Volume 110 — Missouri Reports

— Ben. ,T. Hakdin, Esq., Special Judge. (1) The record only shows that the regular judge believed himself incompetent to try the cause by reason of his knowledge of the facts involved. This was not sufficient to give the special judge jurisdiction. Railroad v. Campbell, 62 Mo. 585; Smith v. Ua/nuorth, 53 Mo. 88; 64 Pa. St. 33; 19 Hun (N. T.) 346; State v. Phillips, 27 La. Ann. 663; State v. Bulling, 100 Mo. 87; State v. Brownfield, 83 Mo. 449.

— Hon. R. Hiezell, Judge. (1) The court erred in giving instructions, numbered 1 and 2, as to what constitutes mayhem and the sufficiency of the testimony necessary to convict. R. S. 1889, secs. 3488-9, 3491; 1 Russell on Crimes, p. 583. (2) The court erred in giving instruction, numbered 4. State v. Leak, Phill. (N. C.) p. 450; 1 Russell on Crimes, p. 582-3; State v. North, 95 Mo. 615; State v. Stewarl, 29 Mo. 419; State v. Warden, 94 Mo. 648.

<p>Appeal from Barton Circuit Court. — Hon. D. P. Stratton, Judge.</p>

— Wm. Page, Esq., Special Judge. (1) The court erred in overruling appellant’s motion to strike from the files the Leslie deposition and afterwards permitting it to be read in evidence over appellant’s objection. (2) Instruction, numbered 1, given for respondent was erroneous. First. There is no allegation in the petition to the effect that Alex.

<p>1. Sales Under Deeds of Trust: legal publications: statute.. Revised Statutes, 1889, section. 312, which provides that judges of certain circuit courts shall constitute boards, for the purpose of awarding to a newspaper making the lowest and best bid the publication of “all advertisements, judicial notices and orders of publication required by law to be madp,” applies only to publications pertaining to judicial proceedings, and does not include sales by trustees under deeds of trust.</p> <p>2. Statute, Construction of: title. The title of a statute is to be considered in its interpretation.</p> <p>3. -: revised bill. Where a former statute is included in a revised law, it is to be construed as having its existence continued, and not as a new act, to take effect from the enactment of the revised bill.</p>

—Hon. Thos. H. Bacon, Judge. This case is controlled by that of Cox v. Cox, 101 Mo. 168, and the judgment should be reversed and the cause remanded. (1) The appellant who alleges error must show it in his abstract. Craig v. Scudder, 98 Mo. 664; Claflin v. Sylvester, 99 Mo. 276; Flannery v. Bailroad, 97 Mo. 192; Hyatt v. .Wolfe, 22 Mo. App. 462; Disse v. Frank, 52 Mo. 551; Snyder v. Hopkins, 39 Mo. 418.

— Hon. E. L„ Edwards, Judge. (1) While the notes in snit were held by W. A. Dudgeon he could not maintain a suit upon them against W. A. Dudgeon & Co., because he could not be both plaintiff and defendant in the same suit. The difficulty vanishes on indorsement to a third person for value.

— Hon. Ben. E. Turner, Judge. (1) Tiie plaintiff is not the real party in interest as to the funds for which suit is brought. State v. St. Louis Co., 30 Mo. 546; Railroad v. Marion Co., 36 Mo. 294. Counties can only bring action in cases authorized by statute. R. S. 1889, secs. 3153, 3154; Cole Co. v. Lallmeyer, 101 Mo. 57; 4 American & English Encyclopedia of Law, pp. 345-6, and cases cited. Every dollar of the money used went to pay the valid indebtedness of the county.

— Hon. O. M. Spenoer, Judge. (1) The petition charged that the defendant’s servant was guilty of negligence in two particulars: First, in failing t-o keep a sharp lookout in the direction in which he was driving. Second, in driving the horses attached to said car at a high and unreasonable rate of speed.

<p>Appeal from St. Louis City Circuit Court. — Hon. J. E. Withrow, Judge.</p>

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The court erred in finding that plaintiff corporation had no interest in or* 1 right to the stock in question or proceeds thereof. (2) The court erred in sustaining the contract as between Schilling and Schneider to the effect that the stock in question should be paid for out of the earnings and assets of the plaintiff corporation and become their private property.

— Hon. Andkew Ellison, Judge. (1) In order to divest appellant of Ms legal title, the clearest evidence is required: First. That the respondent, or those claiming under him, applied for and entered the land in controversy, and, second, that appellant had notice thereof at the time of his entry.

— Hon. W. I. Wallace, Judge. ■ (1) The evidence shows a continuous, open, notorious possession under claim of title in Wheeloek, and those under whom he claims, as to the east half of southeast quarter, less fourteen acres, from the death of Young M. Pitts in May, 1871, until November, 1888, and of the northwest quarter of the southeast quarter from 1872 — at least from before the marriage of Eleanor to Nathaniel Brittain — and possession of the southwest quarter of…

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The trial court committed error in sustaining motion of plaintiff to strike out parts of answer. Where a trade (such as brokers) has been long established, its customs become known to the -law, and are judicially taken notice of as a matter of law. Blackburn on Contracts of Sale [2 Eng.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The court erred in excluding competent evidence on behalf of plaintiff: First. Plaintiff’s testimony as to what Laumeier, deceased, did with the note upon indorsing it, and the subsequent custody of the box containing it. Second. Schedule made by Laumeier, deceased, before indorsement of note in suit, of notes in his possession, including said notes. Third.

Louis City Circuit Coivrt. — Hon. Jacob Klein, Judge. (1) In the interests of public policy, the policy of the registration laws, and the policy of the criminal laws, plaintiff ought not to be permitted to gainsay that Roberts was the owner of the property in controversy. Malone on Real Property Trials, pp. 436, 439, 440, et seq.; Bingham on Real Property Actions & Defenses, p. 352; 2 Bigelow on Fraud, p. 511, quoting 27 Eliz.

— Hon. John E. Hyland, Judge. (1) The local-option law is unconstitutional; because its vitality is not by legislative sanction in localities where it was supposed to be enforceable, but by the sanction of a certain class of voters within localities, and a repeal or continuance of its vitality after four years from the time of the original vote.

— Hon. J. M. Davis, ‘Judge. (1) The circuit judge had no jurisdiction to appoint commissioners in either cause. First. Notice to a non-resident of the county in which a petition for the condemnation of private property is pending is insufficient unless such notice contains a description of the property sought to be taken. Second. A writ without the copy of the petition is not sufficient. R. S. 1879, secs. 3489, 3493; Railroad v. Taylor, 43 Mo. 35.

— Hon. Gr. D. Burgess, Judge. (1) While it is true that the intention of the testator must govern in the construction of his will, it is equally true that this intention must be gathered from the language employed in the instrument, and from that alone.

Appeal firm, St. Louis City Circuit Cou/rt. — Hon. James -E. Withbow, Judge. (1) The deed from Sartore & Dungey to Cook was a warranty deed, except as against the Schopp mortgage. Cook did not assume the payment of that mortgage. If, therefore, Sartore & Dungey had paid the mortgage — as they should have done — there can be no question that Cook’s title would have been complete. Jones on Mortgages [4 Ed.] see. 864; Johnson v. Johnson, 81 Mo. 331.

— Hon. O. O. Bland, Judge. ■ (1) The finding was against the evidence and the weight of the evidence. (2) The finding was against the law. (3) Under the law no such judgment should have been rendered, and the lease forbidding sale and trade of land is against public policy, and plaintiff under the finding would be powerless to enjoy his property. Bichm-dson v. Ins.

<p>1. Criminal Practice: evidence: verdict. The identification of the defendant, as the person who committed the crime for which he is indicted, is a question of fact, and the supreme court will not disturb the finding of the jury thereon, where the instructions are proper and there is substantial evidence to support the verdict.</p> <p>i’. -: instructions. Instructions on the weight to be given to the testimony of a defendant in a criminal case testifying in his own behalf and as' to the effect of his admissions, and on reasonable doubt, . approved.</p> <p>2. -: DEPENDANT AS A WITNESS: CROSS-EXAMINATION. The action of the trial court in permitting a defendant testifying in his own behalf to be cross-examined on matters not referred to in the examination in. chief will not be reviewed unless objections were made and exceptions were saved at the time.</p> <p>4. --: -: -. An objection after defendant’s cross-examination for sometime “to all this as being incompetent and irrelevant, and not proper cross-examination upon the evidence in chief,’’ held sufficiently specific.</p>

— Hon. W. D. Hubbabd, Judge. (1) No estate passed by estoppel against Maria Anderson, and plaintiffs are entitled to tbe after-acquired title. R. S. 1879, sec. 669. (2) No estate passed by virtue of section 3940, because at tbe time of the conveyance by Anderson and wife to trustee for Delaney an estate passed. Tbe warranty is coextensive with tbe grant, and does not extend it. An after-acquired title passes only when nothing originally vested.

<p>Appeal from Jackson Circuit Court. — Hon. John W. Henry, Judge,</p>

— Hon. Joseph Cravens, Judge. (1) The indictment is sufficient under the statute. R. S. 1879, sec. 1326. (2) It is not necessary under that statute that the money should have come in possession of the defendant by virtue of his office. It is sufficient if he received it under color or pretense thereof. (3) It is sufficient to charge the money as public money. 62 Mo. 393; 59 Mo. 149; 78 Mo. 600.

<p>Appeals in Misdemeanor Cases: jurisdiction or supreme court. The supreme court has no jurisdiction of appeals in misdemeanor cases, and when taken to this court they will he transferred to the courts of appeals.</p> <p>Error to Phelps Circuit Court. — Hon. C. C. Bland, Judge.</p>

— Hon. James E. Hazell, Judge. (1) The regular judge of the Cooper circuit court alone had jurisdiction to pass upon defendant’s application for a change of venue. State v. Anderson, 96 Mo. 245. (2) The state is not entitled to a change of venue which it, in effect, took from special Judge Hutchinson to special Judge Hazell. There could be but one change. State v. Anderson, 248. (3) The application was not in proper form. R. S., sec. 4174.

— Hon. E. M. ■ Hughes, Judge. (1) The court erred in sustaining a demurrer to plaintiff’s evidence, and in directing the jury to return a verdict for defendant. Canifax v. Chapman, 7 Mo. 175; Page v. Freeman, 19 Mo. 421; Allred p. Bray, 41 Mo. 484; Murphy v. Wilson, 44 Mo. 313; Howell v. Taylor, 2 Mo. App. 329; Holliday v. Jackson, 21 Mo. App. 660, 666, 667. (2) The court erred in taking the questions of fact from the jury. R. S. 1889, sec. ,2164.

<p>Supreme Court Jurisdiction: appeals in misdemeanor oases. The supreme court has no jurisdiction of appeals in misdemeanor cases . where no constitutional question is involved.</p>

— Hon. E. L. Edwards, Judge. (1) Plaintiff may use two chains of title. Public Schools v. Bisley, 28 Mo. 415. (2) The probate court is a court of record, having original jurisdiction in the matter of the sale of real estate of decedents for the payment óf debts. If the order of sale was erroneous, any person interested could appeal. 1 Wagner’s Statutes,1872, sec. 1, p. 119.

— Hon. Turnee A. Gtill, Judge. Action for damages alleged to have occurred by the negligent removal of lateral support to plaintiff’s-building, in consequence of which the latter fell. The trial court instructed the jury that plaintiff could not recover, upon which he took a nonsuit with leave, etc. The plaintiff appealed in due form. The other facts appear in the opinion.

Louis City Circuit Cotvrt. — Hon. James E. Withrow, Judge. This is a condemnation proceeding, the chief feature of which is to establish a special assessment for “benefits” against defendant’s lot, on account of the opening of an alley in the city of St. Louis. The validity of the assessment is questioned by this appeal, as it was in the circuit court. The accompanying map of city block 1959 will facilitate an understanding of the exact point involved.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. This is a proceeding to open an alley in the city of St. Louis. The issue made on the present appeal is upon the legality of an assessment for “benefits” against neighboring property-owners. That issue was raised by exceptions to the report of the commissioners appointed to assess damages and benefits as provided by the city charter.

The court committed reversible error in treating the so-called levy order of the county court, dated September 7, 1886, as compliance with the statutes in force, concerning levy of taxes on the property of railroad companies. This order was and is a nullity. Laws of 1885, pp. 230-1; R. ’S. 1879, secs. 6879, 6880; R. S. 1889, secs. 7731, 7732.

— Hon. Eichard Field, Judge. Plaintiff’s action is for personal injuries, caused by alleged negligence of defendant. It is met by a denial of tbe negligence, and a charge of contributory negligence on plaintiff’s part. At a trial) the court instructed the jury that plaintiff was not entitled to recover, whereupon he took a nonsuit with leave, etc. After unsuccessful motions to set that result aside, plaintiff appealed in due course.

Certified from St. Louis Court of Appeals. The statement on which this canse was instituted reads as follows: “State oe Missouri, 1 gs.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. Plaintiff sued for damages for personal injuries, and recovered judgment for $10,000, from which defendant appealed, after the usual preliminaries. .

— Hon. Gt. D. Burgess, Judge. (1) The undisputed evidence shows that the plaintiff was the absolute owner and the holder of the notes sued on, and that no other person had any interest whatever in and to the same. (2) Defendant cannot hold the lands and refuse to pay the purchase money. Crumb v. Wright, 97 Mo. 14; Smith v. Busby, 15 Mo. 388; Bigelow on Estoppel [3 Ed.] 429.

— Hon. J. M. Sandusky, Judge. The action is for the recovery of specific personal property. Defendant had judgment in the circuit court, and plaintiffs appealed in due form. The result depends on a chattel mortgage mentioned in the opinion of the court, of which the material portions are the following, viz.: ‘ ‘ Chattel mortgage.

— Hon. Eudolph Hibzel, Judge. (1) The court should have sustained the demurrer to plaintiff’s evidence. There is neither averment nor proof that the sudden stopping of the train was caused by the absence of the rules. Merle v. Hascoll, 10 Mo. 406; Barker v. Railroad, 44 Mo. 488; Waldhier v. Railroad, 71 Mo.-514; Baile v. Railroad, 97 Mo. 75; Ischer v. Bridge Co., 95 Mo. 261; O’Brienv. Steel Co., 100Mo. 182; Bolen v. Ins. Co., 20 Iowa, 562.

— Hon. Joseph Cravens, Judge. (1) The judgment ought to be reversed because of the mutilation of the record. Medlin v. Platte Co., 8 Mo. 325; Briggs v. Glenn, 7 Mo. 572; Dennison v. Co., 33 Mo. 168. (2) The instructions certainly do not declare the law: First. It is error for the court to refer the jury to the indictment to determine what they must find in order to convict. See the instructions of the court numbered 3, 6, 7 and 8. State v. McCashey, 104 Mo. 644. Second.

Mandamus. (1) Mandamus will lie to' compel the appointment of commissioners in condemnation proceedings, and a refusal to entertain jurisdiction, and the dismissal •of the proceedings is a reason why 'the writ should he granted rather than anv excuse for not granting it. 97 Mo. 331-342; 28 Mo. 259; 96 IT. S. 369; 11 IT. S. 796; 120 U. S. 737; 71 Mo. 170; 76 Mo. 605; 73 Mo. 560; 75 Mo. 358; 46 Mo. 83.

— Hon. Henry P. White, Judge. (1) The court erred in overruling defendant’s plea in bar and motion for discharge on the ground that he had been once in jeopardy. See opinion of Judge Philips, 42 Eed.

.Appeal from Stoddard Circuit Court. — Hon. J. Gr. Weab, Judge. (1) Defendants held only the equity of redemption which had been foreclosed. Qrandy v. Casey, 93 Mo. 595; Smith v. Lindsey, 89 Mo. 76. And it was ■clearly erroneous to exclude the sheriff’s deed as evidence.

— Hon. J. H. Sloyer, Judge. (1) The city has the right to maintain ■ this action. One who has a chose of action for collection has the right to maintain a suit in his own name. Webb v. Morgan, 14 Mo. 229; Beattie v. Lett, 28 Mo. 596; Simmons v. Belt, 35 Mo. 461; Snider v. Express Co., 77 Mo. 523. The city is the substantial plaintiff in actions on special tax bills. St. Louis v. Clemens, 36 Mo. 467.

— Hon. Oliver M. Spencer, Judge. (1) This is not a question of contributory negligence at all. Wherever a violation of the rules of the master for the conduct of his business is a producing cause of injury to the servant, that violation is a complete defense to the master, regardless of whether the violation was in itself negligent. The servant cannot incur a risk, consequent upon a violation of the master’s orders, on the master’s responsibility.

Certified from Kansas City Cowrt of Appeals. (1) The indictment is insufficient in law. Under it the defendant did not and could not know what to meet. He had the constitution al right to know this which right was denied him. Constitution, art. 2, sec. 22; State v. CrooJcer, 95 Mo. 389; State v. Bealtey, 62 Mo. 40; State v. Hayward, 83 Mo. 299; United States v. Crmkshcmlc, 92 U. 8. 558; United States v. Hess, 124 U. S. 483.

<p>Trespass: title to land : jurisdiction or supreme court. An ordinary action of trespass1 to land in no way involves tie title, and the supreme court in such ease has no jurisdiction on appeal.</p>

— Hon. John W. Henry, Judge. (1) The statutes of Missouri, exempting from execution certain property and giving to debtor right of election to select certain property in lieu, and commanding officer, “before he levy upon same,” to apprise debtor of Ms exemption rights, are plainly set forth in sections 2343, 2346 and 2347 of Revised Statutes of 1879, and no purchaser can be an innocent purchaser at any sheriff’s sale made contrary to such ■statutes, for they are notice to…

<p>■Appeal from Bates Circuit Count. — Hon. James B* Gantt, Special Judge.1</p>

— Hon. H. C. O’Bbyan, .Judge. This is an action for the partition of land in New Madrid county, Missouri. After a judgment, ascertaining the interests of the several parties and directing a sale, the land was sold and the proceeds await the disposition of this appeal.

■Appeal from St. Louis County Circuit Cowrt. — Hon. W. W. Edwards, Judge. The record and evidence in this ease is submitted in full, and, speaking for itself, submits but the one issue: Did the deeds in evidence transfer said property to defendant, or is the title thereto vested in plaintiffs, as heirs of the said Anna O. Nau, deceased, and upon said record, evidence and statement the ease is respectfully submitted.

— Hon. Gr. D. Burgess, Judge. The plaintiffs are Joseph and Nancy J. Grooch, husband and wife, suing to assert her title, in common form, in ejectment for certain land in Linn county. The answer, besides a denial of the petition, set up, as an equitable defense, the facts which are discussed in the opinion. A reply denied this new matter. A trial and a judgment for plaintiffs for possession and damages followed. Defendants appealed in due form.

<p>Appeal from Linn Circuit, Court. — Hon. G. D. Burgess, Judge.</p>

Mandamus. Relators are entitled to have plaintiffs’ motion in said cause disposed of without a revivor: (1) Because, after the court found the issues in favor of defendants,, they were entitled to judgment unless error had been, committed by the court, and the court should not allow the death of one of the plaintiffs, pending the time taken by the court for argument on their own motion, to prejudice the right of defendants to the fruits of their victory.

Louis City Circuit Court. (1) A demurrer will not lie to a bill on the ground of res adjudicata. Such defense must be raised by answer. Kelly v. Hurt, 61 Mo. 466. A former judgment is not necessarily conclusive to all the facts arising on the record, and parol evidence is admissible to show whether a question was determined in a former suit. Hichnan v. Mexico, 58 Mo. 61; Armstrong v. St. Louis, 3 Mo. App. 100; Spradling v. Conway, 51 Mo. 51.

— Hon. O. M. Spencer, Judge. (1) The statute under which the mayor and council attempted to act provides for the assessment of the cost of the sewer against the entire district, and no assessment can be made which does not include it all. R. S. 1889, sec. 1429.

(1) The testator having been shown by the evidence to be under the influence of devisees, the burden of proof as to capacity of said testator to make a valid will was shifted, and it rested upon those claiming under the will to prove by a preponderance of the evidence that the testator, at the time of making the will, had sufficient mental capacity to do so. It was, therefore, error for the court to give defendants’ instruction, numbered 3, which violates this doctrine.

— Hon. R. H. Field,, Judge.- The parol conveyance by which defendant claims-that plaintiff conveyed to him an undivided one-fourth of the property in question was not established by the evidence, and, if established, has no validity in law. (1) The proof of such conveyance is not of that, cogent character which a court of equity requires and demands. Veth v. Gierth, 92 Mo. 97; Strange v. Crawley, 91 Mo. 287; Laphmn v. Dreisvogt, 36 Mo.

— Hon. H. CL O’Bbyan, Judge. (1) The contract and promise made by William Ingram to Sidney White for, the sale of this land was-not a voluntary one. It was supported by a valuable-consideration of a $600 note, to be surrendered upon the marriage of plaintiffs. Upon their marriage, the-note was surrendered to plaintiff Sidney, and the deed to plaintiff, Mary A., was promised.

— Hon. Í). A, DeArmond, Judge. (1) The objection to the introduction of any evidence under the petition was well taken. (2) Proof of damage to the particular forties through which the road runs, without taking into consideration the whole connected body of plaintiff’s land, was improper. Railroad v. Waldo, 70 Mo. 629; WinJcleman v. Railroad, 14 Am. & Eng. R. R. Cases, 186. (3) .

Louis City Circuit Court. (1) False statements made by an individual in regard to articles manufactured by another, for the-purpose of preventing sales by him of such articles, and which do in fact prevent such sales, or injure the manufacturer in his business, constitute a cause of action. Snow v. Judson, 38 Barb. 210; Benton v. Pratt, 2 Wend. 385; White v. Merritt, 3 Seld, 352; Gallagher v. Brunch, 6 Conn. 346.

(1) Express authority is given by Revised Statutes, 1889, section 1589, to cities of the fourth class to pave their streets. The word ‘ ‘building” used in the statutes includes “paving.” (2) The ordinance is not an unreasonable one. The passage of the ordinance for doing the work is of itself a strong presumption that the ordinance was reasonable. State v. Trenton, 20 Atl. Rep. 1076.

The demurrers of the defendants admit the allegations of the petition, and, under the provisions of the eode allowing any relief consistent with facts and the general prayer of the petition, the demurrers must be taken simply as denying the equity of the bill. Under 'the prayer the plaintiffs are entitled to any relief within the power of a court of equity which is called for by the facts stated in the bill.

Louis City Circuit Cou/rt. — Hon. Daniel Dillon, Judge. (1) It was improper to grant a nonsuit as to' the defendant Hildreth. (2) The case should have been nonsuited as to the city of St. Louis. (3) It was error to refuse to submit to the jury whether the deceased came to his death by improper treatment on the part of the physicians. (4) The contractor who was restoring the premises at the time of the accident was jointly liable with the other defendants.

Louis City Circuit Coivrt. — Hon. ’ Daniel Dillon, Judge. The written authority not having authorized the contract, it was not competent for the owner to ratify it verbally so as to make it binding on him . The general rule is that what would not give authority in the first instance cannot amount to a ratification. The ratification to be binding must have been in writing. Story on Agency, sec. 242; 12 N. H. 232.

— Hon. D. A. DeArmond, Judge. (1) In admitting parol and extrinsic evidence to explain the patent ambiguity of the sheriff’s deed, offered and read in evidence by the plaintiff, the court erred. The deed upon its face discloses a patent ambiguity; it, therefore, must stand or fall upon its own merits. 1 Greenleaf on Evidence [1 Ed.] secs. 297-301; Campbell v. Johnson, 44 Mo. 247; Ware v. Johnson, 66 Mo. 668; Andrews v. Todd, 50 N. H. 565.

Hon. Maurice Cramer, Judge. (1) Section 1 of chapter 369 of the ordinance of the city of Cape Girardeau makes the running of a ferry without a license a misdemeanor, and punishes the party who violates it by a fine. This is an exclusive remedy. Respondent’s only remedy at law is under the ordinance, which here takes the place of a statute, and is the statute. (2) Instructions 1 and 2 given for respondent stated the measure of damages incorrectly.

<p>1. The Case of Carroll v. Campbell, ante, p. 577, followed and affirmed.</p> <p>2. Practice: error. It is error to submit an issue of law to the jury or an issue of fact not tendered in the pleadings.</p>

<p>Practice in Supreme Court: notice op writ op error: dismissal. Where a party suing out a writ of error fails to give notice thereof, to the adverse party, as required by section 2290, Revised Statutes, 1889, the writ will be dismissed, unless good cause for such failure be shown.</p> <p>-: -: -: waiver. The fact that the adverse party has appealed in the same cause in regard to the validity of the bill of exceptions cannot supply the lack of notice in writing of the issuance of the writ of error.</p>

— Hon. E. L. Edwards, Judge. (1) The defendant Hauenstein having received a quitclaim deed from the widow of Thomas Cox which purported to convey her dower interest, and having taken possession of the land in controversy, under said deed, cannot now set up the claim that he holds the land adversely to the heirs of Thomas Cox. First.

— Hon. E. L. Edwards, Judge. (1) It was competent to prove by J. H. Johnston, who is not a party to this suit nor directly interested in it, that, as executor of J. K. Ragland, deceased, he received and held receipts given him by Jas.

— Hon. D. P. Stratton, Judge. (1) If Anson W. Courtright had died without making a will, the real property in controversy would probably, under the law in force at the time he died, have become the property of Mary A. Courtright, his widow, in fee. Thompson on Homesteads, secs. 586-588; Skouten v. Wood, 57 Mo. 380.

Charles Circuit Court. — Hon. W. W. Edwabds, Judge. The court below erred in sustaining defendant’s demurrer to the petition. The petition stated a cause of action and was sufficient.

Clair Circuit Court. — Hon. D. P* Stbatton, Judge. (1) The amended petition making Clark B., Jacob J. and John F. Mitchell, children and heirs of William A. Mitchell, deceased, parties plaintiff was right, and should not have been stricken out. They were necessary parties to meet the issues made by the answer of: the defendant. E. S. 1889, sec. 2099; Butler v. Latvson, 72 Mo. 246.

— Hon. E. M-Hughes, Judge. (1) Plaintiff’s husband was not a party to the contract for the sale of the thresher and its violation could give her no 'right of action-.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) To create a highway by estoppel there must be-acceptance on behalf of the public, as well as intent to dedicate on the part of the owner.

— Hon. Richard Field, Judge. (1) Under the deed conveying the land to “Mary R. Grodman, for and during her natural life, and with remainder to the. heirs of her body,” her children living at the date of the deed took a vested remainder, and the conveyance executed by the said Mary R. Grodman and her children passed the title in fee to the parties through whom defendants claim.

— Hon. O. H. S. •G-oodman, Judge. (1) The court erred in admitting in evidence the .amended final judgment in the case of G-roomer v. •G-roomer entered of record at April term, 1884. ■(2) The judgment rendered and entered of record at the March term, 1872, in said case, confirming the ■commissioners’ report in said case, and adjudging the title to the lands described in said report to be in the several parties as therein set forth, was a final judgment. .

— Hon. J. L. Thomas, Judge. . (1) Inadequacy of price alone' will not warrant a court of equity in relieving against or setting aside a contract. Holmes v. Fresh, 9 Mo. 201; Carter v. Aleshire, 48 Mo. 300; Phillips v. Stewart, 59 Mo. 491; Stoffel v. Schroecler, 62 Mo. 147. Bakewell, even after the first notes were due, offered, by letter, to accept $800 for the land. (2) The evidence does not make a case of misrepresentations authorizing the relief asked.

— Hon. E. H. Field, .Judge. (1) The court erred in allowing the defendant MeElroy to amend his amended answer at the trial after all the evidence was in, by inserting an entire new defense against the objections of the plaintiff. Garton v. Canada, 39 Mo. 364; Benfrew v. Price, 22 Mo. App. 403; Alexander v. Luke, 11 Mo. App. 597: Butcher v. Death, 15 Mo. 271; Irwinv. Chiles, 28 Mo. 576; Phillips v. Broughton, 30 Mo.

— Hon. H. M. Ramey, Judge. The following is the plat referred to in the opinion of the court: (1) The plat of Hays’ second railroad addition is objected to for the reason that the acknowledgment was taken by the deputy recorder; while the statute in force at the time did not in terms provide for the appointment of a deputy recorder, it did by express provision recognize such deputy by providing for his compensation. Gr. S. 1865, sec. 29, p. 162.