King v. Clark

• Decision Date: 30 September 1841
• Citation: King v. Clark, 7 Mo. 269 (Mo. 1841)
• Parties: KING v. CLARK, SURVIVING PARTNER OF CLARK & COOK.
• Court: Missouri Supreme Court

7 Mo. 269

KING

v.CLARK, SURVIVING PARTNER OF CLARK & COOK.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

J. B. KING, for Appellant.The court below erred in not granting the appellant a new trial for the reasons filed.The Circuit Court erred in overruling the appellant's motion in arrest of judgment, for the reasons filed.The court below erred in not giving a judgment of non-suit in this cause, when moved so to do by appellant's counsel.2 Starkie on Ev. 148.

DARBY, for Appellee.The law provides, Rev. Code, p. 450, that “suits at law may be instituted in courts of record,” except when the statute law of this State otherwise provides; either, 1st.By filing in the office of the clerk of the court a declaration setting forth the plaintiff's cause of action, and by the voluntary appearance of the adverse party thereto; or, 2nd.By filing such declaration in such office, and suing out thereon a writ of summons, &c.No precise form is required, as to the direction which should be given to the clerk.The mere filing of the declaration, and a verbal request to the clerk to issue a summons, is sufficient.

The objection that the answer of the platntiff, to the bill of discovery was insufficient, it will be seen by the court, was ample and full.2 Mo. R. 211, Alexander v. Hayden;3 Mo. R. 135, Martin v. Miller;Bell & Craig v. Scott, 3 Mo. R. 212; 3 Starkie, 1603.

NAPTON, J.

This was an action upon a bill of exchange drawn by G. W. Cook, upon the plaintiff in error, and accepted by the said plaintiff.The declaration describes the bill as being drawn by George A. Cook, under the name of G. A. Cook.The defendant pleaded non-assumpsit, and a special plea alleging a gaming consideration, upon which issues were taken.On the trial the plaintiff offered in evidence a bill of exchange drawn by G. W. Cook, in favor of Cook & Clark, and accepted by plaintiff in error.Thereupon the plaintiff in error moved for a non-suit, on the grounds of variance.The motion was overruled, exceptions duly taken, and the point brought up to this court.In Craig v. Brown, Peters' C. C. R. 139, it was alleged in the declaration that the bill of exchange sued on, was drawn by Elisha Brown, and the court held that a bill signed by Elijah Brown could not be given in evidence.So in Whitewell v. Bennet, 3 Bos. and Pull. 550, it was held that a bill signed by one Crouch, could not go in evidence under a count describing the bill as signed...