Volume 103 — Missouri Reports

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Upon the facts proved the appellant was entitled to a decree. It was sufficient to show that the defendant Furlong sold the property in question with the intention of defrauding plaintiff thereby, and that such intention was known to defendant MacDonald at the time he purchased. The payment or non-payment of a consideration was immaterial.

<p>1. Pleading, Criminal: indictment. It is essential to the validity of an indictment that it conclude with the words, “against the peace and dignity of the state.” ( Constitution, art. 6, sec. 38.)</p> <p>2. --:---. The concluding charge in an indictment for murder must be by the grand jurors upon their oaths. (Affirming State v. Meyers, 99 Mo. 107.)</p> <p>3. --:---. An indictment for murder, which formally alleges that one defendant shot and killed the deceased and continues : “And the grand jurors aforesaid, upon their oath aforesaid, do further present and charge ” that another defendant incited, moved, procured, etc., the first defendant to do the act, and concludes with the proper averments, charging both with murder, contains but one count, and is sufficient.</p> <p>4. ---:---: principal and accessory. All distinction between principals and accessories before the fact has been abolished by the criminal code (R. S. 1889, sec. 3944), and the latter may be indicted and convicted as principals. An indictment is not contradictory, which charges one of two defendants with shooting and killing the deceased, and the other with advising and inciting him to do it, and concludes by alleging that both killed and murdered him.</p> <p>5. ---:---: initials op name. The indictment of a defendant by the initials of his Christian name is sufficient.</p>

Francois Circuit Court. — Hon. J. D. Fox, Judge. (1) A contract requires the assent of two minds, and where one of the parties is incapable of understanding and of acting in the ordinary affairs of life, he cannot make a contract that will have efficacy as such. Dexter v. Hall, 15 Wall. 20, 24. The foregoing is the rule announced by the supreme court of the United States and in England, and is undoubtedly a just and reasonable one.

Mandamus. (1) The supreme court will grant the writ of mandamus under proper circumstances (Slate x. Register, 48 Mo. 56 ; State ex rel. x. Railroad, 77 Mo. 143), and hear and determine the same, although it would have appellate jurisdiction in the same cause. State v. Tracy, 94 Mo. 217; State v. Wealcs, 93 Mo. 499; State x. McGrath, 92 Mo. 355; State ex rel. x. Phillips, 97 Mo. 331; State x. Gregory, 83 Mo. 123.

— Hon. E. L. Edwards, Judge. The bill of exceptions in this cause contains neither the evidence nor instructions. No exceptions were saved during the progress of the trial, and on the record proper the judgment should be affirmed. State v. McDonald, 85 Mo. 539.

— Hon. D. A. . DeArmond, Judge. (1) The court erred in holding that the deed of trust of December 22, 1885, conveyed the south half of section 9. (2) The court erred in not giving instruction, numbered 1, as asked by defendant. Kane v. McCown, 55 Mo. 181; Herndon v. Hawkins, 65 Mo. 265; Boulddn v. Ewart, 63 Mo. 330; Hambright v. Brockman, 59 Mo. 52; Napton v. Hurt, 70 Mo. 497; Goff v. Roberts, 72 Mo. 570.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The case not having been prosecuted by the real party in interest, the bill should have been dismissed. R. S. 1889, sec. 1990; Hanson v. Jacob, 98 Mo. 331; Pomeroy on Rem. & Rem. Rights, sec. 128 ; Kill-more v. Culver, 24 Barb. 656.

Louis Circuit Court. — Hon. W. W. Edwards, Judge. The defendant, having been imprisoned from May 7, 1887, to May 10, 1887, under the judgment rendered against him on December 23, 1885, and having been on May 10, 1887, released and discharged therefrom by Judge Edwards on habeas corpus, could not be again arrested nor imprisoned by reason of the express provision and prohibition of section 2670, Revised Statutes, 1879.

— How. James D. Fox, Judge. (1) First. The burden was on plaintiff of bringing his case clearly within the provisions of the statute, and to make out a prima facie case of recovery. Reynolds v. Railroad, 85 Mo. 90; City v. Arnot, 94 Mo. 275. Second.

— Hon. J. TI. Slover, Judge. The instruction referred to in the opinion reads as follows: “1.

— Hon. J. H. Sl'over, Judge. (1) In an action on a contract like this, not required by law to be in writing, although it should be the understanding and agreement of the parties that the contract is to be reduced to writing, yet if the terms are fully agreed upon between the parties and they both go on and act under the agreement and treat it ás a valid existing contract, then it is immaterial whether said Contract has been reduced to writing or not, and the fact it has not…

— Hon. J. P. G-rubb, Judge. (1) The appellant is entitled to an unconditional judgment against the estate of Madison S. Parris. R. S. 1879, secs. 184,185 and 212 ; McLean v. McAllister, 30 Mo. App. 107. (2) Because appellant is not only a partnership creditor of the ñrm of M. S. Parris & Co. but is also an individual and separate creditor of Madison S. Parris, and is entitled to share pari passu with the other individual creditors of the estate.

— Hon. E. M. Hughes, Judge. (1) All evidence as to the alleged contract was incompetent. (2) Ten years’ consecutive adverse possession under claim of title gives the title to the occupant as effectually as any written conveyance. Allen v. Mansfield, 82 Mo. 688. (8) The defendant’s first instruction was improperly refused. The land to the defendant’s present fence was adversely held from 1865.

— Hon. C. H. S. ' Goodman, Judge. (1) The court did not err in striking out part of defendants’ answer. The first deed was a valid one. (2) The evidence shows a valid execution and delivery of the second deed. 1 Devlin on Deeds, sec. 262; 2 Greenleaf ’ s Ev., sec. 297; Huey v. Huey, 65 Mo. 689. ( 3) The lower court erred in disregarding the verdict of the jury and their answer to the interrogatories. Jones v. Bwayse, 42 N, J. Law, 279.

— Hon. C.' A. Anthony, Judge. The court erred in giving instruction, numbered 1, on behalf of the state. The crime charged against the defendant does not consist, of different degrees, and for that reason the provisions of sections 1654 and 1655, Revised Statutes of 1879, do not apply. R. S. 1879, sec. 3796State v. Gabriel, 88 Mo. 631-643; State v. Burk, 89 Mo. 635; 8late v. Johnson, 91 Mo. 439-444 ; State v. Lowe, 93 Mo. 547-574.

— Hon. D. P. Stratton, Judge. (1) The court erred in overruling the plaintiff’s application for a nonsuit made after the commissioner’s report had been set aside by consent. Green v. Railroad, 82 Mo. 657 ; Railroad v. Cutwater, 3 Sand. ( S. C.) 691; Provolt v. Railroad, 69 Mo. 640 ; Leisse v. Railroad, 72 Mo. 562 ; s. o., 2 Mo.

<p>Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge. /</p> <p>(1) The defendant’s instruction in the nature of a demurrer to the evidence should have been given. Jackson v. Railroad, 14 S. W. Rep. 54; Railroad v. Qowen, 85 Tenn. .485; Railroad v. Hussen, 101 Penn. St. 1; Scott v. Railroad, 14 Oregon, 211; Railroad v. Plunkett, 25 Kan. 188; Bay v. Railroad, 42' Mich. 523 ; Railroad v. Johnson, 102 Ind. 352; Lathrop v. Railroad, 150 Mass. —; Boyle v. Railroad, 23 N. E. Rep. 827. (2) The petition does not state a cause of action, in that it fails to allege that the deceased minor son of plaintiffs was, at the time of his death, unmarried, and defendant’s motion in arrest of judgment should have been sustained. Barker v. Railroad, 91 Mo. 86 ; Dulaney v. Railroad, 21 Mo. App. 597; McNamara v. Slavens, 76 Mo. 329; Railroad v. Hine, 25 Ohio St. 629.</p> <p>(1). The right of the plaintiffs to recover in this case rests upon the broad basis that the company knew of this dangerously loaded car, knew that the switch-man was inexperienced, and yet ordered and directed him to make the unusually dangerous coupling without warning him of the danger. Lewis v. Railroad, 59 Mo. 495; Hall v. Railroad, 74 Mo. 298 ; Moore v. Railroad, 85 Mo. 588; Stephens v. Railroad, 96 Mo. 270; Ross v. Railroad, 112 U. S. 377. The cases cited by the appellant in the first point of their brief are not decisive of the questions in this case. (2) The court did not err in overruling defendant’s motion in arrest of judgment. The testimony conclusively proved that plaintiffs’ son was a minor and unmarried. The demurrer to the evidence admits the truth of that fact. If the court below had sustained the motion in arrest, it would' instantly have allowed plaintiffs to amend their petition to conform to the facts which were proved, under the statute of jeofails (R. S. 1889, secs. 2098, 2100, 2101), and under these sections this court could and should, in furtherance of justice, if deemed at all necessary, even at the present time, permit such amendment.</p>

<p>Appeal from Buchanan Circuit Court. — How. J. P. G-rubb, Judge.-</p>

— Hon. J. H. Slover, Judge. (1) The court erred in excluding evidence offered by defendant Porter. (2) The court erred in admitting evidence offered by plaintiffs. (3) The declaration of an agent will not hold his principal, unless made at the'time of doing some act within the scope of his agency, and form a part of the transaction itself.

<p>1. Municipal Corporation: charter: amendment oe. Where the charter of a city defines and fixes its boundaries, a subsequent change in the latter will constitute an amendment of such charter.</p> <p>2. ---: ----: constitution : Kansas city. The constitution (art. 9, sec. 16) provides that a city having a population of one hundred thousand may frame a charter for its government which must be approved by four-sevenths of the qualified voters voting at the election on its adoption, and that said charter when “ so adopted may be amended by a proposal therefor made by the lawmaking authorities of such city published for at least thirty days * * * and accepted by three-fifths of the qualified voters of said city * * * and not otherwise.” Kansas City adopted said charter, one of its provisions defining the territorial limits of the city. Held that an ordinance to extend such limits is an amendment of its charter and must be accepted by three-fifths of the voters as required by the constitution.</p> <p>3.---:---:---:---. The provision contained in the same section of the constitution (art. 9, sec. 16), providing that “ such charter shall always be * * * subject to the constitution and laws of the state,” confers no power on the legislature to authorize amendments to the chapter otherwise than as is provided in the constitution.</p>

— Hon. C. A. Anthony, Judge. (1) The court erred in refusing the declarations, of law offered by the appellant, and in rendering judgment for the respondent. The will must be construed so as to carry out the intention of the testator, as indicated by the words of the will, not from a single word or passage, but from a consideration of the whole instrument, giving to each part its fair and usual meaning.

— Hon. O. M. Spencer, Judge. (1) When a wife dies without any children or their descendants, father, mother, brother, sister or their descendants,, her surviving husband becomes her sole heir. R, S. 1889, sec. 4465; R. S. 1879, sec. 2161; G. S. 1865, p. 518, sec. 1. (2) The will of John K. Cunningham, the father of Nugent’s wife, constituted Mrs. Martin, the plaintiff, a trustee for the testator’s daughter, Mrs. Nugent, and named her as her guardian.

— Hon. T. A. GrILL, Judge. Plaintiff’s action is for personal injuries sustained, one night in December, 1886, in consequence of a fall into an excavation in one of the public thoroughfares of defendant which the latter negligently permitted to remain open, unguarded, unlighted and dangerous to persons using the street. Defendant answered by a general denial and a plea of plaintiff’s contributory negligence, to which there was a general reply.

— Hon. John A. Hookadax, Judge. (1) The parties to the marriage, being of competent ages — the female over twelve, and the male over fourteen, and having, in the presence of a large number of witnesses, agreed to become man and wife, cohabited as such, held themselves out to • the world as man and wife, and were so known and recognized, are, and were, in law, legally married, and such marriage was, and is, legal and valid.

— Hon. B. E. Turner, Judge. (1) The raising of the valuations by the county board of equalization of all the real estate in every township in the county (except one) by the entry of a single order on a per-centum basis, was in no sense an equalization of valuations of such property. Such action by the board was unauthorized by the statute and therefore void. R. S. 1879, sec. 6672; R. S. 1889, secs. 7518, 7519; Acts of 1887, p. 232.

— Hon. B. E. Turner, Judge. (1) The court erred in allowing the attorney for the state to ask the prosecuting witness as to expression of defendant’s countenance. Wharton’s Crim. Law, sec. 457; Gassenheimer v. State, 52 Ala. 314; Ames n. Snyder, 69 111. 376 ; Ashland v. Marlboro, 99 Mass. 41 ; Russell v. State, 53 Miss. 367; Hawkins n. State, 25 Ga. 207 ; McAdory v. State, 59.

Louis City Circuit Court. — Hon. G-. W. Lubke, Judge. (1) The averments of bill gave the court no power or authority to appoint a receiver or take jurisdiction in the matter by taking the bank’s assets out of the hands of the board of directors or its trustees.

— Hon. B. E. Turner, Judge. (1) The petition should show on its face every fact essential to a recovery by plaintiff. Notice must be averred not only as to Sharp, but also as to his assignors. 1 Story, Eq. Jur., secs. 108, 409, 411, 434; 2 Story’s Eq. Jur., sec. 1503a. (2) The facts constituting plaintiff ’s cause of action must be stated in his petition.

Louis Gity Circuit Court. — Hon. ■ Daniel Dillon, Judge. (1) The court erred in giving instruction, prayed by defendant, declaring the plaintiff contracted to furnish $1,000,000 new insurance in four years, and that it was not a breach of the contract for plaintiff to fail to furnish $250,000 new insurance in the first year of said contract.

— Hon. E. M. Hughes, Judge. (1) The so-called peddler’s law, so far as it applies to the selling of the machine in question, is a regulation of commerce among the states, and violates the provisions of the constitution of the United States, which grants to congress the power to make such regulations. “Interstate commerce cannot be taxed at all by a state, even though the same amount of tax should be levied on domestic commerce, or that which is carried on solely within the…

— Hon. Gr. D. Burgess, Judge. This is an action by a plaintiff, who at the time was in defendant’s employ, to. recover for personal injuries sustained by alleged negligence of defendant, whereby a bridge on defendant’s railway line is said to have fallen. The case has been certified to the supreme court on a division of opinion among the judges of the Kansas City court of appeals. Same case, 31 Mo. App. 578.

<p>1. Office: political convention : certificate of nomination : statute. A certificate of nomination of a political convention for an office, in order to be filed with the secretary of state, under the statute should be acknowledged by the presiding officer and secretary of such convention in the same manner as a deed for land. (E. S. 1889, seos. 4757 and 4762; 2395, 2405, 2406, 2408.)</p> <p>•3. -: -: SECRETARY OF STATE : MINISTERIAL DUTIES. Although the duties of the secretary of state are ministerial as distinguished from judicial, he is vested with sufficient discretion to j>ass on the sufficiency of such certificate before filing it in his office.</p> <p>.3.--:---: fraud IN primary ELECTIONS. The courts will condemn fraud in primary elections as well as in final elections, when they have acquired jurisdiction in such matters.</p> <p>4. v---:---; estoppel. An agreement between opposing candidates for nomination for office to submit their claims to the state committee of their party is binding on them by way of estoppel.</p>

— Hon. Silas Woodson, Judge. On an indictment for bigamy; the first marriage will not be inferred or presumed from matrimonial cohabitation, with the reputation of being married persons, coupled with, the admissions oí the defendant during such cohabitation that they were married.

— Hon. D. A. DeArmond, Judge. (1) Conceding the truth of every allegation in the joint answer of Mrs. S. A. G. Holloway and George W. Holloway, plaintiff is clearly entitled to be given a decree for the undivided half in question, subject at most to the right of S. A. G. Hollaway to resort thereto to reimburse herself in case of loss to her by virtue of the mortgage of her homestead. O ’Neil v. Capelle, 62 Mo. 202.

<p> Certified from Kansas City Court of Appeals. </p>

— Hon. Richard Field, Judge. (1) Chas. W. Hall having passed real estate to his widow, Harriet B. Hall, and she having taken the bounty of her husband under his will, cannot take under both the will and the law, and the devise bars her of dower in both, the lands he died seized of and those ■conveyed during marriage to his daughters. Tiedeman on Real Prop., sec. 148; Fairchild v. Marshall, 43 N. W. Rep. 563; 1 Washburn on Real Prop., sec. 24, p. 271.

— Hon. E. M. Hughes, Judge. Tins action of ejectment by respondent against the appellant was commenced August 24, 1887, for possession of a part of appellant’s roadbed and right of way across respondent’s farm in Lincoln county, Missouri. The ouster was laid January 1, 1887. The answer of defendant admitted it was a railroad corporation, and its possession of the land sued for ; denied the other allegations and relied on the statute of limitations.

Louis City Circuit Court. (1) The law merchant did not require the appellant as indorsee to present the note or have it presented for payment, protested, etc. Story on Promissory Notes, secs. 368-9. When a contract has been fully performed by one party, a court of equity will decree a specific performance of it by the other party, where it is not out of his power to perforin it.

Apjieal from St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The erecting, providing and using of the platt form and signal stations by defendant in the manner described in the petition was negligence and constituted a breach of its duty as the employer of plaintiff. Bazell v. Mfg. Co., 48 Me. 113 ; Porter v. Railroad, 71 Mo. 66 ; Parsons r>. Railroad, 94 Mo. 266 ; Reber v. Toioer, 11 Mo. App. 199 ; Shearman & Redf. on Negligence, secs. 194, 197.

— Hon. J. M. Sandusky, Judge. (1) The petition of plaintiff was defective, and the demurrer of defendants thereto should have been sustained. Tapley n. Matson, 38 Mo. 489 ; Headlee n. Cloud, 51 Mo. 301. (2) The defendants were not estopped from pleading the want of power to execute the mortgage in question, as a defense to plaintiff’s foreclosure suit.

<p>1. Probate Law: executor de son tort: creditors. Undei; the probate system of this state there can be no executor de son tort in so far as to authorize a single creditor of the decedent to maintain an action of trover against such executor and thereby ajipropriate the whole assets to the payment of such creditor’s debt.</p> <p>2. -.:-. The system provided by statutes of this state for the settlement of the estates of deceased persons are intended to be exclusive of all others.</p> <p>3. Statutes in Derogation of Common Law, Construction of. ‘ Statutes in derogation of the common law are not universally strictly construed.</p> <p>L -. Where such statutes are penal in their character or in derogation of common right, a strict construction is required but, if they are merely remedial, a fair and perhaps a liberal construction should be given them.</p>

— Hon. T. A. Gill, Judge. (1) A court in an action at law cannot adjust equi- • ties. Wilson v. Benedict, 90 Mo. 208. (2 ) In absence of statute or agreement one man cannot recover for taxes voluntarily paid by Mm upon the land of another. Horrigan v. Wellmuth, 77 Mo. 545 ; Pritchard v. Madren, 31 Kan. 53. (3) The defendant is not entitled to recover under section 65, article 6, of the Kansas City charter.

Louis City Circuit Court. — Hon. Gr. W. Ltjbke, Judge. , (1) The trial court erred in refusing a nonsuit asked by defendant. The plaintiff never was entitled to dower in the leasehold. The sheriff’s deed to Benoist, under the decree of June 15, 1866, foreclosing a prior mortgage by Page, vested in Benoist the complete legal and equitable title which Page held before his marriage with plaintiff on July 3, 1866, to an undivided one-half interest in said thirteen lots.

— Hon. M. Oliver, Judge. The record shows that the bill of exceptions was not filed “ during the term of the court,” but in vacation, and there is no order entered of record allowing time to defendant to file such bill; it was, therefore, not filed in time and cannot be considered. R. S. 1889, sec. 2168; State v. Hill, 98 Mo. 570.

— Hon. B. E. Turner, Judge. (1) The husband of Mrs. Miller, the plaintiff’s grantor, died during the year 1869, while the homestead law of 1865 was in force. Such being the case, she took a fee simple in @1,500 worth of real estate not exceeding one hundred and sixty acres. Scouten v. Wood, 57 Mo. 380. (2) The law in force at the time of the death of the husband determines the rights of the widow in the homestead. Davidson v. Davis, 86 Mo. 440.

— Hon. J. M' Sandusky, Judge. The deceased was not a fellow servant with. Port ( who was section boss) and che men under his direction, whose negligence is claimed to have been the proximate cause of injury. Condon v. Railroad, 78 Mo. 573; Long v. Railroad, 65 Mo. 225; Gibson ®. Railroad, 46 Mo. 163 ; Lewis ®. Railroad, 59 Mo. 495 ; Snow ®. Railroad, 8 Allen, 441; Ford ®.

— Hon. Rudolph Hiezel, Judge. (1) Fees or costs are not allowed to public officers unless expressly given by law. Williams v. Chariton Co., 85 Mo. 645; Shed v. Railroad.I, 67 Mo. 687; Gammon v. LaFayette Co., 76 Mo. 675. (2) Plaintiff cannot recover under Revised Statutes, 1879, ’ sections 5829-583U, for these sections contemplate and refer to the preliminary confinement of the lunatic, and which precedes the inquiry by a jury.

— Hon. Andrew Ellison, Judge. (1) The court erred in admitting in evidence the proceedings had in the probate court of Putnam county, Missouri, and the instrument called an election of Maria Russell to take one-half of said real estate in lieu of dower therein. Said probate court had no jurisdiction or authority to appoint the administrator or to take control over the estate in any respect. The deceased was a non-resident of this state when he died.

<p>Legislature : appropriation op money. An appropriation of money by the legislature cannot be applied to years other than those for which it was made.</p>

Louis City Circuit Court. — Hon. Jambs A. Sedo on, Judge. (1) The testimony as to the final and annual settlements of Horner as curator of plaintiff was inadmissible. It was res inter alios acta. 1 Wharton on Neg., secs. 175-6, 760 ; 1 Phillips on Ev. [4 Amer. Ed.] p. 748. (2 ) The circuit court erred in its decree as to said final settlement.

— Non. Richard Field, Judge. (1) Appellant insists that the evidence shows beyond any reasonable doubt that a contract was made in 1869 between plaintiff and his father, whereby plaintiff agreed to take care oE his father and mother during their lives; and that, in consideration thereof, he was made to have the immediate possession of the farm in controversy and have the use and occupancy of it during the life of his father and mother, and, when they were dead, to have the…

— Hon. Jos. P. Grubb, Judge. (1) A station agent has no power to bind the company by a contract for transportation to points beyond its own line, and a contract of that nature entered into by Mm is void. Grover v. Baker, 70 Mo. 672 ; Turner v. Railroad, 20 Mo. App. 632. (2) The defendant’s first instruction should, have been given.

— S. R. Beech, Esq., Special Judge. (1) The defendants not being in possession at the ■commencement of this suit, but the land being at the time in the possession of James Carroll, the finding and judgment of the court were erroneous. Bledsoe v. Simms, ¿8 Mo. 305; Clarkson v. Stanchfield, 57 Mo. 573 ; Sutton v. Casseleggi, 77 Mo. 407; Callahan v. Davis, 90 Mo. 83 ; Shaver v. McOraw, 12 Wend. 558.

— Hon. J. M. Sandusky, Judge (1) The value of the land is to be determined by the date of the appropriation and not of the condemnation. Daniels v. Railroad, 41 Iowa, 52; Jones v. Railroad, 14 Am. & Eng. R. R. Cases, 217; Cohen v. Railroad, 84 Kan. 167; Railroad v. Hays, 14 Am. & Eng. R. R. Cases, 180; Mills on Em. Domain, sec. 175; Pierce on Railroads, 209 ; Diclcenson v. Inhabitants, 18 Gray, 546 ; 7 Black, 209 ; 61 Pa. St. 369 ; 20 Pa. St. 240; Whitman ®.

— Hon. H. C. O’Bryan, Judge. (1) After the conveyance of the property by Lorimier’s heirs, and it being thrown open to the public, the right to use the street by lot-owners became a property interest, and the lot-owner is as much entitled to use of the street and to have it in passable condition as he has a right in his own lot. Rude v. St. Louis, 93 Mo. 408 ; Thurston v. St. Joseph, 51 Mo. 510; Ferrenbach v. Turner, 86 Mo. 510 ; Lackland v. Railroad, 31 Mo. 181.

— Hon. T. A. Gill, Judge. (1) In the absence of statutory authority, the unincorporated Immaculate Conception Society was powerless to appear as a plaintiff in court. It was not a legal entity, could not sue, and a proceeding to which it alone appeared in an assumed corporate capacity, negatived, ho-wever, on the face of the petition, was a nullity — it lacked the essential requisite of an actor recognized by law.

— Hon. E. M. Hughes, Judge. (1) The judgment is against the law and evidence. It was essential that the plaintiff aver and prove that Auchley signed the note in pursuance of an order of the county court requiring the principal to give additional security.' Stone v. White, 8 Gray, 589; Montgomery Co. v. Auohley, 92 Mo. 126. ( 2) The nuno pro tuno order was not based on competent or sufficient evidence. Billcen v. Rhodes, 76 Mo,, 643; Fletcher v. Combs, 58 Mo. 430.

— Hon. J. H. Slover, Judge. This is an action by the collector of the revenue for Jackson county to enforce a lien for taxes against defendants’ interests as owners of certain real property in that county. Quite a number of items of tax are sued for in the action, but only one is disputed, viz.: The “Westport Horse Railroad fund tax.” It is unnecessary to state the pleadings, for the decisive facts are admitted.

— Hon. T. A. Gill, Judge. This is an action for the specific performance of an alleged contract, and was commenced on the sixteenth day of May, 1887, in the circuit court of Jackson county, Missouri. Prior to and on the first day of March, 1886, the plaintiffs were residents of Kansas City, Missouri, and defendant was a resident of Kalamazoo, Michigan. Defendant was the owner of lot 69, in Swope’s addition to the said City of Kansas.

Louis City Circuit Court. — Hon. G. W. Lubice, Judge. (1) The court erred in permitting certified copy of deed to John Dean to be read in evidence against the objection of plaintiff. R. S. 1879, sec. 697; Miller v. Wells, 5 Mo. 6; Aubuchon v. Murphy, 22 Mo. 123; Gilbert v. Boyd, 25.Mo. 27; Strain *. Miorphy, 49 Mo. 337; Commonwealth v. Emory, 2 Gray, 81; Brooks *. Marbury, 24 U. S. 99. (2) The court erred in giving instruction asked by defendant.

<p>Appellate Practice: jurisdiction. The supreme court has no-jurisdiction of an appeal in an action to recover $100 on a subscription list.</p>

— Hon. Gf. D. Burgess, Judge. Any attempt on tile part of tHe state to deprive certain of the children of a certain school district from attending the only school in said district, of which they are listed, and properly enumerated, for the sole and only reason that they are colored, or of African descent, is in violation of section i of the fourteenth amendment to the constitution of the United States.

Louis City Circuit Court. (1) Where there is a right there will be a remedy, and, if none be given, one will be implied. “Ubi jus, ibi remediumP State v. Severance, 55 Mo. 378; Carondelet v. Picot, 38 Mo. 125 ; Camden v. Allen, 2 Butcher, 398 ; Dillon on Mun. Corp. [ 3 Ed.] sec. 818 ; Householder v. City of Kansas, 83 Mo. 488 ; Greely v. Bank, 98 Mo. 458.

<p>The Case of State ex rel. Ziegenhein v. Tittmann, ante, p. 553, followed and affirmed.</p>

— Hon. Gr. D. Burgess, Judge. The case proceeds for personal injuries, and the defenses are a general denial and contributory negligence. Plaintiff was injured while in defendant’s employ at its roundhouse, Brookfield, Missouri.

Louis City Circuit Court.— Hon. Shepard Barclay, Judge. The second amended petition upon which this cause was tried alleges that Edmund Jungenfeld “during his lifetime, to-wit, from the eighteenth day of June, Í8S3, to the twentieth day of December, 1884, at the special instance and request of the defendant (which request was made shortly before the commencement of said work, to-wit, on the sixteenth day of June, 1883), performed work and labor for said defendant as…

Louis (My Gircuit Court. — Hon. L. B. V allí ant, Judge. (1) The court erred in refusing to instruct that the plaintiff had failed to make out a prima facie case of loss by fire. 2 Wood on Fire Ins., p. 1206 ; 2 Greenl. on Ev., sec. 405.

— Hon. O. M. Spencer, Judge. Possession by plaintiff under color or claim of title was sufficient to enable him to maintain the action of ejectment. Daily n. Fainre, 43 Mo. 556; Dams v. Thompson, 56 Mo. 39 ; Farrar v. Heinrich, 86 Mo. 521; Prior v. Scott, 87 Mo. 303.

— Hon. T. A. G-ill, Judge. (1) The court erred in overruling defendant’s motion to strike out plaintiff’s amended petition. (2) The court erred in overruling defendant’s demurrer to plaintiff’s amended petition. On a lost negotiable instrument an action of law cannot be maintained, but the suit must be in equity. Story on Prom. Notes [19 Ed.] sec. 108; 2 G-reenieaf on Ev. [14 Ed.] sec. 156; Rowley v. Ball, 3 Cowen, 303; Mayor ».

Louis City Circuit Court. — Hon. James A. Seddon, Judge. (1) How Mary Mueller held the property on the sixth of October, 1879, when she acquired title, is a matter of no moment, except in so far as it bears upon the question as to how she held it on the ninth of May, 1887, when she sold it to Julia A. Hafner. The allegation in the pleading of an express trust in writing in favor of Geo.

— Hon. J. P. G-eubb, Judge. (1) It was proper for the St. Joseph & Iowa Railroad Company, in appropriating lands for right of way, to proceed in the manner provided by its charter. Railroad v. Morton, 20 Mo. 70 ; s. c., 27 Mo. 317 ; Railroad r. Rowland, 29 Mo. 337; LindelVs Admir ®. Railroad, 36 Mo. 543 ; Leary ®. Railroad, 38 Mo, 486 ; Railroad ®. Gott, 25 Mo. 540 ; Lewis on Em. Bom., sec. 248.

Louis City Circuit Court'. On February 15, 1888, appellant filed Inis petition in the circuit court, city of St. Louis, against Charles Hewitt, M. A. Wolff, F. G. Flanagan, J. H. Douglass, J. W. Grant, J. I. Percy and F. L. Bixler. “ For cause of action plaintiff avers that he with one Lucy Mullen, on sixth day of December, 1877, recovered judgment in the circuit court of the city of St. Louis against defendant Charles Hewitt for $3,878.10 ; that at the February term, 1878,…

Louis City Circuit Court. — IIon. James A. Seed on, Judge. (1) The court erred in excluding testimony offered by defendant. Wilson v. Albert, 89 Mo. 545. (2) The notes of defendant and John J. Anderson were, as matter of fact, canceled in December, 1864, and the deeds of trust were then delivered to the grantor, John Gr. Priest. That was a complete release of the deeds of trust.

Louis City Circuit Court. — Host. James A. Seldom, Judge. (1) The court erred in excluding evidence as to the declarations of the city comptroller when he ordered the lots inclosed. Wilson t>. Albert, 89 Mo. 545. (2) The possession of Priest and Anderson was not interrupted by the void sale under the deed of trust. When premises are wholly vacant the adverse possession follows the true title. Turner v. Balter, 64 Mo. 218; Clark v. Ins. Co., 52 Mo. 272.

<p>1. Administrator’s Deed: description of land : presumption. It will be presumed that the administrator committed a clerical error in inserting a wrong description of land in his report of sale and deed, where the description differs from that contained in the order of sale.</p> <p>2. Presumption. Everyone is presumed by the law to perform his engagements and his duties.</p> <p>3. Administrator’s Sale: order of approval. A formal order of approval is not necessary to the validity of an administrator’s sale.</p> <p>4. Administrator’s Deed : acknowledgment : incorrect recital. A certificate of acknowledgment of an administrator’s deed, otherwise sufficient and signed by the probate judge, is valid though it is incorrectly recited in the body of the acknowledgment that F. (the administrator) was the probate judge. (Overruling Lincoln v. Thompson, 75 Mo. 623.)</p> <p>5. --: lapse of time: presumptions. The courts, after great lapse of time, during which files may be lost or destroyed, will indulge very favorable presumptions to uphold judicial sales, and, in the absence of something of record showing the contrary, the presumption will arise from an order of sale by an administrator and a deed and approval of such sale, that all requisite antecedent steps were taken.</p> <p>6. Deeds: reference in one to another: recording. Where one deed makes reference to another the two are to be considered-as one and the deed so referred to need not be recorded.</p> <p>7. Administrator’s Deed: false description. Where an administrator's deed refers to the petition and order of sale and also contains a description of the land, which varies from that contained in the petition and order, the former description will yield to the latter as against the heirs of the decedent.</p> <p>8. Statute of Limitations: heirs: dower. The running of the statute of limitations against the heirs of the decedent is not prevented by the fact that dower has never been assigned to the widow, where neither the widow nor some one claiming under her is in the possession of the premises.</p>