Volume 34 — Missouri Reports

Louis Land Court. The plaintiff brought her petition for dower in the St. Louis Land Court, September 11, 1858. Her petition stated that she married Martin Thomas, April 15,1820, and lived with him till he died, September 10, 1848; that during the marriage her husband was seized of the land in question. A summons issued on this petition September 13, 1858, and was served September 23, 1858.

Louis Land Court. I. The judgment is clearly not only against the law arising upon the case as stated in the record, but is clearly against the evidence, for that establishes his fiduciary relation as trustee for plaintiff in point of fact; recognizing it, he could not make the purchase. II. The judgment of the court is clearly wrong on.the law separately, on the facts separately, and especially is it wrong putting the law and the facts of the case together.

Louis Cou/rt of Common Pleas. This is an action on a bond of indemnity, executed by Marcus A. Wolff as principal, and Hull as security. The action was instituted against both; but after the evidence was heard, the respondent dismissed as to the principal.

Louis Lmd Court. This was an action of forcible entry and detainer brought by S. C. King to recover the possession of a piece of land on the shore of the river, in St. Louis.

Louis Land Court. Ejectment for lot in Carondelet common fields. Plaintiff claimed title under an assignment to Carondelet schools.

Louis Land Court. I. The doctrine of limitation by time is based upon the idea that when one enters on land, claiming title to it, acquiescence by the real owner for the specified period will make the occupant’s assertion of right in himself good. It is deemed just in the law to give a claim so made and so sustained this respect. It is this claim and pretence of right in the occupant which, by the non-assention of the owner, might mature into a legal possession by the tenant.

Louis Court of Common Pleas. I. As was necessary to constitute it a good or legal petition, plaintiff averred that the killing of her husband was by the carelessness and negligent acts and conduct of appellant’s agents and employees, and without any fault or want of care on the part of her said husband. Both of these allegations are put in issue, and both of them must be established by respondent to entitle her to a recovery.

Louis Court of Common Pleas. The following instructions, asked for by appellants, were given: 1.

Louis Law Commissioner’s Court. The declaration of law by the Law Commissioner implies ' either that no liability exists on the part of respondents, unless there were a contract with appellant; or if there be such liability, they are exonerated therefrom by having been engaged or hired by Birch & Cooper. Was any contract with appellant necessary to make respondents liable for damages occasioned by them ?

<p>Practice, criminal. — Where a larceny of several articles of property is charged, the State may elect to prosecute for some and not for all.</p> <p>Practice, criminal. — Proof at the trial of the stealing of a gelding -will support an indictment for the larceny of a horse.</p>

Louis Land Court. At the time of the trial of this cause in the court below, this question had never been decided in this court under our present lien law. A similar case arose, however, under the local lien law of 1843 and the general act of 1845, and is reported in 25 Mo. 559. That case was relied upon by respondents’ counsel in the court below as a precedent for this.

<p>Jury. — Foster y. Kirby, 31 Mo. 196; and Vaughan v. Scade, 30 Mo. 600, affirmed.</p>

<p> Appeal from St. Louis Law Commissioner’s Court. </p>

Louis Circuit Court. An attachment was sued out in the St. Louis Circuit Court by Bratenahl et al. against Grimes, and certain property levied on; this having been separately claimed by John Young, the relator, and by Carnot F. Eenton, the sheriff took one bond — that now sued upon at the relation of John Young, one of the claimants — and returned the same into court.

Louis Law Commissioner’s Court. A servant employed by the year, at fixed wages, cannot recover anything for his wages if he quits without cause before the expiration of the year. (Schnerr v. Lemp, 19 Mo. 40; Posey v. Garth, 7 Mo. 94 ; Littell v. Mercer, 9 Mo. 218; Dickson v. Caldwell, 26 Mo. 60.)

<p>Attachment — Fraud.—The effects of a debtor will be subject to attachment if he convey or conceal, or if he be about to conceal or convey any part of his property with fraudulent intent to hinder or delay his creditors.</p>

Louis Court of Common Pleas. Richard F. Barret executed to Robert 'Pitzer the following promissory note, to-wit: “$1,833 AV Montgomery Co., Mo., Sept., 1855. On or before the first day of September, 1858, I promise to pay Robert Pitzer eighteen hundred and thirty-three dollars and thirty-three cents, with interest thereon till paid, for value received.

Louis Criminal Cowri. The defendants, Goetz and Martin, were indicted for stealing some lockets and breastpins from Eugene J accard, in the store of said Jaccard, on Fourth street, in the city of St. Louis. I. The court erred in permitting the circuit attorney to prove that a gold chain was found on the person of the husband of the defendant Goetz, and that she confessed she put it into his pocket.

<p>Practice — Misnomer.—The misnomer of the defendant does not avoid the process if he he served, and the defendant cannot in any collateral action take advantage of the error.</p> <p>Attachment — Sheriff.—The act of 1855, concerning the duties of marshal and sheriff in St. Louis county, (Acts 1855, p. 464, § 1,) only provides for claims to be filed by parties other than the defendant.</p>

<p> Appeal from, St. Louis Circuit Court. </p>

Louis Law Commissioner’s Court. This was a suit brought before a justice against Watson, a constable, and. his securities, for failing to return an execution placed in his hands within the time prescribed by law. The justice, having rendered his judgment in favor of the plaintiff, William B. Watson, one of the defendants, made his affidavit for an appeal.

Louis Common Pleas Cou/rt. The fourth instruction given for the plaintiffs was as follows: “ The fact that plaintiffs gave instructions to defendants to sell the flour after it had been sold, not knowing it had been sold, will not justify a previous sale made without instructions, and contrary to plaintiffs’ orders, nor constitute any defence against such previous sale made contrary to plaintiffs’ orders.”

Louis Circuit Court. This suit is the same as heretofore decided in this court, and-reported in 27 Mo. 487. Dugdale contracted with .the Olive-street Plank Road Company to build certain sections of the work. Dugdale after-wards by contract, under seal with M. O’Leary and J. B. Neenan, sub-let to them sections eighteen and nineteen, to be completed in conformity with his contract with the company.

<p> Error to St. Louis Land Court. </p>

Louis Land Court. John Lee Jesse G. Lindell died, and his executrix took an assignment of said note from Thornton’s executor, and filed her petition to foreclose the mortgage. The court held that the debt was the debt of Jesse G. Lindell as well as Elliot Lee, and therefore that the debt was satisfied by the assignment, and that plaintiff could not foreclose. Plaintiff took a nonsuit, with leave to move to set the same aside.

Louis Land Court. This was a suit to enforce a mechanic’s lien for balance due under a contract between plaintiff and James George, one of the defendants, to bxxilcl certain houses upon the property of John G. Priest and Ringrose J. Watson. At the time of the institution of the suit, Watson had been declared insane, and Johnston had been appointed his guardian. The writ was served upon George, Priest, Watson, and Johnston.

Louis Law Commissioner’s Court. This suit was brought to recover ninety-nine dollars and twenty cents, amount of freight on four hundred and twenty-five bundles of sheet iron from Cincinnati to St. Louis.

Louis Circuit Court. Plaintiffs brought their suit as partners, alleging that on the 15th of May, 1854, they sold to defendant Reilly three-sixteenths of the steamer Michigan, and that Reilly agreed to indemnify them against the debts and liabilities of the boat, and that said Lockwood and the other defendants on that day entered into the following agreement with plaintiffs: “ Whereas, W. L. Ewing & Co., of the city of St. Louis, have this day sold to the undersigned R. A.…

I. The act chartering the banks with branches made by the General Assembly in said act of 1856-7, p. 14, is unconstitutional as far as the Farmers’ Bank and its branches are concerned, as each branch exercises all the powers of a separate bank as far as all banking privileges are concerned. (Acts 1856-7 ; Const. Amend, id. p. 6.) II. The charters of the banks are forfeited upon their failing and refusing to redeem their issues in gold or silver for ten days after demand.

Cooper Cireuit Court. I. In this case, the manifest intention of the parties was to secure McKee in the command of the boat from any interference on the part of the other owners, who held a majority in interest and could at any time legally oust him from such command. It was to guard against the consequences of the exercise of this legal right that the covenant in question was made. I. The court did not err in sustaining the defendant’s demurrer.

I. The railroad is not required by its charter, or any law of this State, to build fences on the sides of the track, except where the same passes through enclosed fields. (E. C. 1855, p. 437, § 52.) And “ where there is no law, there is no transgression.” II. So far as the damage act'(R. C. 1855, p. 649, § 5) may affect other cases, it has no application to this case.

I. It is a settled doctrine of equity, that where the vendor has conveyed the legal title of land to the vendee, and takes the note of the vendee with the surety of a third party for the purchase money, the lien is discharged by taking such security. (2 Sto. Eq. 590, n. 27, 7th ed. and authorities thereunder; 4 Kent’s Com. 151-153, 3d ed. ; 1 White & T. L. C., Am. ed. 273, and cases there cited ; 1 Mason, 212 ; 4 Wheat. 291; 1 John.

<p> Error to Osage Circuit Court. </p>

<p>Practice — Pleading.—A plaintiff having several causes of action may unite them in one suit, but must state the several causes in separate counts. If several causes of action be combined in one count, the error will be fatal on demurrer, on motion in arrest of judgment.</p>

I. All the evidence offered by defendant below, which was rejected by the court below, was competent and necessary to a just decision of the case, for the following reasons : The defendant assumed that Coates never did really have possession of the premises as against Hopkins, and this testimony would have shown that fact. (Reed v. Bell, 26 Mo. 217.) The continuance of Hopkins’ occupancy is presumed in law, and he had a right to inquire how Coates ousted liis occupancy.

Did the answer present a defence to the cause of action ? As to the note assigned after maturity, we think there can be no doubt under the act.

The petition charged, that on or about the 10th day of July, 1854, Luke P. Stiles, oiie of the defendants, being administrator of Samuel Bowman, deceased, had in his hands as such administrator the sum of $1839.50, which it became his duty, as such administrator, to pay to plaintiff as guardian, &c.; that said Stiles was at the time a member of the firm of Stiles, Burns & Brothers; that while said money was in his hands, at the time aforesaid, the said defeudant’s partners,…

<p>Error to - Circuit Court.</p>

<p> Appeal from Phelps Circuit Court. </p>

I. Defendant’s motion in arrest should have been sustained ; the petition does allege a cause of action. (R. C. 1855, p. 1065, Mechanic’s Lien, § 1 & 6 ; Briggs et al. v. Worrel & Fields, 33 Mo. 157; Heltzell v. Langford et ah, 33 Mo. 396.) II. The court erred in causing an inquiry of damages to be made at the same term in which the interlocutory judgment was rendered. (R. O. 1855, p. 1280, § 10; Hopkins v. McGee, 33 Mo. 312.)

I. That Sliouse was bound to take notice of the regular advertisement made by the marshal under said execution. That if he did not wish a sale, it was his duty to so order the marshal not to sell. He cannot thus take advantage of his own laches, especially as against a junior judgment creditor. H. That the levy being made before the return day, the sale was legal and regular at the time of the sale.

This was a suit upon the covenants of a deed made by the defendants to the plaintiff. The deed described seven tracts of land containing in gross 663 TVV acres, and the consideration set forth was the gross sum of $8,289.75. There were two counts to the petition.

jError to St. Charles Circuit Court. The North Missouri Railroad Company, plaintiff in error, presented a demand of five hundred dollars, in the Probate Court of St. Charles county, on the 11th day of October, 1856, for allowance against the estate of James Green; Robert H. Parks, defendant in error, being the administrator.

The defendant in error filed the following petition in the Macon Circuit Court: Plaintiff states that heretofore, to wit, on or about the 1st day of September, 1858, at the county aforesaid, the defendants were partners, under the name and style of John Duff & Co., and were then and there doing business under the name and style aforesaid, in the grading, bridging and laying the ties and rails of a railroad from the city of Hannibal to the city of St. Joseph, in the State of…

Charles Circuit Court. I. The written assignment of the judgment by Fowler and Rogers to plaintiff was valid, and sufficient to authorize plaintiff to sue thereupon. It is not affected by the statute of this State, R. O. 1855, p. 907, § 38. That statute was first enacted Dec. 1,1855 ; the assignment bears date Oct. 27, 1848. Nor is it affected by the statute of Maryland.

<p> Error to Marion Circuit Court. </p>

Louis Land Court. I. Brannock Jones was not a necessary party to the suit, having made a full assignment to plaintiff. II. Held: that, under the 13th s. d. of § 1 of the attachment act, no one can maintain an attachment except the vendor of the goods.

<p> Error to Land Court. </p>

Louis Court of Common Pleas. Appellants submit the following points: I. The value of the property wrongfully taken from Watson by the writ of replevin is fixed by respondents’ petition, affidavit and bond, so as to be conclusive upon them. II. The verdict and judgment in the replevin suit show that Hohenthal was a mere wrongdoer, so far as relates to these goods. He had no title to them; he got $442 worth of goods, and ought to pay for them. III.

<p>Judgment — Justices’ Courts. — Where a justice of the peace has jurisdiction of the parties and subject matter, and renders a judgment, the law presumes all the prerequisites necessary to the validity of the judgment. The errors of the justice must he corrected by a direct proceeding for that purpose, and cannot be set up in any collateral action.</p> <p>Execution — Sale—Notice.—The purchaser of personal property at a sale by a constable under execution, need only show a valid execution and a sale under it. Whether the constable gave the requisite notice of sale or not, will not affect the purchaser’s title.</p>

Louis Court of Common Pleas. The plaintiffs, in their petition, stated: that they executed to defendant a lease of certain premises on the 10th day of January, 1859; that in the spring of 1857 the plaintiffs recovered judgment, in ejectment, against the defendant and one Elizabeth Hovis, in two suits, commenced by them, said Public Schools; that execution was issued upon said judgments, and the plaintiffs were put into possession of the said premises, in said lease…

<p>Ejectment — Judgment.—In ejectment, a judgment for the recovery of land, to which the plaintiff did not show himself entitled, is erroneous.</p>

jError to Marion Circuit Court. McFarland sued Carver upon promissory notes, and for the foreclosure of a mortgage given to secure them. On the 24th day of October, 1856, McFarland sold to Carver the lands mentioned in the petition for $7,000; Carver paid $5,000 cash, and gave his two notes, of $1,000 each, for the balance.

<p>Practice, Criminal — Instructions—Doubt.—All that is required of the court is, that, in a suitable case for such an instruction, it should instruct the jury, that if upon the whole case they have a reasonable doubt of the guilt of the accused, they'should acquit him. (State v. Dunn, 18 Mo. 419, P. 4, affirmed.)</p>

<p>Partnership, — Evans v. Gibson, 29 Mo. 223, affirmed.</p>

The verdict and judgment were entered as follows: Now at this day come the parties by their respective attorneys, and this cause coming on to be heard, the issue herein joined is submitted to the jury, twelve good and lawful men, legally elected, tried and sworn; and after hearing the evidence and the arguments adduced in the cause, the jury retire to their room to consider their verdict.

A. R. Taylor obtained an allowance in the Jefferson County Court against the estate of James Hunt, deceased, in the 7th class, on the 2d day of April, 1861, for $116.48, and afterwards, on the 10th day of October, 1861, obtained an order in the county as follows : “ A. R. Taylor, plaintiff, v. Isaac Hunt, executor of estate of James Hunt, defendant.

<p>Slave — Freedom—Pleading.—A petition filed by one held as a slave, praying leave to sue for his freedom informa pauperis, is an ex parte proceeding,- and cannot he treated as a pleading setting forth a cause of action which entitled the petitioner to a judgment. The petition or declaration must show upon what ground the plaintiff claims his freedom.</p>

This is an action brought by Wright, the holder, against Truesdail, the endorser, of a negotiable promissory note made by one Woolsey. There is no allegation in the petition that payment of the note was demanded at any time, or that Truesdail was ever notified of its non-payment. To cure this, it is charged that Woolsey was insolvent from the maturity of the note, and that a suit against him would have been unavailing. This is no excuse for the want of a demand and notice.

The plaintiff maintains that the demurrer was improperly sustained; that the allegations in said petition constitute a good cause of action, and, if supported by proof, entitled the plaintiff to a divorce. (Hooper v. Hooper, 12 Mo. 354 ; E. C. 1855, p. 663.) I. The demurrer was well taken and properly sustained. The very definition of impotence implies this; impotence may be‘truly defined as such an incurable incapacity as admits of neither copulation or procreation.

<p>Justices’ Courts — Appeals.—Where the maker and endorser of a note are jointly sued, the former may take and file the appeal both for himself and his co-defendant.</p>

The appellant insists on the following points : I. There was no return of the second execution, according to law and the command. There cannot be a return of an execution sufficient for legal purposes, unless the officer returns the execution to the justice, at the return day, with his official return endorsed upon it, and signed by him officially. II. An endorsement upon the execution not signed by Yin yard as constable, did not constitute a return as contemplated by law.

Charles Circuit Court. The court erred : I. In overruling the demurrer of defendants John Denny and Raphael Denny, because the petition does not state facts sufficient to constitute a cause of action in this, it does not show that the slave cannot be reached.

Charles Circuit Court. Savage, defendant in error, sued the plaintiffs in error, John B. Allen and W. H. Conner, before a justice of the peace, on a promissory note for one hundred dollars. The defendant Conner was not served with process, nor was there any appearance entered for him before the justice, or in the Circuit Court, nor was there any dismissal as to Conner in either court, but the judgment of the justice is expressed to to be rendered against defendant Allen.

Charles Probate Court. I. Dower is defined to be, “ the portion which a widow hath of the lands of her husband at his decease for the sustenance of herself and education of her children.” (Toml. Law Die. 578.) The “ child’s part ” is, therefore, nothing more than a measure of quantity.

The facts are sufficiently stated in the opinion. The following instructions prayed by defendant were refused : 1. If the jury believe from the evidence that the stock sued for in this case was not in Harmon Hollyman’s enclosed field at the time said stock was struck and killed, as alleged in plaintiff’s petition, they will find for the defendant. 2.

The petition was as follows : Plaintiff states that defendant is a corporation created by an act of the General Assembly of the State of Missouri, entitled “ An act to incorporate the Hannibal and St. Joseph Eailroad Company,” approved February 16,1847 ; and as such did, on or about the 15th day of April, 1859, in the county of Shelby aforesaid, by their agents, servants, locomotives and railroad cars, negligently and carelessly run over, maim and kill, certain cattle…

The verdict and judgment were as follows: At this day come the said parties, by their respective attorneys, and thereupon came the jury, and, after hearing the instructions from the plaintiff and defendant, then retired to their room to consider of their verdict, and again return herein to court and say, upon their oaths, “ We, of the jury, find that the money in the custody was the plaintiff’s. The jury find that the defendant has not received more than a reasonable…

The instructions given and x’efused were as follows: 1. Fraud cannot be presumed, but must be proven to the satisfaction of the jury. 2. If the jury find for the plaintiff, they ought to assess his damages at the value of said slave at the time of the seizure of the same under the executions, and also allow him interest, as damages on said value, at the rate of six per cent, per annum, from the day of such seizure to this date. 3.

I. Forcible entry upon and trespassing by cutting and moving timber from land, will not support an action of forcible entry and detainer under the statute of this State. (Rowse v. Dean, 9 Mo. 298; Warren v. Ritter, 11 Mo. 854; Tipton v. Swayne, 4 Mo. 98.) The remedy for the act committed by Cowan, supposing the right and title to the land to have been in Bell, was trespass quare clausum fregit. II.

Charles Circuit Court. I. If the warranty is broken as soon as made, as seems very clear, for there was nothing done or omitted to be done by the vendor which affected the contract in any way whatever, then the damages must be fixed at the time of the breach, and the vendee cannot, especially when he knows the whole history of the title, and knew of this adverse claim of title, be entitled to expenses incurred by him, by reason of his holding on to the property against the…

This was an action to recover damages against the defendant for obstructing the street in front of the plaintiffs’ lot in the town of St. Charles, by using the same for the purposes' of a railroad, to the exclusion of the plaintiffs from the use of their right of way in the street, and in diminution of the value of their property.

<p>Justices’ Courts — Statement.—An account for goods sold, filed before a justice of the peace, is a sufficient statement of the cause of action.</p> <p>Jurisdiction — Justices’ Courts. — A plaintiff may give jurisdiction to a justice of the peace by entering a voluntary credit upon his cause of action.</p> <p>Judgment — Joint Contractors. — A judgment against two of several joint debtors, is no bar to a suit against the others.</p>

Charles Circuit Court. Plaintiff sued for $140, which he alleged was the amount of his undivided interest in a tract of 140 acres, which he bad sold to defendant. Defendant denied the purchase and sale. At the trial it appeared that George Huffman, Sr., died seized of the land, leaving eleven heirs, among whom were plaintiff, defendant’s wife, George Huffman, Isaac Huffman, and others.

Louis Court of Common Pleas. Defendants in error pleaded the following plea in bar of writ: The defendants come and say, in bar and preclusion of the said writ of error, that the said plaintiffs in error the same ought not to have and maintain, because they say that after the rendition of the judgment in this cause by the St. Louis Court of Common Pleas, and before the impetration of the said writ of error, to-wit, on the 5th day of April, 1858, the said defendants in error…

Louis Circuit Court. This case was before the court, 25 Mo. 182. After it went back to the St. Louis Land Court, the venue was changed to the Circuit Court. The petition set forth a cause of action in the nature of a bill to redeem the mortgages, and also added a count in ejectment against all the defendants.

Louis Land Court. So long as the tenant had any legal interest in the land or tenement under the lease, he could not be dispossessed by this form of action; if the term was to expire at the end of ten years, and the tenant by virtue of the lease was entitled to be paid for his improvements, the landlord could not dispossess him under this form of action unless he first tendered the value of the improvements; so also if a tenant be induced to put up valuable improvements upon…

Ashby held a note of Dorris & Kerr for fTIB.SS; Dorris held the notes of Winston for a larger amount, upon which he brought suit. 'Subsequently he made a written assignment to Ashby of the suit or of so much of the proceeds realized therefrom as should be sufficient to pay his note to Ashby ; of this assignment Winston had notice.

<p>Depositions. — The witness may signify his assent to his testimony as written, by subscribing his name as well at one place as at another.</p> <p>Depositions — Certificate.—A justice's certificate at the end of a deposition, that the witness was sworn to testify the truth of his knowledge of the matter in controversy in the cause ; that he was examined and his examination was reduced to writing, and subscribed by him in the presence of the justice, at the time and place in the notice annexed mentioned, complies with the statute. (R. C. 1855, p. 656, § 22.)</p>

I. Rives had the right to plead to the petition on or before the sixth day of the term, (Prac. Act, 2 R. C. 1230, § 5,) and the judgment having been rendered against him on the fourth day was irregular and should have been set aside. II. This judgment having been irregular, it was the duty of tlie court to set it aside, although the motion for that purpose was not made until the succeeding term. (Stacker v. Cooper Cir.

I. The City of Booneville has no “jurisdiction over any property, except real and personal property vnthin the city.'1'’ The property to be taxed must have an actual “ situs” within the city. (See 11th sec. of the Charter, Sess. Acts 1889, p. 297.) II. The tax-authorized by the charter is a tax on property, and not a tax on persons. It can only be levied or assessed on specific articles ; that is, such only as have a locality within the city.

I. Under the pleadings to entitle the plaintiff to a verdict, he must show that the property was in bis possession, and tliat rightfully, as against the defendant James. (2 Greenl. Ev. 504, 513; 1st Cliit. PL, 9tli Am. ed., 472; Steph. Plead. 179; 1 Watts, 180; 9 Mo. 256 ; 3 Duer. 684; 6 How., Pa., 307.) II. There were no exceptions taken to the setting aside of the judgment by default.

<p>Partnership — Assignment.—One partner has no power to make a general assignment of the partnership effects for the benefit of the creditors of the firm.</p> <p>Agency — Power—Partnership.—A power of attorney from one partner to his co-partner, giving him authority to manage his individual business, and also to superintend the partnership business, to make such purchases as is usual to keep up the stock, and to renew notes in bank, will not authorize such co-partner to make a general assignment of the partnership property.</p>

I. That the two several acts of the State Legislature, entitled “An act for the relief of persons while doing actual military service for the State,” approved May 15,1861, and “An act to amend an act for the relief of persons while doing actual military service for the State,” approved March 17, 1863 (see Sess, Acts 1861, p. 46; also Sess. Acts 1863, p. 30), “ are not only constitutional but properly pleaded as a bar to the suit.

<p> Appeal from. Kansas City Criminal Court. </p>

<p>Evidence — Privileged Communications. — The communications made by a party to one who generally acted as his attorney, but who, at the time the statements were made, was aeting as attorney for other persons, are not privileged.</p>

<p>Practice. — The Supreme Court will not reverse a judgment for an error which did not injure the plaintiff in error, nor materially affect the merits of the action. (R. C. 1855, p. 1300, § 34.)</p>

I. The written order of Kirkbride to the sheriff, directing him to deliver the property to the defendant in execution, was sufficient to destroy the lien of his execution, and no orders or directions of the said Kirkbride could afterwards affect the rights of plaintiffs in error, or divest them of the lien which attached under and by virtue of their execution on said property. (Wise v. Darby, 9 Mo. 130.) II.

<p> Error to Osage Circuit Court. </p>

<p> ■ Appeal from Laclede Circuit Court. </p>

I. The indictment charges but one specific act, viz., borrowing money and giving a note for the same. This is not dealing. To deal implies a multitude of acts and is a continuing transaction. The indictment is founded on sec. 33, R. C. of 1855, p. 1477. There are two distinct offences prohibited in this section, viz: 1. Buying of, selling to, or receiving from a slave any commodity, without the consent in writing of the master, owner or overseer first had and obtainedand, 2.

<p>Criminal Practice — Indictment—Perjury.—If an indictment for the crime of perjury (R. C. 1855, p. 599, § 1) show that the issue, as to which the defendant testified, was not, as a matter of law, a material issue in the cause, it is defective and is properly quashed.</p>

<p>Instructions all wrong.</p>

<p> Appeal from Greene Circuit Court. </p> <p>I. The answer alleges a good defence to the action — a total failure of the consideration of the note sued on, by reason of the fraudulent representation of one of the heirs, one of the parties interested in said note.</p> <p>Representations are made as to material matters, which the answer charges have no existence whatever; and as to the quality, quantity and value of other material matters, which are likewise false and fraudulent. (Dyer v. Hargraw, 10 Yesey, Jr., 509-; Grant v. Mant, Cooper, 173; Lanice v. Hill, 25 Ala. 558; McPenan v. Taylor, 3 Cranch, 281; Woods v. Hall et al., 1 Dev. Eq. R. 417, 418; Glascock v. Minn, 11 Mo. 655; Homes v. Marshall, 18 Mo. 368; Schwartz v. Dryden, 25 Mo. 572.)</p> <p>The rule caveat emptor has no application, of course, in a case where fraud is committed by the parties interested in the land sold. (Owsly v. Smith, 14 Mo. 155.)</p>

<p>Partnership. — Where there is but one item of account unadjusted between partners, it may be settled in an action at law.</p> <p>Frauds, Statute of. — An agreement between two parties to be partners in a sale of merchandise, need not be in writing.</p>

I. The petition is wholly insufficient to justify such action, inasmuch as the plaintiff did not allege all the facts in his petition necessary to bring defendant within the statute and subject to its penalties. The petition, if good at all, is only good as a common law pleading, and the judgment should have been for single damages only, if for any at all. (Sess.

<p>Security — Discharge.—To discharge the security, there must be such an express or implied agreement between the principal debtor and the creditor, to extend the time of payment, as to prevent the creditor suing at once upon the original obligation.</p>

jError to Callaway Circuit Court. I. The court erred in refusing defendant’s instructions. There was certainly evidence tending to show that the property was delivered and the money paid as a compromise, and if so, the instruction should have been given. II. The court permitted the plaintiff to introduce improper evidence.

I. When there is a future right of enjoyment of personal property, courts of equity will interpose and impart relief upon a bill where there is danger of loss or deterioration, or injury to it in the hands of the party who is entitled to the present possession. The modern practice in such cases is only to require an inventory of the articles, specifying that they belong to the first taker for the particular period only, and afterwards to the person in remainder.

<p>Payments — 'Application.—Payments made by a debtor are to be applied to debts-due at the time of payment, rather than to those not due, unless he otherwise direct.</p>

I. The Circuit Court erred in rendering a final judgment against the plaintiff in error at the October term, 1863, of the Callaway Circuit Court. That judgment ought to have been an interlocutory judgment with a writ of inquiry to the next succeeding term thereafter. The judgment could not be rendered final at tlie October term of the court.

Petition for Mandamus. The 15th Judicial District for the State of Missouri was created by an act of the General Assembly, approved… Held: but provide nothing concerning the term or tenure of the office, nor as to the time when the term shall begin or end; though it is true that as to all those circuits which were in existence at the date of the amendments, the offices of the judges therein were vacated on the same day of the election, and consequently the beginning and…

Louis Circuit Court. This suit was brought to recover of appellant pay for services alleged to have been rendered by respondent, in the matter of transferring stock of appellant in the Pacific Railroad Company to holders of tax certificates. The appellant, in the answer, denied any agreement to compensate respondent, or any legal liability to compensate him for the services alleged to have been rendered.

Louis Land Gowt. This suit was commenced December 15, 1857, and was submitted to the Land Court upon the following facts: “Benjamin J. Yan Court and Alexander Yan Court acquired the lot of ground in the year 1847, by deed dated December 23,1847. On the 30th March, 1858, Alexander Yan Court and wife made a deed to Benjamin J. Yan Court. “On February 11th, 1857, Benj. J. Yan Court made to plaintiff a deed of “ grant, bargain and sale” in the usual form.

Frangois Circuit Court. I. There was no power in the County Court to assign the bond. The County Court, it will be admitted, had no general power of disposition over the bond. Its powers of disposition were such only as- were given by law.

Louis Land Court. This was a petition in the nature of a bill in chancery, to divest Johnson of the legal title of a tract of land alleged to be in him, and to vest the same in plaintiff as equitable owner, and to compel defendant Graham to litigate her title to the same with plaintiff.

Louis Land Court. The plaintiff filed his petition as follows: The plaintiff in -the above entitled cause states, that he is the owner and he is now in possession of the following described real estate, situate in the city and county of St. Louis, to-wit: A lot of ground, one hundred and forty feet on Risley street by eighty-five leet in depth, bounded north by Lombard street, east by self et al., south by Vorester, and west by Risley, in the city and county of St. Louis,…

The distinction between the different actions at law, and actions at law and suits in equity, and the forms of all such actions and suits, had been abolished by the practice act of 1849, under which this suit was brought; and although at common law the action would have been trespass, and subject to all the rules applicable to that form of action, yet under the statute the only inquiry to be made is, whether the plaintiff under the pleadings and evidence is entitled to a…

I. The evidence showed that the entry was under a parol agreement for a written lease for a term of years, which was often demanded by the defendant, and as often refused by the plaintiff. (Anderson v. Prindle, 23 Wend. 616; Tay. Land. & Ten. ^ 60.) I. The contract proven on the trial wás a verbal renting for a term of years; this created a tenancy from year to year and not from month to month. The case at bar is exactly parallel with the case of Kerr v„ Clark, 19 Mo. 132.

<p>Pleading — Note, Negotiable. — A petition against the endorser of a negotiable note mast set oat the facts which in law make the note negotiable. (Jaccard v. Anderson, 32 jilo. 188, affirmed.)</p>

<p>Corporation — By-laws.—A corporation authorized by its charter to make such by-law3 as may be necessary to attain its objects, may also amend and change such by-laws so as to affect the rights of the stockholders under the previous by-law.</p>

Louis Criminal Court. The indictment does not charge the defendant with dealing in the selling of cloths, cassimeres, and vestings; and the court below by instruction excluded from consideration all evidence tending to show the dealing as a merchant by the selling of those commodities.

Louis Court of Common Pleas. Plaintiffs, who were partners as bankers, sued defendants, who were employed in the business of investigating titles to land in St. Louis county, for giving plaintiffs a wrong statement of the number of feet remaining unsold in Kingsbury’s addition to the city of St. Louis, and then owned by the heirs of James W. Kingsbury, deceased.

Louis Circuit Court. By deed of trust dated April 10th, 1857, duly recorded, William Renth and Catharine his wife conveyed to Harvey W. Smith, as trustee of Elijah G-.

<p> Appeal from St. Louis Land Court. </p>

Louis Court of Common Pleas. This action was brought upon a supposed liability of defendants originating out of the following charter party: “ We have this day chartered of A. G. Goddin the steamer Keystone, with her fixtures, tackle, &e., to be run in the Missouri river for the term of one month, for which we hereby obligate ourselves to pay the sum of fifteen hundred dollars; and if we elect to keep her longer, hereby bind and obligate ourselves to keep her for three…

Louis Common Pleas Court. I. Under the allegation of fraud, as set forth in the affidavit, the plaintiff simply introduced as evidence a deed of trust made by defendant. The deed -is not fraudulent on its face. The question was, then, upon extrinsic facts, and was for the jury. The plaintiff asked no instruction on the question of fraud. He, however, brought the matter before the jury by the introduction of the deed.

<p>Practice — Verdict.—Where the jury have passed upon a question of fact, the Supreme Court will not review the evidence for the purpose of determining in whose favor it preponderates.</p>

<p> Appeal from St. Louis Land Court. </p>

<p>Practice — Instructions.—An instruction should apply the proposition of law to the facts of the particular case.</p> <p>Practice — Instructions.—An instruction should not take from the jury the determination of the facts.</p>

<p> Appeal from St. Louis Circuit Court. </p>

<p>Practice — Bill of Exceptions —The bill of exceptions must set out the evidence as given at the trial, not the mere abbreviated notes or memoranda of the judge.</p>

<p> Appeal from St. Louis Circuit Court. </p>

<p>Trespass — Damages.—-Where the defendant’s horse and wagon by the carelessness and negligence of defendant’s servant, and without any fault of the plaintiff, ran against and injured the horse of the plaintiff, standing in the street, the defendant will be liable to the plaintiff for the damage done. The measure of damage in such case will be the expenses of curing the horse of his injuries, the value of his services while being cured, and the difference between the value of the horse before the injury and after the cure.</p>

<p> Appeal from Law Commissioner’s Court. </p>

<p> Appeal from St. Louis Land Court. </p>

<p>Practice — Depositions—Rules.—Courts may adopt auy rules of practice not in conflict with the law. There is no error in refusing to entertain formal objections to depositions, exceptions not having been filed within the time limited by rule of court.</p>

<p>Practice — New Trial. — The motion for new trial upon the ground of newly discovered evidence, must be supported by affidavits.</p>

<p> Appeal from Lavo Commissioner’s Court. </p>

<p>Accord — Evidence.—Where parties have, under the advice of a friend, come to a settlement of their demands, evidence that he was mistaken as to some of the facts is immaterial, it not appearing that the parties themselves were mistaken as to any fact at the time of the settlement.</p>

<p> Error to Law Commissioner’& Cowrt. </p>

<p>Criminal Practice — Evidence.—Upon the trial of a defendant for larceny, the fact that part of the stolen property was found upon the person of one who was engaged in a common design, aiding and abetting the defendant, is competent evidence.</p>

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. The first and third instructions given for the plaintiff, give the force of law to the notions set forth in the petition, to-wit, that surviving partners, after the death of a co-partner, can renew the notes of the old firm and make such renewed note binding on the estate of the deceased partner. This idea, so absurd in law, is elaborated in the petition and sustained by the court in its instructions to the jury.

Louis Land Court. I. The court below erred in admitting the deed of Thomas Barnett in evidence against the objections of the defendants. That the deed had been mutilated by erasing the name therefrom of one of the grantees, is apparent from an inspection of the deed itself. That it was so mutilated after its delivery to Orme, is clearly shown by the testimony of Thomas Barnett, the maker of the deed.

<p>Practice — Motion to set aside Default — Affidavit.—In an application to set aside a default and to be permitted to answer on the ground of a meritorious defence, the affidavit in support of the motion must show the exercise of proper diligence, and also set out the nature of the defence, so that the court may judge of the question of merits.</p>

Petition for Mandamus. The petition of the undersigned, P. T. Miller, respectfully showeth unto this honorable court, that since the 28th of August, 1863, he has been and still is the warden of the Penitentiary of the State of Missouri, duly commissioned and qualified, and that liis salary as such warden during said period was and now is two thousand dollars per annum.

Louis Court of Common Pleas. The judgment rendered in the ease in partition was void as to Ware, and he is not therefore estopped by the record or concluded as to his right in equity to claim the proceeds of sale of his share.

Louis Land Court. This is an action for the purpose of enforcing a claim against the separate estate of a married woman. She is a necessary party to such an action. She appears and defends by attorney. According to the decision of Claflin v. Van Wagoner et al.., (82 Mo. 252,) she can only appear and defend by her next friend. The judgment is, therefore, erroneous, in being rendered against a person who is under disability. The answer is not the answer of Mrs. Tooke.

I. The Circuit Court erred in allowing the plaintiff to strike out part of liis petition without reasonable notice to the defendants. (R. C. 1855, p. 1254, § 11, Art. IX.) II. The striking out of one count in the petition was an amendment of said petition, and as such defendants ought to have been allowed to file amended answer. (R. C. 1855, p. 1255, Art. IX, § 15 ; Neidenberger v. Campbell, 11 Mo. 359.) III.

<p>Practice. — Holienthal v. Watson, 28 Mo. 860, affirmed.</p>

Louis Circuit Court. I. The petition in this case does not state facts sufficient to constitute a cause of action. It does not show that the defendants, appellants here, were in any manner connected with the indebtedness of the steamboat, either as owners or otherwise. The instrument sued on is not a specialty and imports no consideration.

Louis Court of Common Pleas. I. This action being to recover a penalty, a quasi criminal proceeding, the statute should be strictly construed.

Louis Circuit Court. Plaintiffs filed their petition in the St. Louis Circuit Court, in which they alleged that their father, Michael Chartrand, died seized of five-twelfths of a tract of land in Carondelet; that as such heirs plaintiffs had each an interest of one-sixth of five-twelfths of said tract, and make the other heirs of their father parties, and other defendants, who, they allege, own the other seven-twelfths of the tract.

Louis Circuit Court. 1. The appellants insist that the arbitrators acted upon and awarded on matters not submitted to them by the bond, upon a fair construction in connection with the facts of the case. .

<p> Petition for Mandamus. </p>

Louis Criminal Court. The decision of the Supreme Court in the case of the State v. Baldwin, 11 Mo., by which the court (sitting as a nisi prius judge) was undoubtedly governed in framing his charge to the jury in this case, and upon which decision the State here principally relies ; as also the decision in the case of Clary v. Clary, 2 Iredell, by which the court in the case of State v. Baldwin seems to have been governed, seem at first view to establish the rule of law…

Charles Circuit Court. I. The court erred in giving the second instruction asked for by the State ; that instruction treats the presumption arising from the possession of stolen property, not satisfactorily accounted for, as a presumption of law, conclusive of guilt, and not as a mere natural presumption of fact, which, like all others of its class, may be repelled by any other facts whatsoever that are naturally inconsistent with the fact to be presumed.

Louis Common Pleas Court. Plaintiffs sued as assignees of John M. Keep, who bad recovered a judgment against the intestate as garnishee of Manchester & Wentworth, in Wisconsin. Defendant pleaded fraud in obtaining the judgment.

<p> Petition for Mandamus. </p> <p>I. It is objected by the respondent that the act of the Legislature, of tlie 5th of February, 1864, gives the Board of Police Commissioners an unlimited authority to make requisitions upon the county; that the whole revenue of the county is thus subjected to their control, and that this being true, the County Court can never know how to provide for the payment of these requisitions, nor what proportion of the county revenue to set apart for that purpose, nor what taxes to levy.</p> <p>Whatever foree there may be in these objections, so far as the constitutionality of the law is concerned, it is very clear that the law does not bear that construction. In the first place, supposing there were no limit to the estimate which the Police Commissioners may make for the expenses of the police foree, as was the case under the act of March 27, 1861, which created the board, except the limit to be inferred from the fact that the law fixes the number of police and the pay which they are to receive, the amendatory act of December 12, 1863, does limit the amount, by declaring, “ the whole of said appropriation for police purposes not to exceed the sum of one hundred and seventy-five thousand dollars.” (Act of Dec. 12, 1863, § 5.) This act provided for the increase of pay and an increase in the number of police officers, but had made no special provision for an appropriation by the City Council for the expenses of the current fiscal year, caused by this increase of pay ; therefore, the second section of, the act of February 5, 1864, authorized the City -Council to make an additional appropriation for such expenses for the year 1864; and when the fiscal year ended, they can act as before, under the law of 1861, and make their regular annual appropriation.</p> <p>The third section then goes on to provide, that the county •of St. Louis shall be chargeable with one-fourth of this expense and the city with three-fourths. There is no change,, either expressly or by implication, in the limit of $175,000-prescribed by the former law; but it is simply provided that, the County Court shall make appropriations to meet that proportion (of one-fourth) out of the county treasury. The number of the police force, their pay, and the aggregate amount which may be demanded by the commissioners, are all limited.</p> <p>II. It is claimed that there is no money in the county treasury which can be legally appropriated out of the county treasury to pay this requisition, because the County Court is required by the general law to estimate the amount of money required for different purposes connected with the affairs of the county, and to raise money by taxation for those purposes ; that the money so raised belongs to those purposes, and cannot be diverted from them.</p> <p>It is not necessary for us to contend, that the Legislature, which regulated by law the mode and amount of taxation that may be levied upon the inhabitants of a county, and also declares the objects to which the money, when raised, may be applied by the County Court, may also change the law both as to the mode and amount, as well as the direction in which the money may be applied. The ground urged in the second cause of the return is, that the money cannot be appropriated, because it has been raised for a different purpose. Now, it is very clear, that no interest under the peculiar protection of the County Court, whether it be the road interest, the educational interest, or any other interest, can have any vested right in any money raised for those purposes, which is beyond the power of the Legislature to control, until there has been an appropriation or setting apart of the money for those particular purposes.</p> <p>A county is a public corporation, and public corporations are created and exist for public political purposes; they constitute parts of the political organizations, and are and ought to be subject to changes, alterations, and in most respects to the control of the supreme legislative power of the State. They may be created or altered with the consent of a bare majority of the inhabitants residing within their limits, or without the consent of any of them, (City of St. Louis v. Thos. Allen, 13 Mo.. 414,) and maybe abolished by the same power without the consent of any of the inhabitants. If any individual, or any number of individuals, have acquired rights in property under the action of a municipal corporation, legitimately exercised, that is a different question; as, for example, if a man has contracted to build a bridge or a county jail, and money has been raised and appropriated for the purpose of paying him, neither the Legislature nor the county, perhaps, could divert that fund to another object.</p> <p>The respondent does not deny that there is money in the county treasury sufficient to pay the amount required, nor is it averred that the money has been appropriated to other purposes; but that there is no money which can be legally appropriated, because the money was raised for other purposes. Now, it may turn out that it is very impolitic, contrary to the public interest, that those purposes should be carried out, or that there is some other purpose more important to which the money may be applied. The consent of the corporation is nothing, because it is a public corporation, and has no consent to give, except in accordance with the will of the State. Chief Justice Story says, in the case of Dartmouth College v. Woodward, 4 Wheaton, 518: “ Public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the public ; they are such as towns, cities, parishes, and counties.” Such corporations can have no property, no interest, which may not be taken away by the effect of legislation.</p> <p>But, even if the money raised by the county has been appropriated to the object specified, and there be no surplus over and above the appropriation, and no contingent fund for county expenditures, which is not at all probable, it is a very easy thing for the County Court to draw a warrant on the county treasury, to be paid out of any money not otherwise appropriated, or out of the fund for the pay of the police for St. Louis, as provided by this law, and then to levy an additional tax to take up such warrants. The county tax is collected annually. The assessor’s books are returnable on or before the first of June of each year, and after those books are corrected and adjusted, the tax is levied which may be needed under the law. The county, by the general law, is authorized to levy a tax, not exceeding three-fifths of one per cent. The present tax is one-fourth of one per cent. The whole amount required of the county by the law, for the payment of the police force, could not exceed the sum of 143,750. By the general revenue law, the County Court of each county, after the tax-book is corrected and adjusted, shall ascertain the sum necessary to be raised for county purposes, and fix the rates of taxation, so as to raise the required sum. (R. C. 1855, § 2, p. 1350; Sess. Acts 1859-60, § 13, p. 521.) This is to be done after the first day of June, in each year, when the assessor’s books are returned. There is no difficulty in anticipating this fund, as is often done by drawing the warrant upon it, to be paid when the tax is collected, even if there should be no money on hand at the time of the requisition, and when the assessor’s books are returned, to levy a tax to pay it. In this case they refuse to issue the warrant.</p> <p>It is said that a special tax cannot be levied without an act of the General Assembly authorizing it. As no money can well be raised by the coun ty except by taxation, which is the general mode provided by law for raising money by a county, except what arises from the proceeds of fines and forfeitures, and as the act of February 5, 1864, requires the money to be paid, it may well be held that act authorizes the county to raise it in the manner provided by law for raising funds for other purposes, and that any supposed instructions in former laws are repealed by this act. But the act of March 14, 1859, (Sess. Acts of 1859, p. 448,) will not bear the construction contended for. The fourth clause of the nineteenth section provides that the “ total of taxes ordered to be assessed and levied by said Board of County Commissioners, for all purposes, general and special, ordinary and extraordinary, shall not be greater than three-fifths of one per cent.” The thirty-first section of the same act provides, “ that whenever a deficiency shall occur in the revenue of the county of St. Louis to meet any necessary expenditures, &c., the Board of County Commissioners (now the County Court) shall make application to the General Assembly to levy a special tax.”</p> <p>It is very clear that a limitation of three-fifths of one per cent, in the amount of taxation that may be levied, is equivalent to a grant of power to levy to the extent of three-fifths, and this extends to all objects of county expenditures, including all purposes, general and special, ordinary and extraordinary. The limitation of power contended for would be inconsistent with this grant and absurd, because it would require the court to ask the Legislature to permit them to do what they are already authorized to do, if it be true that the court has not exhausted the power to levy taxes to the extent of three-fiftlis. To give force and effect to both sections, the thirty-first section must be so construed as to apply to a case in which the board has already levied to the extent of three-fifths.</p> <p>III. The constitutional objections urged against the validity of the act are three-fold:</p> <p>1. That it is retrospective in its operation.</p> <p>2. That it appropriates private property without just compensation.</p> <p>3. That it violates the principles of taxation as laid down in the Constitution.</p> <p>In regard to the first objection, it may be remarked, that a law which neither defeats nor impairs any existing right, can hardly be said to be retrospective in its operation, in the sense contemplated by the Constitution. If a debt is created by the State, without any means being provided for its payment, and the Legislature should afterwards provide for raising the money by taxation, such a law would be equally retrospective in its operation, and yet such legislation would unquestionably be within the power of the Legislature, because instead of violating any existing right, it only imposes a new obligation upon the citizen; and the fact that a debt or obligation had already been incurred by a part of the community, by a corporation, or by an individual, would not change the nature of the case ; on the contrary, it would be the highest duty of the Legislature to equalize burdens as far as possible, whenever the object to be accomplished is for the public good, and that must be determined by the Legislature, and is altogether beyond the province of the judiciary. It would hardly be contended that the Legislature might not lend or give the money or credit of the State to a railroad company, either to relieve it from existing obligations or to aid in its future construction and operation, when such a course may be supposed to be for the public good ; and who is to determine whether the Legislature judged wisely or not ?</p> <p>The other two constitutional objections may be treated of together, for the questions run into each other so that it is difficult to separate them. The great fallacy of the objections consists in the fact that a proper distinction is not made between public municipal corporations and private corporations or individuals. Municipal corporations cannot properly be said to have any vested rights which may not be interfered with by the supreme legislative power of the State ; they are mere agencies of the State, created for the purpose of more conveniently carrying out the objects of State policy, and in the absence of any express constitutional prohibition may be entirely changed, or even legislated out of existence, without the consent of any of the inhabitants composing them.</p> <p>“ Plenaiy power in the Legislature for all purposes of civil government, is the rule; a prohibition to exercise a particular power, is an exception” (15 N. Y. 543, case of the Metropolitan Police Commissioners). “As a political society, the State has an interest in the repression of disorder and the maintenance of peace and security in every locality within its limits ; and if from exceptional causes the public good requires that legislation, either permanent or temporary, be directed towards any particular locality, whether consisting of one county or several counties, it is within the discretion of the Legislature to apply such legislation as in its judgment tlie exigency of the case may require ; and it is the sole judge of the existence of such causes” (id. 544).</p> <p>In the case before the court there are two municipal' corporations, one the county and the other the city; one embraced within the territorial limits of the other ; both created for the public convenience ; both agencies of the State for public purposes, authorized to raise money by taxation; and the money thus raised under the control of the State, to be disposed of as the Legislature may direct. Whatever may be done by either the city or the county, is the act of the Legislature through these agencies. This is the view taken by Judge Leonard in Wells v. The City of Weston, 22 Mo. 889. As a general proposition, he says, the Legislature cannot delegate its legislative power; but it has become a practice to do so in the creation of municipal corporations. “ This authority to tax may undoubtedly be delegated to subordinate agencies, such as county tribunals and municipal corporations, to be assessed and applied locally.” It is absurd, therefore, to treat these “ subordinate' agencies ” as if they had rights and franchises similar to those held by individuals or private corporations. Can any one doubt the power of the Legislature to order by law the removal of the county seat from the city of St. Louis ,to some other point in the county ; the sale of the courthouse and all the public buildings ? If money has been raised by taxation in any particular county, what is to prohibit the Legislature from applying the money so raised to any object which may be thought best for the promotion of the public welfare ? And in the case before the court, it is not pretended that the money required is not now in the county treasury. This is upon the idea that there is no necessity to resort to a special tax to raise the money, and the act of February 5, 1864, says nothing about taxation. If the money is in the county treasury, raised for one purpose, what is to prevent the Legislature from applying it to another purpose ? Why may not money raised' by taxation for road purposes, or for the purposes of building bridges, be applied to school purposes or to quarantine purposes, or to military or police purposes ? The County Court could not so apply it, because their authority is limited ; they are “subordinate agencies ;” but to deny the Legislature this authority is to deny that body the power to legislate for the public good.</p> <p>In the case before the court, the money is in the county treasury; it has been raised by taxation upon the people of the whole county ; the city of St. Louis is within the limits of the county; its inhabitants constitute a portion of the people of the county, and no inconsiderable portion; and it is proposed by the act in question to appropriate a portion of the money thus raised to purposes within that portion of the county which is called the city of St. Louis. Who but the Legislature is to determine whether it is or is not for the benefit of the whole county, for the public benefit ?</p> <p>A company has been incorporated to build a bridge across the Missouri river, at St. Charles — is there any prohibition in the Constitution against the passage of an act authorizing and requiring the county of St. Louis to apply the money raised by taxation for road purposes, or the proceeds of fines and forfeitures which come into the county treasury and are not raised by taxation, to aid in the construction of this bridge ? It is true such an act may indirectly aid the company, but it benefits the public also. (Bank of Borne v. Tillage of Borne, 18 N. T. 48.) Money raised by taxation by a county tribunal, or money which comes into the county treasury from other sources, is not private property in any sense of the term, and an act of the Legislature which merely seeks to divert that property from one purpose and apply it to another is not in violation of that provision of the Constitution which forbids the taking of private property without compensation. It is public property, and may be used by the State for public or private purposes, in its discretion. as has been the practice from the foundation of the State Government. It may be given away in charities, for the relief of the poor and the decrepid ; it may be applied to some great object of general interest. Who is there that can gainsay it ? What individual is there in the county who can say, “ That, or a portion of it, is my money ; I paid it for a particular purpose; and if you undertake to divert it from that purpose, the act is void and the money reverts to me” ? But, suppose the money is not in the county treasury, and the whole of it has to be raised by taxation upon the citizens of the county, what principle of taxation, laid down in the Constitution, does it violate ? It is admitted that “ the Legislature possesses the uncontrolled power of taxation,” limited only by the restriction that “ all property subject to taxation shall be taxed in proportion to its value,” and that this authority may be delegated to subordinate agencies, such as county tribunals and municipal corporations, to be assessed and applied locally.” (Wells v. City of Weston, 22 Mo. 389 ; People v. Mayor, &c., of Brooklyn, 4 N. Y. 426 ; Providence Bank v. Billings & Pittman, 4 Peters, 563 ; McCullough v. Maryland, 4 Wheat. 316.) In the case of Wells v. The City of Weston, it is not denied that the Legislature may exercise the very power denied to said city. It is said, “no instance can be found where these corporations have been clothed with power to tax others not within their local jurisdiction, for their own local purposes ; and if the Legislature possess the power now claimed over private property, they ought to exercise it themselves, and not delegate it to those whose interest it is to abuse it.” So that it is not the power of the Legislature to tax in the particular way complained of, which is put in issue and denied by the court in that case, but the power of the Legislature to create a municipal corporation with that power; the corporation can only be authorized to “ assess and apply the tax locally,” that is, within the territorial limits of the municipality, and that is all that is decided in the case. The same doctrinéis held in the case of the Bank of Rome v. The Village of Rome, 18 N. Y. 43, heretofore referred to ; and so in the case of Morford v. Unger, 8 Iowa, 82. There the Legislature, by act, extended the limits of the city of Muscatine so as to embrace tlie property of the plaintiff, which was agricultural land.</p> <p>This doctrine is not denied, and the reason of the rule is obvious ; the Legislature cannot under the pretence of creating a corporation for one purpose, authorize it to be used for an entirely different purpose, or vest it with powers not within the purview of such a corporation.</p> <p>To say that one particular locality in the county will be more benefited than another, and that the Legislature cannot levy a tax the operation of which will create a disproportion between its benefits and its burdens, is to deny all power of taxation.</p> <p>Our Constitution does not require equality in taxation. In Hamilton and Treat v. St. Louis County, this court holds that the “ idea of equality in taxation is not the prominent idea” conveyed by the clause of the Constitution above referred to, but rather the contrary.</p> <p>And so in the 27th Mo., 499, the court says: “Equality of taxation may be regarded as one of those Utopian visions which neither philosopher nor legislator has ever yet realized.”</p> <p>The taxing power may be abused and often works great injustice, even when exercised by wise and virtuous legislators ; but, as Chief Justice Marshall says in Providence Bank v. Billings and Pittman, “ the interest, justice and wisdom of the representative body, and its relations with its constituents, furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally.”</p> <p>The case of the Mayor and Aldermen of Nashville v. Towns, 5 Sneed, 184, cited by respondent, is clearly not an authority in point. The decision in that case was upon a clause in the Constitution of Tennessee, which reads as follows : “ The General Assembly shall have power to authorize the several counties and incorporated towns in this State to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law.”</p> <p>This was clearly a limitation upon the power of the Legislature, which forbade their passing a law authorizing one municipal corporation to impose taxes for the benefit of another ; and hence the law which authorized and required the portion of the county revenue raised within the city of Nashville to be paid into the city treasury for city purposes was unconstitutional. There is no such clause in our Constitution. In the absence of this clause of the Constitution of the State of Tennessee, the Legislature would have the same unlimited power of taxation which is conceded to the State of Missouri.</p> <p>We claim that all these questions are settled by the comprehensive opinion of Judge Gamble, in the case of Hamilton and Treat v. The County of St. Louis, 15 Mo. In that case the county is required, by the act of the Legislature, to pay the increased salary of the judges. The same objections substantially were raised in that case as in this, to the constitutionality of the act, and the law was held to be constitutional.</p> <p>The court at this time is called upon to determine the constitutionality of the “Act to provide for the payment of the police of the city of St. Louis,” approved February 5, 1864. The particular portion of said act under which the writ in this case was issued, and which the respondent claims is unconstitutional, is the 3d section, and is in these words:</p> <p>“The county of St. Louis shall be chargeable with one-fourth of the whole expense of the police force of said city of St. Louis for the year 1864, and for each year thereafter; and the County Court of said county shall, from time to time, appropriate money out of the county treasury to meet the proportion of said expense; and whenever the said Board of Police Commissioners shall need money to meet the expense of said police force, they shall make requisition upon said county for one-fourth, and upon the said city for three-fourths thereof.”</p> <p>This section of the act has at least one merit; it is clear, concise, unmistakable ia its meaning; there is nothing ambiguous or uncertain about it. It demands that one-fourth of the expenses of the city police, whatever that may happen to be, shall be paid over to the Police Commissioners whenever it may be required by them. The County Court must from time to time make appropriations, and stand prepared with the money in hand ready to meet such requisitions as may be made upon it. So far as the County Court can know, it may be to-day, seven thousand dollars; to-morrow, seventy thousand.</p> <p>The respondent insists,</p> <p>1. That to compel the county without its consent to eon-tribute towards the support of the city police, is the taking of private property without compensation in such sense as comes within the prohibition of the Constitution. It must be conceded, that whether or not the county has now in its treasury such an amount of funds, that the sum at present demanded could be paid without actually embarrassing the county; yet if the drain upon the county treasury is to be kept up as is contemplated in the act in question, the county authorities must eventually, and that at no distant period, resort to special taxation to meet these demands. It then resolves itself into this: The County Court is required by this act to levy and collect from the taxable persons and property in the county, a sum of money, not for county or State purposes, but for the benefit of another, I had almost said a foreign corporation. Both the city and county organizations are instituted as well for the convenient government of the State, as for some supposed advantages to be derived therefrom by those residing within their respective limits. The Legislature may tax the property in the city and county alike for State purposes. It may legally delegate to the county authorities the power to tax all property within the limits of the county for county purposes; and so it may delegate to the city corporation the power to tax all property within the city limits for city purposes, and to this power it is also conceded there is no limit; that is, the Legislature may authorize both the city and county to tax all property within their respective limits, even to the full value of the property itself.</p> <p>But there is a limit to this delegated power of taxation. It may be considered as a settled principle of law, that the Legislature cannot authorize a municipal corporation to tax any property outside of its limits for local purposes. It is true, in the case at bar the act does not in words direct or require the levy of any tax by any one. But the effeet of it is to compel the County Court to levy a tax to raise the money. The mere agency through which the tax is to be levied is of no consequence; this court, in determining the constitutionality of the law, will look only to the source of taxation from which the money is to be derived, and the purpose to which the money is to be applied. This money is to •be collected from the whole body of the county ; it is to be used for the benefit of the eity organization alone. Is it not, then, exactly the same thing in effect and in principle as if the Legislature had undertaken to authorize the city government to levy a tax on all the property within the limits of the county to raise a fund for the support of the city police ? It is immaterial whether it is called a tax, or by some less objectionable name; or whether, as in this case, naming it at all is carefully avoided. It is a tax upon property outside of the city limits, for the benefit of the city organization. It is entirely immaterial to the tax payer who is called upon to pay, whether the tax is levied 'by the city or county. The outrage is equally great, if he is thus compelled to support against his will a corporation in whiela he has no interest, and whose protection he does not enjoy. The same object would have been accomplished had the third section of the act in question been emitted entirely, and the first section been amended by striking out the words “ in said city,” and inserting in lieu thereof the words “in the county of St. Louis.” No one then would have been bold enough to have attempted to enforce sueh a law, and yet it is now sought to accomplish by indirection what it must he conceded could not have been done directly ; that is, to impose the burden of a city government upon those outside of its municipal limits.</p> <p>But if it be said that this is not the exercise of the taxing power, the' same result will follow ; for, as was held in Oheaney v. Hoover, (9 B. Monroe, 330,) it makes no difference in principle under what form the power is confessedly exercised, whether in that of laying or authorizing a tax, or any other form, if the operation of the law is to appropriate to the use of the city the property of individuals not within its local jurisdiction, it must be regarded as coming within the prohibition of the Constitution designed to protect private rights against oppressions however made, ■ and whether under the color of recognized power or not; and this principle is fully recognized and established as the law of this State in the case of Wells v. The City of Weston, (22 Mo. 385,) where it was decided that the Legislature-cannot authorize a municipal corporation to tax, for its own local purposes, lands lying beyond its corporate limits.Judge Leonard, in his learned and able opinion in that case, while conceding to the Legislature the uncontrolled power of taxation, subject only to the constitutional restriction, that “ all property subject to taxation shall be taxed in proportipn to its value,” and conceding also its idght to delegate to subordinate agencies the power of taxation for local purposes, denied that the Legislature could authorize a municipal corporation to impose a tax upon the lands lying beyond its limits; or, in other words, arbitrarily under the mask of a tax, to take annually from those who are without its jurisdiction a certain portion of their property. The case at bar is, if possible, stronger than that of Wells v. The City of Weston. Here, not even the flimsy mask of the word u tax” is used. It is the bold highwayman who says “ Stand axid deliver — your money or your life.”</p> <p>The reasoning of the court in the case above cited shows tbat the power attempted to be exercised by the city of Weston was regarded as the arbitrary seizure of private property for private uses, and as such was held to be unconstitutional. This case has been approved and followed in the ease of Morford v. Unger, (8 Iowa, 93.) The general principle running through these cases, and the principle upon which respondent submits this case should be decided, is, that no person or property outside of the limits of a municipal corporation can be taxed or taken, or in any manner required to contribute towards the support or maintenance of such corporation.</p> <p>The opinion of the court in the case of Hamilton and Treat, Judges, v. St. Louis County Court, (15 Mo. 20,) when carefully examined, will be found to differ in no respect from the principles above stated. The reasoning of the court in that case, when applied to the facts .in the case at bar, fully sustain the position assumed by the respondent. In that case the court held that the county was bound to pay the salary of the judges, simply and solely because it was properly a county charge. They were the judges of the Circuit and Common Pleas Courts of St. Louis county (not of the city of St. Louis); their jurisdiction was co-extensive in name and reality with the county, and the Legislature was authorized to impose the burdens arising from local works or services upon the inhabitants of the locality benefitted. Is it not apparent that if the application had been to compel the county to pay the salary of the mayor, or any other mere city official, Judge Gamble’s course of reasoning would have inevitably led to the conclusion that the locality benefittcd, that is, the city of St. Louis, should alone bear the burden ? In that case, also,'the court expressly repudiated the idea that the State can appropriate and apply to its own use the money in the county treasury.</p> <p>If it be once conceded that the Legislature can compel the citizens of the whole county to contribute to the support of the city government in any degree, there is then nothing to prevent the whole expense of that government being drawn from the county treasury but the ill-regulated and despotic will of fluctuating and hasty legislation. (Sedgwick om Stat. & Const. Law, 974.)</p> <p>If the property in Carondelet may be taxed' to support the police of St. Louis, of course the rule may be reversed and we may be forced to pay the salary of the mayor of Carondelet ; and, if so, why not of St. Joseph ? There is no legal connection whatever between the county of St. Louis and the city, by which one corporation may be made answerable for the debts or obligations of the other. They are as distinct and independent of each other as if they were hundreds of miles apart. The mere fact that the territory of one is situated within the bounds of the other, is no- more st reason why the one should be forced to contribute its money to the support of the other, than is the fact that both happen to be called “ St. Louis.”</p> <p>But even if they were coterminus in extent, and ail the inhabitants- of the county enjoyed to an equal degree the protection of the police of the city, that would still be no reason why the treasury of the county, which is constituted solely for county purposes, should be burthened with charges properly belonging to the city.</p> <p>That portion of the bill of rights relating to taxation may be justly regarded as the outline, and the recognition of the essential principle which requires that the burdens and expenses of government should, as far as practicable, be equally and impartially distributed. It is difficult to- suppose that tbe framers of a system of government professing to be founded on equal rights and duties, should manifest such solicitude to secure an ad valorem taxation, and yet disregard the more important principles which lay at the very foundation of the government they were about to establish. Now the only equality and uniformity which can exist in a State, organized as ours is, consists in requiring each political sub-division, whether of city or county, to pay its own expenses. So far as the statute in question deviates from this principle, it is in derogation of the common rights of the citizen, and ought to be declared inoperative and void. What would be thought of a statute creating a new county, and providing that the expenses of the county organization, such as the salary of the county judges, and the cost of erecting a courthouse, should be paid by the adjoining counties or out of the State treasury ?</p> <p>Again, the county is a corporation authorized by law to acquire and held property and money in its corporate name, and to dispose of the same: when that money or property is once acquired and reduced to possession, it becomes private property, and is placed beyond the reach of the legislative branch of the government in the same manner that the property of every citizen is held sacred from the reach of the Legislature. It can only be reached by the judiciary and in the forms prescribed by law, or by just and legitimate taxation.</p> <p>The county has title to the grounds upon which this courthouse stands, to the county farm, to the Smizer farm. These may all be taken for public uses upon just compensation; but will it be contended that the Legislature can arbitrarily vest the title to the whole or any portion of this property in the city of St. Louis, merely because this courthouse would make a convenient police .station and calaboose, and save the city the expense of a new one ? If, then, the Legislature cannot transfer the county’s real estate to the city, upon what principle can it take the money of the county and apply it to the benefit of the city ? The naked statute, as it stands, simply takes money from' the county and gives it to the city. Chief Justice Story covers the whole ground when he .says, “ we know of no case in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State of the Union.” (2 Peters, 658.j But when this act is to be carried into effect, it then practically becomes a question of taxation, and that question is the right of the Legislature to tax, or to authorize, either directly ■or indirectly, a tax to be levied on the citizens of the county for the benefit of the city alone, and upon this point it is insisted the case of Wells v. The City of Weston, above referred to, is conclusive. If the Legislature could not authorize the municipal corporation of Weston to tax property adjacent to the corporate limits and to the distance of one-half mile, how much less should property lying twenty miles from the municipal limits of St. Louis be taxed to support the police of said city, who are by law confined to its limits ; and it is confidently asserted that no instance can be found where these corporations have been authorized to tax property not within their local jurisdiction for their own local purposes.</p> <p>Again, in so far as the money now in the county treasury is concerned, we insist that it cannot be thus legislated out of the treasury; that it would be an act of injustice and bad faith to other county creditors to do so; that money has been raised for specific purposes. Shall it be taken from the school fund, the road fund, the courthouse fund, the interest fund, or the fund raised to pay salaries ? And yet, if the amount now demanded, and what may be called for to-morrow and the next day, is to be paid on demand, it must come from one or all these funds.</p> <p>In the case of. Dartmouth College v. Woodward, 4 Wheaton, 700, et seq., it was said, any act of a Legislature which undertakes to divert the funds of a corporation from the purposes for which they were raised, or which undertakes to impose on a corporation the payment of a debt not incurred by it, is unconstitutional and void. This same principle is recognized in a very late case in Wisconsin, (The State, ex rel. Soulter, v. The Common Council of Madison, 15 Wisconsin,) in which it is held, that where the charter of a city, at the time of the issue and sale of its bonds, made it the duty of the Common Council, when any judgment should be rendered against the' city, to levy and collect the amount like any other city or ward charges, and declared that private property should not be taken in execution to pay any city debt, a subsequent act of the Legislature, prohibiting the city from levying such a tax as would be necessary to discharge a judgment rendered against it for interest on said bonds, would deprive the creditor of the only efficient means of collecting his debt, and would be repugnant to the Constitution.</p> <p>In the form in which this matter now presents itself to this court, it is a direct appropriation by the Legislature of money in the county treasury and against the consent of the county. But we insist that the Legislature cannot pass the title to the real estate of the county, nor can it transfer the money of the county to its own treasury, much less can it transfer it to other corporations or private individuals. This point has also been well settled by this court. By an act approved January 21, 1857, the County Court of Caldwell county was directed to pay to one Wilbur E. Boggs a certain sum of money, for services rendered by him to the county. This act came under consideration in the case of Boggs v. Caldwell Co., 28 Mo. 586. The court said, “ it is insisted that the law is unconstitutional, and of this we entertain no doubt.” See also Mayor & Aldermen of Nashville v. Towns, 5 Sneed, 186.</p> <p>Compare that law with the one now under consideration. Both are positive demands upon the county treasury; the one is, however, for a mere trifle, to pay what the Legislature, doubtless, considered a just debt of the county, while the other is for an indefinite amount, only limited by the capacity of the Police Commissioners to expend money, and is to be drawn in such sums and at such times as may suit the whims or caprices of a body of men not responsible to or in any manner under the control of the county authorities ; and the money, when drawn, is to be applied to a purpose entirely foreign to the object for which the money was raised, and for the benefit of a corporation in which a large number of the citizens of the county have no interest and from which they derive no benefit.</p> <p>Ill summing up this branch of the case, we say, this act must be treated, as it appears on its face to be, as a direct appropriation by the Legislature of money supposed to be in the county treasury ; or it must be regarded as an act requiring the levy of a tax throughout the county, and outside the municipal limits of the city, for the sole benefit of the city. And we submit that the cases of Wells v. The City of Weston, and Boggs v. Caldwell County, are conclusive against the petitioners, whichever horn of the dilemma they may choose to hang upon.</p> <p>2. The seventeenth subdivision of the declaration of rights provides that no law “ retrospective in its operations can be passed.” The act in question not only provides that the county shall pay one-fourth of the whole expense of the city police for all time to come, but the construction now sought to be put upon it makes it relate back to the first of January, 1864, and we are now asked to pay the expenses for the months of January and February ; unless this law is to be retrospective in its operations, we can in no event be required to pay any portion of any expenses incurred prior to the passage of the act; indeed, it is modest enough to express, on its face, that it is to take effect upon its passage.</p> <p>If the county is now forced to pay the seven thousand dollars demanded, it is not paying it as one-fourth of the expenses of the police, but it is refunding to the city what the city had lawfully paid of its own debt prior to the passage of the act. (R. C. 1855, p. 501; Sess. Acts, 1859, § 19, p. 448, sub. 4; id. § 20, 31; Cheaney v. Hoover, 9 B. Monroe, 330 ; Wells v. The City of Weston, 22 Mo. 385 ; Morford v. Unger, 8 Iowa, 93 ; Sedgwick on Stat. & Const. Law, 674; 2 Peters, 658 ; Dartmouth College v. Woodward, 4 Wheaton, 700, et seq. ; The State, ex rel. Soulter, v. Common Council of Madison, 15 Wis. ; Boggs v. Caldwell County, 28 Mo. 586 ; Mayor & Aldermen of Nashville v. Towns, 5 Sneed, 186.)</p>

Louis Land Gom't. This suit was brought against the Directors of the Marine Railway and. Dock Company, upon the same case as was made out in the case of Cable et als. y. McCune et als., reported 26 Mo. 371.

Louis Circuit Court. I. The petition alleges, that on the day the note in question became due, “ said plaintiff caused payment of said note to be demanded of the said maker, which was refused.” On the trial of the case, the plaintiff was allowed to prove that he had made certain efforts to obtain demand upon the ■maker of the note, but had failed to do so. This was error, as the pleadings are framed.

Louis Land Court. A tract of 1800 arpens of land , was conceded to James: McDaniel, and was confirmed to him or Ms legal representatives by act of Congress July 4,1836. February 13, 1802, McDaniel conveyed the land to James Mackey. April 20, 1825, Pratt et al. had a judgment against Mackey’s executors (he being dead) for $725.12 costs.

<p>Statute of Frauds — Contract—Consideration.—A promise to pay the debt of another, although in writing, must be founded upon a sufficient consideration.</p>

Louis Circuit Court. The following instructions were given and refused : “ If the jury believe, from the evidence, that the bow-dock in question was lost to the plaintiffs by reason of the negligence or carelessness of the officers and crew of the defendant, either in fastening the bow-dock to the steamboat ‘ Diurnal,’ or in turning the same, or in the manner in which it was left; or that they failed to deliver the said bow-dock at the upper ferry landing, as they had agreed…

<p> Appeal from Si. Louis Land Court. </p>