, DrafFcn v., viii. 395. " " V. Ormrod, xxvi. 195. . . Way, 20,21. City of-Carondelet v. City of St. Louis, xxv. 448. ..Pub Lands, 61, 83, 161. " " v Desnoyer, xxvii. 36 . . . Admin, 90. .I'-ecur, 27. " " Fremon v., xxv. 62. " " Huth v., xxvi. 466. " " V. Lannan, xxvi. 461 Landl and Ten, 14, 15. " " Maeder v., xxvi. 112. " " V. McPlierson, XX. 192... Estop, 17 Public Lands, m, 161. " " Primm v., xxiii. 22. " Taylor v., xxii. 105. City of Fayette v. Shafroth, xxv. 445 Loc Decis. 11. City of Hannibal v. Draper, xv. 634. . . Wav, 6,7. " " V. Guyott, xviii. 515.. Dram- shyts, 3, 8. City of City of City of f City of Independence V. Noland, xxi. 394 Dramshops 4. Lexington, Auli v., xviii. 401. St. Joseph v. Merlatt, xxvi. 233 Revenue, 33. St. Louis V. Alexander, xxiii. 483 . . . Dam 30. .St. Louis, 22, 23. V. Allen, xifi 400 .. Zaios, 49 St. Louis, 4. Barry v., xvii. 121. ' Benoist v., xv. 668 — xix. 179. V. BenU, xi. 61 .. St Louis, 32 V. Boffinger, jfix. 13.. Laws, 51. ' Buiy v., xii. 295. V. Cafferata, xxiv. 94 . . . St. Louis, 25. ' Carr, v., ix. 190. ' Carroll v., xii. 444. ' Christy v., XX. 143.. ' City of Carondelet v., xxv. 448. ' Cox v., xi.431. ' Dallam v., xii. 582. ' Ferguson v., vi. 499. ' Fortune v., xxiii. 239. ' V. Foster, xxiv. 141 . . .Evid. 108.. St. Louis, 3i. ' v. Fox, XV.71 . .Jurisdictn, 64. ' Gamble v., xii. 617. ' Garrett v., xxv. 505. ' V. Goode, xxi. 216. ..Chancy, 99. ' V. Gumo,'xii. 414. '. . . Corpn, 40. ' Hawthorne v., xi. 59. ' V. Hempstead, iv. 242... St. Louis, 1 1 . ' Hill v., XX. 584. ' Hoffman v., xv. 651. ' V. Jackson, xxv. 37 St. Louis, 15. ' Lambar v., xv. 610. ' Lockwood v., xxiv. 20. ' V. McCoy, xviii. 238.. Laws, 51. ' V. McDonald, x. 609 . . Con- tract, 61. ' Mclndoe v., x. 575. ' McKce v., xvii. 184. ' Metcalf v., xi. 102. ' V. Morton, vi. 476. .Estop,l9 ' v. Murphy, xxiv. 41 . ..Crim Law, 443. " Page v., XX. 136. " Eiggs V , vii. 538. " V. Roaers, vii. 19. .Sa-off,21. " V. Kussell, ix. 503. . . .Zaajs, i9.... St. Louis, 26. " V. Shands, xx. 149 St. Louis, 14. " Shepard v., xx. 589. " V. Smith,ii. 113. .St. Louis,8 " V. Smith, X. 438 . . Corpn, 36. " Smith v., xxi. 36. " St. Bt. tr. States v., v. 230 " St. Louis Hosi AssD. v., XV. 592. LIST OF CASES. City of St. Louis, St. Louis Pu'o. Schools v., xxvi. 468. " " Taylor v., xiv. 20. " "v. Toney, xxi. 243 Prac, 228 Pub Lauds, 61, 98, 106, 110, 121. " Von Vhul v., ix. 48. " " Waddingham v., xiv. 190. " " Walker v., xv. 563 — xvii. 335. City of Weston, Wells t., xxii. 384. Claflin, Perriu v., xi. 13. Clamorgan, Collins v., v. 272 — vi. 169. " V. Guisse, i. 141 . .Bond, 7 . . Chariq/, in .. Contract, 6. ' V. Lane, ix. 442 . . . Convey, 34, 66 . . Estop, 29 . . Infants, 5 . . Will, 15. " V. O'Fallon, X. 112. . .Executn, 101. " Biley v., xr. 331. Clardy V. Richardson, xxiv. 295. . Convey, 15, U..£vid, 79. Clark, Bank Com. Kentucky t., iv. 59. V. Ban-ett, xix. 39. .Secur, 15. V. Brazeau, i. 290. .Eject, 12. V. Brown, xxii. 140. .Mec Lien, 10. V. Brown, xxr. 559. .Mec Lien, 21, 22. V. (;able, xxi. 223. . Contract, 28. Campbell v., vi. 219. .viii. 553. Carson v., i. 159. Casey v., ii. 211. V. Gondii, xi. 79. ..xiii. 222.. .see Omitted Cases, p. vi. V. Conway, xxiii. 438. . .Husb and Wife, 64, 65.. Practice, 165. Uses, ^Tr, 17. Hall v., xxi. 415. V. Hammcrle, xxvii. 55 . . Practice, 227 . . Pub Lands, 90, 108,. . Will, 9. r. Henry, ix, 336 .. . Chancy, 2, 54, 134. . Vfvise and Ler/, 25. V. Holliday, ix. 702. .Attaeht, 45. .Atty at Lata, 8. V. Hnffaker, xxvi. 264. .Evid, 98, 99. V. Humphreys, xxv. 99. .Boats and Ves, 57, 58. Iluntsucker v., xii. 333. Kerr v., xix. 132. King- v., vii. 269. ' KinL'sland v., xxir. 24. ' Lane v., i. 657. ' v. Loker, xi. 97.. .Assignt, 4. ' V. Maj^riiire, xvi. 302 .. . Husb and Wife 64, 65 . . Uses and 'It, 17. ' V. Middieton, \ix. 53. .Ins, 47, 53. ' V. Murphy, i. 114. .Admin, 17. .Pleading, 95. Odle v.. ii. 12. ' Payne v., xix. 152 — xxiii. 259. ' liOiS V,, .xxvii. 549. ' V. Schneider, xvii. 295. .Dam, 11, 12. Scln-ueder v., xviii. 184. V. Miult/, iv. 235. .Frauds and Per j, 1. Soulard v., xix. 570. The Wtito v., xviii. 432. V. St. Bt. Mound City, ix. 145, 147 Practice, 63. V. Stevens, x. 510. ..Prac in Sup Ct, 75. Sutton v., ix. 555. Wdl)ur v., xxii. 503. Clark County Court, Johnson . , xx. 529. Clarkson v. Morrison, xxiv. 134. . Contract, 19. Clavadetscher, Gates v., xix. 125. Clawater v. Tetherow, xxvii. 241 . .Frauds and Perj, 11. Clay, Davis v., ii. 161. " Bopcr v., xviii. 383. " v. The State, vi. 600 Crim Law, 264. " St. Louis County v., iv. 559., Claybrook, Kollins v., xxii. 405. Clayton v. Phipps, xiv. 399. ..Bills Ex ^ P Notes, 82. Cleaveland, Brown v., v. 65. " ]>avi8 v., iv. 206. " V. Davis, iii. 331 . . Practice, 204. Cleland, St. Louis County v., iv. 84. Clemens v. Broomtield, x"ix. 118. .Landld and Ten, 1, 13. ,Prat:tice, 188. " V. Brown, ix. 709 . . Executn, 3. " Central Pl'k Hoad Co. v., xvi 359. V. Collins, xi. 320 Bonds N and Accis, 53. " V. Collins, xiv. 604 Bonds N and Accts 59 .. Practice, 214, 278. " Draper v., iv. 52. " v. LaveiUe, iv. 80. .N Trial, 54. " Lucas v., vii. 367. " Valle v., xviii. 486. " V. Wilkinson, x. 97. . Limitatns, 33. Clementine v. The State, xiv. U2 . . Crim Law, 27, 28, 388.. VViteess, 9. Clendeunen v. Paulsel, iii. 230. . . Contract, 54 . . Covenant, 13. Clerk of Supreme Court, Town v., ii. 26. Cleveland, McCauley v., xxi. 438. Clifton, The State v., xxiv. 376. Cline, Mattingby v., vii. 499. Clinton v. Dugal, i. 761 ..Error, 16. Clippard, Cook v., xii. 379. Cliihecy v. Hagan, xx. 453. .P,actice, 188. Clouse V. Magaire, xrii. 158. .Practice, 196. Clump, The State v., xvi. 385. Coalter, Matthews v., ix. 696. " v. Price, i. 54 . . Bills Ex and P Notes, 23. Coates V. Day, ix. 300. . Chancy, 132. Coats V. Eobinson, x. 757 Mush and Wfe, ■ 48, 49. " Whitmore v., xiv. 9. Cobb, Brent v., xxvi. 196. Cobura V. Tucker, xxi. 219 . . Arb ^ Ref, 8, 9. Cochran v. Bird, ii. 141 Appeal, 52. " V. Goddard, xxvii. 50U. .Executn, 69. " V. Moss, X. 416 Chancy, 188. " Temple v., xiii. 116. CockriU \ . Kirkpatrick, ix. 688 Bills Ex ^ r Notes, 4, 5 Demand, 3 . . . . Evid, 36, 50 Tender, 6. " V. Owen, X. 287... .Recog, 10, 18,20. " Wilson v., viii. 1. Coffman v. Harrison, xxiv. 524 Agency, 27 Appeal, 86. V. Huck. xix. 435. . . Chancy, 197 .. . Dam, 17,20. " V. Buck, xxiv. 496 .. Dam, 17,20, " Pratte v., xxvii. 424. Coggbum V. Simpson, xxii. 351 .. . .Agency, 37, 38. Cohen V. Kyler, xxvii. 122 ...Fixtures, 9... Landl ij- Ten, 26. " Perpetual Ins. Co. v., ix. 416. XXXIV LIST OF OASES. Cohen V. Perpetual Ins. Co., xi. 374 In- terest, 7. " - V. Wolffe, xii. 213 Aasignt, 37. Colcord V. Daggett, xviii. 557 Gamisht, 10, 39, 42. Cole, Maddin v., xii. 61. " Vossel v., X. 634. Cole County v. Angney, xii. 132 Chancy, 1 b2 . . Schools, 5 . . Secur, 37 . Cole County Court, Kennett v., xiii. 139. Coleman v. McAnulty, xvi. 173. .Judgt, 71, 87 " V. McKnight, iv., 83 . . Prac SiipCt, 7. " V. Roberts, i. 97. .Practice, 210, 222. " V. The State, xiv. 157. . Crim Laii>,396 Colgan T. Sharp, iv. 263 Covenant, 27 Pleadg, 57. " Sharp v., iv. 29. CoUard v. Eddy, xvii. 354. . . i Salvage, 1. Collier V. Budd, vii. 485. ..Bills Ex. and P. Notes, 68. " V. Easton, ii. 145. . . Chancy, 57. Eaaton v., i. 421— i. 467— i. 603— iii. 379. " V. Gamble, x. 467. . . Covenant, 17-19. " Lawless v., xix. 480. " Payne v., vi. 321. " H'ggin v., vi. 568. " The State v., xv. 293. " V. Svvinney, xiii. 477. . .Practice, 68. " v.. Swinney, xvi. 484. . . Com. Car, 13. " V. Valentine, xi. 299. ..Boats and Ves, 54, 91... Com Car, U. " V. Wheldon, i. 1 . . . Dower, 18, 19... Er- ror, 1, 33. ..Pleadg, 95. " White v., V. 82. Collin, Burton v., iii. 315. Collins V. Bowmer, ii. 195. . .Error, 8. ..Evid, 162... Prac Sup a, 9., " V. Brannin, i. 540. .Eject, 28. " V. Glamorgan, v. 272. . .Practice, 220. " V. Clamorgan, vi. 169. . .Z^am, 18. " Clemens v., xi.- 320— xiv. 604. " Eisk v., ix. 136. " V. Hough, xxvi. 149. . .Replev, 45, 46, 48, 49. " Joliffe v., xxi. 338. " Lee V,, i. 587. " V. Lee, ii. 16... Chancy, 55. McNuIty v., vii. 69. " V. Todd, xvii. 537 . .Breach Peace, 2, 3. '• V. Waddle, iv. 452... Sei'wT; 15. " V. Warburton, iii. 202. .Bonds N and Accts, 69. Columbus Ins. Co., Roe v., xvii. 301. . " " V. Walsh, xviii. 229 7ns, 51-53. Comfort, The State v., \. 357. Condit, Clark v., xi. 79— xiii. 222. Conner v. Bent, i. 235. .Laivs, 32. " Gooch v., viii. 391. " V. The State, xiv. 561 . . Crim Law 31. Connett v. Hamilton, xvi. 442. . Witness, 21. " Switzer, v., xi. 88. Connoly, Eagin v., xxv. 94. Connor v. Eddy, xxv. 72. . Chancy, II . .Estop, Cuurad V. Belt, xxii. 166. .2V Trial, 65. .Prac Sup Ct, 51. " The State v., xxi. 271. Conran, Magnire v., viii. 107. Consaul v. Lidell, vii. 250. .Practice, 301. Consoue, Chouteau v., i. 350. Constant, Long v., xix 320. Conway V. Campbell, xi. 71. .Execution, 123, 124. " Clark v., xxiii. 438. " Higdon v., xii. 295. " Miller v., ii. 213. " V. Nolte, xi. 74. .Execufn, 100, 104. " Reed v., xx. 22 — xxvi. 13. " The State v., xviii. 321. Cook V. Callaway, i. 545 . . Certiorari, i. " V. Clippard, xii. 379 . . Fraudlt Convey, 38 " V. Davis, iv. 622. ..Error, 41. " V. Johnson, iii. 239 . . Covenant, 12; " McDonald v., xi. 632. The State v., i. 547. Cooley, Joy v., xix. 645. " Picotte v., X. 312. " V. Rankin, xi. 642 Convaf, 25. Mortg, 20. Coonce, Biehler v., ix. 343. " V. Munday, iii. 373. .Executn, 6, 7. .Jus Peace, 42. " Webb v., xi. 9. " Wineland v., v. 296. Coons, Crow v., xxvii. 512. " V. Green, ix. 197. . Witness, 34. " Nat v., X. 543. " V. North, xxvii. 73. .Deed of Trust, 11. " Pomeroy v., xx. 598. " Shore v., xxiv. 553 — ^xxiv. 536. Cooper, Davis v., vi. 148. " V. Garesche, xxi. 151 . . Costs, 36. " Holliday v., iii. 286. " V. Marlow, iii. 188. .Lib and Slan, 32. '• V. Maupin, vi. 624 Trespass, 38 Way, 11. " Perry v., viii. 205. " The State v., xvi. 551. Cooper Circuit Court, Stacker v., xxv. 401. Cooper County v. Geyer, xix. 257. . .Mds and Highmya, 5, 17. Cooper County Court, The State v., xvii. 507. Cooper Court of C. P., Williams v., xxvii. 225. Coats V. Morgan, xxiv. 522 . . Admin, 87 N Trial, 7. Copeland, Glasgow v., viii. 268. " V. Loan, X. 266... ^ssum, 43. Coppedge, Blaiu v., xvi. 495. " Wall v., XV. 448. Corbett, Stone v., xx. 360. Corby, CargiU v., xv. 425. " O'Donoghne v., xxii. 393. Cordell, Manning v., vi. 471. Colder v. Martin, xvii. 41. Chancy, 96. Corl, Prdtte v., ix. 162. " V. Eiggs, xii. 430. . Covenant, 16. Corlew, Boone County v., iii. 12. Corn, Carroll v., i. 161. CorneUus v. Grant, viii. 59. .Mec Lien, 24, 26, 27 . . Practice, HI. .Prac Sup Court, 8. " Hayden v., xii. 321. " V. McDonald, ii. 55 . .Demand, 7. " Wrightv., X. 174. Coming, Brake v., xix. 125. Corson, The State v., xii. 404. Corwiit, The State v., iv. 609. LIST OF CASES. Corwin r. Walton, xviii. 7\,, Breach Peace, 4 5. Cotrell, Griffith v., i. 480. Cottle V. Sydnor, x. 763. .Estop, S..Linitatns, '76. .Pub Lands, 72. Couch V. Hughes, ix. 768. . See Lewis v. Lewis, ix. 182. CouirUin V, Lyons, xxiv. 533. .Jus Peace, 12. Couley V. The State, xii. 462.. Crim Law, 367. Courtniire, Jefferson Cify v., ix. 683. Courtney, Dider t., vii. 500. Cousineau v. The State, x. 501 . . See Neales v. The State, x. 498. Covington, Jones v., xxii. 163. Cowan V. Barret, xviii. 257. .Attyat Law, 5. Cowdeu V. Elliott, ii. 60. .Set-off. 1. " Williams v., xiii. 211. Cowgill, Gregory v.,xix. 415. Cox V. Beltzhoover, xi. 142 Heirs, 1. " v. Capron, x. 691 Pleadg, 109 Practice, 34. " V. City of St. Louis, xi. 431 Evid, 25 Tudgt, 68. " Ex parte, x. 742 Mandam, 10 Venue, 3. " Jones v., vii. 173. " Morgan v., xxii. 373. " Pee v., xvi. 166. " T. The State, ix, 180. . .Breach Peace, 16. " Thomas v., vi. 506. Coxe, Rutherford v., xi. 347. " V. Whitney, ix. 527 ... . Breach Peace, 2 Evid, 94. Coy V. DeWitt, xix. 322 Paymt, 7. " Dunnica v., xxiv. 167. Cozens V. Barrett, xxiii. 544 Evid, 184. Cozzens v. Gillispie, iv. 82 Witness, 22. " Wolf v., iv. 431. Crabtree, The State v., xxvii. 232. Craft, Morse v., x. 720. Craig V. Barcroft, i. 656 ... . Laws, 74. " Benton v., ii. 198. " Collaway County Court v., ix. 836. " V. Callaway ( ounty Court, xii. 94 ... . Action, 25 ... . Limitains, 43 ... . Witness, 93. " Ex parte, xix. 337 Cir Ally,. 4. " George v., vi. 648. " V. Maupin, vi. 250 Prac Sup Ot, 72. " Perry v. iii. 516. " The St^e v., i. 502. Craighead v. Wells, xxi. 404 Contract, 44, i5..:.. Evid, 18, 104 In- fants, 3 Practice, 240 ... Prac Sup Ct, 52. Cramer, Ashlfey v., vii. 98. Crane v. Paggett, x. 108. . .Prac Sup Ct, 67. " V. Taylor, vii. 285 .. . Practice,. 306. " Palmer v., viii. 61»- ix. 266. Craslin v. Baker, viii. 437. . .Admin, 1.79. Cravens v. Pettit, xvi. 210. . .Bound S/- Des, 6. Cravirford, Oliver v., i. 263. " Yankee v., xiii. 475. Crawford County, Brow n v., viii. 640, Creath, Hood v.. 1. 582. " V. Smith, XX. 113 ... Chancy., 149... Zn- fants, 19, Crenshaw, Canefox v., xxiv, 199. " The State v., xxii. 457. Griddle v. Griddle, xxi. 522. . .Evid, 124, 125 . . .Fraudlt Convey, 45. Crigler v. Quarles, x. 324. . .Debt, 9. " Turner v., viii. 16. Crinion v. Nelson, vii. 466. . .Mortg, 22. Crinnion, McKnightv. xxii. 659. Crocker v. Mann, iii. 472 .. . Landl and Ten, 3b... Pleadg, \l...Frac Sup Ct, 6 . . . Replevin, 4,5. Crockett, Aehworth v., xi. 636. " Ellington v., xiii. 72. " V. Maguire, x. 34 . . . Convey, 35. " V. Morrison, a. 515. . .See Lament v. Mullihn, X. 495. " V. Morrisou. xi. 3. . .Evid, 122. . .Lim- itains, 70. " Wright v., vii. 125. Crole v. Thomas, xvii. 329 . . Prac Sup Ct, 66. " V. Thomas, xix. 70. . .Pleadg, 131. Cromwell Bird v., i. 8 — ^i. 81. Crook V. Feebly, viii. 344. . .Strays, 2. Cross Richmond v., xiii. 75. " The State, v. xxvii. 232. Crouch V. Plummer, xvii, 420. .Fees, 2. Croughton v. Forrest, xvii. 131 . .Partnshp, 11. " Young v., xvii. 367. Grow V. Coons, xxvii. 512 B of E and P Notes, 104. " V. Harmon, xxv. 417 Bonds N and Accts, 21 . " V. Marshall, xv. 499 Attchmt, 65 ... . Evid, 12. .Practice, 151. " V. Ruby, V. 484. .Assignt, 6, 33. " V. The State, xiv. 237 . .Imws, 71 . Crowley v. Wallace, xii. 143. .Executn, 9, 132, 1.33.. Access, 29. Crowther v. Gibfon, xix. 3&b..Evid, 129. " Thornton v., xxiv. 164. Crump V. McMurtty, viii. 408 . . Secur, 37, 39 . " V. Mead, iii. 233. .Assum, 13. Crutcher, Thompson v., xxvi. 319. Crntsinger, Ross v., vii. 245. Culbertsott v. Matson, xi. 493. . . Chancy, 138.' 140, 155. Cummins, Egyptian Levee Co. v., xxvii. 495-. Cummings v. Gutridge, xvii. 469 . . Pleadg,\ 65: Cunningham v. Asbrook, xx. 553. .Sale, 4. " V. Gray, xx. 170. .Executn, 3-3. " Richardson'sExp. v.,xxv.396 " Sisk v., viii. 132. V. The State, xiv. 402. .Bond, 1 Laws, 46. V. Sublette, iv. 224. .£!;id, 92. " UbsdeU v., xxii. 124 — xxvi. 385. Cupples V. Hood, i. 491 ..Error, 17. Curd, Overton v., viii. 420. Curl V. Mann, iv. 272. . Practice, 112, 155. Curie, Beach v., xv. 105. " Boynton v., iv. 599. " V. Eddy, xxiv. U 7 . .Frauds and Perj, 30. " V. McNutt, vi. 495 . , Petitn in Debt, 3. " V. Perpetual Ins. Co,, xii. 578. .Bonds N and Accts, 95. " v.Pettus, vi. i9'. ..Petiln in Debt, 4. Curling, Hyde v., x. 359. " V. Hyde, x. 374. . Garnisht, 3. Curran, The Stqte v., xviii, 32C. Currin v. Eoss, ii. 203. .Practice, 21. LIST OF CASES. Curry, Boatman v., xxv, 433. Curtis V. Settle, vii. 4,52. .Attachmt, 12. " Thompson v., ii. 209, 229. Cutter, Childress v., xvi. 24. " Fisher t., xx. 206. " v. Wadlingham, xxii. 206. ./>esc and fli's, 3, 7, 8. . .Hmb and Wife, 24, 25. . . Limitatns, 78, 79. . .Pub Lands, 178. D. Daggett, Colcord v., xvir. 557. " Crane v., x. 103. " He-ith v., xxi. 69. " O'FrtUon v., iv., 343. " V. Rhaw, iii. 264. . Com Car, 10. Dale, Beale v., xxv. 301. Dallam v. Bowmvn, xvi. 225. .Execvtn, 92. " V. City of St. Louis, xii. 582 — See Carroll v. Same, xii. 444. " V. Renshaw, xxvi. 533 Fraudlt Convey, 25, 26. Dalton, The State v.-, xxvii. 13. " Wood V , xxvi. 580. Daraeron v. Belt, iii. 213. . Teniier, 1. " V. Dame-on, xix. 317. . .Admin, 59. " V. The State, viii. 494. Crim Law,i. " V. Williams, vii. \S&.'. .Assigiit, 15 . . Trespass, 9 . . Witness, 65. Daniels, Kennedy v., xx. 104. " Wilcox v., xxii. 493. Dannefelser v. Weigel, xxvii. 45 . . Depositions, li..Sil.e, 6. Dansforth, Pearce v., xiii. 360. Darby, Armstnmg v., xxvi. 517. " Benoist v., xii. 196. ' " riempstead v., ii. 25. " Lansrham v., xiii. 5i3. " V. St. Bt. Inda, ix. 645. .Boats and Ves, 7. " Steiiiers v., viii. 679. " V. .'^wiirtz, xi. 217 ..Admin, 170. " Wise v., ix. 130. Darne v. Bioadwater, iv. 18. .Practice, 76, 91. " Broadwater v., x. 277. Dameal v. Beeves, xxv. 295. . .Jurisdictn, 37. Dareah v. St. Bt. Lightlbot, xv. 187. . .Evid, 146. " V. Sr. Bt. Lightfoot, xvii. ilG.. Prac- tice, 300. Darst, Pillard v., vi. 358. Darton, Allison v., xxiv. 343. David, Leo v., xi. 114. Davidson v, Pod;, iv. 438. .Assiim, 47, 48. . . Practice, 322 . . Prac Sup Ct, 73. " V. Rozier, xxiii. 387 . . Atty at Law, 2. " Settle v., vii. 604. " The State v., xx. 212, 406. Davis, Allen v., xi. 479. " V. Barnes, iii. 137 . . Trover, 6. " V. Bowliiif;, xix. 651 . . Usury, 9. " ». Burns, i. 264. . .Amendmt, 13. . . Cove- nant, 23 . . Practice, 295. " V. Cape Girardeau County Court, i. 151. Cir Atty, 2. " V. Christy, viii. 569 . . .Action, 23 . . Bills ExSc P Noiis. 47, 48. " V. Clily, ii. 161 . . Mortgage, 3. " Cleiiveland v., iii. 331 . " V. Cleaveland, iv. 206. ..7ms Peace, 31. Davis, Cook v., iv. 622. " V. Cooper, vi. 148., £«!'(/, 17.. Executn, ]\ 5.. Trespass, 27, 28. " V. Davis, iv. 204. .Jppeal, 28. " v. Davis, V. IS3.. Chancer ■, 51.. Dower, 9, 30. " V. Davis, viii. 56 . . Error, 11.. Evid, 57 . Practice, 30";. " Dean, v., xii. 112. " V. Evans, xviii. 249. .Mas«^5/awe, 1,3. " V. For.'if-'. xi. 130, .. . See Sloan v. Forse, XI. 126. " V. Foster, xv. 395 . . Slaves and Sla, 1 2. " V. Francisco, xi. 572... Bills Ex and P Notes, 24, 49. " Gale v.. vii. 544. " V. Hascall, iv. 58 . . Limitntns, 60. " v. Hays, i. 270 Practice, 326. " V. Herring, vi. 21 . . . .Limitatns, 39. " V. Jmboden, x. 340 Deiit, 10. " Jones v., iv. 28. " V. Knnpp, viii. 6.'i7. . . Garnisht, 25, 26. " Lewis v., iii. 133. " McKinney v., vi. 501. " Miles v., xix. 408. " V. Ownsliy, xiv. 170. .. . Convey, 31 . . . Lien, 15. " V. Scripps, ii. 187. . :.N Trial,, 27. " V. Slag'e, xxvii. 600. ...iTusft and Wife, 13, 14. " V. Smitli, XV. 467 . . Lindl ^ Ten, 33, 34. " Smith v., xxvii. 298. The State v., i. 502. " V. Tuttle, X. 201 Us'iry, 6. " V.Wood, \'i\. 162 Exeaitn, 2& Jiidgt,\2.. . .Process, 5, 13... Tres- pass, 2. Davison, Kay v., xxiv. 280. Davy, (Jverton v', xx. 273. Dawson v. Dillon, xxvi. 395 Set-off, 43. " George v., xviii. 407. Day, Cotes v., ix. 300. " V. Hornbuclsle, viii. 37 Costs, 12. " V. KeiT, vii. 426 Cliancy. 202. " V. The State, xiii. 422 Crim Law, 275 .... Witness, 11. Dean v. Davis, xii. 112. : Slaves and Sla, 30. . Trover, 8. FaiTar v., xxiv. 16. Fuhr v., xxvi. 116. V. McFaul, xxiii. 76 Parfnshp, 48. V. Bitter, xviii. 182. .Boats and Ves, 56. Bouse v., ix. 298. Smith v., xix. 63. Deane v. Todd, xxii. 90. . Chancy, 101. Death, Butcher v., xv. 271. Deaver, Hill v., vii. 57. " Bayburn v., viii. 104. " V. Savage, iii. 252. .Assignt, 25. DeBaun v. Atchiscm, xiv. 543. .Agency, 18, Deer v. The State, xiv. 348 . . . Crim Law, 389 N Trial, 48. Deei-felt, Griffith v., xvii. 31 . Deiclcman v. McCormick, xxiv. 596. .Pleadg, 171. Delaney, Pool v., xi. 570. Delassus v. Poston, xix. 425. . .Appeal, 4 Chancy, 30. .Husb and Wife, 82 Lien, 5, 6, 9. LIST OF CASES. Dclassus V. Poston, xxi. 543 . . Lien, 3. Delanriere t. Emmerson, xiv. ST.... Pub Lands. 41. Pelingev v. Hiprgins, xxvi. ViO. Process, 32, 34. Dellinger, Hif;gins v., xxii. 397. Delore, Ivory v., xxvi. 505. Delphy, Leitensdovfer v., xv. 160. Dempsey v. Harrison, iv. 267 . . .Evid, 168. . . Practice, 24, 103. Denniii, McAllister r., xxvii. 40. Dennis v. Ashley, xv. 453. .Aqency, 10. Dennison v. Sniith, xxvi. 487 For Entry and Detainer, 22. Denny v. Kile, xvi. 450... Contract, 23, 38, 65, 70. Dent V. Binaham, viii. 579 . . Pub Lands, 93. " Fcigiison v., viii. 667. " Grider v., xxii. 490. " Inhiib. ff Caronde'et v., xviii. 284. " V. Miles, iv. 41 9 . . Phwlg, 93. " v. Morrison, i. 130. .Practice, 48. " Jlorrifon V., i. 246. The Statu v., xviii. 513. " Stewart v., xxiv. 111. Depas V. Mayo, xi. 314 . ..Husb Sf Wife, 88. Depew V. Roliards, xvii. 580. . . .tSale, 18. Derossctt, The State v., xix. 383. Desire, Diikson v., xxiii. 151. Desloge v. Ranfrcr, vii. 327 Mortg, 8. Desntiver, City of Carondclet v., xxvii. 36. Despnin v. Caiter, xxi. 331 . . Oancy, 37. 20?. Dessaiiit, Brockinan v., x.\i. 585. ' Dessaunier v. Murpliv, xxii. 95... Convey, 90 Jis:op, 18. " V. Murphy, xxvii. 48. . . Convey, 91. Destrehan v. Scudder, xi. 484 .... Chancy, 97 Judfft., 59 Morty, 56. Detchemendy, Moreau v., xviii. 522. Devers v. Becknell, i. 333 Agency, 35. Devine, Searcy v., iv. 626. Devinney v. Lay, xix. 646. . . .Secur, 16. Devlin, The State v., xxv. 174. " Stoops v., xvi. 162. Devore v. Pitman, iii. 179 Admin, 21, 27, 154. " V. Pitman, iii. 182 . . .Admin, 37, 42. Dewes, Hanly v., i. 16. UeWitt, Coy v., xix. 322. Dick v. Page, xvii. 234. . . .Agency, 19. Dicken, Johnson v., xxv. 580. Dickenson, Kelly v., xv. 193. Dickerson V. Apperson, xix. 319 .... Appeal, 81 Constable, 7. " Matson v., iii. 339. " The State v., xxiv. 365. Diekey v. Fox, xxiv. 217... Garnisht, 33. " V. Malechi, vi. 177. . .Jurisdictn, 7, 18, N Trial, 19. . . .Pleadg, 100 Will, 31, 33, 34 Witness, 76. " V. Tennison, xxvii. 373. ..Way, 22 . . . .Laws, 62. Dickson v. Anderson, ix. 155.. .Estop, 6, 7. " Caldwell v., xvii. 575. . .xxvi. 60. " V. Desire, xxiii. 151 .. Covenant, 39, 53... Dam, 28. Dider v. Courtney, vii. 500 . . Attacht, 53. Diepenbrock, Busch v., xx. 568. " v. Shaw, xxi. 122.. .Practice, 296. Dille, Lewin v., xvii. 64. Dillihunty, The State v., xviii. 331. Dillon, Ashby v., xix. 619. " V. Chouteau, vii. 386. .Evid, 119. " Dawson v., xxvi. 395. " Funk v., xxi. 294. " Mackay v., vii. 7. " Neil v., iii. 59. " Potter v., vii. 228. " T. Rash, xxvii. 243. .Executn, 142. " V. Wilson, xxiv. 278. . Landlord and Ten- ant, 41. Dinwiddie, Brewer v., xxv. 351. Dirlam v. Wenger, xiv. 548. . Garnisht, 35. Dittrick, Bersch v., xix. 1 29. Divers V. Mark, iii. 81 . . Chancy. 129, 201. Dix V. Union Ins. Co., xxiii. 57. . Tns, 41. Dixon V. Hood, vii. 414. .Evid, 93. . Witness, 46. " James v., xx. 79 — xxi. 538. " V. Judge, iv. 286. .Mandam, 5. " Viti v., xii. 479 D'Lashmutt, Manifee v., i. 258. " Smith v., iv. 103. Doan T. Holly, xxv. 35T ..PleaiJg, 139. " V. Holly, xxvi. 186. .Morty, 52. P/carfy, 139. . I'ractice, 32. " V. HoUy, xxvii. 256. .Judgmt, 90, 91. Miller v., xix. 650. " r. Moss, XX. 291 ..Bonds N and Accts, 18. Doane v. Newman, x. 69. . Practice, 253. Dobbins v. 'J'hompson, iv. 11 8 . . Process. 1 8, 1 9. Dohbyns v. Sheriff, v. 256 . .Boals and Ves, 88. Dobyns, Garvey v., viii. 213. " Lane v., xi. 105. " V. McGovern, xv. 662. .Admin, 38, 39. . Assignt, 2 . . Chancy, 4. . Secur, 5. Dobson V. Butler, xvii. 87. .Admin, 191. Dodd V. Winn, xxvii. 501 . .Secur, 47-49. Dodge, Hempstead v., i. 493. " Hcnsley v., vii. 479. " McNair v., vii. 404. Dodier, Lahcaume v., i. 618; Dodson, Arnett v., x. 783. " v. Johnson, vi. 599. . Prac Sup Ct, 9. Docllner v. Rogers, xvi. 340. .MecLien, 20. D'CEnch, Norcum v., xvii. 98. Doggett V. Lane, xii. 215 Chancy, 178 Fraud, 4. " V. St. Louis M. & F. Ins. Co, xix. 201..6'a™)s/i(, 40, 51. Donald, Kimball v., xx. 577. Donaldson v. Anderson, v. 480. .Practice, 92. " Pomeroy v., v. 36. Dong.an, Williams v., xx. 186. Doniphan v. Paxton, xix. 288.. Mortg, 15, 16. DonneU v. Busby, xv. 41 5 . . see Sjnilh v. Same, XV. 387. Donohoe v. Chappell, iv. 34. . Trespass, 26. " V. Glasgow, i. 505.. Practice, 235. " v. Rooker, x. 166 see Eeeds v. Morton, ix. 868. " St. Bt. Falcon v., xiii. 231. " V. Veal, xix. 231 . . .Revenue, 15. Dooly V. Jennings, vi. 61 . . .iV" Trial, 51 . . . Warranty, 1. Doores, Byars v., xx. 284. Dorsett, Whittelsey v., xxiii. 236. Dorsey v. Burns, v. 334. . .Admin, 84. " V. Hagard, V. 420. ..Consjti, 31. xxxvm LIST OF CASES. Dorsey v. Hardesty, ix, 157. . . Contract, 1\... Pleadg, 59. . .Seal, 3. " V. "Watson, xiv. 59. . .jS/to Ex and P Notes, 82. Douchouquette, Chouteau v., i. 669 — i. 715. " Gonsolis v., i. 666, 715. Dougal V. Flyer, iii. 40. . . Convey, 61, 62. . . Estop, 12. Dougherty v, Downey, i. 674. . .Action, 14. '< Keim v., viii. 498. " Lackland v., xv. 260. " T. Xracy, xi. f,2... Slaves Sr Sla., 26, 27. " ■ Vandemal v., xvii. 277. Douglass V. Baker, ix. 40. . .Exeaitn, 118-120. " V. Bank of Missouri, i. 24, . .Bankg, 14. ..Laws, 17. " Cabeen t., i. 336. " Nichols v., viii. 49. " V. Bitchie, xxiv. \^^...Mast and Slave, 6. The State v., i. 527. " V. Stephens, xviii. 362 . . .Dam, 33 . . Mast and Serv, ^...Prac Svp Ct, 53. Dowd V. Winters, xx. 361 . .Pleadg, 89. .Prac Sup Ct, 69. Dowdall, Hull v., xx. 359. Bowling V. Todd, xxvi. 267 . .Par and Child, 4' Downey v. Burke, xxiii. 228. . Contraci, 62, 63. " Dougherty. v., i. 674. Downingv, Bourlier, xxi. 149. .Practice, 175. " V. Garner, i. 751 . .Jus Petnee, 34. " V. Rmger, vii. 585 . . Consid, 24. " V. The State, iv. 572. .Eankg, 1, 2, 5. Dowsman, v. I'otter, i. 518. .Executn, 3. Doyle V. Doyle, xxvi. 5i5.. Susb and Wife, 107, 127, 128. " McDermott v., xi. 443 — xvii. 362. DoTon, HoUiday v., xv. 407. Dozin, Markham v., xii. 288. Draiien v. City of Boonville,, viii, 395. .Reve- nue, 29. Draher v. Sehreiber, xy. 602 . . Bonds N and Accts, 76. Drake V. Jones, xxvii. 428. ..Chancery, 107.. . Execution, 46 . " V. Rogers, vi. 317. . .Assignment, 19. . . Partnership,. 21. Draper, Ayres v., xi. 548. Birtlett, v., iii. 487 — xxiii. 407. V. Bryson, xvii. 7l . . . Convey, 33,. 37. . . Execution, 97 ..Judgment, 20. V. Bryson, xxvi. 108. . Convey, 38. City of Hannibal v., xv: 634. v. Clemens, iv, 52. .Bills Ex^P Notes, 55-57, 7,5, 87, Megehe v., xxi. 510. V. Owsley, XV. 613. . Consid, 19. v. Shoot, XXV. 197. . Convey, 2. .Limita- tions, 67, 68. " "Wooldridge v., xv. 470. Dred Scott, Emerson v., xi. 413. Dreher v., -SStna Ins. Co., x.iii. 128. .Ins, 5,6. Drewell, Hobein v., xx,' 450. Dreyer v. Ming, xxiii. 434. . Trespass, 16. Drumrite, Wilson v., xxi, 325 — xxiv. 304. Drury v.. White, x. 354. .Practice, 234. .Prac Sup. Ct, 58. Dryden, Benyv., vii. 324. " V. Holmes, ix. 134 Warranty, 10. " Schwartz v., xxv. 572. Dubo V. Smith, i. 313 Eject, 20 Prac Sup Ct, 6. Dubois V, Wilson, xxi. 213 . . . .Afec Lien, 4. Dubreuil, Macklot v., ix. 473. Du Breuil v. The State, x. 435. . Constable, 17. Ducker v. Bamett, v. 97, ... Builnit, 2. Dudgeon v. Teass, ix. 857 . . Slaves and S.'a, 28, Duff, Holtzclaw v., xxvii. 392. Dufras v. Washington, xii. 572.. JurisdLCtn,53. Dugal, Clinton v., i. 761. Dugan, Livingston v., xx. 102. Pugans V. Livingston, xv. 230 Will, 17. Dugdale, Leahy v., xxvii. 437. Dugin, Stewnrt v., iv., 245. Duhle, Glover v., xix. 360. Ouhiing V. Duhring, xx. 174 Dower, 4. Duraay, Brun v., ii. 125. Dumey v. Sasse, xxiv. 177 . . Devise Sf Leg, 31. " V. Schoeffler, xx. 323 . . Prac Sup 6X68 " V. Scheeffler, xxiv, 170 Deiiise ^ Leg, 31. Duncan V. Duncan, xii. 157. .Hwsfc^ Wife,\\9 " V. Dutican, xix. 368 Pleadg, 127. V. Fisher, xviii. 403 Pleadg, 175. " Gordon v., iii. 385. Ralph v., iii. 194. " V, Travis, iv. 369 . . .Majidam, 20. " Yincent v., ii, 214. Dunklin County v. DunkUn Co. Court, xxiii. 4+9.;.,Z;ocZla;iS, 10.... Mundam, 12 Public Lands, 48. Dunky, Hay v., iii. 588. Dunn, Milligan v. xix. 643. " v. North Mo. R. R., xxiv. 493 . Mec Lien^. " Paddleford v., xiv. 517. The State v., xviii. 419. " V. Wade, xxiii. 207 BUls Ex and P Notes, 27. Dunnica v. Coy,xxiv.]67..f7sescmdrr,ll,12. V. Sharp, vii. 71 . . .Dam, 18, 19. .De- mand, 11. " V. Thomas, xv. 385. .Jiirisdictn, 27. Dunnivant, Gramp v., xxiii. 254. Dimscomb v. Maddox, xxi. 144. . Lien, 12. Durham v. Durham, xxvi. 507. .Freedom, 17. Durkee, Bryant v., ix. 168. Durretts v. Hook, viii. 37i. . .Chancy, 24... Tender, 4. Dutcher, Harney v., xv. 89. Dutton, Paca v., iv. 371. Duty, Ex parte, xxvii. 43. . Admin, 1 . WiU, 13. Duval V. Laclede County, xxi. 396. .Poor, 1. Duvall V. Ellis, xiii. 203.. .Prac Sup Ut, 44. . Record, 4, 5. " V. Ruisin, vii. 449 . .Assigmt, 10, 21, 34. Dwire, The State v., xxv. 553. Dyer v. Carr, xviii. 246. .Appeal, 32. " V. Feld, vi. 14, .Petitn in Debt, 16. " V. Moms, iv..214. ./i6 and Slan, 17, 18 ... Witness, 19. " V. Sublette, vi. 14. .Petitn in Debt, 16. E. Eads V. Woolridge, xxvii. 251 ...For En and Det, 47.. Schools, 4. LIST OP CASES. xxxlx Early v. rieming, xvi. 154. . .Inclosures, 1. ,. Jus Peace, 10. Easton v. Collier, i. 421 . . .Pleadg, 21 . . .Prae Sup Ct, 3. " V. Collier, i. 4:67 ..Pleadg, 9i..B£cog- nizance, 1 , 2. " V. Collier, i. 603. .Recog, 2, 3. " V. Collier, iii. 379. . Chancy, 156, 168. " Collier v., ii. 145. " Joeckel v., xi. 118. " V. McAllister, i. 662. .Limitatns, 6. " V. Salisbury, xxiii. 100...P«6 Lands, 153, 185, 186. " v. "Woods, i. 506../Jc»fe«, 30, 33. Eaton V. Vaughn, ix. 734. .Slaves and Sla, 17. Eberius, Sweringen v., vii. 421. Eberle v. St. Louis Fub. Schools, xi. 247. . . Jury, 4 . . Pub Lands, 110, 138-140. Eby, Griffith v., xii. 517. Eckert, Chouteau v., vii. 16. " V. Head, i. 593. . . Costs, 32. .Jus Peace, 22.. P/eady, 52, 53. " Humbert v., vii. 259. Eddings, Kuoker v., vii. 115. Eddy V. Baldwin, xxiii. 588 .. . Executn, 35 . . . JiuJt/t, 22. " CoUar'd v., xvii. 354. Connor v., xxv. 72. " Curie v., xxiv. 117. " J.'ickson v., xii. 209. " Little v., xiv. 160. " Metz v., xxi. 13. " V. Sturgeon, xv. 198. .Paymt, 13. " V.Tennessee Ins. Co., xxi. 587 Ins, 55. Edgar v. McCutehen, ix. 7 59.... Lib and Stan, 22. " Morrison v., xvi. 411. " V. Salisbury, xvii. 271.. Mec Lien, 1 5, 1 6. " Wood v., xiii. 451. Edgell V. Sigerson, xx. 494. . .Pleadg, 121. " V. Sigerson, xxvi. 583. . .Jruigt, 29. Edmondson, Link v., xix. 497. " Maddin v.. x. 643. Edmonson v. Ferguson, xi. 344. . .Laws, S7. " Piiill'ips v., xvii. 579. " Walsh v., xix., 142. Edson, Lindorman v., xxv. 105. Edwards, Campbell v., i. 324. " Clarr v., i. 137. " V. Eerguson, xiv. 469'. ..Mortgage, 12. " Minor v., x. 671 — xJi. 137'. " V. McKee, i. 123. . .Action, 13. . . Con- tract, 67. " Paul v., i. 30. " V. Perpetual Ins. Co., vii. 382. .Ins, 1. " Price v., xi. 524. " The State v., xix. 674. " v. AVatkins, xvii. 273. . .Practice, 28. " V. Welton, xxv. 379. . . Uses and Tr, 31,32. Egger, Islerv., x ii. 332. Egyptian Levee Co. v. Cum-mins,, xxvii. 495 . . . Kevertue, 3. " " V. Hardin, xxvii. 49'5... Laws, 5i.. Revenue, 3. Eiohelberger, Meier v., xxi. 14S. Eilers, Albers v., xviii. 279. Eldridge, Freeland v;, xix. 325. Eldridge v. St. Bt. Wm. Campbell, xxvii. 595 ...Boats ^ Ves, 76. Elgin, Pettus v., xi. 411. Ellenmann v. Thompson, x. 587. . .Husb and Wife, 71. Ellett V. Bobb, vi. 323. . .Bailmt, 4, 5. EUidgton v. Crockett, Xiii. 72. .Jus Peace, 29. " Ely v., vii. 302. " MaaterSOil v., x. 712. " V. Moore, xvii. 424. .Attachment, 3. . Process, 20. " Skinner v., xv. 488. ElUott, Block v., i. 275. " Cowden v., ii. 60. " Leak v., iv. 446. " V. Leak, iv. 540. .N Trial, 14. .Practice, 25. " V. Leake, v. 208 . . . LiMitaiions, 38 . . .iV Trial, 52. " O'Fallon v., i. 364. " V. Pogue, XX. 263..Prac Siip Ct22. " V. Sanderson, xvi. 482 . . Contract, 69. " Thompson v., V. 118. Ellis V. Andrews, xxv. 327 . .Practice, 296, 297. " Cag& v., i. 444. " Bilval v., xiii. 203. " V. Ellis, 1. 220. . Witness, 96. " V. Kreutzinger, Xxvii. 311 . .Itis, 25, 26. " V. Loumier, i. 260. . Pleading, 98. " Ramsey v., i. 402. " The State v., iv. 474. " Steinback v., i. 4r4^. " Strange v., 1. 412. " V. Whitlock, X. 781.. Laws, 3.. Trespass, 40, 41. Wood v., X. 382— xii. 616. Ellison, Hughes v., v. 110, 463. Ely, Carson v., xxiii. 265. " V. Ellington, vii. 302. .P«6 Lands, 17. Emerson v. Beavans, xii. 511 . . Trespass, 42. " Brown v., xviii. 103, ■ Scott v., XV. 576. " V. Sturgeon, xviii. l?o Practice, 257 Trespass, 34. " Wade v., xvii. 267. Emmcrson, Delauriere v., xiv. 37. " V. Dred' Scott, xi. 413 Error, 9. " V. Harriet, xi. 4131 Error, 9, Emnifz, The State v., Xxvii. 521. Emory v. Phillips, x:xii. 499 Evid, 152. . . Witness, 15. i England, Tbo State v., xix. 386. ! Engler v. Bate, xix. 543 Courts, 4 Pleadg, 152. " V. Eice, XX. 583 Garnish, 41. English v; Mullanphy, i. ^'80 Error, 8 Practice, 78, 94. •' V. Scott, i. 408 Plfadg, 20. " V. Scott, i. 495 Bond, 8. " The State v., ii. 182. " Wasson v., xiii. 176. " Wathen v., i. 746. Enyart, Harris v., xiii. 108. Epperson, The State v., iv. 90 — xxvii. 255. Erskiae r. St. Bt. Thames, vi. 371 .. . Boats Sr Ves, 83... Com Car, 2.... Demand, 9. " St. Bt. Thames v., vii. 213. Erwen v. The State, xiii. 306 . . Crim Law, 220. xl LIST OF GASES. Erwin v. Henry, y. 469 Jurisdictn, 25 Will, 14. Estes V. Antrobus, i. 197... Lib and Sland, 1,28. Eubanks t. The State, v. 450. . Crim Law, 76. Evans, Am. Iron Mountain Co. v., xxvii. 552. " V.Ashley, viii. 177 Executn, 80, 81, 95 Frauds and Perj, 12-15. " V. Bowlin, ix. 402 Practice, 57. " Davis v., jtviii. 2-19. " v. Franklin, xxvi. 252 Libd and aiander, 27. " V. Greene, xxi. 170 . . Bound andDes, 11 Eject, 22. . Witness, 1. " Gregory v., xix. 261 . " v. Hays, i. 697. . Assum, 18. " v. Hays, ii. 97 . . Costs, 5 . .Executn, 144 . . Witness, 44. " V. Hays, ii. 184. . Costs, 2. " V. King, vii. 411 . .Attachmt, 76. .Boats ■and Ves, 19. .Practice, 9. " V. King, xvi. 525 . . Demand, 4. V. Labaddie, x. 425. . Cometj, 67, 68. . Executn, 108. . Pub Lands, 86. ■ " V. Menefee, i. 442. . Chancy, 190, 191. " V. Muller, xxv. 195 Landlord and Tenant, 56. " Parker v., xxiii. 67. Phillebart v., xxv. 323. " Price v., xxvi. 30. " Kippey v., xxii. 157. " Sisk v., viii. 52. " V. The State, i. 492. . Chancy, 198. " The State v., i. 698, 748. " Tate v., vii. 419. " Warder v., ii. 205. " V. Wilder, v. 3 13 . . Convey, 50 . ," V. Wilder, vii. 359. .£2:ec«m, 95. Everett, Garth v., xvi. 490. " Pickett v., xi. 568. Ewing V. Miller, i. 224,. Bonds Nand Accts, 12. " V. Leaton, xvii. 465. . TVcs^joss, 44. " The State v., xvii. 515. i " V.Thompson, xiii. 132 Mast and Slave, 8. " Vasquez v., xxiv. 31. Ex parte. Bellows, i. 115. . Qto War, 1, 2. " Bishop, iv. 219.. Crim Xaio, 263. " Cain, ix. 760. .Crim itato,, 403. " Cox, X. 742 Mandam, 10 Venue, 3. Craig, xix. 337 . . Cir Atty, 4. " Duty v., xxvii. 43 . . .Admin, 10... Will, 13. " Fearle, xiii; 467. .^aiecMin, 23. " Mallinkrodt, xx. 493 Notary Pub, 2. " McGrade, xxiv. 125.. Appeal, 13. " McKee, xviii. 599.. Bab Corp, 8.. Notary Pub, 1 . " Owen, vii. 193. . Crim Law, 402. " Eutbvun, xvii. 541 . . [dab Corp, 6. " Skaggs, xix. 339 . . Error, 27. " Taie, ix. 660. .Fees, 4. " Toney, xi. 661.. Error, 4 Bab . . Corp, 4, 5. F. Faber v. Bruner, xiii. 541 . . .Practice, 58. , . . Prac Sup Ct, 35. Fackler V. Chapman, xx. 24:9. . .Evid, 85... Mast and Slave, lO, 11. " V. Fackler, xiv. 431 . . .Limitatns, 1 . Fagin, Cassell v., xi. 207. ' " V. Connoly, xxv. 94. . .Practice, 121. Fairbanks, Laughlin v., viii. 367. Fairfield, Love v., xiii. 300. ' Faldwesch, Schaffer v., xvi. 337. Fallenstein v. Boothe, xiii. 427. .Liband Slan, 7,46. Fallon V. Murray, xvi. 168. . .Record, 31. Fanning, Maston v., ix. 302. " 1. The State, xiv. 386. . . Crim Law, 315, 372, 380. Fanny v. The State, vi. 122. . . Crim Law, 189, 269... Witness, 10. ' Fareira v. Keevil, xviii. 186. . .Insolvents, 6. P'aris, Chamberlain v., i. -517, Farley, Guest v., xix. 147. " Montgomery v., v. 233. Farmer, The State v., xxi. 160. Far. and Merch. Bank of Memphis V. Loner- gan, xxi. 46 . . . Bills Ex and Prom Notes, 53...Evid,6i. Farr, Maulsby v., iii. 438. " Wathen v., viii. 324. FaiTar, Armstrong v., viii. 627. " V. Christy, xxiv. 453. . . Convey, 73. " V. Dean, xxiv. 16 Admn, 148 Es- cheats, 1. " V. Finney, xxi. 569. . .Practice, 296, 299. " V. Lyon, xix. 122. . .Practice, 180. " V. Patton, XX. 81... Chancy, 32, 33... Conuey ,7l...Fr and Fcrj, 7. " Polk v., xii. 356. " Weatherford v., xviii. 474. Farrell v. Bi-ennan, xxv. 88. . .Action, 40, 41. Farris, Bankston v., xxvi. 175. " Janx'll v., vi. 159. FaiTOw, McQueen v., iv. 412. Farthing, Murray v., vi. 251. ' Farwell v. Kennett, vii. 595... Bills Ex and P Notes, 1,2. Fath V. Meyer, xxvii. 568.. Evid, 5. Fawcett, The State v., xvi 380. Feagan v. Meredith, iv. 514. . Contract, 59, 60. Fearle, Ex parte, xiii. i61 .. Executn, 23. Feastev, The State v., xxv. 324. Feland, Austin v., viii. 309. ' Carier v., xvii. 383. Feld, Dyer v., vi. 14. Fellows, Lane v., i. 353. Fenly, The State v., xviii. 445. Fenton v. Perkins, iii. 23. .Dam 15 . .Practice 12.1, " V. Perkins, iii. Ui. .Practice, 125. " liiggs v., iii. 28. V. Kiissell, vi. 143. .Jus Peace, 35. " V. Williams, iii. 228. . Pleadg, 92. Fenwick v. Logan, i. 401 . .Practice, 270 Ferguson v. Bell, xvii. 34,7.. Admin, 65. . .In- fants, 6. V. City of St. Louis, vi. 449 St Louis, 1. v. Dent, viii. 667. . Warranty, 11. LIST OF CASES. xli Ferguson, Edmonson v., xi. 344 . "' Edwards v., xiv. 469 . " Frizel t., i. 141 . " V. Fiizel, i. 441 . .Pleading, 74. " Garrett v., ix. 124. " T. Huston, vi. 407 . . Consid, 32. " Little v., xi. 598. " V. Paschall, xi. 267. . Chancy, 118. " V. Seawell, i. 256. .Practice, 198. " The State v., ix. 285— xiii. 166. " V. Stephens, T. 211.. Oses^ T")-, 1. T. Turner, vii. 497 . . .iV" Trial, 25 . . Secur, 20. " L'nited States v., xvi. 258. Ferrara; Beck v., xix, 30. Ferris v. Hunt, xviii. 480. .Action, 43. " V. Hunt, XX. 464. .4c«ion,42. Fickos, Frisseli v. xxvii. 557. Field V. Barr, xx- ii. 416. .Evidence, 149. " T. Citizens' Ins. Co., xi. 50. .Ins,. 4-6. " Hedelston v., iii. 94. " V. Liverman, xvii. 218. .Attdchmt, 4, 66. " T. Matson, viii. 686. .Practice, 41. " Matson v., x. 100. " T. Milbm-n, ix. 488. . .Attachment, 80. . . Execution, 51. " The State v., xvii. 529. Fields V. Hunter, viii. 128. . . Covenant, 42. . . Evid, 166 . . .Pleadg, 84. . . Practice, 321. Fierline, The State v., xix. 380. Fiernan, Hill v., iv. 316. Filley v. Talbott, xviii. 416 Costs, 28 . . . Evid, .52. " T. Walls, iv. 271 . .Becog, 15. Fine v. (iray, xix. 33.. Action, 44-46. " V. Rogers, xv. 315 Contract, 49... .iV Trial, 6, 29. '• V. St. Louis Pujlie Schools, xxiii. 570. . Record, 26. Finley v. Acock, ix. 832. .Interest, 21. " Brown v., xviii. 375. " V. Caldwell, i. 512 Judgt, 48, 49 Laws, 30 Sci Fa, 1. " T. Finley, xi. 624 ArbandUef, 21, 27. " V. Langston, xii. 120 Woods, M and Prai, 1-3. " Townsend v., iii. 288. Finney v. Allen, vii. 416 Partnshp, 40 Prac Sup Ct, 58. " V. Brant, xix. 42 ... . Action, 26,27... Limitatns, 4 Practice, 87. " Farrar v., xxi. 569. " Murdoch v.. xxi. 138. " T. Shirley, vii. 42. . . .ylurisdiitn, 40. V. The State, ix. 225 Admin, 82, 101, 111 Guard and Cur, 2, 12, 13. " V. The State, ix. 624 Admin, 50. . . Prac Sup Ct, 73. V. St. Bt. Fayette, x. 61.2.. Boats and Ves,-2, 16. " V. St. Charles College, xiii. 266.... Depositions, 26. V. Turner, x. 207. ..Bonds, N and Accts, 89 Set-off, 31, 32. " V. Walking, xiii. 291 Fixtures, 8. " Watkins v., xxiii. 48. Fischer v. Meyer, xxiv 90 SeCur. 6. F Fisher v. Cutter, xx. 206 ,Guaranty, 7. " Duncan v., xviii. 403. " v. Gordon, viii. 3S6 . . Executn, 59, 116. " llardcastle v., xxiv. 70. " Presbury v., xviii. 50. " Kaymond v., vi. 29. " Smart v., vii. 580. Fisk V. Collins, ix. 136 ... Consid, 35. " V. St. Bt. Forest City, xviii. 587 . . .Boats and Ves, 40. • " V. Tabor, ix. 141 . . .see Fish v. Collins, ix. 136. Fithian, Squires v., xxvii. 134. Fitzgerald v. The Stale, xiv. 413. . Crim Law, 330 Practice, 153 Wit- ness, 30. Fitzpatrick, Hugties' v., xviii. 254. Flack, The State v., xxiv. 378. Fleetwood, '1 he State v., xvi. 448. Fleming, Early v., xvi. ir,4. " 'J'he Slate v., xix. 607. " Valle v., xix. 454. Flemm v. Whiimoro, xxiii. 430. . .Frauds and Perj, 29 . . .Jus Peace, 19. Flesher, Asbury v., xi. 610. Fletcher, The State v., xviji. 425. " V. St. Louis Marine Ins. Co., xviii. 193... /ns, 14, 39, 40. " V. Vanzant, i. 196.... Bonds, Notes and Accts, 10. Floating Dock Ins. Co , v., Poulard, viii. 665 . . . Assum, 52 . . . Practice, 63. Floersh v. Bank of Missouri, x. 515 New Trial, 3, 5. Flournoy v. Andrews, v. 513. . .Practice, 242 . . . Witness, 81. " V. Warden, xvii. 435. . . Convey, 12, 13. Floyd, The State v., xv. 349. " V. Wiley, i. 430 .. . Assum, 15 Pro- cess, 1. Floyde V. Wiley, i. 643 . . .Assum, I, 15 W'itness, 98. Flurnoy, Burk v , iv. 116. Folden v. Hendrick, xxv. 411... Master and Slave, 2 ... Practice, 265 Tro- vfr, 22.^ Foley, Haven v., xviii. 136— xix. 632. Fooxe V. The State, vii. 502 . . . Crim Law, 333. Forbes, Henry v , vii. 455. Ford V. Howard Circuit Court, ii. 225. . . Crim Law, 399. " V. Howard Circuit Court, iii. 309.. . Crim Law, 400. " Perpetual Ins. Co. v., xi 295. " Shulton v , vii. 209. Fore, Singleton v., vii. 515. Forehand, Carder v., i. 704. Forman, Taylor v.. xii. 547. Foniier, Hector v., i. 204. Forrest, Croughton v., xvii. 131. " Wo.-.t v., xxii. 344. Forrester, Ti.iin v., viii. 642. Forse, Davis v., xi. 130. " Sloan v., xi. 126. Forsyth, McDonald v., xiii. 549. Fortune v. City of St. Louis, xxiii. 239 Garnisht, 5. xlii LIST OF CASES. Foster, City of St. Louis v., xxiv. 141. " Davis v.. xv. .39.5. " T. McO'Blenis, xviii. 88. . .Contract, 25, 26 . . Fr and Perj, 2.3 _, . N Trial. 33 . . " V. Nowlin, iv. 18. . ./IrfWn, 177, 178... Evid. 112, 113. ,124, 161, 169... Jvdg, 23 . '. Practice, 313.. Witness, 60. " V. Rurker, xxvi. 494. . . .Appeal, 26. . . . Practice, 187. The State v., ii. 210. " T. Wallace, ii. 231 . .Erid, 45. .Sale, 7. . Secur, 50 , . Witness. 64 " Wash v., iii. 205. EouUce, Cathcart v., xiii. 561. Fowlerv. Watson, iv. 27. .Process, 3. Fiiwman, The State v., iii. 602. Fox, Byrd v., viii. 574. " V. Carlisle, iii. 197. .Depositions, 9. " City of St. Lous v., xv. 71. " Murray v., xi. 555. Frame, Middloton v., xxi. 412, Francis, Laumier v., xxiii. 181. Francisco, Davis v., xi. 572. Franciscus v. Banlc of Missouri, ix. 197. . .see Some V. Martin, ix. 196. " Bank of Missouri v., x. 27 — xv. 303. " v. Bridges, xviii. 20i. .. .Practice, 17. . . . Process, 10. ' V. Martin, ix. 1 96 ... . .Turisdictn, 1 . Frank, Waterman v., xxi. 108. Franklin v. Bank of Missouri, xii. 589 Garnisht, 6. " Evans v., xxvi. 252. " V. Stao-g, xxii. 193 . . ..Tudgmt, 26. Franklin County, McDonald v., ii. 217. Franse v. Owens, xxv. 329. . . .Execdtn, 4, 11, . . . .Judijt, 14. . . .Jus Peace. 45. Frasier, Mannvv., xxvii. 419. " V. TlieState,v.536..CnmLaw,195,345 " V. TlicHtate, vi. \'ib. .Slaves and Sla,35. Frazer v. Shitle, i. 575. . . .Jurisdictn, 22. " v. Yeatman, x. 501 . . . .Boats and Ves, 52 Prapi/ce, 292- Frazier v. Gihson, vii. 271 Bonds, N and Accts, 1 05 Set-af, 3, 35. Fredericks, Tlie State v., xvi. 382. Freeland v. Eldridge, xix. 325 . . . Chancy, 15 Prac Sup Ct, 81. " V. Freeland, xix. 354. . . .Husb and Wife, 100. " V. Mitcliell, viii. 487 . . Contract, 32. " V. Wilson, xviii. 380. . . Chancy, 147, 148. Freeman v. Camden, vii. 298 . . . Assum, 39 . .Pleadg, 61 . . Prac Sup Ct, 19. " v. Frop'i^inn, ix. 763 Husb and Wife, 63. " Mayo v., x. 629. " Page V , xix. 421. " The State v., xxi. 481. Woods v., XV. 488. Freloigh v. The State, viii 606 Crim Law, 266, 397 Laws, 41 . . Lottery, 2-4 Practice, 77, 95. . . Wit- ness, 23, 24. Fremon v. City of Carondclet, xxv. 62 Error, 35. French v. Campbell, xiii. 485. . Chancy, 151. Fresh, Holmes v., ix. 200. Fresh v. Million, ix. 311 , . Chancy, 86, 133. Friar v. Ray, v. 510. .Lien, 11. Fricke, Brown v., i. 440. Friede, Rippeyv., xxvi. 523. Frissell v. Fickes, xxyii. 557 Arb and Ref, 10-13. " T. Haile, xviii. 18. .Atty at Law, 15. . ' Judcimi, 39. " v. Relfe,' ix. 849 . . Mai Pros. 3. " V. Rozier, xix. 448 . .Husb and Wife, 60. Frost V. Pryor, ™. 314. .Prac Sup ft, xvi. 17. Frothingham v. Stacker, xi. 77 . . . Convey, 30, 4:3..Lien, 14. Froust V. Bruton, xv. 619. .Action, 54. .Prac- tice, 54, 56. Fry V. Baxter, x. 302. . Trover, 23, 24, The State v., iv. 120. Frye v. Kimball, xvi. 9. .Admin, 11 . " Whitraer v., x. 348. Fryer, Dougal v., iii. 40. Fugate V. Carter, vi. 267. ..Practice, 105, 106 Practice, 249 . . Venue, 2 . " V. Glasscock, vii. 577, . .Judgt, 97. . . . Pleadg, 36. V. Muir, ix. 351 . .Prac Sup Ct, 74. " The State v., xxvii. 535. Fuhr V. Dean, xxvi. 116. . .For En Det, 15. . . Trespass, 19. . Way, 17, 18. - Fulkerson v. Bollinger, ix. 828. .N Trial, 60. " The State v., x. 681. " V. The State, xiv.49 . . Practice, 291 . Prac Sup Ct, 39 . . Revenue, 26. " V. Steen, iii. 377 . . Bond, 2,5, 26. Fulsome, Groves v., xvi. 543. Fulion, Paul v., xxv. 156. " The State v., xix. 680. Funk V. Dillon, xxi. 294 Trespass, 45 Witness, 105. Funkhouser v. Hantz, xxiii. 271 . .Pub Lands, 162. " V. How, xvii 225. .Pleadg, 125. V, How, xviii. 47 . Prac Sup Ct, 32. " v. How, xxiv. 44. Gaifiisht, 33 42. " V. Langkopf, xxvi 453.... ism- itatns, IR,\&. . Pub Lands, 163. Furguson v. Lewis, xxvii. 24;i . . . For En and Vet, 18. G. Gaither, The State v., i. 501. Gale V. Davis, vii. 544 . . Trespass, 1 1 . " V. Mensing, xx. 461 . . '.Assignmt, 23 Mortg, 25. " V. Peari-on, vi. 253. .Practice, 306. .Prac Sup Ct, 28. Gallagher, Uuter v.,-iv. 364. Gallaher v. Hun:er, v. 507. . Convey, 52. Galloway, Overbeck v., x. 364. Gamache v. Grimm, xxiii. 38 . . Consid, 33. " Grimm v., xxv. 41 . " V. Piquigtiot, xvii. 310 Practice, 211 . . Pub Lands, 5, 64, 87, 88. Gamble, Barry v., viii. 88. " V. City of St. Louis, xii. 617 . . . Chancy. 1-2.. Way, % " Collier v., x, 467. " V, Hamilton, vii, 469. . .Admin, 183. . . Error, 2, .Practice, 312. LIST OF CASES. Gamble, Home Mu. Ins. Co. v., xiv. 407. " f. Johns6n, ix. 597 .. . Chancy, 144, 150, 153, 177, 186, 193.. £wd, 109, 110, 139, 140. . .Fraurlli Convey, 28. . . Practice, 244. . . Vendor ana Pur, 1 " United States v., x. 457. " Waddingham v., iv., 465. Gardiner v. Tiie State, xiv. 97. . . Crim fjnr, 334. Gardner, Page v., xx. 507. " Self v., XV. 480. " The State v., ii. 23. Garesche v. Boyi'e, viii. 228. . .Practice, 261 . . Tiover, 4. " Cooper v., xxi. 151. Garland v. Harrison, xvii. 282. . .Evid, 132. . . Jadgt, 38. " Heisterhagen v., x. 66. " Ottv., vii. 28. " Segond v., xxiii. 547. Garneau v. Herthel, xv. 1 9 1 . . . Slaves and Sla, 38. Gamer, Downing v., i., 751. " V. Hays, iii. 436 .. . Pleadg, 24 . . . Sci fa, 2, 3. " Hudson v., xxii. 423. " Stalcup v., xxvi. 72. " ToUon v., XV. 494. " Welib v., iv. 10. Garaett v. Stacy, xvii. 601 . . .Jus Peace, 32. Garr, Ciiandlers v., viii. 428. Garred v. Macey, x. 161 . . .ArbandEef, 26.. . Tender, 7. Garret v. The State, vi. 1 . . . Crim Law, 381, 394 .. . Witness, 8. Gaixett V. City of St. Louis, xxv. 505. . .Laws, 52. " V. Fergn-ion, ix. 124. , . .Evid, 80. . — Witness, 91. Garrison, Gaty v. xiv, 33. " V. McAllister, x.ii. 579 Boats and Ves, 84. " V. Skvignac, xxv. i1 ....For En and Det, 14. Garth v. Everett, xvi. i90 .. Slaves aad Sla, 13. " Gentry v., x. 226. " v. McCampbell, x. 154. ..Executn, 121. " Posey v., vii. 94. " v. Eobards, xx. 523. .Limitalns, 50. Garvey v. Dobyns, viii. 213 . . .Debt, 1 . . Dind- lordand Ten, 27. Gates v. Clavadetscher, xiv. 125. .Attacht, 47. . .Practice, 189. " Golahar v., xx. 236. " Henry County v., xxvi. 315. " V. Hunter, xiii. 511 . . .Devise and fjcg, 15. .Evid, 70. Uses and Tr 15, 16. " V. Kerby, xiii. 151 .Bonds N and Accts, 96. . Gamisht, 33. " V. Labeaume, xix. \7 . .Assignt, 7,12, 17, 43. .Fraiidit Convey, 24. " V. The State, xiii. 11. . Courts, 6. " The State v., xx. 400. Gathwright v. CaUaway County, x. 663 .... Bond, 10. ..Bridges, 1-3.. . Corpn, 23. Gaty V. Brown, xi. 138. .Mec Lien, 19. " V. Garrison, xiv. 33. .Boats and Ves, 79. " Norcuni v., xix. 65. Gaty, Wells v., viii. 681. ! "■ Welles v., ix. 561. Gaul V. Wenger, xix. 541 . .Depositians, 22. Gauss, Brown v., x 265. Gaw, Hickman v., i. 499. ! Gay, The State v., x. 440. ! Gearhart v Smalhvood, v. 452. .Practice, 113. I Geiger, Owens v., ii. 39 GenSstelle v Waugh, xi. 367. ..Tudrjt, 7. Gentry, Baily v., i. 164. " V. Gavth,y. 226.. Evid, 78. " Gibhons v., xx. 468. " V. McHeynolds, xii. 533 Hu.ib and Wife, 30. " McKeynolds v., xiv. 495. " V. Woodson, X. 224. .Dower, 22. George v. Craig, vi. 648 . . Appeal, 1 5 . " V. Dawson, xviii. 407 .... Guard and Utir, 14. V. Murphy, i. 777. .Fartitn, 20, 21 . . . Pub Lands, 78. '* V. Rook, vii. 149. .Trespass, 38. " V. Williamson, xxvi. 190. . .Fraud, 17 . .Fraudi't Convey, 54. . .Jurisdic- tion, 30. Geyer, Cooper County v., xix. 257. " V. Girard, xxii. 159. . Convey, 79. " Russell v., iv. 384. Gharky, Whitsett v., xvii. 325. Gibbons v. Gentry, xx. 468 .. . Slaves and Sla, 31 . . Uses and Tr, 25. Gibbs, Bailey v., ix. 44. " V. Mann, iv. 55. . Costs, 23. Giboney v. Bedford, xvii. b6..PracSup C(, 79. " Havenscroft v., ii. 1 . Gibson, Crowther v., xix. 365. " Frazier v., vii. 271. " V. Gibson, xxiv. 227. .Evid, 87. " V. Hanna, xii. 162. .Evid, 10. " V. Jjewis, x^vu. 532. .ForcEn and Det, 50. " V. Mozier, ix. 254. .Replev. 32. " Schulenberg v., xv. 281. " Sloan v., iv. 32. " V.Zimmerman, xii. 385 Susb and Wife, 62. Gilbert v. Btyd, xxv. 27. . .Record, 23. . . Uses and Tr, 13. " The State v., xxiv. 380. " Swain v., iii. 347. Gillespie, Atwood v., iv. 423. " V. The State, xii. 497. See McKay v. The State, xii. 492. Gillispie, Cozzens v., iv. 82. Gillett v. Camp, xix. 404. . . .Admin, 118. .. . Husb and Wife, 28 " 1-. Camp, xxiii. 375. .Judyt, 64. " V.Camp, xxvii. 5il. ... .Parent and Child, 10. " V. Wimer, xxiii. 77. . Witness, 12. Gilman v. Hovey, xxvi. 280. ..Judgt, 11, 47. Milburn v., xi. 64. Girard, Geyer v., xxii. 159. Gitt V. Watson, xviii. 274. ...Chancy, 196 Convey, 12. .Pleading, 136. Givens, Gray v., xxvi. 291. Glasby v. Prewitt, xxvi. 121 . .Jurisdiction, 49. . .Practice, 188. Glascock, Barti ,t v., iv. 62. " McMurtry v , xx. 432. xliv LTST OF CASES. Glascock T. Kand, xiv. 550. .See Cases, p. vi. " V. Kohards, xiv. 350. . . .Landlord and Tenant, 46. " Shropsliire v., iv. 536. " V. The State, x. 508. . Crim Law, 78. Glasscock r. Bank of Missou'i, viii. 443.... Bills ExSr " Notes, 62, 63, 76. " Fusate v., vii. 577. " V. Glnsscock, viii. 577. .Seal. 2. " V. Minor, xi. 655../Va«rf, 21. Glasgow, Ashby v., rii. 320. " Citizens' Ins. Co., v., ix. 406. " V. Copelnnd, viii. 268. .Bills Ex and P Notes, 69, 72, SS.Practice, 256. " Ponohoe v., i. 505. " Mis'^onvi Ins. Co. v., viii. 725. " T. Nicholson, xxv. 29 . . . Sale, 5. " r. Fratte, viii. 33R . . . Bills Ex and P Notes. 5«, 61, 66, 73. " V. Eiilgeley, xi. 34. . .Assum, 56. . . . Deposn, 2\...Evid, 75...Landl ami Tev., 53. ."St. Louis Ins. Co. v., viii. 713. f V. Switzer, xii. 395 . . . Bills Ex and P Notes, 48, 96 . . . Practice, 108. Gleim v. St. Bt. Belmont, xi. 112. . .Boats and Ves, 30. Glenn, Brigcs v., vii. 572. Globe Mnmal Ins. Co., Barclay v., xxvi. 490. Gloss, Mat hews v., xxii. 169. Glover Bell v.. i. 573. " V. Duhle, xix. 360. . .Practice, 260. Gobin r. Hudsrena, xv. 400. . .Practice, 196. . . Prac Sup C<, 21. Goddard, Cochrane v., xxvii. 500. Goehel, Nelson v., xvii. 161. Goetz V. Arabs, xxii. 170. . .N Trial, 63. " v. Arabs, xxvii 28. .. 7re.vpass, 31, 32, 52-54. Golahar v. Gates, xx. 236. . .Roads and High- ivai/s, U. Golden v. The State, xiii. 417 Crim Law, 270, 272. Gold cherry, VV.ide v., xvii. 270. Golilstein, St. Bt. Archer v., xiii. 24. Gonsolis V. Doii-houquette, i. 666. . .Uusb and Wife, 98. " V. Dou-hou^uette, 1. 715. .Srror, 22. Gooc.h V. Conner, viii. 391 .. . Contract, 2. Gondall V. Harrison, ii. 153. ..Pleiidcj, 23. Gooile, City of St. I.onis v., xxi. 216. " V. Goode, x.\ii. 518. . . Chancy, 89. " V. Jones, ix. 866. . .Bills Ex and Prom Notes, 32. " Leache v., xix. 501. " The Stiite v., xxiv., 361. Goodfellow V. JVob'e, xxv. 60.... Landl and Ten, 50. " Perpetual Ins. Co. v., ix. 149. " Kamsey v., vii. 594. Goodloe, Green v., vii. 2.5. Goodman v. Simonds, xix. 108.. .Bills Ex and P /Viites, 30, 39. Goodrich, St. Bt. Beai-dstown v., xvi. 153. Gordon v. Dnnciin, iii. 335 Freedom, 21. " Fisher v., viii. 386. " V. Gordon, xiii. 215 N Irial, 5. " l^Guitar v., xvii. 408. " Hughes v., vii. 297. Gordon v. Maupin, x. 352 Fees, 1 . " V. McCurdy., xxvj. 304. . .Attacht, 75. " Eoundtree v., viii. 19. " v. Scott, XV. 249 Appeal, 70. " V. The State, iv. 375. . Crim Law, 50. Tattle v., viii. 152. Gorman v. Pacific K. R., xxvi. 441 Evid, 30. . . ,Laws, 45. . .Eailrds,, 5-8. " V. Sasner, xxii. 137. . . .MecLien, 5. Gott, North Missouri R. K. Co. v., xxv. 540. " Powell v., xiii. 458. Gouin V. The State, viii. 493. . Crim Law, 196. Gould V. Citizens' Ins. Co., xiii. 524. .Ins, 45. Governor v. Byrd, ii. 194 Admin, 30. " Byrd v., ii. 102. " T. Cifiouteau, i. 731, 771 Admin, 46-49. " V. Hays, iii. 434 Admin, 22, 23. " V. M'lVair, i. 302 Sheriff, 12. " Pacific R. R. v., xxiii. 353. " V. Rector, i. 638 Costs, 16. Riddick v., i. 147. " Scott v., i. 686. Gower v. Saltmarsh, xi. 271. .Penalty, \, 2. Goza, Childers v., i. 394. Grace, The State v , xxvi. 87. Graham, Bobb v , iv. 222. " V.Bradbury, vii. 281 Attacht, 32, 56, 67. How v., xxi. 163. " V. O'Fallon, iii. 507. . .Jurisdictn, 24. . Will, 1,30. " V. O'Fallon, iv. 338. . . Will, 32. . Wit- ness, 59, 76 " V. O'Fallon, iv. 601 . . Will, 10, 33 . . . Witriess, 76. " Vaughn v.. xi. 575. Gramp v. Uunnivant, xxiii. 254 . . Pleaig, 118 . .Practice, 332. Grand Lodge v. Knpx, xx 433. .Dam, 5. " " y. KnQX, xxvii 315. i?'ia;(Mr-es, 10. Grant v. Brinegar, vi. 450. . Costs, 21. " V. Brotherton, vii. iiS, ...Attack., 15, 25. " Cornelius v., yiii. 59. " Lenox v., viii. 254 " V. Winn, vii 188. .Assum, 37. Grassmuck v. Atwell, xxiii. 63 . . Appeal, 72, Gratiot, Potter v., i. 368. Graves v. Beard, i. 747. .Assum, 45. " V. Black, i. 221. Laws, 59. Witness, 54. " Letton v., xxvi. 250. " y. Poage, xvii. 91 . . Admm, 180. " V. Priest, i. 214.. PFVtnass, 54. " Stones v., viii. 148. Gray, Burgess v., xv. 220. " Cunningham v., xx, 170. " Fine v., xix. 33. " v. Givens, xxvi. 291 Eject, 55 Laws, 37 . . . Limitatns, 14 Pvb Lands, 191, 192. Odellv., XV. 337. " V. Shaw, xiv. 341 Deed of Trust, 8, 9. " The State v., xxi. 492. " Merrick v., x. 106.. Green, Baldwin v., x. 410. " Bogart v., viii. 115. " Coons v., ix. 197. " v. Goodloe, vii. 25 Practice, 40. " Harness v., xix. 323 — xx. 316. LIST OF GASES. xlv Green. Kirk v., x. 252. " Kring v., X. 195. " V. M'Girk, i. 498 Covenant, 30. " y. Moffott, xxii. 529 Weights and Measures, 1. " Penrose v., i. 774. " T. Spencer, iii. 318. .Hush and Wife,-1--%. " V. The State, xiii. 382 Grim Law, 129, 136,323,364,365,421. " Vest v., iii. 219. " V. Virden, xxii. 506 Admin, 173. " V. Yarnall, vi. 326 Convey, 18. Greene, Blodgett v., xxvii, 525. " V. Chickoring, x. 109 . . .Depositions, 19 Evid, 101. " Evans v., xxi. 170. " Martin v., x. 652. " Talbot v., VI. 458. " Tiioni'! v., vi. 482. Greenhaigh, The State v., xxiv. 373. Greenia v. Gieenia, xiv. 526. . . Miens, 1. Greenlee, Cinnamond v , x. 578 Greer, MuUiken v., v. 489. Gregg V. Macey, x. 385. . Convey, 57. " Mitchell v., iv. 37. Gregory v. Cowgill, xix. 415. Devise and Leg, 7,8. " v. Kvans, xix. 2,61.. . Garaisfe, 13. The State v., xxvii. 231. Grosser, The State v., xix. 247. Gretel, Wunsch v., xxvi. 580. Grevison, St Bt Lebanon v., x. 536. Grider v. Dent, xxii. 490. .Heduc, 4 GrifBn, Hickman v., vi. 37. " v. Samuel, vi. 50 . , . Bonds, N and Accts, 74. .Prac Sup Ct, 73. .Process, 22. Griffith v. Bank Com. Kentucky, iv. 255... Consid, 25. " V. Cotrell, i. 480 Bonds, N and Acts, 13. " V. Deerfelt, xvii. 31 . .Eject, 16. " V. Eby, xii- 511.. Fraud, 5. " Mitchell v., xxii. 515. " v. Schwenderman, xxvii. il2.. Landl and Ten, 'A ., Limitations, 81, 82. " V. Walker, iii. ) 91. . .Dower, 8. Grigg V. Bodrio, ix. 222. . .Evid, 159. . . Wit- ness, 35- Grigg.s, Richards v., xvi. 416.- Grimm, Gamache v., xxiii. 38. " V. Gamache, XXV. W. .Practice, 165. Grimslev, Paulding v., x. 210. Grimsley v. Riley, v. 280 Seal, 1. The State v., xix. 171. " V. White, iii. 45. . . .Ponvey, 58. " V. White, iii. 257 Ponvey, 5S. Grissora V. Allen, X. 303. . Executn, 10. Griswcld, Callahan v., ix. 775. " Hughes v., vi. 245. Groce v. Zumwalt, iv. 567 Mills and Mill- dams, 1. Groom, Hill v., v. 58. " V. Hill, ix. 320 Pub Lands, 6, 32, 33. Gross, Steigers v., vii. 261. Grove, Smith v., xii. 61. " V. The State, x. 232 CrimLaw, 41. Grave? v. Fulsome, xvi. 543 Chancy, 1 64 Frmids and Perj, 40 Tub Lands, 43, 44. Grundy County Court, Tetherow v., ix. 117. Gudgell V. Mead, viii. 53 Appeal, 7 Chancy, 71. Guelherthv. Watson, viii. 663. . . . Practice, 50. Guelbreth, Lawless v., viii. 139. Guenther v. Birkicht, xxii. 439 Par and Child, 9. Guest V. Farley, xix. 147. . . . Uses and Tr, 7. Guion V. Guion, xvi. 48 Admin, 80. Guisse, Glamorgan v., i. 141. Guitar v. Gordon, xvii. 408 ... . Devise and Leg, 17. Gnllett V. Hoy, xv. 399 Bills Ex and P Notes, 8, 43. Gunn V. Head, xxi. 432 Interest, i.... Usury, 8. " V. Todd, xxi. 303... .£OTrf, 153... 5e«- off, 8, 9. Todd v., xxi. 306. GunsoUis, Meegan v., xix. 417. Gurno, City of St. Louis v., xii. 414. " Janis v., iv. 458. " V. Janis, vi. 330 Eject, 39 Pvb Lands, 58, 62, 79. Guthrie, Hall v., x. 621. Gutridge, Cummings v., xvii. 469. Gutzwiller v. Lackman, xxiii. 168 Assignt, 44,45 Evid, 186. Guy, Vauglm v., xvii. 429. Guyol V. Chouteau, xix. 546 . . Pub Lands, 155. Guyott, City of Hannibal v., xviii. 515. " The State v., xxvi. 62. Gwathmey, Stevens v., ix. 628. Gwinn v. liooker, xxiv. 290 Partnshp, 28. H. Haase v. Stevens, xviii. 476. .Practice, 188. Hackney v. Williams, iii. 455. .Attachmt, 10. Haden, Alexander v., ii. 228. " V. Herndon, ix. 854. . .Assum, 54. .Prac- tice, 283. The State v., xv. 447. Hadwen v. Home Mu. Ins. Co., xiii. 473. . . . Pleadg, 122. Hagan, Martin v., viii. 505. " Runkle v., iii. 234. Hagard,, Dorsey v., v. 420. Hager, Jeffries v., xviii. 272. Haile, Prissell v., xviii. 18. " v. Hill, xiii. 612. .Laws, 7.. .Pleadg, 46. . Replev, 35. '' V. Palmer v. 403. .Record, 19 Replev, 18, 19. Haist V. Canal Boat City of Joliet, xxiv. 24 . . Appeal, 72. Halbert v. Halbert, xix. 453.. Dower, 29. " V. Halbert, xxi. 277 .. . Gift, 3 . . .Prac- tice, 143. Haldeman, Baker v., xxiv. 219. Hale, The State v., xv. 606. Haley v. Scott, xviii. 202. .Prac Sup Ct, 93. Hall V. Audrain County Court, xxvii. 329 .. . Appeal, 30. .Mandam, 14. " Cave v., V. 59. •' V. Clark, xxi. 415. .Dam, 6. " V. Guthtie, x. 621 . . Evid, 141. " V. Harrison, xxi. 227 Admin, 75 Jvdgt, 100. xlvi LIST OF CASES. Hall V. Hopkins, xiv. 450. .Payint, 5. " Magwire v., xxvii. 146. " Martin v., xxvi. 386. " McCarty v., xiii. 480. " V. Mills, xi. 215. .Appeal, 84. " V. Shannon, xix. 401 . .Attacht, 39. " Wilburn v., xvi. 426 — xvii. 471. " V. Woodson, xiii. 462. .Interest, 3. .Prac Sup Ct, 41. HalloweU v. Page, xxiv. 590 Dam, 10 Pleadg, 148. . Process, 32. Halsa V. Halsa, viii. 303 Chancy, 184 Consid, 8.. Convey, il ..Frauds and Perj, 2. Halsall V. Meier, xxi. 136. .Becog, 12. Halsed, Price v., iii. 461. Halsted v. Brice, xiii. 171 . . .Evid, 192. . .Jus Peace, 41 . . Trespass, 13. Ham, King v., iv. 275. " Tlie State v., xix. 592. Hambleton, The State v., xxii. 452- Hamilton, Counett v., xvi. 442. " Gamble v., vii. 469. " T.Jeffries, XV. 617 For En and Det, 42. " T. Lewis, xiii. 184: .. Deoise and Leg, 13, 14.. Will, 16. " V. O'Neil, ix. 10. .Dower, 43, 44. " V. Scull, XXV. 165. .Depositions, 23. . Fraud, 18. " The State v., vii. 300— ix. 784. " V. St. Bt. Ironton, xix. 523. ..Boats and Ves, 73, 74. " V. Stewart, v. 266 . . Petitn in Debt, 17. " V. St. Louis County Court, xv. 3. . . Constitution, i. .Laws, 11, 47.. . Revenue, 1, " Tunstall v., viii. 500. Hamiltons v. Moody, xxi. 79. . . Costs, 18. . . Practice, 96. Prac Sup Ct, 38. Hammerle, Clark v., xxvii. 55. Hammond, Bank of Edwardsville v., i. 184. " V. Barnum, xiii. 325. .Mec Lien, 19. Kennedy v., xvi. 341. " Mellon v., xvii. 191. " V. Relf, i. 232 . .Practice, 326. " V. Scott, xii. 8. .Executn, 76 — 78. " St. Bt. Charlotte v., ix. 58. " V. St. Louis Pub. Schools, xviii. 65 . ..Puh Lands, 132-134. " St. L. Pub. Schools, v., xxi. 238. " Wiggins v., i. 121. Hamtramok v. Bank of Edwardsville, ii. 169.. Corpn, 21 . . .Loc Decis, 13. " Rector v., i. 565. Hamuel v. The State, v. 260. . . Crim Law, 51, 434. Hancock v. Heugh, i. 678. . .Limitatns, 54. H^mdy, Mumll v., xvii. 406. Hanger v. Imboden, xii. 85 . . . Contract, 68 . . . Practice, 111. Hanly v. Blanton, i. 49 N Irial, 30 Pleadg, 33. . . Witness,-%1 . " V. Bevies, i. 16. . .Amendmt, 27. " V. Holmes, i. 84. ..Prac Sup Ct, 1. " Pratt v., i. 35. " V. Reed, i. 487 . . .Evid, 161. Hanna, Gibson v., xii. 162. Hannibal Pl'k 1{. Co., Barcus v., xxvi. 102. Hannibal Pl'k R. Co. v. Menefee, xxv. 547.. Corpn, 13. " " " V. Robinson, xxvii. 396. . Appeal, 49 . . . Justice Peace, 15. Han. & St. J. R. R., Lakomau v., xxiv. 505. " " " Lindell v., xxv. 550. " " " V. Morton, XX. 70. . .Loc De- cis, 7. " " " V. Morton, xxvii. 317... Cer- tiorari, 5. .L Decis, 8, 9. Hantz, Fnnkhouser v., xxiii. 271. Harber, Carter v., xviii. 204. Harbert, Nearns v., xxv. 352. Harbin v. Chiles, xx. 314. . .Judgmt, 61. Harbison, Byrne v., i. 225. Hardcastle v. Pisher, xxiv. 70 ... . Assignt, 35, 46, 47. " v. Hickman, xxvi. 475. .Bond, 13. Hardesty, Dorsey v., ix. 157. Hardin, Egyptian Levee Co. v., xxvii. 490. " Town'of Louisiana v., xi. 551. Harding, Talbot v., x. 350. Hardison v. St. Bt. Cumberland Valley, xiii. 226 Appeal, 70 Juris- dicln, 55. Hardman, Tayon v., xxiii. 539. Hardwick, The State v., ii. 226. Hardy, Boyle v., xxi. 62. " Carrol v., xxi. 66. " Cayton v., xxvii. 536. " Reevs v., vii. 348. " V. The State, vii. 607 Crim Law, 332 Practice, 248. Haren, Primm v., xxvii. 205. Hargadine v. Pulte, xxvii. 423 Will, 26. Harker, Sigerson v., xv. 101. Harley v. McAuhfF, xxiv. 85 Appeal, 71 .... Landl and Ten, 54. " V. McAuEff, xxvi. 525 .... Landl and Ten, 57. " V. Stapleton, xxiv, 248. . . 5ecMr, 33. " Smith v., viii. 559. Harlow, Lathrbp v., xxiii. 209. " Lyon v., vii. 345. " V. Sparr, xv. 184 Auctioneers, 3. " The State v., xxi. 446. Harman, Harris v., iii. 450. " The State v., xxvii. 120. Harmon, Adams v., iii. 222. " V. Armstrong, v. 274 Bonds, N and Accts, 56. " Crow v., xxv. 417. Harness v. Green, xix. 323 Judgt, 62. " V. Green, xx. 316 Admin, 98. Harney V. Dutoher, xv. 89 Admin, 185, 186 Uses ana Tr, 23. Harper v. Baker, ix. 115 Appeal, 74,85 Jus Peace, 26, 28. " V. Phoenix Ins. Co., xviii. 109. . Crim Law, 150. .. .Ins 60. " V. Phoenix Ins. Co., xix. 506 Ins 60. V. Pope, ix. 398 Limitatns, 44, 45. " Rankin v., xxiii. 579. Harriet, Emerson v., xi. 413. Harriman v. The State, i. 504. . .Error, 12. . . Process, 21. " Stratton v., xxiv. 324. LIST OF CASES. xlvii Harris, Chouteaii Spring Co. v., xx. 382. . " V. Eiiyart, xiii; 108 Bills Ex and P Notes, 100. " V. Harman, iii. 450. .Bonds, Nand Accts, 47. .Jus Peace, 8. " v. Harris, xxv. 5S7. . Witness, 43. " V. Hu;^hes, xvi. 599. .Appeal, 75. " Javens v., xx. 262. " Maloiie v., vi. 451. " Mcllvaine v., xx. 457. " McLane v., i. 700. " Wood v., xii. 74. " V. Woody, ix. 112... Lib and Slan, 20 . . . Practice, 264, Harrison v. Bank Of Illinois, ix. 160 Prac- tice, 65. " V. Cachelin, xxiii. 117. . Come;/, 49.. Limitatns, 72. .N Trial, 23 " T. Cachelin, xxvii. 26. .Practice, 226. " CofFman v., xxlv. 524. " Dempsoy v., iv. 267. " Garland v., xii. 153. " Goodall v., ii. 153. , " Hall v., xxi., 227. " Lowe T., Tiii. 350. " Major v., xxi. 441. " V. Martin, vii. 286. .Execution, 27. " McDonald v., xii. 447. " V. Page, xvi. 182 Bound and Des, 5. .Pub Lands, 111-113. " Renfro v., X. 411. " V. Renfro, xiii. H6. .Attac/iTnt, 79. " Richardson t., iv. 232. " v.'Rmh, XT. 115. .Appeal, 6. V. The State, ix. 526. .Ferry, 2.. St. Louis, 13. " V. The State, x. 686 . . Amendment, 30. " V. Town, xvii. 237 . . Cluiney, 13, 194. " Williams v., iii. 411. Harrold v. Simonds, ix. 3i3... Convey, 32.. Pub Lands, 72. Harryman v. Robertson, iii. H9 . .Jus Peace, 8, 16. " V. Titus, iii. 302.. Prac Sup Ct, 10 Stray, 1. Harshaw V. Merryman, xviii. 106. .Husb and Wife, 57. Hart, Liggat v., xxiii. 127. " T. Miusouri State Ma. F. and M. Ins. Co., xxi. 91. . Corporation,^ . . .Set-off, 41. " T. Rector, vii. 531. .Execution, 130. " V. Robinett, v. 1 1 Constable, 4, 5 . . . . Practice, no, 284. .Process, 7. " Smith v., i. 273. " T. lipence, v. 17 ..Constable, 4, 5.. Prac- tice, 1 70, 284 . . Process, 7. Hartford F. Ins. Co., Noonan v., xxi. 81. Harttv. Leavenworth, xi. 629. .A^ Trial, 53. " Rector v., viii. 448. " V. Rector, xiii. 497. .Bound and Des, 18. ..Execution, 131. Harvey, Lewis v., xviii. 74. " V. Renfro, vii. 187. .Petition in Debt, 15. " V. Wickham, xxiii. 112 . .Execution, 32, 33, 91 . . Husb and. Wife, 44. Harvy v. Chouteau, xiv. 587'. . Will, 12, 35. HascaU, Davis v., iv. 58. " Merle v., x. 406. Hasse v. Lemp, xxvi. 394. .Practice, 2a7. Hassinger v. Pye, x. 156.. Practice, 296. Hastings T. Myers, xxi, 519. .Admin, 192. Hatfield v. Wallace, vii. 112. .Execution, 36. . tor En and Dei, 3. Hatry v. Shnman, xiii. 547. .Attacht, 61. Havely, The State v., xxi. 498. Haven v. Foley, xviii. 136. . .Payment, 14. . . Securities, 38. " V. Foley, xix. 632. . .Securities, 40. Havener, Valentine v., xx. 133. Hawkins, Phelps v., vi. 197. " V. Ridenhonr, xiii. 125... Admin, 103 Judift, 98. . .Securities, 22. " V. The State, vii. 190... trim Law, 325,36i...Evid, 84, 129. " V. Welch, viii. 490. . . Lsury, 2. Hawley, Levy v., viii. 510. " Marvin v., ix. 378. Hawthorn v. City of St. Louis, xi. 59 . . . Gar- nishment, 5. " The State v., ix. 385. Hay V. Dunky, iii. 588.. . .Freedom, 4. " Myers v., iii. 98. Haycraft, Kribben v., xxvi. 396. Hayden, Alexander v., ii. 211. " Bm-ns v., xxiv. 215. " y. Cornelius, xii. 321 Secur, 43 ... . Witness, 101. " V. Hayden, xxiii. 398. . .Dower, 49. " V. Marmaduke, xix. 403 Chancy, 82 Practice, 18. " Martingly v., i. 439. " V. Sample, x. 215. . .Attacht, 20, 30. . . ' Pleadg, 102. " T. Sloan, iii. 328... Cosis, 6. " V. Stewart, xxvii. 286. .Ejectmt, 23, 53. " V. Stinson, xxiv. 182. . . Gift, 5. " Toler v., xviii. 399. Hayes, Ayres v., xiii. 252. " The State v., xxiv. 358. Haynes, Cawthom v., xxiv., 236. Hays V. Bell, xvi. 496 Practice, 258. " V. Bouthalier, i. 346. . . Attacht, 6, 23, 49. " Davis v., i. 270. Evans v., i. 697— ii. 97— ii. 184. Garner v., iii. 436. " Governor v., iii. 434. " V. Hays, xxvi. 123. . Practice, 317. " Hoover v., v. 125. " Hughes v., iv. 209. " Lcckhart v., i. 271. " Martin v., v. 62. " Pope v., i. 450. " Bailee v., iii. 116. " V. The State, xiii. 246 . . .Dramshops 29, 35. ^ " The State v., xxiii. 287.— xxiv. 369. ". V. St. Bt. Columbus, xxiii. 232. .Boats, and Ves, 35. " V. Thomas, iii. 335 . . Costs, 7. " V. Waller, ii. 222. .Mai Pros, 6 . . . Wit- ness, 7. Hayton v. Hope, iii. 53. Appeal, 52..Tudgt, 68. Head, Caldwell v., xvii. 561. " Eckert v., i. 593. " Gunn v., xxi. 432. " V. Pitzer, i. 548. . Chancery, 59. Heard v. Baber, viii. 142.. Fees, 3. " Campbell v., viii. 519. xlviii LIST OF CASES. Hearst,- The State v., xii 365. Heath V. Ashley, xv. 393. .Infants, 16, 17. " V. Daggett, xxi. 69 . .Esieadion, 129. " V. Powers, ix. 165. .. .Bonds N and Accts, 44. " Powers v., xx. 319. Heatherly, The State v., iv. 478. Heckwolf, Berghoffv., xxvi. 511. Hector v. The State, ii. 166 Crim Law, 301, 366, 369. Hedelston y. Kelcl, iii. 94. . Husb and Wife, 69. Heinruhs, Boernstcin v., Xxiv. 26, 27. Heinritz, Andrae v., xix. 310. Heisterhagen v. Garland, x. 66 Practice, 42, 117. Heitcamp, I^jlweg v., xx. 569. Helm V. Bassett, ix. 51 . . . .Error, 1 J. " The State v., vi. 263. " T. Wilson, iv. 41 Contract, 52-54. " V. Wilson, iv. 481 N Trial, 31. Helmes v. Stewart, xxvi. 529 For En and Del, 16. Helweg v. Heitcamp,xx. 569.. Deedqf Trust,l4: Hembree v. Caihpbell, viii. 572. . . .Pracfice,4. Heradon, Haden v., ix. 854. Hemmaker v. The State, xii. 453 . . .Laws, 40. Hemphill, Hunter v., vi. 106. Hempler v. Schneider, xvii. 258 Contract, 50 . . .Jurisdictn, 2. Hempstead, City of St. Louis v., iv. 242. " V. Darby, ii. 25 . . .Appeal, 51. " V.Dodge, i. 493 Attadit, 82. " V. Hempstead, yxvii. 187 . . S6cur, 28. " Hunter v., i. 67. " Labeaume v., i. 772. " Leitensdorfer v., xviii. 269. " Small v., vii. 373. " V. Stone, ii. 65. . .Assum, 35. ..Prac Smp Ct, 18 Record, 36. Henderson, Brown v., i. 134. " V.Henderson, xiii. 151 Darii, 23 . .Evid, 73. .Fraudlt Convey, 51. " V. Henderson, xxi. 379 . . Admin, 76. . Bills Ex and P Nates, 103 ... Practice, 182. Oldham v., iv. 295. " Skinner v., x. 205. " V. Skinner, xiii. 99.. Assum, 16, 25. " Tne State v., xv. 486. Hendrirk, Folden v., xxv. 411. Hendricks V. McLean, xviii. 32 Infants, 18, 19. Henke, The State v., xix. 225. Henley v. Arbuckle, xiii. 209. .Prqxlice, 277. Henry, Claik v., ix. 336. " Erwin v., v. 469.^ " V. Forbes, vii. 455. .N Trial, 51. " V. Lane, ii. 201 . .Jus Peace, 36. " V. The State, ix. "69... Admin, 15, 157, 158. .Interest, 15. " The State v., ii. 218. Heniy County v. Gaies, xxvi. 315. .Partnsjip, 1-9, 29. Henshaw v. Liberty Ins. Co., ix. 33S... De- mand, 15. .Pieadg, 69. Hensleyv. Baker, x. 157 Execution, 102, 103, 107. „ V. Dodge, vii. 479 Admin, 9. . . . Husband Wife, 22. Hensley V. Peck, xiii. 587 PratHici, 70. " Trimble v., X. 309. Hereford, The S ate v., xiii. 3. Heringhi, Menkens, v., xvii. 297. Hernandez, Hunt v., xvi. 170. Heriidou v. Herndon, xxvii. 421.. .Dowe'r, 17. Herrin, Speed v., iv. 356. Herring, Davis v., vi. 21 . Herrington v. Herrington, xxvii. 560.. Chaiiq/, 53. . .Execution, 47. Herron v. Hornback, xxiv. 492 . . Trespass, 47. Herryford, The State v., xix. 377. Herthel, Garheau v., xv. 191. Hesse v. Kimm, xiv. 395 . . Costs,- 29. " V. Missouri State Mu. F. & M. Iiig. Co., xxi. 93. .Practice, 73. Heuer V. Butko*ski, xviii. 216 Deed of Trust i 10. Heugh, Hancock v., i. 678. Hewes v. Musick, xiii. 395 . . Chancery, 1 50. Hewitt, Chouteati v., x. 131. Heylman, Webster v., xi. 428. Hibler v. Servoss, vi. 24. .Pieadg, 89, 90. Hickam v. HollingSworth, xvii. 475 . .Secur,l3. Hickerson v. Benson, viii. 8. . . Gaming, 3, 7, 8. " V. Benson, viii. II . . 6aming,3, 7, 8. Hiekey v. Eyan, xv. 62. .Fravd, 7. .Practice, 249. Hickman v. Bames> i. 156. . .Amendmt, 26. , . Process, 16. " V. Byrd, i. 495..Prarf!ee, 272. " V. Gaw, i. 499. .Eject, 11. ' V. Griffin, vi. 37. . .Jui; Peace, 3?. . . Afal Pros, 2, 7 . .Practice, 251 . . Process, 12. " Hardcastle v., xxvi. 475. " V. Kunkle, xxvii. 401 . . . .Evid, 161. Partnership, 17 Hicks V. Chouteau, xii. 341 Admin, 16 Practice, 134. " V. Merry, iv. 355. .For En and Det,31. " V. Perry, vii. 346. .Execution., 84. " The State v., xxvii. 588. Higbee, Bower v., ix. 2.'i6. " V. Bowers, ix. 350 ! .Appeal, 9. Higd'on V. Ctonway, xii. 295. .Executn, 127. Higgins, Brant v., x. 728. " V. Breen, ix. 493 . . Dower, 2..N Trial, 3. " V. Delliriger, xxii. 397. .Agency, 22. " Delingev v., xxvi. 180. " V. Kansdall, xiii. 205. . Courts, 7. Hight, Susan v., i. 118. Hilderbrand v. The State, v. 548. . Crim Law, 231. " Withington v., i. 280. Hill, Brady v., i. 315. " V. Bufbrd, ix. 859.. Admin, 62. " Chouteau v., ii. 177. " V. Ciiy of St. Louis, xx. 584. .Judgt, 83. " V. Deaver, vii. 57. .N Trial, 19. " V. Fiernan, iv. 3\6... Judgt, 4. " V. Groom, v. 58. .Practice, 316. " Groom v., ix. 320. " Haile v., xiii. 612. " Holmes v., xix. 159. " Labeaume v., i. 42. " Major v., xiii. 247. " Marr v., x. 320. " v. Maupin, iii. 323.. Hush and Wife, 7. LIST OF CASES. xlix Hill V. McPherson, xv. 204. . . .Bonds N and Accts, 75. " Page v., xi 149. " Parsons v., viii. 13.^. " V. Piiul, viii. 479. . Convey, ^0. .Lien, 14. " liiney v., xiv. 500. " Scott v., iii 88. " Shenvood v., xxv. 391. " Warne v., vii. 40. "v. WiUiins, iv. 86. . .Error, U..N Trial, 19,20,24. " V. Wright, iii. 243 . . Officer, 1 . .Record, 24. " V. Young, iii. 337 . . Jtppml, 13 . . Certiorari, 3.. Practice, 12. Hilton, The State v., xxvi, 199. Himes v. McKinney, iii. 382 Bonds, N and Accts, 92 . . . Practice, 206 . . . Trover, 21. Hinch V. The State, ii. 158. . . Crim Law, 153, 154. nines, Papin v., xxiii. 274. Hinkle, Wooton v., xx. 290. Hinkson, The State v., yii. 353. llinson V. The State, vii. 244. . Crim Law, 4. llinton. Bates v., iv. 78. " V. Law, X. 701 Boats and Ves, 53. Hisarick v. McPherson, xx. 310 Evid, 183. Hite V. Hanton, xx. 286 Pleadg, 61 . " V. Lenliart, vii. 22 . . Ecid, 2i..N Trial',*! " T. Thompson, xviii. 461 Partitn, 14. Hoasiland, Bull v., xv. 360. Hobbs V. The State, ix. 845 . . . Crim Law, 34, 35, B4. " Tatt v., xvii. 486. Hobein v. Drewell, xx. 450 Executn, 71. " V. Murpliy, XX. 447. . .feecuin, 71, 72. Hockaday v. Sallee, xxvi. 219 Altacht, 40 . . . .Executn, 33. Hockensraith v. Slushor, xxvi. 237. . Wi/l, 25- Hofulman v. Valentine, xxvi. 393 Prac- tice, 237. Hoff, Middleton v , xv. 415. Hoflfmau v. Ci y uf St. Louis, xv. 651 St. Louis, 20. " V. Richl, xxvii. 551. . .Boundaru and JJes, 16. " Tlio State v., xviii. 329. Hoffstetter v. Blattner, viii. 276 For En and Uii, 8, 10. Hogan, Kelly v., xvi. 215. " Manning v., xxvi. 570. " V. Page, xxii 55 Bo'md and Des, 12 Pub Lands, 116. " v. Welcker, xiv. 177 Admin, 63 Convey, 69. Hogel v. Liiidell, x. 483 Evid, 79, 74 Moi-tff, 11... Practice, 232. Hogg V. Breckenridge, xii. 369 . . . Witness, 94. Holnrook, Clarr v., i. 240. Hulden v. Mct'aul, ::xi. 215. . .Partnship, 48. UoU.md, Binis v., iii. 47. V. Hanton, xv. 475. . . Bil's Ex and P Notes, 92 . . . /'raitice, 26. Kemp v., X. 255. Linn Coiinry v., xii. 127. V. Hecfl, xi. 605 . . . For En and Det, 4. Kcroggin v., xvi. 419. V. St. Bt. li. U. VViiislow, xxv. 57... Boats and Vcs, 71. G Holley, Johnson v., xxvii. 594. Holliday, Clark v , ix. 702. * " V. Cooper, iii. 286. . .Process, 11. " V. Doyon, xv. 407 . . For En Sf Det, 12. " v. IjCwis, XV. 403. . .Replev, 12. HoUlngsworth, Uickam v., xvii. 475. Hollinsworth v. Matthews, xix. 406 . . , Costs, 4. Holloman, Holmes v , xii. 535. HoJoway v. St. Bt. Western Belle, xi. 147. . Jurisdiction, 54. Holly, Doan v., xxv. 357--xxvi. 1 86--xxvii. 256. Holmes v. j\ll, i. 419. . . Evid, 161. Boyd v., ix. 711. " V. CaiT, i. 56 . . . .Judqt, 2. Dryiien v., ix. 134. " T. Pre.-.h, ix. ^OU. . . dannj, 12, 145. . Ahrtcjaje, 9. " Hanly'v., i. 84. " v. Hill, xix. 159 .. . Contrart, 39. V. llonoman, xii. 535. . . Wil, 4, 28. " V. McGee, xxvii. 597 .. . Partition, 13. Holt, The State v., xxvii. 340. " V. Varner, v. 386. . Ajipiul, 45. Holtzclaw V, Duff, xxvii. :i'J2. .Bailment, 3. . Com Car, 15. Homans, St. John v., viii. 382. Home Mu. Ins. Co. v. Bauman, xiv. 74 Chancy, 175. " " " V. GainWu, xiv. 407. ... Garntslit, 34. " " " Hailwuii v., xiii. 473. " " " Loehner v., xvii. 247 — xix. 628. Homer, TValsh v., x. 6. Homes, The State v., xvii. 379. Honey v. Honey, xviii. 468. .N TnaJ, xii. 45. Homiick v. Plicenix Ins Co, xxii. 82.. Ins, 15. Hood, Campbell v., vi. 211. " V. Creath, i. 5S-i..Bail, 1. " Cupples v., i. 4j7. " Dixon v., vii. 414. " V. Mathi.'f, xxi. 303. ..Lnndl and Ten, 25. . .Practice, 157. . .Recoj, 24 Wit- ness, 30, 32. " Sibly v., iii.- 290. Hook, Ceire v., vi 474. '■ V. Smith, vi. 225 . . Mills and MiUilams, 2, " V. Turner, xxii. 333. .Frauds and Pi.rJ, 45. Hale, 23. Hooks, Durretts v., viii. 374. Hooper v. Hooper, xi.K. 353 . . TTis'i and Wife, 102, 1113, 105, 106, 124. " V. Pritchard, vii. i92... Bills Ex and P Motes, 17. Hoover v. Hays, v. 125. .Petition in Debt, 18. Hope, Chouteau v., vii. 428. " Hayton v., iii. 53. Hopkins, Cartmill v., ii. 220. " Hall v., xiv. 4.)0. " Southworih v., xi. 331. " Srrong v., i. 530. Hopper, The State v., xxvii. 599. Hoppie, Jone.s v., iv. 173. Hore V. St. Bt. Belle of Attakapas, xi. 107. . . Boats and Ve.i, 102. Horine v. lloiine, xi. 649 .. . G-iard and Cur, 3 . .Infants, 2.. W.tness, 66. Homhack, Hen en v., xxlv. 492. Hornbeak, The State v., xv. 478. LIST OF CASES. Hombuckle, Day v., viii. 37. Homo, Christy v., xxiv. 242. Horner, Wesson v., xxv. 81. .Hornsby, Sitjerson v.,:xiv. 71 — ^xxiii., 268 . Hornsey V. Casey, xxi. 545. .Dower, il. " V. Casey, xxiii. 371 . .Dower, 48. Horr V, Knigliton, ix. 179. .Error, 1. Hortiz, Milburn v., xxiii. 532. HqucIc V. Gamplin, xxv. 378 Hush and Wife, 38. J9oiigh,i Collins v., xxvi. 149. Hougtitaling v. BaU,xix. Si. Evid, li. .Frauds and Perj, 16. .Practice, 127, 262. " V. Ball, XX. 563 Frauds and Perj 18. House, Huntington v., xxii. 365. " V. Marshall, xviii. 368. .Damages, 3. Houser, The State v., xxvi. 431. Houston, The State v.,. xix. 211. H(?ux, V. IJussell, X. 24^6.. Assi^mpsit,. 20. " V. Seat, xxvi. 178. .Inclosares,9, 4. Hovey, Oilman v., xxvi. 280. " V. Pitcher, xiii. 1%). .. Contract, 4^.. Prac- tice, 141. " riteher v., xvi. 436. How.'Funlthouser v., xvii. 225— .xviii.. 47 — xxiv. 44. " V. Graham, xxi. 163. . Ohanceryi 88. " Missouri Institute v., xxvii. 211. Howard^ Bux'k. v., xiii. 241. " King v., xxvii. 21. " V. Hewaom, v. 523 Evid, 118. " Ober v., xi. 425. " Vapin v., vii., 34. " V. The State, vili. 361 . .Rsuerfue,- 22. Howard Circuit Court, Jiumgardner v., iv. 50. " '• " Ford v., ii. 225-iii. 309. " " " lieed v., vi. 44. Howe, Lee v., xxvii. 521. " v. The State, ix. 682 Hab Cor, 3. " V. Waysman, xii. 169 Fraudlt Convey, ' 8, 37. Howel V. Marcli, i. 182. .Bail, 5. .Sci fa, 8, 9. " V. March, i. 193 Sci Fa, 1 0. Howe'.l March v.^ i. 138. " V. Pitman, V. 246 Error, 9. " The State v., xi. 613. Hoy, GuUett v., xv. 399. Uoyle, Kyle v , vi. 526. Hoyt V. Heed, xvi. 294 Judgt: 94. .Pleada. 72, 73. ' Hubbell V. Weston, xviii. eoi. .. Practice, 189. Hubble V. Patterson, i. 392. . . .Practice, 145. Hubert, St. Bt. Globe v.,. xiii. 577. Huck, Coffinan v., xix. 435— xxiv. 496. Hudelmoyer v. Hughes, xiii. 87. . .Set-qf iiO. Hudgens, Gobin v., xv. 400. " Pollocli. v., xii. 67. Hudion V. Garner xxii. 423 Lib andSlan 10, 24, 25. " Murtinsdale v., xxv. 422. Hudspeth, Sco-rgin v., iii. 123. Huesman, Tackett v., xi c. 525. Huff V. Knapp, xvii. 414 Judgt, 13. Huffjker, Clark v., xxvi. 264. Hughes, Couch v., ix. 768. " V. Ellison, V. 110. . . .Practice, 257, 311. Hughes V. Ellison, v. 463. . .Assigpi,: 6, 18. . . Partnship, 20. " v. Fitzpatrick.i xviii. 254. . tPrac Sup Ct, 80. " v. Gordon, vii. 297 . . .Secur, 17. " V. Griswold, vi.' 245 . . . Juriadictn, *3. " Harris v., xvi. 599. " V.Hays, iv. 209 Appeal, 57 Evid, 62. '• Hudelmeyer v., siii. 87. " V. Hughes, viii. 38 . . . Cos*s, !24. " V. McAlister, xv. 296. . .Bills Ex 'and P Notes, 22. " V. Overton, vi. 60. . .Fraud, 14. Pacific K. li. v., xxii. 291. " Skinner y., xiii. 440. " The State v., xxiv. 147. " Tevis v., X. 380. " V. Tong, i..389. . . Itfortgage, 1. " V. Woosley, xv. 492. . .Acct, 2. Hull, Bank of Missouri v., vii. 273. " V. Uowdall, XX. 359. . .Judgment, 10. " V. Lyon, xxvii. 570 Evidence 176 Mortgai/e, 50, 51. " McCune v., XX. 596. .xxiv. 570. Hulse, McDonald v., xvi. 503. Hvunbert v. Kckcrt, vii. 259. . .New Triei,,\9. Hume,' Stephens v., xxv. 349. Humphreys, Clark v., xxv. 99. " V. Magee, xiii. 435. . .Gaming, 5, 9. Humpliries v. The State, v. 203. . . GrmijUn>> 166. Hunt, Charleson v., xxvii. 34. " Ferris v., xviii. 480. . .xx. 464. " V. Hernandez, xvi 170.. .Appeid, 72. " V. Johnston, xxiii. 432. .. Consid, U. " V. Johnston, xxiv. 509. Conir-act,-S. " King v., xiii. 97. " Knox v., xviii. 174, 243. " Lee v., vi. 163. McNair v., v. 300. " V. Mullanphy, i. 508. .Fixture, 1*4. " Schlatter v., i. 651. " v. Simonds, xix. 583 . .Action, 7. " Weston v., xix. 505. Hunter, Allison v., ix. 741. " Fields v., viii. 128. " Gallaher v., v. 507. " Gates v., xiii. 511. " V. Hemphill, vi. 106. .E^'ectiaent, 7,-30. . Public Laruis, 46, 47, ,50, 51, 56. " V.Hempstead, i, 67 . . BfUs Ex -.and P Notes, 21, 23, 52, 91. McCabe v., vii. 355. " Moseley v., xv. 322. " Palmer v., viii. 512. " Phillips v., xxii. 485. " V. Price, i. 53 . . Bills Ex ^ P Notes, 23 . " V. Eeinhard, xiii. 23 . .Judgment, 13, 14. " The State v., v. 360 — xv. 490. " Terrell v., xxi. 436'. " Vanzant v., i. 71. Huntington v. House, xxii. 365. .Pleadg, 134. " Jones v., ix. 247. Hunton, Bums v., xxiv. 337-339. " Hitev., XX. 286. " Holland v., xv., 475. " McNeelcy v. xxiv., 281, LIST OP CASES. Hnntsmim v. Eutherford, xiii. 465 : . Praetics; 211. Huntsucker v. Clark, xii. 333 Estop, 2i. . Public Lands, 30. Hnrst V.Robinson, xiii. 82 ...Evidence, 120 Praclice, 211. ITart, The State v., vii. 321. Hurtz, Craft, v., xi. 109. Hussmaii, Biddle v., xxiii. 597, 602. Huston V. Becknell, iv 39 Evidence, 61 , 68 Hractice, 1 60 Record, 28. " Ferguson v., vi. 407. " Johnson v., xvii. 58. " V. Orr; 1. 582 .. .. Certiorari, 2. " Wilson v., xiii. 146. Hntchins v. The State, viii. 288 Criminal Law, 398. Ilutchinson v. Western Ins. Co., xxi. 97 . . . Ins, 18. Hutchison V. Patrick, iii. 65... .Judgment, 50 Pleading. 54, 78. " Rector v., vii. 522. Hnter v. Gallagher, iv. 364 Chmcery, 169. Huth V. City of Carondelet, xxvi. 466 . . Land- lord and Tenant, 14. Huting, The State v., xxi. 464. Hutson, Cato v., vii. 142. ." The State v., XV. 512. Hyde, Bartlett v., iii. 490. " V. Curling, X. 359. . . .Amendment, 5. " Culling v., X. 374. I. leo. The State v., xxi. 459. lUingworth v. Miltenlierger;xi. 80. .Execution, lb. .Land ord and Tenant, \2 ■ . Mechanics' Lien; 30. Imboden, Davis v., x. 340. " Hanger v., xii. 85. Ingle, Young v., xiv. 426. Ingram, Apperson v., xii. 59. " v. Ashmorc, xii. 574.. .Assumpsit, 10. " V. Matthien, iii. 209. .Sale, 28. " V. McComlis, xvii. bf>» .. Sheriff , 17. " V. ThK State, vii. 293. . Crim' Law, 60. . Practice, 310. " V. Tompkins, xvi. 399. . CAanry, 41, 167. Inhabitants- of Carondelet, Barada v., viii. 644 — xvi. 3i3. " " Benoistv., viii. 250. " " V. Dent, xviii. 284. . Pub Lands, 154. Inhabitants of Fayette, Sellick v., iii. 99. Inhabitants of Palmyra. v. Morton, xxv. 595. . Evidence, 16... Laws, 43 . . . LoaaJ, Decisions, 2. Inhabitants of Round Prairie Township, Cal- laway County Court v., x. 679. Inlow, Pearson v., xx. 322. Irvin V. Mimry, i. 194. . Bonds N and Accts, 45. Irving V. Irving, V. 28 . . Administration, 57. Irwin V. Milburn, x. 456. .Fees, I. " V. Tanner, i. 210. .Practice, 47. " Tanner v., i. 65. " V Wells, i. 9: .Fraud, 11.. Bfplevin, 16 Isaac, Smith v., xii. 106. Isbell V. The State, xiii. 86 . Dramshonsi 29, 35. Ish'V. Chilton, xxvi. 256. .Forcible Entrf/i and Detainer, 27, 33, 34. Isler V. Egger, xvii. 332. See Morrison v. Edijar, xvi. 4U. Ivory V. Delore, xxvi. 50b.. Error; 26. .PSrit-' tion, 19. Ivy V. Barnhartt, x. 151 . . Trespass, 17. J. Jaccard v. Shands, xxvii. 440..Co»jKfo-o«n, 39. Jackman v. Bentley, x. 293'. . Constable, 3, 6. Jackson, Blaikl'urn v., xxvi. 308. " Citv of St. Louis v., xxv. 37. " V. Eddy, xii. 209. .Ijmdl. and Ten, 42'. " V. Jackson, iv. 210. .Jurisdiction, 24. . . Will, 31. " Scott v., ii. 104, " The State v., xvii. 544. _ " Tcmpleton v., xiii. 78. Wilson v., X- 329. Jacob V. McLean, xxiv. 40. .New Trial, 37. Jacobs V. Mcllonald, viii. 565.. Bonds, Notes and Accts, 49, 54, 55 . . Practice, 229. " McDonald v., x. 160. Jacoby, Wagner v., xxvi. 530, 539; James v. Cliristy, xviii. 162. .Avtion, 48. " V. Dixouj XX. 79. . Chonrery, 92. " V. Dixon, xxi. 538 — Admin, 15,123,172. " V. Robinson, i. 595 . . .Appeal, 43 . . Bands Notes and Accis, 5. " V. Snelsan, iii. 393. . Trover, 9. " V. St. Pawnee, xix. 511 .Boats andVes, 1. Jamison, Blanton v., iii. 52. " Bryan v., vii. 106. " V. Smith, iv. 202.. Ejectment, 24. The State v;, xxiii. 330. " Tabor v., v. 494. " V. Yates, vii. 571 . . .Appeal, 63. Jane v. The State, iii. 61 . . Crim Law, 1 83, 200. Janis V. Gumo, iv. 458 . . . Ejectment, 6 . " Gurno v., vi. 330. Januey v. Bank of Mo., xii. 583 . . Gamisht, 6. " Miller v., xv. 265. January v. Todd, i. 567 ... . Bills Ex and P Notes, 79. Jarbee v. St. Bi. Daniel Hillmany xix. 141 . . . Pleadg,6\. .farrell v. Farris, vi. 159. . . Covenant, 8-10. Jarvis V. Russick) xii. &3... Admin, 139. J.ivens V. Han-is, xx. 262. . .Practice, 178. Jcffi.TS V. Oliver, v. 4SS.. Bonds, N^ Accts, 83. JeflFurson City v. Courtmire, ix. 683 ... . Local Decisions, 1 . . . St. Louis, 32. Jeffrie v. Eohideaux, iii. 33. . .Freedom, 10. . . Judgment, 73. Jeffries V. Hager, xviii. 272. .Bonds, Notes and' Accounts, 22. " Hamilton v., xv., 617. " Jones v., xvii. 577. " V. McLean, xii. 538 . . Bond, 21 . . Prac- tice, 66. " Sapington v., xv., 628. " Shaffuer v., xviii. 512. Jenkins, St. Bt. Osprey v., ix. 635. Jennings v. Kavanaugh, v. 26. ..Master and Slave, 7. " V. The State, ix. 852. . Crim Law, 117. " The State v., xviii. 435. Jeter, Taylor v., xxiii. 244. Jewell, Prevritt v., ix,, 723. ^ " Raymond v., ix. 20. lii LIST OF CASES. Jowott V. Weaver, x. 234 ...Artion, 47. Jim V. The Srate, iii. 147 Crim Law, 265. Jinninge, Dooley y., vi. 61. Joe, The Stiite v., xix. 223. Joeckel v. Easton, xi. 118 Estop, 9, 20. Jo'in, OffatD v., viii. 120. Johnson, Armstroni v., xxvii. 420. " Barry v., iii. 372. " V. Ba kiier, iv. 624 Limitatns, 7. " Buckner v., iv. 100. " Biitlcr v., ii. 7. " Ciirman v., xx. 108. " V. Clark Co. Court, xx. 529. .Error, 23. " Ciiok v., iii. 239. " V. Dicken, xxv. 580 Libeland Slan- •ler, II, 16,47. " Dtidson v., vi. 599. " Gim'le v., ix. 597. ■• V. Kolley, xxvii. 594 Attachment, 84, 85. " V. Hn -ton, xvii. 58 ... , Evidence, 47. " V. Johnson, xxiii. 561 .. . .D-. 509. " V. Mason, xxvii. 511.. .Bills of Ex and P Note.'!, 88.. Practice, 158. " V. The State, vii. 183. . Crim Law, 60. Joiner, Tlie Stnto v., >.\. 58. JoUiffe V. Collins xxi. .338. ..Consid, 22.. De- positions, n..Frn'id, 22.. Patent, 1 . . Sei-off, 42 . . Warranty, 6. Jones, AspiiiiiU v., xvii. 209. " V. Brinker, xx. 81,. Admin, 164, 165. . . Cliancen/, 116. . " V. Bii,sc(ie, xxiv 498. Fraudlt Convey, 14. " V. Covington, xxii. 163 Fraudulent Cunvet/ance, 12. " v. Cox, vii.' 173. ..Petition in Debt, 9. . . Pleading, 61. Jonea v. Davis, iv. 28 . . Recognizance, 9. " Drake v., xxvii. 428. " GoOile v., ix. 866. " V. Uoppie, ix. 173. .Judgment, 1, 44. " V. Huntington, ix. 247. . Chancery, 8. " V. Jetfnes, xvii. 577.. Evid, 38. " Johnson v., xvi. 494. " Kinnear v., xxiv. 83. " V. Luck, vii. 551 ... Convey, 29 Judg- ment, 43. .Lien, 13. " V. Miller, xii. 408. . Consideration, 10. " V. Paul, ix. 290. . Chancery, 120. Phillips v., XX. 67. " V. Helfe, iii. 388 .. Process, 25. " V. Helfe, V. 542. . Costs, 9. " V. Relfe, X. 623 . . Trover, 5. Relfe v., iv. 89. " Eichardspn v., xvi. 177. " V. Shaver, vi. 642 . . see Omitted Cases, p. vi. " V. Snedecor, iii. 390. . . .Admin, 68 Error, 50. " V. Ptanton, xi. 433. . Chancery, 94. ' , " V. The State, vii. 81 . . Constable, 9; " V. The Stiite, xiv. 409 see Roberts v. The State, xiv. 138. " The State v., xvi. 388-^xx. 58. " v. St. Bt. Morrisett, xxi. 142. .Boats and ■ Vtssels, 70. " Sybert v.. xix. 86. " V. Talbot, iv. 279.. Insolvents, 2, ^. .Prac- tice, 251 . " V. Talbot, ix. 120. . . Chancery, 47, 48.. . Record, SO. " Talbot v., V. 217. " Wade v., xx 75. " V. Waters, xvii. 587. .Devise and Leg 29. Jordan, The .state v., xix. 212. " Wagemann v., xix. 503. Journey v. The State, i. 428. .Diamshops, 10. Joy v. Cooley, xix. 645. .Pleading, 151. Joyal V. Kippey, xix. 660. . I 'vb Lands, 80,95. Joyce V. Moore, x. 271 . .Jurisdiction, 52. Jiidd, Patterson v., xxvii. 563. Judge, Dixon v., iv. 286. Judge of Court Corn. Pleas, Prattev., xii. 194. Judy, Meechiim v., iv. 361 . Julia V. MeKinney, iii. 270. .Freedom, 6. Julian. V. Lacey, xiv. 434. .Forcible Entry and Detainer, 11. Jurgensen, Brueggeman v., xxiv. 87. Justice, Saudford v., ix. 855. K Kanada v. North, xiv., 615. ..Fraud, 16. Kankey, Page v., vi. 433. Kavanaugh, Jennings v.. v. 26. Kayser v. Trustees of Bremen, xvi. 88. ..Laws 55. . . Towns, 1. Kean v. Newell, i. 754. . .Depositions, 8. .Exe- cution, 93, 94. " V. Ncvrell, ii. 9. . .Evidence, 135. Kearney v. Woodson, iv. 114. . .Bonds, Nand Accts,94..Pleadg, 14, 15. . Practice, 290. Keating v. Bradford, xxv. 86. ..Eiror, 11. Keatty v. McLaugherty, iv. 221 . . Covenant, 21. Keemle v. Sass, xii. 499 . . Libel and Slan, 6. Keenan, Smith v., xiv. 529. LIST OF CASES. liii Keeton v. Audsley, xix., 362. . . Trooer, 10. " v. Keeton, xx. 530 Admin, 125 Chanct/,eS. .i/m!7a xxvii. 122. L. Labaddie, Evans v., x. 425. Labafgey Chauvin v., i. 556. iaibeamHie v. Dodief, i. 618. . Prartice, 256. " (iates v., xix. 17. " V. Hempstead, i. 112.. Admin, 100. V. Hill, i. 42 . . AsSum, 26 . . Contract, 52, 5i.. Covenant, 11. " V. riiibeanme, i. 487. . .Evid, 161. " Newman v., ix. 29. " V. Poictlington, xxi. 35 . Warranty, 5 " v. Sweeney,- xvii. 153 . . . Assignntt, 38. . Contribution, 2 . . Secilr, 30, " V. Pweeney, xxi. 166. .Secur, 32. " Tapley v., i. 550. " Taylor v., xiv. 572 — xvii. 338. " Tison v.,ociV. 198. " v. WoolfolkiXviii. 514. Trespass, 44 Laberge v. ChanVin, ii 179. . Chancery, 150. . Mrrrtg., 22 . . Prac Sup ' Court, 88. " V. MeCaiisland, iii. 585 Admin, 69, 70. Lacey, Julian v., xiv. 434. Lackey v. Laije, vii. 220. .Nm) Trial., 51. " v. Schreiber, xvii. 146: . .Evidence 180. " v. Sfeibert, xxiii. 85 . . Attachment, 48, 51, 81 . ..Turisdiction, 67. Laofclaild v. DougheMyi xv. 260. . Cir Atly, 3; " North Missofftri R. R. Co. v., xxv. 515. LacMand'v: Pritchett, xii. 484. .JudgnisntfG6, 67. .Pleading:, 74: " The State v.-, xii.. 278. Laekman, Gutzwiller v., xxiii. 168. Laclede County, Uuval v., xxi. 396. Lecompte v. Seargont, vii. 351. .Setnyff, 2S.' Lacy, Kouton v., xvii. 399. " v. Williams, xxvii. 280 .. . Appeal, 25 Guard and Cur, .1; Ladd, The State v., xv. 430. Ladue v. Spalding,, xvii. 159. .Appeai, 20... Jurisiiction, 65 ; . . Mandamus, 1 7. Laf:iyette County, Vivion v., xiii. 453. Lafiin, The State v.,. x; 442j Liften, Murray v., xv. 621. LaGrange V. Chouteau, ii. 19. .Freedom, 3, 6. Slaves and Sla, 5. Laik, Peterson v., xxiv. 541. Lajoye v. Primtn, iii. 529 ;. . Estoppel, 5 . . Evi- dence, 6 . . . Limitations^ 85, 86 ... . Public Lands, 57, 123. Lakenan v: Han. & St; Joseph R. R. Co*., x-xiv. 505. . Contraet, 20. Lala v. Canal Boat City of Jolietj xxiv. 23". . Appeal, 1%. Lamarque v. Langlais, viii. 328. . . Conver^TS'. Lambar v. City of St. Louis, xv. 610. . GorpiH ration, 40. Lambdin, Bobb v., vii. 601. Lambert v. Blumenthal, xxvi. 471 . . Partita, 6. " v. The State, viii. 482 Crint' Law, 196. Lamme, Eevis v., ii. 207. Lamothe v. St. Louis Mar. Railway & Dock Co., xvii.,204! ./l(/ency, 20. Landes V. Perkins, xii. 238 . hstoppd, 22^; . . . Execution, 42, 82, 96 . Limitations, 17, 84: .Public Lands; 74, 128.. Landusky, Montgomery v., ix.'.705. Lane, Alexander v., xxi. 536. Atkinson v., vii. 403t Chambers v., v. 289: T. Charles.s, v. 285. . Chanea^, 91 . .Jmiti: diction, 10; Glamorgan v., ix. 442. V. Clark, i. 657 Administration, 7 liecord, 29. y. Dobyns, xi. 105. .Actionj 4; Daggett v., xii. 215. V. Fellows, i. 353. Attaehmt, 8. .ErTor,20. Henry v., ii. 201. King v., vii. 241. V. Kingsbury, xi. 402. . . .Fraudk' Convey, 2, 6, 31 . . Neu! Trial, 28 . . . Practice, 152, 298. Kingsbury v., xvii. 261- xxi. 115. Lackey v., vii. 220. McEvoy v., ix; 47. McNair v., ii. 57. V. Price, v. \0l.. Evid, 32. Soulard v., xvi.,366. Langham v. Btiggs, i. 476. .JuriscUction, 21. " Boisse v., i. 572. " Ber;iarder v., vii. 476. " V. Darby, xiii. 553. .Admin, 193. " v. Labarge, vi. 355. ..Bonds, Notes and Accounts, 83. " Rector v., i. 568. LIST OF CASES. Iv Iianji^pf, :Funkhouserv.,iXxvi. 453. Langkus, Lam^cque v., rlii. 328. Langstaff v.-Kock.xiii. 579. .Boatsand Ves,i. IiaDgston„Finley v., xii. 120. Lannan, City of Carondelet T.,,xxvi. 461. LanniBg^fiagga v., i. 261, Lansdown, Bolton v., xxi. 399. ■ Laporte v. The State, yi. 208 .... Crim . Law, 273, 430. Larkin, Reeves v., xix. 1 92. Taylor t., xii. 103. JtianmioreXhe-State v.,ixix. 391— rxx. 425. Lathrop V. Harlow, xxiii. 209.. Bills Ex and .P Notes, 37, 38. " .Pa.sre v., XX. 589. Langblin v. Fairbanks, vUi. 367 . . .Assignment, 1 . .Judgment, 36. .Practice, 285. " V. McDonald, i. 684 Admin, 81 . " v. Stone, V. 43. . . Conveyances, 22. . iiEjectmenl, AO. LanmieT v. Francis, xxiii. 181 Way, 16. . Witness, 52. Xanrentr. Mnlliken, x. 495 Practice Su- preme Court, 34. Lavallee, Cabanne t., 1. 394. Lavalley, The State v , ix. 824. Iiiweiliie,. Clemens v., iv. 80. iaw, Hinton v., x. 701. Lawless v. Collier,,*ix. 480. . .itaraa^KS, 25-27 .... Interest, 8. " T. Guelbreth; viii. 139. . . .Sale, 17. " V. NeWBian, v. 236 Practice, 136. " . Newnxan v., vi. 279. Lawrence t. Lawrence, x;dv. 269. . . . Convey- ances, 83 Replevin, 36. " V. Shreve, xxvi. 492. ..Practice, 72. " Simms v., ix. 657. Lawrence County, Wolcott, v., xxvi. 272. Lawson, Robinson v., xxvi. 69. Lay, Uevinney v., xix. 646. Layson v.iRpgers, xxiv. ,192.. .Fraudulent Conveyances, 46. Leache v. Goode, jcix. 501 Revenue, 4. Leahy v. I)u<;dale, xxvii 437 Contract, 51. Leak v. Elliott, iv. 446 Evideacei2i. " Elliott v., iv. 540 — ^v. 208. Leakey v. Mairoin, x. -368 ffusband and Wife, 27, 28., Leapfoot, TJie State v., xix. 375. Xieaton, Ewing v., xvii. 465. Leavensworth, Haitt v., xi. 629. Lebarge, Langham v., vi. 355. Lecompte, Chambers v., ix. 566. " Matthews v., xxiv. 545. " . MeCabe v., xv. 78. " V. Wash, iv. 557 Practice, 39. " V. Wash, ix , 547 Dower, 20, 21, 33 . . .Judgment, 77. Ledford, The State v., lii. 102. Ledac, McGill v., ili. 398. Lee V. Ashbrook, xiv. 378. . .Assumpsit, 57. .-. Chambers, xiii. 238. . .Mec Lien, 7. V. Collins, i. 587. . .Practice, 199. Collins V. ii. 16. V. David, xi. 114-. . .Practice, 264. V. Howe, xxvii. 521 .. . Chancery, 39. V. Hunt, yi. 163. . .Petition in Debt, 16. T. Lee, xix. 420... i'raud, 6..,Prac Sup Cojrt, 49. Lee V. Lee, xxi. 531. . Amendmt,24. . B^cordfS2. " V. Lindell, xxii. 202. . .Dower, 35. " V. Moore, xii. 458. . , Execution, 63. " V. Murray, xii. 280. . . Witness, S5. " V. Parker, xxv. 35. ..Public Lands, 179. " V. Sparr, xiv. 370. . . Slaves, and Sta, 22, " V. Sprague, xiv. 476 . . Slaves and Sta, 1 1. " V. Stern, xxii. 575. . . Costs, 15. " V. Tabor, viii, 322. . .44«i?W«en<, 11. Leewright, Parker v., xx. 85. Leimer v. Pacific R. R., xxvi. 26. ,Practice,6S. Leitensdorfer v. Delpby, xv. 160. . . Chancy, 16 . . Convey, 69. .Emd, 188, 189. " V. Hempstead, - xyiii. 269 In- fants, 7. Lemp, Hasse v., xxvi. 394. " Schneer v., xvii. 142. " Schnerr v., xix. 40. " The State v., xvi, 389. " V. Streiblein, xii. 456. . rA^sumpsit, 6. Lenhart, Hite v., vii. 22. Lennox v. Grant, viii. 254 . .Justice Peace, 2. " Morris v., viii. 252. Leonard, Livermore v., xvi,, 474. " The State v., xxii. 449. liCpper V. Chilton, vii. 221 . .Deposilioi/s, 1.8. Lessieurv. Price,. xii. 14. .Pb6, Zafl(is,.39„40. Lester, Meier v., xxi. 112. " V. The State, ix., 658. .. . Crimjfiw, 124, 125. Letcher, Mercier v., xxii.; 66. Letton V. Graves, xxvi..?50. .Prac Sup.O^urt, 23. Levens, The State v., xxii. 469. Levin, Richards v., xvi. 596. Levins v. Stevens, vii. 90. .JunsdidiiBn, 19. Levy v. Hawley, viii. 510. . ,Evidgnce,, 159. . . Witness, 33, Lewin V. Dille, xvii. 64.. Agency, 2\.. Contract, 7 1.. Courts, 2., Depositions, 12, 13 Evidence, 4, 41 . . Venue, 8. Lewis, Atwood v., \i. 392. " Brown v., xxv. 335. " v. Davis, iii. l33..Devise,and Legacy, 24. " Furgnson v., xxvii. 249. " Gibson v., xxvii. 532. " Hamilton v., xiii. 184. " V. Harvey, xviii. 74. .Bills Exchange and Prom Notes, 17, 18. " HoUiday v., xv. 403. " Johnson v., x. 153. " V. Lewis, V. 278. . . Husti and Wife, 101. " V. Lewis, ix. 182 . . Chancery, 113.. Officer, 4. .Public Lands, 18-20. '' V. Nuckolls, xxvi. 278. .Appeal,24. " V. Price, xi. 39« . Appeal, 19 . .Mandam, 22. " V. The State, xi. 366.. . Crim Law, 281. " V. The State, xii. 128 Laws, 31. " Stout V , xi. 438. Lewis County v. Tate, x. 650 Eevenue,^4. L'Hussier V. Zallee.xxiv. 13'- • For Eniruand Det, 25. Liberty Ins. Co., jjenshaw v., ix; 333. Lidell, Consaul v., vii. 250. Liggat V. Hart, xxiii. 127 Devise. and Lea, 12, 18. Liggett, LindeU v., i. 432. Likens, Walker v., xxiv. 298. Lilly V. The State, iii. 10 Crim Law, 56. Ivi LIST OF CASES. Lincccnm v. Lincecum, iii. 441 . . Descents and Vis, 11, 12. Lincoln County Court, Robbins v., iii. 57. Lindell v. Uanic of Missouri, iv. 228 Judg- ment, 81. " V. Benton, vi. 361 . ■ . .Banking, 16. . . Corporation, 22 Execution, 3 .... Garnishment, 18. Benton v., x. .557. T. Brant, xVii. 150. . . .Action, 34. V. Brant, xix. 50. . . . Contract, 17. Cabunno v., xii. 184. V. Hannibal ami St. Joseph E. E. Co. XXV. 550 . . . Trespass, 48. Hogel v., X. 483. Lee v., xxii. 202. T. Liggett, i. 432 Pleading, 44. Lisa v., xxi. 127. V. MfiNair, iv. 380 Dower, 52 Husbanil and Wife, 70. Schultz v., xxiv. 567. T. W;i3li, iii. 512 . . .Execution, 20. Linderman V. EJoon, xxv. \05 .... Execution, 99 Im Peace, 44. Lindsay v. Moore, ix. 175. . Assiimjjsit, 3. Lindsey v. Burbridge, xi. 545. .Laws, 57. Linjjo, Tlie State v., xxvi. 496. Link, Beam v., xxvii. 261. " V. Edmondson, xix. 487. .Dower, 3. " V. Vaughn, xvii. 585 . . Pleatling, 1 73. Linn County v. Holland, xii. 127. . Corpn, 37. Linton v. Boly, xii. 567. , Chancery, 87. Lisa V. Lindell, xxi. 1 27 . . Execution, 83. " Steinback v., i. 228. Lisle y. Khea, ix. 172. .Judgment, 1. " V. The State, vi.426. CVm iaw, 287, 355. Little V. Chauvin, i. 626, . Convey, 14. .Limita- tions, 83. ..Proi;ess, 2. . .Slaves and Sla, 2^.. Trover, 18. " V. Eddy, xiv. 160. Fraudtdt Convey, 18. " V. ITerj'.uson, xi. 598. .Evidence, 95. " V. Little, V. 227. . 'Vocti's, 4. " V. Mfrcer, ix. 216 Contract, 54 Debt, 3. . Pleading, 8, 10. " V. Nabb, X. 3. . Guaraniy, 3. " V. Nelson, viii. 709. .Prac Sup Ct, 74. " V. Pratte, i. 201 . Bills Ex and P Notes, 54. . Witness, 73. " V. Sell, xiif. 577. .Agency, 17. " V. Soliick, xvi. 269.. Appeal, 21. " V. Semjjie, viii. 99. . Com Cairier, 19. " V. Seymour, vi. \66. .Attachment, 88.. Execution, 55. " V. Stettheimer, xiii. 572. .Agency, 17. Littleton V. Cliristy, xi. 390 .. Administration, 190. .Depositions, 6. Livenpood v. Shaw, x. 273.AttMhinent,13,59. Livermau, Field v., xvii. 218. ^ ' Livcruiore v. Leonard, xvi. 474. .Estoppel, 23. Livingst n v. Dugan, xx. 102. . Consid, 12. " Dugans v., xv. 230. Livingston County, Slirever, v., ix. 195. Loan, Copeliind v., x. 266. Locke, The State v., xxvi. 603. " Vaughn v., xxvii. 290. Lockhart, Biown v., i. 409. " V. Hays, i. 271 . .Jurisdiction, 50. Lockridge, Caldwell v., ix. 358. " V. Upton, xxiv. 184. .Security, 11. Lockridge V. Wilson, vii. 560. .Partnership, 5. Lockwood V. City of St. Louis, xxiv. 20 Chancery, \0i. .St Louis, 30. Loehner v. Home Mu. Ins. Co., xvii. 247 — Crim Law, 29.. Ins, 19-23. " V. Home Mu. Ins. Co., xix. 628 Ins, \9-i3. . .Practice, 247. Logan-, Bettis v., li. 2. " V. Caldwell, xxiii. 372.. Hush and Wife, 87. " Fenwick v., 1. 401. " V. Logan, xix. 465. .Husb and Wife, 17. " Manny v., xxvii. 528. " Perry County v., iv. 434. " T. Phillips, xviii. 22. ..Dower, 26... Husb and Wife, 19. " The State v., i. 5.32. Logue, Kincaid v., vii. 166. Loker, Clark v., xi. 97. Lonergan, Ear. and Mer. Bank of Memphis, v., xxi 46. Long, Anderson v., i. 365. " v. Constant, xix. 320.. Soreds, Nates and Accls, 81. " Martin v., iii. 391. " V. Overton, vii. 567. . Amendment, 17 . " V. Story, X. 636 . . .Partnership, 44, 45. " V. Story, xiii. 4. .Error, 42. . Witness, 63. Loper V. Mayor, i. 681 . ..Laws, iv. " V. The State, i. 632. . .Laws, 68. " Waddle v., i. 635. Lopez, The State v., xix. 254. Lortou V. The State, vii. 55 . . . Crim Law, 108. Lory, Aubuchon v., xxiii. 99. Lott, McNair v., xxv. 182. Loudon V. King, xxii 336. . Practice, 189,327. " Schropshirc v., xxiii. 393. Loughridge v. The State, vi. 594. . Crim Law, 190. Louisiana and Frank. Plank R. Co. v. Pickett, xxv. 535. .Imws, 24. . W^ly, 24. Louisiaia and Middl'n Pl'k R. Co. v. Mitchell, XX. 432 . . Prac Sup Court, 68. Loumior, Ellis v., i 260. Love V. Fairfield, xiii 300. . .Judgment, 37. Lovelace v. Stewart, xxiii. 384 Frauds and Perjuries, 20. Lovcring, Wiggins v., ix. 259. Lowe V. Hai-rison, viii. 350. . . Trespass, 39. " V. Sinklear, xxvii. 308. . Contract, 62, 63 . . . Infants, 4. Lownes, Chauviu v., xxiii. 223. Lowry, Boone County, v., ix. 23. " V. The State, i. 772. . Crim Law, 75. " The State v., viii. 48. Lubbering V. Kobllirecher, xxii. 596 Bills Ex and P Notes, 13. Lucas, Bompart v , xxi. 598. " v. Clemens, vii. 367. . . Covenant, 7. Luce, Beachboard v., xxii. 168. Luck, Jones v., vii. 551. Luiy v. The State, viii. 134. . Crim Law, 187. Luft V. St. Bt. p;nvoy, xix. 476 boats and Ves, 69, Lumleyv. Robinson, xxvi. 36i .. .Execution, 39 Lien, 7, 8. Lumm, St. Bt, Charlotte v., ix. 63. Ijundy, Bolton v., vi. 46. Lusk, The State v., xviil. 333. LIST OF CASES, Ivii Lusk, Warren v., xvi. 102. Lutes V. Perkins, vi- 57 Jurisdiction, 38. . . Jus t'eace, 25 ... . Praclioe, 9. Luttrell, Campbell v., xiii. 27. Lyle V. White, xi. 624 .. . see Ehodes v. W}i.ite, xi. 623. Lynch, Andrews v., xxrii. 167. " Barnett v., iii. 369. " Boggs v., xxii. 563. " v.Bo^y, xix. 170 Master and Sen, 3. Lyne v. Marcus, i. 4i.O Chancery, 166 Will, 27. Lynn, Vaughn v., ix. 761. Lyon, Farrar v., xix. 122. " V. Harlow, vii. 345 Bail, 3. " Hull v., xxvii. 570. " V. Page, xxi. 104 . . Action, 38 . . .Judgt, 78. '" Thompson v., xx. 155. Lyons, Coughlin v., xxiir. 533. M. Macey, Garred v., x. 161. " Gregg v., x. 385. Mackay v. Dillon; vii. 7 Public Lands, 67, 68, 164. Mackay, Bnrdyne v., vii. 374. Macklot V. Dubrcuil, ix. 473 . .Ejectment, 1, 29, 30. . Estoppel, 20. .Practice, 135. Madden v. Madden, xxvii. 544. . .Admin, 16. . . Chancery,- 189. Maddin v. Cole, xii. 61 . . Venue, 4. " V. Edmonson, x. 643. . . .Master and Slave, 5 . .Payment, 3. Maddox, Dunscomb v., xxi. 144. " Martin v., xxiv. 575. " Morse v., xvii. 569 — xix. 451. " Wiles v.,.xxvi. 77. " Ziegler v., xxvi. 575. Maeder v. City of Carondelet, xxvi. 112 Landlord and Tenant, d... Limi- tations, 30. i " v. The State, xi. 363 . . Criminal Law, 281. Magee, Humjihreys v., xiii. 435. Magehan v. Orme, vii. 4. .Practice, 281, 310. Magner v. Byan, xix. 196.. Admin, 181, 182. Magoffin V. Muldrow, xii. 512. .Assumpsit, 24. Magoon v. Whiting, i. 613. . .Arbitrations and References, 14.. Practice, 119. Magrathj The State v., xix. 678. Maguire, Clark v , xvi. 302. " Clouse v., xvii. 158. " V. Conran, yiii. 107.. Bonds, Notes and Accts, 101. " Crockett v., x. 34. '" V. McCaffrey, xxiv. 552..Pracfe'ce,200. " V. Page, xxiii. 1 88 . , Uses, and Irusls, 9. " Perpet. Ins. Co. v., x. 141. " Taylor v., xii. 313— xiii. 517. " M. Vice, XX. 429 Pleading, 142 Public Lands, 156. Magwire v. Hall, xxvii. 146. .Fraud, 19. " v. Tyler, xxv. 484 Cliancery, 1 82 Public Lands, 99, 100. Mahan v. Berry, v. 21 . . .Libel and Slander, 2. " V. Boss, xviii. 121..&(-q^, 19. Maids V. Watson, xiii. 544. . Courts, 12. Major V. Harrison, xxi. 441 .Prac Sup Ct, 77. H Major V. Hill, xiii. 247. .Assignment, 22. .Deed of Tiust,. 13. Malechi, Dickey v., vi. 177. Mallinkrodt, Kx parte, xx. i93. Notary Pub, 2. Mallison v. The State, vi. 399 Crim Law, 292, 340, 351. Malone v. Harris, vi. 451 . .Demand, 10. Malot, Stone v., vii. 158. Mammoth Min. Co., Chamberlin v., xx. 96. Manifee v. D'Lashmutt, i. 258. .Pleading, 99. Manion y. The State, xi. 578. .Appeal, 73. ., Breach Peace, 17. Mann, Crocker v., iii.. 472. " Cuil v., iv. 272. " Gibbs v., iv. 55. " Singleton v., iii. 464. " V. Trabue, i. 709. . Covenant, 4, 5. . Tres- pass, 5. " WUson v., viii. 8. Maiming v. CordcU, vi. 471 Master and Slave, 4. " V. Hogin, xxvi. 510.. Judgment, 5i Limitations, 31. " v. The State, viii. 6 1 5 .. See Freleigh V. Jhe State, viii. 606. " Weber v., iv. 229. Manny v. Frasier, xxvii. 419. .Action, 28. " V. Logan, xxvii. 528. .Assignment, 36. Mansfield v. Mansfield, xxvi. 163.. .Husb and Wife, 121, 122. Mansker v. The State, i. 452. .Laws, 67. Manter, Pembridge v., xiii. 586. March, Bracken v., iv. 74. " v. Howell, j. 138. .Error, 36. " Howel v., i. 182, 193. Marcus, Lyne v., i. 410. Marguerite v. Chouteau, ii. 71 . .Indians, 1. " V. Chouteau, iii. 540 . . Evid, 1 90 . . Indians, 1 . . Judgment, 56. Maria v. Atterherry, xix. 365 . . .Emancipation, 6, 7. Marine Ins. Co., Salisbury v., xxiii. 553. Marion County v. Moflfett, xv. 604. .Secur, 23. Marion County Court, Bourne v., xv. 600. Mark, Eector v., i. 288. Markham v. Dozier, xii. 288 . . .Boats and Ves- sels, 89. Markley v. The State, x. 291 . . Crim Law, 219. Slaves and Slavery, 42. Marks v. Bank of Missouri, viii. 316. . . Con- sideration, 27. " Blair v., xxvii. 597. " Divers v., iii. 81. " St. Francois County v., xiv. 539. Marlow, Cooper v., iii. 188. Marmaduke, Hayden v., xix. 403. " v. McMastors, xxiv. 51 . . Gamisht, 43. .Practice, 174. Mamey, Charless v., i. 537. " v. The State, xiii. T... Sheriff, 15, 16. MaiT V. Hill, X. S20... Evid, 86. " V. Mcintosh, xxi. 541 . .Judgment, 79. Marsh v. Morse, xviii. 477. Practice, 85. " V. Turner, iv. 253. .Lien, 1. Marshall v. Bompart, xviii. 84 . . Bound and Des,S. " V. Bouldin, viii. 244 . . Pleading, 104. " Crow v., XV. 499. " House v., xviii. 368. Iviii LIST OF CASES. Marshall v. Platte County, xii. 88.. County lYeasury, 1. .Pleading, 96, 101. " Platte County v., x. 345. " T. Wolfe, xi. 608 . . Practice, 205. Martien v. Barr, v. 102. . .Evid, 116. . WUneas, 35. Martin v. Almond, xxr. 313. . Convey, 11. " Bates v., iii. 367. ■ " Bennett v., vi. 460. " Burton v., iv. 200. ■ -'f V. Chauvin, vil. 277 Action, 15 Demand, 8. . .Jurisdiction, 48. " Corder v., xvii. 41. " Franciscus v., ix. 196. " T. Greene, x. 652. . . Chancery, 163. . . Evidence, 142. " V. Hagan, viii. 505. . . Practice, 306. V. Hall, xxvi. 386. . Contract, 8. .Prac- tice, 202. " Harrison v., vif 286. " T. Hays, V. 62 . . . Error, ix. " Kennerly v., viii. 698. " V. Long, iii. 391 . . .Damages, 18. " V. Maddox, xxiv. 575. .. .Assignment, 16, 30, 32. " V.Martin, xiii. 36... Admin, 71 Chancery, 122. . .Evidence, 11. " T.Martin, xxvii. 221 ... Amendment, 7 Practice, 185. " V. Michael, xxiii. 50. . . Chancery, 64. " V. Milam, xi. 602 Appeal, 31. " V. Miller, iii. 135. . .Pleading, 88. " V. Miller, iv. 47 . . . Crim Law, 158, 159 Zdbet and Slander, 44. " V. Miller, xx. 391 . . .Action, 8. " Miller v., xvi. 508. " M»in v., XXV. 360. " V. Rice, xxiv. 581 . . .Assignment, 31. " Shepard v., XXV. 193. " V. The State, ix. 283 . . Crim Law, 172. V. The State, xii. 471 . . .Hob Corp, 7. " The State v., v. 361— viii. 102— x. 391. " Welton v., vii. 307. " V. White, xi. 214. . .Appeal, 83. " V. Withington, iv. 518 Prac Sup Ct, 72.' Martindale v. Hudson, xxv. i'i'i .. Set-off , 7. Marvin v. Bates, xiii. 217. .Limitations, 1. " V. Hawley, ix. 378 . . Garnishment, 2. Mary v. The State, v. 71 . . . Grim Law, 296, 350, 423. Mason, Burns v., xi. 469. " Johnston v., xxvii. 511. " V. Patton, i. 279. . .Bills of Ex and Prom Notes, 3. " V. Pitt. xxi. 391 . . Town Plats, 1 " V. Stiles, xxi. 374. ., Landlord and Ten- ant, 18. ' > " V. Woemer, xviii. 566. .Jurisdiction, 57. Mass V. Brown, vii. 305. . .Action, 16. Massie, Morton v., iii. 482. Massey, Papin v., xxvii. 445. Masterson v. Ellington, x. 712. .Appeal, 59. " Picot v., xii,303. Maston v. Fanning, ix. 302 Prac Sup Ct, 58, 61. Matheny v. Johnson, ix. 230.. Demand, 13. . . Irover, 12, 25. Mathews v. Lecompte, xxiv. 545 Defid of Irust, 1 . .Ejectment, 52. Mathis, Hood v., xxi. 308. Matlngly v. Hayden, i. 439. .Ejeftment, 27. Matlock V. King, xxiii. iOO.. Appeal, 76. Matson, Bank of Missouri v., xxiv. 333 — xxvi. 243. " Culbertsou v., xi. 493. " V. Dickerson, iiL 339. .Error, 18. " V. Field, X. 100. . Chancery, 58, 74. ' " Field v., viii. 686. " ' Mead v., ix. 773 Matthews v. Boas, vi. 597 .. Pleading;, 27 . " V. Coalter, ix. 696 . . Conveyances, 81 . .Evidence, 138. .Practice, 116. " V. Gloss, xxii. 169. .Recog, 13. " Hollinsworth v., xix. 406. " Powell v., X. 49. " Prior v., ix. 264. " V. Eountree, xx. 282 Amend- ment, 23. " Smith v., vi. 600. The State v., xiv. 133 — ^xx. 55. " Tong v., xxiii. 437. Walsh v., xi. 131. " V. Wilson, xxvii. 155 . .Agency, 33. Matthien, Ingram v., iii. 209. Mattingby V. Cline, vii. 499 Pleading, 28. Mattingly v. Moranville, xi. 604 . ^Practice, 303. Mattison v. The State, iii. 421 .... Orim Law, 32 Laws, 63. Maulsley v. Farr, iii. 438 Amendment, 11 .... Garnishment, 15, 16. Maupin v. Boyd, v. 106. ..Administration, 61. " Cooper v., vi. 624. " Craig v., vi. 250. " Gordon v., x. 352. " HiU v., iii. 323. " Leaky v., x. 368. " V. Parker, iii. 310 Laws, 48. " Shelton v., xvi. 124. " V. Smith, vii. 402 Bonds, N and Accts, 101. " V. Triplett, v. 422 Evidence, 162 Mauro v. Buffington, xxvi. 184 Cir Attor- ney, 5. " Walker v., xviii. 564. Maury, Irvin v., i. 194. Mayfield V. Sweringen, iv. 220 Practice, 334. Mayhall, Spalding v., xxvii. 377. Mayo, Depas v., xi. 314. " V. Freeland, x. 629 Election, 1. Mayor, Loper v., i. 681 . Mays, Newman v., xxvii. 520. McAdams v. Gates, xxiv. 223 Safe, 26. ■' V. McHenry, xxii. 413 . Practice, 29. McAfee v. Ryan, xi. 364. .New Tried, 57. McAlister, Hughes v., xv., 296. McAllister V. Dennin, xxvii. 40. .Release, 1. " Easton v., i. 662. " Garrison v., xiii. 579. " V. MuUanphy, iii. 38 . . Ejectment, 54 . .Practice, 169. " Stokes v., ii. 163. v. Temiesse M. and F. Ins. Co., xvii. 306. ./nsiirance 13. McAnulty, Coleman v., xvi. 173, LIST OF CASES. lix McAuliff, Harley v., xxiv. 85 — xxvi. 525. McBride, The State v., iv. 303— xix. 239. " Wilcoxsou v., xxiii. 404. McCabe v. Hunter, Til. 355 . . Convey, 3 . . Par- tiition 17. " V. Lecompte, xv. 78 . . Appeal, 60. " V. Worthington, xvi. 514. . . ../"ufcZic Lands, 42. McCaffrey, Maguire v., xxiv. 552. McCampbell, Garth t., x. 1 54. McCann, The State v., xix. 249. McCartney v. Shepard, xxi. 573. .Frauds and I'erj, 31.. Record, 11. M^Carty, Banks v., v. 1. " V. Hall, xiii. 480 . . . Bills Exchange and From. Notes, 29. " V. Eountree, xix. 345 .. . Demand, 17.. Parent and Child, 1 . McCauley v. Cleveland, xxi. 438 Partner- ship, 2. McCausland, Laberge v. iii. 585. McCIflin V. Weidemeyer, xxv. 364 Bonds, Notes and Accts, 80.. Husband and Wife, 51, 52. McClanahan, Patterson v., xiii. 507. " V. Porter, x. 746 Dower, 23, 36-42. " Thrustonv., V. 521. McClellan V. Parker, xxvii. 162... Agency, 29. McClelland, Woodson v., iv. 495. McClenticks v. Bryant, i. 598 County, 7-9. McCloy, St. Bt. Baritan v., x. 534. McClure v. Shroyer, xiii. 104 Arb andUef, 16, 22, 28. " The State v., xxv. 338. McComas v. The State, xi. 116 Crim Law, 164. McCombs, Ingram v., xvii. 558. McConathy, Smith v., xi. 517. McConnell, St. John v., xix. 38. McCord, Kiley v., xxi. 285 — ^xxiv. 265. McCorkle, Wear v., i. 588. McCormick, Deickman v., xxiv. 596. " V. Kenyon, xiii. 131 . .Pleading, 16. " Strickland v., xiv. 166. McConrtney v. Sloan, xv. 95 Chancery, 81 .. . .Securities, 45. " The State v., vi. 649. McCoy, BelUssime v., i. 318. " City of St. Lonis v., xviii. 238. " Eagan v., xxvi. 166. McCracken, The State v., xx. 411. McCnlloek, Scott v., xiii. 13. McCullough, Moore v., v. 141 — ^vi. 444 — ^viii. 401. " Steams v., xviii. 411. McCune, Cable v., xxvi. 371. " V. Hull, XX. 596 Jurisdiction, 17. " v. HnU, xxiv. 570 .... Boundary and Description, 13. " Johnson v., xxi. 211. McCnne Rogers v., xix. 557. McCurdy v. Brown, viii. 549. . .Bond, 14 Constable, xvi. . Costs, 35. " Gordon v. xxvi. 304. " V. McFarland, x. 377 . . Warraniy, 2. McCutchen, Edgar v., ix. 759. " McKnight v., xxvii. 436. " Steel v., T. 522. McCutchin v. Batterton, i. 342.. Debt, 11, 12. McDaniel, Bartlett v., iii. 55. " V. Orton, xii. 12. .PiibLands, 29. " V. Priest, xii. 5ii.. Husband Wife, 76. " Snowdeu v., vii. 313 " V. Wood, vii. 543 . . Partnership, 42, 43. McDermott v. Barnum, xvi. 114. .Estop, 14. . Fraud, 20 . . Fraudulent Con- veyances, 44. " V, Barnum, xix. 204. .Estop, 16. . Jus Peace, 43 . .Practice, 246. . Prac Sup Ct, 46. " V. Doyle, xi 443 . .Replevin, 42-44. " V. Doyle, xvii. 362 . . Action, 53. " Moreland v., x. 605. McDonald, Berthold v., xxiv. 126. " City of St. Louis v., x. 609. " v. Cook, xi. 632 .. . Chancery, 106 . . Execution, 70. " Cornelius v , ii. 55. " V. Porsyth, xiii. 5i9. .Attacht, 87. " V. Pranklin County, ii. 217 . . County, 10. " v. Harrison, xii. 447 . . Set-qf, 22. " V. Hulse, xvi. 503 . . Lien, 1 7. " V. Jacobs, X. 160. .SeeS. C. viii. 565. " Jacobs v., viii. 565. " Kuykendall v., xv. 416. " Laughlin v., i. 684. " Melton v., ii. 45. " V. Schneider, xxvii. i05... Eject, 41 . . LamM Sr Ten, 2 . .Limitatns, 80. " v. The State, viii. 283 . . . Crim Law, 98, 105, 214, 225. " The State v., xxv. 176. " V. Tiemann, xvii. 603 . .Executn, 16. " V. Walton, 1. 726. . .Admm, 108. " V. Walton, ii. 48. . .Admin, 109. McDowell V. Brown, xxi. 57 . . . Convey, 64. McElhany v. McHenry, xxvi. 1 Ii.. Practice, 29. McElhenon, Weaver v., xiii. 89. McElroy v. Caldwell, vii. 587. . .Bonds, Notes and Accounts, 88. McEveis v. St. Bt. Sangamon, xxii. 187 Bailment, 7. McEvoy V. Lane, ix. 47 . . Garnishment, 22. " Prather v., vii. 598 — viii. 661. McPadin v. Eippey, viii. 738 . . . Landlord and Tenant, 23. . .Prac Sup Ct, 15. McFarland v. Baze, xxiv. 156. ..Dower, 50. " McCnrdy v., x. 377. " Overton v., xv. 112. " Platte County Court v., xii. 166. McFaul, Dean v., xxiii. 76. " Holden v., xxi. 215. " Eobinson v., xix. 549. McGaugh, Brosius v., xxvii. 280. " Woodward v., viii. 161. McGee, Holmes v., xxvii. 597. " v. Porter, xiv. 611... Will, 5. " V. The State, viii. 495. . Crim Law, 353 . . . Error, 54. McGUl V. Leduc, iii. 398. .Petition in Debt, 2. " V. Somers, XV 80 . .So«n<^ary anrf .Dcs- ription, 1 Public Lands, 4, 80, 103, 151, 152. McGirk v. Chauvin, iii. 236.. Practice, 310- " Green v., i. 498. McGlothlin, Barry County v., xix. 307. LIST OF CASES. MeOovern, Dobyns v., xt. 662. McGowen t. West, vii. 569 Bonds N and Accts, i, n. Frauds Sj- Per), 7. McGrade, Ex parte, xxiv. 125. .Appeal, 13. McGreadyv. McGready, xvii. 597. .Mortg,2l. McGruder, Johnson v., xv. 365. McGunnegle v. The State, vi. 367. ,..Crim Law, 288 . . Laws, 38. The State v., hi, 402. McHenry, Johnson v., xxvii. 264. " McAdams v., xxii. 413. " McElhany v., xxvi. 174. McKose, Eose v., xxvi. 590. Mcllvaine v. Harris, xx. 457 . . Conveyances, 74. Mcladoe v. City of St. Louis, x. 575, . Ciarpo- ration, 34. Mcintosh, Asbury v., xx. 278. " Marr v., xxi. 541. McJilton T. Smizer, xviii. 111. .Tender, 8. McKay v. The State, xii. 492.. Cn'm Xaw,322 . . Practice, 76. McKee v. Angelrodt, xvi. 283. .Landlord and Tenant, 38. " V. Brooks, XX. 526 Landlord and Tenant, 10. " Caldwell v., viii. 334. " V. City of St. Louis, xvii, 184 St. Louis, 21 . . Way, 8. " Edwards v., i. 123. " Ex parte, xviii. 599. . .Habeas Car- pus, 8. . Notary Pviblic, 1. " Van Winkle v., vii. 435. McKenha, Miller v., xviii. 253. McKenzie, Speaker v., xxvi. 255. McKinl^yv. Williamson, xxiii. 65. Witness, 58. McKinney v. Pavis, vi. 501 . .Adnan, 93. " Hines v., iii. 382. " Julia v., iii. 270. " Waloop v., x. 229. McKinstry, Neale v., vii. 128. McKnight, Aubuchon v., i. 312. " Bank of Missouri v., i. 762 — ^ii. 42. " V. Bright, ii. 110. . . Charieery, 108. . . Lien, I. " Colemnn v., iv. 83. " V. Crinnion, xxii. 559. .Beplem,n,5\. " V. MeCutihen,xxvii.436. .^ssM7n,31; " V. Spain, xiii. 534 . . . Crim Law, 404, 405. •' V. Taylor, 1. 282.. -PZrarf^, 43 " Taylor v., i. 120— i. 278. " V. Wells, i. 1 3 . . New Trial, 50 . . Prac- tice, Za\. " V. Wilkins, i. 308. . . Pleading,U2. . . Practice, 33. McLain v. Winchester, xvii. 49. .Evidence, 15 Husband and Wife, 33 . . Practice, 325 . . . Practice Sup Court, 60. . . Record, 6. McLane v. Harris, i. 700. .Practice, 75. " XJnterrein v., x. 343. McLaugherty, Keatty v., iv. 221. McLaughlin, Belt v., xii. 433. " V. McLauu-hlin, xvi. 242 . . Action, 37 . . .Admin, 83. .Chancery, \25.. Dower, 15... Evidence, 111... Frandlt Conoeyances, 52, 53 . . . Jurisdi tion, 56 . . Witness, 40. " TheStatev., xxvii. 111. McLean v. Boyle, six. 495. .Judgment, 53. " Hendricks v., xviii. 32. " Jacob v., xxiv. "40. " Jeffries v., xii. 538. " Mense v., xiii. 298. " V. Kutberford, viii. 109. . .Bailment, 10, U.. Evidence, 117. " V. The State, viii. 153.. Crim Law, 297, 437. " V. Thorp, iii. 215... Limitations, 37 . . Witness, 4. " V. Thorp, iy. 256. . .Oppositions, 4. . . Limitations, 37. .Practice, 126. McLernan, The State v., x. 780. McMahan, Webster v., xiii. 582. McManus, Cannon v., xvii. 345. Sickles v., xxvi. 28. McMartin v. Adams, xvi. 268. . .Bills Ex and P Nates, 89. McMasters Marmaduke v., xxiv. 51 . McMechan, Arthur v., xxi. 43. McMilleu v. The State, xiii. 30.. . Crim Law, 363, 375, 395. .Prac Sup Ct,i5. McMillon, Armstrong v., ix. 712. McMurray, Slowey v., xxvii. 113. McMiui;ry, Crump v., viii, 408. " V. Glascock, xx. 432. .Appeal, 7. McNair v. Biddle, vjii. 257. . Chancery, 146. . . Judgment, 17.. Mortgage. 18, 19.. Process,, .23. V. Dodge, vii. 404. .Admin, 89. .Husb and Wife, 22. Governor v., i. 302. v. Hunt, V. 300. ..Admin,' 133, 134, J 37, 1 38 . . Evid, 7 Guard and Cur, 5.. Officer, 2. V. Lane, ii. 57. . .Bail, 2. .. Pleading, 63 . . Prac Sup Ct, 94. Lindell v., iv. 380. V. Lott, XXV. 182. . .Limitations, 32. . Mortgage, 6 Pleading, 161. V. O'Fallon, viii. 188. ..Mortgage, 65. Eector v., i. 471. McNeeley v. Hunton, xxiv. 281 . .Evidence, 105 McNeilly v. Patchin, xxiii. 40 Bills Ex and P Notes, 26. McNulty V. Collins, vii. 69 Assumpsit, 40. " Sproule v., vii. 62. McNutt, Curie v., vi. 495. McO'Blenis, The State v., xxi. 272 — xxiv. 402— xxvii. 508. McO'Blennis, Poster v., xviii. S8. McPherson, City of Carondelet v., xx. 192. " Hill v., XV. 204. " Hissrick v., xx. "ilO. McQuaig, The State v., xxii. 319. McQueen v. Chouteau, xx. 222 Assignmt, 5. . . Chancery, 36, 142. . .liject- ment, 56. . . .Eoidence, 144. " V. Earrow, iv. 212 Judgment, 52 .... Pleading, 77. " Vaughn v., ix. 327. McEeynolds v. Gentry, xiv. 49.). . .Dower, 13. " Gentry v., xii.. 533. Mc.'iherry, Walter v., xxi. 76. Mc Waters v. The State, x. 167 Breadi Peace, 10. . Cfimiaai, 175,435 Mead, Crump v., iii. 233. " Gudgell v., viii. 53. LIST OF CASES. Ixi Mead v. Knox, xii. 284 Chancery, 179. " V. Matson,.ix. 773 Practice, 315. Means, Eichardson v., xxii. 495. Mearns, Talbot v., xxl 427. Medder, Spencer v., v. 458. Medliu V. Brooks, ix. 105 Assumpsit, 29 .... Practice, 252. " V. Platte County, viii. 235 Bills Ex and Prom • Notes, 16.... Evidence, 69. Medlock v. Brown, iv. 319. Husb and Wife, 5. Meechum v. Judy, iv. 361 . . .New Trial, 13. . W'itness, 80. Meegan v. Gunsollis, xix. 417. .Ejectment,' 21. " Smith v., xxii. 150. Meek, Brill v., xx. 358. Megehe v. Draper, xxi. 5\0 .. Execution, 30. Meier v. Eichelberger, xxi. 148. . .Appeal,-69. •' Halsall v., xxi. 136. " T. Lester, xxi. 112.. Sheriff, 21 . " Thomas v., xviii. 573. Mellon, Biddle v., xiii. 335. , " V. Hammond, xvii. 191 . .Execution, 134. Melton y. McDonald, ii. 45. .Eepleoin, 2,23. " Newberry v., iii. 121'. , " / The State v., viii. 417. Melugen, Robert v., ix. 169. Melvin, Wilson v., iv. 592.. Menard v. Wilkinson, iii. 92 . . Bills Ex and P Notes, 41. " V. Wilkinson, iii. 255. .Error, 49. Menefee, Evans v., i. 442. Hannibal Plk Road Co. v., xxv. 547. Menkens v. Blamenthal, xxvii. 198 . Boundary and Description, 14, 15. .Limit- ations, 71. " V. Heringhi, xvii. 297 Husb and Wife, 51. " V. Menkens, xxiii. 252 . .Damages, 35. " ¥. Ovenhouse, xxii. 70 . Limitatns, 74. " Pratt v., xviii. 158. " V. Watson, xxvii. 163. . .Agency, .34. Menkins v. Bluraenthal, xix. 496. . .Boundary and Deicrifition, 10.. Eject, 1 5. Mense v. McLean, xiii 298. . Convey, 51. " V. Osbern, v. 544 . . .Attachment, 55 ... . Bills Ex. and P Notes, 78. Mensing, Gale v., xx. 461. Mer. Bank of Baltimore, B'k of Mo. v., x. 123. Mercer, Knowles v., xvi. 455. " Little v., ix. 216. Mercier v. Letcher, xxii. 66. . .PuhLands, 116. Meredith, Feagan v., iv. 514. Merlatt, City of St. Joseph v., xxvi. 233. Merle v. Hascall, x. 406. . .Agency, 42. Merrick v. (ireely, x. 106. .Boats and Vcs, 77. Merritt, Barth v., xx. 567. MeiTy, Alexander v., ix. 510. " ' Chouteau v , iii. 254. " Hicks v., iv. 355. " Kick v., xxiii. 72. The State v., iii. 278. " V. Tiffin, i. 725, 780 . . Slaves andSla, 3, 4. Merrymari, Harshaw v., xviii. 106. Mertehs, The State v., xiv. 94. Me»sersmith v. Messersmith, xxii. 369. . Chan- cery, 4?, 45 .46. Metcalf V. City of tit. Louis, xi. 102.. Laws, 50. Metz, Beck v., xxv. 70. Metz v. Eddy, xxi. 13 — Pleading, 167. Metzgor,. The State v., xxvi. 65. Meyer V. Campbell, xii. 603.. ..Eject, 47... Husb Sr Wife, 17..Jadgt, 101,102. " Path v., xxvii. 568. " Eischer v., xxiv. 90. . " Krcvot v., xxiv. 107. " v. Witter, xxv. 83. . .Evidence, 193. Meyers, Pearce v., iii. 31. " , Rittenhouse v., x. 305. " Smith v., xix. 433. 'Michael, Martin v., xxiii. 50. Michau v. Walsh, vi. 346. .J^or Entry and De- tainer, 1, 45. Middleton v. Atkins, vii. 184 Petition in Debt, 8. Clark v., xix. 53. " V. Erame, xxi. 412.. Attachment, 60 Payment, 12. " V. Hoff, XV. 4:15. Fraudlt Convey,40. Milam v. Bruffee, vi. 635 Mechanics' Lien, 29.. Mortgage, 35. " Martin v., xi. 602. Milan v. Pemberton, xii. 598. .Evidence, 65. . Limitations, 24. Milbm-n v. Beach, xiv. 104. .Trespass, 43. " Field v., ix. 488. " V. Oilman, xi. 64.. .Execution, 122. " V. Hortiz, xxiii. 532. . .Public Lands, 168. " Irwin v., x. 456. " V. The State, xi. 1 88 . , . Exeattion, 125. V. Waugh, xi. 369. . .Fraudll Convey- ance, 35. .Sale, 7. Miles V. Davis, xix. 408. . .Amendment, 12. . . Mortgage, 58. .Practice, 208. . Uses and Trusts, 24. " Dent v., iv. 419. " V. Smith, xxii. 502 .. Mortgage. 44. West v., ix. 167. MiUer, Abbot, v., x. 141. " Boon v., xvi. 457. " v. Brown, iii. 127. . . Mai Prosecution, 1, 8 . .Process, 12. " Bunding v., x. 445. " V. Conway, ii. 213.' .Fraudlt Convey, 49. " V. Doan, xix. 650. .Attachment, 7, 8. .Exe- cution. 14. " Ewing v., i. 234. " V. Janney, xv. 265.. Admin, 89. " Jones v., xii. 408. " Kinney v., xxv. 576. " V. Martin, xvi. 508 . . Woods, MSf Prai, 4. " Martin v., iii. 135 — iv. 447 — xx. 391. " V. McKenna, xviii. 253 Depositions, 7. " Myers v., iii. 586. " V. Paulsell, viii. 355. . . .Bonds, Notes and Accts, 26, 80. " V. Richardson, i. 310. .Attachment, 35, 36 Error, 19. " Stacey v., xiv. 478. . " Stark v., iii. 470. " The State v., xxiv. 532. " V. Thurmond, xx. 477. .Jurisdiction, 4. " V. Wall, xxyii. 440. . . Constable, 14. " V. Wells, V. 6 . . . . Chanciry, 7 . . . . Con- veyances, 84. " V. Woodward, viii. 169. . .Admin, 102. . . Jurisdiction, 13, 25. .Secur, 36, 37. Ixii LIST OF CASES. Millers' & Man. Ins Co; Willard v., xxiv. 561. Milligan v. Dunn, xix. 643. .Appeal, 83. Millington v. Millington, vU. 446. .Partitn, 11. " Tiffin v., iii. 418. Million, Fresh v., ix. 311. Mills, Hally., xi. 215. MjUy T. Smith, ii. 36 .. .Freedom, %...Laws, 6. " V. Smith, ii. 171. . . .Emamipation, 5. .. Freedom, 1. Milsap T. Wildman, t. 425 SciFa, 15. Miltenberger, Illingworth v., xi. 80. Ming, Dreyer v., xxiii. 434, Minor v. Edwards, x. 671 . . . .Bonds, Notes and Accts, 31,32, 35,36. " V. Edwards, xii. 137... Bonds, Notes and Accts, 33, 34. " Glasscock v., xi. 655. Missouri Kre Co., Kingsley v., xiv. 465. Missouri Institute v. How, xxvii. 211. Way, 9. Missouri Ins. Co. v. Glasgow, viii. 725 . . . See Si Louis Ins. Co. v. Glasgow, yiii. 713. " " " Kennerly v., xi. 204. Missouri State Mu. F. and M. Ins. Co., Hart v., xxi. 91. " " " " " " Hesse v., xxi. 93. " " " " " V. Spore, xxiii. 26. .ioc Decis, 14. Mitchel T. Gregg, iv. 31 ..ExexMtion, 54, 73. " V. Griffith, xxii. 515 . . Usury, 10, 11. Mitchell, Freeland' v., riii. 487. " Kincaid v., vi. 223. " Louisiana and Middletown Plank Road Co. v., XX. 432. " V. Parker, xxv. 31 . .Pub Lands, 179. " Sawyer v., xxvH. 510. " V. The State, iii. 283 . . Crim Law, 426, 428. " The State v., -ri. 147— xxv. 420. " V. Tucker, x. 260 Convey,^ 5, 7 ... Ejectment, 8. " V. WiUiams, xxvii. 399 Guard and Cura, 8, 11, 16. Mix, The State v., xv. 153. Moberly v. Preston, viii. 462. . .Libel and Slan- der, 3, 36, 41, 42. Modrell, The State v.,xv. 421. Moffett, Green v., xxii. 529. " Marion County v., xv. 604. Moles, The State v., ix. 685. Moller, Teubner v., xii. 528. Monks, Sexton v., xvi. 156. Montague v. Papin, i. 757. .Trespass, 7. Montany v. Bock, x. 506 Evid, 47, 60 Usury, 3. Montelius v. Sarpy, xi. 237 — Admin, 6, 104. Montgomery, Bird v., vi. 510. v. Blair, ii. 189. .A^eic TViW, 58. " V. Farley, v. 233. .Judgment, 15. . Pleading, 64. " V. Landusky, ix. 705 . . .Pub Lands, 81, 115. " V. Tipton, i. U6...Bond, 23, 24. . Fravid, 14 . , . Pleading, 34 . . . Practice, 6. " "Vaughn v., v. 529. Montreil, Smith v., xxvi. 578. Moody, Hamilton v., xxi. 79. Moody, The State v., xxiv. 560. Mooney v. Kennett, xix. 551 . . Breach Peace; 7 Evid, 26 . . Mai Pros, 5 . . PleaeUng, 137, 139.. Practice, 279. " V. St. Bt. Navigator, xxvi. 522 Boats and Vessels, 87. " V. WiUiams, XV. 442. .Jus Peace, 20. Moore v. Agee, vii. 289. ./^or En and Del, 9. " Alexander v., xix. 143. " v. Bank of Missouri, vi. 379 . . . BiUs Ex andP Notes, 86. " Boone v., xiv. 420. " V. Brown, xiv. 165. .Jurisdiction, 28. " V. Candell, xi. 614. . .Bonds, Notes and Accounts, 15. " V. Chamberlin, xv. 238 . . . Bepleuin, 52. " Ellington v., xvii. 424. ' " Joyce v., X. 271. " Keiser v., xiv. 28 — xvi. 179. " Lee v., xii. 458. " Lindsay v., ix. 175. " V. MoCuUoch, vi. 444. . .Practice, 74. " V. McCuUough, V. 141 Chancy, 112. " V. McCuUough, viii. 401 . . Chancy, 25. " V. Moore, iv. 421 . ..Replevin, 31. " V. Otis, xviii. 118. . .Prance, 16. " V. Otis, XX. \i3... Attachment, 63. " Parmer v., i. 176— i. 706. " Perry v., xxiv. 285. " V. Perpetual Ins. Co., xvi. 98.... in- surance, 8, 9. " PhilUps v., xi, 600. " V. Platte County, viii. 467 . . .Damages, 1.. Pleading, 9, 13. " Rutledge v., ix. 533. " Sloane v., vii. 170. " The State v., xix. 369. " V. The State, ix. 330. . Constable, 9. " V. Thompson, vi. 353. .Pleading, 48. " V. Turner, xix. 642. .Prac Sup Ct, 22. " Van Com-t v., xxvi. 92. " Wells v., xvi. 478. " Westlake v., xix. 556. " V. Winter, xxvii. 380. . Trova; 32. Moranville, Mattingly v., xi. 604. Moreau v. Branhiim, xxvii. 351 . . 77, 78 " v. Detchemendy, xviii. 522 . . Chancery, 77. .Eject, 50. .BusbSf Wife, 90. Moreland v. McDermott,x. 605 . Prac(ice, 161. Morgan v. AUen, xxi. 127 .. . Partnership, 13. " v. Bowman, xxii. 538 Master and Slave, 7, 8. " V. Buffington, xxi. 549...ieg'isfa««re, 1-3. " Coots v., xxiv. 522. " V. Cox, xxii. 373. .Trespass, 55 — 57. " V. Richardson, xvi. 409 . .Judgment. 8. " V. Taggart, i. 403 Proc Sup Ct, 9—12. " Webb v., xiv. 428. Moriu V. Martin, xxv. 360. . .Partnership, 32. " Warner v., xiii. 455. Morris, Dyer v., iv. 214. " V. Lenox, viii. 252. .Jurisdiction, 39. Morris, Presbury v., xviii. 165. " Shobe v., vi. 489. Southack v., vi. 351. " The State v., iii. 127. LIST OF CASES. Ixiii Morris, Weimer v., vii. 6. Morrison, Clarkson v., xxiv. 134. " Crockett v., X. 515— xi. 3. " T. Dent, i. 246 Exmation, 110. " Dent T., i. 130. " V. Edgar, xvi. 411 Canaid, 37. " V. Smith, xiii. 234 Bills Ex and P Nates, 20. " V. Tennessee Ins. Co., Kvijii 262 Ins. 24, 57-59. Morrow v. Briglit, xx. 298 Set-off, 25. " V. Shepherd, ix. 213 Costs, 3, 38. " V. Smith, X. 308 Consid, 36. " T. The State, xii. 279. .see Ike State V. Hawthorn, ix. 385. " The State v., xxvi. 131 . Morse v. Brownfield, xxvii. 224. .Appeal, 77. " T. Maddox, xvii. 569 Landlord and Ten, 49. " V. Maddox, xix. 451 Practice, 262. " Marsh v., xviii. 477. Morton t. Blankenship, v. 346 . . Pub Lands,31 . " City of St. Louis v., vi. 476. " Hannibal and St. Joseph R. R. Co. T., XX. 70 — xxvii. 317. " Inhabitants of Palmyra v., xxv. 593. " T. Massie, iii. 482 Evid, 133 Husband and Wife, 26. " V. Reeds, vi. 64 Practice, 257 Reoenue, 6-9. " Reeds v., ix. 868. " Rice v., xix. 263. " Samuel v., viii. 633. " The State v., xviii. 53. Mosely v. Hunter, xv. 322 . Covenant, 19, 40, 52. Mosier, Woods v., xxii. 335. Moss, Allen v., xxvii. 354. " V. Anderson, vii. 337 . . . Conveyances, 4 . . Emdence, 77 . .Public Lands, 101. " Cochran v., x. 416. " V. Craft, X. 720. . . Chancery, 103. . .Exe- cution, 21. " Doan v., xx. 297. " V. The State, x. 338. . . Bond, 15 Re- vemie, 23. " V. Thompson, xvii. 405. ..Amendment, 10. Moulder, Wilkerson v., xv. 609. Mount V. Valle, xix. 621 . .Vomer, 34. . .Juris- diction, 35. Mounts, Smith v., i. 671—1. 714. Mozier, Gibson v., ix. 254. Muir, !Fugate v., ix, 351. " The State v., xx. 303 — xxiv. 263. Muldrow v. Agnew, xi. 616. .Bonds, Notesand Accts, 38, 64. " V. Bates, v. 214. .Amendment, 8. " T. Caldwell, vii. 563 . ..Bonds, Notes and Accts, 72, 73. " Cawthorn v., viii. 617. " MagofBn v., xii. 512. " V. Tappan, vi. 276...4ssMmpst«, 40. Mulhem, Carlisle v., xbs. 56. Mullanphy, English v., i. 789. " Hunt v., i. 508. " McAllister v., iii. 38. " V. Peterson, i. 758. .Eject, 3. " v. Phillipson, i. 188. .Amendment, 29 Pleading, 37 . . Usury, 4. " Fhilipson v., i. 620. Mullanphy v. Redman, iv. 226 . . Pub Zonds,171 " V. Reilly, viii. 615. Consid, 2, 17, 18. " V. Riley, X 489 .. Consirf, 3. " Russell v., iii. 492— iv. 319. " V. Simpson, iii. 492 . Mortgage, 33, 63. " V. Simpson, iv. 319 .. .Mortgage, 34, 55, 64. " V. St. Louis County Court, vi. 563. . Admin, 3 . . .Appeal, 29 . . . Man- damus, 6, 15. Mvillen V. Pryor, xii. 307 Bonds, Notes and Accts, 63. .Pleading, HI. MuUer, Evans v., xxv. 195. MuUiken v. Greer, v. 489. ..Evidence, 8, 17.. . New Trial, 51. .Replevin, 38. Mulliken, Laurent v., x. 495. Muncy, Slover v., xxii. 391. Munday, Coonce v., iii. 373. Mundy v. Bryan, xviii. 29. .Execution, 90. " Bryan v., xiv. 458. .xvii. 556. Munford v. Wilsoti, xv. 540. ..Payment, 6 . Practice, 191. " V. Wilson, xix. &fi9.. Evidence, 63. . Practice, 60. Munn, Calloway v., vii. 567. Munson, Robards v., xx. 65. Murdoch v. Einney, xxi. 138 . .Aineadment 23. . Assignment, 3. .Evidence, 179.. Practice, 178. Murdock, The State v., ix. 730. Murphy, Aubuchon v., xxii. 115, " V. Camden, xviii. 122. .Partnership, 26. " City of St. Lous v., xxiv. 41. Clajk v., i. 114. " Dessaunier v., xxii 95— xxviL 48. " George v., i. 777. " Hobein v., xx. 447. " V. Murphy, i. 741 . . Partition, 20, 22, 23. " V. Murphy, xxiv. 526 .. .Administration, 12.. Witness, 70, 95. Murrain, Barton v., xxvii. 235. Murray v. Armstrong, xi. 209 . . .Landl/rrd and Tenant, 45. " Cason v., xv. 378. " EaUon v., xvi. 168. " v. Earthing, vi. 251 . .Assumpsit, 27. " V. Fox, xi, 555. .Ifraudk Conva/, 7 V. Laften, xv. 621 . .Execution, 6.. Jus Peace, 42. " Lee v., xii- 280. " V. OUver, xviii. i05 . .Evidence, 130, 131. Murrill v. Handy, xvii. i06.. BUU Ex and P Notes, 9. " Richardson v., vii. 333. Musgrave, Nelson v., x. 648. Musick V. Chamlin, xxii. 17 5. Jurisdiction, 53. " Hewes v., xiii. 395. " V. Musick, vii. 495. .Frauds and Peri, 26.. Witness, 29. " V. Richardson, vi. 171 . .Assumpsit, 23. " Rutter v., xvi. 316. " Watson v., ii. 29. Myers, Christy v., xxi. 112. ' Hastings v., xxi. 519. ' V. Hay, iii. 98. .Set-off, 2. ' V. Miller, iU. 586. Bonds Nand Accts, 48. Riggs v., XX. 239. V. Schneider, xxi. 77. .Practice, 99. The State v., xx. 409. Ixiv LIST OF CASES. Myers V. Woolfolk, iii. 348. .Appeal, 64. . .Jus Peace, 24. N. Nabb, Little v., x. 3. Nagel V. Nagel, xii. 53 . . Husb and Wife, 119. Nancy v. Trammell, iii. 306. . Chancery, 157. Nash V. Primm, i. 178. . Trespass, 5. Nat V. Coons, x. 543. . . Will, 3, 11. " V. Ruddle, iii. 400 . . . Freedom, 6. Nathan v. The State, viii. 631 . .:Grim Law, 61, 184. Nat. Bridge PI'k K. Co., Williams v., xxi. 580. Neal V. Smith, xxii. 349 .. . Costs, 37. " V. Stone, XX. 294 .. . Partitn, 9 . . Sale, 22. Neale V. McKinstry, vii. l%i. . .Evidence, 172 Practice, 213, 267. Neales v. The State, x. 498. . . Grim Law, 282 Dramshops, 14. Neams v. Harbert, xxv. 352. . . Contract, 42. Neat, Boston v., xii. 125. Neidenberger V- Campbell, xi. 359 Amend- ment, 18, 19. ..Pleading, 116. Neil V. Dillon, iii. 59 . .Justice Peace, 23 Pleading, 35. Nelson, Austin y., xi. 192. " T. Ba;nk of Missouri, yii. 219 Petition in Debt, 6. " V. Beveridge, xxi. 22 . . . Limitations, 52. " T. Brown, xxiii. 13. . .Execution, 17, 79,- 141 . . .Jurisdiction, 60. " Crinion v., vii. 466. " T. Goebel, xvii. 161 Revenue, 17, 18. " V. Johnson, xxv. 430. . . Damages, 4. " Little v., viii. 709. " V. Musgrave, X. 648... Libel and Slan- der, 4, 5. " North v., xxi. 360. " Patten v., xii. 292. ' " Powers v., xix. 190. " V. Knssell, xv. 356. .Admin, 90, 91, 168. " The State y., xix. 393. " Stewart v., xxv. 309i " Wales v., X. 19. " V. Wyan, xxi. 347 Interest, 16, 17. Nettles V. Sweazea, ii. 100. ...CWs, 19'.... Pleading, 50. " Sweazy v., ii. 6. Neuer v. O'Fallon, xviii. 277 .... Oamisht, 8, 9. Newbefty V. Melton, iii. 121 Appeal, 53; 55. Newby v. Platte County, xxv. 258 Laws, 23,27,28 Way,2S, 24. " Smith v., xiii. 159. Newell, Kean V., i. 754 — ii. 9. " The State v., i. 248. Newhouse, Walker v., xiv. 373. Newman, Doane v., x. 69. " V. Labeaume, ix. 29. . . .Arb and Ref, - ' 15, 18. ■ ' - " V. Lawless, vi. 279 . . ; . Bound and Des, 17. .Practice, 137, 250. ..Practice Sup Ct, 14. " Lawless v., v. 236. " V. Mays, xxvii. 520 Practice, 164. " y. Studley, v. 291 .. . .Evidence, 7, 53. " Swearingen v., iv. 456. Newsom, .Howard v., v. 523. Nicholas. Armonett v., v. 557. Nicholas v. The State, vi. 6 . . .Practice, 210. . . Practice Sup Ct, 25. Nichols V. Douglass, viii. 49 Bond, 9 Secur, 21. " V. St. Louis Circuit Court, i. 357 Mandamus, 4. .Recog, 5. " Tindle v., xx. 326. Nicholson, Glasgow v., xxv. 29. Niedelet v. Wales, xvi. 214 Landlord and Tenant, 2S. Nifong, Calloway v., i. 223. ■Noble, Goodfellow v., xxv. 60. " Johnson v., xxiv. 252. " V. St. Bt. St. Anthony, xii. 261 Boats and Vesss's, I. Noel, St. Bt. Eureka v., xiv. 513. Noland, City of Independence v., xxi. 394. " Sublette v.,'v. 516. Nolley V. Callaway- Couniy Court, xi. 447 . . . Bond, 16-18... Evidence, 2, 9 Securities, 51. Nolte, Conway v., xi. 74. Noouan v. Hartford F. Ins. Co., xxi. 81 hisurance, 38. Norcoms, Youse v., xii. 549. Norcum y. D'CEnch, xvii. 98. . Ohanpen/, 90. . Devise and Legacy, 5,' 6,'. .Eject- Meni, 49. . Will, 19, 20. " V. Gaty, xix. 65 . . . Conveg, 78 . . .Sus- bandand Wife, 72..Limitatns, 75. " V. Sheahan, xxi. 25 ... . Husband and Wife. 72 . . Limitations, 75. North, Brown v., xxi. 528. " Coons v., xxvii. 73. ■ " Kannada v., xiv. 615. ■ , " V. Nelson, xxi. 360. .Practice, 35. • " The State v., xxvii. 464. North Mo. K. K. Co., Dunn v., xxiv. 493. " " V. Gott, xxv. 540. . .Local Decisions, 5, 6. " " V. Lackland, xxv. 515... Laws, 29 . . . Local De cisions, 3, 4. " " V. Eeynal, xxv. 534. Costs, 31 . .Laws, 29. .Local Decisions, 3,4. Northcott, Thompson v., i. 224. Northcut, Turner, v. ix. 249. Northcutt V. Northcutt, xx. 266. . Will, 7. Norton v. The State, iv. 461 . . Crim Law, 107. Nowlin, Foster v., iv. 18. Noyes, Boston v., xii. 125. Nuckolls, Chouteau v., xx. 442. " Lewis v., xxvi. 278. Nueslein, The State v., xxv. 111. Nunn, Kobinett v., ix. 244. O. O'Blennis v. The State, xii. 311. . . Crim Law, 86. O'Brien v. Union Fire Co., vii. 38. .Jurisdic- tion, 51. O'Bryau v. O'Bi-yan, xiii. 16. . Rush and Wife, X15. .Prac SUp Ct, 91. O'Donoghue v. Corbv, xxii. 393. . Trover, 16, 28,31. O'Fallon, Bennett v., ii. 69. " Benton v., viii. 650. LIST OF CASES. Ixv O'Fallon v. Boismenu, iii. 405 . . . Landlord and Tenant, 22. " Clamorgan v., x. 112. " V. Dasgett, iv. S-iS.. Riparian Bights, 1. " T. Elliott, i. 36+.. Afortjfl^e, 71. " Graham v., ill. 507 — Iv. 338,601. " V. KeiT, X. 5.")3 Bonds, Notes and Accts, 50. " Kiank v., i. 481. " McNiiir v., viii. 188. " Neuer v., xviii. 277. " Siokes v., ii. 32. " SwiUi v., vii. 231. " T. Tucker, xili. 262 . . . Dses and Tr, 22. O'Hanlon v. Perry, ix. 794. .PMic Lands, 23. " Periy v., xi. 585. O'Hara, Block v., i. 145. O'Neil, Hamilton v., ix. 10. O'Reilly. Owen v., xx. 603. Obear, WimtT v., xxiii. 242. Ober V. Howard, xi. 425 .... Chancery, 49. " V. Pratte, i. 8 Recog, 4. " V. Pratte, i. 80. . . .Depositions, 2. Obouchon v. Boon, x. 442. . . .Practice, 258. OdeU V. Gniy, xv. 331.... BUls Ex and P Note , 7, 50. " T. Pre.sbury, xiii. 330 BiUs Ex and P Notes, 42. Odle v. Cliirk, ii. 12. . .Jus Peace, 5, 6. Offatt V. John, viii. 120 Judgment, 24. Oldham t. Henderson, iv. 295. .Evidence, 115 N Tiial, 5l Partnership, 37 Set-off, 14. Smith v., V. 483. " V. Trimble, xv. 225 Admin, 21. . . Chancery, 163. . . Guard and Cu- rators, 8, 15. Oliphant, Rankin v., ix. 237. Olive v. Alter, xiv. 185 Bond, 4. Oliver v. Crawford, i. 263 Admin, 18, 19. " Jeffers v., v. 433. " Murray v., xviii. 405. " Simonds v., xxiii. 32. Orme, Magellan v., vii. 4. " V. Shephard, vii. 606 Pleading, 91. Ormeshy, Bailey v., iii. 580. Ormrod, City of Boonville v., xxvi. 193. Ormsbee, Andrews v., iii. 400. Ome, Swearingen v., viii. 707. Orr, Huston v., i. 582. Orton, McDaniels v., xii. 12. Osbern, Men-e v., v. 544. Osjiood, Kimm v., xix. 60. Otis, Moore v., xviii. 118 — xx. 153. Ott v. Garland, vii. 28. ..see Omitted Cases, p. vi. " V. Soulard, ix. 573. . .Evidence, 20. . .Prac- tice, 138, 139 . .Pub Lands, 37, 102, 148. Ovenhoose, Menkens v., xxii. 70. Ovorbeckv. Galloway, x. 364 Roods and Highways, 15, 16. Overfield v. Bullitt, i. 749. ..Admin, 115.. Re- pleDin, 1. " Bullitt v., ii. 4. Overstrcet v. Shannon, i. 529. .. Judgment, 55. Overton v. Curd, viii. 420. . . Contract, 36, 37. " V. Davy, XX. 273 .. . Devise Sf Leg, 23. " Hughes v., vi. 60. Overton, v. Johnson, xvli. 442. .Admin, 130. . Jurisdiction, 34—36. " Long v.. vii. 567. " V. McFarland, xv. 312. . Jurisdictn, 14. " y. Stevens, viii. 622 ... Chancy, 1, 75, 110. " v. Webster, xxvi. 332. . .Fraud, 25. . . Practice, 122. " V. Woodson, xvii. 453. . .Secur, 31. Owen, Cockrill v., x. 287. " Ex parte, vii. 193. . . Crim Jmw, 402. " V. O'Reilly, xx. 603. .Afas< ana Serv, 4 . .Practice, 159. " The State v., xv. 506. Owens, Franse, xxv. 329. " v. Geiger, ii. 39 . . Bailmt, 9 . Pleadg, 7, 22. Snell v., iii. 225. " V. Tinsley, xxi. ii3 . .Practice, 36. .Prac Sup Ct, 4:0.. Venue, 9. Ownsby, Davis v., xiv. 170. Owsley, Draper v., xv. 613. " V. Smith, xiv. 153. .Partition, 24. Oyster v. Shumate, xii. 580. ..Judgmt, 13, 14. Paca V. Dutton, iv. 371 . ..Emancipation, 4. . . Record, 1, 2. Pacific Ins. Co., Bowman v., xxvii. 152. Pacific Railroad v. C;irvstal, xxv. 544 Way, 24. " " Gorman v., x.xvi. 441. " " V. Governor, xxiii. 353 Lams, 1 4 . ilandiimus, 1 9. " " V. Hughes, xxii. 291 . . Cor- poration, 9, 12. " " Leimer v., xxvi. 26. " " Reagan v , xxi. 30. " " V. Renshaw, xviii. 210 Corporation, 9, 10. Packwood, The State v., xxvi. 340. " v. Thorp, viii. 636...i^or Entry and Det, 7. Paddleford v. Dunn, xiv. 517 . Limitations, 66. Page V. Belt, xvii. 263. .SAcri^, 10. " Bouldin v., xxiv. 494. " Bnrris v., xii. 358. " V. Butler, xv. 73. . .Execution, 64... Wit- ness, 67. " V. City of St. Louis, xx. 136. . Chancery, 100. " Dick v., xvii. 234. " V. Freeman, xix. 421 . . Breach Peace, 6 . . f leading, 140. " V. Gaidner, xx. 507 . .Assignment, 39, 40. " HalloweU v., xxiv. 590. " Harrison v., xvi. 1 82. " V. Hill, xi. 149 . . Eject, 44, 46 . . Estop, 21 Pub Lands, 195, 196. " Ilogan v., xxii. 55. " V. Kankey, vi. 433. Witness, 2. " V. Lathrop, xx. 589 . . Agency, 4, 28 . . Bills Ex and P Notes, 31 . " Lyon v., xxi. 104. " Maguire v., xxiii. 188. " V. Page, xxiv. 595 . . Damages, 13 . .Plead- ing, 148. .Process, 32. " Picot v., xxvi. 398. " Price v., xxiv. 65. " Sawyer v., xxiv. 595, Ixvi LIST Of cases. Page V. Scheibel, xi. 167. .Bound and Des, 5. . ^ub Lands, 59, 60, 63, 66, 94, 109, 126, 127. " V. Snow, xviii. 126.. Bills Ex and Prom Notes, 90, 93. " V. The State, vi. 205 . .Peddlers, 1, 2. " The State v., xix. 213 — ^xxi. 257. " Swartz v., xiii. 603. Palmer, Arnold v., xxiii. 411. " V. Crane, viii. 619. .Enor, 25 . .Sheriff, 8. " V. Crane, ix. 266 . . Error, 25 . . Sher^, 8. " Haile v., v. 403. " V. Hunter, viii. 512 Jus Peace, 40. . . Libel ^.Slan, 20, 21. .Pleading, 115. The State v., iv. 453.- " Warren v., xxiv. 78. Papin, Boyce v., xi. 16. " V. Hines, xxiii. 274. . .Pub Lands, 65, 76, 97,157. " V. Howard, vii. 34. ..Appeal, 67. " V. Massey, xxvii., 445 . . . Pub Lands, 77, 118, 119. ..Prac Hup Court, 24. " Montague v., i. 757. " r. Euelle, ii. 28. . . Trespass, 8. " Sarpy v., vil. 503. " firici v.,xi. 42. Parke V. Leewright, xx. 85. . . Chancy, 34, 35. Parker v. Evans, xxiii. 67 . . . Strays, 4, 5. " Lee v., XXV., 35. " Maupin v., iii. 310. " McClellan v., Xxvii. 162. " Mitchell v., XXV. 31. " V. Raymond,xiT. 535.. iandZ^ 7'cn,51 " V. Simpson, i. 539 Judgment, 3 Pleading, 105. Parkinson v. St. Bt. Robert Fulton, xv. 258. . Bo'its and Ves, 80. Parke, Boussin v., viii. 528. " V. The State, vii. 194. . .Debt, 9. . .Limi- tations, 21...Secur, 19. Parmer v. Moore, i. 1 76 . . . Bail, 4. " V. Moore, i. 706. . .Bail, 6. Parmlee, St. Bt. Time v., x. 586. Parsons v. Hill, viii. 135. . .Infants, 12. " Steele v., ix. 813. " V. Wilkerson, x. IIS. .Chancery, 174. Pasbhall, Ferguson v., xi. 267. Patchin, MciS'eilly v., xxiii. 40. " Plahto v., xxvi. 389. " V. Wegman, xix. 151 . . .N Trial, 42. Patrick V. Abeles, xxvii. IM... Jurisdiction, 6 Mechanics' Lie'n, 28- " V. Balientine, xxii. 143. Mec Lien, 11. " Burns v., xxvii. 434. " Hutchison v., iii. 65. " V. St. Bt. J. Q. Adams, xix. 73. . . . Boats and Ves, 91 . .Evidence, 185 . . Witness, 86. Patten v. Nelson, xii. 292. .Appeal, 68. Patterson v. Brock, xiv. 473. . Chancery, 62. " V. Camden, xxv. 13. . Contract, 5.. . Partnership, 50. " Hubble v., i. 392. " V. Judd, xxvii. 563 . . Contract, 22 , v. McClanahan, xiii. 507. .Practice, 11 9.. Prac Sup CU, 62. " Sickles v., xviii. 479. Patton, Farrar v., xx. 81. " Mason v., i. 279. Patton, Roberts v., xviii. 485. Paul, Black v., x. 103. " Carlin v., xi. 32. " V. Carroll, xii. iSl . .Set-off, 34. " Carroll v., Xvi. 226— xix. 102. " V. Chouteau, xiv. 580. Uses and Trusts, 4. " Chouteau v., iii. 260. " V. Edwards, i. 30. . Covenartt, 1 . .Partner- ship, 33. " V. Fulton, xxv. 156 . . Chancery, 143. Con- ances, 47 . . Jurisdiction, 62. " Hill v., viii. 479. " Jones v., ix. 290. " The State v., xxi. 51. Paulding v. Grimsiey, x. 210. .Pub Lands,i6. Paulsel, Clendennen v., iii. 230. Paulsell, Miller v., viii. 355. Pavey v. Burch, iii. 447. . Covenarit, 6, 31 Practice, 154. Paxton, Doniphan v., xix. 288. Payne, Bircher v., vii. 462. " V. Clark, xix. 152 Banking, 8. " V. Clark, xxiii. 269 Interest, 9. " V. Collier, vi. 321 Practice Saprme Court, IS . . .Process, 8. " V. Snell, iii. 409 Attachment, 24. " V. iSnell, iv. 238 Bond, 27. " The State v., iv. 376. " V. St. Louis County, viii. 473. .Luids, 48. Peacock v. Smart, xvii. 402. .Desc andtHs, 4. Peakev. Redd, xiv. 79. . Courts, i. .IMwei;M. Pearce v. Bums, xxii. 577 Practice, 176. " V. Uansforth, xiii. 360. . . Conveyances, 20,36. .Lien,16. .Practice, 67, 156 " V. Meyers, iii. 31 Roads and High- ways, 9, 10. " V. Roberts, xxii. 582 Practice, 176. " V. Roberts, xxvii. 179 . . .AgenSy, 44. Pearson, Bradford v., xii. 7l. " Brown v., viii. 159. " Gale v., vi. 253. " V. Inlow, xx. 322 Trespass, 35. Pease, Shelton v., x. 473. Peay V. Sublet, i. 449 Fraudulent ConVa/- ances, 1. Pecare v. Chouteau, xiii. 527 .... CaoeikM, SS. Peck, Davidson v., iv. 438. " Hensley v., xiii. 587. Peebles, Benson v., v. 132. Peebley, Crook v., viii. 344. Peers, St. Francois County v., xiv. 537. Peery v. Cooper, viii. 205 .... Chancery, 40.. . Contract, 64. " V. Moore, xxiv. 285 Action, 17 Depositions, 30. Pegram, Benny v., xviii. 191. Pemberton, Milan v., xii. 598. " V. Pemberton, xxii. 338 . . Fraudulent Conveyances, 13. " V. Staples, vi. 59. .Fraud, 14. Pembridge v. Manter, xiii. 586 . . see Wfbstd- v. McMahan, xiii. 582. Pendleton, Arthur v., vii. 519. Peneston, Blue v., xxiv. 240. Penix, Bryson v. xviii. 13. Penn v. Watson, xx. 13 Evidence, 182... Limitations, 55. . Witness, 69. Pennington V. Castleman, vi. 257 Limita- tions, 29. LIST OF CASES. Ixvii Penniston, Blue v., xxrii. 272. " Kogers v., xvi. 432. Penrose v. Green, i. 774. .Replevin, 37. Pensenneau v. Pennsenneau, xxii. 27 . . . Chan- cery, 20. .Hitsb and Wife, 88 . .Pleading, 176. Peppery. Carter, xi. 540. Frattdlt Convey, 2, 29. " The State v., vii. 348— viii. 249. Perkins, Ashabramner y., ii 188. " V. Carter, xx. 465. .JSusb and Wife, 80. " Fenton t., iii. 23, 144. " Landes v., xii. 238. " Lutes v., vi. 57. " V. Eeeds, viii. 33. .Assumpsit, 41 . .Bail- ment, 4, 5. " Thurston v., vii. 29. " V. Woods, xxvii. 547 . . Mortgage, 49. Perpetual Ins. Co., Blair v., x. 559. " " V. Campbell, x. 141.... see Same v. Cohen, ix. 416. " " V. Cohen, ix. 416, ..dtocAm*, 34. . .Banking, 7. . .Evi- dence, 40 . . Gamisht, 24, 30. . Prac Sup Court, 26. " " Cohen v., xi. 374. " " Curie v., xii. 578. " " Edwards v., vii. 382. " " V. Ford, xi. 295 . . . Boais and Va?, 19-21. " " V. Goodfellow, ix. 149 Cor/ioration, 14-16. " " T. Maguire.x. 141. .seeSame V. Cohen, ix. 416. " " Moore v., xvi. 98. " " Koussin v., xv., 244. " " Settle v., vii. 379. " " The State v., viii. 330. " v. St. Bt. Detroit, vi. 374. . . Boats and Ves, 62. Perrin v. Claflin, xi. 13 . . . Trespass, 12. " T. Wilson, ix. 1 47 . . . Practice, 63. " T. Wilson, X. 451 . . .Par. ^ Child, 5-8. Perryv. Alford.v. 503. .Appeal,14.. Error, 15. " V. Barrett, xviii. MO.. Bills Ex and P Notes, 17, 33, 102. ..Secur, 14. " T. Beard, i. 637. . Verdict, 1. , " v. Beardslee, x. 568 .. . Bailment, 5. " Beardslee v., xiv. 88. " V. Block, i. 484. . .Appeal, 1, 2. .Evid, 1 , . .Jus Peace, 38. . .Practice, 124. " V. Calvert, xxii. 361 Fraudulent Con- veyances 56. " T. Craig, iii. 516. .Bailment, 15. " Hicks v., vii. 346. " V. O'Hanlon, xi. 585. ..Pvi Lands, 24, 25, 27, 28. " O'Hanlon v., ix. 794. " V. Ferryman, xix. 469. . .Dower, 27. " V. Price, i. 553 . . Convey, I . . Covenant, 46. " V. Price, i. 645. . . Corporation, 18. " V. Price, i. 664. . . Corporation, 19, 20. " Price v., i. 542. " Rankin v., v. 501. " v. Roberts, xvil. 36 Evid, 42, 90 Practice, 82 . . Set-off, 24 . . Venue, 6. " V. Roberts, xxiii. 221 . .Action, 35. Perry County v. Logan, iv. 43i.. Jails and jailers, 1, 3. Perryman, Perry v., xix. 469. Ferryman v. The State, viii. 208 Judgt, 16. . .Justice Peace, 39. .Process, 15. " Wad.ow v., xxvii. 279. Perselly v. Bacon, xx.. 330 . Libel and Slander, 9. Peter v. King, xiii. 143. .Admin, 85. Peters v. Carr, xvi. 54. . Will, 18. " v. St. Louis and Iron Mountain R. R. Co., xxiii. \07..Laws, 44.. Bail- roads, 1. " V. St. Louis and Iron Mountain E. R. Co., xxiv. 586. .Baitroads, 2-4. Willi v., xi. 395. Peterson v. Laik, xxiv. 541 Eject, 35 Infants, 11. " Mullanphy v., i. 758. Petit v. Bouju, i. 64. .Trover, 1. Fettibone, Simonds v., iii. 330. Fetticrew, The State v., xix. 373. Fettigrewv. Shirley, ix. 675.. Pub Lands, ^S. Pettis County v. Kingsbury, xvii. 479 Contract 16. Pettit, Cravens v., xvi. 210. Pettus, Bartktt v., iii. 345. " Curie v., vi. 497. " V. Elgin, xi. 411 . .Execution, 15. " Stewart v., x. 755. Petty, Wilson v., x.\i. 417. Peyton v. Kogers, iv. 254. .Breach Peace 1. Pfeiffer v. Kingsland, xxv 66 . . Guaranty, 4. Phelps V. Hawkins, vi. 197. . . .Judgment, 2. " V. Kelfe, xviii. 479. . . .Practice in Su- preme Court, 77. " V. Relfe, XX. 479 Mortgage, 26. " V. St. Bt. Eureka, xiv. 532 ... . Boats and Ves, 10 Evidence, 136. " V. Tappan, xviii. 393 Execution, 31. Fhilipson v. Bates, ii. 1 1 6 . . . . Assumpsit, 19... Evidence, 31 . . . .Reioi'd, 16. " V. Mullanphy, i. 620 . . Fixtures, 5. Mullanphy v., i. 188. Fhillebart v. Evans, xxv. 323 Practice, 5 Process, 33. Phillips, Bank of Missouri v., xvii. 29. " City Bank of Columbus v., xxii. 85. " V. Edmonson, xvii. 579.. .Execution, 98. " Emory v., xxii. 499. " V. Hunter, xxii. 485 Admin, 126.. . Slaves and Sla, 32. " V. Jones, XX. 67 Contract, 18. " liOgan v., xviii. 22. " V. Moore, xi. 600 Chancery, 50. " y. Protection Ins. Co., xiv. 220 7ns, 34, 36, 37, 50. " V. Riley, xxvii. 386 . . .Securities, 18. " V. Russell, xxiv. 527 Admin, 88. " Smith v., xxv. 555. The State v., xxiv. 475. " V. Towler, xxiii. 401 Action, 49 Master and Slave, 12. " V. Townsend, iv. 101.. .Repleoin,24, 25. Fhipps, Clayton v., xiv. 399. Phoenix Ins. Co., Harper v., xviii. 109 xix. 506. ' " Honniik v., xxii. 82. Pickett V. Everett, xi. 568 Husband and Wife, 29. Louisiana and Frankford P. R. Co. v., xxv. 535. Ixviii LIST OF CASES. Picot V. Masterson, xii. 303. ..For Entry and Det, 4. " V. Page, xxvi. 398. . . Conveyances, 80. , Fartition, 24. " V. Signiago, xxii. 587. .Securities, 35. " V. Signiago, xxvii. 125. .Record, 33. Picotte V. Cooley, x. 312. .Dower, 52. Pievcifield v. Snyder, xiv. 583 .. Practice, 195. Pierre, Chouteau v., ix. 3. Pigg, Thoraton v., xxiv. 249. Pillard v. Darst, vi. 358. .. ..Bonds iV and Accis, 61. Pinkston v. Stone, lii. 119. . .Amendment. 4. . . Debt, 1 ..Judgment, 69. Pipkin V. Allen, xxiv. 520. .Prac lx. 269. . .Execution, 32. . . Hiisb and Wife, 13.. Infants, 10 Moiigage, 42. Schnerr v. Lemp, xix. 40 . . . r'onlrad, 40. Schoeffler, Damey v., xx. 323 — xxiv. 170. School Township No. 6, Wilson v.. xxiii. 416. Schott, Bland v., v. 213. Schreiber, Alexander v., x. 460 — ^xiii. 271. " Drelier v., xv., 602. " Lackey v., xvii. 146. Schroeder v. Clark, xviii. 18*. .Executn, 60, 61. Schropshire v. Loudon, xxiii. 393. . .Emanci- pation, 2. Schulenberg v. Campbell, xiv. 491 Deuise and Lei/, 1 . . .Re/jlivin, 10, 11, 17. Schnlenburg v. Gibson, xv. 281 . . Mec l.ien, 13. Schulters v. Bockwinkle, xix. 647. . Chancery, 31 . . . Prac Sup Court, 68. Schultz, Clark v., iv., 235. " V. Ijindell, xxiv. 567. . .Pub Lands, 168. Schwartz v. Dryden, xxv. 572. . Partition, 24. Schwenderman, Griffith v., xxvii. 412. Scogin V. Hudspeth, iii. 123 .. .Practice, 81 . . . Set-qf, 11. Scoggins V. Wilson, xiii. 80. . Practice, 257. Sconce, Beauchamp v., xii. 57. Scott, Anderson v., ii. 15. " Arnold v., ii. 13. " T. Bailejf, xxiii. 140 Deed of Trust, 2 Eoidence, 81. " Bank of Missouri v., i. 744. " Bell v., iii. 212. " Bogliolo v., V. 341. " V. Brockway, vii. 61 ..New Trial, 54. " v. Emerson, xv. 576. ..Freedom, 6. " English v., i. 403, 495. " Gordon v., xv. 249. " v. Governor, i. &%(,... Admin, 26, 40, 41. " Haley v., xviii. 202. " Hammond v., xii. 8. " V. Hill, iii. 88. . Garnishment, 1, 47. " V. Jackson, ii. 104. . . Mortgage, 54. " V. Mc('ulloek, xiii. 13. ..iien, 2. " Pratte v., xix. 625. " The State v., xvii. 521. " Tennessee Ins. Co. v., xiv. 46. " Wade v., vii. 609. " V. Whitehill, i. (m ... Execution, 13. " V. Whitehill, i. 764... Jtic^menf, 40. Woodson v., XX. 272. Ixxiv LIST OF CASES. Scripps, Davis v., ii. 187. Scroggin v. Holland, xvi. 419. . .Seatrities, 34 . . Witness, 102. Scudder, Destrehan v., xi. 484. " V. Johnson, v. 551 . . .Arband Ref, 2. Scull, Hamilton v., xxv. 165. Searcy, Chouteau, v., viii. 733. " V. Revine, iv. 626...Praefecc, 311. " V. Platte County, x. 269 . .Attacht, 38, 57. " The State v., xx. 489. Se^rgent, Lacompte v., vii. 351. Seat, Houx v., xxvi. 178. Seawell, Ferguson v., i. 256. , See Y. Bobst, ix. 28 ArAendment, 9. " V. Cox, xvi. 166 Pleading, 141. " Skinner v., xxi. 517. " Stewart v., xxi. 513. Segond V. Garland, xxiii. 547. . .Husband and Wife, 50, 66. . .Jurisdiction, 61. Seibert, Lackey, v., xxiii. 85. Self V. Gardner, xv, 480 . .Ziibd qnd Slander, 38 Sell, Little v., xiii. 577. Sellick V. Inhabitants of Fayette, iii. 99 Corporation, 31, 43. " Little v., xvi. 269. Selmes, Pomcroy v., viii. 727. " V. Smith, xxi. 526. . . .Execution, 68. Semple, Little v., viii. 99. Ser V. Bobst, viii 506 For Entry and De- tainer, 40, 41. Servoss, Hibler v., vi. 24. Settle, t'lir'tis v., vii. 452. " V. Davidson, vii. 604 Payment, i, " V. Perpetual Ins. Co., vii. 379. . . .7ns, 42. Settles, Eoach v., xix. 397. Sexton V. Monks, xvi. 156. . .Exfcution, 38.. . Pleading, 135. Seymour, Little v., vi. 166. " Walker v., xiii. 592. Shackleford v. Smith, xxv. 348 see Ycimg V. Smith, xxv. 341. Shaffner v. Jeffries, xviii. 512 . . Corporation, 11. Shafroth, City of Fayette v., xxv. 445. Shands, City of St. Louid v., xx. 149. " Jaccard v., xxvii. 440. Shannon, Ayres v., v. 282. " Carmster v., ii. 94. " Childs v., xvi. 331. Hall v., xix. 401. " Overstreet v., i. 529. Shapleigh v. Baiird, xxvi. 322 . .Assignment, 27. " The State v., xxvii. 3.44. Sharp V. Colg^n, iv 29. . .Amendmfini, 16 Cuvenant, 32. " Colgan v., iv. 263. " Dunniea v., yii. 71. " Sargent v., i. 601. Shaver, Jones v., vi. 642. Shaw v. Burton, v., 478. .Pleading, 40. " Daggett v., iii. 264. " Diepenbrock v., xxi. 122. " Gray v., xiv. 341. " Live.ngood v., x. 273. Sheahan, Norcum, v , xxi. 25. Shehane, The State v., xXv. 565. Shelby, The State v., i. 694. Shelton v. Church, x. 774. . Chancery, 27, " V. Ford, vii. 209 Practice, 293. . , Witness, 91. Shelton t. Maupin, xvi.' 12^. .Boupd and D(s, 2-4. " V. Pease, x. 473 . . . Banhruptcy, 4-7 . . Covenant, 41, 49, 51. " Weimer v., vii. 237. " Wimer v., vii. 266. Shepard v. Bank of Missouri, xv. 143. -Eiiifl, 178.. Laws, 56 . . . Practice Sup Court, 21. " V. Citizens' Ins. Co., viii. 27?. . Bitts Ex and Prom Notes, 65. . .New Trial, 43. " V. City of St. Louis, xx. 589. .Judg- ment, 83,. . " V. Martin, xxv. 193 Lqmfiord arid Tenant, 55. " Eobinson v., viii. 13.6. Shephard, Orme v., vii. 606. Shepherd, McCartney v., xxi. 573. " Morrow v., ix. 213. " Y, Trigg, vii. 151.. Sale, 7. Shepley, Kenuerly v., xv. 640. Sheppard, Blunt v., i. 219. " Sheriff, Brown v., i. 154. " Dobbyns v., v. 256. Vallad v., ii. 26. Sherman, Chouteau v., xi. 385. Sherwood v. Hill, xxv. 391 Admin, 4.5,. . . Witness, 102. Shields, Able v., vii. 120. ' "' V. Ashley, xvi. 471 . ..Admin, 128, 129. . Jurisdiction, 32. " V. Bpgliolo, vii. 134. . Costs, 30. Difm, 16. •■' The State v., xiii. 236. Shiaett, The State v., xx. 415. Shipley, Bobb v., i, 229. Shipp V. Stacker, viii. 14^.. Bills of Ex and Prom Notes, 44. . lend^, 3. Shirley, Finney v., vii. 42. " Pettigrew v., ix. 675. Shitle, Frazer v., i. 575. Shoab, Bogy v.^ xiii. 365, 627. Shobe V. Morris, vi. 489. .New Trial, 51. Shoemaker, The State v., vii. 177, 286, Sholar v. Smyth, iii. 41 6. i-.i^or- Entry and Detainer, 36. Shook, Speilman, v., xi. 340. Shoot, Draper v., xxv. 197. Shore v. Coons, xxiv. 553. .Admin, 73, 77. " V. Coons, xxiv. 556. .Practice, 201. " V. The Stated vi. 640. . Crim Law, 241, 242, 259. Shoults V. Baker, vii! 350 Practice, 14. Shoultz, The State v., xxv. 128. Shreve, Laurence v., xxvi. 492. " V. Whittlesey, vii. 473. . .Limitations, 1 Practice, 286. Shrever v. Livingston County, ix. 195 Error, 27. Shropshire v. Glascock, iv. 536 Gaming, 2. , " Withers v., xv. 631. Shroyer v. Barkley, xxiv. 346 ArUtror tions and Ref, 20. " McClure v., xiii. 104. Shuman, Hatry v., xiii. 547. Shnmate, Oyster v., xii. 580. Sibley v. Casey, vi. 164 Mec Lien, 1, 18. Sibly V. Hood, iii. 290 Sale, 7, 11, 13. LIST OF CASES. Ixxv Sickles T. Abbott, xxi. 443 . . . Practice Su- preme Court, 22. " V. MoMiinus, xxvi. 28. . . .Admin, 24. " V. Patterson, xviii. 479. .Prochcc, 188. Sigorson, Almeida v , xx. 497. " Bull v., xxiv. 53. " Cliarpiot t., xxv. 63. " Edgell v., XX. 494 — xxvi. 583. " T. Harker, XV. 101 Safe, 3, 10. " V. Homsby, xiv; 71 ... . Trespass, 4. " V. Hornsby, xxiii. 268 . .Pub Lands, 162 " V. Pomeroy, xiii. 620. . .Agency, 39, 41. " Pomeroy v., xxii. 177. Sights, The State v., vii. 321. Signiago, Picot v., xxii. 587 — xxvii. 125. Silver v. St. Bt. Elk, vi. 557 Boats and Vessels, 67, 100. Simmons, Bates v., ifi. 267. " V. The State, xii. 268. . .AOy at Law, 6 . . . Laws, 21 . Woods v., XX. 363. • Simms v. Lawrence, ix. 657 ... . Bonds, Notes and Accounts, 41. Simonds v. Beaachamp, i. 589 . . Covenant, 25, 26. . .Evidence, 71. Bell v., xiv. 100. " Goodman v., xix. 106. Harrold v., ix. 323. " Hant v., xix. 583. " V. Oliver, xxiii. 32. . .Practice, 207. " V. Petiibone, iii. 330. .Admin, 86. " The State v., iii. 414. Simpson, Bank of Edwardsville v., i. 1 84. " Coggburn v., xxii. 351. " Mullanphy v., iii. 492— iv. 319. Parker v., i. 539. " V. Savage, i. 359. . .AvMioneers, 1. " V. Simpson, xxvii. 288. . . Will, 5. Singleton, Buckham v., x. 405. " V. Fore, vii. 515. . .Evidence, 32. " V. Mann, iii. 464. ..Bonds. Notes arid Accounts, 93... Husb and Wife, 53.. New Trial, iO. Sinklear, Lowe v., xxvii. 308. Sipp V. St. Louis CSrcuit Court, i. 356... .Ap- peal, 38. Sisk V. Cunningham, viii. 132. . . Contract, 41. " V. Evans, viii. 52. . .New Trial, 59. Siter, Benoist v., ix. 649. Skaggs, Ex parte, xix. 339. . .Error, 27. Skinner, Boyle v., x vii. 246 —Xix. 82. " V. Ellington, xv. 488. .Practice, 173. " V. Henderson, x. 205 . . Contract, 66 Conveyances, 86. " Henderson v., xiii. 99. " V. Hughes, xiii. 440. ..Slaves and Slav- ery, 33, 34. " V. Platte County, xxii. 4,31 .Merest, 10. " V. See, xxi. 517. . Costs, 14. " V. Stouse, iv. 93. .Replevin, 4, 6. " v. Thompson, xix. 528. .Attachment, 70. " T. Thompson, xxi. \5 . . .Atutchment, 71. " Woodson v., xxii. 13. Slagle, Davis v., xxvii. 600. Slate, The State v., xxiv. 530. Slater, The State v., xxii. 464. " V. St. Br. Convoy, x. 513. ..Appeal, 58. . Becogninance, 17. Slicer, Swearingen v., v. 241. Sloan v. Forse, xi. 126. .Attachment, 42, 68. " V. Gib-on, iv. 32 Pleading, 6 . . War- ranty, 7. " Hayden v., iii. 328. " McCourtney v., xv. 95. " V. Sloan, xviii. 474. . .Prac Sup Ct, 77. Sloane v. Moore, vii. 170. .For EnandDet, 6. Sloss, The State v., xxv. 291. Slover V. Mnncy, xxii. 391 . .Roads and High- ways, 13, 14. Slowey V. McMurray, xxvii. 113. . .Sale, 1, 2. Slusher, Hockensmith v., xxvi. 237. Smales, Casey v., iv. 77. Small V. Hempstead, vii. 373 . .Prac Sup Ct, 9. " Stewart v., v 525. Smallwood, Gearhart v., v. 452. Smart v. Fisher, vii. 580. .Admin, 166. " Peacock v., xrii. 402. Smith V. Anthony, v. 504 Appeal, 79 Guaranty, 5. " V. Ashby, xx. 354 Bonds, Notes and Accts, 103. " V. Benton, xv. 371 . . .Limitations, 34. . . Pleading, 159. " Blair v., xvi. 273. " V. Bogliolo, V. 344 . . Limitations, 62. " Boycfe v., xvi. 317. " V. Brinkerj xvii. US.. . .Landlord and Tenant, 39. Buford v., vii. 489. " V. Busby, XV. 387 Contract, 58 Vendor and Purchaser, 3. " Cavin v., xii. 444 — ^xxiv. 221. " Chamberlain v., i. 718. " Chamberlin v., i. 482. " Chambers v., xxiii. 1 74. " V. City of St. Louis, xxi. 36.. .Riparian Rights, 2. " City of St. Louis v.. ii. 113— x. 438. " Creath v., xx. 113. " Davis v., XV. 467. " -ir. Davis, xxvii. 299.. Partition, 12, 16. " V. Dean, xix. 63. . . .Bonds, Notes and Accts, 67 . .Limitations, 59. " Dennison v., xxvi. 487. " V. D'Lashmutt, iv. 103. . Chancery, 111. " Dube v., i. 313. " V. Grove, xii. 51 . .Action, 55. . . .Juris- diction, 49'. " V. Harley, viii. 559... Bonds, Notes and Accis, 57. " V. Hart, i. 273.. PZcaA'n^, 106. " Hook v., vi. 225. " V. Isaac, xii. 106 .. Heirs, -2 ... Uses and Trusts, 14. " Jamison v., iv. 202. " Johnson v., xxvii. 591. " V. Keenan, xiv. 529 . .Berognizance, 11. " V. Kennett, xviii. 154. . Tort, 1, 2. " Kritzer v., xxi. 296. " V. Matthews, vi 600. .New Trial, 15. " Maupin v., vii. 402. " V. McConathy, xi. 517. .Nuisance, 2-5. " Meegaav., xxii 150.. Bailment, 12. " Miles v., xxii. 502. " Milly v., ii. 36, 171. " V. Moritreil, xxvi. 578. .Becog, 14. " Morrison v., xiii. 234. " Morrow v., x. 308. Ixxvi LIST OF CASES. Smith V. Mounts, i. 671 . .Evid, 171. " v. Mounts, i. 714. . Convey, 21. " V. Myers, xix. 433. . Contract, 46. " Neal v., xxii. 349. " V. Newby, xiii. 159 Limitations, 2, 47-49. " V. Oldham, v., i83.. Bonds, Notes and Accts, 82. " Owsley v., xiv. 153. " V. Phillips, XXV. 555. .Evid, 56. " Reese v. xii. 344. " T. Rice, xxvii. 50^) ., Securities, 29. " V. Rollins, XXV. 408. ..Judgment, 89... . Practice, 8. . Process, 30. " V. Ross, vii. 463. . . .Judgment, 75. . . . Pleading, 91. " V. Schibel, xix. 140. .Action, 32. " V. Schneider, xxiii. 447. . .Securities, 41. " Selmjs v., xxi. 526. " Shaclcleford v., xxv. 348. " V. Smith, XX. 166. .Husband Wife, 120. " v. The State, xiv. 147 . . Crim Law, 180, 181. " The State v., xvi. 550— xxiv. 356— xxvi. 226. " St. Bt. Raritan v., x. 527. " V. Steinkamper, xvi. 150 Set-off, 23. " V. Stephens, ix. 863 ... Trover, 13. " Stephenson v., vii. 610. " V. Steriitt, xxiv. 260 Appeal, 4\ Bondi, Notes and Accts, 39, 40. " V. St Francois County Court, xix. 433 ilandamus, 21. " Sutfon v., xiii. 120. " V. Sweringen, xxvi. 551 Devise and Leg, 28. . .Partition, 28, 29. " Thompson v., i. 404— viii. 723. " Thornton v., vii 86. " V. Whitman, xiii 352. . . . Common Car- rier, 11, 12. " Williams v., xxi. 41 9. " V. Willinir, x. .'i94, . . .Ejectment, 31 Pleading 70. " V. Winston, x. 299 Replevin 28, 39. " V. Youn^, xi. 566 . . . Process, 9. " You na; v., xxv. 341. Smithers v. The State, vii. 3i2 ... Sheriff, 13. Smizer, Mcjiltpn v., xviii. 111. Smoot V. Wathen, viii. 522 Frauds and Per;', 36 Limitations, 63 Replevin, 20, 21. Smyth, Sholarv., iii. 416. " V. Spaldino;, xiii. 529 Agency, 25. Snead v. Wefrman, xxiii. 263 . . Record, 9. "" V. Wfgman, xxvii. 1 76 . . AUxj.chmt,'iO,%l Sncdefor, .Jones v., iii. 390. Snell V. Kirby, iii. 21 Debt. 2. " V. 0\ve:is, iii. 225. . . . Practice, 11. " Payne v., iii. 409— iv. 238. Snelson, ,famas v., iii. 393. Snow, Page v., xviii. 126. Snowden v. Cumilen, viii. 502. .Practice, 282. " V. McDaniel, vii. 313. . Costs, 16. . . Debt, 8. " V. The State, viii. 483. ..Cnm Law, 431 . . [lab ( 'orp, 2.. Set Fa, 16. Snyder, Piercifiold v., xiv. 583. " V. Warford, xi. 513. ..Laws, 58. . . Way, 13, 14. Somers, McGill v., xv. 80. Soot, The State v., xix. 379. Soper v. Breckenridge, iv. 14. .Damages, 36. . Warranty, 9. Soulard v. Allen, xviii. 590 Public Lands, 89, 104, 105. " Carter v., i. 576. " V. Clark, xix. 570. .Public Lands, 61 70, \20.. Record, 10. " Floating Dock Ins Co. v., viii. 665. " V. Lane, xvi. 366. . Dses and 2V«s, 28. " Ott v., ix. 573. " V. Pratte, i. 571 , .Evidence, 164. Southack v. Morris, vi. S5\.Petitn in Debt, 11. Southerland v. Warner, xxi. 512. . . .Practice Swp Ct, 22 . Southworth v. Hopkins, xi. 331 . Chancery, 28. Soutier v. Kellerman, xviii. 509. ..Appeal, 86.. Contract, 7. Spain, McKnight v , xiii. 534. Spalding v. Marshall, xxvii. 377. ..tor Entry and Det, 28, 49. .Practice, 280. " Ladue v., xvii. 159. " Smyth v., xiii. 529. Sparks v. Purdy, xi. 219. . County, 3, 4. . Tro- vf, 14, 15, 29. " St. Louis County v., xi. 201. " St. Louis County Court v., x. 117. Sparr, Harlow v., xv. 184. " Lee v., xiv. 370. " V. Wellman, xi. 230. .Evid, 121 . .Interest. 12. .Practice, 153. Witness, 36-38. Speaker V. McKenzie, xxvi. 255... Libel and Slander, 13. Spear, The State v., vi 644. " V. Thompson, i. 581 . .Administration, 20. Speck, Schilling v., xxvi. 489. " V. Wohlien, xxii. 310. . .Admin, 145 Chancery, 10... .Jurisdiction, 59. " Wohlien v., xviii. 561. Speed V. Hen in, iv. 356. . .Practice, 259. Speilman v. Shook, xi. 340 . . . Mec. Lien, 8. Spence, Hart v., V. 17. Spencer, (Jreen v., iii. 318. " V. Mediler, v. 458 Mills and Millers, 1, 2. ..Process, 6, 26. Spicer, Chapman v., x. 689. Fpiers, Stephens v., xxv. 386. Spitts V. Wells, xviii. 468. . .Ejectment, 19. . . Partition, 31. Spore, Missouri State Mu. F. and M. Ins Co. v., xxiii. 26. Spraddling v. Pipkin, xv. 11 8 . .Admin, 53, 56. SpraiUing, Keeton v., xiii. 321. Sprague, Lee v., xiv. 476. Sprattv. The State, viii. 247 Crim Law, 81, 225,379. Springer v. Cabell, x. 640. . .Assumpsit, 31. Sproule V. Mc.N'ulry, vii. 62... At achmenf, 37. Squires v. Fithian, xxvii. 134. . .Mec Lien, 3, 12, 14. St. Charles College, Finney v., xiii. 266. St. Charles County v. Powell, xxii. 525 Limitations, 26-28. St. Francois County, Berry v., ix. 356. " " V. Marks, xiv. 539.. iJoads and Highways, 1, 2. " " v. Peers, xiv. 537...i?oads and Highways, 1, 2. LIST OF CASES. Ixxvii St. Francois County Conn, Smith v., xix. 433. St. Gemme, The State v., xv. 219— xxiii. 334. .St. John V. Homans, viii. 382. .Banh'ng, 9, 13. " V. McConnell, xix. 36. .Witness, 56. St. Louis Circuit Court, Caliche v., i. 608. " Nichols T., i. 357. " Sector T., i. 607. " Siop T., i. 356. " Williams v., v. 248. St. Louis County v. Clay, iv 559 . . . Cir Alttj, i. . .yment, 80. " "v. Cleland, iv. 8i. .County, 2, 11. " " Payne v., viii. 473. " " V. Sparks, xi. 201 . .Revenue, 36. " " Watson v., XTi. 91. St. Louis County Court, Hamilton v., xv. 3. " " " MuUanphy v., vi. 563. " '• " V. Euland, v. 268 Clerk of Court, 2. " V. Sparks, x. 117 Mandam, 7,8, 16. Officer, 5, 6 . . Quo. War, 4. " " " The State v., xx. 499. St. Louis Hob. Asso. v. City of St. Louis, xv. 592. .St. Louis, 19. " " " V. Weprman, xxi. 17... Will, 7. " " " V. WiUiams, xix. 609 . . Devise and Leg, 2. . Will, 5, 6. St. Louis Ins. Co. v. Glasgow, riii. 713 Ins, 27, 28, 49. V. Kyle, xi. 278. .Ins, 32-35 Interest, 13. St. Louis and Iron Mountain R. R. Co., Peters v., xxiii. 107 — xxiv. 586. St. Louis Mar. Ins. Co., Fletcher v., xviii. 193. " " " " Wise v., xxiii. 80. St. Louis M. and F. Ins. Co., Domett t., xix. 201. St. Louis M. F. and M. Ins. Co. v. Boeckler, xix. 135. . . Local Decis. 15-17.. . Practice Supreme Court, 84. St. Louis Mar. Railway and Dock Co., Cable v., xxi. 133. St. Louis Mar. Railway and Dock Co. Lam- othe v., xvii. 204. St. Louis Public Schools, Byrne t., xii 402. " " " V. City of St. Louis, xxvi. 468 St. Louis, 31. " Eberle v., xi. 247. " " " Fine v., xxiii. 570. " V. Hammond, xxi. 238 PublicLands, 177. " " " Hammond v., viii 65 " " " KissoU v., xvi. 553. " ' " Trotter v., ix. 68. Stacey v. Miller, xiv. 478. . . . Way, 4, 5. Stacker v. Cooper Circuit Court, xxv. 401 . . . Judgment, 84, 85. " Frothingham v., xi. 77. " Shipp v., viii. 145. Stacey, Gamett v., xvii. 601. S.tagg, Franklin v., xxii. 193. Staihr, Schneider v., xx. 269. Stalcup V. Gamer, xxvi. 72. . Chana/, 126, 127. Stanley v, Bunce, xxvii. 269. .Assignment, 30. Stanton, Jones v., xi. 433. Staples, Pemberton v., vi. 59. Stapieton v. Benson, viii. 13. . Bond, 28. " Harley v., xxiv. 248. Stark V. Miller, iii. 470. .Ferry, 1, 5. Starling, Thomas v., i. 583, 696. StaiT V. Stewart, xviii. 410. .Appeal, 83. The State v. Acuff, vi. 54 . . Crim Law, 92. " V. Aguila, xiv. 1 30 . . Crim taw, 8. " V. Allen, xxii. 318. . Crim Law, 306 Jwi Peace, 4. " V. Ambs, XX. 214. . Crim Law, 196, 197. .Laws, 53. " V. Ames, i. 524. .,Crim Law, 79. " V. Ames, x. 743. Crim Lau), 71, 215. " V. Anderson, xix. 241 . . Crim Law, 167, 185, 188,390.ArcM) Trial,55 " T. Andrews, xxvi. 169. .Dramshops, 18. " V. Andrews, xxvi. 171 Mer and Giocers, 4. " V. Andrews, xxvii. 267 . . Crim Law, 309 . . Dramshops, 34. " V. Appling, xxv. 315. . . Crim Law, 152. V. Arbogast, xxiv. 363. .ZVomsAops, 25. " V. Auberry, vii. 304. .I>ramshops,13. " V. Austin, xii. 576. " Austin v., X. 591 — xi. 366 — xii. 393. " Bach v., viii. 497. " V. Bailey, xxi. 484. .Ori'm Law, 117, 119. " V. Baker, xix. 683 . . Crim Law, 312. " V. Baker, xx. 338 . . Crim Law, 279. " V. Baker, xxiv. 437 Crim Law, 381, 382. " v. Baldwin, xxvii. 103. .Admin, 174 " Baldwin v., xii. 223. V. Ball, xxvii. 324. . Crim Law, 313, 361, 362. " V. Banfleld, xxii. 461 . . Crim Law,)8a " V. Bankhead, xxv. 558 . . Crim Law, - 4?- Barada v., xiii. 94. " V. Barnes, xx. 413 . . Criin Law, 280. " V. Barton, xix. 227.... Crim Law, 104...A'ca3 Tiial, 66. V. Batchelor, xv. 207 .. . Crim Law, 237. " V. Bates, x. 166. . . Crim Law, 84. " V. Bean, xxi. 267 .. . Cj-im Law, 30. V. Bean, xxi. 269. .. Crim iaw, 203 441. " V. Beasley, y. 91. ..Cr/TnZaw, 44. " v. Bentz, xi. 27 . . . Crim Law, 26. " V. Berry, xii. 376 .. . Attachment, 21 . V. Berry, xxi. 504. . Crim Law, 174 212. " V. Berry, xxv. 355 . , Crim Laio, 410. V. Bess, XX. 419 . . . Crim Law, 6. V. Bidlingmaier, xxvi. 483. .Admin- istration, 99. " " V. Bird, i. 585 . . Crim Law, 302, 433. Ixxviii LIST OF CASES. The State v. Bird, xxii. ilO.. ..Evidence, 107 ..Pleading, 160. ..Practice, 30. " V. Black, ix. 681 . ..Indians, 2. " V. Blackwell, xx. 91 ..Limitatns, 12. " V. Blankenship, xxi. 504 Orim Law, 414. " Bledsoe v., x. 388, " V. Bleekley, xviii. 428. . . Crim. Law, 328. " V. Bohannon, xxi. 490. . Orim Law, 117. " Bower v., v. 364. " V. Bowling, xiv., 508 . . . Cfrim Law, 406. " V. Bray, i. 180. . .Breach Peace, 9. " V. Brewer, viii. 373. . Crim Law, AS. " V. Bridges, xxiv. 353. . . Crim Law, 89, 91. " Broomfield v., x. 556. " V. Brown, viii. 210. .Dramshops, 14. " Bnia v., viii. 496. " V. Bryant, xiv. 340 .... Dramshops, 29, 35. " V. Buckner, xxv. 167 .. . Crim Law, 290, 291, 34:8 .. Practice, 100. " v. Buford, X. 703 . . .Dramshops, 22. " V. Buhs, xViii.SlS . BreocA Peace, 18. " V. Burgess, xxiv. 3.81. ..Orim Law, 227. " V. Byrne, i. 748. .Laws, 68. " V. Byrne, xxiv. 151 . Crim Law, 343. " v. Byron, xx. 210. . . Crim Law, 5. " Calloway v., i. 211. V . Campbell, x. 724 . .Admin, 24, 25, 113. .Pleading, 103. " Campbell v., ix. 357. " Cai'penter v., viii. 291. " Carrico v., xi. 579. " V. Carroll, vii. 286 . . Crim Law, 424. " Casey v., vi. 646. " V. Chandler,xxiv.371.CWm iaw,16. " V. Charles, xxiv.379. Cn'miaw, 83. " V. Chilton, xxvi. 1 70. Dramshops, 1 8. " V. Chnmn, xix. 233 . . . Crim Law, 58, 59. " V. Clark, xviii. 432. ..Amendment, 6 CrijR Law, 228. " Cliiy V.,, vi. 600. " Clementine v., xiv. 112. " V. Clifton, xxiv. 376 . Crim Law, 94. " V. Clump, xvi. 385". .... Crim Law, 392, 439. " Coleman v., xiv. 157. " V. Collier, xv 293. . .Evidence, 158. " V. Comfort, v. 357. . . Crim Law, 13. " Conner v., xiv. 561. " V. Conrad, xxi. 271 . . Crim Laiv, 239' " V. Conway, xviii. 321 . . Crim Law,, 110,114. " V. Cook,.i. 547 Crim Law', 214. " V. Cooper, xvi. 551 . . Dramshops, 31 . " v. Cooper Connty Court, xvii. 507 .... Courts, 9. " v. Corson, xii. 404.... CWm Law, 320,321. " V. Corwin, iv.- 609. .Dramshops, 11. " Couley v., xii. 462. " Cousineau v., X. 501. " Cos v.,.ix. 180; The State v. Crabtree, xxvii. 232 Crim Law, 193, 194. " v. Craig, i. 502 Laws, 67. " V. Crenshaw, xxii. 457 Crim Law, 96. " V. Cross, xxvii. 332 Crim Law, 149, 349. " Crow v., xiv. 237. " Cunningham v., xiv. 402. " V. Curran, xviii. 320 Crim Law, 417. " V. Dalton, xxvii. 13 . . Crim Law,i\9 " Dameron v., viii. 494. " V . Davidson, xx. 212 Orim Law, 258, 261. " V. Davidson, xx. 406 Orim Law, 250, 253. " V. Davis, i. 502 Laws, 67. " Day v., xiii. 422. " Deer v., xiv. 348. " V. Dent, xviii. 313.. £'stop, 15. " Derossett, xix. 383. .Strays, 7. " V. DevHn, xxv. 174. Crim Law, 284. " T. Dickerson, xxiv. 365 . . Crim Law, 171. " V. Dillihunty, xviii. 331 . Crim Law, 304. " V. Douglass, i. 527 . . Crim Law, 80, 385, 386. " Downing, v., iv. 572. " Du Breuil v., X. 435. " V. Dunn, xviii. 419 . . Crim Law, 137, 151, 335, 336. " V. Dwire, xxv. 553. . Witness, 12. " V.Edwards, xix. 674.. CHm Law, 173, 391.. Evid, 29. Ellis, iv. 474 . . Crim Law, 67-69. Emnitz, xxvii. 521.. ..Breach Peace, 21. England, xix. 386. . . Crim Law, 207. English, ii. 182. . Orim Law, 222, 223. Epperson, iv. 90. ..Breach Peace, 15. Epperson, xxvii. 255. . Orim Lxw, 25. Erwin v., xiii. 306. Eubanks v., v. 450. Evans, i. 698. . Chancery, 199. Evans, i. 748.. .Laws, 68. Evans v., i. 492. Ewing, xvii. 515. .See of State, 1. Fanning v., xiv. 386. Panny v., vi. 122. Earmcr, xxi. 160. .Execution, 29. ..Sheriff, 20. Fawcett, xvi. 380 . . Breach Peace, 13 Feaster, xxv. 324... Crim Law, 122. Fcnly, xviii. 445. . Crim Law, 65, 66.. Prac Sup Ct, 32. Ferguson, ix. 285. . Oongtable, 11, 12. Ferguson, xiii. 166 .. .Execution, 18, 128. Field, xvii. 529. :La:ws, 73. Fierline, xix. 380. .i>ranis%)SyS'3. V. . V. ; LIST OF CASES. Ixxix The State, Finney v., ix. 225, 624. " Fitzgerald v., xiv. 413. " T. Flack, xxiv. 378 . . Crim Law, 83. " T. Fleetwood, xvi. 448 . . Crim Law, 182. " V. Fleming, xlx. 601 ..Ejectment, 3i . .Limitations, 21. " T. Fletcher, xviii. 425 . Cfrim Law, 74. V. Floyd, XV. 349. ..Crim Law, 103, 271. " Fooxe v., vii. 502. " V. Foreman, iii. 602 . Atty at Law,\2. '• V. Foster, ii. 210. .£m)r, 3. " Frasier v., t. 536— vi. 195. " V. Fredericks, xvi. 382 . Z>ramsAo/)s,l . " V. Freeman, xxi. 481 .... Crim Law, 119, 208. " Freleigh v., viii. 606. " V. Fry, IV. 120. .Laws, 65. •' v. Fugate, xxvii. 535 . Crim Law, 339 " T. Fulkerson, x. 681. .Practice, 162 . .Revenue, 26, 27. " Fulkerson v., xiv. 49. " v. Fulton, xix. 680. . Crim Law, 72. " T. Guither, i. 501. .Error, 46. " Gardiner v., xiv. 97. " T. Gardner, ii. 23. .Jus Peace, 3. " Garret v., vi 1. " V. Gates, xx. 400. . Crijn Law, 267, 31 -i.. Record, U. " Gates v., xiii. 1 1 . V. Gay, X. 440. . Crim Law, 210-212 " T. Gilbert, xxiv. 380 . . Crim Law, 186 " Gillespie v., xii. 497. " Glascock v., X. 508. ;' Golden v., xiii. 417. " V. Goode, xxiv. 361. Crim Law, 21 7 . •' Gordon v., iv. 375. " Gouin v., viii. 493. " V. Grace, xxvi. 87 . . . Guardians and Curators, 10. " V. Gray, xxi. 492. . Crim Law, 120. " Green v., xiii. 382. " V. Greenhalgh, xxiv. 373 Crim Law, 15. " V. Gregory, xxvii. 231 Dram- shops, 17. " V. Gresser, xix. 247 . Crim law, 109. " V. Grimsley, xix. 171 Revenue, 34, 35. " Grove v., x. 232. " V. Guyott, xxvi. 62 ... . Slaves and /Slavery, 37. " V. Haden, xv. 447 . . Dramshops, 20. " T. Hale, XV. 606 . . Physician, 1 . " V. Ham, xix. 592.. Pub Lands, 145. " V. Hambleton, xxii, 452 . Crim Law, 93, 95. " V, Hamilton, vii.300 . Crim Law,\ 55. " V. Hamilton, ix. 784. .Sheriff, 9. " Hamuel v., v. 260. " V . Hard wick, ii. 226 . Crim Law, 200. " Hardy v., vii. 607. " T. Harlow, xxi. 446 Crim Law, Ui..N Trial, 66. " V. Harman, xxvii. 120. . Crim Law, 381, 382. " Harriman v., i. 504, " Harrison, v., ix, 526— x. 686. The State v. Havely, xxi, 498 . . Orim Law, 413. " Hawkins v., vii, 1 90. " V. Hawthorn, ix. 385 Laws, 69, 70. " v, Hayes, xxiv. 358 . . Crim Law, 200 " v. Hays, xxiii. 287 Crim Law, 294, 342, 356, 357, 442. " V. Hays, xxiv. 369 . . Crim Law, 324. " Hays v., xiii. 246. " V. Hearst, xil. 365. ..Guardians and Cur, 4, " V, Heatherly, iv. 478 Orim Law, 424. " Hector v,,ii. 166. " T. Helm, vi. 263 , , Crim Law, 1, 2. " Hemmaker v,, xii, 453, " V. Henderson, xv. 486 . . Crim Law, 170. " V. Henke, xix. 225 Slaves and Sla, 40. " V. Heniy.ii, 218 CrimLaw,AS.6. " Henry v., ix. 769. " T. Hereford, xiii. 3 . . Atty at Lam, 6. " V. Herryford, xix. 377 . Crim Law,ll " V. Hicks, xxvii. 588 Crim Law, 134, 13.5, " Hilderbrand t., v. 548. " V. Hilton, xxvi. 199 Crim Law, 168, 169. " Hinch v., ii. 158. " V. Hinkson, vii. 353 Account, 3 . . . .Jails and Jailers, 2. " Hmson v., vii. 244. " Hobbs v., ix 845. " T. Hoffman, xviii. 329 Breach Peace, 14. V. Holt, xxvii. 340 Admin, 120. " ■ V. Homes, xvii. 379 (,Wm Law, 112 Practice, 2i5. " V. Hopper, xxvii. 599 .. . Crim Law. 49. " V. Hombeak, xv. 478 . . . Dramshops, V. Houser, xxvi. 431 Crim Law, 381, 383. " T. Houston, xix. 211.... Crim Law. 418. " Howard v., viii. 361. " Howe v., ix. 682. T. Howell, xi. 613. . . Contempt, 2. " V.Hughes, xxiv. U7... Dramshops, 5, 6... Witness, 6. " Humphries v., v. 203. V. Hunter, v. 360. .Mer and' Gro, 2. " V. Hunter, xv. 490.. Admm, 187. V. Hurt, vii. 321 .. . Crim Law, 106. " Hutehins v., viii. 288. V, Huting, xxi. 464. . . Crim Law, 145, 147, 316, 317. " T. Hutson, XV. 512. . . Crim Law, 412 V. Igo, xxi. 459 . . . New ■^nal, 66. " Ingram v., vii. 293. " Isbell v., xiii. 86. r. Jackson, xvii. 544. . . Crim Law, 19-22, 331. " V. Jamison, xxiii, 330. . .fhrimshopa, 37. " Jane v., iii, 61, Ixxx LIST OF CASES. The State v. Jennings, xviii. 435. . . Crim Law, 137, 203, 438. " Jennings v., ix. 851. " Jim v., iii. 147. " V. Joe, xix. 223 . . .Appeal, 42. " V. Johnson, iv. 6\& .... Crim Law, 10, 11. " Johnston v., vii. 183. " V. Joiner, xix. 224 Orim Law, 100, 229. " V. Jones, xvi. 388. . Crim Law, 199. " V. Jones, XX. 58. . ; . Orim Law, 126, 127, 151. " Jones v., vii. 81 — xiv. 409. " V. Jordan, xix. 212. . Crim Law, 14. " Journey v., i. 482. " V. Kempf, xxvi. 429 . Crim Law, 1 77. " V. Kennon, xxi. 262. .iotfen/, 5. " V. Kesslering, xii. 565 Billiard TaJiles, I. " V. Kibby, vii. 31 7 . . Crim Law, 329. " V. King, xvii. 511 . . County, 1. King v., i. 717. " V. Kirby, ix. 295 . . Constable, 8. " Kirk v., vi. 469. " V. Kitclicn, XV. 2U7 . . Crim Law, 237 " V. Kyle, X. 389 . . Crim Lam, 82. V. Lackland, xii. 278. .see Simmons V. 'I he Slate, xii. 268. " V. Ladd, XV. 430 . .Dramshops, 23, 38. " V. Laflin, x. 4+2. . .see 2 lie State v. V. Gay, X. 440. " Lambert v., viii. 492. " Laporte v., vi. 208. " V. Larriinore, xix. 391 . Dramshops,9. " V. Lanimore, xx. 425. ..Dramshops, 9 New Trial, 47. " T. Irtivalley, ix. 82i.. Orim Law, 160- 162, 252. " T. Leapfoot, xix. 375. . . Orim Law, 440. " T. Ledford, iii. 102. .Laws, 20. " V. Lemp, xvi. 389 . . Dramshops, 2. " V. . eonard, xxii. 449 Crim Law, 121, 123, 331.. Laws, 12. " Lester v., ix. 658. '• V. Levens, xxii. 469 Roads and Hii/hways, 20. " Lewis v., xi. 366 — ^xii. 128. '< Lilly v., iii. 10. " T. Ijingo, xxvi. 496 Jurisdiction, 11.. Quo War, &..St Louis, 24. " Lisle v., vi. 426. " V. Locke, xxvi. 603 . . NewTrial, 49. " V. Logan, i. 532. . Crim Law, 97. " Loper v., i. 632. " V. Lopez, xix. 554. . Crim Law, 206, 318,319. " Lorton v., vii. 55. " Loughridge v., vi. 594. " V. Lowry, viii. 48 . . Constable 2, * " Lowry v., i. 722. " Lucy v., viii. 134. " T. Lusk, xviii. 233. .Pw6 Prinier, 1. " Maeder v., xi. 363. " V. Magrath, xix. 678 .. . Crim Law, 117, 118. " Mallison v., vi. 399. " Manion v., xi. 578. The State, Manning v., viii. 615. " Mansker v., i. 452. " Markley v., x. 291. " Mamey v., xiii. 7. " V. Martin, v. 361 . . Mer and (h-o. 3. " V. Martin, viii. 102. .Pleading, 80. " V. Martin, x. 391 . . Crim Law, 209. " Martin v., ix. 283— xii. 471. " Mary v., v. 71. " V. Matthews, xiv. 133. . . Crim Law, 224. " V. Matthews, xx. 55 . . . Orim Law, 113, 116,337, 360. " Mattison v., iii. 421. " V. McBride, iv. 303 Constitution, 1-3. " V. McBride, xix. 239 Crim Law, 178, 415, 416. " V. McCann, xix. 249 . . . Crim Law, 115. " V. McCIure, xxv. 338. Crim Law,2i " McComas v., xi. 116. " V. McCourtney, vi. 649. . Crim Law, 45, 175. " V. McCracken, xx. 411.. Crim Law, 201. " V. McDonald, xxv. 176 Crim Law, 7. " McDonald v., viii. 283. " McGee v., viii. 495. " V. McGunnegle, iii. 402 Crim Law, 245. McGurmegle v., vi. 367. McKay V, xii. 492. " V. McLaughlin, xxvii. ill New Trial, 18. " McLean v., viii. 153. V. McLernan, x. 780. . Execntion,l38 " Mc.Millen'v., xiii. 30. " V. McO'Blenis, xxi. 272 Crim Lair, 407-409 . . Practice, 296. " V. McO'Blenis,' xxiv. 402 CVim Law,-381, 382. " V. McO'Blenis, xxvii. 508 Crim Law, 444. ^ V. McQuaig, xxii. 319. . . Crim Law, 347. " McWaters v., x. 167. " V. Melton, viii. 41 7 . .Evidence, 154, 155. .Process, 28. " V. Merry, iii. 278 Jurisdiction, 9 . . . .St. I^uis, 16. " V. Mertens, xiv. 94. . Orim Law, 226. " y. Metzger, xxvi. 65 Jurisdic- tion, 5, 47. " Milburn v., xi. 188. " V. Miller, xxiv. 532. .Dramshaps,23. " V. Mitchell, vi. 147 . . Crim Law, 70. " V. Mitchell, xxv. 420 . Orim Law, 47. " Mitchell v., iii. 283. " V . Mix, XV. 153 . . Crim Law, 37, 38, 298,376.. Witness, 12. V. Modrell, xv. 421 . .Admin, 28, 44. " V. Moles, ix. 685 . . Crim Law 45. " V. Moody, xxiv. 560. Crim Law, 283. " V. Moore, xix. 369. . . .Sheriff, 11, 20,21. -^ " Moore v., ix. 330. " V. Moreis. iii. 127 .. . Crim Law, 42. LIST OF CASES. Ixxxi The State v. Morrow, xxvi. 131 . .Lottery, 1, Morrow v., xii. 279. V. Morton, xviii. 53. .Admin, 115. . Record, 37. Mos.s v., X. 338. T. Muir, XX. 303. . Constable, 19, 20. V. Muir, xidv. 263. . . Constable, 21. V. Mardock, ix. 730. Orim Law, 62. V. M jers, xx. 409 . . School Lands, 5. Nathan v., viii. 631. , Neales v., x. 498. V. Nelson, xix. 393. . Orim Law, 73. T. Nelson, xxviii. — . Orim Law, 249. V. Newell, i. 248. . Crim Law, 57. Nicholas, f., vi. 6. r. North, xxvii. 464. ..Laws, 72. . . Merchls and Gro, 5 . Revenue, 2. Norton v., iv. 461. V. Nueslein, xxv. Ill . . . Crim Law, 138, 307, 338. O'Blennis v., xii. 311. V. Owen, XV. 506. . .Zhamshops, 16. V. Pack wood, xxvi. 340. Orim Law, 133, 436. V. Page, xix. 213. . ! Banking, 5, 6. V. Page, xxi. 257. . .Practice, 168. Page v., vi. 205. V. Palmer, iv. 453. . Crim Law, 202, 213. Parks v., vii, 194. V. Paul, xxi. 51 . . . '. Guardians and Curators, 9. . . Jurisdiction, 29. T. Payne, iv. 376. .'.Crim Law, 311. V. Pepper, vii. 343. . .Appeal, 12. V. Pepper, viii. 249 . . Crim. Law, 260. V. Perpetual Ins. Co., viii. 330... Quo Warranto! 3. Perrymau v., viii.' 208. V. Petticrew, xix. 373. . .Admin, 29 . . .Arbitrations and Ref, 17. V. Phillips, xxiv. 475 . . . Crim Law, 130, 277, 289, 291, 344, 373, 377, 384, 420. Plummer v., vi. 231. Pogne v., xiii. 444. Polk v., iv. 544. Polsten v., xiv. 463. V. Porter, ix. 352. ..Administration, 31, ISi... Practice, 115. V. Porter, xxvi. 201 .. . Crim Law, 52-55, 233. . .Practice, 149. Porter v., v. 538. V. Pratte. viii. 286. .Limitations, 22. V. Presbnry, xiii. 342 . . Bankg, 3, 4. V. Prewett, xx. 165 Deiiise and Legacy, 3. V.Price, XV. 315. . .Administration, 14. . .Pleading, lib. T. Price, xvii. 431... jirfrn're, 32. ' T. Price, xxi. 434. . .Administration, 4. ..Pleading, 170. V. Pugh,,xv., 509. .'. Crim Law, 40. V. Pnrdom, iii. 114.'.'. Crim Law, 76. V. Kagau, xxii. 459. . Crim Law, 87. V. Kamsey, xxiii. 327. ..Crim law 246. V. Eandoiph, xxii. 474^. C'n'm Law 251, 256, 432.. Scii-cj, 13. The State v. Randolph, xxvi. 213 . . Orim Law, 247, 248. " V. Bankin, iv. 426. .Jurisdiction, 12. " T. Ravenscroft, i. 74:S..Laws, 68. " Ravenscroft v., i. 536. " T. Rector, xi. 28, 29 . . . Crim Law, 235. " Reed v., xi. 379. " V. Reynolds, iii. 95. .Constable, 10. " Rice v., viii. 561. " V. Rich, XX. 393. . Liws, 12, 13. " V. Richardson, xxi. 420 . . . Revenue, 14. " V. Roberts, xi. 510. . School Tjxnds, i. " w. Roberts, xv. 28. . Crim Law, 199, 391. " Roberts v., xiv. 138. " Robinson v., xii. 592. " V. Roland, xxiii. 95 . . Guardians and Curators, 8, 15. " V. Rollins, xiii. 179.. Bankruptcy, 9. . .Execution, 18, 19. " RoUins v., xiii. 437. " V. Ross, xxv. 426. . Crim Law, 165. " V. Ross, xxvi. 260 . . Husb and Wife, 4. " Ross V. ix. 687. " V. Rowe, xxii. 328. . Crim Law, 425. " Ruby v., vii. 206. " V. Rucker, xxiv. 557. . .Auetioneers, 7, 8. " v. Ruggles, XX. 99. .Admin, 33, 119. " V. Ruggles, xxiii. 339 . . Admin, 1 88. . .Practice, 176. " V. Ruland, xii. 264. . Clk Court, 3. " V. Runyan,xxvi. 167.iVamsAojt)s,18. " V. Ruthven, xix. 382 Crim Law, 429. ' Samuels v., iii. 68. " Schaller v., xiv. 502. " Schmidt v., xiv. 137. " V. Scott, xvii 521 . . .Laws, 34, 64. . Quo Warranto, 5. " V. Searcy, xx. 489 . . Laws, 36. " V. Shapleigh, xxvii. 344 . . . Mer and Grocers, 5, 6. " V. Shehaue, xxv. 565 . .Practice, 292. " T. Shields, xiii. 236. . Witness, 11. " v. Shifflett, XX.4I5. . tViMXtiw, 240 " V. Shoemaker, vii. 177. . Crim Law, 33, 36, 39, 378. " V. Shoemaker, vii. 286. . Crim Law, 424. " Shore v., vi. 640. " V. Shoultz, xxv. 128.... OWm Law, 131, 139. " V. Si(ihts. vii. 321 .. . Crim Law, 106. " Simmons v , xii. 268. " V. Simonds, iii. 414 Crim Law, 310.. Laws, 18. " V. Slate, xxiv. 530. .Dramshops, 26. " V. Slater, xxii. 464. . Crim Law, 46. " V. Sloss, xxv. 291 Laws. 66 Pardon, 1. " V. Smith, xvi. 550. . Crim Law, 232. " V. Smith, xxiv. 356 .. . Crim Law, 90. v. Smith, xxvi. 226. . .Reoenue, 30- 33..iiecurities, 51. J:3cxxii LIST OF CASES. Th? State, Smith v., xir. 147, " Smithers v., vii. 342. " Snowden v., viii. 483. ." T. Soot, xix. 379 . . Slaves andSla, 41 . " V. Spear, vi. 644. . Crim Law, 312. " Spratt v., viii. 247. " T. Sreel, xi. 553 Costs, 13 '!' Execution, 139 . .Jurisdiciion, 23 Process, 14. " Steerman v., x. 503. " V. Stein, ii. 67 ..Laws, 20, 60. " V. Stephenson, xii. 178 Admin, ' 35, 114, 116, 117, 159 .. . Judgment, 18. " V. Sterhne, viii. 697 . ! . . see FreUigk V. The State, viii. 606. " V. St. Gemme, xv. 219. . ..Amend- ment, 33. " V.St. Gemme, xxiii. 344 Ad- ministration, 36. " V. St. Louis County Court, xx. 499 .... Courts, 1 1 . " V. Stone, XV. 513. . . CrimLaw, 191. " V. Stone, XXV. 555 Quo War, 3. " Stone v., xii. 400. " Stoner v., iv. 368, 614. " Storrs v., iii. 9. " V. Stotts, xxvi. 307 . . Crim Law,393. " Strother v., i. 60S, 772. " Vi Stumbo, xxvi. 306 Crim Law, 221 New Trial, i1. " Sunday v., xiv. 417. " V. Sutton, xxiv. 377 . . Crim Law,192 " V. Sutton, xxiv. 380. . Crim Law, 83. " V. Sutton, XXV. 300. .Dramshops,16.' " V. Swaflley, xv. 515 Slaves and "- Sla, 36. , " Swearingen v., v. 329. " v. Taylor, xxi. 477 Crim Law, 216,341. " V. Thevenin, xix. 237. .Appeal, 83. " V. Thomas, xvii. 503 County Treasurer, S, 4. " V. Thonias, xix. 613 Attach- ment, 31. " Thomas v., vi. 457— x. 235. " V. Thompson, xxvii. 365 Bank- ing, 20. V. Todd, xxvi. 175... Laws, 66 jfardon, 1. Todd v., i. 566. Torney v., xiii. 455. " Tracy v., iii. 3. " V. Tuley, xx. 422. . Roads and High- ways j 1 9. " V. Upton, XX. 397. . Crim Law, 303, 305, 353. " V. Vaughn, xxvi. 29 ... . Orim Law, xvii. 434. .Prac Sup Ct, 65. " Vaughn v., iv. 290, 530. " v. Walker, i. 546 .. . Crim Law, 243. " v. Wall, XV. 208 .. . Crim Law, 237. " Ward v., ii, 120. V. Warne, xxvii. 418 Breach Peace, 20. " Warren v., xi. 583. " v. Watkins, iii. 480 . Atty at Law, 1 1 . " Watkins v., vii. 334. " V. Watson, i. 502.. £aa)i,«7. The State, Watson v., v. 497. " Webber v., x. 4. " V. Weber, xxii. 321 Crim Law, 300, 308. " Wein v., xiv. 125. " V. Weiss, xxi. 493 . . Dramshops, 32. V. Welker, xiv, 398 . .Crim Law, 63. " V. Wetheiford, xxv. 439 Crim Law, 254. Wheat v., vi. 455. " Whitney v., viii. 165. " V. Wightman, xxvi. 515 Breach Peace, 11. " V. Wightman, xxvii. 121 Nem 2riai, 47. Wilder v., iii. 413. " V. Wilhight, XX. 422 . . Crim Law, 6. " Wilkerson v., xiii. 91. " Wilkson v., xii. 353. " Will v., ix. 663. " V. Williams, xix. 389 .. Sfrays, 3. " Williams v., iv. 480. . .ix. 263. " V. Williamson, xvi. 394 . . Crim Law, 18, 23. " V.Williamson, xix. 384 ...Dram- shops, 19. " V.Williamson, xxi. 496 Dram- shops, 24. Wills v., viii. 52. " V. Wilson, iii. 125. . . Crim Law, 42. " V. Winwright, xii. 410 Husband and Wife, 3. " V. Wishou, XV. 503 Crim Law, 236 ... Dramshop's, 15. " V. Wittmar, xii. iOl . .Dramshops, 28. " V. WoliF, XV. 168 . . . Crim Law, 102, 103, 376. V. Woods, vii. 536.. Sheriff, 7. " Woods v., X. 698. " V. Woodward, viii. 353 . . Sheriff, 14. " V. Woadward, xxi. 265 . . Crim Law, 23S... Lottery, 5. , " V. Worrell, xxv. 2o5 Crim Law, 132, 147, 268. . .Evidence, 23.. . Practice, 80. " V. Wright, xiii. 243. . .£a!«s, 33. " V. York, xxii. 462 . . Crim Law, 117 . . . Laws, 1 2. " V. Young, xxvii. 259. . . Way, 10. " V. Zwifle, xxii. 467 . . Crim Law, 255. The State Bank of Illinois, Blair v., viii. 313. The State of Indiana, Tagart v., xv. 209. Stavely v. Kuhkel, xxvii. 422. . .Appeal, 18. St. Bt. Arabia, Johnson v., xxiv. 86. " Archer V. Goldstein, xiii. 2i.... Boats and Vessds, 78. " Beardstown V. Goodrich, xvi. 153 Boats and Fes, 61. " Belle of Attakapas, Hore v., xi. 107. " Belmont, Gleim v., xi. 112. " Blue Eidge v. St. Bt. Time, ix. 643. . Boats and Ves, 60. " Brunette, Childs v., xix. 518. " Caroline, Whitmore v., xx. 513. " C. Bealer, Yore v., xxvi. 426. St. Bt. Charlotte v. Hammond, ix. 58 . . .Boats and Ves, 6, 27 . .Practice, 130. LIST OF CASES. Ixxxiii St. Bt. Charlotte v. Kingsland, ix. 66. .Boats and Ves, 14. " " V. Lramn, ix. 63. .Boats and Ves, 7. " Columbus, Hays v., xxiii. 232. " " Sturgess v., xxiii. 230. " Concordia, Bailey v., xrii. 357. " Convoy, Slater v,, x. 513. " Cumberland Valley, Hardison v., xiii. 226. " Daniel HiUman, Carson v., xvi. 256. " " Jarbee v., xix. 141. " Detroit, Perpet. Ins. Co. v., vi. 274. " Dr. Franklin, Atchison v., xiv. 63. " Elephant, Carson v., xxiv. 27. " Elk, Bridgeford v. vi. 356. " " Byrae v., vi. 555. " " Russell v., vi. 552. " " Silver v., vi. 557. " El Paso, Withers, v., xxiv. 204. " Envoy, Luft v. xix. 496. " Eureka V. Noel, xiv. 513... .Boate an^i' Ves, 80. " " Phelps v., xiv. 532. " " Voorhees v., xiv. 56. " Falcon v. Donohoe, xiii. 231 . . Appeal, 70. . . .Jurisdiction, 55. " Fayette, Finney v., x. 612. " Fleetwood, Wood v., xix. 529 — xxii. 560— xxvii. 159. " Forest City, Fisk v., xviii. 589. " Gen'l Brady v. Buckley, vi. 558 . . Boats and Ves, 13, 26. " Grcorgia, Camden v., vi. 381. " Globe V. Hubert, xiii. 577 . . .Boats and Ves, 25. " Highland Mary, Ready v., xvii. 461 — XX. 264. " Inda, Darby v., Ix. 645. " Ironton, Hamilton v., xix. 523. " Jamestown, Ritter v., xxiii. 348. " J. Q. Adams, Patrick v., xix. 73. " Lebanon v. Grevison, x. 536 ... , Boats and Ves, 29. " Lehigh, Johnson v., x. 539. " " V.Knox, xii. 508 ...Boats and Ves, 31 Practice, 314. " Lightfoot, Darrah v., xv. 187 — xvii.276 " Little Red, Ward v., vii. 582 — viii. 358. " Lonisa, Amis v., ix. 621. " Lynx V. King, xii. 272 . . Common Car- riir, 1. " " Swearingen v., xiii. 519. " Madison, Bates v., xviii. 99. V. Wells, xiv. 360 Boats and Ves, 37. .. .Practice, 118 Witness, 50. " Mary Blane v. Beehler, xii. 477 .... Boats and Ves, 8. " Michigan, Carr v., xxvii. 196. " Missouri, Twitchell v., xii. 412. " " V. Webb, ix. 1 92 Boats and Ves, 47. " " Williamson v., xvii. '374. " Morisett, Jones v., xxi. 142. " " WiUiams v., xxi. 144. " Mound City, Clark v., ix. 145, 147. " Navigator, Mooncy v., xxvi. 522. " New England, Porter v., xvii. 290. St. Bt. Osprey v. Jenkins, ix. 635. .Boats and Ves, 15.. Costs, n. " Pawnee, Auvray v., xix. 537. " " James v., xix. 517. " " Benshaw v., xix. 532. " Pride of the West, Bryan v., xii. 371. " Raritan v. McCloy, x. 534. .Boats and Ves, 23. " " V. Pollard, X. 583.. JSoaisanrf Ves, 1. " " V. Smith, X. 527 Boats and Ves, If), \&.. Practice, 30i. " Reindeer, Ridgley v., xxvii. 442. " Reveille v. Case, ix. 498 . . Boats and Ves, 68. .Emd, 145. . .Pleading, 107. Prac Sup Ct, 33. " B. H. Winslow, Holland v., xxv. 57. " Robert Campbell, Blass v., xvi. 266. Taylor v., xx. 254. " Robert Fulton, Parkinson v., xv. 258. " Sangamon, McEvers v., xxii. 187. " Sea Bird v. Beehler, xii. 569.. Boats ■ and Ves, 17. " Shenandoah, Bersie v., xx. 18. " St. Anthony, Chouteau v., xi. 226. . . xii. 389. .xvi. 216. Noble v., xii. 261. ]" St. Mary, Byrne v., xxvii. 296. " Thames v. Erskine, vii. 213. .Deposi- tions, 15. . .Prac Sup Ct, 29. " " Erskine v., vi. 371. " Timev. Parralee, x. 586.. See St Bt Raritan v. Pollard, x. 583. " " St. Bt. Blue Ridge v., ix. 642. " Timoleon, Calvert v., xv. 595. " United States v. City of St. JLouis, v. 230 . . Boats and Ves, 94. " Virginia v. Kraft, xxv. 76 Common Carrier, 16. " Western Belle, Holloway v., xi. 14?. " " " V. Wagner, xi. 30. .Boate and Ves, 95. " WUliam Pope, Blaisdell v., xix. 157, 538— XX. 519. Steams v. McCnllough, xviii. 411 . . .Dam, 37. Steel V. Brown, xix. 312. . Warranty, 9. " V. McCutchen, v. 522. .Prac Sup Ct,l\. " The State v., xi. 553. Steele v. Parsons, ix. 813. . Chancery, 52. Steen, Fulkerson v., iii. 377. Steerman v. The State^ x. 503. .Lavis, 39. Steigers v. Darby, viii. 679. .iV Trial, 40. V. Gross, vii. 261 . . Witness, 45. Steil V. Ackli, xv. 289. .Practice, 120. Stein, The State v., ii. 67. " V. Weidman, xx. 1 7. . Witness, 69, 103, 104 Steinback v. Ellis, i. Hi.. Consideration, 29. " -v. XAsa,, 1.22%.. Judgment, 12. Steinkamper, Smith v., xvi. 150. Stemmons, Yeldell v., xv. 443. Stephens, Anthony v., i. 254. " Douglass v., xviii. 362. " Ferguson v., v. 211. " V. Hume, xxv. 349 . . Appeal, 8 . . Husb and Wife, 44. " Smith v., Ix. 863. " V. Spiers, xxv. 386 . . Consideration, 20. Stephenson v. Smith, vii. 610. . . Convey, 53. . I'ublic Lands, 35, 36. Ixxxiv LIST OF GASES. Stephenson, The State v., xii. 178. SteilinL', The State v., viii. 697. Stern, Lee v.,xxii. 575. Sterritt, Smith v., xxiv. 260. Stuttheimeri Little v., xiii. 572. Stevens v. Chouteau, xi. 382. . .Execution, 126 . .Jus Peace, 42. " Clnrli v., X. 510. " V. Gwathmey, ix. 628. . . Oarnisht, 25 . . Interest, 6. " Haase v., xviii. 476. " Levins v., vii. 90. " Overton v., viii. 622. " WebH v., xiv. 480. Stevenson v. Eohbins, v. 18. . .Attacht, 11, 16. " Robhins v., v. 105. Stewart v. Anderson, xvjii. 82 . . Gamisht, 27. " V. Anderson, xix. 478. . GaraisAi, 52. " V. Cnve, i 752. .Admin, 1. " V. l^ent, xxiv. 111.. Damages, 29. '" V. Dngin, Iv. 245 . .Fraud, 23 . Sale, 16. " Hamilton v., v. 266. " Hayden v., xxvii. 286. " Heimi'S v., xxvi. 529. " Lovelace v., xxiii. 384. " V. Nelson, xxv. 309. .&fe, 22. " V. Petlus, X. 755. . . . Uses and Trusts, 27.. Will, 11. " V. See, xxi. 51.3. . Co.ifs, 14. T. Small, V. 525 .. . New Trial. 67... Practice, 275 . . Prac JSup Court, 9 " Starr v., xviii. 410. Stieber v. Wensel, xix. 513. ..Libel and Slan- der, 8, 23. Stiles, Mason v., xxi. 374. Stillwell, TJidgely v., xxv. 570. " llidgley v., xxvii. 128. Stine V. Austin, ix. 554. . .Mechanics' Lien, 6. " Tanner v., xviii. 580. " V. Wilkson, x. 75. Chancery, 84. .Deed of Trust' 6, 7. Stinson. liayden v., xxiv. 182. Stoallings v. Biiker, xv. 48.1 . ..Partnership, 1. Stokes V. McAllister, ii. 163. .Dower, 5-7. " V. 'Fallon, ii. 32 . .Administration, 1 22 Dower, 1. " V. Stokes, i. 320. .Husb and Wife, 99, 109, 110, 112, 117. StoUings T. Sappington, viii. 118. . .Assuni, 9. Stonam v. Waldo, xvii. 489 . . Contract, 24, 72 . . Witness, 27. Stone V. Bennett, viii. 41 . . Interest, 2, 5, 20. " T. Corbett, xx. 350 Bonds N and Accts, 52, 65. .Jurisdiction, 41 Practice Sup Court, 64. " V. Graves, viii. 148 Jvjs Peace, 2. . . ^Pleading, 29. " Hempstead v., ii. 65. " Laughlin v., v. 43. " V. Malot, vii. 15S. .. For Enand Dei,i8. " Neal v., XX. 294. " Pinkston v., iii. 119. " V. Powell, v. 435. .Mai Pros, 9, 10. " v. The State, xii. 400. ..Auctioneers, 2. " The State v., xv. 513— xxv. 555. V. Stone, xviii. 389. .Dower, 30. Stoner, Roberts v., xviii. 481. " V. The State, iv. 614 ... . Habeas Cor- pus, 1. Stoner v. The State, iv. 368 . . Crim Law, 354. Stong V. WilkFon, xiv 116 .... Admin, 43, 160, 16J, 163, 167. • Stoops V. Devlin, xvi. 162. .. .Landlord and Tenant, 52. Storrs V. The State, iii. 9, . . .Dramshops, 12. Story, Long v., x. 636 — xiii. 4. Stothaid V. Aull, vii. 31&. .. .Agency, 7.... Witness, 55. Stothert v. Knox, v. 112 Assumpsit, 31. Stotts, The State v., xxvi. 307. Stouse, Skinner v., iv. 93. Stout V. Calver, vi. 254. . .Error, 51 New Trial, 39. " Chinn v., x. 709. " V. Lewis, xi. 438 Practice, ii. Strader, Johnson v., iii. 355. 359. Strange v. Ellis, i. 412. . . .Recognizance, 6. Strattou V. Harriman, xxiv. 324 . . Master and Slave, 9. Street v. Bushnell, xxiv. 328 Costs, 34. Streiblein, Lemp v., xii. 456. Streit, Sutter v., xxi. 1 57. Strickland v. McCormick,. xiv. 166 Can. veijances, 56. Strong V. Hopkins, i. 530 Bills Ex and P Notes, 97. Strother V. Christy, ii. 148 Public Lands, 92 Record, 17. " Ruby v., xi. 417. " V. The State, i. 605 Atty at Law, 9, 10 Error, 13. " V. The State, i. 772 Contempt,!. " V. Rector, i. 361 . . .Pub Lands, 179, 188. Stubblefleld v. Branson, xx. 301 Consider- ation, 15. Studley", Newman v., v. 291. Stumbo, The State v., xxvi. 306. Sturgeon, Eddy v., xv. 198. " Emmerson v , xviii. 170. Sturgess v. St. Bt. Columbus, xxiii. 230 Boats and Vessels, 46. Sublet, Peay v., i. 449. Sublett V. Noland, v. 516 Contract, 27 Justice Peace, xiiii Sublette, Cunningham v., iv. 224. " Pyer v., vi. 14. Sugg V. Blow; xvii. 359 .. . Master and Sermnt, 1,2. Suggettv. Cason, xxvi. 221 Frauds and Perjuries, 24, 34. ..Replevin, 15. Sullivan, Johnson v., xxiii. 474. Sumner v. Whitley, i. 708. . . Chancery, 57. Sumners v. Tice, i. 3i9. . .Pleading, 113 Practice, 55. Sunday V. The State, xiv. 41 7... Cn'm Law, 327, 412. Susan V. Hight, i. 118. . .Freedom, 11. Sutter V. Streit, xxi. 157. . .Evidence, 147 Practice, 17S, 183, 296. Sutton V. Clark, ix. 555. . .Practice, 171. " V. Smith, xiii. 120. ..Lib and Slan,37. " ' The State v., xxiv. 377,380— xxv. 300. Swadley, The State v., xv. 515. Swain v. Burnley, i. 404. . . Cliancery, 60. " V. Gilbert, iii. 347 .. . Will, 27. LIST OF CASES. Ixxxv Swan V. O'FalloTi, vii. 231 ... Attachment, 54 PrarAice, 133. Swartz V. Chappell, xix. 304^ . . .Practice Sup Court, &3...Sale,9. " Parhy v., xi. 217. , " T. Page, xiii. 603. . . Conveyances, 8. . . Public Lands, 164. Swayne, Tipton v., iv. 98. Sweaney, Burton v., iv. 1. Swearingen V. Knox, x. 31 . . . .Agena/, 3 . . . Pleading, 108. .Practice, 171. V. Newman, iv. 4.56. .Error, il. V. Orne, viii. 707. ..Assum, 53. . . Practice. 216. V. Slii-er, V. 241 . .Assignt, 13, 26. T. The State, v. 329 Breach feace, 8. T. St. Bt. Lynx, xiii. 519... Soate and Ves, 3. T. Taylor, xiv. 391 .. . Devise and Leg. 16. Sweater, Nettles v., ii. 100. Sweazy v. Nettles, ii. 6 . . Pleading, 60. Sweeney, Labeaumev., xvii. 153 — xxi. 166. " T. Willing, vi. 174 Assum, 28 Pleading, 100. Sweringen v. Eberius, vii. 421 . . .Attachment, 77. .Execution, 14. Mayfield v., iv. 220. " Smith v., xxvi. 551. Swinney, Collier v., xiii. 477 — xvi. 484. Switzer v. Carson, ix. 732 . . Attachment, 64. " V. Connett, xi. 88. .Aqency, 30,31,43. " Glasgow v., xil. 395. Syhert v. Jones, xix. 86 . . Consid, 38. Sydnor, Cottle v., x. 63. Sykes v. Planters' House, vii. 477. .Action, 18 Sylvester, Benoist v., xxvi. 585. Sylvia V. Kirby, xvii. 434. .Freedom, 6. Tabor, Fisk v., ix. 141. " V. Jameson, v. 494. .Petition in Debt, 16. Lee v., riii. 322. " Walter v., xxi. 75. Tackett v. Huesman, xix. 525. . . Trespass, 15. Tagart v. The State of Indiana, xv. 209 . . . Limitations, 3, 51. Taggart, Morgan v., i. 403. Talbot v. Greene, vi. 458 Costs, 10. " V. Harding, x. 350 Garnishment, 19. " V. Jones, V. 21 7 Fraudulent Convey- ances, 27 Insolvents, 4, 5 Practice, 274. " Jones v., iv. 279 — ix. 120. " V. Mearus, xxi. 427 Admin, 124. Talbott, Filley v., xviii. 416. Tally V. Thompson, xx. 277 Execution, 33. Tanner v. Ii-win, i. 65 Appeal, 6. " Irwin v., i. 210. " V. Roberts, i. 416 Insolvents, 1 Pleading, 49. " V. Stine, xviii. 580 Execution, 136. Tapley v. Labeaume, i. 550. . Covenant, 3i~36. Tappan, Muldrow v., vi. 276. " Phelps v., xviii. 393. Tate V. Barcrofk, i. 1 63 . . . Covenant, 21 Practice Supreme Court, 6. " Cason v., viii. 45. Tate V. Evans, vii. 419 Agency, 14. " Ex parte, ix. 660. . . .Fees, 4. " Lewis County v., x. 650. " Woolfolk v., XXV. 597. Taylor v. Blair, xiv. 437 .. . Amendment, 20 . . . Chancery, 67. " V. City of Carondelet, xxii. 105 . . Land- lord and Tenant, 14. " V. City of St. Louis, xiv. 20 . . Corpora- tion, 41 . . Way, 3. " Crane v., vii. 285. " V. Forman, xii. 547. . Cosfs, 40. " V. Jeter, xxiii. 2i4.. Secur, 25. " V. Labeaume, xiv., 572. . .Agency, 8. .. Practice, 142. " V. Labeaume, xvii. 338. . . Agency, 1 1 . " v. Larkin, xii. 103. . .Bonds, Notes and Accts, 37. . .Judgment, 28. . . Wit- ness, 75. " V. Maguire, xii. 313. .Damages, 2. " V. Majjuirc, xiii. 51 7. .Damages, 2. " V. McKnight, i. 120 Error, 34. " V. McKnight,.i. 278 . . Prac Sup Court, 5 " McKnight v., i. 282. " V. Russell, viii. 701 - Prac Sup Court, 74. " Russell v., iv. 550 — v. 244. " The State v., xxi. 477. " V. St. Bt. Robert Campbell, xx. 254. . Boats and Fes, 41-44. . . Com Car, 13. .Partnership, 36. " Swearingen v., xiv. 391. " Trigg v., xxvii. 245. " T. Ulrici, xix. 89 . . Chancery, 73. " v. Wilbum, XX. 306. . Will, 36. " v. Zepp, xiv. 482. .Estoppel, 1, 2. Tayon v. Hardman. xxiii. 539. ..Perpet Testi- mony, 1 . .Public Lands, 168. Teass, Dudgeon v., ix. 857. Temple v. Cochran, xiii. 116. .Attachment, 58. " V. Price, xxiv. 288. . . Chancery, 128. . Parent and Child, 3. Templeton v. Jackson, xiii. 78. . . .Assum, 7. " V. Wolf, xix. 101 . .Practice, 71. Tennessee Ins. Co., Eddy v. xxi. 5S7. " " " Morrison v., xviii. 262. " " " V. Scott, xiv. 46. . ./ns, 55. Tennessee M. & F. Ins. Co., McAllister v., xvii, 306. Tennison, Dickey v., xxvii. 373. Terrell v. Hunter, xxi. 436.. Bills Ex and P Notes, 34. .Practice, 188. Terrill v. Boulware, xxiv. 254 Descts and Distributions, 10. Tesson, Bank of Missouri v., i. 617. " V. Tesson, xi. 274. . Chancery, 161. Tetherow, Clawater v., xxvii. 241 . " V. Grundy County Court, ix. 117. .. . Error, 23, 24. Teubner v. MoUer, xii. 528. . Chancery, 76. Tevis v. Hughes] x. 380. .Attachment, 19. " V. Tevis, xxiii. 256. .Administration, 92. " v. Tevis, xxiv. 535 Bills Ex and P Notes, 35. Thayer v. Campbell, ix. 211 .Mart, 23, 36-38. Theoteste v. Chouteau, ii. 144 Slaves and Slavery, 6. Thevenin, The State v., xix. 237. Thomas v. Alton, v. 534. . Witness. 82. '• V. Black, xxii. 330. ..Limitations, 51. Ixxxvi LIST OF CASES. Thomas v. Boerner, xxv. 21 ..Pub Lands, 13. " V. Cox, -vi. 50%.. Bonds, N andAcrts, 23 . . Covenant, 28 , . Pleading, 39. Crole v., xvii. 329 — ^xix. 70. Dunnica v., xr. 385. Hays v., iii. 335. V. Meier, xviii. 573 Husband and Wife, 79, 84. ■ Powell v., vii. 440. V. Kelfe, ix. 373.. Set-of, 28. V. Reynolds, vi. 462. .Assignment, 20. Eisher v., i. 739 — ii. 98. If. Starling, i. 583. . .Loan Office, 1. v. Starling, i. 696. . .Laws, 68. V. Tlie State, vi. 457 Crim Law, 230, 281. V. The State; x. 235 . Breach Peace,\6 The State v., xvii. 503 — xix. 613. "Usher v., x. 761. V. Van Doren, vi. 201 Pleading, 25, 50. V. Wash, i. 665. . .Bonds, Notes and Accounts, 70. Wells v., x. 237 — ^xxvii. 17. Wright v., iv. 577. V. Wyatt, xxv. 24. .Pub Lands, 13. Thompson V. Allsman, vii. 530. .Assump, 11. Bell v., iii. 84. " V. Botts, viii. 710. . .Practice, 243 . . . Warranty, 8. " Byrne v., i. 443. V. Ciiild, vi. 162. . .Neiv Trial, 3. " V. Chouteau, xii. 4S8. .Agency, 16. " V . Crmcher, xxvi. 319.. Contract, 34 V. Curtis, ii. 209. . .Appeal, 39, 73. " V. Curtis, ii. 229. . .Appeal, 39. " Dobbins v., iv. 118. " EUenmann v., x. 587. " V. Elliott, V. 118. . .Pleading, 33. " Ewing v., xiii. 132. " Hite v., xviii. 461. " V. Kellogg, xxiii. 281 . .Payment, 9. " V. Lyon, xx. 155. .Chancery, 66. . Infants, 8, 9. " ' Moore v., vi. 353. " Moss v., xvii. 405. '• V. Northcott, i. 224. .Error, 21. " V. Eenoe, xii. 157.. Estop, 13.. Uses and Trusts, 2, 3. " Skinner v., xix. 528 — xxi. 15. " V. Smith, i. 404. .Error, 31. V. Smith, viii. 723. .Attachment, 28. " Spear v., i. 581. " The State v., xxvii. 365. Tally V.', XX. 277. " V. Wineland, xi. 243. .Jii*/*, 33. Thoms V. Greene, vi. 482 . .Assumpsit, 49, 50. Thomson, Brotherton v., xi. 94. " V. Eoatcap, xxvii. 2$3 .. Bonds, Notes and Accounts, 104. Thorn, Russell v., i. 390. Thornhill, Bailey v., i. 711. Thornton V. Crowther, xxi v. 164 Bonds, Notes and Accts, 79. .Evid, 49. " V. Pigg, xxiv. 249.. Mortgage, 45, 46, 70. " Price v., x. 135. " V. Rankin, xix. 193. .Bills Ex and P Notes, 51. Thornton v. Smith, vii. 86. .Action, 22. " V. Thornton, xxvii. 302. .Infants, 21. .Partition, 10, 12. Thorp, McLean v., iii. 215 — iv. 256. " Packwood v., viii. 636. Thurmond, Miller v., xx. 477. Thruston v. McClanahan, v. 521. Thurston v. Perkins, vii. 29 . . Partnership, 8. Tibeau V. Tibeau, xix. 78.. Action, 6... Con- vey, 82. .Pleading, 155. " ■ T. Tiheau,xii.n. 77 ..Mortgage, 5.. Prac- tice, 167. Tice, Summers v., i. 349. Tiemanu, McDonald v., xvii. 603. Tieman v. Johnson, vii. 43. . . .Landlord and Tenant, 44. Wilson v., iii. 577. Tiffin V. Forrester, viii. 642 New Trifd, 51. Merry v., i. 725, 780. " V. Millington, iii. 418 Appeal, 50. Tigh V. Chouquette, xxi. 233 . . . Conveyances, 9 . . . .Public Lands, 45. Timmerman, Woods v., xxvii. 107. Timmons v. Chouteau, xiii. 223 . . Chancery,! 80 Tindall v. Johnson, iv. 1 13 . . . . Depositions, 25. " V.Johnson, v. 179 ....■ Laws, 2 Public Lands, 181, 182, 193. Tindle v. Nichols, xx. 326 Jury, 5. Tinsley, Owens v., xxi. 423. Tipton, Montgomery v., i. 446. " V. Swayne, iv. 98 . . . . For Entry and Det, 29, 30. Tison v. Labeaume, xiv. 198. . . Chancery, 14. Titus, Harryman v., iii. 302. Todd, Aiken v., xx. 276. " V. Boone County, viii. 431 New Trial, 60 . . . Witness, 92. " Boohe County v., iii. 140. " Collins v., xvii. , 537. " Deane v., xxii. 90. " Dowling v., xxvi. 267. " V. Gunn, xxi. 306 Appeal, 36, 37, " Gunn v., xxi. 303. " January v., i. 567. " V. The State, i. 566 Crim Law, 244. " The State v., xxvi. 175. Todd, White v., x. 189. Toler V. Hayden, xviii. 399. .^r6 andRef, 23. Tolson V. Gamer, xv. 494 Contra/^, 29 . . . Demand, 16. " V. Tolson, x. 736 Chancery, 26. Tombs V. Tucker, vi. 16 Chancery, 18. Tomlinson, Carrico v., xvii. 499. Tompkins, Sayre v., xxiii. 443. Toney, City of St. Louis v., xxi. 243. " Ex parte, xi. 661 Error, 4 flo- beas Corpus, 4, 5. " Rey v., xxiv. 600. Tong, Hughes v., i. 389. " V. Matthews, xxiii. 437 . . . Conveyances, 48 . . . .Damages, 18. Tomey v. The State, xiii. 455 . . Crim Law, 85. Towler, Phillips v., xxiii. 401. Town V. Clerk Sup. Court,, ii. 26. .Error, 32. " Harrison v., xvii. 237. Town of Carondelet v. Allen, xiii. 556 Contract, 21 Practice, 43. Town of Louisiana v. Hardin, xi. 551 Lo- cal Decisions, 18. LIST OF CASES. Ixxxvii Town of Potosi t. Casey, xxvii. 372 Beoe- nue, 38. Townsend v. Knley, iii. 288 Appeai, 62. " Phillips v., iv. 101. Trabue, Mann v., i. 709. Tracy, Dougherty v., xi. 62. " V. The State, iii. 3 Laws, 42 Mer- chants and Grocers, 1. " Vaughn v., xxii. 415 — xxv. 318. Tramell v. Adam, ii. 155 Freedom, 9, 12, 20 ... . I/imitations, 58. Trammel, Nancy v., iii. 306. Travis, Abington v., xv. 240. " Duncan t., iv. 369. Treat v. Brush, xi. 310 Pleading, 85, 86. Trent v. Trent, xxiv. 807 Admin, 132. Trigg, Shepherd v., vii. 151. "v. Taylor, xxvii. 245 . . BSls Ex and Prom Notes, 14. Trimble v. Hensley, x. 309 . . Devise and Leg, 1 1 " Oldham v., xv. 225. Triplett, Maupin v., v. 422. " Renshaw v., xxiii. 213. Trotter v. St. Louis Pub. Schools, ix. 68 Pvhlic Lands, 3, 110, 135-137. Trotters v. Winchester, i. 413 . . Will, 27 . . Wit- ness, 76. TruesdeU v. Callaway, vi. 605 Frauds and Perj, 4 Lien, 10. Trustees of Bremen, Kayser v.,xvi. 88. " Lin. Acad., Bailey v., xii. 174. " Min. Sch. Dist., Bailey v., xiv. 498. " School Dist., Allen v., xxiii. 418. Tucker, Coburn v., xxi. 219. " Mitchell v., x. 260. " O'Fallon v., xiii. 262. " Tombs v., vi. 16. " Turley v., vi. 583. Tufli, Knighton v., xii. 531. Tuley, The State v., xx. 422. Tnmilty v. Bank of Missouri, xiii 276 . . . Bills Ex and Prom Notes, 101 . Tunstall v. Hamilton, viii. 500.. .Practice, 74. 88, 93. Turley, Ashley v., xiii. 430. " V. Barcroft, i. 502. . Covenant, 24. " V. Tucker, vi. 533.. Trover, 9, 19. Turner v. Belden, ix. 787. .Evidence, 2, 124. " V. Crigler, viii. 16. . Consideration, 7. " Ferguson v., vii. 497. Finney v., x. 207. " HookV., xxii. 333. " Marsh v., iv. 253. " Moore v., xix. 642. " V. N 'rthcut, ix. 249. . .Practice, 15. " Wilson v., iv. 274. Tutt V. Addams, xxiv. 186. . .Partnership, 27. " V. Hobbs, xvii. 486. . . Officer, 7. Tuttle, Davis v., x. 201. " V. Gordon, viii. 152. . .Garnishment, 21. Twitchell v. St. Bt. Missouri, xii. 4\2... Boats and Vessels, 1 . Twyman v. Twyman, xxvii. 383 Husband and Wife, 108, 116. " Tyler, Magwin v., xxv. 484. U. Ubsdellv. Cunningham, xxii. 124 Bonds, Notes and Accounts, 7. XJbsdell V. Cunningham, xxvi. 385 . . .Practice, 194. IThrig, Chouteau v., x. 62. Ulrici V. Papin, xi. 42 Chancery, 85, 137, 158-160, 173. " Taylor v., xix., 89. Underwood, Bice v., xxvii. 551. Union Fire Co., O'Brien v., vii. 38. Union Ins. Co., Able v., xxvi. 56. " " Dix v., xxiii. 57. United States v. Ferguson, xvi. 258. .Attach- ment, 22. " " T. Gamble.x. 457..Procft'ce,327 Unterrein v. McLane, x. 3i3.. Eecog, 20-23. Upton, Lockridge v., xxiv. 184. " The State v., xx. 397. Urin V. Waugh, xi. 412. . .Mechanics' Lien, 9. Usher v. Thomas, x. 761 . ..Execution, 22. Vai V. Weld, xvii. 232. Landld and Ten, 19,48. Valentine, Collier v., xi. 299. " V. Havener, xx. 133. . Conveyances, 31 . . Lien, 15.. Mortgage, 4 1 . " Hofelman v., xxvi. 393. Valiant, Walden v., xv. 409. Vallad V. Sheriff, ii. 26. .Fugitives, 1. Valle V. American Iron Mountain Co., xxvii. 4:55.. Mortgage, 27-30. " Bean v., iL 126. " V. Bryan, xix. 423. .Admin, 64 Uses and Trusts, 8. " V. Clemens, xviii. 486 .. . Conveyances, 76 . . Estoppel, 4. " V. Fleming, xix. 454. .Admin, 135, 136, 140, 141, 144. " Mount v., xix. 621. Valois V. Warner, i. 730. .N Trial, 24. . Wit- ness, 99. Van Arsdale v. Krum, ix. 393 . . . Attachment, 17, 18. Vancourt v. Moore, xxvi. 92. Covenant, 43-45. Vandemal v. Dougherty, xvii. 277 ..Bonds N and .Sects, 99. Vanderpool, Brand v., viii. 507. Vandeventer, Biddle v., xxvi. 500. Van Doren v. Relfe, xx. 455 . . Covenant, 20. " Thomas v., vi. 201. Vanlandingham, Einey v., ix. 807. Vannieter, Williams v., viii. 339. Van Winkle v. M'Kee, vii. i35 . Assignmt, 11. Vanzant, Barton v., i. 190, 192. " Fletcher v., i. 196. " V. Hunter, i. 71 . . Trover, 2, 17. Vamer, Holt v., v. 386. Vasquez v. Ewing, xxiv. 31 . . Chancery, 116 . .' Estoppel, 10. ..Public Lands; 82. " V. Richardson, xix. 96 .. Administra- tion, 142, 143. .Bound and Des, 9. Vasseur v. Benton, i. i96 . .Pub Lands, 146. Vaughan, Eaton v., ix. 734. " Reed v., xv. 137. Vaughn v. Bank of Missouri, ix. 375 Prac Sup Court, 75. " v. Graham, xi. 575.. Arb and Ref, 3, 19. " T. Guy, xvii. 429. . Gift, 4. " Link v., £vii. 585. Ixxxviii LIST OP GASES. Vauglinv. Locke, xxvii. 290 ... Landlord and Tenant, 30, 31. " V. Lynn, ix. 761 . . Payment, 2. " V. McQueen, Ix. 327... .Husband and Wife, 1, 2. " T Montgomery, v. 529 .... Prac Sup a, 9. " Eeed v., x. 447. " V. The State, iv. 290 . . Crim Law, 427. " V. The State, iv. 530 . . Auctioneers, 5, 6 . . Crim Law, 204, 210. ' " The State v., xxvi. 29. " V. Tracy, xxii. 415. . Convey, 44, 45. " T. Tracy, xxv. 318. . Convey, ii, 46. Vaulx V. Campbell, viii. 224. .Practice, 261, 293.. Prac &jo a, 58. " Veal V. Chariton County Court, xv. 412... /Schools, 6, 7. " Donohoe v., xix. 331. Vernon v. Boggs, i. 116, 274. .Mandamus,.!. Vest V. Green, iii. 219. .Securities, 1. Vice, Maguire v., xx, 429! Vincent v. Duncan, ii. 214. .Bvid, 83. . .Free- • dom, 2 . . Slaves and Slavery, 7, 1 0. " V. Pitman, i. 712:. tvid, 164. Virden, Green v., xxii. 506. Viti V. Dixon, xii. 479. .Mec Lien, 6. Vivion V. Lafayette County, xiii. 453. .New Trial, 3. Vogel V. Vogel, xxii. 161 . .Husb and Wife,20. Von Phul V. City of St. Louis, ix. 38. .Prac Sup Ct, 75. - " Waller v., xiv. 84. Voorhees v. St. Bt. Eureka, xiv. 56. . ..Boats and Vessels, 32. Vossel V. Cole, x. 634 Action, 12 iSe- daction, 2, 3. W. Wacker v. "Wacker, xxvi. 426 Aliens, 2. Waddingham v. City of St. Louis, xiv. 190. . . Corporation, .i2 . .Proeess,\7 " Cutter v., xxii. 206. " V. Gamble, iv. 465 Deposi- tions, \0 .... Ejectment, 37, 38. . . Partition, 27. Waddell, Austin v., x. 705. Waddle,, Collins v., iv. 452. " V. Loper, i. 635 Gaming, 1 . Wade, Dunn v., xxiii. 207. " V. Emerson, xvii. 267 Pleading, 156. " V. Goldsberry, xvii. 270 Pleading, 156. " V. Jones, XX. 75. . . .Execution, 28. " V. Scott, vii. 509. . . Practice, 129, 16 7. Wadlow V. Perryman, xxvii. 279. :Evid, 86. Wagemann v. Jordan, xix. 503 Practice Supreme Court, 36. Wagner, Chauyin v„ iviii. 531 . " V. Jacoby, xxvi. 530.... New Trial, 8 Witness, 28. " V. Jacoby, xxvi. 532 ... . Action, 58. > " St. Bt. Western Belle v., xi. 30. Wahrendprff V. Whitaker, i. 205. ..Agency, 14 Evidence, 163, 165. Wainrightv. Rowland, xxv. 53. . P'Jrtn,25j,32. Walcop v. McKinney, x. 229 Eject, ,9. Walden v. Valiant, xv. 409 .... Gurnisht, 36. Waldo V. Russell, v. 387 . . . Convey, 28 . . .Evi- dence, 7& . .Practice, 318. Waldo, Stonam v., xvii. 489, Waldstein v. Bredell, xvii. 352. .Pleading, 130. Wales, Bidault v. xix. 36 — xx. 456. " v. Chamblin, xix. 500. .Pleading, 153. " V. Nelson, x. 19. .Bond, 29. " Niedelet v., xvi. 214. " Winston v., xiii. 569 — xvii. 370. Walker v. Bank of Missouri, viii. 704. .Bank- ing, 17.- Bills Ex and Prom Notts, 'jj. " V. Borland, xxi. 289 Trespass, 45. " Carson, v., xvi. 68. " V. City of St. Ijouis, xv. 563. . . .Beve- nue, 19. Griffith v., iii. 191. " V. Keile, viii, 301 . .Seal, 1. " V. Likens, xxiv. 298. . Roads and High- ways, 7, 18. " V. Maiiro, xviii. 564 .. . Action, 32 . . . Pleading, 126. " V. Newhouse, xiv. 373. . .Record, 27. . Trespass, 33. " Rachael v., iv. 350. " V. Seymour, xiii. 592 Landlord and Tenant, 4. " The State v., i. 546. " V. Walker, xxv. 367 . .Husb and Wife, 36, 37, 61. " White v., xxii. 433. Wall V. Coppedge, xv. 448. .Dower, 14.. Evi- dence, 114. " Miller v., xxvii. 440. " The State v., xv. 208. Wallace v. Boston, x. 660. . .Pleading, 41. . . . Practice, 309. " Crowley v., xii. 143. " Poster v., ii. 231. Hatfiehl v., vii. 112. Waller, Hays v., ii. 222. " V. Von Phul, xiv. 84 . .Ejectment, 48 Practice, 128.. Public Lands, Si. Walls, Eilley v., iv. 271. Walsh V. Agnew, xii. 520. .Attachment, 52. . . Depositions, 21 Practice, 107. . . Record, 38, Witness, 5. Columbus Ins, Co. v., xviii. 229. V. Edmonson, xix. 142. .Practice, 187. V. Homer, x. 6 . . . Boats and Ves, 50. . . Insurance, 43, 44. V. Mathews, xi. 131. Devise and Leg, 31. Michau v., vi., 346. Riddick v., xv. 519. Robert v., xix. 452. Watson v., x. 454. Walter v. Cathcart, xviii. 256. .For Entry and Det, 46 Practice Sup Court, 27, 65. " Cathcart v., xiv. 17. " V. MeSherry, xxi 76. .For Entry and Detainer, 43. " V. Tabor, xxi. 75. . .Judgment, 101 .. . " V. Wimer, xxiv. 63 . .Assignment, 30. Walthan, Ramsey v., i. 395. Walther v. Warner, xxv. 277. ..Laws, 25, 26, 61 . . Way, 25. V. Warner, xxvi. 143 . 3>espass,49-51 . Walton, Baldridge v., i. 520. " Corwin v., xviii. 71. " McDonald v., i. 726— ii. 48. LIST OF CASES. Ixxxix Walton, Rennick v., vii. 292. " V. "Walton, xvii. 376 . . .AThitratimis and References, 5-7. .Evidence, 143. " V. Walton, xix. 667. .Prac Sup Ct, 37. " V. Witiington, ix. 545. . .Mortgage, 24. Warberton v. Woods, vi. 8. .Slienff, 6. Warburton, Collins t., iii. 202. Ward, Bii-d v., i. 398. " Broaddus r., viii. 217. " Brown v., i. 209. " V. The State, ii. 120 Crim Law, 278, 387. " V. St. Bt. Little Eed, vii. 582 . .Pleadg, 68. " T. St. Bt. LittleRed,viii.358../n/anfe,l. Warden, Floumoy v., xvii. 435. Warder v. Evans, ii. 205. . .Pleading, 51, 75. Warford, Snyder v., xi. 513. Wame v. Anderson, vii. 46. .Evidence, 167. .. Pleading, 117. " V. Hill, vii. 40. . .Petition in Debt, 5. " V. Prentiss, ix. 540 .... Landlord and Tenant, 24. . . Witness, 48. " Prentiss v., x. 601 . " The State v., xxvii. 418. Warner v. Morin, xiii. 455 .. . New Trial, 2. " Southerlaud v., xxi, 512. " Valois v., i. 730. " Walther v., xxv. 277 — xxvi. 143. Warrance, Alexander v., xvii. 228. Warren v. Lusk, xvi. 102. . .Evidence, 13. . . . Judgment, 60. " V. Palmer, xxiv. 78 . . . Guaranty, 2. " V. Ritter, xi. 354. .For Entry andDet, 2\, 31... New Trial, 16. V. The State, xi. 583. .. Corestaife, 18. Wash V. Foster, iii. 205 .. . Pleading, 76. " Lecompte v., iv. 557 — ix. 547. Lindell v., iii. 512. " T. Randolph, ix. 141 .. . Pleadinq, 31. " Thomas v., i. 665. Washington, Dufiras v., xii. 572. " Quinnett v., x. 53. Washington County, Rnggles v., iii. 496. Wasson v. English, xiii. 176.. Chancery, 80. Waterman v. Frank, xxi. 108 . . .Bond, 22 Execution, 62, 66, 67. Waters, Jones v., xvii. 587. " Powers v., viii. 299. " Ramsey v., i. 406. " Wetzell v., xviii. 396. Wathen v. English, i. 746 . . .Eject, 20. . .Prac Sup Ct, 6. " V. Farr, viii. 324. .Justice Peace, 9. " Smoot v., viii. 522. Watkins, Bircher v., xiii. 54. " Burckhart v., iv. 72. " Edwards v., xvii. 273. " V. Finney, xxiii. 48. .4p;)mZ, 69. " Finney v., xiii. 291. " Ream v., xxvii. 516. ■" V. The State, vii. 334. .&■/(!, 14. The State v., iii. 480. " White v., xxiii. 423. Watson, Ashby v., ix. 235. " V. Bissell, xxvii. 220. .Com^ances, 92. Evidence, 127. " Dorsey v., xiv. 59. " Fowler v., iv. 27. " Gitt v., xviii. 274. M Watson, Gnelberth v., viii. 663. " Kinsey v., vi. 209. " Maids v., xiii. 544. " Menkens v., xxvii. 163. " V. Musick, ii. 29 Libd and Slan- der, 31 Practice, 239. " Penn v., xx. 13. " Richardson v., xxiii. 34. " V. The State, v. 497 Crim Law, 351 . The State v., i. 502. " V. St. Louis County, xvi. 91 . . Costs, 13. " V. Walsh, X. 454 Practice, 89. Watts, Austin v., xix. 293. " V. Watts, xi. 547 .... Chancery, 43. Waugh, GenesteUe v., xi. 367. " MUbum v., xi. 369. " Rector v., xvii. 13. " Urin v., xi. 412. Wayne, West v., iii. 16. Waysman, Howe v., xii. 169. Wear, Bryan v., iv. 106. " V. Bryant, v. 147 . . . .Laws, 2. . . .Public Lands, 181, 182, 193. " V. McCorkle, L 588. . .Practice Supreme Court, 6. Weatherford v. Farrar, xviii. 474. . .Evid, 59. Weaver v. Beard, xxi. 155. .Bonds, Notes and Accts, 58. " Jewett v., X. 234. " V. McElhenon, xiii. 89 ,Evid, 195. " V. Robinett, xvii. 459 . . Pub Lands, 2. Webb V. Browning, xiv. 354 . . ,Atty at Law, 14. " V. Coonce, xi. 9 , . . . Practice, 51. " V. Gamer, iv. 10 Debt, 4. .Judgt, 55. " V. Morgan, xiv. 428 . . Bonds, Notes and Accts, 77. " V. Protection and Mtna, Ins. Co., xiv. 3 . .Insurance, 7. " St. Bt. Missouri v., ix. 192. " V. Stevens, xiv. 480. .Pleading, 144. Webber v. The State, x. 4. . . Crim Law, 346. Weber v. Manning, iv. 229. .Limitations, 8.. . Pleading, 67. " V. Schmeisser, vii. 600. ..Estoppel, 11. " The State v., xxii. .321 . Webster, Barnes v., xvi. 258. " V. Heylman, xi. 428. .Trover, 7. " V. McMahan, xiii. 5S2 .. Practice, 45. " Overton v., xxvi. 332. Weed, Kennerly v., i. 672. Wegman, Patchin v., xix. 151. " Snead v., xxiii. 263 — ^xxvii. 176. " St. Louis Hos. Asso. v., xxi. 17. Weidemeyer, McClain v., xxv. 364. Weidman, Stein v., xx. 17. Weigel, Dannefelser v., xxvii. 45. Weimer v. Morris, vii. 6 . . . Prac Sup Ct, 36. " V. Shelton, vii. 237. . .Pleading, 110 . . Usury, 1, 5. Wein V. The State, xiv. 125. ..Crim Law, 99. Weisenecker v. Kepler, vii. 52. .Appeal, 40. Weiss, The State v., xxi. 493. Welch, Baker v., iv. 484. " Hawkins v., viii. 490. '• Rector v., i. 334. Welcker, Hogan v., xiv. 177. Weld, Vai v., xvii. 232. Welker, The State v., xiv. 398. Welles V, Biddle, ix. 158. .Practice, 63. LIST OF CASES. Welles V. Gaty, ix. 561 . .Assumpsit, 32. Wellman, Sparr v., xi. 230. Wells, Bank of Missouri v., xii. 361. V. City of Weston, xxil. 384 . .Reoenue, 16. Craighead t., xxi. 404. V. Gaty, viii. 681. .Practice, 63. Irwin v., i. 9. McKnight v., i. 13. Miller v., v. 6. V. Moore, xvi. 478. .Dower, 16. V. Sanger, xxi. 354 . . New Trial, 46, 47,64 St. Bt. Madison v., xiv. 360. Spitts v., xviii. 468. V. Thomas, x. 237. .Sale, 19. V. Thomas, xxvii. 17. . Com Car, 17. V. Wells, X. 193. ..Deiiise and Legacy, 22. Welton, Edwards v., xxy. 379. " T. Martin, vii. 307 . . Chancery, 70 . . Mills and MUldams, 3,4.. Nuisance, 1 . Welty, Boren v., iv. 250. Wenger, Dirlam v., xiv. 548. " Gaul v., xix. 541. Wensel, Stieber v., xix. 513. Wesson v. Horner, xxv. 81 . . Consid, 1. West V. FoiTest, xxii. 334. .Damages, 7 . .Nov Trial, 34. " McGowen v., vii. 569. " V. Miles, ix. 167 Assignment, 8, 9 Error, 55. " v. Wayne, iii. 16. .traud, 15. Western Ins. Co., Hutchinson v., xxi. 97. Westlake v. Moore, xix. 556. .Pleading, 150. Weston, Arthur v., xxii. 378. " Hnbbell v., xviii. 604. " V. Hunt, xix. 505 . . Witness, 90. Wetherford, The State v., xxv. 439. Wetter, Meyer v., xxv. 83. Wetzell V. Waters, xviii. 396. . .Admin, 74. . . Practice, 53. . Jrepass, 14. Whaley v. Cape, iv. 233. .Set-of, 26. Wheat V. The State, vi. i^b.. Ferry, 6, 7. Wheeler v. Barret, xx. 573. .Bills Ex and P Notes, 40. Wheldon, Collier v., i. 1. Whitaker, Wahrendorff v., i. 205. Whitcomb v. Whitcomb, xix. 5\4:..Appeai,33. White, Bank of Missouri v., xxiii. 342. " V. Bennett, i. 102. ..4^cncy, 35. " Bright v., viii. 421. " V. Bullock, xviii. 16. . Chancery, 195. " Caaon v., viii. 216. " V. Collier, V. 82.. Laws, 15 .. Petition in Debt, 14. " Drury v., x. 354. " Grimsley v., iii. 45, 257. " Johnson v., ii. 223. " Lyle v., xi. 624. " Martin v., xi. 214. " Price v., xxvii. 275. " Rhodes v., xi. 623. " V. Todd, X. 1S9... Mortgage, 10. " V. Walker, xxii. 433 Costs, 41 Practice, 192, " V. Watkins, xxiii. 423 .. . Deed of Trust, 3 . . . Frauds and Perjuries, 32, 33, 41 . . . Uses and Trusts, 29. " Young v., xviii. 93. " V. Zule, xiii. 233 . . .Appeal, 70. . .Juris- diction, 55. Whitehill, Scott v., i. 691, 764. Whitelow, Priest v., i. 259. Whitesides v. Cannon, xxiii. 457 . . . Husband and Wife, 50, 66. " Winny v., i. 472. Whiting V. Budd, v. 443 Pleading, 32 Practice, 9. " Magoon v., i. 613. Whitley, Skinner v., i. 708. Whitlock, Ellis v., x, 781. " Williams v., xiv. 552. Whitman, Smith v., xiii. 352. Whitmer v. Erye, x. 348 Covenant, 33 Evidence, 43. Whitmore v. Coats, xiv. 9 . . . Contract, 9 . . . Damages, 32. . .Practice, 294. " Flemm v., xxiii. 430. " V. St. Bt. Caroline, xx. 513 Common Carrier, 7, 14. Whitney, Coxe v., ix. 527. " V. The State, viiL 165 Crim Law, 101, 299. . .Practice, 119. " Wilkerson v., vii. 295. Whitsett V. Gharky, xvii. 325 . . .Appeal, 75. WhittingtOB, Carriger v., xxvi. 311. Whittelsey v. Dorsett, xxiii. 236 Adminis- tration, 164, 165. Whittlesey, Shreve v., vii. 473. Whyte V. Bennett, xx. 262. . Practice, 187. Wibbing v. Powers, xxv. 599. Mec Lien, 13, 23. Wickham, Harvey v., xxiii. 112. Wiggins V. Hammond, i. 121 . .Partnership, 15 . .Prac Sup Court, 70. " V. Lovering, ix. 259. .Admin, 103,112 " V. Rector, i. 478 . . .Bonds, Notes and Accts, 37. Wiggins EeiTy Co., Adams v., xxvii. 95. Wightman, The State v., xxvi. 515 — xxvii.121 Wilbur V. Clark, xxii. 503. .Practice, 197. Wilbum V. Hall, xvi. 426. .Record, 4. " v. HaU, xvii. 471 . .Judgment, 103. " Taylor v., xx. 306. Wilcox V. Daniels, xxii. 493 . . .For Entry and Det,U. " V. Powers, vi. 145. .Jus Peace, 31. Wilcoxson V McBride, xxiii. 40i. . .Practice, 296. Wildbahu v. Eobidoux, xi. 659 Chancery, 114, 115. .Evidence, 44. Wilder, Evans v., v. 313— vii. 359. " V. The State, iii. 414. .Jurisdiction, 15. Wildman, Milsap v., v. 425. Wiles V. Maddox, xxvi. 77. . . .Execution, 24, 25, 53. ■ Wiley, Eloyd v., i. 430, 643. " V. Robert, xxvii. 388 .. . Frauds and Perj, 12. .Partition, 26. Wilhight, The State v., xx. 422. Wilkerson v. Buchanan County, xii. 328 Way, 15. " V. Moulder, xv. 609 . . Ejectment, 32. " Parsons v., x. 713. " V. The State, xiii. 91 . . .Crim Law, 412. " V. Whitney, vii. 295 . . Chancery, 55. Wilkes, Kizer v., V. 5 1 9. Wilkins, Barton v., i. 74. " Hill v., iv. 86. " McKnight v., i. 308. LIST OF CASES. Wilkinson v. American Iron Mountain Co., XX. 122. Husb and Wife, 23, 91. " Clemens v., x. 97. " Menard t., iii. 92 — ^ui. 255. " V. Rozier, xix. 443 ITvsb and Wife, 22. Wilkson V. Blackwell, iv. 428. . Chancery, 119, 131. " Stine v., x. 75. " V. The State, xii. 353. . .Admin, 34. " Stongv., xiv. 116. "Willard v. Millers' and Man. Ins. Co., xxiy. 561 . .Insurance, 30, 46. Willi V. Peters, xi. 395. .Landld and Ten, 54, Williams v. Bower, rxvi. 601. Jurisdiction, 43 .Tus Peace, 27. " V. Boyce, xi. 537. .Execution, 9. " Boyer v., V.335. " V. Cocper Court of C. P., xxvii. 225 — Mandamus, 13. " V. Cowden, xiii. 2\\.... Demise and Leqacy, 30, 31. '■ Dameron v., vii. 138. " V. Dongan, xx. 186. .Limitatns, 74. " Fenton t., iii. 228. " Hackney v., iii. 455. " V. Harrison, iii. ill .... LiJiel and Slander, 35, ii . Practice, 210. " Lacy v., xxvii. 280. " Mitchell v., xxvii. 399. " Mooney v., xv. 442. V. Nat. Bridge Plank R. Co., xxi. 580. . .Roads and Highways, 21 ..Way, 19. " V. Rorer, vii. 556 . . .Mortgage, 4 . . . . Tender, 2. " V. Smith, xxi. 419 Bonds, Notes and Accts, 86, 87. " V. The State, iv. 480. . . Orim Law, 234. " V. The State, ix. 268 Crim Law, 176, 119.. New Trial, 51. " The State v., xix. 389. " V. St. Boat Morrisett, xxi. 144 Boats and Ves, 70. " V. St. Louis Circuit Court, v. 248 . . New Tiial, 10. " St. Louis Hos. Asso. v., xix. 609. " V. Vanmeter, viii. 339 . . Mai Pros. 11-13.. Practice, 211, 215. " V. Whitlock, xiv. 552 Action, 30, 31. Williamson, George v., xxvi. 190. " McKifiley v., xxiii. 65. " The State v., xvi. 394 — xix. 384 xxi. 496. " V. St. Bt. Missouri, xvii. 374 Boats and Ves, 11. Willing, Smith v., x. 394. " Sweeny v., vi. 174. Wills V. The Stat«, vjii, 52 . . Crim Law, 218. WUson, Adams v., x. 341. V. Atwood, iv. 366. .£)Tor, .52. V. Brown, xxi. 410. .Appeal, 35. V. Burks, viii. 446. .New Trial, 53. V. CockriU, viii. 1 . . Gift, 1, 2. Dillon v., xxiv. 278. V. Drumrite, xxi. 325. .Mortgage, 17. Wilson V. Drumrite, xxiv. 304. Uses and Trust, 30. " Dubois v., xxi. 213. " Freeland v., xviii. 380. " Helmv., iv. 41, 481. " v. Huston, xiii. 146 Bills Ex and Prom Notes, 80, 81. " V. Jackson, X. 329 .. .Judgment, 57,58. Keith v., vi. 435. " Lockridge v., -vii. 560. " T. Mann, viii. 8 Gift, 1. " Matthews v., xxvii. 155. " V. Melvin, iv. 592 Freedom, 6. " Munford v., xv. 540 — xix. 669. " Perrin v., ix. 147 — ^x. 451. " v. Petty, xxi. 417 Trover, 27. " Pitcher v., v. 46. " Randalls v., xxiv. 76. " Reed v., xiii. 28. " v. School Township No. 6, xxiii. 416 .... Sdiool Lands, 3. " Scoggins v., xiii. 80. " The State v., iii. 125. " V. Tiernan, iii. 577 Sci Fa, 4. " V. Turner, iv. 274 . . Petitn in ,Debt, 1 0. " V.Woodruff, V. AO. . ..Chancery, 154 Evidence, 113. Wim, Rutlierford v., iii. 14. Wimer, Barbee v., xxvii. 140. " Brooks v., XX. 503. " V. Bi-otherton, \ti. 2^1. .Jurisdiction, i&. " GiUett v., xxiii. 77. " V. Obear xxiii, 242. .i?racH(ion, 105, 106 " V. Pritchartt, xvi. 252 Garnishment, 37, 46. " V. Shelton, vii. 266 Bonds, Notes and Accts, 68 Pleading, 95. " Walter v., xxiv. 63. " Wise v., xxiii. 237. Winchester, McLara v., xvii. 49. " Trotters v., i. 413. Wineland v. Coonce, v. 296. . .Execution, 9. . Fraudlt Convey, 36. .Judgt, 41. Thompson v., xi. 243. Wing V. Campbell, xv. 275. . .Pleading, 123. Winn, Dodd v., xxvii. 501. " Grant v., vii. 188. Winny v. Whitesides, i. 472. . .Freedom, 6, 19 Slaves and Slavery, 2. Winright, Blount v., vii. 50. " The State v., xii. 410. Winston, Ashby v., xxvi 210. " Smith v., X. 299. " V. Wales, xiiii. 569. . .Practice, 119. " V. Wales, xvii. 370. . . Witness, 51. Winter, Moore v., xxvii 380. Winters, Dowd v., xx. 361 . Wise V. Darby, ix. 130... Eiror, 6... Execu- tion, 49, 50. " V. St. Louis Mar. Ins. Co., xxiii. 80. . . Insurance, 54. " V. Wimer, xxiii. 237 Assignment, 43 . . . Record, 8. Wishon, The State v., xv. 503. Withers v. Rodgers, xxiv. 340. . .Attack, 46. " Samuel v., ix. 165 — ^xvi. 532. V. Shropshire, xv. 631 . . .Busbandand Wife, 94. XCll LIST OF CASES. Withers v. St. Bt. El Paso, xxiv. 20i.. Slaves and Slavery, 18, 19. . Witness, 4:2. Withington v. Hilderbrand, i. 280. . .Practice, 268, 269. " Martin y., ir. 518. " Walton T., ix. 545. " V. Young, iv. 564. . .Practice, 319 . ..Trespass, 36, 37. > Witliington V. Withington, vii. 589 Prac Sup Court, 57. . Will, 2. Witt V. The State, ix. 663. . Crim Law, 111. Wittenburg v. Wittenbnrg, i. 226 . . Judgmt, 70 Witmary The State v., xii. 407. Woerner, Mason v., xviii. 566. Wohlien v. Speck, xviii. 561 . . Admin, 152. " Speck v., xxii. 310, Wolcott, Bennett v., xix. 654, " V. Lawrence County, xxvi. 272 . . Con- tract, 56. . County, 6. Wolf V. Cozzens, iy. 431 . . .Bonds, Notes and Accts, 9Q. .Garnisht, 28, 33. " V. Eobinson, xx. 459. .Admin, 131', 153. " Templeton v., xix. 101. Wolfe, Marshall v.. xi. 608. Wolff, The State v., xv. 168. Wolffe, Cohen r., xii. 213. Wood, Brown v., xix. 475. " V. Dalton, xxvi, 581 . For Entry and Det,5. " Davis v.. vii. 162. " V. Edgar, xiii. 451 . . Garniaht, 7. " V. Ellis, X. 382. .Judgment, 6. " V. Ellis, xii, 616, .Aclmin, 95, " V. Harris, xii, 74, .Pleading, 87, " King v., vii. 389. " McDaniel v., vii. 543. " Kicketson v., x. 547. " V. Buland, x. 143. .Action, 11. " V. Simmons, xx. 363. . , .Hush and Wife, 86, 118. " V. St, Bt, Fleetwood, xix, 529, ...Deposi- tions, 16. Evidence, li9 . Practice, 218. " V. St. Bt. Fleetwood, xxii. 560 Boats and Yes, 45. " V. St. Bt, Fleetwood, xxvii, 159 Boats and Ves, 5, 59. Wooden v. Butler, x. 716. . .Bonds, Notes and Accls, 24. Woodruff, Wilson v., v. 40. Woods, Bright v., viii. 428. " Easton v., i, 506. " V. Freeman, xv, 488 Pleading, 124. " V. Hosier, xxii.' 335 Neiv Irial, 4, " Perkins v., xxvii. 547. " V. Quarles, x. \1Q. ., Partnership, 6. " V. Eainey, xv. 484 . .Pleading, 124. " V. The State, x, 698 Admin, 13 Judgment, 86. " The State v., vii, 536. " V. Timmermau, xxvii. 107 Assign- ment, 27, 29. " Warberton v., vi. 8. Woodson, Gentry v., x, 224. " Hall v., xui. 462. " Kearney v., iv. 114. " Kritzer v., xix. 327. " v. McClelland, iv. 495 ... Chancery, 187. . . .Fraudulent Conveyances, 3 " Overton v , xvii. 453. Woodson v. Pool, xix. 340 . . Fraudulent Con. veyances, 10, 11, 32. " V. Scott, XX. 272 New Trial, 64. " V. Skinner, xxii. 13 Forfeiture, 1 . .. .St. Louis, 5-7. Woodward v. McGaugh, viii. 161 . , . .Evi- dence, 37 ...Set-off, 29. Miller v., viii. 169. The State v., viii. 35.3 — xxi. 265, Woody, Hai-ris v., ix, 112. " Rogers v., xxiii. 548. Wooldridge v. Draper, xv. 470. . Costs, 25, " Eads v., xxvii. 251, Woolfolk, Labeaume v., xviii. 514. " Myers v., iii. 348. " V. Tate, XXV. 597. .iVew 2n'a/, 38, Woosly, Hughes v,, xv. 492. Wooton V. Hinkle, xx. 290. .Sale, 23. Worley, Bond v., xxvi. 253. Worrell, The State v., xxv. 205. Worsham, Kingsland v., xv. 657. Worthington, McCabe v., xvi. 514. Wright, Bank of Missouri v., x. 719, " V, Cornelius, x. 174. Chancery, 135, 136. " V. Crockett, vii. 125. .Assignment, 14. ^ " Hill v., iii. 243. " v. Pratt, xvii. 43. ...Husb and Wife, 16 . .Limitations, 56. " Pratt v., y. 192. " V. Rutgers, xiv,585, .PubLands, 10,11, 117, 150, 183, 184, The State v., xiii. 243. " V, Thomas, iv. 577. . .Pub Lands, 172, , Record. 25, Wunsch v. Gretel, xxvi. 580. .For Entry and Detainer, 22. Wyan, Nelson v., xxi. 347. Wyatt, Thomas v., xxv. 24. Wyman v. City of St, Louis, xvii. 335 Revenue, 5. " Pond v., XV. 175. Wynne v. Aubachon, xxiii. 30. .Eecord, 7. Y. Yaiikee v. Crawford, xiii. 475. . .Bonds, Notes and Accounts, 43. Yantis, Broadwell v., x, 398, " V, Burdett, iii. 457 Chancery, 57 Pleading, 38. " V. Burdett, iv. 4. .CAancery, 61, " V, Yourie, x, 669 , , Corporation, 35. Yamall, Green v., vi, 326, Yarnell v, Anderson, xiv, 619. .Evidence, 157. Partnership, 46. Yates, Jannison v., vii. 571. " V. Kimmel, v. %1 . .Pleading, 12. Yeatman, Frazer v., x, 501. Yeldell v. Stemmons, xv. 443. .Execution, 43, 44, .Replevin, 13. Yore V. St. Bt. C. Bealer, xxvi, 426, . .Boats and Ves, 5 . . Laws, 22. York, The State v., xxii. 462. Young, Bascom v., vii. l. " V. Camden County, xix. 309 . . . County Treasurer, 2. " V. Croughton, xvii. 367. . Witness, 41. Hill v., iii. 337. LIST OF CASES. Young V. Ingle, xiv. 426 . . For En and Det, 23. " V. Kelly, ix. 50 .. Practice, 288. " T. Smith, XXV. 341 . .Evid, 98. .Partner- ship, 14. .Practice, 147. . Witness, 3. Smith v., xi. 566. The State t., xxvii. 259. " V. White, xviii. 93. .Pracitce, 211. " V. "Withington, iv. 564. Yount V. Yount, xv. 383. .Partiti»n, 30. Yourie, Yantis v., x. 669. Youse Y. Norooms, xii. 549 . . Husb and Wife, 72. ZaUee, L'Hussier v., xxiv. 13. Zeigler v. Maddox, xxvi. 575. . .Fraudlt Con- vei/ances, 34, 35. Zepp, Taylor v., xiv. 482. ZierUen, Bentzen v., iv. 417. Zimmermann, Gibson v., xii. 385. Zule, White v., xiii. 233. Zumwalt, Grace v., iv. 567. " V. ZumTi/Silt, iii. 269.. Appeal, 27. Zwiile, The State v., xxii. 467. LIST OF JUDQES SUPREME COURT OF THE STATE OF MISSOURI, FEOM ITS OEGAKIZATION IN 1820 to 1859. 1821—1823. Vol. I to p. 277. 1823—1824. Vol. I, p. 278—420. 1824—1825. Vol. I, p. 421^536. 1825—1837. Vols. I, p'. 537 to V. 1837—1839. Vol. V. to p. 512. 1839—1840. Vols. V, p. 512 to VII. 1840—1845. Vols. Vn to rX, 246. 1845—1846. Vols. IX, 247 to Xn, 367 1846—1851. Vols, xn, 369, to XV. 1851—1854. Vols. XV to XX, 221. 1854—1857. Vols. XX, 222 to XXV, 447. 1857—1859. Vols. XXV, 448 to xxvm. .1 MATHIAS McGIRK, JOHN D. COOK, JOHN EICE JONES. MATHIAS McGIRK, JOHN RICE JONES, RUFUS PETTIBONE. MATHIAS McGIRK, RTJFUS PETTIBONE, GEORGE TOMPKINS. MATHIAS McGIRK, GEORGE TOMPKHSTS, ROBERT WASH. MATHIAS McGIRK, GEORGE TOMPKINS, JOHN C. EDWARDS. MATHIAS McGIRK, GEORGE TOMPKINS, WILLIAM B. NAPTON. GEORGE TOMPKINS, WILLIAM B. NAPTON, WILLIAM SCOTT. WILLIAM B. NAPTON, WILLIAM SCOTT, PRIESTLY H. McBRIDE. WILLIAM B. NAPTON, JOHN F. RYLAND, .JAMES H. BIRCH. HAMILTON R. GAMBLE, WILLIAM SCOTT, JOHN F. RYLAND. WILLIAM SCOTT, JOHN F. RYLAND, ABIEL LEONARD. WILLIAM SCOTT, WILLIAM B. NAPTON, JOHN C. RICHARDSON. ABSTRACT OF CASES DIGEST. ACCOUNT. 1. When an account between parties is stated, with debit and credit sides, and the matter about which the controversy arose is stated therein, the pre- sumption of law is that the account is correct, and the jury should so treat it, unless they are satisfied of fraud, omission or mistake in the account as stated. Carroll v. Paul, xvi. 226. 2. Form of declaration in an action of account. Hughes v. Woosley, xv. 492. 3. When an account against the State is certified to the auditor, it is conclii- sive on him only as to the correctness of the statements therein contained ; and it is his right and duty to determine whether the State or County is required to pay the whole, or any part of such account. The State v. Hinkson, viL 35^. See Evidence, 176 ; Limitations, 55. ACTION. 1. WHEjr MAINTAINABLE. a. GENERALLY. b. BETWEEN TENANTS IN COMMON. II. WHEN NOT MAINTAINABLE. a. GENERALLY. b. tRkVt) AND FAILURE OF CONSIDERATION. C. AGAINST RECORDER OF DEEDS. d. FOR SEDUCTION e. ON LOST BOND OR NOTE. IIL COMMENCEMENT. IV. CONSOLIDATION. V. ASSIGNMENT OF INTEREST IN. VI. PARTIES. a. PLAINTIFFS. aa. Generally. bbv Party in Interest. cc. Joinder of Plaintiflfs. b. DEFENDANTS. ACTION. II. VII. ABATEMENT BY DEATH VIII. SURVIVORSHIP AND REVIVAL OF. a. SCIRE FACIAS TO REVIVB. b. IN PARTICULAR CASES. aa. Ejectment, bb. False Return, cc. Common Carrier — Damages, dd. Master and Slave; '.**. ee. Mecbanics' Lien — Scire Facias! ■ ' ff. Replevin, gg. Trespass, bb. Trover, ii. Forcible Entry and Detainer. IX. SPLITTING A CAUSE OF ACTION. I. WHEN MAINTAINABLE. a. GENERALLY. 1. Tbe defendant covenanted witb tbe plaintiff to pay bim a certain sum of money, and at tbe same time gave bis notes for tbe money, as a part of the same transaction — Held, tbat tbe plaintiff bad two remedies, one on tbe cove- nant and one on tbe notes, and tbat be was at liberty to pursue eitber. Byrd V. Knighton, vii. 443. 2. One of several partners in a chattel may sue and recover for damages to tbe same, in an action ex delicto, unless defeated by a plea in abatement. Chou- teau v. Hewitt, X. 131. 3. Mone)' advanced by one person to another upon tbe faith of an agreement that a partnership should be entered into between them, may be recovered back, if tbe party to whom it is advanced refuses to comply with the agreement Kerrigan v. Kelly, xvii. 2*75. b. BETWEEN TENANTS IN COMMON. 4. Tenants in common must join in all personal actions in relation to their common property. Lane v. Dobyns, xi. 105. 5. But under the new code one tenant in common may sue another without resorting to tbe action of account, under tbe statute of 1845. Rogers v. Fennis- ton, xvi. 432. I II. WHEN NOT MAINTAINABLE. a. GENERALLY. 6. An action for tbe recovery of possession of land is not maintainable when there has been a contract for its sale, the purchase money paid, and possession delivered in pursuance thereof. Tiheau v. Tibeau, xix. 78. ACTION, m. I. The officers of certain insurance companies combined together to refuse to insure the property of the plaintifif, and he brought an action on the case, in the naturtj of a conspiracy, against them — Held, that the defendants' refusal to insure being lawful, such action would not lie, however malicious defendants' motives might have been. Hunt v. Simmds, xix. 583. 8. The plaintiff, in an action on the case, instituted before the new code was adopted, alleged that the^defendant, on a specified day of the month, not naming the day of the week, wrongfully and negligently set fire on his own land, which extended to plaintiff's land, and burned his fence. At the trial, he brought to the notice of the court that the specified day of the month was Sunday, and, the act being unlawful, the defendant was responsible for all the conse- quences — Held, that under this declaration that ground of recovery was not available. Martin v. Miller, xx. 391. 9. The voluntary expenditure of work and labor upon the property of ano- ther is not of itself sufficient to create a cause of action against the owner. Carson v. Ely, xxiii. 265. b. FKAUD AND FAILTJEE OF CONSIDBEATION. 10. Where a party sold an improvement on public land, erroneously repre- senting himself as entitled to a pre-emption, the vendee cannot recover as for a failure of consideration or for fraud, unless it appears that there was fraud in fact, or that the vendee has sustained actual loss. Sandford v. Justice, ix. 855. C. AGAINST KBCORDER OF DEEDS. II. A recorder of deeds is not liable for giving a false certificate as to the title of property, unless such certificate be made fraudulently, or with a know- ledge of its falsity. Wood v. Ruland, x. 143. d. FOR SEDUCTION. 12. A mother cannot maintain an action for the seduction of her daughter, when such seduction occurred during the life of the father, although the birth of the child occurred after his death. Vosael v. Cole, x. 634. e. ON LOST BOND OR NOTE. 13. An action at law will not lie upon a lost bond or note. (But see E. S. 1855, 1240 § 59.) Cook, J., dis. Edwards y. McKee, i. 123. III.. COMMENCEMENT. 14. The filing of the declaration, and not the return of the writ, must be regarded as the commencement of the suit. Dougherty v. Downey, i.'6V4. ACTION. VI. IV. CONSOLIDATION 15. A plaintiff holding several notes against a defendant, may bring suit on each of them separately before a Justice, and cannot be compelled to consolidate his actions after he has brought suit on them separately. Ban/is v. Sotland iii. 47. Martin v. Chauvin, vii. 277. 16. M. sued B. before a Justice on two notes, one of one hundred dollars and the other of fifty dollars. The defendant obtained a separate trial on the one hundred dollar note, and had a judgment against the plaintiff. The cause was then Continued as to the fifty dollar note — Jffeld, that the Justice had no autho- rity to separate the causes of action, and that his judgment on the larger note was void. Mass v. Brown, vii. 305. 1*?. A. sued B. to recover money paid by him as a security On a note, and subsequently sued C, charging, that at the time of the execution of the note, C. was a secret partner of B., and praying for a consolidation of the two suits. C. denied, by answer, the partnership, but the court consolidated the two suits — Held, that this consolidation was irregular. Peery v. Moore, xxiv. 285. 18. On appeal from the decision of a Justice, refusing to consolidate suits and dismiss for want of jurisdiction, it must clearly appear, to support the appeal, that several suits were pending before the Justice. Sykes v. The Planters' House, vii. 477. See Infra IX.;. . . .Jurisdiction 21. V. ASSIGNMENT OF INTEREST IN. 19. During the pendency of a suit, the plaintiff, in writing, transferred his interest in it, and in any judgment he might obtain, as security for a debt, to a third person — Held, that this operated as an equitable assignment of' the note sued on, and gave to the assignee a right to control the suit, and that the defendant, having notice of the assignment, had no right to compromise with the plaintiff without the consent of the assignee. Ashhy v. Winston, xxvi. 210. VL PARTIES. a. PLAINTIFFS. aa. Generally. 20. A debt due fi-om A. to B. by verbal contract, was by B. assigned in writing to C, to whom A., after the assignment, Verbally promised to pay it — Held, that C. could not, on that promise^ maintain an action in his own name against A. Chauvin v. Lobar ge i. 556. 21. A bond was given to the commissioner of school lands, and his suc- cessor in oflBce, in pursuance of the act of 1831, (2 Ter. L. 261) — Held, that an action on, suoh bond could not be maintdined in the name of the commis- sioner after his powers had been vested in the County Court by the act of ACTION. VI. 1836, (B. 8. 1885, 561,) and the act of 1831 had been repealed. Caiey v. Bar- crep, V. 128. Sa. A. executed hig bond to C, by which he undertook to pay to a third person a debt due to said third person from C, the latter having placed in C.'s hands certain securitieB-T-£eit?, that an action would not lie upon the bond, either at law or in equity, in favor of such third person. Thornton v. Smith, vii. 88. 93. A. executed his bond to B., who assigned it to C. Sometime aftenrsrds, C. brought the bond to B. with his assignment thereon erased, and B. thereupon, at the request of C, assigned it to E. — Held, that the erasure of the assigBment did not divest C. of the legal title to the bond, and consequently, that E. eould not sue in his own name as the legal owner thereof. Davit v. Christy, viii. 669. 24. A note, made payable to D., agent of the proprietors of the town of S., is payable to D. individually, and suit must be brought on it in his name. Bryant v, Xhurkee, ix. 168, , 25. A bpnd, n^e payable to the Justices of the Coimty Court, by their names, for the ijse of the county, should be sued upon in the names of the surviving justice? to whom it was executed. Craig .v. Callaway County Court, xii. 94. 86, Several pai-ties interested in resisting a suit, appointed a committee of their number to employ counsel and conduct the defense, and agreed in writing to pay the committee such pro rata assessments as might be made against them to defray the expenses of the defense, and one of the parties to the agreement refused to pay the apiount assessed against him, which was thereupon made up by the committee — ffeld, that each member of the committee might sue sepa- rately for the amount paid by him. Finney v. Brant, xix. 42, 27. And a suit brought by a member of the committee to recover back the amount paid by him, will not be defeated by the mere fact that it was actu- ally paid by a firm to which he belooged, he alone being a party to the agree- ment, unless it appears that the money belonged to the firm, and was not paid on his account. Ibid. 28. A. and B., partners, were indebted to C. A. sold his interest in the part- nership to D., who agreed with A. and B. to assume and pay the debt due to C — ffeld, that C. could not maintain an action in his own name against D. Manny v. Frasier, xxvii. 419. bb. Party in Interest. 29. In a suit on an obligation in these words, " I promise to pay to J, B. or J, L.," (ike., both obligees must join in the suit, Bailey v. Thornhill, i. Til. 30. It is for the court U> determine upon a given state of facts, whether a plaintiff is tiie real party in iuterest. Williams v. Whitlock, xiv. 552. 31. A. deposited funds at a banking house in the name of B., giving him the pass-book and blank checks, with power to draw. B„ when applied to, diaclaimed all interest in the funds, and voluntarily gave a check for the amoxmi—Held, that B. w^s not a real party in intenest, and couJd oot maintain an action against the party receiving the money on the chec^. Ibid. 6 ACTION. VI. 32. An order drawn for the whole amount of a debt, is an equitable assignment of it, and under the new code the party in whose favor the order is drawn, may bring suit in his own name. Walker v. Mauro, xviii. 564. Smith v. Schibel, xix: 140. 33. The section in the new code requiring the real party in interest to sue, (Acts 1848-9, 75, § 1,) must be limited to those cases in which the real party in interest possesses the entire cause of action. Thus, where there was an insurance upon a part of a boat which was lost by the negligence of the de- fendants, and the part insured was abandoned by the owners to the underwri- ters, and the abandonment thereof accepted — Held, that the action for the whole value should be brought in the name of the owners. Cable v. St. Louis Mar. Railway and Dock Co., xxi. 133. • cc. Joinder of Plaintiffs. 34. Where several persons agree, in writing, to contribute toyards the defence of a suit, and the proportion of one who fails to comply with his agreement is paid by the others, ^ro rato, they cannot maintain a joint action against him to recover it back, but each must sue separately for his share. Lindell v. Brant, xvii. 150. 35. A. gave a bond for the conveyance of a tract of land to B. upon the payment of the purchase money, for which B. gave his notes — Held, that the heirs of A. were properly made co-plaintiffs with his administrators, in ' a suit brought to recover the amount of the notes, in which it was sought to subject the land to the pajntnent of the debt. Perry v. Roberts, xxiii. 221. 36. The heirs of an intestate cannot be joined as parties plaintiff with the administrator in a suit for the recovery of damages for the breach of a contract to convey land. Brueggeman v. Jurgensen, xxiv. 87. b. DEFENDANTS. 37. Under the new code any person may be made a party defendant who has an interest in t}ie matter in controversy adverse to the plaintiff; but it does not authorize one to interfere in a cause without leave of court, and the court will not permit persons to become parties whose interests are represented by ex- isting parties. McLaughlin v. McLaughlin, xvi. 242. S8. Where a vendee of land brings an action against the vendor to correct a mistake in the deed, the person in possession of the disputed land should not be made a defendant unless he had notice of the facts, or holds under a volun- tary conveyance. Lyon v. Page, xxi. 104. See Supra, 4-5. See Administration, 18 ;. . . . A&bncy, VII ; Attachment, IV; Bills oe Ex. and Prom. Notes, 91 ;.... Boats and Vessels, III; Bond, VI; Bonds, Notes and Accounts, 70; Chan- cery, 112, 129; Covenant, 16; Ejectment, 20; Evi- dence, 115 ; Ferry, V ; Guardians and Curators, IX ; Justice op the Peace, 17;.... Libel and Slander, II;....Lo- , CAL Decisions, II; .Partition, 8 ;.. ..Practice, 18;....Ee- PLEviN, in. ACTION. VIII. VII. ABATEMENT BY DEATH. 39. Under the statute, (R. S. 1845, 824, § 18,) where the death of a party is suggested on the record, and his representative does not enter an appearance by the third day of the second term next after the term in which his death is sug- gested, a scire facias for the purpose of substituting a party will not lie, and the suit will abate without motion. JRarmey v. Bostic, xv. 215. 40. A failure to make all the representatives of a deceased plaintiff, and a de- ceased defendant parties to the suit on or before the third term after the sug- gestion of the deaths, (R. S. 1845, 850, § 19,) will cause the suit to abate only as to those representatives not brought in and made parties ; it is error to abate the suit entirely. Farrell v. Brennan, xxv. 88. See Infra, VIII. VIII. SURVIVORSHIP AND REVIVAL OF. a. SCIRE FACIAS TO REVIVE. 41. Where, upon the decease of the plaintiff, his administrator is made a party without the appearance of the defendant or notice to him, the irregularity will be cured by the appearance of both parties at a subsequent term, and the grant- ing of a continuance on the motion of defendant. Farrell v. Brennan, xxv. 88. 42. Where a party has appeared without a scire facias, and moved to set aside an order of substitution of a new administrator for another administrator who has been plaintiff in an action against him, and that motion is overruled, and the order set aside on appeal, no scire facias is necessary, after the cause is remanded to bring him into court. Ferris v. Hunt, xx. 464. 43. Under the new practice, where either party to a suit dies, it may be con- tinued in the name of the representative in interest only upon the voluntary appearance of the adverse original party, or after the service upon such party of a scire facias. The sixteenth section of article five of the practice act of 1845, (R. S. 1845, 824,) is not repealed by the new code. Ferris v. Hunt, xviii. 480. 44. And although a party may be substituted for one deceased, on motion, yet it can only be on the voluntary appearance of the adverse original party, or after the service upon such party of a scire facias. Fine v. €hay, xix. 33. 45. The provision in the statute (R. S. 1845, 824, § 18) that a scire facias, for the substitution of a plaintiff in the place of the original must be sued out before the expiration of the third day of the second term next after the term at which the death or disability of the original party shall be stated upon the record, is not repealed by the new code. Hnd. b. IN PARTICULAR CASES. aa, Ejectment. 46. Where the plaintiff in an ejectment suit dies, the suit may be revived in the name of his heirs and devisees. Fine v. Gray, xix. 33, ACTION. VII. bb. False Return. 47. A right of aotioi* against a sheriff for a fals? retHTH on a^i ejcqcuti^n, survives against his adrainistrators. Jeyiett v. Weaver, x. 334. cc. Common Carrier — Damaf/es. 48. An action by a father against a common carrier, for dainageg arising from the death of his son, which was occasioned by the defendant's negligence, sur- vives to the plaintiflPs representatives ; but damages are limited to th« actual value of the son's services to the estate. James v. Chri»ty, xviii. 163. (See R. S. 1855, 647, §§ 2-4.) dd. Master and Slave. 49. An action under the statute (R. S.1845, 414, § 35) against the owner of a slave, will survive against his administrators. PhilUps v. Towler, xxiii. 401. ee. Meehanies' Jjien.^^Sidre Faeia». 50. Where the owner of real €state dies, pending a proceeding by scire facias to enforce a mechanic's lien, the suit mu^t be revived against his heirs, and not against his personal representatives. Belcher v. Schawmburg, xviii. 189. ff. Replevin. ^1, Replevin, being an aQtioji strictly i» tort, abates ou the death of the defendant, and cannot be revived agaiftst his adwiaistrator, Rgotpir v. CkevQilier, i. 345. 52. But under the statute of 1836, (R, S. 1885, 48, §| 84, 25,) an a<;t}Qfl in replevin does not abate by the death of both the pairties to the actiQjj, hvit may be contimied by their personal yepresevta.tives, Kingsffury v, Jmtit JCXJ. 115. 53. Still, under this statute, the action did pot survive against the adwinis- trator of a deceased party where the damages to be recovered for the detention came down to the time of the verdict, and so embraced damages for which the administrator alone was personally liable. JfcJ)ermott v, DuyU, xvii. 362. gg. Trespass. 54. Under the statute (R. S. 1845, 76, § 25,) an action lies against the ad- ministrator of one who has, in his lifetime, committed a trespass. Froust v. Bruton, xv. 619. hh. Trover. 55. An administrator may maintain an action of trover in every case where the deceased might have done so in his lifetime. Smith v. Grove, xii. 51. ii. Forcible Entry and Hetainer. 56. In a proceeding for forcible entry and detainer, the death of one joint plaintiff does not abate the suit. Carlisle v. Rawlings, xviil, 166. ADMINISTRATION. 8 S7. And the survivor may recover all the damages sustained by the forcible entry and detainer. Keyser v. SawUngt, xxii. 126. See SuPEA, VII, IX. SPLITTING A CAUSE OF ACTION. 58. A plaintiff having an entire demand growing out of a single transaction, cannot split it up into separate suits. Waffner v. Jetcoby, :sxYi. 532. See Su- pra, IV. See Administration, VIII, IX ; . . . . Aliens, 3, 4 ; . . . . Arbitrations and Eepbrbnoks, VI ; . , . . Biw-s of Exchange and J'pojijssoKr Notes, XII; Bonds, Notes and Accountb, V ;.,,. Contract, X;.... Corporation, V, IX. 34 ;.... Covenant, 13; Debt, I; Ejectment, II ;, . , .Gamino, II, III; Husb^np and Wife, 6-14. XI ; . . . . Infants, III ; . . , Judgment, XIII ; . . . Justice of the Peace, II ; . . . . Landlord and Tenant, 22 ; . . . . MortgA(JB, VII ; . . . . Re- cognizance, 1.18; Replevin ;.... Revenue, 34. VII;.. ..Uses AND Trusts, 23. ADJOINING PROPRIETOES. 1. The owner of soil has no right so to excavate it as, by the removal of lateral pressure, to cause that of the abutting proprietor to fall ; but if that pro- prietor have built upon the verge of his land, he can exact no inore than reasonable care of his neighbor in excavating, to prevent damage to the build- ing, except there be a grant or prescription. Charhss v. Rankin, xxii. 566. 2. It is not sufficient that the party making the excavation used all the care that a siillful and careful builder judged necessary ; nor is he bound to use the same caution that a prudent man, experienced in such work, would have em- ployed, who owned both lots. The question in such a case is, whether there was actual negligence. Ibid, See Boundary and Description, 15. ADMINISTRATION. L GRANT OF ADMINISTRATION. a. time and mode of granting — validity. b. notice of grant. C. EVIDENCE. 10 ADMINISTRATION. I. II. TO WHOM GRANTED. III. ADMINISTRATION BOND. a. SUFFICIENCT. b. ACTION UPON. aa. Form, bb. Parties. cc. Pleading, dd. Evidence, ee. Judgment, Execution and Distribution. ff. When it may be commenced, and Limitation of. gg. Costs. C. LIABILITY OF THE PRINCIPALS TO THBIB STJEETIES. d. LIABILITY OF SUBBTY. 8. ACTION AGAINST SURETY. IV. ASSETS— PRINCIPAL AND ANCILLARY ADMINISTRA- TRATION OF. V. CONCEALING ASSETS. VL RIGHTS AND LIABILITY OF REPRESENTATIVE. VII. POWER OF REPRESENTATIVE. Vlli. ACTION BY REPRESENTATIVE. IX. ACTION AGAINST REPRESENTATIVE. X. PRESENTATION, ALLOWANCE, AND CLASSIFICATION OP DEMANDS. a. PRESENTATION, NOTICE AND AFFIDAVIT. b. ALLOWANCE AND CLASSIFICATION. XL LIMITATION. a. DEMANDS AGAINST AN ESTATE. b. IN FAVOR OP AN ESTATE. O. CLAIMS AGAINST ADMINISTRATOR, d. PLEADING. XII. DISTRIBUTION. XIII. SALE. a. RIGHT OF ADMINISTRATOR TO PURCHASE AT. b. SALE OF PERSONALTY. C. SALE OF SLAVES. d. SALE OF REALTY. aa. Proceedings to Obtain an Order. bb. Notice of Sale. cc. Conditions and Requisites. dd. Setting Aside. ee. Deed. ff. Purchase of Equitable Interest and rights acquired thereby. XIV. SETTLEMENT. XV. COMPENSATION OF REPRESENTATIVE. XVL PARTNERSHIP. XVII. DEVASTAVIT. XVm. EXECUTOR DE SON TORT. XIX. ADMINISTRATOR DE BONIS NON. ADMINISTRATION. I. 11 XX. PUBLIC ADMINISTRATOR. XXI. WIDOWS AND THEIR RIGHTS. XXn. INSOLVENTS' ESTATES. I. GRANT OF ADMINISTRATION. a. TIME AND MODE OE GRANTING. VALIDITY. 1. Letters of administration granted by a deputy clerk in his own name are void. Stewart v. Cave, i. 752. 2. There can be only one set of administrators at the same time on the same estate, and it is no objection to the letters first granted that they were not signed by the clerk of the court granting them, until set aside for that cause. Post V. Caulk, iii. 35. 3. The county court is not warranted in granting letters of administration to a stranger, until the expiration of the sixty days prescribed by statute, or before the other requisites thereof are complied with. (R. S. 1835, 41, §§ 5-7.) Mullanphy v. County Court, vi. 56.". 4. The order of the county court is a sufficient appointment of an adminis- trator, without any formal letters, if the party give the bond and take the oath required. The State v. Price, xxi. 434. 5. An Ulegahty in the grant of letters of administration cannot be taken advantage of in a collateral proceeding. Riley \. McCcyrd, xxiv. 265, b. NOTICE OF GRANT. 6. The publication of the notice of the grant of letters of administration, required by the statute, (R. S. 1835, 47, § 19,) need not be completed within thirty days from the grant ; it is sufficient if the publication of notice is begun within that time. Montelius v. Sarpy, xi. 237. See Infra, 103. C. EVIDENCE. 7. A copy from the record of the county court of the grant of letters of admin- istration, is admissable evidence without producing the letters themselves, to prove that the person mentioned in said grant as administrator, is the duly authorized administrator. The statute which makes the letters when, and only when recorded, evidence (R. S. 1825, 96, § 12), does not interfere with the general law of evidence, or make the letters the only evidence of the fact of administration. Lane v. Clark, i. 657. 8. Possession of letters of administration is prima facie evidence of delivery. McNair v. Dodge, vii. 404. 12 ADMINISTRA^ON. ni. 9. The act of January 20, 1816, (1 Ter. L. 441, §§ 1, 2,) providing that all letters of administration theretofore granted should be recorded, and that the same should not be admitted in evidence, unless recorded, was intended simply to famish a rule of evidence, and a repeal of that law was a repeal of the rule. The act of January 12, 1822, (1 Ter. L, 922, § 13,) as well as the subsequent laws on the subject of administration, were not intended to have a retrospective opera- tion. McNair v. I>{td,g% yii, 404. Hensley v. Ihdge, vii. 479. 10. Although an appeal will lie from an order of court revoking letters of administration, yet, where the revocation is made for the reason that a will had been found and admitted to probate, the Circuit Court cannot, on such appeal, iijquire into the §ufl5ciency of the proof upon which the Probate Court acted in granting probate of the will. Duty, Ex parte, X3:vji, 43. II. TO WHOM GRANTED. 11. The act of February 21, 1825, (R S. 1825, 93, § 3,) declared that no " married woman shall act as executor or administrator," and §. 15 of the same act declared that "where any feme sole executrix or admiDistratrix shall marry, the marriage shall operate an extinguishment of her powers and her letters shall be revoked and repealed" — Held, that these sections have no retrospective operar tion, and that until the Probate Court have taken steps to revoke and annul the letters of an administratrix who had married before the passage of that act, she will continue to be de jure and de facto administratrix. Frye v. Kipi- hall, xvi. 9. 12. Although an appointment of an executor would be rendered void by reason of the fact that snch appointee is also one of two attesting witnesses, he may be appointed administrator with the will annexed. Murphy v. Mur- phy, -^tm. 526. IIL ADMINISTATION BOND. a. 8UFPXCIBNCT. 13. An administrator's bond containing more conditions than is required by the statute is still a statutory bond. Woods v. The State, x. 698. 14. The grant of letters of administration and the execution of the bond are parts of one and the same transaction, and they may be taken together to show what was intended. If the Christian name of the deceased is left out of the bond, but inserted in the letters, there is a sufficient description to ascertain the estate referred to, and the letters, if the bond refers to them, may be pro- duced to explain the ambigaity. The State v. Price, xv. 3T5. 15. An administrator's bond is valid against him, although not approved by the court, ffmry v. The State, ix. 760. James v. 3mm, xxL 538. 16. The statute which prohibits an afttorney at law from being taken as security upon an administration bond, (R. S. 1835, 43, § 16,) is merely directory, and ADMINISTRATION. III. 13 was hot designed to avoid the bond where the law has been disregarded. Hicks v. Chouteau, xii. 341. b. ACTION UPON. aa. Fwm. 17. An action of covenant will not lie on an administrator's bond. The action should be debt. Clark v. Murphy, i. 114. bb. Parties, 18. Where the law gives to any party interested a right to sue On an adminis- trator's bond, (1 Ter. L. 934, § 49,) it is not necessary that a suit upon it should be to the use of all the parties interested in the estate. Olivet v. Craw- ford, i. 263. 19. A bond given to " T. O., Judge of Probate, e. ACTION AGAINST SURETY. 46. A creditor, after he obtains a judgment against the administrator, is not bound to proceed to execution and return thereon before he can maintain his action on the bond against the surety. Gover'nof V. Ohduteau, i. 731, 771. 47. If a debt is recovered against an administrator, and he, haviilg means, neglects to pay it when he ought, this is mal-administration, and amounts to a breach of the bond. Ibid. 48. The creditor is not compelled to obtain an ordet of the Probate Court for the payment of his judgment debt before he can maintain an action on the administrator's bond against the security. Ibid. • 49. Money received by an administratrix from the sheriflF on an overplus made on a sale of a part of the intestate's real estate on judgment and execution, is assets, and as such covered by the administration bond, and if not " duly ad- ministered," the securities are liable. Ibid. 50. In a suit against securities on a deceased administrator's bond, it is not necessary to aver that an administrator on his estate had been appointed, and that he had not paid the sum alleged to be in arrear irom the deceased ad- ministrator. Finney v. The State, ix. 624. IV. ASSETS— PRINCIPAL AND ANCILLARY ADMINISTRATION OF. 51, The property of every person who diefe in this State, whether dtizen or stranger, is subject to the course of administration provided by our statutes, and is regarded as in the custody of the law for the benefit of all persons in- terested therein. Bartlett v. Hyde, iii. 490. 62. A. died intestate in Illinois, leaving debts in that State and also in Missouri. B. administered in Illinois, and, " as administratrix," insm-ed the real estate of A., situate in Illinois, in an office in the city of St. Lonis. The pro- perty was destroyed by fire, and B. sued for and obtained judgment for the amount due on the policy. D. administered on the estate of A. in Missouri, its only assets consisting of the amount due on the policy — Held, that the ad- ministrator in this State was not entitled to the amount due on the policy, but that it belonged to the Illinois administratrix. Abbott v. Miller, x. 141. 53. Administration of all the goods of an intestate, wherever situated, will be made according to the law of his domicil. If they are in a different country, they will, (inder the laws thereof, be first applied to the satisfaction of demands established under those laws ; and if any of its citizens claim as distributees, dis- ADMINISTRATION. VI. iT tribution will there be made. But wheD these claims are satisfied, if there are creditors or distributees in the country of the intestate's domicil, the tribunals of the country where the assets are found will direct them to be remitted to the country of the domicil for further administration. Spraddling v. Pipkin, xv. 118. 64. The domicil of the deceased determines whether or not his assets shall be transferred from one State to another for administration. In whatever State the domicil may have been, the administration there granted is the principal one, and that in any other State is ancillary, and priority in administration has no effect upon the rule. Ibid. (See Steven v. Gaylor, 11 Mass. Rep., 263.) 55. If the record shows a case where, on application, a transfer of assets would have been ordered from one State to another, a transfer made by the administra- tor without such order, completes his administration, and vests the title thereto in the administrator appointed in the State to which the transfer is made, so that an administrator de bonis non, appointed in the State from which they were re- moved, cannot claim them as unadministered assets. Ibid. 56. If a foreign administrator fraudulently converts assets transferred to him, and brings them again into the State whence they were removed, an administra- tor de bonis non, appointed in said State, cannot recover them in an action of detinue ; they can only be reached by a bill in equity. Ibid. See Infra, 108, 109, XII. V. CONCEALING ASSETS. 67. A son administered on the estate of his father, and in that capacity hired out " Hannah," a slave, as the property of the estate, at the same time claiming to hold " Nancy," another slave of less value, by purchase from his father, in his lifetime. The son died, and his administrator was sued for the recovery of " Nan- cy," on the ground that she was, in fact, the property of the estate of the father, and that the son fraudulently or by mistake returned " Hannah," in lien of her who had since died — Held, that the acts of the son as administrator of his father in hiring out the more valuable slave as the property of the estate, were against his interest, and might therefore be received in evidence. Irving v. Irving V. 28. 58. Under the statute (R. S. 1845, 74, §§ 9-11,) a creditor of an estate cannot maintain an action in the County Court against the administrator for concealing or embezzling property of the estate. Powers v. Blakey, xvi. 437. 59. And a proceeding under that statute is inapplicable, where the person charged with unlawfully detaining the effects has really no control over them at the time the complaint is made against him. Dameron v. Dameron xix. 317. VI. RIGHTS AND LIABILITY OF REPRESENTATIVE. 60. An intestate's effects were sold under an execution, and there being a sur- plus in the hands of the sheriff after satisfying the execution, a receipt was given ADMINISTRATION. VIII. for it by the administrator, who never actually received tbe money — Mekf,, thist in whatever manner such surplus may have been applied, the administrator must account for it, and unless he does, his security will be liable ; nor will the &ict that the party suing is himself administrator of such estait© in another State, and has assets in his hands, affect the liability of the security. Wash, J., dis. €kou- t«m V. Hill, ii. 17T. 61. A. died, leaving a will, by which he devised all his estate to his widow, to be held during her widowhood,, and made her executrix during such wido.whood. The widow entered upon the discharge of her duties as executrix, and coutractpd debts for the benefit of the estate, for which she gave her private note. She then intermarried with one M. — ITeld, that the administrators of the estate, ap- pointed after the marriage, agreeably to the provision of. the wiU,. were liable) to M. for the amount of the notes, as for so much money, paid to the Use of thei es- tate. Maupin v. Boyd, v. 106. 62. Where executors give their own notes for a debt in which their testator was surety and indemnified, and pay the same, they will be entitled tO' be paid in full out of the estate. Sill v. Buford, ix. 859. See Infra,, 121* VII. POWER OF REPRESENTATIVE. 63. Where land is purchased with raoiloy in the hands of an administrator for the express purpose of being subjected to the payment of the debts of the deceased, there is nothing in the policy of the law prohibiting the administrator from conveying it. Hogan-v. TFeZcAer, xiv. 177. 64. A resulting trust is an equitable estate, and can be sold by an adminis- trator. Valh V, Bryan, xix. 423. 66. Under the statute (R. S. 1845, 88, §§ 86-39,) the Probate Court may order an adminigtratot to execute specifically a contract of his intestate to mate a d'eed of land after she became of age, confirmatory of one given during minor- ity, upon proof that she afiirmed the contract verbally after she became of age; receiving part of the consideration money, and expressing herself satisfied, is a sufficient ratification. Ferguson v. Bell, xvii. 347. See Infra, 146-7. VIII. ACTION BY REPRESENTATIVE. 66. Wliere an administrator is authorized by law (1 Ter. L. 931, § 41,) to lease real estate of his intestate, it is not necessary, in an action for the rent, that he should set forth in his declaration an authoritgr from the County Court to make the lease under which the rent accrued. JRector v. Ranken, i. 371. 67. A note made payable to A. and R. "as executors of R." may be sued on by them as executors. Hector v. Langham, i. 568. M>MINISTEATI0N. IX. 19 68. A t>ond 6xe*cfited to a pets6n as administratot is an admission of Ms fepfeseAtative cliaracWr, and the obligot* iS estopped from afterwards denying it. Jones V. Snedecor, iii. 390. ©9'. An adndibistrator with the will annexed may sue on a Covenant to the tdStdtirtO convey land. Ldbefge v. McGduslatid, ni. 585. '70'. Thfe administrator should allege a request to the covenantor to convey to the individual ehtitled to the land, whether the heir at laW or devisee. Ibid. 7i. An administratolr cannot sue his oo-administrator at law. Martin v. Martin, xiii. 36. 72. An action cannot be maintained by an executor or administrator as such to Recover damages for trespass' upon the realty belonging to the estate of the testator or intestate, it must be brought in the name of the heir or devisee. AubuchOn V. Lory, xxiii. 99. It. Where' an administrattfr Suffers himself to be charged with the receipt of a dlebt due the estate, which had never been paid, and a jndgment is rendered against hftn for a balance, he may afterwards, in his Character of administrator, tae fof and recover the debt. Shore v. (hems, xxiv. 563. 74.' In a suit by a public administrator, the defendant Cannot requite him to sho'W thS,t the facts 6xist which authorize him to administer. Weteell v. Waters, xViii. 39^'. 15. In an action by att admiriistratot in his own name in this State, on a judgment recovered in the State where he was appointed in his representative capacity, in the absence of proof it wilT be pt'esumed that the courts ef that State exercised lawful jurisdiction, and the judgment will be taken priiAa facie to vest in him a title to the money recovered, for which he may sue in his own name he*e. ^dZrv.' iSWWsoA, xxi. 237. 76. In a suit by an administrator upon a note of his intestate, it is no defence that the County Court had allowed a former administrator, upon settlement,' credit for the amount of the note. Henderson v. Henderson, xxi. 379. 77. Although an administrator should be released by the Probate Court from liabihty for an inventoried debt on the ground that it had been improperly inventoried, this cannot be set up as a bar to an action brought by him for such deht>; Shore, v. Ooom. xxiv. 553. See Dbmand 4 ;, . . .Set-off, 28, 29. IX. ACTION AGAINST KEPRESENTATIVE. 78. The authority of an administrator being revoked on his becoming a non-resident, he cannot be a parly to a suit in his administrative capacity. Ctouieau v. Eurldndo, xx. 48'2. 79. Where an administrator's account, on a settlement before the court, shows that he has no cash, but only property in his hands, and the court makes an order that all demands of a particular class be paid, it is upon the implied condition that funds sufficient for that purpose must first come into 20 ADMINISTRATION. X. Ms hands, and a creditor of that class, who sues out a scire facias to compel payment of his demand, must show that the property has been converted into cash. I'olk V. Farar, xii. 356. 80. In an action by a child against his mother's administrator for money received by her as his' guardian, the administrator cannot set up a claim for the support and education of her child by the intesta.te, when there is no evidence that she ever intended to make a charge therefor. Guion v. Guion, xvi. 48. (See Cummins v. Cummins, 8 Watts, 366. Whipple y. Dow, 2 Mass. 418.) 81. In a suit against administrators, upon a debt of their intestate, judgnient should be rendered against them de bonis testatoris and not de bonis propriis. Laughlin v. McDonald, i. 684. 82. In a suit against the executor or administrator of a guardian who had been removed for money not paid over to his successor, the judgment must be de bonis testatoris, and not de bonis propriis. Jfinney v. The State, ix. 225. 83. A. cestui que trust filed a bill in Chancery against the trustee, to get the legal title to the trust property. The administrator of the deceased grantor, in the deed of trust, on his application, was made a party defendant. During the trial, the plaintiff dismissed the suit as to the trustees — Seld, that judgment could not be rendered against the administrator on a de- mand against the estate growing out of the trust property. McLaughlin v. McLaughlin, xvi. 242. See Chancery 31. X. PRESENTATION, ALLOWANCE AND CLASSIFICATION OF DEMANDS. a. PRESENTATION, NOTICE AND AFFIDAVIT. 84. A party in notifying an administrator of a claim against an estate, must specify in the notice the nature of the claim, and in whose right it is prosecu- ted. (R. S. 1835, 56, § 10.) Dorsey v. Burns, v. 334. 85. Where the affidavit required of a claimant, presenting a demand against an estate for allowance, is made by an agent, it must appear from the affidavit itself that the agent had " the management and transaction of the busi- ness out of which such demand originated," or that he " had the means of knowing personally the facts required to be sworn to." (See R. S. 1845, 92, §§ 9-11.) Feter v. King, xiii. 143. 86. A. and B. were joint owners of a claim secured by a lien on certain real estate. B., by an instrument separate from that evidencing the security, assigned his interest in the claim to C, and afterwards died, A. administered on his estate, and had knowledge of the assignment — ITeld, that be was not bound, as administrator, to take notice of the assignment, but that C. should have exhibited his demand the same as any other creditor of the estate. Simonds v. Fettibone, iii. 330. ADMINISTRATION. X 21 87. The fact that a demand is made out against the deceased or the admin- istrator, will not justify a refusal to hear evidence in support of it. Coots v. Mor- gan, xxiv. 522. 88. Under a notice to an administrator that a demand will be presented for allowance against the estate " at the next term of the court of and for N. M County, to be holden in the town of N. M., in said county and State, on the 8th day of May, 1854," the demand may be presented and allowed on the 9th day of May. Phillips v. Russell, xxiv. 527. See Error, 15 ;. . . .Infra, 97. b. ALLOWANCE AND CLASSIFICATION. 89. To change the class to which the Probate Court has assigned a de- mand against an estate, is to change the force of the judgment as to all credi- tors in> the prior class, and it should not be done, but upon such facts only as would authorize the court to set aside or modify its judgment in other particu- lars ; and the fact that the claimant had evidence of the prior presentation of the demand to the executor, which he neglected to offer to the Probate Court at the time the demand was allowed and classified, does not authorize the Court to change the class afterwards. Nor can the claimant rely upon the report of the executor, as it is not evidence of classification, not being made for that purpose. Miller v. Jarmey, xv. 265. 90. The statute does not require that a classification of a demand should be entered on the record at large. An endorsement of its class on the claim itself, and an entry on the abstract book is suflBcient to give the classification validity. Nelson v. Russell, xv. 356. 91. The classification of a demand against an estate, if en'oneous, should be appealed from when made. The County Court has no authority to change it at a subsequent term, after the administrator has exhausted the assets in the payment of debts. Ibid. 92. A suit commenced against an administrator on a note of the deceased within the first year of the administration, is a legal exhibition of the claim, and entitles it to be placed in the fifth class, although a non-suit is taken in the case owing to instructions given by the court touching the liability of co-defend- ants. Scott, J., dis. Tevis v. Tevis, xxiii. 256. 93. Where a demand against an estate is presented to the County Court for allowance, and is disallowed, the decision of the court is a judgment, and is attended with all the consequences of a judgment of a court of record at com- mon law ; and if an appeal is not taken therefrom, the matter becomes res adjudicata, McEinney r. Davis vi. 501. 94. The allowance of a claim against an estate is a judgment, and will be respected as such, but there is difBculty in maintaining that such allowances are liens upon the estate. The administrator has no interest in the real estate to which a lien can attach. Kmrverly v. Shepley, xv. 640. 95. Where a judgment against the deceased is presented in the County Court 22 ADMlNTSfBATlON. M. for allowauce, against his estate, it is the duty of tte coort t© ielassify it for payment. Wood v. Mlis, xii. 616. , , ., 96. And where a judgment has been rendered against a persoE d.uriijg hh lifetime, it need not be allowed as a demand agaiast Jjig estate; a trjanscript of the judgment should be filed in the Court of Probate, and the court will deter- mine its class. Oft!/ of Garovdelet v. Desnoyer, xxvii. 36. 97. In presenting a judgment for allowance againpt an estate, the same notice is required as in the presentation of other demands; and if it be not giv^njthe allowance is unauthorized, and ma,y at any time bp ^et aside on the application of the administrator. Bryan v. Mundy, xiv. 458. 98. Under the administration act classifying demands, (R. S, 1845, 90, § 1,) only domestic judgments can be placed in the fourth class. Foreign judgments have no preference over simple contract debts. And this preference of domestic judgments is not repugnant to the Act of Congress of 1790. (l U. S. Stat., 122.) Harness y. Green, xx. 816. See McMmoyle v. Coken, 13 Pet., 312. 99. Where a demand in behalf of one estate is presented against anotnqr, the same person cannot act as the administrator of botb estates in that matter ; an4 should a demand be allowed under such circumstances against one of the estates, the proceeding will be null. The State v. Bidlingmaier, xxvi. 483. See Judgment, 62 ;. . . .New Tri^l, 7 ;. . . .Supra, 36. XI. LIMITATION. a. DEMANDS AGAINST .AN ESTATE. 100. The statute provided that all claims and demands which shall not be exhibited to the administrator or executor within five years after the granting of letters, shall be forever barred. (1 Ter. L., 923, § 18.) Held, that this statute does not enlarge the time of limitation, and prevent a claim agiiast the intestate or testator upon which the cause of action had accrued during his lifetime, from being barred by the regular operation of the statute, notwithstanding suit may have been brought within five years after the granting of letters. LabeavMi v. Hempitead, i. 772. 101. Where a cause of action accrues after the granting of letters of adminis- tration, the limitation of three years begins at the time the right of action accrued. Finney v. The State, ix. 225. 102. Thus, where the cause of action in favor of a security against an estate did not accrue until the lapse of three years after the grant of letters of admin- istration, the claim is not barred. Miller v. Woodward, V\\\. 169. 103. The limitation of three years does not apply to demands against an estate, unless the executor or administrator gives notice of the grant of letters, testamentary, or of administration, as required by law. Wiggins v. Lovedng, ix. 259. Hawkins v. Ridenhour, xiii. 126. Bryan v. Mundy, xvii. 556. 104. The limitation of three years for the presentation of demands agaipst esr tates, (R. S. 1835, 55, § 2,) applies to suits in all other courts as well as to dhose before the County Court. Montelids v. San-py, xi. 287. ADMINISTRATION. XI. 2-3 105. Letters of administration were granted January 12, 1852, and a demand was exhibited January 12, 1853 — Held, that the demand was exhibited "within one year after the granting of the first letters." Kimm v. Osgood, xix. 60. 10€. A., owning a lot of ground, gave his bond to convey it to B., (which was duly recorded, ) and afterwards " granted, bargained and sold " the same lot to C, and C, by a deed of the same tenor, conveyed to D. B. afterwards brought a suit to compel a specific performance oi the bond against A.'s administrator, and obtained a decree directing the administrator to convey, which was done. The deed was dated more than three years after the date of the letters of admin- istration — Held, that the right of D. to recover for the breach of the covenants contained in the words " grant, bargain and sell," in the deed of A. to C, was not barred by a failure to exhibit the claim against the estate of A. before the expira- tion of the term of three years irom the date of the letters of administration. No demand accrued against the estate of A. until the date of the administrator's deed. Chamber i v. Smith, xxiii. 174. 107. A demand against an estate on account of the breach of the statutary covenant of seizin, and against incumbrances, is not barred by not having been exhibited against tiie estate within three years after the granting of letters of administration, where the right of substantial recovery did not accrue before the lapse of that time. Ibid. h. IN FAVOR OF ESTATE ADVERSE POSSESSION. 108. Adverse .possession of the slaves ctf an intestate for a period of eighteen years after the death of intestate, and before the appointment of an administra- tor, as there was not, before administration taken, any person who could bring suit, did not amount to a bar to an action for recovery of said slaves, brought by the administrator immediately after Lis appointment. McDonald v. Walton, i. 726. lOS. Wh«re administeation was taken inl826 on an intestate's estate, after the lapse of eighteen years from his death — Held, that the administrator was entitled to the possession of slaves belonging to the intestate at the time of his death, and might recover them in an action of detinue, notwithstanding the long-continued possession of the widow and those claiming under her ; and notwithstanding, the widow, under the laws of Kentucky, where the intestate died in possession of the slaves, was entitled to inherit said slaves from her husband, on account of the failure of sU other persons capable of inheriting. McDonald v. Walton, ii. 48. C. CLAIMS AGAIKST ADMINISTRATOR. 110. No lapse of time is a bar to a direct trust, as between a trustee and the cestui que trust, and an administrator being a trustee cannot avail himself of the statute in bar of a claim in favor of the next of kin, or persons entitled as dis- tributees of an estate. Ruhey v. Barnett, xii. 3. d. PLEADING. 111. A plea alleging that suit was not brought within three years after tht granl:ing of tetters of aAninistration is bad. It should allege that the cause of 24 ADMINISTRATION. XIII. action had accrued more than three years before suit was brought. Finney v. The State ix. 225. 112. As to pleas of an executor or administrator under the statute of limita- tions, in relation to demands against estates. Wiggins v. Lovering, ix. 259. See Limitations, 11, 12, 24, 25. XII. DISTRIBUTION. 113. Where there is a primary and ancillary administration, and the tribunal having jurisdiction of the ancillary administration can distribute or remit the assets, the courts having jurisdiction of the primary administration will not interfere within the limits of the ancillary administrator. Ths State v. Camp- bell, X. 724. 114. Upon an order of the County Court, an administration may be com- pelled to make distribution at any time after one year from the date of his letters, without a refunding bond. The State y. Stephenson, xii. 178. 115. But an order of distribution by the County Court is not a necessary pre- requisite to the maintenance of a suit by an heir for her distributive share of the intestate's estate. The State v. Morton, xviii. 63. 116. Where adult children have been reared and educated by their fether during his lifetime, the minors should be educated and supported out of his es- tate after his death. The State v. Stephenson, xii. 178. 117. Where older children have been educated and supported out of his estate, and distribution is made before the younger ones derive any such benefit, the excess received by the older should, in making distribution, be charged against them in favor of the younger. Ibid. 118. The personal estate of an intestate does not, upon his death, descend im- mediately to those entitled to distribution, but where there is an administration on the estate, the right to the possession is in the administrator. Gillet v. Camp, xix. 404. 119. A legatee, suing an administrator on his bond, is not entitled, as a matter of course, to be satisfied out of the damages recovered, to the exclusion of the other legatees or of creditors. The State v. Buggies, xx. 99. 120. A judgment rendered, requiring the administrator to pay over to the dis- tributees a certain sum of money as assets of the estate, is conclusive on the securities of the administrator in a suit on his bond, except where fraud and col- lusion are shown. The Slate v. ITolt, xxvii. 340. See Chancery, 148 ;. . .Interest, 15-17 ;. . .Jurisdiction, 12 ;. . .Supra, 33. XIII. SALE. a. RIGHT OF ADMINISTRATOR TO PURCHASE AT. 121. At an executor's sale, in Spanish times, no bidder presenting himself for a common field lot which was subject to a charge for keeping the com- ADMINISTRATION. XIII. 25 mon fence in repair, the same was by the Lieutenant Grovernor transferred to the executor, upon his assuming to bear the charge — Held, that the trans- fer was to be regarded as a governmental act, made upon considerations affecting the pubUo, as well as from a regard to the interests of the estate, and did not come within the rule that an executor could not purchase property which it was his duty to administer. Charleville v. Chouteau, xviii. 492. b. SALE OF PERSONALTT. 122. By the act of January 25, 1817, (1 Ter. L. 509, § 1,) the personal estate of the deceased constituted the primary fund for the payment of his debts, and should be so applied to the exclusion of the widow. Stokes v. G'Fallon, ii. 32. 123. The mere failure by an administrator to give the required notice of a sale of 'personal property will not, of necessity, invalidate the title of the purchaser. James v. Dixon, xxi. 538. 124. The sale bill kept at an administrator's sale is, (when returned and properly sworn to,) prima facie but not conclusive evidence as to who was the purchaser of any given article. Talbot v. Meams, xxi. 427. C. SALE OF SLAVES. 125. Facts which show fraud in administrator's sale of slaves. Keeton v. Keetnn, xx. 530. 126. A sale by an administrator, under an order of the County Court, of an equity of redemption in a slave is valid, although the slave is in the possession of the mortgagee, who claims to hold absolutely, and refiises to deliver up the possession. Phillips v. Hunter, xxii. 485. d. SALE OF REALTY. aa. Proceedings to obtain an Order. 127. Upon a petition by an administrator to have the land of an estate sold for payment of debts, a party interested in the land may resist the applica- tion, and show that the judgments were obtained by fraud and collusion. Calla- han V. Griswold, ix. 775. 128. The proceedings of an administrator to obtain an order from the county court to sell real estate, are not proceedings in rem. And the provision in the statute which requires notice to be given to persons interested in the estate, (R. S. 1845, 86, § 24,) does not include those who may claim the estate to be sold by superior title, but such only as are interested in the general administration, the creditors and heirs. Shields v. Ashley, xvi. 471. 129. And in such case, the person claiming the real estate by a paramount title, has no right to interfere with the proceedings. Ibid. 130. In a proceeding for the sale of a decedent's land, it is not necessary that guardians ad litem should be appointed for minor heirs. Overton v. Johnson xvii. 442. ■26 ADMINISTRATION. XHI. 131. A punehaeer at an adininistrator's sale is not Ibonnd to maintainthe trutih of the facts on wMoh an order of sale of the real ■estate was iJased. Wolf V. Sobinson, xx. 459. . 133. A petitioii to the Probate Court for a sale of land for We payment lof debts, should not be dismissed for want of an averment that the lands mentioned in the petition fcelonged to the intestate at iJie iferiae of his death. Tnnt v. Trent, xxiv. 307. See Fraud, SB;. . . .Jurisdiction, 33-36. Jjb. Motieis (if Sale. 133. -A want of svifficient notice of a sale by an administrator renders the sale voidable only, tmd not void ; and such sale cannot be attacked collateraHy. McNair v. Hunt, v. 300. 134. And under the iSpanish law, in this territory, such sale could not be attacked after four years. Ibid. 135. An administration sale of land is void if the record shows, that the notice which the law requires to precede the order of sale could not tiav-e been given. (R. S. 1835, 52. § 12.) Valle v. Meming, xix. 454. 136. And is not valid until reported to and iconfirmed by the court, and the approval should be shown by the record. (R. S. 1835, 53, § 21.) Ibid. cc. Conditions anS Requisites. 137. Where land has been sold for the payment of debts, the legal presump- tion is that the personalty has been exhausted, although the fact does not appear of record. McNair v. Hunt, v. 300. 138. Under the Spanish law of the territory, an appraisement was not neces- sary to the validity of an admini^rator's sale of land. Bnd. 139. Sales of real estate of deceased persons, made for the payment of debtS) must conform to the requisitions of the statute, (R. S. 1835, 52, §§ 8-23,) and no power is conferred on -tftie County Court to order a sale by the sheriflF. Jarvisy. RuSsick, xii. 63. 140. One of ^hfi administi'atprg having died, new letters were granted to the survivor and anothei;, there beipg no ejcpress revocation of the old httevs-^Seld, that a sale \>j the last was valid. V without craving oyer of the instrument, profert of which was made in the plea, and ivhich instm ment was iji court, it is not erroir to allow the omission of oyer to be supplied by an amendment of the record. Atwood v. Lewis, vi. 392. 42 APPEAL. I. 33. From the record of the Supreme Court it appeared that a judgment of affirmance was rendered in a cause, and from the printed opinion of the case, it appeared that it was ordered to be remanded, and that the plaintiflF had leave to withdraw his demurrer, and take issue on the plea of the statute of limi- tations, but there was no evidence that this permission was entered of record — Held, that the record should be amended so as to show the fact, by an application to the Supreme Court, before any proceedings are had in the court below. The State v. St. Gemme, xv. 219. See Cebtiorari, 3 ;. . . .Supra, 5, 6 ;. . . .Appeal, 78 ;. . . .Attachment, 18, 59, 60 ; Error, 35;. . . .Recognizance, 11, 13. APPEAL. I. BY ONE OF SEVERAL PARTIES. IL FROM CHANCERY. III. FROM CIRCUIT COURT. IV. FROM THE LAW COMMISSIONER'S COURT. V. FROM THE COUNTY COURT. VI. FROM THE COURT OF PROBATE. VII. FROM JUSTICE OF THE PEACE. a. RIGHT OP APPEAL. b. PROM WHAT JUDGMENT. ' C. WHEN AND HOW TAKEN. d. NOTICE. e. AFFIDAVIT. f. TO WHAT COURT, g. COSTS. h. PROCEEDINGS IN APPELLATE COURT. aa. Appeal Dismissed, bb. Amendment, cc. Judgment of AflBrmance. dd. New Defense. ' ee. Trial, ff. Evidence, i. By one of Several Parties. I. BY ONE OF SEVERAL PARTIES. 1. Where all the defendants will not join in an appeal from a Justice to the Circuit Court, the appellant must summon the others and sever from them. Ferry v. Block, i. 484. 2. Where there are several defendants in a suit before a Justice, and an appeal is taken by one, judgment cannot be rendered in favor of all of them in the Circuit Court, thdse who did not appeal not being parties to the record. Ibid. APPEAL. Til. 43 3. Where an appeal from a Justice appeeu's to have been prayed for on the day of trial, by one of two defendants, but the recognizance is entered into by both, the appeal is well taken. Sargent v. Sharp, i. 601. 4. Where a judgment is not appealed from by one party, an error in favor of the other cannot be corrected. Delassus v. Poston, xix. 425. II. FROM CHANCERY. 6. A refusal to grant an injunction is not a final determination of the cause, and an appeal from it will not lie. Tanner v. Irwin, L 65. Harrison v. Rush, XV. 175. 7. A decree that partition be made between the parties is interlocutory, and no appeal lies from it. Gudgell v. Mead, viii. 53. McMurtry v. Glascock, xx. 432. 8. Nor will a writ of error lie in such case. Stephens v. Hume, xxv. 349. 9. A decree, "that the defendant pay the complainant his costs herein expended, and that execution issue therefor," is not a final decree from which an appeal will lie. Higbee v. Bowers, ix. 350. 10. The evidence upon which a decree was predicated should appear in the appellate court, either by being embodied in the decree, or by a case agreed on by a special verdict, or on the record ; and if it do not so appear, the decree should be reversed, as the appellate c6urt cannot determine whether the court did right in making the decree. Risher v. Roush, i. 702. Richardson v. Harrison, iv. 232. III. FROM CIRCIJIT COURT. 11.. Under the statute, (R. S. 1825, 633, § 44,) unless the record is filed ten days before the commencement of the term, the Supreme Court will affirm the judgment or dismiss the appeal, unless a satisfactory excuse is given. Byrne v. Rodney, i. 742. 12. An appeal cannot be taken until final judgment is rendered. The State V. Pepper, vii. 348. 13. Any judgment, order or decree of the Circuit Court, which puts an end to the proceedings before that Court, may be reversed on appeal or writ of error. Hill v. Young, iii. 337. Exparte McQrade, xxiv. 125. 14. Thus the judgment of the Circuit Court, on a writ of error reversing a judgment of the County Court, and remanding the same, is final, and may be appealed from. (R. S. 1835, 470, § 7.) Rankin v. Perry, v. 501. Perry V. Alford, v. 603. 15. But an appeal will not lie from a judgment of the Circuit Court on an incidental matter collateral to the suit. George v. Craig, vi. 648. 16. Nor from the refusal of the court to permit a party claiming an interest a suit pending against others to be made a co-defendant. Roberts v. Pattm, xviii. 485. m 44 APPEAL. V. 17, A party cannot appeal a se^nd time fixwn tlie same judgment, the first appeal ha,ying been dismissed. He must resort to his writ of error. Brill y. Meek, XX. 358, 18., An appeal to the Supreme Court must, under the Statute, (R. 8. 1855, 1287, § 11,) be taken during the term at -wihich the judgment or decision was rendered. Stavely v. Kunkel, xxvii, 422. IV. FROM THE LAW COMMISSIONER'S COURT. 19. An appeal lies from the judgment of the Law Commissioner of St. Louis county in actions of replevin. Letois v. Price, xi. 398. 20. A judgment of the Law Commissioner refusing to make an order on a Justice^ is not a judgment from which an appeal can be taken. Ladue v. Spald- ing, xvii. 159. 21. A cause cannot be taken by writ of error or appeal from the Law Com- missioner's Court to the Circuit Court, but only to the Supreme Court. Little V, Sellick, wi. 269. V. FROM THE COUNTY COURT. 22. To make an appeal perfect and complete from the County to the Circuit Court, a bond sjiould be given with suflBcient security and approved by tbg" County Court, as provided in the statute. (1 Ter.L. 683,§ 4.) 5yn»?v. Thortyi- fon, i. 443. 23. Where the parties in the County Court consent to an appeal to the Circuit Court, for the judgment of the latter upon the law arising upon the facts of the case, the Circuit Court has full jurisdiction, and may proceed to try the case de novo, and its decision upon the facts wiU be deemed correct where the record does not show the evidence. Boone County, v. Coriew, iii. 12. 24. The legislature granted to A. an exclusive privilege to keep a ferry on the Missouri river, within certain limits, and provided that a failure to comply with the requisites of the charter shoul4 be sufficient to authorize the County Court to establish another ferry within said limits. (Acts 1855,109,) The County Court granted a license to B. to set up a ferry within the limits granted) to A., a,nd A- appealed to the Circuit Court, which court affirmed the judgment, and refused to try the question anew on the facts'— /feZd, that, conceding that an appe?il would lie, although non« was provided for in the act, the oourt was not bound to: try the cause anew. Lewis v. ^wckolls, xxvi. 278. 25. The appellate jurisdiction that the Circuit Court exercises over th« County Court, does not authorize them to try de novo causes appealed from the pounty Court, LoiQy v. Williams, xxvii. 2.80. 26. After an appeal is taken in a cause, and before the transcript is filed in the Appellate Court, the cause niust be qonsidered as pending in the Ap- pellate, Court. Foster v, RucJcer, xxvi. 494. See Jurisdiction, 16 ; School Lands, 3, APPEAL. VII. 45 VI. FROM THE COURT OF PROBATE. 27. Any person interested and aggrieved is entitled to an appeal ; but if his interest is not direct, it must be made clear, on the record, that he is interest- ed, or the court will decide against him. Zumwa.lt v. Zumwalt, iiL 269. 28. The executor of an estate claimed certain property as his own, and the widow of the testator applied to the County Court to compel him to inventory it as the property of the estate, which he was ordered to do — Held, that it waa not an order or decree from which an appeal lies to the Circmit Court. (See R. S. 1825, 121, §§ 12, 13, 11.) Davis v. Davis, iv. 204. 29. An appeal lies from the decision of the County Court, revoking letters of administration ; but. Per M'Grik, J., such appeal does not operate as a tuperne- deas upon the new grant of administrationi. (R. S. 1835, 63, §§ 1, 6.) Mul- lanphy v. County Court, vi. 563. 30. Anappeai will lie from an order of the County Court removing the guardian of an insane person. In perfecting such appeal an affidavit and appeal bond are not required. Hail v. Audrian County Court, xxvii. 329. 31. Under the statute, (R. S. 1835, 63, §§ 1, 2,) an appeal, would not lie from the decision of the County Court on a scire facias issued against the sureties of an administrator, for his failure to pay a judgment against him as administrator. (See R. S. 1835, 69, § 14.) Mirtin v Mlam, xi. 602. 32. An appeal does not lie from an opinion of the Probate Court as to the ci^bis of the distributees of an estate, unless there is an order of distribution. Dyer v. Carr, xviii. 246. 33. Nor from the entry by the Prebate Court of the non-appearance of a party who has given notice of a demand against an estate. The party must commence de novOi Wiatcomb v, Whitcomb, xix. 514. 34. A, was administrator of B., who was, at the time of his decease, of the firm ef B. peal from the judgment of a Justice, which states that the appellant '' did not appeal, but because he was injured by judgment of the Justice," is sufficient. (See 2 Ter. L.,. 283, § 2.) JMjWrS v. Weoljolk, iii. 348. 65. A writing, signed by a party praying an appeal, is not an affidavit until certified by th* Justice ; and it is error for the Cijcuit Court to allow the Jus- tiee to come into that couirt and certify the writing. Pri)se v, Halsedj, iii, 461, 66. An appearance and trial in the Circuit Court is a sufficient recognition aAd ftfflnmance of the agenCy of the person who, as agent, took the t^peal from the Justice And made the affidavit and recognizance. BurUm v. Collin^ iii. 313. 67. TJiider the act of February 12, 183*9, (Acts 1838-9, 78,) no other person than the party aggrieved could make the affidavit required in taking an appeal from a Justice. Papin v. Howard, vii. 34. f. TO WHAT COURT. 68. Under the act of 1843f, (Acts 1842-3, 56, § 2,) which gives the Court of Common Pleas concurrent appellate jurisdiction from jud^ents of a Justice with the Circuit CoUrt in St. Lonis coUnty, appeals should be taken to that court in which it can be first tried, and not necessarily to that court whose sit- tings commence next afteif the appeal. Patten v. N^elson, xii. 292. (But see R. S. 1855, 159T, § 3.) 69. An appeal from a Justice in St. Lonis cdunty, iu a Suit fbr trespass on land, must be taken to the Land Court, and ndt to the Law Commissioner's Court, Meier v. Ekhelberger, xxi. 148. Watkins v. Finney, xxiii. 48. APPEAL. VII. 49 g. COSTS. 70. If a party who appeals from the judgment of a Justice in St. Louis county to the " St. Louis Court of Common Pleas," fails to pay to the clerk the jury fee, as required by the act of January 29, 1847, (Acts 1846-7, 69, § 3,) the court may, in its discretion, affirm the judgment of the Justice, iipon the appellee filing a transcript and paying the fee. Hardison v. St. Bt. Cumber- land Valley, xiii. 226. St. Bt. Falcon v. Donahue, xiii. 231. White v. Zule, xiii. 233. Oordm v. Scott, xv. 249. 71 . So also on appeal to the St. Louis Land Court. Harley v. McAuliff, xxiv. 85. 72. Under the act of February 17, 1851, (Acts 1850-1, 241,) the Law Com- missioner has no authority to affirm the judgment of a Justice for the reason that the appellant neglected to pay him the fee allowed by that act upon the filing of the appeal papers, (§ 12.) Hunt v. Hernandez, xvi. 170. Boyle v. Skinner, xvii. 246. And see also Chrassmuck v. Atwell, xxiii. 63. Lala v. Canal- boat City ofjoliet, xxiv. 23. Haist v. Canal-boat City of Joliet, xxiv. 24. See Costs, 26-28. h. proceedings in appellate coubt. aa. Appeal Dismissed. 73. After an appeal from a Justice's Court is dismissed, the court cannot render judgment for the debt or reverse the judgment of the Justice. Thompson v. Curtis, ii. 209. Bams v. Holland, iii. 47. Bunkle v. Hagan, iii. 234. Manion v. The State, xi. 578. 74. An improper refusal of a Justice to grant a continuance, is no ground upon which to dismiss a suit on an appeal to the Circuit Court. Harper v. Baker, ix. 115. 75. It is error to dismiss an appeal on account of the smallness of the amount involved. Harris v. Hughes, xvi. 599. Wkitsett v. Gharky, xvii. 325. 76. Or for any error, defect, or other imperfection in the proceedings of the Justice. (R. S. 1845, 670, § 13.) Matlock v. King, xxiii. 400. 77. Or because the Justice omitted to render judgment after verdict entered on his docket. Morse v. Brovmfield, xxvii. 224. See Peacticb, 15 ;. . . .Supra, 43. bb. Amendment. 78. A Justice may supply omissions in his docket entries on a day subsequent to the trial and appeal, and the transcript in the Circuit Court may be amended therefrom by consent; or the appellant, on motion, may have a certiorari to bring up the amended record. Price v. Halsed, iii. 461. 79. The cause of action sued on before a Justice cannot be changed in the Circuit Court on appeal to that court. Smith v. Anthony, v. 504. 80. Nor can the transcript be so amended as to introduce a new party. " J^raft v. Huriz, xi. 109. 81. It is Bpt error to permit the papers necessary to an appeal to be perfected 4 50 ARBITKATIONS AND REFERENCES. where objections are taken to them, and then overrule the motion to dismiss the appeal. Dickerson v. Apperson, xix. 319. cc. Judgment of Affirmante. 82. In all cases of appeal, the appellate Court must enter up a new judg- ment of its own, and it is error to simply aflBrm the judgment of the Justice. (R. S. 1835, 370, § 8.) Gates v. Akerd, v. 124. 83. Where the appellant fails to prosecute his appeal, the judgment will be affirmed. Sec. 13, Art. VIII., of the act relating to Justices' Courts, (R. S. 1845, 6Y0,) is qualified by § 16 of the act relating to costs, (R. S. 1846, 244,) and applies only to cases in which the appellant is not in default. Martin v. White, xi. 214. Starr v. Stewart, xviii. 410. The State v. Thevenin, xix. 237. Milli- gan t. Dunn, xix. 643. dd. New Defense. 84. A defense may be made on the trial of an appeal from a Justice which was not made before the Justice. Hall v. Mills, xi. 215. ee. Trial. 85. Upon an appeal to the Circuit Courts the trial is to be had de novo, and no act of the Justice can be assigned for error. Atwood v. Beybum, v. 533. Harper v. Baker, ix. 115. 86. The new code does not apply to the trial of a cause appealed from a Jus- tice. In such cases it is still proper to ask declarations of law from the court on a trial without a jury. Soutier v. Kellerman, xviii. 509. Coffman v. Harrison^ xxiv. 624. flf. Evidence. 87. In appeals from a Justice, the same rule of evidence governs in the ap- pellate Court as before the Justice. (See R. S. 1835, 361, § 17.) Atwood v. Rty- bum, V. 555. See Mandamus, 20 Practice, 104, 188, 204. i. BY ONE OF several PARTIES. ScC SuPRA, II. See Boats and Vessels, XIII ; . . .Breaches of the Peace, 15 ;. . .Crim- inal Law, XVI; Error, 16; Forcible Entry and De- tainer, rV ;. . . .Habeas Corpus, 3 ;. . . .Laws, 59 ; . . . . Local Decisions, 3; Mandamus, VII; Recognizance, 11; Re- venue, 36 ; Roads and Highways, 10, VIII. ARBITRATIONS AND REFERENCES. I. agreeement to refer. II. PROCEEDINGS BY ARBITRATORS AND REFEREES. III. AWARD. ARBITRATIONS AND REFERENCES. 11. 51 IV. SETTING ASIDE AWARD. V. CONFIRMATION OF AWARD. VI. ACTION THEREON. VII. COSTS. I. AGREEMENT TO REFER. 1. An agreement to refer a matter in dispute to arbitrators, cannot be specifi- cally enforced. ICinff v. Howard, xxvii. 21. II. PROCEEDINGS BY ARBITRATORS AND REFEREES. 2. By a submission in writing, under a rule of court, the parties referred the matters in diflference between them to C. and D. as arbitrators, with power, in case of disagreement, to select a "^third person or more," before they entered upon the discharge of their duties. C. and D., not being able to agree, referred the whole matter to E., F., and G., who made an award — Held, that it was not necessary that C. and D. should have been sworn, or that they should have concurred in the award of the others by signing and sealing it. Scudder v. John- son, V. 551. 3. Arbitrators were sworn "faithfully and impartially to discharge their duties as arbitrators in a matter submitted to them by A. and B., by articles of agree- ment," etc. — Held, to be a substantial compliance with the oath required by the statute. (R. S. 1845, 122, §. 3.) Vaughn v. Graham, xi. 575. 4. All submissions in writing are so far within the statute, (R. S. 1845, 121,) that an oath taken by the arbitrators pursuant to the statute is not extra- judicial, although the terms of the submission do not provide for judgment to be rendered by the Circuit Court ; so that, if afterwards the parties amend the submission to provide for such judgment, it is not necessary for the arbitrators to be re-sworn. Bridgman v. Bridgmam, xxiii. 272. 5. Under Art. XVI of the new code there is a distinction between a referee and a commissioner. A referee is named by the consent of the parties, but a commissioner can only be appointed where the parties do not agree on a reference. Walton v, Walton, xvii. 376. 6. A referee should proceed according to the act concerning arbitrations and ref- erences, (R. S. 1845, 121,) and should find the facts upon which his judgment is based, and report the testimony of witnesses ta]f:en before him. His report becomes the judgment of the court, and can only be reviewed in the maniwr prescribed in the new code. (Acts 184«-9, 90, § 3.) Ibid. 7. A commissioner, appointed under the new code, (Acts 1848-9, 91, 8 5,) will proceed in the manner pointed out by Art. IV of the statute relating to Chancery pracrtice, (R. S. 1845, 846.) His proceedings, after being passed upon by the court below, will be reviewed in the Supreme Court on appeal or writ of error, the report being made a part of the record by a bill of exceptions. Ibid. 8. Refereeg have no power to dismiss a suit because of the refusal of the 52 ARBITRATIONS AND REFERENCES. IV. plaintiff to give his deposition -when called upon by the defendant. They should report the matter to the court. Coburn v. Tucker, xxi. 219. 9. And in case oT such dismissal, it is a proper exercise of the discretion of the court to set aside their -report, upon the plaintiff filing an affidavit purging the contempt, ibid. 10. An umpire chosen by arbitrators upon their own disagreement to decide the matter submitted to arbitration, must be sworn before he can hear the evi- dence in the cause. Frissell v. .Fickes, xxvii. 557. 11. Where a matter in dispute is submitted to arbitrators with a power on their part, in case of a disagreement, to call in an umpire, the umpire may be appointed before the arbitrators commence their investigation, or at any stage of the proceedings ; he ought to see and hear the witnesses. Ibid. 12. It does not invalidate an award that the arbitrators join with the umpire in making the same. Ibid. 13. Where, in a submission to arbitration, the matter in dispute is stated to be the " taking of timber from the land" of the plaintiffs, the arbitrators would not be authorized to assess treble damages. Ibid. III. AWARD. 14. Where arbitrators, in making their award, recite the mode of their ap- pointment incorrectly, as that they " were appointed by bond," when the ap- pointment was by writing unsealed, the award is not thereby vitiated. Magovn V. Whiting, i. 613. 15. An award made on a submission under the statute is incomplete until signed by the arbitrators, and attested by a subscribing witness, (R. S. 1885, 71 § 6.) Until this is done, its delivery to the parties is nugatory. It may be done at any time after. The attestation of the witness may be made on the return of the award, by the order of the court. Newman v. Laheaume, ix. 29. 16. The plaintiff and defendant on the 25th of September, entered into ar- ticles to submit certain matters of controversy between them to arbitrators. One of the terms was, that the award should be made and published within ten days from the date thereof. The award was made, written out, signed and witnessed on the 4th of October following — Ikld, to be a sufficient publica- tion of the award within the time. MeClure v. Shroyer, xiii. 104. 17. A referee need not report his decision in admitting or rejecting a wit- ness or testimony, unless required so to do by the order of reference. The State V. Pettier ew, xix. 373. IV. SETTING ASIDE AWARD. 18. Mere errors of law, or incorrect conclusions as to facts, do not of them- selves constitute sufficient ground for the setting aside of an award. Corrup- tion, partiality, or some misconduct of the arbitrators calculated to prejudice the rights of the party, must be shown. Nevman v. Labeaume, ix. 29. ARBITRATIONS AND REFERENCES. VI. 53 19. Nor will an award be set aside because of the admission of illegal evi- dence, nor for an error of judgment, no partiality nor misconduct being shown. (See R. S. 1845, 122, § 9.) Vaughn v. Graham, xi. 575. Bridgman v. Briigman, xxiii. 272. 20. Nor because one of the parties was unable to attend before the arbitra- tors, on account of the obstruction of the roads by high water. Shroyer v. Bark- ley, xxiv. 346. 21. An award made under a common law reference cannot, in action at law, be resisted on the ground of unfairness in obtaining it, or for errors of judg- ment in the referees. It can only be set aside in equity. Finley v. Finley, xi. 624. 22. The arbitrators, before whom the plaintiff and defendant had submitted their matters of dispute, allowed to the plaintiff a demand which the defendant owed him as administrator. Upon the trial before the arbitrators, the defend- ant did not object to the nature of the claim, but only to the amount of it — Held not to be sufficient cause to vacate the award. Mc Clure v. Shroyer, xiii. 1 04 . 23. Where it appears that arbitrators heard the evidence before they were sworn, their award was properly vacated. Toler v. Hayden, xviii. 399. 24. Where an agreement to submit a matter in dispute to arbitration describes the subject of dispute as " a matter in difference between the parties," and the parties afterwards appear and litigate a matter without any denial that it is the sub- ject of dispute between them, they should not afterwards be permitted to object to the vagueness and indefiniteness of the agreement. Price v. White, xxvii. 275. V. CONFIRMATION OP AWARD. 25. Where notice is given that a motion will be made in court on the first Monday of May for the confirmation of an award, and the Legislature afterwards changes the time of holding the court, the notice will be sufficient ; the party to whom the notice is given must take notice of the change. Price v. White xxviL 276. VI. ACTION THEREON. 26. An agreement between A. and B., under seal, provided, that in consid- eration that A. should give possession of certain public land to B., B. should pay the value of the improvements, to be ascertained by five householders, &c. Held, that the decision of the persons thus selected is not an award upon which an action can be brought. The remedy is on the agreement. Jarred v Micev X. 161. ■ '' 27. In an action on an award, it is only necessary for the plaintiff to set out so much of it as shows his right to recover. If there be any matter in the award constituting a defense, it must be set up by plea. Finley v. Finley, xi. 624. 54 ASSIGNMENT. II. VII. COSTS. 28. Arbitrators have power, under the statute (R. S. 1845, 124, § 16,) to award costs against either party, unless they are expressly prohibited from so doing by the terms of the submission. McClure\. Shroyer, xiii. 104. See Consideration, 36. ASSIGNMENT. I. ASSIGNMENT OF CH0SE8 IN ACTION. II. ASSIGNMENT OF ACCOUNT. III. ASSIGNMENT OF BANK NOTES. IV. ASSIGNMENT OF CONTRACT OF CONVEYANCE. V. ASSIGNMENT IN TRUST FOR CREDITORS. a. GBNKEALLY. b. VALIDITY AND EFFECT. C. AVOIDANCE OF. d. CONSIDERATION. e. ASSENT OF CREDITORS. f. PREFERRING CREDITORS. g. POSSESSION WHILE ASSIGNMENT IS EXECUTORY, h. DESCRIPTION OF THE PROPERTY. i. DEFAULT OR NEGLIGENCE ON THE PART OF THE ASSIGNEE. j. HIS LIABILITY. t. ACTION BY AND AGAINST. 1. FOREIGN ASSIGNMENTS. m. FRAUDULENT ASSIGNMENTS. I. ASSIGNMENT OF CHOSES IN ACTION. 1. It is well settled, that courts of law will protect the rights of an assignee of a chose in action against all persons having notice of such assignment, ex- press or implied. Laughlin v. Fairbanks, viii. 367. 2. A chose in action is assignable in equity, and the assignee maj; sue in his own name. Dohyns v. McGovem, xv. 662. 3. If, after a chose in action is transferred by its owner, it is by him assigned a second time, and the last assignee first gives notice to the debtor of his rights his equity will be superior to that of the first assignee who has neglected to give notice. Murdoch v. Finney, xxi, 138. II. ASSIGNMENT OF ACCOUNT. See Bonds, Notes and Accounts, 39, 40. ASSIGNMENT. V. 55 IIL ASSIGNMENT OF BANK NOTES. 4. M., with the plaintiff, forwarded to the defendant for adjustment a package of bank notes, which were in discredit. The package was sent in the name of M., who subsequently assigned the notes to the defendant in settlement of a pre-exist- ing debt — Held, that the defendant was a bona fide holder of the notes, without notice of the plaintiff's interest in them, and without accountability to him therefor, and that it made no difference that no farther credit was given by the defendant to M. on account of them. Clark v. Loker, xi. 97. IV. ASSIGNMENT OF CONTRACT OF CONVEYANCE. 5. If A. contracts to convey to B. one of four quarter sections, to be selected by B., the assignment of the contract does not assign the right of choice. McQueen v. Chouteau, xx. 222. V. ASSIGNMENT IN TRUST FOR CREDITORS. GENBEALLT. 6. An assignment for the benefit of creditors is not valid gainst an attach- ment levied on the property assigned, without proof that the persons for whose benefit the assignment is made are bona fide creditors. Hughes v. Ellison, v. 463. Crow V. Buby, y. 484. 7. But a deed of assignment is prima facie evidence that the persons named theiein as creditors are really such. Gates v. Labeaume, xix. 17. 8. Under the statute, (Acts 1840-1, 14, §§ 10, 11,) the court cannot enter up a judgment on the finding of an issue made under the provisions of that section. West V. Mies, ix. 167. 9. Such finding is not subject to appeal or writ of error. Ibid. b. VALIDITY AND EFFECT. 10. An assignment to secure accommodation indorsers is valid, although such indorsers have not made any payments, on account of their liability. Duvall v. Raisin, vii. 449.' 11. The validity of a deed of assignment, alleged to be fraudulent, may be tried in a court of law, upon an issue made between an attaching creditor and the assignee, summoned as garnishee under the provisions of the law relating to attachments, (Acts 1838-9, 6.) [Overruling Van Winkle v. McKee, vii. 435.1 Lee V. Taior, viii. 322. 12. A deed of assignment is not void for the reason that a clause in it pro- vides that the assignees shall not pay costs which have accrued or may accrue on debts by suit. Gates v, Labeaume,, xix. 17. 56 ASSIGNMENT. V. 13. Where creditors are to become parties to an assignment, and before they do so by executing it on their part, the assigned property is attached, the sheriff will hold against the assignee. Swearingen v. Slicer, v. 241. C. AVOIDANCE. 14. Where an assignment is sought to be avoided on the ground of its inva- lidity as to creditors, the party seeking to avoid it must show that he is a creditor, and it is not sufficient to show that an execution in his name was levied upon the assigned property. He must produce the judgment upon which the execu- tion issued. Wright v. Crockett, v'^ 125. 15- And where the judgment was rendered by a Justice, the entire tran- script of the case from the Justice's docket must be produced. Bameron v. Williams, vii. 138. 16. The validity of an assignment cannot be questioned by those creditors who voluntarily, and with full knowledge, become parties to it, although it may be void as to others. Burrows v. Alter, vii. 424. Martin v. Maddox, xxiv. 575. d. CONSIDEBATIOlf. IV. A deed of assignment to a trustee for the benefit of creditors is for a valuable consideration. Gates v. Laheaume, xLx. 17. e. ASSENT OF CEEDITORS. 18. An assignment for the benefit of such creditors as shouldj within a given time, become parties to it, and thereby release the assignor from all further liability, (the balance of assets, if any, to go to any remaining creditor,) will no prevail against an attachment made before the trustee takes possession of the assigned property, although the attachment was subsequent to the execution of the assignment. Hughes v. Ellison, v. 463. 19. Such assignment, if not void for the stipulation of release, would not have effect until it was executed by the creditors. Drake v. Rogers, vi. 317. 20. A debtor cannot make an assignment of his property in trust for the payment of his debts so as to bind creditors not assenting thereto. Per Tomp- kins, J. Thomas v. Reynolds, vi. 462. 21. The assent of creditors to an assignment made for their benefit, and which contains no provisions prejudicial to them, will be presumed. Duvall V. Raisin, vii. 449. 22. A conveyance by a debtor, without the knowledge of his creditor, to a trustee, to secure a debt, is valid, unless within a reasonable time after the act comes to the knowledge of the creditor he disclaims it. Major v. Hill, xiii. 247. 23. In a conveyance to trustees for the benefit of creditors, it was required that the creditors should sign it, in order to receive any benefit from it ; but none signed it — Held, that this dM not render the conveyance void as matter of law. Gale v. Mensing, xx. 461. ASSIGNMENT. V. 57 f. PREFERRING CREDITORS. 24. A debtor may make a general assignment of all Us property in trust for the benefit of bis creditors, and therein prefer one class of creditors to ano- ther, and that after suit brought by some of the creditors embraced in the gene- ral assignment. Bell v. Thompsm, iii. 84. [But see R. S.. 1855, 210, § 39.] 25. And such an assignment is good, although it contain no list of creditors or schedule of property, or a defective list or schedule. Beaver v. Savage, iii. 252. Brown v. Knox, vi. 302^. 26. But an assignment for the benefit of such creditors as should, within a limited time, release the assignor from all further liability, is void. Swearingen V. Slicer, y. 241. Brown v. Knox, vi. 302. 27. The statute (R. S. 1855, 210, § 39,) does not invalidate partial assign- ments for the benefit of a portion of the creditors of the assignor, but operates to annul all provisions in such partial assignments which give preferences among the designated creditors. Shapleigh v. Baird, xxvi. 322. Woods v. Timmer- man, xxvii. 107. 28. Such an assignment will not be wholly invalidated, but the title to the assigned property will pass to the trustee and the provision making preferences will be entirely disregarded. Bryan v. Brisbin, xxvi. 423. 29. And a provision in an assignment providing for the payment of a particular debt of a designated creditor would be valid. Woods v. Zimmerman, xxvii. 107. g. POSSESSION WHILE ASSIGNMENT IS EXECDTOET. 30. A deed conveying to a trustee a stock of goods, for the benefit of credi- tors, but providing that the grantor may continue to have possession, sell and dispose of the same in the regular or usual course of his business, until default is made in the payment of some of the notes intended to be secured, is void as a matter of law. BrooTcs v. Wimer, xx. 503. Walter v. Wimer, xxiv. 63. Martin v. Maddox, xxiv. 575. Stanley v. Bunce, xxvii. 269. 31. And such an assignment will not be aided by a subsequent deed of the grantor to the trustee, relinquishing all the rights so reserved to him under the first assignment. Martin v. Hiee, xxiv. 581. 32. But such assignment is valid as against creditors who have assented to and afiirmed it. Martin v. Maddox, xxiv. 575. h. DESCRIPTION OF THE PROPERTY. 33. A deed of assignment convejring " one bundle of orders, two bundles of notes, and two bundles of accounts," is void for uncertainty. Crow v. Ruby, v. 484. i. DEFAULT OR NEGLIGENCE ON THE PART OP THE ASSIGNEE. 34. Negligence or delay on the part of the assignee, in making out a sche- dule of assets and liabilities, which are referred to in the assignment as a part thereof will not vitiate such assignment. Duvall v. Raisin, vii. 449. 35. The omission of an assignee to file an inventoiy, give security, or to dis- 58 ASSIGNMENT. V. ctarge any other duty imposed by the statute, (R. S. 1845, 127,) cannot destroy the rights of the creditors under the assignment. Hardcastle v. Fisher, xxiv. 70- 36. The term "voluntary" in the statute (R. S. 1855, 202, § 1,) is used as opposed to compulsory, and a conveyance to a creditor in trust for himself as well as the other creditors of the assignor, is such an assignment as is contemplated in the statute, and in such case it is necessary for the assignee to file an inventory, Manny v. Logan, xxvii. 528. j. HIS LIABILITY. 37. Where a creditor sells at atiction, in good faith, goods which have been assigned to him to secure his debt, he is liable only for the proceeds, although largely below their original cost. Cohen v. Wolff e, xii. 213. k. ACTIOIT BY AND AGAINST ASSIGNEE. 38. Where an assignee, or person beneficially interested, brings an action in the name of the assignor, the defendant cannot avail himself of the plaintiff's want of interest. Labeaume v. Sweeney, xvii. 153. 39. A general conveyance of all debts " that may be due" to the grantor at a specified subsequent date, without a schedule, passes to the grantee such a title as will enable him to recover from a subsequent general assignee of the grantor at least all accounts contracted, (or the money collected upon them,) though not due at the date of the conveyance. J'age v. Gardner, xx. 50-1. 40. Neither an original general assignee, nor one substituted by the appoint- ment of the court, in possession,-of chattels claimed under the assignment, will be protected from suit by a party claiming the same chattels under a conveyance from the assignor previous to the assignment, on the ground of being an oflBcer or quasi officer of the court. Ibid. See Record, 8. 1. FOREIGN ASSIGNMENTS. 41. The validity of an assignment for the benefit of creditors, made in another State, and operating upon property in this State, will be determined by the laws of this State where the suit is pending. Brown v. Knox, vi. 302. Bryan v. Brisbin, xxvi. 423. m. FRAUDULENT ASSIGNMENTS. 42. A debtor, in failing circumstances, assigned all his property for the benefit of certain preferred creditors, by a deed which contained a provision, directing the surplus, if any, after paying the enumerated debts, to be paid to the grantor — Held, that the assignment was not fraudulent as to other creditors, where it appears that the whole property was insuiBcient to pay even the preferred debts. Richards v. Levin, xvi. 596. 43. Evidence tending to show fraud on the part of the assignor after the deed of assignment is executed, but no fraud being proved against the assignees, will ASSUMPSIT. I. 59 not render void tlie assignment. Gates v. Labgaume, xix. 17. Wise v. Wimer, xxiii. 237. 44. Where property is conveyed by a debtor in trust for the benefit of his creditors, and, at the trustees' sale thereof is purchased for the use and benefit of the debtor, or with money furnished by him, the title of the purchaser is not valid against the creditors of such debtor. Outzwiller v. Lackman, xxiii. 168. 45. But a creditor who knowingly acquiesces in the sale made by a trustee under an assignment for the benefit of creditors, and accepts his share of the proceeds, is estopped from denying the validity of the sale. Ihid. 46. The attempt, in an assignment for the benefit of creditors, to secure frau- dulent claims, neither the assignee nor creditors being cognizant of it, will not vitiate the assignment as to the other creditors ; the assignment will in such case be held void as against the fraudulent claimant, and good in favor of the honest creditors. Hardcastle v. Fisher, ixiv. 70. 47. And the effect of impeaching such a claim for fraud is, that the share which would otherwise go to its payment, sinks into the residue for the benefit of the other creditors under the assignment ; but an attaching creditor cannot take it by a gamishment of the assignees. Ihid. See Fbaddulbnt Convey- ances, II ;, • . .Partnership, 20, 21 ;. . • .Securities, 43. See Action, 19 ;. . . .Bills of Exchange and Promissory Notes, IX;. . . . Bonds, Notes, and Accounts, III .. ..Covenant, 55;.... Deed OF Trust, IV ; Evidence, 49 ;. . . .Judgment, IV ; . . , .Landlord and Tenant, 16, 1 7 ; .... Mortgage, IV ; ... . Public Lands, 26 ; Bailroads, 4. ASSUMPSIT. I. WHEN MAINTAINABLE. a. generally. b. on express contract. C. ON CONTRACT UNDER SEAL. d. ON PROMISE TO ONE PARTY FOR THE BENEFIT OF ANOTHER. e. WAIVER OF TOET. f. FOR MONEY HAD AND RECEIVED. g. FOR WORK AND LABOR, AND GOODS SOLD. n. BY WHOM. III. DECLARATION AND PLEADINGS. IV. EVIDENCE. V. DAMAGES. I. WHEN MAINTAINABLE. a. GENERALLY. 1, Privity is not necessary to enable a party to maintain either trover or assumpsit. Thus, where A., owning a horse, sold him to R, and the horse 60 ASSUMPSIT. I. strayed back, and again came into the possession of A., who refused again to deliver Mm to B., and A. then sold and delivered him to C, and B. thereupon sold him to D. — Held, that D. might maintain an action of assumpsit against C. for the value of the horse. Floyde v. Wiley, i. 643. 2. Payment of the amount due upon an execution, and returning the same satisfied, by an officer, without the request of the defendant, does not raise an implied promise to pay the debt by the defendant, on which assumpsit can be maintained. Bailey v. Gibbs, ix. 44. 3. M. gave L. a letter of credit, on which goods were obtained — Held, that M., by paying for the goods so sold, is entitled to recover of L., although the goods were charged to L. and D., and is presumed to have paid at the request of L., although no suit had been brought against him. Lindsay v. Moore ix. 175. 4. At the request of B., one of a firm composed of A. and B., C. became surety for A. on a note given by the latter in his individual name, but the pro- ceeds of which went to the benefit of the firm — ^«Zrf, that such request did not make B. liable to C. for money paid by him as security on such note in the absence of an express promise of indemnification. Asbury v. Flesher, xi. 610. 5. Where a party is entitled to a certain proportionate part of a fund received to his use by another, he can maintain assumpsit for it. Bobbins v. Alton Ins. Co., xii. 380. ' 6. The, defendant agreed to pay the plaintifi", who was about visiting Europe, one hundred dollars if he would go to a certain town and bring back with him on his return, his (the defendant's) son. The plaintiff went to the place and found the son, but was prevented from bringing him away in consequence of the interference of his mother (the defendant's wife) — ffeld, that assumpsit would lie for the value of the services. Lemp v. Streiblein, xii. 456. 7. Assumpsit will not lie to recover back the purchase money recited in a deed on failure of title. Templeton v. Jackson, xiii. 78. b. ON EXPRESS CONTBACT. 8. Assumpsit for goods sold and deliveredwill not lie unless there is a contract of sale, express or implied. Johnson v. Strader, iii. 359. 9. Nor will general assumpsit lie for the recovery of a claim embraced in an express contract which is not rescinded and is unexecuted. Stollings v. Sapping- ton, viii. 118. Christy v. Price, vii. 430. 10. But where a contract is executed except the payment of the money, it may be recovered under the general counts in assumpsit. Ingram v. Ashmore, xii. 574. 11. When work is done nnder a special contract, but not in compliance with its terms, and the work is nevertheless accepted, a recovery may be had for it in assumpsit, on a general count for work and labor. Thompson v. Allsman, vii. 530. 12. Where a wood-boat had been sunk by the mismanagement of the captain of a steamboat, a promise by him to replace it with another, or to pay one hundred and fifty dollars for it, will not sustain a count upon an account stated. Eutledge V. Moore, ix. 633. ASSUMPSIT. I. 61 C. ON CONTRACT UNDKE SEAL. 13. Assumpsit will not lie for the recovery of the value of services rendered under a sealed contract. Crump v. Mead, iii. 233. Brown v. Gauss, x. 265. d. ON PROMISE TO ONE PARTY FOR THE BENEFIT OF ANOTHER. 14. Where A., for a valuable consideration, makes a promise to B. for the benefit of C, an action thereon may be maintained in the name of either B. or C. Belt V. McLaughlin, xii. 433. And see Banic of Missouri v. Benoist, X. 519. e. VTAIVER OP TORT. 15. Where the property of B. comes into the possession of M., who converts it to his own use, B. may waive the tort and bring assumpsit. Floyd v. Wiley, i. 430. Same Case, i. 643. 16. Where a party sells personal property to another, and after receiving the pay for it converts it to his own use, he is liable, under the common counts in assumpsit, to the purchaser for the price paid and interest. Henderson v. Skinner, xiii. 99. f. FOR MONET HAD AND RBCETVED. 17. Assumpsit for money had and received will lie for money recovered of the plaintiff in an attachment suit instituted in another State, where, at the time of the recovery, the debt due to the party attaching had been paid. Schlatter v. Hunt, i. 651. 18. And may be maintained against a sheriff for money collected by his depu- ties under an execution ; or suit may be brought on his bond. Evans v. Hays, i. 697. 19. So it lies for the recovery of money paid on a contract for the purchase of land which the other contracting party is unable to convev ; but in declaring specially on such contract, the nature and extent of the inability must be set forth. Philipson v. Bates, ii. 116. 20. So it lies against an attorney, who, having a debt for collection, receives in payment debts on himselt; or on others, without authority from his principal. Houx V. Russell, x. 246. See Beardsley v. Root, 11 John. Rep., 465. 21. So it lies for currency, and no demand is necessary to entitle a party to a recovery of it after the Bank had rendered an account claiming the money as her own. Bank of Missouri v. Benoist, x. 519. 22. But a count for money had and received is not supported by proof of money loaned. Bank of Missouri v. Scott, i. 744. 23. R. and others were jointly interested in certain lands which were conveyed to him to sell for the benefit of the proprietors — Held, that R., having sold the land, was accountable to a joint owner for his share in an action of assumpsit for money had and received. Musick v. Richardson, vi. 171. 24. Where articles of co-partnership have been obtained by fraud, and money 62 ASSUMPSIT. II. paid thereon, the person defrauded may treat the articles as a nnllity, and recover his money on the common count in assumpsit for money had and received. Magoffin v. Muldrow, xii. 512. 25. The plaintiff furnished to the defendant five hundred dollars, with which to enter certain lands for him. The defendant used a part of the money in enter- ing the lands and appropriated the halance to his own use — Held, that the plain- tiff might recover, under the common counts in assumpsit, the amount not applied in entering land, together with six per cent, interest thereon. Henderaon, v. Skinner, xiii. 99. g. FOR WORK AND LABOR AND GOODS BOLD. 26. In an action of assumpsit — where the declaration contains acount on a special agreement that work shall be done in a certain way, be completed at a particular time, and be paid for in property at a specified price, and a count for work and labor done, and also on an account stated, and the work was not done at the time nor in the manner specified in the contract — the plaintiff, upon a variance appear- ing between the agreement declared on, and that offered in evidence, cannot recover the value of the work upon the count for work and labor. But he might so recover under a count for work and labor on a quantum meruit or qvrnitwm valehat. Labeaume v. Sill, i. 42. 27. The defendant contracted for two hundred barrels of a certain size and quality, and received two hundred barrels of a different size and quahty — Held, that he was liable for their value, as it did not appear that they were rec&ived under the contract. Murray v. Farthing, vi. 251. 28. Where the defendant gave his acceptance to the plaintiff for the amount of a bill of goods, and the acceptance was protested for non-payment, the plain- tiff may recover for the goods in assumpsit on a count for goods sold and deliv- ered. Sweeney v. Willing, vi. 1 74. 29. The law will not imply a promise to pay for work which is of no benefit to a party. Medlin v. Brooks, ix. 105. 30. Although a party who does work under a special contract cannot recover the price under the common counts while the contract remains unexecuted, yet he may recover under the common counts the price of extra work not embraced in the special contract. Powell v. Buckley, xiii. 317. II. BY WHOM. 31. One partner cannot maintain assumpsit against another while the partner- ship affairs remain unadjusted, Stotkert v. Knox, v. 112. Springer v. Cabell, x. 640. McKnight v. McCutchen, xxvii. 436. 32. Where A. and B. contract with C. to do certain work, and to advance to him a certain amount of money thereon, which they do, and the contract is subsequently rescinded, A. and B. must join in a suit to recover back the advances, although the money was in fact furnished by A. aJone. Welles v. Qaty, ix. 561. ASSUMPSIT. IV. 63 III. DECLARATION AND PLEADINGS. 33. The rule being that, on a count of general indebitatus assumpsit, an express promise may be given in evidence, a general demurrer to a declaration for use and occupation should be overruled, so as to give the plaintiff an opportunity to prove an express promise. Hector v. Hanken, i. 3'71. 34. Where to a declaration in assumpsit there is a plea of payment on the first day of June 1822, and a replication to this plea that the defendant did not pay, &c., on the first day of Jane 1822 — Held, that the issue thus formed was material. Ashley v. Bird, i. 640. 35. In an action of assumpsit, on a joint contract, only the parties liable can be joined as defendants. If others are joined it is error, and fatal even after ver- dict and judgment. Hempstead v. Stone, ii. 65. 36. The issue is material and well taken, where the plaintiff traverses the defendant's plea, which alleged that the note sued on was obtained from him by the plaintiff fraudulently. Price v. Cannon, iii. 453. 37. Where th« note sued on is without date, it may be alleged to have been executed on any day, but the words " dated" and " bearing date," being descriptive must be omitted, since otherwise there will be a variance between the declara- '" tion and evidence. Grant v. Winn, vii. 188. 38. The pleader, in declaring on a contract, may set it out according to its legal effect in direct terms, but not by way of inuendo. Pye v. Sutter, vii. 548. 39. Where the payees in a note are described as surviving partners, it is not necessary to state the description of the payees in a declaration on such note. Freeman v. Camden, vii. 298. 40. A declaration in assumpsit on a promissory note must aver a promise on the part of the defendant, and a failure to do so is fatal, even after verdict. Muldrow V. Tappan, vi. 276. McNulty v. Collins, vii. 69. 41. And so in an action of covenant. Perkins v. Reeds, viii. 33. 42. Under the statute of February 13, 1839, (Acts 1838-9, 99,) permitting the plaintiff to join as" many defendants in an action ex contractu as he chooses, the defendants may plead separately, Austin v. Feland, viii. 309. 43. In an action on a note given for the purchase of a tract of land, a plea alleging a want of title in the vendor, should show specifically the defect in his title. It is not sufficient to allege generally that he had no title, or that the fee simple is in another. Copeland v. Loan, x. 266. IV. l^VIDENCE. 44. In an action of assumpsit on a promissory note, want of consideration or fraud may be given in evidence under the plea of non assumpsit. Block v. Elliott, i. 275. 45. In an action for money laid out by the plaintiff for the defendant, the admission of the defendant that the plaintiff had paid and lifted a certain note due from him, is admissiblte to support the action. Graves v. Beard, i. 747. 64 ASSUMPSIT. V. 46. Evidence inapplicable under a special count in assumpsit may be received in support of a general count. Camster v. Shannon, ii. 94. 47. In assumpsit for money paid to the use of defendant, the record of a judgment in Kentucky is admissible to prove a recovery against the plaintiff and defendant for the same thing, and that the plaintiff paid the amount; and it may then be shown by other evidence that the plaintiff was a mere security. Davidson v. Peck, iv. 438. 48. It is not necessary to the admission of such testimony, going to prove the actual relation of the parties, that the deposition containing it should recite the record; Ibid. 49. Assumpsit on a bill of exchange, drawn on one S. by the plaintiff in favor of the defendant, and by the defendant indorsed to the plaintiff — Held, that as no special circumstances were alleged rebutting the presumptions arising from the position of the parties on the bill, the plaintiff could not recover. Thorns V. Green, vi. 482. 50. Quaere, whether the plaintiff could recover in such a case, if it had been alleged and proved, that the plaintiff drew the bill for the accommodation of the defendant, and that the defendant indorsed it to the plaintiff to pay an indebtedness of the drawee to him. Ibid. 61. A plea which simply puts in issue the title of the plaintiffs to the note sued on, admits the partnership of the plaintiffs as alleged in the petition. Arthur v. Pendleton, vii. 519. 52. A note payable in currency is admissible in evidence under the money counts. Floating Dock Ins. Co. v. Soulard, viii. 665. 53. Where a declaration, founded on a promissory note, contains a special count and the common counts, the note is admissible in evidence on the com- mon counts, and it is immaterial whether it sustains the special count or not. Swearengen v. Orne, viii. YOY. 54. Evidence that the defendant had given witness a draft on the plaintiff, and that the plaintiff, when the order was presented, promised to pay it but did not, and that at the same time the plaintiff said he was indebted to the defendant five or six hundred dollars, and that their business was unsettled, is admissible under a plea of non assumpsit. Haden v. Herndon, ix. 854. 55. A written agreement, not under seal, which has been executed, need not be declared upon, bijt may be given in evidence in support of the coromon counts in an action of assumpsit. Carroll v. Paul, xvi. 226. V. DAMAGES. 56. Wheregoods which have been conveyed by two mortgages are sold on a land- lord's warrant, and an action of assumpsit for money had and received is brought by the older mortgagee against the landlord, he is entitled to recover only the amount due on his mortgage, and not in addition to the amount due on the junior mortgage. Glasgow v. Bidgeley, xi. 34. 67. Though a builder, where he abandons a building contract before com- ATTACHMENT. L 65 pleting it, may recover for his labor and materials, if received and of value to the otiier party, yet the damages caused by the non-performance of the con- tract may be deducted from the value of the work and materials. Lee v. Ash- brook, xiv. 378. ATTACHMENT. I. GROUNDS OF ATTACHMENT, n. AFPmAVIT. HI. BOND. a. ATTACHMENT BOND. b, DBLIVKRT BOND. C. BOND alVEN ON DISSOLUTION OF ATTACHMENT, d. DAMAdES. IV. PARTIES. V. WHAT IS ATTACHABLE. VI. PROCESS. a. THE WBIT. b. SERVICE. C. LEVY. d. RETURN. VII. PLEA IN ABATEMENT. Vm. EVIDENCE. LS. PLEADING AND PRACTICE. X. LIEN. XI. JUDGMENT. XII. IN AID OF OTHER ACTIONS. XHL TRIAL OF THE RIGHT OF PROPERTY. XIV. SALE. I. GROUNDS OF ATTACHMENT. 1 . A. being indebted to B. and others, received goods from B. to sell, under an agreement to account for and mate returns of the sales. In making returns he failed to state a large sale for cash — Jleld, that if such false return to B. was made with the intent to defraud his creditors, it would sustain an allegation in an affidavit for an attachment that " he had fraudulently concealed," &c., his property. (See R. S. 1845, 133, § 1.) Powell v. Matthews, x. M. 2. The husband may have a legal right to money with which his wife secures a conveyance to her own separate use, and yet not be guilty of such fraud in relation to his creditors as is contemplated by the law of attachments, in tacitly leaving it entirely to her own disposition and control. Beach v. Baldwin, xiv. 597. 3. Every casual and temporary absence of a debtor from his usual place of abode, is not a legal ground for issuing an attachment against his property ; it must be 5 ATTACHMENT. H. suet as to prevent the service of ordinary process upon him. When, therefoM, a summons, issued upon the day the attachment issued, can be served upon the defendant a sufficient time before the return day, to give the plaintiff all the rights which he could have at the return term, the defendant has not absented himself as that the ordinary process of law cannot be served upon him. ^ings- land V. Worsham, xv. 657. Ellington v. Moore, xvii. 424. 4. It is a fraudulent disposition of property within the meaning of the statute relating to attachments, for a debtor to confess judgment in favor of one creditor with intent to hinder or delay his other creditors. If the judgment creditor directs the sheriff to hold up his execution, and not to sell nor proceed to make the money until he shall give further orders, and until he shall find younger exe- cutions crowding in, such act renders the execution dormant and fra.udulent as to subsequent executions. Field v. Liverman, xvii. 218. 5. An express company received goods from a vendor to be transported and delivered to the vendee upon payment of the price. The goods were delivered to the vendee by the company without the payment of the price, the company thereby becoming liable to the vendor — Held, that the company could not main- tain an attachment against the vendee under the statute. (R. S. 1855, 238, § 1, cl. 13.) Sichardson's Express v. Cunningham, xxv. 396. II. AFFIDAVIT. 6. An affidavit taken before any judicial officer of another State, who, according to the course of the common law and the practice of courts, is authorized to administer oaths, is good here for the purpose of holding to bail, or of granting an attachment ; and the official character of a judge in another State is sufB- ciently proved by a certificate of the Clerk of the Court, under the seal of the court. Hays v. Bouthalier, i. 346. 7. Thus the affidavit may be made before a Justice of another State, and the certificate of the Clerk of the County Court where he resides, is sufficient evidence of his official character, and the certificate of two Commissioners of the same county that the person certifying is the Clerk, etc., is sufficient as to that. Fosey V. Buckner, iii. 604. 8. Under a statute authorizing an attachment to issue upon a party swearing that " he verily believes that the defendant is not a resident of or residing within this State, or that he has so absented himself, or absconded from his usual place of abode, or concealed, or confined himself, that the ordinary process of law can- not be served upon him, or that he is about to remove his effects out of this State" — Held, that an affidavit that the defendant " is not a resident of this State, so that the process cannot be served upon him," is not confoi-mable to the statute, not bringing the defendant within either of the classes therein designa- ted. Lane v. Fellows, i. 353. 9. Nor is an affidavit that the defendant " verily believes that the said defend- ant is not a resident of this State," conformable to such statute. Alexander v. Haden, ii. 228. ATTACHMENT. HI. el 10. Where an affidavit for an attachment filed with a Justice is defective, it may be amended in the Circuit Court, on application for that purpose. Hackney V. Williams, iii. 455. 11. An affidavit for an attachment under the statute (R. S. 1835, 76, § 1, cl. 4) must state that the affiant has "good reason to believe that the defendant is about fraudulently to remove, convey or dispose of his property," &c., it is not sufficient to say that " it is the beliel^" &c. Stevenson v. Hobbins, v. 18. 12. Under the statute (Acts 1838-9, 6, § 1) an affidavit for an attachment which alleges that the " affiant has good reason to believe, and does believe, that the defendant is about to convey his property, so as to hinder or delay his credi- tors," following the words of the statute, is sufficient. Curtis v. Settle, vii. 452. 13. It is sufficient in an affidavit for an attachment to state that the defendant "is indebted," etc., omitting the word "justly." (See R. S. 1845, 134, § 3.) Livengood v. Shaw, x. 273. 14. It is no ground of demurrer to a petition in an attachment suit founded upon a note not matured, that it states the note to be " due," or that it fails to refer to the law, or to state the existence of the facts, which authorize an attach- ment under such circumstances. It is sufficient that the affidavit sets forth facts which constitute a cause of action. Kritzer v. Smith, xxi. 296. III. BOND. a. ATTACHMENT BOND. 15. Where the penal sum named in an attachment bond was " two thousand," and it appeared from its condition that it was taten to secure the forthcoming of property of the value of " one thousand dollars" — Held, that it would be intended that the penal sum was designed to be expressed in " dollars," (See 8 Barn. & Cress. 568.) Grant v. Brotherton, vii. 458. 16. The bond required by the act of 1837, (Acts 1836-7, 8, § 1,) must be filed before the attachment issues, and the omission to do so is a fatal defect that cannot be cured by a subsequent filing of a bond. Stevenson v. Rohhins, v.- 18. 17. A subsequent attaching creditor cannot take advantage of a defect in the attachment bond given by a prior attaching creditor. Van Arsdale v. Krum, ix. 393. 18. Under the statute of 1839, (Acts 1838-9, 7, § 13,) the court may, on mo- tion, give leave to amend an attachment bond, whatever be the defect. Ibid. 19. A suit by attachment ought not to be dismissed for any insufficiency in the bond, until the court has given time, and the plaintiff has failed to file a new bond. Tevis v. Hughes, x. 380. 20. Where a defendant, who had a verdict on a plea in abatement to the affi- davit in attachment, brings suit on the bond, aUeging a failure to prosecute with effect, the truth of the affidavit in the attachment cannot be inquired into. Hay- den v. Sample, x. 215. 21. A bond executed under the statute relating to attachments, (R. S. 1845 135, § 4,) which omits part of the conditions specified in the act, is nevertheless valid as to the conditions contained in it. The State v. Berry, xii. 376. 68 ATTACHMENT. IH. 22. A. commenced an attachment suit against B. in the United States Circuit Court, and thereupon executed a bond to B., conditioned that A. should prose- cute his suit with effect, and should pay all damages that might accrue to B., or to any garnishee in consequence of said attachment — ^«W, that upon a breach of the condition, B. may maintain a suit thereon to the use of any garnishee who has been damaged ;-^that the bond, although voluntary and not authorized by any statute, is good as a common law bond ; and that a bond with a like condition, made to the United States is valid, although not executed in pursuance of any law, nor m connection with any business of the United States, nor any dut^ of the obligor to them, and that a garnishee may sue on such bond, in the name of the United States, to his use. Barnes v. Webster, xyi. 258. United States v. Ferguson, xvi. 258. b. DELIVERY BOND. 23. Under a statute that required the plaintiff, before order for sale of attached property, to give bond for the return of the goods or effects, if defendant, shall disprove, avoid, or discharge the debt within one year next following, (1 Ter. L. 146, § 4,) — Held, in a case where the bond given was conditioned for the return to defendant of the " goods and chattels," that lands are to be considered as chat- tels in the payment of debts, and that such a bond includes them. Hays v Bouthalier, i. 346. 24. Where the defendant in an attachment executes a bond as provided in the act of January IV, 1831, (2 Ter. L. 248, § 2,) he thereby waives all objection to the attachment and to the proceedings taken under it. Poyne v. Snell iii. 409. 25. Where a statute provides for the taking of a bond, but does not prescribe its form, it is sufficient to take a bond which would be good between the parties at common law. (See Acts 1836-7, 8, § 2.) Grant v. Bretherton, vii. 458. 26. Where property in the hands of a third person is attached, and is retained by giving a bond to the Sheriff for its delivery " when and where the court shall direct," according to the statute (R. S. 1835, 78, § 14) an order of court for its delivery is necessary to render the obligors liable on the bond. The judgment of the court against the defendant in the attachment suit, and an execution issued to the sheriff, is not sufBcient to fix the liability of the obligors. Brotherton V. Thomson, xi. 94, 27. R., as the security of 8., entered into a bond to the Sheriff in the penal sum of thirteen dollars, conditioned for the return of property taken on attach- ment against S., stated in the condition to be worth seven hundred dollare. The Circuit Court under the statute relating to attachments (Acts 1840-1, 15) rendered judgment against R., on the bond for six hundred and sixty-two dollars — ffeld, that it was e^ror to render judgment for a sum larger than that stated in the penal part of the bond, since the word " hundred," supposed to be omitted in stating the penalty, could not be supplied by construction. Bayhurn v. Bmver, Yjii. 104. 28. Theact,ofFel?rwy 15, 1841, (Acts 1840.-1, 15,) which provides %Ut ATTACHMENT. V. 69 judgment may be rendered^ in certain cases, against ihe prineipal and sureties in the bond given to retain the possession of property attached, is prospective, and applies only to bonds executed after its passage. ThoUpscn v. Smith, viii. T23. C. BOND GIVEN ON DISSOLUTION OF AN ATTACHMENT. 29. In an action on a bond given to dissolve an attachment, a notice of special matter under the plea of non at factum, alleging " that the appeal had been taken to the Supretne Court and allowed," is insufficient, tt should allege that '' the appeal was pending and undetermined." Foteet v. Boyd, x. 160. d. DAMAGES. 30. An attachment bond conditioned " to pay all damages which may accrue to the defendant in consequence of the attachment," will extend to damages oc- casioned by any proceeding in the suit, and to costs and expenses attending the trial of a plea in abatement to the affidavit. Hayden v. Sample, x. 215. 31. And such bond given under the statute (R. 8. 1845, 135, § 4) will extend to damages naturally and proximately resulting from the attachment, and dama- ges for injuries to credit and business can only be recovered in an action on the case for maliciously suing out an attachment. The State v. Thotnas, xix. 613. rv. PAETIES. 32. The remedy by attachment is not confined to resideAt creditors, but is open to non-residents. Graham v. Bradbury, vii. 281. 33. And a non-resident may have an attachment against a non-resident. Posey T. Buckner, iii. 604. 34. A foreign corporation may be sued by attachment in the courts of this State. Perpetual Insurance Co. v. Cohen, ix. 416. V. WHAT IS ATTACHABLE. 35 The individual interest of a joint payee of a note or of an order, may be attached by gairnishment of the payor ; but whenever a joint payee has received his proportionate share of the debt, he has no longer any interest in it that can be attached. Miller v. Richardson, i. 310. 36. A trust estate can never be attached for the debts of the trustee. Ibid. 37. A. was indebted to B., and consigned to him a quantity of goods, with directions to sell them and apply the proceeds to the payment of the indebted- ness. The goods were attached while in transitu. On receiving notice of the shipment, B. insured the goods on his own account, but it did not appear that he did so prior to the attachment— ^eW, that the property in the goods remained in the consignor ; that they were at his risk, and were subject to attachment by his (Jreditors. Sproule v, McNulty, vii. 62. 10 ATTACHMENT. VI. 38. An attacliment will lie against the property of one of two joint contract- ors, on the ground of his non-residence, although the other contractor is a resident of the State. Searcy v. Platte County, x. 269. 39. A. having rented land for a year, gave leave to B, to sow part of it with grain. B. afterwards abandoned the crop, which was reaped by A., after he had received his lease for a second year — Held, that the grain was not liable to attachment as property of B. JTall v. Shannon, xix. 401. 40. A promissory note assigned to a wife, during coverture, is subject to attach- ment for the debt of the husband. Hockaday v. Sallee, xxvi. 219. VI. PROCESS. a. THE WRIT. 41. A writ of attachment commanded the Sheriff to attach the defendajit by his lands, &c., to be and appear to answer, &c., without any clause of summons, and there was no return by the Sheriff of service of a summons. The attach- ment was dissolved — ffeld, that the suit was properly dismissed for want of a summons. Bland v. Scholt, v. 213. 42. The form of notice of an attachment suit, which has been usually adopted in the courts of this State, although it does not specify " the nature of the de- mand," is sufficient, it having been the long-continued practice of the courts Sloan V. Forse, xi. 126. 43. It is not necessary that the name of every person summoned as garnishee in an attachment suit should be inserted in the writ. Briggs v. Block, xviii. 281. 44. Where a writ of attachment is made returnable to the wrong term, — as when, within fifteen days of the commencement of the term,- the party against whom the writ issues is summoned to appear at such term, — it is not thereby rendered a nullity. Richaedson, J., dis. Bank of Missouri v. Matson, xxvi. 243. b. SERVICE. 45. Where, in a suit by attachment, a defendant is not served with process, and does not appear, the judgment upon publication of notice is special, and does not authorize an execution against any property but that attached. Clark v.'JIolliday, ix. Y02. 46. Where the defendant in an attachment suit, upon whom there had been a defective service, appears in court, and moves to quash the return of the Sheriff and the writ, it is error to dismiss the suit. Withers v Rodgers, xxiv. 340. 47. The attachment law of 1845, and not the new code, governs as to the pub- lication of notice to non-resident defendants in attachment suits. Gates v, Cla- vadetscher, xix. 125. C. LEVY. 48. As to the requisites of a levy of a writ of attachment. Prima facie, it ATTACHMENT. VII. 71 should be presumed that a writ of attachment was levied as eariy as the date under which the return is made. Lackey v. Seibert, xxiii. 85. d. RETURN. 49. A return of an attachment of land, precise as to quantity, and as particu- lar as deeds generally are, as to the location and boundaries, is a sufficient return. Hays y. Bouthalier, i. 346. 50. The sale of attached property by the Sheriff under an order of the circuit judge in YACdXiou, prima fade passes the title to the property to the purchaser, although the Sheriff's return in the attachment suit is insufficient. Chambers v. Kelly, xii. 514. 51. And where there has been a personal service of a writ of attachment upon the defendant, the attachment will not be defeated as against subsequent pur- chasers, by a failure of the officer making return to state in his return the fact that notice of the attachment has been given to the actual tenants, and the names of the tenants. Lackey v. Seibert, xxiii. 85. 52. In an attachment suit, the return of the Sheriff constitutes a part of the record, and error may be assigned on it. Walsh v. Agnew, xii. 520.. Vn. PLEA IN ABATEMENT. 53. A plea in abatement, under the act of 1837, (Acts 1836-7, 9, § 5,) amend- atory of the attachment law, puts in issue only the truth of the facts asserted in the affidavit, and not the affiant's belief of them. Chenault v. Chapron, v. 438. Dider v. Courtney, vii. 500. 54. A misnomer cannot be taken advantage of under that plea. Swan v. C Fallon, vii. 231. 55. And it is error for the court, on such plea, to dismiss the attachment, and then proceed to a trial on the merits, where the defendant objects. The issue on abatement being found against the plaintiff, the suit should be dismissed. Mense v. Osbem, v. 544. 56. Where the truth of the facts upon which the attachment is issued are con- troverted, it must be done by a plea in the nature of a plea in abatement. (See Acts 1838-9, 7, § 11.) Qraham v. Bradbury, vii. 281. 57. And cannot be done on motion. Seai^y v. Flatte County, x. 269. 58. An affidavit for an attachment alleged "that the defendant had absconded or absented himself from his usual place of abode in this State, so that the ordi- nary process of law could not be served upon him." Under a plea in abate- ment, the only issue to be tried by a jury is the fact whether the party so absconded or absented himself as to prevent the service of a writ. The intention of the party is not in issue. Temple v. Cochran, xiii. 116. 59. The defendant should be permitted to amend a clerical error in his plea traversing the affidavit upon which an attachment was issued, even after demur- rer sustained. [Overruling Livengood v. Shaw, x. 273.] Oayce v. Ragsdale xvii. 32. 72 ATTACHMENT. IX. 60. And the plaintiff may amend the petition, bond and aflBdavit, wherein the Christian name of the defendant is incorrectly stated. Middleton v. Frame, xxi. 412. 61. The plea authorized by the statute (R. S. 1845, 139, § 25) is a plea in abatement, and is weaved by pleading to the merits of the action. Hairy v. Shuman, xiii. 547. 62. Under the new code, a defendant in an attachment suit cannot, in the same answer, plead in abatement to the truth of the affidavit, and in bar to the merits of the action. By so doing, he weaves the plea in abatement. Cannon V. McManus, xvii. 346. 63. Suit was commenced, by attachment, on a note given by A. & Co., b^re a Justice, against A. and B. The affidavit alleged that A. and R, composing the firm of A. & Co., were non-residents. The firm of A. & Co. was in fact com- posed of A. and C. On appeal to the Circuit Court, the suit was dismissed as to B. A plea was filed denying the non-residence of A.-^IIeld, that the only issue to be tried was whether A. was a non-resident. Moere v. Otis, xx. 153. VIII. EVIDENCE. 64. Where an attachment is issued on an affidavit that the defendant is about to remove his property out of the State, in order to hinder and delay creditors, and there is a plea in abatement to the affidavit, evidence of the indebtedness of the defendant, to the plaintiff or others, is not adjcniissible on the trial of that plea. Switzer v. Carson, ix. 732. 65. In an attachment, where the evidence for the plaintiff on a plea in abate- ment, is confined to the issue that the defendant was about to remove his pro- perty out of the State, with the intent to defraud his creditors, and the bona fdet of debts, alleged to have been paid by the defendant, is not questioned, no rebut- ting testimony, showing that they were justly due, is necessary. Crow v. Mar- shall, XV. 499. 66. In a suit on an account commenced by attachment, with aUegations of fraudulent concealment or disposition of property, considerable latitude is allowed in the introduction of evidence of the fraud ; and in order to show that a judg- ment confessed by defendant in favor of one of his creditors, and a stay of pro- ceedings thereon by order of said cpditor were in fraud of other creditors, con- versations between the witness and such judgment creditor may be introduced. Field V. Liverman, xvii. 218. See Fraud, I ; . . . . Fbaudulbnt Conveyances, IV. IX. PLEADING AND PRACTICE. 67. An attachment may be quashed when issued upon a state of facts which do not justify the issuing of the writ. Per Scott, J. Graham v. Bradbury, vii. 281. ATTACHMENT. X. IS 68. Where a judgment by default is rendered in an attachment suit on publi- cation of notice, it should be set aside on the application of defendant before the damages are assessed, upon proper terms. Sloan v. Forse, xi. 126. 69. Where a party has filed an interplea in an attachment suit, and taken a non-suit on the trial, it is no error for the court to strike out a second interplea filed by him in the same ease, without leave of court. Keiier v. Moore, xvi 179. 70. In an attachment suit submitted to the court sitting as a jury upon the claim of an interpleader, the court should peruse the provisions of the new code in finding the facts and pronouncing the law thereon. (Art. xv. § 2.) Skinner v, Thompson, xix. 528. 71. The trustee in a deed of trust upon a stock of goods seized in an attach- ment suit, may interplead for the goods or their proceeds, although he has sold under the deed of trust since the sale under the attachment. Same Case, xxi. 15. 72. Where issue was taken on only two of three alleged causes for suing out a writ of attachment, and a general verdict was given for the plaintiff, it was held, that there was no error, as either of the two causes on which issue was taken was sufficient to support the attachment. Kritzer v. Smith, xxi. 296. 73. The issue being, whether a party was " about fraudulently to conceal or dispose of his property or effects so as to hinder or delay his creditors," an instruction that he must have done some act to indicate the intent, was properly reftised, an instruction having been given in the words of the statutes. Ibid. 74. In an attachment suit on a note not yet due, it seems, the defendant is not bound to plead to the action until the note has matured. Ibid. 75. An interplea can be resorted to in an attachment suit only where personal property is attached. Gordon v. McGwrdy, xxvi. 304. See Practice, 9, 10, 16, 17. X. LIEN. 76. Where the property of the defendant is attached in the hands of a third person, and is retained by giving a bond and security for the forthcoming of the same, the attachment continues a lien on the property. (E. S. 1835, 78, 8 14.) Evans v. King, vii. 411. 77. The lien of an attachment is lost by the death of the debtor after ser- vice of process, but before judgment Per Tompkins, J. Scott, J., declined to give an opinion on this point. Napton, J., absent. Sweringen v. Eberius, vii. 421. 78. And where the death of the debtor occurred after execution issued, but before the sale, the lien is lost. Prewitt v. Jewell, vs.. 728. Miller v. Doan xix. 650. 79. As, also, where the death of the debtor took place after judgment, without personal service, the lien of the attachment is lost. And such judgment cannot be made the basis of a proceeding in the Court of Probate jurisdiction. Harrison V. Renfro, xiii. 446. 80. An execution is placed in the hands of a constable ; after it is received, but before it is levied, an attachment is issued and levied by the sheriff upon the T4 ATTACHMENT. XIII. goods of the defendant in the execution — Held, that the attachment will hold against the execution. Scott, J., dis. Field v. Milburn, ix. 488. 81. The levy of a writ of attachment upon land creates a lien from the moment of the levy. A sale, under an execution issued upon the judgment against the defendant in the attachment, relates back to the time of the levy, and passes the title to the purchaser, unaffected by any incumbrances created or conveyances made subsequently to such levy. Lackey v. Seibert, xxiii. 85. XL JUDGMENT. 82. Prior to 1824, suit could not be instituted impersojiam against one of several defendants, and, in rem, against the others. Ip such a case, where all the defend- ants appear, it is error to render judgment against the one served with process, and taking no steps as to the others. Hempstead v. Dodye, i. 493. 83. A judgmeiit rendered in an attachment suit on a defective affid3,vit, by the creditor suing out the attachment, will be set aside for irregularity after the lapse of three terms of the court. Alexander v. Haden, ii. 228. 84. Where, in an attachment suit in which the defendant is notified by publi- cation and does not appear and answer, judgment by default is ,rendere4 against him, such judgment will bind only the property attached. (R. S. '55, 250, §§ 43, 44.) Johnson v. Holley, xxvii. 594. 85. A judgment in an attachment suit in the following form, "it is, therefore, considered by the court, that the said plaintiffs recover of the said defendant the sum of $368.50, as and for their demand, and, also, their costs and charges herein expended, and that they have a special execution on the property attached, to-wit, lot No. 9," (fee, is in substantial compliance with the statutory provisions. Ibid. XII. IN AID OF OTHER ACTIONS. 86. An attachment may issue upon a statement in the form of a " petition in debt," as in other actions. Ghenault v. Chapron, v. 438. 87. Under the statute, (R. S. 1845, 132,) an attachment cannot issue in an action ez delicto, but only in actions ex contractu. McDonald v. Forsyth, xiii. 549. XIII. TRIAL OF THE RIGHT OF PROPERTY. 88. A constable has no authority, under the statute, (R. S. 1835, 367, § 14,) to summon a jury to try the right to property taken on an attachment, and he is liable if he parts with the property under an illegal proceeding. Little v. Sey- mour, vi. 166. See Execution, VIII. ATTORNEY AT LAW. II. 75 XIV. SALE. 89. WLere, in an attachment suit, the judgment rendered is a general one, the court has no right to order that the property attached shall be sold rather than any other, or to specify any property whatever. Kritzer v. Smith, xxi. 296. 90. A Justice ordered the sale of a wood boat in the custody of the constable, under a writ of attachment — Held, that on a final determination of the attach- ment suit in favor of the defendant, that he would be entitled to the entire pro- ceeds of the sale of the boat, and might recover the same from the constable, and that any trouble or expense in keeping the boat should be taxed as cost in the cause against the unsuccessful party ; the constable would not have a Hen on the proceeds of the sale of the boat for the expense of keeping and selling it. Snead V. Wegman, xxvii. 1*76. 91. And as only the defendant's interest in the boat could be attached and sold, he alone could sue the constable for the proceeds of the sale. A joint owner with him could not join in such action. Ibid. See Costs, 29; Error, 20;. ... Jurisdiction, 67 ;, . , .Lien, 16; Sheriff, 10 ;. . . .Tresspass, 12, 17. ATTORNEY AT LAW. L POWER. II. LIABILITY. III. INDICTMENT FOR PRACTICING WITHOUT LICENSE. IV. AUTHORITY FOR APPEARING. V. SUSPENSION FROM PRACTICE. VI. FEES AND LIEN THEREFOR. L POWER. 1. An attorney at law entrusted with the management of an execution cannot release or discharge a garnishee from answering, without special authority, express or implied, from his clients. Quarles v. Porter, xii. 76. 2. Nor can he enter into a compromise, binding upon his clients, without such special authority. Davidson v. Rozier, xxiii. 387. n. LIABILITY. 3. An attorney is not liable for neglect unless his client furnishes him with instructions sufficient to enable him to act in the prosecution or defense of a suit. Benton v. Craig, n. 198. 4. If money is advanced to an attorney for services to be performed at a future 76 ATTORNEY AT LAW. VI. day, a right of action to recover it tack accrues from the time he neglects to perform the services. Ibid. 5. Where an attorney purchases in, for his own benefit, a title adverse to that of his client, he ifi not liable to an action in favor of a subsequent grantee of his client. Cowan v. Barret, xviii. 257. III. INDICTMENT FOR PRACTICING WITHOUT LICENSE. 6. If an indictment founded upon the statute imposing a tax upon law- yers, (Acts 1846-7, 124j §§^ 7, 8,) follows the words of the statute ifl its descrip- tion of the offense charged, it is sufficient. Simmons v. The State, xii. 268. The State v. Hereford, xiii. 3. See Laws, 21. IV. AUTHORITY FOR APPEARING, 7. An attorney will be required to show upon what authority he appears for a party, upon sufficient cause being shown. Keith v. Wilson, vi. 435. 8. And it is for the court to determine whether an attorney has authority to appear in court or not. ClarJc v. HottHay, ix. 702. V. SUSPENSION FROM PRACTICE. 9. Under the act which provided that the Circuit Court " shall have power to suspend from practice any attorney guilty of misconduct, which in the opinion of the court is such as to justify his being stricken from tie rolls," (R. S. 1826, 159, § 7,) the Circuit Court had no power to suspend an attorney for s, period of six months. The suspension should have been indefinite. Sirother v. The State, i. 605. 10. And in order that the suspension shall be valid, it must appear that the misconduct of the attorney was such, in the opinion of the court, as to justify his being stricken from the rolls. Ibid. 11. An order suspending an attorney from practice must state the cause of suspenaion and allege the precise ground upon which it is made. The State v. Watkins, iii. 480. 12. An attorney cannot be suspended from practice because it is proven to the court that he had passed counterfeit notes, knowing them to be such, and that being confined in jail, he escaped therefrom. (See R. S. 1825, 159, § 6.) The State v. Foreman, iii. 602. VI. FEES AND LIEN THEREFOR. m 13. In an action by an attorney to recover his fee, a letter signed by the defendi- ant^ and in the possession of the plaintiff, although not directed to any one, by AUCTIONEERS. IH. 11 which the defendant promised to pay a certain sum, was held admissible in evi- dence for the plaintiff, it being shown that the plaintiff had before offered to undertake the case for that sum. Bogliolo v. Scott, v. 341. ' 14. A written agreement by an agent, within the scope of his authority, em- ploying attorneys at a stipulated price to prosecute suits for his principals, is admissible evidence to prove the value of the services rendered. Wehh v. Brown- ing, xiv. 354. 15. An attorney has no lien for his fee upon a judgment recovered by him. The defendant will be protected in paying the money to the plaintiff in the judg- ment, notwithstanding he may have notice that the fee of the attorney is unpaid. J'rissell v. Haile, xviii. 18. See Master and Slavb, 4;. . . .Supba, 4. See Administhation, 16;. . .Ekkob, 13 ;. . .St. Lottis, II;. . .WmiBss, 59. AUCTIONEERS. I. LICENSE. II. CANNOT DELEGATE AUTHORITY. III. LIEN, ly. ACTION AGAINST. V. INDICTMENT. I. LICENSE. 1. Where a law of the State required that an auctioneer's license should be obtained from the State, (1 Ter. L. 693,) and the charter of a city authorized the city authorities " to provide for licensing, taxing and regulating auctions " &c., (1 Ter. L. 969, § 12,) a license obtained from the city will notdispense with the necessity for obtaining also a State license. Simpson v. Savage, i. 359. IL CANNOT DELEGATE AUTHORITY. 2. An auctioneer cannot delegate to another his authority to sell. SUme v. The State, xii. 400. III. LIEN. 3. An auctioneer, to whom commissions are due, has a right to appropriate so much of the money arising from the sales as may be due to him for his com- missions, to the payment of his individual debts to a purchaser. Harlow v. Sparr, xv. 184. 18 BAIL. IV. ACTION AGAINST. , 4. The plaintiff delivered a slave to an auctioneer to sell, which was sold accordingly. In an action for the proceeds of the sale, the plaintiff must show a general or special property in the slave to entitle Mm to a recovery. It is not sufficient to show merely that he delivered him to the auctioneer. Allen v. Brown, v. 323 V. INDICTMENT. 5. An indictment, charging that the " defendant did exercise the business of a public auctioneer," pursues the essential descriptive words of the statute, (R. 8. 1825, 161, § 2,) and is good. Vaughn v. The State, iv. 530. 6. It is error to charge two persons with jointly exercising the trade of an auctioneer. Ibid. 7. A person may be guilty of exercising the trade or business of a public auc- tioneer without a license, although he receives no compensation for the act of selling. The State v. Bucker, xxiv. 557. 8. Tobacco, the growth of this State, is not exempt from duty under the statute to license auctioneers, (R. S. 1845, 164, § 15, cl, 1.) Ibid. BAIL. 1. Bail can surrender the principal after a scire facias has issued, and at any time before the scire facias is returned executed. Hood v. Oreath, i. 582. 2. Under proceedings by attachment, the plaintiff, by agreement with the defendant, may dispense with bail on the appearance of the defendant. McNair V. Lavje, ii. 57. 3. The Circuit Court has no power to quash a writ and dismiss the suit, because bail was improperly required, in an action commenced by capias. (See R. S. 1835, 463, § 3.) Lyon v. Harlow, vii. 345. 4. An action of debt lies on a bail bond given to a sheriff, and is properly brought in his name. Parmer v. Moore, i. 176. 5. A bail bond may be assigned bv the sheriff to the party in interest, or suit may be brought on it by the sheriff to the use of such party. Howel v. March, i. 182. Priest v. Whitelow, i. 259. Benton v. Brown, i. 393. 6. Where an action is brought on a bail bond — Held, that the bail cannot exonerate himself by surrendering his principal at a term subsequent to the return of the writ, and after judgment on the bail bond, a stay of proceedings, on account of such surrender, is improper. Parmer v. Moore, i. 706. See Criminal Law, III. BAILMENT. I. '79 BAILMENT I. HIRING— WAREHOUSEMAN. II. DEPOSIT. III. NEGLIGENCE. IV. AGISTER. V. ACTION: AGAINST BAILEE. VI. PAWN OR PLEDGE. VIL GRATUITOUS LOAN. I. HIRING— WAREHOUSEMAN. 1 . A receipt given for a keel boat, describing it as in good order at the time, and containing a promise by the receiptor to return it in like condition, covers all but secret defects in the boat. Bates v. Simmons, iii. 26'7. 2. A warehouseman is only held to the exercise of ordinary diligence in securing property intrusted to his care. Bucker v. Barnett, v. 97. 3. The liability of warehousemen and forwarding agents is different from that of common carriers ; they are responsible only for losses occasioned by their fault or negligence. Where a common carrier engages to carry goods to a cer- tain point, the terminus of the road, and there to deliver them on board a steam- boat, the liability of a common carrier continues only until the arrival of the goods at the terminus of the road, and the liability of a warehouseman and for- warding agent then commences ; if the goods are damaged while deposited on the levee awaiting the arrival of a steamboat, the owner can recover only for loss occasioned by negligence. Holtzclaw v. Duff, xxvii. 392. 4. Where the baUee of a slave for hire at an agreed price, agrees to return the slave at a given time, but fails to do so in consequence of the escape of the slave, without any neglect or fault on the part of the bailee, he is liable for the hire, but not for the value of the slave. Mlett v. Bohh, vi. 323. Perkins v. Reeds, viii. 33. 5. The hirer of a slave is not responsible for his running away, unless it be by some fault of his, and this must be shown by the plaintiff. The degree of care to be taken by the hirer to prevent an escape, and the efforts which he is bound to make to effect a recapture, depend upon the nature of the service in which the slave is engaged, and the circumstances attending the escape as well as the character of the hiring. IMlett v. Bobh, vi. 323. Perkins v. Beeds, viii. 33, commented upon and approved.] Perry v. Beardslee, x. 568. Beardslee v. Perry, xiv. 88. 6. Where a party hired a slave for a year, and then hired him out to another, who, by his cruelty, caused his death, the owner or original hirer may maintain an action for the recovery of the value of the slave. Adams v. Childers, x. '778. 1. An agreement of a bailee for hire to return the chattel in good order is excused, if, without fault of his, it is destroyed by an irresistible force ; as when a barge was destroyed by ice on the Mississippi. Scott, J., dis. McEvers v. St. Bt. Sangamon, -sxii. 187. 80 BAILMENT. VI. II. DEPOSIT. 8. B. deposited with P. four hundred dollars, to be applied in the purchase of ■wheat at a given price ; but P., finding that he could not procure the wheat at the price named, deposited the money with one F. for safe keeping, subject to B.'s order, and gave B. notice thereof. Subsequently the money was stolen from F. — Held, that P. was not liable for it, and that the facts stated might be given in evidence by him under the general issue in assumpsit. McGirk, J. dis. Benson v. Peebles, v. 132. III. NEGLIGENCE. 9. A stable keeper, having in charge a horse to keep for pay, is not liable if the horse escape and is lost, without any negligence on the part of the keeper. Owens V. Geiger, ii, 39. 10. Where a party undertakes, without reward, to dispose of the property of another in the same manner as though it were his own, he is liable only for gross negligence, and is not held to the rule of ordinary diligence. McLean v. Ruther- ford, viii. 109. 11. Where, under such a contract, the bailee undertakes to dispose of the horses of another in a distant market, and is taken ill on the way and unable to pursue his journey, he may employ an agent to take his place and dispose of the property, and does not thereby incur any additional responsibility. Ibid. 12. A bailee, who has charge of a boat for the purpose of repairing it, is bound to use ordinary care and diligence in its preservation, and is liable for all damages which may result to it in consequence of his negligence or want of care. Smith v. Meegan, xxii. 150. IV. AGISTER. 13. An agister of cattle is not rendered liable for the loss of a horse commit- ted to his charge, upon the mere proof of the loss ; negligence must be shown. Bey V. Toney, xxiv. 600. V. ACTION AGAINST BAILEE. 14. A petition, alleging that the plaintiff delivered a slave belonging to him to the defendant for safe keeping, for which he agreed to pay a certain sum per day, that said slave had never been delivered by defendant to plaintiff, although plaintiff had demanded said slave from him, is defective in not alleging a contract to re-deliver, nor a conversion of the slave by defendant, nor a loss through the negligence of defendant. Andrews v. Lynch, xxvii. 167. VI. PAWN, OR PLEDGE. 15. When no time is mentioned, the pawnor has his lifetime to redeem in, unless the pawnee hasten the time by request, li, after request by the pawnee, BANKING. I. 81 the pawnor negleet to redeem in a reasonable time, the pawnee may sell the pledge. Perry v. Graig, iii. 516. VII. GRATUITOtrS LOAN. 16. To authorize the lender of a chattel to recover its value of the borrower, it must appear that it has been lost or destroyed through the negligence of the latter, or has been converted to his use ; there can be no recovery as for a con- version of the chattel, where the evidence merely shows that there was a loan and a failure on the part of the borrower to return the thing borrowed ; a demand mrist be shown. Rosi v. Clark, xxvii. 549. See Boats and Vessels, X!. BANKING, I. INDICTMENT FOR ILLEGAL BANKING. IL CERTIFICATE OF DEPOSIT. In. CHECKS ON BANKS AND BANKERS. IV. BANK OF MISSOURI. V. BANK OF EDWARDSVILLE. I. INDICTMENT FOR ILLEGAL BANKING. 1. An indictment describing a note as purporting to be payable to the holder, when, on the face of it, it purports to be payable to the bearer, is bad. Down- ing V. The State, iv. 572. 2. On an indictment against D., founded on the statute for the suppression of private bank notes, (R. S. 1835, 96,) it was proved that he was Secretary or Cashier of a certain private banking establishment, and resided in Wisconsin, and signed the notes of the establishment as such Cashier ; that the President, ■ whose signature was also attached to the notes, resided in St. Louis and kept a broker's office there; that the President had exchanged two of said notes on an Illinois bank, at the request of the witness ; that said notes were seen in circula- tion in the city of St. Louis, and had been redeemed at the office of the Presi- dent ; that D. had been seen in St. Louis only once, when he made some inqui- ries as to his liability on said notes — Meld, that there was no evidence of a cir- culation of the notes by D. Ibid. 3. An indictment for a violation of the statute, (R. S. 1845, 16 7, § 4,) which describes the offense in the words of the act, is good, and several persons may be joined as defendants in the same indictments The State v. Preshury, xiii. 842. 82 BANKING. III. ; 4. Where suci an indictment describes the offense in the iwords of the act, a general conviction or acquittal is a bar to a subsequent indictinent for a similar offense during the period covered by the terms and intendments of the former indictment. Ibid. 5- Where an indictment, framed under the statute, (R. S. 1845, 166,) charges defendant with making or putting in circulation a note, &c., purporting that money will be paid to the receiver or holder thereof, or, that it will be received in payment of debts, the indictment can only be sustained by the production and giving in evidence of a note, &c,, which, upon its own face, declares that money will be paid to the receiver or holder thereof, or that it will be received in pay- ment, of debts. Scott, J., dis. [Downinff v. The State, iv. 572, referred to and concurred in.J The State v. Fage,xbi.21 promissory note by a third party, without the knowledge or consent of the owner of it, the note is not thereby avoided as against such owner. Luhbering v. Kohlbrecher, xxii. 596. 14. A material alteration of a promissory note or bill of exchange will render the same invalid, even in the hands of an innocent holder, as against any party thereto not consenting to the alteration, and this rule applies to an accommoda- tion note fraudulently altered before it is negotiated. Trigg v. Taylor, xxvii. 245. - b. CANCELLATION. 15. The cancellation of a note through mistake does not affect the right of action thereon. Boulware y. Bank of Missouri, xii. 542. C. SPOLIATION AND ALTERATION. 16. There is a distinction between the alteration and spoliation of an instru- ment. The first is usually applied to the act of the party entitled under the instrument, and imputes some fraud or design on his part, to change its effect ; the other refers to the unauthorized act of a stranger, and does not change the legal operation of the writing. Medlin v. Platte County, viii. 235. III. PARTIES TO A BILL OR NOTE. 17. Where a party, who is not an indorsee or payee, indorses a note in blank, he is liable as a maker, and may be sued as an original promissor, whether the note is negotiable as an inland bill or not. Powell v Thomas, vii. 440. Hooper v.Pritchard, vii. 492. Lewis v. Harvey, xviii. 74. Perry v. Barret, xviii: 140. 18, Parpl evidence, however, is admissible to show that he did not sign, as 88 BILLS OF EXCHANGE AND PROMISSORY NOTES. VI. maker, l?vit as indorser, and that such was the unde?sta»diBg of the parties at the time. Lewis y. Harvey, xviii. "74. 19. But although as hetween parties entitled tp look into the yeal transaction, it may be shown that he signed as indorser, this oannot b^ shown against a party who took the note in the usual course of business, before it was due, withr out notice for value. Schneider v. Schiffman, xx. 571, 20. The holder of a promissory note, indorsed by seycTal in blank, cannot fill up the blank so as to make them joint indorsers. Morrison v. Smith, xiii. 234. IV. RIGHTS OF HOLDER. 21. The holder of a negotiable promissory note may strike out intermediate indorsements thereon, and maintain an action against a remote indprser thereon. Jones. J., dis. Hunter v. Hempstead, i. 67. 22. Where one has a claim to promissory notes, payable to another, whose claim is evidenced by possession alone, he cannot, with safety p^rt with that pgs- session, without attaching to the instruments, in sQnie way, notice of his rights ; and if he does not, his claim will be postponed in favor of a subsequent hovfi fide assignee. Hughes McAlister, xv. 296, V. RIGHTS AND LIABILITIES OF INDORSERS. 23. An indorser of a promissory note or bill of exchange is liable before the remedy is exhausted against the maker. Hunter v. Frice, i. 63. Coalter-Y. Price, i. 54. Banh of Missouri v. Price, i. 54. Hunter v. Hempstead, i. 67. Block V. D'Hara, i. 145. 24. The indorser of a negotial)le note is not liable by reason of the insolvency of the maker. There mu^t have been a depiand and notice ,of non-payinent Davis V. Francisco, xi. 572. 25. An indorser cannot plead, in defence to an action on the note, that his indorsement was made on the express condition that it was also to be indorsed by another person, unless knowledge of the circumstances be brought home to the plaintiff. Banh of Missouri v. Phillips, xvii. 29. 26. Successive accommodation indorsers on a promissory note are not co-securi- ties as between themselves, unless there is an understanding to that eflfect ; they are responsible only in the order of their indorsements. McNeilly v. Patchin, xxiii. 40. 27. Accommodation indorsers, as between themselves, may be co-securities; and where, in such case, one of them pays the whole debt, he is entitled to con- tribution. Dunn v. Wade, xxiii. 207. VI. RIGHTS AND LIABILITIES OF INDORSEES. 28. B. & Co. executed their note to the plgintiffs, who indpr^d the same in blank and placed it in the h^^flds of one A. (their agent) foi; (collection, A- trans- BILLS OF EXCHANGE AND PROMISSORY NOTES. Vm. 89 ferred it to the defendants, to whom he was largely indebted, who collected the same and placed the proceeds to the credit of A. on their books— ^eW, that if the defendants knew, at the time they gave A. credit for the amount of the note, that it was the property of the plaintiffs, they were liable to the plaintiffs for the same. Benoist v. Siter, ix. 649. 29. An administrator in another State cannot indorse a promissory note made payable to his intestate by a citizen of this State, so as to give the indorsee a right of action thereon in his own name in this State. McCarty v. Hall, xiii. 480. See Stearns \. Barnham, 5 Greenl. S. 261. 30. J. S. accepted a bill of exchange payable four months after date, drawn in blank as to date and name of drawer. W. S., having authority to negotiate it, did so with T. S. G. & Co., who knew at the time of the negotiation that it was ante-dated, and left it in their hands as collateral security to cover an ante- cedent debt due from him to them — Held, that the bill was void in the hands of T. S. G. & Co., the indorsees. Goodman v. Simonds, xix. 106. 31. Possession by the indorser of a dishonored bill of exchange is sufficient evidence for him to maintain an action thereon, although at the same time there is on the bill an indorsenient from such holder to another party. Page v, Jjo- throp, XX. 589. VII. SURETY. 32. Where a party makes an indorsement on a note, in these words ■ — "I sign the within as security " • — which indorsement is made after the execution of the note, the obligation is collateral, and the party can not be joined in an action against the maker. Goode v. Jones, ix. 866. 33. If a plaintiff, in his petition, charges the defendant as guarantor of a note, he can not recover against him as surety, although the defendant sets up in his answer that he is surety, and although the contract of a surety is more onerous than that of a guarantor. Ferry v. Barret, xviii. 140. See Infra, 102. 34. If A. signs a note as security for B., at the request of the latter, (on condi- tion that B. shall obtain two other signers,) and delivers the note thus signed to B., who obtains only one additional signer, and then gives the note to the payee, who receives no notice of the condition under which A. has signed, the latter is liable on the note. Terrell r. Hunter, xxi. 436. 35. A note executed thus — "Two years after date I promise to pay to the order of T., S. & Co., $4,000 for value received, with interest as per agreement from date," and by the payees indorsed to a third party — does not, from its form, inlport that the maker was the principal in the note and the indorsers his sureties. Tevis v. Tevis, xxiv. 535. See Securities, 11, 12, 15-18. Vin. ACCEPTANCE. 36. In an action on a bill of exchange declared on as accepted, but upon which the defendant wrote a refusal to accept, the bill may be given in evidence with- 90 BILLS OF EXCHANGE AND PROMISSORY NOTES IX. out first proving its acceptance, since it is not necessary that the acceptance should appear on the bill itself, but may be by parole, or by a separate instru- jnent of writing. Bent v. Brainard, i. 283. 37. A letter to an agent directing him to buy a quantity of goods and draw on the writer for the amount, is, under the statute, (R. 8. 1845, 172, § 3,) an acceptance of a bill drawn by the agent in favor of a person to whom this letter was shown by him, and who, upon the faith of it, took the bill for value. Lathrop y. Harlow, xxiii. 209. 38. The principal in suet a case is bound, although the agent drew the, bill upon a shipment of a less quantity of goods than was ordered. Ibid. IX. TRANSFER. a. SUBJECT TO EQUITIES. 39. A party to whom negotiable paper is transferred merely as collateral security for an antecedent debt, will hold it subject to all the equities existing between the original parties. Goodman v. Simonds, xix. 106. 40. A. made and delivered his note to B. to be negotiated, and the proceeds applied to the payment of a note soon to become due from A. to C. B. kept the note until after it had become due, then negotiated it and coavertedthe proceeds to his own use — Held, that A. was not bound to pay the note. Scott, J., dis. Wheeler v. Barret, xx. 573. See Infra, 43-45. b. BLANK indorsement. 41. A blank indorsement of a negotiable note is an authority to the legal holder to assign it, but does not, per se, operate an assignment; and a petition describing the note sued on by the indorsee, simply as indorsed in blank, is defective and insufficient ; it must set out an assignment. Menard v. WilMnsan, iii. 92. 42. A blank indorsement of a promissory note by the payee, though done solely for the purpose of collection, is prima facie evidence of an assignment for value, and may be so treated by any subsequent holder. Odell v. Presbury, xiii. 330. c. after due. 43. The indorsee of a negotiable note, indorsed after it became due, takes it subject to all the equities attached to it in the hands of the payee. These equities are such as are connected with the note itself, and not such as grow out of distinct and independent transactions between the original parties. A set-off that might have been asserted against the payee, cannot be set up against the indorsee, although the note was transferred after its' maturity. Gullett v. Hoy, XV. 399. BILLS OF EXCHANGE AND PROMISSORY NOTES. X. 91 44. Where a note which is negotiable under the statute is negotiated after its maturity, it is subject to such equitable defenses as the maker might have had against it in the hands of the holder at the time of its maturity. Shipp v. Stacker, viii. 145. 45. An action on a promissory note by the indorsee against the maker, is maintainable, even though the payee had indorsed it over after it became due, and without consideration. It is not allowable, during the trial, for the defend- ant to amend his answer by stating a set-ofF against the payee of the note. Pow- ers V. Nehon, xix. 190. See Supra, 39, 40. d. NOTE GIVBN TO OFFICER. 46. A note was given to a sheriflF for land which he had sold on partition. It bore on its face the official character of the promisee, and the consideration for which it was given. The sherifi assigned the note for value to the plaintiff, went out of office, and the court ordered the unfinished business of the partition to be transferred to his successor. In an action on the note — Held, that the assignee could not recover. Banney v. Brooks, xx. 106. e. INDORSEMENTS AND THEIR EFFECT. 47. It is well settled that the holder of a promissory note, whether negotiable or not, may strike out blank indorsements, but such is not the law with regard to indorsements in full, which confer a legal title to the instrument. Davis v. Christy, viii. 569. 48. Where a person who indorses a bill of exchange, whether for value or for the purpose of collection, shall come to the possession thereof again, he is regarded, unless the contrary appears, as the 6cma fde holder and proprietor thereof, and he is entitled to recover, notwithstanding there may be on it one or more indorsements subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike out or not, as he may think proper. [Davis v. Christy, viii. 669, commented uponJ] Glasgow v. Switzer, xii. 395. 49. A bill indorsed after due is equivalent to drawing a new biU at sight. Per Scott, J. Davis v. Francisco, xi. 672. 50. The owner of negotiable paper who indorses and thereby gives it currency though placed in the hands of an agent without consideration, cannot reclaim it or its proceeds from a bona fde purchaser for value and without notice ; and credit given on the faith of the paper constitutes a valuable consideration that will protect a bona fide purchaser. Odell v. Gray, xv. 337. 61. Where a note was made payable to the order of "I. J. C, guardian," the indorsement of the guardian's name is sufficient to pass the title to a bona fide holder for a valuable consideration. Thornton v. Bankin, xix. 193. X. PRESENTMENT. 52. The presentment of a note to one member of a firm which made the 92 BILLS OF EXCHANGE AND PROMISSORY NOTES. XL note, is a good presentment to hold the indorser. Jones, J., dis. Hunter v. Hempstead, i. BT. 53. And where a bill is drawn in the course of partnership business, it is com- petent for one partner to waive the necessity of a presentment, without any special authority for that purpose. Farmers and Merchants Bank of Memphis V. Lonergan, xxi. 46. 54. A bill drawn in St. Louis, on the 2'7th of November, upon a house in New Orleans, payable at sixty day?' sight, is presented in time on the 25th of February following, so as to hold the payee responsible to an endorsee. Little Y.Pratte, i. 201. 65. Demand of payment pf a bill of exchange, at the counting-room of the acceptor, of his clerk, in the acceptor's absence, is suflBcient, without showing any special authority in the clerk in reference to business of that kindi Draper V. Clemens, iv. 52. 56, The bill must be presented when payment of it is demanded. Ibid. 5*1. The demand and protest is good, although made on the last day of graee. lUd. 58. Where a place of payment is designated in the body of the bill or note, a demand of payment at the place designated is necessary, in order to hold the indorser. Glasgow v. Prdtte, viii. 336. 59. What constitutes due diligence on the part pf the holder of a promissory note iji making inquiries to ascertain the place of business or residence of the maker, depends upon the circumstances of each case. Plahto v. Patching xxvi. 389. XI, NOTICE OF DISHONOR. a. FORM, 60. A notice of protest which is not signed by any person is insufficient Walker v. Bank qf Missouri, vin. 704. b. BY WHOM TO BE GIVEN. 61. Notice of the dishonor of a bill or note may be given by any party to the same. Glasgow v. Pratte, viii. 336. 62. And the holder may avail himself of the notice given in due time by any other party to the bill, against any other person upon the bill who would be liable to him, if he (the holder), had himself given due notice of the dishonor. Glasscock V. Bank of Missouri, viii. 443. 63. Where notice of the dishonor of a bill is given by an indorser, and his name is subsequently erased from the bill by the holder, the liability of prior indoTsers is not affected thereby. Ibid. C. SERVICE. 64. Notice of protest left with the drawer of a bill, for the indorser, at the drawer's house, where the indorser boarded, is insufficient. Bailey v. Bank of Missouri, vii. 467. BILLS OP EXCHANGE AND PROMISSORY NOTES. XI. 93 65. Proof that the notary made inquiry of several of his acquaintances in different parts of the city of St. Louis, as to the place of business or residence of the maker of a bill, without being able to ascertain either, was held to dispense with proof of notice. Shepard v. Citizens' Ins. Co., viii. 272. 66. Notice of non-payment may be either verbal or in writing. Glasgow v. Pratte, viii. 336. 67. Where the holder of a dishonored bill transmits to the lastindorser notice of the dishonor, and the latter, on receipt of it, transmits notice to each of the prior parties, such notice is sufficient to charge each of them. Renshaw v. Triplett, xxiii. 213. d. TO WHOM TO BE GIVEN. 68. The bona fide vendor of a bill of exchange, on which the indorsement of the payee is forged, is entitled to notice of its dishonor. The holder of such bill, in order to charge the vendor, must exercise reasonable diligence, and what is reasonable diligence must depend upon the circumstances of each particular case. Napton, J., dis. Collier v. Budd, vii. 485. 69. Although the holder of a time bill is not bound to present it to the drawee for acceptance until its maturity, yet if he does so, and acceptance is refused, he must give due notice thereof to the parties to whom he looks for payment, or they will be discharged. Glasgow v. Copeland, viii. 268. 70. Where a note is indorsed for the accommodation of the maker, the indorser is entitled to notice of its non-payment, as in other cases. Bogy v. J^eil, i. 743. 71. Nothing but the maker's insolvency at the time of the indorsement of his note by the accommodation indorser, or some such circumstances as show that the indorser did not rely upon the maker's ability or punctuality, or had no right to rely upon the payment by the maker, will dispense with the necessity of giving the indorser notice. Ibid. 72. An indorser is entitled to notice although the drawer of the bill had no funds in the hands of the drawee. Glasgow v. Copeland, viii. 268. 73. Where the indorser, on the 4ay the note became due, consented, on pay- ment of half the amount of the note, that the maker might have another week to pay the balance due, it was held, that notice of non-payment of the balance at theendof the weetwasnotnecessary to fix the indorser. Glasgow y. Prate, viii. 336. 74. Notice of the dishonor of a biU to one member of a firm is notice to all. Bouldin V, Page, xxiv. 594. e. BY MAIL. 75. Proof that notice of protest was sent to the drawer at his place of resi- dence, through the mail, is insufficient, where it appears doubtful whether a post-office was then established there. Draper v. Olevneni, iv. 52. 76. It is not indispensable that the notice of the dishonor of a bill should be sent to the post-office nearest to the residence of the party, nor even to the town in which he resides, if it be, in feet, sent to the post office to which he usually resorts for his letters. Per Napton, J. Glasscock v. Bank of Missouri, viii. 443. 94 BILLS OP EXCHANGE AND PROMISSOEY NOTES. XL 7.7. A notice of protest, placed in due time in the post-office, directed to a prior indorser, is sufficient, although it should never be received. Per Scott, J. Renshaw v. Triplett, xxiii. 213. f. WAIYER. 78. Where a bill of exchange has been protested for non-payment, but notice thereof has not been given to the drawer, evidence of a subsequent promise by the drawer to pay the bill at a particular time, and in a particular mod^,' should be allowed to go to the jury as evidence of a waiver of notice. JostbS, J., dis. Pratte v. Hanly, i. 35. Ji£en,se v. Osbern, v. 544. 79. An acknowledgment by an indorser of a promissory note that the debt was due, but that, by the laws of the country where the note was made, he was not liable as indorser until the remedy was exhausted against the maker, is not such an acknowledgriaent as amounts to a waiver of notice and proof of present^ ment. January v. Todd, i. 567. 80. What facts will excuse demand and notice, or amount to a waiver of notice, is a question of law for the determination of the court. Wilson v. Huston, xiii. 146. 81. Where an indorser of a negotiable note, with a knowledge of the failure of the holder to make a demand upon the maker or acceptor, makes an uncon- ditional promise to pay, or acts in such a way as to show an acknowledgment of his liability, with a full knowledge of the facts which would discharge him, he thereby impliedly waives demand and notice. Ibid. 82. A promise to pay a bill of exchange after its dishonor, raises a legal pre- sumption of notice to the drawer, and dispenses with the necessity of proof of notice of protest for non-payment. Dorsey v. Watson, xiv. 59. Clayton v. Phipps, xiv. 399. g. SUFFICIBNCT. 83. Proof that notice was given to an indorser "soon" after protest, is insuf- ficient. Glasgow v. Copeland, viii. 268. 84. If a bill be protested for non-acceptance and afterwards for non-payment, notice of the latter is sufficient as between intermediate indorsers, neither of whom, (by reason of accident,) had seasonable notice of the former. Binshawy. Triplett, xxui. 213. h. EVIDENCE. I 85. In an action on a protested bill of exchange, the protest should be received in evidence to prove the fact that the bill was protested, but not to prove pre- sentment and non-payment of the bill, and notice to parties. Robinson, v. Johnsxm, i. 434. > 86. It is an established principle, that when an officer performs a dutyrequired by law, his official statement of its performance is evidence of the fact. There- fore the protest of a notary of a negotiable note, stating the demand and non- payment is evidence of these facts. (R. S. 1835. 98, § 7.) Moore v. Bank of Missouri, vi. 379. BILLS OF EXCHANGE AND PROMISSORY NOTES. XII. 95 87. Protest and notice may be shown by the notary orally, altbongb he kept a register, and his notarial certificate would be evidence of the facts sworn to. Draper v. Clemens, iv. 52. 88. The character of a notice to the indorsers of the dishonor of a promissory note may be proven by parol. A notice to produce the notice is not necessary. Johnston v. Mason, xxvii. 511. See Supra, 24 ; Practice, 255. Xn. ACTION ON BILLS AND NOTES. a. PLEADING. 89. A petition which states that the defendant '• made his note, and thereby promised to pay," ifec, is sufficient, although the note on its face appears to have been executed by the defendant, as attorney for other parties. Under this alle- gation, the plaintiff may prove such facts as make the defendant personally liable. McMartin v. Adams, xvi. 268. 90. Under the new code, in an action on a promissory note, it is sufficient to pray judgment " for the amount of the note with interest." The pleader may proceed at once from the statement of the defendant's liability to his breach of contract in failing to pay, whether the action be against one or more partners ; and need not aver that it has not been paid by an indorser who is not joined in the suit. Page v. Snow, xviii. 126. See Pleading, 1, 4, 5, 129, 151, 163. 91. An indorser of a promissory note or bill of exchange may be sued simul- taneously with the maker. Jones, J., dis. Hunter v. Hempstead, i. 67. 92. So under the practice act of 1849. Holland y. Hunton, xv. 4:15. 93. And the holder may sue all or any of the parties at his option. Page v. Snow, xviii. 126. 94. A note^was executed to three partners, two of whom, upon a settlement of the partnership affairs, for value, sold and transferred, by delivery, their interest in the note to the third — Held, that the third might sue on it in his own name. Canefox v. Anderson, xxiL 347. C. EVIDENCE. 95. In an action by the assignee of a promissory note against the maker, evi- dence of a verbal agreement that it should be paid otherwise than as provided in the note, is inadmissable. Jones, J., dis. Barton v. Wilkins, i. 74. 96. An affidavit to prove an indorsement upon a bond, bill or note, under the act of February 16, 1847, (Acts 1846-7, 109,) may be taken before a Justice. Glasgow V. Switzer, xii. 395. See Supra, 89;. . . .Pleading, 165 ; Practice, 158. 96 BILLS OF EXCHANGE AND PROMISSORY NOTES. XII. d. DEFENSE. 97. A. and B. executed their joint note to C. for a sum of money, ^nd before it became due^ B. paid one-half the amount thereof, and C. thereupon said that he released him from the payment of the other half. Upon the deatJIi of C, six or eight years afterward, his administrator sued B. on the note and obtained judgment for the whole amount thereof. B. then filed a bill praying an injunc- tion to restrain the collection of' the judgment, and the defendant not appearing, the bill was taken as confessed, and a decree entered, making the injunction per- petual. On writ of error it was held, that the verbal release of B. by C. from the payment of the balance of the note was not' binding, and that the payment of one-half might have been set up as a defense to the action on the note ; and the bill was dismissed. Strong v. Hopkins, i. 630. 98. A written agreement by the payee of a note -with the maker, that, if it should not be convenient for the maker to pay the note at maturity, he would Wait his convenience, cannot be pleaded in bar to an action on the note, with an averment that it has not been convenient to pay the same. The defendant's reinedy, if he has suffered injury, is on the contract. Atwood v. Leiois, vi. 392. Bond V. Worlei/, xxvi. 353. 99. So, a separate agreement under seal, with regard to the payment of prom- issory notes, cannot be set up in bar. The remedy is upon the agreement. Bircher v. Payne^ vii. 462. 100. The defendants, as securities for one A., signed a note in blank, which was to be filled up by him for $400, and made payable to the Bank of Missouri ; but A. made it payable to the plaintiff and delivered it to him for value — Held, that the defendants were liable, notwithstanding the plaintiff had full knowledge of all the facts in relation to the note at the time he took it. Harris v. Enyart, xiii. 108. 101. It is no defense to a negotiable promissory, note in the hands of a, bom fide holder, for value, that the defendant, (the first indorser,) indorsed it while blank, upon an understanding with the maker that he should fill it up with a less sum than that actually inserted. Tumilty v. ]Bank of Missouri, xlii. 276. 102. The contract of a guarantor on a promissory note is different fi^om that of a surety. The former is collateral to the note itself, and binds the guarantor in case of presentment and dishonor. The guarantor can defend himself on the ground of laches only so far as he has been injured by it. Perry v. Barret, xviii. 140. See Supba, 33. 103. In an action by an administrator upon a note, an allegation in the answer that the intestate, before his death, " gave the note to the defendant, and made arrangements to have it delivered up to him, which was neglected to be done," is no defense ; theSe facts constitute neither a donatio causa mortis, nor a valid gift or equitable release. Henderson v. Henderson, xxi. 379. 104. A. sold a stock of goods to B., both being, at the time, residents of Mis- souri, for which B. gave his note to A. B. afterwards removed to California, and A. transmitted the note to C. for collection. C. surrendered the note to B., and received, in renewal thereof, another note from B., made payable to the order of BOATS AND VESSELS. I. 91 " C, attorney of A." While this note remained in the hands of C, B. obtained a discharge under the insolvent law of California, the note to C. being included in the schedule of his debts. C. afterwards indorsed the note to A. in Missouri, who commenced suit thereon against B. — Held, that the discharge under the in- solvent law of California did not release B. from liability on the note to C. Crow V. Coons, xxvii. 512. See Fraud, 18 ;. . . .Sale, 27 ;. . . .Usdrt, 1. e. NOTES DUE BY INSTALMENTS. 105. One instalment of a note due by instalments may be recovered before the others are due. Caples v. Branham, xx. 244. See LiMrrATioNS, 6-8; . Practice, 26, 97 ; "Witness, 77, 78. See Consideration, HI; Damages, 8-13; Set-off, 3, 6-8, 15, 20, 24, 35. BOATS AND VESSELS. I. LIEN. a. GENERAL PRINCIPLES, b. COMMENCEMENT AND DURATION. C. EXTINGUISHMENT. d. WAGES AND MONET LOANED TO PAY DEBTS. e. SUPPLIES AND MATERIALS. f. WHAREAGE AND ANCHORAGE. g. AFFREIGHTMENT, TRANSPORTATION AND INJURIES. II. LIABILITY AND RIGHTS OF OWNERS. m. PARTIES TO ACTION. IV. COMPLAINT. V. AFFIDAVIT. VI. BOND. VII. PROCESS. VIIL PLEADING AND PRACTICE. IX. SALE AND DISTRIBUTION OF PROCEEDS. X. LIABILITY AS BAILEES. XL COLLISION. XIL EVIDENCE. Xin. APPEAL. L LLEN. a. GENERAL PRINCIPLES. 1. The lien given by the statute to certain claims against steamboats does not extend to claims originating in other States against boats not engaged in naviga- 98 BOATS AND VESSELS. I. ting the waters of this Staite, so as to attach on the arrival of such boats within the jurisdiction of this State. St. Bt. Earitan v. Foltafd, x. 583. Woble v. St. Bt. St. Anthony, xii. 261. Twitchell t. St. Bt. Missouri, xii. 412. Jarms T. St. Bt. Pawnee, xix. 617. 2. In proceedings against st«ambDate, th'g rules of the maritime law gOT«ni in the absence of statutory regulations. Finney v. St. Bt. Fayette, x. 612. 3. The Mississippi river, from the northern to the southern boundary of the State of Missouri, belongs to the waters of this State, within the meaning of the statute relating to boats and vessels. Sweeerinpin v. St. Bt. Lynx, xiii. 519. 4. Where the claim of a part owner against a steamboat comes within the provisions of § 1 of the act relating to boats and vessels, it is a lien upon it. The only restriction upon the part owner is that he is required to give twenty days' notice in writing to all the other owners, of his intention to commence suit. (E. S. 1845, 181, §§ 1, S'e.) Langstaff^. Rotk, xiii. :^79. 5. The statutes relating to boats and vessels apply to boats and vessels owned in other States, as well as to those owned here. Yore v. St. Bt. G. Bealer, xxvi. 426. Wood v. St. Bt. Fleetwood, xxvii. 159. b. COMMEKCBMiENT iND DUUaTION. 6. A note given and payable at a future day, but within the duration of the lien, will not merge the original debt, nor eitingmsh the lien. St. Bt. Charlotte V. Hammmid, ix. 58. 7. But it is otherwise where the note is not payable nntil after the expiration of the time limited in the statute for the continuance of the lien. Darby v. St. Bt. Inda, ix. 645. Although a note does not extinguish the original cause of action, but only suspends the right to sue during the time given in the note, yet a party cannot recover on the original contract, withont producing the note or accounting for its absence. And the discharge of the maker of the note, under the Bankrupt Law, does not excuse the non-^rcfdudtion of the note. St. Bt. Charlotte v. Lumm, ix. 63. See Infra, 14. 8. Where goods are delivered to a vessel, under a special contract, the hen on the vessel for the price of the goods attaches on the day of the delivery of the first parcel, and, in estimating the time, when the statute of limitations begins to run, the day of delivery of the last parcel should 1)6 excluded. St. Bt. Mary Blane v. Beehler, xii. ill. 9. And an open running account against a steamboat continnes to be a lien from the date of the last item. Carson v. St. Bt. Daniel Hiiiman, xvi. 2&6. 10. A. loaned B., part owner of a steamboat, $1000, to pay for repairs and other expenses of the boat. Within six montlis the money was in the clerk's I desk to pay A. When he called for it, B. paid him $150, and asked a farther loan of the balance for the use of the boat, which was assented to, and the balance left in the clerk's desk — Held, that this was a new loan and protected by the statute as a lien upon the boat. Phelps v. St. Bt. Uureka, xiv. 532. 11. Under the statute of 1845 relating to boats and vessels, where a com^plaint BOATS AND VESSELS. I. 99 was filed before tlie expiration of the six months for which the lien eontinued, agmnst a boat which was, at the time, beyond the jurisdiction of the court, and after the expiration of the six months the boat came within the county, and was seized under an alias warrant — ffeld, that the lien was not saved. Williamson V. St. Bt. Missouri, xvii. 374. 12. The statute (R. S. 1855, 313, § 42,) which provides that suits to enforce liens in any other than the first class, shall, in St. Louis county, be commenced within six months, does not apply to causes of action that had accrued more than six months previous to the day the revised code of 1855 went into efiect. Bidgley v. St. Bt, Reindeer, xxvii. 442. C. EXTINGUISHMENT. 13. The lien on boats and vessels, under the statute, (Acts 1838-9, 13,) is divested by proceedings and a sale under the act relating to boats and vessels (R. S. 1835, 102,) at the suit of any person holding a lien thereon, without regard to the priority of such liens, in point of time ; and the purchaser at such sale will hold the boat discharged therefrom. St. Bt. Brady v. Buckley, vi. 558. 14. Receiving a negotiable note in payment of an account against a boat and its transfer by an indorsement in blank and delivery to one who received it on the faith of the lien, does not extinguish the legal right to enforce the lien by the payee in a suit to the use of the holder. St. Bt. Charlotte v. Kingsland, ix. 66. See Sdpea, 6, 1. 15. A judicial sale of a boat to satisfy a Uen of any class, conveys to the pur- chaser a title free from the liens of every other class, superior as well as inferior. St. Bt. Raritan v. Smith, x. 521. 16. Maritime liens are divested by a judicial sale, in whatever jurisdiction it may be decreed. Finney v. St. Bt. Fayette, x. 612. See St. Bt. Raritan v. Smith, X. 527. 17. The sale -of a boat, on an execution against the owners, in Louisiana, will not divest a pre-existing lien, acquired against the boat under the statutes of this State. St. Bt. Sea Bird v. Beehler, xii. 569. Ritter v. St. Bt. Jamsstovm, xxiii. 348. 18. Where a steamboat is seized and upon the execution of a bond, under the statute, (R. S. 1845, 182. § 9,) with security, is discharged from further deten- tion, the boat is entirely discharged from the lien, which cannot thereafter be revived by an order for further security, and to retake the boat until further security be given, and by the court rescinding its approval of the bond. Carson V. St. Bt. Elephant, xxiv. 27. 19. And after such bond is given, it is error in the court to render judgment ordering the sale of the boat. [Evans v. King, vii. 411, explained.^ Perpetual Ins. Co. V. Ford, xi. 295. 20. Although such judgment be erroneous, and an execution thereon irre- gular, the parties thereto are not liable to an action of trespass for levying such irregular execution on such boat,, notwithstanding she had become the property of aoother owner. Ibid. 100 BOATS AND VESSELS. I. 21. But where the subsequent owner paid the execution under protest, after the levy thereof, he may recover the amount so paid in an action for money had and received. Ibid. d. WAOES AND MONEY LOANED TO PAT DEBTS. 22. A barge is embraced in the statutes relating to boats and vessels, and is subject to a lien for services. Barge Resort v. Brooke, x. 531. 23. A part owner of a boat, whether his right be absolute or as mortgagee in possession, cannot acquire a lien on the boat for services rendered while he was such part owner. Nor can he proceed agaiiist the boat without giving the other part owners the notice required by the statute. (See Acts 1838-9, 13, § 5.) St. Bt. Baritan v. McGloy, x. 534. 24. No lien attaches to a boat under the statute (R. S, 1845, 181, § 1) for money loaned to the master to pay the debts of the boat. Bryan v. St. Bt, Pride of the West, xii. 371. 25. The claim of a clerk upon a boat for wages, is not a statutory lien upon it. St. Bt. Globe V. Herbert, xiii. 511. See Inpka, 53. e. SUPPLIES AND MATERIALS. 26. Where a party furnishes merchandise to the master of a boat on credit, to enable him therewith to procure the necessary supplies for the boat, in the pro- secution of her voyage, the debt thus created is a " debt contracted by the master on account of supplies furnished for the use of such boat," within the meaning of the statute (R. S. 1836, 102, § 1). St. Bt. Brady v. Buckley, vi. 558. 21. The lien of a mechanic upon a boat, under the statute, (R. S. 1835, 102, § 1,) is not affected by his parting with the possession. A purchaser is bound to exercise ordinary diligence, or he will not be protected by want of notice of such lien. St. Bt. Charlotte v. Hammond, ix. 68. 28. Evidence showing that keel-boats were repaired for the use of the steam- boat Louisa, and were used to assist her in navigating the river, although not originally constructed for the Louisa, is admissible to show that they were appur- tenances of that boat. (Acts 1838-9, 13, § 1.) Amis v. St. Bt. Louisa, ix. 621. 29. A note given for money loaned to a person to enable him to purchase a boat is no lien on the boat. St. Bt. Lebanon v. Grevison, x. 636. 30. A barge may be necessary to a boat, and as such, will be regarded as a "material furnished" for the equipment of the boat. (R. S. 1845, 181, § 1.) Gleim v. St. Bt. Belmont, xi. 112. 31. Persons who furnish supplies to a boat, are not bound to inquire whether the master or agent who has actual possession of it, is legally entitled to such possession, in order to secure a lien. St. Bt. Lehigh v. Knox, xii. 508. 32. Supplies furnished to a boat, on the order of the steward, engineer or mate, with the knowledge or consent of the master, constitute a valid demand against it. Voorhees v. St. Bt. Eureka, xiv. 66. 33. Goods furnished to the master of a boat to supply the place of goods lost in the course of transportation, and thus enable the boat to fulfil a contract of BOATS AND VESSELS. L 101 afeeightment, are not " supplies," within the meaning of the second clause of § 2 of the statute, and do not constitute a lien upon the boat. Bailey v. St. Bt. Concordia, xvii. 357. 34. A ship-carpenter, who contracts to repair a boat for a specific sum and to furnish the materials, is not an " agent of such boat" within the meaning of the statute, (R. S. 1845, 181, § 1, cl. 2,) and cannot create a lien upon the boat in favor of the lumber merchant who famished him with lumber. Childs v. St. Bt, Brunette, xix. 518. 35. One who indorses a note given by the master of a steamboat for stores and supplies furnished, and who pays the same at its maturity, does not thereby become subrogated to the rights of the one furnishing the supplies to a lien on such boat. Hays v. St. Bt. Columbus, xxiii. 232. See Infra, 58. f. WHABFABE AND ANCHORAGE. 36. Where a wharf boat lay alongside of the public wharf, and was used by a steamboat for three days, wharfage being in the meantime paid to the city by the steamboat, it was held that the owners of the wharf boat had no lien on the steamboat for the use of their boat. Bersie v. St. Bt. Shenandoah, xxi. 18. g. AFFREIGHTMENT, TRANSPORTATION AND INJURIES. 37. Where one takes possession of a boat, without the consent of the owners, and makes a contract of affreightment and violates it, the boat is not liable under the statute. St. Bt. Madison v. Wells, xiv. 360. Bates v. St. Bt. Madison, xviii. 99. 38. Under the statute (R. S. 1845, 181, § 1, cl. 4,) an action cannot be main- tained against a boat, for damages sustained by a hand, in being forced ashore by the master, in breach of a contract of hiring. The clause only embraces injuries in which the boat was an agent, such as collisions and the like. Bla^s V. St. Bt. Robert Campbell, xvi. 266. 39. If a boat expressly contracts to land a passenger at a particular point, with a knowledge of the danger of effecting a landing at that point, such danger will be no defence to an action for damages for the non-fulfilment of the contract. Porter v. St. Bt. New England, xvii. 290. 40. The plaintiff", at Louisville, Kentucky, engaged passage on a steamboat for Cairo, Illinois. Before the boat arrived at Cairo, the plaintiff, with the con- sent of the officers of the boat, extended his passage to St. Loiiis, and paid his fare. Before he changed his destination, his trunk was lost — Held, that under the statute relating to boats and vessels, he had no lien upon the boat for damages. Fish r. St. Bt. Forest City, xviii. 587. 41. Where the master of a boat on a trip up the river, made a contract for the transportation of freight on the return trip, an action will lie, under the statute, (R. S. 1845, 181, § 1, cl. 4,) against the boat in rem. Taylor v. St. Bt. Robert Campbell, xx. 254. 42. Where the contract was for the transportation of a specific number of 102 BOATS AND VESSELS. II. articles, it is no defense, in a suit for the breach t>f the contract, which the d«fead- ant did not offer to fulfill, that the plaintiff did not have Bo large a numher ready for transportation. Ibid. 43i A telegraphic dispatch, in reply to one delivered to a boat at Letington, on the Missouri rivers agreeing to transport freight, withoilt naming to what place, was allowed to be read to the jury as evidence of a contract by the master to transport to St. Louis. Ibid. 44. To show a contract of affreightment, it was proved that A. sent a des- patch to B., which was properly delivered, and that a despatch^ purporting to come from B. in reply, was deposited in the office to !be forwarded to A., which was done the next day — Held, that the dispatch in reply might be read to thi jury. Ibid. 45. A dray ticket, containing an acknowledgment of the receipt of goods to be transported, and a statement, in pencil marks, of the rate pf freight^thus — " 30 cents per 100' lbs.," and signed by a ■elerk of a steamboat, is not conclusive as to the rate of freight. The words " 30 cents per 100 lbs." may be shown to have been inserted by fraud, mistake or surprise. Wood v. St. St. Fhetwood, xxii. 660. 46. The power of reshipping, contained in a bill of lading, is a privilege reserved to the boat and not an additional undertaking. It is not therefore a breach of the contract of affreightment if, by reason of low water, the boat is obstructed, and thereby fails to deliver the goods, which by reshipping might have been delivered. Sturgess v. St. Bt. ColumJms, xxiii. 280. 47,. A bill of lading partakes of the nature of a receipt, and of a contract So much as partakes of the nature of a receipt may be explained or contradicted by parol testiinony. St. Bt. Missouri v. Webb, ix. 192. See Infra, 56. II. LIABILITY AND RIGHTS OF OWNERS. 48, The law concerning ships and sea-going vessels is not applicable to flat boats. The person making the contract for freightin flat boats, and not the owner of the boat, is entitled to it. Johnson v. Strader, iii. 35.9. 49. Joint ownership of a boat cannot be inferred from the fact of a partner- ship in the contract for building it. Ibid. 60. In an action against the owners of a boat for a loss occasioned by the sinking of a boat after a deviation, it is not necessary to prove that the deviation caused the loss. It is sufficient to show the deviation and subsequent loss. Walsh V. Homer, x. 6. 51. Where several persons engage in the building of a steamboat, all the owners are liable for materials furnished for its construction, although purchased by one of them, it not appearing that there was any agreement to give the credit alone to that one, even though there may have been an agreement between the owners that each should build a particular part of the boat. Saltmarsh v. Boioe, X. 38. BOATS AND VESSELS. W. 103 52. Where one of ihe owners of a steamboat invites a person to take an excur- sion upon the boat, he, and not the person invited, will be liable to the other owners. Fraeer r, Ytatman, x. 601. 53. One part owner of a boat cannot sue the others at law for services ren- dered by him as clerk, under an employiiient by the captain, who was also a part owner. Hintom, v. Law, x. 701. See Supka, 25. 54. As to the liability of the owners in case of the unseaworthiness of their boat. Collier v. Valentine, xi. 299i. 55. The captain of a boat, as such, has no power to sell it, or any part thereoli without special authority from the owners. Kelly v. Dickinson, xv. 193. 56. Where a party fails to furnish fireight for a steamboat according to agree- ment, the measure of damages is the price agreed to be paid for the transporta- tion, unless the defendant can show that the damages actually sustained were less. Bean-v. Ritter,-x}rm.. 182. 57. A custcHn or usage among masters and clerks of steamboats for the master to draw bills of exchange upon the clerk and negotiate the same, is an unreason- able custom, and cannot fix a liability upon the owners. Clark v. Humphreys XXV. 99. 58. A master of a vessel, as such, has power to bind the owners for necessaries and repairs only ; and the burden of proving the necessity lies upon the creditor. Ibid. 59. Where there is a misunderstanding as to the rate of freight to be paid on a shipment on a steamboat, and the shipper demands the redelivery of the goods, and the boat refuses to redeliver, but transports them to their destination, they will not be entitled to demand a higher rate of freight of the consignee than that inserted in the dray ticket, notwithstanding the receiving clerk of the boat may have signed the ticket through mistake or oversight. Wood v. St.Bt. Fleetwood, xxvii. 139. See Supra, 4, 23. m. PARTIES TO ACTION. 60. A steamboat cannot sue in its own name for an injury done to her but must proceed in the name of the owners. St. Bt. Blue Ridge v. St. Bt. Time ix. 642. ' ' 61. Under the statute relating to boats and vessels, (R. ,S. 1845, 187, 8 35) one of several part owners of a steamboat may sue in the name of the boat. St. Bt. Beardstown v. Goodrich, xvL 153. IV. COMPLAINT. 62. A complaint against a vessel, under the statute relating to boats and ves- sels, on a contract of afireightment, must set out the contract, its terms and the parties to it, wfeen made, and that the suit was commenced within six months 104 BOATS AND VESSELS. V. after the cause of action accrued. (R. S. 1835, 103, §§ 4, 21.) Perpetual Jn». Co. T. St. Bt. Detroit, vi. 374. 63. But it is not necessary to describe the property sued for more {>articularly than it is described in the bill of lading. Camden v, St. Bt. Georgia, vi. 381. 64. It is no objection to the complaint that it states the cause of action in dif- ferent ways in diflferent counts. Ihid. 66. It is the duty of the court to grant leaye to amend a complaint against a vessel for breach of an affreightment contract, the same as in a common law declaration. Ibid. 66. It is sufficient that the complaint shows upon the face of it that the action against such boat was commenced within six months after the cause of action accrued, without an averment of the fact. Russell v. St. Bt. Elk, vi. 652. 67. And the fact that a boat was seized within the jurisdiction of the courts of this State, i& prima facie evidence that such boat was used in navigating the waters of this State. Ibid. Byrne v. St. Bt.Mk, yi. 555. Silver v. same,vi. 551. 68. Under the provisions of the statute of 1839, (Acts 1838-9, 13, § 1,) regu- lating proceedings against boats and vessels, it is not necessary that the com- plaint should follow the words of the statute. St. Bt. Reveille v. Case, ix. 498. 69. Where a suit is instituted against a boat, either before a Justice or a court of record, it must appear from the demand filed that the same is a lien, Luft V. St. Bt. Envoy, xix. 476. 70. But in an action for labor, by one described in the account filed as " fire- man," or as " deck-hand," it is not necessary to allege that the labor was per- formed " on board the boat ;" that is suflBciently implied. Jones v. St. Bt. Morrisett, xxi. 142. Williams v. Si. Bt. Morrisett, xxi. 144. 71. So a complaint which states that the demand " accrued against the said steamboat on account of the mate, the captain or the clerk, agents thereof, for work and labor done on board of said steamboat as a laborer," be paid at speftified times. Conditioned to be void on a failure to pay as Specified. The defendait failing to pay the money, applied to B., who advanced it for him, atid took a conveyance to himself, and gave a similar bond. Again failing to raise the necessary sums to entitle himself to a conveyance, the defendant applied to C, and, at his request, B. conveyed to C, who gave the defendant a written promise that, on the payment of a specified sum on a certain day, he would convey to him — Held, that, after the lapse of the time agreed on, the defendant has no claim in equity for a specific performance of the contract, and consequently that his creditors have none. Russell y. Qeyer, iv. 384. 24. A specific performance of a contract is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances of the case. If there has been unfairness, or want of good faith, or improper conduct of any kind on the part of the party asking the aid of the court, a specific per- formance wiU not be decreed. Burretts v. Hook, viii. 374. CHANCERY. I. 133 25. As to specific performance and opening of settled accounts. Moore v. McGullough, viii. 401. 26. A parol contract for the conveyance of land may be discharged by parol. Thus, where a son bargained to his father a parcel of land, and the father paid the purchase money, and went into possession, and cultivated and improved the land for twenty-two years, steadily refusing a deed, (although the son repeatedly expressed his willingness to convey,) and died eight years after the death of the son, without taking any measures to procure the legal title, leaving a valuable estate, it was held that these circumstances, coupled with others of lite tendency, were sufficient to show a waiver, and discharge of the contract of sale. Tolson v. Tolson, X. 736. 27. A contract for the conveyance of a quantity of land valued at a given sum, out of any land the obligor might own, will not be enforced. A specific perform- ance will only be decreed where a specific thing is agreed to be done. Shelton V. Church, x. 774. 28. Specific performance will not be decreed, except in cases where it is strictly equitable, and he who does inequity shall not have equity. Per Scott, J. Souihworth y. Hopkins, xi. 3Sl. 29. The payment of the purchase money, the delivery of possession, and the making of valuable improvements, entitles the bargainee to the specific perform- ance of a contract for the conveyance of real estate. Johnson v. McOnider, XV. 365. 30. A vendor of land executed a bond conditioned to convey at a specific time after the payment of the last instalment — Held, that the title was retained as security for payment of the whole purchase money. And the vendee, under such an agreement, cannot obtain a specific execution of the contract to convey, without paying the purchase money. Delassus v. Postern, xix. 425. 31. The statutory proceeding against an administrator (R. S. 1845, 88, §§ 36- 42,) to enforce the specific performance of an ^eement by his intestate to convey land, is permitted only where the contract is in writing. Schulters v. Bockwinkle, xix. 647. 32. It is a rule in equity, that, where one party to a contract has been placed in such a situation by a total or partial performance, that it would be a fraud on him if the contract was not fully executed ; then equity will interfere, notwith- standing the statute of frauds. Fmrrar v. Pattrni, xx. 81. 33. Where a party has made a parol contract to convey a certain piece of land to another, and afterwards conveys it to a third person having notice of the parol contract, the third party, in a suit for specific performance, stands precisely in the situation of his grantor. Ibid. 34. A suit for the specific perfoi-mafice of a contract to convey land, cannot be maintained on the sole ground of a part payment of the purchase money. Parke V. Leewright, xx. 85. 35. Or of valuable inq)rovements on lands contracted for, not made with the expectation that the contract would be fulfilled. Ibid. 36. Where the plaintiff knew, when he filed his biU for the specific perform- ance of » contract, that the defendant could not perform it, equity will not decree 134 CHANCERY. I. damages for non-performance, but leave the plaintiff to his remedy at law McQueen v. Chouteau, xx. 222. 37. Where a party, claiming to be the purchaser of land under a parol con- tract, had taken possession, made valuable improvements, and the alleged vendor had accepted part-payment for the premises, it was held that the purchaser was entitled to a specific performance. Despain v. Carter, xxi. 331. 38. Specific performance of a contract to convey land will not be decreed where the title is not in the party contracting to convey. Brueggeman v. Jur- gensen, xxi v. 87. 39. Where there has been a part-performance of a parol contract for the sale of land, and the vendor puts it out of his power to specifically perform his con- tract, by selling the land to a bona fide purchaser, without notice, equity will en- tertain jurisdiction of a bill for damages. Lee v. Howe, xxvii. 521. See Infea, 119, 142, 203. C. CONTINGENCIES. 40. Where contingencies are so remote that they may never happen, equity sometimes grants relief. Per Napton, J. Peery v. Cooper, viii. 205. • d. contribution. 41. A., owning several parcels of land subject to the lien of judgments, exe- cuted a bond to convey one of them to B., by deed of general warranty. Before B. caused the bond to be recorded, an execution from another county was placed in the hands of the sheriff, and levied on the ether parcels, and they were sold, and C. became the purchaser. Afterwards and before B. paid the purchase money, executions upon the judgments first named were levied on the tract sold to B., and it was sold, B. buying it in — Held, that B. could not maintain an ac- tion in chancery against C. for contribution. If C. is liable to any one in such an action, it is to A. Ingram v. Tompkins, xvi. 399. e. forfeitures and penalties. 42. A court of equity never lends its aid to enforce a forfeiture. Messersmith V. Messersmith, xxii. 369. 43. Nor to collect a penalty — thus, where a bond was given bearing six per cent, interest, and a mortgage to secure its payment, in which was a proviso, that, if the payments were not punctually made, it should bear four per cent, additional interest, a bill to foreclose for the four per cent, penalty, for a failure to make punctual payments, will not be sustained. Jf^atts v. Watts, xi. 547. 44. Nor will it relieve a party against a forfeiture, where he has been in gross default. Broaddus v. Ward, viii. 217. 45. Where there is a breach of an express condition in a deed, the remedy of the grantor is by an entry, and a suit at law, if necessary to recover, the possession ; and the remedy of the grantee, or his heirs, is by a suit in equity to be relieved against the forfeiture, upon making a just compensation, if a proper case for equitable relief exists, or perhaps by setting up this matter as a defense OHAlfCERY. I. 135 when sued at law for the possession. Per Leonard, J. Messersmith v. Messer- smith, xxii. 369. 46. A mother conveyed land to her son, upon an express condition inserted in the deed, that he should provide for her maintenance during her natural life. The son, having maintained his mother for many years, died without making any provision for her by will or otherwise, but leaving ample means for her mainte- nance, which his representatives offered to apply to that purpose — Held, that if there was any breach of the condition, it was a proper case for equitable relief against a forfeiture. Ibid. f. FRAUD. 47. Where, on a bill to set aside a deed as fraudulent, a sale of the land is decreed, a purchaser under the decree is not affected by the fraud in the deed. Jones V. Talbot, ix. 120. 48. Nor would it make any difference that the decree of sale was obtained by fraud and collusion, the purchaser not being a party to the fraud. Ibid. 49. Where a father fraudulently, as to his creditors, conveyed land to trustees for the benefit of two of his children, his heirs cannot, in equity, set aside such conveyance on the ground of the fraud. Ober v. Howard, xi. 425. 50. An assignment of a certificate of entry of public land may be set aside in equity, when shown to be procured by fraud, and by taking advantage of the assignor's intoxication. Phillips v. Moore, xi. 600. 51. A. died, leaving a widow and one son. He left all his estate by will to them. On the same day the will was executed, he also executed to his son a deed of five slaves, being a large portion of his property. On A.'s death, his widow renounced the provisions of the will, and claimed dower not only in the real estate, but also in the five slaves conveyed to the son, and applied in chancery for relief — Held, that the powers of the County Court were not adequate to grant the relief asked for, and that the allegation that the deed was fraudu- lently made for the purpose of defeating the widow's right of dower in the slaves, gave jurisdiction to the Court of Chancery. Davis v. Davis, v. 183. 52. P. purchased a parcel of land of G., for which he paid $50 cash, and gave his note for $300 more, and at the same time, executed to G. a bond to re-convey the land to him in case the $50 was repaid, and the $300 note delivered back on a certain day. G., to evade his creditors, fraudulently assigned the note to a brother of his. P. was then garnisheed, and judgment ultimately obtained against him as G.'s debtor on the note, which, in the meantime, and before it was due, had come to the possession of the complainant by purchase, who ten- dered the note and the $50 to P., and brought his bill in equity to compel a conveyance of the land to him — Held, that as it appeared that he had knowl- edge of the whole transaction and of its fraudulent character, he had no right to the aid of chancery. Steele v. Parsons, ix. 813. 53. Notice by lis pendens can exist only after service of process ; nor would a purchaser, pendente lite, be affected by such a notice if the suit, during the pen- dency of which he made his purchase, should be afterward abandoned. Her- rington v. Herrington, xxvij. 560. See Fraud, III. 136 CHANCERY. I. g. JUDGMENTS AT LAW. 54. Equity has jurisdiotion of a cause where an executor is eharged with waste in not accounting for property which had come into his hands, although a final settleroent had been made in the County Court. Clark v. Hewry, ix. 336. 65. So, also, under the statute (R. S. 1825, 410, § 3,) to set aside judgments on bonds given for a gaming consideration. Collins v. Lee, ii. 16. But this ap- plies only to judgnients by confession. Wilkerson v. WhitTmy, vii. 295. 56. Chancery will not interfere with a judgment at law in regard to matters properly within the jurisdiction of the court, although the party may have been l^d into error by the suggestion of such court. He takes the advjce of the court at bjs peril. [Oveeeuling Risher v. Roush, i. 702.] Risher v. Roush, ii. 95, 51. Judgments at law will not be opened or set aside, except for frau4, or to relieve grievous hardship, not otjierwise remediable. They will not be opened to prove a payment wliich the complainant neglected to establish in the trial s^t law ; nor will testimony which was submitted to a jury be examined to ascertain on what principles the verdict was founded. Sumner v. Whitley, i. 708. Coh Her V. Easton, ii. 145. Yantis v. Burdett, iii. 45^. 58. Nor will a judgment at law be restrained for causes which, on a motion for anew trial, were held insuflBcient. Matson v. Field, x. 100. 69. Nor relieved against where it was recovered against H. upon a note exe- cuted to N. C, where H.'s defense is that, from the similarity of names, he thopght it the same note he had executed to J. C.,, and that the consideration of the not^ to N. C. had fail6d> Such negligence does not merit the aid of chancery. Head V. Pitzer, i. 548. 60. , A. sold to B. certaip lamds, and received part payment and B.'s obligation for the remainder, and executed a deed to B., containing a covenant of general warranty, and also the words "grant, bargain and sell," which, by law, import a covenant of seizin, and also a covenant for quiet enjoyment. A. sued and recov- ered judgment on B.'s obligation ; and B. filed his bill, setting forth that A. had no title to the land, and praying an injunction against the judgment — Held, that B., having a complete remedy at law on A.'s covenants,. the injunction should extend no farther than to stay proceedings on the judgment until B. could seek bis remedy at law ; and that to entitle him to that, he should show, in the first place, such facts as will induce the interference — such as A.'s insolvency, and that B. has used all proper diligence in prosecuting his remedy at law. Swain V. Bv>mley, i. 404, 61. The complainant and one Y. executed their note to the defendant, on which Y made a payment. The defendant then sued the complainant alone on the note in Kentucky, wb^re he obtained judgment, without giving credit for the ftiU amount paid by Y. He took out execution, which was satisfied in part, and the balance was levied on property claimed by one B., who took it into his own possession on executing a replevin bond, by which he was bound to pay its valua if the decision as to the right of property was against him. Before the right of property was determined, the complainant removed to this State and was here sued on the Kentucky judgment, aid judginent obtained thereon without any CHANCERY. I. 137 credits ; and it was decreed that the defendant should have his judgment obtain- ed in this State, and damages on the part enjoined (deducting credits,) to be paid to him on his assigning to the complainant his interest in the replevin bond, the complainant paying the costs thereon. Yantis v. Burdett, iv. 4. 62. Judgment was recovered against two, as the makers of a note, one of whom was surety merely. Execution was levied on land of the principal, but was stayed until the statutory lien expired, and the principal had become insolvent. It did not appear that the plaintiflf knew that one of the defendants was a surety merely — Held, that there was no ground to enjoin execution against the surety. Patterson v. Brock, xiv. 473. 63. The County Court, having jurisdiction to enter a judgment sought to be enjoined, there is no authority to enter into an examination of its merits. An injunction is a release of errors at law, and the proceedings on it are not appel- late in their nature. Price v. Johnson County, xv. 433. 64. A creditor at large who has sued by attachment, but has not obtained a judgment, is not entitled to the equitable interference of the coui-ts to annul judgments fraudulently confessed by his debtor, in favor of other persons, or to restrain, by injunction, the disposal of the debtor's property upon executions issued on such judgments. Martin v. Michael, xxiii. 50. [See Wintringham V. Wintringham, 20 Johns. Rep., 296.] 65. The complainant purchased of R., one of the defendants, certain premises, paying a part of the purchase money in cash, and the balance in his notes, R. covenanting to convey by deed of general warranty, as soon as the payments were completed. The complainant did not take possession of the premises, and was aware, at the time of the purchase, that they were under incumbrances, upon which they were subsequently sold. R. became insolvent, and assigned the notes to other parties, who obtained judgments on them against the complainant — Held, that chancery, on the ground of the total failure of consideration, would perpetu- ally enjoin the judgments, and decree a cancellation of the notes, and a return of the purchase money paid by the complainant. Barton v. Rector, vii. 524. h. LIMITATIONS. 66. Lapse of time, short of the statute period, will not prevent a court of equity from interfering to devest a legal estate which has been conveyed by a trustee, by direction of an infant beneficiary, exercising a power of appointment. Thompson v. Lyon, xx. 155. 67. Though ordinarily no limitation operates in favor of a trustee, yet, where time and long acquiescence (in this case fifteen years) have obscured the nature and character of the trust, or the acts of the parties, or other circumstances, give rise to presumptions unfavorable to its continuance, a court of equity will refuse relief, upon the ground of lapse of time and its inability to do complete justice. Rtland, J., dis. Taylor v. Blair, xiv. 437. 68. If two persons, one of whom is barred and the other not, join in a bill for relief, the one not barred cannot obtain it In such case, the court gave the plaintifis an opportunity to amend. Keeton v. Keetwi, xx. 630. 138 CHANCERY. L 1. MARKETABLE TITLES. 69. The doctrine of martetable titles is purely equitable. Kent v. Allen, xxiv. 98. j. NUISANCE. 70. The jurisdiction of the court of equity, in cases of nuisance, is undoubted, although not often exercised. Per Scott, J. Welton v. Martin, vii. 307. k. PARTITION. 71. A court of chancery has no power to decree a partition of personal chat- tels between joint tenants or tenants in common. Gudgell v. Mead, viii. S3. 1. QUIETING TITLES. 72. Where a valid objection appears upon the face of a record of legal proceedings, by force of which proceedings the complainant has title to his property, he is entitled to relief in equity to remove the cloud from his title ; but where no legal objection appears, it is otherwise. Oamhle v. City of St. Louis, xii. 617. 73. One owning an undivided half of a lot of land, his children owning the other half, conveyed the Eastern half to his daughter E., and by will devised the Western half to another daughter, T. E. in many ways acknowledged the validity of the will. A proceeding was brought by T. in the nature of a bill quia timet, that she might be quieted in her title to the Western half devised to her — Held, that such a proceeding was not maintainable. Taylor v. Ulrici, xix. 89. m. REMEDY AT LAW. 74. Equity will not relieve where the party had his defense at law and failed to avail himself of it, and no excuse is shown for such failure. The allegation " that the best defense in his power was made " at law, is not sufficient to give equitable jurisdiction. Cadwaleder v. Atchison, i. 659. Matson v. Field, x. 100. 75. But where a defense is of such a character that it may be made either at law or in equity, chancery will give relief, although the party has neglected his defense at law. Per Napton, J. Overton v. Stevens, viii. 622. Ramsey v. Mlis, i. 402. (See 9 Ves. 464—17 John. 388.) n. sheriff's deed. 76. A sherififs deed may be impeached and set aside for fraud, by a proceed- ing in chancery. Teubnerv. Moller, xii. 528. 77. Where a sheriffs deed is not sealed, a court of equity will not aid the imperfect execution. Chancery does not carry into effect the incomplete execu- tion of statutory powers. Moreau v. Detchemendy, xviii. 522. Moreau v. Bran- ham, xxvii. 351. 78. And the court should not presume such a deed to be sealed against the express admission, in an answer, of the party invoking such a presumption, that the sheriff omitted, by mistake, to seal it. Mweaw v. Branham, xxvii. 351. CHANCEEY. I. 139 19. Where, under tte act of 1807, (1 Ter, L. 120, § 45,) a sheriff's deed was not acknowledged in court, it was ineffectual to pass title to the purchaser, and the authority of the sheriff, being statutory, should have been strictly pursued. The court cannot aid such imperfection. Allen v. Moss, xxvii. 354. aa. Generally. 80. If a trustee becomes the purchaser at his own sale, and immediately sells to another at an advance, according to a previous arrangement that such other should not bid at the sale, equity will compel him to account for the advance to the cestui que trust. Wassonv. English, xiii. 176. 81. A legal right, acquired in the prosecution of a lawful demand, in a lawful way, will not be disturbed in equity, unless some trust, confidence, agreement or relationship, imposing an obligation, has been violated. McCourtney v. Sloan, XV. 95. 82. A trustee, having reasonable doubt as to the proper disposition to be made of funds in his hands, may apply to a court of equity for directions, making the persons interested parties to the proceeding. Hayden v. MarmaduJce, xix. 403. 83. A., who held the legal title to certain real estate, died, and left his brothers and sisters as his heirs. After his death, B., one of his brothers, claim- ing that A. had held the title in trust for him, conveyed the property to C, and received part of the purchase money. D., one of the heirs, refused to execute a deed. C. filed a petition against D. and the other heirs, the object being to get the title to the property and compel the defendants to interplead for the balance of the purchase money — Held, that such a proceeding could not be maintained under the new code. Carrico v. Tomlinson, xvii. 499. bb. To secure a Debt. 84. Chancery has jurisdiction to control the acts of trustees, under a deed of trust, to secure the payment of money ; and, where his powers are not strictly pursued, will set aside his sales. Stine v. Wilkson, x. 75. 85. In a bill for an account and for a conveyance of the residue of lands held in trust to secure a debt, it is not necessary to tender the money, nor to offer to redeem. Ulrici v. Papin, xi. 42. 86. Where the trustee in a deed of trust died, and a bill was filed to have a trustee appointed, and the land sold, the complainant must do equity, and if he have refused to comply with the condition upon which the deed was obtained, equity will not lend its aid to enforce his claims. Freshv. Million, ix. 311. 87. An unsealed instrument, which assumes to convey land in trust to secure the payment of a debt, is not sufficient, per se, to authorize a sale and conveyance by the trustee. But such an instrument creates an equitable lien, which a court of equity will enforce. Linton v. Boly, xii. 567. 88. The holder of a second deed of trust on real estate, the notes of which are not due, cannot, in a court of equity, compel the holder of a prior deed which is 140 CHANCERY. H. over-due, to submit to a redemption and assignment to Utn, How r. Graham, xxi. 163 89. A court of equity lias no jurisdiction to reform a will on the ground of mistake by tbe draughtsman in drawing it. Qoode v. Goode, xxii. 518. 90. Where a will makes the consent of the executor necessary to give validity to a sale by the widow of the testator, having the power of disposal for the benefit of herself and children, and a merely selfish reason induces thei executor to refuse hisi consent, a court of equity will, on application, aiithorize a sale. NoTcum. V. D'CEnek, xvii. 98. n. INJUNCTION. a. GENERALLY. 91. The Supreme Court has no power to grant injunctions. Lane v. Oharkss, V. 285. 92. An injunction will not be granted to restrain a trespass, unless the tres- passer be insolvent, or the injury irreparable. James v. Dixon, xx. 79; 93. Damages are recoverable from one who, in building a house, has inserted the ends of the joists into his neighbor's wall without license ; but an injunction to remove the joists will not be granted, unless special feots are shown requiring it. Biankin v. OhmrUss, xix. 490 - 94. The collection of the purchase money of land will be restrained by injunction where it appears that there is a defect in the title, and that the sol- vency of the vendor is doubtful, until the purchaser is indemnified against loss. Jones V. Stanton, xi. 433. 95. Where, in an action at law, appearance was entered, by mistake, for a party who had not been served with process, or otherwise Notified of the suit, it is error to decree a perpetual injunction against the judgment ; the injunction should continue only until the party could have a trial of his rights at law. Campbell v. Edwards, i. 324. 96. A bond given to obtain an injuiiction of a judgment at law was condi- tioned, that the defendant in the judgment should pay " all sums of money, damages and costs, that should be adjudged against him, if the injunction should be dissolved." The injunction was dissolved, and the decree was that the bill be dismissed, and that the complainant pay the costs of the injunction suit — neld, that the securities in the bond were not liable to pay to the defendant in the injunction suit the amount of the judgment enjoined, nor the costs of that suit, unless he had first paid them to the oflBcers entitled to them. Gorder v. Martin, xvii. 41. 97. The complainant leased certain premises of one P., and procured the defendant to become his security for the payment of the rent, and, to indemnify him against the liability thereby assumed, executed to him a mortgage, in which it was provided that if the (iomplaitiAilf should fell " to pay the whole or any part CHANCERY. 11. 141 of the rent, the defendant might sell," &c. The complainant went into posses- sion of the leased premises, but soon abandoned them, and gave P. notice that they were untenantable, and commenced a suit for damages. Subsequently the defendant, without any authority from the complainant, eflFected a compromise of his liability to P. as security for the rent, and paid a certain sum, and P. thereupon resumed possession of the leased premises, and the defendant adver- tized the mortgaged property for sale. The complainant brought his bill to enjoin the sale and all further proceedings under the mortgage — Held, that the resumption of possession, under the circumstances, did not release the complain- ant from his liability for rent, and that as the compromise appeared to have been made in good faith, and was for the advantage of the complainant, equity would not interfere to restrain the defendant from the prosecution of his legal rights under his mortgage. Destrehan v. Scudder, xi. 484. b. COLLECTION OF TAXES. 98. The collection of a school tax, the assessment of which is illegal and void, will not be enjoined. Sayre v. Tompkins, xxiii. 443. 99. Nor will a sale by the City of St. Louis of land previously purchased by it at a tax sale be restrained, because the first sale passed no title by reason of irregularity and non-compliance with the pre-requisites of the law. City of St. Louis V. Goode, xxi. 216. 100. Where, by the ordinance of a city, the property of one tax-payer is exempted from assessment for a special tax, even if illegally, an injunction wiU not be granted to restrain the city from collecting the assessment against another tax-payer, which did not exceed the amount which the city was authorized to impose ; especially if it does not appear that the plaintiff, on paying the assess- ment against him, will have paid more than his proportion. Page v. Gity of St. Louis, XX. ISfi. 101. Where, in the assessment of a tax, the party upon whose property the assessment was made, fails to make complaint of error to the court of appeals, and the tax books are made out and delivered to the collector, the ordinary judicial tribunals have no authority to stay the collection of the tax at the suit of the tax payer. Scott, J., dis. Deane v. Todd, xxii. 90. 102. But, although the courts will not interfere by injunction to restrain the sale of personal property for the payment of taxes illegally assessed, yet, it seems, they will so interfere, when it is brought to enjoin the sale of real property. Loekwood v. City of St. Louis, xxiv. 20. C. PROCBBDINGS AT LAW. 103. A bill for an injunction releases all errors in the proceedings at law sought to be enjoined, and puts the party upon the equity of the case. Moss v. Craft, X. 720. 104. Where an injunction is asked to stay proceedings at law before judg- ment, it will only be granted upon terms, so as to leave the party at liberty to proceed to trial and judgment, unless a discovery is sought to aid a defense at 142 CHANCERY. IH. law, or the answer is, in some other way, necessary on trial. Powers v. Waters, viii. 299. 105. After the dissolution of ,an injunction, staying proceedings at law, and the awarding of damages, the court, as a court of chancery, has nothing more to do with the case; the parties should be left to proceed at law. Ibid. 106. And where an injunction to restrain proceedings to complete sales made under an execution, and to set them aside, is dissolved, a court of chancery cannot render a judgment against the complainant for the amount of a judgment at law rendered in his favor. McDonald v. Cook, xi. 632. See Infra, 174-176. d. BIECUTION BALE. 107. An injunction will not be granted to restrain a sheriff's sale of land on the ground that such sale will pass no title, and tend to cast a cloud on the title of the true owner. Drake y. Jones, XKyii. 428. See Execution, 46. III. PLEADING. aa. Jform and Sufficiency. 108. A recovery cannot be had in chancery on grounds foreign to those stated in the bill. McKnight v. Bright, ii. 110. 109. A bill, praying for an injunction of a judgment at law, stated that the judgment was founded on a bond given by the complainant for sundry claims transferred to him, which were at the time represented to be good, but which had proved unavailing owing to prior collections and insolvencies, and the failure of proof, in consequence of the absencp from the country of the obligee in the bond, but alleged no obligation on the part of the obligee to furnish proo^ or make good losses — Held, that the bill was properly dismissed. Bartlett v. Pettus, iii. 345. 110. The complainants purchased of the defendant certain horses, for which they gave their notes, payable in one and two years. At the same time the defendant's agent, who negotiated the sale, executed to the complainants a bill of sale of the horses, in the body of which he described himself as the agent of the defendant, and inserted therein an obligation to deliver to the complainants an authenticated pedigree of the horses, but signed the bill in his own name alone. The defendant obtained judgment on the note first maturing, and the complainants brought this bill, praying for a perpetual injunction upon the judgment. They charged that the pedigree never was delivered to them, and that thereby they have sustained damage to the amount of the judgment, and that the defendant is a non-resident. The defendant's answer admitted the sale, and the authority of the agent to make it, but denied his authority to bind him to furnish the pedigree. Held, that the bill of sale, signed in the name of the CHANCERY. IH. 143 agent, did not bind the defendant, but bound tbe agent personally and him alone ; and that the bill was defective in not tendering to the defendant the amount admitted to be due, since those who seek equity must do equity. Overton v. Stevens, viii. 622. 111. Where the taking of an appeal was prevented three days after the trial, in consequence of the absence of the Justice, a bill brought to stay proceedings at law and to obtain an appeal, must show that the complainant did not know of the intended absence, and also that the judgment before the Justice was unjust, Smith V. B'Lashmutt, iv. 103. 112. M. and P. gave McC. their bond for the conveyance of certain land. McC. brought his bill in equity to compel them to convey, alleging that he had paid the consideration money. The proof in support of the allegation was, that M. and P. had employed one H. to do certain work; that McC. entered into partner- ship with H. in doing it ; that an amount was reserved on settlement, by mutual arrangement, sufficient to pay the consideration money ; and that the reservation was for that purpose — Held, that the proof did not sustain the allegation ; that accord and satisfaction should have been alleged ; and that H. should have been joined in the bill as defendant. Moore v. McOullough, v. 141. 113. The general charge of a fraudulent combination, &c., usually inserted in a bill, is not sufficient ; there must be an allegation of specific fraud. Lewis v. Lewis, ix. 182. 114. In a bill for the specific performance of a contract to convey land, it is not necessary to allege that the contract was in writing. The presumption is that the contract was valid. Wildbahn v. Robidoux, xi. 659. 115. Where, to such a bill, the defendant pleads that the contract was not in writing and was void, and at the same time answers denying the contract set up in the bill, the answer overrules the plea. But to entitle the plaintiflf to a decree against such answer, a contract in writing must be shown. Tbid. 116. Under the new code, a party seeking relief in equity, must state such facts as would have aiForded ground for relief under the old system. Jones v. Brinker, xk. 87. And the petition must be framed with a view to such relief. Vasquee v. Evnng,, xxiv. 31. bb. Multifariousness. IIY. Several injuries committed by difierent parties cannot be joined in chancery, any more than at law. Where several persons, whose acts are discon- nected, injure the same person, the remedy is several against each. Clamorgan V. Guisse, i. 141. 118. P. delivered certain certificates of stock, in difi'erent insurance compa- nies, to the complainant, and agreed, under seal, that upon the happening of a specified contingency, the stock should become the absolute property of the complainant. Subsequently the same stock was sold on execution against P., as his property, to various purchasers — Jfeld, that a bill in which the several insur- ance companies and the several purchasers at the sheriff's sale were joined as defendants, and the object of which was to compel a transfer of the stock on the lU CHANOBBY. III. VoQks af tte several companies to the complainant, was multi&rious and bad. Ferguson v. Paschall, xi. 267. 119. A bill for a specific performance of a contract which charges that the land in question was paid for in money, and then again that it was paid for in specific property, is multifarious and bad on demurrer. The complainant not having availed himself of his right to answer in terms, the bill should have been dismissed without prejudice. Wilkson v. Blackwdl, iv. 428. 120. J. filed his bill in equity, in which he charged that he had purchased a tract of land at a sale under an execution, issued by the Clerk of the. Circuit Court, upon a transcript of a judgBient of a Justice ; that the defendant in the execution had previously conveyed the land to M. ; that the deed to M. was fraudulent and void as to creditors, and was, though absplute upon its face, ip fact a mortgage — Held, that the bill was multifarious in charging that the deed was a mortgage, and also fraudulent and void, and that a demurrer would fie ; that the question as to the validity of the judgment under which the land was sold, the return of the execution and its validity, and the validity of the deed made by the sheriff, although made a part of the bill, could not be determined on demurrer. Jones v. Paul, ix. 290. 121. A., having an interest in the estate of B., conveyed it by deed to C, as security, and died. The deed was lost, and C. had his demand allowed against the estate of A., and C. then filed his bill against the administrators of A., and B. and the heirs of B. — Held, that the bill was multifarious in joining the admi- nistrator of A., who had no interest in the proceeding against the administrator and heirs of fi., and ^^s bad on demurrer. Berry v. Robinson, ix. 273^ 122. A bill which seeks to establish, against several persons, demands which are similar, based upon the same facts, and growing out of and depending upon the same principles, is not multifarious. Martin v. Martin, xiii. 36. 123. Nor is a bill multifarious which seeks an account for rents, and profits (jf real estate, and an account of personal estate. Buhey v. Barneit, xii. 3. 124. Under the new code, a petition which seeks to eject one defendant, and prays partition with others, is demurrable for multifariousness, but the objection must be made before the hearing of the cause. Alexander v. Warrarwe, xvii. 228. 125. The new code does not affect the rule against multifariousness. In a suit against a trustee to recover the trust property, the administrator of the deceased grantor in the deed of trust, cannot be joined to recover a demand against him in respect to the trust property. McLaughlin v McLaughlin, xvi. 242. Robinson v. Rice, xx. 229. 126. Where a cause of action against A. alone is joined with a cause of action against B., the petition is multifarious and bad on demurrer. Stalcup v. Gamer, xxvi. 12. 127. Where, in a suit against A. and B., the petition set forth that A. con- veyed a certain tract of land to B., and by mistake misdescribed it, and that B. conveyed the same to C, and also by mistake misdescribed it, and there was a prayer for the correction of both deeds, the petition was held multifarious, Ibid. 128. As to multifariousness in a petition by minors. Ternple v, Price, xxiv. 288. CHANCERY. III. 145 cc. Parties. 129. It seems that after a decree nisi a party can only be made a defendant by an original bill in the nature of a bill of interpleader. Divers v. Mark, iii. 81. 130. Where executions were issued against A., and were levied on certain lands which were sold by the Sheriff to B. and C, who afterwards sold the same to the complainants, A. having, prior to the sheriffs sale, purchased the land of D., but being in insolvent circumstances, and with a view to defraud his cre- ditors, caused a conveyance of the same to be made by 1). to his (A.'s) minor children — Meld, that B., C. and D. must be joined as parties in a bill setting forth these facts, and praying that the deed to A.'s children be set aside, and a conveyance made by D. to the complainants. Burk v. Flurnoy, iv. 116. 131. It is not necessary to make a third person, who is not a party to the interests involved, and who would not be affected by a decree, a party. Wilk- son V. Blackwell, iv. 428. 132. A., as guardian of 8., gave a bond, with B. and C. as his securities. Afterwards he conveyed a tract of land to his son D., who sold it to E. A. died insolvent, and his securities paid a debt due by him as guardian, without suit, and then filed a bill in equity against D. and E., to establish their demand against A.'s estate, and to set aside the conveyances from A. to D. and D. to E., as fraudulent, and to have the land sold to satisfy their demand — Held, that there must be an administrator of A.'s estate, who must be made a party to the bill. Coates v. Day, ix. 300. 133. A., to secure a debt due to B., executed a deed conveying certain lands in trust to C, who died leaving heirs. In a bill filed to have a new trustee appointed, and the land sold to satisfy the trust, the heirs of C. are necessary parties. Fresh y. Millicm, hi. B\l. 134. In a bill charging an executor with waste, in not accounting for property which had come into his hands, neither the heirs of the testator, nor the admi- nistrator de bonis non are parties interested. Clark v. Henry, ix. 336. 135. The complainant claimed to have purchased all the right of B. to a cer- tain tract of land, sold under an execution in favor of the former against the latter, and alleged that the land was entered in the name of one C, with the money of B. — Held, that B. was not a proper party to the bill, aud that his declarations are not evidence against those claiming under C. Wright v. Cor- nelius, X. 174. 136. A mere allegation in a bill that B., with others, fraudulently conspired against A., does not authorize B. to be made a party, nor his declarations to be used as evidence against the others. Ibid. 137. The administrator and vendee of the real estate of the deceased may properly join in a bill for an account and conveyance of lands held in trust by the defendant for the deceased. TJlrici v. Papin, xi. 42. 138. Where A. places money in the hands of B., to purchase land for the benefit of C, and B. refuses to convey the land, thus purchased, to C, a bill to enforce such trust cannot be maintained in the name of A., but only in the name of the cestui que trust. Culbertsm v. Matson, xi. 493. 10 146 CHANCERY. III. 139. Nor can A. devise the land thus purchased, so as to enable the devisee to compel a conveyance to himself. Ibid. 140. Where A.'s devisee, in such a case, claims a conveyance from B., under a transfer of C.'s equitable right, the latter must be made a party to the bill. Ibid. 141. In the prosecution and defense of claims in chancery, the executor or administrator is deemed a full representative of the creditors of the estates respectively committed to their care. Where the object of the suit is to restrain the administrator from selling property to pay debts of the deceased, and to set up a lost deed, it is sufficient to bring before the court the administrator and the heirs, who fully represent the property, and are liable for all demands upon it. Kennerly v. Shepley, xv. 640. 142. Where a bill is filed for the specific performance of a contract t© convey land, the court cannot make an order requiring the defendants before the court to defend for all parties interested. McQueen v Chouteau, xx. 222. 143. A., holding lands in trust, devised them to his executor, with direction to sell and convert them into personal property ; the exeeutor sold and conveyed the land, and it was held, in a suit against the purchaser and executor to estabhsh the trust, that the heirs of A. were not necessary parties. Paul v. Fulton, xxv. 156. 144. Where the proper parties are not joined in a bill, and that fact does not appear on its face, it should be shown by plea. Gamble v. Johnson, ix. 597. dd. Prayer. 145. Under the general prayer for relief, the court will grant such relief as is warranted by the allegations and proof. Holmes v. Fresh, ix. 200. 146. But the relief granted must be founded on the facts stated in the bill, and not such as are foreign to it, although proved at the hearing. McNair v. Biddle, viii. 257. ee. Bill of Interpleader. 147. A bill of interpleader may be maintained against non-residents, under circumstances otherwise appropriate. Freeland v. Wilson, xviii. 380. 148. Where an administrator has been ordered by the county court to make distribution of his intestate's estate, he cannot, under ordinary circumstances, maintain a bill of interpleader against those claiming the benefit of the order. The order is conclusive, unless appealed from, and if general, not naming the distributees, the court may make it specific. Ibid. S. Bill of Review. 149. A bill of review, for errors apparent on the face of the record, will not lie, after the time when a writ of error could be brought. Greath v. Smith, xx. 113. b. ANSWER. 150. When an answer to a bill is responsive, and clearly and positively denies the inatter of equity therein, it is taken to be true, unless contradicted by two CHANCERY. III. 147 witnesses, or by one witness and corroborating circumstances. But where the answer is thus contradicted in any one material particular, it is shaken through- out ; since bein^ false in one thing, it cannot be relied upon in any. Roundtree V. Gordon, vm. 19. Gamble y. Johnson, ix. 597. Hewes v. Musick, xiii. 396. Johnson v. McGruder, XV. 365. Laberge v. Chauvin,n. 179. Bartlett v. Glas- cock, iv. 62. 151. As to facts sufficient to contradict a responsive answer. French v. Camp- bell, xiii. 485. 152. Although replications are filed to an answer, all the facts contained in the answer, which are responsive to the bill, must be taken to be true unless dis- proved. Prior V. Matthews, ix. 264. 153. An omission in an answer to deny a fact charged in the bill, is not an admission of the fact ; but omissions and evasions in an answer are, however, proper subjects of animadversion, and calculated to weaken the force of the answer. Gamble v. Johnson, ix. 597. 154. An answer to a bill of discovery, (which alleged that the defendant had not paid any consideration for the property in question,) that the consideration was paid, without specifying from or to whom, or whose money was paid, is evasive and insufficient. Wilson v. Woodr'uff, v. 40. 155. A. and others having filed a bill to compel B. to convey lands alleged to have been purchased by him, in trust, he prepared his answer, made oath to it, and was about to file it, when the bill was dismissed. Some years after, B. hav- ing died, another bill was filed for the same purpose by the same parties, against the heirs and representatives of B. — Held, that since it appeared that many of the transactions must have been known exclusively to B., and unknown to his heirs, they should be permitted to make the answer thus prepared by him a part of their answer and evidence in their favor. Culbertson v. Matson, xi. 493. C. PLBA. 156. A former recovery, pleaded in bar to a bill for relief against a judgment at law, alleged in the bill to have been obtained by fraud, will not avail as a defense. Easton v. Collier, iii. 379. d. DEMURRER. 157. Where a demurrer to a bill of discovery is overruled, so much of the bill as remains unanswered is taken as confessed. Nancy v. Trammel, iii. 306. 158. It is no ground for demurrer to a bill affecting land that a greater part of it lies in a county other than that in which the suit is brought. This defense must be made by a plea to the jurisdiction. Ulrici v. Papin, xi. 43. 159. Where a demurrer to a bill is too general, it will be overruled. Ibid. 160. The objection to a bill for an account and conveyance of land held in trust, that there are purchasers without notice who should be made parties, can- not be made by demurrer, but must be raised by plea, or insisted on in the answer. Ibid. 161. On demurrer the court will not regard the exhibits as a part of the 148 CHANCERY. IV. bill, nor will the court examine the exhibits to see if they sustain or contradict the allegations therein. Tesson v. Tesson, xi. 274. 162. Where a demurrer is overruled, the court should compel the defendant to answer. Cole County v. Angney, xii, 132. 163. An objection to the jurisdiction must be by demurrer, and cannot be made after answer on the trial of the merits. Martin v. Greene, x. 652. Old- ham V. Trimble, xv. 225. Block v. Chase, xv. 344. 164. If a bill contains no equity, it should be demurred to ; if it is allowed to stand, evidence should be admitted to sustain it. Groves v. Fulsome, xvi. 543. e. SPECIAL EEPLICATION. 165. A special replication is not known in modem chancery practice. Where new matter is introduced in the plea or answer which makes it necessary for the plaintiff to put in issue some additional fact, he is permitted to amend. Round- tree V. Gordon, viii. 19. IV. PRACTICE. a. GENERALLY. 166. In a suit in chancery, defendants cannot be stricken out on their own motion ; if improperly made parties, they must demur or plead. Lyne v. Marcus, i. 410. 167. An allegation in a bill not denied in the answer, is not admitted, but must be proved, unless the answer is excepted to in that respect. Ingram v. Tompkins, xvi. 399. 168. Where the defendant files his pleas and puts in his answer to a bill at the same time, and the pleas are overruled, it is error to take the bill as con- fessed. Easton V. Collier, iii. 379. 169. A. sold his interest as heir to a tract of land to B., who sold to the com- plainant. A. afterwards sold the same interest to C, (who purchased with fiill knowledge of the previous sale,) and refused to make the necessary deeds to B., though requested. The complainant brought his bill in equity against A., B., and C, (B. not being served with process,) in which he prayed that A. might be compelled to convey to B. or to himself, and that the deed to C. be annulled — Held, that A. and C. should be made to answer, that B. should be brought in by an alias, or by publication, and that the complainant should ask a decree of title to himself Huter v. Gallagher, iv. 364. 170. Where the sufiBciency of a plea to a bill is questioned, it is not demurred to, but set down for argument. Boundtree v. Gordon, viii. 19. 171. Where such plea is not to the jurisdiction, or of some matter of record, it must be sworn to, and the omission to do so is not waived by setting it down for argument. Ibid. 172. To authorize a complainant to examine one of several defendants in chancery, if an answer has been filed by him and a replication filed, the replica- CHANCERY. IV. 149 tion must be withdrawn, and an aflSdavit filed of the want of interest of such party. Amett v. Dodson, x. YSS. 173. After leave to answer is asked and given, the defendant, if he wish to demur, should plead or answer to some material fact ; but that is a matter of dis- cretion with the court. Ulrici v. Papin, xi. 42. 174. A bill to enjoin a judgment at law must make an exhibit of a transcript of the judgment. Parsons y. Wilkerson, x. 113. 175. On a motion to dissolve an injunction, the plaintiff is entitled to a trial on the merits ; and after a dissolution, to a jury to assess the damages. (See Acts 1848-9, 85, § 12.) Home Mutual Ins. Co. v. Bauman, xiv. 74. 176. Where a petition prays, among other things, for an injunction, but that branch of the petition is not passed upon by the court below, nor brought in any way to its notice, the Supreme Court will not interfere. Barada v. Inhabitants of Oarondelet, xvi. 323. 177. If a complainant assigns his interest pendente lite, the assignee must be brought in by motion. Gamble v. Johnson, ix. 597. b. DISMISSAL. 178. After a cause is fully submitted at the hearing, it is discretionary with the chancellor either to dismiss the bill without prejudice, or to render a final decree ; and when this discretion has been soundly exercised, the Supreme Court will not interfere. Doggett v. Lane, xii. 215. 179. The object of the bill was to compel a re-assignment of a leasehold estate to the complainants, who were partners. The defendant read in evidence the affidavit of one of them, to the effect that the assignment to the defendant was absolute in fact, (as it purported to be on its face,) and without any understand- ing or agreement that the same should be re-assigned to the complainants — Held, that the bill was properly dismissed without prejudice to the other complainant. Mead v. Knox, xii. 284. 180. Where a demurrer to a bill is overruled, and the complainant has leave to amend, but fails to do so, and the bill is dismissed absolutely — Held, in the absence of exceptions, that it was to be presumed that the bill was properly dis- missed, but that the dismissal should have been without prejudice. Tim,mons v, Chouteau, xiii. 223. 181. Where the defendant pleads, to the merits of a bill, and the issue is found in his favor, the bill should be dismissed absolutely. Bell v. Simonds, xiv. 100. 182. The plaintiff filed his petition in equity, and the defendant made answer thereto. When the cause was called for trial, both parties announced themselves ready, whereupon the court, ex m^ro mMu, dismissed the petition — Held, that the petition was improperly dismissed. Maguire v. Tyler, xxv. 484. C. EVIDENCE. 183. Where it is attempted to set up an equitable against a legal title, accom- panied with long continued possession, the equity must be clearly established. Hichftrdson V. Robinson, ix. 801, 150 CHANCERY. V. 184. Although it is well settled that a purchaser, with notice of the equity of another from one who purchased without such notice, may protect himself under the first purchaser, yet if there are suspicious circumstances attending the pur- chases, which are unexplained, and the answer of the- first purchaser is evasive and does not respon'd to all the material allegations in the bill, it may be inferred that the first purchase was not bona fide, and consequently that the second pur- chase was not protected under the first. Halm v. Halsa, viii. 303. See Evidence, 139-144. d. SEQUESTRATION. 185. Circumstances stated under which a writ of sequestration may issue. Roberts v. Stoner, xviii. 481. e. TRIAL BY JURT. 186. As to framing issues in chancery to be submitted to a jury. Gamble v. Johnson, ix. 597. 187. Where an issue of fact is tried by a jury, or the court sitting as a jury in a chancery cause, the only mode of having the justice of the verdict investigated in the court above, is by moving for a new trial before the decree is pronounced. A motion to dismiss the bill for defect of evidence, will not bring that question before the Supreme Court. Woodson v. McClelland, iv. 495. 188. Where issues are made by order of the chancellor under the statute, (R. S. 1845, 844, § 6,) the finding of the jury on such issue is conclusive on the chancellor, on the hearing of the bill, unless such finding be set aside. Cochran V. Moss, X. 416. f. BILL OF EXCEPTIONS. 189. By the rules of chancery practice, in force prior to the passage of the practice act of 1849, bills of exception were as necessary as in common law suits. Madden v. Madden, xxvii. 544. V. DECREE. GENERALLY. 190. Where a suit in chancery is brought against two defendants, one of whom answers, and the other not, the complainant may dismiss his bill as to him who answers, and take a decree, pro confesso, against him who does not answer. Evans v. Menefee, i. 442. 191. In such a case, the defendant who answers, and as to whom the bill has been dismissed, has no right to appeal to the Supreme Court from the decree rendered against the other. Ibid. 192. Where one cestui que trust brought a bill in chancery against the other and the trustee, praying that certain lands should be conveyed to the complain- ant, and for general relief — Held, that the court properly decreed a conveyance to the cestui que trusts jointly, although the defendants were willing to have a CHANCERY. V. 151 decree directing the conveyance to the complainant alone. Rector v. Hutchison, vii. 522 193. A. purchased, at an execution sale, land alleged to have been fraudu- lently conveyed by the defendant in execution. A. went into possession, sold his interest to B., and afterwards brought his bill to set aside the alleged fraudu- lent conveyance, and a decree was rendered in his favor. The defendants after- wards brought a bill of review, making A. and B. parties, and praying for a decree for rents and profits — Held, that, whether B. was properly made a party or not, no decree for rents and profits could be rendered against him. Gamble V. Johnson, ix. 597. 194. A party decreed specifically to perform a contract, cannot object to the decree, because it adjudges to one of the parties, in whose favor it is made, too large an interest, and too small to others, when it is the execution of the con- tract to any extent, or in favor of any party that he is resisting. Harrison v. Tovm, xvii. 237. 195. A decree reversed for an error in the adjustment of a partnership account. White V. Bullock, xviii. 16. 196. A decree in conformity with the statute relating to chancery practice, in proceedings against unknown heirs, is effectual to pass the title of the heirs. Gritt V. Watson, xviii. 274. 197. A decree rescinding the sale of land, in favor of the vendee, rescinds a mortgage given to secure the purchase money, and, consequently, a decree sub- jecting a portion of the mortgaged premises to sale, for any damages resulting to the vendor, or mortgagee, from the rescission of the contract, is erroneous. Coffman v. Huclc, xix. 435. b. WHEN TAKEN. 198. Where no answer to a bill is put in, a final decree cannot be made until after a decree nisi. Evans v. The State, i. 492. 199. Where a defendant was ruled to file an additional answer to a bill for a foreclosure, within a prescribed time, and failed to comply, it was held, that, under the statute of Feb. 19, 1825, (R. S. 1825, 638, §§ 10, 17, 37, 38,) a final decree could not be made until after a decree nisi. Wash, J., dis. The State v. Evans, i. 698. 200. A decree is premature when the cause has not been regularly set for hearing and tried at the next term. Reed v. Rawlings, i. 753. C. PROVISIONAL. 201. A provisional decree in chancery, to become absolute, unless the defend- ants appear and prosecute their bill of review within a limited time, (R. S. 1825, 645, § 38,) cannot be set aside on motion. Divers v. Mark, iii. 81. d. VOIDABLE. 202. Where, in proceedings in chancery, it appeared that certain infant de- fendants had not been served with process, but that they appeared, and, on their 152 CIRCinT ATTORNEY. H. own motion, had a guardian, ad litem, appointed to answer for them — Held, that, a decree against them in such a case was not absolutely void, and could not be impeached in a collateral proceeding. Bay v. Kerr, vii. 426. e. SETTING ASIDE. 203. Where the plaintiffs petition for the specific performance of a contract to purchase, was loose and vague, not clearly setting forth any contract, but the jury, from the evidence, found a contract, and a decree was made for specific performance, the court would not set aside the decree on account of the defects in the petition. Bespain v. Carter, xxi. 331. See Appeal, II; Costs, 30 ;. . . .Infants, III ;. , . .Practice in Supreme Court, VIII ;. . . .Public Lands,' 35, 36 ;. . . .Securities, V, VI. CIRCUIT ATTORNEY. I. AUTHORITY TO ACT FOR COUNTY. II. FEES. I. AUTHORITY TO ACT FOR COUNTY. 1. No other person than the Circuit Attorney is authorized to prosecute actions in which the county is concerned. (See R. S. 1825, 156, § 2,) St. Louis County v. Clay, iv. 559. II. FEES. 2. The oflBce of Circuit Attorney, under the Territory of Missouri, was abol- ished on the 28th day of November, 1820, by the operation of the State Consti- tution, and the laws enacted in pursuance thereof; and the fees of Circuit Attor- ney were thenceforth governed by the State Laws. Davis v. Cape Girardeau County Court, i. 151. 3. The statute requiring the Circuit Attorney to "commence and prosecute all civil and criminal actions, in which the State, or any county in his circuit may be concerned," &c., (R. S. 1845, 156, § 1],) does not apply to cases arising under the act, forbidding the residence of free negroes in this State without license, and the Circuit Attorney is not entitled to a fee for an appearance and conviction in such cases. Lackland v. Dougherty, xv. 260. 4. The Circuit Attorney is entitled to one fee only upon a conviction, al- though, in the indictment, there may have been more than one count. Ex parte Craig, xix. 337. 5. The act relating to the " fees of the Circuit Attorney of the 8th judicial district," (Acts 1850-1, 216,) is an act " specially applicable to the county of St. Louis," within the meaning of the statute, (R. S. 1855, 102V, § 23,) and is not re- pealed by the act regulating fees in the revision of 1855, (R. S. 1855, 756, § 2.) Mauro v. Buffington, xxvi. 184. CLERK OF COUET.— COMMON CARRIERS. H. 153 CLERK OF COURT. 1. OflSce rent and fuel are necessaries within the meaning of § 5, of the statute of February 12, 1825, (R. S. 1825, 208,) for which the Clerk of the Cir- cuit Court is entitled to compensation from the county, when furnished by him for the purposes of his office. Boone County v. Todd, iii. 140. 2. Where the County Court refuses to draw their warrant on the County Trea- sury for the amount allowed by the Circuit Court to its clerk for office rent and fuel, a mandamus from the Circuit Court is an appropriate remedy. Boone County V. Todd, iii. 140. St. Louis County Court v. Ruland, v. 268. 3. Where the clerk of a court refused to issue more than one execution on a judgment, and the statute was silent as to the number of executions which might be issued, it was held, that he was not liable for a breach of his official duty. The State v. Ruland, xii. 264. See Laws, 31. COMMON CARRIERS, I. DUTY OF. IL LIABILITY. III. ADVANCEMENTS ON GOODS. IV. CARRYING LETTERS. V. RESHIPPING. I. DUTY OF. 1. A common carrier upon Western rivers is not responsible for not drying merchandise which has been wet and damaged by inevitable accident. [Bird v. Cromwell, i. 81, commented upon and overruled, and the duties of common carriers on ocean and river navigation discriminated.] St. Bt. Lynx v. King xii. 2Y2. 2. It is the duty of the carrier to give notice of the arrival of goods to the consignee, if known to him, in a reasonable time. Per Tompkins, J. Erskine V. St. Bt. Thames, vi. 371. IL LIABILITY. 3. Bank bills entrusted to a carrier are regarded as money. Chouteau v. St. Bt. St. Anthony, xi. 226. 4. Where no usage is shown, the receiving of money and the agreement of the carrier to deliver it, raises the presumption that the transportation of money belongs to his customary employment. Ibid. 154 COMMON CAKEIERS. H. 5. And tlie question of usage should be left to the jury to decide from the tes- timony before them. Same case, xii. 389. 6. But the act of the captain in taking money for transportation is not prima facie evidence of the liability of the boat as a common carrier. [Overruling Chouteau v. St. Bt. St. Anthony, xi. 226.] Chouteau v. St. Bt. St. Anthony, xvi. 216. Same case, xx. 519. 7. In order to make the boat or its owners liable in such a case, it must appear that it was the usage of the boat to carry packages of money for hire, on account of the owners, or the known usage of the trade that it should do so. Tbid. Whit- more V. St. Bt. Caroline, xx. 513. Chouteau v. Si. Bt. St. Anthony, xx. 519, 8. And evidence of a custom by boats to carry money for customers to gain patronage, does not establish a custom to carry it for hire. Same case, xx. 519. 9. A steamboat is not liable, as a common carrier, for packages of money, un- less the carriage of it was undertaken for hire. Chouteau v. St. Bt. St. Anthony, xvi. 216. Same case, xx. 519. 10. A common carrier is liable for all losses that occur in the transportation of goods by him, except such as arise from the act of God, or the enemies of the country, or are excepted in his contract. He is, therefore, liable for goods lost by a collision on the river, notwithstanding his boat may have been, according to rules of navigation, in her proper place at the time of the collision. Daggett v. Shaw, iii. 264. 11. Where a carrier is sued for breach of a contract of affreightment, he may show, in defense, that although he may have been in default, the loss was in fact independent of it, and must have happened if such default had not existed. But if his delinquency contributed to the loss, he will still be liable. Collier v. Val- entine, xi. 299. Smith v. Whitman, xiii. 352. 12. In an action against a carrier for loss occasioned by delay in a voyage, the plaintiff is entitled to recover as damages the legal interest on the amount which might have been realized on the goods shipped from the time they ought to have been delivered to the time of actual delivery, although there was no depreciation of market values during that period. Ibid. 13. The law which controls the liability of common carriers does not begin to apply until the actual bailment is made. The act of God will not excuse a man for failure to comply with an absolute contract to receive and transport goods at a future time, merely because he is a common carrier. Collier v. Swinney, xvi. 484. Taylor v. St. Bt. Bohert Campbell, xx. 254. 14. The implied obligation of a common carrier to carry the baggage of a pas- senger, does not extend beyond ordinary baggage, or such as a traveler usually carries with him for his personal convenience, nor does it include more money than a reasonable amount to pay traveling expenses. Whitmore v. St. Bt. Caro- line, XX. 513. 15. The liability of warehousemen and forwarding agents is different from that of common carriers ; they are responsible only for losses occasioned by their fault or negligence. Thus, where a common carrier engages to carry goods to a cer- tain point, the terminus of the road, and there to deliver them on board a steam- boat, the liability of a common carrier continues only until the arrival of the COMMON CARRIERS. V. 155 goods at the terminus of the road ; and the liability of a warehouseman and forwarding agent then commences ; if the goods are damaged while deposited on the levee awaiting the arrival of a steamboat, the owner can recover only for loss occasioned by negligence. HoUzelaw v Buff, xxvii. 392. See Supra, 1. III. ADVANCEMENTS ON GOODS. 16. The custom under which carriers advance to forwarding agents the exist- ing charges against the goods, and which makes the consignees and owners liable therefor, does not extend to advances made on demands against the con- signees or owners wholly disconnected with the charge for transportation. St. Bt, Virginia v Kraft, xxv. 76. 17. Where the last of several carriers on the line of route between two distant points receives goods from another carrier, pays the freight and charges demanded at the point where the goods are received, and transports them to their destination — Held, there being no arrangement or understanding between the carriers with reference to " through" transportation, that the last carrier might retain possession of the goods until the consignee paid its customary charges for transportation, and the freight and charges advanced on the receipt of the goods, although such sum should exceed the amount for which the carrier that first received the goods agreed they should be transported. Wells v. Thomas, xxvii. 17. IV. CARRYING LETTERS. 18. Under the act of Congress, (5 U. S. Stat. 736, §§ 10, 11,) a steamboat is not prohibited from taking a letter containing bank notes, if the contents of the letter relate only to the remission of the notes, and such is the presumption if no evidence of its contents be given. Chouteau v. St. Bt. St. Anthony, xi. 226. V. RESHIPPING. 19. Where a carrier receives goods to be conveyed to a certain point, reserv- ing in the bill of lading the " privilege of reshipping," his liability continues until the goods are delivered at their place of destination. Therefore, if the boat on which the goods are reshipped deviates from her route and is lost, the carrier is liable. Little v. Semple, viii. 99. 20. Where there is a privilege of reshipping reserved in a bill of lading, the carrier will be liable for any loss occurring on the boat on which the goods are reshippeJ, if under like circumstances he would have been liable had the loss occurred on his own boat. Carr v. St. Bt. Michigan, xxvii. 196. 21. The reservation in a bill of lading of the privilege of reshipping, confers only the right of transferring the goods shipped to another boat or vessel for the 156 CONSIDERATION. I. purpose of being transported to their destination; it will not autliorize the tem- porary storii o of the goods at the point of reshipment ; and the carrier will not be permitted to show that the custom was to store goods temporarily at the point of reshipment. Ibid. See Action, 48 ; Ferry, IV. ; Trovbr, 3. CONSIDERATION. I. WHAT IS, AND SUFFICIENCY. a. GENERALLY. b. AGAINST PUBLIC POLICY. C. SMALLNB88 OF, NOT EVIDENCE OF FRAUD, d. SPECIAL CASES. II. FAILURE OF. III. BILLS OF EXCHANGE AND PROMISSORY NOTES. a. SUFFICIENCY OF CONSIDERATION AND WHAT WILL VITIATE. IV. aa. Generally. bb. Compromise of claim. CO. Failure of Consideration, dd. Notice of Fraud in. ee. Illegality of. ff. Forbearance to Sue or to DEFENSE AND HEREIN OF EVIDENCE. Levy Execution. THE PLEADINGS AND L WHAT IS AND SUFFICIENCY. GENERALLY. 1. Every contract must be founded on a valuable consideration, and be cer- tain in its terms. Wesson v. Horner, xxv. 81. 2. And a valuable consideration is one that is either a benefit to the pai-ty promising, or some trouble or prejudice to the promisee. Bloek v. Elliott, i. 275. Mullanphy v. Reilly, viii. 675. 3. The compromise of a doubtful claim is a valuable consideration. Mullan- phy V. Riley, x. 489. b. AGAINST PUBHO POLICY. 4. An agreement to reward a public officer (in this case a poHceman) for doing that which it is his duty by law to do, is void as against public policy. Kick V. Merry, xxiii. 72. 6. An agreement to pay a certain sum in consideration of services to be ren- dered in securing a commutation of the sentence of a convict, is void as against public policy. Krihhen \. Hay craft, xxvi. 396. CONSroERATION. I. 15T C. SMALLNBSS OF, NOT EVIDENCE O! FRAUD. 6. Smallness of consideration, in a sheriffs deed, is not, of itself, evidence of fraud. Chouteau v. Nuckolls, xx, 442. d. SPECIAL CASES. 7. The plaintiff gave his note to C. Before its maturity he was garnished as the debtor of C, and judgment was taken against him. The note had been assigned to the defendant, who, in consideration of the plaintiffs renewal of it, promised to pay him whatever he might be compelled to pay on the judgment against him as a garnishee of C. — Held, that the consideration was suflScient to support the promise. (See 6 Mass. 58.) Turner v. Crigler, viii. 16. 8. A father, in consideration that his son would remove from a distant part of the State and come and reside near him on the land in dispute, promised his son that he would give him the land. The son accepted the offer and removed to the land, and the father assigned to him the certificate of entry of the land from the government — Seld, that the trouble and expense of removal, incurred on the part of the son, constituted a sufiScient consideration to support the contract of assignment. Salsa v. Halsa, viii. 303. 9. A promise by the wife, after the death of her husband, to pay a bill for medical attendance upon the family of the deceased during his lifetime, is not founded upon a good consideration, although a part of the bill was for attend- ance upon slaves which were her separate property. Kennerly v. Martin, viii. 698. 10. A. contracted to bmld a boat for the defendant, and employed the plaintiffs to work upon it. After the work was completed and before the boat was deli- vered, the defendant promised to pay the plaintiffs their claims, in consideration that they would deliver to him the boat— 5«W, that as it did not appear that the possession of the plaintiffs was legal, the promise was without consideration and void. Jones v. Miller, xii. 408. 11. The breach of a voluntary promise to continue a suit, by taking judg- ment against the defendant immediately, and issuing execution and seizing his property, it not appearing that he was thereby deprived of any defense to the action, or that he had any, will not give" him a cause of action. Hunt v. John- ston, xxiii. 432. 12. A. had a slave in his possession, claiming him by purchase, in good faith, for a valuable consideration. B. claimed the slave, and brought a suit agaiiist A., to obtain possession of him. While the action was pending, B. promised to pay A. the bill of the physician, who had previously been, and then was, attending the slave, who was sick. B. recovered judgment against A. for the slave. A. sued B. for the amount of the physician's bill— fleW, that he was entitled to recover. Livingston v. Dugan, xx. 102. 13. If, when the sale of land has been completed by the execution of the deed the grantor consents that the grantee may have certain personal property then on the land, this agreement is without consideration and void. But this consent or agreement may be used in evidence to show that it was a part of the previous 158 CONSIDERATION. III. contract that this property should pass to the grantor. AlexaTider v. Lane, xxi. 536. II. FAILURE OF. 14. D. owed R., and arranged with J. to procure a discharge of the debt on receiving a certain negro. J. took the negro and gave his bond to R., who dis- charged his debt against D. — Held, that the consideration of the bond was the discharge of D., and that it was not affected by the fact that the negro subse- quently obtained his freedom. Relfe v. Jones, iv. 89. 15. The fact that the vendor of an improvement on public land did not reside on the, land at the time of the sale, is no defense to an action for the consider- ation money. Stubhlefield v. Branson, xx. 301. 16. But the fact that the vendor was not in possession, and also that the land had previously been entered by a third party, shows a failure of the considera- tion and is a good defense. Burns v. Hayden xxiv. 215. III. BILLS OF EXCHANGE AND PROMISSORY NOTES. a. SUFFICIENCY OP CONSIDERATION AND WHAT WILL VITIATE. aa. Oenerally, 17. Anything which is beneficial to one party, or might tend to the loss or disadvantage of the other, is a good consideration for a promissory note. Mul- lanphy v. Reilly, viii. 675. Block v. Elliott, i. 275. 18. A. obtained a judgment against B., who afterwards died, leaving the judgment unpaid. His widow, in order to remove the supposed lien from the real estate of B., executed her note for the amount of the judgment, secured by a mortgage on her own real estate, which A. accepted in lieu of the judgment, and suffered the three years allowed for the presentation of demands against estates to pass, without presenting the judgment for allowance — Held, that the note was executed upon sufficient consideration. Mullanphy v. Reilly, viii. 675. bb. Compromise of Claim. 19. Where a defendant, a security on a note, compromises the suit and cause of action, and executes a new note for a less sum than that demanded, with a full knowledge of all the facts, he is bound by the compromise, and cannot go behind it in defending against the compromise note. Draper v, Owsley, xv. 613. 20. Though a promissory note, given by way of compromise of a doubtfiil right, is valid and binding, it is a good defense that it was obtained through a fraudulent suppression of the truth. Stephens v. Spiers, xxv. 386. cc. Failure of Consideration. 21. Where an article forming the consideration of a note is of no value for the purpose for which it was purchased, it amounts to a total failure of considera- CONSroERATION. IV. 159 tion, although it may be of some value for other purposes. Barr v. Baker, ix. 840. 22. The law seems to be that a note given for a patent that is void, is without consideration. Joliffe v. Collins, xxi. 338. dd. Notice of Fraud in. 23. Notice to several directors of a bank taking a note by indorsement, of fraud in the consideration of the note, is notice to the bank. Such notice may be presumed, where some of the directors of the bank are also directors of an insurance company, by whom the note was indorsed to the bank. City Bank of Columbus V. Phillips, xxii. 85, ee. Illegality of. 24. Where the consideration of a note is the doing of an act forbidden by law, either directly or impliedly, the note is void for illegality of the con- sideration. Thus, where a note was given for a town lot, sold to the maker by the payee, before the town plat was made out, acknowledged or recorded, as required by the statute, (R. S. 1835, 599,) the note was held void. Downing v. Singer, vii. 585. 25. The notes of the Bank of the Commonwealth of Kentucky are bills of credit within the meaning of the constitution of the United States, and a pro- mise, the consideration of which was such bank notes, is void. Bank Com. Kentucky v. Clark, iv. 59. Griffith v. Bank Com. Kentucky, iv. 255. flF. Forbearance to Sue or to Levy Execution. 26. A constable being about to levy an execution on certain property, was requested by the debtor to levy it on certain other property, which would have been amply suflScient ; but this he refused to do, but took from the debtor a note of an extortionate amount for forbearance to levy on the first mentioned pro- perty — Held, that the note was void. Ashby v. Dillon, xix. 619. 27. The Bank of Missouri, as the holder of a bill of exchange, agreed with the acceptor to receive from him twenty per centum on the amount of the bill every four months, and interest in advance until the amount should be fully paid, and that no suit should be brought thereon, if the payments were made as agreed upon. Only one payment was made in pursuance of this agreement — Held, that if the Bank had the right to receive the interest in advance there was no sufficient consideration for the promise not to sue ; and if the contract was usurious, it could not avail the bank, since the usurious interest might immediately be recovered back, and therefore that there was no consideration for the agreement to delay, and that the Bank could sue at any time. Marks v. Bank of Missouri, viii. 816. IV. DEFENSE AND HEREIN OF THE PLEADINGS AND EVIDENCE. 28. In notes payable to bearer, or indorsed in blank, which are transferable by delivery, any person who comes by them bona fide, and for a valuable con- 160 CONSroERATION. IV. sideration, and in the usual course of business, may recover on them, notwith- standing they may have been lost or stolen, or obtained by fraud from the true owner. But if any suspicious circumstances are made to appear, if it is shown that the real owner of the note has never parted with his interest in it, the holder is then bound to prove that he came by it honestly, and for a valuable considera- tion. Anderson v. Lmig, i. 365. 29. In an action by payees against the maker of a promissory note, the defendant will not be allowed to show that the note was given for lands sold at public sale by the payees, representing themselves as owning the same when they did not ; nor that they obtained the order of court under which the land was sold by false and fraudulent representations, nor that the deed conveying the lands to them was made to them by mistake. The maker will not be allowed to keep the land, and refuse to pay the purchase money. He has his remedy against the plaintiffs by action for the fraud, or in equity. Steinhack v. Mils, i. 414. 30. Between the original parties to a negotiable note, the consideration may be inquired into. Klein v. ICeys, xvii. 326. 31. And where there is a failure of the consideration expressed in anote, parol testimony is admissible to show that the consideration expressed was only a part of the consideration in fact. Dorm/ v. Hagard, v. 420. 32. At common law, a partial failure of the consideration of a note cannot he given in evidence in mitigation of damages. Ferguson v. Huston, vi. 407. 33. But it is otherwise under the statute. (R. 8. 1855, 1290, § 24.) Gamache V. Grimm, xxiii. 38. 34. Where A. obtained B.'s note for a large sum by fraudulent representations, part only of the amount being due to him, it was held that he could recover of B. on the note only the part due. Brown v. North, xxi. 528. 35. In an action of assumpsit upon a bill of exchange by the indorsee against the maker, evidence that the bill was obtained fraudulently, or without con- sideration, and that the indorsee was privy thereto, is admissible. Fisk v. Collins, ix. 136. 36. Parties entered into an agreement, under seal, to submit certain business mat- ters in dispute to three of their neighbors, who awarded that the defendant should pay the plaintiff $60, and the defendant thereupon promised to pay it. In an action of assumpsit to recover the amount, the agreement under seal is competent to show that there was a good consideration for the promise. Morrow v. Smith, x. 308. 37. A purchaser of slaves, with warranty of title so long as his possession is undisturbed, cannot set up in defense to an action on a promissory note given for the purchase money, that, at the time of sale, the title was not in the vendor. And such case is not within § 14, Art. V. of the statute relating to Justice Courts. (R. S. 1845, 653.) Morrison v. Edgar, xvi. 411. 38. In an action on a promissory note, the defense being that it was given for abet on an election, (R. S. 1845, 541, § 10,) the answer must state, not only that the election was authorized by the constitution and laws of this State, but what particular election it was, between whom pending, &o., or defendant will CONSTABLE. II. 161 be precluded from introducing eyideace on the subject. Syhert v. Jones, six. 86. 39. Fraud, in the coufiideratiou of a negotiable promissory note, is no defense to an action thereon by the indorsee to whom it was indorsed before maturity without notice. Jaccard v. Shands, xxvii. 440. See Action, 10 ; . . . .Bond, II ; . . . . Bonds, Notes and Accounts, II ; . . . . Chancery, 65 ; Gonvbtancbs, 1, 2 ; Deed of Trust, I ; Execution, 78, 79 ;, . . .Fsaud, 2 ;... .Fraudulent .Conveyances, VII ;. . . .Guaranty, II ; Pleading, 41, 42. CONSTABLE I. LIABILITY. II. PROCEEDINGS AGAINST. m. CONSTABLE'S BOND, a. SUFFICIENCY. b. APPROVAL. C. ACTION ON. d. WABILIAY PP SURETY. I. LIABILITY. 1. A constalile is liable for the act of his deputy in making a false return. Blunt V. Sheppard, i. 219. 2. After property is levied upon by a constable, he cannot excuse himself from liability therefor, on the ground that it was recaptured and taken from him by force. The State v. Lowry, viii. 48. 8. A. constable who, after his term of office has expired, claims and col- lects as constable illegal fees, is responsible for the penalties imposed by law, y la>w. Carson v. Walker, xvi. 68. 2. It is no error for a court to hold a special terpQ jji on* coun^, on a day fixed by law for the holding of court in anothpr countyin the. fiawe circuit. The statute relating thereto is merely directory, (]8,. S. 184^, 8:37, § M,) Lewin v. Dille, xvii. 64. II. RULES OF. 3. The Circuit Court has an inherent right to Bfiake its own rules, ,bfl,t before such rules become obligatory, they ought to have a reasonable publicity. Bisher V. Thomas, ii. 98. 4. Where the answer to the petition is improper, the rule of the St. Louis Circuit Coprt in relation to filing a,l;^tracts of tJ^e iplgadit^ \% ipajgjlicable. Sngler |V. Bate, xix. 5,43. III. EJEnOUDS. 5. It is not necessary to the validity of records of court in this State, that they should be s^gped by the Judge. Plattfi Cotinty v. Marshall, x. 345. 6. In the authentication of a public record by the private peal of an officer, as provided for in the statute, (R. S. 1845, 332, § 20,) the sealing must be by an impression upon wax or ptljer tenacious [Subsfe^npe. A scroll is not sufficient. Qatis V. The State, ?iii. 11. See Amendment, V- IV. COUNTY COURT. 7. County Courts are authorized to hold adjourned terms, and all business done at such adjourned sessions is considered as done at the regular term. Higgins v. Ransdall, xiii. 205. 8. A final order of the County Court cannot be set aside at a subsequent term merely upon the ground of error. Peake v. Redd, xiv. ,7 9. 9. But if the County Court order that a certain sum be paid pi ^ p^rty as a gratuity, it is not a judicial but an administrative act, and m^y ,be jevofced at a subsequent term of the court. The State v. Coqper pou,nty Opur,t, ?vii. ,507. V. HANNIBAL COURT OOMilllON PjLJAS. 10. Under the statute creating the Hannibal Court of Common Pleas (Acts 1844-5, 65,) all expenses incurred in the establishment of the court must be paid by the citizens within the corporate limits of the city of Hannibal, and a record boot fi;rni^hed by the clei;k, for the u^e of the court, is a part of such expenses. Bourne y. Mjarion County Court, ?;v. 600. COYINANT. I. 201 VI. ST. LOUIS LAND COURT. 11. The act establisLing the St. Louis Land Court, by providing that the Judge thereof should receive the same compensation as the Judge of the St. Louis Court of Common Pleas then received (Acts 1852-3, 90, § 5,) is cou- istrued to mean that he shall receive the same amount and from the same sources. The §tate v. St. Louis County Court, xx. 499. See Jurisdiction, VII. VIL LAW COMMISSIONER'S COURT. 12. The judgment required by § 8 of the statute, regulating the action of replevin, (R. S. 1845, 922,) in case the plaintiflf fails to prosecute his suit with .effect and without (lelay, is a final judgment and cannot be set aside by the Law Commissioner when once rendered by him. Maids v. Watson, xiii. 544. 13. Under the act of 1851, relating to the Law Commissioner's Court, (Acts 1850-1, 241,) the county is not required to furnish rooms for the transaction of the business of that court. Watson v. St. Louis County, xvi. 91. See Jdeisdiotion, VIII. COVENANT. I. COVENANTS GENERALLY. a. CONSTRUCTION AND OPERATION. b. PBErOBMANCB AND DISCHARSE. C. MUTUAL, DEPENDENT AND INDEPENDENT, d. ACTION. aa. When Maintainable, bb. Parties cc. Pleading, dd. Evidence. II. PARTICULAR COVENANTS. a. SEIZIN. h. AOAJNST INCUMBRANCES. C. WARRANTY. d. IMPLIED IN THE WORDS "GRANT, BARGAIN AND SELL." e. ASSIGNMENT OF. L COVENANTS GENERALLY. a. CONSTRUCTION AND OPERATION. 1. A covenant to do a thing requiring the exercise of skill and Ju^gmeat, can- pot he performed by an agent, and a parol agreement between the parties that an agent may do it, does not affect the original covenant. Foul y. Mwnrdi, i. 30 202 COVENANT. I. 2. He who, in general terms, covenants to do a particular thing, shall be held to perform his covenant without the aid of the covenantee, unless such aid be indispensable to the performance of it. Rector v. Purdy, i. 186. 3. A., holding a bond executed by B., for certain lands, delivers it to C, who thereupon covenants to pay to A. a certain sum for the lands described in the bond, or to return him the bond when called for — Held, not to be a conditional covenant in favor of C, but that the condition is in favor of A., that, if the money is not paid he may reclaim his bond ; and that C. is absolutely and unconditionally bound to pay the money, and could not discharge himself by returning the bond. Ramsey v. Waltlmn, i. 395. 4. Where M. covenanted to pay a specific sum for a slave at a specified time, or to pay a certain sum for the hire of the slave, and to return her to T. — Held, that M. was liable on the covenant to T. for the value of the slave, although the slave died before the time limited for the payment, or the return, if it was found that her death was occasioned by cruel and unusual treatment on the part of M. Mann v. Trabue, i. 709. 6. In an action on this covenant, the defendant will not be permitted to read in evidence the record of his trial and acquittal on a charge of feloniously killing said slave. Ihid. 6. The terms used in a covenant are to be construed according to their obvious meaning, and as generally understood in the community, and not accord- ing to their usage among a particular class of men. Pavey v. Burch, iii. 447. I. Where parties mutually covenant together, the one to convey and the other to do certain acts as the consideration for such conveyance, the failure of either to perform his part of the covenant, gives a right of action to the other, although such failure is a good cause of forfeiture. The forfeiture may be waived. Lucas V. Clemens, vii. 367. ' b. PEBFORMANCB AND DISCHABOE. 8. Where the performance of a covenant to do certain work is prevented by the interference of the covenantee, the covenantor is discharged from the obliga- tions of his covenant. Jarrell v. Farris, vi. 159. 9. Thus, where C. covenanted to deliver certain saw logs to J. & D., and was subsequently assaulted and killed by D., before any breach of the covenant — Held, that the covenant was released, and that a suit thereon could not be maintained against C.'s administrator by J. & D., or either of them, a release by one covenantee being a release as to all. Ihid. 10. But it is otherwise as to covenants to pay money or transfer lands or other property. Per Napton, J. Ibid. C. MUTUAL, DEPENDENT AND INDEPENDENT. II. H. covenanted with L. to execute a piece of work in an agreed time and manner, L. agreeing to pay for it in property at a stipulated price, the property to be selected by H.^ — Held, that these are mutual and dependent agreements, and that L. may show his readiness to pay in 'the manner agreed. Labeaume v. Hill, i. 42. COVENANT. I. 203 12. Where covenants are mutual and independent, either party may recover damages from the other for an injury which he may have sustained by non- performance. Cook V. Johnson, iii. 239. See Contract, V. aa. When Maintainable. 13. C. covenanted with P. to erect a house for him at an agreed price to be paid on the completion of the work. After a considerable portion of it was done, P. interfered and stopped its further progress — Held, that C. could not recover for the work done in an action of assumpsit, but must sue on the covenant, and allege the excuse for its non-performance. Clendennen v. Paulsel, iii. 230. 14. An action of covenant cannot be sustained on a covenant modified by a subsequent parol agreement. M'Girk, J., dis. Raymond v. Fisher, vi. 29. 15. An action of covenant will not lie in this State, upon an instrument executed in another State, and which by the law of such State is regarded as sealed, when by the law of this State such instrument is not also held as sealed. Broadhead v. Noyes, ix. 55. See Administration, 17. bb. Parties. 16. D. sold to R. a boat, and R., as a part of the transaction, agreed, under seal, to pay the employees on the boat the sum of $600. — Held, in an action in favor of one of the employees against R., that a recovery could be had only in the name of the party with whom the covenant was made ; but Per Scott, J., it would be otherwise on a simple contract, all the employees joining in the suit, Robhins v. Ayres, x. 538. Corl v. Riggs, xii. 430. lY. The only covenant implied in the words "grant, bargain and sell," which runs with the land, is the covenant for further assurance. The word " assigns," as used in the statute, (R. S. 1845, 221, § 14,) is limited to that covenant. Collier V. Gamble, x. 467. 18. An action cannot be sustained in the name of an assignee for the breach of the other covenants. Ibid. 19. And the statutory covenant being not simply a covenant of seizin, but of seizin of an indefeasible estate in fee simple, the measure of damages is not in all cases the purchase money with interest. Where the vendor was actually seized, but of a defeasible estate, the damages should be merely nominal, until the estate has been actually defeated. Ibid. Reese y. Smith, m. di,^. Bircher V. Watkins, xiii. 521. Mosely v. Hunter, xv. 322. 20. Where a broken covenant of seizin is assigned, the assignee must, under the new code, sue in his own name. Van Doren v. Relfe, xx. 455. cc. Pleading. 21. In an action of covenant, it ifSust appear in the declaration with whom the covenant was made. So, too, the performance or readiness to perform, or the 204 COVENANT. I. excuse for the non-performance of a condition precedent, must be shown at the place and within the time specified ; and on a covenant to partners, the breach should be, the failure to perform to them or either of tbem ; and error on these points is not cured by a judgment by default Tate v. Barcroft, i. 163. Keatly V. McLaugherty, iv. 221. 22. In an action of covenant on a bond, by which the obligor bound himself to " make, execute, and deliver to the obligee, a good and sufficient warranty deed " for certain lots of ground, upon his paying the purchase money, it is not necessary for the plaintiff to aver that he prepared and tendered to the obligor a deed, ready for the obligor to execute, at plaintiff's expense, or that before suit brought, plaintiff demanded of the obligor a conveyance. Rector v. Purdy, i. 186. 23. Wbere A. covenants with B. to cause C, or his legal representatives to make a particular description of title to certain lands, a plea that C. made the title to D., and A. offered a deed from D. to B., answering the words of the covenant, is good. Davis v. Burns, i. 264. 24. In an action of covenant, where the declaration contains two counts, differing in the description of the writing sued on, and oyer being craved of the writing in the declaration mentioned, one instrument only is set out, which varies from each count — Held, that, on general demurrer, the plaintiff shall recover on the second count, inasmuch as that count sets forth, a good cause of action, and it does not appear that the instrument of which oyer was given is the same therein described. Turley y. Barcroft, i. 502. 25. Where two covenants are independent of, and have no reference to, each other, the averment of performance of one of them, in a suit upon the other, will be considered immaterial, and a plea traversing the performance will be bad on general demurrer. Simonds v. Beauchamp, i. 589. 26. Where A. covenants to convey land to B., by general warranty deed on a day certain, and B. at the same time executes his obligation to pay A. the purchase money on the day named for the making of the deed, and the instru- ments do not refer to each other, the covenants are independent, and failure by B. to pay the money cannot be pleaded in bar to an action on the eovenant. — Ibid. 2*7. To an action for breach of a covenant for not making a deed on a day certain, the defendant pleaded the fact that he attended at the time and place agreed on, and then and there offered to execute the- deed, but that the plaintiff waived the same, and excused the defendant from so doing — Held, that the plea was good, although it failed to answer other breaches assigned in the declaration, these being answered by other pleas. Tompkins, J., dis. Colgan v. Sharp, iv. 263. 28. A plea to an action of covenant on a lease, which alleges a surrender and acceptance of the unexpired term, should allege that the plaintiff accepted the same in discharge of the covenant, as nothing will discharge a covenant but a performance of it, or a release under seal. Thomas v. Cox, vi. 506. 29. Where a party covenants to convey land upon the performance of a par- ticular act, as the payment of money, it is not necessary in declaring on such covenant to allege a demand for a deed. Ppe v. Hutter, vii. 548. See AssMMPsiT, 41. COVENANT. II. 305 dd, Evidence. 30. In an action upon a covenant to convey land as soon as a patent could be obtained from the United States, the land having been located by the covenantee by virtue of a New Madrid certificate, the defendant pleaded that he could not procure a patent — Held, that the defendant could not show, in support of his plea, a patent in the name of L., and a certificate of survey of the tract in con- troversy. Oreen v. McGirk, i. 498. 31. Evidence of a particular custom or usage is not admissible to control the provisions of an express covenant. Pavey v. Burch, iii. 447. 32. In an action of covenant for not mating a deed on a day certain, the defendant pleaded an offer to make the deed, and that the piaintiflf refused to accept it. On replication denying the tender, it was held, that proof that defen- dant was ready to make and plaintifi" to receive the deed, but that both agreed to waive the making at that time, did not sustain the plea. Sharp v. Colgan, iv. 29. 33. Evidence of an erasure, or alteration of an instrument of writing, is admis- sible under the plea of non est factum, without affidavit. WTiitmer v. Frye^ x. 348. See Limitations, 5, 29, 30. n. PARTICULAR COVENANTS. 34. In an action on a covenant of seizin, proof of a grant by the Spanish Government of the land in question, and a survey and location thereof, will not sustain a pica of seizin, where the claim to the-land was rejected by the Board of Commissioners of Private Land Claims. Tapley v. Labeaume, i. 550. 35. The criterion of damages in an action on a covenant of seizin is the pur- chase money with interest. Ibid. 36. Where the grantor in a deed containing a covenant of seizin has no title to the land, the covenant is broken the instant it is made. Ibid. 37. Where a covenant of seizin is broken, and the covenantor dies before the defect of title is discovered, and his personal representative procures a good title in himself, and tenders a deed to the covenantee, a court of equity wiU compel the purchaser to accept such conveyance, and enjoin a judgment at law for the purchase money and interest, obtained on account of the breach of such cove- nant. ScoTT, J., dis. Reese v. Smith, xii. 344. 38. The covenant of seizin in a deed is an assurance to the purchaser that the grantor has the estate, both in quantity and quality, which he purports to con- vey. The covenant in such case is broken if the grantor does not own aU the land embodied in his deed. Pecare v. Ghouteav, xiii. 527. 39. In order to establish a right to recover for a breach of the covenant of seizin, it is not necessary to show an eviction ; it is sufficient if some .damage resulting from an outstanding paramount title be shown. If damages are sought to be recovered for the extinguishment of this title, it devolves upon the plain- 206 COVENANT. II. tiff to show the reasonableness of ihe price paid ; and this is to be determined by the valae of the land at the time of the extinguishment of the paramount title, and not by its value at the date of the previous transfers. Per Leonard J. Dickson V. Desire, xxiii. 151. See Administration, 107. b. AGAINST INCUMBRANCES. 40. In an action for a breach of covenant against incumbraroes, the plaintiff may give evidence of any facts down to the time of the trial, to show the extent of his injury. Mosely v. Hunter, xv. 322. 41. A general covenant against incumbrances is broken by the existence of an incumbrance at the making of the deed. The breach must set out the particular incumbrance relied on. Shelion v. Pease, x. 473. See Administration, 107. C. WARRANTY. 42. The record of proceedings in forcible entry and detainer, by which the plaintiff was evicted, is admissible in an action on a covenant of warranty, to show the eviction, but does not establish the fact that such eviction was by para- mount title. Fields v. Hunter, viii. 128. 43. A. conveyed certain premises to B. with warranty ; B. conveyed them to C, and C. agreed to convey them to D. ; D. took and continued in possession thereof, until evicted by persons claiming under a paramount title ; after this eviction, D. obtained a decree against C. for a specific performance, in a suit instituted previous to the eviction — Held, by Scott, J., that inasmuch as there was no interest or estate in C. upon whieh the decree could take effect, that it did not operate an assignment to D. of the covenant of warranty in A-'s deed, so as to enable D. to sue thereon. Vancourt v. Moore, xxvi. 92. 44. And previous to such decree, C. obtained a judgment against A. on his covenant of warranty, which was paid by A., C. indemnifying him against liabi- lity to any other person on account of the covenants in his deed — Held, by Richardson, J., that since it appeared that, at the time of the eviction, D. had not paid the purchase money, and consequently had not a complete equitable title as against C. ; that the judgment in favor of C. against A. was a bar to a suit by D. against A., on the latter's covenant of warranty ; that the decree would not, in such case, relate back to a point of time anterior to the eviction, although, if there had been no recovery by C. against A., the decree would so relate back, and operate as an assigriment of the covenant. Ib'd. 45. And Held, by Napton, J^, that A. having notice of the equitable rights of D., and having taken a bond of indemnity from C, the decree relates back to the time of the sale by C. to T>. Ibid. d. implied in the words " grant, bargain and sell." 46. A deed containing the words " grant, bargain, sell and enfeoff," is opera- tive as a deed of feoffment ; and livery of seizin is not necessary to give it that COVENANT. II. 207 eflFeot. The want of livery of seizin is supplied by recording the deed in the Recorder's ofiBce. Perry v. Price, i. 553. 4T. Where a statute provided that "all deeds whereby an estate of inheritance, in fee simple, shall be limited to the grantor and his heirs, the words ' grant, bar- gain and sell' shall be adjudged an express covenant to the grantee, his heirs and assigns," (Gey. Dig. 12*7, § 1,) it was held, that though the provision, as so written, had no meaning, it was not competent for the court to give it a meaning by assuming the word grantor to have been inserted by mistake, and inserting in lieu thereof the word ^rarate. Carter v. Soulard, i. 5'16. 48. The covenants implied by the words " grant, bargain and sell," in a deed of conveyance under the statute, (R. S. 1845, 221, § 14,) are separate and inde- pendent of each other. Alexander v. Schreiber, x. 460. 49. Where a deed of conveyance, containing the words " grant, bargain and sell," recites a mortgage, existing at the time on the property conveyed, and contains a special covenant " that the grantor will forever warrant and defend the premises conveyed against all persons lawfully claiming the same, in law or equity, and against all titles, liens and incumbrances whatever, and parti- cularly against the mortgage above described," the general covenant implied by the words "grant, bargain and sell," is restrained by the special covenant. Shelton V. Pease, x. 473. 50. Such special covenant is not a covenant to pay the mortage debt. Ibid. 51. A mere payment of money by the purchaser to buy in an incumbrance, is no breach of this covenant, nor of a covenaut of general warranty, or of quiet enjoyment. There must be an eviction, or something equivalent thereto, to con- stitute a breach of these covenants. Ibid. 53. In a conveyance of land under the statute of Illinois, the words " grant, bargain and sell," express covenants that the grantor is seized of an indefeasible estate in fee simple, free from incumbrances done or suffered by the grantor, as also for quiet enjoyment against the grantor, his heirs and assigns. Mosely v. Hunter, xv. 322. 53. The statutory covenant of seizin, implied in the words " grant, bargain and sell," is a covenant running with the land ; and where possession accom- panies the conveyance, it will enure to the benefit of the subsequent transferree in possession at the time of the substantial breach, by the assertion of a para- mount title ; and that, too, although an intermediate conveyance may have been a sheriff's deed. Dickson v. Desire, xxiii. 151. Chambers v. Smith, xxiii. 174. 54. The statutory covenant for further assurance implied in the words " grant, bargain and sell," embraces such incumbrances only as the vendor has control of, and not an outstanding mortgage created by his grantor. Armstrong V. Darby, xxvi. 517. See Supra, 17-19 ; Administration, 106. e. ASSIGNMENT OF. 55. A. conveyed certain premises to B., by a deed containing the covenants implied in the words " grant, bargain and sell," which were at the time subject to a mortgage incumbrance. B. conveyed the same premises to C. — Held, that GftlMiNAL LAW. C. thereby acquired aW tte rights' of B. in the covenants coiltaJiied in A.'sdteed' to Mm, together with a right to sue upon them in his (B.'s)- nafiie, and' that he was not affected by any verbal undtrstan^^ng between A. and B. as to the incumbrance, unless the fact of its existence was brought to his ]tBo*ledge at or' before the tiine of hi8 purcfhase. Alexander v. Sehfeiber, xiii. 271. See Damages, 18-28; D'skANf), 10; Estoppm, t"!!; Juftisuic- TioN, 52 ; Tendke, 5. CRIMINAL LAW. I. CRIMES. a. ADULTJBEY AND IBWDMiSB. b. ARSON. 0. ASSAULT. aa. Assault to commit Manslaughter, bb. Assault to Mil. d. BAWDY HOUSE. e. BURGLAET. f. COCNTBRFBITING. g. OJIUELTY TO ANIMALS. b. CRUELTY TO SLAVE. i. DESTRUCTION OF A DWELLING HOUSE. k. DISCLOSURES BY GRAhD JUROR. 1. DISTURBANCE OF A NEIGHBORHOOD OR FAMILY. m. DISTURBANCE OP PUBLIC WOBiSRIP. n. DUBLLINGi O. EMBEZZLEMENT, p. ESCAPE. q. FALSE PRETENSES. r. FELONY, DEFINITON OF. i. FRAUDULENT CONVEYAN'OE. t. FOBGEBY. U. GAMING. aa. Setting up or Permitting Gambling Device, bb. Betting cc. Betting on Election. V. guardian's carnal knowxedge of Ward. W. killing and maiming CATTLE. X. LARCENY. y. MALPRACTICE. Z. MAYHEM. (a.) MURDER. aa. Indictment, bb. Evidence, cc. Malice, dd. Manslaughter, ee. Insanity, ff. Intoxication, gg. Practice — Questions for Court. CRIMINAL LAW. 209 (b.) OBSCENITY, (c.) PEKJURT. (d.) RAPE, (e.^ RESCUE, (f.) RESISTING OFFICER, (g.) RIOT. (h.) RUNNING HORSES, (i.) SLAVES. aa. Offenses committed by. bb. Offenses by others relating to slaves. See Slaves and Slavery, 33-42. (j.) SUNDAY. aa. Laboring. bb. Keeping open Dramshop or Grocery. (k.) VAGRANTS. XL INDICTMENT. a. FORM AND ALLEGATIONS. b. CAPTION AND CONCLUSION. C. NAME OF DEFENDANT. d. JOINDER OF DEFENDANTS. e. VENUE. £ TIME WHEN OFFENSE WAS COMMITTED, g. INDORSEMENT, h. SIGNATURE OF CIRCUIT ATTORNEY. i. JOINDER OF COUNTS. j. WHAT ACTS ARE OR ARE NOT INDICTABLE, k. MOTION TO QUASH. 1. NEGATIVE EXCEPTIONS. m. PLEA IN ABATEMENT, n. FOR DIFFERENT OFFENSES See THEIR TiTLES. III. BAIL. a. BAILABLE OFFENSES, b. JURISDICTION. C. RECOGNIZANCE. aa. SufiBciency. bb. Certificate. CO. Misnomer. dd. Forfeiture and Remission, ee. Liability of Surety. IV. JURISDICTION. V. CHANGE OF VENUE. a. CAUSE. b. NOTICE OF APPLICATION FOR. C. TRANSCRIPT. d. IRREGULARITY. e. EVIDENCE. VI. GRAND JURY. VII. PETIT JURY. a. TRIAL BY. b. VENIRE RIGHTS OF DEFENDANT. C. CHALLENGE COMPETENCY. d. DISCHARGING A SELECTED JDROR. e. SEPARATION. 14 210 CRIMINAL LAW. f. DISCHAEGINa THE JURY, g. CONDUCT OF JURY. E. QUESTIONS OF FACT. VIII. PROCEEDINGS IN COURT. ARRAIGNMENT. b. AUTREFOIS ACQUIT OR CONVICT. C. DISCHARGE OF PRISONER. d. DOCKET. e. CONTINUANCE. f. PLEADING. g. SEPARATE TRIAL. h. INSTRUCTIONS. aa. Generally. bb. In Case of Murder. i. VERDICT. aa. Generally. bb. In Case of Murder. j. NEW TRIAL. k. JUDGMENT. 1. RECORD. IX. EVIDENCE. a. DYING DECLARATIONS. b. DECLARATIONS OF PRISONER. C. CONFESSIONS. d. ESCAPE. e. FLIGHT. f. AFFIRMATIVE AND NEGATIVE. g. MALICE. h. INTRODUCTION AND EXCLUSION OF. i. VARIANCE. ' j. GENERALLY. k. IN THE VARIOUS CRIMES.— ^See TfiBIR TlTLSS, X. DEPOSITIONS. XL WITNESS. a. PRIVILEGE. b. CREDIBILITY. C. HOW AFFECTED BY INTEREST. aa. Co-Defendant. bb. Accomplice, cc. Slave. d. RE-EXAMINATION. e. MILEAGE. XIL COSTS. Xm. MISNOMER. XIV. PRINCIPAL AND ACCESSORY. XV. COURTS— TERMS OF. XVI. APPEAL. XVIL BILL OF EXCEPTIONS. XVIII. ERROR. XIX. SCIRE FACIAS. XX. PRACTICE IN SUPREME COURT. CRIMINAL LAW. I. 211 I , f -i > ', ' L CRIMES. 1 -, . -' a. |AD0LTBBr AJID LEWDNESS. 1. An indictmeTit must state all the circumstances which enter into the defi- nition of the offense in the statute, so as to bring the defendant precisely within it ; and a defect in this particular is not cured by the general conclusion, " con- trary to the form of the statute." (See R. S. 1835, 206, § 8.) The State v. Helm, vi. 263. -2. A count, however, which charges the offense in the precise words of the statute is sufficient. Ibid. 3. But it is not sufficient to charge the defendant generally, in the words of the statute, with being guilty of "open, gross lewdness and lascivious behavior," by then and there publicly cohabiting with one F., (fee. The charge should be thus : " by publicly, lewdly and lasciviously abiding and cohabiting with, &c." Dameron v. The State, viii. 494. 4. An indictment under that statute which charges the offense as committed on a certain day, is sufficient, without a continuando, although evidence of a single act of criminal intercourse might not be sufficient to establish the offense al- leged. Hinson v. The State, vii. 244. 5. An indictment of a married man, for lewdly and lasciviously abiding and cohabiting with a female, must state that the parties lewdly and lasciviously abided and cohabited " with each other," in the words of the statute. (R. S. 1845, 400, § 8.) The State v. Byron, xx. 210. 6. And an indictment against a man and woman, which charges that they were " guilty of open, gross lewdness and lascivious behavior, by publicly, lewdly and lasciviously abiding and cohabiting with each other," &c., in the words of the statute is good, although it does not state whether they were man-ied or unmar- ried. The State v. Bess, xx. 419. The State v. Wilhight, xx. 422. I. The declarations and admissions of the defendant are competent evidence to prove that he was a married man at the time of the alleged adultery. The State V. McDonald, xxv. 176. b. ARSON. ' 8. In an indictment under the statute, for setting fire to a dwelling-house in which there was at the time a human being, (R S. 1845, 354, § 1,) it is not necessary to allege the name of the person. The State v. Aguila, xiv. 130. 9., An indictment charging tliat the defendant "did set (omitting the word " fire,") to, and the same house then and there, by the spreading of such fire, did feloniously, wilfully and malicipusly burn and consume," is sufficient. Polsten y. The State, siv. 463. C. ASSAULT. aa. Assault to commit Manslaughter. 10. An assault with intent to commit manslaughter is an indictable offense under the statute, (R. S. 1835, 171, § 34,) and is sufficiently described in the indictment as an assault with intent to kill. The State v. Johnson, iv. 618. II. But an assault with intent to wound is not indictable. Ibid. 212 CRIMINAL LAW. L 12. And where an indictment framed under this statute charges that the assault was made with a knife, and the wound inflicted therewith was termed a stab — Held, that the word stab was used in its popular and not in its technical sense. Ruby v. The State, vii. 206. bb. Assault to Kill, 13. An indictment under the statute, (R. S. 1835, l7l, § 31,) which charges that the defendant " feloniously, unlawfully and with malice aforethought, did shoot," &c., is bad. It should have charged in the words of the statute, that the offense was committed " on purpose and of his malice aforethought." In such an indictment it is suflBcient to charge the intent in the words of the statute, without alleging that the act was done " with intent feloniously to kill," &c. The State v. Comfwt, v. 357. 14. But the indictment must aver that the assault was with a deadly weapon. The State v. Jordan, xix. 212. 15. An indictment under the statute (R. S. 1845, 350, § 34,) for an assault upon one J. C, with intent to kill, charging that the defendant, " with a certain gun, then and there loaded with gunpowder and divers leaden balls, which said gun he, the defendant, then and there had and held in his hands, to, against and upon the said J . C, and then and there did unlawfully, feloniously, on purpose, and of his malice aforethought, the said gun did cock, raise and present, with the intent then and there unlawfully, feloniously, and of his malice aforethought, the said J. C. to shoot and kill ; and that the said defendant would have executed his said purpose and intent had he not been prevented and intercepted from so doing, contrary," &c., is sufficient. The State v. Greenhalgh, xxiv. 373. 16. And an indictment founded on this statute, charging an assault with a loaded gun, with intent to kill, is not rendered defective by an omission to state the manner of the assault or the mode in which the gun was used or attempted to be used. The State v. Chandler, xxiv. 371. 17. So an indictment under the statute, (R. S. 1855, 565, § 35,) charging that the defendant feloniously assaulted C. H. with a loaded pistol, and then and there with said pistol feloniously, &c., did shoot said C. H., with the intent to kill him, is sufficient. The State v. Vaughn, xxvi. 29. 18. A. was indicted for an assault upon B., with intent to kill. A. had previ- ously written an obscene letter about his own wife, the mother-in-law of B., and which provoked the latter to make the first assault — Held, that this letter was inadmissable as evidence against A. The State v. Williamson, xvi. 394. 19. Where A. is charged with an assault upon B. with intent to kill, remarks or threats affecting A., made by B. to a third party before the assault, are not admissible in evidence in A.'s behalf; especially when it does not appear at what time they were communicated to him. The State v. Jackson, xvii. 544. 20. Declarations of B., some months after the assault, in palliation of A.'s guilt, are inadmissible. Ibid. 21. Evidence of B.'s general bad and dangerous character is inadmissible, he being unoffending when assaulted. Ibid. CRIMINAL LAW. L 213 22. Evidence of threats made by B. is inadmissible, if time enougb had elapsed for the blood to cool. Ibid. 23. On a charge of assault with intent to kill, an instruction which so defines the crime as to exclude all consideration whether the assault was committed under circumstances of provocation or in self-defense, is erroneous. The State v. Williamson, xvi. 394. 24. There may be an assault with intent to kill, although there is no striking or wounding ; and in such case it would be error to instruct the jury that if the defendant might have struck and did not, they should find for the defendant. 7%e State v. McClure, xxv. 338. 25. If one having a gun in his hands raises it to a level and directs it towards, but not directly at, another, and threatens to kill him if he advances in a certain direction, it wUl constitute an assault ; it is not necessary that the gun should be raised to the shoulder. The State v. Epperson, xxvii. 255. d. BAWDY HOUSE. 26. The wife, as well as the husband, may be indicted for keeping a bawdy house, and they may be indicted jointly. The State v. Bents, xi. 27. See Queen v. Williams, 1 Salk., 384. 27. Upon the trial of an indictment for keeping a bawdy house so as to become a common nuisance, it is competent to prove the character of the women who live and are lodged therein, and of the men who frequent it, and their behavior while there, and also the efi'ect of the establishment upon the peace and good order of the neighborhood. Clementine y. The State, xiv. 112. 28. And the refusal of witnesses who have frequented the house to answer questions in reference to the conduct of the inmates and visitors while there, upon the ground that they would thereby degrade themselves, may be taken into consideration by the jury in making up their verdict. Ihid. 29. But it seems that a house cannot be proved to be a brothel by common reputation. Loehner v. Home Mutual Ins. Co., xvii. 24 Y. 30. It is not necessary that the name of the prosecutor should be indorsed on an indictment for keeping a bawdy house. The State v. Bean, xxi. 267. e. BDKGLART. 31. An indictment for house-breaking, under the statute, (E. S. 1845, 356. § 16,) must specify the manner of breaking, so as to show, on the face of the indictment, the exact offense intended to be charged, and to exclude other offenses of house-breaking described by the statute. Conner v. The State, xiv. 561. See Infra, 232. f. COUNTERFEITING, 32. An indictment for counterfeiting current coin should charge the offense to have been committed " with intent to defraud," as the intent constitutes a part of the offense. Mattison v. The State, iii. 421. 214 (iRlMlkAL LAW. I. 33. The indictment charged the counterfeit money to be in iniita&ii of the " silver coin of the State pf Missouri " called a " Mexican dollar "^^Mefd'^ tliat tt'e words " of the State of Missouri " were descriptive of a material part of the offense, and could not be rejected as surplusage, and that they were' repugriaht' to tlie allegation that the coin counterfeited was a '' Mexican dollar," and that the indictment was therefore bad. The State v. Shoemaker, vH. 177. 34. Under the statute di 1835 (li. S. 1835, 18V, | 2l',) an indictment for pass- ing counterfeit bank notes, may describe them as " forged and' counterfeited," these words being synonymous. lioibs v. The State, i'x. 845. 35. And under § 8 of the same statute, (p. 185,) it is not necessary to aver that the bank had any legal existence. Ibid. 36. Thie statute which provides that " every person who shall counterfeit, &c., coin at the time current within tbe Staie," (R. S. 1835, 184, §' 7,)' has reference to coin current in the State at the time the counterfeit is made, and not to the time when it is passed. The State v. Shoemaker,, vii. 177. 37. If one passes counterfeit money, and another in any way aids and abets its passage, knowing it to be counterfeit, ail intent to defraud may be infteed, and both are guilty. The State v. Mix,x'v. 153. 38. After having shown that the defendant had passed a! bank note which was counterfeit, as charged in the indictinent, evidence is adikiissible to' show that be had also passed other counterfeit bank hotfes of a similar kind to other persons it different times, before and subsequent to the indictment, in order to establish guilty knowledge. Ibid. 39. On an indictment for forgery in the second' degrefe, (uttering forged writing or counterfeit coin,) under the statute, (R. S. 183'5, 187, § 21,) the jury found the defendant guilty as charged in the indictnleiit^jEreW, that it was not necessary for the jury to specify in their verdict the d'egree of the offense of which they found the defendant guilty, since the defendant coMd not be cdnvict- ed of forgery in a less degree than that alleged in tHe indictment. The State v. Shoemaker, vii. 177. See Infea, 64, 66. g. ORUKLTT TO ANIMALS. 40. An indictment under the statute prohibiting cruelty to animals, (E. S. 1845, 406, § 38,) charging that the defendant tied brush or boards to the tail of a horse, unaccompanied with averments declaring the effect of the act, is insuffi- cient. The Statu v. Pugh, xv. 309. h. CRUELTY TO SLAVE. 41. In an indictment under the statute, (E. S. 1845, 406, § 39,) for inhuman- ly beating a slave, it is not necessary to set forth the name of the owner of the slave. Qrove v. The State, x. 232. i. DESTRUCTION OF A DWELLING HOUSE. 42. The unlawful destruction of a dwellfng hbiise, iii Ihfl peSifceable pokeSSifen of another, is an offense indictable kt common law, and i^ not enlbraced iti the CRIMINAL LAW. I. 215 act of January, 1831, making assault, battery, &c., not indictable. (2 Ter. L., 2T1, §, 1.) The State v. Wihm, iii. 125. The State v. Morris, iii. 127. k. DISCLOSURES BY GRAND JUROR. 43. A disclosure by a grand juror of the names of witnesses wto testified before the jury, and the subject matter about which they testified, is not an offense within the provisions of the statute, (R. S. 1835, 480, § 17.) The State V. Brewer, viii. 373. 1. DISTURBANCE OF A NEIGHBORHOOD OR FAMILY. 44. The word "such," in the statute, (R. S. 1835, 204, § 15,) rejected as a clerical inaccuracy. The State v. Beasley, v. 91. 45. The name of the prosecutor need not be indorsed on an indictment under the statute relating to disturbing the peace of a family or neighborhood in the night time, (R. S. 1835, 204, § 15,) since such misdemeanor is not a "trespass against the person or property of another." (See R. S. 1835, 481, § 22.) The State V. McOourtney, vi. 649, explained. The State v. Moles, ix. 685. 46. In an indictment for disturbing the peace in the night time, under the statute, (R. S. 1845, 396, § 15,) a married woman, who has been abandoned by her husband for five years, may properly be charged as the head of the family whose peace was disturbed. The State v. Slater, xxii. 464. m. DISTURBANCE OF PUBLIC WORSHIP. 47. An indictment under the statute (R. S. 1845, 404, § 28,) which charges that the defendant did " wilfully and contemptuously disturb a congration of people met for religious worship," &c., is bad, since " congration " is not an abbreviation in common use, or a word known to the language. The State v. Mitchell, XXV. 420. 48. Ajud an indictment undei; this statute charging that the defendant " did disturb a congregation of people then and there met for religious worship, by then and there making an assault upon one H., so near to the place of worship of s^id congregation of people as to disturb the order of the meeting, contrary," &c., is insufiicient. The State v. BanJchead, xxv. 558. 49. An indictment under the statute, (R. S. 1855, 630, § 30,) charging that the defendants unlawfully did disturb a congregation and assembly of people met for religious worship, by wilfully behaving in a rude and indecent manner, and using profane discourse within the place of worship of said congregation, is bad ; the offense should be charged to have been done wilfully, maliciously, or contemptu- ously. The State v. Hopper, xxvii. 599. n. DUELLING. 50. In an indictment for bearing a challenge to fight a duel, it must appear Irom the evidence that the offense was committed within the jurisdiction of the court. Gordm, v. The State, iv. 375. 216 CRIMINAL LAW. I. EMBEZZLEMENT. 61. An indictment charging that the defendant, "an agent of a private com- pany," embezzled certain goods entrusted to him as such agent, is bad, under either § 40 or § 42 of the statute. (R. S. 1835, 179.) ITamuel v. The Staie,\. 2Q0. 62. An indictment against a ticket agent of a raihoad, founded on the statute, (R. S. 1856, 430, § 37,) need not allege a neglect or refusal on the part of the defendant to pay over on demand the moneys, &c., alleged to have been con- verted. The State v. Porter, xxvi. 201. 63. Under such indictment, it is competent for the prosecution to show the course of business pursued by the defendant and required by the rules of the company, by introducing in evidence duplicate blank returns used by the ticket agents of the company ; the prosecution is not bound in such case to resort to the blank returns actually filled up and transmitted by t!he defendant, as agent, to the treasurer of the company. Ibid. 54. And it is not necessary that the prosecution should prove, by direct and positive evidence, that the conversion charged is without the consent of a rail- road corporation, the alleged master or employer. Ibid. 65. The words " belonging to any other person," in the statute, (R. S. 1855, 579, § 89,) mean any other person than the officer, servant, &c., charged with the embezzlement. Ibid. See Infra, 233. 56. In an indictment under the statute (R. S. 1825, 304, § 70,) for snfiering an escape, the warrant of commitment therein set out need not describe the offense charged against the party who, had escaped with that certainty which is required in an indictment. Lilly v. The State, iii. 10. q. FALSE PRETENSES. 67. Under the statute relating to the obts^ining of moneys, &c., by means of false pretenses, (1 Ter. L. 216, § 29,) it was held, that the word "effects" in the statute embraced bills of exchange, the obtaining of which by false pretenses is an indictable offense, and that the indictment is well laid which charges that the defendant obtained bills by pretending he had slaves, which he sold for said bills, when in fact he had no slaves. The State v. Newell, i. 248. 58. It is not suflBcicnt for an indictment to charge the obtaining of money "by color of a false pretense." The word " color," used in the statute, (R. S. 1845, 363, § 49,) applies to the words "false token or writing," and not to the clause following them. The State v. Chunn, xix. 233. 59. Where A., claiming to be the owner of a slave, sells her with warranty of title, this is not such a false pretense as is embraced in the statute. (R. S; 1845, 363, § 49.) Ibid. r. FELONY DEFINITION OF. 60. A felony, under the statute, (R..S. 1836, 216, § 36,) is an offense for which the party, on conviction thereof, may be imprisoned in the penitentiary, and not CRIMINAL LAW. I. 217 simply where he must be so imprisoned. Johnston v. The State, vii. 183. In- gram, V. The State, vii. 293. 61. And an oflFense punishable otherwise than by death, or imprisonment in the penitentiary, is not a felony within the meaning of this statute. Nathan v. The State, viii. 631. 62. An ott'ense which is made felony by the statute, whether it were a felony at common law or not, must be charged to have been committed feloniously. The State v. Murdoch, ix. 730. S. FKAUDULBNT CONVEYANCE. 63. An indictment under the statute, (R. S. 1845, 364, § 54,) for fraudulently mortgaging premises previously conveyed, must allege the time and place of com- mitting the offense. The State v. Welker, xiv. 398. t. FOEGERT. 64. A bank note in these words, " The President, Directors, and Company o^ &c., will pay, &c.," signed by the President and Cashier, is properly described, in an indictment for forgery, as a promissory note. Hohhs v. The State, ix. 845. 65. A county warrant is such an instrument or writing as may be forged, within the meaning of the statute. (R. S. 1845, 371, § 16.) The State v. Penly, xviii. 445. 66. And where a party is charged with altering or forging a county warrant, an indictment is sufficient which alleges that he falsely altered and forged the warrant, &o., intending to defraud, &c., setting forth the warrant in hoec verba, without alleging, in the words of the statute, that it was an " instrument or writing, being or purporting to be the act of another," &c., &c. Scott, J., dis. Ibid. See SuPBA, 32-39. U. GAMING. aa. Setting up or Permitting Oambling Device. 67. An indictment under the statute, (R. S. 1835, 208, § 17,) is not vitiated by an omission of the words " for money or property," in describing the device that was permitted to be set up ; provided they are used in describing the games that were to be played on such device. The State v. Mlis, iv. 474. 68. Charging the offense in the alternative, following the words of the statute is not fatal when the descriptive words in the statute are synonymous. Ibid. 69. It is unnecessary to allege by whose permission the betting, gambling, &c., was done, the proprietor of the house where the device was kept being responsi- ble for the use made of it. Ibid. 70. If the offense charged is described in the words of the statute, it is suffi- cient. The State v. Mitchell, vi. 147. 71. An indictment under the statute, (R. S. 1845, 401, § IS,) for keeping a gaming table, charging that the defendant " did keep a certain gambling device, (fee, called a faro-bank, and did then and there induce idle persons to play at 218 CRIMINAL MW. I. said gambling device for money," is not double; the acts alleged constitute but one offense. The State v. Ames, x. 743. 72. And in an indictment under this statute for enticing and permitting! per- sons to play upon a gambling device kept % the defendant, it is not necessary to allege that money or property was bet, won or lost. An indictment which follows the language of the statute is sufficient. The State v. Fulton, xix. 680. 73. So an indictment' which charges the defendant with permitting a "gam- bling device," instead of a "gaming device," is sufficient. The State v. Mlsm, xix. 393. 74. And an indictment which charges the defendant with pertnitting a gaming device to be " set up and used," is not bad for duplicity. The State, v. Fletcher, xviii. 426. 76. The game called "loto" is a "gambling device," within the meaning of the statute, (E. S. 1825, 310, § 89,) but in order to constitute the offense de- scribed in that section, money or property must have been stated and won or lost upon the results ol the games of chance played. Lowry v. The State, i, 722. 76. So permitting cards to be used for gaming purposes is an offense under this statute. The State v. Furdom, iii. 114. Fubanks v. The State, v. 450. 77. And are a gambling device within the meaning of the statute. (E. S. 1846, 401,. § 16.) The State v. Herryford, xix. 377. 78. Rondo is a game of chance within the meaning of this statute. Glascock V. The State, x. 508. bb. Betting. 79. In an indictment under the statute, (Gey. Dig. 427, § 4,) for betting at a faro bank, it is not necessary to set out the particular nature of the gaitne, nor the name of the person with whom the bet was made. The State v. Ames, i. 524. 80. And it is sufficient to prove that the defendant bet any piece of money, without showing its denomination. The State v. Douglass, i. 527. 81. In an indictment under the statute for gaming, (R. 8. 1835, 208, § 16,) if the offense charged be described in the words of the statute, it is sufficient Spratt V. The State, viii. 247. 82. And an indictment for betting on any game prohibited by statute, need not allege that the game was played in the county in which the bet was made. The betting is the offense, and it matters not where the game was played. The State V. Kyle, x. 389. 83. An indictment under the statute, (R. S. 1845, 402, § 16,) charging that the defendant did, on, which the children would become ultimately entitled, she held as trustee for them ; that, although she might pay over to each child, on its arriving at mar jority, its share of the property, yet she could not be compelled so to pay over ; that such payment, if it could be enforced at all, must be in a court, of equity. Hose V. McSose, xxvi. 590. VII. RESTRAINT OF MARRIAGE. 30. A. devised to his son and daughter, in equal moieties, a tract of land, with the provision, that " if his said daughter should marry, or die," the land should belong exclusively to the son — Held, that the condition attached to the estate of the daughter was in restraint of marriage, and therfore void. Williams v. Cow- den, xiii. 211. 31. A devise by a husband to his wife, " during her natural life or widow- hood," is not against public policy as in restraint of marriage. An estate so de- vised is terminated by the marriage. Walsh v. Mathews, xi. 131. Dumey r. Schwffler, xxiv. IVO, commenting upon and explaining, Walsh w. Mathews, -n. 131, and Williams v. Oowden, xiii. 211. Dumsy v. Sasse, xxiv. 111. See Commonwealth v. Hauffer, x. Penn. State B. 350. DOWER. I. WHO ARE ENTITLED TO. II. WHEN ENTITLED. III. OF WHAT ESTATE. IV. PROCEEDINGS TO OBTAIN, AND ASSIGNMENT. V. HOW BARRED OR NOT. a. BY MARRIAGE CONTRACT OR SETTLEMENT. b. BY TESTAMENTARY PROVlSiaN. DOWER, m. 277 C. BT CONTETANCE. d. BY EXECUTION SALE. e. BT ADITLTBRT. f. BT ADMINISTRATION SALE, g. BT PAKTITION SALE. VI. VALUATION AND DAMAGES. Vn. ELECTION. VIIL RELINQUISHMENT. JX. SPANISH LAW. L WHO AEE ENTITLED TO. L Under the acts of January 25, 1817, (l Ter. L., 509, § 1,) and January 11, 1822, (R S. 1825, 326, § 1,) the widow of an alien is entitled to dower. Stokes V. O'Fallon, ii. 32. 2. Where a party induces a woman to marry him, by fraudulently concealing the fact that he has a wife living, his estate is liable, in assumpsit, for the value of the services of such woman while residing with him, but not as for the value of the dower. Higgins v. Breen, vs.. 493. II. WHEN ENTITLED. 3. A., prior to his marriage, conveyed certain lands in trust for such use and such person as he should afterwards appoint by deed or will, and, in default of and until such appointment, to the use of himself and heirs, and afterwards by his will devised all his real estate to his children by a former wife — Held, that his widow was dowable in the land in question, the provision in the will being considered a devise and not an appointment. Link v. Edmondson, xix. 487. See cure's case, 6 Coke — t Kent, 334-5. 4. Where real estate was bought by a partnership as partnership property, and afterwards conveyed in payment of a partnership debt, the widow of one of the partners, the firm being insolvent, is not entitled to dower. Duhring v. Buhring, XX. 174. HI. OF WHAT ESTATE. 5. Neither § 5, of the act of January 25, 1817, (1 Ter. L. 510,) nor the act of February 21, 1825, (R. S. 1825, 362,) repealed § 73 of the act of January 21, 1815, (1 Ter. L. 418,) giving to widows the right to remain in possession of the mansion of their deceased husband, and the plantation connected with it, until the assignment of dower. Stokes v. McAllister, ii. 163. 6. Ejectment is the appropriate remedy where the widow has been wrongfully dispossessed, the action^for damages given by § 73 of act of 1815, (1 Ter. L. 418,) being merely cumulative. Ibid. 7. And this right of the widow is assignable. Ibid. B, Where the husband dies, leaving children by a former wife, his widow, under 278 DOWER. IV. the statute of February 25, 1825. (R S. 1825, 332, § 1,) can be endowed of only one-third interest in a slave during her natural life, although such slave came to the deceased husband through her, and he died without issue by her. Griffith v. Walker, iii. 191. 9. The widow's right of dower in slaves as fixed by the act of February 5, 1825, (R. S. 1825, 332, § 1,) is not modified by the act of February 19, 1825, (R. S. 1825, 790, § 1,) relating to wills. Davis v. Davis, v. 183. 10. If the husband die seized, the widow is entitled to be endowed of one- third of the land, according to the value thereof at the time the dower is assign- ed, as well against a purchaser under a sale by order of court, as against the heir ; and, to recover damages from the death of her husband, no demand is necessary. Tompkins, J., dis. Sankin v. Oliphant, ix. 237. 11. The assignment of dower in leasehold estates un^er the statute is governed by the same rules which prevail in estates of inheritance. Ibid. 12. A widow tates her dower in her husband's estate, as against those whose rights to such estate originate at the same time with her right to dower, accord- ing to the law in force at the death of her husband, but as against those who have specific rights against such estate prior to the death of her husband, her right to dower will depend upon the law in force at the time such rights origina- ted. Kemnerly v. Missouri Insurance Company, xi. 204. 13. Under § 2 of the statute, (R. S. 1845,430,) a widow with an only child is entitled to only one-half the slaves and other personal estate belonging to the husband at the time of his death, including advancements to the child in the husband's lifetime, McBeynolds v. Gentry, xiv. 495. 14. By the statute, (R. S. 1835, 228, § 2,) the widow of a husband who died, leaving a child or children, was entitled, absolutely, to a share in the slaves and other personal property equal to the share of a child of such deceased husband, after the payment of his debts ; and, upon her marriage of a second husband, he was entitled to such property, upon reducing it to possession during coverture. Wall V. Coppedge, xv. 448. 15. Under the statute, a widow is entitled to dower in no other personalty than that of which the husband was owner at the time of his death. McLaugh- lin V. McLaughlin, xvi. 242. 16. Under the act of Congress of March 3, 1843, (5 U. S. Stat., 619,) a widow is not entitled to dower in land to which her husband had a mere right of pre- emption which had not been consummated before his death. Wells v. Moore xvi. 478. 17. On the death of the husband, without children, the increase of a female slave that came to the husband by the wife, remaining undisposed of at his death, passes to the widow with the mother, under the statute, (R. S. 1845, 430, § 3.) Herndony. Herndon, xxvii. 421. See Administration, XXI. IV. PROCEEDINGS TO OBTAIN, AND ASSIGNMENT. 18. Where a widow is in possession of real estate, and rents it, she cannot have dower assigned in a proceeding against her tenant, although he refuse to DOWER. V. 279 pay rent or quit possession. She must resort to the remedy of landlord against tenant. Collin v. Wheldon, i. 1. 19. Under the statute, (1 Ter. L. ISV,) damages for deforcement of dower can be recovered under a petition praying for assignment of dower and damages for the deforcement ; and an allegation in the petition that the defendant claimed title to the premises is not necessary. Ibid, 20. A petition for the assignment of dower, alleging that the husband died seized of the land, and that his estate was an estate of inheritance, sufficiently describes the character of the husband's title as a freehold of inheritance. Lecompts v. Wash, ix. 54V. 21. Where the verdict, upon the issues joined on several pleas in bar to a petition for dower, found that the petitioner had left her husband, and lived in adultery with one L., but not since February 5, 1825, and did not find whether the peti- tioner had been reconciled to her husband — Held, that the court could not render judgment on the verdict, but must award a repleader. Ibid. 22. On a petition for dower, although the widow wUl not be held to strict proof of title in the husband, to make out a prima facie right, yet, upon a plea of non seizin, she must either show title in the husband, actual possession, or that the defendant holds under the husband. Gentry v. Woodson, x. 224. 23. The widow is neither tenant in common nor joint tenant with the heir or alienee. She has only a right in action until dower is assigned. McClanahan V. Porter, x. 746. 24. Where the County Court makes an order, allotting to a widow dower in slaves, without the notice required by statute to the executor, administrator, and other persons interested, (Acts 1836-7, 60,) it is void. No presumption that such notice has been given will arise where the record is silent. Peake v. Redd, xiv. 79. 25. The yearly value of the widow's dower in real estate not susceptible of division, where she accepts an annual sum in lieu thereof, under the statute, (R. S. 1845, 435, §§ 28, 29,) is its gross annual product, without the expenditure of money or labor upon it, after deducting charges to which it is subject, such as taxes and repairs. Riley v. Glamorgan, xv. 331. V. HOW BARRED, OR NOT. a. BY MARRIAGE CONTRACT OB SBTTLBMENT. 26. A liberal construction will be put upon settlements made as a substitute for dower. An ante-nuptial contract for jointure, made by adults, though it fail to comply with the statute requisites, may be, in equity, a good bar to dower. Logan v. Phillips, xviii. 22. 27. Under the statute of 1845, (R. S. 1845, 432, §§ 12, 13,) a settlement, whether ante-nuptial or post-nuptial, does not operate as a jointure, unless expressed to be in bar of dower. Perry v. Perryman, xix. 469. 28. If the ante-nuptial provision for the wife does not consist of specific prop- 280 DOWER, V. erty, but rest? only upon the undertaking of the husband to pay or to restore money, or in things consumable to be restored in value, equity will see the pro- vision executed before it deprives her of dower, at least, where the daun to dow- er is resisted by volunteers. Qucere — Whether the same strictness would be held in the case of purchasers, Johnson v. Johnson, xxiii. 561 . b. BY TESTAMENTARY PROVISION. 29. A bequest of a slave to a widow does not, under the statute, (R. S. 1845, 431, § 10,) bar her dower in the real estate of the testator. Halbett v. Halbert, xix. 453. 0. BY CONVEYANCE. 30. A deed made by the deceased, with intent to defeat the widow's right of dower in slaves, can have no more eflFect than if its provisions were embodied in a will. Chancery will hold it void. Tompkins, J., (iw. i)aw v. J9oW, v. 183. Stvne V. Stone, xviii. 389. d. BY execution sale. 81. A widow whose husband died in 1840 has no right to dower inlands which had belonged to him, but had been sold under execution in 1827, on judgment rendered in 1824, the law then in force barring the Widow of dowef in land sold under execution. (See R. 8. 1825, 332, § 1.) Kenntrly v. Missouri Ini. Co., xi. 204. 32. And a special execution issued on a judgment rendered in a suit against the husband alone, to foreclose an equity of redemption under a mortgage exe- cuted by the husband and wife, and accompanied by the wife's acknowledgment and relinquishment of dower, bars the wife's dower claimed under the act 6f 1825, (R. S. 1825, 332.) RiddicTe v. Walsh, xv. 519. e. BY ADULTERY. 33. The statute of Westminster 2, making adultery and desertion by the wife a bar to dower, was not introduced into the territory of Missouri by the act ©f 1816, (1 Ter. L. 436,) adopting the common law. Its provisions were incorpo- rated into the statute law of the State in 1825. (R. S. 1825, 334, § 7.) Le- compte V. Wash, ix. 547. See Supra, 21. f. BY administration SALE. 34. Under the statute of 1825, (R. S. 1825, 832, § 1,) an administrator's sale for the payment of debts, bars the widow's dower in the property so disposed of. Mount y. FaZZe, xix. 621. g. BY partition sale. 36. A widow's dower is devested by a sale in partition during coverture, although she is not joined with her husband as a party, Leonard, J., dis. Lee V. Lindell, xxii. 202. See Infra, 48. DOWER. Vn. 281 VI. VALTTATION AJJD DAMAGES. 36. In estimating the damages in case of dower, the jury are to consider the value of the property, not merely up to the institution of suit, but up to the time of trial. McClanahan v. Porter, x. 746. 37. Where lands have been aliened during the life of the husband, the widow is entitled to dower in such lands, according to their value at the time of the alienation, and not according to the increased value of the land since the ahenation, hy means of the labor or expenditures of the alienee. And so of a purchaser under a sale on execution against the husband. Ibid. 38. Where lands, of which the husband died seized, descend to the heirs, the widow is entitled to dower according to their value at the time of the assign- ment, with damages for their detention from the death of the husband. Ibid. 39. The widow is entitled to damages, not as of any particular period, but as of the value of the property at the different periods in which she is deprived of her dower. In case of the heir from the death of her husband; in case of an alienee, from the time of her demand until the assignment of dower. Ibid. 40. Where lands aliened by the husband have depreciated in value from any cause, the widow is entitled to dower according to the value at the time of the assignment of dower, and not according to the value at the time of the alien- ation. Ibid. 41. So where they have appreciated in valoe from extrinsic causes not con- nected with the labor or expenditures of the alienee, the widow takes according to the value at the time of the assignment. Ibid. 42. Thus, although the widow gains nothing by the improvements of the alienee, she suffers loss by his waste or neglect, depreciating the value of the property. Ibid. VII. ELECTION. 43. A widow is entitled to dower under the statute, (R. S. 1835, 228, § 1,) unless she elect to take under § 3 of the same act. Her right is absolute, until devested by election. Hamilton^. CNeil, ix. 10. 44. And it is not necessary that a widow should file a renunciation as provided in § 10 of that act, to entitle her to be endowed under § 1, except in cases in which real estate has been devised to her. Ibid. 45. A widow must make her election of dower in six months, to entitle her to take under the statute. (R. S. 1835, 228, §§ 3, 5, 6.) Kemp v. Holland, X. 255. 46. A widow having elected to take the personal estate which came to her husband by means of the marriage, under the statute, (R. S. 1835, 228, § 3,) in Hen of dower, cannot have the real estate of her husband sold to pay his debts so as to exempt the personal estate thus selected by her. Chinn v. Stout, x. 709. 47. Where a widow elected, under the statute, (K. S. 1845, 430, §8 3, 6 ) to take one-half of all the property belonging to her husband at the time of his death, absolutely — Held, that she could not claim, under this election, any right 282 DRAMSHOPS. to land disposed of by her husband before his death, even though more has been disposed of than ought to have been. Homsey v. Casey, xxi. 545. 48. An election made by a widow under the statute, (E. 8, 1845, 430, 8 3,) to take one-half of the real and personal estate absolutely, will operate as a bar to dower under § 1 of the same act. Scott, J., dis. Same case, xxiii. 371. 49. In order to entitle a widow, under the statute, (E. S. 1845, 430, § 2,) to a share of slaves equal to the shaire of a child of the deceased husband, it is not necessary that she should make an election so to take. Haydm v. Haydm, xxiii. 398. VIII. RELmQUISHMENT. 50. The right of the widow to $200 worth of personal property, under the statute, (E. 8. 1846, 11, § 30,) will pass by a deed of all her "right, title, and interest of dower in said estate," and that without reference to the question whe- ther there is or is not a consideration for the assignment. McFarland v. Bojie, xxiv. 156. See Husband and Wifk, 84, 85. IX. SPANISH LAW. 51. The Spanish law of community did not prevail in this State after the taking effect of the territorial act of July 4th, 1807. (1 Ter, L. 128, §§ 6, 15.) The dower given to the surviving wife, by that act, was in lieu of her interest under the Spanish law. Eiddick v. Walsh, xv. 519. 52. Under the Spanish law, property, real and personal, acquired or pur- chased during marriage, enters into community, and at the death of the hus- band, one-half goes to the wife. Picotte v. Cooley, x. 312. [Avvirmis a lAndell V. McNair, iv. 380.] See Estoppel, 13 ;. . . .Husband and Wife, 43. DRAMSHOPS. I. LICENSE. II. STATUTES. III. PEOCEEDINGS UNDEE THE STATUTE. a. WHAT constitutes the offense peohibited. b. indictment. C. EVIDENCE. d. AGENT. e. DEFENSE, f. VARIANCE. DRAMSHOPS. III. 283 I. LICENSE. 1. A license to sell intoxicating liquors at one place is no defense to an indict- ment for selling at a diflferent place, although the two bars are in adjoining buildings, and there is a communication between them. The State v. Fredericks, xvi. 382. * 2. Under the amendatory act of 1851, (Acts 1850-1, 21Y, § 3,) all kinds of feiTuented liquors are intoxicating drinks within the meaning of the act of 1845, relating to groceries and dramshops, and no person can sell them without a license, even though they are of domestic manufacture, without making himself liable to indictment. The State v. Lemp, xvi. 389. 3. A city ordinance cannot abridge the rights of the holder of a previously issued tavern license, in regard to the sale of intoxicating liquors. City of Han- nibal V. Chiyott, xviii. 515. 4. A tavern license issued by the county court cannot authorize the grantee to sell liquor within the limits of an incorporated city, in violation of an ordi- nance previously passed in pursuance of a power conferred by the charter. City of Independence v. Noland, xxi. 394. 5. A license to sell liquor at one place in a specified block in the city of St. Louis, will not authorize a sale in any other block. The State v. Hughes, xxiv. 147. 6. Nor will a license justify a sale prior to its date. Ibid. II. STATUTES. 7. Section 27 of the act relating to groceries and dramshops, as printed in the R. S. 1845, p. 545, held to be the correct exposition of that act, and to authorize the sale of spirituous liquors in quantities not less than one quart, at the distance of one mile from a town or village, and not to be drank at the place of sale. Bledsoe v. The State, x. 388. 8. The act of March 10th, 1849, (Acts 1848-9, 56,) which repealed the act of Feb. 16th, 1847, (Acts 1846-7, 59,) amendatory of the statute relating to "inns and taverns," (R. S. 1845, 583,) left all the provisions of the act of 1845 in full force, and thereafter the holder of a tavern license was permitted to sell intox- icating liquor in less quantity than one quart. The act of 1 847 was not a repeal- ing, but an amendatory act, and therefore the provision of the statute which provides that the repeal of a repealing act shall not revive the original, (R. S. 1845, 694, § 1,) does not apply. City of Hannibal v. Chiyott, xviii. 515. III. PROCEEDINGS UNDER THE STATUTE. a. WHAT CONSTITUTES THE 0FFBN8B PROHIBITED. 9. A physician who administers intoxicating liquor in good faith as a medicine, upon his professional judgment, does not violate the statute, (R. 8. 1845, 542, § 1). The State v. Larrinore, xix. 391. Same case, xx. 425. 284 DRAMSHOPS. IH. h, INDICTMENT. 10. If an act which was not an indictable offense at common law, is prohi- bited by statute, and a particular method of proceeding is given by the statute (1 Ter. L. 730, § 7,) that method must be pursued, and an indictment will not lie, unless authorized by the statute. Journey v. The State, i. 428. 11. So where the statute specifies a "bill plaint or information," (E. S. 1835 292, § 8,) as the mode of recovering a fine or penalty, an indictment wiU not lie. The State v. Corwin, iv. 609. 12. Where, in an indictment under the act of 1825, (R. S. 1825, 660) several distinct acts of selling, on the same occasion, were alleged in one count, it was held that the several acts of selling constituted but one offense, and that the indictment was good. Storrs v. The State, iii. 9. 13. In an indictment for keeping a grocery without a license, under the statute, (Acts 1840-1, 82, § 1,) it must be averred that the liquors sold were " not to be drank at the place of sale," in pursuance of the words of the statute. The State v. Auberri/, vii. 304. 14. While the Act of March 18, 1835, (R, S. 1835, 315,) in relation to inns and taverns was in force, an indictment for dealing in wines, (fee, under the Act of February 16, 1841, (Acts 1840-1, 81,) in relation to groceries and dram- shops, should negative the existence of a license generally, or allege the absence of both a dramshop and an innkeeper's license, since, otherwise, it would not appear that the sale was not authorized by an innkeeper's license. The State v. Brown, viii. 210. JV^eales v. The State, x. 498. 15. And an indictment charging that the sale was without a license generally is good. The State v. Wishoa, xv. 503. 16. So an indictment, charging the selling of one pint of whiskey, without a dramshop, tavern, grocer's, merchant's or any other kind of license, sufliciently negatives the existence of a license. The State v. Owen, xv. 506. The State V. Hornheak, xv. 478. The State v. Sutton, xxv. 300. 17. So an indictment under the statute, (R. S. 1855, 683, § 1,) which charges that the defendant sold intoxicating liquors, to wit : one quart of whiskey, " without having any license for that purpose continuing in force during all that time authorizing him so to do," New Madrid location. Mitchell v. Tucker, x. 260. 9. A mortgagee may maintain an action of ejectment against the mortgagor, or those claiming under him. Waleop v. McKinney, x. 229. 10. Notice of location to the Surveyor General, and a survey of the land located, are sufficient to support an action of ejectment under the statute allow- ing such actions on New Madrid locations. (E. S. 1835, 234, § 2.) Napton, J., dis. Cabunne v. Lindell, xii. 184. See Laws, 37. 288 ' EJECTMENT. H. b. WHEN NOT MAINTAINABLE. 11. A. owned a tract of land in New Madrid county, whicTi lie conveyed to B. after it liad been injured by earthquakes. After that conveyance, a New Madrid certificate was issued to "A,, or his legal representatives," which certifi- cate B. conveyed by deed to C., and C. to D., who located it and sold the land on which it was located, and the purchaser brought ejectment to recover the land on which it was located — Held, that, as there was no transfer of the certificate by A. to B., B. was not the legal representative of A. with respect, to the certificate; that B., having purchased the land, was entitled in equity to have the certificate transferred to him, but that the legal right to locate it was in A., and therefore the action could not be maintained by the purchaser under B. HiehMan v. Gain, i. 499. 12. In 1'799 a concession and order of survey were gKintedby the Lieutenant CtoTernpr of Upper Louisiana to one B., of a lot in the town of St. Louis, for &« purpose of quarrying stone. No survey was ever made for the grantee under the concession — Held, that as there had been no survey, an action of ejectment could not be maintained under the act of January 2^3, 1816. (1 Ter. L: 465, § zy— Held,, also, tiiat B. having quarried stone on said lot prior to December 20, 180S, is not suflScient possession to bring his claim within the Act of Congres& of Jnae 1:3, 1812, eonfirming towm and village lots to the person in possession prior to Deeenaber 20, 1803.. Jonbs, J., dis. Clark v. Bmeeau, L 290. 13. The Lieutenant Governor of Upper Louisiana, in 1799, granted -to P, Chouiteau a. quantity of land, and directed tbse Siurveyor Gemeral to sutvey it when Ch©uteau should desire it, but reserving the right of the latemuient General to confirm the title — Held, that this concession did not effect a severance of the laad from the Bang's domain until an actual survey was made, and was not such a grant as was contemplated by the statute in relation to ejectments. (R. S. 1835, 234, § 2.) Ashley v. Cramer, vii. 98. 14. Nor was the recommendation of this claim by the commissioners, under the act of Congress of July 9, 1832, (4 U. S. Stat., 565,) such a " eonfirmaitioB made under the laws of the United States " as was intended by that statute. Ibid. 15. One will mot be allowed to recover property under a deed which does wKt include within its description the property claimied, although the party under whom he claims, holding by a deed with a similar description of the premfees, may hajve aequired title by adverse posses^oa or in some other manner. Men- Mnt V. Bilumentheil, xix. 496. 16. Although the statute allows an action of ^ectment to b» maiHtaimiied or defended uipon an entry with the register and receiver, yet it is only where the adverse party has not a better title; A patent is a better legai title than suet am entey. ffriffiih v. Ikerfdt, xvii, 31. [See 13 Fet. Eep., 486-498.] 17. Am executor or admiBistrator, as such, caimot maintain ejectment for lands of which the testator or intestate died seized. Bvurdyne v. Mmkm/, vii. 374. 18. Nor can an executor or administrator in such a case recover on thie ground of title in himself, since that would be a variance from the declaration. JMd. EJECTMENT. II. 289 19. Ejectment eannot be maintained against a minor npon the possession of his guardian. Spitts v. Wells, xviii. 468. C. PARTIES. 20. Tenants in common cannot join in an action of ejectment. Dube v. Smith, i. 313. Wathen v. English, i. 746. 21. A wife cannot be joined with her husband as defendant in ejectment merely for the reason that she lived with him upon the premises. Meegan \. Gunsollis, xix. 417. 22. If a female defendant in an action of ejectment marries while the case is pending, the plaintiff is not bound to make the husband a party unless the latter applies to be made such. Evajis v. Greene, xxi. 170. d. DISMISSAL. 23. Where, in ejectment, the person from or through whom the defendant claims title to the premises has, on motion of the defendant, been made a co- defendant, the plaintiff is not entitled to dismiss the suit as to such co-defend- ant. Sayden v. Stewart, xxvii 286. e. PLEADING. 24. The act of 1825, regulating ejectments, requires the plaintiff to allege not only that he is entitled to the premises, but that he is legally entitled to the im- mediate possession of them. (R. S. 1825, 343.) Jamison Y. Smith, iv. 202. 25. If a patent was obtained under such circumstances as would make the grantee in it a trustee for another, such circumstances must be set up in the answer to an action for the possession of the land with the same particuljuity that would be necessary in a bill in chancery. Carman v. Johnson, xx. 108. See Amendment, 19. f. evidence. 26. The certificate of the Register of the United States Land OflBoe, of a right of pre-emption, \s prima facie evidence of title against a New Madrid certificate and survey. Rector v. Welch, i. 334. 27. In an action of ejectment by M., a patent certificate of confirmation to the legal reipresentatives of M. is no evidence of title in M., nor will it be received in evidence in favor of M.'s legal representatives, without proof of their being such. Matingly v. Hayden, i. 439. 28. In an action of ejectment, where the plaintiff claims title under a patent from the United States, it is competent for the defendant to prove that the plain- tiff was dead at the time the patent issued. Collins v. Brannin, i. 540. 29. The certificate of the Recorder of Land Titles (See 4 U. S. Stat., 66, § 3,) is prima facie evidence of title, and dispenses with the necessity of proof of the fects upon which the recorder was required to issue his certificate. Macklot v. Duhreuil, ix, 473. 30. And a person whose title is only naked possession cannot defend against 19 290 EJECTMENT. II. the certificate by showing that the facts upon which the Recorder issued the cer- tificate did not exist, nor that the requisites of the statute were not complied with. [Hunter v. Hemphill, vi. 106, commented upon and explained.] Ibid. 31. In an action of ejectment for land sold under execution, brought against the defendant in the execution, the deed from the sheriff is valid, and may be read in evidence, although not recorded. Smith v. Willing, x. 394. 32. In an action of ejectment, it is competent for the plaintiff to prove that the defendant stated, at the time he executed the deed relied on by the plaintiff that the land conveyed was the same on which the defendant lived. Wilkenm, V. Moulder, xv. 609. 33. The plaintiff, in ejectment, offered in evidence, in support of his title, a transcript, filed in the Circuit CouH, of a judgment rendered before a Justice. He then offered an execution issued from the Circuit Court, which purported to be a judgment of the Circuit Court, and a sheriff's deed, under this execution, and reciting it — Held, that the execution and sheriff's deed were properly excluded. Blain v. Coppedge, xvi. 496. 34. An action was brought against parties in occupancy of a sixteenth section of land. Their answers admitted the land in dispute to be a sixteenth section — Held, that there was no necessity for producing the original survey. The State v. Fleming, xix. 607. 35. Where, in ejectment, the defendant denies the co-tenancy alleged by plaintiff, no stronger evidence of an ouster is required than in a case where no co-tenancy exists. Peterson v. Laik, xxiv. 641. See Justice of the Peace, 42. g. POSSESSION. 36. The plaintiff and one D. both claimed title to the premises in question. The latter, after having been in possession several years and made some improve- ments, took a lease from the plaintiff determinable on ten days' notice, and occu- pied thereunder for a year, when he abandoned the premises and sold out his improvements to the defendant, who went into possession under a lease fi:om D. — Held, in an action of ejectment, that the possession of the defeiidant was that of D. Ayres v Draper, xi. 648. h. DEFENSE. ST. Proof, by the defendant in ejectment, of the confirmation of a Spanish grant to his grantor, without showing a location, will not authorize the instruc- tion to the jury, that, if they believe the confirmation covered the land in dispute, they must find for the defendant. Waddingham v. Gamble, iv. 466. 38. Nor would it prove title out of the plaintiff to show that the land was, subsequently to a grant to him from the King of Spain, re-united to the king's domain by the Lieutenant Governor, the United States, who had all the title of the king, having confirmed the land to the plaintiff. Ibid. 39. The defendant in ejectment, under the statute, (R. S. 1835, 234, § 2,) as well as at common law, may defeat the plaintiff's action by showing title in a third person. Oumo v. Jarm, vi. 330. EJECTMENT. II. 291 40. But where the plaintiff claims under a sheriff's deed, the defendant, who was the debtor in the execution., will not be permitted to set up an outstanding title in a third person in defense, or give it in evidence in mitigation of damages. (R. S. 1835, 2.35, § 11.— R. S. 1855, 692, § 13.) Laughlin v. Stone, v. 43. 41. In order that a defendant may defeat a recovery in ejectment, by showing an outstanding title in a third person, such outstanding title must be a present subsisting and operative title, and such an one as the owner could recover on if he were asserting it in an action. McDonald v. Schneider, xxvii. 405. 42. The plaintiff executed his bond to H., by which he agreed to convey the land in question to him upon the payment of a certain sum on a specified day ; but providing, also, that if the money was not paid on the day stated, the bond should be void. H., in the meantime, and until failure to pay, to have posses- sion — Held, not sufficient t* establish an outstanding title, without proof of the payment of the purchase money on the day specified. Raymond v. Jewell, ix. 20. 43. A pre-emption right need not be proved up, and a certificate thereof ob- tained, to enable the party to defend in an action of ejectment. Allison v. Hunter, ix. 741. 44. The title of a purchaser under an execution, relates back to the time at which the lien attached, and he will be entitled to all the rights of the execution defendant at such time. Page v. Hill, xi. 149. 45. And if at the time the lien attached, the defendant in the execution was in possession, as against the purchaser under execution, the title of the defendant cannot be disputed, nor can an outstanding title be set up to defeat his recovery of the possession. Ibid. 46. But where the defendant in the execution had no possession at the time the lien attached, and had conveyed the land by deed, although the same be not recorded, his vendee will be deemed as holding adversely to him, and may dis- pute his title, or set up an outstanding title to defeat a recovery by a purchaser under the execution, although, as against the title of such purchaser, the unre- corded deed is void. Ibid. 47. The title of a mortgagee, after forfeiture, is such an outstanding title as will prevent a recovery in ejectment. Meyer v. Campbell, xii. 603. 48. A bona fide entry from the United States will defend as well as maintain an action of ejectment. Waller v. Von Phul, xiv. 84. 49. An outstanding title, in order to constitute a bar in ejectment, must be a subsisting one at the commencement of the suit. Norcum v. H'CEneh, xvii. 98. 50. A mortgage more than twenty years old is not such an outstanding title as will defeat an action of ejectment without any evidence in relation to the pos- session of the mortgaged premises, or of the present existence of the mortgage debt. Moreau v. Detchemendy, xviii. 522. 51. Where a defendant in ejectment relies in his answer upon a legal title, he cannot at the trial avail himself of an equitable defense. Kennedy v. Daniels xx. 104. 52. Where the plaintiff in ejectment shows that whatever title the defendant may have had has passed by mesne conveyances to himself, it is not competent for the defendant to set up an outstanding title in a third person. Mathews v. Lecompie, xxiv. 545. 29a ELECTION.— EMANCIPATION, I, 53. Under the practice act of 1849, an equitable defense may be mado to an action of ejectment. Hayden v. Stewart, xxvii. 286. See Corporation, 34. i. JUDGMENT. 64. The plaintiff in ejectment may enter a remittitur to avoid a new trial. McAllister v. Mullanphy, iii. 38. 55. In an action of ejectment, although the plaintiff claims the whole, he mat recover an undivided part. If he show himself entitled to an undivided interest, he can recover otly sUch undivided interest ; although the defendant should be a stranger to the plaintiff's title, he will hold the moiety recovered in common with the defendant. Gray v. Qivens, xxvi. 291. See Action, 46 ; . . . .Demand, 12 ;. . . .Interest, 8. III. BETTERMENTS. 56. A tenant, who disclaims the title of his landlord, cannot, if defeated, have improvements. McQueen v. Chouteau, xx. 222. See Boundary and Description, II ; .... Damages, 29 ; . . . . Forcible Entry and Detainer, 14. ELECTION. 1. The clerk and Justices who are required by the election law "to examine and cast up the votes given to each candidate," (R. 8. 1845, 449, § 21,) have no right to go behind the certificates of the judges and clerks of the election. Any error in their certificate can be corrected only by the tribunal authorized by law to determine such election, when contested. Mayo v. Freeland, x. 629. See Laws, 81. EMANCIPATION. I. BY STATUTE. II. BY WILL, ni. IN ANOTHER STATE. I. BY STATUTE. 1. A slave can be emancipated only by an instrument of writing executed in accordance with the statute. (R. S. 1836, 587.) Robert v. Melugen, ix. 169. ERROR. 293 II. BY WILL. 2. An instrument in the form of a will, under seal, attested by two witnesses, and acknowledged before the Circuit Court, but not probated, though inefiBca- cious as a will, for want of probate, may yet operate as a valid act of emancipation, under the statute. (R. S. 1845, 1019, § 1.) Schropshire v. Loudon, xxiii. 393. See Infka, 3. m. IN ANOTHER STATE. 3. The power to emancipate slaves in another slaveholding State must be shown to exist by the laws of such State, or it will be presumed that no such power exists ; and an authority to dispose of property by will does not include authority to emancipate a slave. Tompkins, J., dis. Bmnick v. Chloe, viL \Q*1. 4. The attestation of two witnesses is not necessary to a deed of emancipation in this State, made in pursuance of the act of Maryland of 1*752, when the eman- cipation is to take effect infuturo. Paca v. Dutton, iv. 3 71. 5. Under the laws of Kentucky, (in 1826,) where the common law prevailed, the mortgagor of a slave was the legal owner, and could emancipate her. Wash, J., dis. Milly V. Smith, ii. I'll. 6. The act of the court in receiving and determining the proof, or in taking the acknowledgment of a deed of manumission, under the Kentucky statute of 1798, win be regarded as a judicial act. Maria v. Atterberry, ix. 365. 1. And where such deed is executed and acknowledged by attorney, the re- cord need not show that the power of attorney was properly executed ; but the order of the court on the execution of the deed is conclusive of the sufficiency of the execution of the power. Ibid. See Fbatjdulbnt Conveyances, 4, 5. ERROR. L WHEN THE WRIT LIES. a. FROM PINAL JUDGMENT ONLY. b. ADMINISTRATION. C. ARREST or JUDGMENT. d. CORAM NOBIS. e. EXECUTION. f. FORECLOSURE. g. NEW TRIAL NON-SUIT CONTINUANCE. h. RETURN OF SUMMONS. i. SUSPENDING ATTORNEY. j. TORT. n. WHEN IT DOES NOT LIE. a. ADMINISTRATION. b, APPEAL PROM 4 JUSTICE. 294 ERROR. I. C. CHANGE OP VENUE. d. CIRCUIT COURT TO COUNTY COURT. e. DISMISSING A SUIT. f. DISSOLVING ATTACHMENT, g. IN FAVOR OF ONE NOT A PARTY. h. INJUNCTION. i. LOCATING COUNTY COURT. j. OVERRULING DEMURRER, k. QUOD PARTITIO FIAT. 1. REFUSAL TO ISSUE MANliAMUS. m. REFUSAL TO REVERSE A SATISFIED JUDGMENT, n. ROADS AND HIGHWAYS. O. STRIKING CAUSE FROM DOCKET, p. SUPREME COURT TO COUNTY COURT. III. WHAT THE WRIT EMBRACES. IV. ISSUE AND RETURN. V. ASSIGNMENT AND GROUNDS OF ERROR. VI. JUDGMENT IN COURT OF ERROR. I. WHEN THE WRIT LIES. a. FROM FINAL JUDGMENT 6NLY. 1. A writ of error lies only from judgments which are final. Collier v. Whel- don, i. 1. Uorr v. Knighton, ix. 179. b. ADMINISTRATION. 2. An order of the County Court requiring the administrator to " retain all the moneys of the estate which may come to his hands, subject to the order of the court, for the purpose of paying administrators and guardians, &c., in preference to other demands," is a final judgment upon which a writ of error lies. Gamble V. Hamilton, vii. 469. C. ARREST OF JUDGMENT. 3. The arrest of a judgment is a final decision, and a writ of error lies from it. (R. S. 1825, 633, § 45). The Statey. Foster, ii. 210. d. CORAM NOBIS. 4. If a slave be committed and sentenced to the penitentiary, such fact not appearing in the record, it is an error of fact, and may be corrected by the court in which the judgment was rendered, on a writ of error coram nobis. & parte Toney, xi. 661. 5. The statute has fixed no limitation to writs of error coram nobis, the writs barred by it are those only which are brought to correct errors of law. Powell V. Gott, xiii. 458. e. EXECUTION. 6. A writ of error will lie on the decision of a motion to require the sheriff to pay over money in satisfaction of an execution. Wise v. Darby, ix. 130. ERROR. L 295 f. FORECLOSUM!. I. A ■vrrit of error lies to a judgment rendered in proceedings to foreclose a mortgage. Carr v. Holhrook, i. 240. g. NEW TRIAL NON-StriT CONTINUAUCB. 8 . A writ of error lies on a judgment of tte court overruling a motion to set aside a non-suit ; improperly setting aside a non-suit ; improperly granting or refusing a new trial ; or improperly refusing a continuance. (Court Mo. Art. V. § 3 — R. S. 1825, 633, § 45.) English v. Mullanphy, i. 780. Collins y. Bowmer, ii. 195. Johnsony. Strader,\a. 359. 9. But not from a judgment of non-suit, or on a judgment granting a new trial, until the cause is finally disposed of in the court below. Martin v. Hays, V. 62. Howell Y. Pitman, v. 246. Emmerson v. Harriet, xi. 413. Emmerson V. Died Scott, xi. 413. 10. The party must move to set aside such judgment, and except to the judg- ment )f the court overruling the motion. Atkinson v. Lane, vii. 403. II. The plaintiff recovered a verdict for $470. On motion of the defend- ant a lew trial was granted, and a verdict of $60 returned on the second trial, whorerpon the plaintiff moved for judgment on the first verdict, on the ground that the new trial was improperly granted — Held, that a writ of error wUl not lie on tie judgment of the court granting a new trial, after a second trial is had. \Johns(yi. v. Strader, iii, 355. Hill v. Wilkins, iv. 86. Davis v. Davis, viii. 56. Samuel v. Morton, viii. 633, reviewed.] Helm v. Bassett, ix. 51. Keating v. Bradforl, xxv. 86. h. RETURN or SUMMONS. 12. A return of process is a part of the record upon which error will lie. Therefore where the return of the summons in a cause was signed by " A. B., Deputy Sieriff," such return being bad, the judgment was reversed on a writ of error proKcuted by defendants who had not appeared to the action. Harriman V. The SUte, i. 504. i. SUSPBNDINGr ATTORNEY. 13. A rrit of error will lie to an order of a Circuit Court suspending an atfttmey fiom practice. Strotker v. The State, i. 605. j. TORT. 14. In ai action of tort against two, where, after judgment, one of the defend- ants dies, i writ of error may be sued out by plaintiff against the surviving defendant, without making the representatives of the deceased defendant parties. Potter v. Cratiot, i. 368. ^ee Ap'bal, 17 ;... .Breaches of the Peace, 19 ;... .Criminal Law, ^8 ;. . ..Process, 21, 296 ERROR. II. II. WHEN IT DOES NOT LIE. a. ADMINISTRATION. 15. Where the plaintiff presented his claim in the County Court against an estate, but neglected to verify it hf affidavit, as required by statute, (R. S. 1835, 56, § 9,) it is an irregularity that he cannot take advantage of. Rankin v. Perry, V. 501. Ferry v. Alford, v. 503. b. APPEAL FROM A JUSTICE. 16. A Case originating before a Justice, and taken by appeal to the CiKuit Court, cannot be taken thence by appeal to the Supreme Court. (R. S. 1J2S, 63B, § 43.) The proper mode of procedure is by writ of error. (R. S. 1^25, 633, § 45.) Clinton v. Duffal, i. 761. / C. CHANGE OF VENUE. 1*7. A change of venue was ordered, without any application for guch pirpose, by a judge, on the ground that one of the defendants was related to him.l After- wards the judge to whose circuit the case was toansferred, sent it ba^ /to the court from which it came, where it was docketed, to which the depndants excepted, but afterwards pleaded nil debet, and on trial judgment was aven for the plaintiffs — Held, that even if a writ of error were a proper renttdy, the defendants, by pleading in bar, had waived the error complained of; /and that the proper course would have been to obtain a writ of prohibition, wppkt v. Hood, I 497. d. CIRCUIT COURT TO COUNTY COURT. 18. A writ of error will not lie from the Circuit to the Couity Court. McGirk, J., dis. Matson v. Dickerson, iii. 339. e. DISMISSING A SUIT. 19. An order by the court dismissing a cause, is not a judgmentJin form or BJibstaince, from which a writ of error or an appeal will lie. Miller r. Richard- son, i. 310. f. DISSOLVING ATTACHMENT. ( 20. A writ of error does not lie from an order of the Circuit Couij dissolving an attachment. Lane v. Fellows, i. 353. g. IN FAVOR OF ONE NOT A PARTY. 21. One not a party in a cause in the court below, cannot take ; to the Su- preme Court by writ of error. Thompson v. Iforthcott, i. 224. h. INJUNCTION. 22. Under a statute which provided that every injunction to s4y proceed- ings at law, when .granted, shall Qperate as a release of all errors in the pro- ceedings at law that are prayed to be enjoined," (R* S. 1825,., 440, 4) — Seld, ERROR, n. 297 that although such an injunction be dissolved on the ground that the party's remedy is at law, a plea for the granting of the injunction is a bar to a writ of error. Chouteau v. Bouchouquette, i. 715. Gonsolis v. ZtoucJwuquette, L 715. i. LOCATING COUNTY SEAT. 23. A writ of error will not lie from an order of the County Court, appointing commissioners to locate a permanent seat of justice for the county. Tetkerow v. Grundy CouTiiy Court, ix. 117. Johnson v. Clark County Court, sx. 529. 24. If, in such case, the County Court proceed illegally, the only remedy is by an application to the Circuit Court for a mandamus. Tetkerow v. Grundy County Court, ix. 117. j. OVERRULING DEMURRER. 25. A writ of error will not lie on the judgment of the court overruling a demurrer. A final judgment must be rendered on the demurrer. Palmer v. Crane, viii. 619. Same case, ix. 266. t. QUOD PARTITIO EIAT. 26. The first judgment, quod partitio fiat, in an action of partition is interlo- cutory, and a writ of error will not lie therefrom. Ivory v. Delore, xxvi. 506. 1. REFUSAL TO ISSUE MANDAMUS. 27. A writ of error or an appeal, will not lie on a refusal of a Circuit Court to issue a mandamus to the County Court. Shrever v. Livingston County, ix. 195. Ex parte Skaggs, xix. 339. m. REFUSAL TO REVERSE A SATISFIED JUDGMENT. 28. Where a plaintiff recovers a judgment and receives satisfaction of it, he cannot afterwards sue out a writ of error to reverse such judgment. Cabell v. Fagin, xi. 207. n. ROADS AND HIGHWATS. 29. The action of the County Court, refusing to receive a report presented by commissioners appointed by the general assembly to survey and mark out a State road, is not such a final judgment as will sustain a writ of error. Platte County Court V. MeFarland, xii. 166. O. STRIKING CAUSE FROM DOCKET. 30. An order of a Circuit Court striking a cause from the docket, is not a deci- sion of the court, but a refusal to proceed ; and a writ of error will not lie from it. The remedy of the party, if any, is by mandamus. Astor v. Chambers, i. 191. p. SUPREME COURT TO COUNTY COURT. 31. A writ of error will not lie from the Supreme Court to a County Court. Thompson v. Smith, i. 404. 298 ERROE. V. 32. Section 3, Art. V of the Constitution of Missouri, does not authorize it. Town V. Cleric, ii. 26. See Appeal, 8 ; . . . . Criminal Law, 429, 430 ; Local Decisions, T ; Mandamus, 2. III. WHAT THE WRIT EMBRACES. 33. Where, on leave to amend, an amended petition is filed in vacation and no other steps are taken in reference to it, and at the next term the cause is tried on " issue joined^" on the first petition, and the plaintifi' did not attempt to abandon that and substitute the amended petition, the latter will not on error be regarded as a part of the case by the Supreme Court. Collier v. Wheldon, i. 1, IV. ISSUE AND RETURN. 34. Under the act of December 12, 1820, (1 Ter. L., "Zig, § 14,) a writ of error was sued out on the 2d day of October, and made returnable to the next term, which began on the 22d of the same month — Held, that it was issued within twenty days next preceding the term, and could not stand as a return to the second term, but must be dismissed. Taylor v. M'' Knight, i. 120. 35. A writ of error will be dismissed where the names of the parties are not inserted, and no amendment of such writ will be allowed in the Supreme Cpurt. Fremon -v. City of Carondelet, xxv. 62. V. ASSIGNMENT AND GROUNDS OP ERROR. 36. A judgment rendered by the Supreme Court against a defendant in error for want of joinder in error, was, on motion, set aside, and the Court, held they were bound to look into the record and see if there was error. March v. How- ell, i. 138. 37. Upon a writ of error sued out by one in his lifetime, errors cannot be be assigned by his executor without the death of the party being suggested on . the record. Childers v. Goza, i. 394. 38. It is not enough, to reverse a judgment, that the party shows there was error against him ; he must also show that the error was to his prejudice. Bel- lissime v. lifCoy, i. 318. 39. It cannot be assigned for error that the court, sitting as a jury, gave an improper verdict. Johnson v. S trader, iii. 355. 40. If the Circuit Court improperly award execution, the party aggrieved thereby must move to set it aside before it can be assigned for error. Posey v. Buckner, iii. 604. 41. Nothing can be assigned for error in the Supreme Court which was not made the subject of exceptions in the court below, either at law or in chancery. Swearingen v. Newman, iv, 456. Cook v. Davis, iv. 622. ERROR. VL 299 42. No ground of error will be considered in the Supreme Court which has not been assigned and relied upon in the court below. Long v. Story, xiii. 4. 43. Where a motion to strike out an answer is taken up and disposed of on the day it is filed, both parties being present and neither objecting, the action of the court cannot be assigned for error. Gashman v. Andersom, xxvi. 67. 44. After the plaintiff has obtained leave to amend his declaration, and before the amendment is made, it is error for the court to render judgment for the defendant on a demurrer to the declaration, filed' after leave to amend was grant- ed. The judgment should be non prosequitur. (1 Ter. L. 847, § 26.) Cabarir- ne V. Lavallee, i. 394. 45. Where part of the counts in a declaration are demurred to, and part pleaded to, it is error to render a judgment for the defendant on the whole declaration, upon sustaining the demurrer, without passing upon the plea. Boyd v. Sargent, i. 437. 46. Where there is an issue of law raised by demurrer to a plea, and also an issue of fact raised by a plea, a general judgment on the demurrer, withbut dis- posing of the issue of fact raised by the plea, is erroneous. The State v. Oaither, i. 501. 47. Where, in an action on a promissory note, the issues of fact are submitted to the court, and it decides for the defendant, on the ground that the evidence was not sufficient to prove his handwriting, it was held, that the judgment was not, for that cause, erroneous. Bank of Missouri v. McKnight, i. 762. 48. If a demurrer by the defendant in an attachment case is not disposed of before judgment against him, it is error. Posey v. Backner, iii. 604. 49. Where an immaterial issue is found for the defendant, it is error to over- rule a motion, by the plaintifl^, for judgment on a material issue. Msnard v. Wilkinscm, iii. 255. 50. Where two or more material issues are joined, it is error to omit finding on any one of them. Jones v. Snedecor, iii. 390. Pratt v. Rogers, v. 51. 51. But the finding may be in general terms, thus, " we, the jury, find for the plaintiff and assess his damages," &c. Stout v. Calver, vi. 254. 52. A judgment of respondeat ouster is the proper one where a demurrer to a plea in abatement is sustained, and it is error to give a general judgment of recovery in such a case. Wilson v. Atwood, iv. 366. VI. JUDGMENT IN COURT OF ERROR. 53. In settling administrators' accounts, where an appeal is taken from the County Court to the Circuit Court, and the case is brought thence to the Supreme Court by writ of error, the Supreme Court will not re-examine the facts of the case, but will merely correct such errors in law as shall appear to have intervened in the Circuit Court. Jones, J., t^is. Chouteau y. Cowsowe, i. 350. 54. Whatever may be taken advantage of in arrest of judgment, may be cor- rected by writ of error. McOee v. The State, viii. 495. 55. The Supreme Court will take cognizance of an erroneous judgment of an inferior court, although a motion to set aside such judgment was not made in the infeiior court. West v. Miles ix. 167. 300 ESCHEATS.— ESTOPPEL. H. ESCHEATS. 1. The real estate of an alien escheats to the State at his death. Farrar v. Dean, xxiv. 16. ESTOPPEL, I. IN PAIS. II. BY DEED. III. BY RECORD. IV. BY OTHER MATTERS. V. LANDLORD AND TENANT. VI. VENDOR AND PURCHASER. VII. COVENANT. VIII. MORTGAGOR AND MORTGAGEE, IX. CONCEALMENT. X. WILL. I. IN PAIS. 1 . To establish an estoppel in pais there must be, first, an admission inconsistent with the evidence proposed to be given, or the claim offered to be set up ; second, action, by the other party, upon such admission ; third, an injury to him, by allow- ing the admission to be disproved. Taylor v. Zepp, xiv. 482. 2. Thus, where the owners of contiguous lots mutually establish a boundary line, and build up to it, and use and occupy according to it for a period long enough to show their agreement and acquiescence, although less than the period which would be a bar under the statute of limitations, they, and those claiming under them, will be estopped from afterwards claiming a different boundary. [Taylor V. Zepp, xiv. 482, commented upon and affirmed.] Blair v. Smith, xvi. 273. 3. And this principle is not in contravention of the statute of frauds. Ihid. 4. Verbal admissions, or mere presence at a survey, cannot operate as an estoppel in pais. Valle v. Clemens, xviii. 486. II. BY DEED. 5. Where the grantors in their deed, conveying certain land to P. P, bounded it, in part, thus, " eastwardly by lot of P. P., and on which he now lives," it was held, that this was an acknowledgment of P. P.'s title to the adjoining lot, and that the grantors were estopped by their deed from averring the contrary ; and that the circumstance that the acknowledgment did not show the extent of P. ESTOPPEL. IV. 301 - P.'s title, whether in fee or for a less estate, made no difference. Tompkins, J., dis. Lajoye v. Primm, iii. 529. 6. All the parties to a deed are estopped from denying the recitals therein. Dickson v. Anderson, ix. 155. 7. But the recital, in a deed, of the payment of the consideration, is, in the United States, held to be an exception to this rule. Ibid. 8. A party is not estopped by his declarations, nor by an admission by deed, except as to the parties and privies thereto, from claiming the true lines of his land. Oottle v. Sydnor, x. 763. 9. A recital in a deed operates as an estoppel on the same principle as that which makes the declarations of a grantor evidence. A recital is not competent to show title in the grantor. Joeckel v. Uaston, xi. 118. 10. Where a judgment for the possession of land is rendered against one of several tenants in common, in behalf of one claiming by title adverse to that of the co-tenants, and a writ of possession is issued and placed in the hands of the proper officer — Held, that this amounts to such an ouster as wiU terminate the co-tenancy, and that the plaintiff will not be estopped by accepting a conveyance from the defendant from denying the title of the co-tenants of his grantor ; nor will the acceptance of such deed be such a recognition of a title, recited therein to have been acquired by the grantor, as will amount to an estoppeL Vasquez v. Ewing, xxiv. 31. See CoNVEvANCEs, 77, 80. m. BY RECOED. 11. Where it appears by the record that the party appeared by his attorney, he is estopped from denying the fact of such appearance. Ramsey v. Ooodfel- low, vii. 594, Weber v. Schmeisser, vii. 600. IV. BY OTHER MATTERS. 12. A party cannot pass a title by estoppel who has not the power to make a direct conveyance. Dougal v. Fryer, iii. 40. 13. Where a widow had title to land in her own right, the fact that dower therein was allotted to and accepted by her, under a mistake as to her rights does not estop her or those claiming under her from asserting such rights. Thxmvpson v. Revae, xii, 157. 14. From the mere fact that A. has "suffered and permitted " B. "to use and control a slave as his own property," he is not thereby estopped from thereafter claiming the slave as his own, though the slave has been sold as the property of B. McDermott v. Bamum, xvi. 114. 15. Under the act of Congress of March 3, 1823, (8 U. S. Stat., 787,) the reg- ister and receiver, under the advice and direction of the school commissioners appointed by the State, located land in lieu of the sixteenth section, granted, by 302 ESTOPPEL. VI. the act of Marcli 6, 1820, for the use of schools, and the land thus located was sold under a law of the State, on the petition of the inhabitants of the township and the money applied to the benefit of schools in that township — Held, that the State and the inhabitants of the township were estopped from afterwards claim- ing the sixteenth section. The State v. Dent, xviii. 313. 16. The plaintiff allowed certain property of his to be in H. R.'s possession and knowingly permitted him to hold it out to the world as belonging' to him- self The property was seized and sold on execution by H. R.'s creditors — Held that the allowance of plaintiff's claim to such property would be a fraud upon the creditors of H. R., and that he is estopped from asserting it. And it is not necessary that a knowledge of the design of H. R. to defraud his creditors be brought home to plaintiff. McDermott v. Barnum, xix.' 204. 17. A town, consenting to, accepting and acting on a survey of its common as correct, will be estopped from afterwards claiming as common, land not included in the survey. City of Carondelet v. McPherson, xx. 192. 18. Where parties have been under disabilities so that their title to land, held adversely, has not been barred by the operation of the statute of limitations, their failure to object to the adverse occupation, and to the making of improve- ments, &c., will not estop them from setting up title. Dessaunier v. Murphy, xxii. 95. See Administeation, 68 ;. . . .Assignment, 45 ;. . . .Replevin, 37. V. LANDLORD AND TENANT. 19. The provisions of the Act of March 18, 1835, (2 Ter. L. 601,) authorizing the sale of the St. Louis commons, are directory, and not conditions precedent to the right to exercise the powers therein granted ; therefore, in an action on an indenture of lease of a portion, of said commons, the lessee is estopped by his deed from denying that the preparatory steps contemplated by the act were com- plied with. City of St. Louis v. Morton, vi. 476. VL VENDOR AND PURCHASER. 20. A vendee may dispute the title of his vendor in an action of ejectment. His possession is adverse to that of his vendor, and he may set up the statute of limitations, in bar of an action founded on his vendor's title. Macklot v. Duhreuil, ix. 473. Joeekel v. Easton, xi. 118. Blair v. Smith, xvi. 273. 21. The vendee is not tenant under, but is an adverse claimant against his vendor, and may dispute his title, or set up against him or those claiming under him, an outstanding title. Page v. Hill, xi. 149. 22. In an action between two alienees under the same alienor, one of them is not estopped from showing an outstanding title adverse to that of his grantor. Landes v. Perkins, xii. 238. 23. A., who claimed the equitable title to land, brought a bill in chancery ESTOPPEL. X. 303 against B., who held the legal title — Held, that B. might set up in defense a prior equity in C, and is not estopped from so doing by a written agreement of com- promise between him and C, in which it is recited that " B. is satisfied he has an indefeasible title to the land, and C. acknowledges he has no just claim to it." Livermore v. Leonard, xvi. 474. 24. Where a purchaser of land executes a deed of trust, with warranty ol title, to secure to the vendor the payment of the purchase money, he is not estopped by his warranty to avail himself of any relief to which he would other- wise be entitled by virtue of the vendor's covenants to himself. Connor v. Eddy, XXV. Y2. VII. COVENANT. 25. A grantor's covenant for further assurance will not estop his heirs from asserting a title not derived from him, unless they have assets by descent equal to the value of the property at the time they acquired the title to it. Chauvin V. Wagner, xviii. 531. 26. They are merely liable in damages to the extent of the assets that have descended upon them. Ibid. Vm. MORTGAGOR AND MORTGAGEE. 27. A mortgagor, and those claiming under him, are estopped from saying that no title was conveyed to the mortgagee. Bailey v. Trustees Lincoln Academy, xii. 174. IX. CONCEALMENT. 28. Where a party who has a right to or interest in land conceals it, or dis- avows his claim, and encourages a purchaser to buy the property of a third party> who does accordingly buy, relying upon such representations and encourage- ment, he will hold against the party having such concealed right. Suntsucker V. Clark, xii. 333. X. WILL. 29. A recital in a testatrix's will in these words, " wishing and intending, as far as in me lies, to place my several children on an equal footing as regards their worldly advancement, at the time of my dissolution, and forasmuch as my second son and child Henry has been sufficiently provided for and established in the world by the will of his uncle C3rprian, deceased, and placed in a better situation in a pecuniary point of view than I remain able to place the balance of my children," is not a ratification of the devise of Cyprian to Henry, nor does it adopt such devise, nor are the heirs of the testatrix estopped from denying the 304 EVIDENCE. validity of the will of Cyprian, although it was in fact void, and the property thereby devised to the said Henry at the time owned by the testatrix. Soon, J. dis. Clamor gan v. Lane, ix. 442. 30. Where proceedings, under the statute, (R. S. 1845, 1083, § 30,) are insti- tuted in the Circuit Court to invalidate a will, and vacate the probate thereot the executor who obtained the probate of such will, and who, for aught that appears, is still acting under it, is estopped to move to dismiss such proceed- ings upon the ground thait the contested paper had never been lawfally estab- lished as the will of the testator, in that the judge, before whotn it was proved, had not power to take proof thereof in vacation. Potter v. Adams, xxiv. 159. EVIDENCE. I. COMPETENCY AND RELEVANCY OF EVIDENCE. II. PRESUMPTIONS, AND WHAT EVmBNCE WILL REBtTT THEM. HI. EVIDENCE IN REBUTTAL. IV. JUDICIAL NOTICE. a. 01' WHAT THE COURTS WILL TAKE JUDICIAL NOTICE. b. OF What the courts will not take judicial notice. V. PAEOL AND SECONDARY EVIDENCE. a. GENERALLY. b. FRAUDULENT CONVEYANCES. C. SALE AND ASSIGNMENT. d. CONTENTS OF WRITING LOST OR ABSENT. e. sheriff's DEED. £. WILLS. g. RECEIPT. h. NOTICE TO PRODUCE PAPERS AND BOOKS. i. RECORD, j. DEED. k. SECURITIES. VL DECLARATIONS AND ADMISSIONS. a. BY A MASTER, b. BY A SLAVE. C. BY A TESTATOR. d. BY INTESTATE. e. BY ADMINISTRATOR. f. BY A PARTNER. g. BY AGENT OR EMPLOYEE, h. BY PRINCIPAL AND SURETY. i. BY A GRANTOR. j. BY VENDOR. k. BY A WIDOW. 1. BY PARTIES TO ACTION. m. BY PARTY IN POSSESSION. n, BY A WITNESS. EVIDENCE. I. 305. O. BY OBLIBEB IN A BOND. p. BT AN ASSIGNOR OF A CHOSE IN ACTION. q. BT HEIR AND DEVISEE. r. BT A SHERIFF. S. BT OWNER AND OFFICER OF A BOAT. t. MISCELLANEOUS. VIJ. ADMISSIONS BY PLEADING. q,. IN OHANCERT PRATIQE. b. IN PRACTICE AT LAW. aa. By Demurrer, bb. By the Answer. Vin. ONUS PROBAND! IX. EXAMINATION OF PARTIES. X. EVIDENCE IN PARTICULAR CASES. a. EXEctrriON op instrument sued on. b. privileged communications. C. CHURCH REGISTRY. d. ACCOUNT AND ACCOUNT RENDERED. e. ACCOUNT BOOKS AND MEMORANDA. £ CHARACTER. g. MISTAKE. h. LEX NON SCRIPTA. i. HANDWRITING. j. DOCUMENTART. k. NAME. XI. INTRODUCTION AT TRIAL, L COMPETENCY AND RELEVANCY OF EVIDENCE. 1. The testimony of a witness to prove a survey made by himself, for the pur- pose of establishing the extent of a party's possession, is admissible, without pro- ducing a plat of the survey. Perry v. Block, i. 484. 2. An officer will not be presumed to have applied the public funds to his private, purposes, and hence, as a general rule, in an action in which the official conduct of an officer is in question, his pecuniary embarrassments would not be compel^nt evidence ; but where it has been shown that those having the right to control his acts have permitted him to use such funds, his pecuniary embar- rassments are competent as a link in the chain of evidence establishing the defense of the securities. [Turner v. Belden, ix. 787, commented upon.] N^olley V. Callaway County Court, xi. 447. 3. Where knowledge of a particular &ct is sought to be brought home to a party, evidence of the general reputation and belief of its existence among his neighbors is admissible, as tending to show that he also had knowledge of it. Benoist V. Darby, xii. 196. 4. Where a party introduces the books of the opposite pajty in evidence for one purpose, the latter may us^e them for another. Lewin v. Dille, xvii. 64. 5. A., a blacksmith, exhibited for allowance against B.'s estate a blacksmithins account of five years' standing, amounting altogether, during that time to 306 EVIDENCE. II. 1183,25, the balance claimed, after allowing credits, being $9l,25^IIeld, that in order to account for the non-production of the plaintiffs books, it might be shown that the books were kept by the plaintiff himself; that some of the par- ticular items charged being proved, it was competent for the plaintiff to show that B. had all his blacksmithing done at plaintiffs shop ; that B.'s farm was of a particular extent, and that he had thereon a particular number of horses and wagons, and testimony of a like character. Fath v. Meyer, xxvii, 568. II. PRESUMPTIONS, AND WHAT EVIDENCE WILL EEBUT THEM. 6. Absence beyond seas for seven years, without being heard from, is presump- tive evidence of death. Lajoye v. Primm, iii. 529. 7. Long-continued uninterrupted possession of premises, (in this case, twenty- six years,) is evidence from which a deed may be presumed. Newman v. Studley, v. 291. McJVair v. Runt, v. 300. 8. The sending of slaves by the father, to the house of his daughter's husband, and permitting them to remain there until after the daughter's death, is evidence from which a gift of the slaves may be inferred. Mulliken v. Greer, v. 489. See Infra, 11. 9. The refusal of the county treasurer to pay a warrant drawn upon the trea- sury, is presumed to be based upon the want of funds, since it is presumed that a public officer does his duty. But his declarations, assigning the want of funds as the reason for not paying, are not admissible. His declarations, assigning other reasons for his refusal, are admissible to rebut the presumption of want of funds. Nolley v. Callaway County Court, xi. 447. 10. A receipt in full of all demands raises a strong presumption that all pre- vious dealings between the parties are adjusted, but may be rebutted by direct proof or strong circumstances. Gibson v. Hanna, xii. 162. 11. Where a father, upon the marriage of his son, delivers to him a slave, without any explanation at the time, of his intention, whether it is a gift or a loan, the presumption of law is, that it is a gift , and where the property thus delivered remains a considerable length of time in the possession of the s6n, it should require the clearest, most direct and uncontradiotory evidence to rebut this presumption. [Napton, J. and Scott, J., disi\ See Reporter's note on page 37. Martin v. Martin, xiii. 36. See Supra,. 8. 12. For some purposes, possession is prima facie evidence of a title in fee. Crow V. Marshall, xv. 499. 13. In the absence of positive knowledge, the courts of one State will presume that the common law of another State corresponds with that of their own. Warren v. Lusk, xvi. 102. 14. And judicial notice will not be taken of laws of a sister State at variance with the common law. Houghtaling v. Ball, xix. 84. 1 5. A deed of gift to a married woman will be presumed to be in the custody of her husband, until his death, and afterwards of his personal representatives. The statutory mode of compelling the production of papers, does not supersede EVroENCE. IV. 307 the common law mode of giving notice to produce and proving contents. McLain v. Winchester, xvii. 49. 16. It will be presmned that a member of a municipal corporation is aware of the by-laws and ordinances of the same. Inhabitants of Palmyra v. Morton, XXV. 593. III. EVIDENCE IN REBUTTAL. 17. Evidence in disproof of facts relied upon by the other party, is admissible. Davis V. Cooper, vi. 148. 18. Rebutting evidence is that which directly weakens or impeaches that of the opposite party, and not that which is merely cumulative. Craighead v. Wells, xxi. 404. 19. Where a party's acts are given in evidence, he may, in rebuttal, show other acts which are a part of or connected with, and explanatory of those previously used against him. Blair v. Marks, xxvii. 579. IV. JUDICIAL NOTICE. a. OF WHAT THE COURTS WILL TAKE JUDICIAL NOTICE. 20. T^e courts of this State will judicially take notice of the laws of France and Spain which were in force in this State while a part of the Territory of those governments, but they will not take notice of the laws of Canada. The legality of slavery under the laws of Canada, is a question of fact for the jury. Chouteau V. Pierre, ix. 3. Ott v. Soulard, ix. 573. 21. So of the fact that certain States of the Union, in their respective consti- tutions, recognize the existence of slavery in their limits. Per Naptost, J. Rennick V. Chloe, vii. 197. 22. So that the State of Missouri is East of the Rocky Mountains. Price v. Page, xxiv. 65. 23. So that Warren County is in the third judicial circuit of this State, and that Franklin County is not. The State v. Worrell, xxv. 205. b. OP WHAT the courts WILL NOT TAKE JUDICIAL NOTICE. 24. The court will not take judicial notice of the laws of another State. Leak v. Elliott, iv. 446. Hite v. Lenhart, vii. 22. 25. Nor of the ordinances of a city. Cox v. City of St. Louis, xi. 431. 26. The party relpng on them must set them out in his pleadings. Mocney V. Kennett, xix. 551. 27. Nor of the laws of a foreign country. Charlotte v. Chouteau, xxv. 465. 28. Nor of the fact that New Orleans is in the State of Louisiana. There must be an averment of that fact in the declaration. Riggin v. Collier, vi. 568. 29. Nor will a judge sitting in one county take judicial notice of a conviction 308- EVroENCE. V. oi; nol. pros, .previously had before him in another. The State v. Edwardii xix. 674. 30. Nor will the Supreme Court take judicial notice of the acceptance by a railroad of the provisions of the railroad act of 1853. (Acts 1852-3, 121.) Gorman v. Pacific Railroad, xxvi. 441. See SnpRA, 14. V. PAKOL AND SECONDARY EVIDENCE. a. GENBBALLT. 31. Secondary evidence must be the best in the power of the party to produce. Philipson v. Bates, ii. 116. 32. Parol testimony is inadmissible to contradict, enlarge, vary or add to a written instrument. Singleton, v. Fore, vii, 515. Ashley v. Bird, i. 640. Lane V. Price, v. 101. 33. But, Per M'Girk, J., such testimony is inadmissible to show the circum- stances under which it was executed. Brown v. Bank of Missouri, ii. 191. 34. And so it is admissible to show the time, place and manner of performing the obligations of a written contract, where it is silent on these points. M'Girk, J., dis. Benson v. Peebles, v. 132. 35. Aud where a written memorandum of a contract of sale does not purport to be a complete expression of the entire agreement, and is uncertain sfe to the property sold, the property may be designated by parol evidence. Rollins v. Olayhrook, xxii. 405. 36. Where a note is made payable " in the currency of the State," it is not competent to show by parol testimony, that it was understood to mean any other than gold and silver, or notes of Missouri bants. CocJcrill v. KirkpalricJc, ix. 688. 37. Parol evidence is not admissible to prove that, at the time of the execution of a bond, the obligee said he would not hold the obligor responsible thereon. Woodward v. McOaugh, viii. 161. 38. Nor is it admissible to show that the maker of a note, which purports to be payable absolutely, only promised to pay on condition. Jvms v. Jewries, xvii. 577. 39. But parol evidence is admissible to show the contents of a paper, where the original is beyond the jurisdiction of the court. Brown v. Wood, xix. 475. 40. Sworn copies of written instruments are admissible in evidence, where the originals are beyond the jurisdiction of the court. Perpetual Ins. Co. v. Cohen, ix. 416. Bullitt V. Overf^ld, ii. 4. 41. But not unless the original is accounted for, or notice given to produce it. Lewin v. Dille, xvii. 64. 42. Nor can the contents of a copy be shown until the existeiice of an exe- cuted original is established. Perry v. Roberts, xvii, 36. 43. Where a party, by his own act, renders an instrument such that all legaj fbmedy thereon is lost, he cannot, by any other evidence, establish the covenants or EVIDENCE. V. 309 promises contained therein. Thus, where an instrument, under which A. has re- ceived money and become bound to B., is altered by B., he cannot recover of A., neither on the instrument, nor for money had and received. Whitmer v. IVye, X. 348. 44. An agreement in writing to convey such lots as the grantor shall select, cannot be changed by parol, so as to require the grantor to convey such lots as the grantee may select Wildhahn v, Robidoux, xi. 659. b. FRAUDULENT CONVETANCES. 45. Parol evidence is admissible to establish the indebtedness of a fraudulent conveyancer to a third party, and the writings evidencing such indebtedness need not be produced. Foster v. Wallace, ii. 231. C. SALE AND ASSIGNMENT. 46. Although parol evidence is not admissible to alter or impeach a bill of sale, yet such evidence is admissible to show that, in pursuance of an understand- ing between the parties at the time of making it, the slaves specified therein had been subsequently given, and possession of them delivered, so as to show title in the donee. Broadwater v. Dame, x. 277. 47. Parol evidence is admissible to show that a bill of sale, absolute on its face, was intended as a mortgage. [Overruling, Montany v. Rock, x. 506.] Johnson v. Hudon, xvii. 58. 48. A. and B. were joint owners of a steamboat, but the legal' title stood in A. alone, who sold and conveyed in writing one half of it to C. — Held, in a suit in the name of B. to recover the purchase money, that parol evidence was admis- sible to show that the sale and conveyance was understood, and intended by the parties to be that of the interest of B. Bennett v. Belt, xxii. 154. 49. If an assignment describes the obligations assigned as " the within notes," parol evidence is admissible to show that the notes were folded up and enclosed within the paper upon which the assignment was made, and thus delivered to the assignee. Thornton v. Crowther, xxiv. 164. d. CONTENTS OF WRITING LOST OR ABSENT. 50. The absence of a paper must be accounted for before secondary evidence is admissible to show its contents. Benton v. Craig, ii. 198. Cockrill v. Kirk- patrick, ix. 688. 51. Parties may prove by their own oaths the loss or destruction of instru- ments of writing, but they cannot testify as to their contents. Beachboard v. Luce, xxii. 168. 52. Where a witness has been permitted to speak of the contents of a writing, without having it present or accounting for its absence, the court should exclude such evidence from the jury, if it is objected to while the witness is still testifying. Filhy V, Talhott, xviii. 416. e. sheriff's deed. 53. The fact that the sheriff of the county acknowledged, in open court, a dpe4 to Jihe plaintiff's grantor of the premises in dispute, such acknowledgment 310 EVIDENCE. V. stating the issue of execution and a levy and sale under it, is evidence sufficient to show that a deed from the sheriff once existed ; and the contents of such deed may be established by secondary evidence, on its loss being shown in the usual way. Newman v. Studley, v. 291. 54. The recitals in a sheriff's deed cannot be contradicted by parol evidence. Reed v. Austin, ix. 713. 66. However vague the description in a sheriff's deed of land sold under exe- cution, parol evidence is admissible to identify the premises, and such evidence does not fall within the rule which rejects oral testimony in explanation of a patent ambiguity. Bates v. Bank of Missouri, xv. 309. 56. A party relying upon a sheriff's deed to show title in himself, must pro- duce the deed itself, or account for its absence, before secondary evidence of its contents can be admitted. Smith v. Phillips, xxv. 555. f. WILLS. 57. Parol testimony is not admissible to explain an ambiguity apparent upon the face, of a will. Davis v. Davis, viii. 56. 58. A will described land as the " south-east and south-west quarters of sec- tion 4, township 60, range 38, in Holt oounty, Mo." The devisee of the south- west quarter was to have access to the " big spring " — Held, that parol evidence was admissible to show that the testator never owned or claimed any land in sec- tion 4, township 60 ; that there was no such land as the two quarter sections described as being in section 4, township 60, it being- a fractional section ; that the^spring commonly known as the "big spring" was on the south-east quarter of section 4, township 59, range 88 ; that the testator died on the last named sec- tion, &c. Riggs v. Myers, xx. 239. g. RECEIPT. 59. No principle is better settled than that parol evidence is admissible to explain a receipt. Weatherfoj-d v. Farrar, xviii. 474. 60. But an instrument acknowledging the receipt of money for a slave, is not such a receipt as may be contradicted by parol testimony, so far as it evidences the sale of the slave. Montany v. Roch, x. 506. •61. Where a receipt was produced as evidence of money paid, it was allowed the defendant to show that the party to whom the receipt was given applied at one time for the receipt, stating that he wanted the receipt for particular reasons, naming them, and that he had paid the money to another person. Huslon v. Becknell. iv. 39. See SuPEA, 10. h. NOTICE TO PEODUCE PAPEES AND BOOKS. 62? Notice to produce a notice need not be given to authorize the contents of the first notice to be shown by parol. Hughes \. Hays, iv. 209. 63. If a defendant, being ordered to produce a paper, states in excuse that the. paper is in the hands of another, held bj' him for defendant and others, but does EVIDENCE. V. 311 not state that it is not under his control, the court may take its contents, as stated by the plaintiff, to be true. Munford y. Wilson, xix. 669. 64. A party cannot give evidence of the contents of books in the hands of the opposite party, without first having given notice to produce the books. Farmer^ and Merchants^ Bank of Memphis v. Lonergan, xxi. 46. See Pbacticb, 284 ;. . . .Supba, 15. 65. What a court of record does is known only by its records. Its proceed- ings cannot, therefore, be established by parol. Milan v. Pemberton, xii. 598. 66. But such testimony is admissible to show the loss and contents of an exe- cution, and the officer's return thereon. Ravenscroft v. Oihoney, ii. 1. 67. And so it is admissible to show the contents of a Justice's record of a judgment, the loss of the original record first being shown. Bogart v. Green, viii. 115. ^ 68. So, it may be shown by parole that the transcript of a judgment obtained before a Justice was filed in the County Court. Huston v. BecJcnell, iv. 39. 69. But parol evidence is inadmissible to prove that the County Court, while in session, verbally ordered the name of one of the securities on a note given to their county to be erased, without the consent of the other security. The records of the County Court are the evidence of their official acts, and all orders not entered on record are extra-judicial and void. Medlin v. PlaMe County, viii. 236. 70. A trustee cannot prove by parol, without the record of the suit, the amount of costs incurred therein to recover the trust money. Gates v. Hunter, xiii. 511. See Record, 7. j. DEED. 71. Parol testimony cannot be resorted to to control the meaning of a deed, or to give it a different meaning from that which it carries on its face. Simoniis V. Beauchamp, i. 589. 72. Although the receipt of the purchase money is acknowledged in a convey- ance, it may be shown by parol evidence that it was not paid. Hogel v. Lin- dell, X. 483. 73. And in an action upon a covenant of seizin, parol evidence is admissible to show the true amount of the purchase money, although different from that stated in the deed. But where the operation of a deed, in respect to the interest or estate purporting to be conveyed, is sought to be affected, parol testimony is not admissible. Henderson v. Henderson, xiii. 151. 74. But it is not competent at law to show that a deed, absolute on its face, is, in fact, a mortgage. Hogel v. Lindell, x. 483. 76. Where there is a subscribing witness to an instrument, he must be called, or his absence accounted for ; and without this, it is not competent to prove its execution even by the grantor. Glasgow v. Bidgeley, xi. 34. 312 EVIDENCE. VI. ^6. The feet that the subscribing witness was reported and believed to be dead suflBciently accounts for his absence. Waldo v. Russell, v. 38^. ih. tinker the act of February 1, 1839, (Acts 1838-9, 42, §§ 16, ll,) relating to evidence, it is n6t necessary to prove the identity of tbe grantor in a deed by the subscribing witness, or to account for his absence ; nor is his presence required by the rule that the best evidence must be produced. Moss v. Ander- son, vii. 337. 78. To authorize the adnlission of an office copy of a deed in evidence, a copy of the certificate of acknowledgment should also be certified. Gentry v. Oarth, X. 226. 79. Where a deed, executed and attested in the State of Tennessee, the grantor and the attesting witnesses residing there at the same time, is oflfered in evidence, its execution may be proved by proof of the handwriting of the grantor. It will be presumed that the subscribing witnesses are out of the jurisdiction of this State. A copy of the record ii> the State of Tennessee of such deed is inadmissible, unless it appear that such copies are evidence by the laws of Tennessee. Clardy v. Richardson, xxiv. 295. k. SECURITIES. 80. Parol evidence is admissible to prove the identity of the principal and surety to a bond or note in a suit at law. Garrett v. Ferguson, ix. 124. 81. And so, also, to show that the relation of principal and surety exists "between the co-obligors in a bond. Scott v. Bailey, xxiii. 140. VI. DECLARATIONS AND ADMIS^ON^. a. BT A MASTER. 82. The declarations of a person holding another in slavery, as to the residence of the slave in Illinois, cannot be given in evidence until a foundation for such testimony is laid by proof of such residence with the consent of the owner. Robert v. Melugen, ix. 169. b. BT A SLAVE. 83. The admission of a slave that lie is such cannot be used in evidence against him, in a suit for his freedom. Vincent v. Duncan, ii. 214. ^4. On the trial of a white person, tlie State may give in evidence a conversa- tion between the defendant and a negro, when the statements of the negro are merely an inducement or in illustration of what was said by the accused ; but such conversation miist be proved by a white person. HavSJcins v. The 'State, vii. 190. 's^. Where a master is sued for a larceny by his slave, the slave's declarations as to where the property could be ifotind, coupled with the fact tliat thepropferty was there feund, are admissible in evidence. Fackler v. Chapman, xx. 249. fe'6. In an action against a vendee for the purchase moneiy of a slave, the declarations of the slave, in connection with and explanatory of a symptom or EVIDENCE. VI. 313 appearance of disease, are, as a part of the res gesta, competent evidence to prove that the slave was, at the time of her sale, diseased. Marr v. Sill, x. 320. Wadlow v. Perryman, xxvii. 279. C. BY A TESTATOR. 87. Where it is sought to invalidate a will on the ground that the alleged tes- tator was imder undue influence, and was, at the time of executing it, of unsound mind by reason of intoxication, declarations made by him to the eflFect that he had never made the will — -that, if he had signed it, they had got him drunk and made him do it, for he had no recollection of it — are inadmissible in evidence. Gibson V. Gibson, xxiv. 227. 88. So declarations made by a testator before the date of the will, that the persons mentioned in it as legatees " should never have any of his property," as also declarations made on divers occasions after such date, that "he had no will," alone and unsupported by other facts, do not famish any legal evidence whatever of incapacity on the part of such testator, or of undue influence, and are inad- missible in evidence. Cawthorn v. Haynes, xxiv. 286. 89. So where it is sought to invalidate a will on the ground that the children of the testator are " not named or provided for " therein, the testator having made his wife his sole heir, evidence is inadmissible to prove that at the time of making the will the testator declared that he would name no other persons, that he had done all for his children he intended to do, and that he designed all he had at his death to go to his vrife absolutely. Bradley v. Bradley, xxiv. 311. d. BY INTESTATE. 90. In a suit by administrators, their intestate's declarations are not admissi- ble in evidence for them. Perry v. Roberts, xvii. 36. e. BY ADMISISTRATOE. 91. As to the competency of the admissions of an administrator, a party to a suit, in evidence against the State. Allen v. Allen, xxvi. 327. f. BY A PARTNER. 92. A declaration hy one of a firm, kftei- the death of the intestate, that the firm owed the intestate eleven hundred dollars, is evidence of an account stated with the intestate in his lifetime. Cunningham v. Sublette, iv. 224. 93. The declarations of one partner are not evidence of the partnership against any one but himself. Dixon v. Hood, vii. 414. 94. An article written by A., and puhlished in a paper edited by A. and B., cannot be read in evidence as an admission of B. Coxe v. Whitney, ix. 527. 95. An admission of indebtedness made by one partner will not bind the other members of the firm, unless made during the existence of the partnership. A deposition proving such admission, but not satisfactorily establishing it as at a time prior to the dissolution of the partnership, may be excluded, and need not be submitted to the jury with instructions. Scott, J., dis. Little v. Ferguson, xi. 598. 314 EVIDENCE. VI. 96. After a partner has retired from the firm, and transferred to the other partners all his rights and interest in the accounts and claims due to the firm he cannot, by his admission of the payment of a particular account, prejudice the rights of the remaining partners in the collection of such account. American Iron Mountain Co. v. JEvans, xxvii. 552. 9*7. An admission made by a member of a firm after the retirment of another member, is not admissible against such retiring partner. Pope v. Risley, xxiii. 185. 98. In a suit against A. and B. as partners, the declarations of A. are inadmis- sible in behalf of B. to disprove the partnership alleged. Young v. Smith, xxv. 341. CTarA v.\H"M/aA:er, xxvi. 264. 99. Nor where B.'s declarations are resorted to to prove the partnership as against him, can he disprove such declarations by his declarations of a contra- dictory character. Clark v. Huffaker, xxvi. 264. g. BY AGENT OE EMPLOYEE. 100. The admission of an agent that goods sold by him were the property of his principal, may be given in evidence on a trial between the principal and the creditors of the agent, to show that the goods did not belong to the agent ; and a receipt given to the agent by one to whom he had entrusted, for collection, an order for the proceeds of the goods, is also competent evidence. Bell v. Glover, i. 573. 101. The declarations of an agent at the time of selling property, tending to show that he claimed and sold the property as his own, are competent evidence on behalf of a purchaser from*such agent to show title in the agent. Greene v. Chickering, x. 109. 102. The declaration of an agent binds the principal only when it is made during the continuance of the agency, in regard to transactions then depending ; and the declarations of the captain of a steamboat, as to the cause of a collision, are inadmissible against the owner. Rogers v. McCune, xix. 551. 103. Where the question was as to the negligence of the officers of a boat, the declarations of the pilot are not admissible in evidence. Beady v. St. Bt. Highland Mary, xx. 264. 104. The declarations or admissions of one who assumes to be agent for an- other, are not of themselves admissible to prove the agency. Craighead v. Wells, xxi. 404. 105. The plaintiff sued for the value of certain horses taken by the defendant on an execution against one C. The plaintiff claimed that the horses were pur- chased for her by C. as her agent — Held, that the declaration of C, while making the purchases, that he was buying for himself, was admissible in evidence ; and that it might be shown that C. was at the time insolvent. McNedey v. Eunton, xxiv. 281. h. BY PRINCIPAL AND SURETY. 106. A surety is not bound by the admissions of his principal unless made in the course of his business. Blair v. Perpetual Ins. Co., x. 559. EVIDENCE. VI 315 107. The admissions of a constable, formiDg no part of the res gesta, are not evidence against his sureties. The State v. Bird, xxii. 470. 108. In an action on an official bond against the principal and sureties, the admissions of the principal, made after the expiration of his term of office, are not evidence against the sureties. City of St. Louis v. Foster, xxiv. 141 . i. BY A GRANTOB. 109. The declarations of a grantor, before his purchase of the lot in dispute, are no part of the res gesta of a subsequent sale by him, and are not admissible as evidence of the consideration of the sale to his vendee. Gamble v. Johnson, ix. 597. 110. The declarations of a grantor, made at the time of executing a convey- ance, are part of the res gesta, and are evidence to show the intent of the grantor in executing the deed, as against him, and all persons claiming under him. Ibid. 111. Declarations made by the grantor in a deed of trust, after its execution, in support of the deed, are admissible, but those against it are not McLaughlin V. McLaughlin, xvi. 242. j. BY VBNBOH. 112. Where slaves remained in the hands of the vendor until his death, and were then taken possession of by the vendee, who was thereupon sued as executor , de son tort, and who, on trial, proved that the vendor, while the slaves were in his possession, declared them not to be his, but to be the property of the vendee, it is competent for the adverse party to show that the vendor, on another occa- sion after the sale, and while he was in possession, declared that the slaves were his own. Foster v. Nowlin, iv. 18. 113. The fact that a vendor's declarations, after a sale, have been given in evi. dence to establish title in the vendee, does not render admissible for the adverse party his declarations made at a different time, and not in the presence of the vendee. {Foster v. Nowlin, iv. 18, commented upon and explained.) Wilson v. Woodruff, V. 40. k. BY A WIDOW. 114. In a controversy between the heirs and the husband of the widow of a deceased person, in reference to his property, the declarations of the widow are not admissible. Wall v. Coppedge, xv. 448. 1. BY PARTIES TO ACTION. 116. An acknowledgment by the plaintiff that he received money from the de- fendant, but at the same time stating that it was as a loan, is not an admission of payment. Oldham v. Henderson, iv. 295. 116. Where, on a trial before a Justice, the defendant testified on the demand of the plaintiff, (R. 8. 1835, 361, § 16,) and the case was appealed, the plaintiff cannot show, on the trial in the appellate court, the admissions or disclosures of the defendant in his testimony before the Justice. Martien v. Barr, v. 102. 316 EVIDENCE. VI. 11 7. The statements and declaration of a party are not admissible in evidence in his own favor, unless they form a part of the res gesta, or are made in the presence of the adverse party. Mulliken v. Gh'eer, v. 489. McLean v. Ruther- ford, viii. 109. 118. Where the declarations of a party are given in evidence against him, he is entitled to the entire statement, and all that was said by him connected there- with on the same occasion. Howard v. Newsom, v. 523. Reevs v. Hardy, vii. 348. 119. The admissions of a party of record are admissible, although he has parted with his interest in the suit ; and his ceasing to be a party by death, before the admissions are offered in evidence, will not exclude them. Dillon v. Chouteau, vii. 386. 120. Where the parties to a suit have a joint interest in the matter in contro- versy, whether as plaintiffs or defendants, an admission made by one is, in gen- eral, evidence against all. Armstrong v. Farrar, viii. 627. Hurst v. Robinson, xiii. 82. 121. It is not essential to constitute a statement an admission, that the party should have personal knowledge of the facts admitted. Where a party believes a fact to be true, upon evidence satisfactory to his own mind, his statement of it, when against his interest, is evidence, though of an unsatisfactory character. Sparr v. Wellman, xi. 230. 122. The statement of a party to a suit that he supposed he should lose the cause, is not admissible in evidence. Crockett v. Morrison, xi. 3. 123. Declarations or admissions made by a party to a suit, are not conclusive as to the truth of the facts submitted. Cafferatta v. Cafferatta, xxiii. 235. * See Husband and Wife, 116. m. BY PARTY IN POSSESSION. 124. The declarations of a person in possession of property are not admissible as evidence in his favor, or in favor of those claiming under him to show title in such person. [Foster v. Nowlin, iv. 18, commented upon and questioned.] Turner v. Belden, ix. 181. Criddle v. Criddle, xxi. 522. 125. But the declarations of a party made while in possession of personal pro- perty, against his title, are admissible in evidence against a party claiming under him. Cavinr. Smith, xxi. 444. Burgess v. Quimhy, xxi. 608. Criddle v. Criddle, xxi. 522. 126. The declarations of a party in possession of property against his interest are admissible in evidence against one claiming under him, where the declara- tions were made prior to the inception of the successor's title. Cavin v. Smith, xxiv. 221. 12 7. Declarations of a person in possession of land as a life tenant cannot he received in evidence to make his life estate an estate in fee. Watson v. Bissell, xxvii. 220. n. BY A WITNESS. 128. The declarations of a witness not made under oath are not admissible to corroborate his evidence given on oath. Riney v. Vanlandingham, ix. 807. EVIDENCE. VI. 317 129. Evidence of the declarations of a witness, which would otherwise be inadmissible, is admissible where they constitute a part of the transaction. [Saw- kins V. The State, vii. 190, referred to in illustration.] Crowther v. Gibson, xix. 365. See Witness, 10. O. BT OBLIGEE IN A BOND. 130. Admissions by the obligee of a bond, while he was the owner of it, that it was given for an illegal consideration, are competent evidence against his assignee. Murray v. Oliver, xviii. 405. 131. And if evidence of his admissions is rejected, the error is not cured by the fact that the obligee is afterwards sworn as a witness, at the instance of the party offering tbem. Ibid. See Intra, 171. p. BY AN ASSIGNOR OF A CHOSE IN ACTION. 132. The declarations of the assignor of a chose in action after assignment, are not admissible in evidence against the assignee. Garland v. Harrison, xvii. 282. q. BY HBIE AND DEVISEE. 133. Declarations made in the lifetime of the deceased, by one whose wife was likely to become an heir to his estate, touching the situation of the property of deceased, are inadmissible. Morton v. Mobssie, iii. 482. 134. Upon a trial for the purpose of determining the validity of a will, where several of the devisees, who were also executors, are made defendants, the decla- rations of one of them as to the state of mind of the devisor, at the time of making the wiU, may be given in evidence against all the defendants. Armstrong v. Farrar, viii. 627. Allen v. Allen, xxvi. 327. r. BY A SHERIFF. 135. Declarations made by a sheriff, previous to the day of sale of property taken in execution, are not admissible to defeat the title of a bona fide purchaser at such sale. Kean v. Newell, ii. 9. S. BY OWNER AND OFFICER OF A BOAT. 136. An officer of a boat cannot bind it by his admissions, but the owners can. Phelfs V. St. Bt. Eureka, xiv. 532. 137. But the admissions of the owner of a boat, made after the boat has been seized and ordered to be sold, are not competent to establish a demand pre- sented for allowance as a lien upon the proceeds. Benshaw v. St. Bt. Pawnee, xix. 532. See Slaves and Slavery, 21. t. MISCELLANEOUS. 138. What is said by those soliciting persons to sign an instrument is, as a 318 EVIDENCE. VII. a part of the res gesta, evidence of its contents as regards an alleged erasure therein. Matthews v. Coulter, ix. 696. See Chancery, 135, 136 ; Criminal Law, 363-365 ; Supra 9. VII. ADMISSIONS BY PLEADING. a. IN CHANCERY PRACTICE. 139. An answer not responsive to a bill is not evidence when replied to, nor is a fact stated by a party, but not upon his own knowledge, entitled to the same weight as one stated upon his personal knowledge. Per Scott, J. Gamble v. Johnson, ix. 597. 140. The defendant's answer is not evidence for him on the trial of an issue unless so ordered by the chancellor, or read by the plaintiff as an admission. Ibid. 141. The statements in a bill in chancery are not usually evidence against the complainant unless sworn to, and not then as to matters stated on information merely, ffall v. Guthrie, x. 621. 142. Where an answer does not positively, clearly and precisely deny an alle- gation in a bill, it is not necessary that it should be contradicted by two witnesses. So, also, where the answer is not sufficiently distinct upon points as to which the defendant is presumed to be well informed. Martin v. Greene, x. 652. 143. The new code does away with the rule in respect to the weight of an answer in chancery. If an answer sets up new matter in defense, the burden of proof is on the defendant. Walton -v. Walton, -ay'ii. ZlQ. 144. Under the chancery practice which prevailed before the enactment of the new code, an answer, if responsive to the bill, was to be taken as true, if no replication was filed. McQueen v. Chouteau, xx. 222. See Chancery, 150-155. b. IN PRACTICE AT LAW. aa. By Demurrer. 145. Where a judgment upon demurrer is entered for the plaintiff, the plain- tiff's cause of action is admitted as stated in his pleading, and the only matter for the jury on an inquiry is to ascertain the amount of damages. St. Bt. Reveille v. Case, ix. 498. 146. A demurrer does not admit the items of an account set forth in a petition so as to do away with the necessity of proof of them. Darrah v. St. Bt. Light- foot, XV. 187. bb. By the Answer. 147. The date when an account sued on accrued is not a material averment in a petition, and is not admitted by a failure to deny it in the answer. Sutler V. Streit, xxi. 157. EVIDENCE. Vm. 319 148. Where a petition is amended, by inserting a material averment, and this averment is not answered, it is deemed to be admitted. Rohards v. Munson, XX. 65. 149. But not unless it be a material averment, and be so stated in the petition as to bring to the mind of defendant its importance in the trial of the cause. Wood V. St. Bt. Fleetwood, xix. 529. Field v. Barr, xxvii. 416. 150. Where an answer is withdrawn, the traversable allegations of the petition stand admitted. Price v. Page, xxiv. 65. 151. So in case of judgment by default for want of an answer. Robinson v. Lawson, xxvi. 69. 152. Where in a petition it was alleged that the defendant "wrongfully entered upon a certain tract of land, &c., of which plaintiffs were the owners and in pos- session, and took from said premises a house thereon situated, used and employed as a Methodist meeting house," and the defendant in his answer •' denied that he wrong&lly entered upon the premises, and took therefrom a Methodist meet- ing house of said plaintifis' ; and the defendant charges the fact to be, that the house spoken of was his (defendant's) property, and not owned or claimed by plaintiffs ;" — ^it was held that this was an admission of the entering and taking away of the house. Emory v. Phillips, xxii. 499. 153. Where the plaintiff used one part of the defendant's answer as evidence, it was held, that the defendant had no right to use other parts of the same answer as evidence for himself. Qunn v. Todd, xxi. 303. See Pbactice, 120. 7III. ONUS PROBAND!. 154. Where the burden of proof lies upon one party, it cannot be thrown upon the other party by the form of the pleading. The State v. Melton, viii. ill. 155. In an action against a sheriff, for failing to make return of an execution, the burden of proof lies upon the sheriff. The plaintiff is not bound to prove the allegation that the sheriff did not make return of the execution according to the command thereof. Ibid. 156. Where, in an action on the compound covenant of seizen of an inde- feasible estate in fee simple, the plaintiff, in, assigning the breach, simply negatives the words of the covenant, and the defendant replies that he was seized, (fee, the burden of proof is on the defendant, but the plaintiff can recover only nominal damages, unless he shows the extent of incumbrances, or the want of seizin in the defendant. Bircher v. Watkins, xiii. 521. 157. Under the plea of payment, the burden of proof is on the defendant, who must prove the payment of money, or something accepted in its stead. Yamell V. Anderson, xiv. 619. 158. In an action against an administrator, de bonis non, the burden of proof is upon the plaintiff, to show the amount of assets that went into his hands, and a fiiUiire to account for them. The State v. Collier, xv. 293. 32Q EVIDENCE. X. IX. EXAMINATIOJSf OF PARTIES, 159. Where there are more than one plaintiflF or defendant to a suit origjnar ting in a Justice's court, and the testimony of such parties is desired, ^11 should be required to testify, The testimony of those required to testify, or, in the event of their refusal, the testimony pf the opposite party can only be used against such as are called upon to testify, and is no evidence against the. others. [Levy V. Hawley, viii. 510, explained.] Qrigg v. Bod/rio, ix. ^22. 160. ^ suit upon a promissory note was defended upon the ground Ijhat the defendant was merely a security, and had given notice to the plaintiflF to sue, which he had not done. The pla,intiflF was examined as a witness and,Tyas asked to state who was principal upon the note. In answer, the plaintiflF stated that the defends^nt was principal, " for the reason that said note was given to secure the payment of the purchase money for a certain tract of land sold by the plain- tiflF to the defendant " — Held, that the reason thus assigned did not amount to, "new matter" within the statute, (Acts 1848-9, 99., § 9.) Christy v. Some, xxiv. 242. X. EVIDENCE IN PAilTICXJLAE C.^SES. a. EXECUTION 01' INSTRUMENT SUED ON. 161. The plaintiflF must produce, the instrument sued on, upon the trial. The only eflFect of the statute, (Geyer's Dig., 250, § 23—1 Ter. L. 115, § 27,) is to relieve the plaintiflF from proof of its execution, where that fact is not denied on oath. Labeaume v. Laheaume, i. 487. Himly v. Seed, i. 487. Holmes v. All, i. 419. Foster v. JVowlin, iv. 18. Hickman v. Kunkle, xxvii. 401. 162. And this onfy applies to such instruments as are made the foundation of the action. Gollins v. Bowmer, ii, 195. Maupin v. Triplett, v. 422. 16a. And does not place simple contracts on the footing of sealed instruments. Carroll v. Corn, i. 161, Wahrendorff v. Whitaker, i. 205. 164. The statute applies to suits against executors on notes executed by the deceased. Soulard v. Pratte, i. 571. Vincent v. Pitman, i. 712. 165. But where a note is executed by an agent, and that fact appears on its fjace,the authority of the agent must be sjiown. Wahrendorffy. Whitaker,i.W5. 166. These principles apply to the R. S. 1835, 463, § 18. Fields y. Hunter, viii. 128. 167. And embrace an action on an acceptance of a bill of exchange. Warm V. Anderson, vii. 46. 168. But under this latter statute the plaintiflFs must show that they compose the fixm of A. & Co., where the note sued on is payable to such firm. Bempsey V. Harrison, iv. 26.7. 169. The admission of incompetent evidence in proof of the execution of an instrument, no proof on that point being necessary, is not error. Foster v. Now- lin, iv. 18. EVIDENCE X. 321 170. The fact that the defendant permitted a bill of sale to be read in evi- dence on two previous trials, without proof of its execution, does not make it evidence on a third trial, without proof. Baldridge v. Walton, i. 520. 171. Every instrument that is attested, whether under seal or not, ought to be proved by a subscribing witness, and an acknowledgment by the obligor himself admitting that he executed the instrument, will not dispense with the testimony of the subscribing witness. Smith v. Mounts, i. 671. 172. And the execution of the instrument can be proved by such witness only when it is before him when his testimony is taken. Neale v. McKinstry, vii. 128. 173. Under the statute, (R. S. 1845, 655, § 26,) the only consequence of a failure to deny the execution of a note sued upon under oath, is, to relieve the plairitiflf from the necessity of proving its execution. Under a plea of non est fac- tum, without aflBdavit, every other defense is admissible. Klein v. Keyes, xvii. 326. 174. Where promissory notes, purporting to have been executed by an agent, are sued on, the ordinary denial of their execution, without the verification required by statute, (R. S. 1845, 819, § 23,) is sufficient. Pope v. Risley, xxiii. 185. See Justice op the Peace, 30. b. PRIVILEGBD COMMUNICATIONS. 175. Communications made by a client to an attorney at law, while employed in that capacity, are privileged, and are inadmissible in evidence, though, at the time such communications were made, judicial proceedings may not have been commenced or contemplated. Johnson v. Sullivan, xxiii. 474. 176. And the attorney cannot be permitted to testify concerning them without the consent of his client. The rule applies to the case where two persons, having hostile interests, jointly consult the same attorney at the same time with respect to the matter in dispute, and one of such parties calls upon the attorney to testify with respect to the declarations and admissions made by the other at the consultation. Whether a communication is privileged is a question for the court. Hull V. Lyon, xxvii. 570. See Witness, 59. C. CHURCH BE&ISTRT. 177. Church registers are not admissible in evidence, except by special statute unless they are, by the civil law of the country or State where kept, recognized as documents of an authentic and public nature, and then recitals therein are not admissible as evidence of pedigree. Childress v. Cutter, xvi. 24. d. ACCOUNT AND ACCOUNT RENDERED. 178. An account rendered to a merchant, who keeps it for a long time with- out making any objection thereto, is presumed to be correct ; and the same doc- trine applies to other persons, between whom are accounts current or accounts in the ordinary course of business. Skepard v. Bank of Missouri, xv. 143. 21 322 EVIDENCE. X. 179. It is no objection to the admission of an account offered in evidence, that it varies somewhat from that filed in the cause. Murdoch v. Finney, xxi. 138. e. ACCOUNT BOOKS AND MEMORANDA. 180. Loose memoranda of a book-ieeper, not made in the course of his em- ployment, are not admissible in evidence against his principal. Lackey v. Schreiber, xvii. 146. 181. Where the books of the plaintiff are introduced as evidence by the defendant, it is competent for the plaintiff also to use them. Beach ir. Curie, XV. 105. 182. A plaintiff^s books of account kept by his sons, absent at the time of the trial in another State, accompanied by his suppletory oath, are not admissible evidence in his favor, nothing appearing to show that the entries were made at or near the time of sale. Penn v. Watson, xx. 13. 183. A plaintiff's book of original entries, sworn to by him, is not admissible evidence in an action for goods sold and delivered. Hissrick v. McFherson, XX. 810. A 184. In a suit for work and labor, evidence tbat the services sued for were charged to the defendant on the plaintiff's books, is inadmissible. Oozens v. Barrett, xxiii. 544. See Supra, 4, 5. f. CHARACTER. 185. A witness, called to prove general character, will not be stiffered to testi- fy to his own individual knowledge of acts of recklessness. Patrick v. St. Bt. J. Q. Adams, xix. 73. 186. The character of either party to a civil suit cannot be inquired into, unless it is put in issue by the nature of the proceeding itself. Gutzwiller v. Lackman, xxiii. 168. 187. It is inadmissible to show the reputation of the plaintiff for chastity among a majority of her neighbors, with whom the witness had conversed. Adams V. Hannon,m. 222. See Husband and Wife, 115. g. MISTAKE. 188. It is not necessary, in order to establish a mistake in- an instrument, to show that particular words were agreed upon to be inserted ; it is sufficient that the parties had agreed to accomplish a particular object, and that the instrument as executed is insufficient to effect their intention. Leitensdorfer v, Belphy, XV. 160. 189. Although it is said that the evidence required to prove a mistake, when it is denied, must be as satisfactory as if the mistake were admitted, yet this and similar remarks of judges, however distinguished, form no rule of law to direct courts in dispensing justice. When the mind of a judge is entirely convinced upon any disputed question of fact or law, he is bound to act upon the conviction. Ibid. EVIDENCE. X. 323 LEX NON SORIPTA. 190. The writings of eminent lawyers, and the reported decisions of courts, are evidences of the unwritten law in civilized countries. Mafguerite v. Chouteau, iii. 540. i. HANDWRITING. 191. A witness may acquire such knowledge of a person's handwriting as to render him competent to testify to his signature, by having seen his letters on business, and finding that he recognized and acted upon them. Scott, J., dis Reyhurn v. Belotti, x, 597. j. • DOCUMENTABT. 192. A search warrant is not admissible in evidence for any purpose, unless it appears to have been founded upon the proper oath. Halsted v. Brice, xiii. 171. 193. To make the contents of a document (a periodical publication) in a foreign language evidence, it must be translated, and be brought home to the knowledge of the party against whom it is sought to be used. Meyer v. Witter, XXV. 83. k. NAME. 194. The possession of a note by Charles R. Rogers which had been assigned to C. R. Rogers, is evidence tending to show that he is the same person named in the assignment. Birch v. Rogers, iii. 227. 195. A note signed " Christ. A." will support a declaration against " Christo- pher A. ; " the court wiU take notice of such common abbreviations. Weaver v. Me.Elhenon, xiii. 89. See Administration, 7-10, 30-32 ; Agency, I ; Appeal, 87 ; As- sumpsit, IV ; . . . .Attachment, VIII ;. . . . Attornet at Law, 13, 14 ; . . . .Bills of Exchange and Promissory Notes, 18, 19, 85, 86, 95, 96 ;. . . .Boats and Vessels, XII ;. . . .Bonds, Notes and Accounts, 91-93 ;... .Chancery, 183, 184;. .. .Confirmations and Govern- ment Grants — See Public Lands, 78-91, 101-108 ;. . . .Considera- tion, IV ; . . . . Contract, XI ; . . . . Conveyances, 12-17, III ; ... . Covenant, 30-33 ;. . . .Criminal Law, IX;. . . .Debt, II;. . . .Dram- shop, 27-34 ; Ejectment, 26-35 ; Execution, 110, XVI; Fraud, I ; Fraudulent Conveyances, IV ; . . . .Freedom, 13-17 ; . Laws, II ; . . . . Libel and Slander, IV ; . . . . Malicious Prosecu- tion, III ; Master and Servant, 9 ; Master and Slave, 1 1 ; .... Mechanics' Lien, 26, 27 ; ... . New Madrid Certificates — See Public Lands, 187.-189 ; Partition, 17, 18; Partnership, II ; Petition in Debt, II ; Replevin, V ; Securities, VII ; . . . .Trespass, VI ; Trover, VIII ; Usury, V. SS4 EXECUTION. XI. INTRODUCTION AT TEIAL.— See Practice, 14T-166, 193, 194, 225, 306-322. See Practice in Supreme Court, IV ;.... Process, IV ;.... Record, H- , . . .Revenue, 7-9. EXEqUTION. L TIME AND MODE OF ISSUING. a. 'WHEN IT MAY ISSUE. b. ALIAS EXECUTION. C ON CONPEBSION OP JODUMENT BEFORE JUSTIOK. d. AGAINST BAIL. e. ON TRANSCRIPT FROM JUSTICE. f. AGAINST decedent's ESTATE. II. SETTING ASIDE, QUASHING AND ENJOINING. III. TIME AND MANNER OP SERVING. IV. LEVY. V. EXEMPTION FROM. VI. WHAT IS, AND WHAT IS NOT SUBJECT TO EXECUTION. VII. LIEN. VIIL TRIAL OF THE RIGHT OF PROPERTY. IX. INDEMNIFYING AND DELIVERY BOND. X. SALE. a. NOTICE. b. TIME ANt) MANNER OF SALE. C. CONSIDERATION. d. DESCRIPTION. e. VALIDITY, f. FRAUD. g. TITLJ! ACQUIKED UNDER. h. DUTY OF OFFICER. i. NOTICE TO SET ASIDE. j. LIABILITY AND RIGHTS OF PURCHASER, k. WARRANTY. 1. ON EXECUTION FROM UNITED STATES COURT, m. EVIDENCE. XI. DISTRIBUTION AND APPROPRIATION OF PROCEEDS. XII. SATISFACTION OP EXECUTION. XIII. LIABILITY, RIGHTS AND DUTIES OF OFFICER. XIV. SHERIFF'S DEED. XV. RETURN. XVL WRIT AS EVIDENCE. EXECUTION. I. 325 I. TIME AND MODE OF ISSXHNG. a. WHEN IT MAY ISSUE. 1. The section of the new code, (Acts 1849, 92, § 2,) which provides that " after the lapse of five years from the entry of judgment, an execution may be issued only by leave of the court, on motion, with notice to the adverse party," applies to judgments existing at the time the act went into effect ; the applica- tion is the same, even if execution has been sued out within the five years. Bolton V. Lansdown, xxi. 399. b. ALIAS EXECUTIOlf. 2. Where a levy has been made under execution issued in accordance with the statute, an alias execution cannot regularly be issued, until the first levy is exhausted. Bail;/ v. Gentry, i. 164. 3. Where a writ of execution has been issued within a year and a day after judgment rendered, and is returned " not satisfied," another execution may issue after the lapse of a year and a day from the return of the first, without a revival of the judgment by scire facias. Dow^Tian v. Potter, i. 518. Lindell v. Bentom vi. 361. Clemens v. Brown, ix. 709. C. ON CONrEBSION OF JUDGMKST BEFORE JUSTICE. 4. Where a defendant in a Justice's court appears at the return day and con- fesses judgment, and an entry of such confession is made upon the Justice's docket, an execution may lawfully issue, although no entry is made upon the docket of a judgment upon the confession. Franse v. Owens, xxv. 329. d. AGAINST BAIL. 5. A Justice has no power under the statute (R. S. 1835, §64, § 15,) to issue execution against a party as bail of another against whom there was an unsat- isfied judgment, because such party had promised to become bail in the case, and considered himself liable as such. Amoneit v. Nicholas, v. 557. e. TRANSCRIPT FROM JUSTICE. 6. Where judgment is obtained before a Justice, and a transcript is filed in the Circuit Court, and the clerk issues an execution thereon, it must affirmatively appear, in order to the validity of such execution, that a prior execution had been issued by the Justice rendering the judgment which had been duly returned nulla bona by the officer, and the record of the Justice is the proper evidence of that fact. Coonce \.J\Iunday,m. 373. Burk v. Flumoy, iv. 116. [But see Murray v. Laften, xv. 621.] 7. It is not sufficient that the clerk recites in the executiion ksned by him that such prior execution was issued and returned nulla bona, Cooace r, Mwnday, iii. 373. 8. Nor is it sufficient that the officer returned on &« Justice's ^ecutkin, " not satisfied by levying on property and making $29." The return must ^low that the judgment debtor had no more goods. Burk v. Flumoy, iv, 116. 326 EXECUTION. H. 9. A certified copy of an execution, and the return of nulla bona tiereon from the Justice, is evidence sufficient upon which to justify the issuing of execution by the clerk. Wineland v. Coonce, v. 296. Williams v. Boyce, xi. 537. 'Crowley v. Wallace, xii, 143. 10. A judgment having been recovered in a Justice's court, and a large por- tion of it paid, an execution issued from the Circuit Court on a transcript of the judgment filed in the clerk's office, will not be quashed for informality in the proceedings before the. Justice, when it appears that the defendant had appeared and submitted to the judgment. Grissom v. Allen, x. 303. 11. Where a defendant, in a suit before a Justice, is served with process in the township in which the suit is begun, it will be presumed, in the absence of evi- dence to the contrary, that he resides in such township, and the return of the constable on an execution of " no property found of defendant in said township whereof to levy," is sufficient to warrant the issuing of execution from the office of the clerk of the Circuit Court. Franse v. Owens, xxv. 329. 12. Where a Justice, in case of separate suits by different parties against the same person, certifies the judgments as a single judgment to the Circuit Court, an execution, or other proceeding thereon, should be quashed and set aside. Bain v. Chrisman, xxvii. 293. See Mechanics' Lien, 30. f. AGAINST decedent's ESTATE. 13. After the expiration of eighteen months from the time of granting letters testamentary, or of administration, an execution may issue on a judgment ob- tained before death, against either the testator or intestate, or against his execu- tor or administrator after death. (Act of 1817, 1 Ter. L. 510, § 5.— Act 1822, 1 Ter. L. 926, § ^8.) Beauchamp v. Best, i. 661. Scott v. Whitehill, i. 691. Carson v. Walker, xvi. 68. 14. But the act of Dec. 30, 1826, which took effect May 1st, 1837, (2 Ter.L. 103,) abolished executions against the estates of deceased persons. Under prior statutes they were legal till that time. Carson v. Walker, xvi. 68. Miller r. Doan, xix. 650. Sweringen v. Eherius, vii. 421. II. SETTING ASIDE, QUASHING AND ENJOINING. 15. An injunction cannot issue from the court in one county to enjoin an exe- cution issued from the court of another county. [Reed v. Vaughn, x. 447, referred to and applied.] Pettus v. Elgin, xi. 411. 16. Nor can a court of one county quash an execution issued to the sheriff of that county from the court of another county. McDonald v. Tiemann, xvii. 603. 17. Although motions to set aside proceedings under an execution should be made during the return term of the writ, yet, where, by authority of the court, the return of the writ is made at a term subsequent to the return term, the court may, at such subsequent term, entertain a motion to set aside the proceedings under the execution for irregularity. Nelson v. Brown, xxiii. 13. See Juws- DioTioN, 160 ; Chanceet, 107, EXECUTION. V. 327 m. TIME AND MANNER OF SERVING. 18. An oflBcer has until the return day of the writ to execute it, unless there are special circumstances which mate it his duty to execute it sooner. The State V. Ferguson, xiii. 166. The Slate v. Rollins, xiii. 179. 19. It is competent for a sheriflFto show that the defendant, in an execution placed in his hands, was out of his county after that time until he applied for the henefit of the bankrupt law, as an excuse for not serving the execution. The State V. Rollins, xiii. 179. IV. LEVY. 20. Under the statute of 1824, relating to corporations, (R. S. 1825, 223,) an execution against a corporation should run only against lands, goods, &c. Lin- dell V. Wash, iii. 512. 21. An execution on a judgment against a principal and surety, levied on property of the principal, which cannot be sold for want of bidders, may still be levied on the property of the surety. Although the constable, by failing to sell such property, becomes liable, the surety is not discharged. Moss v. Craft, X. 720. 22. Under an execution against two, the sheriflF cannot take the property of one defendant and the body of the other. Usher v. Thomas, x. 761. 23. A sheriff having money in his hands, collected on an execution in fevor of A., cannot, on receiving an execution against A., levy it thereon, but the court may direct it to be so applied, if the right of no third party has accrued thereto. Ex parte Fearle,ii\n. 467. 24. An execution, issued under a judgment against one of two partners, may be levied upon his entire interest in the partnership effects, or upon his interest in any portion of them. And in levying such an execution upon partnership property, the sheriff may seize and take into his possession a portion, or the whole of the partnership effects, and may give possession to the purchaser thereof at an execution sale. Richardson, J., dis. Wiles v. Maddox, xxvi. 77. 25. But the purchaser at such a sale acquires only the interest of the debtor partner in the property sold. Ibid. V. EXEMPTION FROM. 26. Where a mechanic abandons his business and absconds, the tools of his trade are not exempt from seizure and sale on execution. Davis v. Wood, vii. 162. 27. The specifications of property exempt from execution are cumulative. (R. S. 1835, 255, § 15.) Where a mechanic is the head of a family, the statute ex- empts the same property from execution which is exempt when owned by the head of a family who is not a mechanic, in addition to the tools of his trade. Harrison v. Martin, viL 286. 328 EXECUTION. VI. 28. A man who controls, supervises and manages the affairs about the house is the "head of a family," within the meaning of the statute, (R. S. 1845, 477, 8 11,) and such a man need not necessarily be a husband or a father. Wade v, Jones, XX. 75. ^ / ■ 29. Under the act of 1847, (Acts 1846-7, 52,) every head of a family may hold property to the amount of $150 exempt from execution, whether he owns any of the property mentioned in first and second clauses of § 11 of act of 1845, or not. The State v. Farmer, xxi. 160. 30. It is no defense to an action by a debtor against his creditor, for selling on execution property at the time alleged to be exempted, that the debtor had, at the time of the levy and sale, other property concealed more than sufficient in value to pay the debt. Megehe v. Draper, xxi. 510. 31. Under the act amendatory of the act concerning executions, approved March 5, 1849, (Acts 1848-9, 67,) property acquired by the husband by purchase after marriage, is not exempt from execution for debts contracted by the wife before marriage. Phelps v. Tappan, xviii. 393. 32. Where a wife, a minor, owns land, the husband's estate .therein during marriage may be sold for his debts. Schneider v. Staihr, xx. 269. [Ques- tioned IN Harvey v. Wickham, xxiii. 112.] 33. The act of 1849, (Acts 1848-9, 67,) by which certain property of the wife is exempted from the debts of the husband, applies only in cases where the debts are contracted after the passage of the act, and previous to the time the wife came into the possession of the property. Cunningham ^r. Gray, xx. 170, Tally y. Thompson, xx. 277. Hajrvey v. Wickham, xxiii. 112. SocJcaday v. Sallee, xxvi. 219. 34. And the property of the wife is not exempt from liability for debts con- tracted by the husband after the property has come into the possession of his wife. Barhee v. Winter, xxvii. 140. 35. Where land purchased with the money of the husband is conveyed in trust for the separate use of the wife, with intent to hinder and defraud the cred- itors of her husband, it is subject to sale on execution issued under judgments in favor of such creditors. Uddy v. Baldwin, xxiii. 688. See Husband and Wife, 32 ;. . . .Infra, 65. VI. WHAT IS AND WHAT IS NOT SUBJECT TO EXECUTION. 36. An improvement on public land is not subject to sale on execution. (See R. S. 1835, 256, § 17.) Hatfield v. Wallace, vii. 112. 37. The bare possession of a chattel by a mortgagor, with the consent or permission of the mortgagee, and determinable at his will, is not the subject of Sale under execution. King v. Bailey, viii. 332. 38. A mortgagor or pledgor of personal property in the possession of the mortgagee or pledgee, has no interest therein subject to sale on execution. Set- ton V. Monks, xvi. 166. EXECUTION. VL 329 39. A., having purchased a, tract of land, got a bond for title upon payment of the purchase money. He then sold his right and transferred the title bond to B. — Held, that A. has no interest in the land which is subject to execution. Broadwell v. Yantis, x. 398. See Lumley v. Robinson, xxvi. 364. 40. But under the statute, (R. S. 1845, 478, § 14, cl. 5,) a court of equity will recognize an interest in the land in the purchaser, that may be sold on execution. It is otherwise, however, where, by the agreement, no money has been paid by him who may become the purchaser, and he is not under any obligation to pay. Brant v. RoterUon, xvi. 129. 41. But after a tender of the purchase money, he has an interest in the land subject to execution. Anthony v. Rogers, xvii. 394. 42. By the territorial law, (1 Ter. L. 23, § 10,) unconfirmed land titles were sub- ject to sale under execution. Landes v Perkins, xii. 238. 43. At common law, an equitable interest in chattels could not be sold on execution, and this principle has been sanctioned by the statute. Yeldell v. Stemmons, xv. 443. Boyce v. Smith, xvi. 317. 44. The statute expressly subjects equitable interests in lands to sale, but not equitable chattel interests. At law, after forfeiture, the mortgagor has no inter- est in the chattels mortgaged. The right of redemption is a mere chose in action, not the subject of levy and sale. But the creditor is not without redress ; he may, by suitable proceedings, ascertain the precise interest his debtor has in the property, and then subject it to sale, when there can be no sacrifice. Ibid. 45. A resulting trust is liable to be seized by the creditors of the cestui que trust. Rankin v. Harper, xxiii. 579. , 46. One Lowe was indebted to the plaintifi' and others in the sum of $4,500, and assigned to him, in trust, certain notes against O. and R., as collateral se- curity therefor. By a subsequent arrangement between all the parties, O. con- veyed to Lowe certain lands, in consideration of a credit of $3,500 on O. and R.'s notes, and Lowe at the same time conveyed the same land in trust to the plaintifi' to secure the $4,500, who afterwards sold it and became the purchaser under the deed of trust for a sum less than the debt. Between the time of mak- ing the foregoing arrangement and its final consummation, the defendant recovered a judgment against Lowe, and levied his execution on the above mentioned land — Held, that since the land did not sell for enough to satisfy the deed of trust, Lowe had no interest in it subject to execution ; and that although nothing would pass by sale under the execution, still the court would not enjoin such sale. Drake v. Jones, xxvii. 428. 47. Where a father, being in failing circumstances, purchases land, and causes the title to be vested in a third person in trust for his own children, with a view to defi'aud his creditors, there will be a resulting trust to himself for the benefit of his creditors, which interest may be seized and sold on execution under a judgment against him in favor of one of these creditors. Herrington v. Herring- ton, xxvii. 660. See Infra, 95 ;. . . .Mechanic's Lien, 29 ;. . . .Moktgage, 65. 330 EXECUTION. VIII. VII. LIEN. 48. An execution is not a lien on defendant's personal property after it has been returned by order of plaintiffs attorney. Brow a v. Slieriff, i. 154. 49. The lien of an execution in the hands of the sheriff, the levy of which is directed to be stayed by the plaintiff, is destroyed as to executions subsequently coming tp the hands of the sheriff, and the latter will be first satisfied. Wise v. Darby, ix. 130. , 50. So where there has been a levee, and the proceedings are then stayed by plaintiff. Per Napton, J. Ihid. 51. Where there are two executions against the same defendant, the lien of the executions, as between the execution creditors, attaches from the levy, and not from the time at whicb they vvent into the hands of the officer. Per MoBride, J. Field v. Milburn, ix. 488. 52. Where an execution is issued upon a judgment, and levied while the judg- ment is a lien upon real estate, the lien and its priority are continued until the writ is executed, although the period during which the judgment is a lien should in the meantime expire. Bank q/ Missouri v. Wells, xii. 361. 53. An execution issued under a judgment against one of several partners, will be a lien on such partner's interest from the time of its delivery to the offi- cer. Wiles V. Maddox, xxvi. '7'7. See Lien, 11. VIII. TRIAL OF THE RIGHT OF PROPERTY. 54. Where execution issues in an attachment case for the sale of the property attached, the sheriff has no right to try the right to the property, but must sell. (R. S. 1825, 149, §l0.) Mitchel v. Gregg, iv. 37. 55. No appeal lies from the determination of a jury summoned by the consta- ble to try the right of property between the execution debtor and the claimant. The only effect of the decision of the jury is to justiiy the constable in selhng. Per Tompkins, J. Little v. Seymour, vi. 166. 56. Where a constable's jury find a verdict on the trial of the right of certain property levied on by him, his authority with reference to the trial of the right of property is at an end, and a verdict on a subsequent trial is without effect, and is no protection to the constable. Canifax v. Chapman, vii. 175. 57. In the trial of the right of property levied on by the constable, the jury must be sworn by the constable, or some other person qualified to administer an oath. (R. S. 1835, 367, § 15.) Brown v. Burrus, viii. 26. 68. Where the claimant of property levied upon by the constable withdraws his claim before the trial, the authority of the constable to try the right is at an end. Tompkins, J., dis. Ibid. 59. In a proceeding to try the right of property between the defendant in the execution and the claimant, the verdict of the jury is a full protection to the offi- cer, as well against the plaintiff in the execution as the claimant. The plaintiff EXECUTION. IX. 331 cannot compel the officer to sell the property levied upon by tendering a bond of indemnity. (See R. S. 1835, 257, § 24— 367, §§ 14-16.) Fisher \. Gordon, viii. 386. [But it is otherwise by the R. S. 1855, 743, § 30.] 60. Art. VIII of the new code relating to the claim and delivery of personal property, (Acts 1848-9, 82,) does not repeal the act relating to Justices' courts which authorizes a trial before the constable of the right of property where a third party interposes a claim. (R. S. 1845, 662, §§ 12-14.) It^ on such a trial, the jury decide against the claimant, he cannot proceed against the con- stable, though he may against all others who have interfered with his property. Schroeder v. Clark, xviii. 184. 61. Where a constable had seized goods on execution to which another party interposed a claim, and the jury summoned to try the right of property found that the goods belonged to the plaintifif in the execution, the verdict, though in- formal, will justify the officer in selling. Ibid. 62. A delivery bond given for property seized under execution, does not take away the trial of the right of property when a claim is interposed, nor the power of plaintiff by giving a bond of indemnity, to compel the officer to sell, notwith- standing a verdict for the claimant. Waterman V. Frank, xxi. 108. See Attachment, XIII;. . . .Costs, 40. IX. INDEMNIFYING AND DELIVERY BOND. 63. Where a defendant in an execution gives a bond for the delivery of prop- erty on the day of sale, and fails to comply with its conditions, and the value of the property is less than the debt, the judgment against him and his securities should be for the value of the property and ten per cent, damages. But where the value of the property is greater than the debt, the judgment should be for the debt and ten per cent, damages. If a part of the property be delivered, what- ever amount is made by the sale of it should be credited upon such judgment. Lee V. Moore, xii. 458. 64. If the claimant of property levied on becomes a party to a bond for its delivery, he can only avail himself of his claim by complying with the conditions of the bond and then mating his claim to it. If he suffers a forfeiture, he can not avoid the consequences of it by a future successful assertion of his claim. Fage v. Butler, xv. 73. 65. A bond exacted by a sheriff, to compel the delivery of property levied upon which is exempt from execution, is void, unless the defendant, either by act or omission, waives his rights. Rohards v. Samuel, xvii. 555. 66. A delivery bond, although given by a party other than the defendant in the execution, and made payable to the officer instead of the plaintiff, is good as a common law bond, although, not being in conformity with the statute, it would not authorize the summary statutory proceedings. Waterman v. Frank, xxi. 108. 67. In a suit upon a forfeited delivery bond, given by the claimants of pro- perty seized under execution against another, the defendants cannot be permitted to show in mitigation of damage that the property belonged to them. Ibid. 832 EXECUTION. X. 68. Goods were levied on by the sheriff under execution, and advertised to be sold. On the day of sale, by agreement of the parties, a bond was executed by the defendant with sureties to the plaintiff, for the delivery of the goods at a future day — Held, that this was not a statutory bond within the meaning of the act relating to executions, (R. S. 1846, 482, § 31,) and could not be enforced as such by a mere motion. Selmes v. Smith, xxi. 526. 69. The only objection that can be entertained by the court, under the statute, (Acts 1854-5, 465, §'7,) to an indemniiying bond demanded by the sheriff, is as to the sufficiency of the security. It cannot be objected that the penalty is insufficient. The action of the court under § 8 is not conclusive on the claim- ant as to any other valid objection to the bond. Cochran v. Qoddard, xxvii. §00. See Infra, 129 ; Supra, 59, 62. X. SALE. a. NOTICE. 70. Sales under execution will not be set aside because the property was advertised for sale on two different days, by different sets of advertisements, it appearing that such second advertisement was induced by an additional levy. McDonald v. Cooh, xi. 632. "Zl. The notice of execution required to be given to a judgment debtor, resid- ing out of the county, by the act of March 12, 1849, (Acts 1848-9, 52,) need not be given, where mortgaged land is to be sold under a special jJ.ya. Sobein V. Murphy, xx. 447. Hobein v. Drewell, xx. 450. 72. And the omission to give the required notice of execution, even where necessary, would not render the sale ipso facto void ; but the party injured might obtain relief against the party who neglected his duty, if he became the pur- chaser, by setting aside his titles, or by recovering of him pecuniary damages, if a fair purchaser had paid the price and received a conveyance. Hobein v. Murphy, XX. 447. See Infra, 75, 97. b. TIME AND manner OF SALE. 78. A sheriff advertised real and personal estate for sale on execution during the session of the Circuit Court next to be held in his county. The court met and adjourned at an unusually early hour on the first day of the session — Held, a sufficient excuse for the sheriff's failure to sell. Mitchel v. Gregg, iv. 37. 74. The 13th section of the act of February 21, 1825, (R. S. 1825, 367,) which provides for the division of real estate levied upon and sold by the sheriff, is merely directory. A violation of its injunctions will not make a sale void, although it may be good cause for setting it aside. Rector v. Hartt, viii. 448. See Infra, 95. 75. "Where a purchaser at a sheriff's sale refuses to pay for property struck off to him, the sheriff, under the statute, (R. S. 1845, 483, §§ 40-42,) may sell again without further notice. Illingworth v Miltinberger, xi. 80. EXECUTION. X. 16. The fact that a eheriff sold at an earlier hour in the morning than is nsual for making sales, would not invalidate a sale, if legally conducted in other res- pects. Hammond v. Scott, xii. 8. 77. A sale by a sherifii under an execution, of an undivided and unknown interest in two adjoining tracts of land, at the same time, is valid. Ibid. C. C0NSIDERA.TI0N. 78. Inadequacy of price is not, of itself, sufficient ground for setting aside a sheriff's sale of real estate. Ibid. 79. But where the inadequacy is gross, the proceedings must be strictly regular. Thus where real estate, consisting of two parcels, worth $4,000, was struck off to the plaintiff in the execution, one lot for five dollars and the other for seven dollars, " or as much as the expenses of the sale, together with the clerk's fees for issuing the execution, would amount to," it being understood between the sheriff and the bidder that the amount should be increased or less- ened to the amount of the expenses of the sale including the clerk's fees, and it not appearing that the defendant was privy to the levy or sale, such sale and the sheriff's deed thereunder, will be set aside for irregularity. Nelson v. Brown, xxiii. 13. d. DESCRIPTION. 80. H. was the owner of twelve and one-half arpents of land adjoining the city of St. Louis, and laid the same off into town lots and sold six of the lots to P., who had formerly owned the whole tract. The sheriff levied upon the entire parcel under an execution issued on a judgment obtained against P., after H. became the owner of the land, and sold the same and executed his deed of con- veyance, in which he described the land sold thus : " twelve and one-half arpents adjoining St. Louis," &c. At the time of the sale, P. was interested in only the six lots — Held, that the sale and conveyance by the sheriff of P.'s interest in the tract was void for uncertainty of description. Evans v. Ashley, viii. 177. 81. The plaintiff was the owner of a quarter section of land, except one lot, ninety by one hundred and fifty feet, about twenty-five acres of which was laid off into forty-eight town lots. The streets and alleys were unopened, designated by no monuments, and covered with brush and timber, vrith a single highway through the tract. Under an execution issued on a judgment against the plain- tiff, the sheriff levied upon the whole quarter section, describing it as the JN". W. fr. qr. sec. 35, T. 49, R. 17, and sold the whole tract by such description — Held, that the description was sufficiently certain, and that the case was clearly dis- tinguishable from the case of Evans v. Ashley, viii. 177. Rector v. Hartt, viii. 448. 82. The fact that a part of the description set forth in an advertisement for the sale of land under execution is false, will not vitiate the sale, if the premises are otherwise certainly described. Landes v. Perkins, xii. 238. 83. At a sheriff's sale the description was "the one undivided third part of the lots which were not sold by said L. in the addition to the then city of St. Louis, laid out by said L, S. and B, on the river," &c It was proved that the 334 EXECUTION. X addition was well known, and that only one lot had been sold before tlie death of L. — Held, that the description was sufficient. Lisa v. Lindell, xxi. 127-. 84. Where more property is sold on an execution than is requisite for its satis- faction, the sale having been made in a mass when it might have been made in parcels, the court will set aside the sale, on motion of a party whose rights are affected thereby. Hicks v. Ferry, vii. 346. 85. A sale under a satisfied judgment, is void only agkinst the purchaser with notice. Heed v. Austin, ix. 113. 86. A sale under a voidable judgment, cannot be impeached in a collateral proceeding. Ibid. 81. So irregularities in a sheriff's sale can only be corrected by a direct appH- cation for that purpose. Ibid. 88. An execution, issued within a period forbidden by law, on a judgment lawfully rendered in a court of general jurisdiction, is not void but only voidable. Carson v. Walker, xvi. 68. 89. And where the execution was issued and the land advertised for sale withjin the time forbidden, and the sale took place after the lapse of that time, the sale is valid. Ibid. 90. A sale of real estate under execution after the death of the defendant, the levy having been made before his death, is not void, but at most only voidable. (This case arose under the law as it stood before 1845.) Mundy v. Bryan, xviii. 29. 91. Where in a suit commenced by attachment, there is a personal service upon the defendant, and a general judgment rendered against him, such judg- ment and a sale on execution under it are not rendered void by the fact that the affidavit npon which the attachment issued may have been defective. Harvey v. Wickham, xxiii. 112. f. FRAUD. 92. A sheriff's sale under execution may be shown to be fraudulent, and that there was a secret trust in favor of the defendant, with the consent of the pur- chaser. Per Scott, J. Dallam v Bowman, xvi. 225. See Fraud, 12, 13 ; Sale, 22. g. TITLE ACQUIRED UNDER. 93. Where property purchased fraudulently at a sheriff's sale, passes from such fraudulent purchaser into the hands of a bona fide purchaser, for value, without notice, the title of such innocent purchaser is good, and the party injured has his remedy against the sheriff. Kean v. Newell, i. 754. 94. A sale made by a sheriff of a chattel conveys a good title to the purchaser, unless there was fraud, and the purchaser participates in it. Although the pro- perty is not present at the time of the sale, a good title is acquired. Ibid. 95. Both parties claimed title under one Price, against whom the defendant gave in evidence three judgments rendered by the Supreme Court in 1821, EXECUTION. X. 336 afBrming judgments below, and giving judgment for costs, on which executions issued, and the sheriff sold upon them the land in dispute to one R., giving him a certificate of the sale, as required by the act of 1821, and stating therein that R. would be entitled to a deed in two years and a half, unless the premises should be previously redeemed by Price or his creditors. In 1826, C. and P., (one of whom was a judgment creditor,) redeemed the land with money fur- nished by Price, and the sheriff made his deed to them. The plaintiff claimed under a subsequent sale of the same property by the sheriff — Held, that the fact of the constitutionality or unconstitutionality of the act of 1821, allowing three years' redemption of land sold on execution, (1 Ter. L., 778,) did not affect the defendant's title, since, if the law were unconstitutional, the sale to R. was abso- lute, and the substitution of C. & P., with his consent, unobjectionable; that it was no objection to the sheriff's certificate that it was signed by a deputy, as it was expressed in the body to be the act of the sheriff, and commenced in his name, nor was it invalidated by stating the time of redemption at two and a half instead of three years, as limited by the statute ; — (overruled in Evans v. Wilder, vii. 359, and Evans v. Ashley, viii. 177, it there being held that such a certificate, signed by the deputy sheriff, is void,) — that only one of R.'s grantees (C. and P.) was a judgment creditor was immaterial ; that as the property was redeemed with Price's money, he had a resulting interest in it which could be taken on execution, subject to the claims of C. and P., and that it vested in the plaintiff's grantor ; that the validity of the sheriff's sale was not affected by the fact that the land was sold in a body, and not in parcels ; the objection that there were no judgments, should have been taken on the return of the executions ; the judgments of the Supreme Court were at least good for costs. Evans v. Wilder, V. 313. — Held, also, that the certificate of sale did not authorize the sheriff's suc- cessor to execute a deed of the property, since that could only be done by petition to the Circuit Court. The repealing act of June 11, 1822, (1 Ter. L. 862,) saves alone such rights as had been acquired under the act of 1821. Same case, vii. 359. Evans V. Ashley, viii. 177. 96. The title of a bona fide purchaser at a sheriff's sale cannot be declared void in a collateral proceeding, on account of an error or irregularity in the judgment or execution. Landes v. Perkins, xii. 238. 97. A purchaser at a sheriff's sale is not affected by any error or irregularity in the judgment or other proceedings prior to the sale, unless they are of such a character as to render the whole proceeding a nullity. Such a sale to a bona fide purchaser is not vitiated by the omission of the sheriff to advertise the sale according to statute. Draper v. Bryson, xvii. 71. 98. E. executed a bond to convey to S. a tract of land, upon payment of the purchase money in four instalments. After two of the instalments were paid, E. recovered judgment for the third, and caused the execution to be levied on the land, which was sold and P. became the purchaser. E. was present at the sale and bid for the land — Held, that P. acquired only the interest of S., which was the right to a deed upon payment of the balance of the purchase money. Phillips V. Edmonson, xvii. 579. 99. A. obtained a judgment against; B. and C. in a Justice's court, upon which 386 EXECUTION. X. an execution was issued and returned nulla bona, as to one of the defendants, but as to which it did not appear, nor did it appear against which of the defend- ants it issued, nor whether it issued against both. A transcript of the judgment was filed in the Circuit Court, and an execution issued thereon, and the real estate of B. was sold at a sheriflf's sale upon it — Held, that the purchaser acquired no title thereby. Idnderman y. £dson, xxv. 105. See Dower, 31, 32 ; Replevin, 14. h. D0TY OF OFFICER. 100. A sheriff, in selling property under an execution, is the agent of both plaintiff and defendant, and is bound to protect the interests of both. He is not bound to accept a bid without reserve. If it is apparent that a sacrifice of pro- perty will be prevented by a little delay, he may return " no sale for want of bidders." Conway v. JV^olte, xi. 74. i. NOTICE TO SET ASIDE. 101. Where land, sold at sheriff's sale, has been subsequently conveyed by the purchaser at such sale, all persons claiming title under the sheriff's sale must be notified of a motion to set it aside. It is not sujQScient to notify the purchasers from the sheriff. Clamorgan v. G' Fallon, x. 112. j. LIABILITY AND RIGHTS OF PURCHASER. 102. In proceedings under the statute, (R. S. 1845, 483, § 42,) against a pur- chaser at a sheriff's sale, who refuses to pay the amount bid by him, for the difference between his bid and the amount for which the property sold at a sub- sequent sale by the officer, the return of the sheriff is competent evidence. Hensley v. Baker, x. 15Y. 103. And the party has no right to have such motion tried by a jury, but the court may, in its discretion, order a jury. Ibid. 104. Where, at a sheriff's sale, the purchaser had until five o'clock in the afternoon to pay the money, the law requiring the sale to be before five, the sheriff had no right to re-sell a few minutes before that hour, and a tender of the money on the next morning by the first purchaser is sufficient. Conway v. Nolte, xi. 74. 105. The statute relating to sales on execution,. (R. S. 1845, 483, § 42,) is penal in its character and to be construed strictly, and does not authorize a judgment on motion against one who has been substituted in the place of the purchaser at the sale, and who has been reported as the purchaser by the sheriff. Wimer v. Obear, xxiii. 242. 106. Qiuere — Whether this section embraces a sale in partition. Ibid. k. WARRANTY. 107. In sheriff's sales there is no implied or express warranty of the title or soundness of the goods sold. The rule caveat emptor, is applied to such sales- Hensley v. Baker, x. 157. EXECUTION. XII. 337 ]. ON EXECUTION FROM THE UNITED STATES COUET. 108. Sales made in this State by the Marshal of the United States, on execu- tions from the U. S. Conrts, are governed by the laws of this State regulating executions. (See 4 U. S. Stat. 281, § 3.) Evans v. Labaddie, x. 425. 109. But it is no objection to a sale made by a Marshal of the United States, prior to the act of Congress adopting the practice of the State courts, that it was not made in conformity to the law of this State regulating sales under execution. The State laws are not binding upon the oflScers of the Federal Government until adopted by the law of the United States, or by the rules of their courts. Ke/merly v. Shepley, xv. 640. m. EVIDENCE. 110. One who claims under a sale made by a sheriflf under execution, must produce the judgment on which the execution issued, as well as the execution itself. Morrison v. Dent, i. 246. XL DISTRIBUTION AND APPROPRIATION OF PROCEEDS. 111. Executions in favor of A., which were issued by a justice, were levied on personal property of B. by the constable. The same property was then taken by the sheriff, on executions in his hands, and sold ; not being sufficient, the sheriff also sold certain real estate of B., on which C. and D. had a mortgage, given subsequent to the issuing of the sheriff's executions. C. and D. purchased the real estate at the sheriff's sale, for an amount greater than the executions in his hands, and retained the excess— -HcM, on a bill filed by the sheriff, to compel A., C. and D. to interplead, that the justice's executions in favor of A. were entitled to be paid out of the surplus arising from the sale of the real estate in the hands of C. and D., for, although such executions were no lien on the land, they were on the personal property sold by the sheriff, and the proceeds of that sale having reduced the lien against the real estate, must be applied to their pay- ment. Kringy. Green, x. 195. 112. A. brought an action against B., to recover the proceeds of a sale of land sold on an execution in favor of B. against A., issued on a judgment, which A. claimed B. had previously agreed to enter satisfied. On the trial, A. admitted that he had no title to the land — Held, that he could not maintain the action. Barada v. Inhabitants of Carondelet, xvi. 323. XII. SATISFACTION OF EXECUTION. 113. If sufficient property is levied upon to satisfy the execution issued on a judgment, such levy is a satisfaction of the judgment. Blair v. Caldwell, iii. 353. 114. The levy of an execution upon property sufficient to satisfy it and the subsequent release of it, under an arrangement with the defendant, is not per se a satisfaction of the execution, Williams v. Boyce, xi. 537. Blackburn v. Jack- son, xxvi. 308. 22 338 EXECUTION. XIII. XIII. LIABILITY RIGHTS AND DUTIES OF OFFICER. 115. The execution is a sufficient justification of the officer in an action of trespass for levying on the plaintiff's property, but there is no objection to Ms giving the whole record in evidence. Davis v. Cooper, vi. 148. 116. An officer is bound to use reasonable diligence in searching for property of the defendant in the execution, but the mere fact that the defendant had pro- perty, will not render the officer liable, if he used reasonable diligence to discover it, and could find none. Fisher v. Gordon, viii. 386. 117. He cannot contradict the return of a writ made by him. A special return of facts, showing that he discharged his duty, will protect him. But in actions against him he will be confined to the facts stated in his return, and cannot show another and different state of facts in his defense. Boone County V. Lowry, ix. 23. 118. It is his duty to execute a writ without delay. If, by delay, he become unable to execute a wiit which he might have executed, he is liable for damages. Douglass v. Baker, ix. 40. 119. He is not justified for failing to levy an execution in his hands, by the passage of the act abolishing imprisonment for debt, if such writ could have been executed before the passage of that act. Ibid. 120. In an action against a sheriff for failing to levy an execution on the body of a debtor, it is not necessary for the plaintiff to prove a demand of the money due on the execution, nor that the party has been damaged. Under the statute the officer is liable for the full amount of the execution. (R. S. 1835, 260, § 52.) Ihid. 121. A sheriff, who voluntarily satisfies an execution out of his own funds, cannot have another execution issued on the same judgment for the recovery of the money so paid by him. His remedy is an action for the money advanced. Garth v. Mc Campbell, x. 164. 122. A ministerial officer is not liable in trespass for executing a writ issued under the judgment of a court having jurisdiction of the person and subject matter, although the judgment be erroneous. Aliter Per Napton J., when the execution is illegal on its face. Milburn v. Gilman, xi. 64. 123. Where a sheriff, having collected money on an execution, is notified by the defendant not to pay it over to the plaintiff, and a motion to that effect is made in court, he is not liable to the plaintiff for the penalty of five per centum per month, (R. S. 1845, 487, § 60,) for not paying him the money, until the decision of such motion. Conway v. Campbell, xi. 71. 124. The plaintiff in an execution filed a motion to compel the sheriff to pay over money collected under an execution, and for the penalty of five per cent. per month for failing to pay it on the return day. The motion being overruled, the plaintiff received the principal sum — Held, that the taking of the money was a waiver of the penalty. Ibid. 125. An execution, made returnable to a day beyond the term following its issue, is only voidable, and the officer is bound to execute it, and will be liable for the full amount of the debt if he fails to do so. Milburn^. The Stale, xi. 188. EXECUTION. XIV. 339 126. But where an execution, issued by a Justice, is made returnable in sixty days, instead of ninety, as provided by the statute, (R. S. 1845, 660, § 3,) it is not merely erroneous, but absolutely void. Stevens v. Chouteau, xi. 382. 127. Where an execution is regular upon its face, and emanates from a court having jurisdiction of the subject, it will justify an oflScer in making a levy. He is not bound to go behind the writ and inquire whether the judgment upon which it issued is regular. Higdon v. Conway, xii. 295. 128. Where two justices of the County Court grant an injunction to stay pro- ceedings upon an execution in the hands of a constable, and issue a writ to that effect, it will protect the constable, although the writ ought regularly to have been issued by the clerk of the Circuit Court, on the order of the justices. The State y. Ferguson, xiii. 166. 129. Under the statute of 1835 relating to executions, (R. S. 1835, 257, §§ 23-25,) the taking of an indemnifying bond by a sheriff does not compel him to go forward and do the act for the results of which he is indemnified. And where such a bond was given, and property not belonging to the debtor was taken and sold, it was held, that the plaintiff in the execution could not recover from the oflScer or his securities the proceeds of the sale. Heath v. Daggett, xxi. 69. See Supra, 100; Tkespass, 9, 10. XIV. SHERIFF'S DEED. 130. A sheriff^s deed which described the land sold as "three and one-half eighths of the Boonville tract, situated in Cooper county, on the South side of the Missouri river," is not void for uncertainty. It may be shown by parol that the " Boonville tract " designated a particular parcel of land, well known in the neighborhood by that name. Scott, J., dis. Hart v. Rector, vii. 531. 131. Where a sheriff sells land on an execution, and subsequently executes to the purchaser a deed, such deed will take effect by relation as of the date of the sale, as respects parties and privies, but such relation back will not be allowed to prejudice the rights of strangers. Alexander v. Merry, ix. 510. Hartt v. Rector, xiii. 497. 132. The certificate required to be endorsed by the clerk upon a sherifFs deed, (See R. S. 1845, 485, § 51,) need only be a certificate that the deed was acknowledged ; if, however, he adds a copy of the entry required to be made by him on his record, it is superfluous, and will not vitiate the acknowledgment. Crowley v. Wallace, xii. 143. 133. The legal effect of the delivery of a sheriff's deed is to vest the title in the purchaser by relation, from the day of the sale ; and such deed is admissible in evidence to establish title at that date. Hid. 134. A sheriff's deed under an execution against A., described the land con- veyed as thirty feet front by one hundred and fifty feet deep, upon which A.'s house stood ; bounded North by a lot owned by B., South by a vacant lot, &c. More than twenty years afterwards it appeared that A., in locating the thirty feet 340 EXECUTION. XV. originally conveyed to him, and in building his house, had encroached fifteen feet upon the lot of B., but A., and those claiming under the sheriff's deed, always remained in possession of the ground upon which the house stood. In a suit by the person claiming under the sheriff's deedj for the fifteen feet of ground imme- diately south of the house, it was held, that it did not pass by that deed, as the metes and bounds therein given were not inconsistent with the further description of the lot conveyed, as thirty feet upon which the house stood. Mellon v. Satn- mond, xvii. 191. 135. A sheriffs deed, in which the land conveyed was described as "all the right of W. in and to thirty-five acres " in a specified quarter section, with no further description, was held sufficient to pass the title, parol evidence being given to identify the land. Proof that W. owned and lived .upon one tract con- taining that quantity, and owned no other in that quarter section, and that these facts were notorious, is a suflBcient identification. Bank of Missouri Vi Bates, ivii. 583. 136. A sheriff's deed which recited that the land was exposed to sale "at the court house door, in the city of St. Louis, during.the term of the court, of , for the year eighteen hundred and forty — ," is void under the statute of 1835, relating to executions, (K. S. 1835, 258, §§ 38, 45.) Tanmr v. Stine, xviii. 580. 137. A., owning 10,256 arpents of land, conveyed 4,000 arpents thereof to his son, and afterwards mortgaged 4,426 arpents, which was described as the residue of his interest in the tract. By a sheriflfs deed, afterwards executed, was convey- ed all his interest in the whole tract, " except 4,426 arpents sold at sheriff's sale at the last term of the Circuit Court of St. Genevieve." Of this sale there was no evidence — Held, that the sheriff^s deed conveyed no interest in the tract cov- ered by mortgage. Chouteau v. Burlando, xx. 482. See Chancery, 76-79 ;. . .Evidence, 53-56 ;. . .Fkadbs and Pbrjukies, 12-15. XV. EETURN. 138. Where a constable fails to return an execution, he is liable to the penal- ty of one hundred per cent, per annum until the money is paid, (R. S. 1845, 666, § 26.) The State v. McLernan, x. 780. 139. A return in these words, "not levied for want of suflScient goods and chattels," is, prima facie, sufficient. The State v. Steel, xi. 553. 140. Want of health is no excuse for a failure on the part of a constable to return an execution within the time prescribed by statute. Campbell v. Luttrell, xiii. 27. 141. The filing of a writ of execution without any indorsement upon it show- ing the manner in which it has been executed, does not amount to a return of the writ. Nehon v. Brovm, xxiii. 13. 142. An execution, issued by a. Justice, cannot regularly be returned before the day on which it is made returnable by statute. An execution, issued by the clerk of the Circuit Court on the transcript o£ a Justice's judgident, before the FEES. n. 341 return day of the original execution issued by the Justice, should, on motion, be quashed. Dillon v. Bash, xxvii. 243. See Supra, 125, 126. XVI. WRIT AS EVIDENCE. 143. An execution cannot be received in evidence to show title in one claim- ing under it, unless the judgment on which it was issued be proved. Ramsey v. Waters, i. 406. 144. In an action against the sheriff for attorney's fees indorsed on an execu- tion, the execution is admissible as evidence against him, although the indorse- ment was joint for the benefit of the plaintiff and another. Evans v. Hays, ii. 97. See Evidence, 66. See Administeation, 33, 34 ; . . . . Attachment, 45 ; . Error, 6 ; . . . . Hus- band AND Wife, 125 ;. . . ,Ij4ws, 76, 77 \i. . .Pleading, 63, 64; Practice in Supreme Court, X ;. . . .Trespass, 9, 10. FEES, I. SHERIFF. n. REGISTER OF LANDS. III. COLLECTOR. I. SHERIFF. 1. A sheriff is not entitled, as against the defendant in an execution, to com- missions on the amount of the execution, unless the money is collected by him, as where the money is paid over to the plaintiff, or the judgment is otherwise sat isfied. Gordon v. Maupin, x. 352. Irwin v. Milburn, x. 456. » 2. Under the statute relating to fees, (R. S. 1845, 497, § 11,) a sheriff cannot claim per diem for both the attendance of himself and his deputy upon the same court. Crouch v. Plummer, xvii. 420. II. REGISTER OF LANDS. 3. The third section of the act of February 27, 1843, concerning fees of the Register of Lauds, (Acts 1842-3, 106,) is not inconsistent with the 32d section of 342 FEREY. m. another act of February 2*1, 1843, (Acts 1842-3, 142.) The former act refers to those fees only which were allowed the Register by the act of February 3, 1841, (Acts 1840-1, 119, §§ 12, 13,) therefore, the Register is entitled to 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. Heard v. Bdber, viii. 142. III. COLLECTOR. 4. Under the statute of 1845 providing fQr levying, assessing and collecting the revenue, (R. S. 1845, 963, § 22,) the collector is ebtitled to a fee of twenty- five cents for each tract of land or town lot bid in by him for the State at the sale for taxes. Ex parte Tate, ix. 660. See Attorney at Law, VI ; Circuit Attorney, II ; .... St. Louis, XI. FERRY. I. IS A FRANCHISE. II. PRIVILEGE GRANTED TO CORPORATION TO LICENSE. III. RIGHTS OF TENANTS IN COMMON. IV. FERRYMAN LIABLE AS COMMON CARRIER. V. PARTIES TO ACTION FOR INJURIES TO FERRY. VI. INDICTMENT FOR KEEPING WITHOUT LICENSE. I. IS A FRANCHISE. 1 . A ferry is a franchise derived from the license of the County Court, under the statute, and is not an incident to the land. Stark v. Miller, iii. 470. II. PRIVILEGE GRANTED TO CORPORATION TO LICENSE. * .. . 2. Where a city charter gives the power to license and tax ferries within the city limits, the right of the State to license and tax the same is not thereby tak- en away, unless the right of the city is expressed to be exclusive. Harrison v. The State, ix. 526. III. RIGHTS OF TENANTS IN COMMON. 3. A. and B. owned a ferry in common, with an agreement that each should be entitled to one-half of the proceeds after paying all expenses, 5., in good FERRY VI.— FIXTURES. 343 A faith, and for a valuable consideration, leased the ferry to C, without the consent of A. — Held, that A. could not recover of B. one half the proceeds received by C, but only one-half the rent reserved by B, Rogers v. Pennislon, xvi. 432. IV. FERRYMAN LIABLE AS COMMON CARRIER. 4. A ferryman is a common carrier, and is liable as such, Pomeroy v. Donald- son, V. 36. V. PARTIES TO ACTION FOR INJURIES TO FERRY. 5. Redress for injuries done to the legal rights of a lessee of a landing adjoin- ing a ferry, must be sued for in his name, and not in the name of the lessor. Stark V. Miller, iii. 470. VL INDICTMENT FOR KEEPING WITHOUT LICENSE. 6. An indictment for keeping a ferry without a license must allege on what stream or river the ferry was kept. Wheat v. The State, vi. 455. 1. It is not necessary for the State, on the trial of an indictment for keeping a ferry without a license, to show that the defendant had no license. It is for the defendant to show affirmatively that he had a license. Ibid. See Criminal Law, 210-212. See Appeal, 24 ;. . , .Costs, 32 ;. . . .St. Louis, VII. FIXTURES. 1. Things personal in their nature may become a part of the realty, either by incorporating them with the realty as a part thereof, for some permanent object, or by affixing them to the realty, for any object, in such a manner that they can not be severed without dilapidation or injury to the inheritance. Hunt v. Mul- lanphy. i. 508. 2. Where property which is personal in its nature is claimed as belonging to the freehold, the party claiming it must show that its character has been changed by some facts and circumstances which will clearly prove the intention of the owner thus to change it. Ibid. 3. As between gi-antor and grantee in a deed of real estate, what will pass as realty must depend upon the intention of the parties, to be gathered from their deed. If the grantee claims anything which is, in its character, personal, he must show that it was differently considered in the deed. Ibid. 4. A kettle, put up in a tannery, in brick and mortar, which may be removed 344 forcible; entry and detainer. without dilapidating the building, will not pass as a part of the realty under a deed conveying simply a lot of ground. Ibid. 5. Where P. sells and conveys td M, a lot of ground, with the appurtenances, on which there is a brewery and malt-house, no mention being made of the brewery in the deed, and M. thereupon leases the ground and brewery to P., and P. covenants t6 keep in repair the buildings, vessels, tubs, fixtures and other articles now on said demised premises, and which are used and employed in the brewing business, and to surrender the same at the expiration of the lease, and there is this further proviso, that " it is understood that none shall be surrendered by the said P. bnt those which are fixtures properly so called and included in the assign- ment of conveyance heretofore made by the said P. to the said M."— fleZd, that the tenant had no right to remove a set of rollers and a frame set up in the malt- house, and a part of the machinery of the same, which were so set up at the dates of the sale and the lease. They are fixtures within the meaning of the pro- viso.' Philipson v. Mullanphy, i. 620. 6. A still, set in a furnace in the usual way for making whiskey, is personal property, and not a fixture. Burk v. Baxter, iii. 207. 7. Sheds erected iipon posts set in the ground by a tenant, for the pnrpose of making brick, are fixtures ; and although they may be liable to be removed by the tehant during the lease, vest in the landlord on its termination. Beckwith v. Boyce, ix. 656. 8. Personal property which is necessarily connected with the freehold by a tenant, for the purpose of carrying on the business for which it has been demised to him, (such as a hydraulic press used by a tallow chandler, let into the ground and walled up with solid masonry, the wooden portion of which was nailed partly to the floor and partly to the rafters of the building,) does not thereby attach to the realty, but remains the chattel of the outgoing tenant, and may be removed by him at the termination of his lease. Finney v. Wathins, xiii. 291. 9. Pipes for conducting water through the apartments of a dwelling, and the bathing apparatus connected therewith, are fixtures, as between vendor and vendee. Cohen v. Kyler, xxvii. 122. 10. It is a mixed question of law and fact whether particular things are fix- tures or not, and the jury should be guided to a determination of the question by an explanation of the legal meaning of the term. Chand Lodge v. Knox^ xxvii. 315. See Damages, 5. FORCIBLE ENTRY AND DETAINER. I. WHEN AND BY WHOM THE ACTION MAY BE MAIN- TAINED—AND HEREIN OE POSSESSION, II. COMPLAINT. in. JURISDICTION. FORCIBLE ENTRY AND DETAINER. I. 345 rv. CERTIORARI AND APPEAL. V. RECOGNIZANCE ON APPEAL. VI. DAMAGES. VII. EVIDENCE OF TITLE. VIII. VERDICT. I. WHEN AND BY WHOM THE ACTION MAY BE MAINTAINED— AND HEREIN OF POSSESSION. 1. The terms " lawful possession," as used in the statute, (R. S. 1835, 280, § 18,) are equivalent to peaceable possession, as distinguished from possession which is actually and in point of fact tortious. Michau v. Walsh, vi. 346. 2. In order to constitute such a possession as will sustain an action of forcible entry and detainer, it is not necessary that the party should stand on the land or keep a servant or agent there. Any act done by him on the premises, indicating an intention to hold the possession to himself, is sufficient to give him actual possession. Bartlett v. Draper, xxiii. 407. 3. The statute applies to cases where the plaintiff has once been in lawful pos- session, and parted with it to the defendant or those under whom he claims, who hold over after a written demand. A purchaser at a sheriff's or trustee's sale who has never been in possession, cannot therefore maintain the action. Blount v. Winright, vii. 50. Hatfield v. WallaA:e, vii. 112. 4. Nor can the assignee or vendee of a landlord maintain such action against the tenant ; nor can a devisee maintain such action against the tenant of the tes- tator. Holland v. Reed, xi. 605. Picot v. Masterson, xii. 303. 5. Nor can a vendee maintain such action against his vendor for a refusal to deliver up the premises sold at the time agreed upon. Wood v. Dalton, xxvi. 581. 6. In an action of forcible entry and detainer, by a settler on lands of the United States, against one who had settled on an unenclosed part of the tract in controversy, the bare possession of the plaintiff, without any right of pre-emp- tion, will not bring him within the provisions of the statute. (R. S. 1835, 281, §§ 28, 29.) Sloane v. Moore, vii. 170. 7. The possession of a part of a tract of land is the possession of the whole where the one in possession is the owner of the whole tract, but it is otherwise as regards a mere trespasser. Kincaid y. Logue, vii. 166. Packwood y. Thorp, viii. 636. 8. Where a person in possession of premises sells them and removes from the house, and delivers the keys to his vendee with the intention of giving him pos- session, such acts constitute a delivery of possession, and will enable the vendee to maintain an action of forcible entry and detainer against an intruder. Hoff- Btetter v. Blattner, viii. 276. 9. In an action of forcible entry and detainer, the plaintiff proved that he had been in possession of the premises in dispute, and had delivered possession thereof to one L. to keep for him ; that he afterwards found the defendant in possession, who refused to surrender the same to the plaintiff. The plaintiff 346 FORCIBLE ENTRY AND DETAINER. I. then offered to prove that the defendant had paid L. thirty dollars to deliver possession to him — Held, that the evidence was properly excluded. Moore v. Agee, vii. 289. 10. One tenant in common of land may oust his co-tenant and hold adversely to him. Hoffslelter v. Blattner, viii. 2*76. 11. In an action for forcible entry and detainer, it is competent for the plain- tiff, in establishinsr his possession, to prove by his agents and by letters bearing his name, received by them froQi, him in the usual course of the mail, their pos- session in his behalf Julian v. Lacey, xiv. 434. i 12. If, in a complaint .for the recovery of premises held over after the termi- nation of a lease, the plaintiff describes himself as administrator, he cannot recover unless he shows a demise by himself to the defendant. A demise by his intes- tate will not sustain the complaint. Holliday v. Doyon, xv. 407. 1 3. A tenant may maintain an action of forcible entry and detainer against his landlord, although at the time of the entry the tenant was holding over. Ere- vet V. Meyer, xxiv. lOV. 14. A person in possession at the commencement of an action of ejectment, to which he is not made a party, cannot be dispossessed by virtue of a writ of pos- session issued upon a judgment for the plaintiff in such suit. And if in the exe- cution of such writ such person is dispossessed, and possession is given to the plaintiff, and the person dispossessed returns to the possession, the plaintiff will not thereby acquire such possession as will entitle him to sustain an action of unlawful detainer against such person. Garrison v. Savignac, xxv. 47. 15. Where one having title to land and right of entry enters thereon forcibly, the common law affords no civil remedy to the party dispossessed; he must resort to the statutory remedy of forcible entry and detainer. Fuhr v. Dean, xxvi. 116. 16. Where in an action of unlawful detainer, the defendant admits that he is in possession of the premises under a lease from the plaintiff, who is a negro, he cannot avail himself of the presumption that the plaintiff is a slave, and conse- quently incapacitated to make a lease or to maintain such a suit. IIelmes\. Stewart, xxvi, 529. 17. To maintain the action of forcible entry and detainer the plaintiff must be entitled to the possession of the premises in controversy. Reed v. Bell, xxvi. 216. 18. An action of unlawful detainer cannot be maintained in the name of one person to the use of another. It can only be maintained in the name of the person entitled to possession. Furguson v. Lewis, xxvii. 249. 19. Where a wrongful entry has been made on premises in the possession of a tenant, he, and not the landlord, is the proper person to institute the action of forcible entry and detainer. Burns v. Patrick, xxvii. 434. 20. Under the statute, (R. S. 1835, 277, § 2,) a mere entry upon land, and cutting timber, is not of itself sufficient to sustain an action of forcible entry and detainer. House v. Dean, ix. 298. 21. Where the plaintiff had been in possession of premises for several years, under a claim of title, and had made improvements thereon, and the defendant, subsequently, got into possession of the same premises, but how or by what means did not appear — Held, that the entry of the defendant was a disseizin, and FORCIBLE ENTRY AND DETAINER. H. 347 would, under the statute, (R. S. 1845, 512, § 3,) sustain an action of forcible entry and detainer. Warren v. Hitter, xi. 354. 22. An entry upon real estate, against the will of a party in possession, is forcible, and the subsequent detainer unlawful, although the entry was without actual force. Caihcart v. Walter, xiv. 17. Dennison v. Smith, xxvi. 487. Wunsch Y. Gretel, xxvi. 580. 23. A person in possession of real estate, under a parol contract of purchase, receiving notice to quit on the same day, but before the service of a summons upon him, is not guilty of an unlawful detainer, in holding over. Young v. Ingle, xiv. 426. 24. In an action of forcible entry and detainer, where the defense relied on is that the entry complained of was made after an abandonment of the premises by the plaintiffs, evidence that previous to the alleged abandonment and the forcible entry complained of, the plaintiffs, then being tenants of W. C, (claiming under whom the defendants made their entry,) fraudulently attorned to one J. M., is inadmissible. Keyser v. Saiolings, xxii. 126. 25. A. leased to B. the third story of a house, with the proviso that if at any time before the expiration of the lease he could lease the whole house, then B.'s lease should become void. A. leased the whole house to C, before the expiration of B.'s lease, and B. refused to deliver up possession — Held, it not appearing that C. had made his election to sue his landlord. A., for the non- delivery of the premises leased, or to bring ejectment against B., the first lessee, that an action for unlawful detainer would not lie. Leonard, J., dis. VHussier V. Zallee, xxiv. 13. 26. Where a tenant invites and consents to the entry of a person upon the premises occupied, such entry is not " wrongful without force by disseizin,'' as against the landlord, within the meaning of the statute. (R. S. 1865, 787, § 3). Heed v. Bell, xxvi. 216. 27. If a tenant holds over the premises demised with the acquiescence of his landlord, he is not guilty of an unlawful detainer. Ish v. Chilton, xxvi. 256. 28. The term "disseizin," as used in the statute, (R. S. 1855, 787, § 3,) is not technical in its meaning, but applies to any entry, which is wrongful and with- out force upon the actual possession of another. Spalding v. Mayhall, xxvii. 377. See Action, 56, 57 ;. . . .Infka, 45. n. COMPLAINT. 29. In forcible entry and detainer, it is sufficient to describe the premises as " one house and one garden." Tipton v. Swayne, iv. 98. 30. A forcible detainer must be alleged in the complaint as well as a forcible entry. Ihid. 31. A complaint, alleging a forcible detainer on a certain day within three years before suit, is sustained by evidence of a detainer on any day within that time. Warren v. Sitter, xi. 354. 32. A complaint alleged that the plaintiff was entitled to the immediate pos. session of certain premises, and that the defendant unlawfully detained said pre- 348 FORCIBLE ENTRY AND DETAINER. IV. mises — ffeld, that sucli complaint' was insufBcient under the act relating to forcible entry and detainer. Andraev. Jleinrits, ■xix. 310. 33. Section 6 of the statute (R. S. 1855, 788,) regulatf^s the form and substance of the complaint in an action of forcible entry and detainer. Ish v. Chilton, xxvi. 256. 34. And a complaint under this section, in these words, is sufficient : "Plain- tiflF states that defendant unlawfully detains from him a tract of land belonging to plaintiff (describing it) ; that said farm belongs to plaintiff, and the defendant wrongfully and unlawfully detains the same from plaintiff, and has since the first day of March, 1856 ; that said premises are worth twenty dollars per month." Ibid. III. JURISDICTION. 35. A. brought an action of forcible entry and detainer against B., in the township of C, and the cause, on motion of A., was removed to another town- ship in the same county — Jleld, there was no error in the removal of the cause, since the jurisdiction of the justice was co-extensive with the county. (See R. S. 1835, 278, § 5—348, § 6.) ITeim v. Daugherty, viii. 498* IV. CERTIORARI AND APPEAL. 36. On a certiorari issued by the Circuit Court under the statute, (R. S. 1825, 398, § 11,) the Circuit Court will look only to the record of the Justice, and set aside their proceedings for irregularity ; but the Circuit Court will not correct the errors in law of the Justice ; and in setting aside the proceedings of the Justice, the Circuit Court has no authority to remand the cause for further pro- ceedings, the functions of the Justice having ceased. Sholar v. Smyth, iii. 416. 37. In an action under the statute for an unlawful detainer before two Jus- tices, the evidence given or rejected, or the decisions of the Justices thereon, form no part of the record or proceedings subject to be reversed by the Circuit Court when brought there by certiorari. Hicks v. Merry, iv. 356. 38. Under the statute, (Acts 1,838-9, 46, § 1,) the proceedings may be removed to the Circuit Court by certiorari, after the return day of the writ, where the cause stands adjourned for trial. Kincaid v. Mitchell, vi. 223. 89. The statute (Acts 1838-9, 48, § 27,) makes it the duty of the appellant to file the transcript of the Justice's proceedings, on or before the return day of the appeal, and his failure to do so gives the appellee the right to produce the trans-- cript, and have the judgment of the Justice affirmed. And where the judgment is thus affirmed, a writ of restitution may be issued from the Circuit Court. ICeim V. Daugherty, viii. 498. 40. Where judgment by default has been rendered against the defendant, 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 Acts 1838-9, 47, § 11.) Ser V. Bobst, viii. 506. FORCIBLE ENTRY AND DETAINER. VII. 349 41. But where, in such case, the appeal has been allowed by the Justice, the cause will not be dismissed 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 the duty of the Circuit Court to try the cause de novo, without regarding any error or imperfection in the proceedings before the Justice. Ser V. Bobst, viiL 506. V. RECOGNIZANCE ON APPEAL. 42. Where the aflBdavit and recognizance taken on an appeal are defective, the appellant may file a suflBcient recognizance and affidavit, within such time as will not delay the other party, and it is error for the court to refuse it to be done. Hamilton v. Jeffries, xv. 617. 43. Where the Circuit Court, to which an action of forcible entry and detainer has been taken by certiorari from a Justice, orders a bond to be given "in addi- tion to the bond already given," such additional bond does not supersede the original one. Scott, J., dis. Walter v. McSherry, xxi. 76. 44. A voluntary dismissal of an appeal by the defendant in an action of forcible entry and detainer, is a breach of the condition of a recognizance to pro- secute the appeal with eflect and without delay, and the party aggrieved may have relief in an ordinary action on the recognizance. Wilcox v. Daniels, xxii. 493. VI. DAMAGES. 45. A lease does not of itself vest possession in the lessee, but only gives a right thereto ; and if the lessee takes and retains possession of the demised pre- mises with force and strong hand, he is guilty of a forcible entry and detainer under Ihe statute, (R. S. 1835, 277, § 2,) and under the act of February 6, 1837, (Acts 1836-7, 63,) is subject to the payment of double rent. M'Girk, J., dis. as to the rent. Michau v. Wulsh, vi. 346. 46. As to damages in case of forcible entry and detainer. Gathcart v. Walter, xiv. 17. Walter v. Cathcart, xviii. 256. 47. In an action of forcible entry and detainer, the jury may assess damages for all waste and injury committed upon the premises, as well ass for all rents and profits of the same up to the time of the rendition of the verdict. Slads v. Wool- dridge, xxvii. 251. VII. EVIDENCE OF TITLE. 48. In an action of forcible entry and detainer, under the statute, evidence of the " right of iproperty" in the land in controversy is inadmissible. (R. S. 1835, 280, § 25.) SUyne v. Malot, vii. 158. 49. The merits of the title can in no way be inquired into ; it is immaterial whether the intruder is a trespasser or enters under claim of paramount title, a 350 FORFEITURE.— FRATJD. I. purchaser at sheriiF's sale under execution has his remedy by action of ejectment if the defendant refuse to yield possession. Spalding v. Mayhall, xxvii. 377. VIII. VERDICT. 50. A verdict in these words, " we, the jury, find the defendants guilty in manner and form as charged in plaintiff's complaint ; and that they took pos- session of the premises the 15th Nov., 1854; and that they have and recover of and from the defendants damages at the rate of $2 16^ per month for the unlawful detention of said premises," though informal, is suflBcient to authorize a judgment for restitution of the premises, and for an amount as damages, equal to double the gross amount of the rents and profits at the rate of f 2 16|^ per month to the time of trial. Oibson v. Lewis, xxvii. 532. ' FORFEITURE. 1. There is a distinction between a forfeiture imposed by a statute and one arising under contract. In one case it cannot be relieved against, in the other it may. Woodson v. Skinner, xxii. 13. See Chancery, 42-46. FRAUD. I. PROOF AND PRESUMPTION OF FRAUD. II. EFFECT OF FRAUD. III. RELIEF AGAINST FRAUD.— PLEADING AND DEFENSE. IV. POSSESSION. V. MISREPRESENTATIONS. VI. CONCEALMENT. VII. OMISSIONS. I. PROOF AND PRESUMPTION OF FRAUD. 1. Transactions between third parties in reference to the subject matter of a suit, are not admissible in evidence on an issue of fraad, without testimony to connect such transactions with the parties to the suit, or one of them. Brvffey V. Brickey, v. 395. FRAUD. II. 351 2. Under a plea that a deed was obtained by fraud, covin and misrepresenta- tion, the only admissible evidence of fraud is that relating to the execution of the instrument. Fraud in the consideration, Per Scott, J., or a partial or total failure of qonsideration, is no defense at law. Burrows v. Alter, vii. 424. Bv^ ford V. Byrd, viii. 240. 3. S. purchased certain shares of stock of the St. Louis Insurance Company, for and with the funds of B., but had it entered in his own name, but never pre- tended to set up any claim to it, but informed the company and others that it belonged to B. No fraud, in fact, upon the creditors of B. was pretended. An execution against S. was levied on this stock — Held, that it was not a case with- in the statute of frauds, (R. S. 1835, 283, §§ 1, 5,) that the stock was not lia- ble for the debts of S., and that equity will interfere to restrain the sale by the sheriflf, since the remedy of B. at law, if any, was incomplete. Anderson v. Bid- die, X. 23. 4. The facts that a vendor was afflicted with a chronic disease, and the purcha- ser was his family physician, will not warrant an inference of fraud, especially where there are no attending circumstances to coiToborate such an inference. Doggett v. Lane, xii. 215. 5. If the vendor uses means likely to impose on a person of ordinary prudence and circumspection, by throwing the purchaser off his guard on a point where he might reasonably place confidence in the representation made to him, and dam- age results to the purchaser, it is fraud. Griffith v. Sby, xii. 517. 6. A debtor who employs another to buy in his property, at a sheriff's sale, with no other view than to prevent a sacrifice of it, is not guilty of fraud. Lee V. Lee, xix. 420. 7. Pecuniary embarassment, at the time of the sale of property, standing alone, is not sufficient evidence of an intent to defraud creditors. Hickey v. Ryan, XV. 62. 8. Where a suit is brought to foreclose a mortgage, the administrator of the mortgagor, being a party thereto, should defend it, but his omission to do so does not raise a presumption of fraud. Cadwallader v. Cadwallader, xxvi. 76. 9. Where a suit is commenced by attachment on a promissory note, and an interpleader claims the property attached as trustee for the wife of the defendant in the attachment, by virtue of a deed executed and recorded two years before the date of the note sued on, the plaintiff may show that the note sued on was given for a debt that existed before the execution of the deed. Blue v. Penniston, xxvii. 272. 10. And the acts of the grantor, (the father of the cestui que trust,) and her husband, in selling certain of the slaves embraced in the deed, are competent evidence as bearing upon the question of fraud in its execution. Ibid. See Administeation, 143 ;. . . .Consideration, 6 ; Saie, 7. II. EFFECT OF FRAUD. 11. Where A. acquired possession of a slave from W. and gives an instrument of writing, purporting that he had hired the slave, it is a question for the jury. 352 FRAUD, m. in a controversy between W. and one claiming possession of the slave under A., whether the insti'unient was intended as a device to cover fraud, since, if it was, it would be void. Irwinv. Wells, i. 9. 12. Where an attorney directs an execution to issue, contrary to the instruc- tions of his client, and the sheriff sells property under the execution, it is never- theless necessary, in order to affect the purchaser at the sheriff's sale, to show him informed of the fraud. Russell v. Geyer, iv. 384. 13. The attorney for the plaintiffs in execution purchased the property at sher- iffs sale, professing, at the time, to act as the agent of his clients, and with a view to the payment of their executions. He held the property for six or eight months, to give the defendant time to pay off the executions, and with a promise, in that event, to reconvey to him; but, the defendant failing to make a tender of the money, the attorney sold the property at public auction, to satisfy his client's demands — Held, that there being no evidence of fraud, either at the sheriff's sale or the sale at auction, the attorney is not to be considered as a trustee for the defendant's creditors, and that the purchaser took a good, legal and e(juitable title. Ibid. III. RELIEF AGAINST FRAUD.— PLEADING AND DEFENSE. 14. A general allegation of fraud, in a plea to an action on a bond, is suiBcient without specifying the particulars of the fraud. Montgomery v. Tipton, i. 446. Pemberton v. Staples, vi. 59. Hughes V. Overton, vi. 60. 15. E. and W., with others, started on a trading expedition to Santa Fe. After they had passed beyond the reach of civil process, E. sold his goods to W. on credit, being induced to do so through the fraudulent representations of W, as to his property and means. E. soon ascertained the fraud, and demanded back the goods, which W. refused to surrender, unless E. would give him his bond for one hundred dollars. E. gave the bond, and took back his goods — Held, that the bond was obtained by oppression, through fraud, and that, as a defense to it at law was doubtful, chancery would take jurisdiction, and perpetually enjoin a judgment at law obtained thereon. West v. Wayne, iii. 16. 16. The principal having deposited with the agent $850 to buy negroes, and the agent having purchased them for a less amount^ and transferred them to the principal for the sum deposited, it was held to be a fraud upon the principal, and that he could recover the difference between the deposit and the price actually paid. Kanada v. North, xiv. 615. 17. An administrator cannot impeach a gift or conveyance of his intestate for fraud as to creditors, although the estate may be insolvent. Brown v. Finley, xviii. a75. George v. Williamson, xxvi. 190. 18. It is a good defense to an action on a promissory note that it was given to the plaintiff in furtherance of an attempt on his part to defraud his creditors. Hamilton -v. Scull, xxv. 165. 19. The plaintiff bought a leasehold estate, encumbered with a deed of trust given to secure the payment of certain debts. He was aware of the incumbrance FRAUD. VII. 358 at the time of this purchase, and supposed that the debts were genuine and real- ly due, but, after having paid the amount of the incumbrance, discovered that the debts were fraudulent and pretended — Held, thjit he could not recover from the cestui que trunt the amount of the incumbrance thus pai J to him. The plaintiflF's grantor is the only one who can take advantage of the fraud. Magwire v. Hall, xxvii. 146. See Bond, 23, 24; Mortgage, 30 ; Pleading, 47, 48. IV. POSSESSION. 20. Though one deliver personal property to another, and suffer him to retain possession of and exercise control over it, as though it were his own, yet, how- ever strong may be the tendency of the circumstances attending the transaction to show fraud, they do not render it fraudulent in law ; but whether fraudulent or not, is purely a question for the jury to determine. McDermott v. Barnum, xvi. 114. V. MISREPRESENTATIONS. 21. Where the vendor makes false representations of facts as to the quality of land or the title thereto, by which a party, relying upon them, is induced to purchase, such representations, however innocently made, are fraudulent as to the purchaser. But a mistaken opinion as to title, where the means of information are equally accessible to both parties, is not so. Glasscock v. Minor, xi. 655. 22. In order to make a representation a ground for action of deceit or fraud, it must have been known to be false, and have been made with intent to deceive or defraud. Jolliffe v. Collins, xxi. 338. VI. CONCEALMENT. 23. It is not fraudulent to sell unsound property, knowing it to be so, where there is no concealment. Stewart v. Bagin, iv. 245. 24. Fraud, in fact, is a question for the jury. Secrecy, concealment, and facts ipdicating a design to give one falsely the appearance of owning property, are badges of fraud for the jury to weigh. Boss v. Crutsinger, vii. 245. VII. OMISSIONS. 25. The fact that an executor, in applying to the County Court for an order directing the reservation of the pergonal estate, and a sale of real estate for the payment of debts, omits to bring to the notice of the court the will of the tes- tator of record in such court, in which he directs that all his debts shall be paid 23 354 FRAUDS AND PERJURIES. I. out of his personal effects, will not of itself affect the executor with a fraudulent intent in procuring the order. Ouerton v. Webster, xxvi. 332. See Action, 10, 11 ; Assignment, V; Attachment, I;.... Chan- cery, 47-53 ; Contract, 65 ; Execution, 92 ; Sale, VI. FRAUDS AND PERJURIES. I. SALE OF LANDS. IL SALE OF GOODS AND CHATTELS. III. CONTRACT NOT TO V.E PERFORMED WITHIN ONE YEAR. IV. PROMISE TO ANSWER FOR DEBT OF ANOTHER. V. MEMORANDUM. VI. POSSESSION. VII. PART PERFORMANCE. VIII. PLEADING. L SALE OF LANDS. 1. An improvement on land of the United States may be sold without a memorandnni in writing, and is not affected by the statute of frauds. Clark v. Shallz, iv. 235. 2. An indorsement on the back of a land receiver's receipt of the words " transferred to V.,'' and signed by the party holding such receipt, is a sufficient memorandum in writing of a cont»-act of sale of the land described in such receipt, to take the case out of the statute of frauds. It is not necessary that the con- sideration should be stated in the memorandum. The payment of the pnrohase money, and the delivery of the receipt so indorsed, constitute a valid and bind- ing agreement. Wash, J., din. Bean v. Valle, ii. 126. Haha v. Halsa, viii. 303. 3. The provisions of § 3 of the statute, (R. S. 1835, 283,) do not affect the rights of creditors secured by § 2 of the same act. Therefore the purchaser at a sail', under an execution in his own favor, does not lose any of the rights of a creditor under said act. Xinf v. BMey, vi. 575. 4. Where a party takes the conveyance of land, with notice of the legal or equitable title of another to the same land, he will be hehl a trustee for the bf nfcfit of the other, and cannot avail himself of the statute of frauds, on the ground that the agreement under which he took the conveyance was not in writing. Trundcll v. ('itUawd-i/, vi. 605. 5. The defendant sold a lot of ground to A., and gave his bond for a convey- ance of it upon being paid the purchase money. Subsequently a judgment was rendered against A. on a note, upon which the defendant was his security. An FRAUDS AND PERJURIES. I. 355 execution was issued and levied upon the lot in question by request of the defendant, he promising to make the title good to the purchaser — Held, that this promise, not being in writing, was within the statute of frauds, and therefore void. Bryan v. Jamison, vii. 106. 6. An agreement in writing to sell " all that piece of property known as the Union Hotel property," does not take the case out of the statute of frauds, since the estate could not be identified without resort to parol testimony. King v. Wood, vii. 389. 7. A person making a parol contract to convey lands, may or may not insist upon the protection of the statute of frauds. McGnwen v. West, vii. 569. Far- rar v. Patton, xx. 81. 8. Where a creditor purchases real estate at sheriff's sale, on an execution, with an understanding between himself and a mortgagee of the same property, that he will, on being paid the amount of his execution by the mortgagee, convey to him the property, a court of chancery will compel a conveyance in compliance with such understanding. Such agreement to conVey is not within the statute of frauds. Rose v. Bates, xii. 30. 'f 9. Although a title bond be executed by an agent in such manner as to pre- vent its operating at law as the agreement of the principal, yet, in equity, it will be a sufficient note or memorandum to defeat a bar to its specific performance, founded on the statute of frauds, it appearing that the agent was authorized and intended to bind his principal. Johnson v. McOruder, xv. 365. 10. A verbal authority to an agent to make a contract relative to the sale of lands is valid, and not within the statute of frauds. Ibid. 11. A. purchased certain real estate in his own name and with his own money, and at the time of the purchase agreed with B., that if he (B.) would, before a certain time, pay one-half of the purchase money, he should take a half interest in the land — Held, that B., not having paid any portion of the purchase money, had no interest, legal or equitable, in the land, and that the contracjt between A. and B. was within the statute of frauds. Claioater v. Tetherow, xxvii. 241. 12. A sheriff's sale of real estate is within the statute of frauds, and a note or memorandum thereof in writing must be made in order to bind the parties. Evans V. Ashley, viii. I'/V. Alexander v. Merry, ix. 510. Wiley v. Robert, xxvii. 388. 13. The sherift''s certificate of sale, under the stay law of June 28, 1821, (1 Ter. L. '778,) is a sufficient note or memorandum to take a case out of the statute of frauds. Evans v. Ashley, viii. 177. 14. A memorandum, made by a deputy sheriff, and signed by him, of a sale of one of sevpral lots in partition, in which Louis Robert and others were plain- tiffs, and B. T. Adams defendant, in these words : " Partition lands — Louis Robert v. B. T. Adams — Lot No. 11 — 274, 80-100 a. — Louis Robert, $10,50 per a. — 12,885 40," is sufficient to take the case out of the statute of frauds. Ibid. 16. And the sheriff can, in such a case, maintain an action in his .own name against the purchaser for the purchase money, although he may not have given a note therefor to the sheriff. Ib'd. See Estoppel, 3. 356 FRAUDS AND PERJURIES. III. II. SALE OF GOODS AND CHATTELS. 16. The fact that wheat, coiitracted to be sold and delivered in Illinois, is to be paid for on its arrival at St. Louis, will not subject the contract to the opera- tion of § 6 of the statute of frauds. (R. S. 1845, 531.) Houghtaling v. Ball six. 84. 1 7. The defendant contracted to purchase of the plaintiflF a hundred head of cattle, and deposited $500, in part payment thereof, in the hands of a broker who, giving a receipt therefor, stated that the money was received on account of W, A., the plaintiiF's name being J. F. A. Upon the deposit being made, the plaintiff tendered the cattle to the defendant, who refused to receive them, on the ground that hu had contracted with W. A , and not with J. F. A. — Held, that it might be shown by parol' evidence, for the purpose of taking the case out of the statute ot frauds, (| 6,) that the money was in reality deposited for the plaintiff. Alexander v. Moore, xix. 1 43. 18. A contract for the sale and delivery of goods, if so completed as to be valid in the State where made, will be enforced in this State. Houghtaling v. Ball, XX. 563, 19. A contract was made for the sale of cattle in the field of the seller. The purchaser told the sellel' to keep the cattle and feed them until he sent for them, at the expense of the purchaser. The seller agreed to do so, but told the pur- chaser, that if any of them died he must bear the loss, to which the latter assented — Held, that there was not a delivery sufficient to take the case out of the statute of frauds, Kirby v. Johnson, xxii. 354. [See Shindler v. Houston, 1 Comst. Rep. 2 61. J 20. Until a sale of personal property is rendered complete by delivery and acceptance, it will remain at the risk of the seller. Louelace v. Stewart, xxiii. 384. See Practice, 127 ;. . . .Sale, II, III. CONTRACT NOT TO BE PERFORMED WITHIN ONE YEAR. 21. B., by verbal contract, hired the services of a negro to K. for one yeaT, The negro was delivered at the time agreed on, and the yenr's service duly ren- dered — Hld,t\ia,t the contract was not within that provision of the statute requiring agreements, not to be performed within one year from the making of them, to be in writing. (R. S. 1825, 214, § 1.) Blanton v. Knox, iii. 842. 22. But an agreement by which the plaintiff undertakes personally to serve the defendant, for a period of five years, is within the statute, and must be reduced to writing. Pitcher v. Wilson, v. 46. 23. Only those contracts arc embraced within the statute, (R. S. 1845, 530, § 5,) which, by express stipulation, are not to be performed within that time, Foster V. McO'Blenis, xviii. 88. 24. And agreements that may be performed within a year from the making thereof, are not within the statute of frauds. Suggett v. Cason, xxvi. 221. 25. A. borrowed of B. $120 to enable him to enter a tract of land, and was to FRAUDS AND PERJURIES. V. 857 have the money for a year, by giving a mortgage upon the land ; the land was entered, but the mortgage was not given — Held, that the agreement to give the mortgage was within the statute of frauds, and that the agreement to wait a year was consequently without a consideration, and that B. might sue immedi- ately. Binion v. Browning, xxvi. 270. See Pleading, 143. rV. PROMISE TO ANSWER FOR DEBT OF ANOTHER. 26. A parol promise to see the debt of another paid, in case the creditor would give the debtor time, is collateral and within the statute of frauds. Mudck V. Mdsick, vii. 495. 27. Money belonging to the school fund was loaned to one of the defendants, but both verbally acknowledged their liability for it — Held, that the acknow- ledgment of the other defendant was within the statute of frauds, and that, as it was not in writing, he was not liable. Bailey v. Trustees, xiv. 498. 28. If A. negotiates for B. a loan from C, C. taking B.'s note as security, A. incurs no liability to C by reason of said loan ; neither will an assignment by B. of his stock in trade to A., in fraud of creditors, authorize a judgment against A. for the orignal debt, though the goods may be pursued in A.'s hands on a judgment against B. Aspinall v. Jnnex, xvii. 209. 29. A promise by one to share in the expenses, for which others have become liable, if made to those persons, is not a promise to pay the debt of another within the statute of frauds. Flemm v. Whitmore, xxiii. 430. 30. An oral agreement that real estate, the title to which had been previously taken as a security, should stand as a security for further advances, is within the statute of frauds, (R. S. 1845, 580, § 5,) and consequently void. Ourle v. .Etfrfy, xxiv. 117. V. MEMORANDUM. HI. A promise to indemnify an officer for selling property on execution, which property is claimed by the debtor to be exempt by law, is good and binding, even though not in writing, or evidenced by any written instrument. Scott, J., dis. McCartney v. Shepard, xxi. 573. 32. In order that an entry of a sale made by an auctioneer may satisfy the requirements of the statute, it must be made at the time of the sale ; an entry made a month after is not sufficieot. White v. WatMns, xxiii. 423. 33. A written advertisement or notice of a trustee's sale, signed by him, is not a sufficient memorandum within the statute of frauds. White v. Walking, zxiii. 423. 34. Where an agreement, not in writing, has been wholly performed on the one side, the other party cannot interpose tie defense of the statute of frauds. Suggett v. Cason, xxvi. 221. 358 FRAUDS AND PERJURIES. VH. VI. POSSESSION. 35. The, statute (R. S. 1835, 282,) does not require that conveyances of goods and chattels, made for a valuable consideration, should be recorded. The act avoids conveyances of goods and chattels for a consideration not deemed valuar ble in law, unless possession, actually and bona fide, accompany the conveyance or gift, or unless tlie same is acknowledged and recorded in like manner as deeds of land. Ji'incf v. Bailey, viii. 332. 36. The statute of frauds, rendering void loans of personal property after fiv« years' possession, as to all creditors and purchasers of the persons' remaining in possession, does not affect the title as between the parties to the loan. And ■where the loanee dies in possession, the property is not assets, and cannot be re- covered as such by the executor or administrator of the loanee. (See R. S. 1835, 283, § 5.) Smoot v. Wathen, viii. 522. VII. PART PERFORMANCE. 37. Payment of the purchase money is not such part performance as to take a case out of the statute ; nor is the mere taking of possession of the laud sold without the consent of the grantor, such part performance. Per M'Gikk, J. Beany. Valle, ii. 126. 38. A. agreed, verbally, to convey a certain tract of land to B, in considera- tion that B. would execute to one C. a deed confirming to him the sale of a cer- tain other parcel of land — Held, that the excseution of the, deed by B. to C. was not such part performance as would take the case out of the statute of frauds. Chambers v. Lecompte, ix. 566. 39. Classification of cases in which part performance operates to withdraw a verbal contract from the statute of frauds. Per Napton, J. Ibid. 40. Frauds and trusts are not within the statute of frauds. Groves v. 'Fulsome, xvi. 543. 41. In order that a delivery of possession of land to a vendee, may amount to such a part performance as to take the case out of the statute, the situation of the parties must be such that a refusal to carry out the parol contract will work a fraud upon the purchaser. White v. Watkins, xxiii. 423. 42. The possession that will be deemed such a part performance of a parol contract for the sale of land, as will take the case out of the statute of frauds, is an actual possession taken by the vendee under the contract, with the consent of the vendor, and with a view to the performance of the contract, and not the con- structive possession which the law imputes to the owner where there is no actual adverse possession in a stranger. Charpiot v. Sigerson, xxv. 63. 43. In order to take a case out of the statute of frauds on the ground of a part performance of a parol contract for the sale of land, the acts relied on should be definite, and referable exclusively to the contract, and the contract itself should be fully established in all its essential terms. Ibid. See Chancery, 32. FRAUDULENT CONVEYANCES. I. 359 VIII. PLEADING. 44. Where a party seeks in equity a specific performance of a contract, which is shown upon the face of the bill not to have been in writing, the defendant may avail himself of the statute of frauds by demurrer. Chambers v. Lecompie, ix. 566. 45. The defendant may rely upon the statute of frauds as a«defense to a peti- tion for the specific performance of a parol contract to convey land, although he does not set it up in his answer, but simply denies the contract. Hjok v. Turner, xxii. 333. See Pleading, 55. See Landlord and Tenant, 5. FRAUDULENT CONVEYANCES, I. GIFTS AND VOLUNTARY CONVEYANCES.' IL IN FRAUD OF CREDITORS. in. BY INSOLVENTS. IV. EVIDENCE AND PRESUMPTIONS. V. EFFECT AS TO SUBSEQUENT PURCHASERS. VL POSSESSION. VIL CONSIDERATION. VIII. DAMAGES. IX. PLEADING. X. AVOIDANCE. XL SPECIAL CASES. L GIFTS AND VOLUNTARY CONVEYANCES. 1. A. agreed to make title of a lot to B., and afterwards, and before the title was made, A. and B. became indebted to C, and after such indebtedness accrued, B. caused A. to make the title of the lot to his, B.'s, daughter, who paid no con- sideration therefor. C. obtained judgment against B., and having issued execu- tion, and finding no property on which to levy, filed a bill in chancery against B.'s daughter, for a discovery and a de'cree of the title to B., so that execution might be levied on it; and the bill was demurred to — Held, that the passing of the title to the danghter was fraudnlent, and that the bill contained equity enough to require the defendant to answer. Peay v. Sublet, i. 449. 2. A voluntary conveyance is not per se fraudulent as against creditors prior or subsequent. The bona fides of every such conveyance is a question of fact for the jury, under all the circumstances attending its execution. Lane v. Kings- berry, xi. 402. Pepper v. Carter, xi. 540. 3. Gifts from husband to wife, whether voluntary or founded on a good con- sideration, will be sustained inter partes in equity ; and where a deed is not 360 FRAUDULENT CONVEYANCES. I. recorded as required by the statute, it will still be valid between the parties if founded on a good consideration. Woodson v. McClelland, iv. 495. 4. A., by deed purp6ttih3 to be founded on a valuablfe consideralibUj confe^ed four slaves to B., with a condition that the possession of theill shbuld retnaifi id A. for life. After twenty [gears' possession, A. emancipated them by deed duly executed, &c. — Held, that however void the deed to B. might have beto,'aS against creditors'or subsequent purchasers, it is at least good against those claSm- ing undet the deed of emancipation ; the latter being a volubtary act, and thfe grantees not being purchasers fot a valuable consideration. Amy v. Ramsey, iv. 505. Rhody v. Ramsey, iv. 512. 5. And it is not necessary to pfove any consideration for the bill of sale, as against the claimants under the grantor. Ihid. 6. Where a husband makes a voluntary conveyance for the benefit of his wife, a precedent conveyance made by him for her benefit is competent evidence on the question of the good faith of the latter. Lane v. Kingsherry, xi. 402. Y. A., while residitag in Tennessee, conveyed certain slaves to B., in payment of a debt to him, being the only debt he owed. On the same day, by a voluntary conveyance, duly executed according to the laws of Teiitotessee, B. conveyed the slaves to C. in trust for the wife of A. and her childfeil. A. then movted to this State with his family, bringing with him the slaves, and continumg to 'exercise acts of ownership over them, his wife passively submitting to his assumed au- thority. ' After som6 years' residence here, A. becomes involve^d in debt, and his creditors levied on and sold the slaves as his property, the wife, at the time of the levy and sale, proclaiming her title' — Held, that so far as A.'s creditors were concerned, it was immaterial whether B., at the time of his oonveyance to C. was insolvent, or designed to practice a fraud ; that by the deed the title was vested in 0. for the benefit of A.'s wife and children, and the passive submission of the wife, and the assumed ownership of A., do not aficct her title ; and that the title being vested in C. by the deed prcperly Executed, the removal to this State, and failure to record the deed here, does not affect the rights of the wife. Murray v. Pox, xi. 555. See Bank v. Lee, 13 Pet. E. 107. Crenshaw v. Anthony^ Mart, and Yerg. R. 110. 8. BoTM fide gifts and conveyances to minor children living with their parents, are not affected with fraud merely from want of possession ; but where a father, in failing circumstances, purchases property with his own money and has it con- veyed to his minor children, such conveyance is void as to subsequent pTirehasews from him and as to his subsequent creditors. Howe v. Waysman, xii. 169. 9. The first and fourth sections of the act relating to fraudulent conveyances {R. S. 1845, 525,) must be construed like any other statute declaring a trans- action void. Where the acts 'appear, which the law declares shall mak-e a conveyance void, it is the duty of the court to declare the law to the jary. Mohinson v. Robards, ^v. 459. 10. A conveyance, in consideration of a previous .assignment of the right tof dower, would be voluntary as to existing creditors. Woodson v. PooZ, xix. 340. 11. A gift of a chattel by husband to wife, without consideration, is ineffectual. Ibid. FRAUTDULENT CONVEYANCES. II. 361 12. The gift of a slave, evidenced by a writing not under seal, passes no title to the donee where the possession of such slave remains in the donor. (R. S. 1835, 588, Art. III.) Jones v. GovingUm, xxii. 163. 13. A parol gift of a slave to one for life, remainder to her children then liv- ing, followed by the possession of the donee for life, is valid. Pemberton v. Pemberton, xxii. 338. 14. The fact that a father, upon the marriage of his daughter, delivered to her and his son-in-law a slave, which remained in possession of the latter for six years, justifies the conclusion that the slave was a gift. Jvnes v. Briscoe, xxiv. 498. 15. Where a father sends home with his married daughter a slave, saying at the time that he had given the slave to her, the gift will not be presumed, as a matter of law, to be absolute. Beale v. Dale, xxv, 301. II. IN FRAITD OF CREDITORS. 16. The fourth section of the statute relating to fraud (R. S. 1835, 283,) em- braces only creditors of or purchasers from the parties to the conveyance. A purchaser from a person not a party to the conveyance, but having only the possession of the property in right of another, and not deriving title under the conveyance, is not embraced within this section. Allison v. Bowles, viii. 346. 17. On the trial of a plea in abatement in an attachment suit, wherein the affi- davit charged that the defendant had fraudulently conveyed his property, a con- veyance of property made by him to pay a debt justly due, will not be held fraudulent because the defendant, about the time of such conveyance, made false representations as to his condition and intentions. Chouteau v. Sherman, xi. 385. 18. A conveyance made by a debtor to his creditor, though with the intent to hinder and delay his other creditors, cannot be avoided by them unless the ven- dee knew of such fraudulent purpose. Little v. Eddy, xiv. 160. 19. A deed, although made for a valuable and adequate consideration, may be void as to creditors, because of the intent with which it was made. Cason v. Murray, xv. 378. 20. A debtor in failing circumstances may give a preference to one or more of his creditors to the exclusion of others ; and such disposition of his effects is not impeachable on the ground of fraud, though it embraces all his property. Ibid. 21. The intent which avoids a deed as to creditors, is an intent to "hinder, delay, or defraud" them, and that intent is to be ascertained from all the circum- stances under which the deed was made. An intent to prevent a sacrifice of the debtor's property is not sufficient. Ibid. 22. Under the statute relating to fraudulent conveyances, (R. S. 1845, 527, § 8,) the purchaser of personal property from a mortgagor in possession will hold against a prior unrecorded mortgage, even though he had notice of it, It seems, however, that such would not be the case were the mortgage recorded within a reasonable time after its execution. Bryson v. Penix, xviii. 13. 83.. If A., in fraud of csreditors, transfers property to B., who, in payment of a just 'ddbt due to C, transfers it to C, who has no knowledge of the fraud between 362 FRAUDULENT CONVEYANCES. IV. A. and B., C. will hold it against the creditors of A.; otherwise if C. was cogni- zant of the fraud. Knox v. Hunt, xviii. 1Y4. 24. In order to bring an assignment within the statute of fraudulent convey- ances, on the ground of an intent to hinder and delay creditors, there must be such an intent actually entertained ; it is not sufficient that such is the efiect of the assignment. Gates v. Labeaume, xix. 17. 25. Where the plaintiff in an execution, acting in concert with the defendant, purchases in the property of the defendant with a view to cover it up from the creditors of the latter, the transaction is fraudulent, and the other creditors may treat the execution sale and the sheriff's deed as nullities. Dallam v. Remhaw, xxvi. 533. 26. And where all the facts bearing upon the question of the intent of such a transaction will as well consist with honesty as dishonesty and fraud therein, the court ought not to find the same to be corrupt and fraudulent ; the proof of fraud should be perfectly satisfactory. Ibid. See Jurisdiction, 30. III. BY INSOLVENTS. 27. Where a conveyance is made by a person with an intent to take the ben- efit of the insolvent act, such conveyance is so far fraudulent as to deprive the party of the benefit of the act. Talbot v. Jones, v. 217. 28. A voluntary conveyance without consideration, or merely for love and affection, made by one who is insolvent, is void as against creditors, although the grantee were ignorant of the insolvency and innocent of the fraud. Per Scott, J. Gamble v. Johnson, ix. 597. 29. A voluntary conveyance of a lot worth only about $40, made by a parent who was at the time in the possession of much .valuable property, although then embarrassed by debts, will not, as to subsequent creditors, be deemed fraudulent without proof of actual fraud. Pepper v. Carter, xi. 540. IV. EVIDENCE AND PRESUMPTIONS. 30. To impeach a voluntaiy conveyance as fraudulent, it must be shown that the grantor was largely indebted at the time the conveyance was made. Baker V. Welch, iv. 484. 31. To determine the validity of a voluntary conveyance as against creditors, every circumstance tending to show the pecuniary condition of the grantor at the time of such conveyance is admissible. Lane v. Kingsberry, xi. 402. 32. Under § 2 of the statute relating to fraudulent conveyances, (R. S. 1845, 525,) indebtedness at the time of a voluntary conveyance, is evidence of fraud, although there is some diversity of opinion as to the extent of indebtedness necessary to constitute the conveyance fraudulent. Woodson v. Pool, xix. 340. 33. A. purchased, land and caused it to be conveyed to his son, with intent to defraud his creditors — Held, in a suit to annul this deed in behalf of one of the FRATTDULENT COIfVEYANCES. VI. 363 creditors who had purchased the land at a sale on execution under a judgment in his favor against A., that evidence was inadmissible to show the pecuniary circnrastances of A. several years after the conveyance to his son. Rankin v. Harper, xxiii. 579. 34. Where it appears upon the face of a deed that it is a conveyance in trust to the use of the grantor, the courts will, as a matter of law, declare it void, as against creditors. Zeigler v. Maddox, xxvi. 575. 35. But where the deed is fair upon its face, the existence of a fraudulent intent is a question of fact to be tried by a jury. \Milburn v. Watigh, xi. 369, and Brooks v. Wimer, xx. 503, commented upon and explained.] Ibid, See Evidence, 45. V. EFFECT AS TO SUBSEQUENT PURCHASERS. 36. A bona fide purchaser, for a valuable consideration, from a fraudulent grantee, is not affected by the fraud in the prior conveyance. Wineland v. Coonce, v. 296. 31. A bona fide purchaser for a valuable consideration, is protected under the statutes of 13th and 27th Elizabeth, as adopted in this State, whether he pur- chases from a fraudulent grantor or a fraudulent grantee. Howe v. Waysman, xii. 169. VI. POSSESSION. 38. The purchaser of a slave from a borrower who has had five years' posses- sion, without any demand being made or writing executed in relation thereto, will hold the same against the bailor, although at the time of the purchase he had full knowledge of the circumstances of the title. (See R. S. 1835, 283, § 5.) Cook v. Clippard, xii. 379. 39. The continued possession of personal property by the vendor, after a sale of it, is, under the statute, (R. S. 1845, 528, § 10,) presumptive evidence of fraud, and becomes conclusive unless the vendee shows that the sale was made in good faith, and without any fraudulent intent. Kuykendall v. M'Donald, XV. 416. 40. The question of fraud in such a case, is one of fact to be determined by the jury, and in the determination of it, they should not be satisfied with the mere absence of direct evidence of a fraudulent intent, in connection with proof of a valuable consideration. They should be satisfied that there was some good and suflBcient reason for leaving the property in the possession of the vendor. Ibid. Middleton v. Hoff, xv. 415. 41. The law does not require absolute bills of sale of personal property to be recorded, and the placing them upon record, being an unauthorized act, avails the party nothing. Kuykendall v. McDonald, xv. 416. 42. Where it appears that there is a conveyance of property, for a consider- alaon not deemed valuable in law, and possession does not really and bona fide 364 FRAUDULENT CONVEYANCES. IX. accompany such conveyance, and it is not properly recorded, it is the duty of the court to declare to the jury that such conveyance is void against creditors and purchasers. Mobinson v. Rohards, xv. 459. 43. If a conveyance, on the face of it, appears to he for the use of the person making it, as a matter of law, the court will declare it void against, creditors Ihid. 44. Under the statute, (R. S. 1845, 527, § 5,) the delivery of a slave, on a bailment by way of loan, does not subject the property to the debts of the bailee, until possession under the loan shall have continued five years. McDermottv, Barnum, xvi. 114. 45. Where a party has been for, five years in possession of goods loaned to him, his administrator cannot, for the benefit of the intestate's creditors, impeach the lender's title. Criddle v. Criddle, xxi. 522. 46. A. executed a deed of gift of a slave to B., with a reservation to the donor, during her lifetime, of "the use and benefit of the labor" of the slave, the donee to take possession at the death of the donor — Meld, that this deed, being unrecorded and unaccompanied with possession in the donee, was void, nndei the statute, (R. S. 1845, 526, § 4,) as against a subsequent purchaser from A., though with notice. Soottj J., dis. Lay^oii v. Royere, xxiv. 192. VII. CONSIDERATION. 47. In all cases of conveyances affecting, creditors and purchasers, inadequacy of price is a circumstance of great weight against their validity. Robinson v. Robards, xv. 459. 48. A conveyance may be for a valuable consideration and yet fraudulent and void as to creditors. Johnson v. Sullivan, xxiii. 474. VIII. DAMAGES. 49. A. person injured or defrauded by a fraudulent conveyance may maintain an action for double damages agaiUBt the parties privy thereto, before conviction of the criminal charge. (See R. S. 1825, 290, § 39.) Miller v. Conway, ii. 213. IX. PLEADING. 50. A bill to set aside a voluntary conveyance of real estate, on the ground that the grantor was greatly indebted at the time of the conveyance, must show that the grantor did not have property enough to pay his debts, without resort- ing to the real estate parted with in the voluntary conveyance ; and if this does not appear, a decree setting aside the conveyance will be reversed. Bird v. Boldue, i. 701. FREEDOM. 365 X. AVOIDANCE. 51. Parties and privies cannot allege their own fraud as a ground for varying or avoiding a deed. Henderson v. Henderson, xiii. 151. 52. A conveyance of an intestate cannot be impeached by his administrator or heirs, for fraud as to creditors. None but creditors themselves, and those in privity with them, can avoid it. McLaughlin v. McLaughlin, xvi. 242. 53. None but a creditor or purchaser can raise the objection that a deed con- veying articles consumable in the using, the grantor retaining possession, is void and inoperative. Ibid. 54. Where a conveyance is made in fraud of creditors, they or any one of them may, in an equitable proceeding, have the same set aside, and the creditor who first files his petition obtains thereby a priority, and is entitled to be first paid fi:om the proceeds of the sale. George v. Williamson, xxvi. 100. XL SPECIAL CASES. 55. A- tad mortgaged certain goods to B., but the mortgage did not conform to the act relating to fraudulent conveyances, (R. S. 1845, 527, § 8.) A party who was alleged to have purchased the goods from B. was summoned as gar- nishee for their price by a creditor of A. — Held, that the questions for the jury were, whether the transaction between A. and B. was fraudulent as to A.'s cred- itors, and. if not, whether the subsequent purchaser bought the goods from A. or B. Bennett v. Wolcott, xix. 654. 56. A. made a fraudulent conveyance of land. A judgment was subsequently recovered against him, and the land sold under an execution, and B. became the purchaser, who afterwards conveyed back to A., who then conveyed to C, who had notice of the facts — Held, that as A. could not have obtained equitable relief against his fraudulent deed, neither could his grantee with notice. Perry v. Calvert, xxii. 361. See Criminai Law, 63. FREEDOM. I. EFFECT OF RESIDENCE OF SLAVE IN OTHER STATE OR TERRITORY. IL REMEDY FOR THE RECOVERY OF FREEDOM. a. PERMISSION TO SUE. b. INFANTS. C. PLEADING. d. EVIDENCE. e. jrUDGMKNT. ' HI. DAMAGES FOR DETENTION IN SERVITUDE. IV. SAFETY OF PLAINTIFF PENDING SUIT. 366 FREEDOM. H. I, EFFECT OF RESIDENCE OF SLAVE IN OTHER STATE OR TER- RITORY. 1. Where a slave was mortgaged in Kentucky, and before condition broken the mortgagor carried her into Illinois and there settled with a view to a perma- nent residence, it was held that the slave, under the ordinance of 1787, acquired her freedom, subject to the right of the mortgagee to reduce her to slavery by such means as were rendered necessary by the terms of the mortgage, and by some process known to the law. Milly v. Smith, ii. I7l. 2. A slave who resided as a laborer at the Ohio Saline, in Illinois, in 1817, with the consent of his master, is, under the;ordinance of 1787, entitled to his free- dom. But, under the constitution of Illinois,- a slave might be hired to work there from year to year, if such yearly hiring were in good faith, without his acquiring such right. Vincent w. Duncan, i\. 2,1^. 3. A resident citizen of Illinois may own and employ slaves in this State, and an occasional visit of a slave to that State does not constitute such a residence there as to entitle him to his freedom. LaQrange v. Chouteau, ii. 19. 4. Contracts entered into with negroes and mulattoes, under the act of 1807 of the Illinois territorial legislature, relating to the introduction of negroes and mulattoes, are not rendered obligatory under Art. VI, § 3, of the constitution of the State of Illinois. Hay v. Dunky, iii. 588. 5. The ordinance of 1787 for the government of the North-Western territory, had no force in any part or precinct of that territory in the possession of Great Britain, prior to June 1, 1796. A slave held within any such port prior to that time, acquired no right to his freedom by virtue of such ordinance. Chouteau v. Pierre, ix. 3. 6. The voluntary removal of a slave, by his master, to a State or territory where slavery is prohibited, with a view to a residence there, does not entitle the slave to sue for his freedom in the courts of this Stiitc. Gamble, J., dis. [Over- RDLES Winny v. Whitesides, i. 472. LaQrange v. Chouteau, ii. 19. Milly y. SmUh,\\. 36. Ralph v. Duncan, iii. 194. Julia v. McKinney, iii. 270. Nat V. Ruddle, iii. 400. Rachael v. Walker, iv. 350. Wilson v. Melvin, iv. 592.] Scott V. Emerson, xv. 576. Sylvia v. Kirhy, xvii. 434, II. REMEDY FOR THE RECOVERY OF FREEDOM. a. PERMISSION TO SUE. 7. Upon a petition to the Circuit Court of a person held in slavery, praying to be permitted to sue as a poor person, under a statute which provided that " if, in the opinion of the court, the petition contains sufficient matter to authorize their interference, the court shall award the necessary process to bring the cause before them," (Gey. Dig., 210, § ],) the claimant of the slave cannot, on this application, be permitted to come in and disprove the matter contained in the petition, and thereby prevent the institution of a suit. Caliche y. St. Louis Circuit Courtji. 608. FREEDOM, n. 367 8. The court is not bound, however, to permit every petitioner to sue. Being presumed to know its own records, it would not permit persons to sue for free- dom whose right to freedom had been formerly adjudicated by it. The court, upon such an application, would not, however, have a right to resort to the records of another court for evidence in such a case. Ibid. 9. The action of trespass, &c., for the recovery of freedom, may be sustained without the plaintiff filing his petition and obtaining leave to sue ; the provisions in the statute are intended for the benefit of the plaintiff and may be waived by him. (See R. S. 1825, 404, § 1.) Tramell v. Adam, ii. 155. b. INFANTS. 10. The statute relating to suits for freedom, (R. S. 1825, 404,) does not affect the common law rights of infants. They must sue by guardian or next friend, and cannot appear by attorney ; but, where the contrary does not appear, a party will be presumed to be of age, and a judgment against him held good till reversed. Jeffrie v. Bohideaux, iii. 33. C. PLEADING. 11. In an action of assault and battery and false imprisonment, under the act of June 27, 1807, (1 Ter. L. 96,) the defendant pleaded that the plaintiff was his slave, and traversed her being free, as alleged in the declaration, to which plain- tiff replied that she was bee—HM, on demurrer, that the replication was good. Susan V. Hight, i. 118. 12. An averment by the plaintiff " that he was and is a free man, and that he is held as a slave," is sufficient under the statute, and, if proved, sustains the action. (See R. S. 1825, 405, § 3.) Tramell M.Adam, ii. 155. d. EVIDENCE. 13. It is not necessary to show any positive enactment establishing slavery, and the fact of its existence being established, it devolves upon the plaintiff to show the law forbidding it. Chouteau v. Pierre, ix. 3. Charlotte v. Chouteau, xi. 193. 14. The fact that the conveyance of a negro was made in the presence of the Spanish Lieutenant Governor and anthenticated by his signature, is no adjudica- tion that such person was a slave. Charlotte v. Chouteau, xxi. 590. 15. Where a negress, brought from Canada, was sold in this State in 1795, her children might show that their mother was never properly held as a slave in Canada, or that, having once been a slave, she had gained her freedom. Either of these being shown, the children were entitled to be free. Ibid. 16. In a suit for freedom, the onus of proving his right must rest upon the plaintiff; but the law does not couple the right.to sue with ungenerous conditions; he may prove such facts as are pertinent to the issue, and may invoke such pre- sumption as the law raises from particular facts. Same case, xxv. 465. 368 FREEDOM. IV. 17. There are exception-s to the rule that where the law points out a mode of emancipation, that freedom can be establisted in no other way. In suits other than for freedom, admissions of the former owner that he had set the alleged slave free, and even presumptions, may be resorted to, in establishing freedom. Dur- ham V. Durham, xxvi. 507. e. JTJPGMKNT. 18. In a suit instituted by the claimapt of slaves to determine hi^ right? as owner of said slaves, a jury was summoned and found a verdict, in these words : " We of the jury do find that the persons claimed by the petitioner as slaves are really slaves, the property of the plaintiff; and so we find for the said plaintiff the said persons in the two petitions mentioned as slaves." In eqtering up judg- ment by the court, it was not sufficient to say " that the plaintiff have the bene- fit pf his verdict." It was the duty of the court to enter up a judgment which would show what benefit the plaintiff was to derive from hig verdict. Coikh v. St. Louis Circuit Court, i. 608. m. DAMAGES FOE DETENTION IN SERVITUDE. 19. In a suit for freedom by one claimed as a slave, the measure of damages is the worth of his labor during his unlawful detention, and any ill treatment during the time he has been held in slavery may be given in evidence in aggra- vation of damages.- Winny v. Whitesides, i. 472. 20. In an action of trespass, &c., to recover the plaintiff's freedom, he is not entitled to damages after the suit is brought. Tramell v. Adam, ii. 165. 21. Trespass and false imprisonment is the proper form of action to recover the value of services rendered by a negro during the pendency of proceedings by which he was declared free. The right of recovery depends on the fact of free- dom. Gordon r. Duncan, iii. 386. IV. SAFETY OF PLAINTIFF PENDING SUIT. 22. The statute, (R, S. 1S35, 284,) which authorizes the judge to issup a writ requiring the sheriff to bring the plaintiff before him whenever he is satisfied that there is danger that the slave will be removed out of the State, does not re- quire that tke judge shall be satisfied by the testimony of a witness ; any evidence which satisfies him, or his own inowledge, is sufficient, Anderson v. Mrown, ix. 638. 23. The proceedings under such a writ are not a part of the proceedings in the suit for freedom. Ibid. FUGITIVES FROM OTHER STATES.— GAMING. II. 869 FUGITIVES FROM OTHER STATES. 1. Warrants issued by the Governor for the apprehension of fugitives from justice are required to be under the seal of the State, (R. S. 1825, 406, § 1,) and if the impression of it on the warrant is so faint and imperfect as not to be intel- ligible, the warrant is void. Wash, J., dis. Vallad v. Sheriff, ii. 26. GAMING. I. CONTRACT FOUNDED ON, VOID. II. ACTION TO RECOVER MONEY LOST, m. ACTION AGAINST STAKEHOLDER. I. CONTRACT FOUNDED ON, VOID. 1. A written promise to pay, in these words — "I do agree that H. W. won of me, some time last winter, seven hundred dollars in loan office certificates, at gambling, at the house of M., which I proniise to pay in six months. J. L., St. Louis, July 12, 1823 " — is not within the statute of 1814 providing for the pre- vention of vice and immorality. {Gey. Dig. 428, § 5.) Waddle v. Loper, i. 635. 2. Horse racing is a game within the meaning of the statute "to restrain gaming." (R. S. 1825, 409, § 1.) Shropshire v. Glascock, iv. 536. BoynUm V. Curie, iv. 599. 3. Although betting on the result of an election is not gaming within the meaning of the statute, (R. S. 1835, 290, § 1,) it is nevertheless immoral, and in contravention of sound policy, and the betting contract is therefore void. Hick- erson v. Benson, viii. 8, 11. See R. S. 1855, 819, § 8. II. ACTION TO RECOVER MONEY LOST. 4. In an action under the statute to recover money lost at gaming, (R. S. 1835, 291, § 5,) the defendant cannot, under the general issue, give in evidence matter of defense arising subsequently to the filing of the plea. Cato v. Huison, vii. 142. 5. Where a bet was made in the name of the plaintifii the fact that others were interested with him therein, does not make it necessary that they should join in the suit. Ibid. Humphreys v. Magee, xiii. 435. 6. An action will lie against the principal whefe the bet was made by an agent, although his name was not used in the transaction and the fact of the agency was not disclosed. Cato v. Hutson, vii. 142. 24 370 GAMING. III.— GARNISHMENT. I. Y. Where one of the parties to a betting contract rescinded it, but not till after it was foreseen that he must, to a moral certainty, loose, it was held, that he could not recover back the property lost thereon, and which had been fairly de- livered to the other party. ITickerson v. Benson, viii. 8, 11. 8. But where the betting contract is seasonably rescinded, the party so rescind- ing may recover, since he is not then regarded as Standing in pari delicto. Ibid. III. ACTION AGAINST STAKEHOLDER. 9. Where a party deposits money with a stakeholder to, abide the result of a bet on a horse race, he may sue at common law and recover the same at any time before tlje bet is determined, without reference to the act relating to gaming. Humphreys v. Magee, xiii. 435. See Bond, 28; Chancery, 55; Consideration, 38; Criminal Law, 67-91 ;... .'GARNisiHMENT, 37;. ...New Trial, 59;. ...Se- curities, 33. GARNISHMENT. I. LIABILITY TO GARNISHMENT. II. SERVICE AND RETURN. in. GARNISHEE'S ANSWER. IV. GARNISHEE'S DEFENSE. V. PROCEEDINGS. VI. INTERPLEADER. VH. JUDGMENT AGAINST GARNISHEE. VIII. COSTS. I. LIABILITY TO GARNISHMENT. 1. A debt evidenced by a promissory note, payable to order, is attachable by garnishment, but to entitle the plaintiff to a recovery against the garnishee in such a case, he must show that the principal debtor is the holder of the note and owner of the debt. Tompkins, J., dis. Scott v. Hill, iii. 88. Quarles v. Por- ter, xii. 76. 2. A sheriff who has collected money on an execution is not a debtor of the plaintiff before the return day of the execution. In such a case the sheriff can not be garnisheed as a debtor of the pjaiutiff, nor can the money so collected by him be attached. Marvin v. Hawley, ix. 378. 3. An administrator or other person holding money pr property in a fiduciary (3AENISHMENT. II. 371 character, cannot be gamisheed for such money or property. Curling v. Hyde, X. 3Y4. 4. But after an administrator upon a settlement has been adjudged to pay over a sum of money, he is subject to garnishment in a suit against the person in whose favor payment has been adjudged. Richards v. Origgs, xvi. 416. 5. A public municipal corporation is not, like a private corporation, liable to be gamisheed for a sum due to an officer of such corporation as a part of his salary. Hawthorn v. City of St. Louis, xi. 59. Fortune v. City of St. Louis, xxiii. 239. 6. The Bank of Missouri was summoned as the garnishee of the holder of a draft of the United States on the bank, which had funds of the Government in its hands at the time of the garnishment. There had never been a regular pre- sentment and acceptance of the draft by the bank — Held, that the bank was not liable as the holder's garnishee. Birch, J., dis. Janney v. Bank of Missouri, xii. 583. Franklin v. Bank of Missouri, xii. 589. I. A special deposit of coin does not constitute the depositary a debtor within the meaning of the statute (R. S. 1846, 4Y6, § 6,) so as to subject him to a gar- nishment upon an execution against the depositor. Wood v. Edgar, xiii. 461. 8. The treasurer of a corporation having its money in his hands, is not liable to garnishment in a suit against a creditor of the corporation. Neuer v. O'Fal- lon, xviiij 211. 9. The fact that the corporation has directed its treasurer to pay out of its funds in his hands a specific sum to the defendant in the attachment suit, as a mere gratuity for the benefit of third parties, will not render the treasurer liable to the process of garnishment, nor would it render the corporation thus liable. n>id. 10. It is well settled that the maker of a negotiable note may be summoned as garnishee-of the holder. Oolcord v. Daggett, xviii. 667. II. An auctioneer having in his possession a consignment for sale, cannot be gamisheed by the plaintiff in an execution suit against the owner of the goods. Pratte v. Scott, xix. 625. 12. A. shipped a quantity of gold dust to B., with directions to sell it and pay the proceeds to C, a creditor of A. It did not appear that C had assented to this arrangement, or that he was advised of it. Before B. paid the money to C, he was summoned as garnishee in an attachment suit against A. — Held, that the money still remained the property of A., and was subject to the attachment Briggs v. Block, xviii. 281. 13. Debts and wages were not exempted from garnishment to any amount under the execution law of 1847, (Acts 1846-7, 52,) and before the passage of the act of 1853. (Acts 1852-3, 103.) Gregory v. Evans, xix. 261. II. SERVICE AND RETURN. 14; Where a sheriff summoned a garnishee and failed to return the names of the persons in whose presence the writ was executed as required by statute, 5^8 GAENIiSHMENT. III. (1 T«r, L. 600, § 3,) the writ was not properly served, and the garnishee was not bound to appear and answer, and a judgment taken against him by default was void. Qaiieen v. Douffleus, i. 330,. 15. If the sheriff summons a gamishee, without being direeted to do so in tb« writ, his return must show what particular property of the defendants in the gar- nishee's hands he had levied upon, in order to justify the act of summoning. Mauhhy v, Farr, iii. 438. 16. A retur9 on an attachment, served by garnishment, which does not show what property in the hands of the garnishee was levied upon, is defective, and will ijot sustain a judgment by default. Bdd. \1, So where the sheriff's return showed that he had levied an attachment on soqie mules, &o,, and without saying whose mules they were ; and summoned a garnishee without levying an attachment on anything in his hands — Hdd, that the levy was bad, and that the garnishee, so summoned, was not bound to appear. (See R. S. 1825, 145, § 3.) Anderson v. Scott, ii. 15. 18. An attachment against a corporation under the statute, (R. S. 1835, 126, § 8,) need not contain the names of the garnishees, (R. S. 1835, 77, § Y,) nor is it necessary that the sheriff should state in his return that he was directed by the plaintiff or his attorney to summon sueh garnishees. lAnddi v. £e»t(m, vi. 361. 19. A garnishment is a species of attachment, and the first serviee creates the prior lien. Talbot v. Harding, x. 3 SO. 20. A sheriff having five executions in his hands at the same time, in &vor «f different persons, and against the same defendant, served notice of garnishment upon the garnishee, in which he was required to appear and answer such inter- rogatories as might be filed by the several plaintiffs, naming them, touching hk indebtedness to the defendant, and it was hdd sufficient. Quarks v. Porter, xii. 76. III. GARNISHEE'S ANSWER. 21. Where the answer of a garnishee is not properly traversed, he should not demur, but move to dismiss. Tattle v. Gordmi, viii. 153. 22. The answer of a garnishee is evidence in his favor, until disproved. McEvoy V. Lane, ix. 47. 23. The answer of a garnishee is not governed by the rules of technical plead- ing. Ashby v. Watson, ix. 235. 24. A corporation may be summoned as a garnishee, and answer on oath by its proper officer. Perpetual Ins, Co. v. Coken, ix. 416. 25. The answer of a garnishee may be disproved by evidence of his declara- tions made prior to his answer. \^Davis v. ITnapp, viii. 657, commented upon and explained.] Stevens v. Qwathm^y, ix. 628, 26. The law presumes the answer of a garnishee to be true, until the contrary is made to appear by the plaintiff!, Davis v. Xmtpp, viii. 657. Quarles v. Porter, xii. 76. GARNISHMENT. IV. 373 27. ITnder the new code, the denial of the answer of a garnishee need not be verified by affidavit. Stewart v. Anderson, xviii. 82. Briggs v. Block, xviii, 281. IV. GARNISHEE'S DEFENSE. 28. A., having given his note to B., was snmmoned as garnishee in a snit against B^ and a recovery had. In an action by C. (to whom B. had assigned the note before the attachment,) against A., the record of the recovery against him as garnishee is a good bar to the action ; and the fact that C. has exchanged the note for four smaller ones, amounting to the same sum, and for the same consid-' eration, ttoesnot vary the case. Wolf v. Cozeens, iv. 431. 29. The garnishee, in his answer, stated "that he had purchased a note of « certain date and amount, given by the defendant in the execution, and assigned to the garnishee before he was summoned, and therefore, he owed the defendant nothing." This will authorize the garnishee to prove that he had a bond, or any other claim against the defendant, exceeding bis debt to defendant. Ashby y, Watson, ix. 235. 80. A garnishee cannot take advantage of an error in the proceedings against the principal debtor, where the court has jurisdiction of the cause. Perpetual Ins. Co. V. Cohen, ix. 416. 31. An answer of a garnishee, admitting that he had been indebted to A^ but that, before he was summoned, an agreement had been made between him- self, A. and B.J (a creditor of A.,) that the amount due from him to A. should be paid to B., is evidence to show that he was not indebted to A. at the time he was summoned. Black v. Faul, x. 103. 32. A garnishee may set up the statute of limitations as a defense to his in- debtedness. Benton v. Lindell, x. 557. 33. Where the maker of a note is notified of its assignment, and is afterwards stmrmoned as a garnishee, the assignment constitutes a valid defense to the gar- nishment. If, however, this defense proves unavailing, and judgment is tendered against him, it cannot affect the right of the assignee to recover the debt. [Bates v. Martin, iii. 367, and Wolf v. Cossens, iv. 431, commented upon.] &iiteg V. Kirby, Xiii. 157. Fimkhouser v. How, xxiv. 44. Dickey v. Fox, xxiv. 217. 34. The Home Mutual Insurance Co. was not liable to execution till three tQOnths after judgment against it. After judgment against it, a creditor of the plaintiff in the judgment, garnisheed the company, and afterwards^ within the three months, the plaintiff in the judgment took out execution, and the company paid the amount of it to him — Held, that they could not thus avoid their liability under the garnishment, by payinf>; an execution which might have been quashed Home Mutual Ins. Co. v. Gamble, xiv. 407. 35. Where a party defends on tha gfotind that he has been charged and paid the debt as garnishee, he must show that the debt sued on, and that for which he was chATged as garnishee, are the same. Birlam v. Wenger, xiv. 548. 36> A jittdgtoent' eannot be tendered against a garnishee on a note llia/t was 374 GARNISHMENT. V. assigned to another, before the service of the garnishment. Walden v. Valiant XV. 409. 37. Where a stakeholder, in a wager, is summoned as garnishee of the win- ning party, and the wager was determined without any demand upon the gar- nishee by the losing party for the money- deposited wit^i him, and he makes no claim, judgment will be given against the garnishee for the whole amount in his hands. Wimer v. Pritchartt, xvi. 252. 38. To constitute a valid assignment of a debt not, evidenced by bond, bill or note, as against the debtor, notice must be given to him ; and if, after an assign- ment without notice, judgment is obtained against him as garnishee, in a suit against his original creditor, he will be protected. Bichards v. Griggs, xvi. 416. 39. A deed of trust executed by the garnishee to the defendant in the execu- tion, reciting that the former was indebted to the latter in the amount of a negotiable' note which the deed was given to secure, is suflBcient evidence to authorize a judgment against the garnishee, his answer not positively denying that the defendant was the holder of the note, and no other person. asserting a claim to it at the trial, although it was then long past due. Colcord v. Daggett, xviii. 55Y. 40. Where a garnishee, summoned on a fi. fa., alleges an assignment of the debt by the defendant, aa issue may be made between the plaintiff and gsirnishee to try the question of fraud in the assignment. Boggetty. St. Louis Marine and Fire Ins. Co., xix. 201. 41 . A. drew a bill of exchange «n B., in favor of C, payable out of funds in his hands. The next day, B. promised C. to pay him on the bill whatever might be in his hands, due to A. Afterwards B. was summoned as garnishee or trustee. And after this, the bill of exchange being presented to ,B., he refused to accept it — Held, that such bill of exchange cannot, before acceptance, take effeet as an equitable assignment of the fund. Kimhall v. Donald, xx. 57 7. flngler v. Uice, XX. 583. . , 42. Where a garnishee has notice of an assignment of the debt, and fails to set up this matter as a defense, and a judgment is rendered against him, and he pays the money to the attaching creditor, the assignee is not entitled to recover the amount so paid from such attaching creditor, although such cSreditor had notice of the assignment during the pendency of the garnishment. Scott, J. dis. [Colcord v. Daggett, xviii. 557, Overruled.] Funkhouser v. Horn, xxiv. 44. 43. And, quaere, whether a garnishee who fails to state in his answer the fact of a previous assignment of the debt, and who had no notice of such assignment^ is entitled to relief against a judgment against him as garnishee. Marmadiike V. McMasters, xxiv. 51. V. PROCEEDINGS. 44. The Supreme Court will not interfere with the discretion exercised by in- ferior courts in the matter of permitting allegations and interrogatories to GARNISHMENT. VUL 375 garnishees to be filed after the regular time has elapsed, but before the end of the term. Briggs v. Block, xviii. 281. 45. Where the plaintiff sued a contractor, and brought in the Pacific R. R. Co. as garnishee, it was hid, that the burden of proof rested on the plaintiff to show that the railroad company was liable to the contractor, should an action be brought against it by the contractor. Reagan v. Pacific Railroad Co., xxi. 30. "VI. INTERPLEADER. 46. A party cannot interplead in a cause to claim assets in the hands of a person summoned as garnishee on execution. If the garnishee is in doubt as to who is his creditor, he may bring in all persons interested, and thus relieve him- self. Wimer v. Pritchartt, xvi. 252. See Supra, 40. VII. JUDGMENT AGAINST GARNISHEE. 47. A judgment against a garnishee for a sum larger than the amount of the plaintifi^s judgment against the principal debtor is not erroneous. Scott v. Hill, iii. 88. 48. Where a judgment is rendered against a garnishee by default, under the statute, (R S. 1835, 86, § 17.) the plaintiff must establish, by competent proof, the amount of his indebtedness to the defendant, and final judgment can only be rendered against him for the amount of his actual indebtedness to the defend- ant. Brofherion v. Anderson, vi. 388. 49. Where, in such a case, a justice renders final j\idgment against a gar- nishee for the amount of the plaintiff's claim, without any proof of the indebt- edness of the garnishee to the di'fendant, the judgment is irregular, and the irre- gularity is not cured by lapse of time. Ibid. 50. A judgment by default against a garnishee does not authorize proof of a joint indebtedness of hiin and another to the defendant, and, in such case, the assignment by the other of his interest in the indebtedness (being an open account) to the defendant, will make no difference. Kingdey v. Missouri Fire Co. xiv. 465. 51. A Justice may render jnrlgmcnt against a garnishee for an amount within his jurisdiction, although the indebtedness of the garnishee to the defendant exceeds his jurisdiction. Boggill v. St. Louis Marine and Fire Ins. Co., xix. 201. See Supra, 36. VIII. COSTS. 52. Under the act of 1 847, (Acts 1 846-7, 9, § 1,) a garnishee is not entitled to an allowance for the fees of an attorney, but oiily for his own time and trouble in answering. Stewart v. Anderson, xix. 478. «« ©IFT.— eiTARANTYv 53. To entitle a garnishee to indemnification for eixpenses incurred by him it is not necessary that he should appear and answer in the garnishment proceed-! ing. Bedn v. Chrisman, xxvii. 293, See Attorney at Law 1 ; Intekest, 6, 7 ; Judgment, 32. aiFT. 1. A., by deed of gift, granted to B. and C. certain slaves, each donee to take certain of them in severalty, and in case of the death of either " without heirs," the title to the slaves granted to him was to pass to and vest in the survivor absolutely, — Held, that the gift was a grant of the entire property and title of the donor in the slaves to the first donee, and that the limitation over to take effect upon his death was void. Wilson v. Cockrill, viii. 1. Wilson v. Munn, viii. 8, 2. Qucere, whether such limitation would have been void if created by will, or by conveyance under the statute of uses. Wilson v. Cockrill, viii. 1. 3. The condition in a gift of a chattel that the donee shall have children is a valid one ; if the donee has issue, the gift becomes absolute — if not, the property reverts to the donor. Halhert v. Halbert, xxi. 211. 4. v., by deed of gift in 1B31, conveyed a female slave to his grand-daughtej and " her heirs forever." A subsequent clause of the deed provided that if thg donee die leaving no lawful issue, the slave and her increase should be equally divided among the sons and daughters of Y. — ITeld, that the granddaughter took an absolute estate, and the remainder was void as tending to create a per- petuity. Vaughn v. Ou-if, xvii. 429. 5. By a deed of gift certain slaves were conv eyed to M . W., a daughter of the grantor, thus: "to the said M. W., and to her bodily issue, and no way else, r removal was passed subsequent to the appointment of the guardian. (See Acts 1838-9, 58, § 15.) Firmey v. The State, ix. 226. VII. DlSTRIBtrHON OF DECEASED WARD'S ESTATE. 14. The prohibition in the statute relating to goardiatife and curators, against the issuing of letters of administration on the estate of a deceased ininor, (R. 8. 1845, 552, § 27,) applies to those cases Only where there are no debts except those which the guardian himself has allowed to be created, and does not apply where there are demands for which the minor wauld have been liable to an action. Geotffe v. DaWSon, xviii. 407. VIII. CURATOR'S SETTLEMENT. 15. No distinction exists between an administrator and a curator as to the settlement of their accounts, and although the settlement of the accounts of a curator had been sanctioned by the County Court, and are regarded as prima facie correct, yet it does not prevent the ward from filing a bill in equity, sur- charging and falsifying his accounts. Oldham v. Trimble, xv. 225. The State V. Roland, xxiii. 93. 16. Such proceeding can be sustained only by proof that the allowance and settlements were fraudulently procured. Mitchell v. Williams, xxvii. 399. IX. PARTIES TO ACTION. 17. A suit on behalf of a lunatic must be bifonght in his name, (by bis guar- dian,) and not in the name of the gaitrdisn. Beed v. Wilson, xiik 28. HABEAS CORPIJS. 1. Where a free negro, who had been duly tried and committed under the statute, (R. S. 1835, 4r6, §§ 31, 32,) was brought befose the Supreme Court on habeas corpus, the court declined looking into the correctness of the decision made by the committing magistrate, as the stfttute pi^ovided other modes of reviewing it, and the habeccs corpus act having no refereilca to commitments-after a regular trial by competent judicial authority. Skmer v. The SiatCf iv. 614. 2. Where a person, committed for any oflfense, is broitgbt before a eourt oif HABEAS CORPUS.—HEIRS. 381 magistrate under Uje hakeat corpus act, he cannot be discharged for any " infor- mality, insufficiency or irregularity of the commitment ;" therefore, where a person was charged in the commitment with the commission of manslaughter, and it appeared that the offijnse was an assault with intent to kill, the magis- trate, before whom the prisoner was brought, properly described the oflfense in the recognizance as an assault with intent to kill. (See R. S. 1835, 303, § 13.) Snowden v. The State, viii. 483. 3. An appeal will not lie from the refusal of the court to discharge a prisoner, on a writ ot habeas corpus. Howe v. The State, ix. 682. 4. A negro, convicted and sentenced as a free negro to imprisonment in the penitentiary, cannot be discharged on a habeas corpus, on the petition of a person alleging such convict to be his slave. £Ix parte Toney, xi. 661. 5. Neither the Supreme Court, nor any other court or judge, can, on a petition for a habeas corpus, investigate the legality of a conviction in, or a judgment of a court of competent jurisdiction. Ibid. 6. A prisoner will not be released on habeas corpus because the jury, before whom he had been once tried on an indictment for a capital offense, was dis- charged by the court fcr disagreement before the end of the term, without his consent and in his absence. Hx parte Ruthven, xvii. 541. 7. The Circuit Court, or a judge thereof has authority to issue a writ of habeas corpus in vacation, and if such court or judge order the prisoner to be discharged, however improper or erroneous the officer having charge of the pri- soner may discharge him, and will not be liable for so doing. Martin v. The State, xii. 471. 8. A commitment,- which states that the party committed was adjudged guilty of a contempt in refusing to answer questions while giving his deposition as a witness, plainly and specially charges a contempt, although it does not in terms state that the questions were relevant or were decided to be relevant. Ex partf McKee, xviii. 699. HEIRS. 1. The term " heir" does not always refer to a person whose ancestor is dead, but it is often used to designate the presumptive heir of a person in existence. Thus, in a note payable on demand to " the heirs of A.," A. being alive, it may be shown by averment that the presumptive heirs of A. were intended. Cox v. Beltzhoover, xi. 142. 2. A decree against the heirs of a fraudulent purchaser, should impose no penalty upon them for the improper conduct of their ancestor, but in adjusting the rights of the parties, the improvements made by the ancestor, if equal to, should be set off against the rents and profits of the estate porchased. Smith v. Isaac, xii. 106. See Action, 36 ; Administration, 25 ;. . . .Evidencb, 133, 134. 382 HUSBAND AND WIFE. HUSBAND AND WIFE. I. MARRIAGE. a. OONSBNT OrP PARENT OB GUARDIAN. b. INDICTMENT FOB MABBYING MINOR WITHOUT. C. QUI TAM ACTION FOR. d. ACTION FOB BREACH OF PBOMISE OF MARRIAGE, i. II. MARRIAGE SETTLEMENTS AND CONTRACTS. a. GENERALLY. b. UNDER FRENCH AND SPANISH LAW. III. HUSEAND'8 RIGHTS IN AND POWER OVER WIFE'S PROPERTY. IV. LIABILITY OF HUSBAND FOR DEBTS OF WIFE. V. CURTESY. a. ESTATE BY. b. CONVEYANCE OF. VI. RIGHTS AND DISABILITIES OF WIFE AND LIABILITY ■ OF HER PROPERTY ON HER DEBTS AND CONTRACTS. VII. WIFE AS AGENT OF HUSBAND. VIII. DEALING WITH WIFE APART FROM HUSBAND. IX. CONVEYANCES BY AND TO HUSBAND AND WIFE. a. TO EACH OTHER. b. BY Gift from husband to wife. C. TO HUSBAND AND WIFE IN FEE. d. IN TRUST TO HEB SEPARATE USE. e. OF HER ESTATE AND HER HUSBAND's INTEREST THEREIN. f. ACKNOWLEDGMENT OF DEED BY WIFE. aa. When Conveying her Estate, bb. On Relinquishment of Dower. gl SURVIVORSHIP. X. COMMUNITY PROPERTY UNDER THE FRENCH AND SPANISH LAW. XI. ACTION BY AND AGAINST HUSBAND AND WIFE. a. GENERALLY. b. BY THE WIFE ALONE. XII. MARITAL RIGHTS DETERMINED BY WHAT LAW. XIII. ARTICLES OF SEPARATION. XIV. DIVORCE AND ALIMONY. a. CAUSES OF DIVORCE. aa. Adultery. bb. Absence for two years. cc. Personal Indignities. dd. Cruel and Barbarous Treatment. ee. Condonation. b. JOINDER OF CAUSES OF DIVORCE. 0. REQUISITES OF THE BILL OB PETITION. d. CROSS-BILL. e. RESIDENCE OF COMPLAINANT, f. EVIDENCE. HUSBAND AND WIFE. I. 383 g. BAR TO THE ACTION, h. EFFECT OF DIVORCE. i. GUILT OF BOTH PARTIES. j. SErriNG ASIDE DECREE OF DIVORCE, k. ALIMONY AND MAINTENANCE. I. MARRIAGE. a. CONSENT OF PARENT OR GUARDIAN. 1. The statute which prohibits the marrying of a minor without the consent of the, parent, guardian, or other person having the care or government of such minor, (R. S. 1835, 401, § 7,) limits the power of consent to one person, and does not give it to each of the persons mentioned in the act, but only to that one who has the care or government of the minor, at the time of marriage. Vaughn V. McQueen, ix. 327. 2. Where there is a guardian, the parent cannot consent so as to justify the person solemnizing the marriage. Ibid. b. INDICTMENT FOR MARRYING MINOR WITHOUT, 3. In framing an indictment under § 8 of the statute relating to marriages, (R. S. 1845, 730,) it is not sufficient to pursue the language of the act; the indictment should specifically state the acts committed by the defendant, to enable the court to determine whether he has violated the law. The State v. Winrighi, xii. 410. 4. An indictment under the statute, (R. S. 1855, 1062, § 7,) charging that the defendant, a minister of the gospel, unlawfully joined in marriage a minor, "with- out then and there having the certificate or presence and consent of the parent or guardian, or other person having the care and government of such minor," is insufficient. The State v. JRoss, xxvi. 260. C. QUI TAM ACTION FOR. 5. In a qui tarn action to recover the statute penalty for marrying a minor, without the consent or presence of parent or guardian, the burden of proof of consent is on the defendant. Tompkin's, J., dis. Medlock v. Brown, iv. 379. 6. Such action will lie only against him who solemnizes the marriage, and not against aiders or advisers. Alsup v. Ross, xxiv. 283. d. ACTION FOR BREACH OF PROMISE OF MARRIAGE. 7. In an action for breach of promise of marriage, seduction may be given in evidence in aggravation of damages. Tompkins, J., dis. Qreen v. Spencer, iii. 318. Hill V. Maupin, iii. 323, 8. And, also, evidence of the plaintifi''s general character before the seduction. Green v. Spencer, iii. 318. 9. An ofier to marry may be inferred from the statement of the plaintiflf to the 384 HUSBAND AND WIFE. VL. defendant, that she " was ready to marry and had made preparation for the occa- sion, and was as ready as she ever would be." Green v. Spencer, iii. 318. 10. Where a plaintiff joins in her petition a count for breach of promise of marriage, and a count for seduction, the latter may be disregarded altogether, and the judgment will not be reversed because evidence was offered in support of the second count, which increased the damages, if it could have been introduced under the first count with the same effect. Roper v. Clay, xviii. 383. 11. Where the plaintiff averred, in her petition, that, at the special instance and request of the defendant, she had promised to marry him, (without averring that the defendant had promised to marry her,) and " that the defendant, not regarding his said promise and undertaking, but contriving to injure and deceive the plaintiff, had married another person" — Held, that the omission was cured by the verdict, although it would have been bad on demurrer. Ibid. 12. It is lio defense to an action for a breach of promise of marriage, that the plaintiff had previously contracted to marry another person. Ibid. 13. A petition in an action for breach of promise of marriage, alleging that about a certain specified date, " the defendant, in consideration that the plaintiff, then being sole and unmarried, at the request of the defendant, faithfully promised to marry the defendant — did then and there undertake and faithfully promise to marry the plaintiff; that, confiding in the said promise and undertaking of said defendwi, plaintiff has remained and continued and still is sole and unmarried, and ha-s always been and still is ready and willing to marry the defendant ; that, though a reasonable time has elapsed since said promise and undertaking for the defendant to marry plaintiff, and although requested so to do, he has wholly neglected and refused, and still does neglect and refuse," &c., is good after ver- dict on motion in arrest of judgnient. Davis v. Slagle, xxvii. 600. 14* Where a defendant, in an action for breach of promise of marriage, Btterapts, in answer, to justify his nonr-compliance with his contract by charging that the character of the plaintiff for virtue is bad, the fact that this imputation is unwarrantably made, is a circumstance that aggravates the damages ; and the jury may take the same into consideration in estimating the damages. Ibid. II. MARRIAGE SETTLEMENTS AND CONTRACTS. GENERALLY. 15. Ante-nuptial agreements, conveying the property of the wife to a trustee, subject to her sole use and disposition, are valid, and the husband has no right in or to the same, either before or after her death. Pratt v. Wright, v. 192. 3.6. By an anternuptial contract, by which property of the intended wife was conveyed in trust for her sole use and benefit, with fall power to dispose of the same by will, all her estate and interest are conveyed absolutely and indefinitely, 80 that, in the event of her decease without having made any disposition ,of the property so conveyed, it devolves by statute upon her kin by blood, to whom the hofiband is postponed. Wright v. Pratt, xvii. 43. HUSBAND AND WIFE. II. 385 17. Under a marriage contract entitling the wife to a life estate in certain slaves, with power of disposal by will or otherwise during coverture, and free from liability for her husband's debts, her estate is absolute. Logan v. Logan, xix. 465. 18. An ante-nuptial agreement that the wife, at her death, may dispose to her son certain chattels, does not vest them in the wife, but only gives her a power of appointment. Agee v. Agee, xxii. 366. 19. A marriage contract is binding between the parties thereto, although not acknowledged or proved and recorded. Logan v. Phillips, xviii. 22. 20. A stipulation in a marriage contract, that in case the wife should survive the husband, she should receive from his estate the sum of 8200, is valid, and she may maintain a suit thereon against her deceased husband's representatives. Vogel V. Vogel, xxii. 161. b. UK DEE FRENCH AND SPANISH LAW. ,21. With reference to the custom of Paris relative to marital communities, the parties contracted that "the said future spouses take each other, with their property and all the right now actually belonging to them, and also those which may fall to or appertain to them, &c.. which property shall wholly enter into the community," &c. — Held, that the words " which piopcrty," ^&c., applied only to that which came to them during marriage. Childress v. Cutler, xvi. 24. 22. Spanish marriage contracts are within § 5 of the act of 1825, relating to marriage contracts. (R. S. 1825, 526). [Overruling McNair v. Dodge, vii. 404, and Hensley v. Dodge, vii. 479.] Wilkinson v. Rozier, xix. 44.3. 23. As to the construction of a marriage contract entered into in 1797. Wilkinson v. American Iron Mountain Co., xx. 122. 24. By the Spanish law, which prevailed here as early as 1777, persons about to be married could not, by marriage contract, introduce a foreign law, (as for example the French law,) to regulate their property relations as husband and as wife, as by stipulating for the establishment of a community between the parties according to the custom of Paris. Cutler v. Waddingham, xxii. 206. 25. A. and B. being about to marry, entered into a maiTiage contract, dated Aug. 5th, 1777, containing clauses the translation of which is in these words : " the said future spouses to be one and common in all moveable property and immovable conquests, (en lous Mens meubles, et conquels immeubles,) according lo the ancient custom established in this colony, to which they submit themselves by force of the present contract;" — "the said future spouses take each other with the property and rights to them now belonging, and such as may happen to come and belong to them hereafter, whether by succession, gift, legacy, or other- wise, which property, from whichever side it may come to them, shall enter wholly into community without any reserve '' — Held, that these clauses were inoifectual to bring a lot of land owned by the husband at the time of the marriage, into a conjugal community, in any such sense that, on the death' of the husband, the 'wife would be entitled to one half thereof. Ibid. 25 386 HUSBAND AND WIFE. III. III. HUSBAND'S RIGHTS IN AND POWER OVER WIFE'S PROPERTY. 26. A velinquisbmnnt by the husband of his wife's distributive share in certain lots bc'loiisfiiiQ; to an estate, to a co-heir, is no bar to the husband's right to sub- ject the same lots to the payment of a demand due to himself from the deceased. Morton V. Mnssic, iii. 482. 27. Where a wife becomes entitled to a distributive share of her father's estatp, and dies before her husband has reduced the same to possession, such share will go to her heirs, and not to her husband. Leah-y v. Muupin, x. 368. 28. A husband is not entitled under our statutes to the choses in action of his wiff, not reduced into possession durinj/ her life. As where the wife, being entitled to a distributive share of her father's estate, died before the same was received by the husband, he is not entitled to such share, but the same will go to her heirs. Ihid. Gilld v. Camp, xix. 404. 29. A bond given to a femme sole, can only be reduced to possession by her husband by his receiving satisfaction of the debt, or by changing the security ; -ind it is not reduced to possession by the husband taking possession of it during her life, and after her death transferring it to another* Pickett v. Eoentt, xi. 568. ' 30. The personal savings and profits made by the wife, and which her husband allows her to apply to her own separate use, in equity vest in her as against the claim of her husband and his legal representatives. Gentry v. McJReynolds, ::ii. 633. 31. If the husband sells a chattel bequeathed to his wife for life, before it is delivered to him by the executor, and the purchaser takes and retains the pos- session thereof, it is such a reduction of property to possession by the husband as bars the wife's right of survivorship. Ahinr/ton v. Traoix, xv. 240. 32. The act of 1849, which exempts property of a married woman from sale under execution against her husband in curtain cases, (Aets 1818-9, 67, § 1,) does not affect the right of the husband to receive and dispose of his wife's prop- erty. Boi/ce V. Cayce, xvii. 47. 33. The possession by a husband of property in which his wife had a life estate, does not necessarily, immediately on her death, become adverse to the remainder- man. Possession of personal property mu4 be adverse in order to be protected by the statute of limitations. MrLnui v. Wmrhcster, xvii. 49. 34. A gift or boqnest of a chattel to the hnslmnd and wife vests the entire property in the husband. P»llc v. Allen., xix. 467. 35. Where a slave was bequeathed to a wife for her life, her husband, though in possession, cannot convey an absolute estate to a purchaser. Rubmson v. Ric, XX. 229. 36. Where the husband is in possession of personal property bequeathed to his wife by a former husband, as administrator of such former husband, and he makes a final settlement, and it is ordered by the court that he and his wife retain all the estate of deceased in their hands, the husband's possession as ad- ministrator thereupon ceases, and his possession, jare mariti, commences at the ditu )f vvh ovlar; but this woald not be a reduction into possession of a boild HUSBAND AND WIFE. V. 387 or note for the wife's money taken by him as administrator. Walker v. Walker, XXV. 367. 37. If personal property of the wife, other than choses in action, be in such a situation that the husband may lawfully take it into his hands at any moment, this is a suflBcient reduction into possession, although he should not take it into his actual custody. Ibid. 38. By the law of Kentucky in the year 1 830, where an interest in a chattel vests in the wife, whether in remainder or otherwise, although not reduced to possession by the husband, passes to him upon her death in case he survives her, H(mck y. Camplin, xxv. 3'13. See Execution, 31-35. IV. LIABILITY OF HUSBAND FOR DEBTS OF WIFE. 39. After a decree of alimony, pendente lite, the husband is not chargeable with debts contracted by the wife. Bennett v. O'Fallm, ii. 69. 40. The husband is not liable for money left with his wife without his con- sent, and which she applies to her own use. Per Scott, J. Andrews v. Orms- bee, xi. 400. See Infra, VHI;. . . .Landlord and Tenant, 41. V. CURTESY. a. ESTATE BY. 41. A. conveyed a tract of land to B. (the wife of C.) and " to the heirs of her body"— fieW, that by the statute, (R. S. 1825, 216, § 4,) she took only a life estate in the premises ; and that upon her death her husband did not become a tenant by curtesy. Burris v. Page, xii. 358. 42. In this State a husband is entitled to curtesy in the equitable estate of his wife. Alexander v. Warrance, xvii. 228. • 43. The estate of tenancy by the curtesy is coeval, in this State, with dower, and both were introduced by the act of July 4, 1807. (1 Ter. L. 128, §§ 6, 15.)' Reaume v. Chambers, xxii. 36. 44. Actual seizin of the wife's land is not necessary to entitle the husband to curtesy. Ibid. Rarvey v. Wickham, :sxm. 112. Stephens y. Hume, xxw. ZiQ. b. OONVETANCE OF. 45. Where a tenant by the curtesy executes a conveyance which operates to transfer an estate for the life of the grantor, so long as this estate is outstand- ing, it prevents a recovery of the land by those claiming under the'wife of such tenant. Reaume v. Chambers, xxii. 36. 46. Where a tenant by the curtesy makes a conveyance that would if he were seized in fee, give the grantee an estate for his (grantee's) life, the grantee takes an estate for the life of the grantor. Ibid. See Infra, 98. 388 HUSBAND AND WIPE. VIII. VI. RIGHTS AND DISABILITIES OF WIFE, AND LIABILITY OF HER PROPERTY ON HER DEBTS AND CONTRACTS.' 47. A married woraan is not liable on a note executed by herself, although her husband has been absent from the State many years and left her to live upon her own means. Chouteau v. Merry, iii. 254. 48. A femme covert is regarded in equity, as to her separate property, as a fmnme sole. Coats v. Ruhinsou, x. 757. 49. Where & femme cover! gives a note or bond, it is presumed that she in- tends to charge her separate property. Ibid. 50. A mari-ied woman executed a promissory note jointly with her husband and although it did not appear on what account the note was executed, whether for the beui-fit of the wife or of the husband, or for their joint benefit, equity would subject real estate held to the separate use of the wife to the payment thereof, and would decree a sale for that purpose. Whitesides v. Cannon, xxiii. 457. Seyond v. Garlnnd, xxiii. 547, 5 1 . The indorsement by a married woman of a bill of exchange or promissory note made payable to her order, in the presence of and with the consent of her husband, will pass the title. Menkens v. Heriiighi, xvii. 297. McClain v. Weide' meyer, xxv. .364. 52. And such consent is sufficiently shown if it appear that the note was exe- cuted to her in consideration of the transfer by her to the maker of the note of a bill of exchange transmitted to her from her hiisband, who was absent in Cali- fornia. McClain v. Weidemeyer, xxv. 364. See Infra, 66. VII. WIFE AS AGENT OF HUSBAND. 53. The wife may be the agent of her husband, and her acts and statements in the transaction of the business within the scope of her agency are admissible in evidence. Singleton v. Mann, iii. 464. 54. Where a wife, who in the absence of her husband usually acts as his agent, borrows money and purchases property with it which he afterwards pos- sesses and claims, he will be bound to pay the money borrowed. Burk v. How- ard, xiii. 241. VIII. DEALING WITH WIFE APART FROM HUSBAND. 55. Persons dealing with a married woman living apart from her husband, give her credit at their peril. Bennett v. 0^ Fallon, ii. 69. 56. Where the wife lives apart from her husband, and that fact is known to the party dealing with her, the husband is not liable for articles furnished her unless it appears that he consented to the separation, or had by his own miscon-^ duct induced it. Rutherford v. Coxe, xi. 347. Reese v. Chilton, xxvi. 598. HUSBAND AND WIFE. IX. 389 57. If the husband makes a reasonable allowance to the wife for neressaries during his temporary absence, and a tradesman, with notice of this, supplies her -with goods, the husband is not liable unless the tradesman can show that the allowance was not supplied ; otherwise if the tradesman has no notice. Harxhaio V. Merryrrmn, xviii. 106. 58. Where a merchant furnishes goods to the wife while living separate and apaH from her husband, he does so at his peril. It is no defense that he was not aware of the separation. Porter v. Bohh, xxv. 36. 59. If the wife leave her husband withont cause, he will not become liable, by receiving her back, for necessaries supplied to her during her unlawful absence. Reese v. Chilton, xxvi. 598, IX. CONVEYANCES BY AND TO HUSBAND AND WIFE. a. TO EACH OTHER. 60. The legal unity of husband and wife prevents their mutually releasing to each other, by deed of partition, their respective interests in land. Frhsell y. Hosier, xix. 448. b. BT GIFT FROM HUSBAND TO WIFE. 61. At law a husband cannot make a gift direct to his wife; and thongli equity, where the intent is clear that she shall enjoy the property separately, will interfere and constitute the husband a trustee, and compel him to execute the trust, yet the proof of the trust must be clear and unequivocal. Walker v. Walker, xxv. 367. See Fraudulent Conveyances, 3, 6, 7, 11. C. TO husband and wife in FEE. 62. A conveyance to husband and wife, in fee, vests t^ie estate in thera as ten- ants in entireties, the whole of which remains in the survivor of them, and neither, during the life of the other, is able to affect it to the prejudice of the other. Gibson v Zimmerman, xii. 385. d. in trust to her separate use. 63. Where personal property is given to the separate use of the wife, and no trustee appointed, the husliand is the ti-ustee of the wife. To authorize a court of equity in such case to appoint n trustee, it must appear that the husband is insolvent, or that the property cannot be compensated in damages. Freeman v. Freeman, ix. 763. 64. In creating a trust to the sole use of a married woman, no particular form of words is necessary. Words clearly m.init'esting such an intention on the part of the grantor, will bar the husband's marital rights. Clurk v. Mayuire,xv\. 302. Clark V. Conway, xxiii. 438. 390 HUSBAND AND WIFE. IX. 65. A. conveyed to B. one-half of the capital stock and property used in a certain business, " in trust for the sole benefit of the wife of C, and her children;" also, one-half of the profits arising from the business " to be applied by B. for the benefit of C.'s wife and her children " — Held, that this language is sufiieient to exclude C.'s marital right to the profits of said business. Clark v. Maguire, xvi. 302. Clark v. Conway, xxiii. 438. 66. Where a trust is created for a married woman's separate use without more, she has an alienable estate independent of her husband, which she may dispose of as a femme sole owner ; she has also power, incident to property in general, of contracting debts to be paid out of her separate estate. Whitesides V. Cannon, xxiii. 457. Segond v. Garland, xxiii. 547. 67. A deed of gift provided that "in consideration of the natural love and affection that I entertain and feel for my daughter, Susan M. Kerr, and in con- sideration of the more surely providing for her and her children a permanent property, I do hereby grant and bestow, of my free gratuity, and for and in consideration as above expressed, to my said daughter Susan, and to heirs, sepa- rately and exclusively from all claim and interest of her husband, John K. Kerr, my negroes, (fee. I do hereby, for the consideration and to the end aforesaid, convey said negroes to Francis P. Peneston, in trust to hold the same for the sole and exclusive use and benefit of my daughter, Susan M. Kerr, and to her heirs forever," &c. — Held, that the legal ownership of such slaves vested in Pen- eston, and that he held for the benefit of Mrs. Kerr, to the exclusion of her husband. Blue v. Peneston, xxiv. 240. e. OP HER ESTATE AND THE HUSBANd's INTEREST THEREIN. 68. An agreement between the _husband (his wife not joined in it,) and other heirs to an estate, to bring all advances into hotchpot, will not divest the wife of her estate in the land. Chouteau v. Paul, iii. 260. 69. The husband and wife, under the statute of 1825, (R. S. 1825, 220, § 12,) could not convey an estate granted to the wife and her heirs during cov- erture. Hedelston v. Field, iii. 94. (But see R. S. 1855, 362, § 35.) 70. A conveyance by husband and wife of land held in her right, made after the introduction of the common law in 1816, (See 1 Ter. L. 436,) and before the act of 1821, expressly authorizing such conveyances (See 1 Ter. L. 756,) was valid, both by the Spanish law, which the adoption of the common law did not repeal, and by the common law itself. Lindell v. McNair, iv. 380. [Explained and limited by Reaume v. Chambers, xxii. 36.] 71. A deed purporting to convey the real estate of the wife, in which the husband only joins as a party assenting to the conveyance by his wife, will not convey the interest of the husband in such real estate. Mlenmann v. Thomp- son, X. 587. 72. A deed of bargain and sale executed by husband and wife on the 4th Nov., 1816, purporting to convey the wife's real estate, the wife being at that date an infant, may be avoided by their joint deed executed to another person on 5th February, 1846. Youse v. Norcoms, xii. 549. Norcum v. Gaty, xix. 65. Norcum v. Sheahan, xxi. 25. HUSBAND AND WIFE, IX. 391 73. The act of 1849, (Acts 1848-9, 61,) exempting certain property of mar- ried women from the debts of their hiTsbands, docs ni t disable the wife from voluntarily joining in a conveyance of her real estate to secure a debt of her husband. Schneider v. Slaihr, xx. 269. 74. A wife may, when she becomes discovert, affirm and ratify a deed made by her during coverture. Boatman v. Carry, xxv. 433. 75. By the law of Kentucky in 1830, a married woman had full power to dispose of personal property vested in her for her sole and separate use, and the joinder of her husband, in a deed of transfer, did not affect its validity. kialLe V. Chandler, xxvi. 124. f. ACKNOWLEDGMENT OF DEED BY WIFE. aa. When conveying her estate, 76. Where the certificate of acknowledgment of a deed executed by husband and wife, to convey lands of the wife, states that the wiie, upon "separate exami- nation, acknowledged and declared tliat she executed the deed and relinquished her dower in the lands mentioned in the deed," the deed, thus acknowledged, will not pass the fee simple estate of the wife. McDaniel v. Priest, xii. 544. See Infra, 80. 77. In 1821, the acknowlcdgmpnt cf a deed of a husband and wife by the wife, she being a grantor, was sufficient to (ntitle it to be recorded, the only object of the record at the time being notice to the world of the existence of the deed. Meyer v. Camph' II, xii. 603. 78. A certificato of a v ife's aiknowli-dgmcnt must comply substantially with the requirements of the statute ; and, if defective, it cannot be aided by a court of equity, nor by parol prcof. Chauvin v. Waffner, xviii. 531. 79. A certificate of a wife's acknowledgment, under the statute of 1 825, (R. S. 1825, 220, § 12,) of a conveyance of her own estate, is not vitiated by an omission to state that the contents were explained to her, if it is stated that sha was "acquainted with the contenfes.'' Ibid. Thomas v. Meier, xviii. 573. 80. If a certificate states that the wife " was examined, whether she acknowl- edged that she executed the deed and relinquirhed her dowerf" and that "sh<5 acknowledged that she executed the deed and relinquished her dower," it will pass her estate, if otherwise sufficient. Rtland, J., dis. Chauvin v. Wnqner xviii. 531. Perkins v. Carter, xx. 465. Chauvin v. Lownes, xxiii. 223. See Supra, 76. 81. Under the statute of 1825, (R. S. 1825, 220, § 12,) the omission of the words, " and does not wish to retract," in a certificate of a married woman's acknowledgment of a conveyance of her own estate, is fatal. Per Gamble J. Scott, J., dis. and Ryland, J., expressing no opinion. Chauvin v. Wagiier xviii. 631. Chauvin v. Lownes, xxiii. 223. 82. The insertion of the words, " relinquished her dower in the premises" or the like, in a certificate of the acknowledgment of a deed by a wife conveying her own estate, does not render the deed void as to her. Dtlassus v. loiton zix. 425. 392 HUSBAND AND WIFE. X. 83. A deed executed Nov. 16, 1819, in Illinois, by husband and wife, and acknowledged before a notary publin there, is ineffectual to convey the wife's real estate in Missouri. Beaume v. Uhambers, xxii. 36. bb. On Relinquishment of J)ower. 84. A certificate of acknowledgment of a married woman which states that, " she acknowledges that she executed the deed freely," but omits to state that she " relinquished her dower," is insufficient to pass dower. Thomas v. Meier, xviii. 5*73. 85. A release of dower under the statute of 1835, (R. S. 1835, 122, §§ 23, 24,) required an examination of the wife, apart from her husband, and that the certificate should state the fact of such examination. Rogers v. Woody, xxiii. 548. g. SURVIVORSHIP. 86. A married woman had a reversionary interest in a chattel, expectant on the death of the tenant, for life. The husband and wife assigned it for value. The husband died before the death of the tenant for life — Held, that the assign- ment did not defeat the wife's right of survivorship, since it did not operate as a constructive reduction into possession by the husband. Wood v. SinimOns, XX. 363. 87. A. conveyed certain premises, reserving to himself " the use of said tract of land, and farm thereon, or the rents and profits arising from it during his life, and the life of his wife" — Held, that this reservation created no interest in the wife, and that she was not entitled to the rents and profits after her husband's death. Logan v. Caldwell, xxiii. 372. X. COMMUNITY PROPERTY UNDER THE FRENCH AND SPANISH LAW. 88. Where a husband, residing in Louisiana with his wife, used money be- longing to the- community, in the purchase of lands in Missouri, and took the title in his own name, and was subsequently divorced — Held, that the land in this State will be considered in equity, as held by the husband in trust for the wife, to the extent of her interest in the money invested in its purchase, there being no evidence Of any assent on her part to a change in the property by the investment, and it makes no difference that the parties were temporarily residing in Missouri at the time of the investment. Depas v. Mayo, xi. 314. And see Pensenneau v. Pensenneau, xxii. 27. 89. By the custom of Paris, or the French law, only the personal estate of the parties entered into the community or partnership which the law established between husband and wife upon marriage. But the Spanish law included in the community both the real and personal estate. Childress v. Cutter, xvl 24. 90. By the Spanish law, which formerly prevailed here, property which the husband and wife owned in community, might, while the community existed, be HUSBAND AND WIFE. XII. 393 conveyed by the husband without the wife's consent ; and the introduction of the common law, and of laws prescribing the mode in which a married woman might convey her separate property, did not abrogate this right of the husband to dispose of the community property. Moreau v. Belchemendy, xviii. 522. 91. A royal gift or grant to the husband or the wife did not accrue to the community under the custom of Paris or the Spanish law. Nor did concessions in Louisiana, unless when made on a consideration which was a burden on the community. Wilkinson v. American Iron Mountain Co., xx. 122. See Sdpba, 21-25 ; Public Lands, 124. XI. ACTION BY AND AGAINST HUSBAND AND WIFE. a. GENERALLY. 92. A judgment, by confession, against husband and wife, for the sole debt of the wife, under the letter of attorney executed by them jointly for that pur- pose, is a valid judgment. Benjamin v. Bartlell, iii. 86. 93. There is a distinction between cases where a suit affects a wife's interest in real estate, which is claimed in her own right, and cases in which she has only an inchoate right of dower. In the former class of cases the wife is a necessary party to the proceedings, in order to divest her right, but in the latter class the husband alone is the proper party to defend a proceeding instituted to divest the title to land, to which a mere inchoate right of dower has attached. Riddick V. Walsh, xv. 619. 94. In an action of attachment against the husband, the wife cannot appear and file her interpleader at law. Her claim to the property attached must be asserted in a court of chancery. Withers v. Shropshire, xv. 631. 95. Although in a suit in behalf of persons claiming to be husband and wife, it is competent for them to prove the marriage by evidence of cohabitation and by general reputation, yet the defendant may show that the alleged marriage is illegal and void. Boatman v. Curry, xxv. 433. b. BT THE WIFE ALONE. 96. A femme covert may enforce her rights by an action in her own name, without joining her husband, where she lives separate and apart from him, under articles of separation, and her husband resides out of the State. Rose v. Bates xii. 30. See Ejectment, 21, 22 ; Replevin, 18, 19. XII. MARITAL RIGHTS DETERMINED BY WHAT LAW. 97. The law existing at the time of the dissolution of a marriage by death determines the marital rights of the parties, in eases where the marriage was celebrated abroad, as well as in those cases where celebrated here. Riddick v. Walsh, XV. 519. 394 HUSBAND AND WIFE. XIV. XIII. ARTICLES OF SEPARATION. 98. Articles of separation executed December 24, 1803, which purported to dissolve the marriage relation of the parties thereto, and by which they agreed to live separate and apart from each other, they dividing the property owned by them in community, renouncing mutually all rights and powers flowing from their matrimonial contract, and granting to each other the free and absolute dis- position and control of their property and conduct, as if they had never been married, are null and void by both the Spanish law and the common law, and do not deprive the husband of his curtesy in property conveyed directly to the wife, without the intervention of trustees, to her separate use after such separa- tion. Gonsolis V. Douchouquette, i. 666. Chouteau v. Uouchouquette, i. 669. See Supra, 96 ;. . . .Infea, 117. XIV. DIVORCE AND ALIMONY. a. CAUSES OF DIVORCE. aa. Adultery. 99. Adultery committed in England, where the parties resided, and of which the innocent party was cognizant there, and took no steps there to obtain a divorce, will not be investigated here. Stokes y. Stokes, i. 320. See Infra, 111, 115. bb. Absence for Two years. 100. A petition for divorce, on the ground of the absence of the defendant for more than two years, must allege that the absence was without reasonable cause. Freeland v. Freeland, xix. 354. cc. Personal Indignities. 101. Charges of infidelity are not such personal indignities as constitute a ground of divorce, under the statute, (R. S. 1845, 426, § 1.) Mere indignities to the moral character or reputation are insufficient. Such indignities must be, in some way, connected with the person of the party in order to come within the statute. [Overruling Lewis v. Lends, v. 278.] Cheatham v. Cheatham, x. 296. 102. But under the act of 1849, (Acts 1848-9, 49, § 1,) it is not necessary that indignities should be offered to the person, to be the ground of divorce. Hooper v. Hooper, xix. 355. [And see R. S. 1855, 662, § 1.] 103. The petition must set out the facts constituting the indignities. Ibid. Bowers V. Bowers, xix. 351. 104. And to support a decree for a divorce, on a petition alleging indignities offered to the petitioner, the finding must state the nature of the acts and abuse, not merely that the acts and abuse were indignities. Bowers v. Bowers, xix. 351. mJSBAND AND WIFE. XIV. 395 105. Where a husband wrote to his wife, stating his determination never again to live with her ; that she did not suit him ; that he had been deceived in her, and that her conduct towards his relatives had been improper — Held, that this was not an indignity sufficient to warrant a decree of divorce under the act of 1849. Hooper v. Hooper, xix. 355. 106. Nor is a notice to all persons, posted by the husband, not to credit his wife. Ibid. dd. Cruel and Barbarous Treatment. 107. Where a divorce is sought on the ground of cruel and barbarous treat- ment, the inquiry should embrace the conduct of the parties toward each other during the period of the alleged misconduct ; proof of particular acts of cruelty, especially where the divorce is sought by the husband, will not generally be suffi- cient to authorize a judgment of divorce. If the alleged cruel treatment be the result of the husband's misconduct, he cannot have the redress sought. Doyle v. Doyle, xxvi. 545. ee. Condonation. 108. After such wrong has been committed as would warrant a divorce, if the parties voluntarily cohabit with each other, it is a condonation of the offense. Twyman v. Twyman, xxvii. 383. b. JOINDER OF CAUSES OF DIVORCE. 109. Different causes of divorce may be joined in the same bUl. Stokes v. Stokes, i. 320. C. REQUISITES OF THE BILL OR PETITION. 110. The cause for divorce ought to be specifically alleged in the bill, and not left to inference or presumption. Ibid. d. CROSS BILL. 111. In a suit for a divorce by the husband against his wife, on the ground of habitual drunkenness for more than two years, the wife may recriminate, that the husband has been guilty of adultery, and the proof of such charge will prevent the granting of a divorce. Ryan v. Ryan, ix. 535. e. RESIDENCE OF COMPLAINANT. 112. One year's residence was not, under the act of 1807, (1 Ter. L. 92, § 5,) necessary, previous to an application for a divorce o mensa et thoro ; it was only necessary where the application was for a divorce a vinculo matrimonii. Stokes V. Stokes, i. 320. 113. A bill for divorce should show either that the complainant has resided within the State one whole year next preceding the application, or that the offense complained of was committed within this State, or while one or both of the parties resided within the State. (K. S. 1845, 427, § 4.) Cheatham v. Cheatham, x. 296. 114. The complainant, in an action for divorce, must be a resident of this State. Kruse v. Kruse, xxv. 68. HUSBAND AND WIFE. XIV. I. EVIDENCE. 115. Upon a petition for divorce, brought by a husband against his wife charging her with adultery, evidence of her general good character is admissible- O'Bryan v. G' Bryan, xiii. 16. 116. The admissions of a party are evidence against hiro, but alone they are not sufficient to warrant a decree of divorce ; they must be supported by other evidence. Tivyman v. Twyman, xxvii. 3S3. g. BAB TO THE ACTION. 117. A deed of separation is no bar to an application on the part of the wife for a divorce. Stokes v. Stokes, i. 320. h. EFFECT OF DIVORCE. 118. A decree of divorce operates so as to place the wife in the situation she would have occupied had her husband died. Wood v. Simmons, xx. 363. i. GUILT OF BOTH PARTIES. 119. Upon an application for a divorce, where both parties are found guilty of any of the enumerated offenses for which a divorce may be granted, the bill will be dismissed, Nagel v. Nagel, xii. 53. Duncan v. Duncan, xii. 157. j. SETTING ASIDE DECREE OF DIVORCE. 120. The provision of the statute, (R. S. 1845, 851, §§ 1-4,) that a decree rendered against a party who has not been summoned and has not appeared, may be set aside within a time limited, applies to a decree of divorce. Scott, J., dii:. Smith v. Smith, xx. 166. 121. Under the revised statutes of 1845, a decree of divorce obtained by fraud, might be set aside upon a petition for a review. MuMfield v. Mannfield, xxvi. 163. 122. The statute (R. S. 1855, 666, § 14,) is applicable only to suits for divorce commenced after May 1, 1856, Ibid. 123. The fact that a decree of divorce was rendered in behalf of the plaintiflf upon a finding of facts, which omitted to state that the plaintiff was an innocent and injured party, both parties appearing to the suit, does not render the decree invalid. (R. S. 1855, 665, § 10.) Schmidt v. Schmidt, xxvi. 235. k. ALIMONY AND MAINTENANCE. 124. Wanton abandonment by the husband, and destitution of the wife, is good ground fOr a decree of maintenance of the wife, under the act of 1845, (R. S. 1845, 428, § 9.) Hooper v. Hihper, xix. 355. 125. The court niay award alimony, payable in quarterly instalments, and may authorize the cleric, on a failure to pay any one of such instahnents, to issue exe- cution therefor. Schmidt v. Schmidt, xxvi. 235. INCLOSURES.— INDIANS. 397 126. An allowance of alimony may be made, although no evidence was given showing the income of the husband. Schmidt v. Schmidt, xxvi. 235. 127. The separation of a husband from his wife during the pendency of a suit by him for a divorce, does not constitute an abandonment within the meaning of the statute, (R. S. 1845, 428, § 9,) — such a separation, the husband failing to obtain a divorce, would not authorize a decree of alimony. Doyle v. Doyle, xxvi. 545. 128. Except by virtne of statutory provisions, the courts can decree alimony only as an incident to a judgment of divorce. Ibid. See Laws, 65 ; Public Lands, 123-125 ; Replevin, 7. INCLOSURES. 1. One cannot justify the killing of his neighbor's stock, under the statute, (R. S. 1845, 57.5,) without showing himself exactly withiu the protection of the statute. Early x. Fleming, xvi. 154. 2. Where a bufl'alo bull, a wild, vicious and mischievous animal, breaks into a close, the owner of such close may kill him, if this be necessary to preserve his propeity from destruction, a'though the close may not be fenced in the manner required by the statute. (R. S. 1845, 575.) Canefox v. Crenshaw, xxiv. 199. 3. Where one of two adjoining proprietors grants permission to the other to join fences with him, the fence of each being upon his own laud, the license thus granted is a personal privilege, and is revocable; a sale of his land by such pro- prietor amounts to a revocation of the license. Hnux v. Seat, xxvi. 178. 4. And a purchaser who takes without notice of an agreement to join fences will not be bound thereby. Ibid. See Woods, Marshes and Prairies, 1. INDIANS. 1. There was no legal authority for reducing Indians to slavery in the territory of Louisiana, while it was subject to the rule and jurisdiction of France. Wash, J,, dis. Marguerite v. Chouteau, iii. 540. [Overrules Same case, ii. 59, where the decision was by a divided court, only two judges sitting.] 2. Au indictment under the act of 1839, (Acts 1838-9, 66,) for trading with Indians, must aver that the Indians had not a written permit from their proper agent. The State v. Black, ix. 681. 398 INFANTS. II. INFANTS. I. CONTRACT. II. CONVEYANCES. III. SUITS BY AND AGAINST INFANTS. I. CONTRACT. 1. Where an infant adopts a contract, made in his behalf without authority, no one but the infant can'avoid it, and a joinder, by guardian, in a suit which recognizes such contract, is an adoption of it. Ward v. St. Bt. Little Bed, viii. 358. 2. An infant may release a debt due to him, and it cannot be objected to by a third person. Horine v. Horine, xi. 649. 8. Infancy is a good defense to an action for the breach of a contract to work in California, in consideration of an outfit furnished, although there has been no ofier to return the outfit. Craighead v. Wells, xxi. 404. 4. If a minor contract to do certain wort, he may avoid such contract and recover a reasonable compensation for the work done, the damage resulting from the avoiding of the contract being taken into consideration . Lowe v. Sinklear, xxvii. 308. II. CONVEYANCES. 5. Mere declarations, or a promise upon some contingency to make a deed of affirmance, will not affirm the deed of an infant. Glamorgan v. Lane, ix. 442. 6. Sales of real estate by infants, like other contracts, are voidable only, the privilege of avoiding them being confined to the infant, his personal represent*: tives and his privies in blo6d. Ferguson v. Bell, xvii. 347. 7. To render a subsequent conveyance an act of dissent to the prior convey- ance of an infant, it must be inconsistent therewith, so that both cannot properly stand together. Thus, where an infant, as heir of her father, conveyed her interest in land, and afterwards acquired another interest in the same land by inheritance from a brother, a subsequent conveyance by herself and husband, con- veying " all their right, title and interest " in the premises in question, did not avoid the prior deed. Leitensdorfer v. Hempstead, xviii. 269. 8. Though an infant is authorized to exercise the power of appointment, by the instrument creating the power, yet he cannot exercise it if coupled with an interest. Thompson w.Lyon, xx. 155. 9. Where an infant, being authorized so to do, exercises the power of appoint- ment by conveying land, a court of equity will not interfere against a purchaser for a valuable consideration. Ibid, 10. A married woman, a minor, joining in a mortgage of her real estate, may, in a suit to foreclose, plead infancy during minority. Schneider v. Staihr, XX. 269. INFANTS. III. 11. Where a minor executes a deed of land, and, after attaining his majority, conveys the same land to a third person, the second deed is a disaflBrmance of the first. This is a question of law for the court. Peterson v. Laik, xxiv. 541. See Administration, 65 ; Husband and Wife, 72 ; Landlord ano Tenant, 9. ' III. SUITS BY AND AGAINST INFANTS. 12. An administrator may set up the infancy of his intestate at the time of the execution of the bond sued on as a bar thereto. Parsons v. ITiU, viii. 135. 13. Where a decree has been rendered against infants, proceedings by them on coming of age, to set it aside, can only be had on notice to the other parties. Hubi/ V. Strother, xi. 417. 14. Where a judgment is rendered against an infant defendant who appears by attorney, he may, at any time after he arrives at full age, cause the same to be set aside on motion. Powell v. Gott, xiii. 458. 15. As, also, where rendered against infant plaintiflfs who appear by attorney, although at the date of the judgment one of them had attained his majority. Randalls v. Wilson, xxiv. 76. 16. That a day must be given to an infant, after he comes of age, to appear and show cause against a decree in chancery, has the sanction of high authority; but it is not admitted that the rule prevails in our practice. Per Gamble, J. Heath v. Ashley, xv. 393. 17. A decree in chancery against an infant, for want of answer and without proof of the statements of the bill, is erroneous. Ibid. 18. A decree against infants who have not been served with process, is errone- ous ; they are not before the court, and the appointment of a guardian ad litem by the court, in such a case, is erroneous, and does not cure the defect of service. Hendricks V. McLean, xviii. 32. 19. It is not error that a decree in chancery against infants gives no day for them to show cause after they become of age. [Ruby v. Strother xi. 417 commented upon and disavowed.] Hendricks v. McLean, xviii. 32. Creath v. Smith, XX. 113. Soott, J., dis., and refers to his opinion in xi. 417. 20. A. B., in the presence of his niece, a young lady living with her mother and attending school, requested the plaiutifF to furnish goods to her and charge the same to him. Goods were so furnished to the niece at various times from May to December ; but in September A. B. countermanded the order, which revocation was not communicated to her — Held, that the niece could not be held personally liable for goods purchased after the order was countermanded. Brent V. Cobb, xxvi. 196. 21. Infants cannot appear by attorney, but they may by guardian. Thorn- ton V. Thornton, xxvii. 302. 22. A child, allowed by his father to leave home and to work and shift for himself, may maintain an action to recover the value of his services. Ream v. Watkins, xxvii. 516. See Supra, 4. See Freedom 10 ;. . . .Partition, 10 ; Practice, 6. 400 INSOLVENTS.— INSURANCE. INSOLVENTS. 1. There is no distinction, in principle, between a sniti prosecuted by an insol- vent after his discharge, under the statute of this State, (1 Ter. L. lib,) and by a bankrupt under the English statutes. Both statutes vest the interest in the property in the trustees and assignees. But it is well settled that if a bankrupt commences a suit prior to his bankruptcy, it shall go on in his name afterwards. Therefore, a plea puis darrein continuance, that the plaintifi' has become an insol- vent debtor, is bad, on demurrer, either as a plea in bar or abatement. Tanner V. Roberts, i. 416. 2. Where a debtor obtains a final discharge under the statute, (R. S. 1825, 445,) and at a subsequent term allegations of fraud are filed against him, he is entitled to a continuance as a matter of course. Jones v. Talbot, iv. 219. 3. It seems, that a debtor, in contemplation of taking the benefit of the act, may give a preference to some of his creditors, and that such preference is not, therefore, undue or fraudulent. Ibid. 4. The evidence was that the applicant for the benefit of the act for the relief of insolvent debtors, shortly before his application, conveyed to his brother pro- perty Worth five thousand dollars to secure a sum less than three thousand, with a provision that it should not be sold under two years — Held, that this was suffi- cient to justify the jury in finding a verdict against the applicant. Talbot v. Jones, V. 217. 5. In proceedings under § 17 of the act for the relief of insolvent debtors, (R. S. 1825, 450,) the allegation was " that the defendant had disposed of all his pro- perty to his near relations, and in particular to W. J. T., in trust for the benefit of such relations," &c. — Held, that it was erroneous for the court to instruct the jury, on the trial of an issue under such allegation, "that if the de- fendant conveyed any of his property to any of his relations with intent to take the insolvent oath, tbey must find for the plaintiff'." The instruction should have been limited to the particular conveyance to W. J. T. Talbot v. Jones, V. 217. 6. A certificate of discharge under the insolvent laws of a State will not dis- charge the insolvent from a contract made with la citizen of another State. Fareira v. Keevil, xviii. 186. See Ogden v. Saunders, 12 Wheat. 213. See Administration, XXII;. .. .Bills Exchange and Prom. Notes, 104; . . . .Bonds, Notes and Accounts, 59-63 ;. . . .Fraudulent Con- veyances, III. INSURANCE. I. POLICY— ITS CONSTRUCTION AND THE PERILS INSURED AGAINST. II. REPRESENTATIONS AND CONCEALMENT— AND HEREIN OF INCUMBRANCES. INSURANCE. I. 401 III. ASSIGNMENT OF POLICY. IV. LOSS. a. GENEBALLT. b. TOTAL LOSS. C. GENERAL AVERAGE. d. NOTICE or LOSS. e. PROOF OF LOSS. f. DELIVERY AND ACCEPTANCE. g. insurer's liability fob EXPENSES. V. DEVIATION. VL ABANDONMENT. Vn. PREMIUM AND PREMIUM NOTES. VIIL ACTION ON POLICY. IX. CHANGE OF OWNERSHIP AND NOTICE THEREOF. X. LIFE INSURANCE. I. POLICY— ITS CONSTRUCTION AND THE PERILS INSURED AGAINST. 1. A policy of insurance contained this stipulation : " indorsements on this policy to be the evidence of property at the risk of the company under the same" — Held, that the insured could recover only when the indorsements were made prior to the loss. Edwards v. Perpetual Ins. Co., vii. 382. 2. In a river policy of insurance on a steamboat against the perils of the river, " it was also agreed that the assurers are not to be liable for any partial loss, or particular average, unless such loss or average should amount to ten per cent, on the value of said boat or vessel ; nor should they be held liable for the bursting of boilers, or breaking of engines, unless occasioned by external violence." The boat was destroyed by the bursting of the boiler — Held, that the bursting of the boiler was within the perils of the river ; that the exception in the .policy as to the liability for bursting of boilers or breaking of engines, to such as are caused by external violence, applies only to cases of partial, and not to cases of total loss, and that the external violence intended by the policy is violence external to the boat, and not merely external to the boiler. Citizen^ Ins. Go. v. Glasgow, ix. 406. 3. And in estimating the loss in such case, the value of the engines and boil- ers is not to be taken into consideration. Ibid. 4. An insurance declared to be "upon the freight bill" of a steamboat, is an insurance that the boat shall earn freight ; and the insurer is responsible if the boat fail to do so in consequence of an accident to the boat, as well as by any damage to the cargo. Field v. Citizens' Ins. Co., xi. 50. .5. And where such a policy was executed, and the boat was injured in the huU so as to lose the voyage, by abandoning the freight bill, she would recover on the policy. Ihid. 6. But an agreement, after the accident by which the boat had lost the voy- age, " that the insurers will consider themselves bound by the policies of insu- 26 402 INSURANCE. I. ranee on cargo and freight bill, by a transfer of same " to another boat, exempts the insurers from liability to the first boat. Napton, J., dis. Ibid. 7. In a fire policy, containing the following proviso, viz. : " Provided, always, and it is hereby declared that this company shall not be liable to make good any loss by theft, or any loss or damage by fire, which may happen, or take place \>y means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power," the clause exempting the company from liability for losses by theft, is independent of the one immediately following, and protects the insurer against losses by larceny, however they may happen. Webb v. Protection and ^tna Ins. Co., xiv. 3. 8. Several shipments of horses and negroes were indorse upon the policy, one of which had a memorandum attached to it in these words: " the horses and negroes entered above, are only insured against the dangers incident to naviga- tion, drowning, blowing up, &c." — Held, that the policy covered the loss of a negro by drowning during the voyage, whether it happened by an ordinary or extraordinary cause. Moore v. Perpetual Ins. Co., xvi. 98. 9. The printed part of an open policy of insurance, enumerating the risks assumed by the insurers, may be modified by an indorsement, covering other risks than those mentioned, and avoiding some that are mentioned in the printed enumeration. Ibid. 10. A policy of insurance contained a clause in these words : "Provided, that the insurers shall not be liable for any partial loss, except in cases of general average, unless said loss amounts to ten per cent, on the agreed value of this policy, exclusive of all expenses of ascertaining and proving the same ; nor for damage or loss arising from, or caused by the said steamboat being duly unladen, during the continuance of this policy ; nor for any damage or loss arising from the bursting of boilers, collapsing of flues, or breaking of engines, unless from unavoidable external cause, or from any consequences resulting therefrom" — Held, that there was an entire exemption from all losses, whether partial or total, arising from the bursting of boilers, except in specified cases. Hoe v. Columbus Ins. Co., xvii. 301. 11. Under this policy, fire being one of the risks insured against, where a boiler bursted while the boat was running, which drove out the adjacent boiler, and tore away the stanchions supporting the upper deck, so that it fell down into the furnace and took fire, the bursting of the boiler was held to be the immediate and proximate cause of the loss, and therefore within the exemption of the policy. Ibid. 12. As to the true meaning of the words " or from any consequences resulting therefrom." Ibid. 13. The principles decided in the case oiRoe v. Columbus Ins. Co., will apply to a case in which the circumstances of loss were the same and the policy con- tained the following clause : " In case of partial damage over ten per centum, this company to pay in proportion as the sum insured is to the whole value of said boat ; but not accountable for damages done by the bursting of a boiler or boilers, or the breaking of machinery, except when caused by external violence." McAllister v. Tennessee Marine and fire Ins. Co., xvii. 306. INSUKANCE, n. 403 14. Under a policy of insurance, which grants the privilege "to reship at all times and places," if the goods which were put on board one steamboat to be carried to a certain place, were re-shipped on the way, although unnecessarily, upon another boat bound to that place, in an action on the policy, such re-shipment cannot be claimed as a deviation and avoidance of the policy, whatever might have been the result had the defendants relied upon the delay or abandonment of the voyage. Fletcher v. St. Louis Marine Ins. Co, xviii. 193. 15. A policy of insurance, in which Are and ice were excepted perils, was renewed by an indorsement in these words : " it being understood that the assured is not entitled to claim for any loss or damage arising from ice" — Held, that a second renewal by indorsement, thus : " the within policy is renewed," &c., applies to the original policy and not to the policy as renewed by the first indorsement. A loss by fire after the second renewal is not covered by the policy. Hovniik v. Phoenix Ins. Co., xxii. 82. 16. Merchandise was insured on the steamboat Georgia from St. Louis to Council Bluffs. The boat was disabled, and stopped at St. Joseph for repairs, which could not be made without a resort to St. 'Louis, and for this a detention of twelve days would be necessary — Held, that this was not such a breaking of the voyage as would justify the master in transhipping the property insured to ano- ther boat, and that by such transhipment the insurers were discharged. Salis- bury V. Marine Ins. Co., xxiii. 553. 17. A clause in a fire*policy on merchandise, created a forfeiture in the event that any of the articles enumerated in the memorandum of special rates is kept in the house in which the merchandise was stored, except where a special provi- sion is made in the policy. Gunpowder was included in the memorandum of special rates. By a subsequent clause, twenty-five pounds of powder were allowed to be kept, provided it is kept in tin or metallic canisters — Held, that the assured might keep in store twenty-five pounds of powder, in tin or metallic canisters, without vitiating his policy. Bowman v. Pacific Ins. Co., xxvii. 152. 18. A condition in a policy of insurance that the assured shall cause any pre- vious or subsequent insurance to be indorsed on the policy is a condition prece- dent, and is not satisfied by verbal notice to the insurer of such other insurance. Hutchinson v. Western Ins. Co., xxi. 97. IL REPRESENTATIONS AND CONCEALMENT, AND HEREIN OF INCUMBRANCES. 19. Where the validity of a policy depends on the materiality of a fact sup- pressed, as that the furniture insured was used in a house of ill-fame, only the natural consequences of the use to which the house was applied, are to be regarded, and acts of lawless violence are not such. In estimating such mate- riality, it is important to consider, that in the classification of risks in the by- laws of the company, increased premiums were not required on houses of this nature. Loehner v. Home Mutual Ins. Co., xvii. 247. Same case, xix. 628. 20. Where a house and its forniture are insured in the same policy, which is 404 INSURANCE. IV. void by statute as to the house, on account of the failure of the assured to give notice of an incumbrance, though it did not affect the risk, the validity of the policy as to the furniture is governed by the general law of insurance. Ibid. Ibid. 21. A policy void as to buildings, by virtue of a statute, may be valid as to furniture therein, the illegal provisions being distinct and capable of separation, and there being no express words in the act to render the whole void. Ibid. Ibid. 22. Where an insurance company have adopted and made public rules respect ing representations, the assured is bound to take notice of and comply with them . A representation which has been made a part of the policy becomes a warranty, and, whether material or immaterial, the matter of it must be such as it is represented, or there can be no recovery on the policy. In this case the policy was void by the charter, because the assured failed to give notice of an incumbrance on the premises insured. Ibid. Ibid. 23. Such an incumbrance being required by the charter to be expressed, and a memorandum being indorsed, 'also, on the policy, to the effect that the company would be bound by no statement made to the agent which was not contained in the application, it will not give a right of action on the policy to the plaintiffs that, at the time of the application, the agent was informed of the incumbrance, and said it was " too trifling," although it would be sufficient to avoid the policy and give a right of action for the recovery of the premium. Ibid. Ibid. 24. The failure of the insured to disclose the state of his title, or the extent of his interest in the property insured, where there is no fraudulent concealment or misrepresentation, will not avoid the policy. Insurance companies may protect themselves by inquiries, or by the conditions of their policies. Morrison v. Ten- nessee Ins. Co., xviii. 262. III. ASSIGNMENT OF POLICY. 25. The deposit of a policy of insurance with a creditor of the assured, as a security for a debt, gives such creditor a lien upon the proceeds of the policy which will be binding upon the assured, the insurer, and all who, with notice of such lien, take an interest in the policy from the assured. Ellis v. Kreutzinger, xxvii. 311. 26. And the clause in a policy which prohibits an assignment thereof without the written consent of the company, does not affect the rights of the creditor in such case. Ibid. IV. LOSS. a. GENERALLY. 27. Where a steamboat was insured against fire, and afterwards put on the dock for repairs, and, while on the dock, through the carelessness of the work- INSTTRANCE. lY. 405 men having her in charge, was burned, the insurers were held liable for the loss. JSt. Louis Ins. Co. v. Glasgow, viii. 713. 28. Where the assured stipulates in the policy that the boat shall be com- pletely provided with " master, officers and crew," it is no breach of such stipu- lation that the boat was placed temporarily in the charge of workmen for the purpose of repairs. Ibid. b. TOTAL LOSS. 29. A technical total loss is where the damage exceeds half the value of the thing insured. Citizens' Ins. Co. v. Glasgow, ix. 406. , 30. Where a steamboat, whose ireight list is insured against a total loss only, meets with a disaster upon the voyage, and by a peril insured against is rendered totally unable to transport the cargo, and cannot be repaired in a reasonable time to do so, this will amount to a total loss within the meaning of the policy, although a pro rata freight should be received for the portion of the voyage com- pleted at the time of the disaster. Willard j. Millers' avd Man. Ins. Co., xxiv. 561. See Infka, 46. C. GENERAL AVERAGE See SuPRA, 2, 3, 10-13. d. NOTICE OF LOSS. 31. Where a steamboat was insured by a river policy, and a loss occurred by the bursting of the boiler, the letter of abandonment stated, as the cause of loss, that the boat " had been nearly destroyed by the late disaster " — Held, that this was sufficient where the insurance company proceeded to act on the abandon- ment, the cause of loss being matter of public notoriety. Citizens' Ins. Co. v. Glasgow, ix. 406. 32. The receiving of a notice and failure to make objection to it as not in time, is no waiver of any insufficiency in the notice. St. Louis Ins. Co. v. Kyle, xi. 2T8. 33. Where, by the conditions of a policy of insurance, notice of the loss is re- quired to be given forthwith, it is only necessary that the notice should be given with due diligence under all the circumstances of the case ; and under the cir- cumstances of this case, a notice on the fourth day after the fire was held suffi cient. Ibid. 34. If a policy requires notice of a loss to be given "forthwith," it must be understood to mean with all due diligence. [The distinction taken in St. Louis Ins. Co. V. Kyle, xi. 278, between the notice of loss and the preliminary proofs ques- tioned.] Phillips V. Protection Ins. Co., xiv. 220. e. PROOF OF LOSS. 35. Formal defects in the preliminary proof of loss required to be submitted to the insurers, are waived by the insurers pleading their reftisal to pay on other grounds, and evidence of such waiver may be given under an averment of per- formance. St. Louis Ins. Co. v. Kyle, xi. 278. 406 INSUKANCE. V. 36. Where the insurers in a policy refuse to pay the loss on the ground that the insured failed to appear and submit to an examination, as required by the policy, in relation to the loss, they cannot afterwards object to his failure to com- ply with other requisitions of the policy as to the mode of proof. Phillips v. Protection Ins. Co., xiv. 220. 37. Where a policy requires the insured, in case of loss, to appear with vouch- ers and submit to examination and oath, if required by the agent of the insurers, a failure so to appear may be excused by showing that he was necessarily engaged in saving his family from an epidemic. Ibid. 38. Where there was, in a policy of insurance, the provision that in case of loss the insured should obtain a certificate or other instrument from the nearest magistrate, that all was fair and without fraud, the compliance with this provision is a condition precedent to a recovery for the loss. The certificate must bo from the nearest magistrate. And where an insufficient certificate was obtained, but not at once objected to, and the company entered into negotiation for the purpose of ascertaining and settling the amount for which they were liable — Held, that the company had not waived their rights as to the certificate. Noonan v. Hart- ford Fire Ins, Co., xxi. 81. f. DELIVBEY AND ACOBPTANCEi 39. Where goods shipped were covered by a policy of insurance, and, after a part had been landed, all of them were burned, as well those on the levee as on the boat, the insurance company will not be exonerated from the loss on those which had been landed, unless they had been received or accepted by the con- signeee, or unless a reasonable time had elapsed for the discharge of the remain- der. Fletcher v. St. Louis Marine Ins. Co., xviii. 193. 40. The question of delivery and acceptance, in this case, is for the jury. Ibid g. INSUEEb's LIABILITY FOR EXPENSES. 41. A policy of insurance upon a steamboat contained the usual clause making it the duty of the assured, in case of loss or misfortune, to use every practicable eflfort for the safeguard and recovery of the steamboat — Held, that where, by the grounding of the boat, it was in immediate danger of being lost or seriously damaged unless launched or set afloat, the insurer was liable for reasonable expenses, incurred in good faith, in launching and setting the boat afloat. Dix v. Union Ins. Co., xxiii. 57. V. DEVIATION. 42. A departure from the usual course of a voyage for the purpose of saving the property of another boat in distress, is a deviation which discharges the in- surer. Settle V. Perpetual Ins. Co., vii. 379. 43. But it may be shown, in justification of such departure, that it was in accordance with the custom and usage of boats in such cases in the navigation of the Mississippi river. Walsh v. Homer, x. 6. INSURANCE. Vm. 407 44. And what constitutes a deviation depends upon the nature of the voyage and the usage of the trade. Walsh v. Homer, x. 6. See Supra, 14. VI. ABANDONMENT. 45. If the owner of property insured, upon being notified of its loss, abandons it to the underwriters, and notifies them thereof, the underwriters become the owners of the property from the time of the abandonment, whether they accept it or not, provided the loss happens from one of the perils insured against. Oould v. Citizens' Ins. Co., xiii. 524. 46. In case of an insurance on freiglit " against a total loss only,'' to authorize an abandonment the loss must be an actual total loss, and not a constructive or technical total loss. Willard v. Millers^ and Man. Ins. Co., xxiv. 561. VII. PREMIUM AND PREMIUM NOTES. 47. The insolvency of an insurance company, at the time of issuing a policy, does not render the contract void or exempt the assured from the payment of the premium, unless actual fraud' was practised on him. Clark v. Middleton, xix. 53. 48. It is a good defense to an action on a premium note that the maker was induced to give it by false representations of the solvency of the company, made with intent to deceive ; nor is it necessary that the false representations should be made to the maker of the note personally, any false and fraudulent representa- tions, as by the statement required to be filed in the clerk's ofiioe by a foreign company, and whiiji were relied on by the maker, are sufiicient. City Bank of Columbus, V. Phillips, xxii. 85. VIII. ACTION ON POLICY. 49. Where the assured agrees that the boat upon which the insurance is effected shall be completely provided with " master, officers and crew," it is not necessary, in an action on the policy, to avow that the boat was so provided. St. Louis Ins. Co. V. Glasgow, viii. 713. 50. Where, by the terms of a policy, losses are to be paid in sixty days after they occur, and proof thereof is filed in the office of the insurers, if the insurers refuse to adjust the loss, an action will lie within the sixty days. Phillips v. Protection Ins. Co., xiv. 220. 51. An insurance company which has paid a loss on a policy, through igno- rance of the fact that it had become void, may recover it back. " Columbus Ins. Co. V. Walsh, xviii. 229. 52. And the defendant cannot resist re-payment of the money on the ground that he eflected the insurance as agent of the real owner, if such agency was not disclosed before payment. Ibid. 53. The fact that an agency of a foreign insurance company has not complied 408 INSURANCE. X. with the requirements of the statute relating to foreign insurance companies, Will not prevent the company from maintaining or defending a suit, for the statute does not avoid the policy in such a case. Ihid. Clark v. Middleton, xix. 53. 54. If insurance is made by one in his own name, without any indication in the policy that another is interested, ah action cannot be maintained in behalf of that other party, being the owner of the goods so insured. Parol evidence can- not be introduced to show that the parties understood the effect of the policy to be otherwise by reason of certain words it contained. Wise v. St. Louis Marine Ins. Co., xxiii. 80. See Interest, 13. IX. CHANGE OF OWNERSHIP AND NOTICE THEREOF. 65i In a policy upori a steamboat, providing for notice to the insurers of a change of master or owners, it is necessary for their assigns to give like notice of every subsequent change. Tennessee Ins. Co. v. Scott, xiv. 46, Eddy v. Tennessee Ins. Co., xxi. 687. 56. A policy of insurance, effected by paftiiere on their stock in trade, contained this clause : "and in case of any transfer or change of title in the pl-operty insured by this company, such insurance shall be void and cease " — Held, that a dissolution of the partnership, and a division of the partnership property prior to the fire, destroyed all right to recover on the policy. Breher v. ^tna Ins. Co., xviii. 128. 57. An absolute assignment or sale of insured property after insurance is effected, takes away the insurable interest of the vendor, and creates a bar to the right of action on the policy, unless by some means its existence has been pre- served for the benefit of the assignee. Morrison v. Tennessee Ins. Co., xviii. 26-2. 58. Thus, where A. effected an insurance on property, and afterwards sold and conveyed it to B., who reconveyed it to a trustee to secure to A. the payment of the purchase money — Held, that A. retained an insurable interest, and, after a loss, might recover on the policy to the extent of his actual loss, not to exceed the sum insured. Ibid. 59. And the right of a surety to be subrogated to the securities of his prin- cipal, does not arise until he has paid the principal's debt. Thus the insurance company in this case could not be subrogated to A.'s rights against B., until it had paid the insurance, if at all. Ibid. X. LIFE INSURANCE. 60. A policy of life insurance contained a clause by which it was avoided if the assured should die in the known violation of a law of the State — Held, that under this clause the policy would not be avoided if the assured was killed in an altercation, under circumstances which would make the slayer guilty of man- slaughter. To avoid the policy, the killing must have been justifiable or excusa- ble homicide. Harper v. Phoenix Ins. Co., xviii. 109. — Held, also, that this clause should be construed to extend only to instances in which the party died in the commission of a felony. Same case, xix. 506. See LocAt JDecisions, IX, X. INTEREST. I. 409 INTEREST. L HOW COMPtTTED. a. IN CASES OF PARTIAL PAYMENTS. b. WHEN PAYABLE ANNUALLY. II. BY WHAT LAW REGULATED, m. INTEREST UPON INTEREST. IV. PROCEEDINGS TO RECOVER. V. INTEREST IN SPECLA.L CASES. a. GARNISHMENT. b. FAILURE OF TITLE. C. CERTIFICATE OF DEPOSIT. d. COUNTY WABEANT. e. AGENCY. f. INNKEEPER, g. INSURANCE, h. PENAL BOND. i. ADMINISTRATION, j. ON LOST BOND, k. UNLIQUIDATED ACCOUNTS. 1. BONDS AND NOTES. L HOW COMPUTED. a. IN CASE OF PARTIAL PAYMENTS. 1. Interest is to be computed on a demand up to the first partial payment, then add the interest to the principal and deduct the payment therefrom, then Cast interest on the remainder to the second payment, add the interest to the remainder, and deduct therefrom the second payment, and so on untH the last paHial payment, unless, in any case, the interest up to any payment shall exceed the payment, in which case snch payment is to be deducted from the interest, and the excess of the interest is to be carried forward, without casting interest thereon, to the next payment that will discharge the excess. Riney v. Hill, xir. 300. [See Penrose v. Hart, 1 Ball, 378.] b. WHEN PAYABLE ANNUALLY. 2. S. agreed to pay B. one thousand dollars at the end of five years, and one hundred and twenty dollars interest per annum during that period, reserving the right to pay the whole at any time ; and further providing that if he should "at any time4)efore the one thousand dollars fell due pay any part of it, he should be exonerated from interest on that part of the one thousand dollar's which he might pay," and that " interest per annum be calculated on the remainder in lie same ratio that one hundred and twenty dollars bears to one thousand dollars " —mid, that S. was exonerated from the payment of interest on so much of the principal as was paid by him from the date of such payment, but not from the payment of any interest which had previously accrued. Stone v. Bennett, viii. 41 410 INTEREST. V. II. BY WHAT LAW REGULATED. 3. Where the plaintiff paid money in another State, for the use of the defend- ant, interest is recoverable according to the law of this State, unless the defend- ant shows that the rate of interest is less in the State where the liability occurred. Hall V. Woodson, xiii. 462. IIL INTEREST UPON INTEREST. 4. Parties cannot prospectively agree that interest on an account stated shall bear interest, bat after interest has accrued and is due, it may be agreed that interest shall bear interest. Ounn y.Head, xxi. 432. IV. PROCEEDINGS TO RECOVER. 5. Where there is no agreement to pay interest, an action for interest cannot be maintained after the principal is satisfied : but it is otherwise where there is an express contract to pay interest. Stone v. Bennett, viii. 41. V. INTEREST IN SPECIAL CASES. GAENISHMBNT. 6. Where the answer of a garnishee denies his indebtedness to the defendant, and the answer is found untrue, the garnishee is liable for interest upon his actual indebtedness. (See R. S. 1835, 333, § 1.) Stevens v. Gwathmey, ix. 628. 7. Where money is deposited with a banking corporation by the cashier of another bank, who takes certificates^ therefor in his own name and transfers them to a third party, who sues for and recovers the amount of such principal deposit, in the courts of New York, while a garnishment snit is pending in this State for the same fund in favor of a creditor of the depositing bank — Held, that the depositary was not liable for interest in the garnishment suit on the principal of such deposit, although such suit was resisted and carried to the Supreme Court, on exceptions by the depositary, it appearing that such action was not adopted as a means of delay. Cohen v. Perpetual Ins. Co., xi. 374. b. FAILURE OF TITLE. 8. In case of entire failure of the title conveyed, a re-conveyance is unneces- sary to a recovery of the purchase money. The statute of ejectment only allows a recovery of rents and profits from the occupant for five years next preceding suit brought. (R. S. 1845, 443, § 14.) Iherefore, the recovery of interest by the occupant against his grantor on his covenant of seizin, should be limited to the same period, where the possession has been beneficial. Lawless v. Collier, xix. 480. INTEREST. V. 411 CERTIFICATE OF DEPOSIT. 9. A certificate of deposit, made " payable to the order of the depositor on return of the certificate, sixty days after date, with interest at the rate of six per cent, per annum," will bear interest after maturity as well as before. Leonakd, J., dis. Payne v. Clark, xxiii. 259. COUNTY WARRANT. 10. A county warrant will bear interest after presentation and refusal of pay- ment, but not before. (See R. S. 1825, 461, § 1.) Rubbins v. Lincoln County Court, iii. 57. Skinner v. Platte County, xxii. 437. 11. A right of action accrues against an agent for money received from the lime of demand and refusal, and interest will be allowed from that date. Per Tompkins, J. Benton v. Craig, ii. 198. f. INNKEEPER. 12. In an action against an innkeeper for the loss of goods committed to his charge, the jury may give interest upon the amount of the goods lost, by way of damages, but are not required to do so. Sparr v. Wellman, xi. 230. g. INSURANCE. 13. Where a policy of insurance provided that the loss or damage, if any, should be paid in sixty days after due notice and proof thereof, interest should be allowed after the expiration of the sixty days, and not from the time payment was demanded. St. horns Ins. Co. v. Kyle, xi. 278. h. PENAL BOND. 14. Under the statute, (Gey. Dig. 239, § 1,) interest is recoverable as damages on a penal bond. Jones, J., dis. Price v. Rector, i. lo7. i. ADMINISTRATION. 15. An administrator is liable for interest on the money held by him, after an order of distribution. Henry y. The Stale, ix. 769. 16. In the distribution of estates the rule of law is that advancements shall not bear interest. Nelson v. Wyan, xxi. 347. 17. Where a testator made specific bequests of money and lands to his children, and directed that, in the final distribution of his efi'ects, the various devises should be equalized, it was held, that no interest should be charged to those who received more than their proportion of lands at the first distribution. In this case the lands did not appear to be productive. Ibid. See Administration, 160-162. 412 JAILS AND JAILERS. J. OS LOST BOND. 18. Where a bond for the payment of money has been lost or mislaid, the maker cannot be relieved from payment of interest during the time it was lost unless he had made a tender of the money to the owner of it. Hector v. Mari; i. 288. k. UNLIQUIDATED ACCOUNTS. 19. Under the statute which gave interest to creditors "on money withheld by an unreasonable and vexatious delay of payment," (R. 8. 1825, 461, § l,)itwa8 AeW that a creditor, who becomes such by paying money at the request of another is entitled to interest from the time of the payment. Chamberlain v. Smith i. 718. 20. Interest is recoverable as damages on a liquidated debt. Stone v. Bennett viii. 41. 1. BONDS AND NOTES. 21. A note, bearing "ten per cent, interest from date," is to be construed as bearing interest at the rate of ten per centum per annum from date. Finley v. Acock, ix. 832. 22. A bond or note for the payment of a sum of money on a specified fiiturfe day, " with eight per cent, interest," does not bear interest until the debt comes due. Ay res v. Hayes, xiii. 252. See Common Carrier, 12 ;. . . .Judgment, XII ;. . . . Ppactice, 126 ■. . . . Schools, 6 ; . . . . Usury. JAILS AND JAILERS. 1. Where a prisoner is committed to the jail of one county, for an offense committed in another, and a guard is employed, the county wherein the jail is situated is not liable for the expense of such guard. Perry County v. Logan, iv. 434. 2. Each county is required to keep a good and sufficient jail, and the State is not subject to any expense for guarding it. The State v. Hinkson, vii. 353. 3. In a change of venue, in a criminal case, the county to which the prisoner is removed is liable for all expense incurred in the employment of a guard for his safe keeping, the same as if the cause had originated in that county. [Perry County v. Logan, iv. 434, commented upon and explained.] Berry y. St. Francois County, ix. 356. See Costs, S3. JTIDGMENT, n. 413 JUDGMENT, I. FORM. II. BY CONFESSION. a. BEFORE COUET OP EEOORD. b. BEFORE A JUSTICE. III. CONCLUSIVENESS AND EFFECT. a. IN COLLATERAL PROCEEDINGS. b. BETWEEN SAME PARTIES OR PRIVIES. C. FORMER JUDGMENT. d. RES ADJUDICATA. e. GARNISHMENT. f. SET-OFF. IV. ASSIGNMENT. V. LIEN. VI. PRIORITY AND MERGER. VII. FOREIGN JUDGMENTS. a. AUTHENTICATION. b. EFFECT AND VALIDITY. VIII. ERRONEOUS, VOID AND VOIDABLE. IS. WHEN SEVERAL PLAINTIFFS OR DEFENDANTS. X. ARREST AND SETTING ASIDE. XI. REMITTITUR OF DAMAGES. XII. INTEREST ON. XIII. ACTION ON. XIV. SUPREME COURT JUDGMENT. I. FORM. 1. A final judgment in favor of the defendant should be in this form : " It is therefore considered by the court, that the said plaintiff take nothing by his writ, and that the defendant go hence without 'delay, and recover against the plaintiff his costs,'' &c. Lisle v. Bhea, ix. 172. Jones v. Hoppie, ix. 173. Sec Criminal Law, 358, 359. IL BY CONFESSION. a. BEFORE COURT OF RECORD. 2. A confession taken by a clerk of a Court of Record under the act of July 3d, 1807, (1 Ter. L. 118, § 37,) did not amount to a judgment, nor could execution issue thereon. It was competent for the clerk to take the cognovit actionem, upon which the court might proceed to pronounce judgment at the next term' or, if that should be omitted, at a subsequent term, as of the term next succeeding tibe confession, if the defendant had received notice of the proceeding, and did aot 414 ' JUDGMENT. II, show sufficient cause why it should not be done. Jones, J., dis. Holmes v. Carr, i. 66. Phelps v. Hawhins, vi. 197. 3. Confession of judgment is a release of all errors in the declaration. Parker V. Simpson, i. 539. 4. An entry by the clerk that judgment was confessed in open court, and that the amount was liquidated by him at a certain sum, is not a judgment of the the coui't on'whioh a recovery can be had. Hill v. Fiernan, iv. 316. 5. And the Circuit Court cannot make a judgment, confessed before a clerk, (1 Ter. L. 685, § 14,) its judgment, and thereby alter the time when a lien would commence. Russell v. Geyer, iv. 384. 6. A judgment, confessed by an attorney under a void letter of attorney, which has been revived by seire facias against the administrator of the judgment debtor, cannot be set aside, although the defect in the letter of attorney might have been pleaded in avoidance of the judgment, or given in evidence under the plea oinul tiel record on the scire facias. Wood v. Ellis, x. 382. I. Where several powers of attorney are given to confess judgments on several debts between the same parties, it is competent and proper for the court to con- solidate them, and enter but one judgment. Genestdle v. Waugh, xi. 367. 8. A judgment confessed by one partner, in the name of the firm, is void as to the co-partner, and an execution thereon is properly quashed on his appli- cation. Morgan v. Richardson, xvi, 409. 9. The president of a corporation is competent to appear and confess a judg- ment against it. Chambsrlin v. Mummoih Miainy Co., xx. 96. 10. The omission of the clerk to indorse the judgment upon the written state- ment of the defendant, in case of a confession of judgment, as provided in new code, (Acts 1848-9, 96, § 3,) is no ground for reversal, especially where the indorsement was made nunc pro tunc, before a motion to quash an execution was overruled. Hull v. Dowdall, xx. 359. II. Where a judgment by confession was rendered by a clerk in vacation, under the act of 1849, (Acts 1848-9, 96, Art. XXII.,) upon a verified statement, defective in that it did not sufiieiently set forth the facts out of which the liability grew, it is not therefore a nullity, and its validity cannot be questioned collater- ally. Gilman v. Hovey, xxvi. 280. See Laws, 30. b. BEFORE A JUSTICE. 12. Where, in a suit before a Justice on a liquidated demand, the defendant appears on the return day of the writ and acknowledges the justice of the claim, and the Justice makes a record of it, this, although not a judgment by confession, has the force of a judgment by default, and the entry by the Justice of such acknowledgment, has the efi'ect of a judgment. (See R. S. 1835, 362, §§ 1, 2.) Davis v. Wood, vii. 162. 13. A Justice may take a confession of judgment on a day other than a regular law day. ^Oyster y. Shumate, xii. 580, a.ad Hunter v. Reinhard, xiii. 23, oveb- RULKD.] Huff V. Knajip, xvii. 4:14:. JTJDGMENT. III. 415 14. Where a suit is begun by process, confession of judgment under the statute, ^R. S. 1845, 656, § 2,) need not be in writing. [Overrulino Oyster v. Shumiitp, xii. 580, and Hunter v. Hsinhard, xiii. 23.] Charaberlin v. Mam- moth Mining Co., xx. 96. Franse v. Owens, xxv. 329. See Execution, 4. See Husband and Wife, 92. III. CONCLUSIVEXESS AND EFFECT. a. IN COLLATERAL PROCEEDINGS. 15. A judgment cannot be attacked collaterally, and invalidated by evidence in pais. Montgomery v. Farley, v. 233. 16. A judgment which is simply voidable, cannot be set aside in a collateral proceeding. Ferryman v. The State, \\\\. 208. 17. Advantage may be taken of a void judgment in a collateral proceed- ing ; but where the court bad jurisdiction over the subject matter, and the defendant had notice of the proceedings against him, he is bound by them, how- ever irregular or erroneous, and the judgment is conclusive on all parties and privies thereto in any collateral proceer'ing, and rights and titles acquired by virtue of an execution issued on such judgment will be protected. McNair v. Biddle, viii. 257. 18. But where a court of hmited jurisdiction acts without authority, no writ of error lying from its judgments, the validity of its proceedings may be questioned in a collateral action. The State v. Stephenson, xii. 178. 19. The judgments of the courts of the United States cannot be impeached in a collateral way, but only by proceedings operating directly upon such judg- ments in the courts where they are rendered. Per Soott,. J. Reed v. Vaughan XV. 137. 20. A scire facias to revive a judgment against an administrator, instead of having a sheriff's return of service upon it, had an acknowledgment, signed by the administrator, that it was j)ersonally served upon him. A judtrment by default was rendered against the administrator— .ScZrf, that the judgment was not void, and could not be objected to in a collateral proceeding. Draper v. Bryson xvii. 71. 21. A judgment rendered in one county, in a suit taken by a second change of venue, by consent of parties from another county, though irregular, is not void; and a title acquired under it cannot be avoided in a collateral ' action. Chouteau v. Nickolls, xx. 442. , 22. The plaintiff recovered a judgment against C, and an execution was issued thereon, and levied upon a lot that had been conveyed in May, 1844, to one D. in trust for the separate use of the wife of C. The plaintiff became the pur! chaser at the sheriff^s sale, and brought suit, to which C. and his wife, and D were parties, to obtain a decree, vesting in himself all the right, title and interest of D., the trustee, and of the wife of C. in said lot, on the ground that the same was conveyed to D. for the separate use of the wife, with intent to defraud and 416 JUDGMENT. Ill, hinder the creditors of the husband — Held, that the judgment against C, though conclusive against him as to the items upon which it was found, was not*conclu» sive as against the other defendants, and that they might show that there was in fact nothing due upon them at the date of said conveyance. Eddy v. Baldwin, xxiii. 588. See Supra, 11. b. BKTWEBN SAME PARTIES OR PRIVIES. 23. Creditors of an estate suing a party as executor de son tort, who claims the property in dispute under a parchase from the deceased, may give in evi- dence judgments against the deceased, existing at the time of the supposed sale, although not between parties or privies. Foster v. Nowlin, iv. 1 8, 24. A judgment between the same parties, upon the same cause of action, is equally conclusive upon them in its effects as if it was specially pleaded. Offutt V. John, viii. 120. 25. The judgment of a court of competent jurisdiction cannot be impeached in a collateral proceeding by a party to the same ; but a stranger may show that the judgment was obtained by fraud and collusion. Callahan v. Grifwold, ix. 775. 26. A. purchased certain lots at a sale on an execution against B., and brought his suit against B. and also against C, in whom the legal title stood, asking that the title of C. might be divested and transferred to him, on the ground that the lots had been conveyed to C. to defraud the creditors of B. (of whom A. was one.) Both defendants appeared, and judgment was rendered for the plaintiff — Held, that this suit was a complete and final adjudication upon the title of B. to the lots in question, and that he could not afterwards set up title thereto, either on his own behalf, or in behalf of his creditors, on the ground that A. acquired the property by making a fraudulent use of a judgment confessed by B. in his favor Franklin v. Stagg, xxii. 193. 27. A judgment recovered is conclusive as between the parties thereto, aa to all matters directly in issue. This rule does not extend to matters collaterally or incidentally considered. Ridgley v. Stillwell, xxvii. 128. C. FORMER JUDGMENT. 28. To constitute a former judgment a bar to a subsequent suit, it must appear to have been a decision upon the merits of the case. Taylor v. Larkin, xii. 103. 29. In a suit for the recovery of instalments of interest alleged to be due on a promissory note, the maker set up the defense that the note had been fraudulently altered so as to make interest payable from date, but the plaintiff recovered judg- ment — Held, that said judgment was conclusive against the maker, as to the question of fraudulent alteration, in a subsequent suit on the note itself. Edgell V. Sigerson, xxvi. 583. See Pleading, 43-46. d. RES ADJUDICATA. 30. The decision of a County Court upon a petition to sell land of an estate for the payment of debts, is not regarded as res wdjvdicata Callahan v. Qrxsuold, ix. 775. JUDGMENT. IV. 41'? 31. Where a matter becomes res adjudicata, it is equally obligatoiy on both parties ; if it is not binding on both, it binds neither. But it does not become so, unless tried upon its merits. If it has been rejected without an examination and trial upon the merits, it is no bar to a subsequent investigation of the same matter. Bell v. Soagland, xv. 360. See Supra, 23-27. e. GARNISHMENT. 32. The maker of a note was summoned before a Justice as garnishee in an attachment suit against the payee. An indorsee of the note filed an interplea, claiming the debt by virtue of an indorsement before the date of the garnishment, and judgment was rendered against him on the interplea, from which he took no appeal, but afterwards withdrew the note, and sued the maker thereon — Held, that the judgment on the interplea was a bar to the latter action. Richardson V. JcyMS, xvL 177. See also, Richardson v. Watson, xxiii. 34. 33. Where a party sued, pleads as a set-oflF a matter not properly so pleadable, and no objection is made thereto, the judgment will be final as to such matter of set-ofi) and a bar to any subsequent suit thereon. Thompson v. Wineland, xi. 243. IV. ASSIGNMENT. 34. The effect of an assignment of a judgment is to authorize the assignee to receive the money thereon, and to use the plaintiff's name in prosecuting the same ; and the fact of such an assignment is no defense to a suit on the judgment in the name of the assignor. Bardon v. Savage, i. 560. 35. A judgment was obtained against A. on a partnership debt of A. and B. ; and afterwards the judgment was assigned to B., who caused suit to be brought on it in the name of the plaintiff against A. — Held, that the assignment of the judgment was no extinguishment of the debt, and that A. was liable therefor. Ibid. 36. Where a judgment was assigned, and the debtors, with notice of such assignment, paid the amount to the judgment creditor, who thereupon indorsed the amount on the execution, directing the sheriff to return the same satisfied Held, that such indorsement might be vacated on motion, and a new execution issued for the benefit of the assignees of the judgment ; but before such order could be made, all the judgment debtors were entitled to notice of such motion. Laughlin v. Fairbanks, viii. 367. 37. The owner of a judgment cannot assign a part of it, so as to affect the rights of the judgment debtor without his consent. Love v. Fairfield, xiii. 300. 38. Where A. furnished money to B. to purchase a judgment, and required it to be transferred to B., and B. afterwards assigned it to C, who had no 2ti 418 JUDGMENT. VI. knowledge of A.'s interest, it was held that C. would hold the amount collected on the judgment against A. Garland v. Harrison, xvii. 282. 39. A judgment debtor will be protected in paying to the plaintiflF in the judgment, as against an assignee, who has given no notice of the assignment. FrUsell v. Haile, xviii. 18. See Practice, 285. V. LIEN. 40. The statute (1 Ter. L. 855, § 61,) provided that "judgments rendered by Circuit Courts shall be a lien on the real estate of the person against whom they are rendered, situate in the county for which the court is held, and all liens shall commence on the day of the rendition of the judgment, and shall continue for three years thereafter," &c. — Held, that a judgment against an administrator, rendered October 1st, 1823, was no lien on the real estate of the intestate, although the judgment was de bonis testatoris. Scott v. WhUehill, i. 764. 41. The filing of a transcript of a judgment of a Justice with the clerk of the Circuit Court creates a lien from the time of filing, although an execution cannot issue on such transcript, till the Justice's execution has been returned nulla bona. Wineland v. Ooonce, v. 296. Bunding v. Miller, x. 445. 42. A Justice's execution is a lien on all the goods and chattels of the defendant within the limits of the township to which the execution is directed, from the time of its delivery to the constable. Brown v. Burrus, viii. 26. 43. Under the statute, (R. S. 1835, 364, § 18,) it is not necessary, in order to acquire a lien on real estate, to file a full copy of the Justice's docket. It is sufiicient to file a copy of the judgment. Jones v. Luck, vii. 551. 44. A person appointed constable for a special occasion, under the statute, (R. S. 1835, 352, § 20,) is to be regarded as a deputy of the proper constable, as to the lien of an execution i'n his hands. Jones v. Hoppie, ix. 1'73, 45. Thfe lien of a judgment of a Circuit Court of the United States is not prolonged nor affected by the pendency of a writ of error in the Supreme Court. Chouteau V. Nuckolls, xx. 442. 46. Judgments and decrees rendered in the Circuit and District Courts of the United States, within any State, cease to be liens on real estate, or chattels real, in the same manner and at like periods as judgments and decrees of the courts of such State cease by law to be liens thereon. Ibid. 4:1. Judgments by confession, under the act of 1849, (Acts 1848-9, 96, Art. XXII,) are liens upon real estate. Oilman v. Hovey, xxyi. 280. See Administration, 94 ; Lien, 12-15 ;. . , .Supra, 5. VI. PRIORITY AND MERGER. 48. By the statute of 1822, it was provided that certain enumerated debts of an estate should be first paid ; among which were " debts due to the State " and JUDGMENT. Vn. 419 "judgments obtained against the deceased in his life-time, and rendered not more than one year before the death of the deceased;" (1 Ter. L. 927, § 29,) these two classes being named in the act in the order here given. It was also pro- vided that, if, after paying the fnneral expenses, there should not be assets suflHcient to pay all the other claims mentioned in this privileged class, they should be paid in the order in which they stood arranged in the act. Judgment was obtained against one in his life-time, which, by the then existing law, entitled the plaintiflF to satisfaction out of the defendant's lands, after the death of the latter. After his death, the State recovered judgment against his administrators for an amount due from him as a collector of taxes ; and it was sought to obtain priority of satisfaction of this judgment over that rendered in his life-time, because of its being due to the State. But it was held, that the act did not intend to take from a creditor, on the death of a debtor, the right he had acquired to have his judgment satisfied out of the lands ; that the above men- tioned provision is merely directory to the administrator as to the manner in which he shall administer the assets ; that the question of priority does not arise between these parties ; and that their rights must be determined according to their priority of lien. Finley v. Caldwell, i. 512. 49. A judgment obtained against one in his life time, is not merged in a judgment founded on the same cause of action obtained after his death against his administrators. Ibid. vn. FOREIGN JUDGMENTS. A0THENTICATION. 50. In authenticating records under Art. IV, § 1 of the Constitution of the United States, and the acts of Congress on that subject, the certificate of the presiding Judge that he is such, is sufficient evidence of the fact. Hutchison V. Patrick, iii. 65. 51. And a certificate by a Judge, authenticating a record of a judgment of another state, under the act of Congress, (1 U. S. Stat. 122,) in these words : " I certify that the certificate of the clerk is in due form of law," is sufficient Blair V. Caldwell, iii. 353. 52. But where A. has certified a transcript of the record of a judgment of another State, as Clerk, the attestation of the Judge, under the act of Congress, (1 U. S. Stat. 122,) need not state that he is Clerk. McQueen v. Farrow w. 212. ' 53. Where a defendant, who is sued upon a foreign judgment, does not deny the judgment in his answer, but relies solely upon a setoff, he cannot object to the admission of the transcript in evidence on the ground that it is not property authenticated. McLean v. Boyle, xix. 495. 54. A. sued B. on a judgment of another State. Prom the transcript ofl^ered in evidence, it appeared that the clerk who certified it was clerk of a court other than that in which judgment was rendered ; it appeared also from his certificate that the record of the cause had been transferred by law to the court of which 420 JUDGMENT. VIL he was clerk, and it appeared from tte record itself that two several executions had been issued by said clerk upon said judgment, and levies and execution sales made thereunder — ITeld, that the transcript was admissible in evidence, although no law authorizing the transfer was produced. Mamning v. Hogan, xxvi. 570. b. EFFECT AND VALIDITT. 53. A judgment obtained in another State, in a suit commenced by attach- ment, without service of process on the defendant, will not sustain an action in this State. Chamberlain v. Faris, i. 517. Overstreet v. Shannon, i. 629. Saliee V. Says, iii. 116. Wehb v. Garner, iv. 10. 56. The will of the sovereigns of Europe, in regard to the jurisdiction of their respective countries, is known through the judgments of their courts. Margw- rite T. Ohouteatl, iii. 540. 57. The judgment of another State is prima facie evidence of jurisdiction of the person, where the Writ was returned executed, although such return may be InfckrmaL Wilson v. Jackson, x. 829. 58. It is not sufficient in an action on such judgment, in a plea to the juris- diction of the court rendering the judgment, to aver that the defendant was not a resident of the State. It must also be shown that he was not in the State. Ibid. 59. A judgment of a foreign court, having jurisdiction of the persons and the subject matter of the suit, is conclusive between the parties in the courts of this State. Destrehan v. Scudder, xi. 484. 60. In a suit upon a judgment rendered in a State, the laws of which, relative to the effect of judgments, correspond with those of the State where it is sought to be enforced, if it appeals from the record that the defendant appeared by attorney, it is not admissible under the act of Congress of May 26, 1890, (1 I7.& Stat 122,) to dispute the attorney's authority. Warren v. Lusk, xvi, 102. 61. A judgment by default was rendered in California against a resident of Missouri, upon publication. Afterwards the defendant appeared by attorney, filed his (the defendant's) affidavit, and asked leave to answer, which was granted on condition of payment of costs, but he failed to answer, when the former judg- ment was reinstated — Held, that the judgment was conclusive in this State. Harbin v. Chiles, xx. 314. 62. Where the judgment was rendered upon a confession made before the clerk in vacation, it is admissible to show a demand against the estate of a deceased person. Harness v. Oreen, xix. 323. 63. Where a judgment was entered in New Jersey pro confesso, by virtue of a warrant of attorney, signed by the defendant, empowering "any attorney of any court of record of the United States, to enter and confess judgment," the whole proceeding being consistent with the laws of said State — Held, that such judgment was entitled to " full faith and credit," although it did not appear that any of the parties were residents of that State, or had ever been there. Scow, J., dis. Randolph v. Keiler, xxi. 557. 64. A proceeding in a Probate Court of another State against a citizen of JUDGMENT, Yin. 421 this State on constructive notice only, is not a judicial proceeding within the meaning of the constitution of the United States (Art. IV, § 1). Oillett v. Oamp, xxiii. 375. 65. Where in a suit on a judgment of another State, the record shows that the writ of summons was returned " executed in fall," that is prima facie evi- dence of jurisdiction of the person. Blackburn v. Jackson, xxvi. 308. 66. Where a transcript of a judgment, rendered in another State, shows that the writ was executed by a deputy sheriff and returned by him as such, but states that it was duly and legally executed, the presumption is that it was done accord- ing to the laws of that State. Lackland v. Pritchett, xii. 484. 67. Where such transcript contains a commission from the Governor of the State to a person, appointing him special Judge for a term, the appointment is presumed to be legal, although the commission does not purport to be under the great seal of the State. Ibid. See Administration, 98 ;. . . .Pleading, 169. Vin. ERRONEOUS, VOID AND VOIDABLE. 68. A judgment for a greater amount of damages than that laid in the decla^ ration is erroneous. Carr v. Edwairds, i. 137. Hayton Y.Hope, iii. 53. Maupin V. Triplett, V. 422. Cox v. City of St. Louis, xi. 431. Becktoith v. Boyee, xii. 440. 69. But under a declaration in debt on judgment, in two counts, the damages recovered exceeded those laid in either count alone, but were less than the ^gregate damages claimed in the two — Meld, that as it did not appear that the recovery was on only one judgment, there was no error. PinksUm v. Stone, iii. 119. 70. After the death of a party has been duly suggested on the record, an entry of judgment against him is clearly erroneous. Wittenhurgh v. Wittenr burgh, i. 226. 71. A judgment rendered in fevor of a plaintiff who had died before its ren- dition, is not void, but only voidable. Coleman v. MfAnulty, xvi. 173. 72. A judgment entered for the amount of a recognizance, to be discharged by a less sum, is erroneous. The defeasance cannot be regarded as surplusage, or as a distinct thing, so as to be struck out, or reversed, without affecting the judgment, but as a part of the judgmenl^ and being erroneous, the whole must be reversed. Steinback v. Lisa, i. 228. 73. Where an adult appears by next friend, except in cases of coverture, it is irregular, and judgment wUl be set aside for that cause. Jeffrie v. BMdeam, iii. 33. 74. It is error to take judgment against a member of a firm who was not served with process, and who did not appear and answer. Baseom v. Young, vii, 1. 75. A judgment against a party who had no notice of the pendency of the 422 JUDGMENT, X. suit in wUcli it was rendered, is absolutely void. Smith v. Ross, vii. 463. Anderson v. Brown, ix. 638. 76, A summons issued by a Justice, and made returnable in a time less than that required by law, is void, and a judgment by default rendered thereon is' also void, and a party acquires no title under a sale on an execution under such judgment. Scott, J., dis. Sanders v. Bains, x. 770. IX. WHEN SEVERAL PLAINTIFFS OR DEFENDANTS. 77. Where there are several defendants in a real action, as in a petition' for the assignment of dower, a verdict in favor of one defendant, upon his separate plea, will not avail another defendant, against whom a judgment by default was rendered. Lecompte v. Wash, ix. 547. 78. Where an action is brought against several defendants, and all but one appear and demur successfully, a default may be entered against the one not appearing. Lyon v. Page, xxi. 104. 79. If A. brings an action against B. and C. for the possession of land bought by A., at an execution sale against B., and C. defends, and offers in evidence only a deed from B. to C, prior in date to the sheriff's deed, and this deed from B, to C. is declared fraudulent and void as against A., then judgment may issue as well against C. as B. Marrv. Mcintosh, xxi. 541. 80. Where a suit is instituted in behalf of a county by an authorized agent, and the judgment of the Justice is against the county, and an appeal is taken to the Circuit Court, and judgment is there given against the appellant — Quaere, whether it is error to enter judgment against the security in the recognizance alone ? St. Louis County v, Qlay, iv. 559. X. ARREST AND SETTING ASIDE. 81. A judgment cannot be set aside at a subsequent term on affidavit showing that there has not been a legal service of the original writ. Lindell v. Bank of Missouri, vf.ilS. Rutgers -v. Bank of Missouri, vr. 315. 82. Where the final judgment in a cause is erroneous, it may be set aside at the term during which it was rendered, but not afterwards. Ashhy v. Glasgow, vii. 320. Brewer v. Dinwiddie, xxv. 351. 83. And the Circuit Court has no power to insert a clause in a judgment giv- ing the party against whom it is rendered leave to move to set it aside at the next term ; and where, upon motion made in pursuance of such leave, the judg- ment was set aside at next term, and a new one rendered, it was treated by the Supreme Court as a nullity, and the first judgment reinstated. Hill v. City of St. Louis, XX. 684. Shepard v. same, xx. 589. ^ 84. But where there is an irregularity in the rendering of judgment, it may be set aside at a succeeding term. Stacker v. Cooper Circuit Court, xxv. 401, JITDGMENT. XI. 423 85. Thus, if after an order of reference in a cause is made, and while it is still standing unexecuted and in force, final judgment is rendered, the court may, at a subsequent term, recall the same and set it aside. Ibid. 86. A judgment will not be arrested for any cause not sufficient on general demurrer. Woods v. The State, x. 698. 81. Proceedings to set aside an irregular judgment wiU not aflFect any one who has acquired title under it, unless he is made a party. Coleman v. McAnuUy, xvi. 173. 88. In a proceeding to set aside a will, the court arrested judgment as to two minor defendants who appeared by attorney and entered final judgment a^jainst adult defendants' — Held, that judgment should have been arrested as to all. Rush V. Rush, xix. 441. See also Randalls v. Wilson, xxiv. T6. 89. Where there is a defective service of process upon one of several defend- ants, he is entitled to have a judgment by default against him and his co-defend- ants jointly set aside. Being an entire thing, it must be set aside as to all the defendants. Smith v. Rollins, xxv. 408. 90. Where a judgment is irregularly rendered against the provisions of a statute or the rules of court, the party against whom it is rendered is entitled to have it set aside without showing a meritorious defense to the action. Doan v. Solly, xxvii. 256. 91. But where a judgment is reversed in the Supreme Court, and the cause remanded to the Circuit Court, and the mandate of the Supreme Court is received by the clerk of the Circuit Court after the commencement of the term of said court, and the clerk, of his own motion, dockets the cause on the third day of the term, and the court renders judgment by default on the fourth day of the term, no rule of court appearing to be violated, the defendant is not entitled, as of right, to have this judgment set aside without showing a meritorious defense. Ibid. See Chancery, 54-65. XI. REMITTITUR OF DAMAGES. 92. Where a judgment is given by mistake for a greater sum than the demand, and the sum is correctly stated in any of the pleadings, the appellate court will not, on that account, reverse it, but wOl, under the statute, (R. S. 1835, 468, § 7,) allow the plaintifi; on his application, to enter a remittitur as to the excess. Atwood V. Cfillespie, iv. 423. 93. It is erroneous to give judgment for a greater sum than the damages claimed in the declaration. Johnson v. Robertson, i. 615. 94. But the plaintiff may enter a remittitur for the excess, to avoid a new trial. Hoyt v. Reed, xvi. 294. 95. In remitting a portion of a judgment, a new judgment must be entered for the lesser sum. Schilling v. Speck, xxvi. 489. 424 JUDGMENT. XIV. XII. INTEREST ON. 96. Under a statute wMoh provided tbat judgments recovered in any court of record shall bear interest at the rate of six per centum per annum only, (R. S. 1825, 461, § 1,) a judgment by confession on an indebtedness for work and labor, to bear interest at the rate of ten per centum per annum, is erroneous, notwith- standing the proviso in § 2 of same statute, allowing conventional interest at ten per centum per annum. Benjamin v. Bartldt, iii. 86. 97. A memorandum by the clerk at the foot of a judgment, that it should bear a certain rate of interest, forms no part of the judgment, and ajiy error therein may be corrected on motion. Fugate v. Glasscock, vii. 577. 98. All judgments rendered since the act of January 15, 1847, (Acts 1846-7, 63, §§ 1, 2,) bear only six per cent, interest, Hawkins v. Ridenhour, xiii 125. XIII. ACTION ON. 99. Where the record shows that the payment of a judgment has been enjoined, and nothing further appears, it is a fatal ground of objection in an action on the judgment. Blair v. Caldwell, iii. .353. 100. Where, in a suit on a judgment, the petition alleges that a copy of th^ record of the judgment is filed therewith, the transcript of the record is not made such part of the petition that it may be the subject of demurrer. Hall v. Har- rison, xxi. 227. See Limitations, 31, 83. XIV. SUPREME COURT JUDGMENT. 101. A judgment of affirmance by the Supreme Court is understood to be a judgment that the Circuit Court proceed to execute its own judgment, which is pronounced to be valid and in full force. Meyer v. Campbell, xii. 603. Walter V. Tabor, xxi. 75. 102. But where the Supreme Court designs to carry into effect its own judg. ment, a judgment of recovery must be superadded to the judgment of affirmance, and an execution from either the Supreme or Circuit Court may enforce this judgment; but when issued from the Circuit Court, it must be upon the judgment of the Supreme Court. Meyer v. Campbell, xii. 603. 103. And an order of the Circuit Court is not necessary where an execution is issued on such judgment from the Circuit Court. Wilburn v. Hall, xvii. 471. See Administration, 33, 81-83, 95-98 ;... .Amendment, IV ;.... Attach- ment, XI;. ,. ..Boats AND Vessels, 85-87; Chancery, 54-65; Ejectment, 54, 55; Error, VI ; Execution, 63 ; Freedom, 18; Garnishment, VII ; Justice of the Peaob, 31--33 ; Mechanic's Lien, 28 ; Partition, 27 ; Pibading, 74-82, VIII; Practice, III, 198, 199 ; Recognizance, 20-24; Rbcokd, 29-33 ; Release Replevin, VII ; Scire Facias, I, 16;. . .Set-oei', IV. JUEISDICTION. I. 425 JURISDICTION, I. GENERALLY, n. STJPKEME COURT. a, WILLS. b. CERTIORARI. C. QUO WAHRANTO. d. INJUNCTION. in. CIRCUIT COURT. a. QUO WARRANTO. b. ADMINISTRATION. c. ASSAULT AND BATTERY. d. APPEAL FROM COUNTY COURT. e. TENANTS IN COMMON. f. WILLS. g- FORECLOSURE. 1. IN REFERENCE TO THE AMOUNT DEMANDED. i. constable's BOND. IV. COURTS OF PROBATE. a. ORIGINAL AND CONCURRENT. b. SET-OFF. c. TROVER. d. BOND. e. FRAUDULENT CONVEYANCE. i WASTE. t TITLE TO LAND. ADMINISTRATION SALE. i. RAY COUNTY PROBATE COURT. V. JUSTICE OF TFF, PEACE. a. GENERALLY. b. REDUCTION OF DEMAND. c. PENAL BOND. d. ASSAULT AND BATTERY. e. BONDS, NOTES AND ACCOUNTS. f TROVER. or. 3 ESCAPE. k. CORPORATION. i. COVENANT. J- LANDS. VI. ST. LOUIS COURT OF COMMON PT,EAS. vn. ST. LOUIS LAND COURT. mi. LAW COMMISSIONER'S COURT OF ST. LOUIS COUNTY. I. GENERALLY. 1. A court has power to take cognizance of a motion for a rule against a party to show cause why a judgment of the court obtained by him, should not be set aside. Fraticiscus v. Martin, ix. 196. 8. A party may give jurisdiction to an inferior court by a voluntary renuncia- tion of a part of his demand. Hempler v. Sneider, xvii. 258. 426 JUKISDICTION. II. 3. The new code blends the jtirisdiction of courts of law and equity, so that a party is entitled to all the relief that would formerly have been afforded both by a court of law and equity. Banhin v. Charless, xix. 490. 4. Under the new code, (Acts 1848-9. "76, § 1,) the jurisdiction of the court is made to depend exclusively on the residence and presence of the parties, without any reference to the position of the land sued for. Miller v. Thurmond, XX. 477. 5. Inferior tribunals not proceeding according to the course of the common law, are confined strictly to the authority given by statute ; and the ground of their jurisdiction must appear on the face of their proceedings. The State v. Metzger, xxvi. 65. 6. Jurisdiction will depend upon the nature of the action as determined by the petition, and not by the facts as they appear in evidence. Patrick v. Abeles, xxvii. 184. II. SUPREME COURT. a. WILLS. 7. The Supreme Court has no jurisdiction to examine into the sufficiency of the evidence on which a vel'dict was found, in proceedings under § 10 of the act relating to wills, (R. S. 1825, 792) ; but if the court admits incompetent testi- mony, this court will correct the error, as in other cases. Dickey v. Malechi, vi. 177. b. CEETIOBARI. 8. The constitution of this State having given to the Supreme Court " power to issue writs of habeas cm-pus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same," (Art. V. § 3,) it is competent for that court, by certiorari, to remove a cause from the Court of Chancery, where the chancellor, who had been counsel for one of the parties, refused, in obedience to law, (1 Ter. L. 770, § 5,) to certify the same to the Supreme Court ; and for the Supreme Court to proceed with the hearing of the cause, notwithstanding that clause of the constitution which declares that "the Supreme Court, except in cases otherwise directed by this constitution, shall have appellate jurisdiction only," (Art. V § 2.) Rector v. Price, \. 198. C. QUO WARRANTO. 9. The Supreme Court has jurisdiction of informations in the nature of a quo warranto, under Art. V., § 8, of the constitution of Missouri. The State v. Merry, iii. 278. d. INJUNCTION. 10. The Supreme Court has no power to grant injunctions. Lane v. Charless, V. 285. JTJEISDICTION. III. 427 m. cmcuiT COURT. a. QtrO WARRANTO. 11. A proceeding by information in the nature of a quo warranto, is a civil proceeding ; consequently the Circuit Court has jurisdiction thereof in St. Louis County. Scott, J. dis. The State v. Lingo, xxvi. 496. ADMINISTRATION. 12. Sections 63 and 64 of the administration act of 1825, (R. S. 1825, 119,) were not intended to give exclusive jurisdiction to the County Court, in relation to enforcing a distribution among distributees. Where the records of the County Court show that all debts have been paid, that the amount of pro- perty has been ascertained, and that three years have elapsed since administration was granted, a distributee may maintain his action of debt in the Circuit Court against the administrator or his securities. The State v. Rankin, iv. 426. 13. The general control over executors and administrators, given to the Circuit Court by the statute, (R. S. 1835, 155, § 8,) is limited in its application to such cases as are not specifically provided for in other parts of the same act, and the act relating to administration. Miller v. Woodward, viii. 169. 14. While the administration of an estate is in progress before the County Court, which is competent to determine the matters relating thereto, the Circuit Court cannot, under the statute, (R. S. 1845, 330, § 6,) interfere to try the right to the property in question, or to compel the administrator to return it in his inventory. Overton v. McFarland, xv. 312. See Infra, 25. ASSAULT AND BATTERY. 15. The Circuit Court had jurisdiction of indictments for assaults, &c., prior to the act of January 18, 1831, (2 Ter. L. 271,) declaring assaults, &c., offenses not indictable. Wilder v. The. State, iii. 418. d. APPEAL PROM COUNTY COURT. 16. Under the constitution of Missouri, (Art. V. § 8,) and the act of January 7, 1825, (R. S. 1825, 269, § 4,) the Circuit Court has jurisdiction of causes appealed from the County Court. Boone County v. Corlew, iii. 12. e. TENANTS IN COMMON. 17. The act establishing the St. Louis Land Court, (Acts 1852-3, 90, § 2,) does not deprive the St. Louis Circuit Court of the jurisdiction of an action by one tenant in common to compel a co-tenant to account. McCune v. Hull, XX. 596. f. WILLS. 18. The Circuit Court, under the statute relating to wills, (R. S. 1825, 792, § 10,) exercises an appellate and not an original jurisdiction, and this jurisdiction 428 JURISDICTION. IV. is not affected or taken away by the act of January 7, 1825, (R. S. 1825, 270, § 6,) or the act of January 2, 1827, (2 Ter. L. 126, § 4.) Dickey/ v. MahcU, vi. 111. 19. Where a child of a testator is omitted or unprovided for in the testator's will, the Circuit Court, under the statute, (R. S. 18.S5, 621, § 33,) has jurisdiction of the petition of such child, praying for a distribution of such testator's estate agreeably to the provisions of § 30 of the statute, (R. S. 1835, 620,) although the legacies under the will have not been fully paid. (R. S. 1825, 795, § 20.) Levins v. Stevens, vii. 90. g. FOBE0I.OSUEE. 20. The Circuit Court has jurisdiction of a suit to foreclose a mortgage, as well after as before the death of the mortgagor. Ayres v. Shannon, v, 282. h. IN REFERENCE TO THE AMOUNT DEMANDED. 21. Under a statute prohibiting a plaintiff to institute a suit in the Circuit Court for any sum within the jurisdiction of a Justice, (Gey. Dig. 396, § 32,) the Circuit Court has jurisdiction of an action on several small demands consolidated, each of which is within the jurisdiction of a Justice, when the total amount exceeds that jurisdiction. The sum demanded is the only criterion to deter- mine the jurisdiction. Langham v. Boggs, i, 476, 22. Where a declaration, filed in the Circuit Court, demands a sum above the jurisdiction of a Justice, it is error for the court to dismiss the suit for want of jurisdiction, without first having found that the amount due is within the juris- diction of a Justice. Frazer v. Shiile, i. 675. ; i. constable's bond. 23. The Circuit Court, under the staljute, (R. S. 1835, 368, §§ 20-23,) has jurisdiction oyer all actions instituted against a constable on his official bond, regardless of the amount claimed. Scott, J., dis., and refers to The State v. Steel, xi. 553. Pollock v. Hudgens, xii. 67. See Infra, 60, 65 ; Partition, 30. IV. COURTS OF PROBATE, a. original and oonourrent. 24. The act of 1825, relating to courts, (R. S. 1826, 268,) confers upon Courts of Probate exclusive original jurisdiction in all cases respecting the proof of wills and the granting of letters testamentary and of administration ; and the act of 1827 relating to courts, (2 Ter. L. 125), transfers their jurisdiction entire to the County Court. Graham v. O'Fallon, iii. 507. Jackson v. Jackson, iv. 210. 25. Under the statute, (R. S. 1835, 156, § 15,) the County Court has exclusive original jurisdiction over all matters embraced in the first six clauses of tiiat JtmiSDlCTION. IV. 429 section, concurrent jurisdiction with the Circuit Court of the cases enumerated in the seventh clause, and exclusive original power over the matters embraced in the remaining five clauses of the section. [Overkuleb Erwin v. Henry, v. 469.] MiUer v. Woodward, viii. 169. 26. And although the County Court has exclusive original jurisdiction of con- troversies respecting the duties of administrators, yet that jurisdiction can only be exwcised in the manner prescribed by statute. Powers v. Blakey, xvi 437. b. SET-OFF. 27. The County or Probate Court has not jurisdiction to hear or decide upon a set-oflF, claimed by an administrator, against a demand exhibited for allowance by a creditor of an estate, when the set-off exceeds the demand of the debtor. Dunnica v. Thomas, xv. 385. 28. Under the statute, (R. S. 1845, 92, § 8,) the County Court has jurisdiction of a demand against an estate for the value of a slave which the deceased con- verted to his own use in his lifetime. Moore v. Brovm, xiv. 165. d. BOND. 29. An action to recover a demand against an estate, on a bond with a col- lateral condition, may be maintained in the County or Probate Court. The State V. Paul, xxi. 51. e. FKATJDUIENT CONVEYANCES. 30. In case of a conveyance made in fraud of creditors, a Probate Court has no jurisdiction on the application of the administrator, though made at the instance of creditors, to order a sale of the land so conveyed for the payment of debts. George v. Williamson, xxvi. 190. f. WASTE. 31. To give the County Court jurisdiction of a proceeding by a creditor against an administrator for waste, under the statute, (R. S. 1845, 104, §§ 1-4,) it must appear that there is an insufficiency of assets returned by the administra- tor to pay all demands allowed against the estate. Powers v. Blakey, xvi. 437. g. TITLE TO LAND. 32. Although the County Court is invested with power to order a sale of real estate by an administrator or executor for the payment of debts, yet they have BO jurisdiction to try titka to land. Shields v. Ashley, xvi. 47 1. h. ADMINISTRATION SALE. 83. Administration was granted in Warren county, and the administrator applied for leave to sell real estate to pay certain claims allowed by the Circuit Court of Franklin county. It not appearing by the record that the Circuit Court 430 JTJRISDICTION. V. of Franklin had jurisdiction of the claims allowed by it against the estate, the judgment of the court below, refusing the application of the administrator, was affirmed. Hughes v. Griswold, vi. 245. 34. The County Court has jurisdiction to order a reservation of the personal and a sale of the real estate of a testator, to pay debts, notwithstanding, the testator's will may direct that all his debts shall be paid out of the " personal effects of his estate." However erroneous the order may be, a sale under it is not void, and cannot be questioned in a collateral proceeding. Overton v. Johnson, xvii. 442, 35. It seems, that the accounts, lists, inventories and appraisements, which the statute requires to be filed with a petition for the sale of a decedent's real estate, are not necessary to give the court jurisdiction, and that a failure to file them will not render the sale void. Ibid. Mount v. Valle, xix. 621. 36. The objection that the order of notification to persons interested was made at a time when no term existed by law, and required their appearance at a time when no term could exist by law, will not prevail, unless these defects are shown affirmatively ; the statute gives the County Court power to change the terms fixed by law. Overton v. Johnson, xvii. 442. i. BAT COUNTY PROBATE COURT. 3*7. The Probate Court of Ray county has authority to order an executor to pay specific legacies. (Acts 1852-3, 390.) Darneal v. Beeves, xxv. 295. V. JUSTICE OP THi; PEACE. GKNBEALLT. 38. In proceedings under the statute, (R. S. 1835, 349,'§ 10,) the necessity which existed for the exercise of jurisdiction by the Justice out of his township, need not appear of record, but may be shown by extrinsic testimony. Lutes v. Perkins, vi. 51. 39. The plaintiff sued before a Justice on an account "for T)ne colt, $50, and damages to the same, $35," making his claim $85 —Held, that the Justice had jurisdiction, and that a writ of prohibition was therefore improperly issued. Morris v. Lenox, viii. 252. 40. A written acknowledgment of an indebtedness in a specific sum for a valu- able consideration implies a promise to pay, and is a note within the meaning of the statute relating to the jurisdiction of a Justice. (R. S. 1835, 348, § 3.) Finney v. Shirley, vii. 42. 41 . Where suit is brought before a Justice for a sum exceeding his jurisdiction, waiver of this error does not confer jurisdiction. Stone v. Corbett, xx. 350. 42. Where the amount of damages claimed by the plaintiff in a suit before a Justice is not expressly shown, the amount for which he accepts a judgment will be taken as the amount claimed ; and although the plaintiff may, in the Justice's Court, enter a remittitur for the excess recovered beyond the Justice's jurisdic- tion, he cannot do this in the Circuit Court on appeal, so as to give jurisdiction. BoitcheloT V. Bess, xxii. 402. JURISDICTION. V. 431 43. A Justice has no jurisdiction except that conferred by statute. Williams V. Bower, xxvi. 601. b. REDUCTION OF DEMAND. 44. The amount claimed in an action before a Justice must determine the question of jurisdiction ; therefore, where the total amount of an account was above, but it was brought by credits within, the jurisdiction, the action was sus- tained. Buckner v. Armour, i. 534. 45. A. commenced an action against B. on an open account, amounting to more than ninety dollars. On the trial, B. secretly asked the Justice if he had jurisdiction, to which the Justice replied that he had, as A. did not claim more than ninety dollars. B. then went into the trial, during which A.'s attorney stated that he did not claim more than ninety dollars, and judgment was render- ed for less than that sum — Held, that the judgment and execution issued thereon were not void. Best v. Best, xvi. 530. C. PENAL BOND. 46. A Justice has no jurisdiction of penal bonds, except those of constables, where the demand does not exceed ninety dollars. (R. S. 1835, 368, § 23.) Wimer v. Brotherton, vii. 264. d. ASSATJIT AND BATTERY. 47. A Justice has no jurisdiction under the statute, (R. S. 1855, 911,) in cases of assault and battery, unless the offense was committed in his county ; and where an appeal is taien to the Circuit Court, the defendant is entitled to have the prosecution dismissed if the transcript does not show that the offense com- plained of was committed in the county in which the Justice had jurisdiction. The State v, Metzger, xxvi. 65. e. BONDS, NOTES AND ACCOUNTS. 48. A Justice has no jurisdiction of notes payable in specific articles for an amount exceeding ninety dollars. (See R. S. 1835, 348, § 8.) Martin v. Chauvin, vii. 'ill. See Bonds, Notes and Accounts, 65. 49. A Justice has jurisdiction over actions of trover where the damage claim- ed does not exceed fifty dollars. (See R. S. 1845, 635, § 3.) Smith v. Grcyve, xii. 51. Glashy v. Frewett, xxvi. 121. g. ESCAPE. 50. Under the statute which provided that Justices " shall have jurisdiction of all actions of trespass, and other actions brought to recover damages for injuries done to the person or property of any person, where the sum demanded does not exceed fifty dollars," (1 Ter. L. 620, § 1,)—Held, that a Justice has jurisdiction of an action against an oflScer for an escape. Lockhart v. Hays, i. 271. 432 JURISDICTION. Vn. CORPORATION. 5 1 . A Justice has jurisdiction of a suit for the recovery of a fine imposed for the breach of the by-laws of a private corporation. (See R. S. 1835, 348, § 2.) O'Brien v. Union Fire Co., vii. 38, 1. COVENANT. 52. Where the damages claimed upon a covenant do not exceed ninety dol- lars, a Justice has jurisdiction, (R. S. 1845, 635, § 3,) although from the cov- enant itself it may not appear but that the damages would greatly exceed that amount. Joyce v. Moore, x. 271. j. LANDS. 53. A Justice has jurisdiction of a suit to recover a balance of the purchase money of land, where the credits allowed reduce the amount claimed to $90. Musick V. Chamlin, xxii. 175. VI. ST. LOUIS COURT OF COMMON PLEAS. 54. The St. Louis Court of Commoti Pleas has jurisdiction of actions of tres- pass against boats and vessels. (See R. S. 1845, 181, § 3 — 315, § 2.) Holloway V. St. Bt. Western Belle, xj. 147. 55. The St. Louis Court of Common Pleas has concurrent power with tlie Circuit Court to affirm the judgments of Justices on appeal. Hardison v. St. Bt. Cumberland Valley, xiii. 226. St. Bt. Falcon v, i>£OToAoe, xiii. 231. White v. Zvle, xiii. 233. 56. Under the new code, the St. Louis Court of Common Pleas has equity jurisdiction. McLaughlin v. McLaughlin, xvi. 242. VIL ST. LOUIS LAND COURT. 57. The act of February 23, 1853, (Acts 1852-3, 90,) establishing the St. Louis Land Court, giving it exclusive jurisdiction in certain cases, did not oust the jurisdiction of the other courts in such cases, until the Land Court was orga- nized by the election of a judge and clerk. Mason v. Woerner, xviii. 566. 58. A contract to make and deliver a written lease of a building, is "a contract relating to land," or some " right or interest in such land," within the meaning of the act establishing the St. Louis Land Court, (Acts 1 852-3, 90, § 2,) and that court has exclusive jurisdiction of actions for the breach of such contracts, although the parties stipulate that in case of a refusal to execute the lease, a certain sum shall be paid by way of stipulated damages. Brockman v. Dessaint, xxi. 585. 59. Whenever, by the rules of equity, a party is entitled to have a right to land vested in him, the remedy may be had, in St. Louis County, in tiie Laad Court. Speek v. Wohlien, xxii. 310. JURISDICTION. Vm. 433 60. Every Court has exclusive control of its own process. Thus, where an execution issued out of the Circuit Court of St. Louis county, the defendant may, on motion in that court, have a sale on such execution set aside for irregularity, without a resort to proceedings in the St. Louis Land Court. Nelson v. Brown, xxiii. 13. 61. The St. Louis Land Court has jurisdiction of a suit to subject a wife's separate estate to the payment of her debts. Segond v. Garland, xxiii. 647. 62. Where the Land Court rightfully obtained jurisdiotion in a case, although the facts afterwards disclosed would have authorized a proceeding in another court, the Land Court should furnish relief Paul v. Fulton, xxv. 156. See SupEA, 17. VIII. LAW COMMISSIONER'S COURT OF ST. LOUIS COUNTY. 63. The Law Commissioner of St. Louis county has no jurisdiction of actions of trespass for false imprisonment. (See Acts 1846-7,91.) Dufras^. Wash- ington, xii. 572. 64. The Law Commissioner has no jurisdiction in an action on a penal bond in the sum of two hundred dollars. In actions on such bonds, the judgment is for the penalty which determines the jurisdiction of the court. City of St. Louis V. Fox, XV. 71. 65. The superintending control over Justices, given by the constitution to the Circuit Court, is not interfered with by the concurrent power conferred on the Law Commissioner. Ladue v. Spalding, xvii. 159. 66. The Law Commissioner has no authority to make an order for the sale of a boat, or to distribute the proceeds. Blaisdell v. St. Bt. Wm. Pope, xix. 538. 67. It is within the jurisdiction of the Law Commissioner to proceed by attach- ment against the property of persons sued in his court. Lackey v. Seibert, xxiii. 85. 68. Where a suit is commenced before a Justice for work and labor, and also to enforce a hen against the building, but out of time as to the latter, and no judgment is rendered as to the lien, the Law Commissioner has jurisdiction of an appeal taken in such case by the contractor. Kinnear v. Jcmes, xxiv. 83. 69. Ill replevin suits in the Law Commissioner's Court, where the plaintiflF fails to prosecute his action, the Law Commissioner may render judgment against him for an amount exceeding $150, and within the penalty of the bond given by the plaintiff. Berghoffv. Heckwolf, xxvi. 511. See Chancery, I, 163 ;... .Criminal Law, 243-249, IV. ;. . . .Forciblb Entry and Dktainer, III. 28 434 JURY. III. JURY. I. RIGHT OF TRIAL BY. II. QUALIFICATIONS OF JURORS. III. PROVINCE OF THE JURY. IV. POLLING JURY. V. EVIDENCE BY GRAND JUROR. I. RIGHT OF TRIAL BY. 1. The charter of the Bank of Missouri, (1 Ter. L. 540, § 21,) provided that, if the Bank should at any tinie refase to pay specie for any of its notes, it should forfeit at the rate of five per centum per month, for each and every month such specie payment should be refused, in addition to the amount of such notes, " to be recovered in a summary way by motion" before a proper tribunal. Upon a motion being made for judgment against the bank, the bank demanded a trial by jury, which was refused — Held, that under the Constitution of this State, which declares " that the right of trial by jury shall remain inviolate," (Art. XIII, § 8,) as well as under an existing law, which provided that " if any party to a suit shall at any time before the trial of such cause, by himself or counsel require a trial by jury, the court before whom the suit is depending shall cause a jury to be empanreled for the trial thereof," (1 Ter. L., 851, § 42,) the bank had a right to a trial by jury, and the refusal to grant such a trial was error. Bank of Missouri v. Anderson, i. 2 44. 2. The mcjaning of the declaration contained in the constitution of this State, " that the right of trial by jury shall remain inviolate," (Art XIII, § 8,) is, that with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men ; they must have a good fame, and pos- sess integrity and intelligence ; they must not be aliens, vagrants, outlaws, nor under conviction of crimes. They must all be underoath when they try a fact or cause ; they must all agree in their verdict ; and the right to have disputed facts tried by such a jury, and in such a manner, is to remain inviolate. It is the right of all parties who are capable of being sued. Ibid. See Laws, 66. II. QUALIFICATIONS OF JURORS. 3. In a suit for freedom, it is a good objection to a juror that he would feel bound by his conscience to find a verdict in favor of the plaintifi", notwithstand- ing the law should hold him in slavery. Chouteau y^ Pierre, ix. 3. 4. In a suit in which a town is a party interested, the citizens' of such town are not competent jurors. Uberler. St. Louis Public Schools, xi. 247. III. PROVINCE OF THE JURY— See Practice, 119-144. JURY.— JUSTICE OF THE PEACE. II. 435 IV. POLLING JURY.— See Pkactice, 145, 146. V. EVIDENCE BY GRAND JUROR. 5. In an action for slander, for saying that the plaintiflf 's wife swore falsely before the grand jury, the defendant justified by alleging the truth of the words spoken — Held, that under the statute, (R. S. 1845, 865, §§ 15, 17,) in such a case a grand juror cannot be permitted to testify how a witness swore before the grand juiy. Tindle v. Nichols, xx. 326. See also Beam, v. Link, xxvii. 261. See Criminal Law, VI, VII ; Laws, 38 ; New Trial, 66. JUSTICE OF THE PEACE I. COMMISSION. n. ACTION AGAINST. m. INDICTMENT FOR MISDEMEANOR. IV. PRACTICE AND PROCEEDINGS BEFORE. a. JtTBISDICTION. b. STATEMENT. C. FILING INSTRTTMENT SUED ON. d. LOST INSTRUMENT. e. PARTIES TO ACTION. f. LIMITATION, g. PROCESS. h. CONTINUANCE. i. NON-SUIT. j. EVIDENCE. b. JUDGMENT. 1. NEW TRIAL, m. ABATEMENT. V. RECORDS AND TRANSCRIPTS. L COMMISSION. 1. The omission of the Clerk of the County Court to affix the seal of the court to the certificate of election of a Justice, will not affect the validity of such election, or the rights of the Justice as such magistrate. (See R. S. 1835, 345, § 11.) Carpenter v. The State, viii. 291. II. ACTION AGAINST. 2. An action cannot be maintained against a Justice for any judicial act of his, within his jurisdiction, although induced by malice and corruption ; but ii 436 JUSTICE OF THE PEACE. IV. is otherwise as to ministerial acts. Stone v. Graves, viii. 148. Lenox v. Grant, viii. 254 III. INDICTMENT FOR MISDEMEANOR. 3. An indictment against a Justice for wilfur misdemeanor in ofSce, under the act of January, 1825, (R. S. 1826, 470, § 5,) must allege facts constituting a misdemeanor, and charge the act to have been done knowingly and corruptly. The State v. Gardner, ii* 23, 4. Where a Justice is indicted for a misdepieanor in office, it is not necessary that the prosecutor's name should be indorsed on the indictment. The State v. Allen, xxii. 318. IV. PRACTICE AND PROCllEDINGS BEFORE, a. JURISDICTION. See Jurisdiction V. b. STATEMENT. 5. In suits before a Justice, the plaintiff must file a substantial statement of his cause of action. Casey v. Clark, ii. 11. Odle v. Clark, ii. 12. 6. And it is error for the Circuit Court to allow such statement to be filed, after a case has been taken before it by appeal. Odle v. Clark, ii. 12. I. The want of a statement of the cause of action before a Justice, or a material defect in the declaration, is not cured by an appearance and defense. Bartlett v. McDaniel, iii. 55. 8. In a suit before a Justice, under the statute, (2 Ter. L. 89, § 1,) a state- ment of the cause of action is necessary only when damages are claimed for wrongs done. Harryman v. Robertson, iii. 449. Harris v. Harman, iii. 450. 9. In an action before a Justice, " for $25 on account of an accepted order,'' it appeared that the defendant sold the plaintiff goods for the order, (which was drawn on him by a third party,) and afterwards refused to deliver the goods — Held, that the plaintiff could not recover, as his account filed was not a state- ment of his cause of action. Waihen v. Farr, viii. 324. 10. No formality is necessary in the statement of a cause of action before a Justice. Early v. Fleming, xvi. 154. II. In an account on which a suit was brought before a Justice, the first item was " balance from 1851, $97 5.0" — Held, that the generality of the item did not justify dismissing the suit. Busch v. Diepenbrock, xx. 568. 12. Where the statement of the cause of action filed with the Justice was in this form, " 1855, Feb. 20. L. & S. to P. J. C, JDr. To 41 haras, 464^ lbs., at 10 cents, |46 45. To 2 bbls. whiskey," &c. — Held, that the statement was sufficient, and that the plaintiff might recover under it for the property named, which had been wrongfully seized at the instance of the defendants, in an attach- ment suit against a third person. Coughlin v. Lyons, xxiv. 533. JUSTICE OF THE PEACE. IV. 437 0. FILING INSTRUMENT SUED ON. 13. The statute requiring the instrument sued on to be filed with the Justice (R. S. 1835, 350, § 6) is directory, and may be waived by the defendant, and is waived where no objection is taken till the case is appealed to the Circuit Court. Suhlettv.Noland,v. 516. 14. The fact that an instrument, which is the foundation of an action, is not filed with the Justice, is no ground for dismissing the suit ; at most it is but a ground of continuance. Boatman v. Curry, xxv. 433. 15. Under the statute (R. S. 1845, 638, § 7) in a suit to recover the balance due on a subscription to the capital stock of a plank road company organized under the act of 1851, (Acts 1850-1, 259,) it was not necessary to file the ori- ginal articles of association executed by the defendant and others for the purpose of organizing the company. Hannibal Plank Road Co. v. Robinson, xxvii. 396. d. LOST INSTRUMENT. 16. Where the instrument sued on before a Justice is lost, the statute does not require that affidavit filed shall state that the loss was by accident. Harryman v. Robertson, iii. 449. e. PARTIES TO ACTION. 17. In an action on an account, commenced before a Justice, an account made out in the name of the wife of the plaintiflF, is suffcient to justify the plaintiflF in proving and recovering the amount. Brown v. Fricke, i. 440. 18. The name of each member of a firm must be stated in an action brought by them on a note payable to the firm. Revis v. Lamme, ii. 207. 19. It is erroneous, in a case appealed from a Justice, to strike out on the trial, two of several plaintiiFs; (Acts 1848-9, 87, §§ 5, 6,) the recovery must be in the name of all the plaintifis, or none. The new code does not, except Art. XXV, apply to Justices' courts. Flemm v. Wkitniore, xxiii. 430. f LIMITATION. 20. The date at the head of an account sued on in a Justice's court, does not preclude the plaintiff from proving the true time when the various items accrued. It does not pre-suppose the entire indebtedness to have accrued prior to that time. Mooney v. Williams, xv. 442. g. PROCESS. 21. Proceedings in an action before a Justice were set aside because the sum- mons did not run in the name of the State. Charless v. Mamey, i. 537. 22. Where a summons, issued by a Justice, required the defendant, in an action of debt, to answer a demand for the penalty given by an act of the Legis- lature, entitled, " An act to regulate ferries," whereas, the proper title of the act was, " An act regulating ferries " — Held, that as the summons would have been as good without the title given to the act, as it would have been with it, the 438 JUSTICE OF THE PEACE. IV. misrecital, being of a matter ttat need not have been stated, is clearly sur- plusage, and is not fatal. JEckert v. Head, i. 593. 23. The Legislature, in repealing the provision in the statute, requiring a brief statement, &c., to be filed with the Justice, repealed, also, by implication, the provision requiring a copy of such instrument to be annexed to the summons and read to the defendant. (See R. S. 1825, 473, § 5; 2 Ter. L. 89, § 1.) I^eil Y. Dillon, iii. 59. 24. Where no arrest is made on a capias sued out before a Justice, under the statute, (R. 8. 1825, 474, § 7,) but it is served as a summons, such service is suflScient. Tompkins, J., dis. Myers v. Woolfolk, iii. 348. 26. A Justice, in authorizing a person to serve process, under the statute, (R. S. 1836, 362, § 20,) is not restricted in the appointment to inhabitants of his own township. Lutes v. Perkins, vi. 57. 26. Mating a writ returnable to a day not the regular law day of the/ Justice, is not a ground for dismissing the suit. Harper v. Baker, ix. 115. 27. A summons issued by a Justice, and made returnable in a less time than the law prescribes, is void, and an appearance by moving to set aside the judg- ment by default, or to dismiss the suit, does not cure the defect. Williams v. Bower, xxvi. 601. h. CONTINTTANOB. 28. Where a Justice refuses to grant a continuance, an Application to the Circuit Court for a mandamus is the proper course. Harper v. Baker, ix. 115. i. NON-SUIT. 29. Where judgment of non-suit is rendered against a party by a Justice, he is not thereby barred from instituting a new suit for the same cause of action. Ellington v. Crockett, xiii. 72. j. EVIDENCE. 30. In suits before a Justice, the defendant may deny under oath at the time of trial, the execution of an instrument sued on, and may also, at tl^e time of trial, object to the admission of an instrument oflfered in evidence on the ground of a variance between the instrument offered and the one described in the sum- mons. Kennerly v. Weed, i. 672. k. JUDGMENT. 31. C. sold a clock to D., and gave his written warranty that it was a good time-piece. D. gave his bond for the price, which C. sold, and the purchasers brought suit thereon against D. before a Justice, and the case was taken to the Circuit Court by appeal. D. offered to prove, as an equitable defense, under the act of 1831, (2 Ter. L. 284,) that the bond sued on was given for the clock, the warranty and its breach, and that he could not find C. to make a return of the clock to him, or sue on the warranty — Held, that the defense was good in equity, and might be made in the case under the act of 1831. (Reviewing same case, iii. 331.) J)avis V. Gleaveland, iy. 20Q. Wilcox v. Powers, \i. 145. JUSTICE OF THE PEACE. V. 439 32. The Circuit Court cannot compel a Justice by mandamus to alter the entry of a judgment upon his docket. It seems, that if the entry does not show whether the judgment was upon the merits or not, parol evidence would be admissible in a second suit on the same demand, to show the true character of the judgment, and thus avoid its effects as a bar. Garnett v. Stacy, xvii. 601. 33. A judgment rendered by a Justice is void, unless it appears on the face of the proceedings, that the Justice acquired jurisdiction of the cause by service of process on the defendant, or by his appearance. Bersch v. Schneider, xxvii. 101. NEW TRIAL. 34. Under the statute, (R. S. 1825, 475, § 12,) a Justice has no power to grant a new trial, except in cases of non-suit and of judgment by default. Dovming v. Gamer, i. 751. Cason v. Tate, viii. 45. 35. Where a judgment of non-suit is entered up by a Justice, in consequence of a failure of testimony, he has authority under the statute, (R. S. 1835, 359, § 3,) to set aside the judgment of non-suit, and grant a new trial. Fenton v. Russell, vi. 143. m. ABATEMENT. 36. In a trial before a Justice, the defendant is not required to swear to his abateable defense, and evidence may be given in support of it after the trial has proceeded in chief. Henry v. Lane, ii. 201. See Appeal, VII ; Action, IV ; Mandamus, 20 ; Replevin, IX. V. RECORDS AND TRANSCRIPTS. 37. Original papers, in a proceeding before a Justice, which are not certified, are not evidence in the Circuit Court, without proof of their authenticity. Hickman v. Griffin, vi. 37. 38. The docket of a Justice is evidence of nothing but what the law requires to be written therein. Perry v. Block, i. 484. Brown v. Pearson, viii. 159. 39. A Justice may embrace several judgments in one certificate. It is not necessary that each judgment should be separately certified. Ferryman v. The State, viii. 208. 40. A transcript of proceedings had before a Justice, who is out of office, cer- tified by the Justice in possession of the docket, is evidence of such matters as are properly on the docket, and where the party against whom the transcript is offered, objects to its admission on account of its containing irrelevant matter, he must point it out and ask the court to exclude it. Palmar v. Hunter, viii. 512. 41. In order to authenticate, for the purpose of evidence, copies of proceed- ings had by a former Justice whose term of office has expired, there must be some proof to show that the Justice who certifies the copy is successor to the one before whom the proceedings were had, and became thereby possessed of his docket and papers. Halsted v. Briee, xiii. 171. 42." In ejectment on a sheriff's deed for property sold under executions issued 440 LANDLORD AND TENANT. from tte Circuit Court, founded on transcripts of judgments and proceedings under them before a Justice, appearing from the transcripts to be regular, the oral testimony of the Justice, and papers produced by him purporting to be the original executions, diflfering from those copied in the transcripts, are not admis- sible to show irregularity in the proceedings before the Justice, and to assail the plaintiff's title. [Coonce v. Munday, iii. 373, modified. Stevens v. Chouteau, xi. 382, commented upon.] Murray v. Laften, xv. 621. 43. A certified transcript from a Justice, is evidence, without proof of his sig- nature. McDermott v. Barnum, xix. 204. 44. Where one Justice certifies the records of another Justice, who is dead, it will be presumed, prima Jade, that the Justice so certifying is in the lawful possession of the docket of the deceased Justice. Linderman v. Edson, xxv. 105. 45. An authentication of a transcript of a judgment by a Justice, thus : " I ceitify that the foregoing contains an entry made on my docket, [signed,] A., B., J., P.," is sufficient. Franse v. Owens, xxv. 329. See Evidence, 67, 68 ; Execution, 6-12. LANDLORD AND TENANT. I. LEASE. a. BUFFICIBNCT. b. CONSTKUCTION AND EFFKCT. C. RIGHTS ACQUIRED UNDER. d. FORFEITURE AND SURRENDER. e. ASSIGNMENT. IL TENANT'S LIABILITY. III. TENANT'S REMEDY. IV. LANDLORD'S LIEN. V. RENT. a. ACTION TO RECOVER. b. tenant's LIABILITY. C. DISTRESS. d. LIABILITY OF ASSIGNEE OR PURCHASER. e. FEE-FARM RENT. f. HUSBAND AND WIFE, g. ABANDONMENT. h. CONDEMNATION TO PUBLIC USB. VI. NOTICE TO QUIT. VII. REPAIRS. VIII. TENANT CANNOT DISPUTE LANDLORD'S TITLE. IX. ST. LOUIS ACT. LANDLORD AND TENANT. I. 441 I. LEASE. a. SUFFICIENCT. 1. An instrument is not a lease until the lessor's signature is aflBxed thereto. Clemens v. Broomfield, xix. 118. 2. The trustees of the town of St. Charles had power under the statute (R. 8. 1825, 211,) to lease the common of the town, and it is not sufficient to invalidate such a lease, that it was executed in the name of the trustees of the town, and not in the name of " the inhabitants of the town of St. Charles," the corporate name of the town. McDonald v. Schneider, xxvii. 405. See Public Lands, 21. b. CONSTKUCTION AND EFFECT. .3. Where it was recited in a lease that the demised land was subject to a payment of a certain sum per annum, and no more, it is no breach that there was, at the time, a right of dower in the land, which afterwards becomes an incumbrance to the extent of the annual value of such dower. Blair v. Rankin^ xi. 440. 4. The defendant leased to the plaintiff a hotel for one year, and covenanted to make certain improvements upon it, which he neglected to do. At the end of the year the lease was renewed for two years, and the new lease contained a covenant to have the same work done — Held, that the renewal of the lease with such a covenant was not a waiver of the damages sustained by reason of the breach of the covenant in the first lease. Walker v. Seymour, xiii. 592. 6. A parol lease for a term of years, though by § 1 of the statute of frauds declared to create a tenancy at will, has the effect of creating a tenancy from year to year. Kerr v. Clark, xix. 132. 6. Although a covenant for quiet enjoyment is implied from the word " demise" in a lease, this implication is not raised where it is expressly stipulated- in the lease that nothing therein contained shall be construed to imply a covenant for quiet enjoyment. Maeder v. City of Carondelet, xxvi. 112. V. A., by indenture dated January 1, 1842, demised certain premises "for and during the full and complete term of fifteen years from the date thereof, to be completed and ended on the thirty-first day of December, 1857, inclusive " — • Held, that the term was one for only fifteen years. Biddle v. Vandeventer, xxvi. 500. 8. In the absence of any agreement between a landlord and his tenant, the rent will be payable at the end of the year. Ridgley v. Stillwell, xxvii. 128. 9. A lease to an infant is not absolutely void, but voidable only ; and it is not for third persons to set up the defense of infancy. Leases to infants are, like all other contracts, voidable at their election. Griffith v. Schwenderman, xxvii. 412. See Revenue, 4. C. BIGHTS ACQUIRED UNDEE. 10. A lessor granted to his lessees the privilege of doing all such quarrying on the land leased as might by them be deemed requisite and proper for carrying on 442 LANDLORD AND TENANT. IL their business of boat hmldmg^Held, that the lessees acquired a property in the rock quarried. Lbonaed, J., dis. McKee v. Brooks, xx. 526. d. FORFEITURE AND SURRENDER. 1 1. The removal of a tenant and the delivery of the key to the landlord before the expiration of the term, does not, by operation of law, amount to a surrender of the term. Prentiss v. Warne, x. 601. 12. Where, by the termsof a lease, the rent is to be paid quarter yearly, and if it is not paid then, or within ten days thereafter, the lease is to be forfeited^ a tender of the rent before the expiration of the quarter will not prevent a for- feiture of the lease. Illingworth v. Miltenherger, xi. 80. 13. In a tenancy from year to year, a surrender by operation of law takes place when, by the consent of both parties, another person becomes tenant of the premises, and'the landlord collects rent from him. Clemens v. Broomfield, xix. 118. 14. The trustees of the town of Carondelet were authorized by statute, (Acts 1888-9, 210,) to grant leases of the land belonging to the corporation, and were clothed with " all the power and authority necessary to carry into effect the objects of the act, and to do all acts that might be proper for that purpose " — Held, that under the statute the trustees of the town might, in accordance with a town ordinance to that effect, make leases containing a clause of forfeiture for the non payment of rent, and that such forfeiture, when declared, could not be relieved against, although no demand of rent had been previously made. Leon- ard, J., dis. Taylor v. City of Carondelet, xxii. 105. City of Carondelet v. Larman, xxvi. 461. Huth v. City of Carondelet, xxvi. 466. 16. And so also under the act of 1824, (R. S. 1826, 211.) City of Caronde- let V. Lannan, xxvi. 461. See Forfeiture. e. ASSIGNMENT. 16. The words "grant or demise,'' used in the assignment of a lease, do not create an implied covenant against the assignor of a lease. Blair v. Rankin, xi. 440. 17. The assignor of a lease is not liable to the assignee for a breach of the covenants in the lease by the original lessor. Ihid. IL TENANT'S LIABILITY. 18. Where the clerk of the lessee of a storehouse wantonly fired a can of powder, and blew up the building — Held, that the lessee was responsi- ble for the damage to the building. Mason v. Stiles, xxi. 374. See Infra, 32-34. LANDLORD AND TENANT. V. 443 m. TENANT'S REMEDY. 19. A tenant cannot recover damages from his landlord whicli are caused by a nuisance on the demised premises, unless lie alleges and proves that the defen- dant is liable on some contract, or that the nuisance arises from some act with which he is connected. Vai v. Weld, xvii. 232. IV. LANDLORD'S LIEN. 20. The landlord's lien upon the crops grown on the demised premises in any year for the rent of that year, (R. S. 1845, 688, § 14,) must be enforced by process of law. Rent may be raserved, however, in such a way that the land- lord will not be entitled to his lien. Knox v. Hunt, xviii. 243. 21. The lien continues eight months, and during that time the landlord may take steps to subject the crop to the payment of the rent. If the property remains in specie in the hands of an assignee, he may, during the continuance of the lien, seize it under process, or might, if it was consumed, hold the assignee accountahle for its value, if the assignment was voluntary, or taken with a knowledge of the existence of the lien. The crop, during the continuance of the lien, would not be subject to the process of the law at the suit of any other cred- itor, without payment of the rent, as the lien of the landlord would protect it from sale. Nothing can be seized under execution which cannot be sold. Ibid. V. RENT. ACTlOls TO REOOVEK. 22. Assumpsit for use and occupation, or for money had and received from a sub-lessee for use and occupation, will not lie where there is no privity of con- tract, expressed or implied, between the parties. 0' Fallon v. Boismenu, iii. 405. 23. In an action for use and occupation, an eviction of part of the premises may be shown in reduction of the rent ; but a mere trespass, or illegal ouster, does not constitute an eviction. McFadin v. Bippey, viii. 738. 24. In an action for use and occupation under the statute, a parol demise is evidence of the quantum of damages. (See R. S. 1835, 377, § 12.) Wame v. Prentiss, ix. 540. 25. As the action of use and occupation can only be maintained where the relation of landlord and tenant exists, it is unnecessary for the plaintiff to show litle. ffood V. Mathis, xxi. 308. 26. An action for use and occupation cannot be maintained unless the relation of landlord and tenant exists between the parties, founded on an agreement express or implied. Cohen v. Xyler, xxvii. 122. 27. Where rent was to be pafd at the end of each three months, during the contmuance of the lease, the lessor cannot maintain an action therefor at the end of one month. Garvey y. Bohyns, viii. 213, 444 LA.NDLOED AND TENANT. V. 28. It is no defense to an action for rent under an express covenant, that a rise in the river rendered a part of the leasehold premises untenantable ; and if the defendant files an answer by way of set-off for damages sustained thereby, it will be stricken out on motion. Niedelet v. Walek, xvi. 214. 29. A plea of surrender, besides stating that the tenant left the house, and delivered the possession thereof to the landlord or his agent, must state the land- lord's acceptance of possession and his discharge of the tenant. Kerr v. Clark, xix. 132. 30. Where a landlord seeks to recover possession of the demised premises un- der the statute, (R. S. 1855, 1016, §§ 32-40,) the statement filed by him must set forth the amount of rent actually due, and that the same has been demanded from the tenant. Vaughn v. ZocAe, xxvii. 290. 31. And where the premises have been sold, the vendee's complaint must set forth the amount due to him and not that which is due to his vendor. Ibid. See Administration, 66. b. tenant's liability. 32. Where a tenant abandons the leased premises, by consent of the land- lord, during a current quarter, he is liable for rent to the expiration of suet quar- ter. Prentiss y. Warne,x. Q0\. 33. Where the law creates a duty, and the party is prevented from perform- ing it, without any default in him, and he has no remedy over, the law will excuse him. But where the party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, notwithstanding any accident, because he might have provided against it by his contract. Davis v, Smith, xv. 467. 34. Thus, the lessees of a grist and saw mill and carding machine, are bound to pay the stipulated rent, notwithstanding the main posts of the building, sup- porting the machinery, were decayed, in consequence of which the building fell and destroyed all the machinery, as it was equally in the knowledge of both par- ties that the posts were liable to such defects. Ibid. C. DISTEESS. 35. The right of distress for Tent, or of beasts for breaking the close, does not exist in this State. Crocker v. Mann, iii. 4*72. 36. Where goods are illegally taken under a warrant to distrain for rent, under the provisions of § 9, of the act relating to landlords and tenants in St. Louis county, (Acts 1842-3, 248,) and money is paid to have them restored, an action will lie to recover back the money. Quinnett v. Washington, x. 53. • 37. In such action double damages are not recoverable. Ibid. See Laws, 74. d. LIABILITY OF ASSIGNEE OR PURCHASER. 38. The assignee of a lease assigned by way of mortgage is not liable to the lessor for the rent of the demised premises, unless he enters into possession. McKee v. Angelrodt, xvi. 283. 39. But a purchaser at sheriff's sale, under execution, of a lessee's estate and LANDLORD AND TENANT. VI. 445 interest in the demised premises, is liable to the lessor for the after-accruing • rents, whether he enter into possession or not. Smith v. Brinker, xvii. 148. e. FEE-FARM RENT. 40. A fee-farm rent will be upheld in this State. Alexander v. Warrance, xvii 228. f. HUSBAND AND WIFE. 41. Where the husband and wife abandon the possession of premises, occupied by the wife previous to their marriage free of rent, and upon which she had a growing crop, and, after such abandonment, the husband converts to his own use the crop, he will not thereby be rendered liable for the rent of the premises. Dillon V. Wilson, xxiv. 278. g. ABANDONMENT. 42. Where a lessor by his wrongful act defeats the enjoyment of the property by the lessee, the latter may abandon the possession of the premises and exone- rate himself from liability to pay rent. Jackson v. Eddy, xii. 209. h. CONDEMNATION TO PUBLIC USE. 43. The plaintiff leased a lot to the defendant for a term of years, and after- wards joined the owners of adjoining lots, in a deed, by which a portion of the lot leased was conveyed to the city of St. Louis ; this deed contained this clause, " it being understood that some of said first parties have made leases for portions of the wharf property hereby conveyed, the terms of which have not expired ; and the conveyance to the city is made by said first parties subject to said leases now in existence ;" the portion thus conveyed by the plaintiff to the city was duly condemned and appropriated to public use — Held, that the convey- ance to the city carried with; it, as incident to the reservation conveyed, a pro- portionate part of the rent, the clause not amounting to a reservation of the rent to the grantor. Biddle v. Hussman, xxiii. 597. See Supra, 8 ; Wat, 26, 27. VL NOTICE TO QUIT. 44. Where a guardian leases estate of his ward for a term of years, and after the expiration of the guardianship but before the expiration of the lease, rent was accepted by the plaintiff' — Held, whether the lease was void, or. merely voidable, that the acceptance of rent implied a tenancy from year to year and entitled the tenant to notice to quit. Tiernan v. Johnson, vii. 43. 45. A lease made by an agent in his own name is void, and the tenant enter- ing under such lease is a tenant at will, and as such entitled to notice to quit before an action of ejectment will lie against him. Murray v. Armstrong, xi. 209. 46. A purchaser in possession, under a contract for a deed, is not entitled to notice to quit. On breach of his contract he is liable to be turned out as a tres- passer, and for mesne profits. Glascock v. Robards, xiv. 350. 446 LANDLORD AND TENANT. IX. 47. Although rent be made payable moEthly, yet, if the letting be general and without limitation as to time, it will be a tenancy from year to year, and a month's notice to quit will not terminate the tenancy. Ridgely v. Stillwell, xxv. 570. VIL REPAIRS. 48. Unless the lease contains a covenant that the landlord shall repair, he is not bound to do so. Vai v. Weld, xvii. 232. 49. A. leased to B. a farm, with " water privileges from the miU-pond for turning a wheel to drive "a saddle-tree manufactory" — 5isW, that A. was not bound to keep the mill-dam in repair, nor to keep sufficient water in it to drive the saddle-tree factory. He was only liable for some misfeasance in respect to the matter, and not for any nonfeasance. Morse v. Maddox, xvii. 569. 50. It is no defense to a suit for the recovery of rent, that the defendant had entered into the occupancy of the premises under an agreement with the plaintiff that he would execute a lease therefor for the term of three years, and would make certain repairs, the making of the repairs not being a condition of the leasing, and that the plaintiff neglecting and refusing to do the same, he aban- doned the premises and repudiated the contract. Qoodfellow v. Noble, xrv. 60. Vm. TENANT CANNOT DISPUTE LANDLORD'S TITLE. 51. It is not necessary for a landlord to prove his title to premises, to sustain an injunction against his tenant for cutting and carrying away timber. The tenant cannot dispute his landlord's title. Parker v. Raymond, xiv. 535. 52. If a lessee of a tenement for one year holds over, it is presumed that he has rented it for another year, and not that he is a trespasser ; and if he under- lets the premises, his lessee cannot dispute his title. Stoops v. Devlin, xvi. 162. IX. ST. LOUIS ACT. 53. The act of 1843, (Acts 1842-3, 247, §§ 1-4,) gives no lien, unless the rent be due and the amount of it certain. Glasgow v. Ridgeley, xi. 34. 54. Under the act of 1845, (R. S. 1845, 1101,) upon a failure of payment of rent, the landlord is entitled to his action for the recovery of possession against the tenant or other person in possession, and cannot be defeated by a transfer of the possession, or by an abandonment of it by the tenant and the intrusion of a stranger. Willi v. Peters, xi. 395. Harley v. McAuliff, xxiv. 85. 55. And an affidavit, in a proceeding against A. and B., under that act, which states a lease by plaintiff to A. and a demand of rent of B., the person occupying the premises, is not rendered defective by reason of its not charging privity between plaintiff and B., or by its not stating that the relations of landlord and tenant existed between them. Shepard v. Martin, xxv. 193. LAWS. 447 56. But an affidavit, under that act, which, states that a certain lot was let to defendant for a term of twenty years at a certain rent ; that the sum of $695,50 is now due ; that the same has been demanded, and payment has not been made ; but which does not state of whom defendant leased the lot, or who was his landlord, or to whom he owed the debt due for rent, is defective, and its defectiveness may be taken advantage of by motion in arrest of judgment. Evans v. Muller, xxv. 195. 57. The sole object of a proceeding under the Landlord and Tenant Act of St. Louis County and the supplementary acts, (E. 8. 1845, 1101 — Acta 1846-7, 90 — Acts 1848-9, 65,) is to restore possession of the premises to the landlord, and neither the Justice nor the appellate court is authorized toascertain the amount of the rent due so as to bind the tenant collaterally in an action on the appeal bond. Harley v. McAuliff, xxvi. 525. See Estoppel. V ; Tebspass, 1 ; See Supra, 30, 31, 36. LAWS. L CONSTRTJCTION. IL HOW PROVED. 'a. PUBLIC ACTS. b. PRIVATE ACTS. C. FOREION LAWS. IIL VALIDITY AND HEREIN OF THE MODE OF TRYING THEIR CONSTITUTIONALITY. IV. IGNORANCE NO EXCUSE FOR NON-COMPLIANCE WITH. V. LEGISLATIVE POWER. VI. LAWS DECLARED CONSTITUTIONAL. a. ASSAULT AND BATTERY. b. ATTORNEYS. C. BOATS AND VESSELS. d. CONDEMNATION OF LAND TO PUBLIC USE. e. CONFESSION OF JUDGMENT. f. CONTESTED ELECTION. g. COLLECTOR. h. COSTS. i. COUNTY. j. DRAMSHOP. k. EJECTMENT, 1. EXEMPTION FROM JURY DUTY, m. LARCENY. n. LOTTERY. O. MERCHANTS. p. PAVIN& STREETS. q. RAILROADS. r. RECOGNIZANCE. S. SALARY OF JUDGES. 448 LAWS. II. t. SCHOOL LANDS. U. ST. LOUIS. aa. Charter. bb. Quarantine Laws. cc. Condemnation of Land to Public Use. V. SUNDAY. W. TAXES. X. TOWNS. y. TRIAL BY EBFEREES. Z. "VOLUNTEERS. (a.) WAY. VIL LAWS DECLARED UNCONSTITUTIONAL. a. APPEAL. b. ASSAULT AND BATTERY. C. CONDEMNATION OF LAND TO PUBLIC USB. d. COUNTERFEITING. e. COUNTY. f. DIVORCE. g. DRAMSHOP. h. LOAN OFFICE CERTIFICATES. i. LOTTERY. j. MERCHANTS. k. ROADS AND HIGHWAYS. 1. SALT SPRINGS, m. SCHOOL LANDS, n. STAY OF EXECUTION. I. CONSTRUCTION. 1. It is a maxim of law, that a statute imposing a penalty for a newly created offense, or for a breach of duty, and defining the particular mode in which, and before what tribunal the penalty shall be recoverable, must be strictly pursued. Riddkk V. Governor, i. 147. 2. Where the intent of the Legislature is plain, adverse contemporaneous col- etruction is entitled to little weight. Wear v. Bryant, v. 147. Tindall v. Johnson, v. 179, 3. The rule which requires penal statutes to be construed strictly, merely restrains such construction as would increase the penalty. Ullis v. Wkitlock, X. 781. II. HOW PROVED. a. PUBLIC ACTS. 4. An act to provide for the publication and distribution of the revised laws (R. S. 1825, 493, § ],) provided that the "following acts of a public, permanent and general nature," &c., should be published — Held, that an act incorporating the city of St. Louis, which was included in the list of acts enumerated and published with those acts, was not thereby made a public act. Lo^er v. Mayor, L 681. LAWS. III. 449 b. PRIVATE ACTS, 5. The statute making the printed statute books of this State, printed under the authority of the State, evidence of the private acts therein contained, (R. S. 1845, 467, § 1,) does not dispense with the requirement of the common law that they must be produced in evidence. Bailey v. Trustees Lin. Acad., xii. 174. C. FOREIGN LAWS. '6. Foreign laws must be proved as facts, as the court does not take judicial notice of them, and in the absence of foreign laws, the rights of parties will be construed according to the laws of this State. Milly v. Smith, ii. 36. 7. Books offered in evidence, as the printed statute books of a sister State, must purport to be printed under the authority of such State. (See R. S. 1835, 250, § 2.) Bright v. White, viii. 421. Bright v. Woods, viii. 428. Haile v. Hill, xiii. 612. 8. If the foreign law is unwritten, it may be proved by parol, and it will not be presumed to be in writing ; but foreign written laws must be proved by the laws themselves, properly authenticated. Charlotte v. Chouteau, xxv. 465. 9. It is the province of the court to instruct the jury as to the meaning and effect of the written foreign law, the construction of which should be the same which is given to it in the jurisdiction where it is in force ; and the opinions of text writers, the decisions of the courts, and the evidence of persons skilled in the foreign law, may be resorted to and consulted to enlighten the court in con- struing and expounding the foreign written law. Ihid. m. VALIDITY, AND HEREIN OF THE MODE OF TRYING THEIR CONSTITUTIONALITY. 10. The courts of this State not only have the power, but it is their duty, to decide on the constitutionality of the laws passed by the legislature, whenever they are supposed to conflict with the constitution of the United States or of this State. Baily v. Gentry, i. 164. 11. The fact that the representatives of a county sanctioned a local act appli- cable to that county, cannot affect its constitutionality. Hamilton v. St. Louis County Court, xv. 3. 12. The conltitutionality of a law cannot be inquired into in a collateral pro- ceeding. The State v. Rich, xx. 393. The State v. Leonard, xxii. 449. The State V. York, xxii. 462. 13. The constitution provides that no new county shall be established by which the population of an old county shall be reduced below the legal rate of representation. On motion to quash an indictment, found in a new county, the circuit attorney admitted that such was the effect of establishing said new county — Held, that no law could be judicially declared unconstitutional, on the admission by 1;he circuit attorney, in a judicial proceeding of a fact on which its anconstitutionality depends. The State v. Rich, xx. 393. 29 450 LAWS. VI. 14. The validity of an enrolled statute authenticated, under the statute (R. S. 1845, 694, § 1,) by the certificate of the presiding officers of the two houses, that it passed over the governor's veto by the constitutional majority, cannot be impeached by the journals showing a departure from the forms prescribed by the constitution in the re-consideration of the bill. Pacific Railroad v. Governor, xxiii. 353. IV. IGNORANCE NO EXCUSE FOR NON-COMPLIANCE WITH. 15. Ignorance of the law is no excuse for a failure to comply with its require- ments. White V. Collier, v. 82. V. LEGISLATIVE POWER. 16. The organic law of the territory of Missouri (1 Ter. L., 9, § 4,) having conferred on the territorial legislature " power to make laws in all cases, both civil and criminal, for the good government of the people of said territory, not repugnant to, or inconsistent with the constitution and laws of the United States," the territorial legislature possessed power to incorporate towns. Bid- dick V. Amelin, i. 5. 17. And also .power to incorporate a bank. Douglass v. Bank of Missouri, i. 24. 18. The legislature has constitutional authority to incorporate towns and cities with power to legislate in regard to subjects of local police. The State v. SimondSjin. 414. 19. Where, by an act of the legislature, commissioners are appointed to locate a county seat and erect buildings on a lot of not less than fifty acres, and the commissioners make the location and cause the buildings to be erected on a lot of only forty acres, and the legislature by a subsequent act ratify and confirm the action of the commissioners, such subsequent act is constitutional and impairs no private right acquired under the first act. Ruggles v. Washington County, iii. 496. VI. LAWS DECLARED CONSTITUTIONAL. a. ASSAULT AND BATTERY. 20. The act of January 18, 1831, (2 Ter. L., 271,) declaring assaults, &c., offenses not indictable, and making such offenses punishable before a Justice in a summary way, is constitutional. [The State v. Stein, ii. 67, commented upon.] The State v. Ledford, iii. 102. b. ATTOKNETS. 21. The statute imposing a tax upon lawyers (Acts 1846-7, 123) is constitu- tional. The license granted to attorneys under that statute, is not a contract, LAWS. VI. 451 which vests a right, but the grant of a privilege, which may be revoked, or new conditions may be imposed upon its enjoyment. Simmons v. The State, xii. 268. C. BOATS AND VESSELS. 22. The statute relating to boats and vessels, (R. S. 1845, 180,) in its appli- cation to boats owned in other States, is not in conflict with the constitution of the United States, or the principles of inter-state comity. Yore v. St. Bt. G. Bealer, xxvi. 426. d. CONDEMNATION OF LAND TO PUBLIC USE. 23. The statute which provides that, in assessing the damages sustained by a person by reason of a road passing over his land, " the commissioners shall take into consideration the advantages as well as the disadvantages of the road to such person,'' (R. S. 1845, 9'74, § 17,) is constitutional. Newhy-^. Platte County, XXV. 258. 24. And the statute, containing a like provision, which authorizes the forma- tion of associations to construct plank roads, (Acts 1850-1, 261, § 8,) is consti- tutional, and in authorizing the appointment of a jury of five disinterested land- owners of the county to assess the damages, &c. Louisiana and Frankford Planh Road Co. v. Piekett, xxv. 535. 25. The building of a railroad by a private corporation, under the authority of the legislature, for the accommodation of the public, is a public use for which private property may be lawfully taken. Walther v. Warner, xxv. 277. 26. It is competent for the legislature to authorize entries upon private pro- perty without compensation, for the purpose of making examinations and sur- veys preliminary to the location of a railroad. Ibid. 27. It is competent for the legislature to provide that, in determining the just compensation to which the owner of property appropriated to public use is enti- tled under the constitution, (Art. XIII, § 7,) the benefits and advantages accru- ing to such owner in respect to the residue of his property unappropriated, in consequence of the use to which the part taken is applied, shall be taken into consideration. Scott, J., dis. Newly v. Platte County, xxv. 258. 28. This right is based upon the general taxing power, and such a provision is in effect an assessment or tax on benefits ; being such, and not a tax on pro- perty, it is not in conflict with that provision of the constitution which requires " that all property subject to taxation in this State shall be taxed in proportion to its value.'' (Art. XIII, § 19.) Ibid. 29. Qucere, whether it would be competent for the legislature, in providing a mode for the condemnation and appropriation of private property to public uses to make the judgment of a special tribunal final, and thus place the matter beyond the control of the courts. North Missouri R. R. Co. y. Lackland, xxy. 515. Same v. Reynal, xxv. 584. e. CONFESSION OF JUDGMENT. 30. Section 14 of the act of 1820, (1 Ter. L., 685,) giving the Clerk of the Circuit Court power to enter up judgments by confession, is constitutional. Fin- ley\. Caldwell, i. 512. Russell v. Oeyer, iv. 384. 4S3 LAWS. VI. I. CONTESTED ELECTION. 31. The provision in tte statute relating to clerks, that •' if there be a tie or contested election, it shall be determined by the court to which the office belongs," (R. 8. 1845, 201, § 8,) is constitutional. (See R. S. 1835, 34, § 3.) Lewii v. fU State, xii. 128. g, OQLLBCTOR. 32. Where a judgment was recovered to the use of a county against a col- lector of taxes, who failed to pay the same into the county treasury, it was held, that the legislature had authority to pass an act releasing the collector ; and that such an act did not impair the obligation of a contract.. Conner v. Bent, i. 235. h. COSTS. 33. The statute relating to the payment of jurors in St. Louis County, {Aot» 1846— *?, 68,) which requires that a juiy fee shall be taxed as part of the costs of eveiy judgment rendered against a defendant ia a criminal proceeding, is consti- tutioiial. (See Const. Mo., Art. XIII, §§ 8, 9.) The State v. Wrigiht, xiii. 243. i. COUNTY. 34. It seems that a clause in a law establishing a new county, J^qairitag it to be submitted to a vote of the people who are to bear the consequent burdens might not be held unconstitutional. The State v. Sc&tt, xvii. 521. See SuPBA 19. j. DRAMSHOP. 35. The statute restricting the County Court of St. Louis eounty in granting (Jram-shop licenses, to persons who have resided two years in the State and three months in the county, (R. S. 1845, 1099,) is not in conflict with the Coa- stitntion of the United States. (Art. IV, § 2.) Austin v. The State, x. 591. 36. The legislature has power under the constitution, to pass a law prohibit- ing the sale of liquor without a license. The State v. Searcy, xx. 489. k. EJECTMENT. 37. The statute, (R. S. 1845, 440, § 2,) which authorizes an action of ejectment to be maintained on a New Madrid location is constitutional. 'Gfray v. Gmens, xxvi. 291. 1. EXEMPTION EKOM JURY DUTY. 38. The act incorporating the " Central Fire Co.," of St. Louis, exempting cer- tain persons from serving on juries, is constitutional. (Acts 1836-7, 172, § 4.) McGunnegle v. The State, vi. 867. 39. The statute, (R. S. 1845, 868, § 6,) which authorizes the trial of a person guilty of larceny in this State, committed on board of a vessel in the course of a voyage, is constitutional. Steerman v. The State^ x. 503. LAWS. VL 453 40. The legislature had power to enact the statute, (R. S. 1845, 408, § 3,) which punishes for larceny any person who steals property in another State or county, and brings the same into this State. Hem/maker v. The State, xii. 453. n. LOTTERY. 41. The act of December 19, 1842, "to abolish lotteries," (Acts 1842-3, 85,) is constitutional. Where the legislature authorizes a private individual, or a corporation, to raise a sum of money by lottery, the statute by which the author- ity is created may be, at any time, repealed without violating the constitution. Freleiffh v. The State, viii. 606. O. MERCHANTS. 42. The act of 1825 imposing a tax on vendors of merchandise and peddlers, (R. S. 1825, 631,) and the supplementary act of 1829, (2 Ter. L. 1*72,) are not repugnant to the constitution of the United States, (Art. I, §§ 8, 10,) in their application to the sale of merchandise not in the original packages. Tracy v. The StaU, iii. 3. p. PAVING STREETS, 43. The tenth section of the act incorporating the town of PalmjTa, (Acts 1844-5, 156,) which gives the trustees power, if the owner or occupant of lots adjacent to the streets of said town should fail to pave the same as directed by ordinance, to pave them and recover the full expense thereof from such owner or occupier, is constitutional. Inhabitants of Palmyra v. Morton, xxv. 593. q. RAILROADS. 44. Section 12 of the act to authorize the formation of railroad associatioijs, &c., (Acts 1852-3, 128,) is constitutional in its application to companies previ- ously created. Peters v. St. Louis and /ran Mountain H. P. Co., xxiii. 107. 46. The legislature did not impair the obligation of a contract, (Const. XT. S., Art. I, § 10,) in the passage of the act, (Acts 1852-3, 143, § 51,) requiring rail- road companies to fence their roads, &c., or to respond in damages for aU injuries arising from a failure so to do, although their charters contained no reservation of such power. Gorman v. Pacific Railroad, xxvi, 441. r. RECOGNIZANCE. 46. The legislature are not prohibited from authorizing the mayor of St. Charles to take recognizances in criminal cases. (See Acts 1848-9, 266.) Cunningham v. The State, xiv. 402. S. SALARY OF JUDGES, 47. The act to increase the salaries of the judges in St. Louis county, of March 3, 1851, (Acts 1850-1, 281,) does not leave the additional amount ©f compensation to the discretion of the County Court, nor is the act unconstitu- tional. EamUUm v. St. Louis (Jounty Court, xv. 3. 454 LAWS. VI. t. SCHOOL LANDS. 48. The act of 1831, providing for the sale of township school lands, (2 Ter. L. 261,) is not repugnant to the nature of the grant of said lands from the United States, (3 TJ. S. Stat. 547, § 6,) nor does it conflict -frith the constitution of Mis- souri ; and a purchaser of such lands, under the provisions of that act, acquires a valid title. Wash, J., dis. Maupin v. Parker, ni. ^IQ. Payne \. St. Louis County, viii. 473. U. ST. LOUIS. aa. Charter. 49. The act of 1841 altering the charter and extending the limits of the city of St. Louis, (AotI 1840-1, 129,) being accepted by a majority of the citizens of St. Louis, is constitutional, although such extension were against the consent of those included within the new limits. City of St. Louis v. Russell, ix. 503. Same v. Allen, xiii. 400. bb. Quarantine Laws. 60. The act of the legislature authorizing the city of St. Louis to mate regu- lations to prevent the introduction of contagious diseases into the city, (Acts 1842-3, 116, § 2,) is not a delegation of legislative power, and ordinances made in pursuance of such authority are not in contravention of the constitution of Missouri, (Art. Ill, § 1.) MetcalfY. City of St. Louis, xi. 102. 51. So the ordinance of the city of St. Louis which prescribes that boats coming from below Memphis, having had on board, at any time during the voy- age, more than a specified number of passengers, shall remain in quarantine not less than forty-eight hours, nor more than twenty days, is not repugnant to that clause in the constitution of the United States which declares that Congress shall have power " to regulate commerce with foreign nations, and among the several States, and with the Indian tribes," (Art. I, § 8, cl. 3.) City of St. Louis v. McCoy, xviii. 238. Same v. Boffinger, xix. 13. cc. Condemnation of Land to Public Use. 52. Section 2 of the charter of the city of St. Louis, (Rev. Ord. 1856, 157,) relating to the opening of streets, &c., and the payments for lands taken for that purpose, is constitutional, and assessments against adjacent owners in respect to the benefits received by them from the opening, widening or altering a street, &c., are a constitutional exercise of the taxing power. Garrett v. City of St. Louis, XXV. 605. v. SUNDAY. 53. The statute compelling the observance of Sunday, (R. S. 1846, 404, §§ 31-34,) is constitutional. The State v. Amis, xx. 214. W. TAXES. 54. The act of February 27, 1855, (Acts 1854-5, 73,) incorporating the Egyptian Levee Co., for the purpose of reclaiming a certain district from inunda: LAWS. VII. 455 tioD by leveeing, ditching and embanking, whicb authorizes said company to levy a tax per acre on the land owners within said district, is not in conflict with the provision of the constitution which requires that all property subject to taxation shall be taxed in proportion to its value. Egyptian Levee Co., v. Hardin, xxvii. 495. X. TOWNS. 65. The act of 1845 relating to the incorporation of towns by the County Court, (R. S. 1845, 1047,) is constitutional. The duties imposed on the court are judicial and not legislative in their nature. Kayser v. Trustees of Bremen, xvi. 88. y. TRIAL BY EEFEBBES. 56. Art. XVI of the practice act of 1849, authorizing a reference of issues to referees, (Acts 1848-9, 91,) does not infringe the constitutional right of trial by jury, (Alt. XIII, § 8.) Shepard v. Bank of Missouri, xv. 143. " Z. VOLnNTEBES. 57. The act of 1847, by which suits and processes against volunteers who are absent from the State are suspended until the regiment returned, (Acts 1846-7, 109,) is constitutional. Edmonson v. Ferguson, xi. 344. lAndsey v. Burbridge, xi. 645. (a.) WAT. 58. The act of 1845, (R. S. 1845, 1074,) only provides a mode for locating a right of way already existing, and is constitutional. Snyder v. Warford, xi. 513, VII. LAWS DECLARED UNCONSTITUTIONAL. a. APPEAL. 59. The appellate jurisdiction of the Supreme Court having been conferred by the constitution of this State without limit, (Art. V, § 2,) the legislature have no power to pass a law confining appeals and writs of error to cases where the amount is one hundred dollars or upwards. (1 Ter. L. 718, § 5.) Graves v. Blaek, i. 221. Blunt v. Sheppard, i. 219. b. ASSAULT AND BATTERY. 60. The act of February 19, 1825, (R. S. 1825, 139,) gave Justices of the Peace jurisdiction in cases of assault, battery, affray, (fee, and authorized them to proceed in a summary manner, without indictment by a grand jury, such offenses being at that time indictable — Jleld, that the law giving such jurisdiction to Justices is in violation of that clause of the constitution of this State which declares " that the accused cannot be deprived of life, liberty or property but by the judgment of his peers or the law of the land." (Art. XHI, § 9.) The State V. Stein, ii, 67. 456 LAWS. VII. C. CONDEMNATION OF LAND TO PUBLIC USE. 61. Legislative acts authorizing the taking of private property for publie use, are unconstitutional unless they provide the owner with a proper remedy to obtain a just compensation. This remedy must be an eflBcient one ; there must be an adequate fund and an appropriate legal remedy to enforce its application ; a judgment against a private corporation is not sufficient. Walther v. Warner, XXV. 277. 62. The " act to establish a neighborhood road in Washington county," (Acte 1855, 466,) is unconstitutional. Private property cannot be condemned and appropriated by the Legislature to private use. Dickey v. Tennison, xxvii. 37S. d. COUNTERFEITING. 63. The act of 1825, (k. S. 1825, 292, § 43,) which provides for the punish- ment of counterfeiting current coin, is unconstitutional and void, as the power to legislate on that subject is, by the constitution of the United States, (Art. I, § 8,) vested exclusively in Congress. Wash, J., dis. Mattison v. The State, iii. 421. e. COUNTY. 64. Under the amendments to the State constitution, I'atified in 1849, (Acts 1848-9, 6, § 1,) a law establishing a new county, by -which an old one was reduced below the ratio of representation, was held unconstitutional, notwith- standing a proviso that, for the purposes of representation, the inhabitants of the new county should continue to vote as in the old one, until the population of the new county should entitle it to a representative. The State v. Scott, xvii. 521. f. DIVOECB. 65. The act of February 11, 1833, (Sess. Acts 1832-3, 131, § 25,) granting a divorce of the parties therein named from the bonds of matrimony, is an exer- cise of judicial power, and is therefore unconstitutional and void, and. Per M'GiRK, J., impairs the obligation of a contract. The State v. M-y, iv. 120. Bryson v. Campbell, xii. 498, Bryson v. Bryson, xvii. 690. g. DRAMSHOP. 66. The act of 1857, (Acts 1856-7, 60,) releasing all persons from prosecution then indicted for violations of the act to regulate dramshops committed before December 15, 1856, upon the conditions therein stated, is unconstitutional as an exercise of the pardoning power, and as an interference with the judicial depart- ment of the government The State v. Sloss, xxv. 291. The State v. Todd, xxvi. 175. h. LOAN OFFICE CERTIFICATES. 67. Loan office certificates, issued under the Act of the General Assembly of June 27, 1821, " for the establishment of Loan Offices," (1 Ter. L. 760,) are bills of credit within the meaning of that part of Art. I, § 10, of the Constitution of the United States, which declares that no State shall " emit bills of Gredit ;" but LAWS. VII. 451 a borrower of those certificates will Hot be permitted to set up the ub constitution- ality of their emission as a defense to an action brought by the State to recover the amount borrowed. Mansker v. The State, i. 452. The State v. Craig, i. 502. The State v. Watson, i. 502. The State v. Davis, i. 502. [Contra — See Craig v. The State of Missouri, 4 Peters, 431, where it is held that the unconstitutionality of their emission may be set up as a defense.] 68. And the loaning of them to individuals, under mortgage, is not the act of emission prohibited by that Constitution. Loper v. The State, i. 6.32. Thomas V. Starling, i. 696. The State v. Byrne, i. 748. The State v. Evans, i. 748. The State v. Ravenscro/t, i. 748. i. LOTTERY. 69. The act of February 26, 1835, (2 Ter. L. 475,) supplementary to the act of February 9, 183S, (2 Ter. L. 374,) "to authorize a sum of money to be raised by lottery, to be given to the Sisters of Charity in the city of St. Louis," author- izes the commissioners to sell the lottery ; and, after a sale, the legislature can pass no law impairing the obligation of the contract of sale. The State v. Saw- thorn, ix. 385. 70. The commissioners having sold the lottery, the act of December 19, 1842 (Acts 1842-3, 85,) prohibiting the sale of lottery tickets in this State, is uncon- stitutional as to the vendee ; and his right to sell, under the purchase made in accordance with the act of 1835, is not afiected by the act of 1842. Ibid. j. MERCHANTS. 71. By the statute, (R. S. 1845, 739, § 10,) the collector was authorized to collect, as an ad valorem tax, such a per cent, upon merchandise oifered for sale as for the time being might be assessed upon real estate. By an act of 1849, (Acts 1848-9, 68,) purporting to be "in lieu" of former enactments for taxing merchants, a tax in the form of a charge for a license was authorized, of so much on the first $500 worth of merchandise offered for sale, and twenty cents for each additional llOO, with a proviso that this act should not be construed to repeal § 10 of the act of March, 1845, relating to the ad valorem tax — ffeld, that this saving clause was repugnant to the Constitution of Missouri. (Art. XIII, § 19.) Napton, J., dis. Crow v. The State, xiv. 237. 72. The statute, (E. S. 1855, 1072,) so far as it requires merchants dealing in the manufactures of other States to take out a license and pav a tax for the sale of such goods, is unconstitutional. Napton, J., dis. The State v. JVorth, xxvii. 464. fe- roads and highways. 73. The thirty-third section of the act of March 3, 1851, relating to roads (Acts 1850-1, 280,) is unconstitutional and void; for in a general law, affecting private rights, which takes effect by its terms, a clause authorizing the county courts to suspend it at pleasure in their several counties, is unconstitutional and void, and may be stricken out of the act. The State v. Field, xvii. 529. 458 LEGISLATUKE. 1. SALT SPRINGS. 74. Where a lease is made by the proper officer of one of the salt springs of the State, under a law which provided for no extraordinary remedy for the non- payment of the rent, (1 Ter. L. 981) — Held, that the State cannot afterwards give an extraordinary and summary remedy by distress, (K. 8. 1825, 702, § 7,) against such tenant. It would be an interference with the 8th section of the Xlllth article of the Constitution of this State, which provides " that the right of trial by jury shall remain inviolate." Craig v. Barcroft, i, 656. m. SCHOOL LANDS. 75. A. purchased certain school lands in the county of Chariton, and executed bonds for the purchase money to the county, for the benefit of the inhabitants of the township in which the land was situated. The legislature passed an act requiring the County Court to make an order rescinding the contract of sale, and to cancel the bond for the purchase money — Held, that the act is unconstitu- tional, and that the inhabitants of the township are entitled to the accrued inter- est upon the bond. Butler v. Chariton County Court, xiii. 112. n. STAY OF EXECUTION. 76. The act of December 28, 1821, (1 Ter. L. 818, §§ 2, 3,) by which it was provided that execution should be stayed for two and a half years, unless the plaintiff endorsed thereon his consent to receive property at two thirds its appraised value, was in violation of the Constitution of the United States and of this State, in that it impaired the obligation of contracts, made property a legal tender, and denied justice. Baily v. Gentry, i. 164. 77. So the act directing a stay of execution on judgments obtained before a Justice of the Peace, (R. S. 1825, 482, § 26,) is repugnant to the Constitution both of the United States and the State of Missouri, and therefore void. Bum- gardner v. Howard Circuit Court, iv. 50. LEGISLATURE. I. COMPENSATION OF MEMBERS. 1. Where the legislature at a regular session adjourned for a period of several months, to give the committee on revision of the statutes time to discharge their duties, and the members dispersed to their homes, a member is not, under the statute, (R. S. 1845, 713,) entitled to compensation during the vacation or period of adjournment. Morgan v. Buffington, xxi. 549. 2. It is not within the power of the legislature to restrain the auditor of accounts of the State from an examination of vouchers presented to him, to see whether they are correct, though the vouchers be duly formal. Ihid. LIBEL AND SLANDER. I. 459 3. So under the statute, (R. S. 1845, '714, § 4,) a certificate from the Speaker of the House of Representatives, to the effect that a certain sum is due a member of the legislature for his services as such, is not conclusive upon the auditor. He has a right to examine whether it is correct. Ibid. LIBEL AND SLANDER. L ACTIONABLE WORDS. II. PARTIES TO ACTION. in. PLEADING. IV. EVIDENCE. V. JUSTIFICATION. VL CHARACTER. VIL DAMAGES. I. ACTIONABLE WORDS. 1. Words which are actionable, in and of themselves, import malice ; and, if proved, the malice is implied. JEates v. Antrobus, i. 197. 2. An oath administered by a Justice before arbitrators on a parol submission, not made a rule of court, is not judicial, (See R. S. 1825, 137, § 1 — 604, § 3,) nor will false swearing under it constitute perjury. Therefore to charge a party with having sworn falsely, under such circumstances, is not actionable. Mohan v. Berry, v. 21. [But see Bridgman v. Bridgman, xxiii. 272.] 3. To publish falsely and maliciously of a woman that she had a child, with the intention of charging her with having been guilty of fornication, is actionable under the statute, (R. S. 1835, 581.) Moberly v. Preston, viii. 462. 4. It is libelous to write of a person that " he is thought no more of than a horse-thief or counterfeiter." [Distinction drawn between written and verbal slander.] Nelson v. Musgrave, x. 648. 6. A plea of justification in such a case must aver that the plaintiff had com- mitted the offenses of horse-stealing and counterfeiting. It is not sufficient to aver that he " was thought no more of than a horse-thief," &c. Rid. 6. The editors of a newspaper, speaking of a steamboat agent, called him an impertinent person, and charged him with withholding newspapers which had been entrusted to him for their paper, and warned their friends against sending them any more favors by him— Held, to be libelous. Keemle v Sass, xii. 499. 7. In actions of slander, the words spoken are to be construed according to their natural meaning and common acceptation. The doctrine that words spoken slanderously are to be taken in their mildest sense, has long since been aban- doned. FalUnstein v. Boothe, xiii. 427. 460 LIBEL AND SLANDER, IIL 8. Words whict involve a charge of adultery are actionable, by statute, (K. 8. 1845, 1011, § 1,) without alleging special damage. Stieber v. Wensel, xix. 513. 9. The words, "You swore to a lie before the grand jury," are actionable, and need no colloquium or inducement. Perselly v. Bacon, xx. 330. 10. Words charging a woman with being a "whore" are actionable, ^er se. Hudson V. Garner, xxii. 423. 11. Words charging a person with stealing in another State are actionable, per se. Johnson v. Dicken, xxv. 5 SO. 12. Slanderous words, charging a man with having whipped his wife, are not actionable, per se. Birch v. Benton, xxvi. 163. 13. Nor are words charging that a man had whipped his mother. Speaker v. McKenzie, xxvi. 255. 14. Words imputing an indictable offense, for which corporal punishment may be inflicted as the immediate punishment, and not as the consequence of a fail- ure to satisfy a pecuniary penalty, are actionable in themselves. Per Richaed- SON, J. Birch V. Benton, xxvi. 153. n. PARTIES TO ACTION. ' 15. Where, in an action of slander, grounded on a charge of adultery, the plaintiff sued as an infant by her next friend, it was held that an unmarried woman was incapable of committing the offense, and that if the plaintiff were married she could not sue by her next friend, but must be joined with her husband. Adams v. Hannrni, iii. 222. 16. In a suit for slanderous words spoken of the wife, she should be joined with her husband as a party to the suit ; the husband alone cannot recover, unless he avers and proves special damages. Johnson v. Dicken, xxv. 580. IIL PLEADING. Vl. To say of a woman that "she has gone down the river with two whores to a goosehorn, and is now there with them," is not actionable without a colloquium as to the kind of house or place alluded to ; and, quaere, whether they are action- able with such colloquium. Dyer v. Morris, iv. 214. 18. The meaning of the word " goosehorn '' should be averred, and also that the hearers understood it as averred. Per M'Girk, J. Ihid. 19. Where the slander imputed was in relation to the crime of passing coun- terfeit money, there must be a colloquium in the declaration, averring that the defendant spoke the words of and concerning his commission of the offense, knowing the money to be counterfeit ; and the want of such an averment is not aided by the inuendo. Church v. Bridgman, vi. 190. 20. A declaration in slander, where the words spoken charged the plaintiff with swearing to a lie as a witness in a proceeding before a Justice, in which it is not stated that the Justice had jtirisdiction or power to administer the oath. LIBEL AND SLANDER, IV. 461 or that the testimony was given upon a material matter, although bad on demurrer is good after verdict. Palmer v. Hunter, viii. 512. Harris v. Woody, ix. 112. 21. A count in slander, stating the actionable words to be that plaintiff "swore to a lie," with an averment that defendant meant thereby, and was so under- stood, to charge the plaintiff with the crime of peijury, but without any colloquium, is bad. Palmer v. Hunter, viii. 512. 22. Because lexicographers refrain from publishing obscene words, or from giving the obscene signification to words that may be used without conveying an impure idea, it does not follow that they are not English words, and not under- stood by those who hear them, or that chaste words may not be applied so as to be understood in an obscene sense. [Adams v. Harmon, iii, 222, Ovbbeuibd.] Edgar v. McCutchen, ix. 759. 23. Under the new code, (Acts 1848-9, 82, § 10,) in an action of libel and slander, a petition is suflBcient which states that the defamatory matter was published or spoken of the plaintiff, without stating any extrinsic facts for the purpose of showing its application. Steiber v. Wensel, xix. 513. 24. An inuendo in the petition, that the defendant intended by such words to charge the plaintiff with adultery, being Iknnecessary, may be r^ecteA Hudson V. Gamer, xxii. 423. 25. Where slanderous words are spoken falsely of another, it is imneceasary to aver or prove express malice. Ibid. 26. The office of an inuendo is to explain the meaning of the defendant in using the slanderous words ; and this meaning, as averred by an inuendo, is a question of fact for the jury. Birch v. Benton, xxvi. 153. 27. It is too late, after verdict in an action for slander, to object to the insuffi- ciency of the justification set forth in the answer Evans v. Franklin, xxvi. 252. See Pleadijig, 88-90. IV. EVIDENCE. 28. In an action of slander, an allegation that defendant said, " A. took, or stole a sufficient quantity of corn to feed two horses, out of my crib, — he is a thiet" is satisfied by proof that defendant said, " A. had come to the house of defendant, and took his, the defendant's, corn out of his crib, and fed his horses of nights, and would not open his bells, until he, the defendant, had gone to bed." Estes V. Antrobas, i. 197. 29. Evidence that the same words, charged to have been spoken by defendant were spoken by others, and that the charge was a current report, is not admis- sible in mitigation of damages in an action of slander. Anthony v. Stevens, i. 254. 30. Nor is evidence that some person told the witness that plaintiff had done the act charged on him by defendant. Ibid. 31. In an action for slanderous words, the words constituting the slanderous charge must be set out, and proved as laid. Watson, v. M%skk, ii. 29. 462 LIBEL AND SLANDER. V. 32. The sense and manner of speaking the words charged as slanderous, must agree in proof with the averments of the declaration, as well as the substance of the words themselves, and a variance therein is fatal ; but the proof of more words than are laid in the declaration is no variance, provided the context of the words proved, agrees in sense with the words alleged. Cooper v. J/arfokr, iii. 188. 33. And it is not sufficient that they express an equivalent meaning. Berry V. Dryden, vii. 324. Birch v. Benton, xxvi. 158. 34. And the question of variance is for the court to determine. Ibid. 35. Proof of words spoken in the third person will not support an allegation in a declaration of words spoken in the second person, and so vice versa. Wil- liams V. Harrison, iii. 411. 36. In an action of slander for charging plaintiff with having been guilty of fornication, evidence that there was a common report in circulation concerning the guilt of the plaintiff, is inadmissible. Neither can the defendant prove that a third person told him of the report before the time he was charged with speaking the words. Moherly v. Preston, viii. 462. 37. In an action for slander, the defendant, under the plea of not guilty, may prove that the publication of the words set forth in the declaration, was procured by the fraudulent contrivance of the plaintiff, with a view to an action. Suttrni V. Smith, xiii. 120. 38. In an action of slander, where the charge against the plaintiff was for stealing a dollar from one person, evidence thai; he stole that sum from another is not admissible. Self v. Gardner, xv. 480. V. JUSTIFICATION. 39. A plea of justification which alleges that the slanderous words charged in the declaration were spoken on the authority of a third person, and that at the time of the speaking the name of the author was given is sufficient. Church v. Bridgman, vi. 190. _ 40. But to sustain such plea it must be shown that the words were spoken by the person whose name was given as the author. Ibid. 41. A plea of justification in slander, that defendant being asked by one B. of and concerning the words spoken and published, answered and declared that he had heard and been told the same by one S., is bad. Moberly v. Preston, viii. 462. 42. In a plea of justification in slander, that the words were communicated to defendant by a third person, and that he gave the name of his author at the time of speaking the words, the defendant should give a cause of action against such third person, by showing that he spoke the words falsely and maliciously^ and that defendant believed what he heard, and repeated the words on a justi- fiable occasion. Ibid. (See 21 Com. Law Rep., 71.) See Ineka, 43 ; Supea, 6, 27, 29, 30, 36, 37. LIEN. I. 463 VI. CHAEACTEK. 43. Where a party institutes an action of slander, he puts his general character in issue as to the crime or charge imputed to him by defendant ; and evidence on that point may be given by the defendant in mitigation of damages. Anthony v. Stephens, i. 254. 44. Where the witness swore that he had not known the party's character impeached, except in the particular trial, it is the right of the adverse party to inquire of him if he had not known it to be impeached in other cases. Martin V, Miller, iv. 47. See Intra, 46. VII. DAMAGES. 45. The repetition of slanderous words, after suit commenced, may be shown in aggravation of damages. Williams v. Sarrison, iii. 411. 46. It is for the jury to estimate the value of character, and to assess the damages for any injury thereto ; and this court will not interfere with their ver- dict, except in a case of gross and manifest wrong. Fallenstein v. Booths, xiii. 427. 47. Where, in a suit for slander, slanderous words against the plaintiff, and also against the plaintiff's wife, who is not a party to the suit, are charged, and evidence is received upon both charges, and the jury assess entire damages, it will be presumed that some part of the damages was assessed upon the count for words spoken against the wife, although this count was defective, and the judg- ment will be reversed. Johnson v. Bicken, xxv. 580. See Supka, 43. ' See Costs, 34 ;. . . .Criminal Law, 346 ;. . , .Limitations, 10. LIEN. L VENDOR'S LIEN. a. PRBVAIIS OVER SALES. b. ENFORCEMENT. C. WAIVER. n. SUBSTITUTION. EL PRIORITY. L VENDOR'S LIEN. . PREVAILS OVER SALES. 1. The vendor of real estate has an equitable lien on the estate sold for the purchase money remaining unpaid against subsequent purchasers with notice. McKnight v. Brighi, ii. 110. Marsh v. Turner, iv. 253. 464 LIEN, n. 2. A. sold to B. and C. a tract of land^ and executed a deed acknowledging payment of the purctase money. Below the deed and before the certificate of acknowledgment there was a memorandum, purporting to be the act of both, but signed by B. alone, stating that one of the payments was still due, and that the land was bound for it. Before this deed was recorded, B. and C. sold and con- veyed the land to D. — Held, that the memorandum at the foot of the deed was sufficient to charge D., the subsequent purchaser, with notice of the lien. Seott V. McCuUoek, xiii. 13. 3. A. purchased at an administration sale of the property of B. a tract of land subject to the lien of C. as vendor for the purchase money — ITeM, in a suit by C. against A. to enforce the lien, in which it was decreed that the land be sold and the proceeds applied to the payment of the unpaid purchase money, that it was erroneous to decree that out of such proceeds A. should first be paid the amount paid by him at the administration sale. Delassus v. Poston, xxi. 543. b. ENFORCEMENT. 4. A., having purcbased a tract of land, got a bond for title on payment of the purchase money. He then sold his right, and transferred the bond to B. The purchase money being unpaid, ithe lien of the vendor cannot be enforced by a suit in personam against A., nor can any interest in the land be sold under an execution in such suit. The rights of the parties cannot be adjusted without a resort to a court of equity. Broadwell v. Yantis, x. 398. 5. The fact that the vendor had the notes for the purchase money allowed against the estate of the vendee after his death, does not affect their right to resort to the land for payment of the balance of the purchase money. Delasms V. Poston, xix. 425. 6. Nor that the vendors, having the legal t'.tle, requested the administrator of the vendee to procure a 59,le of the vendee's interest in the land, jt. being an equitable interest, where such land was bought at the administration sale, with notice of the lien. Ihid. 1. Where a vendor of land, under a judgment for the purchase money, levies upon the interest of the vendee, and purchases in the same at the sale, he will stand just where he stood before the sale ; the vendee is still entitled to a con- veyance upon the payment of the purchase money. Lumley v. Pobinson, xxvi. 364. 8. But to entitle the vendee, in such case, to a decree "of title, his petition must contain an offer to pay the purchase money due. Ibid. C. WAIVER. 9. As to the vendor's lien for the purchase money of land, and what is or is not a vraiver of it. Delassus v. Poston, xix. 425. 11. SUBSTITUTION. 10. A party cannot acquire a lien upon land purchased by another, by -the voluntary and unauthorized payment of the purchase money fpr susb laud. Truesdell v. Callaway, \i, 606, LIEN. m. 465 m. PRIORITY. 11. The proceeds of land sold by the sheriff, under two executions, both of which were issued on the same day, and placed in the hands of the sheriff at the same time, must be appropriated to the satisfaction of the eldest judgment first ; and a judgment obtained on the first day is older than a judgment obtained on the second day of the same term. (R. S. 1835, 339, §§ 3-5—256, § 19.) Friar v. Ray, v. 510. 12. Though judgments take effect as liens upon land in St. Louis County only from the time an abstract is entered in the Land Court, yet, under the statute, (R. S. 1845, 622, § 3,) when rendered by the same court at the same term, there can be no priority among several judgments. Bunscomh v. Maddox, xxi. 144. 18. A lien upon real estate attaches from the time of filing a transcript of a judgment rendered by a Justice, in the Circuit Court, and will prevail against a deed filed for record at a later hour of the same day. Jones v. Luck, vii. 551. 14. A judgment obtained after a mortgage was executed, but before it was recorded, will prevail against such mortgage, and the purchaser at the execution sale, will hold against the mortgagee, although he had notice of the mortgage at the time of the sale. Sill y. Paul, ym. 419. Beed v. Austin, vl. 113, Frothing- ham V. Stacker, xi. 11. 15. But, under the R. S. of 1845, a bona fide purchaser, who has failed to record his deed until after a judgment is obtained against his vendor, but who causes it to be recorded prior to the execution sale, will hold against the pur- chaser at such sale. Davis v. Ownshy, xiv. 170. Valentine v. Havener, xx. 133, Scott, J., dis. 16. A debtor executed and delivered for record a deed of trust, conveying certain property to secure a specified debt. On the same day the sheriff, by virtue of an attachment, took possession of the same property — Held, in a con- troversy between the attaching creditor and the trustee, that in the absence of any evidence upon the point, the possession of the sheriff is prima facie evidence that he seized the properly at an earlier hour of the day than the deed of trust was delivered for record. Pearce v. Dansforth, xiii. 360. \1. A. held a bond against B. bearing six per cent, interest, secured by a lien on two slaves. Afterwards, one of the slaves having died, for the purpose of better securing his debt, and without any intention of abandoning his lien on the surviving slave, A. took a new bond from B. for the amount of the debt and interest then due, bearing ten per cent, interest, upon which C. was surety, and discharged the former bond — Held, that A. did not thereby abandon his lien on the slave, but that the lien only extended to the amount of the first bond, with six per cent, interest. McDonald v. Hulse, xvi. 503. 18. By virtue of an execution from a State Court, land, then subject to the lien of a judgment of the United States Circuit Court, was sold to A. After the lien of the latter judgment expired, execution issued thereon, by virtue of which the same land was sold to B. — Held, that A. was entitled to the land. Chou- teau V. Nuckolls, XX. 442. See Schools, 5. 30 466 LIMITATIONS. I. See Administration, 94 ; . . . . Agency, 45, 46 ; . . . . Attachment, X ; . . . , Auctioneers, III ;. . . .Boats and Vessels, I ;. . . .Execution, VII; Garnishment, 19 ; . . . . Judgment, V ; Landlord and Tenant, IV ; Mechanics' Lien. LIMITATIONS. I. CONSTRUCTION OF STATUTE. IL WHEN AND UNDER WHAT CIRCUMSTANCES IT BEGINS TO RUN. a. GENERALLY. b. covenant. C. NOTES AND BONDS. d. AGAINST INHABITANTS OP A TOWN. e. SLANDER. f. ADMINISTRATORS. g. ADVERSE POSSESSION. £. EFFECT OF DISABILITIES. ^ i. TRUSTS. in. DOES NOT RUN AGAINST THE STATE. IV. AGAINST WHOM AVAILABLE. V. IN WHAT TIME A BAR— PRESUMPTION OP PAYMENT. VI. EFFECT OF A PROMISE OR ACKNOWLEDGMENT. VII. PART PAYMENT. VIIL WHEN ITS OPERATION IS SUSPENDED. a. BY ACT OP THE DEFENDANT. aa. Concealment. bb. A'bsent and Abscoliding Debtor. cc. Removal from the State where the Contract was made. b. OPEN ACCOUNTS. C. LEGAL PROCEEDINGS. d. COVERTURE. IX. PLEADING. X. ADVERSE POSSESSION. a. OP CHATTELS. b. OP MORTGAGED PROPERTY, C. OF LAND. aa. Actual, bb. Constructive. XI, PRESCRIPTION. I. CONSTRUCTION OF STATUTE. 1. The t6rm "bfeyond sea," as used in the statute of limitations of 1825, (R. S. 1825, 510, § 1,) construed to mean without the United States. ■ [OvERBULttro LIMITATIONS. 11. 467 Shreve v. Whittlesey, vii. 473, and Bedford v. Bradford, viii. 233.] Marvin v. Bates, xiiL 217. FacMer v. FacMer, xiv. 431. Keeton v. Keeton, xx. 530. II. WHEN AND UNDER WHAT CIECUMSTANCES IT BEGINS TO RUN. a. GENERALLY. 2. It is settled that, after the statute of limitations begins to run against a a claim, nothing stops it. Smith v. Newhy, xiii. 159. 3. Where a cause of action accrues abroad, the statute of limitations will not commence running until the party liable to suit comes within this State. The statute applies as well to non-residents as to citizens. King v. Lane, vii. 241. Tagart v. The State of Indiana, xv. 209. 4. Where one of several parties, who were bound by an agreement to pay such assessments as might be made upon them for a specified purpose, failed to pay the asssssment made against him, and they were paid by the others, the statute of limitations did not begin to run to prevent a recovery back until the date of the last payment. Finney v. Brant, xix. 42. b. COVENANT. 5. A covenant to make and deliver a deed, on the demand of the covenantee, is broken by the first refusal to comply with the terms of the covenant, and a right of action accrues immediately thereon, which can only be barred by satis- faction or a release. Kyle v. Hoyle, vi. 526. C. BONDS AND NOTES. 6. The statute of limitations begins to run on a note payable " on demand " from the day of its date. Fadon v. McAllister, i. 662. 7. But on a promissory note from the date of its maturity, and not from the date of its execution, and a plea of the statute must be framed accordingly. Johnson V. Buekner, iv. 624. 8. Under the statute of 1825, the ten years within which actions of debt on bonds and notes must be brought, did not commence running till the act went into effect. Weber v. Manning, iv. 229. d. AGAINST INHABITANTS OF A TOWN. 9. The statute of limitations does not begin to rnn against the inhabitants of a town, until they are incorporated, though under an act of the Legislature, authorizing the trustees of the town to sell vacant and unoccupied lands, and an ordinance of the town, directing the mode of such conveyances, the claims of the occupant may be'l agood ground of compromise. A title under the ordinance must prevail over any length of adverse possession prior to the incorporation of the town. Reilly v. Ckouquette, xviii. 220. 468 LIMITATIONS. II. e. SLANDER. 10. In slander, the cause of action accrues from the time the words were spoken ; and the fact that they did not come to the plaintiflF's knowledge till within the year next before the action was commenced, will not take the case out of the statute. Barnard v. Boulware, v. 454. f. ADMINISTEA^ORS. 11. The statute of limitations begins to run against an. administrator only from the date of the letters granted. Polk v. Allen, xix. 46'7. 12. The statute of limitations begins to run in favor of an administrator and against a distributee from the date of the final settlement and order of distribu- tion. The State v. Blackwell, xx. 97. See Administration, 35, 36, XI. g. ADVERSE possession. 13. The slaves in controversy were originally placed by the plaintiff in the possession of his brother, the defendant's vendor, to become the property of the latter, if the plaintiff never returned from his travels, which he was then about commencing — Held, that the possession, after the long absence of the plaintiff and his supposed death, must be considered to have commenced adversely when ownership was assumed by the brother. Carter v. Poland, xvii. 383. 14. As a general rule the statute of limitations will commence running in favor of an adverse possession from the date of the accrual of a right to dispossess by action the adverse possessor. Per Eichardson, J. Oray v. Qivens, xxvi. 291. 15. A United States survey of the common confirmed to Carondelet was not necessary in order that the statute of limitations might commence running against it in favor of an adverse possession of a portion of said common. Funkhouser v. Langkopf, xxvi. 453. 16. Previous to the passage of the acts of February 6, 1839, (Acts 1838-9, 211, § 2,) and March 1, 1851, (Acts 1850-1, 148, § 1)— the former of which authorized the town of Carondelet to lease, and the latter to dispose absolutely of, its common — it might have maintained an action of ejectment to recover posses- sion of any portion thereof adversely held ; consequently, the statute of limita- tions might have commenced running against it in favor of an adverse possessor. Ihid. See Infra X ;. . . .Husband and Wife 33. h. EFFECT OF DISABILITIES. 17. When the statute of limitations commences running, no subsequent dis- ability will stop it. Landes v. Perkins, xii. 238. • 18. As cumulative disabilities under the statute of limitations are not allowed, where a right to sue accrues in favor of an infant female, the statute begins to run when she comes of age, although she had previously married. Where two disabilities exist when the right to sue accrues, (infancy and marriage, for LIMITATIONS. IV. 469 instance,) the statute does not begin to run until both are removed. Keeton v. Keeton, xx. 530. See Estoppel 18. 19. The trusts not reached or affected by the statute of limitations, are those technical and continuing trusts that are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity. Johnson V. Smith, xxvii. 591. 20. K a person assuming to act as guardian for another without any legal authority so to do, should receive moneys to be appropriated to the latter's benefit, the statute of limitations would cominenoe to run immediately, unless the existence of a disability should prevent it. Ibid. See Constable 12. m. DOES NOT RUN AGAINST THE STATE. 21. The statute of limitations does not run against the State unless expressly named therein. Parks v. The State, vii. 194. TTie State v. Fleming, xix. 607. 22. But this rule does not apply to suits on official bonds, brought in the name of the State, for the use of individuals. The State v. Pratte, viii. 286. IV. AGAINST WHOM AVAILABLE. 23. The statute of limitations may be a bar to a debt contracted in a fiduciary capacity. Benton v. Lindell, x. 557. 24. The statute of limitations runs against executors and administrators. Milan V. Pemherton, xii. 598. 25. Where an administrator, at a fraudulent sale of negroes made by him, purchases them, and afterwards, openly and notoriously, with the knowledge of the heirs, asserts title in himself, the statute of limitations is a bar to a bill brought by the heirs for relief. Keeton v. Keeton, xx. 530. 26. The statute of limitations runs against municipal corporations and other authorities established to manage the affairs of the political subdivisions of the State, the same as against private individuals. The rule that time does not run against the State, does not apply to them. St. Charles County v. Powell, xxii. 525. 27. The sums received by the several counties of this State out of the " road and canal fund," under the several acts of the legislature, (R. S. 1835, 553 — Acts 1836-7, 108,) belonged exclusively to the counties, though affected with a trust for local purposes ; and the statute of limitations would run against the counties on bonds executed in their favor by persons to whom the fund had been loaned. Ibid. 28. And the fact that the obligor of such a bond became a Judge of the County 470 LIMITATIONS. VI. Court, before the term of the limitation expired, will not remove the statute har. Ibid. See Gaenishment 32. V. IN WHAT TIME A BAK— PRESUMPTION OF PAYMENT, 29. I'he action of covenant is limited by the statute (R. S. 1835, 393, § 1 — 396, § 2) to twenty years. Pennington v. Oastleman, vi. 257. [But by the B. S. 1855, 1047, § 2, covenant is limited to ten years.] 30. Prior to 1845, (R. S. 1845, ^21, § 16,) there was no statute limiting the time within which an action of covenant might be brought. Maeder v. City of Carondelet, xxvi. 112. 31. Under the statute, (R. S. 1845, 714,) no lapse of time short of twenty years from the time of the rendition of a judgment of this or another State would bar an action on such judgment. Manning v. ITogan, xxvi. 570. 32. To extinguish or bar an equity of redemption, where lalpse of time alone is relied on, twenty years must have elapsed since the last recognition of the mortgage. McJVair v. Lott, xxv. 182. 33. The presumption of payment of a judgment after the lapse of twenty years, raised by the common law, continues unaffected by the statute of 1835. (R. S. 1835, 396, § 1.) That act is only cumulative. Clemens v. WilMnsoti, x. 97. 34. So, also, in regard to bonds. Smith v. Benton, xv. 371. VI. EFFECT OF A PROMISE OR ACKNOWLEDGMENT. 35. To take a case out of the statute of limitations there must be either an express promise to pay or an acknowledgment of an actual subsisting debt oA which the law would imply a promise. Buckner v. Johnson, iv. lOO. 36. An acknowledgment by the defendant that the note sued on was given by him and had not been paid, and that he did not intend to pay it because it was given for land to which the payee had no title, is not sufiScient. Ibid. 37. Nor is it sufficient that the defendant said to the witness, in a conversa- tion in relation to the. subject matter of the suit, " that he (the defendant) must have some money or the plaintiff would sue him ;" nor would an acknowledg- ment by the defendant that the plaintiff had not received the amount of hfe demand, have that effect. McLean v. Thorp, iii. 215. Same case, iv. 256. 38. But it is sufficient that the party acknowledged the indebtedness and that it remained unpaid, without any expression of willingness to remain bound. Mliott V. Leake, v. 208. 39. So an unconditional promise to renew certain notes which the plaintiff held against the defendant, but which were not then present, nor the amounts of them stated, is sufficient to take them out of the statute of limitations. Bdvis V. Herring, vi. 21. 40. And a promise by a married woman to pay money borrowed by her as agent for her husband, will have the same effect, Burk f. Howard, xiii. 241, LIMITATIONS. Vm. 471 41. But under the statute of 1845, (R. S. 1845, 120, § 13,) the promise or acknowledgment must be in writing or it is of no eflFect. Blackburn v. Jackson, xxvi. 308. (And so in the revision of 1855, 1052, § 12.) See Peacticb, 131. VII. PART PAYMENT. 42. Payments made by one of several obligors in a bond, will prevent the statute from running as to all. Fer Napton, J. Callaway County Court v. Craig, ix. 836. 43. And so payments of interest by one of several joint obligors in a bond, before the statute attaches, removes the bar as to all. McBride, J., dis. Craig V. Callaway County Court, xiL 94. VIII. WHEN ITS OPERATION IS SUSPENDED. a. ^T ACT OF THE DEFENDANT. aa. Concealment. 44. The concealment described in the statute, (E. S. 1835, 396, § 8,) which prevents its running, need not be with a fraudulent intent; any concealment which prevents the plaintiff from bringing his suit is sufficient. Sarper v. Pope, ix. 398. 45. A party living in Illinois, purchased goods and had them shipped to his place of residence, and then immediately moved to Clay county, in this State, remained there a short time, and then removed to St. Louis county, but did not inform his creditor of his place of residence' — the creditor used proper diligence to discover his residence, and did not find hvai—Held, to be such a concealment as to prevent the statute from running. Ibid. 46. Where the defendant obstructs the bringing of an action of trover by con- cealing the property converted, so that the plaintiff does not come to a knowledge of it for five years next after such conversion, the statute does not run, and the claim is not thereby barred. Wash, J., dis. Arnold y. Scott, ii. 13. 47. Where a defendant, by improper conduct, prevents the bringing of an action, he is not within the protection of the statute. Smith v. Newby, xiii. 159. 48. But where there is no fault on the part of the defendant, the statute applies, and will protect him, although the plaintiff was in ignorance of his rights and the facts on which they rested. Thus, where a slave was stolen, and subse- quently purchased and held in good faith by successive purchasers for more than five years, the claim is barred. It is not the policy of the law to interpose between parties who were equally innocent. Ibid. 472 LIMITATIONS. VHI. bb. Absent and Absconding Debtor. 49. Absence of a plaintiff from the State does not prevent tbe statute from running in favor of the defendant, who is a resident in the State. Smith v. Newby, xiii. 159. 50. Where a party goes to California with the intention of returning, leaving his family and property, the statute of limitations is not Suspended as to him during his absence. Qarth v. Robards, xx. 523. 51. The exception in the statute of limitations of 1845, (E. S. 1845, 717, § 7,) does not apply where the debtor is a non-resident when the cause of action accrues, but only where, being a resident, he is absent. [Tagart v. The State of Indiana, xv. 209, commented upon.] Thomas v. Black, xxii. 330. < 52. If, at any time within the period allowed for commencing an action, the debtor does any act by which the creditor is prevented from bringing his suit, as by absconding, then the debtor loses the benefit of the time the statute has been running. Welson v. Beveridge, xxi. 22. CO. Removal fr(mi the State where the Contra/:t was Tnade. 53. The remedy on a contract is governed by the lex fori; and the removal of a party from the State where the contract was made will not, of itself, stop the running of the statute of limitations. Bobb v. Shipley, i. 229. Cartmill v. Hopkivs, ii. 220. King v. Lane, vii. 241. 54. In a case arising under the proviso in § 1 of the statute, (R. S. 1825, 510,) it was held, that the statute of limitations could not be pleaded in behalf of a debtor who removed from this State to Scotland, where he remained four years and then returned to this State. The bringing and maintaining an action for the debt was, in that case, " obstructed," within the meaning of the proviso, and that, too, although the debtor might have left behind him in this State property enough to satisfy the demand against which the creditor might have proceeded by attachment. Wash, J., dis. Hancock v. Heagh, i. 678. b. OPEN ACCOUNTS. 55. Where there are mutual running accounts, and the last item on either side is not barred by the statute, the whole account is saved from its operation. Penn v. Watson, xx. 13. C. LEGAL PROCEEDINGS. 56. A suit in equity becomes lis pendens from the filing of the bill, so as to prevent the bar of the statute, if the issuing of the summons was delayed by agree- ment of counsel. Wright v. Pratt, xvii. 43. d. COVERTURE. 57. A right of entry or of action for the possession of land may accrue to a married woman, and where such right of entry accrued before December 1, 1835, an action may be sustained within twenty years after the woman becomes discovert. Reaume v. Chambers, xxii. 36. LIMITATIONS. X. 473 IX. PLEADING. 58. In civil suits, the party, in order to avail himself of the statute of limita. tions, must plead it. Tramell v. Adam, ii. 155. Benoist v. Darby, xii. 196. 59. Which he cannot do by way of demurrer. Smith v. Dean, xix. 63. 60. At the time a note was executed, suits upon that class of demands were limited to five years, but, before the note matured, the limitation was changed to ten years — Held, that a plea of non-assumpsit within ten years was good. Davis V. Hascall, iv. 58. 61. If a complainant relies upon a disability as exempting him from the oper- ation of the statute, he should set it up in his bill. Keeton v. Keeton, xx. 530. 62. To a plea of the statute of limitations, the plaintiff replied that the defend- ant removed from the State where the debt was contracted before the cause of action accrued, his domicil " then and theretofore being beyond seas " — Held, that the replication tendered an immaterial issue, and did not bring the case within the proviso of the statute. Smith v. Bogliolo, v. 344. See Pleading, 59, 160, 161. X. ADVERSE POSSESSION. a. or CHATTELS. 63. It is well settled that the five years' possession which gives title under the statute of limitations, and enables a defendant to maintain his possession, or a plaintiff to sustain his action, must be an adverse possession. (See E. S. 1835, 393, § 2.) Smoot v. Wathm, viii. 622. b. OF MORTGAGED PROPERTY. 64. In a suit by the mortgagee to redeem, the statute of limitations will not avail the mortgagee unless he has been in actual possession of the land. Pay- ment of taxes on wild land is not equivalent to possession. Bollinger v. Chou- teau, XX. 89. 65. Where a mortgage was given on wild and unimproved land, of which neither party was in possession, there being evidence that the debts were unpaid, the lapse of thirty years is no bar to a foreclosure. Chouteau v. Burlando, xx. 482. C. or LAND. aa. Actual. 66. The act of February 2, 1847, to quiet vexatious land litigation, (Acts 1846-7, 94,) is prospective only in its operation. Paddleford v. Dunn, xiv. 517. 67. What will constitute an adverse possession of land under the statute of limitations must be determined by the circumstances of each case, and a less weight of evidence is required where the entry is with, than where it is without, color of title. The acts of ownership exercised must be visible and notorious. 474 LIMITATIONS. X. and of such a nature as indicate a notorious claim of property in the land. Dra- per V. Shoot, XXV. 197. 68. In determining the question of adverse possession, the payment of taxes by the person asserting title by adverse possession is a fact that may, with other circumstances, be considered by the jury. Ibid, 69. Twenty consecutive years adverse possession of land confers upon th^ possessor an absolute title against all persons not excepted by the terms of the statute of limitations. Biddle v. Mellon, xiii. 335. Blair v. Smith, xvi. 273. 70. And a possession of less than twenty years will prevail against a subse- quent possession of less than twenty years, provided the former was under a claim of right, and has not been abandoned. Crockett v. Morrison, xi. 3. See Smith V. Lorillard, 10 John, R., 355. 71. To recover upon a title acquired by an adverse possession for twenty years, it is not necessary that the clairaant's possession, or that of those under whom he claims, should be connected with the possession of previous occupants by instruments in writing ; the continuity of the possession may be shown by any testimony that is legitimate and pertinent. Menkens v. Blumenthal, xxvii. 198. 72. Adverse possession, to constitute a bar, must be uninterrupted, Harrison V, Cachelin, xxiii. 117. 73. In order to constitute such a continuous adverse possession in successive occupants as will amount to a bar under the statute, it is necessary that there should be some privity between such occupants. Ohouquetie v. Barada, xxiii. 331. 74. In 1820 A. conveyed to B. all his interest in a tract of land, who soon after toot possession, lived on and cultivated it for eight or ten years, and then removed to another State. A part of the time after that he had tenants on it, and when not tenanted, had an agent residing in the neighborhood to rent it, to pay the taxes, to superintend aijd control it, and to protect it from trespassers. B, always paid the taxes, and no other person had paid taxes on it — Held, that by such adverse possession he acquired a title after the lapse of twenty years. Williams v. Done/an, xx. 186. And see Menkens v. Ovenhouse, xxii. 70. 75. Where a miooT femme covert joined with her husband in a conveyance of land belonging to her — Held, that possession under the deed was adverse to_ any interest in the land subsequently acquired by the wife, and adverse to all others, JVorcum v. Gaty, xix, 65. Norcum v. Sheahan, xxi. 25. bb. Constructive. 76. Although as a general rule a party in actual possession of part, under color of title, is deemed in possession of the whole, yet this rule does not apply as against the real owner, who is also in possession of part, claiming the whole. The only adverse possession as against him is actual possession. Cottle v. Sydnor, x. 764. 77. One claiming a portion of a tract of land can derive no assistance from the occupation of another portion of the same tract by another person claiming under the same grantor, in establishing an adverse possession in himself, and him under whom he claims, Robert v, Walsh, xix. 452. LIMITATIONS. XI. 475 IB. Where A. conveys to B. contiguous lots by separate granting words, descriptions, &c., and B. builds a house upon one of the lots, and makes an enclosure about the same, and, through mistake or ignorance of the boundaries, and without any design of taking possession of it, extends this enclosure over upon the other lot, so as to embrace a small portion of it — Held, that this is not a possession within the meaning of the statute. (R. S. 1845, 115, § 1.) Although the actual detention exists, there is wanting the intention on the part of the pos- sessor which is necessary to constitute a civil possession. Cutter v. Wadding- ham, xxii. 206. '79. Quaere. — Whether one who has taken possession of a small portion of a large lot or tract of land, under a deed, not of the lot, but merely of whatever interest the grantor may be found to have in it, has, without anything more, a possession extending over the whole lot, within the meaning of the statute. Ibid. 80. Where two tracts of land interfere with or lap on each other in part, and each proprietor is in possession, possession of the lapped part by him who has the inferior title extends no further than the land actually occupied by him. The rule that the possession of part is possession of the whole does not apply to such a case, and the constructive possession of him who has the inferior title, will not prevail over the legal constructive possession of the true owner, but will be con- fined to the part actually occupied by him who has the inferior title. McDonald V. Schneider, xxvii. 405. 81. Actual possession of part of a tract of land, under claim and color of title to the whole, is constructive possession of the whole as against all persons not having title ; as against such person in possession of part, the constructive pos- session of the residue yould lie in the true owner. Griffith v. Schwenderman, xxvii. 412. 82. Where there are two tracts of land, and the one interferes with or laps on the other, the statute of limitations has no operation against him who has the best right, unless he who has the inferior right takes an adverse, exclusive, actual possession. In such cases the rule that possession of part is possession of the whole does not apply ; and the statute only protects the intruder, or him having the inferior title, to the extent of his actual occupancy ; and on being in the actual occupancy of part of the tract of him having the better title, he has no constructive possession as to the part not occupied ; but the legal constructive possession of the true owner will prevail over the constructive possession of him having the inferior title. Ibid. See Master and Slave, 1 ;. Practice, 135, 186 ;. . . .Supra, 13-16. XI. PRESCRIPTION. 83. The statute of limitations passed in 1807, (1 Ter. L. 144,) operated a repeal of the Spanish law on the subject of prescription. Little v. Chauvin, i. 626. 84. And the territorial statute of December 17, 1818, (1 Ter. L. 598,) abolished all prescriptions. Landes v. Perkins, xii. 238. 476 LOAN OFFICE.— LOCAL DECISIONS. 85. Under the civil law a title by prescription could be apquired only through lopg continued, peaceable, uninterrupted, unequivocal public possession, as master of the soilf-and not on sufferance or permission, and then not against the govern- ment. Lajoye v. Primm, iii. 529. 86. A free and uninterrupted public possession of land for a period of less than thirty years would not avail under the civil law to give title by prescription, as between individuals, unless it was fair and formal in its origin. Ibid. See Administration, XI ; . . . . Chancery, 66-68 ; . . . . Convbtancbs, 6] ; . . . . Justice of the Peace, 20 ; . . . . Mechanic's Lien, 6, 7 ; . . . . Public Lands, 169, 170, 190-192. LOAN OFFICE. 1. In an action on a covenant to pay a certain sum in "Loan Office Certifi- cates," the defendant may show the value of the certificates at the time the debt became due, as the criterion of damages for the non-delivery thereof. Thomas V. Starling, i. 583. See Laws, 67, 68. LOCAL DECISIONS. I. JEFFERSON CITY. IL PALMYRA. III. NORTH MISSOURI R. R. CO. IV. HANNIBAL AND ST. JOSEPH R. R. CO., V. DUNKLIN COUNTY. VI. CITY OF FAYETTE. VII. PLATTE CITY. Vin. BANK OF EDWARDSVILLE. EX. MISSOURI STATE MUTUAL FIRE AND MARINE INS. CO. X. ST. LOUIS MUTUAL FIRE AND MARINE INSURANCE CO. XI. TOWN OF LOUISIANA. LOCAX DECISIONS. IV. 477 I. JEFFERSON CITY. 1. The charter of Jefierson City, (Acts 1838-9, 307, §§ 7, 12,) gives to the Mayor and Board of Aldermen no power to pass an ordinance for the punish- ment of indictable oflFenses. Scott, J., dis. Jefferson City v. Oourtmire, ix. 683. II. PALMYRA. 2. The act incorporating the town of Palmyra, (Acts 1844-5, 1.55, § 10,) which gives the trustees power, if the owner or occupant of lots adjacent to the streets of said town should fail to pave the same as directed by ordinance, to pave them and recover the full expense thereof from such owner or occupant, is constitu- tional. And such suit is properly brought in the name of the corporation. Inhabitants of Palmyra v. Mortem,, xxv. 593. m. NORTH MISSOURI R. R. CO. 3. A proceeding instituted in the Circuit Court by the North Missouri Rail- road Co., under its charter, (Acts 1850-1, 485, §§ 7-10,) to obtain a condemna- tion rf land upon which it had located its road, is a proceeding in which the court acts in its judicial capacity, and an appeal lies to the Supreme Court from its final judgment. North Missouri B. B. Co. v. Lackland, xxv. 515. Same v. Beyrml, xxv. 534. 4. The company at any time before final judgment may change the route of its road and dismiss such proceedings. Ibid. Ibid. 5. An allegation in a petition in behalf of the North Missouri R. R. Co., for the condemnation of the land upon which its road was located, that the road passed hills and valleys, and that a strip of one hundred and fifty feet in width was necessary for its construction, is not traversable. North Missouri B. B. Co. V. Gott, xxv. 540. 6. In a proceeding in behalf of the North Missouri R. R. Co. to condemn land, three commissioners were, in accordance with the prayer of the petition, appointed to assess the damages — Held, it not appearing that the company had , accepted the provisions of the general railroad law, (Acts 1852-3, 128, §§ 14, 15,) requiring the appointment of five commissioners, &c., that the proceeding was properly conducted under their act of incorporation, (Acts 1850-1, 485, §§ 7-10.) Ibid. IV. HANNIBAL AND ST. JOSEPH R. R. CO. 7. Under the charter of the Hannibal and St. Joseph Railroad Co., (Aote 1846-7, 156,) a writ of error does not lie to the action of the Judge of the Circuit Court upon the report of the viewers appointed to assess damages to 478 LOCAL DECISIONS. VIII. individuals over whose land the road is run. The judgment entered upon the report is final. Hannibal and St. Joseph R. R. Oo._ v. Morton, xx. 70. 8. Where, in proceedings instituted by the Hannibal and St. Joseph R. R. Co. to obtain the eondemnation of land upon which said railroad had been located it was stated, in the report of the reviewers, that before proceeding to examine the damages, they toot the oath prescribed by the statute, the oath not being set forth — Held, it not appearing that any objection was made to the report on this ground, that the recital in the report was sufficient to show that the oath had been taken. Hannibal and St . Joseph R. R. Co. v. Morton, xxvii. 317. 9. It is not good ground for quashing the proceedings in such case that the Tecord does not show that the viewers were citizens of the county ; nor that the damages awarded were inadequate. Ibid. See Trespass, 48. V. DUNKLIN COUNTY. 10. The District County Court within and for the county of Dunilin had power to transfer alternate sections of the " swamp lands " of Dunklin county to the Cairo and Fulton Railroad Company, in payment of a subscription to the stock of that company, made by said County Court; Dunklin County v. County Court, xxiii. 449. VI. CITY OF FAYETTE. 11. The charter of the city of Fayette, (Acts 1855, 212, § 11,) conferring upon the Ma,yor the same jurisdiction in cases arising in that city that Justices have in their respective townships, prevents him from entfertaining jurisdiction of an action for a penalty exceeding ninety dollars imposed by an ordinance of the city. City of Fayette v. Shafroth, xxv. 445. VII. PLATTE CITY. 12. The act incorporating the town of Platte City, (Acts 1844-5, 97,) did not ! divest the County Court of Platte county of its jurisdiction over that p^rt of ^ road lying within the corporate limits of said town. Baldwin v. Green, x. 410. VIII. BANK OF EDWAEDSVILLE. 13. The charter of the ,Bank of Edwardsville, Illinois, does not give to the president and directors of the bank authority to asgign not^s made payable to them. Hamtramcis Y. Bank of Hdwardsville, u. 169. LOTTERY. 479 IX. MISSOURI STATE MUTUAL FIRE AND MARINE INS. CO. 14. As to the rights of the Missouri State Mutual Fire and Marine Insurance Co., under § 11 of charter, (Acts 1848-9, 381,) relating to assessments for pay- ment of losses, 50. A mortgagee is not bound to notice the partition of the mortgaged premises in a suit instituted for that purpose. If, however, in a partition suit, in which he is a party defendant in right of his wife, he should set up his mortgage, and an issue joined with respect to the existence of the mortgage should be determined against him, he would, it seems, be bound by the judgment. If no more appears from the record than that the mortgage was set up by the mort- gagee, that issue was taken as to its existence, and that no notice was taken of the mortgage in the interlocutory or final judgments, the record would furnish only prima facie evidence that the question of the existence of the mortgage was passed upon ; it might be shown by parol evidence that the question was never actually submitted to or passed upon by the court. Sull v. Lyon, xxvii. 570. 51. Where, during the pending of a suit to foreclose a mortgage, third persons become interested in the premises by purchase, it is not necessary, in order to authorize a decree against them in respect of the interest acquired by them, to make them parties to the suit ; they may be made defendants on their own motion under the statute, (R. S. 1855, 1089, § 6.) Ibid. 52. An action to foreclose a mortgage, given to secure a promissory note, is not an action founded on a bond bill or note within the statute, (R. S. 1865, 1280, § 11,) consequently an interlocutory judgment rendered therein at the return term, cannot be proceeded on to final judgment at such return term. Dean v. Holly, xxvi. 186. See Error, 7 ;. . .Jurisdiction, 20 ; . . .Limitations, 65 ;. . .Scirk Facias, 6 ; Supra, 30. Vni. SCIRE FACIAS. 53. After judgment of foreclosure of a mortgage, it is too late to urge against the revival of the judgment by scire facias that the mortgage was voluntary. Biley v. McCord, xxiv. 265. IX. SALE. 54. Where the proceeds of a sale of mortgaged property are insufficient to pay the mortgage debt, the debtor is personally liable for the unpaid balance. Scott V. Jackson,, ii. 104. 55. Where a mortgagee, after taking the necessary steps pointed out by our statute, forecloses a mortgage, a purchaser under the foreclosure takes the title, divested of all rights and interests derived from the mortgagor subsequent to the mortgage. Mullanphy v. Simpson, and Russell v. Mullanphy, iv. 319. 56. A deed of mortgage, with a power of sale in the mortgagee, is valid, and a sale under it, made in pursuance of the power, vests a valid title in the pur- chaser. Napton, J., dis. Carson v. Blakey, vi. 273. Destrehan v. Scudder, a. 484. 600 MORTGAGE. X. 57. Where a mortgage creditor, uader the act relating to mortgages, eelU the entire mortgaged premises in satisfaction of a part of his deht, he cannot after- wards sell the same land, in the hands of a purchaser, to satisfy the unpaid Ijalance of his mortgage debt, which was not matured at the first sale. Binfwi v. Smith, vii. 489. 58. Property was sold under a judgment of foreclosure — Hdd, that the title of the purchaser could not be disputed upon the ground that the instrument foreclosed was not an ordinary mortgage, and that the judgment was erroneons. Miles V. J)cf,vis, xix. 408. 59. Where there was a recorded mortgage with a power of sale, and an unre- corded agreement between the parties thereto, that the sale should be deferred in consideration of the pajTnent of interest— ^«Z(i, that an innocent purchasar at the sale under the mortgage deed was not affected by the unrecorded agree- ment. JBeaiie v. Butler, xxi. 313. 60. Where property was advertised to be sold under a power of sale in a mort- gage, at " the town of St. Joseph," which town was small, and nearly sSL the business was done on or near the spot where the sale really tool; place, and there was no sacrifice of the property proved to have grown out of the vagueness of the description, it was held, that the place of the sale was suffioieutiy described. lUd. 61. The death of the mortgagor does not suspend the operation of the power of sale given in the mortgage. Ibid, 62. The possession of the mortgagor or his tenant, is in no way notice to a purchaser of an existing agreement between the mortgagor and mortgagee, hy which the latter defers the time of taking possession, and proceeding to act under the power of sale. Ibid. See Lien, 14. J X. REDEMPTION. 63. A court of equity will permit a subsequent m 155. Where an excuse is pleaded for the non-performance of a covenant it is proper for the plaintiff to give evidence negativing the plea. Ourl v. Mann, iv. 272. 156. The court may in its discretion admit evidence after the cause has been closed. Pearcey. Detnsforth, xiii. 360. 157. And even after the argument has commenced, a witness may be recalled to supply an unintentional omission in the evidence. Hood v. Mathis, xxi. 308. 168. So after the plaintiff, in an action against the indorsers of a promissory note, has closed his testimony and an instruction has been moved on it, it is not error to permit him to recall a witness to show the character of the notice given to the indorsees. Johnston v. Mason, xxvii. 611. 159. The plaintiff, in a suit for wages, proved the services rendered, and closed his case, but omitted to prove their value. Immediately afterwards he offered to prove their value by witnesses in court; — Held, that the court should have permitted him to do so. Owen v. , O'Reilly, xx. 603. 160. After a motion for judgment of non-suit, because letters of administration have not been read, the plaintiff having stated that his case was closed, the court may permit the letters to be given in evidence. Huston v. Becknell, iv. 39. 161. Where, after the close of the plaintiff's evidence, the defendant asked and the court gave an instruction, which defendant announced was sufficient to dispense with proof on his part, and the court, after argument of plaintiff's counsel, gave different instructions, it is an unsound exercise of discretiQB for the PRACTICE. Vni. 561 court to refuse the defendant leave to introduce his testimony, and a new trial will he granted for that cause. Moreland v. McDermott, x. 605. 162. Where a fact may be shown in dififerent ways, the party may select his own mode of proo£ The State v. Fulkuson, x. 681. 163. Where a document is admissible in evidence for any purpose, it should not be excluded, it devolves on the opposite party to call on the court to explain to the jury how far and for what purpose it is evidence. Allen v. Moss, xxvii. 354. 164. If relevant testimony with respect to an alleged written contract, is in- troduced by either party, the other party is entitled to have the contract read in eridenoe. Newnum v. Mays, xxvii. 520. bb. Objections to. 165. It is not suflScient to object generally that testimony offered is illegal and incompetent, some specific objection to its admission must be pointed out. Clark V. Conway, xxiii. 438. Orimm v. Gamache, xxv. 41. cc. Agreements in respect of. 166. A written stipulation that the testimony of a witness on a former trial may be read in the trial of a cause, is a general stipulation that the same testi- mony may be read in any future trial of the same cause, nor is such stipulation of a nature to require its being filed in the cause. Carroll v. Paul, xix. 102. e. ARGUMENT. 167. Where the onus probandi lies upon the defendant, it is his right to open tie case to the jury ; but this is a matter within the discretion of the court. Wade V. Scott, vii. 509. Tibeau v. Tibeau, xxii. 11. 168. The court has discretionary power to limit the time to be occupied by connsel in addressing the jury and the Supreme Court will not interfere unless this discretion has been abused. Scott, J., dis., holding that the time could not be limited in advance. The State v. Page, xxi. 257. Vm. TRIAL OF QUESTION OF FACT BY THE COURT. a. IN WHAT CASKS. 169. It is not erroneous to submit a cause to a jury, no objeciion being made at the time, after it has been submitted to the court without a jury. McAllister V. Mullanphy, iii. 38. 170. In proceedings against a constable for delinquency in not returning an execution, the trial must be by the court, and it is error to submit the cause to a jury. Eart v. RoUnett, v. 11. Hart v. Spence, v. 11. 1 ( 1. The statute, which authorizes the court to try issues of fact where neither party requires a jury, (R. S. 1835, 463, § 15,) applies only to cases in which both parties appear in court. Sutton v. Clark, ix. 555. Swearingen v. Knox, x. 31. Benton v. Lindell, x. 567. 36 662 PRACTICE. VIII. b. FINDING OF FACTS. aa. Generally. 172. Where a cause is submitted without a jury, judgment must show that all the issues have been passed upon. Russell v. Barcroft, i. 514. 173. Under the practice act of 1849, the distinct questions of law or fact, upon which a reyiew is sought must be stated in the application, and a case made in which the material evidence shall be set forth, since, otherwise, the judgment will be affirmed if the facts found" warrant the conclusions of law. Skinners. Ellington, xv. 488. 174. Where a cause is tried by the court, the facts must be found and set forth. MarmadukeY. McMasters, xxiv. 51. 175. And cover all the issues made by the pleadings, otherwise it is insnflBcient. Downing v. Bourlier, xxi. 149. 176. And warrant the conclusions of law and the judgment rendered thereon. The Supreme Court will not, from the facts found, infer the existence of other facts. Fearce v. Burns, xxii. 577. Fearce v. Roberts, xxii. 582. The State V. Ruggles, xxiii. 339. 177. But the court need not set out in its finding, the facts admitted in the pleadings. Carlisle v. Mulhern, xix^ 56. 178. The facts, and not the evidence, should be set out. ■ Jdvens v. Harris, XX. 262. Murdoch y. Finney, xxi. 138. Sutter v. Streit, xxi. 157. 179. And the facts found must be those in issue. Allison v. Barton, xxiv. 343. 180. Where there is a dispute as to the legal effect of the facts found, the court should find the facts upon which either party claims that the issue is maintainable. Farrar v. Lyon, xix. 122. 181. The finding should state explicitly whether the defendant was affected with notice of the fraud of those through whom he claimed title, if notice of such fraud is material. Chouteau v. Nuckolls, xx. 442. 182. A judgment for pi aintifi" will not be reversed for an insufficient finding of facts, if the matters set up in the answer do not constitute a valid defense. Henderson v. Henderson, xxi. 379. 183. The finding of facts is a part of the record, and need not be preserved in a bill of exceptions. Sutter v. Streit, xxi. 157. 184. Under the revised code of 1855, no finding of facts is necessary when a cause is tried by the court. The old practice in such cases is now revived. Kurlbaum v. Roepke, xxvii. 161. 185. A finding of facts by the court in a suit instituted since the revised code of 1855 went into effect, being unauthorized, forms no part of the record of the cause, and will not be referred to in the Supreme Court for any purpose. Martin V. Mtrtin, xxvii. 227. Brosius v. McQaugh, xxvii. 230. 186. A finding by the court that possession has been held adversely, is eqtii- valent to a finding that the possession has been held under a claim of title. Chouquette v. Barada, xxiii. 331. PRACTICE. Vin. 563 ' bb. On Appeal from, County or Probate Court. 187. Under the code of 1849, a finding of facts is necessary in causes appealed from a County or Probate Court. Walsh v. Edmonson, xix. 142. Whyte V. Bennett, xx. 262. Foster v. Mucker, xxvi. 494. cc. On Appeal from Justices. 188. No finding of facts is necessary in the trial of appeals from Justice's courts. Maase v. Stevens, xviii. 476. SkJcles v. Patterson, xviii. 479. Clemens y. Broomfield, xix. 118. Boyle v. Skinner, xix. 82. Clohecy v. Pagan, xx. 453. Terrellv. Hunter, xxi. 436. Olashy v. Prewitt, xxvi. 121. dd. On Inquiring of Damages. 189. Nor upon an inquiry of damages after a judgment by default. Hubhell y. Western, xviii. 604. ffaies v. Clavadetscher, xix. 125. Loudon v. iTiwy, xxii. 3.S6. See Infra, 330 ; Supra, 37. C. FACTS AGREED. 190. The parties to a suit may agree to the facts of the case, and submit them to the court to declare the law arising on such facts. But they will not be allowed to agree on a fictitious statement of facts not in the cause, and thus obtain the opinion of the court on matters wholly disconnected with the suit. Bhir V. State Bank of Illinois, viii. 313. 191. An agreed case stands in lieu of a special verdict, and the court pro- nounces the conclusion of law, as if the same facts had been found by special verdict. The parties may agree to certain facts involved in a case, while they dispute other matters of fact on either side. In such case, the agreement is used before the tribunal which tries the question of fact, as evidence concluding the parties, so far as they have agreed, but in that case, the judgment will be upon the finding of the facts, and not upon the agreed case. Munford v. Wilscm,, XV. 540. 192. Where under the new code, (Acts 1848-9, 95, Art. XX,) a statement of facts is agreed upon by the parties, no finding of facts is necesary. White v. Walker, xxii. 433. d. EVIDENCE. 193. On an issue to the court, upon a plea of payment, it is no objection to a finding for the plaintifi' that the bond sued on was not read, since it was in the possession of the court and its execution was not denied. Armstrong v. Prewitt, y. 476. 194. Where a cause is tried by the court without a jury, and evidence is offered to prove a fact in issue, and after having been seen and examined by the court, is ruled out as inadmissible, this will be regarded as equivalent to declaring the evidence thus excluded insufficient to establish the fact sought to be proved thereby. Tlhsdell v. Cunmngham, xxvi. 385. 564 PRACTICE. X. e. INSTRUCTIONS. 195. Where the cause is submitted to the court without a jury, the safer course is to first declare the law, and then find the issue of fact, so that an excep- tion in matter of law may be clea,rly understood. Piercifield v. Snydep, xiv. 583, 196. Upon the trial of a question of fact by the court, under § 2 Art. XV, of the practice act of 1849, it is inappropriate and useless to ask instructions. It is the duty of the court to find the facts and pronounce the law upon them. If the facts found do not warrant the conclusion of law, the judgment is erroneous. Gobin V. Hudgens, xv. 400. Clause v. Maguire, xvii. 158. 197. Where a cause is tried by the court sitting as a jury, it is not erroneous to refuse instructions asked by either party to the suit. Wilbur v. Clark, xxii. 503. f. JUDGMENT. 198. Where a cause is submitted to the court, a judgment rendered, generally, without finding the issues between the parties, is erroneous. Ferguson v. Seawell, i. 256. 199. Where issues of fact are submitted to the court, they must be found for one party or the other, and a judgment without such finding is erroneous. Lee V. Collins, i. 587. IX. TRIAL BY REFEREES. 200. A report of a referee, to whom a cause had been referred, under the new code, (Acts 1848-9, 91, Art. XVI,) upon the whole issue, must be received in the same manner as if the cause had been tried by the court, and the court had made a finding of the facts. Maguire v. McCaffrey, xxiv. 552. 201. Where it is apparent from the face of the report of a referee that his decision is erroneous, the judgment of the court confirming the report will be erroneous, and the party aggrieved is entitled to a reversal thereof, although no motion for a review be filed within the time required. Shore v. Coons, xxiv. 556. 202. Where the trial of an issue of fact under the new code, (Acts 1848-9, 91, § 2,) does not require the examination of a long account, it is improper to refer it against the remonstrance of one of the parties. Martin v. Hall, xxvi. 386. X. INSTRUCTIONS. a. GENERALLY. 203. It is error to instruct the jury to find as they may think right upon the evidence. Bailey v. Ormsby, iii. 580. 204. So it is erroneous, under the act of 1831, (2 Ter. L., 284,) to instruct the jury to find as they " may think right and equitable" in cases appealed from a Justice. Cleaveland v. Davis, iii. 331. PRACTICE. X. 565 205. An instruction to find, as in case of a non-suit, is unauthorized. Mar- shall V. Wolfe, xi. 608. 206. And when grounded on a partial statement of facts, is properly refused. Rimes v. McKinney, iii. 382. 207. It is not the business of the court to draft instructions, although requested. Its action may be Emited to the giving or refusing of such as are specifically requested. Simonds v. Oliver, xxiii. 32. 208. The reftisal to give an instruction is not equivalent to the assertion of the converse proposition of law. Miles v. Davis, xix. 408. 209. But the refusal of a correct instruction, unaccompanied with any exposi- tion of law embraced therein, is error. Christy v. Price, vii. 43Q. 210. Instructions must be so given as substantially to embrace the whole point of the case presented, although this need not be in the words asked. Coleman V. Roberts, i. 97. Williams v. Harrison, iii. 411. Nicholas v. The State, vi. 6. 211. And where the instructions as a whole contain a correct exposition of the law and fairly present the case, the judgment will not be reversed because exceptionable when taken separately, or because others were refused which were proper in themselves, or because of the refiisal of an instruction which is the converse of one given. Williams v. Vanmeter, viii. 339. Hurst v. Robinson, xiii. 82. Huntsman v. Rutherford, xiii. 465. GamMche v. Piquiffnot, xvii. 310. Young v. White, xviii. 93. 212. Nor for refusing an instruction which is afterwards substantially given. Carroll V. Paul, xix. 102. 213. Nor where a single instruction, taken by itself is defective as not apply- ing to all the fects before the jury. Neale v. McKinstry, vii. 128. 214. Nor because the court instructed the jury that if they believed from the evidence that the plaintiff had proved the facts set forth in either count of his declaration, they ought to find for him. Clemens v. Collins, xiv. 604. 216. Where a correct legal principle is embodied in one instruction, it need not be repeated in another. Williams v. Vanmeter, viii. 339. Pond v. Wyman, XV. 175. 216. And where it is apparent that no injury has resulted from the instruc- tions given, and that the judgment was for the right party, it is immaterial whether the instructions were erroneous or not. Swearengen v. Ome, viii. VOY. 217. Where the plaintiff proves the facts set forth in his declaration, the court is not authorized to instruct the jury that the plaintiff cannot recover, for the reason that his declaration sets out no cause of action, or sets it out defectively. Buryv. City of St. Louis, xii. 298. 218. An instruction presenting different and inconsistent views of the same matter, is erroneous. Wood v. St. Bt. Fleetwood, xix. 529. 219. And so are contradictory instructions. Schneer v. Lemp, xvii. 142. 220. In an action of covenant, the breach assigned was that the defendant had no right to sell, on which issue was taken. On the trial the plaintiff proved the covenant, eviction by one claiming under the defendant, and the consideration paid by the plaintiff — Held, that an instruction on this evidence, that the plain- tiff had not made a case, was erroneous. Collins v. Clamorgan, v. 272. 566 PRACTICE. X. 221. In an action for the loss of a keel boat, alleged to have been sunk by the carelessness of defendants, an instruction " that the defendants, or so many of them as were owners of the steamboat at the tjme of hiring the keel boat, are Uable, if the loss of the keel was occasioned by the omission of ordinary care on the part of the officers or hands employed on the steamboat," and requiring the jury to inquire whether there was such care, in running the boat in the night, after a storm arose, &c., does not assume facts properly to be found by the jury. Chouteau v. Uhrig, x. 62. 222. In an action to recover compensation for raising and taking care of a child, where there is some evidence to show that the services were gratuitous, it is error to instruct the jury that the defendant is liable, unless a positive agree- ment to the contrary is shown. Coleman v. Boherts, i. 97. 223. Where it is necessary to find a demand and refusal, it is error for the court to give an instruction that the refusal must be of a definite character. Kyle V. Hoyle, vi. 526. 224. It is erroneous, after permitting the testimony of a witness to go to the jury, to instruct them to disregard it if they should find that the witness was interested. Chouteau v. Searcy, viii. 733. 225. After the court, on motion of a party, has excluded evidence, and the same party subsequently submits the same evidence to the jury, he cannot require the court to instruct the jury to disregard it. Bailey v Ormsby, iii. 580. 226. Instructions should not be given unless supported by the evidence. Har- rison V. Cachelin, xxvii. 26. 227. An instruction asked by one party, which excludes fi'om the considera- tion of the jury questions raised by the evidence of the opposite party, is errone- ous. Clark v. Harnmerle, xxvii. 55. 228. Where a party has introduced in evidence affidavits not objected to, the other party cannot, it seems, ask that the jury be instructed that the affidavits are not evidence of the facts therein stated. City of St. Louis v. Toney, xxi. 243. b. FORM AND WORDINe. 229. Where an instruction is given with reference to the provisions of a par- ticular statute, it should contain the language of the statute. Fer Scott, J. Jacobs y. McDonald, viii. 565. 230. Instructions given in the words of the attachment law are sufficient. Beach v. Baldwin, xiv. 597. 231. The use of the words " bona fide," in instructions given to a jury, will not vitiate them. Johnson v. Sullivan, xxiii. 474. C. ORAL. 232. Although the law prohibits oral instructions, yet, if they are given, the party who is aggrieved thereby can alone complain. Hogel v. Lindell, x. 483. 233. It is error for the judge, on refusing an instruction, to accompany it with remarks calculated to mislead the jury. JBiehler v. Coonce, ix. 343. PRACnCK X. 567 d. ABSTRACT AND IRRKLBVANT. 234. K instructions are asked which have no relatfon to the issue, they should not be given, although they may contain correct abstract principles. Diury V. WhiU, X. 354. 235. The court is not bound to give instructions upon abstract points of law. The proper state of facts must exist to warrant the instructions asked. Donohoe V. Glasgow, i. 505. 236. It is erroneous to instruct the jury to find for a party upon the supposi- tion that they find a certain fact is true, where there is no evidence of the exist- ence of such supposed fact. Chouteau v. Searcy, viii. 733. 23V. Instructions which contain mere abstract legal propositions, not arising nscessarily irom the facts of the case, ought not to be given. Greely v. McNahh , xiii. 596. Hofelman v. Valentine, xxvi. 393. Hasse v. Lemp, xxvi. 394. 238. It is no error to refuse an instruction based upon a state of facts of which there is no evidence, or the principle of which is embodied in another instruction given. Bogers v. McCune, xix. 55*7. e. HYPOTHETICAL. 239. Where there is alternative evidence, the court should instruct the jury hypothetically. Watson v. Musick, ii. 29. 240. Hypothetical instructions must be grounded on evidence tending to prove the facts supposed. Craighead v. Wells, xxi. 404. 241. But it need not be conclusive. It is sniEcient if it have any tendency to establish them. Bradford y. Pearson, xii. Tl. 242. It is competent for the court to give instructions upon any supposed state of facts which any evidence in the case may tend to establish. Flournoy v. Andrews, v. 513. f. WHICH ASSUME FACTS IN ISSUE. 243. An instruction which assumes the existence of a fact in issue is erroneous. Thompson v. Botts, viii. 710. g. WHICH COMMENT ON THE EVIDENCE. 244. It is improper to instruct a jury that they must believe the answer, unless they believe that the respondent '' swore falsely." Gamble v. Johnson, ix. 597. 245. Instructions which are mere comments upon evidence are properly refused. Carroll v. Paul, xvi. 226. The State v. Homes, xvii. 379. 246. Where a jury are instructed that certain circumstances would justiiy the conclusion that a conveyance was fraudulent in fact, in a case where there is no presumption of law to guide them, this is a summing up of the evidence, not an instruction on a question of law. McDermott v. Barnum, xix. 204. 247. If the Supreme Court send a cause back for a new trial, the court below should not give to the jury, in the authoritative form of an instruction, the com- ments of the Supreme Court on the evidence, without suitable explanations of the province of the jury, Loechru/r y. Some Mutual Insurance Co., xix. 628. 568 PRACTICE. X. n. WHICH REFER QUESTIONS OF LAW TO THE JURY. 248. The jury must take the law from the court, and it is error for the court to allow them to consult law books for themselves. Barker v. Pool, vi. 260. Hardy v. The State, vii. 607. 249. It is error to instruct the jury that the defendants must prove every mar terial averment in their plea of usury, before the issue on such plea can be found for them, as it refers to the jury to determine the materiality of the averments, which is a question of law. Fugate v. Carter, vi. 267. Hiekey v. Iiyan,xv. 62. 250. So it is error to instruct the jury to disregard all evidence in explanation of any ambiguity, latent or patent, in the deed given in evidence, since it is tie business of the court to determine the character of the supposed ambigui/y, whether latent or patent. Newman v. Lawless, vi. 279. ( i. CORRECTING ERRORS IN. ' 251. Where erroneous instructions are given for one party, the errror is not corrected by giving instructions explanatory or contradictory of them for the other party. The erroneous instructions sKould be expressly withdrawn. Jones V, Talbot, iv. 279. Hickman v. Griffin, vi. 37. \ j. CONSTRUCTION OP. ' 252. Instructions should not be so given as to leave a jury to conjecture their meaning, when that meaning is contrary to their obvious import. Medlinv. Brooks, ix. 105. j 253. As to the construction of an instruction. Doane v. Newman, x. 69. k. OBJECTIONS TO, WHEN TO BE TAKEN. i 254. Objections to instructions must be made when given, and cannot be raided on motion for a new trial. Powers v. Allen, xiv. 367. 1. AS TO THE WEIGHT OF EVIDENCE. 255. Where a deposition of a Notary Public concerning the protest of a bill of exchange and notice to indorsers, contains relevant but not sufBcient evidence to prove a legal notice, it is errror for the court to instruct the jury that " there is nothing contained in the deposition to support the material allegations of the declaration." Bohinson v. Johnson, i. 434. 256. It is error to instruct the jury upon the weight and suflBciency of evi- dence. Schneer v. Lemp, xvii. 142. Labeaume v. Dodier, i. 618. Glasgow v. Copeland, viii. 268. 257. Such an instruction is erroneous where there is the least evidence, direct or inferential, in support of the issue. Emerson v. Sturgeon, xviii. 170. Rippey V. Friede, xxvi. 523. Hughes v. Ellison, v. 110. Morton v. Reeds, vi. 64. Scoggins v. Wilson, xiii. 80. 258. So it is error to instruct the jury that there is no evidence in support of a fact or issue, where there is any, although the slightest. Obouchon v. Boon, X. 442. Hays v. Bell, xvi, 496, PRACTICE. XI. 569 269. In an action of trover for a slave, where the plaintiiF proved that the defendant, who was a negro dealer, purchased the slave of the mother of the plaintiff, knowing her to have only a life estate in him, and was seen with the slave in his possession a few days after the sale, it is error for the court to instruct the jury that there was no evidence of conversion, and no sufficient evidence of title, and that the plaintiff had not made out a prima facie case. The weight of evidence should be left to the jury. Speed v. Herrin, iv. 356. 260. It is not proper for the court to instruct the jury that one fact may be presumed from another fact proved, unless such presumption be one of law. OUmer v. Duhle, xix. 360. 261. The plaintiff gave written and parol evidence, none of which was attempted to be met by counter evidence, and then moved the court to instruct the jary that he had shown a legal title — Held, that such instruction was errone- ous, as it amounted -to an instruction that the jury must believe the evidence. Bryan v. Wear, iv. 106. Vaulx v. Campbell, viii. 224. &aresche v. Boyce, viii. 228. 262. Where a plaintiff offers evidence to prove his allegations, it is error for the court to instruct the jury that no evidence was offered which would warrant the jury in finding a verdict for the plaintiff. Houghtaling v. Ball, xix. 84. Morse v. Mxddox, xix. 451. m. ITS LB GAL EFFECT. 263. After the plaintiff's testimony is closed, the defendant has a right to instructions from the court upon the case made by the plaintiff, and it is error for the court to refuse them upon the plaintiff's suggestion that he intends elicit- ing fiirther testimony in support of his claim on cross-examination of the defend- ant's witnesses. The plaintiff is not at liberty, on cross-examination, to give evidence in chief which he should have produced to establish his cause of action. Rucher v. Eddings, vii. 115. 264. It is the province of the court to determine upon the legal effect of testi- mony, and an instruction that, admitting the testimony to be true, the plaintiff cannot recover, is in the nature of a demurrer to evidence, and may well be given. Harris v. Woody, \x. 112. Lee v. David, xi. 114. 265. But it is not error, under the new system of practice, to refuse a general instruction of that kind. Folden v. Hendrich, xxv. 411. 266. Where there is no evidence going to prove a material point in a cause, the court should instruct the jury to that effect if called upon to do so. Russell v. Barcroft, i. 662. 267. Where there is no testimony in the case bearing upon a particular point it is not necessary for the court to inform the jury of that fact. Neale v. McKinstry, vii. 128. See Infra, 323-325 ; Supra, 195-197. XI. VERDICT AND DAMAGES. 268. When a statute allows double damages, the amount found by the jury is to be doubled by the judgment of the court, and the law is not satisfied by 510 PRACTICE. XL adding ojie half to the amount found by the jury. Pbttibone, J., dis. Withing- ton V. Hilderhrand, i. 280. 269. The doubling of the amount found by a jury, under a statute allowing double damages, is in the nature of a penalty imposed by law, and which the court are to add to the verdict ; and it is doubtful whether, if the damages when doubled exceed the damages laid in the declaration, it would be error, but cer- tainly not when the declaration contains two counts, each claiming damages, and the amount of the two together is greater than that awarded by the judgment Pettiborb, J., dis. Ibid. 270. The jury must find all that is put in issue ; otherwise the verdict is bad. Therefore, where, in an action for assault and battery, defendant pleads not guilty, and son assault demesne, and the jury return a verdict of guilty, generally, with- out noticing the second plea, the verdict will be set aside on a motion in arrest of judgment. Fenwiclc v. Logan, i. 401. 271. Where a defendant in replevin pleaded — first, property in himself and others — second, property in himself alone: — and third, property in another, and the jury found the first issue for defendant, and made no finding on the other issues — Seld, that as the finding decided the rights of the parties, and no judgment could have been given for the plaintiff if the other issues had been found for him, the verdict was sufficient. Ramsey v. Waters, i. 406. 2V2. The jury must find upon all the issues. If they do not, the judgment should be arrested. Hickman v. Byrd, \. 495. 273. In an action of assumpsit the defendant pleaded a set-ofi', to which the plaintiflf replied that "he did not owe," &c. — Held, that the finding of the jnry, " that the plaintifiF did not undertake and promise," &c., is sufficient. Garter V. Blankenship, iii. 583. 274. Where there are several allegations, and as many issues, the jury should find on each issue, but a general verdict is not fatally defective. Talbot v. Jmes^ v. 217. 275. A verdict will not be set aside because of words spoken to a juror by a bystander, when no misconduct is charged upon the juror or the party in whose favor the verdict is rendered. Stewart v. Small, v. 525. 276. Where there is an entire want of evidence against one of several defend- ants, in an action ex contractu, the court, under the statute, (Acts 1888-9, 99) § 1,) may direct the jury to find a verdict as to him, the same as in actions ex delicto. Campbell V. Hood,vi. 211. 277. Where a verdict is merely informal, the court may put it in proper form ; and where there is a substantial omission, it may be supplied by the court, with ( the consent of the jury, so as to make it conform to their intention. Henley v. ArbucMe, xiii. 209. 278. If there be one good count in the declaration, a general verdict, assessing damages, is good. Clemens v. Collins, xiv. 604. 279. Where several causes of action are joined in one petition, there should be a separate assessment of damages, or verdict in each cause. Mooney v. Ken- nett, xix. 551, 280. After a jury has returned a special verdict, the court should not submit PRACTICE. Xm. 571 ^ the case to them for a general verdict with instructions. Spalding v. Mayhall, xxvii. 377. Xn. mREGULARITY, WHEN TO BE TAKEN ADVANTAGE OR 281. After a verdict for the plaintiff, it is too late to I'aise the objection that the replication was not filed within the time prescribed by the statute. Magehan V. Orme, vii. 4. See Supra, I. 282. Plaintiffs sued out a scire facias on a recognizance of appeal. At the return term the court permitted the original judgment and recognizance to be amended on motion of the plaintiff. The defendants then pleaded nul tiel record, and issue was joined thereon. Upon the trial of this issue the defendants ob- jected to the reading of the judgment and recognizance, because the amendments were improperly made — Held, that the objection was not taken in time. The defendants should have objected at the time the amendments were made, and saved their objections by a bill of exceptions. Snowden v. Camden, viii. 502. xm. INCIDENTAL PROCEEDINGS. a. BILL OF PARTICULARS. 283. Where the court has ordered the defendant to file a biD of particulars of a set-off, of which he had given notice, and he fails to comply with such order, it is competent for the court to exclude all evidence on that subject. Haden v. Hemdon, ix. 854. b. NOTICE TO PRODUCE PAPERS. 284. Where the nature of the proceedings shows that the object of them is to charge the defendant with the possession of a paper, it is not necessary to give him notice to produce it. Hart v. Rohinett, v. 11. Hart v. Spencer, v. 17. See Evidence, 62-64. C. NOTICE OF MOTION. 285. Vfhere a judgment was assigned, and the debtors, with notice of such assignment, paid the amount to the judgment creditor, who thereupon indorsed the amount on the execution, directing the sheriff' to return the same satisfied — Held, that such indorsement might be vacated on motion, and a new execution issued for the benefit of the assignees ; but before such order could be made, all the judgment debtors were entitled to notice. Laughlin v. Fairbanks, viii. 367. 286. Where an immaterial issue, tendered by the plaintiff, is found for the defendant, and it appears from the record that the awarding of a repleader is unnecessary to effect substantial justice, judgment will be given for the plaintiff, non obstante veredicto. Shreve v. Whittlesey, vii. 473. d. SECURITY FOR COSTS. 287. Where a party is ruled to give security for costs on or before a specified day in vacation, and fails to do so until the next term, but then offers it, before a motion to dismiss is made, it should be received. Brown v. Ravenscroft, i. 397, 572 PRACTICE. XIV. XIV. BILL OF EXCEPTIONS. a. GBNERALLT. 288. Where evidence is given by each party to a suit, and no points decided by the court have been saved by a bill of exceptions, the verdict will not be dis- turbed unless glaringly wrong. Young v. Kelly, ix. 50. 289. It is the duty of the plaintiff in error to show by his bill of exceptions the errors of the inferior court. The presumption is in favor of the judgment of that court. Riney v. Vanlandinffham, ix. 807. 290. Whether a copy of the note or account sued on accompanied the petition, is matter in pais, and can only be put on the record by a bill of exceptions. Kearney v. Woodson, iv. 114. . 291. A variance between the declaration and the bond sued on may be reme- died by amendment, and, if the bill of exceptions shows that it was permitted and made, it does not matter that the declaration itself, as it purports to be copied in the records, appears not to have been altered. Fulkerson v. The State, xiv. 49, 292. As to the requisites of a bill of exceptions. The State v. Shehane, xxv. 565. Frazer v. Teatman, x. 501. 293. Where an objection is overruled, the party objecting, if he wishes to save the point, must except. Shelton v. Ford, vii. 209. Vaulx v. Campbell, viii. 224. b. MAKING UP. 294. In making a bill of exceptions, the court may recall and interrogate a witness as to what he swore on the trial, and, in such case, neither party has a right to examine him. Whiimore v. Coats, xiv. 9. 295. The court is not bound to sign a bill of exceptions on any mattter but such as arose on the trial, and was excepted to at the time. Davis v. Bums, i. 264. 296. Exceptions must be taken at the time at which the trial is had, and the bill prepared and signed during the term, and not afterwards, unless it is so consented to. Diepenbrock v. Shaw, xxi. 122. Sutter v. Streit, xxi. 157. The State v. McO'Blenis, xxi. 272. Farrar v. Finney, xxi. 569. Wihoxson v. McBride, xxiii. 404. Ellis v. Andrews, xxv. 327. Pomeroy v. Selmes, viii. 727. Hassinger v. Py6, x. 156. 297. And where it is agreed that the bill of exceptions may be allowed, and filed within ten days after the term, and it is not filed within that time, it is too late to do so afterwards. Ellis v. Andrews, xxv. 327. 298. Although exceptions must be taken to the decisions of the court at the time the decision is made, it is not necessary that a bill of exceptions should then be made out and signed. One bill of exceptions, made at the conclusion of the case, is sufficieht to embrace all the exceptions taken during the trial. Lane v. Kingsherry, xi. 402. PRACTICE. XIV. 573 299. Where a bill of exceptions has not been signed in due season, the other party is not precluded from moving to strike out the exceptions, simply because he has filed his joinder in error. Farrar v. Finney, xxi. 569. 300. If a judge improperly refuses to sign a bill of exceptions, his error cannot be corrected by appeal. The Supreme Court will not notice a bill of exceptions not signed. Barrah v. St. Bt. Lightfoot, xvii. 2'76. 301. The commission of the judge, before whom a motion for a new trial was argued, expired before the motion was decided, or a bill of exceptions signed. A bill of exceptions was subsequently made up and sighed by his successor — Held, that the incoming judge had no authority to sign the exceptions without the consent of the opposite party, as it was necessary that such exceptions should be taken in the progress of the trial. (See E. S. 1835, 464, § 20.) Consaul v. Liddl, vii. 250. [But see R. S. 1855, 1264, § 28.] d. EXCEPTIONS WHEN TO BE TAKEN. 302. Exceptions to erroneous rulings must be taken in the progress of the trial, and to erroneous instructions when they are given. (See R. S. 1835, 464, § 20.) Randolph v. Msey, viii. 656. 303. After the jury have returned their verdict, it is too late to except to the instructions of the court. Bompart v. Bayer, viii. 234. Mattingly v. MoranvUle, xi. 604. 304. A bill of exceptions, concluding thus, " to which several decisions of the court, the defendant excepted at the moment," shows that the exceptions were properly taken to the giving and refusing of instructions. Si. Bt, Raritan v. Smith, X. 62Y. 305. Where the court improperly grants a new trial, and the party complain- ing, wishes to avail himself of the error, he must tender his exceptions, and abandon the case at that point. Davis v. Davis, viii. 56. Samuel v. Morton, viii. 633. e. EVIDENCE. aa. Generally. 306. In order to enable the Supreme Court to determine whether there is error in the judgment of the court below, the evidence and proceedings must be preserved in a bill of exceptions. Gale v. Pearson, vi. 253. Crane v, Taylor, vii. 285. Brown v. Brown, vii. 288. Bernarder v. Langham, viL 4'76. Martin v. Hagan, viii. 505. 307. A judgment will not be reversed for giving erroneous instructions, or refasing those which are correct, where the evidence is not preserved. Cawthom v.Muldrow, viii. 617. Campbell v. The State, ix. 351. Bellissime v. McCoy, i. 318. Samuel v. Withers, ix. 16.5. 308. Or for admitting the testimony of an incompetent witness, unless such testimony is so preserved. Samuel v. Withers, ix. 165. 309. But it is necessary to set out only so much of the evidence as tends to establish a fact, upon which the principle of law is raised. Wallace v. Boston, X.660. 574 PRACTICE. XIV. 310. All reasonable presumptions will be made in support of the judgment below. M'Girk v. Chauvin, in. 236. Magehan v. Orme, vii. 4. Ingram v. The State, vii. 293. 311. And unless tbe bill of exceptions purports to recite the whdle evidence the Supreme Court cannot determine whether the court below erred in granting or refusing a new trial. Searcy v. Devine, iv. 626. Hughes v. Ellison, v. 110. 312. But where it clearly appears from the proceeding that no other evidence was given, it will be assumed that the exceptions contain all the evidence. Gamble y. Hamilton, vii. 469. 313. A bill of exceptions, detailing certain evidence, and then concluding, " whereupon the court decided," &c., does not show that it contains all the evidence given. Foster v. JVowlin, iv. 18. 314. But it is not necessary to give details of testimony excluded, not on account of any incompetency or informality, but upon the general ground that the claim or defense designed to be sustained by it, is unavailing. Per Napton, J. St. Bt. Lehigh v. Knox, xii. 508. 315. On a petition and motion to set aside a sale of land made by a sheriff, the motion was overruled, and the bill of exceptions not showing that any evi- dence was submitted, the judgment of the court below was presumed to he correct. Mead v. Matson, ix. '7'73. 316. Where it does not appear that the plaintiff in ejectment, offered any evidence in support of his title, the judgment of the court below, in favor of the defendant, wiU not be reversed because of the admission of incompetent testimony in his behalf. Hill v. Groom, v. 58. 317. A report of a referee, to whom a cause had been referred under the new code, (Acts 1848-9, 91, § 3,) stands as the decision of the court, and the Supreme Court will not review the same upon the facts, unless the evidence be preserved in a bill of exceptions. Hays v. Hays, xxvi. 123. bb. Objections to. 318. Objections to the admissibility of evidence must be taken as the evidence is offered, or the objections are waived. Waldo v. Russell, v. 387. 319. Where the admission of evidence is objected to, such objection, together with the testimony, must be saved in the bill of exceptions. Withington v. Young iv. 664. cc. Grounds of objection. 320. The refusal to receive in evidence a bill of sale, is no reason for reversing a judgment, when the bill of exceptions does not show the ground on which it was rejected. Ramsey v. Waters, i. 406. 321. The bill of exceptions must show the specific ground upon which evidence was objected to, or the objection cannot be considered in the Supreme Court. Fields V. Hunter, viii. 128. dd. Depositions. 322. Where the court overrules a motion to exclude depositions on account of alleged informalities in their execution ; and the fact of such informalities existing PRACTICE. XIV. 575 is not preserved by exceptions, the court above cannot know but that the court below overruled the motion, because the facts vrere falsely stated therein. Davidson v. Peck, iv. 438. f. INSTRUCTIONS. 323. Where erroneous instructions are given, the party aggrieved thereby must except to them, in order to preserve the objection. Robinson v. Shepard, viii. 136. 324. It is not necessary, in a bill of exceptions, to set out all the evidence except where the verdict is aliened to be against evidence. If the rejection of evidence, or the refusal of instructions be complained of, it is sufficient to show the evidence offered, and that the evidence properly raised the question in the instruction. Barffe Resort v. Brooke, x. 531. 325. The Supreme Court will not consider instructions not incorporated in the bill of exceptions. McLainy. Winchester, xvii. 49. g. MOTIONS. 326. The decisions of the Circuit Court upon motions, or its opinion on points not presented by an issue of law, must be saved by a bill of exceptions ; other- wise, the Supreme Court will not consider them. Hammond v. Relf, i. 282. Bvicher v. Keil, i. 262. Davis v. Hays, i. 270. 327. A motion is no part of a record until so made, by incorporating it into a bill of exceptions. United States v. Gamble, x. 457. Christy v. Myers, xxi. 112. Loudon V. King, xxii. 336. 328. A new trial will not be granted, unless the motion for a new trial was made in the court below, and the grounds on which it was asked, are preserved in a bill of exceptions. Benoisi v. Powell, vii. 224. 329. A bill of exceptions is a part of the record, and must show that the facts alleged in support of a motion for a re-hearing, occurred in the course of the trial, and not simply that certain reasons were assigned for a new trial. Barthtt V. Draper, iii. 487. h. FINDING OP FACTS. 330. The finding of facts is a part of the record, and need not be preserved in a bill of exceptions. Ragan v. McCoy, xxvi. 166. i. INQUIRY OF DAMA&ES. 331. It is the duty of the Circuit Court to instruct thi jury on all principles of law applicable to the evidence in the case, but the bill of exceptions must show what instructions were given or refused, to enable this court to judge whether there was error. McKnight v. Wells, i. 13. 332. The fact that it appears from the entry of thejudgment, that the inquisi- tion of damages was taken " without any proof" of the amount of damages sustained, is insufficient. The exceptions must show that the inquisition was improperly had. Grump v. Dunnivant, xxiii. 254. 576 PRACTICE IN SUPREME COURT. I. ] . AFFIDAVITS. 333. Where a motion is made to set aside a judgment and grant a continuance, because of certain facts set forth in affidavits, the affidavits must be made a part of the record by being preserved in a bill of exceptions. Pratt v. Rogers, v. 51. k. PAPER NOT FILED OR FILED WITHOUT LEAVE. 834. Papers tendered to the court, but not permitted to be filed, and such as are filed without leave, and treated afterwards as mere nullities, are not a part of the record,- unless preserved by bill of exceptions; but it is otherwise as to pleadings regularly taken and entered in the progress of a cause. Mayfield v. Sweringen,xi!. 220. See Bond, YII ;. . . .Evidence, 145-153 ;. . . . Judgmejit, X ;. . . .Petition in Debt, II. PRACTICE IN SUPREME COURT. I. GENERALLY. II. AS TO THE RECORD. III. MAT1;ERS OP DISCRETION. IV. EVIDENCE. V. INSTRUCTIONS. VI. NON-SpiT. VII. TRIAL OF QUESTIONS OF FACT BY THE COURT. Vm. CHANCJERY. ES. DAMAGES. X. EXECuioN. I. GENERALLY. 1 . Where, in an actidin of debt, the plaintiflF, after plea and joinder of issue, obtains leave to amend, ind files an amended declaration in assumpsit, and at a subsequent term takes judgment by nil dicit, it is irregular, but where the court below was not called on \o decide such question of irregularity, the judgment will not be reversed. HaM v. Holmes, i. 84. 2. Error in fact can oily be corrected in the court where it occurred, or in which the record is; therHore, where judgment was rendered in the Circuit Court against two defendant^, where one of them was, at the time of rendering the juilgment, deceased, it isnot such an error as the Supreme Court will correct. Calloway v. M'ifong, i. 223. PRACTICE m SUPREME COURT. I. 511 3. Where the clerk has failed to enter the whole finding of the jury, the Sapreme Court cannot amend the judgment entry, there being nothing to amend by. Eastern, v. Collier, i. 421. 4. Under the act of December 12th, 1820, (1 Ter. L. 719, § 15,) a judgment for a greater amount of damages than that laid in the declaration, will be examined and reyersed. Carr v. JSdwards, i. 137. 5. Where there are two issues found in favor of defendant, and the error com- plained of relates to but one of them, the Supreme Court will not reverse the judgment. Taylor v. McKnight, i. 278. 6. Where it appears upon the whole record that judgment was rendered for the right party, it will be affirmed, although errors may exist against the party seeking to reverse it. Tate •'i. Barcroft, i.\6Z. Dube v. Smith, i. 313. Wear V. McCwMe, i. .588. Waihen v. English, i. 746. Crocker y. Mann, iii. 472. 7. So where it does not appear upon what matter the Circuit Court decided, its judgment will be taken to be correct. Coleman v. McKnight, iv. 83. 8. No point will be considered which was not made in the court below. Oor- nelius v. Grant, viii. 59. Alexander v. Hayden, ii. 211. 9. Every reasonable intendment will be made in support of the judgment ; but nothing will be presumed in favor of the party whose duty it was to have made the doubtful matter plain. Morgan v. Taggart, i. 403. Collins y. Bowmer,Til 195. Stewart v. Small, v. 525. Vaughn v. Montgomery, y. 529. Dodson V. Johnson, vi. 599. Small v. Hempstead, vii. 373. 10. But presumptions will not ordinarily be made in aid of ex parte proceed- ings. Harryman v. Titus, iii. 302. 11. The judgments of the Circuit Court, 'on motions for continuance or for new taak, will be presumed to be correct until the contrary appears. Steel v. McCutchen, v. 522. 12. A judgment wiU not be reversed because a motion was made in the court below to rule the plaintiff to give security for costs, when the motion was not acted on. Morgan v. Taggart, i. 403. 13. Nor on account of a mere irregularity, by which the party complaining has sustained no injury. Payne v. Collier, vi. 321. 14. Nor on account of erroneous instructions, where the party complaining has shown no right of action. Newman v. Lawless, vi. 279. 15. Nor for erroneous decisions against the recovering party. McFadin \. Rippey, viii. 738. 16. Where a declaration is defective for want of an averment of a fact neces- sary to be proved in order to a recovery, it will be held good after verdict on motion in arrest. Frost v. Pryor, vii. 314. 17. But where the evidence preserved in the bill of exceptions negatives the inference that such proof was made, the verdict will be set aside. Ibid. 18. Errors in the judgment of the Circuit Court, in departing from the pleadings or verdict, will be noticed by the Supreme Court, although no objection be taken in the court below. Hempstead v. Stone, ii. 65. 19. After the court has given judgment on demurrer, the same matter is not open to be urged in arrest. Freeman v. Camden, vii. 298. 37 578 PRACTICE IN SUPREME COURT. IE. 20. Where a demurrer to a plea, tendering an immaterial issue, is improperly overruled, and there is no replication, and the jury find a verdict for the plaintiff, on a supposed issue which did not exist, the Supreme Court will not reverse the judgment below, on account of such verdict, when it is fully sustained by the finding of other issues in the case. Kyle v. Hoyle, vi. 626. 21. A judgment will not .be reversed unless it appears that error was com- mitted materially affecting the merits of the case, (Acts 1848-9, 94, § . lY.) Qohin V. Hudgens, xv. 400. Shepard v. Bank of Missouri, xv. 143. 22. The judgment of the court above, on an appeal from a justice, will be affirmed in the Supreme Court, if there is no statement or bill of exceptions or error apparent on the record. Moore v. Turner, xix. 642. Elliott v. Togue, XX. 263. Aiken v. Todd, xx. 276. Sickles v. Abbott, xxi. 443. Southerland v. Warner, xxi. 512. 23. In a suit under the statute, (R. S. 1855, 1571, §§ 30, 31,) to contest the validity ot a will, the Supreme Court will review the proceedings of the lower court only in matters of law. Letton v. Graves, xxvi. 250. 24. A party to a suit has no right to the reversal of a judgment therein for errors that do not in any way affect him, but other of the parties alone. Papim, V. Massey, xxvii. 445. II. AS TO THE RECORD. 25. The Supreme Court will take notice of such facts only as appear of record. Nicholas V. The State, vi. 6. 26. And where a record is capable of two interpretations, that will be given which will sustain the judgment. Perpetual Insurance Co. v. Cohen, ix. 416. 27. And will presume that the proceedings of the inferior court are corroet, unless the record shows the contrary. Walter v. Cathcart, xviii. 256. 28. Where there is a diminution of the record, the court, on application, will issue a certiorari commanding the court below to send up the full record. Qale V. Pearson, vi. 253. 29. To entitle a party to the benefit of objections to any proceedings in the court below it must appear, by the record, that the objections were made in that court. Si. Bt. Thames v. Erskine, vii. 213. 30. The Supreme Court cannot review the action of the inferior court upon a motion to strike out parts of an answer, when they are referred to in the record only by line and page of the original. Robinson v. Rice, xx. 229. III. MATTERS OF DISCRETION. 31. The Supreme Court will not interfere with the exercise of a discretionary power vested in the coUrt below, unless, pferhaps, under peculiar circumstances. Caldwell y.McKee, viii. 834. 32. The discretion of the court below will not be reviewed in a matter relating PRACTICE m SUPREME COURT. IV. 579 to the construction and interpretation of its rules, except in flagrant cases. Funhhouser v. Sow, xviii. 47. The State v. Fenly, xviii. 445. 33. Thus where, by a rule of the St. Louis Circuit Court, leave to plead is reflised upon overruling a special demurrer, a judgment entered up in accordance with such rule wiU not be disturbed. It is a matter of practice within the dis- cretion of the Circuit Court. St. Bt. Reveille v. Case, ix. 498. 34. Nor will an order setting aside a judgment by default be reversed, unless it be a case of gross error. Laurent v. Mullikin, x. 495. 35. Nor will the judgment of the court below, refusing to set aside a judgment by default, be interfered with where it appears that there had been gross negli- gence on the part of the defendant. Faber v. Bruner, xiii. 541 . 36. Not even to let in a defense which would have been available had it been seasonably made. Wimer v. Morris, vii. 6. Wagemann v. Jordan, xix. 503. 37. The Supreme Court will not interfere with the discretion exercised by inferior courts in taxing costs against a losing party. Walton v. Walton, xix. 667. 38. Nor in discharging a jury in a civil case, after deliberation and failure to ^ee. Samiltons v. Moody, xxi. 79. 39. Nor in refusing to put the plaintiflf to an election as to which of several breaches he will rely upon, unless in a case of unusual hardship. Fulkerson v. The State, xiv. 49. 40. Nor in refusing to grant a motion for a continuance on an affidavit that a party was sick and not able to be present in court. Owens v. Tinsley, xxi. 423. 41. Nor where the court, upon the last day of the term, refused to enter upon the trial of a jury cause, and continued it. Hall v. Woodson, xiii. 462. 42. In an action on a note, the defendants pleaded the general issue, with notice of set-ofi^. The cause was continued from term to term, when leave was given the defendants by the court to file an amended plea denying the execution of the note. Under this state of facts this court will not interfere with the dis- cretion exercised by the Circuit Court in allowing the amended plea. Pomeroy V. Brown, xix. 302. IV. EVIDENCE. 43. Where objections to the reading of depositions are made in the court below, but the grounds of objection are not specified, the objections will not be examined in the Supreme Court. Bank of Missouri v. Merchants' Bank of Baltimore, x. 123. Roussin v. Perpetual Insurance Co., xv. 244. 44. And the specific grounds of objection must be stated. Duval v. Ellis, xiii. 203. 45. Where evidence is objected to as irrelevant, the Supreme Court cannot settle the point, unless all the evidence is preserved. McMillen v. The State, xiii. 30. 46. Judgment will not be reversed because irrelevant testimony was admitted, unless it is calculated to mislead or prejudice the jury. McDermott v. Barnum, xix. 204. 580 PEACTIGE IN SIJPEEME COURT, V. 47. Nor where a party is permitted to give in evidence his own declarations to prove a fe,ct, if the same fact was established by other and legal testimony. Bradford v. Pearson, xii. 71. 48. Nor because competent evidence was rejected, unless it appears on the record that the evidence might have had some influence in finding the verdict. Roussin V. Perpetual Ins. Co., xv. 244, 49. Nor unless an exception to the ruling was taken at the time of the trial. Lee V. Lee, xix. 420. 50. Nor because a leading question was permitted to be asked a witness. Rogers v. McCune, xix. 557. 51. Nor where the evidence rejected is too vague and indecisive to affect the finding of the i^ts. Conrad v. Ji^lt, xxii. 166. 5g, Nor for the admission of evidence objected to, unless an exception ?§ saved, nor for the admission of irrelevant evidence, unless it was calculated to prejudice or mislead the jury. Craighead v. Wells, xxi. 404. 53, Where a record purports only, to give the substanpe of the evidence bearing on particular points, the judgment will not be reversed on the ground that there wa« no evidence upon which to base a particular instruction, unless the evidence beaiTing on that instruction is stated, or it appears affirmatively tbsit none wag given. Douglass v. Stephens, xviii. 362. V. INSTRUCTIONS, 54. A party is estopped from objecting in the Supreme Court to instrnotiops given at his request. Chamherlin v, Sniith, i. 482, 55. Where an instruction is given which is not Strictly correct as a proposition of law, and might have misled the jury, and the finding was in accordance with the instruction, and the evidence in the case is not so preserved in a bjU of exceptions as to enable the Supreme Court to judge whether the jury might not have been misled by it, the judgment will be reversed. Brady v. llill, i. 315. 56. A party who seeks to reverse the judgment of the court below for refusing a new trial, where all the instructions asked by him were given, must make out a case free from doubt. Bobb v. Lambdin, vii. 601. 5*7. The judgment of the court below will not be reversed because of the refusal of an instruction which could not have availed the party asking it. Withinton v. Withinton, vii. 589. i 58. Nor on account of an erroneous instruction, which, it is evident from the record, could not have prejudiced the party excepting. Finney v. Allen, vii. 416. Vaulx V. Campbell, viii. 224. Maston v. Fanning, ix. 302. Chouteau v. Uhrig, x. 62. 69. Nor for a failure to instruct the jury where no instructions were asked. Drury v. White, x. 354. 60. Nor for the giving of instructions so utterly irrelevant that they could not have misled the jury ; nor for the refusal to give abstract propositions of law PRACTIflE IN 8UPEEME COtTET. VIL 581 wMdli could not assist the jnty in deciding the case. McLain y. Winchester, xvii. 49. 61. Nor fof refusing an instruction, the substance of which has been given in another form. Matton v. Fanning, ix. 302. 62. Although instructions asked by a party and refused by the court assert correct legal principles, according to the facts assumed by them, yet if the jury, by their verdict, negative the hypothesis upon which the instructions were based, the Supreme Court will not interfere with the judgment. Patterson v. McClav^ ahan, xiii. SOt. 63. But where erroneous instructions are given upon one branch of a case, the evidence will not be reviewed in order to ascertain whether or not the judgment is right upon all the facts. Swartz v. Ghappell, xix. 304. 64. And where a cause is tried upon an agreed state of facts, the Supreme Court will reverse if the facts do not support the judgment, although no instmc' tioiis are asked. Stone v. Corbeti, xx. 350. 65. A judgment will not be reversed because instructions, abstractly erroneous^ were given, if they did not affect the verdict. Where the propriety of instructions cannot be examined because the evidence on which they were based is not savedy {he judgnlent will be affirmed. Walter v. Catheart, Xviii. 266. The Stati v, Vaughn, xxvi. 29. 66. The judgment will be reversed where the instructions are nnintelligible. Crok V. Thomas, xvii. 329. VI. NON-SUIT. 67. Where the plaintiff suffers a non-suit, and fails to move to set it aside, and no exceptions are taken, the judgment will not be disturbed, whatever the merit* of the pkintiff's case. Rohhins v. Stevenson, v. 105. Crane v. Daggett, x. 108. 68. Nor will the judgment be disturbed where the plaintiff voluntairily sub- mits to a non-suit, upon the refusal of the court to strike out an insuffi^ieilt answer. Schulters v. Bockwinkle, xix. 64r7. Bumey v. Schoeffler, xx. 823. Loitisidna and Middletown Plank Road Co. v. Mitchell, xx. 432. 69. But the Supreme Court will not refuse to set aside a non-suit taken upon the rejection of material evidence necessary to the plaintiff's recovery, because the record does not show that the plaantiff was prepared with proof upon the other Material facts of the case, or because the evidence may possibly have been rejected for the reason that it waa offered out of the order of tittle pre- scribed by the court trying the cause. ]>owd v. Winters, xx. 361. Vn. TRIAL OF QUESTION OF FACT BY THE COURT. 70. Where the facts of a case are submitted to the court, and it does not appear that there was error in the finding, the judgment will be affirmed. Wiff' gin* V. Hamtnond, i 121. 71. Nor will the judgment be reversed upon exceptions taken to the weight of evidence, Cage v. Ellis, i. 444. 582 PEACTICE IN SUPREME COURT. VH. 72, Nor unless it is clearly against the weight of evidence. Martin v. WUh- inffton, iv. 518. Craig v. Maupin, vi. 260. 73. A judgment founded on a defective verdict of the court will not be reversed unless a motion in arrest was made and overruled in the court below. JJavidscm, v. Peck, iv. 438. Griffin v. Samuel, vi. 50. Finney.y, The State, ix. 624. V4. Where a caise is submitted to the court, sitting as a jury, the parties must, in order to avail themselves of error in the court, separate the matters of law from the matters of fact, and call the attention of the court expressly to the point to be decided. Taylor v. Russell, viii. 701. Little y. Nelson, Tii\. 709. Fugate v. Muir, ix. 351. 75. The judgment will not be set aside unless the record shows that the court below was called to decide some question of law, and that its decision was wrong. VonPhul v. City of St. Louis, ix. 48. Vaughn v. Bank of Missouri, ix, 375. Clark V. Sieveris, x. 610. 76. The judgment will be afiSrmed where no exceptions are taken till after the verdict. Kilgore v. Bonic, ix. 288, 77. Under the new code, (Acts 1848-9, 90,) the judgment will be reversed for no finding of the facts, or for an insufficient finding. Barharick v. Reed, xviii. 473. Sloan v. Sloan, xviii. 474. Phelps v. Relfe, xviii. 479. Major v, IIa,T- rison, xxi, 441. Brant v, Robertson, xvi. 129, Bates v. Bower, xvii. 550. (OvBERULiNG Rucker v. Musick, xvi. 316.) Ragan v. McCoy, xxvi. 166. 78. And so if the finding of facts is incomplete on its face. Brant y. Robert- son, xvi. 129, 79. The party wishing a review of the finding of facts must make out a case setting forth the grounds on which he wishes a review, the fact or facts he wishes found differently, and the evidence bearing upon them. Cfiboney v, Bedford, xvii. 56. 80. Where no motion for a review is made, the Supreme Court wiU not review the finding of facts, but will affirm the judgment if the finding supports it. Hughes v, Fitzpatrick, xviii, 254. 81. And where the motion is not made in conformity to the new code, the. judgment will be affirmed, if the facts found warrant the judgment rendered thereon. Freeland v. Eldridge, xix. 325. 82. The Supreme Court will look to the facts found, and decide without regard to instructions given or refused. Robinson v. Rice, xx, 229. 83. But where no instructions or declarations of law are asked or given, anew trial will not be ordered. Kurlbaum v. Roepke, xxvii. 161. 84. Where it is stipulated that a cause shall be decided in the Supreme Court upon the facts found by the court below, no other facts will be considered than those contained in the finding. St. Louis Mutual Fire and Marine Ins. Co. v Boeckler, xix. 135. 85. Thp Supreme Court will look into the evidence to determine the sufficiency of the finding of facts. Archer y. McMeehan,-!ixi. 4:Z. 86. Judgment reversed because the evidence did not support or justify the finding of the facts by the court. Pipkin v. Allen, xxiv. 520, 87. What particular figure is used in the date of a note is .to be determined PROCESS. 583 by inspection, and, the court below having upon inspection determined that ques- tion this court, especially in the absence of the original note, will not undertake to revise such determination. Butterworth v. Ratcliff, vii. 560. VIII. CHANCERY. 88. Under § 42 of the act of 1825, regulating proceedings in chancery, (R. S. 1825 645,) the facts on which the decree is founded must appear in the record, else, on an appeal to the Supreme Court, the decree will be reversed. Laherge T, Chauvin, ii. 179. 89. And depositions filed in a chancery suit, but not preserved on the record, ■cannot be used in the Supreme Court on appeal. (R. S. 1825, 645, § 42.) Bean V. Valle, ii. 126. 90. A decree in chancery will be reversed for uncertainty in the evidence given in support of the defendant's answer. Banks \. McCarty,y. 1. 91. Where a chancellor directs issues of fact to be tried by a jury, the find- ing is to be regarded as a verdict at common law, and will not be disturbed except in case of a clearly improper finding, or of misdirection by the court. G' Bryan v. O' Bryan, xiii. 16. 92. The Supreme Court cannot exercise original jurisdiction by ordering a chancery case, on appeal, to be referred to a commissioner. Where the court is not satisfied from the evidence in the bill of exceptions that the decree is correct, and no account was taken, so that it is impossible to state what errors were com- mitted, the case will be reversed and remanded, with directions to the court below to have an account stated between the parties. Knowles v. Mercer, xvi. 455. IX. DAMAGES. 93. It is not the practice of the Supreme Court to award damages upon the affirmance of a judgment when the case has been appealed without a supersedeas. Haley v. Scott, xviii. 202. X. EXECUTION. 94. The Supreme Court may award execution to carry their judgments into effect. McNair v. Lane, ii. 51. See Criminal Law, XX ; . . . . Judgment, XIV ; . . . . New Trial. PROCESS I. FORM AND DIRECTION, n. DEFECTIVE PROCESS, ni. JUSTIFICATION UNDER PROCESS. IV, EVIDENCE. 584 PROCESS. I. V. SERVICE AND RETURN. a. PERSONAL SERVICE. b. BY COPT. C. BT WHOM SERVICE SHOULD BE MADE. d. DEFECTIVE SERVICE CURED BT APPEARANCE. e. RETURN. aa. Form and Requisites, bb. Construction of. cc. Validity, dd. Defective Return. I. FORM AND DIRECTION. 1. Where a summons is issued by a Justice, in which the cause of action is stated to be " on an account for fifty dollars," it is good in substance, and will be held to refer to a boot account, and to be within the jurisdiction of the Justice. Floyd V. Wiley, i. 430. 2. Under the act of October 1, 1804, which provides that " all writs shall run in the name and style of the United States of America, and bear test in the name of the Chief Justice or presiding judge, and shall be seated with the judicial seal of the said court," atent certified by the Commissioner of the General Land Office, may be received in evidence without proof of the loss of the original. Barton v. Murrain, xxvii. 235. See Ejectment, 16, 28; Infra, 34, 39-42, 147, 156, 157. 590 PUBLIC LANDS. IV. IV. PRE-EMPTION. 15. The decision of the Register and Receiver granting a pre-emption is con- clusive only against the government, that a right of pre-empton exists, in consequence of a certain improvement ; it is not conclusive between individuals contesting the right to the land. Bird v. Ward, i. 398. 16. A bill, setting forth that A. made improvements on a tract of land, and sold the same to B., who sold to C. ; and that afterwards A. fraudulently obtained a certificate for the pre-emption right, contains equity, and a general demurrer will not lie to it. The equitable right in such case is in C, and a court of equity will compel A. to give up that which he has fraudulently obtained. Ibid. 17. To entitle a person to a right of pre-emption, under the act of Congress, (3 TJ. S. Stat., 121,) he must be either the head of a family or twenty-one years of age. Ely v. Ullington, vii. 302. ] 8. The acts of Congress which authorize the Register and Receiver to decide upon pre-emption rights, (5 U. S. Stat., 251, 382,) make their decision final, until reversed by the Commissioner of the General Land Office or the President. Lewis V. Lews, ix. 182. 19. And a State court will not interfere to set aside their decision, unless it be aflfected with fraud or coupled with a trust. Tbid. 20. But a State court will protect the rights of a pre-emptor against one claim- ing under a certificate merely, upon which a patent has not issued. Ibid. 21. A lease of land to which the lessor has only a right of pre-emption, is void. Bower v. Higbee, ix. 256. 22. Where A. was entitled to a pre-emption right to certain lands, it could not be entered at private sale by B.; and A., having applied to prove his pre-emption right, and being prevented by the officer under the impression that the land was not subject to pre-emption, an entry of the land by B., while subject to the pre- emption of A., is void, although the pre-emption right was not proved up before the expiration of the law granting such right. Napton, J., dis. Allison v. Hunter, ix. 741. 23. The pre-emption law of July 9, 1832, (4 U, S. Stat. 565,) was not continued in force by that of 1838, (5 TJ. S. Stat. 251,) and a pre-emption certificate issued in 1839, and which purported to be under the act of 1832, is void upon its face. G'Hanlon v. Perry, ix. 794. 24. But it is otherwise where it appears that the delay in the issue of the cer- tificate wa? solely in consequence of the neglect of the officers of the government, and not by reason of any fault in the pre-emptor. Same case, xi. 586. 25. The act of the Commissioner of the General Land Office, in cancelling such entry when such action is not in pursuance of the laws of the United States, does not render such entry void and ineffectual. The propriety and legal- ity of the action of the Commissioner in this respect is subject to examination by the courts of this State, where the- title to the lands entered is in question between citizens of this State. lUd. PIJBLIC LANDS. V. 691 26. A pre-emption right under the act of Congress of June 1, 1840, (5 U. S. Stat. 382,) cannot be transferred. Paulding v. Grimsley, x. 210. 27. By the act of Congress of July 9, 18.32, (4 TJ. S. Stat. 565,) claimants whose claims had been rejected could obtain a pre-emption only by being actual settlers and housekeepers. But claimants whose claims ha€ not been rejected, could, by a relinquishment of their claim to the United States before a decision, acquire a pre-emption, and the certificate of the recorder of such relinquishment is the evidence of the right to such pre-emption. In the latter case, no settle- ment was necessary. Perry v. OSanlon, xi. 585. 28. And all land to which claims were presented was reserved from sale until some disposition of such claim could be made. And where claims were presented to land, and the claim relinquished to the United States before any decision upon them, the reservation still continues. And a patent to such land is void if granted to any other than the claimant who takes under the relinquishment. IM. 29. A person having settled upon one quarter section of land and cultivated another, being entitled to elect on which he will prove his right of pre-emption, cannot prove his right to enter one quarter upon condition that such entry should be cancelled in the event that his right of pre-emption to the other quarter should be established by the decision of the Commissioner of the General Land OfBce, the register and receiver not having the authority to permit a party to vacate his entry. McDaniel v. Orton, xii. 12. 30. Where a party obtains a pre-emption certificate for a tract of land from the State Land Officers by fraudulent practices upon the rights of another, a court of equity has jurisdiction to compel a transfer of the certificate thus obtained to the person defrauded. Huntsueker v. Clark, xii. 333. See Ejectment, 26, 43 ; . . . . Infra, 38 ; Keplevin, 8. V. CONFLICTING CLAIMS. 31. Ejectment by the holder of a land certificate against one who held a patent for the same land issued on a younger certificate — Held, that the elder certificate must prevail against the younger, and that the Commissioner of the Land Office had no authority under the act of Congress of May, 1824, (4 U. S. Stat. 31,) to vacate it. Morton v. BlankensMp, v. 346. 32. Where two certificates of entry are issued, and no patent is taken on either, the eldest will hold the land, there being no evidence of fraud, illegality or irregularity in the entry. Oroom v. Sill, ix. 320. 33. And the fact that the Commissioner of the General Land Office had can- celled the first entry, no patent being issued on the second, will not afioct the right of the party claiming under the eldest entry. Ibid. 34. The plaintiff in ejectment claimed the land in dispute under a patent from the United States, dated June 15, 1826, and the defendant claimed under the act of Congress of July 4, 1836, (5 U. S. Stat. 126,)— jBeZi, that the plaintiflPs was the better title, and that the patent of 1826, whether valid or not, must pre- 593 PUBLIC LANDS. V. Tail against the confirmation by the act of 1836, since the latter act expressly excepts from its operation all lands previously located by any person, under any law of Congress. Sairpy v. Papin, vii. 503. Wcdler v. Von Phul, xiv. 84. \&Qe Menard Y. Massey, 8 How. 293.] 35. Where one esters land of the United States in his own name with the money of another, and procures a patent for the same, equity will decree the title to the party -to whom it belongs. Tompkins, J., dis. Stephenson y. Smitht vii. 610. 36. And the State courts have jurisdiction in such a case, and a decree com- pelling the fraudulent patentee to convey to the equitable owner, does not violate the compact between this State and the United States, by which the State bound itself not to pass any law interfering with the primary disposal of the soil of the United States, or with any regulations of Congress for securing the title to such soil to the bona fide purchaser. Tompkins, J., dis. Ibid. 37. Where a survey is made by the officers of the United States, and it is a matter of concern between the government and the grantee only, the State courts will not interfere. But where the title has passed from the government, and the rights of others are involved, those rights will be protected by the State courts. Ott V. jSoulard, iz. 673. 38. A certificate of pre'emption issued on the 1st June, 1840^ under a right acquired under the pre-emption law of June 22nd, 1838, (5 U. S. Stat. 251,) will prevail against a certificate of entry made April 10th, 1839. The entry was sub- ject to the condition that there was no pre-emption right to the land ; and thepre- emption certificate relates back to June 22nd, 1838, and is thus the older right. Pettigrew v. Shirley, ix. 675. 39. Where certain lands are claimed by one party under a patent from the United States, and by the other as a grantee of the United States, by an act of Congress, and it appeared that the survey on which the patent was founded was returned to the recorder's office February 12th, 1822, and that the grantee accept- ed the grant from the United States December 31st, 1821, it was held, that the title was vested in the grantee, instead of the patentee. Z/essieur v. Price, xii. 14. 40. The patentee in this case was proprietor of lands in New Madrid, which were injured by the earthquakes, and he became thereby entitled to the bounty of Congress. Strangers to him procured this bounty in his name, and he did not ratify the same until he did it by deed in 1842 — Held, that as this bounty was conditional on the donee's giving up the injured land, that the title did not vest in the patentee until he had accepted the gift of Congress by deeding it away. Ibid. 41. The plaintifif derived title to the premises in dispute from a Spanish grant which was confirmed by the act of Congress of July 4, 1836, (5 U. S. Stat. 126,) and the defendant claimed under a patent from this State, founded upon a sale of saline lands granted to the State by the act of Congress of March 6, 1820, (R. S. 1845, 17,) — ffeld,tha.t the latter was the better title, and would prevail over the Spanish claim. Belauriere v. Emmerson, xiv. 37. 42. A suit was brought under the act of Congress of May 26, 1824, (4 U. S. PUBLIC LANDS. VH. 593 Stat, 52,) to try the validity of a claim to land — Held, that the land was not reserved from entry and sale during the pendency of the suit, unless the claimant had filed a notice of his claim with the recorder of land titles prior to July 1, 1808, and that a person obtaining a patent for the land from the United States, after the institution of the suit, but before a final decree in favor of the claimant, would hold it against a patent issued upon the decree in favor of the claimant. McCabe V. Worthington, xvi. 514. 43. Although the State courts cannot interfere with the primary disposition of the soil by the general government, yet if, in obtaining from the United States the legal title to a tract of land, one be guilty of a fraud, or affects himself with a trust, he shall hold the title thus acquired for the benefit of those who have been injured by his conduct. Groves v. Fulsome, xvi. 543. 44. A., having entered a tract of land, found B., a married woman, in posses- sion, without the right of pre-emption, and paid her fifty dollars for her improve- ments and for yielding possession to him. Afterwards, without notice to A., and with the money thus obtained, she procured a patent for the same, under color of a right of pre-emption' — Held, that the right thus acquired was clothed with a trust for the benefit of A. Ibid. 45. Where the legislature gave the trustees of a town authority to convey cer- tain vacant lots, it was held, that under such authority the trustees had a right to convey, and the title given by them could not be disputed by one claiming of the town by a subsequent title. The fact that there was a squatter upon the lots would not prevent them from being considered as vacant. Tigh v. Chouquette, xxi. 233. See Intra, 146-158. VL RESERVATIONS. 46. Where land has been reserved from sale by the United States, and the register and receiver sell them, notwithstanding the reservation, their acts are void as to the United States. Qucere, whether they would be so as to a party resting upon a naked possession. Hunter v. Hemphill, vi. 106. 47. But the mer^ designation of a claim to land upon the books of the regis- ter of the Land Office, by a stranger, is not a sufficient compliance with the act of Congress of March 3, 1811, (2 U. S. Stat. 665, § 10,) to authorize the regis- ter to reserve such land from sale. Ibid. See Supra, 42 ; Infra, 51, 183-186. Vn. SWAMP LANDS. 48. The trust created by the act of Congress of September 28, 1850, (9 U. S. Stat. 519,) granting swamp lands to the State of Missouri, is a personal trust reposed in the public faith of the State, and not a property trust fastened, by the terms of the grant, upon the land itself, and following it into whose hands soever it may pass. Dunklin County v. Dunklin County Court, xxiii. 449. 38 594 PUBLIC LANDS. tX. VIII. EMBLEMENTS. 49. A party who plants on public lands is not entitled to the growing crop as emblements. They pass with the title to the land to the purchaser from the United States. Boyerv. WiUiitms, v. 335. IX. GOVERNMENT OFFICERS AND AGENTS. a. GENERALLY. 50. Whatever irregularities may be committed by the agents of the govern- ment in the sale of the public lands, their acts are valid prima facie, until dis- claimed by the United States. Hunter v. Hemphill, vi. 106. 51. Therefore, where there was no express reservation, and the agents had a general authority to sell, a sale by them is valid and binding upon all parties, except the United States, and those claiming under the United States. Aid. b. SURVEYOR GENERAL. 52. Where a ministerial officer is required to exercise his judgment, or does a judicial act which is within his jurisdiction, then, although an injury may arise to another, such officer is not liable to a civil action by the injured party, unless it be shown that the act was wilful and malicious. Thus, a surveyor general is not liable to an action for revoking the commission of a deputy, and annulling a surveying contract and refusing to receive and examine the field notes, where he acts in good faith and without malice. Reed v. Conway, xx. 22. See Infra, 55. 53. Since the only duties of a deputy surveyor are to make surveys under special contracts, his removal, where he has no such contract, although wanton and without cause, would give him no cause of action. And where the surveyor general, in interfering with the deputy in the execution of his contract, acts in good faith and without malice, the fact that he acts unlawfully will not subject him to liability. Seed v. Conway, xxvi. 13. 54. A contract entered into in behalf of the United States, by the surveyojf general of Illinois and Missouri, with one of his deputies, for surveying of public lands, is a contract of the government and not of the surveyor. Ibid. 55. Under the Act of Congress, (1 U. S. Stat. 464,) the surveyor general of Illinois and Missouri has no authority to remove one of his deputies, except for negligence or misconduct in office. After the surveyor general has entered into a surveying contract with a deputy he has no right, without cause, to remove him. Ibid. See Supra, 52. C. REGISTER. 56. The register of the land office cannot delegate his judicial authority, but he may act by deputy as to ministerial duties. Hunter v. Hemphill, vi. 106. PUBLIC LANDS. X. 595 X. CONFIRMATIONS AND GOVERNMENT GRANTS. a. VALIDITY AND EFFECT. 57. The object of the act of Congress of 1812, relating to confirmations, (2 U. S. Stat. 748,) was to confirm to the inhabitants of the towns and villages therein enumerated, the lots occupied by them prior to December 1803, and did not apply to a person who had ceased to be an inhabitant long before December 1803, by abandoning the country, and who never after returned. Lajoye v. Primm, iii. 529. 58. That act passed the title of the United States to the person in possession of the lots therein enumerated prior to December 20, 1803, although such posses- sion, &c., may not have continued up to the date of the act. Ourno v. Janis, vi. 3.S0. 59. And it also, propria vigore, conferred title on the claimants, and no farther action was necessary, either on the part of the government or the claimant. Page v. Scheibel, xi. 167. 60. It was not necessary that the claimant should file a claim with any officer of the Federal Government ; nor were the provisions of the act of 1824, (4 U. S. Stat. 52,) obligatory upon the claimants. The latter act only enabled them to procure documentary evidence of title Ibid. 61. So where a claimant does not prove his claim under the act of May 26, 1824, (4 U. S. Stat. 62,) his claim is not invalidated by want of such proof; but it is allowable for him to establish it by parol proof of inhabitation, cultivation, or possession prior to December 20, 1803. Soulard v. Clark, xix. 570. City of St. Louis v. Taney, xxi. 243. City of Carondelet v. City of St. Louis, xxv. 448. 62. And such persons, where their rights are in litigation, have only to show that their claims are embraced within the act. Tompkiss, J , dis. Napton, J,, absent. Ourno v. Janis, vi. 330. 63. And it is not necessary to show a concession, or any authoritative act of the Spanish Government, to show title to a common field lot, the act of Con- gress confirming the title upon possession, cultivation or inhabitation before 1803, without regard to the legality of the origin of the title. Page v. Scheibel, xi. 167. 64. And the cultivation of part of a tract of land, under claim of the whole, is a cultivation of the whole tract. Gamaehe v. Piquignot, xvii. 310. 65. But such inhabitation, cultivation and possession must have been actual inhabitation, &c. Papin v. Sines, xxiii. 274. 66. The recorder had no power, under the act of 1812, to confirm any title on a concession ; he was authorized to act alone upon inhabitation, cultivation or possession. Page v. Scheibel, xi. 167. 67. The treaty by which Louisiana was acquired, imposed only a political obligation upon the government of the United States to perfect titles, rights and claims originating under France and Spain. Mackay v. Dillon, vii. 7. 68. And when the government confirms land to one claimant, it extinguishes any mere inchoate title in another. Ibid. 69. The act of Congress of July 4, 1836, (5 U. S. Stat. 126,) is a legislative 596 PUBLIC LANDS, X. grant of the interest of the United States, in the confirmed claims to the con- firmees, and requires no further action to pass the title of the United States to them. A patent issued under that act is without authority and void. Ashley v. Cramer, vii. 98. 70. This act does not require that a claim should in terms be recommended for confirmation, in order that it may come within the purview of the act. The opinion of the board of commissioners, that a claim was confirmed by the act of June 13, 1812, is sufScient. Soulard v. Clark, xix. 5Y0. 71. The effect of a confirmation, under the acts of Congress, of a claim to lands, is only the relinquishment of title on the part of the United States, and does not affect the right or title of adverse claimants to the same land. Barry y. Gamble, viii. 88. 72. A confirmation of land by law is equivalent to a patent, and after such confirmation, the United States cannot divest the title by giving a patent to another. Harrold v. Simonds, ix. 323. Cottle v. Sydnor, x. 763. 73. Where a Spanish , grant has been reported upon by the commissioners acting under the acts of Congress of July 9, 1832, (4 U. S. Stat. 565,) and of March 2, 1833, (4 U. S. Stat. 661,) and confirmed by the act of Congress of July 4, 1836, (5 U. S. Stat. 126,) the courts of this State cannot question the validity of such confirmation, upon the ground that no survey had been pre- viously made under the Spanish Government. Archer v. Bacon, xii. 149. . 74. The effect of a confirmation by the board of commissioners for the adjust- ment of land titles in the territory of Louisiana, under the act of Congress of March 3, 1807, (2 U. S. Stat. 440,) is to vest the legal title in the claimant or his legal representatives. Landes v. Perkins., xii. 238. 75. But the act directs the board of commissioners to confirm only such claims as may be brought within its provisions, by evidence produced before them, and does not import a present confirmation by the direct action of Congress upon tJie claim, and until an inchoate title, originating under the Spanish Government, has been confirmed, it has no standing in a court of law or equity. Burgess v, Oray, XV. 220. 76. The act of Congress of April 12th, 1814, (3 U. S. Stat. 121,) does not, propria vigore, confer a legal title. Papin v. Hines, xxiii. 274. 77. The commissioners appointed under the act of Congress of July 9, 1832, (4 U. S. Stat. 565,) were authorized to examine only those unconfirmed claims that had been previously filed in the oflBce of the recorder of land titles ; no new claims could be examined by them. After the passage of that act, claims undis- posed of after May 26, 1828, stood as they did before the passage of the act of May 26, 1824, (4 U. S. Stat. 52.) Papin v. Massey, xxvii. 445. See Ejectment, 6, 14. b. EVIDENCE. , 78. Under the statute, (R. S. 1825, 362, § 5,) which provided that "certified copies of confirmations had before the board of commissioners for the adjust- ment, &c., or before the recorder of land titles," &c., shall be received as evidence — Held, that a certified copy of a portion of a report made to the Commissioner PUBUC LANDS. X. 597 of the General Land Office, by the recorder of land titles, under the act of Con- gress of August 2d, 1813, (3 U. S. Stat. 86,) which report showed that a particnlar claim was reported to said commissioner, with the opinion of the recorder that it ought to be confirmed, was admissible in evidence to show that said claim was embraced among those afterwards confirmed by Congress. Qm 6. Where the statute required the recognizance o^ appeal from the judgment of a Justice to be subscribed by the appellant, (Gey. Dig. 389, § 16,) an appeal is properly dismissed for want of his signature thereto. Nichols v. St. Louis Circuit Court, i. 357. 6. Under a statute, providing that the condition of a recognizance given by a plaintiff oli an appeal from a judgment of a Justice, shall be, that " if the judg- ifrieht df the Justice is affirmed, or if the plaintiff shall recover less," &o., (1 Ter- L. 309, § 7,) a bohd conditioned that " if the judgment be affirmed, or if the defendant shall recover more, then the plaintiff shall pay costs," cfec, was held to be a substantial compliance with the statute. Strange v. Ellis, i. 412. I. An instrument termed " a bond by the Justice," signed by the Justice, in his character as such, on the left hand side of the page, without using the word " test," or " witness," or the words " signed in the presence of," is good as a recognizance, under the statute. (1 Ter. L. 309, § 7.) Sargent v. Shat-p, i. 601. 8. The recognizance on an appeal from a Justice must be made to the appellefe, and if made to the State of Missouri, it is defective in substance, and taniiot bfe remedied in the Circuit Court. (See R. S. 1825, 480, | 22.) Pride v. Ealsed, ui. 461. 9. Where an appellant prays an appeal from a Justice, and files his affidavit, which is certified by the Justice, and also files an appeal bond, which is not certified by the Justice — Held, sufficient evidence of an appeal, and that it was flie duty of the Justice to certify the bond, and the appellate court was correct in allowing a new bond to be filed in that court. Jones v. Davis, iv. 28. 10. If the Justice fail to approve and attest a recognizance for an appeal, it is void. Cockrill v. Owen,^ x. 287. II. An appeal bond, payable to Joseph, which should have been made payatte to John, is bad, and the court is not bound,to allow the appellant to amend, but may dismiss the appeal. Smith v. Keenan, xiv. 529. 12, A recogniianGe would not be void if the character of the parties, as plaintiff and defendant, were entirely omitted. Nor if the characters are trans- 614 RECOGNIZANCE. II. posed by an error of the clerk, if it clearly appears to have been only an error. ffalsall V. Meier, xxi. 1.36. , ,. 13. It is error to dismiss an appeal on the ground that the recognizance stated the appeal to be to a wrong court, (the transcript having been filed in the proper court,) a motion for leave to amend having been made before the motion to dis- miss was disposed of. Matthews v. Gloss, xxii. 169. 14. A recognizance taken on an appeal from a Justice to the St. Louis Land Court, made payable to " M. S. and others, plaintiffs in this suit," and containing a clause in the condition, that " if on the trial anew in the Land Court or Law Commissioners' Court," &c., is sufficient. Smith v. Montreil, xxvi. 578. b. TIME OF FILING. 15. An appeal from a Justice should be dismissed where it appears that the affidavit and recognizance were not taken until several days after the appeal was granted. Filley v. Walls, iv. 2*71. 16. A recognizance for an appeal from the judgment of a Justice, is void, if not entered into in the time and manner prescribed by law. (See R. 8. 1845, 667.) Adams V. Wilson, X. 34:1. C. NECESSARY TO PERFECT APPEAL. 17. An appeal from a Justice's court is not taken until a recognizance is • entered into and approved by the Justice, although the Justice's docket may show that an appeal was applied for and allowed on the day of trial. Slater v. St. Bt. Convoy, X. 513. d. ACTION ON. aa. Pleading. 18. The recognizance for an appeal from the judgment of a Justice, is strictly a recognizance, and not a penal bond, and breaches must not be assigned in a suit upon such an instrument. Cockrill v. Owen, x. 287. 19. A Justice has jurisdiction in actions upon such recognizance. Ibid. bb. Judgment. 20. If, upon the trial of an appeal in the Circuit Court, judgment is rendered against the appellant, but not against his security in the recognizance, an action against the surety upon the recognizance, is not barred by such omission. Cock- rill V. Owen, X. 287. Unterrein v. McLane, x. 343. 21. In a suit on a recognizance, taken on an appeal from a Justice, no assess- ment of damages is required, but the judgment is for the penalty, and in some cases, for interest thereon. Ibid. 22. In a scire facias on such recognizance, if no plea be filed, judgment will be rendered at the first term. Ibid. 23. The judgment cannot exceed the penalty of the recognizance, and interest thereon. Ibid. RECORD. I. 615 24. Where a party becomes surety for two co-defendants in an appeal bond, and a verdict is given in favor of one and against the other, in the appellate court, judgment on the bond may be entered against the surety. Hood v. Mathis, xxi. 308. See Judgment, 80. See Cbiminal Law, 250-261 ; . . . . Forcible Entkt and Detainer, V ; . . . . Laws, 46. RECORD L FROM OTHER STATES— AIJTB [I. EVIDENCE. a. PAROL. b. EFFECT AND ADMISSIBILITT. c. OBJECTION TO. d. LOST BECORD. e. OFFICE COPY. f. LIVRE TERREIN. g- DEED. h. OF COUNTY COURT. i. JUDGMENT. J- SPANISH RECORD. k. OF LAND OFFICE. 1. FORMER RECOVERY. m. INTERPLEADER. L FROM OTHER STATES— AUTHENTICATION. 1. To render an office copy of a deed recorded in another State, admissible in evidence here, it must appear by the certificate of the clerk, in certifying the official character of the judge, that he is the presiding judge or justice of the court of which he is clerk. Therefore, the certificate of the clerk of the County Court of Hartford County, that A. B. is presiding judge of the sixth judicial dis- trict, composed of Baltimore and Hartford counties, is insufficient. Paca v. Button, iv. 371. 2. Qumre, Whether the words " duly commissioned and sworn " are equiva- lent to the words " duly commissioned and qualified ?" Ibid. 3. The certificate of a presiding judge of a Court of Record of another State, that the attestation of the clerk of such court, is, in due form and by the proper officer, is conclusive evidence that the certificate contains all the facts which, by the laws of that State, it should have certified. Bennick v. Chloe, vii. 19T. 4. Under the Act of Congress of 1Y90, (1 U. S. Stat. 122,) it is indispensable that the judge should state in his certificate, that the attestation of the clerk is indue form. Duvall v. JEllis, xiii. 203. Wilhurn v. Hall, xvi. 426. 5. And where a court of another State is not so constituted as to bring it 616 IlECORD. n. within that act; its proceedings may bfe authenticated in thfe common l4w fonn. Ibid. 6. In the authentication of a foreign record, undet the Act of Cottgress of 1 Y90, the words " my seal of office," in the certificate of the Clerk of the Court, are synonymous with the seal of the court. McLain v. fVincheskr, xvii. 4r9i II. EVIDENCE. 7. Matters of record cannot be proved by parol. Where, therefore, in a suit for the possession of a mare, it was attempted to base a defense upon the fact that the mare had been taken out of the possession of plaintiff by virtue of a writ, the fact of the issue of such writ, and the proceedings under it, must be established by the record. Wynne v. Aubuckon, xxiii. 30. See EyiDBNGK, 65-70. b. EFFECT AND ADMISSIBILITY. 8. In a suit brought by an assignee against the sheriff, for seieing the assigned propert)', the record of the attachment suit, in which the goods were taken, is inadmissible to show that the assignment was fraudulent. Wise v. Winter, xxiii. 237. 9. In an action against a constable, for the seizure of goods under an attach- ment issued by a Justice, the record of the proceedings in the case, is competent evidence for him. Snead v. Wegman, xxiii. 263. C. OBJECTIONS TO. 10. Where a record is proper evidence of a fact, it will be admitted, and the opposite party is left to his motion to exclude the irrelevant matter in the record from the consideration of the jury. Soulard v. Clark, xix. 570. 11. And, the particular objections must be specified. The State y. Gates, xx. 400. McCartney v. Shepard, xxi. 573. d. LOST RECORD. 12. To entitle a party to give parol evidence of the contents of original papers, in a suit tried before a Justice whose term has expired, he must first prove their loss, either by the official certificate of the successor of such Justice, or by his examination under oath. Apperson v. Ingram, xii. 59. 6. OFFICE COPT. 13. Concerning marriage contracts and other papers, frhich, accOrdiiig to the usages and customs of the Spanish Government in Upper Louisiatiii, were de{)osi- ted among the archives Of the government, and copies merely delivered to the parties, those copies are admissible in evidence — 1st, when sworn to ; Slid, Whfeli certified by the officers of our government, who lUay hav6 the dnstody of the o'figi- HSCORD. II. 617 tAh ; 3rd, when certified by the Spanish authorities, who had, at the time, the custody of the originals, with the additional proof that the person certifying was acting in the office which he pretends to fill, and that the signature to the certi- ficate is in his hand-writing. Chouteau v. Chevalier, i. 343. 14. Ati office copy of a public record will be presumed to be correct. Bettig V. Logan, ii. 2. 15. Such a copy from the records of the Supreme Court, in a case remanded to the Circuit Court, is a record of the Circuit Court when filed therein, and an ofiieiil transcript of it is evidence of the facts it contains. Ibid. 16. A certified copy of a part of a record is not admissible. The whole record must be certified. Philipson v. Bates, ii. 116. 17. A copy of a deed made and recorded in 1816, and certified by the ex-offieio recorder, is not evidence, as the law did not authorize the recorders to make and certify such copy. Strother v. Christy, ii. 148. 18. In an action on a judgment, a certified copy of a bill in chancery, filed by the defendant against the plaintifi", is not evidence, and will be excluded, although it appear in the transcript of the judgment record. Blair v. Caldwell, iii. 353. 19. To render a certified copy of a record admissible in evidence, it must appear that the original was a public record, kept in pursuance of the laws of the State where it was made. Haile v. Palmer, v. 403. 20. An office copy of the record of a deed, regularly acknowledged and recorded, is admissible in evidence when the original has been lost, or is not within the power of the party ofifering to produce it. Bosworth v. Bryan, xiv. S75. 21. Although a certified copy of any record or public paper, by the officer entrnsted with its custody, is evidence if the original would be, yet neither would be evidence of matters which the officer was not legally bound to record. Chil- dress V. Cutter, xvi. 24. 22. A certified copy from the record of a memorandum of sale, not a Spanish archive, executed December 26th, 1786, and not recorded before the year 1811, may, under the statute, (R. S. 1845, 469, §§ 17-19,) be read in evidence only upon proof of such facts and circumstances as, together with the certificate of acknowledgment or proof, will satisfy the court that the person who executed the instrument is the person therein named as grantor. Aubuchon v. Murphy, xxii. 115. 23. Where a deed of conveyance is duly acknowledged and recorded, and is shown not to be within the power of the party wishing to use it, an office copy thereof is admissible, and no notice to produce the original is required. Gilbert V. Bdyd, XXV. 27. f. LIVRE TERREIN. 24. A grant appearing on the land book called livre terrein, will not be consid- ered as existing by matter of record, without evidence that the livre terrein is of itself a record. Rill v. Wright, iii. 243. ^S. The land book, or livre terrein No. 2, made under the authority of the Spanish government, is a public record. Wright v. Thomas, iv. 577. 618 RECORD. II. 26. The entries made in livre terrein upon the margin of the records of Du- ralde's Spanish surveys of common field lots, showing an abandonment of those lots and a re-uniting them to the king's domain, are admissible in evidence, in a suit founded on an alleged confirmation by the act of Congress of 1812, (2 TJ. S. Stat. 748,) to show that under the Spanish government it was not unusual for the inhabitants to abandon their possessions. Rne v. St. Louis Public Schools, xxiii. 570. g. DEED. 27. A party not entitled to the original deed piay give the record of it in evi- dence when the original would be competent, although the original has not been lost or destroyed. Walker v. Newh&ijise, xiv. 373. h. OF COUNTY COURT. 28. The records of the County Court reciting a transcript filed therein from a Justice, may be read in evidence without producing the transcript. Suston v. Beckndl, iv. 39. i. JUDGMENT. 29. A. made a promissory note to B., who indorsed it to C, and C. indorsed it to D. — Held, in a suit by C, against B. on this indorsement, that a record of a suit by D. against A., in which suit A. was prosecuted to insolvency, was admis- sible to prove diligence on the part of C. Lane v. Clark, i. 657. 30. Where a party to a suit claims title under an execution sale, the record of the judgment or decree on which the execution issued is conclusive evidence that such judgment was rendered, and of all the legal consequences of that judgment. Jones V. Talbot, ix. 120. 31. In an action by A. against B. to recover the price of a cow sold by B. to A., on the ground that B. had no title to sell, the record in a suit between A. and C, who claimed the cow, wherein C. recovered judgment, is not competent evi- dence to show title in C, nor for any other purpose, unless B. had notice of the suit. But the person of whom B. bought the cow is a competent witness for him. Fallon-v. Murray, xvi. 168. 32. Where a record is used in evidence merely to show that there was a cer- tain judgment, it is necessary to put in only such part of the record as is rele- vant. But where the record is offered in evidence to prove the facts therein con- tained, the whole record must be produced. Lee v. Lee, xxi. 531. 33. A. contracted to build a house for B. and C, and A. agreed to secure B. against all liens, claims and losses. Liens were filed by sub^contractors against said house, upon which writs of scire facias were issued against A. and B. These writs were served upon B., but not upon A. Judgments by default were ren- dered against B., which he paid — Held, in a suit instituted by B. against C. to recover for breach of the agreement, that the record in the suits against B. were admissible to show the amount of the judgments and the payment of them by B., but were not conclusive upon C, neither C. nor A. having nptice of the com- mencement, of proceedings by scire facias. Picot v. Signiago, xxvii. 125. RECORD, n. 619 J. SPANISH EECORD. 34. Where an instrument was executed before tte Lieutenant Governor of a Spanish province, and deposited in the archives of the government a copy of the same, duly certified by the recorder of the county where it was deposited, is enti- tled to be received in evidence unde? the statute, (R. S. 1845, 469, § 13.) Charlotte v. Chouteau, xxi. 590. See Sdpra, 13. k. OF LAND OFFICE. 35. Where the surveyor of the lands of the United States in Missouri certifies copies of papers required by law to be deposited in his office, it is not necessary to prove his handwriting in order to the giving of such copies in evidence. Bryan V. Wear, iv. 106. 1. FORMER RECOVERY. 36. A former recovery may be given in evidence under the general issue. Hempstead v. Stone, ii. 65. 37. The record of a former recovery apparently for the same cause of action, is /)n7Ka/ac«e evidence only that such recovery was for the same cause of action, and may be repelled by evidence showing that the ground of the subsequent action is separate and distinct from the demand made on the former trial, and arose out of a separate transaction. Brown v. King, x. 56. The State v. Morton xviii. 53. m. INTERPLEADER. 38. The plaintiff instituted suit by attachment against one A., and attached as his certain property, which was claimed by B., who interpleaded. The defend- ant agreed with the plaintiff that if he would permit the attached property to be delivered to B. to be sold, he would pay the plaintiff the amount of the proceeds of the sale, or deliver to him similar property, in the event that the interpleader should be finally decided against B. — Held, that to entitle the plaintiff to recover npon this agreement, it was not necessary to prove that the property attached belonged to A.; the determination of the interpleader in favor of the plaintiff fixed defendant's liability ; that, although the defendant was a stranger to the interpleader, the record of it was proper evidence to show how it was determined; that it was not necessary for the plaintiff to aver or prove that the defendant had notice of the termination of the interpleader, nor to aver or prove a demand of the money or property, nor to aver or prove that the defendant had notice of the net proceeds of the sale of the attached property, to enable him to recover. Walsh V. Agnew, xii. 520. See Administration, V ; Courts, III ; Evidence, 65-70. 620 KELEA'^E.— REPLEVIN. I. RELEASE. 1. Whefe an execntidfi creditor received frOiii One of several joint fexecUtion debtors a part of the amount due, and agreed in writing, not under seal, to dis- charge him from further liability, it was held, that such paylneiit and agreement to discharge did not operate to discharge the whole judgment, or tO release the other debtors therein. McAllister v. Dennin, xxvii. 40. [And See E. S. 1858, 873, § 14.] See Pleading, 51. REPLEVIN. I. WHEN IT LIES. II. DEMAND. III. PARTIES. IV. PLEADING. V. EVIDENCE. VI. DAMAGES. VIL JUDGMENT. VIII. BOND. IX. PROCEEDINGS BEFORE JUSTICE. X. CAPIAS. I. WHEN IT LIES. 1. Detinue will lie where the property proclaimed has been taken from the possession of plaintiff tortiously. Overfield v. Bullitt^ i. 749. 2. Where the plaintiff sued as administrator, and showed property in his intes- tate, and possession and detainer by the defendant since the death of the intestate — Held, that the action would not lie, as the possession and detainer was against the administrator in his own right. Melton v. M'Donald, ii. 45. 3. To support an action in detinue, the plaintiff must have either a general or special property in the chattel sued for ; and if special, it must result from actual possession, or be coupled with an interest therein. Ramsay v. Bareroft, ii. 151. 4. Replevin will lie although there was no actual taking from the plaintiff, or trespass committed by the defendant, Crocker v. Mann, iii. 472. Skinner v. Stousi, iv. 93. 6. ThS action of replevin under our statute, (R. S. 1825,659,) is not local but transitory. Crocker v. Mann, iii. 472. 6. Where the owner of property stands by and sees another sell it, and says nothing when he might properly speak, and especially if he encourages the sale, he cannot afterwards recover the property. Skinn&f v. Stdusi, iVt 93i REPLEVIN, m. 621 7. The possession of the wife is the possession of the hnsband. King v. Bailey, Ti.§75. 8. A person claiming land as a pre-emptor, cannot maintain replevin for tim- ber cut thereon, before his right has been proved. Bower v. Highee, ix. 256. 9. Replevin will not lie for an injury to the bare possession of property ; there most be a general or special property. Broadwater v. Darne, x. 277. 10. A special property in the thing taken is suflBcient to sustain the action of detinue. Schulenherg v. Campbell, xiv. 491. 11. Property originally obtained by a trespass may be recovered in detinue, as thfl trespass may be waived. Ibid. 12. A party who never has had the actual possession of personal property, and who is not the general owner of it, cannot maintain replevin against a party in actual possession. Holliday v. Lewis, xv. 403. 13. A purchaser of pereonal property at sheriflF's sale, under an execution against a mortgagor in possession, cannot maintain replevin against the mort- gagor. The mortgagor, in such case, is not estopped from setting up a want of property in the subject of the sale. Yeldell v. Stemmons, xv. 443. 14. Purchase at a sheriff's sale, and possession thereunder, make a prima faci^ title in an action of replevin. £^ingsbury v. Lane, xvii. 261. 15. Where there is only an agreement to sell a slave and not a sale executed, an action for the possession cannot be maintained ; the remedy is by an action on the contract for damages. Suggett v. Oason, xxvi. 221. n. DEMAND. 16- Where the possession of personal property is obtained without the privity or consent of the owner, no demand of it is necessary to enable the owner to maintain detinue therefor. Irwin v. Wells, i. 9. 17, A demand is not necessary to sustain detinue for logs cut and carried away from lands of the plaintiff. ScJmUnberg v. Campbell, xiv. 491. m. PARTIES. 18. Husband and wife may join in an action of detinue for the recovery of property of the wife detained from her before the marriage. JSaile v. Palmer, V. 403. 19. But the declaration must set out the interest of the wife. It is not suffi- cient to allege simply that the husband and wife were possessed of the property as of their own goods, &c. Ibid. 20. Where an action of detinue is brought by a tenant in common of a chattel, mthontjoining his co-tenants, the non-joinder may be pleaded in abatement, or may be U^qn advantage of on the trial, although the form of action is ex delicto. Smoot v. Wathen, viiL 522. ?1. Joint tenants, or tenants in common, of a chattel, must join in an action for the recovery of the chattel or its value. Ibid. 622 ' REPLEVIN. V. 22. Where A. conveys personal property iii trust for the payment of a debt, and afterwards conveys the same property directly to the creditor, the legal title is in the trustee, and the property being in the possession ot a fourth party, a suit for its recovery is properly brought in the name of the trustee. BergeSah V. ICeevil, xix. 127. IV. PLEADING. 23. To maintain the action of detinue, the plaintiflf must have in himself the right of property, coupled with the right of immediate possession, and must so allege in his declaration. The omission of such allegations is fatal, even after verdict. Melton v. M'' Donald, ii. 45. 24. In replevin, a plea of property in the plaintiflf and another, is good, bqth in bar and in abatement. Phillips v. Townsend, iv. 101. 25. To a plea in replevin, which alleges property in one P. and N., a replica- tion is bad that alleges that P. and the plaintitf are the same, without noticing N. Ibid. 26. A plea in bar to an action of detinue by a ferryman, which alleges that his fees were not paid, and that the plaintiff entered his boat without his consent, is bad, both as double and as amounting to the general issue. Pomeroy v. Donaldson, v. 36. " 27. In an action of replevin, the defendant pleaded in abatement, that " he was in possession of the property as the receiver in a suit of chancery, in which A. was plaintiff, and B. (the plaintiff in this suit,) was defendant, and that the said property was put into his hands and possession as receiver, by virtue of legal authority" — Held, that the plea was defective, in not showing how, when and where he was appointed receiver. Armstrong v. JfcJ/iZZo/i, ix. 712. 28. In an action of replevin, a plea of justification, alleging that the defendant, as constable, seized the property by virtue of an execution, where the' party in possession of the property was not the defendant in the execution, must aver that the property belonged to the defendant in the execution. Smith v. Winston, X. 299. 29. In a proceeding under the new code, to recover possession of personal property, the value of the property need not be stated in the petition if it is stated in the aflBdavit ; nor is the omission of the jury to find the value a fatal error. Schaffer v. Faldwesch, xvi. 337. V. EVIDENCE. 30. In an action for the recovery of personal property, it is competent for a witness to testify as to the value of the property, or as to what it would sell for. Easton v. Woods, i. 506. 31. To an action of replevin, the defendants pleaded non cepit. The evidence of taking was, that the horsey &o., sued for, were ranging about the farm, and EEPLEVIN. VII. 623 that the defendants exercised authority on the place, by prohibiting the plaintiff from removing them — Held, sufScient proof of the taking. Moore v. Moore, iv. 421. 32. Under the plea of " not guilty," in an action of replevin, evidence is admis- sible to show that the plaintiff is not entitled to the possession of the property replevied, and that a deed under which the property is claimed is void. Gibson V. Mozier, ix. 254. VI. DAMAGES. 33. Evidence of a re-delivery of property, by which the party has been restored to his former condition, may be given in mitigation of damages ; but where a son of the plaintiff forcibly took possession of the property, which was immedi- ately re-taken from him, this was held to be in uo sense a reparation. Easton v. Woods,!. 506. 34. In an action of replevin, where the plaintiff fails to prosecute his suit with effect, the assessment of damages is imperative, and may be made by the court, if neither party retjnires a jury. Reed v. Wilson, xiii. 28. 35. In an action of detinue, where the slave sued for dies before judgment, the measure of damages is the use and hire of the slave up to the time of his death. Haile v. Hill, xiii. 612. 36. Where a slave has been detained by virtue of a writ of replevin, a judg- ment for his value, in damages, for the defendant, would be erroneous. Law- rence V. Lawrence, xxiv. 269. See Infra, VII, 46, 49, 50. VII. JUDGMENT. 37. A. brought an action of replevin against B. for a slave ; B. pleaded pro- perty in said slave in C, which plea was found for B., and judgment given upon it for him. C. afterwards conveyed the slave to A., who brought another action of detinue against B. for the slave — Held, that the finding and judgment on the plea of property in C. were conclusive between the parties, and that B. was estopped to dispute property in the slave at the commencement of the first suit. Tompkins, J., dis. Penrose v. Green, i. 774. 38. In detinue for two slaves, the judgment should be for the separate value of each, and not for their aggregate value. MuUikin v. Greer, v. 489. 39. If a plaintiff, in an action of replevin, takes a non-suit, the defendant is entitled to the same judgment and damages as if he had recovered a verdict gainst the plaintiff. Smith v. Winston, x. 299. 40. In a suit for the possession of a slave, it appeared from the facts found by the court that the slave belonged to the plaintiff, was in the possession of the defendant, and had escaped therefrom after the commencement of the suit ; but it did not appear whether or not the possession of defendant was wrongful — Held, 034 REPLEVIN. IX. that tbe finding was defective, and that a judgment for the defendant was erro- neous. BarJcsdale v. Appleherry, xxiii. 389. 41. In an action for thn possession of a slave, in which its value was alleged to be nine hundred dollars, and the damages for the detention one hundred dollars, the Jury did not find the value of the slave, but " assessed the damages at eiglit hundred dollars " - (Quaere, whether a judgment for such sum could be supported ! Beale v. Dale, xxv. 301. VIII. BOND. 42. In a suit on a bond which had been given in an action of detinue, it is no defense that the affidavit in the action of detinue varied in its description of the property from the description in the declaration. McDermqU v. Doyle, xi. 443. 43. The objection should have been taken to the affidavit on the trial of the original suit. Ibid. 44. The suit upon the bond for a failure to deliver tthe property is a mere coiii- tinuation of the original suit, and must be broHgbt in the same court in which the original suit was brought. Ibid. 45. In suits for the possession of personal property, under the new Qode, (Afits 1848'-9, 82, Arti VIII,) the provisions of the replevin act of 1845 are applicable as fay as it may be necessary to resort tp them tp prevent a failure of justice ; the provisions of the new code govern as far as they are praioticable. CoUir^f v, Ilifugh, xxvi. 149. 46. THjjs, where, under the new code, the plaintiff gives a return bojid and receives the property sued for, and fails to prosecute the action, an assessment of the value of the property, and damages for its detention, may be made, and judg- ment against plaintiff rendered as directed in statute of 1845. (R. S. 1845, 922, §§ 8, 9.) Ibid. 47. And the plaintiff cannot avoid this by taking a non-suit. Berglioff v. Heckwolf, xxvi. 511. 48. And summary statutary proceedings against the sureties in the retflrn bond must be had, under the new code. (Acts 1848-9, 84, § 9.) Collins y. ffoif^ffh, xxvi. 149. 49. Double damages for the detention of the property by the plaintiff cannot be given against his sureties. Ibid. 50. The condition in the bond, given under the statute, (Acts 1848-9, 83, § 3,) to prosecute the action, is a conditiop to prosecute it with effect — that is, with success ; and a voluntary non-suit amounts to a breach, and the obligee may recover full damages within the limit of the penalty, notwithstanding he may have failed to obtain a judgment for the return of the property, or for damages. Berghoff v, Heckwolf, xxvi. 511. IX PROCEEDINGS BEFORE JUSTICE. 51. In actions brought, under the statute of 1849, (Acts 1848^9, 67,) before a Justice for the recovery of personal property, the proceedings must be govemed REVENUE. L 625 by Art. VIII of the new code. (Acts 1848-9, 82.) McKnight v. Orinnion, xrii. 559. X. CAPIAS. 52. Under the practice act of 1849, the action of detinue was abolished; and since the passage of that act there is no such action, nor any power to issue a capias in such action. Moore \. Chamberlin, xv. 238. See Action, 51-53 ; Administration, 56 ; Appeal, 19; Costs, 38 ; JUEISDICTION, 69. REVENUE. L ASSESSMENT. n. PEOPERTY EXEMPT FROM TAXATION, m. SALE OF LAND FOR TAXES. IV. TAXATION BY MUNICIPAL CORPORATION, a. WHAT PROPEKTT MAT BE TAXED. b. SALE. C. REMEDY FOR ILLEGAL TAXATION. V. COLLECTOR. a. LIABILITY. b. SHERIFF AS COLLECTOR. C. SETTLEMENT. d. bond. e. action AGAINST COLLECTOR. f. APPEAL. VL SCHOOL TAXES. VII. ACTION FOR COLLECTION OF.— EVIDENCE. L ASSESSMENT. 1. That clause in the Constitution of Missouri which provides " that all prop- erty subject to taxation in this State shall be taxed in proportion to its value," (Art. XIII, § 19,) is mandatory upon the General Assembly, and furnishes a rule from which they may not depart. What property shall be subjected to taxation 18 left to their discretion, but the rule for making the assessment they cannot change. HamUton v St. Louis County Court, xv. 3. 2. That clause does not require that all the property in the State shall be taxed, but that, where any property is selected for taxation, it shall be taxed in proportion to its value. The State v. N(yrth, xxvii. 464. 40 626 EEVENUE. III. 3. It is applicable only to taxation in its usual, ordinary and received sense to taxation for general, State, county or city purposes, and not to local assess- ments, where the money raised is expended on the property taxed. Hgyptian Levee Co. v. Hardin, xxvii. 495. Same v. Cummins, xxvii. 495. 4. Where a lease is made without any stipulation about taxes, the landlord is bound to pay the taxes upon the property ; but if the tenant, by any improve- ments authorized by the lease, enhances the taxes, the landlord is not bound to pay the additional taxes. Leach v. Qoode, xix. 501. See Infra, VII. II. PROPERTY EXEMPT FROM TAXATION. 5. Under the statute which exempts from taxation school-houses and other buildings for the purposes of education, (R. S. 1845, 928, § 2, cl. 8,) a building used in part for a school-house and in part for other purposes, is not exempt. There can be no separate assessment for the part not used as a school-house. Wyman v. City of St. Louis, xvii. 335. III. SALE OF LAND FOR TAXES. 6. Sales of land for taxes are proceedings in invitum, and against common right. The statute authorizing such sales must be strictly construed, and its requirements strictly complied with. The presumptions in favor of the regular- ity of official action, and that a public officer has done his duty, do not apply in these sales. Mortonv. Iieeds,vi. 64. Seeds v Morton, ix. 8Q8. I. The auditor's certificate, required by the statute (2 Ter. L. 131, § 11,) to be transmitted to the recorder of the county where the lands lie, is only evidence of his own acts. Tompkins, J., dis. Ibid. 8. And it is only evidence of such acts of his as are therein particularly set out. Tompkins, J., dis. Ibid. 9. The statement in such certificate that "-the provisions of the law in such oases made and provided have been complied with," is wholly insufficient. Tompkins, J., dis. Ibid. 10. The lands and lots subject to entry at the office of the Register of Lands, under § 29 of the act of February 2'7th, 1843, providing for the sale of lands for taxes, (Acts 1842-3, 137,) are the lands and lots embraced within the first clause of the first section of that act, viz : lands and lots sold or forfeited to the State for taxes, and upon which the taxes have been due and unpaid for six years. Therefore, where the petitioner applied to the register to enter certain lands delinquent for the years 1837-8, and it appeared that the lands were not returned until the 13th of December, 183 V — Held, that they were not subject to entry. (See Acts 1836-7, 132, § 4.| Campbell v. Heard, viii. 519. II. The provision in the statute of 1825, relating to the collection of revenue, (B. S. 1825, 674, § 28,) which requires the certificate of the sale of land for taxea REVENTE. IV. 621 to be recorded, was to give to the owner of tte land additional means of ascer- taining that his land had been sold. Reeds v. Morton, ix. 868. 12. And the certificate of sale must be recorded in reasonable time, or the deed will be void ; and it is nugatory to do so after the time of redemption expires and the deed has been made. Ibid. 13. A deed, from the register of lands, of lands sold for taxes, of itself makes no title. Bosworth v. Bryan, xiv. 575. 14. Where several parcels of land are sold separately, according to law, at a tax sale, the purchaser is entitled to a deed reciting the real facts of the sale, that all may appear to have been done legally. But it is not essential that the register should state in the deed, after due examination, he was satisfied that all the requirements of the law had been complied with. The deed itself is evidence of that, as the register should not issue it unless satisfied. The State v. Richardson. xxi. 420. 15. Under the revenue law of 1845, (R. S. 1845, 952, § 18,) and of 1847, (Acts 1846-7, 122, § 30,) no title to land sold for taxes passes until the register executes the deed, and the deed does not relate back to the sale. The act of 1849, (Acts 1848-9, 111, § 4,) only applies to sales made after its passage. Domokoe v. Veal, xix. 331. See Infra, 17-18. IV. TAXATION BY MUNICIPAL CORPORATION. a. WHAT PBOPERTT MAT BE TAXED. 16. The legislature cannot authorize a municipal corporation to tax, for its own local purposes, lands lying beyond the corpora! e limits. Wells v. City of Weston, xxii. 384. b. SALE. 17. A purchaser at a tax sale, under city ordinances, takes no title unless due notice has been given of the sale, as prescribed in the ordinances. Nelson v. Qoehel, xvii. 161. 18. No presumption is to be made in favor of tax titles under city ordinances. The party who relfes on a tax title must, in order to succeed, show that all the necessary prerequisites to a legal sale have been complied with. If any city offi- cer has failed to give a proper description of the lot, as required by ordinance, the title of the city and its grantees will fail. Ibid. C. REMEDY rOB ILLEGAL TAXATION. 19. Taxes paid to a city collector, with a full knowledge of all the facts, the city having color of right to collect them, is regarded as voluntary, and not made under such circumstances as will authorize the party paying them to recover them back. If a part of a tax is legal and a part illegal, the proper mode for the party to pursue is to tender the amount legally due and resist the excess. Walker V. aty of St. Louis, XV. 563. Christy v. City of St. Louis, xx. 143. 628 REVENTTE. V. 20. Illegal taxes, assessed under color of law, and voluntarily paid to a city, ban- not be recovered back on the ground that the city has no right tb take and retain money which it has, by charter, no right to demand. Christy v, City of St, Louis, XX. 143. 21. So an administrator cannot recover back taxes illegally assessed and volun- tarily paid to a city, on the ground that the city has no right to take and retain money which it has no right by charter to demand. Ibid.. V. COLLECTOR. a. LIABILITY. 22. Where the tax books are delivered to the collector, and the amount thereof is charged against him on the books of the auditor of public accounts, the collector becomes responsible for the amount, and his resignation of his oflBce will not affect that responsibility, whether he proceeds to collect the taxes or not. Howard v. The State, viii. 361. 23. The sheriff, as such, and not as the collector, is responsible for the money collected by sale of lands for taxes, under the act of February 2'i^th, 1843. (Acts 1842-3, 137.) Moss v. The State, x. 338. 24. A collector who has collected and paid over to the county, taxes assessed at a higher rate than that allowed by law, is not liable for the excess to the tax- payers, nor can he recover back the excess, so paid over, from the county. Lewis County V. Tate, x. 650. b. SHERIFF AS COLLECTOR. 25. A sheriff was required by law to give bond and security "for the faithfiil discharge of the duties appertaining to his oflBce," (1 Ter. L. 256, § 1,) and gave a bond, the condition of which was that he " should well and truly perform the duties of Sheriff, according to law, to the best of his knowledge and abilities, and make faithful payment of all moneys he might collect, either for the public or individuals." By another law the sheriffs of the different counties were made collectors of the public revenues, and were required to give bond and security for the faithful collection and payment of all moneys received by them in that capacity, and were subject to summary proceedings and a special penalty fol failure to make settlements at stated periods, as required by law. (1 Ter. L. 387, §§ 12, 14, 17.) — Held, that neither the sheriff nor his securities were liable on his bond as sheriff, for his failure to make settlement of his accounts as collector. Riddick v. Governor, i. 147. 26. Under the statute of 1835, relating to the collection of the revenue, (R. S. 1835, 535, Art. Ill,) the sheriff is ex officio collector until the 1st January next succeeding the expiration of his term of oflSce ; and if such sheriff, on the expir- ation of his term, fail to qualify as collector, the vacancy in the office may be filled by the Governor. The State v. Fulkerson, x. 681. Fulkerson v. The State, xiv. 49. KEVENTJE. V. 629 27. Although the commission from the Governor may not state the term for which the officer was appointed, it is not void. That may be shown by parol. The State v. Fulkerson, x. 681. See Supra, 23. C. SETTLEMENT. 28. A county court has power to set aside the settlement of a collector for fraud, at any time during the term. Price v. Johnson County, xv. 433. d. BOND. 29. The defendant was collector of the revenue for the city of Boonville for 1839 and 1840. Bonds, with different sets of securities, were given for each year. The fiscal year commenced on the 3d of May. The register of the city kept a general account with defendant, and on the 3d of May, 1840, he was charged on the books of the register with a default of $1,437, and this balance was carried over to his account in 1840. The tax books of 1840, placed in defendant's hands and charged to him, amounted to $2,631 84-lOOths. During the year he paid over and was credited with $3,003. Nothing was said as to the application of the payments, to any particular items of indebtedness, but the payments were credited to his general account. At the end of the fiscal year 1840, there was a general balance struck against defendant of $1,070 66-lOOths. — Held, that where an officer is chargeable with the revenue of a specified year, it will he presumed in the absence of all proof to the contrary, that payments made during that year are designed to extinguish the liabilities of such year. But in the absence of all proof of intention, payments made in the year 1840, before the collector was charged with the revenue of that year, must be applied to extinguish the oldest item of indebtedness. Draffen v. City of Boonville, viii. 395. 30. Where a county collector serves two successive terms with different sets of securities, and in making payments during his second term applies them, although made out of the revenue of the second term, to the extinguishment of liabilities incurred during his first term, the misappropriation will be binding on the securities in the second bond, if the county treasurer receives the payment in good faith. The State v. Smith, xxvi. 226. 31. So also where, although the collector makes no appropriation, the trea- surer in good faith applies the payments to the extinguishment of the liabilities of the first term. Ibid. 32. Where the law makes the appropriation, in such cases, it will, as between the different sets of securities, appropriate the revenues of each official term to the satisfaction of the liabilities incurred during that term. Ibid. 33. It will not be presumed, as a matter of law, that all payments made by the collector into the treasury after the second term commences, are made on account of the revenue of the second term, since he may make payments before he becomes chargeable with any sums received from the revenue of the second term. Ibid. City of Si. Joseph v. Merlatl, xxvi. 233. See SuPBA, 25. 630 RIPARIAN RIGHTS. ACTION AGAINST COLLECTOR. 34. A count in a declaration, on a collector's bond which fails to show that the money which he failed to pay over was collected during his term of office, is bad. The Stale v, Grimsley, xix. 171. 35. In a suit on a collector's bond, plaintiff assigned as a breach, that defend- ant collected a sum certain which he failed to pay to the plaintiff. The defend- ant acknowledged the receipt of such sum, but alleged that he had paid it to the plaintiff, and that such sum was all he had collected. The plaintiff in his replication simply denied that such sum was all that was collected by defend- ant — Held, on demurrer, that, as plaintiff did not state what the whole amount was, the replication was bad, as being a departure and as tendering an immate- rial issue. Ibid. f. APPEAL. 36. Where a collector has failed to settle his account with the County Court, and the court proceeds to adjust the same as provided in the statute, (R. S. 1835, 151, Art. II ) an appeal will not lie. St. Louis County v. Sparks, xi. 201. VI. SCHOOL TAXES. 37. In order that a constable may lawfully levy upon a delinquent's goods and chattels, under the statute relating to the collection of school taxes, (R. S. 1855, 1439, § 3,) he must first demand the payment of the assessment. Atkison v. Amick, XXV. 404. VII. ACTION FOR COLLECTION OF.— EVIDENCE. 38. In an action under the statute, (R. S. 1855, 1528, § 14,) to recover the amount of taxes assessed on defendant's property, he cannot show that there was inequality in the different valuations made by the assessor. Town of Potosi v. Casey, xxvii. 372. See Chancery, 98-102; Laws, 54 ;. . . .St. Louis, XVII. RIPARIAN RIGHTS. 1. The banks of navigable rivers, in this State, are public highways, and though owned by private individuals, fishermen and navigators are entitled to a temporary use of them, in landing, fastening and repairing their vessels, and exposing their sails and merchandise ; but this right is subject to limitations, and will not justify a navigator in landing for several weeks, under pretense of repair- EIPAEIAN EIGHTS.— ROADS AND HIGHWAYS. U. 631 ing, and building houses, &c., thereby unreasonably obstructing the owner's enjoyment of his property. 0' Fallon v. Daggett, iv. 343. 2. Where the confirmee of a Spanish concession accepts a survey calling for a street along the bank of the Mississippi river, in an incorporated town, as a boundary, he will not be entitled, as a riparian owner, to land subsequently formed by accretion, although his concession may have called for the river as a boundary. Smith v. City of St. Louis, xxi. 86. ROADS AND HIGHWAYS. I. REMONSTEANCE. II. PETITION TO VACATE A EOAD. III. ROUTE. IV. TRESPASS. V. COMMISSIONEES' EEPOET, VI. OBSTEUCTING EOAD. VII. PEOCEEDINGS AGAINST DELINQUENTS. Vni. APPEAL. IX. INDICTMENT OF OVEESEER. X. PLANK ROADS. I. REMONSTRANCE. 1. A county court, having received a remonstrance against the location of a county road, and having appointed commissioners to assess damages, a majority of whom assessed damages in favor of the party remonstrating, cannot refuse to receive the report of the commissioners. The award must be complied with, or the case sent to a jury, as provided in the statute of 1847. (Acts 1846-V, 125, § 1.) St. Francois County v. Peers, xiv. 537. Same v. Mirks, xiv. 539. 2. The repeal of § 13, Art I, of the statute relating to roads and highways, (R. S. 1845, 963,) by the act of 1847, (Acts 1846-7, 127,) did not, by implica- tion or otherwise, repeal §§ 16, 17, 18 and 19 of the said act of 1,845, though seemingly dependent upon § 13. The only effect was to leave to the dis- cretion of the County Court, the time of receiving and acting upon remon- strances. Ibid. Ibid. n. PETITION TO VACATE A ROAD. 3. The proper course to be pursued by one who wishes to have a road closed that has been opened by order of the county, is to proceed, as prescribed in the statute, (R. S. 1855,1373, §§ 30, 31,) to vacate the same as useless. Bruce v. Saline County, xxvi. 262. 632 ROADS AND HIGHWAYS. VI. III. ROUTE. 4. Under the statute relating to roads and highways, (R. S. 1845, 960,) an overseer, appointed to open a road, cannot deviate from the route designated by the commissioners, against the consent of the owner over whose land the road passes. Where two objects, distant from each other, are marked by the com- missioners as designating the route of the road, the presumption is that the road is located on a straight line from one object to the other, if nothing appears to the contrary from their report or other official action. Butler v. Barr, xviii. 357. 5. A proceeding of a County Court for turning a road on another's land can- not be sustained under the act of 1845, (R. S. 1845, 964, § 20,) and a new road can be opened upon the land of a party not consenting only as prescribed in the act of 1851, (Acts 1850-1, 275, §§ 7-10.) Cooper County v. Oeyer, xix. 257. IV. TRESPASS. 6. County Courts having jurisdiction of the subject matter of opening roads, the order appointing an overseer to open a road is sufficient to protect him from liability as a trespasser on account of irregularity in the proceedings previous to the order. Butler y. Barr, xviii. 357. 7. The fact that the damages caused by laying out a road^ under the statute, (Acts 1850-1, 274,) may not have been assessed by the commissioners, will not entitle the owner of the land through which the road passes to treat as trespass- ers those who, under the order of the County Court, and for the purpose of completing the road, enter and cut timber upon the line of the toad as located. Walker v. Likens, xxiv. 298. V. COMMISSIONERS' REPORT. 8. The testimony of the commissioners, after they have ceased to be such, is not admissible to vary the legal import of their report. Butler v. Barr, xviii. 357. VI. OBSTRUCTING ROAD. 9. Where, in an action to recover the penalty provided in § 10 of the act relating to roads and highways, (R. S. 1825, 692,) the name of the prosecutor was not inserted in the process, the proceeding was held to be void for want of parties. Pearcev, Meyers, iii. 31. 10. An appeal lies from the judgment of a Justice in an action for the recovery of the penalty provided in § 10 of the act relating to roads and highways, (R. S. 1825, 692.) And where the record shows that the appeal was taken on the day of the trial, it is of no importance that the bond was inadvertently dated on the day after. Ibid. ROADS AND HIGHWAYS. IX. 633 11. A party who is prosecuted for obstructing a public way over his own land may show that his property has not been taken for public use according to law. Cfolahar v. Gates, xx. 236. Vn. PROCEEDINGS AGAINST DELINQUENTS. 12. In a suit by a road overseer, it is suflBcient that the summons required the defendant " to answer the plaintiff, B. S. P., for the use of the 21st road district, in a plea of debt on an account for failing to work on said road." Brown v. Pratte, ix. 331. 13. In the Circuit Court on appeal, after an appearance and trial on the merits before the Justice, it is no ground for dismissing a proceeding, commenced in the name of a road overseer, under the statute, (R. S. 1845, 967, § 46,) against a delinquent hand, that the summons, which is required to issue in the name of the road overseer, " to the use of the road district," simply describes the plain- tiff as " road supervisor," without specifying the district, this being specified in the entry of judgment. Slover v. Muncy, xxii. 391. 14. The list of delinquents which the road overseer is required to place in the hands of the Justice, (R. S. 1845, 96Y, § 45,) is for the information and govern- ment of the Justice, whose duty it becomes to' issue a summons against such delinquent, and is not intended as a written complaint against the party for his information. No written complaint is necessary. Ibid. VIII. APPEAL. 15. An appeal will not lie from the order of a County Court establishing or changing a road, unless some private right be affected by such order. Overbed; V. Galloway, X. 364. 16. Nor can a person become a party to such proceeding so as to be entitled to an appeal, unless his private rights are affected thereby. Ibid. 11. A party whose land is taken may appeal from the order of the County Court changing a road, and may in certain cases make the county a party to the proceeding. Cooper County v. Geyer, xix. 257. 18. Quaere, whether an appeal will lie from the proceedings of the County Court under the act of 1851 relating to roads and highways, (Acts 1850-1, 274.) Walker v. Likens, xxiv. 298. See StjpRA, 10. IX. INDICTMENT OF OVERSEER. 19. An indictment under the statute, (R. S. 1845, 968, § 57,) against the overseer of a road district, must distinctly charge that the fork at which he neg- lected to place a finger board is within his district, and the roads forming the fork must not terminate at the same point. The State v. Tuley, xx. 422. 634 SALE. II. 20. An indictment under the statute, (R. S. 1846, 969, § 62,) of a road ovei^ seer for failing to keep his road in repair, must state, in terms or substance, that the failure was wilful. The State v. Zevens, xxii. 469. X. PLANK ROADS. 21. A corporation, under the provisions of the act 1851, (Acts 1860-1, 260, § 6,) located a plank road over a county road already established and in use-^ ffeld, that the corporation was liable to the abutters of the road for damages caused to their houses and lands beyond the damages already caused by the con- struction of the county road. Williams v. J^^at. Bridge Plank Road Co., xxi. 680. See Justice of the Peace, 15 ; Laws, 24. See Error, 29 ; Laws, 73 ;. . . .Mandamus, 9, 11. . SALE. I. CONDITIONAL. II. DELIVERY. III. POSSESSION BY VENDOR AFTER SALE. IV. BILL OF SALE. V. WARRANTY. VI. FRAUDULENT SALES. VII. VENDOR'S RIGHT OF RE-SALE. L CONDITIONAL. 1 . The distinction beween a mortgage and conditional sale is that, if the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage ; but if the debt is extinguished by the agreement of the parties, or the money advanced was not by way of loan, and the grantor has the privilege of refunding if he pleases by a given time, and thereby entitling himself to a re-conveyance, it is a conditional sale. Slowey v. McMurray, xxvii. 113. 2. And if the transaction is a conditional sale, the party seeking a re-convey- ance to himself must strictly comply with the conditions imposed upon him. Ibid. II. DELIVERY. 3. An order on the depositary of goods sold, given by the vendor to the ven- dee, constitutes a delivery as between themselves. Sigerson v. Harker, xv. 101. SALE. V. 635 4. Where, in the sale of goods, (a drove of hogs in this instance,) which have been delivered, anything remains to be done by the seller, such as counting, weighing or measuring, the title does not pass, especially when such operation is necessary in order to separate the goods from a larger mass, of which they are apart. And in determining the question as to the purpose of the parties in changing the actaal possession, the fact that the price is to be subsequently ascer- - tained by reference to the net weight, and then paid, is proper to go to the jury ; bnt possession is so much of the essence of property, as it is that alone which enables us to enjoy a thing as property, and the natural connection between pro- perty and possession, especially in movables, is so strong, that the presumption, arising from the change of actual possession, that it was intended also as a change of the property, is not overcome, as a matter of law, by the fact that the thing bargained for was to be paid for by weight, to be ascertained after the delivery. Cunningham v. Ashbrook, xx. 553. 5. Where casks of sugar, lying on the whar^ are purchased by sample, a delivery to the purchaser of the city weigher's certificate and a bill of the price constitute a sufficient delivery. Glasgow v. Nicholson, xxv. 29. 6. Where the delivery of a chattel is conditional, the title will not pass until the condition is performed, or the performance thereof is waived. Bannefelser v. !/, xxvii. 45. III. POSSESSION BY VENDOR AFTER SALE. 1. The possession of personal property by the vendor after the sale, or by the mortgagor after the mortgage, is not, imt se, fraudulent as to creditors. It should be left to the jury to determine the character of the transaction. [Over- rules Rochehlave v. Potter, i. 561. Foster v. Wallace, ii. 231. Sibly v. Hood, iii. 290. King Y. Bailey, \i.bT 5 i\ Shepherd v. Trigg,Yii. 151. King v. Bailey, viii. 332. Milburn v. Waugh, xi. 369. But see R. S. 1855, 804, §§ 8, 10. r7. BILL OF SALE. 8. An instrument in writing, which says, " I do give unto J. P. a bill of sale of seven negroes," (naming them,) is a good bill of sale, as, between the parties to it. The property in the negroes passed by the delivery of the instrument. Potter V. Gratiot, i. 808. 9. A bill of sale, stating that A. " sold and passed " to B. a quantity of hemp, will pass the title, notwithstanding A. was to perform certain labor on the hemp. Swarfz V. Chappell, xix. 304. See Evidence, 46-48. V. WARRANTY 10. Upon a sale, with warranty, of a lot of pork barrels, the vendee cannot select such as he may suppose corresponds with the warranty, and return the 636 SALE. VI. balance. The rescission of the contract must be entire, if rescinded at all. But if the articles sold are not all to be delivered at the same time, the receiving of a portion, as they are delivered, which answer the warranty, does not oblige the vendee to accept such as are deficient in quality, especially if the portion received has been so appropriated as to render a re-delivery inconvenient. Sifferson v. Marker, xv. 101. See Practice, 129 ;. . . .Warranty. VI. FRAUDULENT SALES. 11. To constitute a sale fraudulent in fact, as against creditors, it must be made with intent, on the part of the vendor, to defraud, delay or hinder creditors. Sihly v. Hood, iii. 290. 12. To constitute a sale fraudulent in fact, when a full consideration is paid, it must be made with the intent, both on the part of the vendor and vendee, to defraud, hinder or delay creditors, and such intent must be shown by the party attempting to impeach the sale. Ihid. 13. A sale or mortgage to secure a contingent liablity is not fraudulent, but to perfect the consideration the contingency must arise and make certain the liability. Ihid. 14. An averment, in a declaration in an action on the case for fraudulent representations, made by the vendor in a sale of property, that the " represen- tions were false and fraudulent," is a substantial charge that the vendor knew them to be untrue, and is sufficient. M'Girk, J., dis. Buford v. Caldwell, iii. 477. 15. Where the parties to a sale are equally mistaken and have equal know- ledge, or means of knowledge, there is no remedy for either in law or equity. Per Wash, J. Ibid. 16. Where a purchaser seeks relief in chancery, on the ground that a slave bought by him was, at the time of the purchase, diseased, and that he subse- quently died, it must appear in evidence that the disease of which the slave died was that which he had at the time of sale, and that the purchaser did not then know ofit. Stewart v. Dugin. iv. 245. 17. Where slaves are purchased in good faith, and for a valuable consideration, of one who has possession of them and acts for the owner under a power of attorney, the owner cannot avoid the sale on the ground that the power was fraudulently obtained from him by the agent. Lawless v. Guelbreth, viii. 139. 18. D. having another wife living, imposed himself upon the plaintiflf,, and induced her to marry him. After the marriage, he took possession of personal property belonging to her, and sold it to the defendant, who bought in good faith — Held, that the title passed. Depew v. Rohards, xvii. 580. 19. A fraudulent sale set aside. Wells v. Thomas, x. 237. 20. The title of a bona fide purchaser of a slave from an administrator for a valuable consideration, and without notice of any fraud on the part of the admin- istrator, is good. Pipkin v. Casey, xiii. 347. SALE. VII. 637 21. A party, knowing his insolvency and inability to pay, purchased goods on credit, for which he afterwards failed to pay — Held, that he was not guilty of such deceit as to avoid the sale. Bidault v. Wales, xix. 36. 22. Collusion or contrivance to enable the purchaser at a judicial sale to obtain the land for less than its real value, is cause for setting the sale aside. Neal v. Stone, rx. 294. Stewart v. Nelson, xxv. 309. , 23. So it was agreed, at an auction sale of land for partition, between A. and B,, both bidders, that one should desist from bidding that the other should pur- chase the land, and that it should be divided between them. One desisted, and it was sold to the other at about one-half its value. The sale was set aside. Wooton V. Hinkle, xx. 290. SooJc v. Tutner, xxii. 333. 24. To avoid a sale of goods on credit the purchaser, when he buys, must intend never to pay for them ; it is not sufficient that he did not intend to pay for them at the time agreed upon ; and this question must be decided by the jury. Bidault V. Wales, xx. 546. 25. A sale of goods on credit cannot- be avoided by the seller when the rights of third persons have intervened. But this exception does not include the general creditors of the purchaser who seize the property by attachment or execution, or take it as security for a debt before contracted. It may exclude a factor's lien, even for a general balance. Ibid, 26. If the vendor of a horse is aware, at the time of a sale, of the existence of a latent defect, unknown to the vendee, of such a character that the vendee would not have made the purchase had he known it, and such as would have ordinarily escaped the observation of men engaged in buying horses, and he allows the vendee to purchase without disclosing the defect, he is guilty of a fraudulent con- cealment, and is liable in damages. McAdams v. Gates, xxiv. 223. 27. And such defect may be set up as a defense to an action on a note given for the price of the article sold. Barron v. Alexander, xxvii. 530. See Demand, 9. VII. VENDOR'S RIGHT OF RE-SALE. 28. Where the vendee refuses to take the goods which he has purchased, the vendor may sell them without giving notice to the vendee ; and if he uses reasonable diligence about such sale, he may recover the difference between the net proceeds of such sale, and the price agreed to be paid by the original vendee. Ingram v. Matthven, iii. 209. See Administration, XIII ; . . . . Attachment, XIV ; . . . .Boats and Vessels, IX; Deed op Tkust, V; Execution, X; Mortgage, IX; Partition, 24-26 ; . . . .Rbvenue, III ; . . . .School Lands, I. 638 SALVAGE.— SCHOOLS. IIL SALVAGE. 1. Where a steamboat was parted from her moorings by the ice, in the day time, while no one was on board, and the plaintiff seized the broken hawser, and succeeded in securing and delivering her to the owner, she being in a dangerous situation from the breaking up of the ice and other boats, it was held, that these facts did not entitle the plaintiff to salvage under the statute, (E. 8. 1845, 984, § 1.) Collard v. Mdy, xvii. 354. SCHOOLS L ORGANIZATION. II. LIABILITY OF TRUSTEES. IIL SCHOOL FUNDS. I. ORGANIZATION. 1. In order that a neighborhood, situated in two or more townships, may be formed into a separate school district under the statute, (Acts 1852-3, 160, § 8,) a majority of the inhabitants of the proposed district should unite in the appli- cation to the school commissioner. Sayre v. Tompkms, xxiii. 443. II. LIABILITY OF TRUSTEES. 2. The trustees of a school district are not personally liable on a note executed by their predecessors in office, in which they " promise in our name of office to pay" a sum named to a teacher for services. Rogers v. Carver, xxi. 517. 3. The trustees of a school district, organized under the act of March 27, 1845, cannot be sued as a corporation for a debt incurred by them for the building of a school-house ; nor would the property held by them, as such trustees, be liable to execution. Allen v. Trustees of School District, xxiii. 418. 4. The official character of school trustees may be proved by their acts and conduct as such ; the oath of office filed by them with the Clerk of the County Court, and their official bonds, are competent to prove their official character. Eads V. Wooldridge, xxvii. 251. m. SCHOOL FUNDS. 5. As to the priority of lien under § 15, Art. VI, of the act of February 9, 1839, relating to common schools, (Acts 1838-9, 147.) Cole County v. Angney, zii. 132. SCHOOL LAKDS. H. 639 6. A County Court having loaned township school funds at ten per cent., has no right, upon the application of the inhabitants of the township, to reduce the rate of interest. And the Circuit Court will, by mandamus, on the application of the school commissioner, compel the County Court to collect the whole amount. Veal V. Chariton County Court, xv. 412. 1. Nor have the inhabitants of a school township for the time being any right to dispose o^ or in any way impair the township school fund. Ibid. SCHOOL LANDS. I. SALE OF. n. INDICTMENT FOR TRESPASS ON. L SALE OF. 1. The act of February 25th, 1835, providing for the sale of township school lands, in Saline and other counties, (R. S. 1836, 571,) is not imjjonsistent with the first section of the act of March 19th, 1835, relating to " schools and school lands." (R. S. 1 835, 561.) The latter is the general law, the former local and confined to the counties therein named. Brown v. Crawford County, viii. 640. 2. A purchaser of school lands cannot be relieved in equity against the pay- ment of a bond given for the purchase money, on the ground that a majority of the householders of the township did not petition the County Court for a sale of the sixteenth section, nor because sixty days notice of the sale was not given. Bogarth v. Caldwell County, ix. 355. 3. An appeal will not lie to the Circuit Court, from an order of the County Court, vacating and setting aside a sale of a sixteenth section made by the sheriff under a previous order of the County Court. Wilson v. School Township, No. 6, xxiii. 416. n. INDICTMENT FOR TRESPASS ON. 4. A prosecutor is not necessary in an indictment for a trespass upon school lands. A prosecutor is only necessary in cases of trespass upon private property, and not in cases of trespass upon property of the State, or of the counties. The State V. Roberts, xi. 510. 5. An indictment under § 30 of the Act relating to school lands, (R. S. 1845, 994,) which charges the defendant with committing " waste, trespass and other injury," &c., " by cutting down and carrying away timber," &c., is not bad for duplicity. The State v. Myers, xx. 409. See Action, 21 ; Ejectment, 34 ; Estoppel, 15 ;. . . .Laws, 48, 15 ; PuBuc Lands, 132-145. 640 SCIRE FACIAS. II. SCIRE FACIAS. I. TO REVIVE JUDGMENT. II. ON BAIL BOND. III. RECOGNIZANCE ON APPEAL. IV. WHEN IT IS A CONTINUATION OF AN OLD ACTION. V. PROCEEDINGS. a. PLEADING. b. CONTINUANCE. C. JUDGMENT. I. TO REVIVE JUDGMENT. 1. Where the law forbids the issuing of an execution against the lands of a deceased person in less than eighteen months after administration granted, there can arise, during that time, no presumption of payment, and no scire facias, therefore, is necessary to revive the judgment. Finley v. Caldwell, i. 512. 2. The statute of 13 Edward I, giving a scire facias to revive a judgment in a personal action, is in force in this State. Garner v. Hays, iii. 436. 3. On a scire facias to revive a judgment, no declaration is necessary, and it may issue on a judgment for costs pending a motion for their re-taxation. Ihid. 4. A Justice has no power to issue a scire facias on the judgment of another Justice, to show cause why execution should not issue. Wilson v. Tiermn, iii. 571. 5. A scire facias is rot necessary to revive a judgment of the County Court. It is not a court of common law jurisdiction. Caldwell v. Loekridge, ix. 358. 6. To a scire facias to revive a judgment for a foreclosure, where the mort- gagor has deceased, his personal representative is a sufficient party, and the heirs need not be joined. Riley v. McCord, xxi. 285. IL ON BAIL BOND. 7. A scire facias on a bail bond, should be brought in the name of the sheriflF, unless the bond has been assigned by the sheriff to the plaintiff. Brown v. Benton, i. 227. Priest v. Whitelow, i. 259. 8. A scire facias lies on a bail bond, under the Act of July 3rd, 1807, "estab- lishing courts of justice and regulating judicial proceedings." Howel v. Mirch, i. 182. Benton v. Brown, i. 393. 9. The prayer of a seire facias on a bail bond, should be for execution of the specific sum in the bond, and not for the damages in the first suit. Howel v. March, i. 182. 10. But though the prayer be wrong, it is a matter of form, and is good on general demurrer. Barton v. Vaman,t (re-hearing), i. 192. Howel v. March, (re-hearing), i. 193. SCIRE FACIAS. V. 641 m. RECOGNIZANCE ON APPEAL. 11. A recognizance in an appeal, given in the Circuit Court, is a record of that court, and a subject of its jurisdiction ; and a scire facias upon it, as a record of that court, is well brought. Barton \. Vamant,i, 190. 12. Such scire facias may be brought against the se6urity alone, without join- ing the principal, the case being conapreh ended in the terms of the statute, which provides "that, in all cases of joint obligations and assumptions, suits may be brought and prosecuted in the same manner as if the same were joint and several." Ibid. W. WHEN IT IS A CONTINUATION OF AN OLD ACTION. 13. A proceeding by scire facias upon a forfeited recognizance, is not a civil action, within the meaning of the new code, but a mere continuation of an existing proceeding. The State v. Randolph, xxii. 474. V. PROCEEDINGS. a. PLEADING. 14. Nothing can be pleaded to a scire facias on a judgment, which might have been pleaded to the original action. Watkins v. The State, vii. 334. See Supra, 3. CONTINUANCE. 15. A scire facias is a suit, and should be continued at the return term, under the provision of the statute of 1835, (R. S. 1835, 462, § 2.) Milsap v. Wildman, V. 425. C, JUDGMENT. 16. On a scire facias, the court will give judgment according to law, and not according to the prayer of the plaintiff. Therefore, where the writ of scire facias required the defendants to show cause why the same should not be levied of " their respective bodies, lands and chattels,'' instead of " their respective goods and chattels, lands and tenements,'' the error was held, not to vitiate the writ, but considered as a mere clerical blunder. Snowden v. The State, viii. 483. See Action, VII, VIII; Criminal Law, XIX; Mechanks' Lien, 18-23; Mortgage, VIIL 41 642 SEAL.— SECRETARY OF STATE.— SECURITIES. SEAL. 1. To constitute a sealed instrument, under the statute, it must be expressed on the face thereof, to be sealed. C'arimill v. Hopkins, ii. 220. Boynton v. Reynolds, iii. 79. Grimsley v. Riley, v. 280. Walker v. Keile, viii. 301. 2. And it is not sufficient that the signer affixes a scroll to his name, by way of seal, although it contain within it the word " seal." Glasscock v. Olasscock, viii. 511. 3. An instrument 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 is concerned, to be regarded as sealed, when sued on in this Stale. Borsey v. Hardesty, ix. 15Y. See Conveyances, 3-7 ; Corpoeation, IV ; Countt, II. SECRETARY OF STATE. 1. The amendment to the State constitution, ratified in 1851, making the Secretary of State elective, (Acts 1850-1, 47, §§ 1, 2,) did not create a vacancy in that office. The incumbent continued to hold until his successor was elected, pursuant to the law passed under that amendment ; but after his successor was thus elected, he ceased to be the officer, although the term for which he was appointed, under the original constitution, had not expired. The State v. Evdng, xvii. 515. SECURITIES. I. LIABILITY OF SURETY. II. DISCHARGE OF SURETY. a. BT DELAY TO SUE AFTER NOTICE. b. OTHER CASES. III. SURETY'S REMEDY AGAINST PRINCIPAL. IV. SURETY'S DEFENSE WHEN SUED. V. SUBROGATION AND SUBSTITUTION. VI. CO-SURETIES— CONTRIBUTION— DISCHARGE. VII. EVIDENCE. SECURITIES. II. 643 I. LIABILITY OF SURETY. 1. G. was V.'s security in a debt, on whicli judgment had been obtained against both, for ninety-one dollars and thirty-four cents. To indemnify G. against his liability, V. assigned to him sundry notes against solvent parties, amounting to one hundred and fifty dollars, all of which, G. transferred to the holder of the judgment, to discharge and satisfy it — Held, that it was his right to do so, and that V. could not recover of him the difference in value between the notes assigned and the judgment. Vest v. Green, iii. 219. 2. The undertaking of a surety is to be construed strictly. Per Scott, J. Blair V. Perpetual Ins. Co., x. 559- 3. A surety of one as agent of a corporation, is limited to such acts as the cor- poration is authorized to require of its agent. Ibid. 4. So he is not bound for an embezzlement by the agent, if the funds of the corporation, while such agent was transacting banking business, in which the corporation had no right to engage. Ibid. 5. The Kability of a surety, and his right to indemnity, must be determined by the laws in force at the date of his undertaking. Bobyns v. McQovern, xv. 662. 6. A. executed a promissory note to B. and C, who indorsed and transferred it to D. A., at the same time, executed a deed of trust to B. and C, who were accommodation indorsers to secure them against liability. The trustee under the deed, sold the property, and the proceeds were more than sufficient to pay the note, hut they were not applied tcj its payment. HUd, that whether D. had knowledge of the proceedings or not, the liability of B. and C. to D., was not thereby discharged. Fischer v. Meyer, xxiv. 90. See CoKSTABLE, 15-21 ;. . . .Criminal Law, 261 . . . .Trespass, 14. ft. DISCHARGE OF SURETY. a. BY DELAY TO SUE AFTER NOTICE. 1. Under the statute, (R. S. 1835, 574, § 1,) a verbal notice by the security to the person having the right of action, to commence suit against the principal, is sufficient. Bolton v. Lundy, vi. 46. 8. But under the statute, (R. S. 1845, 998, § 1,) such notice should be in writing, and the service thereof personal, or by leaving a copy at his usual place of residence, with some white person of the family over the age of fifteen years. Sapington v. Jeffries, xv. 628. [So under the R. S. 1855, 1454, § 1.] 9. Under the statute, (R. S. 1845, 998, § 1,) a notice, given by a surety on a note which is overdue, to commence suit against the principal, or that he would no longer stand security, is sufficient, if its object could not have been misunder- stood by the creditor, though it does not contain a description of the note. Eouton V. Lacy, xvii. 399. 10. Such a notice by one surety, though it may discharge him, will not pre- vent the creditor from recovering in equity, against a co-surety who has not o-iven notice, his proportion of the debt. Ibid. 644 SECURITIES. II. 11. A notice given by a, surety to the holder of a promissory note, in these ■wotds — " Sir : You are hereby notified that I will not stand good as security any longer on the note yon hold against Wm. Upton and myself as security," is not suflScient, under the statute, (R. S. 1846, 998, § 1.) Lockridge v. Upton, xxiv. 184. 12. A notice given under the statute, (R. S. 1845, 998, § 1,) by a security in a note, to the person having the right of action thereon, to commence suit forth- with against the other parties to the note, naming them, is sufficient, and evi- dence may be given of its contents, although no notice to produce it was given. Christy v Home, xxiv. 242. 13. Under the statute relating to "securities," (R. S. 1845, 998, §§ 1, 2,) a surety cannot exonerate himself from liability by notifying the creditor, after the death of the principal debtor, to present the demand for allowance against his estate, and the failure of the creditor to do so within thirty days. A case where the principal is dead is not within the meaning of the statute. Hicham v. Hollings- worth, xvii. 4'75. 14. Under the statute, a surety will not be discharged by the fact that the creditor, whom he has notified to commence suit against all the parties liable, does not join him in the suit ; nor by the fact that a co-security, who is a non- resident of the State, is not proceeded against. Perry v. Barret, xviii. 140. 15. The indorser of a negotiable promissory note is not a security within the meaning of the statute relating to securities, and cannot discharge himself fi-om liability by notice. Clark v. Barrett, xix. 39. 16. Nor can he, after payment of a judgment recovered against him and the maker, obtain judgment against a prior indorser, upon motion, as provided by statute. (R. S. 1845, 1000, § 9.) Devinney v. Lay, xix. 646. 17. Where the security and the payee, in a note within the jurisdiction of a Justice, reside in the same county, and the principal debtor resides in another county, the payee, on being served with notice by the security to commence suit, (R. S. 1835, 5*74, § 1,) has his election to sue either the principal orthe security, and is not bound to go to a distant county to sue the principal. Tompkins, J., dis. Hughes v. Gordon, vii. 297. 18. A surety in a promissory note, ^ho gives notice to the payee to commence suit against the principal, who is a non-resident, is not discharged from liability by a failure to commence suit within thirty days after such notice. Philiips v. Riley, xxvii. 386. b. OTHER CASES. 19. The omission of the State to sue an ofiioial bond until several years after the officer's default, will not discharge his securities. Laches are not imputed to the State. Parks v. The State^ vii. 194. 20. Mere negligence on the part of the payee of a note, in not suing, will not discharge the security ; but where judgment is obtained and a lien created by delivery of the execution to the sheriff, and that lien- is voluntarily discharged by the creditor, that will discharge the security. Ferguson v. Turner, vii. 497, 21. A mere naked agreement by the creditor to give the principal debtor tim.e, SECURITIES. II. 645 will not discharge the security. Such agreement, to discharge the security, must be based upon sufficient consideration, and be binding in law upon the creditor. Nichols V. Douglass, viii. 49. 22. The recommendation by the payee of a note to the principal to carry his property to a better market, out of the State, sell it and return and pay his debts, and, if unable to pay all, to pay jrro rata, is not a fraud upon, and will not operate as a release to, the securities in the note. Hawkins v. Bidenhour, xiii. 125. 23. The failure of the County Court to take a mortgage in fee on real estate, free from all liens and incumbrances, to secure the payment of school money loaned, as required by statute, (Acts 1838-9, 118, § 11,) does not discharge the surety. Marion Comity v. Moffett, xv. 604. 24. The omission to disclose the fact that the principal had agreed to pay nsurious interest, or that usurious interest had been included in the note, does not discharge the surety. Samuel v. Withers, xvi. 532. 25. A surety is entitled to the benefit of all the securities for the debt taken by the creditor of the debtor, and discharged from his liability to the extent the creditor parts with such securities. Thus, where it was provided in a building contract that a certain per cent, should be reserved until its completion, and the employer, with a knowledge of existing liens on the building for labor and mate- rials, paid the contractor in full, the surety was thereby discharged to the extent of the reservation provided for. Taylor v. Jeter, xxiii. 244. 26. The voluntary dismissal of an attachment suit, commenced by an indorsee of a promissory note, at the request of a surety, against the principal, in which an amount of property more than sufficient to satisfy the debt was attached, will discharge the surety. Bank of Missouri v. Matson, xxiv. 333. Same case, xxvi. 243. 27. A covenant not to sue one of several sureties jointly liable, will not dis- charge the others. City of Carondelet v. Besnoyer, xxvii. 36. 28.' The release of the principal in a judgment debt discharges the surety. Thus, where the judgment creditor gave the sole heir of an estate a covenant not to enforce it against the estate, except as to certain parcels of land, and reserved the right to pursue the surety thereon, it was held, in a suit by the surety against the judgment creditor and the administrator of the estate, the judgment creditor having procured the allowance of the judgment against the estate, and the placing of it in the fourth class, that the covenant operated as a release, and that the judgment could not be allowed against the estate so as to protect it from the claim of the surety for the amount paid by him on the judgment debt, or upon the official bond upon which the judgment was founded. Hempstead v Hemp- stead, xxvii. 187. 29. The relation of maker and indorser of a promissory note so far continues, after the recovery of judgment against them at the shit of the indorsee, that an agreement with the maker to stay execution as to hira for a specified period, will operate a discharge of the indorser, and entitle him to a perpetual stay of execu- cntion. Smith v. Rice, xxvii. 505. See Supra, 6. 646 SECURITIES. V. III. SURETY'S REMEDY AGAINST PRINCIPAL. 30. Where an attachment bond is given by two, as principal and surety, and the surety takes a bond of indemnity from a stranger, the latter having indemni- fied the surety, may recover the amount of the principal in said bond, although the surety stated, at the time he assigned his recourse against the principal, that he did not think he had any such recourse. Labeaume v. Sweeney, xvii. 153. 31. Where two executors or administrators unite in one bond, they are jointly and severally liable as principals to indemnify the surety who has been subjected to the payment of money by the default of one of them. Overton v. Woodson, xvii. 453. 32. A boat was seized by attachment in a suit against the owner, and S., the master of the boat, who had no other interest in it, executed a bond, with L. as surety, conditioned for the forthcoming of the boat. The boat was subsequently sold at private sale, and C. became part owner. L. was about to deliver up the boat to the sheriff, when C. gave him a bond of indemnity to secure him from liability on the delivery bond, and to free the boat from detention. C. afterwards paid the indemnity to L., and took an assigment of his recourse against S. Suit was brought by C, in the name of L., against S., to recover the amount thus paid — Held, that he could not recover. Labeaume v. Sweeney, xxi. 166. 33. A surety on a note given to secure money bet in this State on the Presi- dential election, who knew, at the time of signing, the consideration for which the note was given, and who is compelled by legal process in a foreign jurisdic- tion to pay the same, cannot recover the amount so paid of his principal. Bar- ley V. Stapleton, xxiv. 248. IV. SURETY'S DEFENSE WHEN SUED. 34. In a suit against the sureties on a note given for the price of a slave, a breach of warranty of soundness maj' be set up by them in defense, though the warranty was to the principal alone, who is not joined. Scroggin v. Holland, xvi. 419. 35. A surety may contract as a " principal," and by so doing will renounce the right of setting up a defense arising out of the relation of principal and surety. Picot v. Signiago, xxii. 587. See UsuRT, 1. V. SUBROGATION AND SUBSTITUTION. 36. The security may recover at law for the money he has been compelled to pay for his principal ; but ho can be subrogated to the rights and liens of the creditor in respect to such debt only in chancery. Miller v. Woodward, viii. 169. 37. And in chancery he will be subrogated to all such securities, rights and liens. Miller v. Woodward, viii, 169. Cole County v. Angney, xii. 132, Crump V. McMurtry, viii. 408. SECURITIES. VI. 647 38. But, until the debt is paid, tbe creditor has a lien upon and will hold all the secmities placed in the hands of the surety for his protection by the principal. Haven v. Foley, xviii. 136. 39. A. sold a parcel of land to B. and took his notes for the purchase money, payable in equal instalments of $1,920, in one, two and three years, retaining for security a vendor's lien upon the land. The second note not being paid at maturity, was sued on, and personal property attached to the value of $1,000, which was released on receiving from B. a bond with securities for $1,000, as additional security for the note sued on. Judgment was taken on this note for the full amount of it. At a subsequent term judgment was obtained on the third note. Executions were issued on both judgments, and the land conveyed by A. to B. levied upon and sold under them, and the proceeds applied, first, to the satisfaction of the last judgment, and the balance on the first judgment, and leav- ing more than $1,000 due thereon — Held, that the securities in the bond had no right to be substituted in the place of the creditor in respect of his lien on the land under the first judgment ; that the bond was an additional and not a collat- eral security, and that the doctrine of substitution did not apply to the case. Crump V. McMurtry, viii. 408. 40. The payee of a note is entitled to the benefit of any counter security given for the indemnity of an indorser, as is also a party to whom the debt evidenced by the note is transferred, with consent of such indorser. Thus, where the payee of a note, indorsed by one who holds counter security, accepts the note of a third party and transfers to him, with consent of the indorser, the debt evidenced by the original note, this substituted creditor will be entitled to the benefit of the counter security, though the agreement may have been that the original note was to he delivered to the indorser ; and equity will protect this security to such sub- stituted creditor against a subsequent incumbrancer, though the note was not assigned to him. Haven v. Foley, xix. 632. 41. A. purchased real estate, paid a portion of the purchase money, and gave his bond, with B. as security, for the balance. C. subsequently purchased at sheriff's sale all of A.'s interest in the land. B. was compelled to pay the bond signed by him as surety — Held, that he was entitled to be subrogated to the right of the original owners, and might subject the land in the hands of C. to the payment to himself of the money so paid by him. Smith v. Schneider, xxiii. 447. See Boats and Vessels, 35 ;. . . .Insurance, 59. VI. CO-SURETIES— CONTEIBUTION— DISCHARGE. 42. Where a bond was executed by A., B., C. and D., and A. was a principal in the bond and D. was a surety, and D. supposed, at the time of executing the bond, that B. was also a principal, and while the bond was in possession of A. and B., and before its delivery, the name of D. was erased, but it did not appear by whom or in what manner, and A. and C. having become insolvent, B. paid the whole amount of the bond —Held, that B. could not maintain a bill in equity gainst D. for contribution. Price v. Edwards, xi. 524. 43. Where a debtor, on the eve of insolvency, conveyed property in trust by 648 SECURITIES. VII. diflFerent instruments to indemnity certain securities against the payment of the debts for which they were severally bound, and the property proved insufficient to secure them fully, a court of equity will leave them to bear the loss proportion- ately, unless there is a clearly expressed intention to give a preference to one over another. Hayden v. Oornelms, xii. 321. 44. Where property is conveyed in trust by the principal to indemnify a surety, (who subsequently pays the debt,) which is sold under the direction of the surety for a sum sufficient to satisfy the claim, his co-surety is not liable in an action for contribution, although the money had not been actually collected in the sale. Chilton v. Chapman, xiii. 4*70. 45. A Surety may use the name of his principal to enforce contribution from a co-surety. McCourtney v. Sloan, xv. 95. 46. A jndgrnent recovered does not extinguish the mutual relations of princi- pal and surety, or of co-sureties. A judgment was recovered upon a note on which there were two co-sureties. The assignee of the judgment refused to have one-half of the judgment debt satisfied from the property of one co-surety, and thus lost his lien upon his property, which went to satisfy other judgments, its owner being otherwise insolvent — Held, that the other co-surety was discharged to the extent of one-half of the judgment debt. Rice v. Morton, xix. 263. 47. A release of one of several sureties by the creditor will discharge the others only so far as the released surety would be bound to make contribution if the other sureties or any of them should pay the entire debt. Dodd v. Winn, xxvii. 501. 48. A., the payee of a promissory note, obtained judgment thereon against B., one of five sureties. An execution under said judgment was levied on property belonging to B., sufficient to satisfy the debt. A. ordered the execution to be returned unsatisfied. A. subsequently commenced suit against C, another of the sureties — Held, that if all the sureties were solvent, A. could recover of C. only four-fifths of the debt ; but if all the other sureties were insolvent, he could recover only one-half the debt of C. Ibid. 49. If one of several co-sureties is insolvent, the other co-sureties will be bound to make contribution as among themselves, as if the insolvent surety had not been surety at all. Ibid. See SuPBA, 10 ;... .Bills Exchange and Prom. Notes, 26, 27 ;... .Con- tribution. VII. EVIDENCE. 50. The fact that a party was a security in a bond may be shown by any per- son having knowledge of the fact, as well as by the subscribing witness. Foster V. Wallace, ii. 231. 51. The settlements made by an officer with the court are not conclusive against his securities, but may be explained or disproved by them. Nolley v. Callaway County Court, xi. 447. The State v. Smith, xxvi. 226. See Evi- dence, 80, 81, 106-108 ; Witness, 91-94. See Administeation, 38-60 ;. . . .Bills Exchange and Prom. Notes, VII; . . . .Bond, V. SEDUCTION.— SET-OFF. I. 649 SEDUCTION. ■ 1. In an action on the case for seducing and getting with child the daughter of plaintiff, whereby he lost her services, (fee, evidence of the daughter's general bad character for chastity is . admissible in mitigation of damages. Carder v. Forehand, i. 704. 3. A parent may maintain an action for the seduction of a daughter over the age of twenty-one years, where the slightest actual service is rendered by the daughter. Vossel v. Oole, x. 634. 3. The connivance of the parent to the seduction of his daughter will bar an action therefor by him. Ibid. 4. In a suit by a father for the seduction of his daughter, the defendant will not be permitted to prove that the plaintiif had cast imputations upon the virtue of his own mother, by giving evidence in a former suit that she had had an ille- gitimate child before her marriage with plaintiff's father. Grider v. Dent, xxii. 490. See Action, 12 ;. . . .Husband and Wife, V. SET-OFF. I. ALLOWANCE. a. WHEN ALLOWED. b. when" not allowed. c. special oases. II. AS AFFECTED BY THE PARTIES. HI. CLAIMS FALLING DUE AFTER ACTION BROUGHT. IV. NOTICE, PLEADING AND JUDGMENT. I. ALLOWANCE. WHEN ALLOWED. 1. A debt due to a surviving partner may be set off against a debt due from him individually, and so vice versa. (See R. S. 1825, 215, §4 — 738, § 1.) Tompkins, J., dis. Cowden v. Mliot, ii. 60. 2. Where, in a contract of sale, it was provided that, if the property sold proved otherwise than as warranted, the vendor should refund a given sum, the amount thus provided to be re-paid, on the condition named, is liquidated dam- ages, and may be enforced as a set-off in the Circuit Court on appeal, the same as before the Justice's Court. (See R. S. 1825, 478, § 16.) Mi/ers ^.Hay, iii. 98. 650 SET-OFF. I. 3. A note transferred by delivery, for value, is the subject of set-off, although not assigned in writing. Frazier v. Gibson, vii. 271. /-. 4. Where general assumpsit will lie on a contract, the debt evidenced thereby may be pleaded as a set-off. Austin v. Feland, viii. 309. 5. A set-off may be pleaded before a Justice after a judgment by default is set aside. Rohinett v. Nunn, ix. 244. Xe? As between the original parties to a bond or note, a set-off is allowed, although the bond or note be payable " without defalcation or discount." Ba- ker V. Brown, x. 396. '*'~^. If such an instrument be fraudulently assigned-, the defendant may plead such fraudulent assignment, and set off a demand against the payee. Ihid. Mar- tindale v. Hudson, xxv. 422. 8. Where a note was left with the plaintiffs intestate by the defendant, for collection, and the former converted it to his own use, it was held, that the amount of the note was not unliquidated damages, and was, consequently, the subject of a set-off. Gunn v. Todd, xxi. 303. 9. The subject matter of an original suit may be used as a set-off by the plain- tiff in that suit during its pendency, when he is sued by his adversary. If it is a final judgment, it is a set-off as a judgment. Ibid. b. WHEN NOT ALLOWED. 10. In an action by the assignee against the maker of a note, the defendant could not, under a plea of payment to the assignee, give evidence of an outstand- ing debt against the assignor by way of set-off. (See 1 Ter. L. 54, § 1.) Jones, J., dis. Barton v. Wilkins, i. 74. 11. A debt not due is not a subject of set-off. Scogin v. Hudspeth, iii. 123. 12. Nor is a debt payable in work. Prather v. McEvoy, vii. 598. 13. In an action by a common carrier for freight money, the defendant can- not set-off a claim for goods not delivered. Johnson v. Strader, iii. 359. 14. A set-off cannot be proved under a plea of payment. Oldham v. Hen- derson, iv. 295. 15. A set-off is not allowable against a note expressed, on the face of it, to be " payable without defalcation." (R. S. 1835, 105, § 4.) Collins v. Waddle, w. 452. [See R. S. 1855, 322, § 3.] 16. Where a set-off before a Justice exceeds his jurisdiction, the excess may be waived ; but if not waived, the set-off should be treated as a nullity, both before the Justice and in the appellate court. Robinett v. Nunn, ix. 244. 17. And a set-off before a Justice is not allowable on an account 'exceeding his jurisdiction, although by crediting the plaintiff's demand upon it the claim is reduced within the limit of the jurisdiction. Almeida v. Sigerson, xx. 497. 18. Where the parties having running accounts together, one doing work and the other making payments on account thereof, such payments cannot be set off against an action brought for work done at a time subsequent to such payments. Pond V. Butler, x. 448. 19. Under the new code, (Acts 1848-9, 82, § 12,) a set-off is not admissible where the claim of either party is for unliquidated damages. Johnson v. Jones, SET-OFF. II. 651 xvi. 494. Mahan v. Hoss, xviii. 121. Pratt v. Menkens, xviii. 158. Brake y. Owning, xix. 125. 20. In an action on a promissory note, the defendants cannot set-off damages alleged to have heen sustained by fraudulent practices of the plaintiffs, in a trans- action which does not appear to have any connection with the note in suit. Pratt V. Menkens, xviii. 158. See Administration. 44. C. SPECIAL CASES. 21. If a creditor on the eve of his bankruptcy fraudulently delivers goods to one of his creditors, the assignee may disalBrm the contract and recover the value of the goods in trover; but if he brings assumpsit he affirms the contract, •and then the creditor may set-off his debt. Benoist v. Darby, xii. 196. 22. A chose in action, which is assignable, cannot be set-off by a person to whom it is transferred, if he holds it merely as trustee. McDonald v. Harrison, xii. iil. 23. A. sold B. a horse, and received in exchange a yoke of oxen, and was to receive ten dollars in cash. A warranted the horse to be sound, and agreed to take him back if he proved unsound. The horse proving unsound, B. offered to return him, and demanded the return of his oxen — Held, in an action by A. against B. for the ten dollars, that B. might set-off and recover the value of the oxen. Smith v. Steinkamper, xvi. 150. 24. Where notes sued on are proved to have been given upon a settlement, and the defendant sets up a claim which accrued prior thereto, he must show that it was not included in the settlement. If the disputed claim was discussed at the time of the settlement, it will be presumed that it was embraced therein, unless it clearly appears that the parties agreed to leave it open. Perry v. Boberts, xvii. 36. 25. The assignees of A., an insolvent, brought an action against B., on a note given to A. B. pleaded as a set-off a sum paid by him, after the assignment, on a note given by A., and protested before the assignment, on which B. was indorser — Seld, that the set-off should be allowed. Morrow v. Bright, xx. 298. n. AS AFFECTED BY THE PARTIES. 26. To an action on a joint note, payable to the plaintiffs as administra- tors of A., the defendants pleaded in set-off their portions of the estate of A., which the plaintiffs had been ordered by the court to pay each of them as dis- tributees of the estate — Held, that the plea was good. Tompkins, J., dis. Wha- ley V. Cape, iv. 233. 27. The statute regulating set-off, (R. S. 1835, 579,) applies to corporations, and to suits instituted by a corporation before a Justice. (R. S. 1835, 348, § 5 — 355, § 13.) City of St. Louis v. Sogers, vii. 19. 28. Where a party takes a note payable to him as administrator, his individual debts may be set-off against such note. The words describing him as adminis- 652 SET-OFP. IV. trator are merely deseriptio personm. Lacompte v. Seargent, vii. 351. Thomas v, Relfe, ix. 373. 29. Iti a suit in favor of an administrator, on a demand which accrued to him after the intestate's death, the defendant cannot set-off a claim in his favor which accrued against the deceased in his life time. Woodward v. McGawih, viii. 161. 30. One of several defendants, in an action ex contractu, may sett-off a debt due to him severally from the plaintiff. Austiri n Feland, \\\\. ZO^ . Kent v. Sogers, xxiv. 306. 31. A joint demand cannot be set off against a separate debt. Finney v. Turner, x. 207. 32. One partner cannot set-off a debt against the partnership, before a settle- ment, against a separate demand of the other partner. Ibid. 33. A balance which may be due on a settlement of a partnership, cannot be set up in equity against a note given by one partner to the other, in the hands of an assignee, on the ground that the assignor had left the State without leaving property here, the note not being in any way connected with the partnership, and the assignment being made prior to the removal of the assignor. Pool v. Delaney, xi. 570. 34. In an action for services rendered as an agent, it is competent for the defendant to set-off moneys collected for him by the plaintiff while in his employment, without proving a demand prior to the commencement of the suit. Paul V. Carroll, xii. 437. III. CLAIMS FALLING DUE AFTER ACTION BROUGHT. 35. The maker of a bond or note cannot set-off claims against the assignor, which accrue after suit commenced by the assignee. Frazier v. Crihson, vii. 271. IV. NOTICE, PLEADING AND JUDGMENT. 36. A set-off being in the nature of a cross action, the notice should contain the substance, at least, of the declaration. Brady v. Hill, i. 315. 37. On an appeal from the judgment of a Justice, the defendant cannot plead a set-off by way of a plea puis darrien continuance. (R. 8. 1835, 371, § 16.) Ghase v. Chase, viii. 103. 38. It is not necessary in a plea of set-off to an action brought in the name of the assignee of a note, to aver that the debt sought to be set-off was due at the time of the assignment. Austin v. Feland, viii. 309. 39. One execution cannot be set off against another in the hands of a sheriff, where the sum due on the first had been assigned in good faith before the I^atter was delivered to the officer. (R. S. 1845, 1006, § 6.) Primm v. Bamomj x. 444. 40. Where one brings suit on an account, and therein credits the defendant with the amount due him, and recovers judgment for the balance, this constitutes SHERIFF. I. 653 8 bar to a cross action to recover the amount so credited, though an appeal is taken from the judgment. Hudelmeyer v. Hughes, xiii. 8Y. 41. Where a set-off is filed in a suit, exceeding the demand, and is unanswered, the defendant is entitled to judgment. Hart v. Missouri State Mutual Fire and Marine Ins. Co., xxi. 91. 42. Where the plaintiff sued for the balance of a note given for a patent right, and the defendant pleaded that the patent right was void, and the note was therefore without consideration, and also pleaded deceit, it was held, that the defendant, if he prevailed, not having pleaded a set-off, was not entitled to a judgment for the money which he had already paid on the note. Jolliffe v. Collins, xxi. 338. 43. A plaintiff cannot set up by way of defense to a set-off a demand against ^he defendant that he might have included in his petition. Dawson v. Dillon, xxvi. 395. See Bonds, Notes and Accounts, VII;. . .Judgment, 33 ;. . .Jurisdiction, 27 ;. . . .Pleading, 157 ;. . . .Practice, 31 ;. . . .Witness, 29. SHERIFF. I. LIABILITY. II. DEPUTY. III. BOND. I. LIABILITY. 1. Where an execution was issued on a void judgment, and the money made, and paid over to the plaintiff, and afterwards the defendant commenced pro- ceedings against the sheriff to compel him to return the money, it was held, that the execution having issued from a court having jurisdiction of the subject mat- ter, and being legal in form, the sheriff was not bound to look into the ante- cedent proceedings, but having obeyed the command of the writ, though it issued on a void judgment, he was not responsible to the defendant. Brown v. Henderson, i. 134. 2. The Supreme Court having declared unconstitutional the act of December 28th, 1821, providing that execution should be stayed. &c., &c., (1 Ter. L. 81Y,) a Sheriff who, under that act, failed to levy an execution, was held liable to the plaintiff for the fall amount thereof. Jones, J., dis Brown v. Ward, i. 209. 3. An action lies against a sheriff for failing to execute a writ issued by a Court of Chancery, commanding him to seize and detain certain personal pro- perty which had been mortgaged, and which the mortgagor, before the time of 654 _ SHERIFF. III. payment arrived, was about to remove out of the jurisdiction of the court. In such a case it is no defense that the debt was not due when the writ was issued by the Court of Chancery. A present debt, payable in future confers the juris- diction. Berry v. Burckharit, i. 418. 4. And the rule of damages in such case is the actual loss occasioned by such failure. Ihid. 5. Under a statute authorizing damages at the rate of ten per cent, per month, to be awarded against a sheriff, who had collected money and refused to pay it over, (1 Ter. L. 193, § 7,) a party claiming to recover the damages must, in order to entitle himself thereto, show a special demand upon the sheriff and a refusal by him to pay. The commencement of an action against him is not such a demand as will make him liable. Pope v. Hays, i. 450. 6. Under the statute, (R. S. 1835, 260, § 52,) a sheriff is liable for escapes which occur through negligence. Warherton v. Woods, vi. 8. 7. But a sheriff is not liable for an escape which occurs while he is deviating from the line of his duty at the request of the plaintiff, although he may have been negligent therein. The State v. Woods, vii. 536. 8. Where the sheriff makes a false return, by which the plaintiff is prevented from obtaining a judgment, he may proceed immediately against the sheriff, without further prosecution of the action. Palmer v. Crane, viii. 619. Same case, ix. 266. 9. A sheriff, having an execution running against the body of the defendant, is not liable in trespass for arresting him, although not legally liable to arrest. In an action against a sheriff for not arresting the defendant in an execution, the sheriff may show that he was not Uable to arrest, but his return will not be evidence for him. The State v. Hamilton, ix. 784. 10. Where a plaintiff makes a mistake in the amount of his claim, in his peti- tion, affidavit and writ, and the officer who makes the attachment releases the property on the defendant paying to him the amount, as stated in the writ, and the costs, though the plaintiff afterwards recovers judgment for the full amount of his claim, he has no cause of action against the officer. Paffe v. Belt, xvii. 263. See Execution, VIII. II. DEPUTY. 11. A sheriff is responsible for all trespasses committed by a deputy by color of his office. The State v. Moore, xix. 369. III. BOND. 12. A sheriff and his sureties are not liable, on his official bond, for not deliver- ing over to his successor a writ of execution which had not been levied before he went out of office. Jones, J., dis. Governor v. WNair, i. 302. 13. The sheriff levied an execution on property, as the property of M. Sub- sequently, the judgment on which the execution was issued was reversed, and SLAVES AND SLAVERY. 655 restitution of the proceeds of the sale awarded against the sheriff, who had not paid over the money. A suit was instituted on the sheriff's bond, to the use of M. to recover the money. The defendants, as sheriff's securities, pleaded that M. before the rendition of the judgment, had conveyed the property levied upon to one J., for the purpose of defrauding his creditors — Held, that as the judgment was reversed, an inquiry into the fraud alleged was immaterial. Smithers v. The State, vii. 342. 14. An action of covenant will not lie upon a sheriff's bond. The State v. Woodward, viii. 353. 15. The legislature may enlarge the duties of a sheriff during the term for which they are elected, and their securities are liable for the faithful performance of them. Marney v. The State, xiii. 7. 16. A sheriff, during his first term, made a sale of real estate, on credit,, under the statute relating to partition. He was elected for a second term and gave a new bond, and during the second term collected the money and failed to pay it over — Seld, that the failure to account for the money was a breach of his first bond, and that his securities in that bond were liable thereon. Ibid. IV. The securities in a sheriff's bond are liable for his failure to pay over money received in his official capacity during the term of office covered by their bond, although the money arose from a partition sale made by him during a previous term of office covered by a bond with different securities. Ingram v. McConibs, xvii. 558. 18. Where the plaintiff or his attorney directs a sheriff to proceed under an execution in some way other than that prescribed by law, he makes the sheriff his agent, and the securities of the sheriff are not then liable for his acts. Rollins V. The State, xiii. 437. 19. But the mere application to the court by the plaintiff for an erroneous or illegal order, upon which a writ issues, is not such an interference as makes the executive officer his agent, so as to relieve the sureties of the officer of their liability. Ibid. 20. The securities in a sheriff's bond are liable for a trespass committed by the sheriff, in seizing property exempt from execution. The State v. Moore, xix. 369. The State v. Farmer, xxi. 160. 21. A suit upon a sheriff's bond is properly brought in the name of the State. The State v. Moore, xix, 869. Meier y. Lester, xxi. 112. See Action, 47 ; Evidence, 135 ; Fees, I; Pieading, 80 ; Revenue, 25-27. SLAVES AND SLAVERY. L SLAVERY. a. IN AMERICAN COLONIES. b, IN NORTH-WESTERN TERRITORT. C. GENEBALLT. 656 SLAVES AND SLAVERY. L 11. SLAVES. a. COLOR RAISES PRESUMPTION OF SLAVERY. b. slave's disability, C. INCREASE. d. TRANSPORTING SLAVES. e. RUNAWAY SLAVES. f. HIRINO SLAVE. g. CONVEYANCE OF. h. OFFENCES BY OTHERS RELATING TO SLAVES. aa. Selling Liquor. bb. Hiring without Master's Permission. cc. Meeting witb. dd. Dealing with. I. SLAVERY. a. IN AMERICAN COLONIES. 1. Thougb there seems to have been no law by which negroes were reduced to, or held in bondage, in the Spanish, French and British colonies in America, yet it is an historical fact, that the slavery of the negro race was legal in those colonies. Oharlotte v. Chouteau, xxi. 590. b. IN NOETH-WBSTEEN TERRITORY. , 2. The, United States, under the Articles of Confederation, had power to pur- chase the North- Western Territory, and to prohibit slavery therein. Winny v. Whiteddes, i. 472. 3. By the ordinance of 1787, the children of the negro slaves held as such in the territory North-West of the Ohio, who were born after the. date of that ordinance, were free. Merry v. Tiffin, i. 725, 780. 4. The words of the act of Virginia ceding the North- Western territory, to the effect " that the inhabitants shall be protected in the enjoyment of their rights and liberties," are completely satisfied by securing to them the enjoyment of sueh rights as they then had. Ibid. 5. The ordinance of 1787, was intended as a fundamental law for those who may live under it, and not as a penal statute to be construed by the letter, bjit will be construed liberally. LaOrange v. Chouteau, ii. 19. 6. The ordinance of 1787 did not impair rights then subsisting; and negroes held in slavery in the North- Western territory, previous to the passage of that act, were not entitled to their freedom by virtue of its provisions. Theoteste v. Chouteau, ii. 144. 7. The Constitution of Illinois is not controlled by the ordinance of 1787, as to the existence of slavery in that State. Vincent v. Duncan, ii. 214. C. GENERALLY. 8. It is not necessary to show any general custom or usage, in a country of holding negroes in slavery, to establish its legality. If it exist in &ct, even to a SLAVES AND SLAVERY. II. 65Y Kmited extent, and is not prohibited by any positive law, it is suflBcient. Ghar- htte V. Chouteau, zi. 193. See Evidence, 20, 21. IL SLAVES. a. COLOR RAISES PRESUMPTION OP SLAVERY. 9. In all the slave holding States, color raises the presumption of slavery, and until the contrary appears, a negro is deemed to be a slave. Per Napton, J. Bennick v. Chloe, vii. 19Y. b. slave's DISABILITY. 10. A slave is incapable of acquiring a permanent settlement, or regular domi- cilhy residence. Vincent v. Duncan, ii. 214. C. INCREASE. 11. A slave was sold to serve ten years, and then to be manumitted forever. Within the ten years she had a child — Held, that the child was not entitled to freedom. A child bom of a slave is a slave. Lee v. Sprague, xiv. 4'76. 12. A conveyance of a negro woman to another during her natural life, and reserving the increase of the negro for the heirs of a third person, to be divided among them by the grantor or his personal representatives, passes no present interest in the increase of the negro to such heirs, and they cannot have partition of them. Davis v. Foster, xv. 395. 13. A. brought an action of trespass against B. for taking and converting to his own use a female slave, and recovered judgment, which was satisfied. During the pendency of the suit the slave was delivered of a child. A. afterwards brought this suit for the value of the child — Held, that he could not recover. Garth v. Everett, xvi. 490. d. TRANSPORTING SLAVE. 14. Steamboat owners are embraced within the act relating to slaves, (R. S. 1825, 747,) and an action on the case lies against them, as well as against ferry- men and owners of small craft, for violating its provisions. Russell v. Taylor, iv. 550. Same case, v. 244. 15. And no previous conviction in any other mode is necessary to sustain an action on the case under the statute. Ibid. Ibid. 16. The act which makes it a penal offense for the captain of a steamboat to carry a slave out of this State, (R. S. 183.'5, 586, § 36,) is to be strictly construed, and apphes only to such as knowingly carry away a slave. For such an act the owners are not liable. Price v. Thornton, x. 135. 17. But in an action of trespass against the captain of a steamboat for taking away a slave on his boat, it is not necessary to show that he knew the negro to 42 658 SLAVES AND SLAVERY. II. be a slave ; nor is it any justification that ordinary diligence was used in .attempt- ing to ascertain whether he were a slave. Eaton v. Vaughan, ix. 734. 18. The master of a steamboat is liable, under the statute, (R. S. 1845, 1018, § 31,) for transporting a slave from one place to another in this State without the consent of the owner, although he may not be aware of the fact of such slave being on board, unless he use proper care to guard against the occurrence. Withers v. St. Bt. El Paso, xxiv. 204. 19. And the degree of care required of the master, in such case, is not the strictest diligence, but such care as thoughtful and prudent men, engaged in affairs equally hazardous to their own rights of property, would take in order to protect themselves from loss and injury. Ibid. 20. The owners of a steamboat are liable to the owner of a slave carried off and lost by the carelessness of the captain of said boat, in permitting the slave to be employed on his boat. Price v. Thornton, x. 135. 21. The declarations of the captain at the time of taking a slave upon his boat, or during the voyage, are admissible against the owners, as a part of the res gesta ; but such declarations made subsequently thereto, are inadmisssible. Ibid. 22. The statute relating to slaves, which provides a remedy against any master, commander 6r owner of any boat, who shall transport a slave out of the State without the consent of the owner of the slave, (R. S. 1845, 1018, § 31,) does not apply to a part owner of a vessel, who is not personally engaged in, or consenting to, the prohibited transaction. Lee v. Sparr, xiv. S'/O. 23. The privilege conferred by statute, enabling negroes held in slavery to sue for their freedom is a personal privilege, and so long as a slave acquiesces in his condition, another cannot litigate his right to freedom. The freedom of a slave is, therefore, no defense to an action against a steamboat for transporting a slave out of the State, without the consent of his master, whereby he was lost. [Over- EULING Chouteau v. Mope, vii. 428.] Calvert v. St. Bt. Timoleon^xY. 595. 24. The act concerning slaves gives, in § 31, to the owner of a slave trans- ported out of the State, or from one point to another within the State, on board of any vessel, a right to sue the master, commander or owner of the vessel, and recover the value of the slave ; and by § 32, imposes the same penalty on the boat, (R. S. 1845, 1018) — Held, that a recovery under one section was a bar to a recovery under the other. Calvert v. Rider, xx. 146. 25. The clerk of a boat, being sued, not under the statute, but in an action of trespass, for transporting a slave out of the State, whereby the slave was lost, on proof that he received the passage money from the slave, was held liable. Ibid. See Practice, 98. e. RUNAWAY SLAVES. 26. The person who actually apprehends the slave, makes the affidavit, and has the slave committed to jail, is to be deemed the taker up of the slave. Dougherty v. Tracy, xi. 62. 27. A private person has no right to call upon an officer to take a slave ; he has the right to take the slave himself, and if he call upon an ofiScer, and the SLAVES AND SLAVERY. H. 659 officer arrests and commits the slave, the officer will be entitled to the reward. Ibid. f. HIRING SLAVE. 28. Where a person hires a slave for a year, and the slave dies during the term, the hirer is bound for the hire only to the time of the slave's death. Bvdgem v. Teass, ix. SSY. g. CONVEYANCE OF. 29. A deed conveying a slave, executed by several persons as grantors, some of whom were administrators of an intestate to whom the slave belonged, the deed purporting to be a conveyance by the grantors as heirs of the intestate, and not as administrators, there being no evidence that they are the heirs, or that those who convey as heirs, are the same persons who might have conveyed in that manner as administrators, is not admissible in evidence to show title in a purchaser. Litth v. Chauvin, i. 626. 30. On the 19th June, 1838, A. mortgaged the slaves in controversy to B ; the mortgage was recorded on the 18th July, 1838. On the 25th May, 1837, a distress warrant against A., issued from the treasury department of the United States, which was levied by the Marshal on the slaves, on the 15th November, 1838, and a sale of them made on the 11th June, 1839 — Held, that the distress warrant could not become a lien upon the slaves until an actual seizin by the Marshal ; that prior to an actual levy by the Marshal, A., the mortgagor, had parted with his title to the slaves ; and, therefore, that the title of B., the mort- gagee, was good against a purchaser at the Marshal's sale. Bean v. Davis, xii. 112. 31. The certificate of the acknowledgment of a deed of slaves, executed in Kentucky, began, " I, A. B., Clerk of Green County, do hereby certify," ose under the statute, (R. S. 1845, 1083, § 31.) Hx parte Duty, xxvii. 43. III. CONSTRUCTION. 14. Where a will provided that certain personal property " should be valued and acted on a,ccording to law," and that if there was a residue from it, and the hire of negroes, it should go to E., (complainant) — Held, that it was not the intent of the testator to have "the property disposed of as in case of intestacy, but that it should be appraised and applied to the payment of debts. Tompkins, J., dis. Erwin v. Henry, v. 469. 15. A provision in a will restraining the devisees of a lot from selling, encum- bering or pledging it, disables them from making partition of such lot. Cla- morgan v. Lane, ix. 442. 16. A testator directed certain slaves to be hired oat until A. arrived at the age of twenty-one years, and then sold, and the proceeds divided, &c. — Sdd, that the death of A. during his minority did not affect the condition of the sale, which CQuld not be made until the time when he would have been twenty-one years of age had he lived. Hamilton v. Lewis, xiii. 184. 11. The testator's understanding of the words used in his will, ascertained firom the will itself, must be adopted in construing it, without reference to lexicograr phers or adjudicated cases. Bugans v. Livingston, xv. 230. 18. Though, in construing a wUl, effect will be given, if possible, to all the words of the testator, yet particular words will be so construed, if they may be, as to effect his general intent. Peters v. Carr, xvi. 54. 19. In a will inartificially drawn by the testator himself, because he has WILL. V. 693 required that certain acts shall be done only with the consent of his executors, it is not necessarily to be inferred that other acts, though as important in their nature, are to be done in the same manner. When no condition is actually annexed to a pqwer, one need not be sought out. Norcum v. UCEnch, xvii. 98. 20. In this country, powers of sale conferred upon executors are not construed with the same strictness as in England. Where there is a power of disposal, with a right to enjoy the money arising from its exercise, united in the same person, the power need not be strictly pursued. Ibid. See Evidence, 5Y, 58. rV. OMISSION OF A CHILD. 21. B., in and by his last will, declared that one of his children, naming her, should tate no part of his estate — Held, that he did not die intestate as to this child, under the provisions of § 20 of the act of 1825, relating to wills. (R. S. 1825, 795.) Block v. Block, iii. 594. 22. A will not providing for children of the testator, though voidable under the statute, (R. S. 1825, 795, § 20,) by those injured by it, is good as against strangers. Clumquette v Barada, xxiii. 331. 23. A will was in these words : " I, A. B., of, &c., will that my wife C. D. be my sole heir to all my estate remaining on hand after the payment of my just debts," &c. — Hdd, that the children of A. B. were " not named or provided for" in this will within the meaning of the statute, (B. S. 1845, 1080, § 11,) and that consequently he died intestate as to such children. Bradley v. Bradley, xxiv. 311. 24. A will, after a devise to the testator's wife of all his property, contained this provision : " In every other respect I leave it entirely to the will and judg- ment of my said wife Catherine, how and in what manner she thinks proper to dispose of the estate, as well with reference to our child or children as with refer- ence to the said Joseph Frederick Beck." The testator left one child — S'eld, that such child was named in the will within the meaning of the statute. (R. 8. 1845, 1080, § 11. Beck v. Metz, xxv. 70. 25. A bequest to a son-in-law, though he is not designated as such, is a naming ofthe daughter within the statute. (R. S. 1845, 1080, § 11.) Hockensmith \. Slusher, xxvi. 237. 26. A will by which the testator devises all his property to his wife, " as her own and exclusive property, and to the exclusion of all and every person or per- sons, be the same relatives or not," does not name nor provide for the children of the testator within the meaning of the statute. (R. S. 1835, 620, § 30.) Har- gadine v. Pultf, xxvii. 423. See Devise and Legacy, 17 ;. . . .Evidence, 89 ;. . . .Jurisdiction, 19. V. PROBATE. 27. Where there has been probate of a will, a court of equity should not set it aside upon a suggestion of fraud and imposition in making it. Proceedings to 694 WILL. Vm. invalidate such will must be had at law, by petition, as provided in the statute. (1 Ter. L. 789, § 10.) Lyne v. Marcus, i. 410. Trotters v. Winchester, i. 413. Swain V. Gilbert, iii. 347. 28. Where heirs at law are subscribing witnesses to a will, but .are not legatees or devisees under it, and, in a proceeding to establish the will they refuse to tes- tify upon the ground that they are parties to the record, other witnesses may be examined to prove the handwriting of the witnesses and of the testator. Holrnes V. Holloman, xii. 535. 29. Proceedings to invalidate a will, of which proof had been taken in vaca- tion by the Judge of the probate court, are not premature by reason of having been commenced before the court had confirmed, at a term thereof, the proceed- ings of the judge. Potter v. Adams, xxiv. 159. See JuEiSDiCTioN, 7, 18;. . . .Practice in Supreme Court, 23. VL WILL LOST, DESTROYED OR EMBEZZLED. 30. A will lost or destroyed may be proved, and its contents established, by secondary evidence, such as a copy, the testimony of subscribing witnesses, &c. Graham v. O'Fallon, iii. 507. 31. A probate of so much of a will may be granted as can be proved. Jack- son V. Jackson, iv. 210. Dickey v. Malechi, vi. 177. 32. To authorize the County Court, under the statute, (R.S. 1826, 100, § 22,) to issue a citation to witnesses to testify their knowledge relating to the exist- ence, destruction or possession of a will, it is essential that the executor or other person interested should make his aflBdavit " that he has cause to believe that some person has concealed or embezzled," &c. Graham v O'Fallon, iv. 338. 33. One witness is sufficient to establish the contents of a lost will. Graham V. O'Fallm, iv. 601. Bickey v, Malechi, vi. 177. 34. It is of no importance whether a will was destroyed before or after the death of the testator, provided it was done without his knowledge or consent. Dickey v. Malechi, vi. 177. VII. CODICIL. 35. An unattested will may be set up and republished by a codicil legally exe- cuted, though not actually attached to the will. Harvy v. Ohouteau, xiv. 587. VIII. UNDUE INFLUENCE. 36. An inquiry whether xmdue influence was exerted over the testator should not be confined to the time of the execution of the will, but whether undue influ- ence had been acquired and operated upon the testator in the disposition of his property. Taylor v. Wilhurn, xx. 306. See Evidence, 87, 88. See Chancery, 89-90; Estoppel, X. WITNESS. 695 WITNESS, I. EXAMINATION OF WITNESSES. a. PORM OF QUESTIONS. b. CEOSS-EXAMINATION. C. LEADING QUESTIONS. n. IMPEACHMENT, ni. INTRODUCTION AT THE TRIAL. IV. SEPARATION DURING TRIAL. V. LIABILITY. VI. COMPETENCY. a. GENEEALLT. b. EXPERTS. C. PARTIES TO ACTION, AND PRACTICE AS TO THEIR INTRODUCTION AT THE TRIAL. d. PARTIES INTERESTED IN EVENT OF ACTION. e. HOW AFFBCTBD BY INTEREST, OR OTHERWISE. aa. Administrator. bb. Agent. cc. Asssignor of Chose in Action. dd. Attorney. ee. Brother. flF. Clerk. gg- Co-Obligor. hh. Co-Promisor. ii. Creditor. jj- Debtor. kk. Defendant in Execution. 11. Distributee. mm. Executor. nn. Grantor. 00. Indorser. pp. Inhabitant of Corporate Town, qq. Justice of the Peace. rr. Legatee. ss. Maker. tt. Mortgagor. uu. Negro. vv. Ob igor WW. Owner of Boat. XX. Partner. yy- Principal and Surety. zz. Prochain Ami. (aa.) Special Cases. (bb.) Stockholder. (cc.) Trustee. (dd.1 (ee.) Widow. Wife. 696 WITNESS, n. I. EXAMINATION OF WITNESSES. a. FORM OF QUESTIONS. 1. Where a party undertakes to prove by a witness words which were spoken by a deceased surveyor, relative t6 a boundary in question, the question must be put in such a manner as to draw out from the witness whatever facts the surveyor stated, and not mere general conclusions which might be derived from a combi- nation of law and fact. Evans v. Greene, xxi. IVO- b. CROSS-EXAMINATION. 2. If a witness is sworn, and gives evidence, however formal and unimportant, he may be cross-examined in regard to all matters involved in the issue. Page v. KanTcey, vi. 433. Brown v. Burms, viii. 26. 3. Great latitude is allowable in the cross-examination of witnesses. Young v. Smith, XXV, 341. C. LEADING QUESTIONS. 4. A witness was asked whether or not the defendant, in a conversation with him, admitted that the plaintiff had not received his share of an estate — Held, that the question was leading, and ought to ha,ve been suppressed. McLean v. Thorp, iii. 215. 5. Leading questions may be asked, in the sound discretion of the court, on a direct examination, where a witness is interested to defeat the party calling him, or manifests a disposition to evade questions, or appears reluctant and unwilling to give evidence. Walsh v. Agnew, xii. 520. 6. Leading questions may be put to a witness in the discretion of the court. The State v. Hughes, xxiv. 147. See Pbaoticb in Supreme Court, 50. II. IMPEACHMENT. I. The credit of a witness may be attacked by showing that he swore differ- ently on a former occasion. Hays v. Waller, ii. 222. 8. Where a witness swears, on cross-examination, that he does not remember that he made a particular statement on an occasion specified, his credit may be attacked by showing that he did, in fact, make the statement. Garret v. The State, vi. 1. 9. But he must first be inquired of whether he has done or said what is pro- posed to be proved. Able v. Shields, vii. 120. Clementinev. The State, xiv. 112. 10. The declarations of a witness out of court are not admissible, except by way of impeachment. Fanny v. The State, vi. 122. II. A witness may be discredited on the ground of bad moral character gen- erally, as general bad reputation for chastity: The State v. Shields, xiii. 236, Day V. The State, xiii, 422. WITNESS. V. 697 12. If a witness testifies with wilful falsity to any material fact, the jury may discredit and reject the whole of his testimony. The State v. Mix, xv. 153. Gillett V. Wimer, xxiii. 77. The State v. Dwire, xxv. 553. 13. The questions of the competency and credibility of witnesses are distinct and independent questions, and the fraudulent conduct of a witness, which might affect his credibility, does not destroy his competency. JRose v. Bates, xii. 30. 14. A party cannot introduce evidence merely to discredit his own witness ; bnt if, to establish a fact, he introduces a witness, who fails to prove it, he may prove the fact by another, though in so doing he may show the first witness gnilty of peijury. Brown v. Wood, xix. 415. 15. Evidence of the general character of a witness for truth and veracity, among a majority of his neighTaors, is inadmissible. Emory v. Phillvps, xxii. 499. m. INTRODTJCTION AT THE TRIAL. 16. Where an interested witness testifies by consent, it is error for the court to withdraw the testimony from the consideration of the jury. Mlem, v. Brown, V. 323. 17. Where a witness has been examined in chief, cross-examined, re-examined and finally dismissed, it lies in the sound discretion of the court trying the case, whether he may again be recalled. If the object in recalling a witness is to re-affirm his former statement only, it is unnecessary, and tends to endless repe- tition. Atchison V. St. Bt. Dr. Franklin, xiv. 63. See Practice, 224. IV. SEPARATION DURING TRIAL. 18. It is discretionary with the court whether witnesses shall be separated or not during the trial, so as to prevent them from hearing each other's examina- tion. Kingy. The State, i. 7l7. 19. The witnesses were ordered to leave the court room during the examina- tion of witnesses. A witness returned in violation of the order, and the defend- ant offered to examine him. The witness stated that he returned because the defendant told him that he did not wish to examine him, and the defendant stated that he did not wish to examine him to any point to which others had testified — Held, that the court did not err in refusing to permit him to be examined. Dyer v. Morris, iv. 214. 20. A witness, by remaining within hearing while other witnesses are examined, in disobedience of an order of court, cannot deprive the party calling him of the benefit of his testimony, when neither such party nor his attorney were in any manner at fault in the matter. Keith v. Wilson, vi. 435. V. LIABILITY. 21. A witness, duly subpoenaed, his fees having been duly tendered to him, who fails to attend upon the trial to which he is summoned, is liable for the 698 WITNESS. VI. dsimages occasioned by Bis non-attendance, though the suit wherein he was sum- fnonipd has not been determined. And, in such case, the subpoena, properly a-athenticated, is evidence, without waiting until the cause is determined for a full transcript of the case. Connett v. Hamilton, xvi. 442. VI. competency: a. GBNERALLT. 22. Identity of persons will not be inferred from the mere fact of identity of names, in order to exclude a witness on the ground of interest. Cozsens v. Gil- lispie, iv. 82. 23. All persons who are disinterested are presumed to be competent witnesses until'the contrary appears. Freleigh v. The State, viii. 606. 24. The word "respectable" in § 31 of the act of February 27th, 1843, (Acts 1842-3, 33,) is equivalent to the phrase " credible, disinterested," in § 17 of the act of March 21, 1835, (E. S. 1835, 4:87,) and they are synonymous with the word " competent." Therefore, a "respectable" or ''credible, disinterested" witness means a " competent " witness. Ibid. 26. A witness is not disqualified from testifying on the ground of interest, where his interest in the result, is balanced and equal on both sides. Bridges v. Bell,x\\\. 69. 26. Under the new code, interest does not render a witness incompetent unless he is a party to the suit, or a person for whose immediate benefit it is prosecuted or defended, or an assignor of a thing in action assigned for the purpose of mak- ing him a witness. Bates v. St. Bt. Madison, xviii. 99. 27. A witness will not be permitted to state the symptoms and appearance of cattle that die from want of feed, unless he is an expert in such matters. Sto- nam v. Waldo, xvii. 489. 28. In matters of science and skill, the opinions of experts only can be received in evidence. Wagner v. Jacdby, xxvi. 530. C. PARTIES TO ACTION, AND PRACTICE AS TO THEIR INTRODUCTION AT THE TRIAL. 29. Where the pi aintifl^ proves his demand by the testimony of the defendant, (R. S. 1835, 3C1, § 16,) the latter is not thereby made a competent witness to prove a set-off against the plaintiff's claim in favor of the defendant. Masick v. Mustek, vii. 495. 30. Where there is not any or only slight evidence against one of several defendants, the jury may find a separate verdict as to him, and his discharge will render him a competent witness for his co-defendants. Brown v. Bums, viii. 26. Fitzgerald v. The State, xiv. 413. Hood v. Mathis, xxi. 308. Brown v. Lewis, XXV. 335. Benoist v. Sylvester, xxvi. 585. 31. Although the practice has been to entertain a motion for a separate ver- WITNESS. VI. 699 diet on the close of the plaintiffs case, the better rule would seem to be for the court to exercise its discretion, and to delay action till all the evidence is submit- ted, where there is a probability of additional testimony suflBcient to justify a verdict against the party. Benoist v. Sylvester, xxvi. .58-5. 32. It is too late to apply for such separate verdict after the arguments in the case are closed. Hood v. Maihis, xxi. 308. 33. A. and B. were sued on a note before a Justice, and judgment obtained against them, from which A. appealed, and, the other defendant not joining in it, a severance was granted. On the trial of the appeal the plaintiff offered B. as a witness — Held, that he was interested in the event of the suit, and therefore incompetent. (See E. S. 1835, 361, §§ 16, 17.) Levy v. Hawley, viii. 510. 34. But where judgment was rendered against A. and confessed by B., in a Justice's Court, on a bond executed by A. and B., on an appeal to Circuit Court by A., in which B. did not join, B. is a competent witness to prove that A. did not execute the bond. Coons v. Green, ix. 197. 35. A party who is liable to be called on as a witness by his adversary in a Justice's Court, is equally liable in the Circuit Court on an appeal. [Martien v. Barr, v. 102, commented upon.] Origg v. Bodrio, ix. 222. 36. A party is a competent witness in his own favor, in cases where the defen- dant has been guilty of some tortious act, or where no other evidence of the facts can be had, as in the case of a bailee who breaks open a box committed to his care and steals the contents ; and the rule also extends to inn-keepers whose lodgers are robbed. Sparr v. Wellman, xi. 230. 37. In all such cases the tort or robbery must first be proved by evidence aliunde, before the plaintiff can, by his own oath, establish the fact of the arti- cles stolen or lost. Ibid. 38. And the evidence, to establish the tort or robbery, must be clear, and its weight and sufHciency determined by the court. Ibid. 39. A mere formal party, standing indifferent to the real parties in interest, may be examined as a witness. Block v. Chase, xv. 344. 40. A defendant who is a mere trustee is a competent witness for the cestui que trust. If, however, he were incompetent, the dismissal of the suit as to him, after his testimony had been taken, would not restore his competency. Mc- Laughlin V. McLaughlin, xvi. 242. 41. Under the new code, one defendant is not a competent witness for his co- defendant. Young v. Croughton, xvii. 367. Rice v. Morton, xix. 263. Rankin V. Harper, xxiii. 579. 42. The deposition of a master of a steamboat, which had been seized under the statute for the transportation, by the master thereof, of a slave from one place to another in this State, without the consent of the owner, and released upon the giving of a bond by the ma-ster with security, under the statute, (R. S. 1845, 182, § 9,) is inadmissible in evidence in favor of the master and his secu- rities, llie declarations of the master are admissible in evidence against him. Withers V. St. Bt. El Paso, xxiv. 204. 43. To entitle a party to a suit under the statute of 1849, (Acts 1848-9, 99, § 11,) or the statute of 1855, (R. S. 1855, 1677, § 3,) to examine as a witness in 700 WITNESS. VI. his behalf a party to the suit, the party summoned must be an adverse party, and not merely an opposing party on the record. Harris v. Harris, xxv. SeY. See Practice, 113. d. PARTIES INTERESTED IN EVENT OF ACTION. 44. The interest of a witness in the result of a suit may be released, and the witness thereby rendered competent. Evans v. Hays, ii. 97. 45. A person who is named in the writ as a defendant, but who is not served with process, is not a party to the action, and his liability to the plaintiff is not affected by the result of the suit. He is therefore a competent witness for defen- dant when he is released from liability for contribution. Steigers v. Chross, vii. 261. 46. But where the defendant and C. and E. were sued on a note as partners; the defendant alone being served with process, the plaintiff offered C. as a wit- ness to prove the partnership — Held, that he was incompetent on the ground of interest in the event of the suit. Dixon v. Hood, vii. 414, 47. Where a party has a cojnmunity of interest in the subject matter of a suit, he is, nevertheless, a competent witness, where the record cannot be used as evi- dence, either for or against him. Oason v. White, viii. 216. 48. A witness who has no legal interest in the event of a suit, is competent, although he may expect to be benefitted by the judgment. Wame v. Prentiss, ix. 640. 49 . An actual and real party to a suit, whether named in the record as such, or not, cannot be coinpelled to testify himself. Benoist v. Darby, xii, 196. 50. Under the act of 1849, (Acts 1848-9, 99, § 1,) the evidence of a witness contingently liable, is admissible. St. Bt. Madison v. Wells, xiv. 360. 51. In, an action by A. against B., for money advanced at the instance of C, on a contract made by C. in his own name, on behalf of B., with D., for the purchase of a boat, C. is not a competent witness for A., under the system of practice prior to the new code. Winston v. Wales, xvii. 370. 52. A person who is bound to pay one-half the damages and costs in a suit in case of a recovery, is not " a person for whose immediate benefit the action is defended," within the meaning of the statute, (Acts 1848-9, 100, § 2,) and is a competent witness. Laumier v. Francis, xxiii. 181. 53. The fact that a person introduced as a witness had before the commence- ment of the suit^ received an order from the plaintiff for the sum sued for, the order not being accepted in discharge of the debt due him from the plaintiff, and that he was authorized to bring suit for the plaintiff, does not disqualify him as a witness in behalf of the plaintiff; the suit is not prosecuted for his immediate benefit. Sawyer v. Mitchell, xxvii. 510. e. HOW AFFECTED BT INTEREST, OR OTHERWISE. aa. Administrator. 54. An administrator, having no interest in an estate, further than the per WITNESS. VI. 701 centum allowed him by law, is a competent witness to prove a debt or demand, due the intestate. Cfraves v. Priest, i. 21i. Graves y. Black, \. 2'i,\. bb. Agent. 55. An agent is a competent witness to prove contracts made by him on behalf of his principal. Stothard v. Aull, vii. 318. 56. A party who executed a note for the defendant, under an assumed agency, is a competent witness for the defendant, to prove that he had no authority. St. John V. McConnell, xix. 38. cc. Assignor of Chose in Action. 57. The assignor of a chose in action, is a competent witness on the trial of a suit brought upon the assigned claim. Porter v. Pea, vi. 48. (But, by the R. S. 1855, 1577, § 6, not as to facts occurring prior to the assignment.) 58. The assignor of a chose in action, assigned for the purpose of maMng him a witness, should not be excluded, under the statute, (Acts 1848-9, 99, §§ 1, 2,) where, after such assignment, the assignor is entirely divested of interest in the event of the action. McICinley v. Williamson, xxiii. 65. See Hamilton v. Bice, 7 Barb., 165. [But see R. S. 1855, 1577, § 6, cl. 2.] dd. Attorney. 59. An attorney who draws up a will, and is present at its execution, sees it in the possession of the testator's family after his death, and reads it, and recollects its principal provisions, is a competent witness to prove these facts, and his evi- dence is not subject to the objection, that it discloses confidential communica- tions of a client. Graham v. G'Fallom, iv. 338. ee. Brother. 60. The brother of the deceased, and a distributee of his estate, is not a com- petent witness in behalf of the estate. Foster v. Nowlin, iv. 18. ff. Clerk. 61. A clerk, who pays out the money of his employer by mistake, is a competent witness for him in an action to recover it back. Burd v. Ross, XV, 254. gg. Co-obligor. 62. In an action brought against one of two obligors to a bond, the co-obligor cannot, under the statute, (R. S. 1845, 833, § 26,) be a witness for the defendant. Callaway County Court v. Craig, ix. 836. hh. Co-promisor. 63. Where one of two joint promisors is alone sued, and he executes to the other a release of all claim over upon him, the party thus released is a competent witness for his co-promisor. Long v. Story, xiii. 4. 102 WITNESS. VI. ii. Creditor: 64. A creditor of a solvent estate is a commpetent witness in behalf of such estate. Foster v. Wallace, ii. 231, jj. Debtor. 65. Where property is conveyed in trust to secure a debt, and is subsequently taken on an execution against the debtor by a third party, and suit is brought by the trustee against such third party, the debtor is interested in the result, and not a competent witness. Dameron v. Williams, vii. 138. 66. In an action against an administrator for money alleged to have been received by him from a debtor of his intestate, such debtor is not a competent witness to prove the payment of such debt, without a release. Horine v. Horine, xi. 649. tk. Defendant in Execution. 67. Under the practice act of 1849, (Acts 1848-9, 99, §;1,) the defendant in an execution is a competent witness for the plaintiff in • the execution, in a con- troversy between the latter and the parties to a delivery bond, claiming the property levied on. Page v. Butler, xv. 73. 11. Distributee. 68. A person interested in an estate as a distributee, is a competent witness to prove facts, which increase the liabilites of the estate. Richmond v. Cross, xiii. 75. 69. Under the new code, (Acts 1848-9, 99, §§ 1, 2,) the distributee of a solvent estate is a competent witness for the estate. Stein v. Weidman, xx. 17. [Overruling, Penn v. Watson, xx. 13.] See Supra, 60. mm. Executor. 70. The statute (R. 8. 1845, 1084, § 38,) renders the appointment of an executor void, where he is one of two attesting witnesses ; consequently, he is a competent witness to prove the will. Murphy v. Murphy, xxiv. 526. nn. Orantor. 71. The grantor of a deed which is attacked as fraudulent, may give evidence in support of it. Baker v. Welch, iv. 484. 72. A grantor in a deed of trust, under which a party interpleading claims property attached, is not a competent witness for the defendant to show the con- sideration of the deed. Keiser v. Moore, xiv. 2.8. 00. Jndorser. 73. An intermediate indorser of a bill of exchange is a competent witness for plaintiff in an action by the holder against a prior indorser. Little v. Pratte, i. 201. WITNESS. VI. 703 pp. Inhabitant of Corporate Town. 74. The inhabitants of a corporate town are competent witnesses for the cor- poration in a suit brought by the town, and in which the rights of the town are in controyersy. Barada v. Inhabitants of Carondelet, viii. 644. qq. Justice of the Peace. 75. A Justice before whom a cause was tried, is a competent witness to prove the grounds upon which the cause was determined. Taylor v. Larkin, xii. 103. rr. Legatee. 76. A legatee or devisee, who is also heir at law, is a competent witness to prove a fact to establish a will, under which he takes the legacy, when the estab- lishment of the will is against his interest as heir at law. [Trotters v. Winchester, i. 413, commented upon and explained.] Wash, J., dis Dickey v. Malechi, vi. 177. Graham v. G' Fallon, iv. 338. Same Case, iv. 601. ss. Maker. I 77. The maker of a negotiable note is a competent witness in a suit thereon by the indorsee against the indorser. Bank of Missouri v. Hull, vii, 273. 78. But it is otherwise if the note was indorsed for the accommodation of the maker, since, in that case, the maker is liable for costs. Ibid. tt. Mortgagor. 79. In a suit by a mortgagee of personal property, against a purchaser of the mortgaged property, under execution against the mortgagor subsequent to the mortgage, the mortgagor is a competent witness for the mortgagee. King v. Bailey, viii. 332. uu. Negro. 80. In a suit for freedom by a negro, is is no objection under the statute (R. S. 1835, 624, § 19,) to a negro witness, that the defendant negro vouches a white man for warranty of title. Meechum v. Judy, iv. 361. vv. Obligor. 81. It is competent for the Circuit Court to order the cancelment of the ori- ginal appeal bond, given before a Justice, and the substitution of another, thereby rendering the original obligor a competent witness for the appellant. Moumoyv. Andrews, v. 513. 82. And where, in such a case, the testimony is material, and the fresh secu- rity offered is sufficient, it is error for the court to refuse the order. Thomas v. Alton, v. 534. 83. The security in a bond for the forthcoming of a boat seized under the act concerning boats and vessels, is a competent witness for the boat under the new code. Bates V. St. Bt. Madison, xviii. 99. lOi WITNESS. VI. WW. Owner of Boat. 84. Part owners of a steamboat are not pairtneTs, but tenants in common, and one may be a witness for the other. Cinnamond v. Greenlee, x. 578. 85. A joint owner of a steamboat is a competent witness in an action ex delicto against the other joint owners. Lee v. Murray, xii. 280. 86. An owner of the boat at the time of a collision, and where suit was com- menced and the boat attached, who sold his interest with the understanding that the purchasers should run the risk of the suit then pending, is incompetent to testify. Patrick v. St. Bt. J. Q. Adams, xix. 73. XX. Partner. 81. B. and H. were partners under the firm of B. & Co. H. had a business house of his own distinct from that of the firm. Goods were consigned to the firm, but before their receipt, the consignor instructed B. to deliver them to H., to be sold on commission, and B. acted as the agent of the consignor. In an action by the consignor against H. for the proceeds of the sales of the goods, B. is a competent witness for the plaintiff. Jones, J., £?is. Hanly v. Blanton, i. 49. 88. One partner is a competent witness by whom to prove that a second partner had advanced money for a third as a part of his portion of the capital. Per McBeidb, J. Cinnamond v. Greenlee, x. 578. 89. A party suing may, under the new code, (Acts 1848-9, 99, § 11,) use as a witness the former partner of the defendant, who confesses the action. Robin- son V. McFaul, xix. 549. 90. A suit was commenced and summons issued against a firm of two persons, but one of whom was found. At the trial, the partner not found was introduced as a witness on behalf of his co-partner — Held, that under the new code, (Acts 1848-9, 99, § 1,) he w^ a competent witness. Weston t. Hunt, xix. 605. yy. Principal and Surety. 91. In a .suit against sureties on a bond, the principal, although indemnified against costs, is still interested in the event of the cause, under the statute relating to securities, (R. S. 1835, 574, § 4,) and is not a competent witness for the defense. Shelton v. Ford, vii. 209. Garrett v. Ferguson, ix. 124. 92. In a suit against a defaulting treasurer, his security in a former bond was offered by the plaintiff as a witness. The witness stated, on his voir dire, that he had no interest in the event of the suit, but that he believed a recovery against the defendants would prevent a suit against himself — Held, that he was & competent -vfitness. Todd v. Boone County, viii. 431. 93. A co-security, not a party to the suit, is a competent witness against his co-security. Craig v. Callaway County Court, xii. 94. 94. The principal in a promissory note, bearing ten per cent, interest, against whom a judgment by default has been rendered, is a competent witness for his securities, after having been released by them from payment of all costs and interest above the rate of six per cent, upon the amount which should be adjudged against them. Hogg v. Breckenridge, xii. 369. WITNESS. VL 705 zz. Frochain Ami. 95. Where a minor sues by his next friend, the next friend is a competent witness in behalf of such minor plaintiff. Murphy v. Murphy, xxiv. 626. (aa.) Special Cases. 98. A person of whom a plaintiff purchased a slave, is a competent witness to prove'the loss of a bill of sale for the slave, given by the defendant to witness, notwithstanding the latter may have warranted the title to the plaintiff. Mlis v. Ellis, i. 220. 97. Where S. has a claim against M. for a snra of money and C. pays it, S. is an incompetent witness for C. to prove that the montjy was paid at B.'s request. Sector v. McNair, i. 471. 98. A person to whom a horse has been sold, and who has himself assigned his interest, is a competent witness in behalf of his assignee, in a suit against the original vendor, to prove the nature of the sale to himself it his own sale is with- out recourse. Floyde v. Wiley, i. 643. ^^. A. loaned a billiard table to B. The table, after being in B.'s possession for upwards of twelve months, was levied upon and sold as his property — Held, in an action of trover brought by A. against the purchaser, that B. was not a competent witness to prove the nature of his possession. Valois v. Warrur, i. 730. (bb.) Stockholder. 100. In a suit against a corporation, a stockholder therein is a competent wit- ness in its behalf, although, in case of a deficiency of corporate property, he would be liable to double the amount of his stock. Qucere — Whether he would be so if the corporation should be shown to be insolvent ? Barclay y. Globe Mutual Ins. Co., xxvi. 490. (co.) Trustee. 101. Where one of several trustees is interested to keep the trust as large as possible, he is incompetent to testify in an action against the other trustees. Ely den v. Cornelius, xii. 321. (dd.) Widow, 102. Under the new code, (Acts 1848-9, 99, § 1,) a widow is a competent witness for her deceased husband's estate. Scroggin v. HMand, xvi. 419. Sher- wood V. Hill, XXV. 391. 103. The widow of a decedent may be a witness for or against the adminis- trator or executor of the estate of her deceased husband, whether solvent or insolvent, as to all such facts as the policy of the law does not require to be kept sacred and secret, between husband and wife, during the marriage. Stein v. Weidman, xx. 17. 104. The widow of a decedent, being at the time of the trial the wife of the administrator, is a competent witness for him, as to facts which came to her knowledge before he was appointed administrator. Ibid. 45 706 WOODS, MARSHES AND PRAIRIES. (ee.) Wife. 105. Under the new code, (Acts 1848-9, 99. § 1,) a wife is a competent wit- ness in an action for the value of property against the special bailee of the husband, even if her husband is directly interested in the suit. Funk v. Dillon, xxi. 294. See Cbiminal Law, XI. • WOODS, MARSHES Al^D PRAIRIES. 1. The word "farms," as used in the statute to prevent the firing of woods, marshes and prairies, is not confined to inclosures. fintey v. Langstan, xii. 120. 2. A person who sets fire aroufid his own farrti, does so at Ms peril ; and if it occasions damage to another, he is liable iinder the statute, no matter what may have been Iiis motive. Ihid. 3. Upon the trial of a qai tarn action, founded upon the statute to ptereift the firing of woods, marshes and prairies, (R. S. 1845, 1090,) evidence to prove that the land where the fire was set out belonged to the defendant is irrelevant. Ibid. 4. A. set fire to the stubble on his own inclosure, and without any negligence or default on his part, and by inevitable accident, the fire spread over the open prairie to the inclosure of B., and burnt his fence. — Seld, that A. was not liable for the damage. Miller v. Martin, xvi. 608. See ArcTioN, 8. CONSTITUTION OF THE UNITED STATES. 101 LIST OF REFERENCES CONSTITUTION OF THE UNITED STATES. Abticlb If § 1 Mattison v. The State, iii. 421. " " Metcalf V. City of St. Xonis, xi. 102. " § 7 Simmons v. The State, xii. 268. " " Butler V. Chariton County Court, xiii. 112. § 8 Tracy v. The State, iii. 3. '' " Mattison v. The State, iii. 421. " Crow V. The State, xiv. 237. " " City of St. Louis V. McCoy, xviii. 288. « " " V. Boffinger, xix. 13. " The State v. Searcy, xx. 489. " " " V. Shapleigh, xxvii. 344. " " " V. North, xxvii. 464. " § 10 Bally V. Gentrv, i. 164. « " Conner v. Bent, i. 235. « " Manskcr v. The State, i. 452. " " Loper V. The State, i. 632. " " Tracy v. The State, iii. 3. " " Mattison V. The State, iii. 421. " " Ruggles V. Washington County, iii. 496. " " Bumgardner v. Howard Circuit Court, iv. 50. " " Bank Com. Kentucky v. Clark, iv. 59. « " The State v. Fry, iv. 120. " " Blair v. Perpetual Insurance Company, x. 559. " " Edmonson v. Ferguson, xi. 344. " " fiimmons v. The State, xii. 268. " Primm v. City of Carondelet, xxiii. 22. " " Harvey v. Wickham, xxiii. 112. " " Gorman v. Pacific Railroad, xxvi. 441. " " The State v. Shapleigh, xxvii. 344. " " " V. North, xxvii. 464. Akticlb ni, § 2 Mattison v. The State, iii. 421. " " King of Prussia v. Kuepper, xxii. 550. Article IV, § 1 Chamberlain v. Fan's, i. 517. "" " Hutchison v. Patrick, iii. 65. " " Paea v. Button, iv. 371. " " Wilson V. Jackson, x. 329. " " Destrehan v. Scudder, xi. 484. « « Warren v. Lusk, xvi. 102. « " Harbin V. Chiles, XX. 314. " " Harness v. Green, xx. 316. " " Randolph v. Koiler, xxi. 557. " " Gillett V. Camp, xxiii. 375. " § 2 Julia V. McKiTincv, iii. 270. " " Austin V. The State, x. 591. " § 3 Riddick v. Amelin, i. 5. 708 CONSTITUTION OF MISSOURI. Article V, Todd V. The State, i. 566. Abticlb VI, § 2 Baily v. Gentry, i. 164. " « Mattison v. The State, iii. 421. AMENDMENTS TO THE CONSTITUTION. Article V, The State v. Stein, ii. 67. » Yore 7. St. Bt. C. Bealer, xxvi. 426. LIST OF REFERENCES CONSTITUTION OF MISSOURI Article II, Article III, § 1 § 12 § 17 § 20 " § 27 § 32 Article TV; § 3 11 II § 6 § 9 § 10 11 II § 21 § 23 Article V, § 1 Baily v. Gentry, i. 164. Cunningham v. The State, xiv. 402. The State v. Field, xvii. 529. " V. Sloss, XXV. 291. The State v. Simonds, iii. 414. Metcalf V. City of St. Lonis, xi. 102. Kavser v. Trustees of Bremen, xvi. S8. The State v. Field, xvii. 529. Ex parte Bellows, i. 115. The State v. McBride, iv. 303. i< 11 II Jane v. The State, iii. 61. Fanny v. The State, vi. 122. The State v. Lusk, xviii, 333. Lewis V. The State, xii. 128. The State v. Lusk, xviii. 333. " V. Sloss, XXV. 291. " V. Lusk, xviii. 333. " V. Arabs, XX. 214. Pacific Railroad v. Governor, xxiii. 353. The State v. Ewing, xvii. 515. " V. Lusk, xviii. 333. Town V. Clerk, ii. 26. The State v. Fry, iv. 120. Russell V. Geyer, iv. 384. CONSTITUTION OF MISSOUKI. 709 Aeticlb V, § 1 Lane v. Charless, v. 285. " " Finley v. Caldwell, i. 512. " " Phelps V. Hawkins, vi. 197. « " Hull V. Dowdall, XX. 359. « §2 Rectorv. Price, i. 198. » « Blunt V. Sheppard, i. 219. " Clinton v. Dugal, i. 761. " Town V. Clerk, ii. 26. " " Jim V. The State, iii. 147. " § 3 Rector v. Price, i. 198. " " Byrne v. Harbison, i. 225. » " Clinton v. Dngal, i. 761. " " English V. Mnllanphv, i. 780. " " Town V. Clerk, ii. 26. " " Jim V. The State, iii. 147. » " The State v. Merry, iii. 278. " Mitchell V. The State, iii. 283. " " Dixon V. Judge, i^^. 286. " " Lane v. Charless, v. 285. •' " The State v. Perpetual Ins. Co., viii. 330. " " Pacific Railroad v. Governor, xxiii. 353. The State v. Stone, xxv. 555. § 5 Jim V. The State, iii. 147. I 6 McCune v. Hull, xx. 596. I 8 Town V, Clerk, ii. 26. " " Boone County v. Corlew, iii. 12. " Buford V. Byrd, viii. 240. " " Ladue V. Spalding, xvii. 159. " § 19 Charless v. Marney, i. 537. " " Fowler v. Watson, iv. 27. " Little V. Little, v. 227. " " Spencer v. Mcdder, v. 458. " " Mullanphy v. St. Ix)uis County Court, vi. 563. " '• Davis V. Wood, vii. 1C2. " The State v. Lopez, xix. 254. " " V. England, xix. 386. Articlb VI, § 1 Payne v. St. Louis County Court, viii. 473. " " Wyman v. City of St. Louis, xvii. 335. Article X, § 1 Newby v. Platte County, xxv. 258. •' " Garrett v. City of St. Louis, xxv. 505. " " Simmons v. The State, xii. 268. " " Hamilton v. St. Louis County Court, xv. 3. " " Gray v. Givens, xxvi. 291. " § 2 Swearingen v. St. Bt. Lynx, xiii. 519. Aeticlb XII, The State v. McBride, iv. 303. Aeticlb XIH, § 3 The State v. Shoultz, xxv. 128. " § 4 " V. Ambs, XX. 214. § 7 Baily v. Gentry, i. 164. " " Boone County v. Todd, iii. 140. " " Bumgardner v. Howard Circuit Court, iv. 50. " City of St. Louis v. Gurno, xii. 414. " " Hamilton v. St. Louis County Court, xv. 3. 710 CONSTITUTION OF MISSOURI. Article XIII, § 1 SCHXDUIE, CxBTrricATX, §•8 §9 § 10 11 14 §7 § 19 §2 V Wells V. City of Weston, xxii. 384. Newby v. Platte County, xxv. 258. Garrett v. City of St. Louis, xxv. fi05. Louisiana and Frankford Pl'k R. Co. v. Pickett, xxv. 535. Lindell v. Hannibal and St. Joseph Railroad Co., xxv. 550. Inhabitants of Palmyra v. Morton, xxv. 593. City of Boonville V. Ormrod, xxvi. 193. Dickey v. Tennison, xxvii. 373. Bank of Missouri v. Anderson, i. 244. Craig V. Barcroft, i. 656. Pratte v. Corl, ix. 162. The State v. Wright, xiii. 243. Shepard v. Bank of Missouri, xv. 143. Louisiana and Frankford Pl'k R. Co. v. Pickett, xxv. 535. The State v. Stein, ii. 67. " v. Ledford, iii. 102. " V. Wright, xiii. 243. " V. Page, xxi. 257. " V. McO'Blenis, xxiv. 402. " V. Honser, xxvi. 431. " V. Harman, xxvii. 120. " V. Heatherly, iv. 478. " V. Spear, vi. 644. " V. Huting, xxi. 464. Shore v. The State, vi. 640. Journey v. The State, i. 428. The State v. LedforO, iii. 102. B.iily V. Gentry, i. 164. Bumgardner v. Howard Circuit Court, iv. 50. The State v. Fry, iv. 120. Paddloford v. Dunn, xiv. 517. Frye v. Kimball, xvi. 9. Cunningham v. Gray, xx. 170. Simmons v. The State, xii. 268. Crow V. The State, xiv. 237. Hamilton v. St, Lonis County Court, xv. 3. Wells V. City of Weston, xxii. 384. Newby v. Platte County, xxv. 258. Walther v. Warner, xxv. 277. Garrett v. City of St. Louis, xxv. 605. The State v. North, xxvii. 464. Egyptian Levee Co. v. Hardin, xxvii. 495. The State v. Simonds, iii. 414. Governor v. Hays, iii. 434. Davis V. County Court, i. 151. R. S. 1845, 48. The State v. Amhs, xx. 214. AMENDMENTS TO THE CONSTITUTION. Abticie I, § 1 Lane v. Charless, v. 285. Erwin v. Henry, v. 469, CONSTITUTION OF MISSOURI. 711 Amiolb I. § 2 Amiole II, Abticle in, § 1 Abtiolb Vin, 8 1 " § 2 Jim V. The State, iii. 147. The State v. Fry, iv. 120. Erwin v. Hemy, v. 469. The State v. MoBride, iv. 303. Lewis V. The State, xii. 128. The State v. Scott, xvii. 521. " V. Eich, XX. 393. Morgan v. Buffington, xxi. 547. The State v. Ewing, xvii. 515. LIST OF STATUTES CONSTRUED, COMMENTED UPON OR REFERRED TO, WITH THE SAME OR ANALOGOUS ENACTMENTS m THE R. S. 1855. The arrangement and order of titles, chapters', &c., of the R. S. 1855, are adopted in thi> list, the enactment of 1855 coming first, followed by the statute construed or commented upon, and then the case in which the construction or comment is found; Article I. Sec. 1 (( 5 (t 6 ii 6 t( 7 II 7 " 8 u 9 (( 17 (( 17 it 18 i( 19 It 20 (t 26 (( 26 (( 26 (( 27 1( 27 tt 28 1( 82 t( 34 ft 36 it 36 u 37 It 44 it 45 it 45 tl 46 tl 46 it 47 u 47 tl 48 ti 49 a 62 it 63 i( 54 •t 64 » 64 u 64 ADMINISTRATION. 1 Ter. L. 395, § 1 Carpenter v. The State, viii. 291. R. S. 1825, 93, § 3 Frye v. Kimball, xvi. 9. " 1835, 41, § 5 Mullanphy v. St. Louis Go. Ct., vi. 663. " " " Craslin V. Baker, viii. 437. " 1825, 100, § 22 . . . .Graham v. 0'Fallon,iv. 338. " 1835, 42, § 6 Mullanphy v. St. Louis Co. Ct., vi. 563. " 1845, 72, § 58 Chouteau v. Burlando, xx. 482. " 1835, 42, § 7 Mullanphy v. St.touis Co. Ct., vi. 563. 1 Ter. L. 58, § 5 Oliver v. Crawford, i. 263. E. S. 1835, 42, § 13 . Woods v. The State, x. 698. " 1835, 43, § 14 " V. « " " " "6 15 " V. " " " " " § 16 Ilicks V. Chouteau, xii. 341. 1 Ter. L. 441, § 1, 2 McNfiir v. Dodge, vii. 404. » " § 2 Carpenter v. The State, viii. 291. " 922, § 13 McNair v. Dodge, vii. 404. " 441, § 2 " V. " " " 922, § 13 " V. " " R. S. 1825, 96, § 12 ... . .Lane v. Clark, i. 657. " 1845, 67, § 30 Ex parte Duty, xxvii, 43. " 1825, 96, § 15 Frye v. Kimball, xvi. 9. " 1845, 67, § 33 Powers v. Blakey, xvi. 437. " 1835, 44, § 26 Dobyns v. McGovern, xv. 662. U 11 " " U" y U U " " " § 32. ..'. . " V. " " " " " § 33 The State v. Pratte, viii. 286. " " " " Dobyns v. McGovern, xv. 662. " " " §34 The State V. Porter, ix. 352. " " " " Dobyns v. McGovern, xv. 662. " " 45, § 35 The State v. Porter, ix. 352. ♦' " " " Dobyns V. McGovern, XV. 662. " " " §36 The State V. Pratte, viii. 286. " " " § 37 " V. Porter, ix. 352. " 1845, 70, § 49 Asbury v. Mcintosh, xx. 278. (I 11 11 " " Bogart V. Green, viii. 115. " 2 " " ". " The State V. Kirby, ix. 295. " 6 " 1825, 213, §3 " v. Reynolds, iii. 95. " 6 " 1835, 116, § 4 " V. Ferguson, ix. 285. " 6 " 1845, 211, §6 " V. Bird, xxii. 470. " 7 " " 212, § 7 " V. Muir, XX. 303. " 8 " 1835, 117, § 8 McCurdy v. Brown, viii. 549. " 8 " 1845, 212, § 8 Campbell v. Luttrell, xiii. 27. " 11 Acts 1840-1, 31, § 5 McCurdy v. Brown, viiL 549. CONTRACTS AND PROMISES. Sec. 1 R. S. 1825, 215, § 4 Cowden v. Elliott, ii. 60. " 1 " 1835, 118, § 4 Atwood v. Reyljurn, v. 683. " 1 " 1845, 216, § 1 Searcy v. Platte County, x. 269. " 1 " " " " Burns V. Mason, xi. 469. " 4 " 1825, 215, § 4 Cowden v. Elliott, ii. 60. " 5 " 1835, 118, § 3 Grimsley v. Riley, v. 280. "5 , " 1845, 216, § 5 Gates v. The State, xv. 211. CONVEYANCES. Sec. 2 R. S. 1845, 219, § 2 Hogan v. Welcker, xiv. 177. " 3 " 1825, 217, § 6 Bogy v. Shoab, xiii. 365. " 3 *' " " " Valle V. Clemens, xviii. 486. T26 LIST OF STATUTES.— CONVEYANCES. R. S. 1835, 119, § 3 Evans v. Labaddie, x. 425. " 1845, 219, § 3 ^eyer v. Girard, xxii. 159. " " " § 4. . . . . Vancourt v. Moore, xxvi. 92. " 1825, 216, § 4. . . . .Burris v. Page, xii. 358. " " " " Farrar v. Christy, xxiv. 453. " 1845, 219, § 5 Chiles v. Bartleson, xxi. 344. " 220, § 6 Vaughn v. Guy, xvii. 429. " 1825, 194, § 18 Jones v. Waters, xvii. 587. " 1845, 221, § 13 Gibson v. Zimmerman, xii. 385. Gey. Dig. 127, § 1 Carter v. Soulard, i. 576. E. S. 1845, 221, § 14; . . .Alexander v. Schreiber, x. 460. " " " " ....Collierv. Gamble, X. 467. " " " " Mosely v. Hunter, xv. 322. " " " " Dickson V. Desire, xxiii. 151. " " " " ... .Armstrong V. Darby, xxvi. 517. " " " § 15 Caldwell v. Head, xvii. 561. 1 Ter. L. 47, § 8 Bosworth v. Bryan, xiv. 575. R. S. 1845, 221, § 16. . . .Caldwell v. Head, xvii. 561. 1 Ter. L. 47, § 8 Bosworth v. Bryan, xiv. 575. " 423, § 2 Richardson v. Robinson, ix. 801. Gey. Dig. 128, § 6 Lamarque v. Langlais, viii. 328. R. S. 1825, 218, § 10 Laughlin v. Stone, v. 43. " " " " Aubuchon v. Murphy, xxii. 115. " 1835, 121, § 14 Alexander v. Merry, ix. 510. " 1845, 223, § 27 Allen v. Moss, xxvii. 354. 1 Ter. L. 178, § 2 Bosworth v. Bryan, xiv. 575. " " " S 2 3 . . . . " " " " " " 756 Lindell v. McNair, iv. 380. R. S. 1836, 122, § 23 Rogers v. Woody, xxiii. 548. " " " 5 24. . . . " " " " " 1845, 224, § 34 McDaniel v. Priest, xii. 544. 1 Ter. L. 756 Reaume v. Chambers, xxii. 36. R. S. 1845, 225, § 35 Youse v. Norcums, xii. 549. " 1825, 220, § 12. . . .Hedelston v. Field, iii. 94. " " " " Chauyin v. Wagner, xviii. 531. " " " " Thomas V. Meier, xviii. 573. " " " " Delassus v. Boston, xix. 425. " " " " Perkins v. Carter, xx. 465. " " " " Chauvin v. Lownes, xxiii. 223. 1 Ter. L. 47, § 8 Allen v. Moss, xxvii. 354. " " 543, § 1, 2 Harrold v. Simonds, ix. 323. " " " " ... .Draper v. Bryson, xvii. 71. " " " .... " " xxvi. 108. R. S. 1835, 123, § 30 Hill v. Paul, viii. 479. " 1845, 226, § 40 Frothingham v. Stacker, xi. 77. 1 Ter. L. 543, § 1 Draper v. Bryson, xxvi. 108. " " " § 2 Richardson v. Robinson, ix. 801. R. S. 1835, 123, § 31 Traesdell v. Callaway, vi. 605. " " " " ....Hill V.Paul, viii. 479. " 1845, 226, § 41 Frothingham v. Stacker, xi. 77. " " " " Davis V. Ownsby, xiv. 170. 1 Ter. L. 47, § 8 Aubuchon v. Murphy, xxii. 115. " " 543, § 2 " « " " " " " Harrold v. Simonds, ix. 323. " " 798, § 4 Draper v. Bryson, xvii. 71. Sec. 3 a 3 it 4 n 5 i( 5 (( 5 S4-5, § 11 Carpenter v. The State, viii. 291. i( 14 (> i< " 6 13 ** " " " 16 <' " " § 13 " " " "16 " " " 5 14. . . . •" " " " 30 » 1825, 470, § 5 The State v. Gardner, ii. 23. " 32 " 1845, 633, § 32 Linderman v. Edson, xxv. 105. " 83 " " " § 33 " " " JUSTICES' COURTS. Article I. Sec. 1 R. S. 1845, 634, § 1 Oyster v. Shumate, xii. 580. " 2 " 1825, 473, § 1 IjTojitague v. Papin, i. 757. " 2 " " " " Papin V. Ruelle,iu 28. " 2 " 1835, 348, § 2 O'Brien v. Union Fire Co,, vii. 38. " 2 " 1845, 634, § 2 Schaller v. The State, xiv. 502. "2 " " " *' Huff V. &app, xvii. 414. " 2 City of Fayette v. Shafroth, xxv. 445, " 3 1 Ter. L. 620, § 1 Lockhart v. Hays, i. 271. " 3 R. S. 1835, 348, § 3 Talbot v. Greene, vi. 458. " 3 " " " " Finney V. Shirley, vii. 42. " 3 " " " " Wimer V. Brotherton, vii. 264. " 3 " " " " Martin V. Chauvin, vii. 277. " 3 " 1845, 635, § 3 Joyce v. Moore, x. 271. "3 " " " " Smith V. Grove, xii. 51. " 4 " 1835, 348, § 5 City of St, Louis v. Rogers, vii. 19. " 4 " 1845, 635, § 4 Wilson v. Petty, xxi. 417. " 5 " 1835, 348, § 6 Keim v. Daugherty, viii. 498. " 9 " " 349, §10 Lutes V. Perkins, vi. 57. Aeticlb n. Sec. 1 Acts 1842-3, -57, § 2 Robinett v. Nupn, ix. 244. " 1 R. S. 1845, 637, § 1 Huff v. Knapp, xvii. 414. " 4 " 1835, 350, § 4 Litlle v. Little, v. 227. " 9 " 1825, 473, § 5 Odle v. Clark, ii. 12. " 9 2 Ter. L., 89, § 1 Harryman v. Robertson, iii. 449. " 9 R. S. 1835, 350, § 6 . , , . .]\J?,upin v. Triplett, v. 422. " 9 " " " " Sperieer v. Medder, V. 458. « 9 " " " " Subleti V. Noland, V. 516. " 9 " " " " Garyey V. Dobyns, viii. 213. « 9 " " " " Wathen V. Farr, viii. 32.4, " 9 " 1845, 638, § 7 Caughlin v. l,yons, xxiv. 533. " 9 " " " " Boatman V. Curry, xxv. 433. " 9 " " " " Han. Pl'k. R. Co. v. Robinson, Kxvii. 396. "11 " " 639, § 9 Beachboard V. Luce, xx^i. 168. " 12 " 1825, 473, § 5 Odle v.^Clark, ii. 12.J "12 " " " "j .Bartlett v.McDaniel, iii. 55. " 12 " « " " NeU V. Dillon, iii. 59. LIST OF STATUTES.— JUSTICES' COURTS. 751 Sec. 12 2 Ter. L., 89, § 1 Neil v. Dillon, iii. 59. "12 " " " " Harryman V. RobertsoB, iii. 449. « 12 R. S. 1835, 351, § 9 Spencer v. Medder, v. 458. "12 " " " " Garvey V. Bobyns, viii. 213. " 12 " " " " Wathcn v. Fafr, viii. 324. " 12 " 1845, 639, § 10 Coughlin v. Lyons, xxiv. 533. " 13 " 1825y 473, §-5 Odle v. Clark, ii. 12. "13 " " " " Bartlett V. McDaniel, iii. 55. "13 " " " " Neil V. Dillon, iii. 59. " 13 2 Ter. L. 89, § 1 " " '• "13 " " " " Harris v. Harman, iii. 450. "13 " " " " Donohoe v. Cliappell, iv. 34. " 14 R. S. 1835, 351, § 10 Little v. Little, v. 227. "14 " " " " Davis V. Wood, vii. 162. " 16 Gey. Dig., 382, § 1 Charless v. Marney, i. 537. " 16 R. S. 1825, 473, § 4 Fowler v. Watson, iv. 27. " 16 " 1835, 351, § 12 Spencer v. Medder, v. 458. " 16 " 1845, 639, f 13. . . .Smith v. Young, xi. 566. " 19 Gey. Dig., 382, § 1 Charless v. Marney, i. 537. " 19 R. S. 1845^ 640, § 16 Sanders v. Rains, x. 770. " 19 Acts 1846-7, 87 Williams v. Bower, xxvi. 601. " 20 R. S. 183S< 352, § 20 Hart v. Robinett, v. 11. " 20 " " " " Lutes V. Perkins, vi. 57. " 20 " " " " Jones v. Hoppie, ix. 173. " 22 " " " § 21 Bogart v. Green, viii. 115. Abticlb in. Acts 1848-9, 47 .McKnight v. Crinrdon, xxii. 559. Article IV. Sec. 12 R. S. 1835, 354, § 8 Garvey v. Dobyns, viii. 213. "12 " " " " Wathen V. Farr, viii. 324. " 13 " 1825, 478, § 16 Meyers v. Hay, iii. 98. " 20 " 1835, 355, § 13 City of St. Louis v. Rogers, vii. xix. " 22 " 1845, 644, § 18 Wilson v. Pettv.xxi. 4n. " 24 " 1835, 355, § 16 Robinett v.Nunn, ix. 244. " 25 " " " § 17 " " " " 25 " 1845, 645, § 21 Huff v. KnApp, xvii. 414. " 26 " 1835, 355, § 18 Robinett v. Nunn, ix. 244. " 27 " " " § 19 " " " " 27 " 1845, 645, § 23 Huff v. Knapp, xvii. 414. Article V. Sec. 6 R. S. 1845, 648, § 6. . . . .Huff v. Knapp, xvii. 414. AmicLB VI. Sec. 4 R. S. 1845, 650, § 4. . . . .Carlisle v. Rawlings, xviii. 166. " 15 " 1825, 475, § 12 Thompson v. Curtis, ii. 209, 229. " 15 " 1845, 651, § 7 Han. Pl'k R. Co. v. Robinson, xxvii. 396. " 16 " " 652, § 8 " « « " " "17 " 1835, 359, I 3- Fenton v. Russell, vi. 143. " 17 " 1845, 652, §9 Huff v. Knapp, xvii. 414. "17 " " « " ....Han. Pl'kR. Co. V. Robinson, xxvii. 396. (( lo tt u " 6 10 " " " " '' " 22 " 1835j 359, § 7 Ferguson v. Huston, vi. 407. " 22 " " " "... ..Bnford v. Byrd, viii. 240. 752 LIST OF STATUTES.— JUSTICES' COURTS. Akticle VI. Sec. 22 R. S. 1845, 653, § 14 Morrison v. Edgar, xvi. 411. " 32 " 1835, 361, § 16 Martien v. Barr, v. 102. " 32 " " " " Musick V. Musick, vii. 495. " 32 " " " " Levy V. Hawley, viii. 510. "32 " " " " ....Grigg V. Bodrio, ix. 222. "33 " " " §17 Martien V. Barr, V. 102. "33 " " " " Atwood V. Reyburn, V. 555. "33 " " " " Levy V. Hawley, viii. 5 1 0. •'33 " " " " Grigg V. Bgdrio, ix. 222. " 33 " 1845, 654, § 25 ferown v. King, x. 56. " 39 " 1825, 479, § 18 Collins v. Bowmer, ii. 195. " 39 " 1835, 361, § 18 Maapin v. Triplett, v. 422. " 39 " 1845, 655, § 26 Kleim v. Keyes, xvii. 326. Article VII. Sec. 1 R. S. 1835, 362, § 1 Davis v. Wood, vii. 162. II 2 " " " S 2 " ' " " " 2 " 1845, 656, §2. Oyster v. Shumate, xii. 580. " 2 " " " " Hunter V. Rinehard, xiii. 23. " 2 '■' " " " HufF V. Kna:pp, xvii. 414. " 2 " " " " . . . .Chamberlin V. Mam. Mining Co., XX. 96. " 2 " " " " Franse V. Owen, xxv, 329. " 13 " 1835, 364, § 15 Amonett v. Nicholas, v. 557. " 16 " 1825, 483, § 30. . . .Coonce v. Munday, iii. 373. "16 " " " " Burk V. Flurnoy, iv. 116. "16 " 1835, 364, § 18 Jones v. Luck, vii. 551. "16 " '■ " " Murray V. Laften, XV. 621. « 16 " 1845, 659, § 17 Bunding v. Miller, x. 445. " 16 " " " " Franse V. Owen, xxv. 329. " 17 " 1825, 483, § 30 Coonce v. Munday, iii. 873. "17 » " " " .,.. .Burk V. Flurnoy, iv. 116. " 17 " 1835, 364, § 19 Murray v. Laften, xv. 621. " 17 " 1845, 659, § 18 Bunding v. Miller, x. 445. "17 « " " " .. ..Franse V. Owen, xxv. 329. Article VIII. Sec. 1 R. S. 1835, 365, § 1 Vaughn v. Montgomery, v. 529, " 2 " 1845, 660, § 3 Stevens v. Chouteau, xi. 382. " 3 Dillon V. Rash, xxvii. 243. " 7 R. S. 1845, 661, § 7 The State v. Dickorson, xxiv. 365. " 11 " " 662, § 11 Smith v. Sterritt, xxiv. 260. " 12 " 1835, 367, § 14 Little v. Seymour, vi. 166. "12 " " '" " Fisher V. Gordon, viii. 386. " 12 " 1845, 662, § 12 . . . .Schroeder v. Clark, xviii. 184. " 13 " 1835, 367, § 15 Brown v. Burrus, viii. 26. "13 « " " " Fisher v. Gordon, viii. 386. " 13 " 1846, 663, § 13 Schroeder v. Clark, xviii. 184. « 14 " 1835, 367, § 16 Fisher v. Gordon, viii. 386. " 14 " 1845, 663, § 14 Schroeder v. Clark, xviii. 184. "16 " " " §16 Waterman y. Frank, xxi. 108. " 21 " 1835, 367, § 18 Bogart v. Green, viii. 115. " 23 " " 368, § 20 McCurdy v. Brown, viii. 549. " 23 " " « " Dubreuil v. The State, x. 435. "23 " " '' " Pollock v. Hudgins, xii. 67. " 23 " 1845, 665, § 23 Dickerson v. Apperson, xix. 319. " 23 " " " " Roach v. Settles, xix. 397. LIST OF STATUTES.— JUSTICES' COURTS. 753 Article VIII. Sec. 23 R. S. 1845, 665, § 23 The State v. Muier, xxiv. 263. "23 Miller v. Wall, xxvii. 440. " 24 R. S. 1835, 368, § 21 Dubreuil v. The State, x. 435. " 24 " " " " Pollock V. Hudgins, xii. 61. " 24 " 1845, 665, § 24 Dickerson v. Apperson, xix. 319. « 26 " 1835, 368, § 22 Dubreuil v. The State, x. 435. " 26 " 1845, 666, § 26 The State v. McLernan, x. 780. "28 Miller v. Wall, xxvii. 440. " 30 R. S. 1835. 368, § 23 Wimer v. BrothertOB, vii. 264. " 30 " " " " McCurdy v. Brown, viii. 549. « 30 " " " " Dubreuil v. The State, x. 435. "30 " " " " Pollock V. Hudgins, xii. 67. " 30 " 1845, 666, § 28 The State v. Steel, xi. 553. " 30 " " " " " V. Muir, xxiv. 263. Article IX. Sec. 1 1 Ter. L. 307, § 4 Sipp v. St. Louis Circuit Court, i. 356. » 1 R. S. 1825, 480, § 22 Barnett v. Ivers, iii. 369. "12 Ter. L. 89, § 2 " " " 1 R. S. 1835, 369, § 1 Weisenecker v. Kepler, vii. 52. " 1 " 1845, 667, § 1 Harris V. Hughes, xvi. 599. " 1 " « « " Whitsett V. Gharky, xvii. 325. " 2 " 1825, 480, § 22 Thompson v. Curt'is. ii. 209, 229. " 2 " 1835, 369, § 2 Holt v. Warner, v. 386. " 2 Burns v. Hunton, xxiv. 337, 339. "32 Ter. L. 89, § 2 Rutherford v. Wim, iii. 14. "3 " " " Pearce v. Myers, iii. 31. " 3 R. S. 1835, 369, § 3 Cox v. The State, ix. 180. " 3 " 1845, 668, § 3 Cockrill v. Owen, x. 287. « 8 " " " " Adams V. Wilson, X. 341. " 3 " " " " Hood V. Mathis, xxi. 308. " 3 Smith V. Montreil, xxvi. 578. " 4 Gey. Dig. 389, § 16 Nichols v. St. Louis Circuit Court, i. 357. •'4 1 Ter. L. 309, § 7 Strange v. Ellis, i. 412. "4 " " " Sargent v. Sharp, i. 601. " 4 R. S. 1825, 480, § 22 Price v. Halsed, iii. 461. •' 4 " 1845, 668, § 4 Cockrill v. Owen, x. 287. " 4 " " " " Adams V. Wilson, X. 341. " 4 " " " " The State V. Buhs, xviii. 318. " 4 " " " " Ilalsall v. Meyer, xxi. 136. « 4 " " " " Hood V. Mathis, xxi. 308. "52 Ter. L. 283, § 2 Townsend v. Finley, iii. 288. " 5 " " Myers V. Woolfolk, iii. 348. " 5 " " Price V. Halsed, iii. 461. " 5 Acts 1838-9, 78 Papin v. Howard, vii. 34. " 6 " " " Morris v. Lenox, viii. 252. " 5 R. S. 1S45, 668, § 5 Warren v. The State, xi. 583. " 7 Acts 1840-1, 102, § 4. . . .Jamison v. Yates, vii, 571. " 7 R. S. 1845, 669, § 7 Warren v. The State, xi. 583. "12 " " " §12 Patten V. Nelson, xii. 292. " 13 2 Ter. L. 283, § 3 Price v. Halsed, iii. 461. "13 " " " Donohoe V. Chappell, iv. 34. " 13 R. 8. 1835, 370, § 8 Gates v. Akerd, v. 124. "13 " " " " Sublett V. Noland, v. 516. 51 754 LIST OF STATUTES.— JUSTICES' COURTS. S. 1835, 370, § 8 Atwood v. Reyburn, v. 533. . " " " " Cason V. Tate, viii. 45. " " Turner v. Northcut, ix. 249. " 1845, 610, § 13 Kraft v. HurtZ: xi. 109. " " " " Martin V. White, xi. 214. " " " Dickerson V. Apperson, xix. 319. " " " " Milligan V. Dunn, xix. 643. " " " " Slover V. Muncy, xxii. 391. " " " " Batchelor V. Bess, xxii. 402. " " " Matlock V.' King;, xxiii. 400. " " « § 15 Gordon v. Scott, xv. 249. " " " " Dickerson v. Apperson, xix. 319; " 1835, 370, § 12 Cox v. The State, ix. 180. " " " " The State v. Lavalley, ix. 824. " 1845, 670, § 17 Dickerson v. Apperson, xix. 319. " " " " Matthews V. Gloss, xxii. 169. " 1835, 371, § 16 Smith v. Anthony, v. 504. " " " " Chase V. Chase, viii. 103. " 1845; 670, § 18 Kraft v. Hnrtz, xi. 109. " 1825, 478, § 16 Oldham v. Henderson, iv. 295. " 1835, 371, § 16 Chase v. Chase, viii. 103. " 1845, 670, § 19 Hall V. Mills, xi. 215. " " " §20 Slater V. St. Bt. Convoy, X. 513. " 1825, 481, § 23 Hempstead v. Darby, ii. 25. " " " " Cochran V. Bird, ii. 141. " " " " Hayton v. Hope, iii. 63. " " " " Newberry y. Melton, iii 121. " » Tiffin V. Millington, iii. 418. « " " " Kelsy V. Brown, iv. 8. » " " " Hughes V. Hays, iv. 209. " 1835, 371, § 14 . . .Pratte v. Cor], ix. 162. " 1845, 670, § 21 Slater v. St. Bt. Convoy, x. 613. " " 671. § 22 " " " " " " McCabe V. Lecompte, XV. 78. " 1835, 371, § 17 St. Louis County v. Clay, iv. 559. " " " " Gates v. Akerd, v. 124. " 1845, 671, § 23 Hardison v. St. Bt. Cum. Valley, xiii. 226. Article IX. Sec. 13 R, ti 13 u 13 ii 13 u 13 it 13 ti 13 1( 13 (( 13 11 13 " 15 11 15 11 17 11 17 " 17 " 17 It 18 " 18 11 18 (t 19 " 19 (1 19 (1 20 11 21 11 21 It 21 " 21 It 21 11 21 It 21 tl 21 11 21 11 22 " 22 It 23 It 23 11 23 JUSTICE'S COURTS-^BREACHES OF THE PEACE. Sec. 1 1 Ter. L. 216, § 27 The State v. Bray, i. 180. « 1 R. S. 1825, 139, § 1 " V. Stein, ii. 67. "1 " " " " " V. Ledford, iii. 102. "12 Ter. L. 271 " " " "1 " " « V. Wilson, iii. 125. " 1 " " Wilder v. The Stat,e, iii. 413. LIST OF STATUTES.— LANDLORDS AND TENANTS. 755 Sec. 1 Acts 1836-7, 63 Swearingen v. The State, v. 329. " 1 The State v. Metzger, xxvi. 65. '- ^1 " V. Wightman, xxvi. 515. "21 Ter. L. 216, § 27 The State v. Bray, i. 180. « 2 " V. Wightman, xxvi. 515. " 9 R. S. 1825, 139, § 2 " Stein, ii. 67. "11 " Warne, xxvii. 418. " 15 R. S. 1825, 141, § 6 " Epperson, iv. 90. " 15 " 1835, 374, § 15 Cox v. The State, ix. 180. '• 15 " 1845, 674, § 15 Thomas v. The State, x. 235. "15 " " " " Manion V. " xi. 578. "15 " " " " The State V. Buhs, xviii. 318. "15 " " " " City of St. Louis V. Murphy, xxiv. 41. " 19 " " 675, § 20 The State v. Thevenin, xix. 227. "19 " " " " City of St. Louis V. Murphy, xxiv. 41. » 20 " 1835, 375, § 22 Cox. v. The State, ix. 180. " 20 " 1845, 675, § 22 Manion v. The State, xi. 578. "20 " " " " The State V. Thevenin, xix. 227. LANDS, STATE— SALE, DISTRIBUTION. Sec. 13 R. S. 1845, 680, § 13 Livermore v. Leonard, xvi. 474. Acts 1842-3, 77 Huntsucker v. Clark, xii. 333. R. S. 1845,682 " " LANDLORDS AND TENANTS Sec. 9 R. S. 1845, 688, § 9 Ayres v. Draper, xi. 548. " 9 Ish v. Chilton, xxvi. 256. "12 Ridgely v. Stillwell, xxv. 570. (( -I q ii ii ii "13 Ish V. Chilton, xxvi. 256. " 16 R. S. 1835, 377, § 13 Warne v. Prentiss, ix. 540. "18 Acts 1842-3, 247, § 1-4. .Glasgow v. Ridgeley, xi. 34. " 18 R. S. 1845, 688, § 14 Knox v. Hunt, xviii. 243. " 26 Acts 1842-3, 248, § 9 Quinnett v. Washington, x. 53. "32 • Vaughn v. Locke, xxvii. 290. " 33 R. S. 1845, 1102, § 3 Willi v. Peters, xi. 395. "33 " " " " Shepard V. Martin, xxv. 193. "33 " " " " Evans V. Muller, xxv. 195. "33 " " " " Harley V. McAuliff, xxvi. 525. " 33 Vaughn v. Locke, xxvii. 290. " 34 R. S. 1845, 1102, § 4 Willi v. Peters, xi. 395. "34 " " " " Shepard v. Martin, xxv. 193. "34 " " " " Evans V. Muller, xxv. 195. - "34 " " " " Harley V. McAuliff, xxvi 525. "34 Vaughn v. Locke, xxvii. 290. Tse LIST OF STATUTES.— LAWS— REVISED STATtTTES. Sec. 35 R. S. 1846, 1102, § 5 Willi v. Peters, xi. 395. "35 " " " " Shepard V. Martin, XXV. 193. " 35 " " " " Evans v. MuUer, xxv. 195, "35 " " " " Harley V. McAuliff, xxvi. 525. " 35 Vaughn v. Locke, xxvii. 290. U QQ U it U (( (t Q'j li It it a (i oo u il U u (1 QQ U U (t U » ^Q MARRIAGES. Sec. 7 E. S. 1835, 401, § 7 Vaughn v. McQueen, ix. 327. " 7 The State v. Eoss, xxvi. 260. " 8 E. S. 1835, 402, § 8 Medlock v. Brown, iv. 379. " 8 " 1845,730, " The State V. Winright, xii. 410. "8 " " " '' Alsup V. Eoss, xxiv. 283. « • » MECHANICS' LIENS. Sec. 1 E. S. 1835, 109, § 12 Sibley v. Casey, vi. 164, " 1 " " 108, § 1 Viti V. Dixon, xii. 479. " 1 " 1845,733, " Edgar V. Salisbury, xvii. 271. " 2 " 1825, 194, § 2 ... J .Milam v. Bruffee, vi. 635. " 2 " 1835, 108, § 2 Cornelius v. Grant, viii. 59. LIST OF STATUTES.— MERCHANTS. 769 Sec. 2 Acts 1840-1, 105 Speilman v. Shook, xi. 340. » 2 R. S. 1845,733 " « " " " 1835, 108, § 2 Cornelius V. Grant, viii. 59. " 6 " " " " Viti V. Dixon, xii. 479. " 7 " " " §3 Cornelius V. Grant, viii. 59. " 12 " 1825, 195, § 3 Milam v. Bruffee, vi. 636. " 12 " 1835, 108, § 4, 6. . .Cornelius v. Grant, viii. 59. " 12 " 1845, 735, § 8 Doellner v. Rogers, xvi. 340. "12 " " " " .Clark V. Brown, XXV. 559. "12 " " " § 8,9. ..Wibbing V. Powers, XXV. 599. "12 " " " § 7 Johnson v. McHenry, xxvii. 264. "12 " " " " Clark V. Brown, XXV. 559. "13 " " " §8 Belcher V. Schaumburg, xviii. 189. R. S. 1835, 107 Schulenhurg v. Gibson, xv. 281. Acts 1840-1, 105 " " " R. S. 1846, 733 " " " ST. LOUIS MECHANICS' LIEN LAW. (See Acts 1856-7, 668.) Sec. 1 Acts 1842-3, 83, § 1 Dunn v. North Missouri R. R., xxiv. 493. " 1 Blakey v. Blakey, xxvii. 39. " 2 Acts 1842-3, 83, § 2 Squires v. Fithian, xxvii. 134. " 5 " " 84, § 6 Dubois V. Wilson, xxi. 213. " 6 " " " §7 Blingworth V. Miltcnherger, xi. 80. " 6 " " " " ...Picotv. Signiago. xxvii. 125. " 6 " " " §8 Gaty V. Brown, xi. 138. " 6 " " " " Hammond V. Barnum, xiii. 325. "16 " " " § 9 Lee v. Chambers, xiii. 238. "16 " " " " Kinnear v. Jones, xxiv. 83. " 18 " " 83, § 3 Urin v. Waugh, xi. 412. "18 " " " " Clark V. Brown, xxii. 140. "18 " " " " Patrick V. Ballentine, xxii. 143. "18 " " " " Squires V. Fithian, xxvii. 134. Acts 1842-3, 83, Speilman v. Shook, xi. 340. " " " ... .Schulenhurg T. Gibson, XV. 281. " « " Clark V. Brown, XXV. 559. MERCHANTS. Sec. 1 R. S. 1835, 403, § 1 The State v. Martin, v. 361. " 1 Acts 1836-7, 64, § 2 " v. Hunter, v. 360. " 1 " V. Runyan, xxvi. 167. " 1 " V. North, xxvii. 464. "22 Ter. L. 172, § 4 Tracy v. The State, iii. 3. " 2 R. S. 1835, 403, § 2 The State v. Martin, v. 361. " 2 " 1845, 737, § 2 " v. Miller, xxiv. 632. " S " V. Shapleigh, xxvii. 344. " 2 " v. North, xxvii. 464. (t Q lb (( it U 760 LIST OF STATUTES.— NEGEOES AND MULATTOES. Sec. 22 Acts 1838-9, 52, § 18 Casey v. The State, vi. 646. " 22 ' " 1840-1, 82, § 1 The State v. Aubcrry, vii. 304. " 22 R. S. 1845, 542, § 3 " v. Weiss, xxi. 493. " 22 •' " " " " V. Arbogast, xxiv. 363. "22 " V. Andrews, xxvi. iTl. R. S. 1825, 530 Tracy v. The State, iii. 3. R. S. 1845, 737 Crow v. The State, xiv. 237. Acts 1846-7, 97 " " " " 1848-9,68 " « " " 1852-3, 111 The State v. Andrews, xxvi. l7l. MILLS AND MILLDAMS. Sec. 1 R. S. 1845, 744, § 1 Arnold v. Klepper, xxiv, 273. " 25 " " 747, § 25 " " " " 26 " 1835, 408, § 23 . . . . Welton v. Martin, vii. 307. " 26 " 1845, 747, § 26 Arnold v. Klepper, xxiv. 273. R. S. 1835, 405 Groce v. Zumwalt, iv. 567. " " " Hook V. Smith, vi. 225. MORTGAGES. I Sec. 1 1 Ter. L. 182, § 1 Carr v. Holbrook, i. 240. " 1 " " " Mullanphy V. Simpson, iv. 319.. " 1 " " " McNair V. O'Fallon, viii. 188. " 1 " " " Thayer V. Campbell, ix, 277. " 1 " " " McNair V. Lott, XXV. 182. " 1 R. S. 1825, 593, § 1 Carson v. Blakey, vi. 273. " 1 " 1835, 409, § 1 Ayres v. Shannon, v. 282. " 1 " 1845, 749, § 1 Riley V. MeCord, xxiv. 265. " 4 " " 750, § 4 " " xxi. 285. " 4 " " " " Perkins V. Woods, xxvii. 547. " 6 " 1835, 409, § 6 Thayer v. Campbell, ix. 277. " 6 , Hull V. Lyon, xxvii. 570. " 1' R. S. 1845,750,, § 8 Valentine v. Havener, xx. 133. « 9 " 1825, 638, § 10 The State v. Evans, i. 698. " 16 " 1845, 751, § 17 Riley v. McCord, xxi. 285. "16 " " " " Perkins V. Woods, xxvii. 547. " 18 Acts 1838-9, 87, § 13 Thayer v. Campbell, ix. 277. " 21 R. S. 1835, 410, § 13 Valle v. Am. Iron Mount. Co., xxvii. 455, " 21 " 1845, 752, § 22 Phelps v. Relfe, xx. 479. " 22 " " " § 23 " " " " 23 " " 753, § 24 " " " "23 " " " " Valle V. Am. Iron Mount. Co., xxvii. 455, I ♦ • » NEGROES AND MULATTOES Sec. 28 R. S, 1835, 416, § 21 Stoner v.The State, iv. 614, " 29 " " " § 22 " " " LIST OF STATUTES.— PARTITION. 761 NOTARIES PUBLIC. Sec. 3 Acts ISie-V, 105 Ex parte Mallinkrodt, xx. 493. " 4 R. S. 1825, 602, § 4 Draper v. Clemens, iv. 52. Acts 1846-7, 105 Ex parte McKee, xviii. 599. " 1850-1, 247 " " OATHS AND AFFIRMATIONS. Sec. 9 R. S. 1825, 604, § 3 Mahan v. Berry, v. 21. " 9 " 1845, 762, § 9 Glasgow v. Switzer, xii. 395. « 9 Acts 1846-7, 109, § 3 OFFICERS. Sec. 8 Acts 1846-7, 105 The State v. Lusk, xviii. 333. PARTITION. Sec. 1 R. S. 1825, 609, § 1 Chouteau v. Paul, iii. 260. " 1 " 1845, 765, § 1 Yount ^. Yount, xv. 383. " 1 " " " " Spitts V. Wells, xviii. 468. " 1 " " " " .Thornton V. Thornton, xxvii. 302. " 3 " " 766, § 2 Alexander V. Warranue, xvii. 228. " 3 Johnson v. Noble, xxiv. 252. " 6 R. S. 1845, 766, § 5 Anderson v. Anderson, xxiii. 379. " 6 " " " ■" . ...Thornton V. Thornton, xxvii. 302. " 6 Johnson v. Noble, xxiv. 252. " 6 Smith v. Davis, xxvi. 298. " 8 Acts 1846-7, 106, § 1 Anderson v. Anderson, xxiii. 379. " 8 Johnson v. Noble, xxiv. 252.' " 8 Smith V. Davis, xxvi. 298. " 9 R. S. 1825, 609, § 1 Hite v. Thompson, xviii. 461. "11 Lambert v. Blumenthal, xxvi, 471. "12 Johnson v. Noble, xxiv. 252. " 12 Smith V, Davis, xxvi. 298. " 14 R, S. 1825, 610, § 2 Chouteau v. Paul, iii. 260. "17 Lambert v. Blumenthal, xxvi. 471. " 28 Acts 1840-1, 108, § 1,. . .Marncy v. The State, xiii. 7. " 29 R. S. 1845, 770, § 29 . . . .Cooper v. Garesche, xxi, 151. " 35 " " 771, § 35 Ranney v. Brooks, xx. 105. "35 Wiley"v. Robert, xxvii. 388. " 36 R. S. 1845, 771, § 30 Ingram v. McCorabs, xvii. 558. " 37 Acts 1840-1, 108, § 2 Marney v. The State, xiii. 7. " 37 R. S. 1815, 771, § 37. . . .Ingram v. McCombs, xvii. 658. "37 " " " " Ranney V. Brooks, XX. 105. 52 '762 LIST OF STATUTES.— PRACTICE IN CRIMINAL CASES. Sec. 38 Acts 1840-1, 108, § 3 Marney v. The State, xiii. 1. " 51 R. S. 1825, 612 § '7 Hite v. Thompson, xviii. 461. " 51 '' 1845, 114, § 53 Thornton v. Thornton, xxvii. 302. "51 Johnson v. Noble, xxiv. 252. "51 Smith V. Davis, xxvi. 298. " 52 R. S. 1845, 114, § 54 Thornton v. Thornton, xxvii. 302. " 52 Johnson v. Noble, xxiv. 252. "52 Smith v. Davis, xxvi. 298. "53 Johnson v. Noble, xxiv. 252. " 54 R. S. 1845, 774, § 56 Yount v. Yount, xv. 383. " 55 " " " § 57 " " " " 65 Acts 1846-7, 106, § 2 Cooper v. Garesche, xxi. 151. it RR " it ii '( ii " " R. S. 1845, 764 Owsley v. Smith, xiv. 153. Acts 1856-7, 83, § 2. . . .Thornton v. Thornton, xxvii. 302. PEDLERS. Sec. 9 R. S. 1835, 429, § 12 Page v. The State, vi. 205. ♦ • PENAL BONDS. Sec. 1 R. S. 1825, 615, § 1 Fulkerson v. Steen, iii. 377. " 5 " 1836, 431, § 6 The State v. Woodward, viii. 353. II g " n "86 " V. " " R. 8. 1846, 781 Cockrill v. Owen, x. 287. PERPETUATING TESTIMONY. Article I. See. 2 R. S. 1846, 793, § 2 Tayon v. Hardman, xxiii. 539. Acts 1850-1, 250, § 2 " " " " POOR. Sec. 6 R. S. 1845, 799, § 6. . . . .Duval v. Laclede County, xxi. 396. -♦-•- PRACTICE & PROCEEDINGS IN CRIMINAL CASES. Article I. Sec. 7 The State v. Emnitz, xxvii. 521. " 10 R. S. 1845, 856, § 10. . . . " v. Fawcett, xvi. 380. " 10 « " " " . . . . " V. Hoffman, xviii. 329. "11 " " " §11.... " V. Fawcett, xvi. 380. "11 " " " " .... " V. Hoffman, xviii. 329. LIST OF STATUTES.— PRACTICE IN CRIMINAL CASES. 763 Abticlb II. Sec. 1 R. S 1825, 314, § 5 .Ex parte Bishop, iv. 217. (( 2 it 1845, 857, § 2 .The State v. McO'Blenis, xxiv. 402. It 3 tt (( 858, § 3 tt it tt (t 13 (( 859, § 13... tt tt tt a 20 (t 860, § 20... 4t tt tt u 25 il 861, § 26... " V. Randolph, xxii. 464. u 34 11 862, § 35... V. " xxvi. 213. li 35 tt " § 36 . . . V. Zwifle, xxii. 467. Article III. Sec. 1 R. S. 1845, 863, § 1 .The State v. Baker, xx. 338. ti 2 u tt " § 2.... " V. Bleekley, xviii. 428. " 3 " tt " §3.... tt y tt tt t( 6 u t( 864, S 6 " V. Baker, xx. 338. t( 7 (( 1835, ^ A, ^^ vj . , . . 479, § 7.... .Spratt V. The State, viii. 247. " 7 " 1845, 864, § 7.... .The State v. Baker, xx. 338. 11 13 " tt 865, § 13... " V. Barnes, xx. 413. ii 15 (( tt " §15... .Tindle v. Nicholls, xx. 326. a 15 ti tt U U -The State v. Baker, xx. 338. ti 15 16 .Bean v. Tjinlc xxvii 2fil 11 R.' S. 1845, 865, § 16... .The State v. Baker, xx. 338. u 16 .Bean v. Link, xxvii. 261. ti 17 R. 8 1835, 480, § 17... .Spratt V. The State, viii. 247. U 17 ii u £1 U .The State v. Brewer, viii. 373. (I 17 li 1845, 865, § 17... " V. Corson, xii. 404. 11 17 il tt tt tt .Tindle v. Nicholls, xx. 326. " 17 il ii li li .The State v. Baker, xx. 338. t( 17 .Bean v. Link, xxvii. 261. 11 19 r! s 1835, 481, § 19... . Spratt V. The State, viii. 24.7. tt 19 tt " " " .McDonald v. " viii. 283. " 19 " 1845, 866, § 19 .. . The State v. Mertens, xiv. 94. ti 19 t( It tt (t V. Baker, xx. 338. t( 19 (t tt (t t. " V. Burgess, xxiv. 381. **■ 20 tt " " §20... " V. Mertens, xiv. 94. (I 20 20 tt *' tt tt " V. Baker, xx. 338. u 21 r! s. 1845, 866, § 21... • V.J. ICClUlXlJ, A.A.J. 4UJ.* " V. Mertens, xiv. 94. u 21 tt tt tt tt .The State v. Baker, xx. 338. it 21 ** V Froeman \xi" 481 ii 22 R. S. 1835, 481, § 22... " V. McCourtney, vi. 649. ii 22 ti (t tt tt V. Hurt, vii. 321. il 22 (t '' tt tt • Williams V. The State, ix. 268. It 22 " tt il li .The State v. Mole, ix. 685. il 22 tt 1845, 866, § 22... " V. Roberts, xi. 510. ii 22 tt t( tt tt v. Bowling, xiv. 508. '* 22 tt " tt tt " V. Joiner, xix. 224. ii 22 tt tt tt tt " V. Bean, xxi. 267. ti 22 k( tt "... V. Allen, xxii. 318. " 22 tt tt tt tt " V. Dickerson, xxiv. 365. " 23 tt tt " §23... " V. Bowling, xiv. 508. a 24 il 1835, 481, § 24... " v. McCourtney, vi. 649. Article IY. Sec . 1 R. S. 1845, 867, § 1 .The State v. Corson, xii. 404. u 2 u tt " §2.... tt tt tt u 3 I' tt " § 3 t( tt tt 764 LIST OF STATUTES.— PRACTICE IN CRIMINAL CASES. Article IV. Sec. 4 R. S. 1845, 867, § 4 Austin v. The State, xii. 393. " 4 " " " §4. Fanning V. " xiv. 386. " 6 " " 868, § 6 Steerraanv. " x. 503. "20 " " 869, § 15 The State V. McO'Blenis, xxi. 272. "23 " V. Porter, xxvi. 201. "27 " V. Stnmbo, xxvi. 306. "27 " V. Dalton, xxvii. 13. " 32 R. S. 1845, 870, § 18 " v. Hays, xxiv. 358. "33 " 1825, 314, § 5 Todd v. The State, i. 566. "33 " " " " The State V. McGnnnegle, iii. 402. " 33 '' 1845, 870, § 19 Martin v. The State, xii. 471. "33 " " " " The State V. Ramsey, 23, 327. " 34 " " " § 20 Martin v. The State, xii. 471. "34 " " " " The State V. Ramsey, xxiii. 327. " 85 " " " § 21 Martin v. The State, xii. 471. " 35 " " " " The State v. Ramsey, xxiii. 327. " 37 " " " § 23 " V. Corson, xii. 404. Aeticle V. S0C. 2 R. S. 1835, 485, § 1 Lisle v. The State, vi. 426. " 5 " 1845, 872, § 5 Maeder v. The State, xi. 363. " 5. " " " " The State V. Weber, xxii. 321, " 5 " V. Andrews, ^xvii. 367. "15 " V. Worrell, XXV. 205. " 16 R. S. 1845, 873, § 16 Reed v. The State, xi. 379. "16 The State v. Worrell, xxv. 205. " 17 R. S. 1845, 874, § 17 Golden v. The State, xiii. 417. "17 The State v. Worrell, xxv. 205. li I O " I' " II J g •' « " " 20 R. S. 1835, 487, § 17 Freleigh v. The State, viii. 606. "20 Acts 1842-3, 33, §31... " " " " 20 R. S. 1845, 874, § 20 Reed v. The State, xi. 379. "20 " " " " The State V. Floyd, XV. 349. "20 " V. Worrell, xxv. 205. « 21 " v. " " "22 " V. " " "23 " V. " " " 24 R. S. 1845, 875, § 24 Reed v. The State, xi. 379. "24 The State v. Worrell, xxv. 205. "25 " V " " " 28 R. S. 1845, 875, § 28 " v Gates, xx. 400. "29 " " 876, §29... Golden V. The State, xiii. 417. « 30 " " " § 30 " " " " 31 R. S. 1835, 488, § 26 Ruby v. The State, vii. 206. "31 The State v. Worrell, xxv. 205. " 32 li. S. 1845, 876, § 32 Day v. The State, xiii. 422. "32 The State v. Worrell, xxv. 206. " 33 R. S. 1835, 488, § 28 Ruby v. The State, vii. 206. Article VI. Sec. 1 R. S, 1845, 878, § 1 Neales v. The State, x. 498. " 1 " " " " The State V. Weber, xxii. 321. " 1 " V. Moody, xxiv. 560. II 2 " " " LIST OF STATUTES.— PRACTICE IN CRIMINAL CASES. 765 Article VI. Sec. 3 R. S. 1845, 8l8, § 2 Neales v. The State, x. 498. " 3 The State v. Buckner, xxv. 167. " 4 R. S. 1845, 878, § 3 " v. Hays, xxiii. 287. " 4 " V. Buckner, xxv. 167. " 5 " V. Phillips, xxiv. 475. " 6 R. S. 1835, 343, § 13 Mallison v. The State, vi. 399. " 6 " 1845, 879, § 4 The State v. Hays, xxiii. 287. " 6 " V. Buckner, xxv. 167. " 7 " V. Phillips, xxiv. 475. " 7 " V. Buckner, xxv. 167, " 14 R. S. 1835, 490, § 11 Lisle v. The State, vi. 426. "14 " 1845, 880, § 12 Baldwin v. " xii. 223. '' 16 The State v. Buckner, xxv. 167. " 17 R. S. 1835, 490, § 14 McLean v. The State, viii. 153. "23 " " 491, § 20 McDonald V. " viii. 283. "26 " 1845, 881, § 23 Fitzgerald v. " xiv. 4]3. "26 " " " " The Svate V. McO'Blenis,xxi. 272. "27 " 1835, 491, § 23 Vaughn v. The State, iv. 290. "28 " 1845, 881, § 25 Robinson v. " xii. 592. "28 " " " " Fanning V. " xiv. 386. "28 " " " " Conner V. " .\iv. 561. "28 " " " " The State V. Huting, xxi. 464. " 29 " 1845, 882, § 26 " " " 30 " " " § 27. . . . " " " " 31 Acts 1838-9, 27 § 1 MalHson v. The State, vi. 399. " 31 R. S. 1845, 882, § 28 The State v. Dunn, xviii. 419. " 31 " " " " " V. Anderson, xix. 241. " 31 " " " " " V. Upton, XX. 397. Article VII. Sec. 1 R. S. 1835, 493, § 1 MoGee v. The State, viii. 495. " 1 " 1845, 883, § 1 The State v. Upton, xx. 397. " 5 " 1836, 493, § 4 Fooxe v. The State, vii. 502. " 5 " 1845, 883, § 4 Carrico v. " xi. 579. " 5 .The State v. Warne, xxvii. 418. " 6 R. S. 1845, 883, § 5 " v. McQuaig, xxii. 319. "25 " V. Shehane, xxv. 565. "26 "31 R. S. 1845, 887, § 30 . . .McKnight v. Spain, xiii. 534. " 32 " " " § 31 " " " Article VIII. Sec. 1 R. S. 1845, 888, § 1 The State v. Ruthven, xix. 382. u o " " '^ 6 2 *' " " "14 " " 889, § 10 " V. Ro we, xxii. 328. " 20 " 1835, 499, § 11 Hamuel v. The State, v. 260. Article IX. Sec. 1 R. S. 1845, 891, § 1. 1845, 892, § 2. 3 " " " § 3. 4 " " " § 4.. 16 " 1835, 501, § 14. 16 " 1845, 893, § 14. 16 '* " ." " Halsted v. Brice, xiii. 171. Carpenter v. The State, viii. 291. The State v. Zwifle, xxii. 467. " v. Randolph, xxii. 474. 766 LIST OF STATUTES.— PRACTICE IN CIVIL CASES. Article IX. Sec. 26 R. S. 1825,323, § 41. u 27 " " " " .The State v. English, ii. 182. PRACTICE IN CIYIL CASES. Article I. Sec. Article Sec. R. S. 1825, 620, § 1 Bailey v. Ormsby, iii. 580. " " " " Wilson V. Turner, iv. 2'70. " 1835, 449, § 1 Casey v. Barcroft, v. 128. " " " " Warne v. Hill, vii. 40. " 1845, 55, § 1, 2 McCune v. Hull, xx. 596. Acts 1848-9, 73, § 1 McLaugMn v. McLaughlin, xvi. 242. " " " " Rogers V. Penniston, xvi. 432. " " " Smith V. Dean, xix, 63. '' " " " Walther v. Warner, xxvi. 143. II. 6 R. S. 1835,. 449, § 1 Casey v. Barcroft, v. 128. Acts 1848-9, 75, § 1 Webb v. Morgan, xiv. 428. " " " " Williams V. Whitlock, xiv. 552. " " " " Harney v. Butcher, xv. 89. " " Smith V. Kennett, xviii. 154. " " " " " V. Dean, xix. 63. " " " " Long V. Constant, xix. 320. " " " " Van Doren v. Relfe, xx. 455. " " " Waterman V. Frank, xxi. 108. " " " Cablev.St. L. M. R.&DockCo.xxi. 133. " " " " Thornton v. Crowther, xxiv. 164. " " " " Peters v. St. L. & 1. M. R. R. Co., xxiv.586. " " " § 2, 3... Webb V. Morgan, xiv. 428. " " " §2 Harney v. Dutcher, xv. 89. " " " " Van Doren V. Relfe, XX. 455. " " " " Meier v. Lester, xxi. 112. Acts 1848-9, 76, § 6 . . .Holland v. Hunton, xv. 475. " " " " Lyon V. Page, xxi. 104. R. S. 1835, 459, § 18 Griffin v. Samuel, vi. 50. " " " " Brown V. Pearson, viii. 159. Acts 1848-9, 76, § 8 Holland v. Hunton, xv. 475. " " " " Page v. Snow, xviii. 126. Article HI. Sec. 6 Gey. Dig. 241, § 1 Barton v. Vanzant, i. 190. " 6 1 Ter. L. '843, § 5 Montgomery v. Tipton, i. 446. " 7 R. S. 1845, 807, § 7 Temple v. Price, xxiv. 288. " 8 Smith V. Davis, xxvii. 298. " 9 ti a II "JO U (( (C LIST OF STATUTES.— PRACTICE IN CIVIL CASES. 161 Article IV. Sec. 1 R. S. 1835, 451, § 4 Hembree v. Campbell, viii. 572. " 1 Delinger v. Higgins, xxvi. 180. " 3 R. S. 1845, 836, § 2 Miller v. Thurmond, xx. 411. " 3 Acts 1848-9, 76, § 1 " ." " Akticle V. Sec. 1 R. S. 1845, 804, § 1 Lackey v. Seibert, xxiii. 85. " 5 " 1835, 457, § 1 Whiting v. Budd, v. 443. » 5 " " 449, § 4 Donaldson v. Anderson, v. 480. " 6 " " 451, § 8 Payne V. Collier, vi. 321. " 7 Gey. Dig. 245, § 10 Hanly v. Holmes, i. 84. "71 Ter. L. 114, § 22 Hickman v. Barnes, i. 156. " 7 R. S. 1825, 623, § 5 Blanton v. Jamison, iii. 52. " 7 " " " " Dobbins V. Thompson, iv. 118. " 7 Acts 1848-9, 78, § 4 Waddingham v. City St. Louis, xiv. 190. "7 " " " " Ellington v. Moore, xra. 424. "7 " " " " Wade v. Jones, xx. 75. " 7 Smith V. Rollins, xxv. 408. " 7 Delinger v. Higgins, xxvi. 180. " 8 Acts 1848-9, 78, § 4 Hadwen v. Home Mu. Ins. Co., xiii. 473. " 11 R. S. 1825, 623, § 5 Blanton v. Jamison, iii. 52. " 13 Acts 1848-9, 78, § 11, 12.Gates v. Clavadetscher, xix. 125. "22 " " 101,Art.XXIX.Millerv. McKenna,xviii. 253. (t 23 '* '' '* ^^ " '' " u oA it u a (I u u a U 25 ^f- it it it a ti (i " 26 R. S. 1825, 630, § 34 Tiffin v. Millington, iii. 418. " 26 " 1845, 806, § 13 Miller v. McKenna, xviii. 258. "26 Actsl848-9, 101, Art. XXIX" tfc 27 '' '* '' " '' *^ '* Acts 1848-9, 77, § 2, 6. .Holland v. Hunton, xv. 475. Article VI. Sec. 2 Acts 1848-9, 82, § 12 Barada v. Inhab. of Carondelet, xvi. 323. " 2 " " " " Childs V. Bank of Missouri, xvii. 213. " 2 " " " " Rice V. Morton, xix. 263. " 2 " " " " Mooney V. Kennett, xix. 551. " 2 " " " " Robinson V. Rice, XX. 229. " 2 Doan v. Holly, xxv. 357. " 2 Stalcup V. Garner, xxvi. 72. " 3 Gey. Dig. 248, § 18 Hanly v. Holmes, i. 84. " 3 " " " Carr V. Edwards, i. 137. " 3 Acts 1848-9, 79, § 1 Biddle v. Boyce, xiii. 532. " 3 " " " " See V. Cox, xvi. 166. " 3 " " " " Childs V. Bank of Missouri, xvii. 213. " 3 " " " " Link V. Vaughn, xvii. 685. " 3 " " " " Page V. Snow, xviii. 126. " 3 " " " " Duncan V. Duncan, xix. 368. " 3 " " " " Page V. Freeman, xix. 421. " 3 " " " " Despain V. Carter, xxi. 331. "4 " " 80, § 2 Beach v. Curie, xv. 105. " 4 " " " " Holland v. Hunton, XV. 475. "4 " " " " North V. Nelson, xxi. 360. " 4 Kinney v. Miller, xxv. 576. Article VI. Sec. 5 E U 5 t( 5 (( 5 U 5 ^ (1 5 t( 5 768 LIST OF STATUTES.— PRACTICE IN CIVIL CASES. R. S. 1825, 625, § 15 . ; . .Currin v. Ross, ii. 213. 1835, 458, § 8 Whiting v. Budd, v. 443. " 449, § 4 Donaldson v. Anderson, v. 480. " 458^ § 8 Wash v. Randolph, ix. 141. Acts 1848-9, 80, § 2 Beach v. Curie, xv. 105. " " Holland V. Hunton, XV. 475. " " .' North V. Nelson, xxi. 360. " 6 Btalcup V. Garner, xxvi. 72. " 6 Delinger v. Higgins, xxvi. 180. " 6 Burns v. Patrick, xxvii. 434. " 8 R. S. 1835, 459, § 16 Marshall v. Bouldin, viii. 244. " 10 Delinger v. Higgins, xxvi. 180. " 12 R. S. 1835, 509, § 7 Perpetual Ins. Co. v. Cohen, ix. 416. " 12 " 1845, 833, § 25 Emerson v. Sturgeon, xviii. 170. " 12 Acts 1848-9, 80, § 7 Rice v. Morton, xix. 263. "12 " " " " Wales V. Chatnblin, xix. 500. "12 " " " " Joy V. Cooley, xix. 645. "12 " " " " Edgell V. Sigerson, XX. 494. "12 " " " " North V. Nelson, xxi. 360. "12 " « " " Gunn V. Head, xxi. 432. " 12 Kinney V. Miller, XXV. 576. "13 Acts 1848-9, 82, § 12 Johnson v. Jones, xvi. 494. " 13 « " 80, § 8 North v. Nelson, xxi. 360. "13 Kinney v. Miller, xxv. 576. " 14 Acts 1838-9, 99, § 1 Austin v. Feland, viii. 309. " 15 R. S. 1835, 458, § 9 Magehan v. Orme, vii. 4. " 15 Acts 1848-9, 80, § 9 Beach v. Curie, xv. 105. "15 " ■' " •' Arnold V. Palmer, xxiii. 411. "17 Kinney v. Miller, xxv. 576. "19 ■ , " it (t " 20 Acts 1842-3, 105, § 8 Barret v. Browning, viii. 689. "20 " " " " Dorsey V. Hardesty, ix. 157. "20 " 1848-9, 81, § 2 Smith v. Benton, xv. 371. "20 " " " " Stewart V. Anderson, xviii. 82. "20 " <• " " Bergesch V. Keevil, xix. 127. "20 " " " " Huntington V. House, xxii. 365. "20 Doan v. Holly, xxvi. 186. " 24 R. S. 1845, 802, § 7 Watson v. Walsh, x. 454. " 24 Acts 1848-9, 88, § 2 Robinson v. Lawson, xxvi. 69. » 26 " 1838-9, 99, § 4 Southack v. Morris, vi. 351. "26 " " " " North V. Nelson, xxi. .360. " 26 " 1846-7, 108, § 1... " « " " 26 " 1848-9, 78, § 6 " " " "28 Cashman v. Anderson, xxvi. 67. " 36 R. S. 1835, 458, § 12 Kizer v. Wilkes, v. 519. "38 " « " §6 Harvey v. Renfro, vii. 187. "40 , Hallowell v. Page, xxv. 590. *^ ^1 . , , , " " " *i ^2 ** " " " 43 Acts 1838-9, 99, § 1 Campbell v. Hood, vi. 211. "43 " " " " Finney V. Allen, vii. 416. "44 Lawrence v. Shreve, xxvi. 492, " 48 Acts 1848-9, 82, § 12 Butcher v. Death, xv. 271. "49 " " 81, §5 Bersch V. Dittrick, ix. 129^ LIST OF STATUTES.— PRACTICE IN CIVIL CASES. 769 Aeticlb YI. Sec. 50 Acts 1848-9, 81, § 4 Budde v. Allen, xxi. 20. " 50 " " " " Johnson v. McHenry, xxvii. 264. "52 " " " § 8. . ...Mooney V. Kennett, xix. 551. "55 " " 82, § 10 Stieber V. Wensel, xix. 513. " 59 2 Ter. L. 257, § 1 Harryman v. Robertson, iii. 449. " 59 " 319 Kearney v. Woodson, iv. 114. " 60 R, S. 1 835, 449, § 3 , . White v. Collier, v. 82. " 60 -Acts 1848-9, 82, § 13. ...Hadwen v. Home M. Ins. Co., xiii. 473. "60 " " " " Sexton V. Monks, xvi. 156. "60 " " " " Gitt V. Watson, xviii. 274. " 61 R. S. 1845, 843, § 38 Tesson v. Tesson, xi. 274. " 61 Acts 1848-9, 82, § 13 Hadwen v. Home M. Ins. Co., xiii. 473. " 62 Drake v. Jones, xxvii. 428. R. S. 1845, 811, § 17, 23.McCormick v. Kenyon, xiii. 121. Artictlb VII. Acts 1848-9, 83, § 1 Shaffer v. Faldwesch, xvi. 337. R. S. 1835, 527, § 5 Morrow v. Shepherd, ix. 213. " " 224, § 2 McDermott v. Doyle, xi. 443. " ". 628, § 8 Morrow v. Shepherd, ix. 213. " 1845,922, §8 Smith v. Winston, x. 299. " " " " Reed V. Wilson, xiii. 28. « " " " Maids V. Watson, xiii. 544. « " " " Collins V. Huff, xxvi. 149. " " " " Bergh off V. Heckwol^ xxvi. 511. " 1835,528, §9 Morrow v. Shepherd, ix. 213. " 1845, 922, § 9 Maids v. Watson, xiii. 544. " " " " . . . . .Berfifhoff v. Heckwolf, xxvi. 511. " '' " § 9, 10. . .Collins V. Huff, xxvi. 149. " " " §11,12.. " " " R. S. 1825, 659 Crocker v. Mann, iii. 472. " " " Skinner v. Stouse, iv. 93. " 1835, 528, § 7 Gibson v. Mozier, ix. 254. Acts 1848-9, 82,Art.VIII.Schroeder v. Clark, xviii. 184. " " " " Collins V. Hull, xxvi. 149. Abticle vni. Sec. 1 R. S. 1835, 313, § 2 The State v. Ferguson, xiii. 166. " 1 " 1845, 582, § 1 McDonald v. Cook, xi. 632. "1 " " " " Cooley v. Rankin, xi. 642. " 6 " " 579, § 5 Pettuss V. Elgin, xi. 411. " 10 " 1825, 440, § 4 Chouteau v. Douchouquette, i. 715. " 11 " 1845, 580, § 11 Kennedy v. Hammond, xvi. 341. " 13 " " " § 13 " " " "13 " " " " City of St. Louis v. Alexander, xxiii. 483. " 13 Acts 1848-9, 85, § 12 HomeMu. Ins. Co. v. Bauman, xiv. 74. "13 " " " " City of St. Louis V. Alexander, xxiii. 483. R. 8. 1845, 582 Connor v. Eddy, xxv. 72. Article IX. Sec. 1 Acts 1848-9, 87, § 1 Carson v. Ely, xxiii. 265. " 3 R. S. 1825, 62&, § 19 Hutchison v. Patrick, iii. 65. " 3 " 1835, 467, § 1 Kizer v. Wilkes, v. 19. " 3 " " " " Rigginv. Collier, vi. 568. "3 " " " " Warne v. Anderson, vii. 46. 53 Sec 1 it 3 « 3 li 11 " 11 u 11 u 11 it 11 it 11 it 12 it 12 tt 12 11 12 it 14 ARTICtB IX Sec 3 il 8 ii 3 U 3 U 3 1 H 3 li 3 tt 3 u 3 770 LIST OF STATUTES.— PRACTICE IN CIVIL GASES. R. S. 1835, 467, § 1 Long v. Overton, vii. .567. " " " " St. Bt. Reveille V. Case, ix. 498. " 1845, 826, § 1 Chouteau v. Hewitt, x. 131. " " " " Cox V. Capron, X. 691. Acts 1848-9, 87, § 5 Cayce v. Ragsdale, xvii. 32. " " " Duncati v. Fisher, xviii. 403. " " " CuUum V. Cundiflf. XX. 522. " " " Middleton V. Frame xxi. 412. " " Flemm v. Whitmore, xxiii. 430. " 3 Cashman v. Anderson, xxvi. 67. " 3 . Snead v. Wegman, xxvii. 176. " 3 Martin v. Martin, xxvii. 227. " 4 R. S. 1845, 826, § 1 Chouteau v. Hewitt, x. 181. " 4 Acts 1848-9, 76, 10 Hayden v. Marmaduke, xix. 403. " 5 Gey. Dig., 251, § 25 Hanly v. Dewes, i. 16. "5 " " " " " V. Holmes, i. 84. " 5 " " 250, § 24, 25.. .Carrv. Edwards, i. 137. " 5 " " " §24,.' Barton V. Vanzant, i. 192. " 5 R. S. 1835, 458, § 14 Marshall v. Bouldin, viii. 244. " 6 Gey. Dig., 241, § 1 Hanly v. Dewes, i. 16. " 6 " " 261, § 53 " " " " 7 Acts 1848-9, 87, § 4 Flemni v. Whitmore, xxiii. 430. "11 R. S. 1845, 819, § 21 The State v. Frice, xv. 375. . " 15 " •' 826, § 2 Blumenthal V. Kurth, xxii. l73, " 17 " 1835, 468, § 5: See v. Bobst, ix. 28. " 19 " 1825, 128, § 9 Sweazy v. Nettles, ii. 6. " 19 " ' 1835, 468, § 7 Atwood v. Gillespie, iv. 423. "19 '' " " '" Helm v. Wilson, iv. 481. "19 " " " " Muldrow V. Bates, V. 214. "19 " " " " Snowden V. Camden, viii. 502. "19 " " " " Neidenberger V. Campbell, xi. 359. " 19 " 1845, 827, § 7 " " " " 20 " 1835, 4.69, § 8 Atwood v. Gillespie, iv. 423. "20 " " " " " .....Muldrow V.Bates, V. 214. " 22 Acts 1848-9, 103, § 6 Flemm v. Whitmore, xxiii. 430. "22 " " " " Coifman V. Harrison, xxiv. 524. "22 " " " " North Mo:R.R.Co. v. Lackland, XXV. 515. "23 " •' 81, § 5 See v. Cox, xvi. 166. Article X. Sec. 5 R. S. 1825, 628, § 28 Jones v. Talbot, iv. 279. "5 " 1835, 462, § 2 Milsap v. Wildman, v. 425. " 5 Acts 1840-1, 51, § 9 Tunstall v. Hamilton, viii. 500. " 5 " 1842-3, 57, §3..... " , " " 5 -. . Smith V. Davis, xxvii, 298. Sees. 11-16 Gey. Dig. 256, § 36 Bank of Missouri v. Anderson, i. 244. R. S. 1835, 463, § 15. . .Pratte v. Corl, ix. 162. " " " " .. .Sutton V. Clark, ix. 555. Acts 1848-9, 89, Arts XIV, XV. Cochran v. Britton, xiv. 446. " " " " " .Gobin V. Hudgins, XV. 400. " " " " " .Skinner V. Ellington, XV. 488. " " " " " .Brant v. Robinson, xvi. 129. " " " " " .Rucker v. Musick, xvi. 316. " " " « " .Giboney v. Bedford, xvii. 56. LIST OF STATUTES.— PRACTICE IN CIVIL CASES. Ill Akticle X. Sees. 11-16 Acts 1848-9, 89, Arts. XIV, XV.Clonse v. Maguire, xvii. 158. " " " " " " " .Walton V. Walton, xvii. .376. ' " " " " " " .Bates V. Bower, xvii. 550. ' " " " " " " .Carlisle V. Mulhern, xix. 56. ' " " " " " " . Hesse v. Mo. S. Mut. F. &. M. Ins. xxi. 93. "' " " " " " " .Loudon V. King, xxii. 236. " " " " " " " .Hays >'. Hays, xxvi. 123. '• " " " " " " .Ragan V. McCoy, xxvi. 166. " " " " " " " .Overton v. Webster, xxvi. 332. " " " " " " -Foster V. Rucker, xxvi. 494. " " Kiirlbaum v. Roepke, xxvii. 161. " 17-19 R. S. 1845, 845, Art. IV.Walton v. Walton, xvii. 376. " " Acts 1848-9, 91, Art. XVI.Shepard v. Bank of Missouri, xv. 143. " " " " .Walton V. Walton, xvii. 376. " " " " " " .JIaguire v. McCaffrey, "xxiv. 552. " " " " " " .Shore V. Coons, xxiv. 556. " " " " " " .Hays V. Hays, xxvi. 123. " " " " " " .Martin v. Hall, xxvi. 388. Sec. 20 Spalding v. Mayhall: xxvii. 377. " 20 R. S. 1845, 844, § 6 Cochran v. Moss, x. 416. u 2^ '' ^' '^ 8 7 '' '^ " " 24 " " " § 8 " " " "25 " " " § 9 " " " " 27 " 1835, 464, § 20 Consaul v. Lidell, vii. 250. "27 " " " •' Barada V. Inhab. of Carondelet, viii. 644. "27 " " " " Randolph %. Alsey, viii. 656. "27 " " " " Pomeroy v. Selmes, viii. 727. " 27 R. S. 1845, 820, § 25 Farrar v. Finney, xxi. 569. " 27 Acts 1848-9, 93, § 6 Fine v. Rogers, xv. 315. "27 " " " " Farrar V. Finney, xxi. 569. " 29 R. S. 1835, 464, § 20 Consaul v. Lidell, vii. 250. "32 " " " § 22 " " " " 33 " " " " . . " •' " " 36 Acts 1848-9, 98, § 3 Christy v. Horine, xxiv. 242. "41 " " 97, § 1 Loe V. Stern, xxii. 575. " 45 1 Ter. L. 115, § 27 Carroll v. Corn, i. 161. "45 " " " Rector v. Fornier, i. 204. "45 " " " Wahrendorf V. Whittaker, i. 205. "45 " " " .. Holmes V. All, i. 419. "45 " " " Hanly V. Reed, i. 487. "45 " " " Soulard v. Pratte, i. 571. " 45 R. S. 1825, 627, § 22 Kennerly v. Weed, i. 672. "45 " " " " Vincent V. Pitman, i. 712. "45 " " " " Foster V. Nowlin, iv. 18. "45 " 1835, 463, § 18 . .Dempsey v. Harrison, iv. 267. "45 " " " " ... .Warne V. Anderson, vii. 46. "45 " " " " Fields V. Hunter, viii. 128. "45 " " " " ... .Barada V. Inhab. of Carondelet, viii. 644. " 45 " 1845, 819, § 23 Pope v. Risley, xxiii. 185. "45 Hickman v. Kunkle, xxvii. 405. " 47 Acts 1838-9, 27, § 1, 2. : .Hogel v. Lindell, x. 483. " 48 R. S. 1845, 821, § 33 Hesse v. Mo. S. Mu. F. & M. Ins., xxi. 93. Abticlb XL Sec. 1 R. S. 1845, 824, § 18 Ramsey v. Bostic, xv. 215. " 1 " " 822, § 1 Carlisle V. Rawlings, xviii. 166. 772 LIST OF STATUTES.— PRACTICE IN CIVIL CASES. Article XL Sec. 1 Acts 1848-9, 76, § 9 Ferris v. Hunt, xviii. 480. " 2 R. S. 1645, 824, § 18 Ramsey v. Bostic, xv. 215;- " 2 Acts 1848-9, 76, § 9 Ferris v. Hunt, xviii. 480. " 2 " " " §11 Carlisle V. Rawlings, xviii. 166. ■ "31 Ter. L. 849, § 35 .Carson v. Walker, xvi. 68. " 3 R. S. 1835, 465, § 3 McI)ermott v. Doyle, xvii. 362. " 3 " 1845, 823, §4. Fine v. Gray, xix. 33. " 3 Acts 1848-9, 76, § 9 Ramsey v. Bostic, xv. 215. " 3 " " " " Fine V. Gray, xix. 33. " 5 1 Ter. L. 110, §11.. ... ..Draper V. Bryson, xviL 71. " 14 R. S. 1845, 824, § 18. . . .Ferris v. Hunt, xx. 464. "14 Acts 1848-9, 76, § 9 " " 19 R. S. 1845, 850, § 19.. . .Farrell v. Brennan, xxv. 88. "28 " " " §27 Hendrick v. McLane, xviii. 32. " 32 " " 824, § 16 Ferris v. Hunt, xviii. 480. " 34 " " 825, § 19 tTnterrein v. McLane, x. 343. Article XII. Sec. 2, Acts 1848-9, 91, § 1 Franciscus v. Bridges, xviii. 208. "41 Ter. L. 847, § 25 Cabanne v. Lavallee, i. 394. " 4 R. S. 1835, 460, § 31 Field v. Matson, viii. 686. "4 " " " " Evans V. Bowlin, ix. 402. " 4 " 1845, 814, § 36 Hyde v. Curling, x. 359. "51 Ter. L. 847, § 25 Cabanne v. Lavallee, i. 394. " 5 R. S. 1835,- 460, § 31 Field v. Matson, viii. 686. " 6 " " " §32 Baskcrville V. Childs, viii. 703. It h tl U it U ^ U (( u " 9 " " 461, §'34 Giielberth V. Watson, viii. 663. "9 " " " " Pratte v. Corl, ix. 162. " 9 " 1845, 815, § 41 Hyde v. Curling, x. 359. " 9 Acts 1848-9, 88, § 2 Darrab v. St. Bt. Ligbtfoot, xv. 187. " 9 " " " " Froust V. Bruton, XV. 619. " 10 Gey. Dig. 250, § 24 Dent v. Morrison, i. 130. " 10 R. S. 1835, 461, § 35 Guelbertb v. Watson, viii. 663. "10 " " "' " " Pratte, v. Corl, ix. 162. ' "10 " " " " Evans V. Bowlin, ix. 402. " 10 " 1845, 815, § 42 Hyde v. Curling, x. 359. "10 " " " " Doan V. Holly, xxvi. 186. " 10 Acts 1848-9, 88, § 2 Froust v. Bruton, xv. 619. "10 " " " " Loudon V. King, xxii. 336. " 11 " " 91, § 2 Nortb v. Nelson, xxi. 360. " 11 Doan V. Holly, xxvi. 186. " 12 Acts 1848-9, 92, § 3 Penseniieau v. Pensenneau, xxii. 27. "12 " " " " .....Tbornton V. Pigg, xxiv. 249. " 12 " " " " Lawrence V. Lawrence, xxiv. 269. "12 " " " " Waltber V. Warner, xxvi. 143. " 12 Ashby v. Winston, xxvi. 210. " 13 R. S. 1845, 851, § 1. Smitb v. Smitb, xx. 166. » 14 " " " S 2 " " " " 15 " " 862, § 3 " " " " jg " « " S 4 " " " "20 " " " §6 , ...Hendricks V. McLean, xviii. 32. Sees. 21-24 1 Ter. L. 118, § 37 Holmes v, Carr, i. 56. " 21-24 1 Ter. L. 685, § 14 Russell v.Geyer, ,iv. 384. " 21-24 Acts 1848-9, 96, Art. XXIL.Morgan v. Ricbardson, xvi. 409. ' LIST OF STATUTES.— PRACTICE IN CIYIL CASES. 773 Articlk xn. Sees. 21-24 Acts 1848-9, 96, Art. XXII. Hull v.-Dowdall, xx. 359. " 21-24 " " " " Gilman v. Hovey, xxvi. 280. Sec. 25 " " 95, Art. XX.White v. Walker, xxii. 433. ' u og (t u a ii u u u " 27 R. S. 1845, 852, § 8 . . .Hendricts v. McLean, xviii. 32. Aeticlb XIII. Sec. 1 Acts 1848-9, 87, § 3 Beck v. Fareira, xix. 30. " 1 " " " " Pensenneau V. Pensenneau, xxii. 17. " 3 " " " " Fine V. Rogers, XV. 315. " 4 R. S. 1825, 632, § 41 . . . .Hill v. Wilkins, iv. 86. " 4 " 1835, 470, § 2. . '. . . " V. Deaver, vii. 57. " 4 " " " " Humbert V. Eckert, vii. 259. " 4 " 1845, 830, § 3. . . . .O'Bryan v. O'Bryan, xiii. 16. "4 " " " " Ramsey v. Hamilton, xiv. 358. « 4 " " " '' Boyce V. Smith, xvi. 317. " 4 " " 844, § 9 O'Bryan V. O'Bryan, xiii. 16. " 6 Gey. Dig. 260, § 51 . . '. . . Chambers v. Astor, i. 327. " 6 R. S. 1835, 469, § 1 Williams v. St. Louis Cir. Court, v. 248. " 9 Gey. Dig. 261, § 54 Tanner v. Irwin, i. 65. "91 Ter. L. 608, § 2 ... " . " " " 9 " 718, § 5 Blunt V. Sheppard, i. 219. "9 " " " Graves v. Black, i. 221. " 9 " 853, § 51 Miller V. Richardson, i. 310. " 9 R. S. 1825, 632, § 43 Clinton v. Dugal, i. 761. " 9 " 1835, 470, § 7. . . . .Rankin v. Perry, v. 501. " 9 " 1845, 831, § 11 Harrison v. Rush, xv. 175. •' 9 N. Mo. R. R. Co. V. Lackland, xxv. 515. " 11 Gey. Dig. 261, § 54 Ober v. Pratt, i. 8. "11 Stavely v. Kunkle, xxvii. 422. "12 Gey. Dig. 261, § 54 Ober v. Pratt, i. 8. " 12 .Berghoff v. Heckwolf, xxvi. 511. " 19 R. S. 1825, 645, § 42 Bird v. Bolduc, i. 701. "19 " " " "... .Bean v. Valle, ii. 126. « 20 " " 620, § 4 Currin v. Ross, ii. 203. " 20 " 1835, 471, § 10. . . .Evans v. Bowlin, ix. 402. "20 Doan v. Holly, xxvii. 256. " 21 R. S. 1825, 620, § 4 Currin v. Ross, ii. 203. " 23 Acts 1838-9, 98 ^^Shoults v. Baker, vii. 350. " 24 R. S. 1845, 832, § M Wallace v. Boston, x. 660. "24 " " " § 19-21. Smith V. Busby, XV. 387. " 26 " " 831, § 8 Powell v. Gott, xiii. 458. " 28 " 1835, 462, § 10 Dempsey v. Harrison, iv. 267. "28 " " " " Smith V. Anthony, Y. 504. "28 " " " " . .-. .Atwood V. Reybum, V. 555. " 28 " " " " Fugate v. Carter, vi. 267. " 28 " 1845, 818, § 12 Benoist v. Darby, xii. 196. " 28 Acts 1848-9, 98, § 5. . . i .Christy v. Home, xxiv. 242. "28 Bond V. Worley, xxvi. 253. it 29 " " '' "30 " " " i( 01 U il Ii " 33 R. S. 1835, 463, § 14 Fugate v. Carter, vi. 267. " 34 Acts 1848-9, 99, § 9 Christy v. Home, xxiv. 242. "44 Foster v. Rucker, xxvi. 494. 114: LIST OF STATUTES.— QU.O WARRANTO. Article XIV. Sec. 1 1 Ter. L. 124, § 65 Collier v. Wheldon, i. 1. " V18, § 5 Blunt V. Sheppard, i. 219. " " " Graves v. Black, i. 221. R. S. 1825, 633, § 45 Clinton v. Dugal, i. 161. " " " ...^EDglisll V. Mnllapphy, i. '780. " " " The State V. Foster, ii. 210/ " 1835, 518, § 1 Martin v. Hays, v. 62. " " " " Howell V. Pitman, v. 246. " " '' " Gamble v. Hamilton, vii. 469. " 1845, 901, § 1 . Ivory v. Delore, xxvi. 505. 2 " 1825, 274, §11 Town v. Clerk, ii. 26. 2 Lacy v. Williams, xxvii. 280. 3 R. S. 1845, 901, § 3 Powell v. Gott, xiii. 4.08. 14 1 Ter. L. Y18, § 6 Byrne v. Harbison, i. 225 18 " 719, § 14 .Taylor v. McKnigbt, i. 120. 21 R. S. 1825, 645, § 42. ; . .Bean v. Valle, ii. 126. 21 2 Ter. L. 166 .. Richardson v. Harrison, iv. 232. 33 1 Ter. L. 122, § 56 Hanly v. Holmes, i. 84. .'53 '' 719, § 15 " 33 " " " Carr v. Edwards, i. 137. 33 R. S. 1825, 634, § 49 Hempstead v. Stone, ii. 65. 33 " 1835, 522, § 31 Swearingen v. Newman, iv. 456. 33 " " " " Hamuel v. The State, v. 260. 33 " " " " ....St. Bt. Thames V. Erskine, vii. 213. 33 " " " ". Fields V. Hunter, viii. 128. 33 " " " " Float. Dock Ins. Co. v.Soulard, viii. 665. 33 " « " " Wells V. Gaty, viii. 681. 33 " " " " Taylor V. Russell, viii. 701. 33 " " " " Young V. Kelly, ix. 50. 33 " " " " Clark V. St. Bt. Mound City, ii. 145. 33 '• 1845, 906, § 32 Livengood v. Shaw, x. 273. 33 Folden v. Hendrick, xxv. 411. 34 lots 1848-9, 94, § 17 Gobin v. Hudgins, xv. 400. 35 1 Ter. L. 855, § 58 McKnight v.> Wells, i. 13. 35 Dodd V. Winn, xxii. 501. 38 R. S. 1845, 906, § 36 Meier v. Campbell, xii. 603. 38 " " " " Wilburn V. Hall, xvii. 471. PUBLIC PRINTER. R. S. 1845, 907 The State v. Lusk, xviii. 333. QUO WARRANTO. Sec. 1 R. 1845, 912, § 1 The State v. Lingo, xxvi. 496. LIST OF STATUTES.— ROAD AND CANAL FUND. 115 RECORDS — PUBLIC. Sec. 2 R. S. 1845, 914, § 2 Linderman v. Edson, xxv. 105. " 3 Gey. Dig. 315, § 2 Governor v. MoNair, i. 302. " 6 " 316, § 5 " " " « ♦ » REVENUE. Article I. Sec. 2 R. S. 1845, 928, § 2 Wyman v. City of St. Louis, xvii. 335. " 2 " " " " Lockwoodv. " xxiv. 20. " 2 St. Louis Pub. Schools V. " xxvi. 468. 1 Ter. L. 387, § 14, 17. . .Riddick v. Governor, i. 147. Gey. Dig. 334 Newby v. Platte County, xxv. 258. Article II. Sec. 49 R. S. 1845, 934, § 34 Hamilton v. St. Louis Co. Court, xv. 3. Article III. Sec. 1 R. S. 1835, 536, § 1 Howard v. The State, viii. 361. " 1 " " " " Fulkerson V. The State, xiv. 49. " 1 " 1845, 937, § 1 Moss V. The State, x. 338. " 2 " 1835, 536, § 2 Fulkerson v. The State, xiv. 49. " 2 " 1845, 937, §2 Moss v. The State, x. 338. " 3 " 1835, 536, § 2 Fmkerson v. The State, xiv. 49. "4 " « "53 " " " "20 " " " §8 Howard V. The State, viii. 361. "21 " " "59 " " " R. S. 1835, 535, Art. IIL.The State v. Fulkerson, x. 681. " 1845, 936, " ..Price v. Johnson County, xv. 433. Article IV. Sec. 2 R. S. 1845, 946, § 2 Hamilton v. St. Louis Co. Court, xv. 3. R. S. 1845, 946, Art. IV.. Price v. Johnson County, xv. 433. Article V. Sec. 15 Acts 1848-9, 111, § 4. . .Donphoe v. Veal, xix. 331. "33 " 1840-1, 119, §12, 13. Heard V. Baber, viii. 142. " 33 Acts 1842-3, 106, § 3;-142, § 32. .Heard v. Baber, viii. 142. " 34 R. S. 1845, 958, § 18. . .Donohoe v. Veal, xix. 331. "34 Acts 1846-7 122, § 30... " " " "34 " " " " TheStatev. Richardson, xxi. 420. R. S. 1825, 663 Reeds v. Morton, ix. 868. 2 Ter. L. 128 Morton v. Reeds, vi. 64. " "195 Reeds v. Morton, ix. 868. Acts 1836-7, 132, § 4 Campbell v. Heard, viii. 519. Acts 1842-3, 137,§ 1,25,26,28,29. " " " Acts 1842-3, 137 Moss v. The State, x. 338. R. S. 1845, 947, Art. V. . .Ex parte Tate, ix. 660. • ■♦■ » ROAD AND CANAL FUND. Sec. 7 R. S. 1845, 957, § 7 Pettis County v. Kingsbury, xix. 479. " 10 " " 958, § 10 " " " u 11 (( ii i( 5 11 " ^* " R. S. 1835, 558 St. Charles County v. Powell, xxii. 625. Acts 1836-7, 108 " " " 116 LIST OF STATUTES.— SALINE LANDS, ROADS AND HIGHWAYS. Article I. '';' Sec. 1 , R. S. 1825, 695, § 1 Williams V. Nat. Br. Plk. R. Co., xxi. 580. " 1 " 1845, 961, § 1 Walker v. Likens, xxiv. 298. " 16 " " 963, § 13 " " " Sees, 18-22 Acts 1846-7, 125 Cooper County v. Geyer, xix. 257. " " " 1850-1, 275, §7-10. " " " Sec. 26 R. S. 1845, 964, § 20 Overbeck v. Galloway, x. 304. "26 " " " " Cooper County V. Geyer, xix. 257. "26 The State v. Youngs xxvii. 269. "30 R. S. 1 845, 964, § 23 Call'y Co. Ct. V. Inh. Rd. Prai'e Tp,, x. 679, "30 . .] Bruce v. Saline County, xxvi. 262. "31 R. S. 1 845, 964, § 24 ... . Call'y Co. Ct. v. Inh. Rd. Prai'e Tp., x. 679. " 31 Bruce v. Saline County, xxvi. 262. " 32 R. S. 1845, 965, § 25. , . .Call'yCo.Ct.v.Inh.Rd.Prai'eTp., x. 679. " 33 " " " § 26.... " " " "34 " " " § 27 ' " " " " 64 " " 967, § 44 Slover v. Muncy, xyii. 391. " 67 " " " § 45-47.. " " " " 69. " " 967, § 49.'.'. Austin V. Waddell, x. 705. " 78 " " 968, § 57 The State v. Tuley, xx. 422, " 80 " 1825, 692, § 10 Pearce v. Myers, iii. 31. " 80 " 1845, 969, § 59 GoUahar r. Gates, xx. 236. " 81 " " « § 60 " " " "83 " " " §62 The/State V, Levens, xxii. 469. R, S. 1845, 960, Art. I.... ," v. Matthews, xiv. 133. " " " " St. Francois County v. Marks, xiv. 439. " " " " Butler V. Barr, xviiL 357. Acts 1846-7, 125, 127 St. Francois County v. Marks, xiv. 539. " 1848-9, 606... ; The^State v. Matthews, xiv. 133. " 1850-1, 274 Walker v. Likens, xxiv. 298. " " 280, § 33. . .The State v. Field, xvii, 529. Article II. Sec, 17 1 Ter. L. 87, § 2 Newby v. Platte County, xxv. 258, " 17 " 324, § 3 " " " "17- R. S. 1845, 974, § 17 " " "21 Acts 1846-7, 125, § 1 " « " R. S. 1845, 971, Art.' II. . . Wilkerson V. Buchanan County, xii. 328. Acts 1846-7, 334 Platte Co. Court v. McFarland, xii. 166. SALARIES, Sec. 1 Acts 1850-1, 281 Hamilton v. St. Louis Co. Court, xv. 3, U g II 11 11 II. It 11 II -» * t SALINE LANDS. 1 Ter. L. 981, § 1 . . ;'. , , .Craig v. Barcroft, i. 656. R,S, 1825, 702, § 7 " . « . " LIST OF STATUTES.— SECTJRITIES. nil SALVAGE. Sec. 1 R. S. 1845, 984, § 1 Collard v. Eddy, xvii. 354. I ■♦•■< SCHOOL LAKDS. Sec. 1 2 Ter. L. 262, § 2, 3 Payne v. St. Louis County, viii. 473. " " 401, § 9 Hammond v. St. L, Pub. Sqjiools, viii. 65. " 1 R. S. 1835, 561, 6'71 Brown v. Crawford County, viii. 640. " 30 " 1845, 994, § 30 The State v. Roberts, xi. 510. " 30 " " " " " V. Myers, xi. 409. 1 Ter. L. 697, 1005 " v. Dent, xviii. 313. 2 Ter, L. 261 Maupin v. Packer, iii. 310. " " Casey V. Barcroft, v. 128. " " and 356 Nolley v. Callaway Co. Court, xi. 447. R. S. 1835, 561 Casey v. Barcroft, v. 128. " " " Nolley V. Callaway Co. Court, xi. 447, Acts 1838-9, 111 " ■•••-1 SCHOOLS. Article II. Sec. 17 Acts 1838-9, 118 § 11 . . .Marion County v. Moflfett, xv. 604. Article IV. Sec. 8 Acts 1852-3, 160, § 8 Sayre v. Tompkins, xxiii. 443. Article V. Sec. 4 Acts 1852-3, 161, § 4 Rogers v. Carver, xxi. 517. « 4 » ■ " " Allen V. Trustess School Dist., xxiii. 418. Article VII. Sec. 2 Atkison v. Amick, xxv. 404. " 7 Acts 1838-9, 147, § 15.. .Cole County v. Angney, xii. 132. Article VIII. Sec. 35 2 Ter. L. 399 Eberle v. St. Louis Pub. Schools, xi. 247. It 3g it It " " " " SECURITIES. Sec. 1 R. S. 1835, 574, § 1 Bolton v. Lundy, vi. 46. It -^ It ti ti ti Hughes V. Gordon, vii. 297. it X ti 1845,998, " Sappington v. Jefferies, XV. 628. it -^ It It « " Routon V. Lacy, xvii. 399. ti -y it ti it It Hickam V. Hollingsworth, xvii. 475. It J it It II " Perry V. Barret, xviii. 140. It -y it " " " Clark V. Barrett, xix. 39. 54 IIS LIST OF STATUTES.— SLAVES. See. 1 K S. 1845, 998, § 1 Lockridge v. Upton, xxiv. 184. " 1 " " " " Christy V. Home, xxiv. 242. " 1 " " " " Bank of Missouri V. Matson, xxvi. 243. « 1 Phillips V. Riley, xxvii. .386. " 2 R. S. 1845, 999, § 2 Hickam v. Hollingswonh, xvii. 475. "2 " " " " Bank of Missouri v. Matson, xxvi. 243. " 2 Phillips V. Riley, xxvii. 386. " 5 R. S. 1836, 5'74, § 4 Shelton v. Ford, vii. 209. " 8 Dodd V. Winn, xxvii. 501. " 9 R. S. 1845, 1000, § 9 Devinney,v. Lay, xix. 646. * ■ » • SET-OFF. Sec. 1 R. S. 1825, 738, § 1 Cowden v. Elliott, ii. 60. " 1 " 1835, 579, § 1 City of St. Louis v. Rogers, vii. 19. " 2 " " " §2 Woodward V. McGangh, viii. 161. " 2 " 1845, 1005, § 2 Morrow v. Bright, xx. 298. " 8 " " 1006, § 8 Primm V. Ransom, x. 444. "9 " " "59...." " " " 10 " " " § 10 " " " R. S. 1845, 1004 Finney v. Turner, x. 207. SHERIFF AN'D MARSHAL. Sec. 14 1 Ter. L. 256, § 3 Riddick v. Governor, i. 147. SLAVES. Article I. Sec. 7 R. S. 1845, 1014, § 7 Douglass v. Ritchie, xxiv. 177. "24 " " 1016, § 24... The State V. Soot, xix. 379. " 25 " " " § 25. . . " ■ " " " 30 " 1825, 747, § 2 Russell v. Taylor, iv. 560. " 31 " " 745, § 34 .... " " " "31 " 1835, 586, §36 Price v. Thornton, x. 135. "31 Acts 1840-1, 146 " " " " 31 R. S. 18'45, 1018, § 31 . . .Lee v. Sparr, xiv. 370. "31 " " " " ... Calvert V. St. Bt.Timoleon, XV. 695. " 31 " " " "... " V. Rider, xx. 146. "31 « " " " ...Withers V.St. Bt. El Paso, xxiv. 204. "32 " " " § 32. . .Calvert V. Rider, XX. 146. "33 " " " § 33... Markleyv. The State, X. 291. "33 " " " " ...Skinner V. Hughes, xiii. 440. "33 " " " " ...TheStatev. Swadley, XV. 515. " 33 " " " "... " V. Henke, xix. 225. "33 " " " " ...Douglass V. Ritchie, xxiv. 177. "33 The State v. Goode, xxiv. 361. "33 " V. Guyott, xxvi. 62. LIST OF STATUTES.— TRESPASS. 119 Article II. Sec. 1 R. S. 1835, 587, § 1 Robert v. Melugen, ix. 169. " 1 " 1845, 1019, § 1 Schropshire V. Loudon, xxiii. 393. " 5 " 1835, 587, § 5 Robert v. Melugen, ix. 169. " 6 " " 588, § 6 " " " R. S. 1845, 1019, Art. II. Durham v. Durham, xxvi. 507. Article III. Sec. 1 R. S. 1845, 1021, § 1 Dougherty v. Tracy, xi, 62. STRAYS. Sec. 1 R. S. 1825, 755, § 1 Harryman v. Titus, iii. 302. " 4 " " 756, § 2 " " " 4 " 1845, 1039, § 4 The State v. Williams, xix. 389. " 4 " " " " Parker V. Evans, xxiii. 67. " 5 Acts 1846-7, 133 The State v. Williams, xix. 389. "32 R. S. 1845, 1041, § 29... " " " R. S. 1835, 593 Crook v. Peebly, viii. 344. " 1845, 1037 Ray v. Davison, xxiv. 280. " " " Rice V. Underwood, xxvii. 551. TOWNS— INCORPORATION OF. Article I. Sec. 1 R. S. 1845, 1048, § 1 Kayser v. Trustees of Bremen, xvi. 88. " 14 Town of Potosi v. Casey, xxvii. 372. " 15 R. S. 1845, 1051, § 12 . . .Town of Louisiana v. Hardin, xi. 551. TOWN PLATS. Sec. 7 R. S. 1835, 599, § 3 Downing v. Ringer, vii. 585. " 7 " 1845, 10S6, § 5 Mason v. Pitt, xxi. 391. R. S. 1835, 599 City of Hannibal v. Draper, xv. 634. • « 1845, 1055 Carlin v. Paul, xi. 32. TRESPASS. Sec. R. S. 1825, 781, § 1 Montague v. Papin, i. 757. " " " " Papin V. Ruelle, ii. 28. " " " " Withington v. Young, iv. 564. " 1835, 612, § 1 Cooper v. Maupin, vi. 624. " 1845, 1068, § 1 Ellis v. Whitlock, x. 781. " " " " Ewing v. Leaton, xvii. 465. " " " " Herron v. Hornback, xxiv. 492. " " " " Walther v. Warner, xxvi. 143. 780 LIST OF STATUTES.— WILLS. Sec. 2 E. S. 1845, 1069, § 2 Ellis v. Whitlock, x. 781. " " . . " " V. Gott, xxv. 540. Nuckolls, II. estrchan v. Scudder, xi. 484. Duvall V. Ellis, xiii. 203. Haile v. Hill, xiii. 612. Warren v. Lusk, xvi. 102. Wilbnrn v. Hall, xvi. 426. McLain V. Winchester, xvii. 49. Harness v. Green, xx. 316. Randolph v. Kciler, xxi. 557. Clardy v. Richardson, xxiv. 295. Manning v. Hogan, xxvi. 570. 1796, May 18, (1 U. S. >^tat. 464.)— Sale Lands in N. W. Territoet, &c. Campbell v. Clark, viii. 553. Reed v. Conway, xx. 22, and xxvi. 13. 1800, April 4, (2 U. S. Stat. 19.)— Bankruptcy, (Repealed 2 U.S. Stat. 248.) Shelton v. Pease, x. 473. 1800, May 10, (2 U. S. Stat. 73.)— Sale or Lands in N. W. Territory, &c. Campbell v. Clark, viii. 553. 1804, March 26, (2 U. S. Stat. 277.) — Sale of Lands in Indian Territory. Campbell v. Clark, viii. 553. 1804, March 27, (2 U. S. Stat. 298.) Authentication op Records, &c. Paca V. Dulton, iv. 371. Rennick v. Chloe, vii. 197. Maria v. Atterberry, ix. 365. Bank of Missouri v. Mer. Bank of Baltimore, x. 123. Clardy v. Richardson, xxiv. 295. 790 ACTS OF CONGRESS. 180S, Feb. 11, (2 U. S. Stat. 313.) — Mod^^of Surveying Public Lands. Campbell v. Clark, vi. 219, and viii. 563. 1805, March 2, (2 IT. S. Stat. 324.) — ORLBAijfs and Louisiana Land Claims. Tapley v. Labeaume, i. -560. Newman v. Lawless, vi, 279. Bird V, Montgomery, vi, 610. Moss V. Anderson, vii. 337. Barry v. Gamble, viii. 88. Ronssin v. Parks, viii. 628. Trotter v. St. Louis Public Schools, ix. 68. Ott v, Soulard, ix. 673. Landes v. Perkins, xii. 238. Inhabitants of Carondelet v. Dent^ xviii. 284. Hogan v. Page, xxii. 55. Mercier v. Letcher, xxii. 66. Allen V. Moss, xxvii. 354. 1806, Feb. 28, (2 TJ. S. Stat. 362.) — Sukvbyob General of Louisiana Tee. Ott V. Soulard, ix. 573. The State v. Ham, xix. 592. Reed v. Conway, xxvi. 1 3. 1807, March 3, (2 U. S. Stat. 440.) — Orleans and Louisiana Land Claims. Barry v. Gamble, viii. 88. Macklot V. Dubreuil, ix. 473. Ott V. Sonlard, ix. 673. Boyce v. Papin, xi. 16. Landes v. Perkins, xii. 238. Burgess v. Gray, xv. 220. McCabe v. Worthingtcn, xvi. 514. Inhabitants of Carondelet v. Dent, xviii. 284. Soulard v. Clark, xix. 570. Maguire v. Vice, xx. 429. Hogan V. Page, xxii. 65. Berthold v. McDonald, xxiv. 126. Mitchell V. Parker, xxv. 31. Magwire v. Tyler, xxv. 484. Funkhouser v. Langkopf, xxvi. 463. Aubuchon v. Ames, xxvii. 89. 1811, Feb. 15, (2 U. S. Stat. 617.) — Orleans and Louisiana Land Claims. Ashley v. Turley, xiii. 430. Delauriere v. Emerson, xiv. 37. Waller v. Von Phul, xiv. 84. 1811, March 3, (2 U. S. Stat. 662.) — Orleans and Louisiana Land Claims. Hunter v. Hemphill, vi. 106, Hammond v. St. Louis Public Schools, viii. 65. Barry v. Gamble, viii. 88. Trotter v. St. Louis Public Schools, ix. 68. Allison V. Hunter, ix. 741. Page V. Scheibel, xi. 167. Kennctt v. Cole County Court, xiii. 139. McCabe V. Worthington, xvi. 614. Kissell V. St. Louis JPublic Schools, xvi. 553. The State v. Ham, xix. 592. ACTS OF CONGRESS. 791 1812, June 4, (2 U. S. Stat. '743.) — Organizing Missouei Tbrritobt. Sec. 4. — Riddick v. Amelln, i. 5. " 4, 8. — Douglass V. Bank of Missouri, i. 24. " 4. — Conner v. Bent, i. 235. Trotter v. St. Louis Public Schools, ix. 68. 1812, June 13, (2 TJ. S. Stat. 748.) — Missouri Land Claims. Clark V. Brazeau, i. 290. Vasseur v. Benton, i. 296. Lajoye v. Primm, iii. 529. Janis V. Gurno, iv. 458. Waddingham v. Gamble, iv. 465. Chouteau v. Russell, iv. 553. Wear v. Bryant, v. 147. Lawless v. Newman, v. 236. Newman v. Lawless, vi. 279. Gurno v. Janis, vi. 330. Cerre v. Hook, vi. 474. City of St. Louis v. Morton, vi. 476. Bird V. Montgomery, vi. 510. Mackay v. Dillon, vii. 7. Ashley v. Cramer, vii. 98. Moss V. Anderson, vii. 337. Sarpy v. Papin, vii. 503. Hammond v. St. Louis Public Schools, viii. 65. Barry v. Gamble, viii. 88. Roussin V. Parks, viii. 528. Dent V. Bingham, viii. 579. Trotter v. St. Louis Public Schools, ix. 68. Biehler v. Coonce, ix. 343. Macklot V. Dubreuil, ix. 473. Ott V. Soulard, ix. 573. Montgomery v. Landusky, ix. 705. Allison V. Hunter, ix. 741. Mitchell V. Tucker, x. 260. Boyce v. Papin, xi. 16. Page V. Scheibel, xi. 167. Eberle v. St. Louis Public Schools, xi. 247. Perry v. O'flanlon, xi. 585. Swartz V. Page, xiii. 603. McGill V. Somers, xv. 80. Harrison v. Page, xvi. 182. Kissell V. St. Louis Public Schools, xvi. 553 Gamaehe v. Piquignot, xvii. 310. Reilly v. Chouquette, xviii. 220. Inhabitants of Carondelet v. Dent, xviii. 284. Byron v. Sarpy, xviii. 455. Soulard v. Allen, xviii. 590. Clark, xix. 570. The State v. Ham, xix. 592. Joyal V. Rippey, xix. 660. Barada v. Blumenthal, xx. 163. City of Carondelet v. McPherson, xx. 192. City of St. Louis v. Toney, xxi. 243. Woodson V. Skinner, xxii. 13. Sigerson v. Hornsby, xxiii. 268. 792 ACTS OF CONGRESS. Papin V. Hines, xxiii. 2-74. Milburn v. Hortiz, xxiii. 532., Tayon v. Hardman^ xxiii. 639. Fine v. St. Louis Public Schools, xxiii. 570. Vasquez v. Ewing, xxiv. 31. Schultz V. Lindell, xxiv. 567. City of Carondelet v. City of St. Louis, xxv. 448. Funkhouser v. Langkopf, xxvi. 453. Clark V. Hammerle, xxvii. 55. Primm v. Haren, xxvii. 205. Allen V. Moss, xxvii. 354. 1813, March 3, (2 U. S. Stat. 812.)— Missouri Land Claims. Vasseur v. Benton, i. 296. Roussin v. Parks, viii. 528. 1813, August 2, (3 U. S, Stat. 86.) — Missouri Land Claims. Vasseur v. Benton, i. 296. George v. Murphy, i. 777. Ashley V. Cramer, vii. 98. 1814, April 12, (3 U. S. Stat. 121.) — Louisiana and Missouri Land Claims. Vasseur v. Benton, i. 296. Newman v. Lawless, vi. 279. Ely V. Ellington, vii. 302. Hammoud v. St. Louis Public Schools, viii. 65. Pettigrew V. Shirley, ix. 675. Richardson v. Robinson, ix. 801. Papin V. Hines, xxiji. 274. 1816, February 17, (3 U. S. Stat. 211.)— New Madrid Act. Stewart v. Rector, i. 361. Wear v. Bryan , v. 147. Barry v. Gamble, viii. 88. Trotter v. St. Louis Public Schools, ix. 68. Allison v. Hunter, i.\. 741. Kirk V. Green, x. 252. Mitchell V. Tucker, x. 260. Joeckel v. Easton, xi. 118. Page V. Hill, xi. 149. Page V. Scheibol, xi. 167. Lessieur v. Price, xii. 14. Cabunne v. Lindell, xii. 184. Kennett v. Cole County Court, xiii. 139. Delauriere v. Emmerson, xiv. 37. Mitchell v. Parker, xxv. 31. Gray v. Givens, xxvi. 291. 1816, April 29, (3 U. S. Stat. 325,) — Survbyob of Lands in III. and Missouri. McGill V. Somers, xv. 80. Soulard v. Allen, xviii. 590. Reed v. Conway, xx. 22 — rxxvi. 13. 1816j April 29, (3 U. S. Stat. 328,) — Louisiana and Missouri Land Claims. Newman v. Lawless, vi. 279. Moss V. Anderson, vii. 337. Hammond v. St. Louis Public Schools, viii. 65. Roussin V. Parks, viiL 528. ACTS OF CONGRESS. ^93 Dent V. Bingham, viii. 579. Ott V. Soulard, ix. 573. Allison V. Hunter, iz. 741. Boyce v. Papin, xi. 16. Page V. Scheibel, xi. 167. McGill V. Somers, xv. 80. Harrison v. Page, xvi. 182. Kissell V. St. Louis Pub. Schools, xvi. 553. Soulard v. Clark, xix. 570. The State v. Ham, xix. 592. Hogan V. Page, xxii. 55. Menkens v. Ovenhouse, xxii. 70. Clark y. Hammerle, xxvii. 55. Aubuchon v. Ames, xxvii. 89. 1818, Feb. 17, (3 U. S. Stat. 406.) — Land Offices in Missouri — Barry v. Gamble, viii. 88. McCabe v. Worthington, xvi. 514. The State v. Dent, xviii. 313. 1819, March 3, (3 TJ. S. Stat. 517.) — Louisiana and Missouri Land Claims — Hammond v. St. Louis Pub. Schools, viii. 65. 1819, March 3, (3 U. S. Stat. 526.) — Correcting Entries of Land. Carman v. Johnson, xx. 108. 1820, March 6, (3 IJ, S. Stat., 545.) — Admission op the State of Missouri— Maupin v. Parker, iii. 310. Payne v. St. Louis, viii. 473. Lesseur v. Price, xii. 14. Butler V. Chariton County Court, xiii. 112. Kennett v. Cole County Court, xiii. 139. Delauriere v. Emmerson, xiv. 37. Sylvia v. Kirby, xvii. 434. The State v. Dent, xviii. 313. " V. Ham, xix. 592. Gray v. Givens, xxvi. 291. 1820, May 15, (3 U. S. Stat. 592.) — Better Organization of Treasury — Dean v. Davis, xii. 112. 1822, April 26, (3 U. S. Stat. 668.) — Perfecting Locations of Land in Mo. Barry v. Gamble, viii. 88. Cabunne v. Lindell, xii. 184. 1823, March 3, (3 TJ. S. Stat. 787.) — Missouri School Lands. The State v. Dent, xviii. 313. 1824, May 24, (4 U. S. Stat. 31.) — Correcting Entries of Land. Morton v. Blankenship, v. 346. 1824,- May 26, (4 U. S. Stat. 52.) — Missouri and Arkansas Land Claims. Janis V. Gurno, iv. 458. Hunter v. Hemphill, vi. 106. Sarpy v. Papin, vii. 503. Papin V. Massey, xxvii. 445. 1824, May 26, (4 TJ. S. Stat. 65.) — Missouri Land Claims. Gurno v. Janis, vi. 330. Ashley v. Cramer, vii. 98. Hammond v. St. Louis Public Schools, viii, 65. Barry v. Gamble, viii. 88. Dent V. Bingham, viii. 579. 56 794 ACTS OF CONGRESS. Trotter v. St. Louis Public Schools, ix. 68. Biehler v. Coonoe, ix. 343. Mactlot V. Dubreuil, ix. 473. Montgomery v. Landusty, ix. 705. Allison V. Hunter, ix. 741. Evans v. Labaddie, x. 425. Boyce v. Papin, xi. 16. Page V. Scheibel, xi. 167. Eberle v. St. Louis Public Schools, xi, 247. Perry v. O'Hanlon, xi. 585. McGill V. Somers, xv. 80. McCabe v. Worthington, xvi. 514. Kissell V. St. Louis Public Schools, xvi 553. Gamache v. Piquignot, xvii. 310. Soulard v. Allen, xviii. 590. " V. Clark, xix. 570. Joyal V. Kippey, xix. 660. City of Carondelet v. McPherson, xx. 192. City of St. Louis v. Toney, xxi. 243. Fine v. St. Louis Public Schools, xxiii. 570. Vasquez v. Ewing, xxi v. 31. City of Carondelet v. City of St. Louis, xxv. 448. Funkhouser v. Langkopf, xxvi. 453. Clark V. Hammerle, xxvii. 55. Primm v. Haren, xxvii. 205. 1828, May 19, (4 U. S. Stat. 278.)— Peoobss in U. S. Courts— Sec. 3. — Evans v. Labaddie, x. 425. 1828, May 24, (4 U. S. Stat. 298.)— Missouei and Arkansas Land Claims- Hunter v. Hemphill, vi. 106. Barry v. Gamble, viii. 88. MoCabe v. Worthington, xvi. 514. The State v. Ham, xix. 592. 1830, May 29, (4 TJ. S. Stat. 420.) — Pbe-bmption Riohts — Pettigrew v. Shirley, ix. 675. Allison V. Hunter, ix. 741. O'Hanlon v. Perry, ix. 794. 1831, Jan. 27, (4 TJ. S. Stat. 435.) — Missouei Land Claims — Chouteau v. Russell, iv. 553. Hammond v. St. Louis Public Schools, viii. 66. Dent V. Bingham, viii. 579. Trotter v. St. Louis Public Schools, ix. 68. Boyce v. Papin, xi. 16. Eberle v. St. Louis Public Schools, xi. 247. Kissell v. " " xvi. 553. Inhabitants of Carondelet y. Dent, xviii. 284. < City of St. Louis v. Toney, xxi. 243. City of Carandelet v. City of St. Louis, xxv. 448. 1831, March 3, (4 U. S. Stat. 492.) — Subvkyob of Lands in Louisiana — Reed v. Conway, xxvi. 13. 1832, July 5, (4 U. S. Stat. 563.)— Virginia Claims— Evans v. King, xvi. 525. 1832, July 9, (4 U. S. Stat. 566.) — Missouri Land Claims*— Ashley v. Cramer, vii. 98. Allison v. Hunter, ix. 741 . Missing Page 706 ACTS OF CONGRESS. Bower v. Higbee, ix, 266. Paulding v. Grimsley, x. 210. McDaniel v. Orton, xii. 12. ' Keeton v. Audsley, xix. 362. 1840, July 4, (5 U. S. Stat. 393.)— Judicial- System. Chouteau v. Nuckolls, xx. 442. 1841, August 19, (5 U. S Stat. 440.)— Bankruptcy (Repealed 5 tj. S. Stat. 614.). The State v. Hamilton, ix. 784. Bank.of Missouri V. Franciscus, z. xxvii. • Shelton v. Pease, x. 473. Benoist v. Darby, xii. 196. Reed v. Vaughn, xv. 137. Rees V. Butler, xviii. 173. 1843, March 3, (5 TJ, S. Stat. 619.)— Peb-kmption Feauds. WeMs V. Moore, xvi. 478. 1845, March 3, (5 U. 8. Stat. 732.)— P. 0. I)epaetmbnt. Chouteau v. St. Bt. St. Anthony, xi. 226. 1850, Sept. 28, (9 U. S. Stat. 519.)— Swamp Lands. Dunklin County v. Dunklin County Court, xxviii. 449.- CATALOGUE OF LAW BOOKS, FOE SALE BY STEVEN^soisr & m:orris, ITo. 36 MAIir STKEET. ST. LOITIS. [I^ A liberal discount will be made to those purchasing large quantities. S^ Orders by Mail will receive prompt attention. B^ We are constantly receiving from the Ea«t all new Books, and will pay prompt attention to special orders for new or scarce books. ANGELL on Tide Waters. ALDEN'S Condensed Reports of Pennsylvar uia. 4 vols. 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