Volume 36 — Missouri Reports

Plaintiff, as the widow, brought her action under the statute for the better security of life, property and character. The petition alleged that plaintiff’s husband received an injury, of which he died, resulting from the negligence, u'nskillfulness and criminal intent of the officers, agents, servants and employees of defendant while running, conducting and managing the locomotive and cars on its railroad near the city of Jefferson.

The court clearly erred in striking out the answer. I. Plaintiffs only claim of either is the alleged endorsement of Acock, and this averment the answer specifically denies, and also denies that plaintiff is the owner and holder of the note. Plaintiff could not recover without proving the assignment and title to the note. (Mechanics’ Bank v. Donnell, 35 Mo. 373.) II.

At the close of the evidence, the plaintiffs moved the court to instruct the jury as follows: 1. Ea'ch acting member of a partnership has an implied authority to execute notes in the partnership name, in payment of any article in which their trade was carried on. 2. Where two or more persons combine their property, labor, or skill, in the transaction of any lawful business for their common profit, such persons are partners. 3.

Irregularity is the want of adherence to some prescribed rule or mode of proceeding, and consists in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. (34 Mo. 318.) The proceedings to obtain the judgment in the name of Harkness, administrator of Dysart, against Austin & King, were irregular.

Petition for Mandamus. I. That under the statutes regulating the duties of the offices of the Treasury department, the Treasurer cannot refuse to pay any warrant drawn upon an appropriation or fund existing, unless there is some defect apparent on the warrant. In other words, the Auditor is the officer charged with auditing, adjusting and settling all claims against the State ; and it is the duty of the Treasurer to disburse the money on such warrant drawn according to law.

Petition for Mandamus. I. Although this is ostensibly a controversy between the Assessor of Cole County and the Treasurer of the State, yet it is really a controversy between two co-ordinate branches of the Executive departments of the State Government, the Auditor and Treasurer.

<p> Petition for Mandamus. </p>

Petition for Mandamus. To the petition of relator the Auditor made the following return: •The facts stated in the petition of Robert F. Wingate, Attorney General, are admitted in so far as that said Robert F. Wingate, Attorney General','did present an account to the State Auditor for fifteen hundred dollars, for salary as Attorney General from January 1,1865, to June 30,1865, being for two quarters, which account was not allowed in full by me, the State Auditor, for the…

Petition for Mandamus. The relator applies for a mandamus, now, under circumstances totally different from those in which he made application to this court against a former Auditor. (Jackson v. Auditor, 34 Mo. 375.) There is now, no contest for the office of Judge of the 15th Judicial Circuit, and consequently no question of “ right to an office,” as between contesting claimants, to be determined, that being the ground upon which the application was then refused.

The law does not require that a demand against a partnership estate administered by a surviving partner should be allowed against such estate by the county court; nor is such allowance necessary in order to maintain an action on the bond of such surviving partner.

This was an indictment under the 4th and 10th sections of the “Act to prevent the adulteration of spirituous liquors,” approved March 28, 1861. (Sess. Acts 1860-1, p. 92.) The indictment is founded on the 4th section, the penalty is provided under the 10th. The evidence tends to show the commission of the offence against which the 4th section is intended to guard.

I, The judgment of the Circuit Court was correct, for the reason that the property mentioned and described in the garnishee’s answer was subject to this attachment. The deed of trust, under and by virtue of which the garnishee claimed said property, was and is void; it was made by an agent un der a letter of attorney, and confers no power upon said agent to convey said property in trust for the payment of the principal’s debts.

I. The- notary’s protest is evidence of a demand and refusal to pay a bill of exchange at the time and manner stated on such protest. (R. C. 1855, § 20, p. 298.) II. The notice given to the endorser and drawer was legal and proper. (Sto. Prom. No. § 301; 3 Kent, Com. 139-40.) III. The certificate of the notary and his affidavit are evidence of the facts therein stated and the manner of said acts. (R. C. 1855, p. 733, § 57.) IV.

The answer set up no defence to the action; it made no proper issue as to the statute of limitations. It should have alleged that the cause of action had accrued more than three years before suit brought. (Finney, Adm’r, &c., v. State to use of Estes, 9 Mo. 228.) In the case at bar, the suit is by an administrator against another administrator.

' This was a suit in the Cole Circuit Court to August term,* 1860, by Henry W. Huthsing against Saunders and Maus, who. , were partners and subcontractors on the 20th section and 3d division of the Kansas route of the Pacific railroad, for a balance alleged to be due plaintiff below for work in excavating earth, rock and hard-pan, extra hauling and clearing, which Huthsing did under a parol agreement made by Saunders and Maus with Huthsing on said section and division.

The motion in arrest should not have been overruled, even if the Common Pleas Court had jurisdiction of the cause. The act of the plaintiffs in amending their petition and suing for fifty dollars only, thereby ousted the jurisdiction of the Circuit Court. (R. C. 1855, § 8, p. 533 ; Webb v. Tweedie, 30 Mo. 488.)

I. The court erred in allowing the defendant Stone to retain the money in his hands to be appropriated to the payment of debts owing by Dyer & Robertson to him. His ansWer admits a certain fund in his hands, acquired by him under a void assignment, consisting of money specially designated in the answer as United States legal tender notes, and other notes and accounts mostly worthless.

Error io Crawford Circuit Court. I. The continuance should have been granted. The application and affidavit in support of it shows reasonable diligence, especially when the condition of the country is considered. II. The depositions of Klunk and Hunt were improperly excluded. III. The sheriff’s deed was improperly excluded. (Act on Execut. §§ 49-54, R. C. 1845, pp. 484-5; Hardy v. Heard et ah, 15 Ark. 185-7 ; Rev. Stat.

<p> Appeal from Buchanan Court of Common Pleas. </p>

<p>Damages — Limitations.—Suits for damages under the 2d section of the “Act for the better security of life,” &c. (R. C. 1855, p. 647), must be commenced within one year after the cause of action accrues. If the wife of the deceased fail to sue within six months, the minor child has not twelve months thereafter within which to sue.</p>

<p> Error to Buchanan Court of Common Pleas. </p>

<p> Appeal from, the Buchanan Court of Common Pleas. </p>

<p>1. Evidence — Presumption—Courts.—All proper presumptions will be indulged in favor of the judgments of courts of record, and they must appear clearly erroneous before they will be disturbed.</p> <p>2. Criminal Practice — Recognizance.—Where a recognizance is taken by a judge who has authority to take such recognizance for the appearance of the party before the Circuit Court, it will be presumed that the necessary pre" liminaries were complied with, and that the proceedings were regular and proper.</p>

<p> Appeal from Buchanan Court of Common Pleas. </p>

<p>1. Practice — Instructions.—In chancery cases, it is not necessary to present the questions of law arising on the ease by instructions.</p> <p>2. Practice — Error.—Where the judgment is manifestly for the right party, the judgment will not be reversed for errors not affecting the merits of the case.</p>

<p>Appeal. — Dismissed for -want of assignment of errors.</p>

<p>Judgment — Irregularity—Appearance.—Smith’s Adm’r v. Rollins, 25 Mo. 408, affirmed. A party appearing in court to move to set aside a judgment against him for irregularity, is in court for that purpose only.</p>

I. The law upon which the defence in the “Winkler case” was based having since been repealed, it can no longer be pleaded by the respondent as a defence to the cause of action alleged in the petition. 1.

The plaintiff asked the court to instruct the jury: 1. If the jury find that Cooper and wife made the deed in controversy to defendant Cheatham with the intent to hinder, delay or defraud the creditors of said Cooper, and that the said Cheatham had knowledge of such fraudulent intent at the time of accepting the said deed, and that said Cheatham intended to aid, they will find the deed fraudulent. 2.

<p>Vendors and Purchasers — Equity—Estoppel.—An outstanding title purchased by a vendee of land in possession under a title bond, enures to the benefit of the vendor. In a suit upon the notes given for the consideration, the vendee cannot defeat a recovery upon the ground of failure of title, but will be allowed the cost and expenses of his purchase of such outstanding title.</p>

The plaintiff asked the court to instruct the jury: 1. [See opinion.] 2. The endorsement of a note in blank by the holder and owner thereof, and delivery thereof to a third party, is prima facie evidence of the assignment of the same for a valuable consideration, and will vest a complete title to such instrument in any subsequent purchaser of the same. 3.

The plaintiff moved the court to give to the jury the following instructions, viz: 1.

Upon the trial, the court, at the instance of the plaintiff, declared the law to be as follows: 1. Held: it will be found upon examination that the unsuccessful party never held or obtained any title whatever, whether inchoate or perfect. But in this case the facts are different.

<p> Appeal from B'uchanan Court of Common Pleas. </p>

I. The petition in this case was not sufficient to authorize, the court below to issue the writ, and the same should have been quashed.

The facts of the case are stated in the opinion. * After the evidence for plaintiff and defendant was closed, the court was asked to charge the jury as follows : The plaintiff moved the court to declare the law to be— 1.

The error relied upon in this court for a reversal, is the ruling of the court below, that no demand of payment of the maker of said note, or of notice of non-payment by the maker to the endorser thereof, was necessary to enable the plaintiff below to recover a judgment against the endorser. The court is referred to the case of Davis v. Francisco, 11 Mo. 573 ; McKinney v. Crawford, 8 Sergt. & E. 351; Berry v. Eobinson, 9 Johns. 121; Eugby v. Davidson, Cons.

The court instructed the jury on plaintiff’s motion : 1. If the jury believe from the evidence that defendants with other persons wilfully and intentionally broke open the storehouse of the plaintiff, and wilfully and intentionally took and carried away therefrom divers articles of clothing or merchandise, forcibly and against the will of the plaintiff, they will find for the plaintiff the value of the goods so taken with interest thereon from the time the same were taken,…

At the special term, held in September, A. D. 1865, the plaintiff filed the following petition: James S. Thomas, plaintiff, v. Andrew W. Mead and James C. Moodey, defendants. — In the Supreme Court of the State of Missouri. — Special Term, Saturday, September 23, 1865.

At the calling of the State ex rel. Conrad v. Bernoudy, appealed from the St. Louis Circuit Court, Mr. Garesché, as counsel for respondent, appeared prepared to argue the case. Upon inquiry from the court, whether he had complied with the rule adopted by the court and taken the oath of loyalty prescribed by the new Constitution, he replied that he had not. The court then refused to permit him to argue the cause.

I. Requiring this oath of a clergyman before he can be allowed to preach, is inconsistent with the principles of government as declared by tlie Declaration of Eights in the first article of the Constitution. The provisions of the second article conflict with those of the first, and especially with sections 1, 2, 3, 9,18, and 27. What is the Declaration of Eights ?

Bernoudy was elected recorder for St. Louis county in 1860. Held: that the Convention had exceeded its powers, and that the office was not vacant, from which judgment an appeal was taken.

Eor statement of facts, see opinion. The following are the instructions asked by the plaintiff and refused: 1. If Drury was a member of the firm of Watkins & Drury, and did, in the year 1854, carry the money of his ward, A. M. Drury, into said firm, either as a loan or as a part of the capital stock of said firm, then that was a conversion of the funds in his hands as guardian, and a breach of his bond. 2.

I. The cliurch, by means of its preacher in charge and Quarterly Conference, had full and ample power to fill vacancies in its board of trustees. (See “ Doctrines and Discipline of the Methodist Episcopal Church,” p. 254.) II. Over the church, as such, the temporal courts of this country most clearly have no jurisdiction, except to protect them and to protect the civil rights of others, and to preserve the public peace, none of which were necessary in this case.

I. The county had no power, in the absence of an express legislative enactment, to subscribe for stock in the railroad company and issue its notes or bonds therefor. A county is a territorial division, such as a senatorial district for the election of a State senator — a congressional district — a judicial circuit. It is not a corporation or artificial person, hence has not the general powers of a corporation. (15 Johns. 382 ; N. York Eire Ins.

<p> Error to Hannibal Court of Common Pleas. </p> <p>I. The recorder of the city of Hannibal had jurisdiction of the subject matter of this suit, by virtue of an act of February 14,1851. (Sec. 5, Art. 8.)</p> <p>II. The jurisdiction being specially conferred on this officer, his proceeding^ the case must be in strict accordance with the direction as to the mode of proceeding. The objection that the petition does not state facts sufficient to constitute a cause of action, is not waived by omission to take it by demurrer or answer. Defendant can avail himself of the objection by motion in arrest of judgment. (Andrews v. Lynch; 27 Mo. 167.)</p> <p>III. The defendant Austin could only be made a party by an order of the court' to have him brought in by an amendment of the petition or supplemental petition. (2 R. C. p. 1253, § 4.)</p>

There is no specific place in Hannibal named for the delivery of said hogs, in said contract; but there is a specific time, viz., on or before the first day of January, 1856. In the absence of a particular place being specified for the delivery of said hogs, the law fixes a place. The first act has to be performed by the seller.

<p> Appeal from, Hannibal Court of Common Pleas. </p>

I. The mistake on the face of the mortgage being clear, and the mortgage itself also showing beyond all doubt to whom the lot was intended to be conveyed, so that no one could be misled or deceived thereby, it was the manifest duty of the court below to disregard the mistake on the trial, and do substantial justice to the parties without delay. There is, therefore, no error in the court' below in admitting the mortgage deed to be read in evidence.

<p> Appeal from. Cape Girardeau Circuit Cowrt. </p> <p>I. The action was rightly brought in the name of the ‘ plaintiff, and the evidence supported the claim of ownership. The attempted sale, when no money passed, no memorandum of sale was given, and no delivery of property, and when the conditions of sale were not complied with, passed no title out of Lacey.</p> <p>II. The machinery being placed in and upon said premises leased by the tenant, can be removed by him and are not fixtures; for, 1. Any construction put up by the tenant for manufacturing purposes, no matter how securely it may have been united to the freehold, can be removed by the tenant. This is the case of a building constructed for that purpose. (Powell v. McAslian, 28 Mo. 70.) And even in the case of grantor and grantee, articles attached to the freehold more strongly than the machinery, were held not to be fixtures. (Hunt v. Mullanphy, 1 Mo. 508.) 2. But in this case it is not necessary to go to any such extent; the case here bringing it clearly within that class about which the decisions have for years been clear and uniform. The machinery bin was simply bolted down to timbers, and could be removed without injury to the freehold. (Turner v. Johnson, 7 Mo. 43 ; Finney v. Watkins, 13 Mo. 209.)</p>

Though it may be true that at the time of suit brought the plaintiff had not complied with the provisions of the statute, yet the defendant could not take advantage of the omission or defect by motion in arrest. The objection was not taken at the proper time and in the proper way. (Woods et al. v. The State of Mo., 10 Mo. 698.) The defendant should have raised that issue by plea in abatement or answer, and that is the only way it could be done.

I. The court below should have omitted the declarations of A. H. Downing, because they were against his interest at the time they were made. (16 Mo. 250.) The case in 32 Mo. 464, is not in point.

This was an action of ejectment commenced in 1851, in Marion Circuit Court, to recover lots three and four in block twenty-six of the town of Hannibal, as originally laid out by Stephen Glascock. A trial was had in the Circuit Court, which resulted in the non-suit of the plaintiff under the ruling of the court. The case was brought into this court and the judgment reversed.

I. The court erred in admitting evidence as to John Stonebraker’s business habits and character. Such testimony is never admissible in a civil case, unless the character or habits of the party are directly in issue. No exception is allowed to this rule in suits on contract, even whére it might repel an imputation of fraud.

Charles Circuit Court. I. The court erred in overruling the demurrer and the motion in arrest of judgment. A claim for breach of contract cannot be joined with one for injuries to property. In this case, the two transactions are as much disconnected as would be an assault and battery committed by a landlord upon his tenant, from a breach of the terms of his lease.— R. C. 1855, p. 128, § 2, & p. 1231, § 6.

Charles Circuit Court. This suit was brought in the St. Charles Circuit Court in 1861, and was tried there upon an amended petition filed on the 18th of May, 1864, which stated that the defendant — a corporation chartered in 1851 — built a railroad through Warren county, which passed over and through the plaintiff’s farm, cutting off his residence from his water and timber, and that the defendant wilfully, maliciously and negligently failed to make the plaintiff a safe and…

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

<p> Appeal from Lewis Circuit Court. </p> <p>This is a negotiable note, not subject to a defence of partial or total failure of consideration, or fraudulent representations, when taken by an innocent purchaser for value, before due — R. C. 1855, pp. 819-20, §§ 1-3. The 1st section makes this a note importing a consideration, &c.; the 2d section makes it assignable; the 3d section exempts it from “set-off or other defence existing at the time of or before notice of assignment.”</p> <p>There is no distinction in this 3d section between a note payable in money or payable in property, and consequently no defence can be made to this note that could not be made to a note for the payment of money.</p> <p>I. Such paper as the note declared upon by plaintiff is not negotiable. (Chit, on Bills, 133.) A note, to be negotiable, must be payable without any contingency whatever. (Coolidge v. Ruggles, 15 Mass. 387; Deforest v. Tracey, 6 Cow. 151-155.) Not negotiable if payable in bank bills. (McCormick v. Stratten, 1 Am. Lea. Ca. 308, &o.; Farwell v. Kennett, 7 Mo. 595.) "</p> <p>II. A note given for a patent that is void by reason of its being useless, is without consideration. (Dickerson v. Hall, 14 Pick. 220 ; Joliff v. Collins, 21 Mo. 338.)</p>

The facts are stated in the opinion. The instructions as given were: 1.

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

<p> Appeal from St. Louis Court of Common Pleas. </p>

<p>Attachment — Garnishee.—The pendency of a suitagaist the garnishee by the , defendant in the attachment or executión will not relieve the garnishee from his liability under the garnishment. After being summoned as garnishee he cannot pay the money due to the attachment or judgment debtor.</p>

Louis Land Qourt. On the 9th May, 1859, Catherine Graham conveyed a lot of ground to Joseph S. Barnard for a consideration, 'which was partly paid in cash, and for the remainder he executed five promissory notes, all dated 9th May, 1859, one for $319.80, due six months after date, and four others, each for $638.16, due respectively fin one, two, three and four years from date, and bearing six per cent, interest until paid.

Louis Court of Common Pleas. The court below rendered judgment against a party never served with process, to wit, E. H. Manter. This is apparent from an inspection. The judgment is irregular and void, as a whole, it being an entire thing; and being necessarily to be reversed as to one, must be reversed in toto. (Dickinson v. Chrismau, 28 Mo. 135.) No motion or bill of exceptions was necessary under the established practice of this court, the error being of record.

The indictment was as follows : “ State of Missouri, County of Crawford. — In the Crawford Circuit Court, June Term, A. D. 1859. “The grand jurors for the State of Missouri, einpannelled, sworn and charged to inquire within and for the body of the County of Crawford, upon their oath present, that a certain slave named Garrison, the property of one James H. Montery, on the first day of January, in the year A. D. 1859, in the county aforesaid, did then and there unlawfully…

Louis Criminal Court. The statute expressly recognizes the right of the defendant to be arraigned. (R. C. 1855, p. 1180, § 22; 22 Mo. 321; 27 Mo. 267 ; State v. Mathews, 20 Mo. 56.) The second point is, that the verdict was rendered in the absence of defendant. The statute is positive. (R. C. 1855, p. 1191, § 16.) Defendant has the right to poll the jury, which is taken from him if the verdict is rendered in his absence. The authorities are uniform.

The law does not require an order of the court on the sheriff to be sealed. (R. O. 1855, p. 910, § 2.) Appellant waived all informalities, if any, in the empannelling of the jury, by going to trial without making exceptions thereto. (Samuels v. State, 8 Mo. 68.) The State can prove declarations of defendant, but defendant cannot prove them, when objection is made.

<p>Confirmation. — Papin v. Hines, 23 Mo. 274, affirmed.</p>

Louis Law Commissioner’s Court. Suit upon covenants of a lease against assignee. [See opinion.] Holliday, for appellants. I. The court erred in admitting the lease offered in evidence. 1. Because it was no lease, not having been signed by the lessor until after the expiration of the term. An instrument is not a lease until signed by the lessor. (Clemens v. Broom-field, 19 Mo. 118.) 2.

Charles Probate Court. The defendant in error was surviving partner of the firm of Wiedner & Baare, and as 'such administered on the partnership effects. His second annual settlement was contested by plaintiffs in error, on behalf of themselves and other creditors of the firm. Defendant in error had charged against himself in the inventory, a book account against his deceased partner for $680.88, and -one against himself for $648.92.

On the trial the appellant proved by J. T. K. Hayward, the general superintendent for the company, and his son, who was his clerk, that there had been notices put up inside the passenger coaches and on the baggage car of said train in 1859, and that they were up at the time of the accident; that said notices, through accidents, had been all destroyed or lost; that he and his clerk had made diligent search for copies of said notices in all places where they had been, or were…

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

Louis Circuit Court. I. The court erred manifestly in giving judgment for the plaintiffs below after it had continued the cause, no motion being made to set aside the continuance. II.

<p>1. Evidence — Hearsay.—The statements of one who is a competent witness at the trial are not admissible in evidence. The defendant in an attachment suit is a competent witness upon, an interpleader for the property attached.</p> <p>2. Sale — Contract—Estoppel.—A party claiming to he the owner of goods by purchase and delivery, is estopped by the levy of an execution in his favor upon the same goods as the property of the defendant in the execution.</p>

Louis Circuit Court. I. Tbe item for towing said boat is clearly within the second clause of the first section of the act. This clause gives a lien for “ labor done ” by “ tradesmen and others in building, repairing, getting out, furnishing, or equipping thereof.” But if there be any doubt of its being embraced in this clause, there certainly can be none that it is so embraced in the fourth .clause of said section.

Louis Land Court. Thompson purchased lumber from Bridwell & Grabb, in payment of which he accepted orders payable in brick. To satisfy his debt, he purchased brick of Hause, the plaintiff, which were delivered at the buildings erected by Bridwell & Grabb for the defendant Brolaski. Thompson not having paid the plaintiff, he filed his lien, which he sought to enforce by this suit. Thompson was served by publication, and failed to answer.

<p>Constitution — Election—Office.—By the Constitution, Art. II., § 8, no vote can be counted for, nor any certificate of election granted to, any candidate who has not taken and filed the oath of loyalty within fifteen days next preceding the election. A certificate of election granted to one who has not thus taken and filed the oath is null and void.</p>

<p>Constitution — Office—Appointing Power. — Under the Constitution, the Governor has not the power to fill by appointment a vacancy in the office of sheriff occurring after the Constitution went into effect. Such vacancy must be filled in the manner provided in Art. IV., §§ 23 & 24.</p>

Louis Circuit Court. This suit was for building a sewer, brought on a special tax bill certified by Truman J. Homer, city engineer, “ that the charge against the property in the bill described is correct and in accordance with § 14 of ‘ An act amendatory of and supplementary to the several acts incorporating the City of St. Louis,’ approved March 14,1850, and also § 4 of ‘An act supplementary to the several acts incorporating the City of St. Louis,’approved January 16,1860.

Louis Law Commissioner’s Court. I. The justice’s court in which this suit was originally-brought had no jurisdiction of the cause of action. It is remarked, first, that justices’ courts have no jurisdiction except what is conferred upon them by act of the Legislature. (Williams v. Bower, 26 Mo. 601.) Under the general law, none but courts of record can enforce liens or claims against realty.

Louis Circuit Court. I. The judgment is irregular and erroneous on its face. If the defendant was personally liable to any extent, and that liability could be made available in a proceeding, the avowed object of which was to enforce a lien on realty, the realty itself declared to be charged should have been directed to be exhausted before resorting to the property of the defendant generally for the deficiency.

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

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

Louis Court of Common Pleas. This was an action for negligence, alleged against the appellant, for failing to make presentment, demand, protest and notice of the dishonor of the following instrument of writing: “ St. Louis, 12 Oct., 1860. “ The Southern Bank of Saint Louis : “Pay to M. C. Jackson & Co., or order, five hundred dollars, on 22d of October. “$500.00. Bf.

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

Louis Land Cowrt. The decision of the board is as follows : “ The board are of opinion that the claim ought to be confirmed to the said widow Dodier, or her legal representatives, according to the survey in Livre Terrein No. 2, p. 38.” (See book No. 7, p. 185.) I. The confirmation was made by the board and act of Congress to widow Dodier, or to those who proved themselves to be in law her legal representatives,.and not to Louis Labeaume, who presented the claim to the old…

Louis Circuit Court. I. The question of negligence should have been left to the jury in such a case as this. So it has been held in the case of Hulsenkamp v. Citizen’s Railway Co. (84 Mo. 45, and cases there cited; 1 Hill, on Torts, p. 135, § 45, & notes.) Proof of injury to a passenger on a railroad car, is held prima facie evidence of negligence. (Zemp v. Wilmington, 9 Rich. Law, 84.) II.

<p>1. Practice — Trial.—The re-opening of a case, to allow a plaintiff to offer further evidence, after he has declared his evidence closed, is a matter within the discretion of the court, and will not be reviewed except where the discretion lias been unfairly exercised.</p> <p>2. Practice — Note.—The holder of anote who has purchased the same for value may, under our statute, maintain an action in his own name without an endorsement.</p>

Charles Circuit Court. This was an ejectment to recover possession of so much of lots 14 and 20 of block 4 of Evans’ survey of ét. Charles commons as conflicted with United States survey No. 164 of an out-lot or common-field lot, in the cul de sac common fields, confirmed to Auguste Chouteau under J. B. Lacroix.

Charles Circuit Court. This was an action of ejectment for about fifty-two acres, being part of United States survey No. 1692, originally granted to Antoine Prieur. The whole survey became the property of William P. Clark, whose administrator, in 1842, sold it in two equal portions; the western half to John P. Belton, under whom the plaintiff -claims, and the eastern half to Francis Yosti, under whom the defendant claims.

Louis Court of Common Pleas. The petition stated that on the 26th day of April, 1859, Hickman and Moore were seized in fee of certáin tracts of land situate in the county of Franklin, &c.; and being so seized, Hickman and Moore, by deed of trust, conveyed the said real estate to Ming, as trustee, to secure the payment of four notes, executed by Hickman and Moore, dated April 15, 1859, each for the sum of fifteen hundred dollars, and payable to the order of one James W.…

I. The power of the trustee over the, legal estate or property vested in him exists only for the benefit of the cestui qui trust — 2 Stor. Eq., § 977 ; 34 Mo. 5Í8, Ewing v. Shafton — where it is held that the person receiving satisfaction is the proper person to acknowledge satisfaction on the record. II.

Louis Court of Common Pleas. In- a case where several notes falling due at different times are held by different persons, and are secured by a deed of trust or mortgage, the question is how a,re the proceeds of the property conveyed or mortgaged to be disposed of where they are not sufficient to pay all the notes.

<p>1. Statute of Frauds — Writing.—A memorandum or note in writing, to take a ease out of the statute of frauds, signed by the party to be charged, need not express the consideration, and need not be signed by the party seeking to enforce tjie contract. Where a bill is filed to enforce the specific performance of a contract in writing signed by the defendant, the contract is also signed by the plaintiff.</p> <p>2. Contract — Specific Performance. — The specific performance of a contract for the sale of land, is not granted as a mere matter of right by the court to which it is addressed, but from a just and reasonable discretion, to be governed by sound legal rules and principles.</p>

<p>1. Constitution — Eminent Domain — Action.—Where the charter of a railroad corporation gives to the company authority to enter upon lands near the line of the road, and to take therefrom materials to be used in its construction, and provides for ascertaining the damages at the instance of either party, the common law remedy is superseded by the statute, and the party injured cannot sue the corporation at law. (Soulard v. City of St. Louis, post, p. 546.) Where either party may be the actor, neither can complain that the other did not begin.</p> <p>2. Trespasses — Action.—The “ Act concerning trespasses ” (R. C. 1855, p. 1532) contemplates voluntary or wilful trespasses only, which are done without lawful right. <</p> <p>3. Practice — Jurisdiction.—Objections to the jurisdiction of the court are not waived by omitting to take advantage of them by demurrer or answer, and the exception may be taken on the motion for a new trial.</p>

jError to St. Louis Court of Common Pleas. The plaintiff filed the following petition: “ The plaintiff states that, for more than ten years before the year 1855, he and his brothers Henry G. Soulard and Benjamin A. Soulard were proprietors in fee as tenants in common of a certain tract of land in the city of St. Louis, being the eastern part of the United States survey for James Mackay, and embracing the land in said survey taken and appropriated by the defendant for public…

Louis Circuit Court. I. The petition is sufficient. II. The plaintiff was entitled to recover. (§§ 3 & 4 of “Act concerning damages,” R. C. 1855, p. 648.) III. By the laws applicable to St. Louis county, it is compelled to keep in repair the roads, bridges and highways of certain routes, inter alia, the Bellefontaine road, and, to carry out the purpose, is clothed with the power to borrow money, levy taxes and collect toll.

<p>1. Bills of Exchange — Protest—Evidence.—The official protest of a notary is the proper legal evidence of the presentment, demand and refusal of payment of a foreign bill of exchange, and such protest cannot be dispensed ■with as in cases of inland bills.</p> <p>2. Bills of Exchange — Protest—Notary Public. — The presentment and demand of payment of a foreign bill of exchange must be made by the same notary who protests the bill; it cannot be done by his clerk, nor by any other person as his agent, although he be also a notary. Notaries are public officers, and as such cannot act as partners. A protest made by one notary, when another notary made the demand of payment, is not a legal protest. The protest, or the noting of the bill for protest, must be made upon the same day the presentment is made.</p> <p>3. Bills of Exchange — Conflict of Laws — Lex Loci. — A foreign bill of exchange must be presented for payment upon the day on which it is payable by the law of the place of payment.</p> <p>4. Bill of Exchange — Excuse of Notice. — The drawer of a bill of exchange, who, by his course of dealing with his correspondent, has reasonable cause for believing that his drafts will be duly honored, is entitled to notice of protest.</p>

Louis Circuit Court. The facts are stated in the opinion of the court.

<p>1. Practice — Instructions.—If the instructions given correctly state the law of the case, the judgment will not be reversed because other instructions asserting the same propositions of law are refused.</p>

Louis Circuit Court. As a mere question between the consignor and consignee, the moment the whiskey was shipped and the bill of lading made out to Bruce, such property vested in him that it could not be attached by other creditors. (Haille v. Smith et als., 1 Bos. & Pul. 563; Clark v. Marcam, 3 Paige, Ch. 373.) There is nothing in the question attempted to be raised by the defendant’s instructions as to a partnership between Bruce and Leach.

<p> Error to St. Louis Circuit Court. </p> <p>The following instructions asked by the plaintiffs were refused:</p> <p>1. If the jury find from the evidence that the plaintiffs were the owners of the acceptances in question, and endorsed and delivered them to Josiah Lee & Co., bankers in Baltimore for collection, for the plaintiffs’ use, and that Josiah Lee & Co. transmitted said acceptances to the defendants for collection, and that defendants knew that Josiah Lee & Co. were not the owners of said acceptances, but were agents of the plaintiffs, then the jury shall find for the plaintiffs.</p> <p>2. If the jury find from the evidence that the plaintiffs endorsed and then deposited the acceptances in question at the city of Baltimore, in the State of Maryland, with Josiah Lee & Co.,bankers, for collection only : that said Josiah Lee & Co. endorsed said acceptances and transmitted the same to defendants at St. Louis, Mo., for collection, and that said acceptances were collected by the defendants; and if the jury find from the evidence that said Josiah Lee & Co. have never accounted for or paid to the plaintiffs the proceeds or amount of said acceptances, and that said J. Lee & Co. before or about the time said acceptances were paid to defendants became insolvent,- and have ever since been and are now insolvent, so that the amount of said acceptances, or any part thereof, cannot be coerced or collected from said Josiah Lee & Co., then the defendants are liable in this action, unless they have shown in evidence, to the satisfaction of the jury, that credit was given by the defendants to said Josiah Lee & Co. on account of the said acceptances, or that the defendants have suffered balances in their favor to remain in the hands of the said Josiah Lee & Co. on the faith of the paper transmitted, or expected to be transmitted to defendants by Josiah Lee & Co., in the ordinary course of dealing between them.</p> <p>And the following instruction asked by defendants was given:</p> <p>1. If the jury find from the evidence in the cause that the defendants received the drafts in question from Josiah Lee & Co. for collection, and collected the same when due, and credited the proceeds immediately on a larger debt due from Lee & Co. to defendants, and said defendants informed said Lee & Co. that the said proceeds had been so applied, and all this was done without any notice to defendants of any interest of the plaintiffs in said paper, and no such notice was received by defendants till November, 1860, plaintiffs cannot recover.</p> <p>I. We insist that although the defendants may have been ignorant of the ownership of the paper, yet unless they suffered in some way, their right to the paper is not equal to the plaintiffs. They made no advances of money or credit on this paper; they suffered no balances to remain in the hands of Leo & Go. on the faith of this paper, or on the faith that this or any other paper would be sent them in the ordinary course of dealing. What rights have they against the bona fide real owner ? None.</p> <p>The plaintiffs being the actual owners of the drafts in question, can follow them or their proceeds into whosesoever hands they may be, unless they were taken by defendants in good faith without notice of the true ownership, or that value was paid or credit given on account of the drafts. (Collins v. Martin, 1 Bos. & Pul. 648 ; Coddington v. Bay, 20 J. R. 648 ; Stalker v. McDonald, 6 Hill, 96; Am. Law Reg., Sept. 1862, p. 681, which contains an able review of the whole subject, with a collection of authorities; Hoffman v. Miller, 10 Am. Law. Reg. 676; Williams v. Little, 11 N. H.)</p> <p>II. The question of fact, whether the defendants had no- • tice that Lee & Co. held the drafts for collection only at the time when they transmitted them to defendants, should have been submitted to the jury; the court, however, excluded this question from the jury. This was error.</p> <p>III. The defendants having received the drafts without consideration therefor moving from them, and under circumstances which plainly notified them that the drafts were transmitted for collection only, the question arises, can the defendants withhold the proceeds from the true owners by simply crediting the amount collected on their books to Lee & Co.? The entry of credit to Lee & Co. on the books of the defendants is not payment. (Bujflor v. Harrison, Oowp. 566; Gaflaud v. Salem Bank, 9 Mass. 408 ; Clark v. Eby, 2 Sand. Oh. 169; Francis v. Joseph, 3 Edwds. Ch. 184.)</p> <p>I. The defendants being bankers, and receiving the notes from one of their customers and collecting the same without any knowledge or notice that the notes did not belong to the customer, have a lien upon the proceeds to secure a general balance due from the customer. (Davis v. Bowsher, 5 T. R. 488 ; Scott v. Franklin, 15 East. 428 ; Bank of Metropolis v. N. E. Bank, 1 How. 234; Rathbono, use, &c., v. Sanders, 9 Ind. 217 ; Wilson v. Smith, 3 How., U. S. 763.) The cases in 1 How., U. S. 234, and 9 Ind. 217, are on all-fours with the case at bar.</p>

Louis Court of Common Pleas. I. The deed of trust made by Henry L. Clark to Berthoud & Beruoudy operated to secure to the holders any drafts drawn and negotiated under the letters of credit mentioned in said deed of trust; for, 1. The bills drawn under and authorized under the letter of credit, were already issued at the time of the execution of said deed of trust, and secured by said instrument. 2.

Louis Land Court. I. The lien law specially applicable to St. Louis county was not repealed by the Rev. Code of 1845. (§ 29, p. 699, R. C. 1845.) II. It continued in force until 1st May, 1856. (§ -26, p. 1071, R. C. 1855; § 18, p. 1026, ibid.) III.

Louis Land Court. The plaintiffs having filed a lien for a greater sum than that due them after all just credits given, have thereby lost the right to enforce any lien against the defendants’ property. (Thatcher v. Powell, 6 Wheaton, 119; McCay’s Appeal, 37 Penn. Stat. 125; Edgar v. Salisbury, 17 Mo. 271.) I. The statute establishes a privity and liability between the sub-contractor and the owner of the property. (23 Mo.

<p> Appeal from St. Louis Lmd Court. </p> <p>This case was before the court in 27 Mo. 55. On the trial of the case below, the plaintiff gave in evidence:</p> <p>“ 1. Copy of registry of claim from Hunt’s Minutes, page 116, in the name of ‘ Joachim’s Roy’s legal representatives,’ for a lot in cul de sac of one and a half arpens iby about thirty-in depth? bounded north by Guión, south by Tabeau, east by Auguste Chouteau’s mill tract, and west by Charles Gratiot.</p> <p>“ 2. Copy of registry of certificate of confirmation, dated July 30, 1825, in favor of‘Joachim Roy’s’ legal representatives, for common field lot in cul de sac, of one and a half arpens ‘ by about thirty deep,’ by virtue of</p> <p>“ 3. A will of Joachim Roy, March 28, 1789, devising all of his estate to Yeronique Guitard, and copy of the same.</p> <p>“4. United States private survey No. 3307, for Joachim Roy’s legal representatives under the above claim and registry of confirmation, and which covered the premises in dispute.</p> <p>“5. Certificate of burial of said Roy, June 25, 1801.</p> <p>“ 6. Certificate of burial of Y. Guitard, December 8,1808.</p> <p>“ 7. Will of Y. Guitard, August 19, 1808, whereby, after devising some personal property to others, she ordains that ‘ the remainder of the properties that she shall leave after her death shall be equally divided between her two other children, Frangois Cayoux and Eustache Cayoux, the said children to enjoy the same.’</p> <p>“8. Deed of said Frangois and Eustache Cayoux to William Carr Lane, August 1,1825, for said lot.</p> <p>“ 9. The defendant admitted that Yeronique Guitard first married one Cayoux and had four children by that marriage, viz., Francis,Eustache, Louis, and Josette; that said Cayoux died, and his widow married Joachim Roy; that said Roy died, leaving his widow, but no children by her; that all the title held by Lane was vested in the plaintiff, and that defendant was in possession of the premises at the time alleged.</p> <p>“ 10. A certificate of confirmation issued March 24, 1857, by Renard, Recorder of land titles, under the claim of Roy’s representatives, as above set forth, and being in favor of said representatives.” — This was objected to as incompetent; it was after the suit was commenced, and it was issued without authority. Objections overruled and exceptions taken.</p> <p>The appellant (defendant below) gave the following evidence :</p> <p>“1. Letter of William Carr Lane to ‘ Gen. Milburn, Surveyor,’ &c., dated June 20,1840, and while Lane was owner of the title now held by plaintiff. In this letter he says, 41 assert of my own certain knowledge, that the proof taken before the Recorder — No. 2, page 116 — called for 40 arpents, instead of about thirty, before the record was altered. I have now in my possession two copies of these entries upon the Recorder’s Minutes, made before the erasure of the claimant's name and the word forty, and of the subsequent interlineations of another name and of the word thirty.’ He refers frequently to pages 49 & 50 to prove that the lot was forty arpens deep, and asserts that the positive testimony on these pages ought not tobe overruled by the 4questionable testimony atp. 116.’ The underscoring is from the original letter.</p> <p>44 2. The claim of Joachim Roy’s legal representatives for a lot containing one arpent and a half by about forty in depth, bounded north by the field lot formerly owned by Madame Lecompte, east by the claim of widow Camp’s legal representatives, south by a field lot formerly owned by Tabeau, and west by land unknown, near to Gratiot’s. (From Hunt’s Minutes, p. 49.)</p> <p>44 3. Registry of certificate of confirmation, dated July 30, 1825, in favor of Joachim Roy’s representatives, for a lot of one and a half arpens front by about thirty deep, bounded north by Guion’s legal representatives, south by Tabeau’s legal representatives, east by Auguste Chouteau’s mill tract, west by claim of Charles Gratiot.”</p> <p>These two documents the court admitted.</p> <p>“4. The same claim and certificate, with the depositions of Francis Cayoux and Eustache Cayoux thereto annexed, as follows:</p> <p>44 4 Francis Cayoux, being duly sworn, says that he knows the field lot claimed, and that this deponent, forty years ago, with Joachim Roy, cultivated this field lot, and continued to cultivate the same with said Roy until the fence was taken down about twenty-five or twenty-six years ago. This deponent says that his mother, after the death of his father, married Joachim Roy, and in that way living with Roy he became acquainted with this field lot. He has no interest in this claim whatever. ]li3</p> <p>Francis Catoux.</p> <p>‘Sworn to before me, July 7, 1825. “ark-</p> <p>‘ Theodore Hunt, Recorder L. T.’</p> <p>“‘Eustache Cayoux, being duly sworn, says that he knows the field lot claimed, and that upwards of thirty years this, lot was owned and cultivated by Joachim Roy, who cultivated the same until the fence was taken down; and this deponent further says he has no interest whatever in the field lot, neither directly nor indirectly. u,</p> <p>Eustache Catoux.</p> <p>‘ Sworn to before me, July 7, 1825. ”ark-</p> <p>‘ Theodore Hunt, Recorder L. T.’</p> <p>“ (See Hunt’s Minutes, pp. 49-50.)”</p> <p>The plaintiff objected to the admission of the depositions as incompetent, and the court sustained the objections and excluded the same, to which the defendant excepted.</p> <p>“ 5. The claim and certificate of confirmation of A. Guion’s legal representatives for a lot in the cut de sac, dated July 30,1825, calling for “cadet Jean Rion” as its southern boundary.</p> <p>“ 6. Claim and registry of confirmation, of Tabeau’s legal representatives, dated 10 th August, 1825, in same common field, calling for lot ‘ claimed by Jean Rion’s legal representatives ’ as its northern boundary.</p> <p>“ 7. Concession to Cottard of one by forty arpens, taken from (i. e. commencing at) trait carré,’ meaning the west, line of the common field fence and in cut de sac.</p> <p>“ 8. Survey of same showing that this concession to Cottard was wholly east of the premises in dispute.</p> <p>“ 9. Claim of widow Camp and confirmation by the old Board. This claim is north of Chouteau’s mill tract. The premises in dispute only touch the S.W. corner of the mill tract.</p> <p>“ 10. Plat of Chouteau’s mill tract in 1803, showing that it was bounded on the west by ‘ vacant lands.’</p> <p>“11. Admission of counsel that New Madrid certificate was located so as to cover the premises in dispute in 1818, surveyed by the United States and patent certificate issued, and that this title is vested in defendant.</p> <p>“ 12. Adolph Renard, Recorder of land titles, testified that he had been in the Recorder’s office since 1836, and had been Recorder since 1847 ; that the annotation on Guion’s claim ‘ in Chouteau mill tract,’ was in the handwriting of Hunt; he believed the entries on pp. 49 and 116 of Hunt’s Minutes in regard to the Roy claim, and mutually referring to each other as one and the same claim, were also in Hunt’s handwriting.”</p> <p>The defendant then offered to prove by him that these annotations had always, since he had been Recorder, been treated by him in his office as a part of the record, and were so considered.</p> <p>• The court, on plaintiff’s objection, excluded this testimony, and defendant excepted.</p> <p>Witness testified that a portion of the cul de sac, as at present surveyed, was embraced within the Chouteau mill tract; but he knew nothing of this personally. He gathered all his information from records in his office.</p> <p>Tiie defendant then offered the claims of Guión, with the annotations ; also the claim of Roy with the annotations; both of which the court excluded, and he excepted.</p> <p>The defendant also offered the claim of Roy as contained on page 116, with the erasures and without the annotations, whiclnthe court excluded.</p> <p>The defendant then introduced John B. Pourcelli, who testified that the cul de sac common field was embraced within the western part of Chouteau’s mill tract, and did not embrace the premises in dispute. One or two other witnesses testified.:to the same thing.</p> <p>The court then gave the following instructions for the plaintiff, to the giving of which the defendant excepted :</p> <p>No. 1. The certified copy of the registry of confirmations, read in evidence, is, prima facie proof that Joachim Roy inhabited, cultivated or possessed the land therein described prior to the 20th day of December, 1803.</p> <p>No. 2. The survey made by the Government of the United States of the tract of land confirmed to Joachim Roy, or his legal representatives, is prima facie evidence of the true location of the land so confirmed. And if the jury find from the evidence that the premises sued for in this case are within said survey No. 3307 — if the respective wills of Joachim Roy and Yeronique Guitard, and the deeds read in evidence by the plaintiff, are genuine, then the plaintiff is entitled to recover in this action, unless the jury should find from the evidence that Joaehim Roy, prior to the 20th December, 1803, abandoned his possession and claim of the said premises, or that the lot which he actually cultivated and claimed in the cul de sac common fields is not the same that is claimed in part by the plaintiff in this suit.</p> <p>No. 3. Abandonment of a lot,or tract of land is the voluntary relinquishment of the former proprietor of all right or pretence of claim thereto, and such abandonment may be proved by facts and circumstances. And in the case under consideration if the jury find that Joachim Roy, prior to the 20th December, 1803, cultivated, inhabited or possessed the land in question ; before the jury can find that he abandoned the said land, the jury should be satisfied from all the facts and circumstances given in evidence in this case that said Roy voluntarily relinquished all right or pretence of claim to said land. Although the jury may find from the evidence that Joachim Roy, prior to the 20th December, 1803, ceased to cultivate the land in question, that fact of itself is not sufficient to prove that he abandoned his claim to said land.</p> <p>No. 4. If the jury find for the plaintiff, they should assess his damages at the yearly value of the rents and profits of the premises in question from the 17th day of September, . 1856, and should also fix the monthly value of such rents and profits at this time.</p> <p>The defendant then asked the following instructions, which the court refused to give, and the defendant excepted thereto:</p> <p>No. 1. The evidence of right to the land in question, as shown in the confirmation and surveys given in evidence on the part of the plaintiff, is inferior to the evidence of right to the said land as shown by the defendant in his testimony given to the jury in this case.</p> <p>No. 2. If the jury'believe from the evidence that Joachim Roy and his representatives abandoned the possession of the land which said Roy cultivated before 1803, and all the right and title which said Roy had to the same, the plaintiff ought not to recover in this action.</p> <p>No. 3. If Joachim Roy cultivated apart of the lot in question before the 20th of December, 1803, without having any right, title or claim thereto but such as the law imputed to him on account of such cultivation; if several years before 1803 he ceased to cultivate, and never afterwards cultivated or possessed the same, or asserted any claim to the same as owner; if he died in 1801, and no person claiming to represent his rights did ever inhabit, cultivate or possess the same, (or assert any claim to the same as owner,) these facts are strong evidence of abandonment, and the jury will be well warranted in finding that the plaintiff has no title to the land in question, as derived from the said Joachim Roy.</p> <p>No. 4. If the jury find that cadet Jean Rion, or his representatives, claimed before the Recorder of land titles the land now embraced in the United States survey No. 3307, in order to make proof and get a certificate of confirmation therefor, under the act of Congress of May 26, 1824; that the Recorder entered the claim on his record in the name of Rion, and made a certificate of confirmation in the name of Rion, and that subsequently the name of Rion was erased and the name of Roy inserted in lieu thereof, such alteration of the record and certificate (both or either of them) was without authority and unlawful, and the said Roy or his representatives got no title thereby.</p> <p>No. 5. The plaintiff claims under one Joachim Roy, in virtue of a confirmation to said Roy or his legal representatives, of the title to a common field in, adjoining or belonging to the town of St. Louis, by force of the act of Congress of June 13,1812, and the court instructs the jury that that act of Congress gave no title to the said Roy or his representatives to the said field lot, unless over and above the fact that said Roy cultivated part of the land prior to the 20th of December, 1803; it also appears in proof that the said Roy had some right, title or claim to the said land prior to the 20th December, 1803, and that such right, title or claim continued and was in existence on the 13th of June, 1812.</p> <p>No. 6. Prior to the 20th of December, 1803, the bare fact that Joachim Roy cultivated a portion of land near the town of St. Louis, did not make the said land a common field lot; and if it were in fact a common field lot, the bare fact of its cultivation by Roy did not give to the said Roy any right, title or claim to the said lot as against the Government of Spain, France or the United States.</p> <p>No. 7. The act of Congress of May 26, 1824, is the only law which empowered the Recorder of land titles to issue certificates of confirmation of lots the titles to which were confirmed by the act of June 13, 1812. And if the jury find that the Recorder did on the 30th July, 1825, (or at any time within eighteen months after the passage of the said act of 1824,) issue a certificate of confirmation for the lot now in qiiestion to said Roy, or his representatives, that certificate is the evidence of title in said Roy or his representatives provided by the act of Congress, and the plaintiff, in so far as he claims a part of said lot under said Roy, ought to produce the said certificate in evidence as a legal muniment of his title. 1. If such a certificate were issued by the Recorder, lie thereby exhausted his power in that respect under the statute, and had no power to issue another and different certificate to the same party for the same lot in 1857. 2. The certificate of confirmation given in evidence is illegal and void, being without any authority of law. 8. The certificate of confirmation given in evidence is defective and does not conform to the act of Congress of May 26, 1824, which is the only law which authorized the Recorder to issue any such certificate. 4. In proceeding under the act of Congress of May 26, 1824, the Recorder acted judicially; he had power under the act, for eighteen months after its passage, to take the proofs offered by the claimant of “ the fact of inhabitation,” cultivation or possession, (of the lot,) together with its extent and boundaries”; and having taken such proofs, if they were satisfactory to him, it was his duty then to issue a certificate of confirmation, setting forth the extent and boundariesof the lot, as proven before him in 1825 ; and, in issuing a certificate in 1857, he had no lawful power to set forth the extent and boundaries of the lot by a survey then recently made, instead of the testimony lawfully taken before him long before the survey was made.</p> <p>The second instruction given for the plaintiff put the case to the jury on a basis too narrow. It excludes from their consideration the alteration of the record. It excludes from the jury any question as to whether the representatives of Roy (who was buried in 1801, two years before the treaty) abandoned the premises. It excludes all consideration of the question whether Roy or his representatives continued to claim the premises up to 13th June, 1812.</p> <p>It is obvious that the act of 13th June, 1812, did not grant lands to persons who did not at that time “ claim ” the land.</p> <p>The certificate is prima facie proof of the possession, &c., prior to 1803, and of the claim on the 13th June, 1812 but the defendant still had the right to insist before the jury that Roy’s representatives ceased to claim this land prior to 13th June, 1812. (City of St. Louis v. Toney, 21 Mo. 254.)</p> <p>The omission to put the question of abandonment to the jury so as to include Roy’s representatives was not accidental. The second instruction asked by the defendant and refused by the court was framed so as to meet this defect. The omission cannot therefore be said to be either accidental or immaterial.</p> <p>The third instruction given for the plaintiff is erroneous :</p> <p>1. It tells the jury, first, what abandonment is, and, in attempting to define abandonment, it says it is the voluntary relinquishment of the former proprietor of all right, &c. It should have said the proprietor, and not the former proprietor. This adjective has a meaning when coupled with the concluding portion of the instruction which again confines the question of abandonment to Roy and excludes his representatives.</p> <p>2. To tell the jury that the cessation of cultivation by Roy, (again excluding his representatives,) prior to 1803, was not of itself sufficient to prove that he abandoned his claim, was calculated to mislead the jury, and was erroneous. If the court could tell the jury that ceasing to cultivate the premises was of itself no proof of abandonment, it might with equal propriety say that ceasing to inhabit the premises was no proof of abandonment, and that ceasing to possess the premises was not of itself sufficient proof thereof.</p> <p>Where a question is to be determined by the jury from “ facts and circumstances,” it is wrong for the court to select one of the “ facts or circumstances ” and tell the jury that that is not sufficient proof. On this principle the whole case could be taken from the jury. There was no evidence that Roy ever inhabited or possessed the land otherwise than by cultivation. His cultivation of the premises was the only foundation of his “ claim.”</p> <p>The first instruction requires the jury to find for the plaintiff, unless they find that Roy abandoned the premises, or that the lot he claimed and cultivated did not embrace the premises in dispute. The other instructions narrow this question still more by telling the jury what abandonment is, and by nullifying the effect of the ceasing to cultivate the premises; and the instructions are all so worded as to exclude from the jury the action, or rather the non-action of Roy’s representatives, from the time of his death, and also all question as to non-claim subsequent to 1803.</p> <p>“ It is clear that if a claim was abandoned it had no existence at the date of the act, and could not, therefore, be confirmed.” (City of St. Louis v. Toney, 21 Mo. 254.) “Ifthe inchoate right, commencing under the Spanish Government, continued in existence until the act of 1812, it was confirmed.” (Ibid.)</p> <p>The refusal to give the second instruction was erroneous.</p> <p>The non-claim of Roy’s representatives for more than twenty years subsequent to 20th December, 1803, was competent evidence tending to prove abandonment prior to that date.</p> <p>Roy had no inchoate title. He cultivated a common field in the cul de sac, and when the common field fence, trait corre, fell down, he ceased to cultivate it. This fence fell down several years prior to 1803. No claim or possession of any kind was made from that time until 1825, a period of nearly thirty years, when Eustache and Eranqois Cayoux, who then owned the “ claim ” if any one did, appeared before the Recorder and testified that they had no interest in the premises. All these facts should have been permitted to have their due weight before the jury on the question of abandonment.</p> <p>The court erred in refusing the defendant’s fourth instruction.</p> <p>It is not shown by whom these erasures and interlineations were made. No note or other memorandum whatever exists to show that they were made (by the Recorder or any one else in office under the Government). It is proven by Lane in his letter that they were made long after a certificate had been issued upon the entry as originally made.</p> <p>The only evidence of a confirmation to Roy’s representatives under the act of 13th June, 1812, is the legal presumption arising from the copy of the registry of confirmation of 1825 by Hunt, and the certificate of confirmation issued in 1857, after this suit was brought. It is not denied that a confirmation under or by the act of 1812 is superior to a New Madrid location, nor that such confirmation may be proved orally at the present time; nor that the registry of confirmation of 1825, or the certificate thereof of 1857, is good against the Government and all claiming under it subsequent thereto. But it is admitted that this land had been appropriated in satisfaction of the New Madrid location certificate in 1818, six years before the passage of act of 26th May, 1824. This was an exchange of this land for the improved land in New Madrid. (See authorities cited by defendant in Holmes v. Strautman.) Its officers could not subsequently admit away the title thus granted. Their certificates cannot affect its prior grantee, any more than the certificate or admission of the assignor of a bond subsequent to the assignment that he had previously assigned it to a third person can avail against his assignment. (Soulard v. Clark, 19 Mo. 581.)</p> <p>The owner of the New Madrid location was no party to the proceedings before the Recorder. There was not at that time any record showing a claim to this land, nor .any possession or visible indication of a claim, so as to warn the locator of the New Madrid certificate.</p> <p>The court erred in excluding the annotations of Recorder Hunt on the margin of the two confirmations from pages 49 and 50 and page 116, mutually referring to each other as being one and the same “ claim.”</p> <p>The court below erred in excluding the depositions of Francis and Eustache Cayoux. It is not pretended that Roy claimed or ever cultivated or possessed more than one lot in the cul de sac.</p> <p>There is no question that the representatives of Roy appeared before the Recorder and claimed the lot as described on pages 49-50. It is equally clear that these two Cayoux were then the sole representatives of Roy, and that they testified that that was the lot Roy cultivated. This claim and the depositions were made under and in pursuance of the “ duty ” imposed on them to “ designate ” the lot, and the “ boundaries,” and “ extent ” of the same. In other words, it was their duty to locate the lot by “ designation, boundaries and extent,” by “ proof.” These depositions are the “ proof.”</p> <p>These depositions are admissible for “some purposes.” (Clark v. Hammerle, 27 Mo. 55 ; City of St. Louis v. Toney, 21 Mo. 254.) There is no question of their authenticity. They were objected to on the ground of incompetency only. The question therefore arises as to what effect shall be given to them: First, as testimony taken by the Recorder in performance of his duties under the act of 26th May, 1824, and preserved as apart of the records in his office ; second, as the admission, or rather, the stronger case, of the most solemn asseveration or affirmation of the owner at the time; and whether he and those claiming under him are estopped thereby. (City of St. Louis v. Toney, 21 Mo. 256 ; Clark v. Hammerle, 27 Mo. 55.)</p> <p>As to the second point — 1. A party is estopped to deny his own acts which influence another. (Bank v. Wollaston, 3 Harr. 90 ; Hicks v. Crain, 17 Ver. 499 ; Rongely v. Spring, 8 Shep. 130.) 2. These Cayoux were parties, owners and claimants. These depositions were made in the performance of the duty imposed on them by law, and the Recorder acted judicially in determining the validity of their claim. They are therefore admissible as the — 1. “ Solemn admissions ” of the parties. (1 Green. § 27-169) ; 2. As the declarations of the parties in interest (ibid. 5 27-169): 3. As judicial admissions. {Ibid. § 216).</p> <p>The court erred in excluding the report of the Surveyor General to the Commissioner of the General Land Office of 19th August, 1852. Neither the act of 1812 nor 1824 makes provision for the survey of private claims, except for the purpose of separating them from school or vacant lands, and a question has been raised whether such surveys are evidence at all except between the Government and the claimants. But the court below admitted a survey made in March, 1857, after the commencement of this suit. Now, what was this survey but an official act of the Surveyor General, declaring where this confirmation ought to be located according to the records in his office ? Is it not competent to rebut this action of the Surveyor General by the records themselves ? This report is an official act of the highest moment, for it is made for the use of the immediate superior of the office, and is prior in point of time to the survey under which the plaintiff claims.</p> <p>The case stands briefly thus: In 1852 the Surveyor General declares officially that the cul de sac common field does not cover the premises in dispute, and in 1857 the Surveyor General declares that it does; and the question being open to the jury, the court admits the one for the plaintiff and excludes the other for defendant.</p> <p>All the records in the Surveyor General’s office relating to the survey and location of the lot, and of course those relating to the locality of the cul de sac common field, of which it was a part, are admissible.</p> <p>I. The instructions given by the court below, at the instance of the plaintiff, in respect to the questions of inhabitation, abandonment, location, and the plaintiff’s title to the premises in dispute, assert correct rules of law. The vital questions of fact involved in the case were fairly submitted to the jury under proper instructions, and the jury having responded to the issues, this court will not disturb their verdict.</p> <p>II. The first instruction asked by the defendant (and refused) is clearly erroneous, because it withdraws the questions of fact to which it is directed wholly from the consideration of the jury.</p> <p>III. The second instruction asked by defendant (and refused) is directed to the question of abandonment. The court had already correctly and fully instructed the jury as to what constituted abandonment in the sense of the law, and also that if possession and claim had been abandoned by Roy or his legal representatitives, the plaintiff could not recover.</p> <p>The second and third instructions given at the instance of the plaintiff cover these points fully, and the law as laid down in those instructions has been the rule of this court in numerous cases. The court below having ruled on the same point, there was no necessity of repeating the rule by giving the second instruction. There was no error, therefore, in giving this instruction.</p> <p>IY. There are two objections to the third instruction refused by the court below:</p> <p>1. It is a commentary on the evidence; and,</p> <p>2. It virtually asserts that possession and cultivation prior to December 20th, 1803, are of no avail under the act of 1812, unless such possession and cultivation were in virtue of some prior grant or title. This is not the law — the contrary of which this court has frequently held. (Page v. Scheibel, 11 Mo. 167 ; Guitard v. Stoddard, How. U. S., &c.)</p> <p>Y. The fourth, seventh, eighth, ninth, tenth and eleventh instructions refused, in effect declare that the certificate of confirmation given in evidence (in the name of Joachim Roy) is void. This point has already been ruled by this court in this case against the defendant. (Clark v. Hammerle, 27 Mo. 55.),</p> <p>YI. The possession, cultivation, continued claim of Roy and his representatives, as well as the identity of the land in question were pure questions of fact before the jury, under proper instructions of the court, and ought not to be reviewed here. Upon a careful examination of the record, it will be seen that the case was tried in the court below in strict conformity with the rulings of this court in the same case; we, therefore, invoke the decision made in 27 Mo. 55.</p> <p>YII. The objection made to the reading of the certificate of confirmation issued by the Recorder of land titles and offered by plaintiff is frivolous. The Recorder had the same authority to issue that certificate in 1857 that he or either of his predecessors ever had to issue it, and it was lawful for him to issue it — that is, that he had lawful right to issue it cannot be denied. The objection, that it was issued after the suit was begun, is point no point. The facts existed prior to the suit, and the certificate is simply evidence of those facts.</p> <p>YIII. The affidavits of Francis and Eustache Cayoux, which were the proofs taken by Recorder Hunt at the time he made his act of confirmation, were not evidence of any material fact tending to sustain the defence. Admitting (as was held in this case in 27 Mo.) that those affidavits are hearsay evidence, the question arises what is the hearsay or secondary evidence they establish ? It is simply that Joachim Roy inhabited and cultivated the land in question until the common field fence fell down in 1798 or 1800. This evidence is not necessary to the defendant’s defence. (Williams v. Carpenter, 28 Mo. 453.)</p> <p>IX. The rejection of the testimony offered by the defendant, viz., that Recorder Renard had always treated certain “ annotations ” made on the margin of certain claims as part of the record, was proper. This evidence had nothing to do with the question at issue. It had nothing to do with the question of abandonment. This evidence was offered for the ■ purpose of invalidating the certificate of confirmation given in'evidence by the plaintiff. In other words, the effort, was made to prove by the annotations that- the confirmation was made to Rion and not to Roy.</p> <p>X. The exclusion of the report of the Surveyor General made August 19, 1852, was manifestly correct. It is at best simply the Surveyor’s opinion as to the proper method of making certain surveys. Upon the question of location, the Surveyor General was a competent witness, and might have been called. His report did not originate with the plaintiff, nor had he any lot or part in it. The report is wholly ex pwrte, and does not assume to confirm or change any one of the surveys mentioned in the report. This fact is sufficient to justify the exclusion of the report. Whenever a Register, Receiver or Surveyor General does an official act authorized, whether such official act be evidenced by correspondence, report, or other written form, doubtless a certified copy may be given in evidence if the act is pertinent to the question at issue. But in this case the Surveyor, by his report, does nothing, nor does he propose to do anything; on the contrary, he expressly says that he does not propose to disturb “ old surveys,” &c.</p> <p>It cannot be shown from the Surveyor’s report that it contains any evidence of an official act of his. Hence, the whole was irrelevant, and only calculated to mislead the jury-</p> <p>To show that official correspondence is only evidence of official acts, see Coleman v. Johnson, 29 Mo. 84.</p>