Volume 38 — Missouri Reports

Louis Court of Common Pleas. The answer, setting out tlie facts, specially denied that the-defendant prosecuted the plaintiff for larceny; alleged that defendant, being the owner of a lot of ground, and the buildings and fences thereon, from which part of the materials had been takenat plaintiff’s instigation, and used by him on premises he occupied, and worked up by him, did make a complaint to a policeman, but did not name the character of the offence, alleging that he…

Louis Land Court. This was an action on a mechanic’s lien. The petition, filed October 16,1860, alleged that the defendant Charles Schuler was the contractor of the defendant Louis Peters for the erection of the house described in the petition; that said Schuler contracted with plaintiffs to furnish the materials and do the brick work thereof; that said Schuler was justly indebted to them in the sum of $915 for work and labor done on, and materials furnished for the erection…

Louis Circuit Court. This was an action on a special tax bill brought under an act of the General Assembly of 1857.

<p>Attachment — Cash Sale. — To authorize an attachment under subdivision lé, § 1, p. 239, R. C. 1855, it must be stipulated by the contract, that the price or value of the article sold was to be paid on delivery. If credit was given or intended, the creditor must pursue his remedy by an ordinary action at law. A promise to give a note payable at a future date, is not a promise to pay on delivery.</p>

Louis Court of Common Pleas. I. The infant defendants were not properly before the court; if so, all the proceedings against them are erroneous — Hendricks v. McLean, 35 Mo. 32. a. Sheriff’s return. There is no legal service upon the infant defendants.

Louis Circuit Court. This suit was instituted by Francis Josse against Newman, and during its pendency Josse dying, his administrator was made a party. It is brought to recover the sum of two hundred and twenty-five dollars on this agreement : “ It is mutually agreed between Francis Josse, of the one part, and Soc. Newman, of the other part, that the said Soc.

By § 32, ch. 8, R. C. 1855, it is provided that an assignee failing to make payment of funds belonging to his trust in liis hands, after demand shall have been made therefor, shall pay interest thereon at the rate of twenty per cent, per annum.

<p> Appeal from St. Louis Cowl of Common Pleas. </p> <p>cited Bay v. Codding-ton, 20 John. 637 ; Goodman v. Simonds, 19 Mo. 106 ; Bristol v. Sprague et al., 8 Wend. 421.</p> <p>cited 2 Greenl. Ev. § 136; Lloyd v. Jewell, 1 Greenl. 132; Howard v. Wilson, 2 Greenl. 390 ; Knapp v. Lee, 8 Pick. 452; Yibbard v. Johnson, 19 Johns. 77; Whitney v. Lewis, 21 Wend. 131, 134; Green-leaf v. Cook, 2 Wheat. 13; Fulton v. Griswold, 7 Martin, 228 ; Grant v. Kidwell, 80 Mo. 455.</p>

Louis Land Court. I. The defendant was entitled to have deducted from the plaintiff’s demand an amount equal to the difference in value between the work which was done, and that which ought to have been done under the contract — Lee et al. v. Ashbroot, 14 Mo. 378 ; Britton v. Turner, 6 Ñ. H. 481. II.

Louis Land Court. I. The action was one for cancellation, rescission, and for general relief; and prior to the late code was purely an equity suit. Held: rented, and dealt with all the property under the contract as his own, and still does; he is therefore barred from any right to rescind, and has waived it, if any he ever had — 1 Adol. & Ell. 40; Campb. v. Fleming, 7 Greenl. 70; Brinley v. Tibbetts, 4 Mass. 502.

Louis Circuit Court. I. Plaintiff, in accordance with the custom of defendant to collect notes for its customers, deposited his note with defendant, and it received it and undertook to collect it, or to take the proper steps to fix the endorser. On general principles of bailment, defendant was bound to give notice to the endorser of the note, if it undertook the business even as a gratuity — Edw. Bail. 112 ; Sto.

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

Louis Circuit Court. I. The assignment and survey in question, made in 1837, were not in accordance with the then existing laws. Held: that it shall not exclude the deposition.” — 1 Wright, 513; 1 Bibb, 89; Overton v. Lackey et al., 1 Cook, 196 ; Bastard v. Gates & wife, 4 Dana, 429; 3 Binn. 26.

Louis Circuit Court. The facts sufficiently appear in the opinion. The plaintiff asked and the court gave the following instructions : 1.

Louis Land Court. I. The instruction relating to title, given for defendant, decided that the deeds of Alfred Skinner to Bailey’s trustees, and to Blumenthal, embraced in their description the land in controversy, and thus took from the jury the whole case. The court could not, as a matter of law, decide that said deeds conveyed the premises in suit, on the evidence presented in the case. II.

<p> Error to St. Louis Circuit Court. </p> <p>I. The liens of judgment in St. Louis county have priority only according to the time of their respective entries in the book of abstracts of judgments kept in the office of the clerk of the Land Court — B,. C. 1855, p. 1594, § 13.</p> <p>II. The four judgments rendered on the 2d day of October, 1860, abstracted in the office of the clerk of the Land Court on the 6th day of the same month, must have equality of lien. There can be no division of a day.</p> <p>III. The judgment in favor of Garesché was rendered and filed in the office of the clerk of the Land Court prior to either of the others mentioned in the record, and, being a prior lien, is not entitled to any of the money realized by the sale under the junior judgment, but the purchaser takes the real estate subject to the lien of this prior judgment.</p> <p>I. There is no final determination of the rights of parties in this case. The writ of error will have to be dismissed— Adams v. Trigg, 25 Mo. 190.</p> <p>II. The Supreme Court will not review the action of the Circuit Court, where the Circuit Court refused to entertain a motion against the sheriff — Ladew v. Spalding, 17 Mo. 159.</p> <p>III. The Circuit Court properly overruled Bruce’s motion.</p> <p>a. The sheriff ought notHo be subjected to the annoyance and harassment of a litigation, without being summoned as other defendants.</p> <p>b. Bruce was not entitled to the proceeds of the sale un der the Brown execution, nor to any part thereof. The amount realized was not sufficient to cover the Brown execution, under which the levy and sale had been made. No levy was made under Bruce’s execution.</p> <p>At common law, neither judgments nor executions were liens on the land of the judgment debtor; they became so by statute (Westm. 2, 13 Edw. I. C. 18), but were limited to those laiids of which defendant, or some one to his use, was seized (in possession) — 3 Bl. Com. 418 ; Tidd Prac. 850, and cases there cited.</p> <p>By our statute (1855) judgments are liens on the “ real estate” (R. 0.1855, p. 902,) and inter sese all of equal force rendered at the same term. But by act applicable to St. Louis, “ no such judgment shall be a lien until filed in Land Court office, in abstract book; and the liens of all judgments entered in said book, as provided for in this act, shall have priority according to the period of time of their respective entries in said book.”</p> <p>The part of the statute above quoted is an amendment passed by the Legislature after the case of Dunscomb v. Maddox, 21 Mo. 144, and intended to remedy or change the law as decided by that case. So that there should be a priority in favor of the earliest judgment entered on the abstract — Laws' 1852-3, p. 90, § .14, interpreted by Dunscomb v. Maddox, 21 Mo. 144 ; R. C. 1855, p. 1594, § 13.</p> <p>The proceeds must be applied to the execution under which the levy and sale were made. The statute gives a lien to a judgment creditor, but he must prosecute this lien ; and he may lose it by neglect, or lose his preference by the superior diligence of another execution creditor.</p> <p>Here Bruce had rested on nulla bona returns since 1861— Smith v. Lind, 29 Ills. 28, and cases cited. Brown levies on an equitable interest in land, of which Ladew is not in possession, and of which he has not the legal title. Tiie title is in one "Wood. -A purchaser from Wood in good faith would' be protected against judgment creditors of Ladew, notwithstanding that judgments agaist Ladew are liens: so will a party who, by superior diligence, hunts up an equitable interest and levies upon it, be preferred to one who lies idle upon a mere lien.</p> <p>If the proceeds go to any other execution than Brown’s, then it is to Garesché’s execution, also in the sheriff’s hands; the judgment being eldest in time in the Common Pleas, and first abstracted.</p>

<p>Landlord, and Tenant. — A tenancy at will, not witnessed by a writing, commences only from the day the tenant enters into possession.</p>

Louis Land Court. This was an action of ejectment, commenced in the St. Louis Land Court, at the March term, 1857, to recover lot No. 182, in Carondelet commons, south of the river Des Péres. The defendant, in his answer, denied the title of the plaintiff; and also that he, defendant, had entered into the possession of the lot.

Louis Land Court. I. A deed absolute on its face, but given as a security for money, is a mortgage — 1 Lorn. Real Prop. 315; 1 Pow. Mort. 116 ; 7 J. Oh. 41; Clark v. Henry, 2 Cow. 332; 22 Mo. 77; 2 Sum. 531; 16 Mo. 129, 143 ; 21 Mo. 329; 1 How. 118 & 126. Parol evidence admissible — 1 Pow. Mort. 120, n. 2; 14 Wend. 66. II. Ejectment may be maintained on sheriff’s deed of mortgagor’s interest against mortgagor.

<p> Error to St. Louis Court of Common Pleas. </p> <p>The ambiguity does not arise upon the face of the contract. It is not “ patent.” No one would discover it merely by inspection of the paper. Some outside fact must be known before any ambiguity appears. It is not until we are informed that, in point of fact, there are two tracts of land which will answer the description in the contract, that any ambiguity appears. This fact could only be known by proof. Although the court below knew it, from his general familiarity with the plan of the city of St. Louis, yet it was not a fact of which he could take judicial knowledge (1 Greenl. Ev. § 6) ; and therefore it was not a fact that could appear in any legal manner in the case, until it was established by competent proof. This was never done. The court erred by assuming it; for if the paper had been admitted, and the defendant had sought by parol to destroy its force, by proving that it described more than one piece of land, the plaintiff would then have had the right to show to which land defendant intended it to apply. It then became, or rather always was', a “ latent ambiguity,” which, according to all the authorities, might be removed by parol evidence — 1 Greenl. Ev. §§ 297, 298 (last clause), 299 (2d clause), 301 (n. 1), pp! 406,408; id. p. 411, n. 1, and authorities there cited, viz: 1 Mete. 378, on p. 381; 13 Pick. 261, on p. 265-6 ; 4 Mete. 438, on p. 451; Bates et al. v. Bank of Mo. 15 Mo. 309-12. It is in. sisted that upon the authorities above cited, the court should have admitted the contracts.</p> <p>But, in ascertaining where these streets lie, we first discover an ambiguity in the description. It might, perhaps, with more propriety be called a defective or imperfect description. It lacks a single element to make it precise, definite, and perfect. If it had said 185 feet on the south side of Washington avenue, all would have been clear.</p> <p>I. The instruments of writing offered in evidence were not valid contracts for the sale of land — King v. Wood, 7 Mo. 389. The ambiguity is patent — 32 Mo. 79; 2 Pars. Cont. 294-9; 1 Greenl. Ev. § 300.</p> <p>II. The instruments of writing relied on by plaintiff as evidencing a contract of sale, were vague, indefinite, and uncertain; and it is impossible from said instruments to determine either the parcels of land intended to be described, or the terms, or amount of payment.</p>

Louis Circuit Court. I. The court below erred in sustaining the demurrer to the plaintiff’s declaration. The City of Carondelet, among other enumerated powers, has power to provide for the construction and repair of all side-walks and curb-stones, and for the cleaning of the same, and of the gutters, at the expense of the • owners of the ground fronting thereon — Sess.

Louis Land Court. The court belo.w erred in deciding that no title passed to the appellant. I. Because there was express power given in the deed of trust to the sheriff to advertise, sell, and convey. II. Admitting for argument sake that there was no title in the sheriff, still, as the power was given to sell and convey, he could do it and pass the title.

Louis Circuit Court. I. The appellants insist that this act of Congress was constitutional and valid; but as that question is not raised, or involved in this cause, we neither cite authorities, nor make an argument in regard to it. For, II.

<p>1. Landlord and Tenant — Rents.—-As a general rule, whenever the estate, which the lessor had at the time of making the lease is divested or deo termined, the lease is extinguished with it. If, therefore, a lot of land or premises under lease are required to be taken for city or other public improvements, the lease, upon confirmation of the report of the commissioners condemning the property, becomes void.</p> <p>2. Practice — Default—Damages.—In a suit upon a lease, after a judgment by default, the tenant may, to diminish the damages, show that the title of the lessor has been divested or defeated.</p>

Louis Court of Common Pleas. In an action on a contract or note, if there has been an entire failure of the consideration after the giving of such note, even though originally there may have been no want of consideration, this forms a good cause of defence in an action on such notes, as between the original parties, or those claiming under them, who are subject to the same equities.

Louis Court of Common Pleas. Possession of personal property by the vendor after an absolute sale of it, is evidence of fraud against the vendee, as well as against the vendor who sells and retains the property sold — Twyne’s case, 3 Coke, 80, & 1 Smith’s Lea. Cas., 83.

Louis Circuit Court. The authorities have now settled, in reference to the giving of time, that a mere promise of indulgence is not suf-ficieut, that mere delay is not sufficient; that there must be “ an act of the creditor depriving himself of the power to sue, by something obligatory, which prevents the surety from coming into a court of equity for relief, because the principal having tied his own hands, the surety cannot release them.” These words are those used by Ch.…

<p>Divorce — Practice — Error. — Writ of error upon a judgment granting a divorce dismissed, the writ not haying issued within sixty days after judgment rendered. (K. C. 1855, p. 666, § 13.)</p>

Louis Circuit Court. This was a suit to recover possession of some trunks and valises.

<p>1. Revenue — Xien—Special Tax. — The cases of City of St. Louis to use Mc-Grath y. Clemens, 36 Mo. 467, and City of St. Louis to use Creamer v Oeters, 36 Mo. 456, affirmed.</p> <p>2, Revenue — Special Tax —Interest.—By the act of Jan. 16, 1860, § 2, Sess-Acts 1859-60, p. 382, if the special tax bill issued by the city engineer he not paid within six months after its issue, it will draw interest at the rate of fifteen per cent, per annum from the date of its issue.</p>

<p>1. Evidence — Res gestee — dgent.— The statements of an agent, made at the time and in relation to the business he is then transacting, form part of the res gestee, and are admissible in evidence against his principal.</p> <p>2. Evidence — Records.—Upon an issue, upon a plea of accord and satisfaction, alleging that the plaintiffs had accepted, in satisfaction of their demands, goods and property which they had seized by virtue of an attachment against the defendant, a mere variance in the names of the plaintiffs in the two suits is immaterial, there being no question of any matter determined in the particular suits.</p>

jError to St. Louis Circuit Cowrt. The plaintiff sued to recover the amount bid by defendant, at a sale made by plaintiff as trustee, of lands conveyed to him as trustee.

<p>Note — Demand—Protest.—A security signing a nóte as joint maker, is no' *3is-charged for failure to demand payment and to give notice of its refusal.</p>

Louis Land Court. The following notice was proved to have been served upon the owner of the property: “ Mr. A. H. W. Beckman. — Sir: Please take notice, that we bold a claim amounting to four hundred and thirty-sis 66-100ths dollars, for materials furnished' by us, under contract with Bascom & Wood, for altering and improving a thnée-story brick building situated upon the following described property in the city of St. Louis, to-wit [describing the property] : and that,…

<p>Education — Officer.—By the terms of the Constitution, Art. V., § 8, all officers appointed by the Governor to fill a vacancy, unless otherwise provided by law, were to hold their offices until their successors were duly elected, or appointed ,and qualified. . By virtue of this provision, the Superintendent of Public Instruction was continued in office until his successor was appointed or elected, and qualified.</p>

Louis Land Court. On the 1st of September, 1859, Jacob Appel, the plaintiff, executed his deed conveying a parcel of land to Gustavus Woltmann in trust, to secure to Charles Ebenau the payment of a promissory note for §2,000, payable three years after date, and six interest notes for $100 each, payable one every six months. The interest notes were duly paid at maturity.

Louis Court of Common Pleas. ‘ I. That the sheriff is trustee of this fund; that he held the note taken for the purchase money of the land, subject to the order of the court; that having been ordered… Held: that defendant took thorn with notice that they did not belong to A. B. — Byl. Bills, 122 ; 9 Paige, 57-60. This principle seems to be well settled. But the plaintiff relies doubtless upon the decision of this court in the case of Powell v. Morrison, 35 Mo. 244.

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

Louis Court of Common Pleas. The arbitrators ought to have been sworn before hearing the evidence touching the matters in controversy; and because they were not so sworn, the award is void, or at least voidable — R. C. 1855, ch. 7, § 8, p. 194; Toler v. Hayden, 18 Mo. 399 ; Garret v. Macey et al., 10 Mo. 161. The case of Hamlin v. Duke, 28 Mo. 166, does not militate against the above doctrine, nor does the case of Pearce v. McIntyre,' 19 Mo. 428.

Louis Court of Common Pleas. The plaintiff sued as endorsee of several promissory notes, executed by the Terre Haute, Alton and St. Louis Railroad Company as makers, and endorsed by Valentine & Co. (a firm composed of Charles H. Valentine, J. S. Dunlap and J. H. Alexander) and Thomas Allen; one for $2,176.18, dated November 18, 1857, to order of Thomas Allen, payable at nine months; one for $2,120.76, at twelve mdnths, to the order of Allen, and endorsed by him and Valentine…

Louis Court of Common Pleas. I. If the negotiable instrument be lost, there can be no remedy upon it at law, unless it was in such a state that no person but the plaintiff could have acquired a right to sue thereon; otherwise the defendant would be in danger of paying twice: therefore, wherever the danger of a double liability exists, as in the case of a bill or note, actually negotiated in blank, which has been lost or stolen, the claim of the former endorsee or holder has…

Louis Common Pleas Court. I. Notice to the president was notice to the bank; or to state the proposition more broadly, the fraud of the president, in matters which came within the line of his business as an officer of the bank, was the fraud of the bank. ■ It was to the interest of the bank to secure the debt due by Wills to the corporation.

<p>Principal and Agent — Contract.—A person who assumes to contract as agent, must see to it that his principal is legally hound by his act; i'or if he does not give a right of action against his principal, he will be himself personally responsible.</p>

<p>1. Insurance — Agency.—An agent may effect an insurance in his own‘name for the benefit of the owner without giving.the name of the owner of the goods, but the words of the policy must sufficiently indicate such intention. The word “agent’-1 attached to the name of the person assured', imports that he is acting for an undisclosed principal; and parol evidence is admissibl/e in such case to show for whose benefit the insurance is effected.</p> <p>2. Insurance — Open Policy. — The terms of an open policy declared that the subject insured should “be specified by application, and mutually agreed upon and written on the policy.” The secretary of an insurance company, unless lie has authority given him by the by-laws, has no authority to waive such endorsement on the policy. S. M. G., “agent,” had an open policy with the above stipulation, and applied to the insurer for insurance upon goods for a voyage ; the secretary of the insurance company made a memorandum upon his books of the application, but G. not having his policy with him, he was told by the secretary that he must bring his policy and have the proper entry made : the goods had been lost at the time of the application, and on the same day G. was notified by the secretary that the goods were not insured, and he subsequently refused to make the entry on the policy. Held, that, as the policy required the application to be endorsed upon the instrument, the insurance never attached to the goods, and that the owner could not recover.</p>

Louis Circuit Court. The facts are stated in the opinion. The defendants asked the court to instruct the jury as follows, which the court refused, and defendants excepted: 1.

<p>Practice— Garnishment — Default. — The denial to the answer of the garnishee was not filed within the time prescribed by the rule of court, but was after, wards filed, and a judgment by default taken against the garnishee ; to set aside which judgment, a motion was made, supported by affidavits, of a good defence upon the merits, and that the garnishee had no notice of the filing of the denial out of time, which motion was overruled. The Supreme Court reversed the judgment and remanded the case, with leave for the garnishee to file his reply.</p>

<p>1. Crimes — Homicide. — The law of homicide may be regarded as definitely established in this State by a series of well considered and consistent decisions. Where the evidence all tends to prove a case of murder in the first degree, or of justifiable homicide, it is proper for the court, by its instructions, to confine the attention of the jury to the two points.</p> <p>2. Crimes — Murder.—The right of self-defence, which justifies homicide, does not imply the right of attack, and the plea cannot avail in any case where the difficulty was induced by the act of the party accused in order to afford him a pretext for wreaking his malice.</p> <p>•3. Crimes — Murder—Manslaughter.—To have the effect to reduce the guilt of killing from that of murder in the first degree to manslaughter, the provocation must consist of personal violence; neither words of reproach nor insulting gestures can have this effect.</p> <p>4. Practice— Trial — Evidence.—When it is proposed to contradict a witness by proof of different statements made, the attention of the witness must be called to the time, place and person involved in the supposed contradiction.</p>

Louis Circuit Court. This was a suit upon a bill of exchange, dated St. Louis, Oct. 23, 1860, drawn by defendants, in favor of the plaintiff, upon Jno. J. Anderson & Co., and accepted by them, payable sixty days after date, at the Bank of Commerce, New York, for $5,000, protested for non-payment. The petition alleged protest and notice to defendants.

<p>Practice — Supreme Court. — Appeal dismissed for want of final judgment in the lower court.</p>

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

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

This case was commenced in the Cooper Circuit Court by filing a petition, praying for a writ of prohibition to issue against the County Court and John N. Pierce, stating that the plaintiffs were trustees of the Methodist Episcopal Church South, situate in the city of Boonville, on the south half of lot No. 238 on the plat of said city, and that they as such trustees were in the actual and rightful possession of said church property, and’ that they and the persons under whom…

The only question presented by the record in this case is whether or not the Circuit Court was right in striking out •defendant Green’s answer. The defendant Green’s answer ■pleads, in bar of plaintiff’s right of recovery, an arbitration and an award. Arbitrations, or agreements to submit any .matter of difference, may be verbal or by parol — Kyd on Awards, 9, 10, 261; or in writing, in conformity to the statute.

In the year 1857, the appellee, Phillips, sold and delivered to the appellant, Evans, a certain negro, named “ Clara,” (on the 26th of August of that year,) for the sum and price of $1050, and about the same time he sold and delivered to said Evans certain personalty for the further sum of $-, which sums were added together, and the appellants executed their joint promissory note therefor.

I. The County Court had authority to dedicate said lots to public use — R. C. 1825, p. 246, §§ 7 & 8 ; id. p. 762, §§ 1 & 4. II.

The plaintiff in error, who was also the plaintiff in the court below, commenced suit, returnable to the May term of the Lafayette Circuit Court, in the year 1864, on a promissory note for ten thousand dollars, secured by mortgage on real and personal property; the suit was to have the mortgage foreclosed.

I. The question before the Circuit Court involved the simple fact, whether R. C. Yaughan, on the 3d of July, 1865, was acting and discharging the duties of the office of clerk of the Circuit Court of Lafayette county; whether he was clerk de facto of said court. II.

jError to Cass Circuit Court. I. The first execution was issued within a year, and returned unsatisfied in part.

<p> Error to Lafayette Circuit Court. </p> <p>The letter of Cowan to plaintiffs, and which is the only evidence in the cause, giving directions, does not coniine plaintiffs to a sale on the levee alone of the hemp in question; and if the best price possible for the hemp could reasonably and fairly be expected to be made and obtained by storage for a short period, and the plaintiffs, in the exercise of a reasonable and prudent discretion for the interests of Cor-der, did store the hemp and then in a few days sell the same, there is no such violation of orders or instructions sufficient in law to relieve Corder from the consequences of inherent worthlessness of the hemp.</p> <p>The suit of the St. Louis Bagging and Rope Company against the plaintiffs in this action arose from the carefully concealed and hidden character of the hemp in the bales when received by plaintiffs, and such secret, hidden and carefully concealed defects rendering the hemp unfit for sale, whether the sale were made on the levee, or after short storage, or in the usual mode by sample; and whatever damages were adjudged against these plaintiffs in favor of said company, these plaintiffs have a right to be reimbursed therefor.</p> <p>The instructions of the defendants are based on the failure to sell the hemp on the levee alone; they ignore the secret, concealed and carefully hidden defects and worthlessness of the hemp; they ignore the direction or instruction to sell for the best price possible.</p> <p>It was the duty of the consignor Cowan as Corder’s agent* as well as the duty of Corder himself, to have dealt fairly and honestly with the plaintiffs, the consignees in this case, by giving to them information in regard to the quality of the hemp. This they failed to do.</p> <p>The letter of Cowan to the plaintiffs is not free from ambiguity. It has two distinct paragraphs: “You will please sell on the levee, and remit the proceeds by express to my care.” “ Please sell for the best price possible, as it is at my solicitation that it is consigned to you.” Now if the plaintiffs fairly believed that by storing it for a few days it would bring more money, a better price, they could under these instructions clearly do it, and the defendant Corder would be bound thereby. Verba fortius aecipiuntur contra proferentem. — Lorain v. Cartwright, 3 Wash. C. C. 151 ; Liverm. Ag. 403-4; DeTastet v. Orousillait, 2 Wash. C. C. 132 ; Courcier v. Ritter, 4 id.-; Sto. Ag. §§ 74, 82, 85, 199; Parker v. Imley, 15 Wend. 431; Sto. Ag. § 141; Davis v. Waterman, 10 Yt. 526 ; 'Judson v. Stringer, 5 Day, 556; Williams v. Shackelford, 16 Ala. 318; Peres v. Miranda, 19 Mart. 494; Drummond v. Wood, 2 Caines, 310; Forester- v. Bordman, 1 Sto. C. C. 43.</p> <p>No instruction could oblige the plaintiffs to be the instruments of Corder’s fraud — Smith’s Com. L. 98 ; Bexwell v. Christie, Oowp. 395.</p> <p>The principal is liable to the agent for damages suffered in the course of his agency — Sto. Ag. § 339 ; Powell v. Trustees of Newburg, 19 John, 287; 8 Term. 610 ; D’Arcey v. Lyle, 5 Binn. 441; Stocking v. Sage, 1 Day (Conn.), 552 ;l McLean v. Drew, 4 Bing. 722; Clark’s Exéc’r v. Yan Reems-dyk, 9 Cranch, 153 ; Willinks y. Hollingsworth, 6 Wheat. 241; Episc. Soc. v. Episc. Church, 1 Pick. 372 ; Prescott v. Elynn, 9 Bing. 19; Delafield v. State of Ills., 26 Wend. 225 -6; Weed et al. v. Carpenter, 4 Wend. 222; 5 Hill, 137'; Bells y. Gibbons, 2 Ad. & El. 57 ; Evans y. Potter, 2 Gall. 13 ; Loraine v. Cartwright, 3 Wash. C. C. 151; Leverick v. Meigs, 1 Conn. 645; Sto. Ag. .§ 339, 258; 10 N. H. 538 ; 4 Barb. 369.</p> <p>Corder had no right to subject his factor to commit a fraud in the sale of rotten hemp — Bexwell y. Christie, Cowp. 395 ; Smith Merc. L. 155-6; Chit. Contr. 204; Norris v. Cook, Curt. C. C. 464, as to ratification; 6 Cow. 354 ; 1 Sandfi. 360; 6 Eng. (Ark.) 189 ; 5 Minn. 339.</p> <p>I. The court did right in refusing the instructions asked by the plaintiffs ; they were not warranted by the law. An agent must be governed strictly by the authority of his appointment ; his instructions must be strictly followed, otherwise he cannot hold his principal responsible for his acts — 6 Cow. 354; 2 Johns. 48 ; 5 id. 58 ; 7 id. 389, and authorities cited; 13 id. 333; 2 Wend. 48; 7 id. 315 ; 4 Dali. 389 ; 1 Sandf. 406; 8 Yt. 98; Sto. Ag. § 192, pp. 225-6, .and authorities cited; Pal. Ag., by Lloyd, 3, 9, 10, 25, 26; 3 Chit. Comm. & Manuf. 215-18; 1 Liverm. Ag. ch. >8, § 2, pp. 368 -74, ed. 1818; Ure v. Connell, 16 Mart. 502; Manilla v. Bari'y, 3 Cranch, 415; Massey v. Davies, 2 Yes., Jr., 317; Beaumont v. Boultbee, 7 Yes. 608, 617.</p> <p>II. The acts of the defendant did not amount to a ratification of the action of his agent in this case ; and even, for the sake of the argument, admitting that they did, it does not affect this case. This is an action bv the agent against his principal, and he is held strictly to be governed by his instructions — 6 Eng. (Ark.) 189; 4 Seld. 398, and authorities cited; 23 111s. 470; 5 Minn. 339 ; 3 Greenl.,430; 11 Mo. 88 ; 13 Mo. 620 ; 17 Mo. 64; 1 Bing. 34.</p> <p>III. Suppose the Bagging and Rope Company had sued Corder, the principal, instead of the agents Yeatman, Robinson & Co., and had recovered, could not he (Corder) then have recovered from Yeatman, Robinson & Co., his agents, any damage sustained for a failure on their part in obeying his instructions — 17 Mo. 64. This case, it is submitted, settles the question.</p>

' I. The sheriff (McBroom) collected money on an execution in favor of the administrator of Acock; after the execution was issued the letters of administration to Atkinson and Acock were revoked, and before the money was made the plaintiff as public administrator took charge of the estate, and this entitled him to receive the money. Plaintiff demanded the money and McBroom refused to pay. (R. C. 1855, p. 751, § 67.) II.

I. The sheriff’s return on the writ of attachment was insufficient, and did not authorize the rendering of the judgment against Hale — R. C. 1855, p. 245, § 22 ; Cabeen v. Douglass, 1 Mo. 336; Walsh v. Agnew, 12 Mo. 521, 527; Thatcher v. Powell, 6 Wheat. 119, 127 ; Lackey v. Seibert, 23 Mo. 85, 94; Harris v. Hardman et al., 14 How. (U. S.) 334-45. II. The order of publication was not sufficient to authorize a judgment against the property of defendant Hale.

The judgment should have been set aside, because the plaintiff in error at the time of the rendition of the judgment was an infant, and did not appear to the suit by guardian— Powell v. Gott, 13 Mo. 458 ; Randalls v. Wilson, 24 Mo. 76; Thornton v. Thornton, 27 Mo. 302; Rush v. Rush, 19 Mo. 441. Infants must defend by guardian'; they cannot appear by attorney.

Felix Hutton filed his petition in the Benton Circuit Court, averring in effect that in tlie lifetime of one Edward H. Powers, he was joint owner with him of certain lands mentioned, situated in that county, and to which there was attached a ferry privilege; that Edward H. Powers died in 1856, leaving a will by which he devised all his interest in said land to Benjamin F. Powers, Henry Powers, and Beverly Powers, jointly ; that Henry Powers conjointly with Benjamin F. Powers…

<p> Error to Gasconade Circuit. </p>

It was error for the court to quash the writ, and the suit, when only a portion of the defendants joined in the motion, this being a suit for a tort. The county was not bound to file a bond as an individual. A suit by attachment ought not to be dismissed for any insufficiency in the bond until the court has given time and the plaintiff has failed to file a new bond — R. C. 1855, p. .242, § 9 ; 10 Mo. 380.

The indictment is insufficient. It fails to show that there was a sale to any one; it fails to show that the quantity of liquor alleged to have been sold was within the limit prohibited by law. The law prohibiting sales of liquor in a less quantity than one gallon had been repealed at the time of the alleged offence — Neales v. State, 10 Mo. 498; State v. Hays, 36 Mo. 80; State v. Mitchell, 25 Mo. 420; Act of 14th March, 1859.

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

This was an action commenced in the Polk Circuit Court, in April, 1861, by Jones against-Butterfield, G. M. Tul-ler, and all other persons composing the Overland Mail Company, for a breach of contract as proprietors of a stage line from Smith City to Bolivar, Mo., to convey defendant in error safely between said points, and for damages for injuries resulting from such failure. The petition stated a contract between plaintiff and defendants.

Appeal f rom Creene Circuit Court. The indictment is sufficient — Sess. Acts 1860-1, p. 93, § 4. It is not necessary that the indictment should follow the language of the statute ; a substantial description of the offence charged to have been committed, is all that the law requires, and that the pleader did in this instance.

Melton was indicted under the fourth section of the “Act to prevent the adulteration of spirituous liquors,” approved March 28, 1861 — Laws 1860-1, p. 92.

The indictment is sufficient — R. C. 1855, p. 574, § 20. The time at which the offence was committed is not of the essence of the offence, and hence the indictment is not defective for failing to state the time when the offence was committed— R. C. 1855, p. 1176,§ 27.

The court should not have permitted the prosecution to attack the character of the accused by interrogatories touching such character, no evidence on that point having been introduced by the defence — 3 G-reenl. Ev. § 25; People v. White, 14 Wend. Ill; Commonwealth v. Webster, 5 Cush. 325 ; Bull N. P. 296; State v. Merrill, 2 Dev. 269.. The second instruction given on the part of the State is erroneous, because not sufficiently full and explicit — 1 Greenl.

Davidson was indicted in the Christian Circuit Court for robbery.

The defendant was indicted in the Circuit Court of Greene County for dealing as a merchant without a licence.

. This was an indictment for grand larceny. The indictment charged that William Moseley did steal, take and carry away one trunk of the value of five dollars, and four United States Treasury notes, one twenty and three fives, all of the. value of thirty-five dollars.

Petition for Mandamus. I. The security in an injunction bond becomes a party to the suit, and on dissolution of the injunction judgment may be entered against the obligors in the bond, including the damages which may have been assessed — R. C. 1855, p. 1249, §14. II. The change of venue was properly awarded — R. C. 1855, p. 1559, §§ 1, 8 & 4.

. I. The written declarations of the party, descriptions in legal or other documents, or treatment by official persons, are admissible on the question of residence, and the papers offered by defendant were improperly excluded — Phill. Dom. 87, 88 ; Smith et al. v. Croom, 7 Florida, 161; 12 Am. L. Reg. 263.

jError to Greene Probate and Common Pleas. I. The court had no power or right to impose a fine at all. The penalty for refusing to make settlement as curator, after citation, is imprisonment, and this only after a rule to show cause — R. C. 1855, p. 1828, tit. “ Guardians and Curators.” There could be no punishment for contempt, by imprisonment or fine, without a rule to show cause. II.

The only issue between respondent and appellants was whether the estate of Shackelford was indebted to respondent. All claims against the estates of decedents are based upon the fact that the claimant has given credit to the estate for all payments and offsets to which it is entitled — R. 0. 1855, § 13, p. 154.

I. The facts stated in the petition do not authorize the judgment rendered. The petition contains no equity ; Jan-ney, being divested of title, has none over which a cloud can hang. II. The original suit was a proceeding in chancery, in which all admit that constructive notice by publication as to non-residents is sufficient.

Petition for Mandamus. I.The jurisdiction exercised by the County Court over the person and estate of Rannells was in the first instance exercised, as will be seen by reference to the following considerations: 1. The jurisdiction upon cases o£ incapacity arising from drunkenness is a new jurisdiction in this State, and not conferred upon any court until it was done by the act approved February 19, 1866.

The reason assigned on the motion to quash and in arrest of judgment, that the indictment,- does not charge that the liquor was sold in a less quantitythan one quart, is untrue in fact; the indictment expressly charges the quantity to have been one pint. The indictment is for a violation of § 1, ch. 57, R. C. 1855. p. 688, and sufficiently charges an offence under the same.

At the trial in the Circuit Court, no evidence was introduced by either party, -but the case was tried on the pleadings filed with the justice. The appellants asked the following declarations of law: 1.

<p>[The following decision of the Supreme Court of Missouri,made at the January term, 1861 (filed March 15, 1861), is not published in the Reports:]</p> <p>Jurisdiction — Practice—Process—Publication.—A judgment in personam for a debt against a non-resident of this State, obtained upon a mere order of publication, without the service of any process, or of an attachment upon the defendant’s property, is a judgment without process and void. A party summoned as garnishee by execution upon such judgment may defend by showing the invalidity of the judgment for want of jurisdiction. The statute R. C. 1855, p. 1224, § 13, was not intended to give such jurisdiction; it applied only to cases where the court had jurisdiction over property sought to be affected by the suit.</p> <p>Attachment — Process—Jurisdiction.—Judgments obtained on an attachment process against non-residents will bind the property attached, but will not be treated as evidence of indebtedness, or as operative in any manner in personam, for there is no power of adjudication.</p>

GOV. FLETCHER’S LETTER OF INQUIRY. Jefferson City, Mo., Oct. 10, 1866. Hon. David Wagner, Nathaniel Holmes, T. J. C. Fagg, Judges Supreme Court, Mo. Gentlemen: — I deem the question as to whether the offices of Circuit Attorney in the several Circuits of the State are legally required to be filled by election in November next of sufficient importance to warrant me in-asking your opinion upon it, in pursuance of the 11th section of the 6th article of the Constitution.

It is the peculiar province and jurisdiction of every tribunal to see that justice be done to parties litigant in its court. If from mistake, or misapprehension of facts, or fraud and entry is made upon its records which does injustice to the suitor, which pretends to detail a state of facts which is untrue, — when these facts are brought before this court, the entry can and ought to be corrected. — Warren v. Dalton et al., 16 Mo. 102,114; Ex parte Tony, 11 Mo. 661-8; 1 Bac.

I. Mandamus will lie where there is no appeal. The voter must be registered as an accepted or a rejected voter, or he is not of the three classes included in the 11th section of the registration law, for which an appeal is granted, and this section is to be strictly construed. II. The voter may register in any precinct, but must vote in that in which he is registered — Const. Art. II., § 18.

McClure instituted a suit by attachment in the Franklin Circuit Court against one Shafty, in which a certain engine and machine were attached, in which engine and machine it was claimed that Shafty owned one undivided half interest. Under the provisions of § 29, p. 247, R. C. 1856, a bond was given by the defendant for the delivery of the property.

I. The court erred in not giving the plaintiff’s instructions. The case showed.no defence for any maker of the bond. The “ Act concerning securities,” approved Nov. 28, 1855, R. C. 1855, p. 1458, is not applicable to the matter. No surety can be relieved from liability on such a bond by giving notice to sue — § 4 of same act, p. 1455. The bond sued on is one to secure the performance of the duties of Monoghan as one having a “trust” or “business” to conduct.

I. This is a suit in ejectment; and to entitle the plaintiff to a recovery for waste, he must prevail in the action — E. C. 1855, p. 689, §§ 1, 2, 6, 7, 15, 16, 17. The finding of the court presents the singular aspect of a judgment for the defendant as to the right of possession, and against him for damages to that possession. The decree of the court is repugnant; it cannot stand.

I. The title plaintiffs acquired to .the land (on which the timber was cut) from the trustee on the 13th January, 1862, relates back to the time when the original deed of trust was given by Charles O’Fallon, and hence plaintiffs are entitled to recover for any timber cut on the land by defendant since that time, as by law plaintiffs had a right to protect the trust property against trespassers, for their own security — 4 Kent Com. § 174, n. b.; Frothingham v. McKusiek, 24…

<p>Practice — Answer.—An answer filed, by the tenant in possession of land, to a petition in ejectment, traversing all the allegations of the petition, cannot be stricken out upon motion, although a separate answer and counter-claim filed by the landlord may show no legal defence to the action. The defendant has the right to retain possession until a better title be shown.</p>

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

I. It is too late to raise the objection in this court, that the original summons did not run in the name of “The State of Missouri.” Such a writ is not void, but at most only voidable and may be amended — Lawther v. Agee, 84 Mo. 872; Davis v. Wood, 7 Mo. 162; Jump v. Batton’s creditors, 35 Mo. 193. II. The process, if defective, is cured by the 19th section of Practice in Civil Cases, p. 1255, R. C. 1855.

Louis Criminal Court. The first section of “An act confirming certain powers to the citizens of St. Louis county,” approved March 4, 1857, (Laws of Mo. 1857, p. 673, provides that “the corporate authorities of the different cities in the county of St. Louis shall have power, whenever a majority of the legal voters of the respective cities in said county authorize them so to do, to grant permission for the opening of any establishment or establishments, within the corporate…

<p>Criminal Practice — Robbery—Indictment.—There cannot be a conviction for robbery in the second degree where the indictment charges a robbery in the first degree. (State v. Jenkins, 36 Mo. 372, affirmed.)</p>

All legislative acts should be construed prospectively, unless the act itself makes the law retrospective. The act of Congress of 1861 concerning legal tender notes is prospective, and was not intended to apply to debts due at the time of its passage. The decree made is defective ; it releases the land from all encumbrance created by the 'deed, and fails to secure to appellant even the amount of the debt with interest.

No party to an action can recover interest upon interest, or compound interest, without showing an agreement of the other party to that effect; neither the statutes of Missouri nor the common law allow compound interest upon any other terms than the contract and-consent of the parties.

A proper construction of the act relating to Executions, R. C. 1855, p. 747, secs. 49 & 50, under which this proceeding was instituted, will show that respondent has no claim whatever against appellant. The “Act to regulate executions” is intended to secure the speedy collection of judgments for the benefit of the execution creditor, and not to create a new cause of action in favor of the delinquent debt- or.

<p>Practice — Pleading— Petition. — In determining the sufficiency of a petition, the averments therein can alone be considered; exhibits filed constitute no part of the petition. A petition which does not show a cause of action by its averments, without reference to exhibits filed, is bad upon demurrer or on motion in arrest — Baker v. Berry, 37 Mo. 306; Curry v. Lackey, 35 Mo. 392. The forms attached to the statute, R. C. 1855, have not the sanction of legislative enactment.</p>

I. This is an action for negligence, according to the rules of tlie common law. The respondent is not entitled to recover unless be proves actual negligence, and this he has totally failed to do. The case made in the petition is entirely different from the case made by the proof and the instructions.

I. The re-sale of the property by the trustee, upon the failure of O’Eallon to pay the amount of his bid at the first sale, was in conformity with the power vested in trustee, and with the universal practice where a power of sale is given either by a grantor to a trustee or mortgagee, or by a court to any of its officers — Stewart v. Garvin, 33 Mo. 105 ; Vannerson v. Cord, 1 S. & M. Ch. 845-6 ; Bicknell v. Byrnes, 23 How. Pr. 486; Laeey v. Giboney, 36 Mo. 320. II.

I. “ The Probate and Common Pleas Court of Greene county” is a court of limited jurisdiction (Local Acts 1855, p. 57), and therefore can exercise no jurisdiction except that which is delegated.

Appeal f rom Hannibal Court of Common Pleas. Plaintiff sued defendants upon a note executed by Schnit-ter, Stevens, and one McMaster, the two latter being securities, dated July 12, 1856, and- payable in twelve months. Schnitter made default, Stevens pleaded a discharge by an extension of time of payment, &c. At the trial testimony was given to prove an agreement, to extend the time of payment, made between plaintiff and Schnitter without the consent or knowledge of Stevens.

<p> Error to St. Charles Circuit Court. </p>

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

I. County courts áre required to bear and determine demands against decedents’ estates in a summary way, without the form of pleadings (§ 18, p. 155, R. C. 3 855) ; and the Circuit Court, in the trial of such cases on appeal, is governed by the same rules of evidence and procedure as those governing the County Court. In such cases the decision, as well in the one court as the other, is upon the case made by the evidence, and not upon that made by the complaint. II.

The petition shows no cause of action whatever, and, although there was no motion in arrest, the judgment should be reversed if the petition is so defective that no judgment could be rendered. A glance at the petition discloses the absence of any averment showing the right of plaintiff to sue ; it fails to show in what character they sue, or that they are in any manner interested in or connected with the alleged breaches of the bond.

The statement of Donnelly made to Bird was part of the res gestee and competent in explanation of the contract of the defendant previous to his possession of the slave — Boy-den v. Moore, 11 Pick. 362; Inhab. of Groton v. Inliab. of Lancaster, 10 Mass. 110.-

<p> Appeal from Sí. Charleé Circuit Court. </p>

<p>Practice Criminal — Final Judgment. — .Appeal dismissed for want of final judgment upon demurrer.</p>

Charles Circuit Court. Payne, having a judgment (by confession) against Gray, had an execution issued thereon, and garnished the respondent King, who was trustee in a deed of trust, executed by said Gray, to secure the payment of two notes to Mrs. Julia A. Eaton, guardian of James W. Eaton and David H.Eaton; both of said notes were of.the same date, were for the same amount, and due at the same time — one payable to Julia A. Eaton, guardian of James W. Eaton, and the other…

This was an action of ejectment for recovery of possession of, 1st, fractional sections 5 and 6, lying north of land claim of G. A. Hamilton, No. 1244, in township 34 N., R. 14 E.; the S.E. fractional quarter and N.W. fractional quarter of fractional section 31 and fractional section 32, T. 35 N., R. 14 E., granted by United States patent dated May 6, 1857 : 2d, and the S.W. quarter and fractional N.E. quarter of fractional section 31, T. 35 N., R. 14 E., granted by United…

Petition for Mandamus. The argument of the defendant undoubtedly will be, that the adoption of the revision of 1865 was a repeal of the special law of 1857; that the revision of 1865, which declares that each court having probate jurisdiction in any county may appoint a public administrator, is a repeal of the law of 1857, which says that thereafter the public administrators of those counties named in that act shall be elected by the qualified voters of said counties ; and,…

Petition for Quo warranto. And now comes Joseph P. Yastine,'prosecuting attorney for the 8th Judicial Circuit of the State of Missouri, comprising the county of St. Louis, and at the relation of Charles Hequembourg, exhibits to this honorable court an information iii the nature of a quo warranto, and states that Samuel C. Lawrence, the defendant, has usurped, intruded into, and unlawfully holds and executes the office of justice of the peace for the sixth ward of the city of…

<p> Mandamus to Clerk of Washington County Court. </p> <p>The petitioner shows that he filed the oath of loyalty required of all candidates — § 8, art. 2, Const. Mo., R. C. 2b.</p> <p>The petition further shows that he was candidate for the office of circuit clerk of Washington county, Mo., at the general election held November 6, 1866 ; and that on the 8th day of November, 1866, Samuel Harrison, clerk of the County Court, with the assistance of Jonas Anthony and Michael Maloney, two justices of the peace of said county, examined and cast up the votes given to each candidate, as required to do by § 25, cli. 2, tit. 2, R. C. 1865, p. 63.</p> <p>The petitition further shows that the said clerk and his assistants cast up a large majority of votes in favor of the petitioner, nevertheless he refuses to give to the petitioner a certificate of election as required to do by § 25 aforesaid.</p> <p>By'§ 52, ch. 2, tit. 2, R. C. 1865, p. 66, it is provided that no election of any county officer shall be contested unless legal notice in writing be giveii, &c., to the opposite party within twenty days after the votes shall be officially counted. See also Castello v. St. Louis Co. Ct., 28 Mo. 259.</p> <p>The petition in this case shows that the votes were officially counted by the clerk on the 8th day of November, 1866. With that count this petitioner is entirely satisfied, and has no desire to contest it.</p> <p>As soon as the clerk with his assistants had officially counted the votes on the 8th day of November, he dismissed his assistants, the candidates and spectators left, and there remained but one duty for the clerk to perform, and that was to deliver to your petitioner, in accordance with such official count, a certificate of his election as circuit clerk of Washington county, Missouri. The clerk of the County Court having refused to perform that duty„ your petitioner asks this court to compel him by mandamus.</p> <p>The duty of giving a certificate of election is a simple clerical act, and this petitioner having no other remedy he is entitled to the aid of this court by its process of mandamus— 38 Mo. 293; 35 Mo. 198 ; 7 Johns. (N. Y.) 549.</p> <p>The clerk having officially counted the votes on the 8th day of November, he cannot after that day change that count. To allow him to do so would, in effect, nullify the provisions of § 26, ch. 2, tit. 2, R. C. 1865, by which he is required to compare the returns publicly, &c., giving proclamation at the court-house door — § 26, ch. 2, tit. 2, R. C. 63.</p> <p>If the clerk may change the count which he made publicly on the 8th, in the presence of your petitioner and others, he can then, at any time privately, deprive a candidate, legally qualified and elected, of his right to appeal, as a candidate is not supposed to know what acts an officer performs in privacy, or his reasons therefor; and therefore, in his notice of appeal to the Circuit Court, he cannot state the grounds of error committed by the clerk of the County Court in his recount made privately and without the legal assistance which the law requires in § 25, ch. 2. tit. 2.</p> <p>The granting of the certificate of election does not determine the ultimate right to the office; it is only a prima facie right to qualify and hold until after the twenty days ; then, if no other candidate gives him a legal notice of appeal, his right to the office is absolute.</p>

Louis Law Commissioner’s Court. I. If the assignment of the due-bill by the defendant to Baehr was valid, the garnishee must be discharged. II. A note or due-bill payable in specific articles, in which no day or place of payment is mentioned, becomes due on a special demand of the articles specified at the debtor’s place of business, and such a contract becomes a money debt only after a demand and refusal to pay over the specified property.

<p>Criminal Practice — Trial—Habeas Corpus. — The application to be discharged, by a prisoner held under an indictment for a criminal offence, because he has not been tried in accordance !with R. C. 1865, ch. 213, §§ 27-28, must be made to the court in which the indictment is pending. No person can be discharged from an imprisonment under the habeas corpus act, who is imprisoned on an indictment, or by virtue of process to enforce such indictment — R. C. 1865, eh. 155, § 38.</p>

Plaintiff delivered to defendants tobacco, to be by them forwarded to St. Louis for sale. The tobacco was sold by defendants’ factors in St. Louis, and the proceeds remitted by express to defendants, who did not notify the plaintiff of the sale and receipt of proceeds. Subsequently, the defendants’ store was broken open and plundered by rebel enemies, and the moneys in defendants’ safe stolen. At the trial, the following instructions were given: 1.

<p>1. Landlord and Tenant — Municipal Corporations. — Decision in case of Graham v. City of Carondelet, 33 Mo. 262, affirmed.</p> <p>2. Ejectment — Judgment—Estoppel.—A judgment in an action of ejectment is not a bar to a subsequent action between the same parties.</p>

I. The court below should have permitted the defendant to prove by parol evidence the object of the execution of the deed of trust; that the sum of $2,625, for payment of which the deed was given to secure, was intended by the parties to secure future advances and security for debts of Foster not exceeding the sum of $2,625. “ Mortgages may be given to secure future debts, advances and responsibilities; and when the deed recites the amount of a note for which the mortgage is…

Louis Law Commissioner’s Court. Plaintiffs sued defendant upon a note executed to H. Buching and assigned to the plaintiffs. The defence was, that the defendant had been summoned as a garnishee of the payee of the note upon judgments obtained before a justice of the peace, and that judgments had been rendered against him as garnishee, which he had paid.

Louis Land Court. Plaintiffs sued defendants in ejectment for lots 5, 6, 7 and 8 in Bates, Smith & Lisa’s addition to St. Louis, as laid out in 1817. The facts of the case were the same as at a former trial — 30 Mo. 272.

<p>Evidence — Criminal Practice. — Upon the trial of a party indicted, evidence tending directly to prove the particular crime charged is to be received, although it may also tend to prove the commission of another separate and distinct offence. (See State v. Iiarrold, ante, 496.)</p>

This was a suit of ejectment, instituted by plaintiffs as heirs of Firman Desloge, to recover the possession of a piece of ground, about one .half of an acre in extent, the orifice or landing-place of a shaft known as Pearce & Willoughby’s shaft. It also includes a prayer that defendants be restrained from taking out the mineral from the shaft, the plaintiffs, as owners.of the land, claiming to be the owners not pnly of the mine, but of the right to work it.