Volume 120 — Missouri Reports

— Hon. 0. A. Anthony, Judge. (1) This ordinance is clearly violative of section 28, article 4, of the constitution of the state of Missouri, in this: it is double. R. S. 1889, p. 70; State v. Miller, 45 Mo. 495; City of Kansas v. Payne, 71 Mo. 159; State exrel. v. Mead, 71 Mo. 266. Regulating the room is not germane to the ordinance. State v. Per singer, 76 Mo. 346; Cooley’s Const.

Louis City Circuit Court. — Hon. Jacob Klein, Judge.- (1) A factor is a person to whom goods are consigned for sale, by a merchant residing abroad, or at a distance from the place of sale, for compensation, or a commission. Winn v. Hammond, 37 111. 103; Nagel v. McFeeters, 97 N. Y. 196; Baring v. Corfie, 2 B. & Aid. 143; Cotton v. Hiller, 52 Miss. 13; 3 Am. and Eng. Encyclopedia of Law, 317; Ewell’s Evans on Agency, [Ed. of 1879], p. 3; Story on Agency [8 Ed.], sec. 33.

<p>Appeal from Platte Circuit Court.-Hon. J. M. Sandusky, Judge.</p> <p>(1) The deed read in evidence, from Charles E. Studdard and Matilda Studdard to Theodore Studdard, is upon conditions. Lindsey v. Lindsey, 45 Ind. 553; Blum v. Bush, 49 N. W. Rep. 142; Nolan v. Nolan, 78 Mich.'24'; Bichterv. Bichter, 12 N. E. Rep.; Stilwell v. Knapper, 69 Ind. 558; Leach v. Leach, 4 Ind. 628; Wilson v. Wilson, 86 Ind: 474; Jenlcinsv. Jenlcins, 3 Monroe, 327; Scott’s'heirs v. Scott, 3 B. Monroe, 2; Cross v. Carson, 8 Blackford, 138; Messersmith v. ■Mess&rsmith, 22 Mo. 369; Mo ore v. Wingate, 53 Mo. 398. (2) The word “condition” is not necessary to create a condition; but if it can be gathered from' the instrument that an expectation that the' duty imposed - on- the grantor to pay the taxes on the land and support the grantors during their natural lives was the inducement for the conveyance and the performance of such duties was the consideration for it, then it should he construed as upon condition. Wilson v. Wilson, supra-, Blum v. Bush, supra-, Stilwell v. Knapper, supra-, Richter v. Richter, supra. (3) Charles F. Studdard having continued in possession of the land, no formal entry for condition broken was necessary; the-fee remained in him. Moore v. Wingate, supra; Banlc v. Drummond, 5 Mass. 320; Blumv. Bush, supra; Rollins v. Riley, 44 N. H. 9. (4) The legal title of their ancestor having failed, his heirs can not maintain ejectment for the land; their remedy is in equity. Messersmith v. Messer smith, sipra; Moore v. Wingate, supra; Richter v. Richter, supra. But equity will not relieve against a forfeiture in cases like this; such relief is only granted where the covenant or conditions is to pay money. Hill v. Barclay, 19 Yesey, 56; JEastérman v. Batchelor, 36 N. H. 141. The condition in this case is precedent. The obvious intention was to rely on a previous performance and not on the remedy for nonperformance. Larimore v. Tyler, 88 Mo. 667.</p> <p>(1) The statement in the deed following the description of the land to the effect that the grantee, Theodore Studdard, was to support the grantors during their lives and to pay taxes on the land, was not a condition precedent, as it did not provide that the services should be performed before the title should vest. 2 Devlin on Deeds, sec. 964, p. 268. (2) Nor was that statement a condition subsequent since it did not' provide for any forfeiture on the failure to perform the services. 2 Devlin on Deeds, sec. 958, p. 263. The provisions for a re-entry is the distinctive characteristic of an estate upon condition. 2 Devlin on Deeds, sec. 974, p. 276. If itis doubtful whether the language imports a condition or a covenant, the latter interpretation is adopted. 6 Am. and Eng. Encyclopedia of Law, p. 902. (3) Conditions subsequent, having the effect in case of a breach to defeat estates already vested, are not favored in law, and hence always receive a strict construction. A deed will not be construed to create an estate upon condition, unless language is used which according to the rules of law, ex proprio vigore, import a condition, or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. Conditions are not to be raised readily by inference or argument. 2 Devlin on Deeds, sec. 970, p. 273; 3 Am. and Eng. Encyclopedia of Law, note to page 423; Chapin v. School District, 35 N. H. 445. (4) In all the Missouri cases of this character where the right of forfeiture was recognized the deeds were made upon the express consideration and condition that the services were to be performed. "Messersmith v. Messersmith, 22 Mo. 373; Moore v. Wingate, 53 Mo. 398; Clark v. Brookfield,- 81 Mo. 503; Towne v. Bowers, 81 Mo. 491.</p>

— L. R. Kinsey, Esq., Special Judge. (1) It is the universal practice in condemnation cases where the statute itself is silent to refer to the practice act for guidance as to the proper procedure to be taken. Railway v. Carlisle, 94 Mo. 166; Wade on Notice, secs. 1127 and 1351; Mills on Eminent Domain, see. 98. (2) Swan having had actual notice of the filing of the report of the commissioners and having acted thereon notice to him by the clerk was not required. Woods v-.

— Hon. R. H. Field, Judge. (1) The lien for labor done and materials furnished under an entire contract upon several buildings owned by the same person and situated on the same or contiguous lots attaches upon the whole estate for the whole value of the labor and material, although the contract specifies separate amounts for the work to be done on each house. The object of section 6729 was to do away with the rule laid down in the case of Fitzgerald v. Thomas, 61 Mo. 499.

Division One, Appeal from St. Louis City Circuit Court. (1) The acts claimed to have been done by the defendants Dodson, Owen and Diffenderfer — save the calling of meetings by Dodson — were acts within the scope of their duties as directors, and didn’t entitle them to any compensation, save that provided by section 5, of the act of incorporation of the company, i. e., one dollar and fifty cents per day, while the board is in session, and ten cents per mile from home to the…

— Hon. J. H. Slover,. Judge. (1) Whether the tax deeds were or were not sufficient to pass the title, no exception was saved to the action of the trial court in admitting them, and they are in the record as properly as if all the preliminary proof had been made. Margrave v. Ausmuss, 51 Mo. 561; Parsons v. Railroad, 94 Mo. 292.

— Hon. Andrew Ellison, Judge. The facts agreed upon, in the statement submitted by all the parties to the trial court, were the'following: The city of Macon, prior to November 1, 1889, was, and now is, a city, incorporated by a special charter, March 28, 1872, repealing an earlier act, approved, December 31, 1859, and all acts amendatory thereof. The city was surveyed and platted, and a correct plat was filed in' the recorder’s office of said county, prior to .1866.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The first bill of exceptions herein, making all of the proceedings before the referee on the first hearing before him matters of record, was filed during the term at which the exceptions to the report of the referee were overruled.

Louis Criminal Court. — Hon. Rudolph Hirzel, Special Judge. (1) The bill of exceptions was filed in proper time.

<p>Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p> <p>(1) The act of the legislature, approved March 26, 1885, was exclusive. Baker, Aclm’r, v. Railroad, 36 Mo. 543; Railroad'v. Oakes, 20 Ind. 9; State v. Bittinger, 55 Mo. 596; McCormack v. Railroad, 9 Ind. 283; Baird v. Wells, 22 Pick. 312; Lelcmcl v. Wood-bury, 4 Cush. 245; Hull v. Westfield, 133 Mass. 433; Toioer v. Boston, 10 Cush. 235; Stafford v. Ingersoll, 3 Hill, 38; Sedg. on Construe, of Stat. and Const. Law [2 Ed.], 76, 341, note a, 343, 344. (2) Instruction number 5, given for the respondent and that numbered 6 given at the request of the appellant are palpably inconsistent. The one declared that the appellant was liable to the respondent for the grading done by the Kansas City Cable Railway Company, the other that the appellant was not liable therefor. (3) The appellant is not liable for any damage caused respondent’s property by the - grading done by the Kansas City Cable Railway Company. Por this reason the judgment should be reversed and the case dismissed, Charter of appellant city, art. 8, sec. 1; Acts of 1875, 250; Thompson v. Boonville, 61 Mo. 283; Thrush v. Cameron, 21 Mo. App. 394; Stewart v. Clinton, 79 Mo. 603; Werth v. Springfield, 22 Mo. App. 12; s. o., 78 Mo. 107. (4) Nor is the appellant liable to the respondent for any damage caused his property by the grading of Ninth street along the sides of the roadbed of the cable railway, because the respondent not only requested, but urged the appellant to do this grading. This is an admitted fact, and it is also admitted that he petitioned in writing for the construction of the cable line. Volenti non fit injuria. Instruction number 5, given for plaintiff, was, for this reason also, erroneous. For this reason the judgment should be reversed and the cause dismissed. Cross v. Kansas City, 90 Mo. 13; Railroad v. Farrell, 76 Mo. 183; Vaile v. Independence, 22 S. W. Rep. 695; Burlcam v. Railroad, 122 Ind. 344. (5) There can be no damages resulting from the reduction of a street from the natural surface to a grade established for the first time. Dillon on Municipal Corporations [4 Ed.], sec. 9956; Gardiner v. Johnstown, 16 R. I. 94; Anderson v. Bain, 120 Ind. 254; Callender v. Marsh, 1 Pick. (Mass.) 431; Kappel v. Keolmh, 61 Iowa, 653; Akron v. Co., 34 Ohio St. 334; Aldrich v. Providence, 12 R. I. 241; Denver v. Vernia, 8 Col. 404; Rigney v. Chicago, 102 111. 83; In re Levering Street, 14 Phila. 349. (6) Where the owner, or his grantor, has dedicated the street for public ■ use, neither can recover for damages resulting from the establishment of a grade for the first time. Dillon on Municipal Corporations [4 Ed.], sec. 995a; Cooley’s Const. Dim. [6 Ed.], p. 683. Dedication was for street purposes. See R. S. 1889, sec. 7309; Denver v. Bayer, 7 Col. 113. (7) The proper measure of damages in this case is the difference between the value of the property before and the value after the change of grade, and not that given in instructions numbers 1 and 3 for plaintiff. Springer v. Chicago, 26 N. E. Rep. 515; Sheehy v. Railroad, 94 Mo. 580; Taylor v. Railroad, 38 Mo. App. 672; Chambers v. Borough, 140 Pa. St. 510; Meyer v. City, 52 Iowa, 560; Chwrch v. Milwaukee, 31 Wis. 512; Coal Company v. Chicago, 26 Fed. Rep. 415; Smith v. Floyd Co., 85 Gra. 420; City Cotmcil v. Maddox, 89 Ala. 181; Chicago v. Taylor, 125 U. S. 169; Depuis v. Railroad, 115 111. 99; Harwood v. Bloomington, 124 111. 50; Railroad v. Matthews, 34 Cent. Law J. (Ala.) 158; Denver v. Bayer, 7 Col. 127.</p> <p>(1) The appellant complains that the respondent has pursued the wrong remedy in this case, and that he should have resorted to the appointment of commissioners to assess his damages, under the provisions of the act of 1885. A sufficient answer to this is, that the defendant has waived any right to abate this suit by answering to the merits and going to trial thereon. The act of the legislature referred to applies only to the remedy, and does not affect the jurisdiction of the court over the subject-matter of the suit or the person of the defendant, and is a mere matter of abatement, which is waived, if not pleaded. Grove v. City of Kansas, 75 Mo. 674; Flfranh v. Seiler, 54 Mo. 136; Russell v. Ins. Co., 55 Mo. 593, 594; Ganse v. Clarksville, 1 Fed. Rep. 359; Sheppard v. Graves, 14 Howard (U. S.), 509; Society v. Pawlet, 4 Peters, 501. (2) The proper measure of damages in this case is stated in instructions numbers 1 and 3, given by the court on behalf of the plaintiff. Bridge Co. v. Ring, 58 Mo. 491; Springfield v. Schmook, 68 Mo. 395; Railroad v. Richardson, 45 Mo. 466; Sheehy v. Railroad, 94 Mo. 574-579; Railroad v. Ridge, 57 Mo. 600; Railroad v. Waldo, 70 Mo. 629; Lee v. Railroad, 53 Mo. 179; Railroad v. Ghrystal, 25 Mo. 544; Newby v. Platte Go., 25 Mo. 275, 276; Taylor v. Railroad, 38 Mo. App. 671. (3) Damages may be claimed for the grading of a street to the first established grade. Werth v. Spring-field, 78 Mo. 110; Smith v. Railroad, 98 Mo. 20. Instruction number 5 given for respondent and number 6 given for appellant are not inconsistent. Besides, instruction number 6 is not supported by the evidence.</p>

— Hon. J. H. Sloven, Judge. (1) The admitted allegation of plaintiff’s petition shows the incorporation of defendant bank under the laws of the state, with a capital stock of $50,000; defendant’s amended answer shows an illegal loan, to wit, $13,062.81, for which the stock was pledged as collateral. B. S. 1889, chap. 42, art. 7, sec. 2758. (2) Illegal acts can not be made the subject-matter of a defense to an action at law.

— Hon. J. W. Henry, Judge. (1) The jurisdiction of inferior tribunals must appear on the face of the record, and the same rule holds as to courts of general jurisdiction when in the exercise of statutory powers.

— Hon. B. E. Tubneb, Judge. (1) “The deed from a husband to a wife or from the latter to the former, is null in law, this arising from their being regarded as one person.” Turner v. Shaw, 96 Mo. 22. (2) It is clear here that the legal title is in defendants; it is only claimed the wife has the equity conferred on her by her husband’s deed made pending defendant’s judgment lien. Equitable title will not sustain ejectment while the legal title is outstanding. Guyolv.

<p>1. Appellate Practice: writ or error : married woman. A married woman can not sue out a writ of error more than three years after the rendition of the judgment.</p> <p>2. Statute, Construction of: exception. An exception of a class expressly mentioned in a statute can not be enlarged by the courts.</p>

<p>Appeal from Jackson Circuit Court. — Hon. J.H. Slover, Judge.</p>

— Hon. J. H. Sloyer, Judge. (1) The court erred in overruling defendant’s motion to quash the panel of jurors because there had been no… Held: “The right of the owner of a lot in a town to the use of the adjoining street is as much property as the lot itself.” Williams v. Co., 21 Mo. 539; Co. v. Renfro, 58 Mo. 265; Tate v. Railroad, 64 Mo. 149; Stanley v. City, 19 L. R. A. 11; Denver v. Boyer, 23 L. R. A. 440; Householder v. Kansas City, 83 Mo. 488, and the Illinois cases…

— Hon. Joseph Ckavens, Judge. Action by collector to recover certain personal taxes for tbe year 1889, which were assessed against the defendant bank by name. A statement or tax list, duly verified under oath, setting out the kind and value of the bank’s property, etc., by H. E. Jones as president, had been returned by him in behalf of the bank to the assessor of the county for assessment.

— Hon. C. H. S. Goodman, Judge. (1) Under the evidence in the case there never has been a foreclosure of this deed of trust from Cummings and wife to Glazier as trustee for defendant Owen, in proof. The rule is well recognized in this state that sales made by trustees under the naked power contained in deeds of trust must be made in strict compliance with the terms and conditions contained in the deed of trust or they are void.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1)The circuit court erred in excluding competent, relevant and material testimony offered by defendant. (2) The measure of damages in a case where access to a highway has been cut off is the difference in the market value of’the land before and after such cut off.

— Hon. R. H. Field, Judge. (1) The testimony was uncontradicted that the appellant sold these notes as the agent of the First National Bank of Fairmont, Nebraska, and that the respondents knew this at the time they purchased the notes. The jury, ’ therefore, should have been instructed to find for appellant. Ziegler v. Fallon, 28 Mo. App. 295; Hartsellv. Crumb, 90 Mo. 630; Klosterman v. Tobler, 58 Mo. 290; Mechem on Agency, secs. 555, 929; 1 Am. and Eng.

— Hon. R. H. Field, Judge. (1) The petition filed by Boland against his partner, Eoss, states no ground for equitable relief against the attaching creditors or mortgagee. (2) Nor could there be a cross bill against a codefendant, as the matter pleaded is not germane to that in the original bill. 2 Daniell’s Oh. PL andPr., pp. 1647 and 1649, and notes.

— Hon. Richard Field, Judge, v (1) The city of Sedalia, being a body politic, with capacity to contract, may, within the sphere- and in the execution of its appropriate powers, take bonds and securities which are not prohibited, though not prescribed expressly in the legislative grant. Such bonds and contracts, when taken for a lawful purpose, and upon good consideration, are valid. 1' R. S. 1889, secs. 1494-1499; 1 Dillon’sMun.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Aside from the organization of the church society, Joseph W. Branch had in 1879, or prior thereto, given and donated to the parish the amount of money contributed by him toward the building of the parish church. A gift of money to repair or to build a church is a gift to charitable uses within the meaning of the statute of charitable uses (43 Eliz. ch. 4), and also at common law independently of that statute.

— Hon. C. C. Bland, Judge. (1) An appeal will lie in this cause from the judgment of the court setting aside the original judgment entered In the cause. Act's, 1891, p. 70. (2) The evidence introduced in this cause did not show any fact-which would authorize the judgment to be set aside as to the purchasers of the land, and judgment should have been rendered affirmatively as to such purchasers. Jones v. Driskill, 94 Mo. 191; Schmidt v. Niemeyer, 100 Mo. 207.

— Hon. Richard Field, Judge. (1) “The rule that the proof of contradictory statements goes to the credibility of the witness does not extend so far as to introduce previous expressed opinions of the witness.” 1 Thompson on Trials, sec. 493. Such evidence is hearsay and immaterial. Harper v. Railroad, 47 Mo. 567; Bank v. Overall, 16 Mo.App. 510; Cable v. McDaniel, 33 Mo. 363; Dunn v. Altmcm, 50 Mo. App. 231; Holmes v. Anderson, 18 Barb. 420.

— Hon. E. M. Hughes, Judge. Under the pleading and evidence in this caiise plaintiff made out against defendant a clear case of negligence, and the case should have been submitted to the jury. The instruction asked for by the defendant, and given at its instance by the court, taking the case from the jury, was, we think, manifestly erroneous, and we ask a careful consideration of this error.

— Hon. James G-ibson, Judge. (1) Undue influence can not be inferred because the testatrix was old and feeble in mind and body nor because she made an unreasonable will. M.acldox v. Maddox, 21 S. W. Rep. 502; Myers v. Hauger, 98 Mo. 438; Eckert v. Flowry, 43 Pa. St. 52.

Louis City Circuit Cowrt. — Hon. L. B. Valliant, Judge. (1) Plaintiff’s remedy is the statutory action to quiet title. (2) Even if under the facts of this case the plaintiff might bring the suit in equity to remove a cloud from its title such remedy does not exclude the right to exercise the remedy afforded by the statute to quiet title.

— Hon. D. P. Stratton, Judge. (1) The first declaration of law asked for by the plaintiff should have been given; the court had and acquired no power or jurisdiction in the tax proceedings, under Avhich the defendants hold, except by the order of publication, and that only notified the defendants in such tax proceedings of the petition then on file, and when the amended petition was filed it superseded the one of which they had notice and the court could not proceed further…

<p>Appel] ate Practice: abstract op record : dismissal op writ op error. A statement by the plaintiff in error merely giving an abstract of the evidence offered at the trial is not a compliance with supreme court rules 12 and 13 relating to the preparation of abstracts of the record and the writ of error will in such case be dismissed on motion of the defendant in error.</p>

— Hon. R. H. Field, Judge. (1) The instrument before the court, when read between its four corners, is a voluntary assignment. If there were any doubt, caused by the fact that defendants have attempted by inserting a sham “defeasance” clause, to create an ambiguity as to its meaning, then when it is read in the light of surrounding circumstances, it is an assignment.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The court erred in overruling the motion to suppress the Smoot deposition; section 4435, Revised Statutes, 1889, requires a dedimus. See Seymowr v. Farrell, 51 Mo. 95. (2) The trial court also erred in admitting the two volumes as evidence of the laws of Virginia. State v. Williamson, 57 Mo. 199.

Louis City Circuit Court. — Hon. D. D. Fisheb, Judge. (1) The purchase by William Moran of ten shares of stock from John Moran on December 21, 1881, for five thousand dollars is fully established. (2) The testimony and suggestions brought forward to show that the original transaction and purchase by William was unreal and fictitious, are insufficient and in the presence of all the circumstances utterly fail to taint that transaction even with suspicion.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) It was error for the lower court to give the instruction asked by the defendant at the close of plaintiff’s evidence, to the effect that upon the pleadings and the evidence the plaintiff could not recover. Greenwald v. Kappas, 31 Ind.216; Allen v. Co., 11 Pa. Co. Ct. 231; Nalle v. Paggi, 81 Tex. 201; McEwen v. Nelson, 40 111.

Appeal .from Clinton Circuit Court. — Hon. J. M. Sandusky, Judge. (1) The statement sued on does not allege any promise to pay interest-, or that the claim was due, or had been demanded; nor was any promise to pay interest really proved. The statute, section 5972, provides when interest shall be allowed; and the petition or statement, even in the probate court, should show how the debt earned interest.

— Hon. R. H. Field, Judge. (1) The plaintiff’s agency was not for a definite period, nor coupled with an interest. Therefore, the defendant had the power to terminate it at will. State ex rel. v. Walker, 88 Mo. 279;- Missouri v. Walker, 125 U. S. 339; Sewing Machine Co. v. Fioing, 141 U. S. 635; Mechem on Agency, secs. 204, 207, 209, 614; Payne v. Go., 13 Lea, 507.

<p>Appeal from Andrew Circuit Court. — IIoit. C. A. Anthony, Judgo.</p> <p>(1) Plaintiffs’ motion to strike out defendants’ answer should have been sustained. Schenck v. Stump, 6 Mo. App. 381; Mueller v. Kcessman, 84 Mo. 318; Carpenter v. Carpenter, 45 Ind. 142; Iluth v. Co., 56 Mo. 202; Thomas v. Pullis, 56 Mo. 211; Peterson v. LaiJc, 24 Mo. 541; Simms v. Kverhardt, 102 U. S. 312; Wells v. Seixas, 24 Fed. Rep. (N. Y.) 82; 1 Pars, on Cont. 317; 2 Kent’s Com. [12 Eel.], 241; Keenv. Coleman, 39 Penn. 299; Price v. Jennings, 62 Inch 111; Wirland v. Kobick, 110 111. 16; Baker v. Stone, 136 Mass. 405; Conracl v. Lane, 23 Minn. 339; Youse v. Nor cum, 12 Mo. 550. (2) The mortgage from Lacy to Grubb -should not have been introduced. (3) Plaintiffs’ first, second and sixth instructions should havo been given. (4) The instruction given by the court of its own motion did not embody tho law, and should not have been given. Swager v. Lehman, 63 Wis. 399; Bartlett v. Kauder, 97 Mo. 356; Barrett v. Johannes, 70 Mo. 439; Schenck v. Stump, Q Mo. App. 381; Mueller v. ICcessman, 84 Mo. 318; Buchannan v. Reed, 93 Ind. 1; Carpenter v. Carpenter, 45 Inch 142; Miles v. Lingerman, 24 Ind. 335; Conrad v. Lane, 23 Minn. 389; Herman on Estoppel, see. 1120, 1121, n. 3; Bigelow on Estoppel p. 594. (5) Defendant’s instructions numbers 2 and 3 should not have been given. Carpenter v. Carpenter, 45 Ind. 142; Pitcher v. Lacock, 7 Ind. 398; Miles v. Lingerman, 24 Ind. 385; Briggs v. McCabe, 27 Ind. 327; Chandler v. Simmons, 96 Mass. 508; Cressenger v. Welch, 150-156; Beddinger v. Wharton, 27 Gratt. (Ya.) 857; Oreen v. Green, 69 N. Y. 553; Kurrv. Bell, 44 Mo. 120; Dawson v. Helms, 30 Minn. 107; Eureka Co. v. Edwards, 45 Am. Rep. 314; Gillespie v. Baily, 12 W. Ya. 70; Craig v. Van Bebber, 100 Mo. 584.</p>

Certified from Kansas City Court of Appeals.- (1) When a deposit is made to or with a party in. a special character or capacity, then, when the trust shall have terminated, the delivery should be made to the party for whom, or for whose benefit the deposit may have been made. Story on Bailments [9 Ed.], sec. 109. And this is so, though the deposit may have been made in the name of the party making it. Utley v. Tolfree, 77 Mo. 307.

— Hon. C. C. Bland,. Judge. (1) The law of 1887 (p. 34), was repealed in 1889,. and the law as it stood in 1872 was re-enacted. R. S. 1889, sec. 977, Wag. St-at. (1872) p. 1314. (2) The-action of the county court in striking out names to the petition and in changing the metes and bounds set out therein, invalidated the incorporation. 131 Pa. St. 368.

Louis City Circidt Court. — Hon. Daniel Dillon, Judge. (1) The plaintiffs were in peaceable possession of their property at the time of the service of the notice by the defendant, requiring them to move their fences, houses, etc., and this possession raises a presumption of their right to such possession and their title to the property so possessed.

Louis City Circuit Gourt. — Hon. Jacob Klein, Judge. (1) In the construction of a will, the main object is to ascertain the meaning and intention of the testator. In reaching that result, however, the courts are guided by certain well established and well understood rules of interpretation. 4 Kent, star page 537; Shumate v. Bailey, 110 Mo. 411; Chew v. Keller, 100 Mo. 362; Beinders v. Koppelman, 94 Mo. 338.

<p>1. Administrator: notice op letters, publication or. A publication by an administrator of notice of the granting of letters of administration is invalid unless made in the time and manner required by law.</p> <p>2. -: --: -: limitation. Where such publication is not legally made it affords no basis on which to rest the defense of the special statute of limitations.as to demands against the estate.</p> <p>3. -: -: -: pleading. Where the administrator pleads the special statute of limitations he must aver the giving of notice of the grant of letters and make proof of such allegations on the trial.</p> <p>4. Probate Court: judgment. The judgment of allowance in the probate court is as conclusive as the judgment of any other court and can not be opened on any ground except such as would equally apply to the judgments of other courts.</p>

Louis City Circuit Court. Under the terms of the act of March 31, 1883, appellant is entitled to the compensation sued for in this case. No construction should be given to the act which will exclude the principal deputy from its beneficial operation and no discrimination should be made between deputies. The plaintiff has no valid claim against the city for the extra compensation sued for. He receives an annual salary.

— Hon. T. H. Bacon, Judge. (1) The court erred in excluding the deed of trust of the acting trustee.

Mandamus. (1) The following states have ruled through their supreme courts that the governor is amenable to mandamus as to a mere ministerial duty: Alabama, California, Colorado, Indiana, Louisiana, Maryland, Montana, Nevada, North Carolina and Ohio; eleven in number.

<p>1. Municipal Corporation: defective alley: evidence. In an action against a city and contractor for injuries received from falling into an unprotected excavation in an alley, it is competent for plaintiff’s -witness, in the absence of evidence showing that any one but plaintiff had fallen into the ditch, to testify that such witness had visited the place the next morning after the accident and saw marks indicating that plaintiff had fallen into the excavation as claimed by him.</p> <p>2. -: -: personal injuries: instruction. An instruction that if‘the excavation “mentioned in plaintiff’s petition” was made hy defendant contractor by permission of the city and was made in the alley “in the petition t mentioned” and negligently left unprotected and that plaintiff without fault fell into it and was injured, the jury should find for the plaintiff, is not open to the objection that it refers the jury to the petition to ascertain the issues • where the existence of the excavation was conceded.</p> <p>3. -: -: -: --Nor is such instruction objectionable on the ground that it fails to leave the question of negligence to the jury.</p> <p>4. Practice: personal injuries: instruction: measure of damages. An instruction on the. measure of damages held to have a sufficient basis in the avermonts of the petition.</p> <p>5. —:-: willful false swearing: instruction. Where the evidence is irreconcilable it is proper to instruct the jury that if they believe that any witness has knowingly sworn falsely to any material fact, they may discredit his entire testimony.</p> <p>6. --: PERSONAL INJURIES: DEFECTIVE ALLEY: INSTRUCTION. Where the court instructed that the jury must find that plaintiff fell into the excavation in the alley to entitle him to recover, it rightly refused to instruct that if he fell in an excavation on private property the city is not liable.</p>

Loins City Circuit Court. — Hon. Daniel Dillon, Judge. (1) It is a matter resting in tho sound discretion of the court to grant or refuse a decree for a specific performance of a contract, and it will always be denied where it would be harsh, oppressive or inequitable under all the circumstances to grant it. Taylor v. Williams, 45 Mo. 80; Southworth v. Hopkins, 11 Mo. 331; Yerth v. Cierth, 92 Mo. 97; Willarcl v. Tayloe, 75 U. S. 557; McElroy v. Maxwell, 101 Mo. 294.

Louis City Circuit Cou/rt. — Hon. L. B. Yalliant, Judge. (1) The instruction for a nonsuit should have been given. Courts will not inquire whether the grade adopted is the best one, or whether one causing less damage would not equally have answered the purpose intended. Roberts v. Chicago, 26 111. 249; Snyder v. Rochport, 6 Ind. 237; Reynolds v.- Shreveport, 13 La. Arm. 426. (2) The court erred in giving erroneous and conflicting instructions.

— Hon. B. E. Turner, Judge. This proceeding, in the nature of a creditor’s bill, was instituted in the Lewis circuit court on the twenty-ninth of July, 1890, having for its object the setting aside of a certain deed executed on the sixteenth day of September, 1880, to Dorothy, wife of Zebulon T. Knight, which deed conveyed to Dorothy lots 1, 2 and 3, in block 2, in Green & Hawkins’ addition to the town of Canton, for the sum of $250, the amount bid by her at a sale of those…

<p>1. Criminal Practice: change of venue . An order of court granting a change of venue to the circuit court of another county is essential to give the latter court jurisdiction; the mere stipulation of the parties is insufficient.</p> <p>2. -: -. The record in this case held to show that the order granting the change of venue was properly made.</p> <p>3. Criminal Law: insolvent bank: receiving deposits. The owner of a private bank is liable under Revised Statutes, 1879, section 1350, as amended by the act of 1887 (Laws, p. 1G2), for receiving deposits, knowing the bank to be insolvent, though he was doing an authorized business, because of his not having complied with the statutory requirements in relation to the organization of his bank. {State v. Buck, 108 Mo. 622, affirmed.)</p> <p>4. -: -: prima facie evidence: constitution. Section 3581, Revised Statutes, 1889, making it a criminal offense for an officer of a bank to receive a deposit knowing the bank to be insolvent and providing that the subsequent failure of the bank shall be 2mma faeie evidence of such knowledge, is not violative of article 2, section 28, of the constitution which provides “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.”</p> <p>5. Criminal Practice: felonies: different trials. One under conviction of, and sentenced for, a felony can not be tried for another felony in the same court until he has served his sentence or the judgment has been set aside or reversed.</p>

— James P. Thomas, Esq., Special Judge. (1) The description is 1 ‘the one divided ‘fourth part of,” etc. The lands had not then been divided, and could not have been divided under the fourth clause of the will of James Cargill, until after the death of his widow. On the face of the deed it is impossible to tell which “divided fourth” is meant, and if plaintiff had been permitted to try, and had tried at the trial to locate it, he could not have done so.

— Hon. Andrew Ellison, Judge. Ejectment brought September, 1890, for a strip of land which forms the right of way of the defendant railroad company through the west half of the southeast quarter of section 28, township 61, range 14, in Adair county.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge; (1) Just compensation must be paid to tbe owner; a fair equivalent — a just indemnity for tbe damage tbe owner may sustain by reason of sucb appropriation, in view of tbe uses to wbicb the land may be put. Railroad v. McOreiu, 104 Mo. 282; Railroad v. Porter, 112 Mo. 368; Bridge Co. v. Schaubacher, 57 Mo. 582; Lewis on Eminent Domain, sec. 479.

<p>1. Constitution: sale op decedent’s land: special legislation. Aets of the legislature, passed prior to the constitution of 1865, authorizing guardians, administrators and similar trustees to make sales and conveyances of land held for their beneficiaries were constitutional.</p> <p>2. -: -: -. Nor was it necessary, in the absence of a constitutional inhibition, that thelegislative power should be exercised by means of judicial proceedings.</p> <p>3. -: -: -. The authority of the legislature under such special acts could authorize only the sale of land of persons under disability.</p> <p>4. Will: SALE OP DECEDENT’S LAND: SPECIAL LEGISLATION: CONSTITUTION. A testator gave all his property to his wife and children and further provided that his wife should have control and possession of the same and that if it became necessary to sell property for the purpose of paying debts certain real estate should be sold last, the whole of the property to remain in the possession of the testator’s wife during her widowhood for the support of her and the children. Held, that the widow did not take such a vested interest in the land that a .sale by the executor by authority of a special act of the legislature deprived her of her property without due process of law.</p> <p>5. -: -: -: estoppel. Where such special act was passed at her instance and she 'was under no disability at the time of the sale and conveyance thereunder, neither she nor her heirs can dispute its validity.</p>

— Hon. Jamesi D. Pox, Judge. (1) The subscription of the county to the Cairo and Fulton Railroad Company and the conveyance of lands to satisfy such subscription was not authorized by the law of 1853, February 24, secs. 29, 32. See act of February 23, 1853, and of March 3, 1851, as to purpose of the grant of the lands, and as to manner of disposition. It could not donate’ these lands- to the railroad company without further permission of the legislature.

— Hon. O. M. Spenceb, Judge. (1) While actual fraud was claimed in the petition, none was proved. The findings of the court-below upon this point should be satisfactory. (2) The-grantees in the deeds were nieces of the grantor, and no relation is shown but that growing out of this kindred relation. Undue influence is never presumed from a relationship which the law sanctions and approves.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. The fraud in this ease consisted in two things: First. The representation that the house plaintiff was buying was “a good business” — a “nice business.” Second.

— Hon, James . G-ibson, Judge. (1) The demurrer to the evidence should have been sustained, and defendant’s instruction 1 should have been given, because the deceased was guilty of contributory negligence. First.

Louis City Circuit -Court. — Hon. D. D. Eisher, Judge. (1) The .court erred in refusing to give the instruction in the nature,of a demurrer to the evidence offered by appellant at the close of respondent’s case in chief, and again at the close of appellant’s case.

— Hon. Gr. D. Burgess, Judge. (1) The first count of the amended petition contained a new, distinct, and entirely different cause of notion from that stated in the original petition, and appellant’s motion to strike it out should have been sustained. Lumpkin v. Collier, 69 Mo. 170; Parker v. Bodes, 79 Mo. 88. (2) The amended petition having been filed on plaintiff’s own motion, and without leave of court, should have been stricken out. R. S. 1889, sec. 2115.

— Hon. C. W. Sloan, Judge. (1) Section 11 of plaintiff’s charter, which provides that the city council shall have power by ordinance to cause the owners or occupiers of lots to pave and repair sidewalks adjacent to the property which they may own or occupy, and, if they fail, the council may cause it to be done and recover the expense thereof by an action of debt, in the name of the corporation, is not in conflict with any provision of the constitution of this state, Cooley…