Volume 112 — Missouri Reports

— Hon. J. M. Sandusky, Judge. (1) Husband and wife must convey by joint deed. Revised Statutes, 1889, sec. 2396; Bannells v. Isgrigg, 99 Mo. 30; Coe v. Bitter, 86 Mo. 285; Bannells v. Cerner, 80 Mo. 474. (2) Tbe delivery of tbe deed by plaintiff’s son was in obedience to tbe request of plaintiff’s husband, and not on any agreement or instructions on her part.

— Hon. C. A. Anthony, Judge. (1) The court erred in refusing to give instruction number 11 asked by plaintiff. Held: 47 Wis. 340; State v. Well, 67 Mo. 637; Angelí on Limitations, see.. 300; McGowcm v. Railroad, 23 Mo. App. 208; James v. City, 83 Mo. 567; Smith v. Musgrove, 32 Mo. App. 255. Third. The dam was bnilt in 1868. The damages accrued in 1881, 1882 and 1883. The action was brought April 7, 1885.

<p> Certified from St. Louis Court of Appeals. </p>

— Hon. Jas. M. Sandusky, Judge. It is a well-established principle of law that in construing wills the intention of the testator must always control, unless the same should be in violation of some established rule of law.

— Hon. W. D. Hubbard, Judge. (1) The deed from the administrator to Michael Kane carried with it all the right, title and interest in and to the land in question, that Gabriel Shackelford had at the time of his death. Revised Statutes of 1889, eh. 1, art. 8, see. 171. The order of sale of the land was valid. Van Bibber v. Julian, 81 Mo. 618. This ease establishes the validity of plaintiff’s title.

— Hon. J. W. Henry, Judge. (1) The suit asking relief by injunction was properly brought. Park v. Bcmk, 97 Mo. 130; Mwphy v. Simpson, 42 Mo. App. 654. And having obtained jurisdiction equity will proceed to do full justice between the parties. JReal Estate, etc., v. Collonions, 63 Mo. 290; Holloioay v. Holloway, 97 Mo. 628.

Charles Circuit Cou/rt. (1) The demurrer to the evidence should have been sustained, as the evidence simply disclosed the happening of an unfortunate accident without any fault whatever on the part of the defendant.

<p>1. Guardian of Lunatic: validity of inquisition: estoppel. One, , ■who files an information in the probate court charging another's-insanity, receives appointment as his guardian, gives bond and takes, charge of his estate, is thereafter estopped to deny the validity of the proceeding adjudging the insanity of his ward.</p> <p>2. Probate Court: DEATH OF LUNATIC: GUARDIAN’S SETTLEMENT. The probate court on the death of the ward has jurisdiction to render-final judgment settling his accounts.</p> <p>3. -: -: -: notice. The probate court has the authority to direct notice to be given of such final settlement, although none is expressly required by the statute;</p> <p>4. -: -: -: -. Where, however, the parties in-. interest are before the court, the question of notice is immaterial.</p> <p>5. -: --: -: appeal. An appeal will lie from the judgment of the probate court settling the accounts of the guardian of a. lunatic rendered on the death of the ward.</p> <p>6. Lunatic: transaction of business: statute. A guardian of a. lunatic is not authorized, under Revised Statutes, 1889, section 5542, to permit his ward to transact his business, as if sane, nor ean those having notice of the adjudication of lunacy, even with the consent of the guardian, trade with the ward without limitation.</p>

— Hon. J. H. Sloyeb, Judge. (1) The court erred in sustaining defendant’s demurrer to the evidence on the ground that plaintiff had failed to show that she had been legally divorced from her former husband, and, hence, failed to show that she was the lawful widow of Johnson Relyea and as such entitled to maintain the suit. And in excluding .the evidence offered to show that she had applied for and obtained a decree of divorce.

— Hon. Gr. D. Buegess, Judge. The plaintiff by her petition herein claims dower in a strip of ground one hundred feet wide and two hundred and seventy-five rods long, which the defendant company - occupies as a right of way, and as incident to such claim she asks damages because of being deforced of her dower; this is, in substance, the first count of her petition.

' (1) Points 1, 2 and 3 of the demurrer merely raise the question of the power of the county court to subscribe for the stock, without a previous vote of the people. On this question this court down to 1878 uniformly held that the rights of the railroad company to subscriptions of stock made by the counties under .section 14 of the charter (Laws of 1859-60, p. 438) were .not and could not have been taken away by the act of .March 23,1861, or by the constitution of 1865.

• Appeal from St. Louis City Circuit Cou/rt. (1) The city owed plaintiff while confined in the workhouse reasonable care and protection, and is liable for the injuries received because of the negligence of its servants. (2) A city is liable for negligence in the exercise of powers conferred for its private corporate advantage. Stewart v. New Orleans, 100 Am.

(1) The recital on the record of the county court, “that due notice has been given according to law,” nothing further appearing, was sufficient upon this collateral attack to show jurisdiction in that tribunal to entertain the petition, so far as notice was involved. Dougherty v. Brown, 91 Mo. 26; Crow v. Meyersieck, 88 Mo. 411; Elliott on Roads & Streets [Ed. 1890] pp. 218, 219. (2) The court had jurisdiction of the subject-matter.

Louis City Circuit Conrt. — Hon. J. E. Withbow, Judge. (1) While it is true that the agreement provides; that the amount tobe paid to appellant “cannot at any time or under any circumstances be compounded or' commuted for a fixed sumas other annuities are,” yet, as a person must contract with regard to his possible death and the administration of his estate, such agreements, so far as they seek to restrict the legislative enactments, have been held to be of no binding force.

(1) The sale by the trustee was void. The power under which he acted required the sale to be made at the east door of the courthouse. It was not sold at that place nor at the east door of any building at which court was being held at the time. “A power of sale, like all other powers, can be exercised only in the mode and upon the exact conditions, terms and occasions prescribed in the instrument of trust. 2 Perry on Trusts, sec. 783.

— IIon. Andrew Ellison, Judge. (1) That portion of section 3826, Revised Statutes,. 1889, which prescribes a form for an indictment, i& unconstitutional, because it violates article 3, and sections 12 and 22 of article 2, and section 28. of article-4, of the constitution of Missouri, and also section 1 of article 14 of the amendments to the constitution of the United States.

<p>1. St. Louis City School Board: election of director: inspection of ballots, etc. An election as director of the school board of the city of St. Louis under the act of the legislature, approved March 30, 1887 (Laws, pp. 272-3), providing that such election shall be held by the qualified voters of the school district is an election of a public officer by the people within the meaning of the state constitution, and, therefore, the ballot boxes used in such election cannot be opened and the ballots be inspected except by an order of the court made in a contested election ease.</p> <p>2. -. The St. Louis school board is a public or a quasi municipal corporation.</p> <p>3. -: qualification of members: constitution. The power of the board to judge of the qualification, election and returns of its members must be exercised by the board in subordination to the constitution of the state.</p>

— Hon. Chas. W. Sloan, Judge, (1) The court erred in refusing to submit the question to the jury whether Kane, the foreman of defendant,, was negligent in not notifying deceased, who was working in a dangerous place under his immediate personal supervision, of the rapid approach of the train, by giving the fifth instruction of defendant and refusing the sixth, seventh and eighth of plaintiff’s instructions. Miller v. Railroad, S. W. Rep.; Gessley v. Railroad, 32 Mo.

<p>1. Criminal Practice: appeal : bail. Where the circuit court admits a defendant to hail after conviction and approves his appeal hond, he is entitled to go at large notwithstanding no order was entered staying sentence against him. (Revised Statutes, 1889, sees. 4279, 4283-4.)</p> <p>2. --: -: -. Revised Statutes, 1889, section 4130, providing that, where a surety desires to surrender his principal, he may procure a copy of the recognizance from the clerk hy virtue of which the hail or any person authorized hy him may take the principal in any county in the state, includes eases of hail given for appearance in the supreme and other appellate courts.</p> <p>3. -: -: -. Where the defendant has heen surrendered hy his sureties pending appeal, he should he given reasonable time and opportunity to make another hond..</p>

<p>Jurisdiction: supreme and appellate court: covenant op warranty. Where, in an action founded on a covenant of warranty of title to real estate, the title is not called in question, and the judgment of the trial court is within the sum giving the supreme court jurisdiction, the cause will he transferred to the proper' eourt of appeals.</p>

— Hon. E. L. , Edwards; Judge. (1) ' Tbe defendant’s objection to the introduction of evidence should have been sustained. Tbe petition does not state a cause of action. Two grounds of action are alleged: First. Violation of tbe city ordinance by obstructing tbe crossing over ten minutes. Second.

— Hon. R. H. Field, Judge. (1) The petition does not show any ground for ■equitable relief. Held: that was not sufficient. The testimony of Louis H. Owen outweighs it, and Owen is corroborated by many circum■cumstances. (3) The plaintiff does not allege or testify to anything which constitutes fraud, for, according to his statement, he accepted the deed, relying upon Louis H. Owen in the future having the notes released.

<p>1. Practice: demurrer to evidence: waiver. . A defendant by introducing evidence, after his demurrer to plaintiff’s evidence is overruled, waives objection to the court’s action thereon, and the case must then rest on all the evidence taken together.</p> <p>2. Negligence: railroad: duty to look and listen. The rule that a person who goes on a railroad track or purposes crossing it must use his eyes and his ears to avoid injury, and that if he neglects to do ■ so and is injured he cannot recover, notwithstanding the negligence of the company, is not of universal application, but has exceptions under exceptional circumstances.</p> <p>3. -: -: -. The facts of this-case held to create an exception to the rule.</p> <p>4. Railroad: traveler: street: presumption. A traveler has an equal right with a railroad company to the use of a public street, and also the right to presume that the company will discharge its duties and obey the laws and ordinances of the city regulating the management of trains.</p>

— Hon. E. M. ■ Hughes, Judge. (1) The court erred in overruling cteienaants motion for a continuance made October 14, 1889. The physical condition of counsel made a trial impossible. (2) The court erred in appointing counsel for defendant, at the suggestion of the state. (3) The court erred in overruling defendant’s motion for a continuance made November 11, 1889. The evidence of witness McGruffin and witness Brooksher was of vast importance to defendant.

— Hon. W. I. Wallace,. Judge. Slight circumstances may establish fraud. Hopkins-v. Bievert, 58 Mo. 201. In this case fraud and undue influence were clearly established. Chandler v. Fleeman, 50 Mo. 239; Massey v. Young, 73 Mo. 260. Mrs. Lydia W. Brown was incompetent as a witness for any purpose. Kellogg v. Matin, 62 Mo. 429; Angelí v„. Hester, 64 Mo. 142; Ring v. Jamison, 66 Mo. 424;.

— Hon. W. D. Hubbard, Judge. Ejectment for land in the city of' Springfield; action brought February, 1889. James T. Williams is the common source of title, and plaintiffs are either his devisees, or else in one respect he represents them in this action. At the outset of the trial certain matters were settled by an agreed statement of facts as follows: “Third.

<p>1. Mortgage: equity op redemption. A mortgagee may. in good faith and. for adequate value, acquire the equity of redemption.</p> <p>2. -: senior and junior mortgagees. Where there are two recorded incumbrances, the purchase of the equity of redemption by the holder of the senior security does not, of itself, let in the junior mortgage to a precedence over the former under the registry laws of this state.</p> <p>3. -: -. The purchase of such an equity as is above indicated would not impair the equitable right of the holder of the junior mortgage to redeem as to the earlier one before its foreclosure.</p>

Glair Circuit Court. — Hon. D. P. Stbatton, Judge./ (1) An alias execution - issued without a return of ‘the original execution is void. The sheriff’s deed, in -order to have a prima facie character, should recite the return of the original execution unsatisfied, that the •authority for the alias excution might be shown.

Appeal jrom Butler Circuit Court. (1) The right to recover interest arises only out of contract, specifically or impliedly promising to pay, or by way of damage for failure to perform some legal duty. Selleclc v. French, 1 Conn. 32. This case is reported as a leading case. See also notes to this case in 6 Am. Dec. 194.

Certified from Kansas City Court of Appeals. (1) The instrument sued on in the first count in the petition, not being certain and. unconditional as to the amount to be paid, is not a negotiable promissory note. Bankv. Gay, 63 Mo. 33; Bank v. Marlow, 71 Mo. 618; Storr v. Wakefield, 71 Mo. 622; Bank v. Gay, 71 Mo. 627; Samstag v. Conley, 64 Mo. 476; Fitzhatrris v. Leggatt, 10 Mo.

<p>Appeal from St. Louis City Circuit Cowt. — Hon; O. W. Lubke, Judge.</p> <p>(1) The execution issued by the clerk of the supreme court, in May, 1823, in favor of Relf and Chew and Mary Clark against Hammond, was without authority, for the debt or damages, and was utterly void — not simply voidable — as to the debt or damages named in the same. There was no judgment of the supreme court for debt or damages, and the clerk had only authority to issue execution ordered by the judgment for costs and charges, and issue the usual mandate to the circuit court; and the circuit court should have issued execution for the debt and costs of that court. To this point we cite: Territorial Statutes of Missouri, sec. 5, p. 244; Evans v. Wilder, 5 Mo. 313; Meyer v. Campbell, 12 Mo. 607; Musser v. Harwood, 23 Mo. App. 495; Walter v. Tabor, 21 Mo. 75; January v. Speddon, 38 Mo. 395; Wornecke v. Wood, 50 Mo. 356; Dobson v. Murphy, 1 Dev. & Bat. 586; Freeman on Executions, sec. 20, p. 16, note 2, and cases cited. (2) Execution issued out of the supreme court on a judgment recovered in the common pleas court is absolutely void. Albeev. Ward, 8 Mass. 79; Martin v. Clark, 37 Mo. 558; Boyd v. Page, 30 Me. 460; Hastings v. Johnson, 1 Nev. 613. (3) There is no evidence to show that the bond named in the deed from Easton to Hammond created a vendible interest in the obligee. Vide Brant v. Robertson, 16 Mo. 149. (4) An interest in land that a man can “lawfully part with” is a fixed and vested one, such as will control the land and exclude everybody else, if followed up. Rven more', it may exclude every one else, and still not be vendible on execution. Bray v. Bagsdale, 53 Mo. 170; Broachoell v. Yantis, 10 Mo. 403; McBvaine v. Smith, 42 Mo. 55. (5) No title passed to the New Madrid locator, nor any priority of right till the survey was returned to the recorder of land titles, and was by him approved and recorded. Bagnell v. Broderick, 13 Pet. 436; Stoddard v. Chambers, 2 How. 294; Barry v. Gamble, 3 How. 51; Lessieiw v. Price, 12 How. 60; Hale v. Gaines, 22 How. 144; Bector v. 'Ashley, 6 Wall. 142; .Gibson v. Chouteato, 13 Wall. 92; Mackay v. *Easton, 19 Wall. 633; Hot Springs Cases, 2 Otto, 712. (6) The doctrine of relation did not extend any further back than the date cf the return of the survey to the recorder of land titles, to-wit, January, 1833. Lessiewr v. Price, 12 How. 60; Bector v. Ashley, 6 Wall. 142; Bradford v. Wolfe, 103 Mo. 399. (7) An application and survey will not maintain ejectment. Gray v. Givens, 26 Mo. 291.</p> <p>(1) No former action or judgment in ejectment constitutes a bar to this suit. Ejectment tries only the right to possession, not the title, and a judgment is no bar to a subsequent action between the same parties for the recovery of the same premises. Kimball v. Benna, 70 Mo. 52; Cotter v. Skaggs, 38 Mo. 302; Holmes v. Carondelet, 38 Mo. 551; Prior v. Lambeth, 78 Mo. 538; Kkey v. Inge, 87 Mo. 493; JDudn v. Miller, 8 Mo. App. 467; Hogan v. Smith, 11 Mo. App. 314; Gibson v. Chouteau, 7 Mo. App. 1. (2) It is urged against the sheriff’s sale, made by Walker in 1823, that the execution was issued by the superior court instead of the district court. This precise objection came before this court in Meyer v. Campbell, 12 Mo. 603, and was overruled. Besides the execution was in the form required, by the law then in force. 1 Territorial Laws, pp. 55, 884-5. The title of a bona fide purchaser at a sheriff's, sale cannot be declared void in a collateral proceeding-on account of any error or irregularity in the judgment- or execution. Landes v. Perkins, 12 Mo. 238. (3) When Easton executed his deed to Hammond on September-29, 1823, it related back to the date of his agreement to convey, made September 13, 1818, and the sheriff's, deed conveying Hammond's interest was sufficient to-convey any title that inured to Easton or Hammond” under the patent issued by the United States. Papin. v. Massey, 27 Mo. 452; Jackson v. Bard, 4 Johns. 230;. Crowley v. Wallace, 12 Mo. 145; Jackson v. McCall, 3-Cowen, 75. (4) As between parties to conveyance a. deed is presumed to have been executed on the day of ' its date, and not on the day of its acknowledgment.. Abrams v. Pomeroy, 13 111. 133; Meldnrn v. Clark, 1 Marr. (Iowa) 130; Breck v. Cole, 4 Sandf. (N. Y.)> 79; Bodge v. Hopkins, 14 Wis. 630. (5) New Madrid locations, like all other inchoate titles to land, are subject to the doctrine of relation. Landes v. Brant, 10-How. 348; Sta/rr v. Starr, 6-Wall. 418; Shepley v. Cowan, 91 U. S. 337. The only limitation placed by-the courts on the doctrine of relation is that it shall not work injustice to the rights of innocent third parties acquired between the events which it is proposed to unite by relation. Vancourt v. Moore,. 26 Mo. 92; Jackson v. Bard, 4 Johns. 230; Fight v. Boe, 1 Blackf. 127; Sampson v. Thornton, 3 Met. 275; Papin v. Massey,. 27 Mo. 445.</p>

— Hon. E. L, Edwards, Judge. (1) The petition does not seek to condemn the right to take or interfere with a ferry franchise of the defendant. It only seeks to condemn the right to build its railroad over certain lots, in the city of Boonville, fronting on the Missouri river, which the defendant below claimed were used by him as a ferry landing. The ownership of the lots and of the ferry franchise is entirely separate and distinct.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court erred in refusing to instruct the jury that, if they believe that the alleged payment of $3,500 was not made by Trepp, they were bound to find that Trepp was indebted upon his three notes read in evidence, and to the full amount thereof. Bump on Fraudulent Conveyances [3 Ed.] pp. 574, 594; Gates v. Labeaume, 19 Mo. 26; McConnell v. Bank, 27 N. E. Rep..617.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Under the code, it is reversible error for the court to refuse to allow a plaintiff at the trial to amend a good .petition in conformity with the evidence adduced. Carr v. Moss,-87 Mo. 447; Weber v. City of Hannibal, 83 Mo. 262; Gilmore v. Dawson, 64 Mo. 311; McMurry v. Martin, 26 Mo. App. 438; 1 McQuillan on Pleading & Practice, sec. 410. (2) First.

<p>1. Practice: change on venue: exceptions. An application for a change of venue constitutes no part of the record, unless made so by the bill of exceptions.</p> <p>2. -: improper, remarks op attorney: exceptions. Where remarks of an attorney in the course of his argument were objected to, and the objection was sustained, and the attorney continued his improper remarks, to which further objections were interposed, and the same were fully set out in the motion for a new trial, and exceptions saved to the action of the court thereon, such remarks are sufficiently saved for review in the supreme court.</p> <p>S. Supreme Court Practice: improper remarks op counsel: new trial. Certain remarks of’plaintiffs attorney in the course of his argument reviewed, and held to be so gross an abuse of the privilege of argument as to make it the duty of the supreme court to award a new trial.</p>

— Hon. Chas. W.. Sloan, Judge. (1) Plaintiff had abandoned her homestead in the premises in controversy. Smith v. Bwm, 75 Mo. 559; Kaesv. Cross, 92 Mo. 647; JDuffey v. Willis, 99-Mo. 132. (2) She, in connection with her present, husband, has a full and complete legal right to a homestead in the lands upon which they now live; which is. conclusive evidence of an abandonment of her homestead right in the land in controversy.

Louis City Circuit Court. (1) When the husband purchases real property •with his own means, and causes the same to be conveyed to his wife, a prima facie ease is made out that the husband intended the conveyance to be a provision for the wife, and no resulting trust will arise. Schuster v. Schuster, 93 Mo. 439. While the facts creating a resulting trust may be proved by parol, such evidence must be clear and unequivocal, and not merely preponderating.

— Hon. James G-ibson, Judge. (1) The court below erred in giving plaintiff’s 'instruction 4 and other conflicting instructions, and in refusing defendant’s instruction 7. Thomas v.. Babb, 45 Mo. 384; Goetz v. Railroad, 50 Mo. 472; Henschen ■v. O’Bannon, 56 Mo. 289; Simmons v. Carrier, 60 Mo. •581; State v. Simms, 68 Mo. 305; Frederick v. Allgaier, •88 Mo. 598; Spohn v. Railroad, 101 Mo. 417.

<p>1. Husband and Wife: marriage settlement, construction op. An antenuptial contract provided that in lieu of dower the wife-should receive from the husband on the day of the marriage "securities amounting in the aggregate to the sum of $50,250, specifying certain securities. The securities were given to the wife as agreed, but-turned out to be worth much less than their purported face value. Helcl that, as no fraud or misrepresentation was shown, the wife could, not recover from her husband’s estate the difference between the real and nominal value of the securities.</p> <p>2. -: -: -. The contract created a separate estate in the securities in the wife, and also provided that "the profits or-increase that shall hereafter be gotten, gained or made of the same, by accumulation of interest or otherwise, shall be subject to the control, use and disposition of’’ the husband during his life. Held, that, the wife’s separate estate was limited tojthe corpus of the securities, and the husband had the right to appropriate the income.'</p> <p>8. -: -:--. The intention of the party is to control in-construing such contract, and such intention is to be gathered not. from single words, passages or sentences, but from a consideration of: the whole instrument taken together in its general scope and design..</p>

— Hon. Andrew Ellison, Judge; (1) The court erred in striking out a portion of the first count of the petition on the ground that the determination of the respondents’ engineers could not be impeached except in a court of equity.

— Hon. Richard Field, Judge. (1) The deed to Samuel O. James, trustee for Lucy Doran, vested the legal title to the land in controversy in .said trustee, if said deed was made for a valuable consideration, and without actual notice upon part of said trustee or Lucy Doran of the prior unrecorded deed of trust. The defendants’ right was not a mere equity.

— Hon. Richard Field, Judge. (1) The defendants having incorporated were partners, and liable as such. Martin v. Ferrell, 79 Mo. 410; Glenn v. Bergman, 20 Mo. App. 343. (2) The contract offered in evidence was not a mere “option,” but was a valid contract of sale and purchase between the parties. Benson v. Shotwell, 25 Pac. Rep. 249; Gibbons v. Sherwin, 44 N. W. Rep. 99. (3) It was not necessary that the contract should have been signed by the vendees.

— Hon. Gh D. Burgess, Judge. ' The memorandum of the contract is sufficient. It does not purport to be a complete expression of the entire contract. The matter omitted may be supplied by parol evidence. O’Niel v. Crain, 67 Mo. 250; Lash v. Parlin, 78 Mo. 391; Ellis v. Bray, 79 Mo. 227; Hollins v. Claybrook, 22 Mo. 407; Mass v. Green, 41 Mo. 389; 1 Grreenleaf on Evidence [10 Ed.] see. 284a. The memorandum was insufficient.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Where there is any uncertainty, the monument must prevail over the description by courses and distances. Rutherford v. Tracy, 48 Mo. 329; 3 Wash-burn on Real Property [5 Ed.] p. 434; Railroad v. Skinner, 9 Mo. App. 199. (2) It was a question of fact for the jury to locate the boundary. Opdyke v. Stevens, 4 Dutch. 90; Tibbetts v. Estes, 52 Me. 568.

— Hon. Gr. D. Burgess, Judge. (1) The holder of a prior recorded mortgage is. not bound to speak, and silence in such cases works noestoppel. Walker v. Railroad, 57 Mo. 275; Barrett tu Johannes, 70 Mo. 439. (2) Counties and beneficiantes in mortgages to secure school moneys are not estopped to foreclose such mortgages by reason of the neglect, acquiescence or misconduct of county officers.

— Hon. James Gibson, Judge. (1) The patent to Chouteau was not competent for any other purpose than as a link in a chain, ot prove an outstanding, subsisting, superior title as against the plaintiffs. McDonald v. Schneider, 27 Mo. 405; Glasgow v. Baker, 14 Mo. App. 207. (2) The deed from Phillibert and wife to Canville embraced in its calls, and by its terms conveyed, the land in suit.

— Hon. B. E. Turner, Judge. (1) The court erred in setting off the northeast quarter of section 7 to Mary A. Miller, and in setting off plaintiffs’ allotment subject to the claims of the defendants, George and Frank Miller, as trustees in the decree. (2) The will of Eliza J. Grigsby is improperly admitted in evidence against plaintiffs’ objections. First. • The mayor of Omaha” is not authorized to take the proofs” of ~W. H. De France. Revised Statutes, 1879, sec. 3975..

Prohibition. The judge of said circuit court has under the statute no jurisdiction in the first instance to admit to bail a person in custody on a charge of crime when the judge of the criminal court having jurisdiction over the offense is present in .the county. Revised Statutes, 1889, secs. 4049, 4123, 5414. It was clearly the intention of the legislature to give such jurisdiction in the first instance to the judge of the court in which the charge was pending.

Hon. Maurice Cramer, Judge. (1) The land must be assessed in the name of Ihe real or record owner. Abbott v. Lindenbower, 42 Mo. 102; Gaines v. Fender, 82 Mo. 497-; State, etc., v. Railroad, 82 Mo. 468. (2) Where land is assessed to a former deceased owner, a sale of such land for nonpayment of taxes passes no title; all proceedings based hereon are bad. Borpee v. Bussell, 2 New Eng.

— Hon. R. H. Field, Judge. (1) When real and personal property is devised or bequeathed in trust for a charity which is too indefinite to be carried out, the trustees hold the legal title for the heirs at law or nest of kin. And a bill in equity will lie to enforce the resulting trust by compelling a conveyance or decreeing the title out of the trustee and in the plaintiffs.

— Hon. M. G. McGregor, Judge. (1) The evidence did not warrant the action of the court in setting aside the trustee’s sales on the ground that they were made in an improper place. The room used as the courthouse had only one entrance way, and at this door the sale was made. Kane v. McCown, 55 Mo. 181; Hambright v. Brockman, 59 Mo. 52; Aldinv. Goldie, 82 111. 581; Davis v. Hess, 103 Mo. 31; Napton v. Hwt, 70 Mo. 497; 2 Jones on Mortgages, secs. 1848, 1849.

— Hon. B. E. Turner,, Judge.' (1) The indictment should have been quashed on. defendant’s motion, because it does not follow the form prescribed- in section 3826, Revised Statutes, 1889, in that it uses the words ‘ ‘goods and chattels’ ’ instead of the • words “money” or “property.” State v. Clay, 100 Mo., 571; State v. Dowd, 95 Mo. 163; Bishop on Criminal Procedure, secs. 356-368.

Habeas Corpus. (1) The courts will take judicial notice of the official records of the census, so far as they relate to the :state, — counties and cities in the state. , State ex rel. v. Herman,75 Mo. 340, 352; State ex rel. v. County Court, 89 Mo. 237.

— Hon. O. A. Anthony, Judge. (1) The court erred in finding for and in rendering judgment in favor of defendants. Under the pleadings and evidence the judgment should have been for plaintiffs. First. Plaintiffs had the right under our statutes to levy upon the land in question whether Mills7 interest was legal or equitable. Revised Statutes 1889, sec. 4915; Eddy v. Baldwin, 23 Mo. 588; Neff v. Seely, 49 Mo. 209; Matson v. Gapelle, 62- Mo. 235. Second.

Louis City Circuit Cowrt. (1) Plaintiffs’ amended petition manifestly states a cause of action. (2) The prevention of vexatious litigation and of a multiplicity of suits constitutes a favorite ground for the exercise of the jurisdiction of equity by way of injunction. 1 High on Injunctions [2 Ed.] sec. 12, p. 11; Biddle v. Bamsey, 52 Mo. 159.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The bill of lading being a through bill from 'Texas to Massachusetts the Texas statute did not apply. 'The defendant could lawfully restrict its liability as provided in the -bill of lading. Ryan v. Railroad, 65 Tex. 13; Railroad v. Adams, 78 Tex. 372; Railroad v. Shenoood, 19 S. W. Eep. (Tex.) 455. The same rule prevails in Massachusetts, the destination of the .shipment. School District v. Railroad, 100 Mass. 505.

— Hon. John A. Hookadat, Judge. . (1) Where intent is an essential element to constitute the act of defendant unlawful and wrongful, it. is competent for defendant, as a witness, to state his. intent and motive in doing the act.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The court ought to have set aside the deed, upon the gross inadequacy of the consideration named therein, and the unconscionableness of the transaction. Railroad v. Broivn, 43 Mo. 294-; Burfee v. Moran, 57 Mo. 374; Nelson v. Betts, 21 Mo. App. 219; 1 Story’s Equity Jurisprudence, sec. 246. Fraud may be presumed on account of the gross inadequacy of the consideration named.

— Hon. Rudolph; Hiezel, Judge. (1) The decree cannot be sustained; the accounting of the referee was on a wrong principle. . Thompson on Homesteads, sec. 725; Mix v. King, 66 111. 145; Revised Statutes, 1889, sec. 5444; Keyes v. Kill, 30 Yt. 579; Kaes v. Gross, 92 Mo. 647; Finney v. Prindeville,.. 86 Mo. 521; Thompson on Homesteads, secs. 241, 244,. 246, 570.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The entry contained in the record of the probate court as to the acknowledgment of satisfaction, and the curator’s discharge, is not conclusive evidence of payment by the curator of the amount found due at his final settlement.