Volume 39 — Missouri Reports

Louis Land Court. This was an action of ejectment against the widow and heirs of James M. Hughes to recover possession of land.

Louis Court of Common Pleas. This suit arises under a bond given by defendant to Virginia Brault (then King), the plaintiff, and dated 28th August, 1846, whereby it was stipulated between them that Howard bought of his sister, said Virginia King, her interest in a lot, whereof they with others were tenants in common as heirs of their mother, Genevieve Howard.

Louis Land Court. This was an action of ejectment brought by the appellant against the respondents for a lot of ground in the city of St. Louis, and was tried by the court. Held: the Casey note, and that there had been no sale under the first deed of trust to secure the same.

Louis Circuit Court. There was evidence before the court and jury of want of probable cause for the prosecution, and it was the duty of the court to submit the case to the jury.

Louis Circuit Court. This case was tried by the court. The defendant asked certain declarations of law, as follows: 1.

Louis Law Commissioner’’s Court. The case was brought by plaintiff to recover from defendant an assessment laid upon him as one of the company, and as owner of certain land within the Columbia bottom. The company was chartered by the act of March 8, 1859, which created the corporation and named the directors (Sess. Acts 1859, p. 284) ; and its charter was-amended by act approved January 14, 1860 (Sess. Acts 1859-60, p. 214).

<p>1. Lands and Land Titles — Confirmations-Abandonment. — The act of Congress of 13th June, 1812, confirming the titles to lots, &c., in the villages named, operated to vest the legal title in the claimants rvho brought themselves within the provisions of the act by proving cultivation and possession; subject to be destroyed by proof that the party had abandoned the land with the intention that it should no longer be his. Abandonment is a question of fact to be decided by a jury under the directions of the court.</p> <p>2. Lands and Land Titles — Common Field Lots —Common field lots are narrow lots adjoining to each other, having the same general range and a uniform depth, and used by the inhabitants of the town for cultivation.</p> <p>3. Ejectment — Practice—Remittitur—Supreme Court. — When the verdictand judgment in ejectment includes lands to which the plaintilf is not entitled, he may enter a remittitur in the Supreme Court, and have the proper judgment entered where no inquiry into extrinsic facts is necessary.</p>

Louis Court of Common Pleas. The facts were the same as in the case when before the court in 32 Mo. 250, some additional evidence being given as to the laws of Louisiana. The following instructions for interpleader were given by the court: 1.

jError to St. Louis Land Court. Miltenberger was a judgment creditor of Wonderly, and had procured a sheriff’s deed in an attachment suit against him for the land respecting which this controversy arose, which was composed of lots 15 and 16 in block 896 of Lucas & Hunt’s addition to the city of St. Louis.

Louis Circuit Court. The act of 1855 (Sess. Acts 1855, p. 24) is valid except so far as it undertakes to limit the tenure of the office of judge. This clause is merely a void provision engrafted upon a valid act.

<p>Practice — Trials — Continuance. — Discretion of court in refusing a continuance, properly exercised.</p>

<p>Practice — Supreme Court. — Judgment affirmed for failure to file transcript of record of appeal.</p>

Louis Court of Common Pleas. Ejectment for leasehold estate — See S. 0. 23 Mo. 168, and 28 Mo. 481. Plaintiff’s title was as follows: Lease by Ann Biddle to John T. Schulze, dated September 1, 1845, for ten years, with clause of renewal.

Louis Land Court. This was a claim to land by virtue of a New Madrid certificate (No. 130) and a patent issued July 23, 1849, for the land upon which said certificate was located. The patent was to Peter Tesson or his legal representatives.

Louis Criminal Court. The verdict is insufficient in law to support the judgment in this, that whereas different and distinct crimes, differing in their degrees of punishment, are set forth in the different and distinct counts of said indictment, yet the jury do not specify upon which count in said indictment they find the defendants guilty; and their verdict does not state that the defendants are guilty of any crime whatsoever.

<p>Corporations, Railroad — Evidence—Witness.—By the law of this State, a passenger upon a railroad whose baggage has been lost, may be a witness to prove the contents and value of the baggage lost — R. C. 1855, p. 435, § 45.</p>

Louis Law Commissioner’s Court. The petition states that on the 1st January, 1866, plaintiff rented to defendant, by a written lease, certain premises in St. Louis for the yearly rent of $300 per annum, payable monthly in sums of $25, for three years ; that defendant entered and occupied, but owes for the use and occupation for the months of May and June, 1862, the sum of $36 ; and is further indebted to plaintiff in the sum of $450 for the rent of said premises, under said…

Louis Land Court. The appeal in this case was properly dismissed. There was no record before the court by which it could know what it was called upon to decide ; nor was any offer made by the appellant to supply the defect.

Louis Court of Common Pleas. I. The court erred in giving the respondent’s instructions. As a deduction of law it is objectionable, because it assumes the very point in. issue, viz., that deceased shot at Williams in the “lawful” defence of his person. What is “.lawful” self-defence ? This is the very question to be determined by the facts.

<p>Conveyances — Lost Deed — Equity—Cloud on Title.*-Where a conveyance of land executed and delivered but not recorded has been lost, a court of equity will protect the rights of the grantee by enjoining any sale by the heirs or representatives of the grantor, and by divesting them of any claim and establishing the title of the grantee and his heirs.</p>

Louis Law Commissioner's Court. This suit was commenced against the appellant as endorser of a promissory note for the sum of one hundred dollars, dated June 30, 1860, payable six months after date, with ten per cent, interest from maturity. On the trial in the Law Commissioner’s Court, the plaintiff introduced and read in evidence the note and protest filed in said action, and rested.

Louis Law Commissioner's Court. Suit for one month’s rent accruing February l, 1863. The plaintiff had sublet to the defendant part of the premises. The plaintiff’s term expired 31st December, 1862, and, being notified by his landlord that his rent would be in creased, about the middle of December, 1862, he notified defendant that his rent would be increased from $240 to $800 per annum.

<p>1. Action — Malicious Prosecution — Evidence.—In an action for malicious prosecution, the jury are authorized to infer the existence of malice from the want of proof of probable cause for the prosecution.</p> <p>2. Practice — New Trial. — A motion for a new trial upon the ground of newly discovered evidence must show that the party has used due diligence to procure the evidence desired, and that it is not merely cumulative.</p>

Louis Court of Common Pleas. The petition alleges that on the 27th day of September, 1864, the defendant unlawfully, maliciously and without probable cause, and with the intent to injure and oppress plaintiff, did cause and procure plaintiff to be arrested at his residence in the city of St. Louis, and thence to be forcibly conveyed through the public streets of the city of St. Louis a long distance to a police station, and there unlawfully, maliciously and without probable…

Louis Circuit Court. Casselberry, for plaintiff in error. I. We contend that the numerous persons who. claim an interest in the judgment are not assignees in law or equity, because a part of a judgment or part of a chose in action •cannot be assigned in law or equity so as to enable the as-signee to sue. The reason is given by the court in case of Love v. Fairfield, 13 Mo. 300, and by the Supreme Court of the United States in the case of Mandeville v. Welch, 5 Wheat. 277.

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

<p> Appeal from, Si. Louis Circuit Court. </p> <p>This suit was instituted by plaintiff as trustee of Francis Saler, endorser of Ruegg, Bosse & Co., owners of the Phoenix Cotton Factory. Plaintiff having obtained judgment against the company, and execution having been returned nulla bona, issued an alias execution, under which he garnished defendant as a subscriber for four shares of 150 each.</p> <p>The defence was that the subscription was obtained by fraudulent representations. Ruegg, Bosse & Co. were the owners of the Phoenix Cotton Factory, but, unable to pay their debts, conceived the plan of an incorporation, and hence obtained the charter of the Missouri Spinning Company. This proof was offered by the defendant, but excluded by the court.</p> <p>By the 2d section (Sess. Acts 1859, p. 295) the company could be organized whenever $50,000 was subscribed, and for which books were to be opened. No formal books were opened, but subscription lists were, handed round by Bosse and Blattau, two members of the firm of Ruegg, Bosse & Co.; but the requisite sum of $50,000 was not obtained, and .on the day of the organization men of straw were persuaded by Ruegg, Bosse & Co. to take stock so as to complete the sum, Ruegg, Bosse & -Co. promising to shield them. Immediately on the organization Ruegg, Bosse and Blattau elected themselves to three out of five of the seats of the directory, and at once purchased from themselves, for the corporation, the Phoenix Cotton Factory for $109,000. The following winter an amendatory charter was passed increasing the directory to twelve, who were elected, and among them Heidecker. The appraisement was reduced from $109,000 to $77,000 ; this last sum was to be returned to the corporation, but no part of it ever was. The stockholding directors were so dissatisfied that they declared a dissolution of the coi'poration.</p> <p>Proof was offered that Ruegg, Bosse &, Co. at date of the charter of the Missouri Spinning Company were hopelessly insolvent; that they hawked around the subscription lists with the assurance that the Phoenix Cotton Factory had •made 20, SO, even 50 per cent., or, as they expressed it “ hand over fist.”</p> <p>The court refused to give the following instructions which were asked by defendant, aiyl to which due exception was taken:</p> <p>1. If the jury believe that $50,000 had not been in good faith subscribed to the capital stock of the Missouri Spinning Company at or before the organization of the company, then the jury will find for the defendant.</p> <p>2. The court instructs the jury, that, under the pleadings of this case, the burden of proof is upon the plaintiff; and, before the jury can find for the plaintiff, it is incumbent upon him to disprove by satisfactory evidence the facts stated in the answer of the garnishee, and unless he have done so the jury will find accordingly.</p> <p>3. The jury is instructed that the plaintiff herein stands in the same position as the Missouri Spinning Company would stand if it were plaintiff; if, therefore, the jury believe from the evidence that the Missouri Spinning Company was a fraudulent institution, and that fraud was practised upon the garnishee herein by said Missouri Spinning Company, its ■officers and agents, either in its prganization or in obtaining said subscription, then said fraud is as much to be weighed in favor of the garnishee herein as if said Missouri Spinning Company were plaintiff herein. ■</p> <p>4. If the jury believe from the evidence that Ruegg, Bosse & Co., for the purpose of defrauding garnishee and others, obtained their subscriptions to the agreement read in evidence, whereby they agreed to take a certain amount of stock in the Missouri Spinning Company; that without said company being legally organized, said Ruegg, Bosse & Co. and others, as pretended directors of said company, fraudulently managed the affairs of said company with the intent to defraud said garnishee and others of the amount of their subscription, with the intent to apply and appropriate such amount to the benefit of Ruegg, Bosse & Co.; and that plaintiff in this case, or those under whom he claims, was party or privy to the fraud, — then the jury wjll find for the defendant.</p> <p>5. The court instructs the jury that the sum of $50,000 should have been subscribed at least six days before the organization of the company.</p> <p>At the instance of the plaintiff the following instructions were given, and to which defendant duly excepted:</p> <p>1. The statements of Louis Bosse and Charles E. Blattau to other subscribers cannot affect the validity of the subscription of Bernard Heidecker, unless it appears from the evidence that they were made to him also.</p> <p>2. If the jury believe from the evidence that Bernard Hei-decker attended meetings of the stockholders of the Missouri Spinning Company, and acted and voted as a subscriber, or accepted an appointment as a committee of said subscribers, or voted to accept of the amended charter, or became a director under said amended charter, he cannot deny the legal organization of the company.</p> <p>3. The judgment in favor of the plaintiff offered in evidence is a debt established against the Missouri Spinning Company, and that judgment cannot be impeached in this proceeding by attacking the validity of the notes or contract upon which it is founded; and it matters not, therefore, whether the notes were obtained by fraud, or were otherwise without consideration.</p> <p>The jury found for plaintiff.</p> <p>I. The subscription of the $50,000 was a condition precedent to the organization of the company — Charter of Mo. Spinning Co., Sess. Acts 1859, p. 295; R. C. 1855, p. 372, § 9.</p> <p>II. The answer of a garnishee is evidence in his favor, and the burden of proof is on the plaintiff — Davis v. Knapp et al., 8 Mo. 657; McEvoy v. Lane et al., 9 Mo. 48. Where a party grounds his action on a negative averment, he must prove it — Greenl. Ev. § 78.</p> <p>III. The 3d and 4th instructions refused to defendant should have been given, because the plaintiff stands in the place of the Missouri Spinning Company, and the garnishee is entitled to make the same defence as he could against the Company — Drake Attach. § 672;^ Webb v. Miller, 24 Miss. 638; Myers v. Baltzell, 37 Penn. 491; McGehee v. Walker, 15 Ala. 183; Reagan v. Pacific R.R., 21 Mo. 30, — and fraud vitiates every transaction.</p> <p>IY. The exclusion of the declarations of Bosse and Blat-tau, unless made to Heidecker, was clearly erroneous. The proof of Gottschalk and Eisse is that they were subscribers on the same list as Heidecker. “What is said by those holding an instrument of writing at the time of soliciting or permitting persons to sign the instrument, is evidence of its contents” — Matthews v. Walker, 9 Mo. 705 ; City Bk. of Columbus, 22 Mo. 89.</p> <p>V. The 3d instruction for plaintiff should not have been given; such acts would bind him only after knowledge. Until the new directors were chosen, the stockholders knew nothing of the fraud. As to waiver by the acceptance of a directorship, Atlantic Cotton Mills v. Abbott, 9 Cush. (Mass.) 423.</p> <p>YI. The proof that the charter was fraudulently obtained by Ruegg, Bosse & Oo. for the very purpose of fraud was improperly excluded; it was a private act, and therefore could be impugned if fraudulently obtained — 2 Bl. Com. p. 346, Sharswood ed., and authorities of n. 1, p. 343-4 ; Boul-ton v. Bull, 2 H. Black, 476.</p> <p>In the three instructions given on motion of 'garnishee, the court tells the jury, if certain facts exist, plaintiff cannot recover; those facts are the defence contained in the answer, and it makes no difference in what manner the garnishee receives the benefit of that law, so that he receives it. But it is presumed that the garnishee asks this instruction upon the strength of certain early decisions of this court upon that subject, which are to the effect that “ the law presumes the answer of the garnishee to be true until the contrary be proven by the plaintiff” — 8 Mo. 657. But plaintiff submits, that, although that decision was good law when it was made, it is not good now under existing statutes. Under the law of 1835, when the above decision was rendered, the first step taken was to file interrogatories; the 2d, defendant’s answer; and 3d, plaintiff might deny the answer: and these were all the pleadings. The only pleading to be filed by the garnishee was his answer — R. C. 1835, p. 79, §§ 22, 24, 25. But under existing laws this is changed — R. C. 1855, pp. 258-9, §§ 65 to 69. If the only issues to be tried are those raised by the denial and reply, it is not easy to see what the answer has to do with the case.</p>

Louis Land Court. I. The account sued upon was for work done and materials furnished upon personal property which might have been taken away by the outgoing tenant, and therefore not the subject of a mechanic’s lien — Mech. Lien L. of St. Louis Co., Sess. Acts 1857, p. 668. II.

<p> Appeal from, Sé. Louis Land Court. </p>

Louis Land Court. By the provisions of the mechanics’ lien law for St. Louis county, every mechanic who performs work or furnishes materials shall have a lien on the improvement for the work done and materials furnished and the ground on' which the building is erected ; and it matters not by whom he was employed to do such work and furnish the materials — Sess. Acts 1856-7, p. 668, § 1. This lien is preferred to all others subsequent to commencing the work — Id. p. 669, § 5.

<p>Limitations —Estate Outstanding — idverse Possession. — Where both parties claim under the same grantor, a prior lease by the grantor for a term of years prevents the running of the statute of limitations; the possession of the tenant is not adverse. B. in 1847 conveyed premises to W., a lease for twenty years (expiring in 1857) then outstanding, and the tenant in possession. In 1851 B. leased to M. an adjoining lot, under which lease M. entered upon part of the premises granted to W. and held possession. Held, that the possession of M. if he entered prior to the end of the term of twenty years, was not adverse to the landlord and his grantee W. until the term expired.</p>

Louis Land Court. What, on the face of the contract made by the parties, was the right secured to Ahern ? He was holding under the lease with the consent of Finney, and had all the rights guaranteed by the lease; one of these rights was that of removing the house.

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

Louis Court of Common Pleas. I. Whenever a charter is granted for the purpose of constructing a railroad, and the corporation is clothed with the power to take private property in order to carry out the ob’ ject, it is an inference of law, from the extent of the power conferred and the subject matter of the grant, that the road is for public accommodation — Inabitants of Worcester v. The Western R.R. Co., 1 Am. Railw.

<p>Contract — Sale—Statute of Frauds — .Delivery.—At common law,w*here a proposition to sell goods is accepted by the buyer, and the goods are-in the possession of the'seller, and they are separate from other goods, and require nothing further to identify them and prepare them for delivery, the sale is complete and the title to the goods passes to the purchaser; but by the provisions of the statute of frauds the contract must be shown-by a memorandum in writing signed by the party to be charged, or there must be a delivery and acceptance of part of the goods. B. sold to W. 223 bales of hay lying by themselves on the levee at St. Louis, at the price of $33 per ton, and gave to W. a ticket describing the number of bales and the price at which the hay was sold, the ticket authorizing the purchaser to take the hay as soon as it could be weighed; — W. requested that the hay should not be weighed on that day, to which B. assented on condition that the hay should be at W.’s risk; held, that the jury was warranted in finding that the hay had been delivered, and that W. was responsible for the price although the hay was burned upon the levee before weighing.</p>

Louis Circuit Court. I. To constitute a delivery in this case it was necessary that Evans should relinquish his claim to the property sold as owner and that Williams should assume the control of it, or that some act should have been performed, by the seller which by the consent of both parties should be regarded as a surrender of possession by the seller and an acceptance of possession by the buyer.

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

Louis Circuit Court. Plaintiff sued defendant and his security for breach of the following agreement.: “ This agreement made and entered into this 26th day of June, 1863, by and between Isaac Cook, of Chicago, of the first part, and Ashley N. Northrup, of St. Louis, party of the second part, witnesseth, that the said Isaac Cook has this day sold and agreed to deliver to said Northrup, in East St. Louis, one thousand tons of ice, for the siim of fourteen dollars per ton, to…

Louis Circuit Court. For plaintiff the court gave the following instructions: 1.

Louis Circuit Court. I. There was no error in the action of the court below. The case was submitted to the court on the evidence without any instructions being asked or given, and the court on the weight of evidence found for the defendant, and this court will not review as to the weight of evidence. II.

Louis Court of Common Pleas. The Instructions given and refused were as follows : Given for the plaintiffs — “If the jury find from the evidence that the said Yokum, Gaunt & Scroggins sold and delivered the staves to the plaintiffs, and that plaintiffs were at the time of the sale the owners of and entitled to the possession of the said staves, and that the defendants afterwards without the knowledge or consent of plaintiffs took possession of said staves and carried them…

St. Louis Court of Common Pleas. This was an action brought to October term, 1863, for damages for the alleged wrongful taking and carrying away of certain property of plaintiffs.

Louis Court of Common Pleas. Plaintiff alleged in his petition that on or about the month of January, 1863, he shipped to defendant and defendant received five bales of cotton, belonging to plaintiff, containing 2,225 pounds* of the value of 60 cts. per pound, of the total value of $1,335 ; that the same was shipped to defendant to sell as commission merchant of plaintiff, and that defendant did sell said cotton in the month of January, 1863,. and received the proceeds of…

Louis Court of Common Pleas. This was an action to recover rent alleged to be due in the petition from the 10th day of December, 1863, to the 10th day of September, 1864, for the same premises for which rent is sued for in subjoined case between the same parties. The facts in both cases were substantially the same. The subjoined case is to recover rent for the year 1863, at $400 per annum; this suit is for rent for part of year 1864, at the rate of $750 per annum.

Louis Circuit Court. The court, upon its own motion, gave the following instructions : 1.

<p>1. Witness — Party—Trustee.—A trustee haying no substantial interest in the matter in controversy is a competent witness for his co-defendant.</p> <p>2. Injunction — Dissolution—Damages.—The statute (R. C. 1855, p. 1219, see. 13) limits the amount of damages at ten per cent, upon the amount enjoined to eases in which money has been actually stayed by the injunction; in other cases, the defendants may recover the damages actually sustained.</p>

Louis Circuit Court. I. The appellants are not liable to pay back the amount of the certificate; because where one of two innocent parties must suffer, the burden must fall upon him whose business it was to know the genuine signature of the depositor, and who, having the best means of detecting the forgery, failed to do so through negligence or inadvertence. II.

On the 10th day of May, 1860, one Angus W. McDonald was the owner in fee of the ground sued for, and on that day conveyed one undivided half of said lots to his brother Edward C. McDonald, since deceased. The deed was recorded December 7, 1860. Before said deed from Angus W. to Edward 0.

<p>Courts — Jurisdiction— Contempt — * Divorce. — Imprisonment for debt being abolished, a, party cannot be imprisoned for a contempt of court in refusing to obey an order or decree directing the mere payment o£ money. An order for the payment of alimony is simply an order for the payment of money.</p>

<p>1. Practice — Pleading— Written Instrument. — hi declaring upon a written instrument, it is sufficient to plead it according to its legal meaning and effect.</p> <p>2. Practice — Pleading—Trial—Variance.—A party cannot declare upon one cause of action and recover upon an entirely different and distinct cause of action. If there be a variance between the evidence and the pleading, the pleading should be amended so as to conform to the evidence, or the objection will be fatal.</p> <p>3. Practice — Pleading—Arrest of Judgment. — Although a pleading be defective, yet if it appear after verdict that the verdict could not have been rendered without proof of the matters omitted in the pleading, the defect will be cured and the judgment will not be arrested.</p>

<p>Practice — Supreme Court. — Judgment affirmed for want of prosecution of appeal and failing to file transcript of record.</p>

Louis Circuit Court. The petition in this case, filed August 12, 1858, alleged that Ann T. Dillon died in 1837 leaving issue Ann E. (plaintiff’s testatrix), Martha, and Susan ; that P. M. Dillon, her husband, took out letters upon her estate; that as administrator he collected $2,768.49, in the year 1845, from the estate of John T. Nash; that at December term, 1845, he made a fraudulent settlement of said estate by crediting himself with $2,301.22.for a demand due him by the…

Louis Circuit Court. I. The allegations in the plaintiffs’ petition as to their being the administrators of Eden Benson, the payee of the note sued on, and of the decease of said Benson, were material ones, as upon the proof of them depended the right of the plaintiffs to maintain this suit; and as they were properly put in issue by the answer, the plaintiffs could not rightly recover without proving such allegations — Wales v. Cham-blin, 19 Mo. 500 ; 2 Greenl.

<p> Appeal from St. Louis Land Court. </p> <p>This was an action of ejectment to recover possession of lot 28 of the common of Carondelet. The cause was tried bv the court sitting as a jury.</p> <p>At the trial, the plaintiff gave evidence of the incorporation of the town of Carondelet in 1832, by the judgment of the Circuit Court; and, also, of ordinance No. 78 of the town of Carondelet, approved March 13,1845, providing for the lease of the common. Sec. 5 of this ordinance was in the following words:</p> <p>“ The lease shall contain a provision to the following effect, viz.: that should the rent reserved as aforesaid, or any part thereof, on any lease remain unpaid for sis months after the same shall become due, the board of trustees may by resolution declare such lease terminated and void, and the same shall expire and be determined from that day.”</p> <p>The plaintiff then read in evidence a lease from the Town of Carondelet to Patrick Tiernan, for 99 years, of lot 28 of the common. The rent reserved was one dollars yearly, “ payable at the end of each and every year during the continuance of said term,” and contained this covenant: “ that if at any time the rent aforesaid for six whole months shall be in arrears and unpaid, the said parties of the first part * * * may terminate this lease by order or resolution to be entered on record among the acts and proceedings of the said board; and may take possession,” &c. This lease was dated April, 1846; and on January 15, 1847, Tiernan assigned this lease to John Regan, under whom defendant held the land.</p> <p>The plaintiff then read the charter of 1860 of the City of Carondelet (January 16,1860).</p> <p>The plaintiff then produced the book of the proceedings of the common council of Carondelet, and read therefrom the whole proceedings of a meeting held on the 28th November, 1860. Among these proceedings was the following resolution presented by Mr. Hill, “ which was adopted”:</p> <p>“ Whereas the sums of money reserved in the form of rent upon the leases hereinafter mentioned, and granted by the late board of trustees of the Town of Carondelet, are in arrears and have been unpaid for six months after the same became due and,payable, and still remain due und unpaid; therefore, be it</p> <p>“ Resolved by the city council of the City of Carondelet, that the said leases hereinafter mentioned and described be and the same are hereby annulled, terminated and ended, and the same are hereby declared void ; the said leases being the following, to-wit: —Lease dated the eighth day of April, 1846, to Patrick Tiernan, for lot No. 28 in the Caron-delet common, south of the river Des Péres.”</p> <p>There was a great deal more of the proceedings of that meeting, but this was all that referred to this lot. The proceedings were signed “ Bernard Poepping, president board of council.” And this was all the testimony offered by plaintiff.</p> <p>The defendant read the testimony of Michael Chartrand, who testified that on the evening of 28th November, 1860, hearing the resolution introduced by Mr. Hill, and before its adoption, he tendered to the collector of the City of Caron-delet the amount of the rent due on both the leases embraced by said resolution. The collector refused the rent, saying the leases were going to be annulled, or were annulled. Witness then stepped to the city register, and offered the rent to him, and he refused it. This tender was made in a warrant of the City of Carondelet receivable in payment of all dues to the city by ordinance i it was for $45, and witness declared at tlie time that he demanded no change. No objection was made to the medium of payment. Witness had been requested by Regan to pay this rent. The ordinance mating the warrants receivable “ in payment or part payment of moneys due” the corporation was also read. This was all the testimony offered by defendant.</p> <p>Plaintiff, in rebuttal, examined Mr. Reber, who testified that it appeared from the records of his office (he was register of Carondelet), that there was rent due on lot 28 in November, 1860, and that he told the collector to report the fact to the council. Chartrand tendered witness a warrant in payment of the rent due, which witness refused. Witness testified that it was the practice to receive warrants in payment of taxes, rents, «fee., due to the city; did not know of any ordinance on the subject; the practice was universal. The bills for the rent of lots 28 and 156 were returned to the witness by the collector after the session of the council on the 28th November, 1860.</p> <p>The plaintiff asked the following declarations of law :</p> <p>1. If the resolution read in evidence, purporting to be a resolution of forfeiture, was adopted by the city council of the City of Carondelet before any offer to pay rent was made, said offer was too late, and did not amount to a tender or an offer to pay rent within the time prescribed for the payment of the same in the lease read in evidence from the former Town of Carondelet to Patrick Tiernan. ,</p> <p>2. An offer to pay rent after the adoption of the resolution read in evidence, and before the mayor signed the proceedings of the city council, was too late, and did not amount to a tender or an offer to pay the rent within the time prescribed for the payment of the same in the lease read in evidence.</p> <p>The court gave these instructions, adding to the first, after the word “Carondelet,” in the third line, “and approved by the mayor,” and inserting in the second, before the word “adoption,” the word “legal.” The plaintiff excepted to the giving of the instructions as modified, and to the refusal to give them unaltered.</p> <p>Plaintiff asked the following instructions, which the court refused, plaintiff excepting:</p> <p>1. If the plats, maps, documents, instruments, and other papers read in evidence, are genuine, the resolution of the city council of Nov. 28,1860, read in evidence, and the proceedings of said council read in evidence in connection therewith, are valid and binding ; and the lease read in evidence from the former Town of Carondelet to Patrick Tiernan, therein mentioned, was annulled and forfeited by said resolution, if the rent specified in said lease was in arrear and unpaid for six whole months next before the time of the passage of said resolution.</p> <p>2. An offer to pay rent to the plaintiff, under the lease read in evidence, in and by a warrant issued by the City of Carondelet, is not a lawful tender of said rent according to said lease.</p> <p>The court, on motion of defendant, instructed the jury as follows, plaintiff excepting:</p> <p>1. The law is declared to be, that, according to the evidence in this cause, there was no valid and lawful order or resolution passed or adopted by the board of trustees of the town or city council of Carondelet vacating or terminating the said lease for non-payment of rent.</p> <p>2. The law is further declared to be, that if at any time before the resolution or order of forfeiture contemplated by the ordinance No. 78 had been passed through all its stages, and become the act of the corporation of Carondelet, the arrears of rent due on lot 28 were tendered to the city collector, and that the city collector was duly authorized to receive these rents, the forfeiture was saved.</p> <p>And thereupon the court gave judgment' for the defendant. After a motion for a new trial, the plaintiff brought the case up by appeal.</p> <p>I. This court has on several occasions examined and defined the principles governing transactions of this kind, in the following cases : Woodson v. Skinner, 22 Mo. 13 ; Taylor v. Carondelet, 22 Mo. 105; Carondelet v. Lannan, 26 Mo. 461; Huthv. Carondelet, 26 Mo. 466.</p> <p>The above decisions establish the doctrine that a forfeiture of a lease made under or by virtue of the ordinances of the respective cities'of St. Louis and Carondelet is a legislative procedure over which the courts have no jurisdiction or control whatever.</p> <p>II. The forfeiture of the lease mentioned in the record was made by the city council of Carondelet under the charter of January 16, 1860 — Laws of Mo. 1859-60, p. 306.</p> <p>T]ie above charter of 1860 is different in many respects from the charter of 1851 in relation to the legislative proceedings of the city council. For instance, the charter of 1860 does not require anything but ordinances to be presented to or approved by the mayor — Laws 1859-60, p. 316 & 317. The proceedings of each day of the city council are required to be signed at the end thereof by the presiding officer. This was evidently copied from the general laws of this State requiring the judges of the several courts of record to sign the proceedings of each day, which is well understood, and has been liberally construed — Platte Co. v. Marshall et al., 10 Mo. 345.</p> <p>III. The ordinance of the former Town of Carondelet of November 4, 1843, read in evidence by the defendant, was passed before the city charters of 1851 and 1860, was only of a temporary nature, and relates to warrants against the former town, and has no application to the new order of things created by the subsequent charters ; nor is there any evidence in the record that the warrant mentioned by the witness Ohartrand was in conformity with the provisions of the act of 1855 regulating the issuing of warrants by towns and cities — R. 0. 1855, p. 153 et seq., art. 2, tit. Towns. It was drawn.on the “ contingent fund,” and' not as required by the above article in the R. C. of 1855.</p> <p>I. There was no' valid or legal forfeiture of the lease to Tiernan, leaving the question of tender entirely out of view.</p> <p>II. It is found by the court that there was a tender of rent before the resolution of forfeiture passed through its stages, and that the forfeiture was thereby saved.</p> <p>Either of these propositions will suffice for the affirmance of the judgment. If, under the charter of Carondelet, there was no valid resolution of forfeiture passed by the corporate authorities on the 28th November, 1860, there is an end of this case. Respondent submits that there was no such resolution passed at that time. The case of Graham v. Caron-delet, 33 Mo. 263, is decisive on this point. It was there held that two things must concur towards a valid resolution of forfeiture of’ such leases. First, such a resolution must have passed the board (that is, have received its vote) ; and then must have been presented to the mayor for his approval, and must have been signed by him. Secondly, it must have been entered of record in the proceedings of the board. The first of these formalities was never complied with.</p> <p>It was said that the charters of 1860 and 1851 were different in their requirements on this head. This, respondent denies. Sec. 6 of art. vii. of the charter of 1860 (p. 317 of Sess. Acts) is in these words ; “ Every bill which shall have been passed by the city council shall, before it becomes a law, be presented to the mayor for his approbation ; if he approves the bill, he shall sign it; if not, he shall return it with his objections, in writing, to the board of council, which,” &c. Sec. 8. “ No ordinance shall be enacted except by bill.”</p> <p>Here is a declaration that no legislative or quasi-legislative act of the board shall take effect unless in the mode prescribed in these sections. There must be a bill; and this bill must pass through certain stages, and receive certain authentications ; and that no ordinance (that is to say, no act of the council) shall be enacted, except in this mode, and by these ceremonies. This is the very same provision which was contained in words of more expanse, but precisely the same import, in the act of 1851. Here is the end of the case of the plaintiff.</p>

Louis Land Cowrt. I. The trustee is by rule of law agent of both debtor and creditor, and as such has positive duties which he must impartially discharge to each. He must so conduct the sale that the property shall be offered to good advantage' — Hill on Trustees, 479, 480, 495 ; Lewin on-Trusts, 367, ch. 19 ; 18 How. 143 ; Anderson v. Bumgartuer, 27 Mo. 77; Stine v. Wilkson, 10 Mo. 93; Gray v. Shaw, 14 Mo. 341; Rector v. Hart, 8 Mo. 460 ; Conway v. Nolte, 11 Mo. 76; 2 Am.

Louis Court of Common Pleas. This was an action of ejectment to recover possession of part of fractional sections 8 and 18, T. 45 N., R. 7 E., in St. Louis county, which lies within six miles of plaintiff’s road.

I. It is the policy of the law that the interests of the public shall not suffer for want of an officer to execute the judgments, decrees and orders of the courts; the sheriff, ordinarily, is the proper officer to execute such judgments, decrees and orders — R. 0. 1855, § 8, p. 368 ; id. § 59, p. 749 ; Dun-nica v. Coy, 28 Mo. 525; Duncan v. Matney, 29 Mo. 869. II.

<p> Error to St. Louis Court of Common Pleas. </p>

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

<p>Practice — Supreme Court. — Judgment affirmed for failure to file transcript and prosecute appeal.</p>

On the 6th day of April, 1860, the plaintiff Edwin S. Gar-ton commenced his action of ejectment against the defendant Hugh H. Cannada for the recovery of the possession of the following real estate, situate in Pettis county : the S.W. J of the N.E. J, the N.W. J of the S.E. J, and S.W. £ of section 30, T. 46, R. 23 W. On the 2d May, 1860, the defendant Cannada filed his answer to plaintiff’s petition, denying generally the allegations of plaintiff, and also setting up a suit…

I. The defendants can only claim the proceeds of the note by virtue of the record of their mortgage under “ Act relating to fraudulent conveyances” — R. C. 1855, p. 804, § 8. Negotiable promissory notes and bills of exchange are not included within that section. The language “ personal property” does not include choses in action as there used. It •only applies to such property as has a locus in quo, a situs, a place where record can be made.

I. The note in dispute is void as to the defendant Gilliam. It was originally a blank paper with the ■ defendant’s name on the back as endorser, and was intended to be filled up as a note, with his name as payee and endorser and not as maker, for the sum of only $200, which sum in figures was therefore originally inscribed on the left-hand top corner, indicating the extent of the authority given by the defendant Gilliam — Goodman v. Simonds, 19 Mo. 106 ; Hall et al. v. Bk.…

I. Under the order of the County Court the bounty is given for volunteering, not'for serving. The consideration is going into the service. The time fixed for payment is one-half down, and^ the balance when one-half of their respective times of enlistment had expired. Serving was not intended as a condition. II. If serving were a condition, it had been performed. The company was still in service until after the time fixed for the payment of the last half of the bounty.

<p>Practice— Supreme Court — Error.—Where no motion for new trial or in arrest of judgment is filed, upon an appeal or writ of error, the Supreme Court can only notice such errors as are apparent upon the face of the record»</p>

I. The interlocutory judgment was improperly and prematurely taken. Before the return term of the writ, the original petition was destroyed. Two terms of the court were thereafter held and plaintiff below took no steps in the cause. At the third term after the commencement of the suit Brown filed an amended petition in the cause, and in five days thereafter (the court continuing in session longer) took an interlocutory judgment by default.

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

Plaintiff’s motion to strike out a part of defendant’s answer ought to have been sustained by the court. The plea of the statute of limitations is not well pleaded, and ought to have been stricken out. The defendant fails to state fact’s sufficient to show that the possession under which he claimed was adverse to the plaintiff’s claim to said property — 18 Barb. (S. C.) 151. The defendant’s answer is clearly defective— Curt. Eq. Prec. 173; 1 Chit. PI. 526.

Petition for Mandamus. I. This court has full power and authority to compel the Governor to do a mere ministerial act — State ex rel. White-man et al. v. Governor, 5 Ohio, 534; Bonner v. State ex rel. Pitts., 7 Ga. 473; Pacific R.R. v. Governor, 23 Mo. 353; Marbury v. Madison, 1 Cranch, 49; Cotton v. Ellis, 7 Jones (N. C.) 545.

Plaintiff sued defendant on an account of one hundred dollars, for goods sold and delivered to defendant by Wheatly & Thatcher, a mercantile firm, alleging an assignment by them to him (plaintiff) of said account. Defendant answered admitting the purchase and sale, but denying all indebtedness, and also denying all knowledge or information, &c., of the alleged assignment.

I. The court erred in dismissing the original suit after the jury found the issue on the plea in abatement for the defendant. The attachment was sued out under section 13 of attachment law of 1855, and was in aid of the original action — R. C. 1855, pp. 242-3, §§ 13 &15. The principal suit was that commenced by summons. The attachment was a mere incident to this.

<p>Practice — Error—Motion for New Trial — Supreme Court — By the Practice Act of 1855, an opportunity must be given to the inferior court to correct errors by a motion for new trial or in arrest of judgment, before the case can be taken to the Supreme Court by appeal or writ of error.</p>

- I. It is insisted that the court erred in denying the defendants’ trial by jury. The value of controversy was over twenty dollars. Const, of U. S., § 7, of Amendments: “ A petit jury shall consist of twelve citizens duly qualified.’*'. Defendants were entitled to this on the trial of an appeal from a justice — 1 Binn. 416 ; 8 Ohio, N. S., 205. The Legislature had no power to deprive the defendants below of this right.

The plaintiff filed his petition in ejectment, July 10,1865. In the year 1855, one Henry Jones made a deed to one James Cole, conveying to him the land in controversy, in trust, to secure the payment of a certain promissory note mentioned in said deed, in favor of one Ignatius Hazell.

<p>Practice — Continuance — Answer. — After a case has been continued by the court, upon an answer to the merits filed by leave, it is improper to set aside the order of continuance, strike out the answer, and enter a default and judgment.</p>

<p>Practice — Instructions—Bill of Exceptions. — Unless the evidence he preserved in the bill of exceptions, the Supreme Court cannot pass upon errors in giving and refusing instructions — Broadwell v. Bouton, ante p. 401.</p>

<p>Practice — Exceptions—Motion for New Trial. — To preserve matters o£ exception, a motion for new trial must be made in the inferior court. — See ante ■ Banks v. Lades, p. 405.</p>

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

<p> Error to Kansas City Common Pleas Court. </p>

<p>Practice — Supreme Court.. — The parties cannot by agreement submit a case to the Supreme Court upon the merits without filing an assignment of errors or briefs.</p>

<p>Practice — Supreme Court. — Appeal dismissed for failing to assign errors and prosecute appeal, neither party appearing.</p>

<p>Practice— Supreme Court— Scire Facias. — Judgment of Supreme Court revived upon scire facias.</p>

The court gave the following instructions at the instance of the State, to which defendant objected: 1.

The first count charged the defendant with a larceny by violence to the person of one William Jones.

<p> Petition for Mandamus. </p>

<p>Revenue — Union Military Bonds — Auditor.—By the statute (Acts 1865-6, p. 96) the Auditor has no duty to perform in redeeming Union Military bonds. The interest is to be calculated and the bonds redeemed by the Treasurer.</p>

<p>1. Evidence — Jury—Misconduct.—One of the jurors cannot be >a witness to prove misconduct of the jury in making their verdict.</p> <p>2. Criminal Practice — Filing Indictment. — The omission of the clerk to enter upon the indictment the date of its filing is no ground for arresting the judgment.</p>

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

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

The plaintiff asked the court to give the following instructions : 1. If plaintiff and defendants both claim the land in controversy through Jasper N. Bell, then it is sufficient prima facie for the plaintiff to prove its derivation of title from said Bell without proving said Bell’s title. 2.

The principle that a person who has paid to another usurious interest can recover the same from the receiver, is too common and apparent to be questioned — 8 Mo. 191; 20 John. 293. This right is personal, and cannot be exercised by any other until the position of the parties is changed by the election of the payer of the usury; but when the election is made in court, and the right asserted, the claim becomes a right in action, instead a right of action, and is a property.

The plaintiff moved the court to instruct the jury— , 1. If they believe from the evidence that plaintiff shipped. the lumber named in his petition under and by virtue of the bill of lading read in evidence, and that by virtue of said bill of lading and said shipment the said lumber was transported over the Chicago, Burlington and Quincy railroad, and by the officers of said railroad delivered to the defendant under said contract of affreightment or bill of lading, and that…

<p> Appeal from Buchanan Circuit Court. </p> <p>The plaintiff asked the court to make the following declarations of law:</p> <p>1. The chief office and place of business of a railroad company is where the general office of the company is kept, and where the chief officers and managing agents of such company keep their offices and do the business of the company.</p> <p>2. If the court believe from the evidence that the chief office and place of business of the. relator was in the city of Hannibal, in the county of Marion, and State of Missouri, at the time of assessing and collecting the taxes sued for, and that relator was the owner of the steamboats described in the petition, and that said taxes were assessed upon said steamboats by the City of St. Joseph, then such assessment was made without any authority of law, and the defendant Saville became a trespasser in coercing the collection thereof, and it will find for the plaintiff, notwithstanding it may believe from the evidence ■that the superintendent and other managing agents of said steamboats resided and kept their offices, and did the business of said steamboats, in the city of: St. Joseph, and that said steamboats were loaded and unloaded there, and when not running they were laid up in the port of St. Joseph.</p> <p>3. It is admitted by the pleadings in this cause that the relator was a corporation of the State of Missouri at the time of assessing the taxes sued for.</p> <p>4. If the court believe from the evidence that the relator was the owner of said steamboats at the time of assessing the taxes sued for, then such assessment was made without any authority of law, and the defendant Saville became a trespasser in coercing the collection thereof.</p> <p>5. If the court believe from the evidence that said steamboats, or any of them, were not within the limits of the city of St. Joseph on the 1st day of May, A. D. 1864, then such steamboats were not subject to taxation by the City of St. Joseph, and the court will find for the plaintiff as to such steamboats or steamboat.</p> <p>6. If the court believe from the evidence that the relator was the owner of the steamboat J. H. Lacy at the time of assessing the taxes sued for, and that said steamboat was not within the limits of the city of St. Joseph on the 1st day of May, A. D. 1864, and never had been prior thereto, then the assessment thereon of the taxes described in the petition was made without any authority of law/ the court will find for the plaintiff as to the taxes so assessed and collected.</p> <p>7. If the court believe from the evidence that the relator was owner of said steamboats at the time of assessing said taxes, and that the same were assessed in the name of the Missouri River Packet Company, then such assessment was made without any authority of law, and the court will find for the plaintiff.</p> <p>8. The ordinances read in evidence do not authorize the assessment of any taxes on the property o£ the Hannibal and St. Joseph .Railroad Company to pay the St. Joseph and Topeka Railroad bonds, or the Roseport aad Maryville Railroad bonds.</p> <p>9. The ordinances read in evidence do not authorize the assessment of taxes on property of the Hannibal and St. Joseph Railroad Company for the special tax of 1864.</p> <p>10. The ordinances read in evidence only authorize the assessment of taxes on the stock of the Hannibal and St. Joseph Company in the hands of stockholders, and not upon the property in the hands of said company.</p> <p>The court gave the 1st, Sd, and 6th, and refused the other instructions, to which plaintiff excepted.</p> <p>I. The court below should have received in evidence the . certificates of enrolment of the steamboats of relator, taxed by the City of St. Joseph. Those certificates prove that the domicil of said boat was not St. Joseph, where they were assessed, and that said boats were consequently not subject to taxation by said city — Hays v. Pacific Mail Co., 17 How. 596 ; 23 N. Y. (9 E. D. Smith,) 224.</p> <p>11. The ordinance of 23d of August, 1864, did not authorize the assessment of relator’s boats for the special tax of 1864. That ordinance taxes only such property within the city limits “ as is made taxable by law.” What is meant by “ pi'operty made taxable by law” ? “ Made” implies something more than authorized or permitted.</p> <p>It is said relator’s property is subject to the special tax of 1864, because the city charter authorizes the city to tax all property within the city limits, and relator’s property being within the city limits, was liable to be taxed by the city. In other words, the term in the ordinance of 23d of August, 1864, “made taxable bylaw,” simply means “liable to be taxed under the city charter.” If the construction be true, the words “ made taxable by law ” are without meaning, and the ordinance would have had tlie same signification if these words bad been omitted altogether. That certainly was not the understanding of those who passed the ordinance. The ordinance imposing taxes for general purposes merely direct taxes to be imposed on all property within the city without any limitation; but when special taxes are imposed the language is changed, and words of limitation and restriction are used, because it was not intended that all property should pay the special tax.</p> <p>The steamboats were not assessed to the owners, as required by city ordinance. The city ordinances read in evidence taxed only the stock of the Hannibal and St. Joseph Railroad Company in the hands of its stockholders — Bangor v. Piscataqua R.R. Co., 21. Maine, 534; Redf. on Railw. 527 — 9,531; 23 N. Y. 224; Ang. & Ames on Corp. § 460-1; Groves v. Slaughter, 15 Pet. 449; Rev. Stat. Mo. 1855, p. 412, § 8 ; 4 Mete. 187 ; 10 Mass. 517; 14 Mo. 314; 8 Watts, 289; 30 Mo. 560.</p> <p>The only two allegations of fact in the petition relied on by the plaintiff to show the illegality of the levy of the taxes collected were 1st, that the chief office and place of business of plaintiff was in Hannibal, in Marion county; and 2d, that said steamboats were by the laws of this State exempt from taxation. There was no allegation that they were either taxed or taxable elsewhere than in the city of St. Joseph. Again, if these boats were taxable at all by the City of St. Joseph, it was because they were personal property within the city limits.</p> <p>The statute of this State to provide for the levying and collecting of the revenue for State and county purposes, provides specifically what property shall be the subject of taxation, and amongst other articles enumerated are “ shares of stock in banks and other incorporated companies, excepting manufacturing companies, the property of which alone shall be taxed, and all property owned by incorporated com-pañíes, over and above their capital stock,” &c. Now if the State should levy a tax on the “ shares of stock,” and then tax the very property represented by the shares of stock, this would be double taxation; but it would be competent for the Legislature to adopt whatever plan it may think proper, either to tax the stock and reach the property in that way, or to directly tax the property as property. In authorizing the city to levy and collect a tax, the Legislature has adopted the latter plan, that is, to confine the city to levying a tax on property, and to give her no power to tax shares in stock — Acts 1864, p. 430-1; R. 0. 1855, p. 1322, et seq.; H. & St. Jo. R.R. Co. v. Shack-lett, 30 Mo. 550.</p> <p>The only question to be considered is whether these boats were personal property within the city limits, and if so, whether they were exempted from taxation by the city. For it will be observed that the power conferred on the city by the Legislature was to levy and collect a tax on property, “ both real and personal, within the limits of the city;” not upon shares of stock, but on real and personal property within the limits of the city; and this is the only way she can tax, so that there can be no double taxation by the city. The proper place to tax these boats, or any boats, even for State and county purposes, is the situs from which they depart. The case of Hays v. The Pacif. Mail Steamship Co., 17 How., does not conflict with this rule; and the case of Mohawk & Hudson R.R. Co. v. Olute et al., 4 Paige, 384, was decided on a special statute, requiring the property to be assessed in a particular place, <fcc. The exemption of the property of the plaintiff from State and county taxation by the Legislature did not have the effect to exempt said property from taxation by the City of St. Joseph, provided plaintiff chose to keep its property within the city limits, and thereby avail itself of the benefit and protection of the laws, regulations and government furnished by the city — Arnold v. City of Lexington, 30 Mo. 480; Providence Bk. v. Billings et al., 4 Pet. 560-1; Wilks v. City of Pekin, 19 Ills. 16.</p> <p>It is not within the scope or purview of the business of a railroad to own and run a line of boats on the river, nor is such business within the object of the act incorporating the Hannibal and St. Joseph Railroad Company; wherefore it could not as a corporation own said boats ; and if it has paid taxes levied on property belonging to another, and the taxes being assessed against another, there is no rule of law by which it can recover said money back, as there was in such case no compulsion on it to pay the money:'</p> <p>No suit can be maintained against a collector and his sureties on their bonds when the collector is merely following the directions of the law and the precept in his hands; provided the authority from whence the precept emanated had jurisdiction of the subject matter; and as the assessor in this case had jurisdiction of the subject matter of taxing personal property, and as he levied said taxes and placed the tax book in the hands of the collector, he is protected thereby, and cannot be made responsible for the mistakes of others, even if mistakes have been made — Eoxcraft v. Nevins, 4 G-reenl. 172 ; Keller v. Savage, 17 Me. 444 ; S. C. 20 Me. 189 ; Caldwell v. Hawkins, 40 Me. 526, and cases cited.</p>

The plaintiff moved the court to instruct the jury as follows : 1.

The exemption in the charter from all State and county taxes does not exempt the property from city taxes when the property is in the city limits ; but on the contrary, by implication at least, leaves the city at liberty to tax the property of the railroad situate in her jurisdiction; and if the railroad company will have or own property in a city, which receives the protection of the police of the city, she must, like individuals, pay her proportion of the cost thereof…

The appellant makes the following points in this record : There is a great difference between the case of an execution on a transcript without a strict compliance with all the pre-requisites of the statute, and a sale and purchase under such execution by an innocent purchaser for value, and the case of an execution issued on such transcript without a strict compliance with all the pre-requisites of the statute in such case made and provided, and a motion made by the…

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

<p>1. Municipal Corporations — Counties—Constitution.—The act of the General Assembly of February 11, 1861, (Sess. Acts 1861-2, p. 888;) authorizing the County Court of Buchanan county to subscribe to the stock of railroads terminating at or near said county, after submitting the matter to a vote of the taxable inhabitants of said county, left to the court the discretion of subscribing or refusing to subscribe to such railroads notwithstanding a vote of the taxable inhabitants authorizing it to make such subscription., The General Assembly had authority to authorize counties and municipal corporations to subscribe to the stock of railroads in other States terminating at or near the boundaries of such counties. The provisions of said act are inconsistent with the provisions of the present Constitution, which-provides for submitting the question of such subscriptions to the qualified voters of the counties without any qualification as'to taxation.</p> <p>2. Constitution — Laws—Legislature. — The’ Constitution, except when special provision is made for that purpose, does not enforce itself. If gives certain powers, but to make them operative legislation is necessary. Laws which become inoperative on account of repugnancy to, or inconsistency with, the Constitution, must be legislatively amended before they can be put in execution.</p>

I. The court erred in striking out that part of defendant’s answer which set up and charged adultery and other acts of misconduct on the part of plaintiff. The statute provides that the Circuit Court shall have jurisdiction in all cases of divorce or maintenance, and that such cases shall be tried by the court, and that like process and proceedings shall-be had in such as are had in other civil cases.

The court below erred in overruling plaintiff’s motion to strike out part of defendant’s answer. The justification attempted to be set up to the third count in the petition was bad, and ought to have been stricken out on plaintiff’s motion. The plea or answer should neither be broader nor narrower in its allegations than the petition attempted to be answered ; if it is so, it is bad, and should be stricken out.

I. This cause being tried by the Circuit Court on appeal from the justice’s court, the same issue should have been tried in said court that was originally tried in the justice’s court — R.'C. 1855, p. 975, § 18. II. The amended statement or complaint of the respondent presents a cause of action in trespass.

I. The court below committed error by receiving parol evidence to show the authority of W. R. Roberts to change the return on the attachment — R. C. 1855, p.1257. The acts of a court can be proven only by its records — 8 Mo. 535; 12 Mo. 598; 13 Mo. 511; 1 Pet. 340. The courts by order may permit an officer to amend his return, but not in cases to the prejudice of parties to the suit — 9 Mo. 28. But it may be done in furtherance of justice — 8 Mo. 334; 23 Mo. 223; 27 Mo. 227.

The only question, it is supposed, which will be seriously raised in this court is as to whether Atchison was bound under our statute to give Buchanan a special personal notice of the issue and levy of the execution against Buchanan, the statute requiring such notice to be given, when the execution is issued to a different county from where the parties reside and the judgment is rendered.

Suit commenced April 18, 1865. To the original petition a demurrer was filed and sustained.

<p>Administration — Judgment — Appeal. — The action of the County Court in setting aside an order of sale of the real estate of the decedent, is a final deeis-iqn from which an appeal lies by the administrator'to the Circuit Court.</p>

I. The court below erred in refusing to permit the deposition of plaintiff to be read in evidence, because, although a party to the record, he was, from the necessity of the case, a competent witness to prove the contents of the trunk lost, and the value of such contents — Edwds. on Bail. 304-5, 422-8; Story on Bail. § 454, and note; G-reenl. on Ev. § 848, n. 2 ; Abbott’s Pr. 325 ; Winters v. Clark, 5 Sand. 242.

<p>Practice^- Evidence — Depositions.—Depositions presenting only hearsay testimony may be suppressed by the court before the trial. Before the copy of a deed can be admitted in evidence, the execution and existence of the original and its loss must first he shown.</p>

<p>Practice — Supreme Court — Briefs.—In the Supreme Court, the party complaining of the errors committed by the court below must assign errors and file a brief presenting the errors upon which he relies to reverse the judgment. The parties cannot request the court to decide the case upon the merits unless the provisions of the statute and rules of court are complied with.</p>

Petition for Mandamus. I. The statute regulating the granting of a licence to keep a dram-shop does not vest a discretionary power upon the subject in the County Court — G-. S. 1865, ch. 98, §§ 2, 5, 7, 8, 9, 12, 14. II.

<p>Practice — Parties. — The Supreme Court will not consider a case until the proper parties are brought into court.</p>

I. The Circuit Court of Andrew county erred in overruling the demurrer of defendant to' the scire facias in this case, and in giving judgment on the same, for the reason that the indictment against the defendant Woolery (at the time the bond upon which scire facias was issued) was taken.by a justice of the County Court of Buchanan county upon an indictment pending in the Circuit Court of Andrew county.

Two nihils is no service under the present statute'. By the act of 1835 (R. C. 1835, p. 454), it is provided under the head of proceedings against bail, &c., that two returns of “ not found” shall be a good service, but in the after acts this is wholly omitted, which amounts to an implied repeal of said provision — -R. C. 1855, pp. 1179-80, & p. 1191, §§ 15 to 18.

I. The court below erred in sustaining the demurrer because the indictment is good for robbery without the clause complained of by the defendants, and the clause claimed to be objectionable may be rejected as surplusage — R. C. 1855', p. 574, § 20; Bishop’s Crirn. Law, §§ 966-7, 972, and following. Mere surplusage, when there is sufficient matter alleged to indicate the crime and the persons charged, does not invalidate an indictment — R. C. 1855, p. 1176, § 27. II.

<p>1. Criminal Practice — Evidence — Instructions.—Where the evidence offered- is not sufficient to sustain the indictment, it is the duty of the court so to instruct the jury.</p> <p>2. Criminal Practice — Dram-shops—Evidence.—Under an indictment for selling liquors without having a dram-shop licence, it must be proved that the liquors were sold in less quantities than one gallon and for the purpose of being drunk on the premises.</p>

Louis Land Court. The chain o£ title was as follows : 1. Held: the allowance only established the validity of the claim, but not the ownership of A, and that B might recover the money from A by proving his right to it — 21 How. (U. S.) 294; 5 Cranch. 591. .., ....