Volume 41 — Missouri Reports

<p> Application for Mandamus. </p>

Petition for Mandamus. The act of March 9,1863, under which the Union military bonds were issued, created a fund called the “ Union military fund,” and pledged the same for the payment and redemption of all the bonds issued, principal and interest.

<p> Peiition for Mandamus. </p>

<p>Constitution — Legislature—Officer.—The officers of a municipal corporation are civil officers within the meaning of the provisions of the Constitution, Art. IV., ^ 15. A member of the General Assembly, therefore, cannot be appointed to an office under such corporation, which has been created or the emoluments of which have been increased during the term for which he was elected. A member of the Legislature receives a compensation for his services as a civil officer, and holds an office of profit as well as honor, and is therefore prohibited from holding office as a member of the Board of Water Commissioners for the City of St. Louis, by the provisions of the act creating the board — § 5, Acts 1866-7, p. 185.</p>

Information in the nature of Quo Warranto. I. The case turns upon the effect of the alleged commission issued by the Governor to Thomas Adamson for the same office, sheriff of Lafayette county, to which the pleadings admit Pool was legally elected. The new Constitution declares “the Governor shall commission all officers not otherwise provided by law” — Art. 5 & 25, R. C. 1865, p. 35.

<p> Application for Mandamus to Lafayette County Court. </p>

<p>1. Officers — Clerics—Practice.—When a clerk of a court is suspended from office under the provisions of the statute, G. S. 1865, ch. 24, § 18, upon charges preferred of misdemeanor in office, no appeal lies from the action of the judges. Sec. 8 of the act of February 1, 1867, is inoperative to give such right of appeal.</p> <p>2. Constitution — Statutes—Construction—Evidence.—By the Constitution, Art. IV., j 32, such portions of a law enacted by the General Assembly as are not expressed in the title of the act are void. The title of the act of ITebruary 1, 1867, provides for appeals in contested election cases; the subject of sec. 8 of said act giving the right of appeal in all other civil cases is not expressed in the title, and is therefore inoperative, except in cases of contested elections.</p>

Information in the nature of Quo Warranto. There is but one question involved in this case, which is : Has a person elected to the office of treasurer of a county to give bond as such within ten days after the election, or within ten days after it has been ascertained that he has been elected by a count of the votes and certificate of the proper officer ?

Suggestion for writ of Prohibition. From and after tlie taking effect of the new Constitution on the 4th July, 1865, a county seat could not be removed except on the vote of two-thirds of the voters of the county having the qualifications prescribed by sec. 3, art. 2, of Constitution — G. S. 24. The 3d sec., art. 11, of Constitution (G. S. 42) repeals all statutes inconsistent with the provisions of said Constitution.

Petition for Mandamus. The special act of 1857 is an exception out of- a general act of 1853, and both of these are yet in force — St. Louis v. Alexander, 23 Mo. 509 ; Yastine v. Probate Judge, 38 Mo. 529 ; § 5, p. 883, G. S. 1865. The act of 1857 is continued in full force by virtue of section 6, p. 883, G. S. 1865.

Louis Circuit Court. I. The vacating ordinance fixes the term of office of the officers mentioned therein. II. That sec. 6, ch. 18, p. 141, G-. S. 1865, is not a law having any force, power or validity whatever so far as this case is concerned.

<p>Constitution — Supreme Court — Jurisdiction: — The General Assembly can confer original jurisdiction upon the Supreme Court only in the cases specified in the Constitution ; in all other cases its jurisdiction must be appellate. The act, approved March 11, 1867 (Acts 1867, p. 9), authorizing the Supreme Court to determine both the law and the facts in relation to the amount due Emory S. Poster, the public printer, is void, as it involves no question of constitutional law, and does not show a solemn occasion calling upon the court to give its judicial opinion to the Executive or either branch of the General Assembly.</p>

Louis Circuit Court. The general proposition which I shall endeavor to establish is, that the supposed constitutional provisions relied on by the defendants to support their demurrer are no constitutional provisions at all; that they are binding on nobody and affect nobody’s rights; that they are in violation of the Constitution of the United States, and mere nullities.

Louis Circuit Court. The plaintiff offered testimony tending to prove the forcible entry and detainer by defendant.

<p>1. Officer — Misdemeanor in Office — Clerks.—It is the the duty of the justices of the County Court to know their own power and jurisdiction, and not the duty of the clerk to inform them; he is bound to obey the directions of the justices sitting as a court and acting upon matters coming within their general jurisdiction, and to enter such orders as they may make while they continue in office; he is not responsible for their errors or mistakes of law, nor for any official misconduct on their part, and the entry of orders made by them is no violation of his duty although the orders be illegal. The charge of misdemeanor in office preferred against the clerk of a court, under the statute, must be confined to his official action. To establish the charge, the conduct of the officer must be shown to have been wilful or corrupt; error in judgment merely, or ignorance or mistake of the law, is not enough, unless it be so gross as to show him to be entirely unfit for the office, and to render his tenure of office dangerous to the community.</p> <p>2. Courts — Sessions—Jurisdiction.—The meeting of the judges to hold a session of the court in vacation, or on a day to which they have have not adjourned, is illegal, and the action of the judges is invalid.</p> <p>3. Officers — Tenure of Office — When authority ceases. — When officers are elected or appointed to hold office until their successors are duly elected, commissioned and qualified, their authority does not cease until they are notified in some way that their successors are duly qualified, and their acts as a court de facto will be deemed valid until such notice is given.</p>

<p>1. Officers — Clerks, Duties of. — The duties of the cleric of a County Court are essentially ministerial; so far as the entering of the orders of the court are concerned, or the performance of any other act which may be legally or properly required of him by the court, he is without discretion ; he has no power to judge of the matters to be done, and must obey the mandates of the tribunal whose officer he is.</p> <p>2. Officers — Clerks of Courts — Misdemeanors in Office.— The refusal of the clerk of a County Court to produce the books and papers in his office before the court for its inspection and action thereon, when thereto required, is a misdemeanor in office.</p>

Petition for Mandamus. I. This court is the general guardian of public rights, and, in exercise of its authority to grant the writ, will render it, as far as it can, the suppletory means of substantial justice in every case where there is no other specific legal remedy for a legal right.

Information in the nature of Quo Warranto. I. No person who has done any of the acts specified in § 3, art. 2, State Constitution, is entitled to hold any office of honor, or trust, or profit — Vide latter part of § 3, art. 2, Const. II. The decree of the Circuit Court relieving the defendant from the disability is void.

The defendant is required to have a commission issued by the Governor before he is authorized to exercise the duties of sheriff — § 25, art 5, Const.; § 25 G. S. 63 ; § 1 G. S. 56 ; § 1 G. S. 38 ; Brodie v. Campbell, 17 Cal. 12. Authorities: 8 Mo. 264; 10 Pet. 472; 6 Pet. 729-30; 15 Mo. 141; 16 Ohio, 463 ; 5 Cranch, 185 ; 10 Wheat. 192 ; 6 Cranch, 267.

<p>General Assembly — Journals—Printing—Revenue.—By the provisions of the statutes (G. S. ch. 7 & 20), the reports and documents presented to either house of the General Assembly constitute part of the journals required to be kept by the secretary and clerk, and are required to be printed as an appendix to the journals. The secretary of the Senate is therefore entitled to be paid for copies of such reports and documents furnished to the public printer, to be bound up with the reports of the daily proceedings.</p>

The clerk’s entry on the record was as follows : “I. D. Kei’r, sheriff of Cole county, this day comes into court and acknowledges the execution of a deed of conveyanee, conveying from him as sheriff to James Mahan the west half,” &c. The certificate of acknowledgment endorsed on the deed from the sheriff to Mahan was as follows : “State of Missouri, County of Cole. — Be it remembered, that on the 25th day of May, A. D. 1847, personally appeared the above-mentioned W. D. Kerr…

I. This court is the general guardian of the public rights, and, in exercise of its authority to grant the writ, will render it, so far as it can, the suppletory means of substantial justice in every case when there is no specific legal remedy for the legal right.

Petition for Mandamus. The petition was as follows : Your petitioner, P. G. Hopkins, respectfully represents that he is clerk of the Circuit Court of Buchanan county, State of Missouri, duly elected, qualified, and acting as such, and was at the time of the rendering of the services mentioned in the fee-bill hereinafter set forth; that at the-term of thetfircuit Court within and for the county aforesaid, H. W. Smith was by the grand jury indicted for selling whiskey without…

I. The defendant in his answer having admitted that suit was brought by ¥m. S. Peyton against Francis Marion Rose, by the name of Marion Rose, and that judgment was recovered as stated in said petition, was precluded from raising on the trial the question of variance between the said allegations of the petition and the record of said suit and judgment— Cummings v. Gubridge, 17 Mo. 470. II.

I. There is no question that the statute of limitations operates as a bar to a recovery of the note sued on, unless a new promise sufficient to take the case out of the operation of the statute has been shown. II.

<p> Error to the Fifth District Court. </p>

The petition states facts sufficient to constitute a cause of action — Kimbacker v. Olev., Col. & Chi. R.R. Co., 3 Ohio, 172, n. ed., and authorities cited. Held: at least in the Western States, and in this State in reference to domestic animals — Oanefox v. Crenshaw, 24 Mo. 199, and cases cited ; Holliday v. Marsh, 3 Wend. 142: Rush v. Brainard, 1 Cow. 78, and not.e.

<p> Appeal from Fifth District Court. </p> <p>The amended petition was as follows :</p> <p>Plaintiff states that said plaintiff in the lifetime of the said defendant James E.' Hudgins, deceased, to-wit, on the 25th day of December, in the year of our Lord 1862, at the special instance and request of the said defendant, loaned to the said defendants William Hudgins, James E. Hudgins and Thomas H. Bayliss, and said last named defendants then and there borrowed of and from the said plaintiff the sum of thirty-seven hundred dollars, to be paid by the said defendants to the said plaintiff six months then next after the date thereof; and plaintiff states that the said defendants William Hudgins, James E. Hudgins and Thomas H. Bayliss were then and there co-partners in trade and business under the name and style of Wm. Hudgins & Co., and that said sum of thirty-seven hundred dollars was so loaned by the said plaintiff and borrowed by the said Wm. Hudgins & Co. for the use and benefit of the said Wm. Hudgins & Co., and the same was received and used by the said Wm. Hudgins & Co. in their said firm and co-partnership business ; and the said plaintiff says the money aforesaid was originally loaned to the said William Hudgins & Co. on the 27th day of January, A. D. 1858, and the note of James E. Hudgins and others given to secure the same, and that the said loan and note were renewed from time to time until the 25th day of December, A. D. 1862, on which last mentioned day the said loan and note were renewed and the note hereinafter mentioned was given, and that upon each renewal of said loan and note the said Wm. Hudgins & Co. paid to the jilaintiff the interest that had accrued upon said loan, and that the said Wm. Hudgins & Co. made the last payment of the interest upon said loan on the said 25 th dayofDecember,A.D. 1862; and since then, at different times, the said defendant Thomas H. Bayliss promised the plaintiff that the firm of Wm. Hudgins & Co. (of which he was a member) would pay to plaintiff the principal and interest of said loan and note. And the said plaintiff says that at the time of said loaning and borrowing, the said James F. Hudgins as principal and the said Henry C. G-arner as his security, in consideration thereof and for the purpose of securing the payment thereof, executed their negotiable promissory note, dated on the said 25th day of December, A. D. 1862, for the said sum of thirty-seven hundred dollars, six months after the date thereof, to the order of George H. Stewart, who then and there endorsed the same to the order of Thomas L. Shaw, who thereupon endorsed the same to the order of the plaintiff, and then and there delivered the same to the plaintiff, which said note was payable at the Farmers’ Bank of Missouri; and the plaintiff says that on the 28th day of June, A. D. 1868, at the Farmers’ Bank of Missouri, payment of the amount specified in said note was demanded of the said parties to said note, and the payment thereof was refused by the said parties to said note, and the said note was on the day and year last aforesaid duly protested, of which due notice on the day and year last aforesaid was given to the said parties to the said note, which said note is herewith filed and shown to the court here.</p> <p>Plaintiff states that the said defendant James F. Hudgins departed this life on the 27th day of Decembor, A. D. 1862, and that the said William Hudgins and Thomas H. Bayliss are the surviving members of the said firm of Wm. Hudgins & Co., and that the said defendant Thomas H. Bayliss as surviving partner, is administrator of the partnership effects of the late firm of Wm. Hudgins & Co., and that John W. Shotwell is the administrator of the estate of James F. Hudgins, deceased, duly qualified as such.</p> <p>Plaintiff states that said sum of thirty-seven hundred dollars so loaned and borrowed as aforesaid, and so secured as aforesaid, and all the interest accruing thereon, is yet due to said plaintiff, for which it asks j udgment.</p> <p>The plaintiff asked the following i nstructions :</p> <p>1. If the jury believe from the evidence that the firm of Wm, Hudgins & Co. borrowed from the plaintiff the sum of $3,700, and that the same was so borrowed for the use of the firm and was used by the firm of Wm. Hudgins & Co., the plaintiff is entitled to recover the money so borrowed and used by the firm from the members of the said firm of Wm. Hudgins & Co.; and if the note mentioned in the petition was given to secure the payment of the said sum of money so'borrowed as aforesaid by said firm, then plaintiff may recover against the securities and endorsers on said note.</p> <p>2. That the books of Wm. Hudgins & Co. showing that the sum' of $3,700 so borrowed was used by the firm of Wm. Hudgins & Co., and that the interest on the same was paid by the firm, is evidence against the members of the firm that the firm recognized it as .a firm debt.</p> <p>3. It is immaterial whether, at the time the money was bori'owed, the plaintiff knew that the firm of Wm. Hudgins & Co. were to receive and use the money, and be bound for the payment of the same or not, the plaintiff is entitled to recover of the firm of Wm. Hudgins & Co. if they did so borrow, receive and use the money.</p> <p>4. The admissions of a member of the firm during the existence of the firm and in relation to the firm business are evidence against the members of the firm, and the admissions of a member of the firm after the dissolution of the partnership are evidence against the member so making such admissions.</p> <p>To which the defendant Bayliss and Hudgins objected.</p> <p>The defendants, Garner, Shaw, and Stewart, asked the court to give the following instructions :</p> <p>1. If the jury find from the evidence that the defendant Henry C. Garner became security upon the note mentioned in the petition, and that the defendants George H. Stewart and Thomas L. Shaw became endorsers upon said note upon the representation of the defendant Thos. H. Bayliss at the time he was a member of the firm of Wm. Hudgins & Co., and that the firm of Wm. Hudgins & Co. had borrowed the money and would pay the debt, the jury will find for the plaintiff against the members of the firm of Wm. Hudgins & Go. as well as against these defendants.</p> <p>2. If the firm of Wm. Hudgins & Co. borrowed the money specified in the petition, the jury cannot find against the defendants unless they also find against the members of the firm of Wm. Hudgins & Co.</p> <p>To which the defendants Bayliss and Hudgins also objected.</p> <p>The defendants Bayliss and Hudgins asked the court to give the following instructions :</p> <p>1. This suit, so far as the defendants William Hudgins and Thomas H. Bayliss are concerned, is for money loaned by the plaintiff to the defendants, said Hudgins and Bayliss and James P. Hudgins, composing the firm of Wm. Hudgins & Co.; and before the plaintiff can recover against said William Hudgins and Thos. H. Bayliss in this action, the jury must believe from the evidence that the money sued for was loaned by the plaintiff to said firm of Wm. Hudgins & Co.; and .even though the jury may believe from the evidence that the money sued for was placed in the firm of Wm. Hudgins & Go. and was used by said firm, and even though said Bayliss may after such loaning have promised the administrator of James P. Hudgins, deceased, and other persons, to pay the said debt, or any note given therefor, or any note given in renewal, or any note given for said money so loaned, and though said Thos. H. Bayliss may have .acknowledged that it was a firm debt of said Wm. Hudgins & Co., yet unless the jury further find that the original loan was made by said plaintiff to said firm of Wm. Hudgins & Co. and on their credit, the plaintiff cannot recover in this action.</p> <p>2. No contract of loan could have been made by plaintiff and said firm except with the knowledge and consent of both parties to such contract; and such a contract on the part of said firm must have been made by said firm, or by one of the members thereof in the name and on behalf of said firm.</p> <p>3. If the jury believe from the evidence that the money sued for was loaned by the plaintiff to James E. Hudgins, and that at the time of such loaning the said James E. Hudgins gave his note with securities and endorsers to said plaintiff therefor, and that said note was' renewed from time to time by Jas. E. Hudgins to said plaintiff until the note in the petition mentioned was given upon the last renewal, and that credit was given by said plaintiff to the parties on said note for the sum so borrowed; and though the jury may believe from the evidence that the money so borrowed by said Jas. E. Hudgins of plaintiff was placed in the firm of Wm. Hudgins & Co. and was used by the firm in tlieir partnership business, even though said Bayliss may after such loaning of said money by plaintiff have promised the administrator of James E. Hudgins and other persons to pay said debt, or any note given therefor or in renewal thereof, and even though said Bayliss may have acknowledged said debt to have been a debt of the firm of Wm. Hudgins & Co., nevertheless the jury must find for defendants Bayliss and Wm. Hudgins in this action. Though the jury may believe from the evidence that the money sued for was loaned by plaintiff to the firm of Wm. Hudgins & Co., yet if the jury further believe from the evidence that at the time of loaning said money the plaintiff took as security for the payment thereof the individual note of James E. Hudgins with other persons as securities and endorsers, and that said note was from time to time renewed by the said Jas. E. Hudgins with other persons as securities and endorsers, then the plaintiff, by taking such note with security, in law discharged the other members of the firm from all liability on account of such loaning of said money to said firm, and relied upon their security so taken by such notes, and the jury must find for the defendants Bayliss and Wm. Hudgins in this action.</p> <p>5. Any declaration made by Bayliss, after the original borrowing of this money by the said Jas. P. Hudgins, as to his liability or the liability of the firm of Wm. Hudgins & Go. to third persons, not to plaintiff in this action as to his liability for the debt or the firm liability, is not binding for want of consideration, for the further consideration'and fact that the promise was not in writing.</p> <p>To which the plaintiff'and the defendants Garner, Shaw and Stewart objected.</p> <p>The court, in lieu of all the aforesaid instructions, gave to the jury the following:</p> <p>1. If the jury find from the evidence that plaintiff loaned to Wm. Hudgins & Co. (a firm composed of William Hudgins, James E. Hudgins, and Thomas H. Bayliss) the sum of $3,700, they will find tlie issue for the plaintiff; but if the jury do not find from the evidence that plaintiff did lend the sum of $3,700 to defendants Wm. Hudgins & Co. (a firm composed of William Hudgins, James E. Hudgins, and Thos. H. Bayliss), they will find for the defendants.</p> <p>2. If the jury find from the evidence that James E. Hudgins was a member of the firm of Wm. Hudgins & Go., and that said Jas. E. Hudgins borrowed $3,700 of plaintiff upon the credit of said Wm. Hudgins & Co., and the credit further of the other defendants, they will find for the plaintiff; but if the jury find from the evidence that said Jas. E. Hudgins did not borrow said sum upon plaintiff’s faith and credit extended to the firm of Wm. Hudgins & Co. and the other defendants, they will find for the defendants.</p> <p>3. The jury are instructed that declarations made by a member of an existing firm touching its business will bind all the members thereof; and, therefore, if the jury find from the evidence that, at or before the date of the loan of $3,700 by plaintiff, any member of the firm of Wm. Hudgins & Go. declared to plaintiff that the sum was borrowed upon the credit and for the use of said firm, then plaintiff is entitled to rely upon such declaration, and the finding must be for the plaintiff; but unless the jury find from the evidence that at or prior to said loan such declaration was made to plaintiff, or came to plaintiff’s knowledge,'and was relied on as a part inducement or reason for extending the credit to the firm, and that the credit accordingly extended to the firm of Wm. Hudgins & Co. and other defendants, the jury will find for the defendants.</p> <p>4. The jury are instructed that declarations made by any member of the firm of Wm. Hudgins & Co. subsequent to the loan as to the debt being a firm debt, is evidence to be considered by the jury in determining the question whether or not the money was in point of fact borrowed by Jas.E. Hudgins upon faith and credit extended to the firm by plaintiff; and, accordingly, if the jury believe from the evidence, coupling subsequent declarations with other facts and circumstances proven, that Jas. E. Hudgins, at or prior to the borrowing, represented to plaintiff, or so represented so that it came to the knowledge of plaintiff, that said sum was to be borrowed on firm credit in part, and that upon the faith thereof credit was extended to the firm, then they will find for the plaintiff; but unless the jury believe from the whole evidence that said sum was borrowed upon faith and credit extended to the firm of Wm. Hudgins & Co., they will find for the defendants.</p> <p>5. The jury are instracted that declarations made pending the existence of the firm, by any member thereof, prior to the signing of the note filed, to the securities and endorsers, that such note was on firm account, would bind the firm in any action between said firm and the makers, securities and endorsers of said note; and in this action if it appear to the jury from the evidence that said declarations by a member of the existing firm were also made to, or came to the knowledge of, plaintiff prior to the negotiation of the note, and that upon the faith of such declarations plaintiff extended credit in part to the firm of Wm. Hudgins & Co., the jury will find for the plaintiff; but if it appear to the jury from the evidence that said or similar declarations were not made to or came to the knowledge of plaintiff, and that the plaintiff did not extend credit in part to said firm in consequence of such declarations, then the finding should be for the defendants notwithstanding any representations made only to securities and endorsers.</p> <p>To the giving of which instructions by the court, and to the refusal by the court to give the instructions asked by Bayliss and Hudgins, defendants at the time excepted.</p> <p>I. A motion in arrest of judgment being filed precludes a motion for a new trial, and supersedes such a motion if already made. The record shows that a motion in arrest of judgment was filed in this case, and that afterwards a motion for a new trial; in other words, no motion for a new trial was filed at all in this case. A motion illegally filed is the same as not filed — 20 U. S. Dig. 697, § 250 ; 18 id. 546, § 144 ; McComas v. State, 11 Mo. 117.</p> <p>II. If no motion for a new trial be made in the court which tried the case, neither the action of the court in giving or refusing instructions or admitting or excluding evidence, nor of the jury in finding the verdict, will be considered by the Superior Court — Higgins v. Brant, 9 Mo. 497.</p> <p>III. Under this view, the only matter before the court relates to the sufficiency of the facts stated in the petition to constitute a cause of action. The defendants waived all objections on the ground of a misjoinder of parties, or of actions, by answering the petition — R. C. 1855, p. 1281, § 10.</p> <p>IV. The District Court decided that there is no evidence in this case against defendants Hudgins and Bayliss. Plaintiff insists that the evidence warrants the judgment of the Circuit Court — 5 Pet. 137; S. Car. Bk. v. Corse, 8 Barn. & Cress. 427 ; 3 Kent’s Com. 31; Sto. on Part. §§ 162, 137, 138; Farmers’ Bk. v. Hudgens et als., 35 Mo. 440, 445; 22 Mo. 400 ; Bank v. Joy, 41 Me. 572.</p> <p>Y. If a partner make a simple contract for his firm in his own name, or if an agent make a simple contract for his principal in his own name, the partnership in the one case and the principal in the other are bound by the contract whether the partnership or principal are known or unknown to the other contracting party at the time of the contract— Sto. Ag. 160, (a) ; 22 Mo. 399.</p> <p>YI. It is of no importance whether the petition in this case be founded on the note therein described, or on the original consideration. The question is, do the facts alleged in the petition and proved on the trial entitle plaintiff to judgment against defendants ¥m. Hudgins and Bayliss ? The note executed by Jas. E. Hudgins for the money loaned by plaintiff was no payment of the debt created by the loan, and the note not having been paid, plaintiff is entitled to recover the money loaned — 10 Wend. 271; 4 Carr. & P. 121; Sto. on Prom. N. § 404; Appleton v. Kennon, 19 Mo. 639; 5 Day, p. 511.</p> <p>I. The petition attempts to set up two. separate and distinct causes of action in one count, without stating them separately as the statute requires. One cause of action attempted to be set up is in the nature of a common count for money loaned, and is against the firm of Wm. Hudgins & Co. or the members who constituted that firm, and in the same count is joined a cause of action against the other defendants growing out of their liability as makers and endorsers of a negotiable promissory note to which the defendants Hudgins & Bayliss are not parties; and a joint judgment is rendered against all of the defendants, whether upon the note or otherwise does not appear — McCoy v. Yager, 34 Mo. 134; Clark’s Adm’x v. Hann. & St. Jo. R.R. Co., 36 Mo. 202-15 ; Doan et al. v. Holly, 25 Mo. 357.</p> <p>II. The petition does not state facts sufficient to constitute a cause of action against these defendants. It is shown by the petition that the credit was not given to these defendants, but to James F. Hudgins and to liis sureties and the endorsers of the note discounted by plaintiff at the several times named in the petition. See Emly v. Lye, 15 East. 7.</p> <p>III. The first instruction given to the jury by the court submits the main question of law involved in the whole case to the jury. Whether Bayliss &■ Hudgins were in law to be considered borrowers of the money under the circumstances shown in the evidence, is purely a question of law to be decided by the court. To submit this question to a jury was erroneous — Hickey v. Ryan, 15 Mo. 62; 6 Mo. 273.</p> <p>IY. The instructions asked for by the defendants ought to have been given: they contained the law applicable to the case. The question was, did the bank give credit to the firm of Wm. Hudgins & Co. in making the loan of money, or rather in discounting the note ? This question was fairly presented to the jury by these instructions, and they ought to have been given — Farmers’ Bk. v. Bayless et als., 35 Mo. 428; Sto. on Part. §§ 134-42 ; Jacques v. Marquand, 6 Cow. 497; 3 Kent, 41-4; 8 Pick. 411; 9 Mass. 119-21; Gow on Part. 154, & supp. 43 ; Coll, on Part. 458, 473 et seq., where the whole matter is fully discussed.</p> <p>Y. The discounting of a note by the bank in renewal or in the place of the original contract and note, witli different makers and endorsers from those to the original contract, was a satisfaction of said original contract and note, and released the original parties from any further obligation in reference thereto, and the jury ought to have been so instructed — Yarnell v. Anderson, 14 Mo. 619; Burdick v. Gunn, 15 Johns. 247; Appleton v. Kennon, 19 Mo. 639 ; Arnold v. Camp, 12 Johns. 409.</p>

The guardian’s deed was as follows : “Know all men by these presents, that at the adjourned term of the Probate Court of Platte county, Missouri, in the month of June, in the year 1854, I applied to said court for an order to sell the real estate of George Strouse, deceased, for the education of his minor child, which was granted; and I, as the guardian of John M. Strouse, the only child and heir of the said deceased, in pursuance to said order of said court, sold to James…

The cause was submitted to the court without a jury. The plaintiff moved the court to declare the law as follows : 1.

W. J of the N.W. ‡, and the E. J of the N.W. J, and the N.E. £ of the S.W. | of section 20, in township 68, and range 16, situate in Macon county in the State of Missouri. Entry laid October 2,1855. The respondent in his answer denied that appellant was entitled to the possession of said premises at the time alleged, or at any time since or prior thereto; and denied that he unlawfully withheld the possession thereof.

Appeals from Cape Girardeau Circuit Court. Appeal front Cape Girardeau Circuit Court. Appeal from Scott Circuit Court. Appeal from St. Louis Criminal Court. The defendant was indicted and found guilty of having practised as an attorney-at-law, after the adoption of the new Constitution, without first having taken and filed the oath of loyalty prescribed by secs. 9, 6, 3 and 14 of art. 2 of that instrument.

The defendant was indicted for teaching without having taken the “oath of loyalty.” This is an indictment for teaching school without taking the constitutional “ test oath.” We submit the cause to the judgment of the court on the points and authorities in our brief now before the court in the case of Blair v. Ridgely.

I. The written contract not purporting to state the particulars, it was perfectly competent to offer parol testimony to explain parts of it on which the writing was silent, such proof not being contradictory to the writing — 2 Phil. Ev. 772, Lond. ed ; 1 Greenl. Ev. § 284, a.; 3 Cow. & H. Notes to Phil. Ev. 1471-2; Rollins v. Claybroob, 22 Mo. 405. No objection was made to the introduction of parol testimony for this purpose.

<p> Error to the Second District Court. </p> <p>I. The Circuit Court had no jurisdiction of the cause and no power to render judgment against the executor, or to reverse the action of the County Court. An appeal does not lie from the settlements of executors and administrators until final settlements, because the settlements before final settlements are not judgments, and are not binding or conclusive on parties interested in the estate, but may be altered, corrected or annulled at final settlement — Picot v. Biddle’s Adm’r, 85 Mo. 29. No appeal lies in this case except from a final judgment or decision.</p> <p>The second clause of the 1st section of the 8 th article of the “Act respecting Administration” can only apply to final settlements where there is a final adjudication of all the accounts of the executor, had upon notice to all parties interested in the estate.</p> <p>II. The decision of the Circuit Court requiring the executor to pay the costs out of his own estate was erroneous ; he was entitled to a credit in his settlement for the costs paid by him — B. C. 1855, p. 156, § 25. The case of Woolbridge, Adm’r, v. Draper, 15 Mo. 470, has no application in this case.</p> <p>The Circuit Court committed no error in taxing the costs against the executor de bonis propriis, nor the District Court in affirming that judgment. The cause of action accrued to Schoeneman as executor and to Bunkle in his lifetime., and the case of Woolbridge, Adm’r of McDonald, v. Draper is directly in point — 15 Mo. 470.</p> <p>An appeal will lie from a settlement of an administrator or executor — B. O. 1865, p. 514, § 1.</p>

I. The construction given to § 3, ch. 37, G-. S. 1865, p. 137, by the Marion Circuit Court, by which the office in controversy was held to be vacant on the 6th of November, 1866, is in direct conflict with the vacating ordinance — § 2, ch. 2 of said statute ; Gr. S. 1865, p. 60, § 1 of vacating ordinance ; id. p. 47 ; State ex rel. Mississippi & Mo. R.R. Co. v. Macon Co. Ct., present term. II.

I. The amended answer was insufficient because it traverses the same cause of action it confesses and avoids— Darrett v. Donnelly, 38 Mo. 492. Because the breaches being specifically assigned, the denials must be specific and nil debet, no answer — Engler v. Bates, 19 Mo. 545. Motion to strike out, not demurrer, was the proper proceeding — Phillips v. Evans, 38 Mo. 309. II.

Charles Circuit Court. The judgment in this suit is founded on an error of fact, and may be set aside on motion at any time. There is no limitation in our statute book to proceedings to correct such judgments — Powell v. Gott, 13 Mo. 458 ; Randall v. Wilson, 24 Mo. 76. • The sheriff had a right by leave of court to amend his return to suit the facts at any time — Randalls v. St. Bl. Wm.

<p> Appeal from the Sixth District Court. </p>

Francois Circuit Court. This case was before the court in 35 Mo. 342. After the remanding of the case, the pleadings were amended by both parties. This suit was commenced November 7,1855.

I. There was no error in the judgment of the court upon the facts agreed on. The petition is for partition as a tenant in common with William L. Powell, and for possession of the land against Boone. The action is to obtain partition between himself and William O. Powell, who holds adversely to him, and had so held for fifteen years before the commencement of this suit — Lambert v. Blumenthal, 26 Mo. 471. II.

I. The acts of the General Assembly enacted for the benefit of persons in the military service are personal privileges conferred on a particular class of citizens, of which they may avail themselves, or which they may waive. If the defendant fails to avail himself of this act at the time of pleading, or during the term, according to the Practice Act, he cannot do it afterwards.

This was an action brought by defendant in error to recover a tract of land in Jefferson county containing about 134 acres, and damages for timber alleged to have been cut thereon by plaintiff in error.

Genevieve Circuit Court. I. The defendants being in adverse possession, partition will not lie. II. The court erred in admitting the power of attorney after the trial had closed, because it was out of order of evidence, and because it was not proven that it was acted under and is not connected with any part of the case. III. The mortgage deeds from P. Detchemendy to the State and to Chouteau and others, show an outstanding title sufficient to defeat plaintiffs’ action.

<p> Appeal from Franklin County Circuit Court. </p>

I. The Circuit Court erred in admitting the declarations of Mrs. Hart. They were not declarations against her interest so that they would have been admissible in favor of claimant in a suit against her while living ; they are not evidence of any contract to pay plaintiff for services — are not admissions of indebtedness — are mere expressions of a consciousness of moral obligation — of gratitude.

I. A tenant is not estopped from showing that the title of; his landlord is extinguished or transferred, and that he hold's, under the purchaser as his tenant, and may show that th©' title under which he entered has expired or been transferred! —G. S. p. 742, §§ 38, 39 & 40 ; 6 Wend. 670; 3 Hemp. 16-;-33 Mo. 292 & 105 ; 10 Humph. 49 ; Tay. Land. & Ten. §f 629 ; Smith’s Land. & Ten. p. 296, note. II.

Petition for Mandamus. I. There are three questions before this court for judicial determination, viz.: 1. To what extent is section 13 of the charter of the Missouri & Mississippi Railroad Company (Sess. Acts 1865, p. 86) controlled by section 30 of the general act of 1861 ? 2. What effect has section 14, art. 11, of Constitution upon section 13 of said charter ? 3. Is section 13 of said charter repealed by section 17,. ch. 63, General Statutes of 1866, p. 338 ?

<p> Appeal from, Audrain Circuit Court. </p>

The plaintiff moved the court to instruct the jury— 1. That if they believe, from the evidence, Lyle Singleton furnished nine thousand ties, or any other number, on the line of the south-west branch of the Pacific railroad, which were by the engineer of said road rejected and were after-wards taken and used in the construction of said road, then the plaintiff is entitled to recover a reasonable compensation for the ties so used. 2.

<p>1. Supreme Court — Criminal Practice — Evidence—Appeals.—On appeals or writs of error in criminal cases, the Supreme Court will examine the evidence given upon the trial, and will reverse the judgment if the verdict be not supported by the evidence.</p> <p>2. Constitution — Jury—Crimes—Misdemeanors.— Upon the trial of parties indicted for capital crimes and felonies, the prisoner cannot waive his constitutional right to a trial and verdict by a j ury of twelve good and competent jurors. In cases of misdemeanors, where the penalty is a fine merely, he may waive his right and may accept the verdict of less than twelve jurors, or submit to a trial by the court.</p>

The injunction should not have been granted, there being no allegation of insolvency against Kattleman — 20 Mo. 79. Plaintiffs had the right to replevin and trespass. The lien .reserved is void, the case showing that defendants had the possession of the goods and right to sell, and therefore fraudulent — 28 Mo. 173 ; 31 Mo. 445, 451; 34 Mo. 432 ; Brooks v. Wimer, 20 Mo. 503.

The plaintiff asked the following instructions, which the court gave: 1. If defendant aided or assisted in taking the goods, or any part thereof, at the time specified, he is liable for the entire amount taken. 2. If the defendant was then aiding or abetting or countenancing said robbery, he is responsible for the damage sustained by plaintiff. The defendant asked the following instructions : 1.

<p>Boats and Vessels — Jurisdiction,— Courts__Boylan et al. v. St. Bt. Victory, 40 Mo. 244, affirmed.</p>

<p>1. Practice — Jury—Trial.—It is the part of the jury to weigh the testimony and reconcile the evidence presented, and to give their verdict according to what they believe to be the facts.</p> <p>2. Practice — Trial—Instructions.—Instructions not supported by the evidence presented, are properly refused.</p>

Louis Court of Common Pleas. At common law, the power of the coitrt over its own judgments by default remained until one year after rendition, and was exercised whenever any irregularity was shown to exist either upon the face of the record, or, aliunde, without regard to merits — Hallet v. Righters, 13 How. Pr. 45; Williams v. Reel, 5 Duer, 602.

<p> .Error to Pike County Circuit Court. </p>

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

Louis Circuit Court. I. The sheriff in a partition sale is trustee of the fund. He held the note .taken for the purchase money of the land subject to the order of the court; he has no other authority to collect the money and pay it over under the order of the court; he could not sell the note. II.

Louis Circuit Court. I. I£ there is any point established in the law of carriers, it is that before the carrier can be held responsible, the property must have been delivered to him or his proper servant— Ang. on Car. §§ 143-6 ; Ford v. Mitchell, 21 Ind. 54 ; Packard v. Getman, 6 Cow. 757; Trowbridge v. Chapin, 23 Conn. 595 ; Tower v. Utica & Schen. R.R. 7 Hill, 47 ; ILd. Raym. 46 ; Edw. Bail. 446.

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

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

Louis Circuit Court. I. William Stanton being dead, the plaintiffs (bis survivors) were not competent witnesses in their own behalf, and especially to testify on this point as to whether there was or… Held: that as the contract for the work and labor and materials sued for was made with John A. Stanton, now deceased, the defendant Thomas Ryan could not be permitted to testify to matters occurring between himself and the deceased — Gf. S. 1865, § 1, p. 586.

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

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

Louis Circuit Court. This was a suit on a contract by which defendant employed plaintiff, as real estate agent at St. Louis, to sell within three months a house and lot of defendant’s. Plaintiff advertised the house and lot for sale. The defendant Gebhardt sold the house and lot to his tenant for 17,500 without informing plaintiff. After the sale by Gebhardt, and within the three months specified, plaintiff found a purchaser of the house and lot at the price of $8,000.

Louis Circuit Court. If the assignment had been proved as alleged, it was an assignment of only McPherson’s interest; it does not purport to assign more, and there is no principle of law that gives it greater effect. It is assumed to be absolutely certain that McPherson’s interest in the notes, bond, and suit, was assignable — Lyon v. Lyon, 4 Bibb. 438; Ellege v. Straughan, 2 B. Mon. 82 ; Bank v. Trimble, 6 B. Mon. 599; Gamble v. Johnston, 9 Mo. 605; Sto. Eq.

Louis Circuit Court. Defendant asked the following instructions, which were refused: 1. Held: without regard to their charter, to act as officers of such corporation, derive no authority to act as such corporation. — Ang. Corp., §§ 104,161, 274,265, 291, 403,466 (a), 521, 543, 498, 633; 7 Grat. (Va.) 352 ; Green v. Seymour, 3 Sand. Cli. 285; Root v. Goddard, 3 McLean’s C. C. 102. VIII.

Louis Circuit Court. Plaintiff’s instruction given: “ If the jury believe from the evidence that the defendant employed the plaintiff to sell the real estate described in the petition for one hundred dollars per foot, one third cash, one third in one year, and one third in two years; that the said plaintiff undertook to sell said property for said price and upon said terms ; that said plaintiff procured a purchaser for said lot at said price and upon said terms, and reported…

Louis Circuit Court. The policy does not provide for the money to be paid to Loos’ executors, administrators, or assigns. The usual words used iii policies are these particular ones, where the sum insured goes to the estate on death of the assured. — See forms adopted by insurance companies when the administrators take the insurance; Ang. on Ins. §§ 247, 277; Way-man v. Wayman, 12 Smith, (N. Y.) 253 ; 3 Kent, 439.

Louis Circuit Court. The plaintiff, to sustain the issues upon her part, gave in . evidence— 1. A certificate of confirmation by the old Board of Commissioners, dated January 10,1809, issued to Thomas Johnson, upon a g^ant to John Scott by Lt. Gov. Zenon Trudeau, dated March 20, 1797 ; claim filed by Thomas Johnson, January 25,1806. 2. Copy of U. S. survey No. 120, for 432 arpents, surveyed by Jos. C. Brown in 1818. 3. A deed of exchange made between Thomas Johnson and Alex.

Petition for Mandamus. The petition of Thomas Adamson, the plaintiff, respectfully represents, that at a general election held in the county… Held: the said justices of said County Court ordered the clerk thereof to issue a certificate of election to one James M. Poule, certifying that he had been duly elected sheriff of said county, which said certificate was false and was known so to be by said justices, and was by them so ordered to be issued for the purpose and with the…

Louis Circuit Court. This was a bill in equity brought against defendants to enforce a payment by them of a judgment obtained by plaintiffs (appellants) against a corporation called “The Copper Creek Mining and Mineral Company.” At the trial, the plaintiffs called as a witness one of the defendants, Josiah Fogg, who testified as follows: “ I became a stockholder in the Copper Creek Mining and Mineral Company on the 9th of December, 1862.

Louis Circuit Court. The plaintiff prayed the following instructions, which were refused: Í.

Petition for Mandamus. I. The Supreme Court should grant a writ of mandamus where there is no other legal remedy or means of enforcing a right which the applicant is legally and equitably entitled to, and which is legally demandable of the person to whom the writ is directed — Tap. on Mand. 29. II.

Petition for Mandamus. I. Mandamus is the proper remedy to compel a public officer to perform a ministerial duty, and there can be no question of the power of this court over the subject-matter or the person — 3 Black. Com. 110 ; Marbury v. Madison, 1 Cranch, 62 ; Postmaster-Gen. v. U. S., 12 Pet. 524; Reeside v. Treas. U. S., 11 How. (U. S.) 287.

Petition for Mandamus. I. Inasmuch as the statute devolves the duty upon the warden of the Penitentiary to appoint the “ deputy warden and other officers and servants of the Penitentiary” with the approval of the inspectors, and that approval having been given and the services for which this warrant in question was drawn having been rendered, and proper proofs and vouchers having been furnished the Auditor, it was competent and lawful for the Auditor to aggregate the amounts…

<p> Petition for Mandamus. </p> <p>“ Jolm O. Breekenridge, your petitioner, respectfully shows to this court, that he is a voter residing in Union election district, Washington county, Missouri, and has stibscribed and filed with the clerk of the County Court of said county the oath of loyalty prescribed by the Constitution; that he has been a volunteer soldier and officer, and served as such in the army of the United States from near the beginning to the close of the late war with the Rebels or Confederates, and was honorably discharged from the service of the United States; that at and prior to October, 1866, James J. Wilkinson had been appointed by the Governor of the State as supervisor of registration in and for said county, and duly qualified and acted as such, and as such officer he duly appointed Bucl Atchinson, a resident of Breton district, officer of registration for Union election district on or previous to October, 1866; and that in October, 1866, in time and manner required by law, on due notice, the said Buel Atchinson, as such officer aforesaid, proceeded in said Union district to register the qualified voters; that your petitioner, together with some fifty or more loyal Union soldiers, took and subscribed the oath of loyalty, and did and performed all and every act required of them respectively to become registered voters in and for said district; ■ and this petitioner says he was registered as a voter in said district, as were some fifty or more others, by said Atchinson, so acting as registering officer therein as aforesaid, and he is not aware of and never received notice of any objection made by any person or persons to his being a registered voter in said district. And your petitioner further says, that after he, had been so registered as a qualified voter by said Atchinson in said district, and on the last day, and in the same afternoon of the last day of the meeting of the board of appeals in and for said county at Potosí, and without any notice thereof previously given to your petitioner, or any of the other voters so registered, the said board of appeals rejected and declared null and void the entire list of registered voters, including the register of your petitioner, on the sole ground that the said Buel Atchinson, register as aforesaid, was not at the time a resident of Union district, but was a resident of Breton, an adjoining district in same county. Your petitioner says he lias not since had the opportunity to become a registered voter in said district, although he is now and has for the past five years been a resident and duly qualified to be registered as a voter in said district. Your petitioner further says, that at the general election held in said county in November, 1866, Mr. Moreau was elected supervisor of registration in and for said county, and lias duly qualified and been commissioned as such, and that on the - day of October, 1867, there having been a special election ordered for representative in Congress in place of Hon. Thomas E. Noel, deceased, and there being a vacancy in the office of registration for said Union district, the said Moreau, as supervisor of registration, duly appointed James Cook, a resident and duly qualified voter, officer of registration in and for said district, and filed said appointment with the clerk of the County Court; and the said Cook has filed the required oath and entered upon the discharge of the duties of liis office. And your petitioner further says, that one week’s previous notice, in form and manner required by law in such cases for general registration, was given by said Moreau, as supervisor of registration, that a registration of voters would be taken and a session of the registering office for said Union district would be held in said district in October, &c., and a session of the board of appeals of said county would be held on the Saturday following. Your petitioner says that he lias applied to said office of registration, and also to said supervisor of registration, and asked to have his name placed upon a list of registered voters, and to become a registered voter in and for said district, and that he lias offered and is ready and willing to take and subscribe the oath of loyalty, and do and perform all other acts necessary and required to become a registered voter in said district; but the said James Cook, registering officer as aforesaid, has refused and utterly refuses to permit your petitioner to become a registered qualified voter in said district. Wherefore your petitioner prays this court that a mandamus may issue directing and commanding said officer James Cook to register your petitioner as a voter in said district on your petitioner appearing before said officer and taking and subscribing the oath of loyalty, and otherwise satisfying said officer that your petitioner is and has always been a loyal person, and is a qualified voter in said district, and for such further and other order as the court may deem proper.”</p>

<p> Petition for Mandamus. </p>

<p> Appeal from 'St. Louis Court of Criminal Correction. </p>

<p> Appeal from St. Louis Court of Criminal Correction. </p>