Volume 43 — Missouri Reports

The facts material to the case appear in the opinion of the court. Plaintiffs, at the time, asked the following instructions : 1. There is no evidence in the case tending to show that at the time of the institution of this suit the land sought to be partitioned in this case was held by these defendants, or any one claiming under them, adversely to the plaintiffs. 2.

This action was commenced by plaintiff in error against Ball, The court gave, on its own motion, the following instructions : 1. If the jury believe from the evidence that Wm. Armstrong was acting as a general agfent in managing defendant’s farm, and that he employed Fred.

The facts in this case are fully set forth in the opinion rendered in the same case at a former hearing. (39 Mo. 346.) I. The judicial acts and proceedings of courts of general jurisdiction, where they have jurisdiction over the person and subject matter, cannot be questioned in a collateral proceeding.

Louis Circuit Court. A general statement of the facts in this case will be found in 36 Mo. 441. The facts now presented are different from the last transcript. In this record it appears beyond all doubt that there was an absolute sale and transfer of the whole stock of goods.

Jlppeal from Hannibal Court of - Common Pleas. I. The court had no jurisdiction over the subject matter of the respondent’s motion. The report of the commissioners was filed with the clerk of the Circuit Court on the 8th day of January, 1868 ; the respondent filed no written exceptions to it within ten days, as required by the statute. (Gen. Stat. 1865, ch.^66, p. 353.) The Circuit Court of Marion county had no jurisdiction.

Louis Circuit Court. This was a suit instituted by plaintiffs in error, who were partners in business, against defendants in error, to recover the sum of $4,147.19, it being an indebtedness contracted by the Missouri Spinning Company, a corporation of which the said defendants were directors.

Louis Criminal Court. The language of the ninth subdivision of article IV of ordinance 5421 is equally applicable to prostitutes who carry beer in their own saloons as it is to those who cany beer in saloons belonging to others, and the reason for preventing it in the one case is the same as in the other.

<p> Appealfrom St. Louis Circuit Court. </p> <p>This was an action for an alleged breach of a contract of affreightment, in the non-delivery, at their destination, of three boxes of merchandise. The goods in controversy, together with others, were shipped at St. Lonis, on one of the boats of the packet! company, to be transported to Hannibal, thence by rail to Weston, and by boat to Leavenworth, their destination. The testimony for plaintiff tended to show that all the goods called for by the bill of lading were delivered to defendant on board one of its boats at St Louis, and that the three boxes in controversy were not delivered at Leavenworth. The plaintiff also read in evidence a receipt of the railroad agent at Leavenworth for freight on goods, which did not include the goods in controversy; he also read invoices of the goods.</p> <p>Lyons, clerk of the Hannibal and St. Joseph railroad at Leavenworth, testified for defendant, to the effect that he delivered to Erb, plaintiff, all the goods received at Leavenworth for Sellers & Co., the consignees, in the fall of 1864 ; that he, Erb, checked them off as they were delivered, saying they were all right; and that he heard no complaint about lost goods for a year or more afterward; also, that goods were received about the same time for one Erankel, and that three boxes of Sellers & Co.’s goods got into or among those of Erankel, which were taken and delivered to Erb. This witness contradicts Erb as to his statement that, the goods would come by the next train.</p> <p>N. Mulliken, secretary of the packet company, testified that claims against the company for lost goods were always promptly presented; that he did not hear of plaintiff’s claim until June, 1866, nearly two years after the alleged loss occurred,- and says the company paid plaintiff a claim for oysters and tobacco about that time.</p> <p>Willis, agent of the road at Leavenworth, testified in substance that, after the goods were delivered to plaintiff by Lyons, Erb came to his office and paid him the freight, each giving a receipt —one for the freight, the other for the goods ; that the list of articles was taken from a manifest of the steamboat on which the goods came from Weston ; that if there was any mistake in copying from the way-bill to the manifest, the same mistake would occur in the receipts’; that no complaint was made for goods short.</p> <p>Chase, freight agent of the road at St. Joseph, testified that the way-bill Of the railroad is copied into the manifest of the boat at Weston; the copying is generally done before the goods reach Weston; that the manifest and way-bill ought to agree. Examined manifest, and said it was made by him from the way-bill, and that a mistake was made in copying the manifest from the waybill. Defendant offered to prove by this witness that there were articles on the way-bill that were not on the manifest, to which plaintiff objected, and the objection was sustained. Defendant then read the receipt of Sellers to the Hannibal and St. Joseph railroad, the same referred to by Willis. Defendant offered the way-bill of the Hannibal and St. Joseph railroad, and the manifest of the steamer from Weston, for the purpose of explaining the receipts testified to by Erb and Willis, and to show why the boxes sued for were not included in these receipts, and to corroborate the witness Chase. These papers were excluded. The evidence being closed, the court instructed the jury,. on motion of plaintiff, that if the goods in controversy were not delivered to L. Sellers & Co., or to their agents, by defendant, at the place of destination called for by the bill of lading, then they must find for the plaintiff, and assess the value of goods, with interest at six per cent, from commencement of suit, as plaintiff’s damages. The verdict was for plaintiff, in damages to the amount of $993; and the case comes here by appeal.</p> <p>I. The court refused to permit proper and legal testimony to go to the jury. The way-bill of the Hannibal and St. Joseph Railroad Company was testified to by Chase as being the way-bill of plain- ■ tiff’s goods over the road. It was not objected to as being incorrect or not being proved to be correct. Chase, for defendant, testified that he was clerk for the road at Weston; that it was his duty to make out, and that he did make out, the manifest of the steamboat that carried the freight from Weston to Leavenworth; that he generally made out these manifests from the way-bills of the road, copied them before the goods arrived -at Weston; that he copied the manifest of the plaintiff’s goods from the way-bill of the road; that he did not see any of the goods (the three packages sued for by plaintiff were on the way-bill, but not on the manifest). He testified that he made a mistake in copying; that the manifest and the way-bill ought to agree, and the fact that they did not agree was simply a mistake of his. The witness Willis, who gave the receipts to plaintiff that he read in evidence, testified that he copied the list of goods in the receipts from the manifest of the boat, and of course copied the errors by omitting the three packages that Chase had accidentally omitted on the manifest. The way-bill and manifest were offered in evidence to the jury that they might, by an inspection of the papers themselves, see how the mistake was made. It is true this evidence would not have proved a delivery of the goods to the plaintiff, but it would have completely destroyed all weight given to the receipt — it would have rebutted that testimony. The defendant was entitled to this sort of testimony under the circumstances of the case. A railroad delivers thousands of packages and different parcels of freight. After a few months it would be almost impossible to prove the exact number of packages delivered. Good faith required the plaintiff to take more active steps to make known his loss. He has voluntarily placed himself under suspicious circumstances, and the defendant certainly ought to have been permitted to show that the three articles or packages sued for were omitted from the receipt by mistake. The man who wrote the receipt never saw the goods; he simply copied the manifest, and on this ground it was competent evidence to explain the receipt copied from it; and on the same ground the way-bill was competent evidence. It makes no difference, so far as this point' is concerned, whether the way-bill was correct or not; it was the origin of the manifest, and this was the foundation for the receipt; and it was to explain the receipt alone that they were offered in evidence, and they were competent for that purpose. With these papers in, we believe the jury would have found for the defendant.</p> <p>I. No testimony was offered to show that the way-bill offered in evidence was correct. They are merely private memoranda, and cannot bind plaintiff in any manner whatever as evidence. The witness Chase stated that he did not know how many boxes and packages were actually reaeived at Weston; and the fact that all the goods called for by the bill of lading and way-bill were received at Weston was not shown. Therefore, Chase was copying from a paper which he himself did not know to be correct.</p> <p>II. If the way-bill and manifest were introduced by defendant for the purpose of showing that the witness Chase had made a mistake, then we say there was no need of such proof, because the jury had an uncontradicted verbal statement of that from Chase. If to show that there was a mistake in the receipts, then there was no testimony to show that the goods were actually at Weston, and this testimony was incompetent.</p> <p>HE. The testimony of Chase that the manifest was correct, except as to this one particular mistake, amounts to nothing, and does not furnish any ground for its being admitted as evidence, because it was necessarily predicated on the way-bill, and that was not proven to be correct, as already stated. We make the same objections to the introduction of the manifest as those made to the way-bill.</p>

Louis Circuit Court. Margaret Thomas, the plaintiff, sued the defendant, at the October term, 1858, of the St. Louis Land Court, to recover her dower in certain lands in north St. Louis, described in the petition, and being part of a larger .tract of 123/W arpents, formerly owned by Martin Thomas, her husband. Martin Thomas died September 13, 1848. The plaintiff’s petition for dower was filed September 13, 1858, against this defendant.

Louis Circuit Court. Tbe facts appear in tbe opinion of tbe court. I. Tbe assessment and levy of tbe tax made by tbe assessors of St. Louis county was erroneous and void as to tbe form and manner of tbe assessment.

Louis Circuit Court. I. The proof made — that plaintiff had received the original letters — was sufficient. (Hagedom v. Reid, 3 Camp. C. 377-9 ; Miller v. Hackley, 5 Johns. 384.) H. The court below erred in giving the first instruction asked by plaintiff, because the answer denied generally that anything was owing to plaintiff, and because the answer set up that defendant had accounted to plaintiff for everything. (Loler v. Cool, 37 Mo. 85; Mo.

<p>1. Vendor and Purchaser —Judgment Sale — Attachment—Lien—Priority.— A bona fide purchaser of real estate who has failed to record his deed until after a judgment is obtained against the vendor, but who records it before a sale under the judgment, will hold it against apurehaser under the judgment; and this is true of a judgment and sale in a suit by attachment. (Stillwell v. McDonald, 39 Mo. 282, affirmed.)</p> <p>2. Nate — Mortgage—-Innocent Indorsee — Title of, to land secured by. — A bona -fide indorsee of negotiable paper received before maturity is not affected by any latent equities between the original parties to it. But this rule is an incident of its negotiability, and is established by the law merchant; and the indorsee by such indorsement acquires no legal interest in property conveyed by deed of trust to-secure the note. The mortgagee retains the legal title; and , if the deed of trust is fraudulent and void, the indorsee of the note cannot enforce it against an attaching creditor whose rights attached before the indorsement of the note.</p>

Louis Circuit Court. I. The personal property of the wife, in possession of the husband before her death, goes to her husband absolutely at her death, as at common law.

Louis Circuit Court. This was a suit brought upon a judgment rendered in the State of New York against the defendant, which was a corporation under the laws of Kansas. The answer denied that there was any judgment, or any judgment that was binding. The judgment, when exhibited in evidence, showed that the service was made by serving a copy of the writ and petition upon Adolphus Meier, a director of the corporation.

<p>1. Quo Warranto — Writ of, when issued. — In a mere contest between private persons in reference to an office, the remedy pointed out by the statute (Gen. Stat. 1865, chap. 157), authorizing proceedings of this character in the Circuit Court, ought to be followed out in all cases, unless it should appear to this court that there were special reasons why its constitutional jurisdiction should be exercised.</p>

<p>1. Agency — Evidence —Authority to receive lands on behalf of a bank in payment of debts, how shown. — The authority of an attorney in fact of a bank to receive lands in satisfaction of drafts held by the bank, maybe shown, without proof of his appointment, by a resolution or by-law of the board of directors. It may be inferred from the acts and conduct of the parties] And where the subsequent holder of the drafts accepted a transfer of the lands given in satisfaction thereof, and sold the lands under judicial proceedings against a prior indorser, to foreclose his right to redeem them, and received the proceeds of the sale, such acts are amply sufficient to show a ratification by the holder of the authority of the agent. And he cannot repudiate such an agreement between the drawer and the agent of the bank, even when made without his full knowledge and consent, and bring suit against the drawer for the remainder of the drafts unsatisfied by the sale of the lands, unless the drawer be placed in as good a situation as when the lots were conveyed to the agent.</p>

I. Section 8 of article Y of tbe State constitution of Missouri vests in the governor the power, and imposes upon him the duty, when… Held: his said office for the term of four years from January 1, A. D. 1867. (§ 22, art. YI, Const. Mo.) His death created a vacancy in said office of clerk. 2. No provision was made by the general statutory law of the State for the filling of such vacancies. 3. Section 8 of article Y of the constitution is therefore applicable to the case.

Louis Circuit Court. ./'’^Plaintiff sued defendant for damages, in the sum- of two thousand dollars, for injury to her minor son, aged six years, received at the hands of a minor son of defendant, aged eleven years, who was residing with, and under the charge and control of, his father, the said defendant.

<p>1. 'Supreme Court — Weight of Evidence.— The Supreme Court has nothing to do with matters simply resting on the weight of evidence. Semite, that this court will not interfere to disturb a verdict unless there is a total want of evidence to support it.</p>

I. The defendant was entitled to give'in evidence to the jury the fact that he had large means, and owned property subject to execution at all times between the time of the making of the contract and the institution of this suit.

Ltppéalfrom, St. Louis Criminal Court. The homicide was committed on November 25th, 1867. The defendant was indicted on the 20th of January, A. D. 1868, by the grand jury, for murder in the first degree. On the 21st of February he was arraigned and pleaded “ not guilty; ” and, being without counáel and means to employ one, the court assigned counsel in his behalf.

<p>1. Judgment affirmed for failure to prosecute an appeal.</p>

Louis Circuit Court. I. The court erred in admitting evidence of the difference in value between gold coin and the legal-tender notes of the United States. If defendants owed plaintiff the debt in coin, he could recover only money; and the court will not lend itself to depreciate or allow to be depreciated one kind of money of the United States at the expense of another kind of money.

Louis Circuit Court. I. Plaintiff, in order to maintain an action for the claim and delivery of personal property, must have a general or special property in the thing sought to be recovered. A bare possession without right, or a tortious possession, is not sufficient. (Gen. Stat. 1865, p. 663, § 1; Wheat. Selw. 1208; Broadwater v. Larne, 10 Mo. 277; Gray v. Parker, 38 Mo. 160; Gibson v. Mozier, 9 Mo. 256; Irwin v. Wells, 1 Mo. 11; Harrison v. McIntosh, 1 Johns. 380.)

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

<p>1. Judgment affirmed by reason of failure to prosecute appeal.</p>

This was an action of ejectment, commenced by Jonn W. Scruggs against James A. and N. B. Scruggs in the Circuit Court of Cole county, for possession of certain lands. The defendants pleaded the statute of limitations, wMch was the only question in the case. The judgment of the Circuit Court was affirmed by the First District Court, to reverse which judgment the case is brought here by writ of error. The,Circuit Court erred in giving the instructions asked by plaintiff.

I. There was no want of demand pleaded, and hence the defendant could not avail himself of any such defense at the trial. (R. C. 1855, p. 448, § 84; Gen. Stat. 1865, p. 691, S 34; 30 Mo. 252; 39 Mo. 383.)

I. The contract of insurance in this case was conditional. It provides, in express terms, that “ if the interest of the assured be any other than the entire, absolute, unconditional, and sole ownership of the property, both at law and in equity, it must be so represented to the company in the written portion of this policy, and such interest correctly described, otherwise the company shall not be liable by virtue of this policy.” The policy being conditional, and the…

I. Plaintiff should not have been allowed to redeem the property conveyed under the first mortgage under this bill, however much he might be entitled to redeem under a suit properly brought for that purpose.

This is a suit of attachment instituted in the Circuit Court of Cooper county, on the 1st day of December, 1866, founded on an account for the sum of $885.48. The ground for the attachment, as set out in the affidavit of plaintiff, is the non-residence of the defendant.

The fa0tev.9f-.the case sufficiently appear in the opinion of the court. I. The payment of the two notes mentioned in the answer of defendant is a condition precedent to the making of the deed of conveyance. II. The answer does not negative the fact that the contract could be substantially complied with.

I. An action for the use and occupation of premises will not lie where the relation of landlord and tenant does not exist, founded upon an agreement, express or implied.

At the time o£ the purchase of the land in controversy by Cason, he was notified of the existence of the first and second deeds, both constructively and… Held: that equity would correct the mistake in the mortgage, and gave the mortgage priority to the judgment liens on the land so omitted by mistake.” (Hook v. Craighead, 32 Mo. 405; Leitensdorfer v. Delphy, 15 Mo. 160 ; Henderson v. Willis, 4 Scam. 111. 13 ; Goveurner v. Titus, 1 Edw. Ch. R. 477; Blessing v. Beatley, 1 Rob.

Frror to First District Court. The cause originated in the Cole County Circuit Court.

<p> Error to First District Court. </p> <p>I. The complaint before the justice, and tbe issue on tbe trial in tbe Circuit Court as presented by tbe record, was a common law action for killing stock, whereas tbe instructions given by tbe court assumed that tbe action was brought under section 5, chapter 51, R. C. 1855, p. 649. ( Vide 31 Mo. 399; 34 Mo. 177, 242.)</p> <p>Tbe plaintiff below, discovering that be could not recover on the statement of bis cause of' action filed with tbe justice of tbe peaefe, attempted to relieve tbe case from embarrassment and remain in court by filing in tbe Circuit Court an amended statement changing tbe cause of action from one at common law, for negligently running and managing tbe locomotive by which tbe stock was killed, to one under section 5, chapter 51, R. C. 1855, where tbe question of negligence as presented in tbe justice’s court did not arise at all.</p> <p>He could not do this ; for “the same cause of action, and no other, that was tried before tbe justice shall be tried before tbe appellate court on appeal.” (R. C. 1855, § 18, p. 975.)</p> <p>And while, by section 36, p. 945, R. C. 1855, tbe statement may be amended on motion, yet it is to be observed that Ibis right is limited to tbe justice’s court. When tbe case is appealed, section 18, p. 975, comes in and says: “Here in the Circuit Court the case must be tried as it comes up on the transcript; there is no power to amend in this court.”</p> <p>I. The amended statement presented an entirely different cause o£ action. It changed the liability and rights of the defendant below, the character of the proof necessary, and the law as applicable to the case appealed to the Circuit Court. (22 Mo. 402 et. seq.; 11 Mo. 109 ; 30 Mo. 488; 39 Mo. 498; 2 Mo. 12, 13.) 2. The suit instituted before the justice of the peace was on a common-law right of action, and could have been prosecuted at any time within five years after the cause of action accrued.</p> <p>The amended statement filed in the Circuit Court was on a statutory cause of action under section 5, chapter 51, R. C. 1855. By section 6 of chapter 51 it is provided that all actions instituted under said section 5 “shall be commenced within one year after the cause of such action shall accrue.” Now, the cause of action sued on .at bar accrued in May and July, 1864; while the statement of the cause, which attempts to subject’ the defendant below to liability under said section 5, was 'not filed until April, 1866 — nearly two years after the cause of action accrued.</p> <p>Did not the amended statement, then, affect the substantial rights of the defendant below? Can a party, by such a manoeuver in the appellate court, revive a cause of action already barred by the statute of limitations ? ( Vide 40 Mo. 254, 256.)</p> <p>II. The motion to dismiss was properly sustained, because it did not appear from the record in the case that the justice had jurisdiction of the cause of action or the amount sued for.</p> <p>This action is for injury to personal property. By section 3, chapter 90, R. C. 1855, justices of the peace have jurisdiction only in such cases under fifty'dollars, whereas the sum sued for in the action at bar is one hundred and seventy dollars.</p> <p>If it were the intention of plaintiff to avail himself of an act to extend the jurisdiction of justices’ courts, to be found on page 23, Sess. Acts 1860 — 1, he has failed to bring himself under the protection of its provisions. Section 2 of said act declares that “ all suits arising under this act shall be commenced before some justice of the peace of the township in which the injury complained of was committed.”</p> <p>It is, then, most manifest that, whilst under the provisions of this special act justices of the peace can exercise jurisdiction i'n actions against railroads for killing stock, regardless of the amount sued for, this jurisdiction is nevertheless restricted to injuries committed in the township where the .justice exercising jurisdiction resides-. Beyond the line bounding his municipality he has no extraordinary jurisdiction. It becomes necessary, therefore, that the transcript from the justice’s court, or the pleading in the cause, should show affirmatively that the injury complained of was committed in the township where suit was instituted. “Nothing is intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.” (Peacock v. Bell el al., 1 Saund. 74 b.; Walker v. Turner, 9 Wheat. 548-9; 4 Mass. 641-3; 26 Mo. 65, 601; Gould’s Plead, ch. 5, § 18, p. 218; Bac. Abr. PI. Eq. 526; 27 Mo. 184.)</p> <p>The Circuit Court committed manifest error in striking out the amended petition of plaintiff and in dismissing his suit, and its judgment was rightfully reversed. (Gen. Stat. 1865, p. 708, § 36 ; Walker v. Harper, 33 Mo. 592.)</p>

I. The award, not being witnessed by a subscribing witness when made, was not such as the statute authorizes the court to give judgment upon. (Gen. Stat. 1865, pp. 771-2, §§ 1, 6, 10, 11, 28 ; 1 Greenl. Ev. § 569 ; Call v. Dunning, 4 East. 54 ; Rex v. Harringworth, 4 Maulé & S. 353.) II.

It is irregular to join and try ejectment and a bill in equity at the same time. The court will take notice of the record, if the case appears so to have been tried, whether exceptions were taken or not. (Farmers’ Bank v. Bayliss, 41 Mo. 274-5 ; Peyton v. Bose, 41 Mo. 261.) Joint judgment against several parties not jointly liable is erroneous.

The facts sufficieutly appear in the opinion of the court. I. In this case it is not necessary, in order to entitle the plaintiff to a verdict, to allege or prove a conspiracy.

<p> Error to First District Court. </p>

I. The petition is insufficient; it makes no demand for relief. (Gen. Stat. 1865, p. 658, § 3.) EL It is necessary to prove notice in order to fix the indorser. There was no waiver of notice here. HI. The fact of the bill having been stolen being established by the testimony, the onus was on the plaintiffs to show what consideration they gave for it, and that they took it in good faith in the ordinary course of business.

<p>1. Banks — Branch banks, part of parent banks.— The branch banks established under the provisions of the act of the General Assembly entitled “An act to regulate banks and banking institutions, and to create the office of bank commissioner,” approved February 17,1857 (Sess. Acts 1856-7, p. 14), were not distinct and independent organizations; they only formed parts of the parent banks authorized by the amendment to the constitution in relation to banking, approved January 23,1857. (Sess. Acts 1856-7, p. 6.)</p>

<p>Cause remanded to the Circuit Court for -want of jurisdiction in the Supreme Court, the cause being still pending in the Circuit Court for final judgment.</p>

<p> Error to First District Court. </p> <p>The facts appear in the opinion of the court.</p> <p>I. The evidence discloses no capture or confiscation, no brand, and does not pretend to try to show that appellant was a public enemy.</p> <p>II. A larceny of property does not pass the title to the thief or those claiming through him, however remote. No one can transfer to another a greater inter'est in personal property than he, or the principal for whom he acts, possesses. The owner cannot be divested of title except by his own consent' or by operation of law.</p> <p>HI. The government of the United States, having no title, could pass none to the respondent. Appellant having established ownership, it devolves on respondent to show he had parted with the title by his own consent or by operation of law. This the respondent does not attempt to do. The following authorities are referred to: Hoffman v. Harón, 22 Wend. 185 ; Hill, on Torts, . 65, note; Will, on Pers. Prop, top p. 498, and note. The law of caveat emptor clearly applies to this case. The plaintiff has no remedy against the government. (Sto. on Sales, §§ 188, 201, 394 ; 1 Wend. 185; 11 id. 80 ; 2 Kent’s Com. top p. 380 to 382, and notes.)</p> <p>IY. The court erred in interlining instructions. A party has a right to stand or fall upon his own proposition. (40 Mo. 151.)</p> <p>The title to personal property captured by the United States military forces from the domestic enemy of the United States, during the late war of the rebellion, vested in the government; and under a sale thereof by the government a good title thereto passed to the purchaser thereof as against the original owner. (Wheat. Int. Law, p. 454, § 359; Wheat. Ele. Int. Law, 419; Yatt. p. 364, §161.)</p>

Petition for Mandamus. I. Ministerial acts of the State auditor will De controlled by the Supreme Court. (Moses on Maud. 85-6 ; 10 Wis. 578 ; 5 Tex. 471.) II. The election of Doane and his acceptance of the office was a contract to perform the duties and receive all the fees and emoluments of the office. His right was here vested, and the repeal of the different sections of the statutes would not have the effect of divesting that right. (Sedg. on Stat. and Const.

Petition for Mandamus. I. Tbe costs in the case of The State v. Einley, of which the attorney’s fee is part, must he paid by the State, and not by the county. (Gen. Stat. 1865, ch. 219, § 10.) H. The justices of the peace not only had the power, but it was their duty, to appoint some one to represent the State in the case. (Gen. Stat. 1865, ch. 18, § 26.) HI.

Petition for Mandamus. I. County Courts have full power and authority to audit and settle all demands against the county. (Gen. Stat. 1865, p. 556, § 9.) II. The County Court had jurisdiction over the subject matter. (Gen. Stat. 1865, p. 556, § 9; Sess. Acts 1868, p. 137, §§ 27, 29.) HI. County treasurers must pay warrants drawn by order of the County Court. (Gen. Stat. 1865, p. 227, § 7.) IY. The allowance of the claims of the relators was a judicial act.

Tbe facts sufficiently appear in tbe opinion of tbe court. I. After condition broken, tbe mortgagee may take tbe mortgaged property, and will bold it as trustee for tbe mortgagor. II. In this case Burcb was clearly tbe trustee of both Woodlee and tbe beirs of Stemmons, and could take no benefit to bimself from tbe transaction. ( 28 Mo. 106 ; ’37 Mo. 559 ; 2 Sto. Eq. Jur. 1211, 1211 a; 9 Paige, 663 ; id. 237-241; 4 Sand. Cb. 37;,1 Seld. 256; 4 How. 503; 2 Johns. Cb. 270; Will.

This was an action begun by respondent, as administrator of the estate of George W. Yan Lear, deceased, against the appellant, in the Green Circuit Court, on three negotiable notes executed by appellant and one Jason Jones to John A. Miller & Co., indorsed to Yan Lear after maturity.

Sections 23 and 24 of tbe act touching schools (R. C. 1855, p. 1427) provide for the giving of notice to the defendant before new security can be required. Section 30 of the same act should be construed with them. This is the law under which the County Court, and subsequently the Circuit Court, undertook to act, and the thirtieth section was canned out without regard to the twenty-third and twenty-fourth.

This was an action brought in the Barry Circuit Court, by Dougherty against Stamps, to recover $550 and interest due on a note due December 25, 1860.

I. Plaintiff in error, never having been notified by the County Court of her rights, and required to make her election within the time and according to the provisions of section 10 of chapter 56 of R. C. 1855, does not forfeit her rights under section 5 of the same chapter because she made no election within the year. (Washb. Real Prop. p. 201, § 12, note; Blaekw. Tax Tit. pp. 186, 187, 712, §§ 14-16 ; id. 78, 716, 723, 5 39; Sedg, Stat. & Const. Law, 438-9.) II.

<p> Appeal from Third District Court. </p>

Petition for Mandamus. I. The only issue made by the pleadings in this case is, Did tbe secretary of State, in tbe presence of tbe governor, open tbe returns and cast up the votes given for all tbe candidates for tbe office of judge of tbe eighteenth judicial circuit, and certify to tbe governor tbe name of tbe candidate receiving tbe highest number of votes for said office of judge of tbe said eighteenth judicial circuit at said general election ? ” II.

Petition for Mandamus. The facts appear in the opinion of the court. I. The judge of the Kansas City Court of Common Pleas had no right to go behind the certificate of election and inquire into the legality of the election. (41 Mo. 221.) H. The provisions of section 22, article VI, of the constitution are remedial only, and not intended to operate as a vacating clause by shortening the term of said office.

<p>1, Evidence— Contract — Parol agreement.— It is a general rule that extrinsic/ evidence cannot be admitted to contradict, add to, subtract from, or vary, aJ written contract. Parties may, by a subsequent parol agreement, upon a sufficient consideration, change the mode of payment or other terms of their } written contract, or they may discard it altogether; and it makes no difference j how soon after the execution of the written contract the parol one was made, , if, in fact, it was subsequent, and not otherwise objectionable. But (where the written agreement was neither incomplete nor uncertain in its terms) the parol contract, to be admissible, must be independent, and not explanatory or contradictory, of the written one.</p>

The facts appear in the opinion of the court. I. The city had no authority, under its charter, to summon a second jury to assess damages to the defendants. If the city felt aggrieved by the verdict of the first jury, its remedy was by appeal.

<p>1. Practice — Supreme Court — Appeals—Evidence.— In appeal cases where no question of law is presented or saved in a manner which this court can review, it will not undertake to weigh the evidence to determine whether it justified the finding in the trial court.</p>

I. This pleading is authorized and sanctioned by the law and practice of this State, no practice being prescribed by statute. (Castello v. St. Louis Circuit Court, 28 Mo. 259.) H. This contest was not instituted within the time prescribed and limited by law. (Gen. Stat. 1865, ch. 2, § 80 ; Castello v. St. Louis Circuit Court, 28 Mo. 259.) HI. The petition of contestant does not sufficiently allege that he was eligible or qualified to hold the office he is contesting.

<p>1. Sale— Gross inadequacy of consideration — Fraud. — As a general proposition, inadequacy of consideration is not of itself a distinct principle of relief' in a court of equity. Nevertheless, where the transaction discloses such unconscionableness as shocks the moral sense and outrages the conscience, courts will interfere to promote the ends of justice and defeat the machinations of fraud.</p> <p>2. Practice, Civil — Supreme Court — Reversal of Judgment, effect of, upon, sales. — "Where a judgment was reversed in the Supreme Court, and declared to be null and void, all of the proceedings had in pursuance of that judgment were vacated, and defendant was entitled to be restored to the condition in which he stood previous to the judgment, and to restitution of everything that he had lost and which remained in the hands of the adverse party, his agents, attorneys, or privies; and no suit is required to set aside a deed of land bought by an attorney of plaintiff in such judgment upon execution sale of defendant’s property.</p>

I. The evidence on the part of plaintiff and defendant shows that plaintiff had title to the fence and land upon which it stood— having had adverse, exclusive, and uninterrupted possession thereof for seventeen years, and all the time claiming the same. If this proposition is true, defendant was,a trespasser in taking the rails, and acquired no title.

I. The court erred in striking out part of defendant’s answer. The denials were certain and specific, and fairly traversed the allegations of the petition. (Gen. Stat. 1865, p. 659, § 12, also p. 661, § 3.7 ; Bersch v. Dittrich, 19 Mo. 129; Genesee Mutual v. Moynihen, 5 How. Pr. 321; Elton v. Markham, 20 Barb. 343 ; Snyder v. White, 6 How. Pr. 321.) n. Denials are sufficient if they put the plaintiff upon proof of any material allegation.

Whatever surplus may have remained in the hands of the defendant as trustee, after satisfying the debts included in the deeds of trust, was personal estate, and the property of the grantor in the deeds of trust. (1 Hill. Mort. p. 137, § 15; 2 Greenl. Or. p. 79, § 45 ; 9 Iowa, 407, 412; 1 Washb. Real Prop, p. 531, ¶ 11; 3 Pars. Cont. pp. 420, 422.) The trust created existed exclusively between the debtor and the trustee, and between the trustee and the creditors. (3 Pars.

<p>1. Practice, Civil — Judgment, 'irregularity of, when may be’set aside.— In general a court will not correct or set aside its judgments except at the term when they are rendered. But, under the authorities and the statute (Gen. Stat. 1855, ch. 172, ¡j 26), ajudgmentmaybe set aside for irregularity at any subsequent term within throe years from its rendition.</p> <p>2. Practice, Civil • — Judgment for plaintiff, when set aside. — A party who is injured by a judgment is entitled to relief by the usual modes, whether the form of the judgment be for him or against him. The usual proceeding against irregularities is by motion. When such motion will lie ho should-not be driven to a higher court, but the tribunal where the wrong was done should furnish the relief, oven whore the j udgment was in his favor. Where it was apparent that judgment in favor of plaintiff was rendered at his instance, with knowledge on his part of its irregularity, ho should, perhaps, in punishment of his fraud, be left to make what ho could out of his invalid judgment; but his knowledge of such irregularity should be made to appear clearly.</p> <p>S. Execution • — Sale, irregularities of sheriff in, may be set aside. — Even if the proceedings in obtaining judgment wore regular, or, being irregular, it *were held that the plaintiff could not disturb them, yet if the execution sale were irregular, and the irregularity were alone on the part of the sheriff, the sale should be set aside.</p> <p>i. Practice, Civil — Voluntary judgment, by which plaintiff is defrauded of his rights, set aside, how. — A party in whose favor a voluntary judgment has been entered, but so loosely and irregularly as to defraud ■ him of his rights, may have the judgment set aside; and the proper proceeding for that purpose is by motion, and not by a bill in equity.</p> <p>5. Practice, Civil — Execution, irregularities in — Purchasers at, notice to — Non-appearance of parties. — If a party who is propbrlyin court and has knowledge of the process desires to set aside an execution sale for error or causes not appearing- of record, ho must act at the return term of the execution. After, by his silence, he has suffered the sheriff to deed the property, and the rights of third parties have intervened, his acquiescence is presumed. But if the proceedings in obtaining the judgment or in effecting the sale be-irregular, the purchaser buys with notice thereof. Nor does the rule apply ■where there is no actual appearance of the party, and where the proceedings are without his knowledge.</p>

This was an action to set aside an execution sale of plaintiff’s land. At the sale the property was purchased by defendants. It appears that the clerk of the Buchanan Court of Common Pleas, on the 28th day of May, 1864, issued from Ms office an execution reciting that Russell II.

The facts sufficiently appear in the opinion of the court- I. The constitution provides that every person charged with crime shall be heard by himself and counsel, etc. (art. I, § 18, Gen. Stat. 1865, p. 23); and the statute provides that if a defendant, on being arraigned for a felony, shall satisfy the court that he is without, and unable to employ, counsel, the court shall assign him counsel, not exceeding two, etc. (Gen. Stat. 1865, p. 844, § 4.) The constitution and…

I. The justice had jurisdiction of the subject matter of the suit of Ullman v. Byers. Jurisdiction is expressly given by an act of the Legislature passed at the session of 1863. (Sess. Acts 1863, p. 173.) It has been repeatedly decided by this court that the General Statutes did not repeal these special and local acts, but that they still remain in full force.

When the evidence does not support the verdict, as in this case, the Supreme Court will reverse the judgment and grant a new trial. (Robbins v. Alton Ins.

<p>1. District Court — Power of Legislature to repeal statute concerning.— The Legislature has power to repeal chapter 135 (Gen. Stat. 1865), concerning District Courts. But, under section 12, art. YI, of the State constitution, no case can reach the Supreme Court, either by appeal or writ of error, except on final judgment taken from one of these courts; and the repeal of the law providing for their organization, while this constitutional provision remains in force, would effectually stop all cases from being brought to the Supreme Court.</p>

Louis Circuit Court., The facts of the case, as agreed upon by the parties, appear in the opinion of the court. The question arising in the present case is whether the nineteenth section of the city ordinance establishing and regulating the engineer department is comformable to the city charter.

<p>1. Damages, action fm — Agency.—No principle in tbe law is better established than that for the negligence or fault of the agent or servant, while engaged in the principal’s service, the principal is liable.</p>

<p>1. Ruggles et al. v. Collier et al., ante, p. 353, affirmed.</p> <p>This case was determined at the term of court held in October, 1868, but was retained until the final determination of the ease of Ruggles et al. v. Collier et al., on which it depended, on the re-hearing of that case. {Ante, p. 353.) — [Rep.</p>

Louis Circuit Court. On the trial the following among other instructions were given to the jury for defendant: 1. The jury are instructed that they are to consider whether or not there was any negligence on the part of deceased, or a want of care and common prudence ordinarily exercised on such occasions and in like circumstances.

Louis Circuit Court. The facts appear in the opinion of the court. The provisions of the act of February 15, 1864, do not violate the provisions of art. I, § 10, of the constitution of the United States, nor those of art. XHI,. § 17, R. C. 1855, p. 85, of the constitution of this State. The act is but a statute of limitations, requiring all parties to present their claims within two years or to stand barred.

<p>1. Partnership — Consent — Representation.—A man cannot be made a partner against Ms will, by accident, or tbe conduct of others. He must agree to be a partner, or, as to outsiders, hold himself out as a partner to those who have trusted him as such.</p>

Louis Circuit Court. This suit was brought on a special tax bill for building a sewer in block No. 1686 of the city of St. Louis. Held: that the provision is merely directory. ( Striker v. Kelly, 7 Hill, 24.) In the charted of New York city (2 R. L. 1813, p. 407, § 175) it is provided that it shall be lawful for the mayor, aldermen, and commonalty to 'cause common sewers to be made ; to order and direct the pitching and paving of the streets ; and to cause estimates…

Jippeal from St. Louis Circuit Court. The court below erred in giving the last instruction, at its own instance, after the jury had retired and were unable to agree upon a verdict, as it had a direct tendency to mislead them and draw their attention off from the doctrine of contributory negligence raised by the proof in the cause.

Louis Circuit Court. I. The first section of the charter, considered alone and without reference to the remaining provisions of the charter, does not admit of the construction given to it by the court below, and gives to the company the right to insure not only their (the company’s) property, but also other buildings, personal property,” etc. The court below interpreted the section as if it read their farm buildings,” etc., and their other property,” etc. It is submitted…

Louis Circuit Court. This case was substantially before this court before, and is reported in 37 Mo. 663. The facts are there set forth.

Louis Circuit Court. At the trial the court gave the following instructions, on motion of plaintiff: “ The term ‘ act of God,’ in law, means a cause which operates without any aid or interference from man ; for if the cause which produced or occasioned the injury became destructive by human agency or co-operation, then the loss is to be ascribed to man, and not to God.” “And if the jury believe from the evidenee that the Avine in question was damaged after it was received by…

Louis Circuit Court. The court admitted improper evidence. The suit was founded upon an agreement that defendant should pay the taxes which should legally he assessed against the property; it was necessary, therefore, for plaintiff to prove that certain taxes were legally assessed. For this purpose, the two tax bills were offered in evidence and objected to by defendant, and admitted against his objections.

Uppeal from St. Louis Court of Criminal Correction. I. The court below ought to have quashed the complaint on the defendant’s motion, because the prosecutrix, being the wife of the defendant, was not competent to make it. IL The conduct of the prosecutrix, as.proved by the defendant’s witnesses on the trial, justified or excused the act of desertion as complained of, under the act of 1867, p. 112, of the laws of Missouri. III.

Jlfipeal from St. Louis Circuit Court. I. The court should have allowed the defendant to file its amended answer. Plaintiff is the assignee of Cook, the insured, after the fire,, and the assignment subjects him to all the liabilities of Cook. The face of the policy fully notified Archer Avhat Cook’s liabilities were. Cook was a member of the company by the terms of the policy, and by the assignment could not give Archer any better position than he had .himself.

<p> Jippeal from St. Louis Circuit Court. </p> <p>Respondent was tenant under appellant of a lot and building situated on the west side of Fifth street, between Olive and Locust streets, in the city of St. Louis.</p> <p>The written lease, under which the respondent held, was made by King and Bigelow (who were then the owners of^he property), and bears date January 2, 1861, and was for the term of one year from February 1, 1861. The respondent held over by consent of the lessors ; and in April, 1864, the lessors, by deed, conveyed the premises to the appellant, and assigned their lease to him ; and the respondent afterward continued in possession, and paid rent under said lease to the appellant until he terminated the lease, on the 1st day of February, 1866.</p> <p>After the making of the lease, the respondent, in 1861 and 1862, for the more beneficial enjoyment of the premises, made certain erections and additions to the house.</p> <p>Appellant, understanding that respondent had threatened that he would tear down and remove the erections and improvements he had made, and was about to remove the same, filed his petition in this case, alleging that his tenant was about to commit serious and irreparable waste, etc., and obtained an injunction restraining him from committing the same.</p> <p>The petition was filed and injunction granted December 19, 1864. On March 20, 1866, the case was tried in the Circuit Court. The court found the issues for the defendant, and the injunction was dissolved. The court assessed the respondent’s damages at $1,500, and gave judgment against the appellant for that sum. On appeal from this judgment for damages to the Supreme Court, the judgment was reversed and the cause remanded. (40 Mo. 118.) The second trial of this case was held at the February term, 1868; at which trial, among other things, the respondent offered in proof of his damages a deed made by the appellant to Amaziah Jones, dated March 26,1866, by which deed the appellant sold and conveyed the lot to said Jones for the consideration of $69,000. The trial resulted in judgment for damages as before, and the case again comes here on appeal.</p> <p>I. The deed of appellant to Jones should have been excluded. Upon what principle was it admitted ? Was it to show a conversion of the fixtures or additions in question by the appellant? Was it to prove the value of this property? Was it to show that the value of these additions formed a part of the consideration expressS'd in the deed? No theory of the law can be suggested that will justify the admission of the deed in evidence. By his deed the appellant purports to sell the lot of land therein described and whatever is appm'tenant thereto. The deed passed nothing more to the grantee. If the deed was offered to show that the appellant sold and received the value of the additions in question, it must be. upon the theory that the additions were appurtenant to the land. If this is conceded, it follows as a logical result that the additions did not belong to the respondent. The deed having been admitted, it is impossible now to say what weight the court below gave to it. The entire assessment of damages may rest upon it. The introduction of this deed cannot now be regarded as immaterial or unimportant. In any view that can be taken, there seems no escape Nom the error.</p> <p>H. The damages assessed are excessive. No damage beyond the cost of the litigation should have been assessed against the appellant. The value of the materials of the additions in question should have been disregarded. If the respondent had .the right to remove the materials, the.evidence shows that he had ample time to do so after the injunction was dissolved and before their destruction by fire. The appeal taken by the appellant to the Supreme Court after the first trial of this case did not have the effect to reinstate the injunction nor to continue it in force. No answer was made in respect to the injunction except to dissolve it. The appeal did not rescind or suspend the order dissolving the injunction. This suit is a bill in equity to prevent waste and irreparable injury to the freehold of the plaintiff. It must be conceded that if the injunction had been dissolved at any time before the hearing and final decree, an appeal from the final decree would not have the effect to reinstate the injunction or continue it in force. (13 Johns. 139; 7 Johns. Ch. 295; 3 Paige Oh. 381.) An injunction after an order of dissolution is never revived by implication. An injunction is never revived or continued in force except by a special order of the court. Mr. Eden, in commenting on the decision of Lord Hardwieke in the ease of Bagster v. Walker, says: “The doctrine thus clearly and satisfactorily established has been followed in all the modern cases, and no injunction which has once been dissolved can be revived without special motion.” (Eden Injunc., 1st Am. ed., pp. 91, 228; id. ch. 6, p. 82.) The order dissolving the injunction was no part of the decree upon the merits of the case. An injunction is but an incident, and may by order be retained or continued in force — may be dissolved and be revived at the pleasure of the chancellor. (Ai. 228.)</p> <p>HI. The appeal to the Supreme Court was from the final judgment in the case. Under our system appeals do not lie except from final judgments, or decrees on the merits, or decrees dismissing bills. Decrees in chancery are not in solido, like judgments at law. A final decree may embrace several subjects, and the party aggrieved may appeal from a part or the whole of a decree; e. g., as where a decree directs the execution of a deed, and also to make compensation in money, a party may submit to the former and appeal from the latter, and vice versa. In this case, at the former trial, the court first found the issues for defendant; then ordered the injunction to be dissolved; and then proceeded to assess damages, and rendered judgment for damages against the appellant. What did the appellant appeal from ? Not from the order dissolving the injunction; not from the finding of the issues. From either it was impossible to take an appeal. The order dismissing the plaintiff’s petition might have been appealed from, but was not. It follows that the appellant appealed from the judgment rendered upon the assessment of damages by the court, and nothing more. There was nothing else to appeal from. It may be said that the statute concerning appeals (R. O. 1855, p. 1287) continued the injunction in force. The statute, it is apparent, does not have this effect; but on the contrary it furnishes a strong if not conclusive argument in support of our position. Respondent’s counsel assume that the order dissolving the injunction, and the judgment for damages, are inseparable and make but one judgment, because the final hearing and the assessment of damages were on the same day, and that the order dissolving the injunction and the judgment for damages proceed in consecutive order in the entry made by the clerk of the action of the court. But this is mere assumption ; it is unsound. Suppose the injunction had been dissolved, and respondent’s damages assessed as provided by section 13, ch. 128, p. 1249, and judgment rendered in the assessment. ? An appeal from such judgment would lie, of course, and the appellant need not wait the final hearing of the case. (R. C. 1855, ch. 128, § 12, p. 1287.) We insist, therefore, that the 'respondent was at liberty to remove his materials from the leasehold premises at any time after the injunction was dissolved. His failure to do so must entail the loss on himself. The case of Kennedy’s Heirs v. Hammond, 16 Mo. 341, is relied on by respondent’s counsel. That case is not in point, because it shows that the property was destroyed while the injunction was in force and before it was dissolved by the court.</p> <p>I. The appeal taken from the judgment of the Circuit Court in March, 1866, temporarily annulled the action of that court; of course reinstated the injunction, and the injunction remained so reinstated till the hearing in the Supreme Court, in April, 1867, for the purpose of appeal. The reversing order of the Supreme Court permanently annulled the judgment dissolving the injunction, and left it in full force when the cause was remanded to the Circuit Court. The question of dissolving the injunction, as such, need not cut any figure in the case. It is only to be considered as part of the final judgment appealed from. The final judgment was one dissolving the injunction and dismissing the bill. The judgment was a unit. It was appealed from as a unit. The appeal, being perfected, vacated the judgment which had been entered. (Paine v. Cowdin, 17 Pick. 142.) After the appeal was entered below, the judgment there ceased to exist. (Nichols v. Colville, 1 Tenn. 82.) The effect of the appeal was to render inoperative the judgment in the inferior court. (Bassett v. Daniels, 10 Ohio St. 618.) An appeal from a final decree opens up for investigation the whole merits of the cause which were involved in or connected with the subject matter of the decree. (Teaff v. Hewitt, 1 Ohio St. 511; Campbell v. Howard, 5 Mass. 375; Sever v. Sever, 8 Mass. 132; Danforth v. Carter & May, 4 Iowa, 241; Stone v. Spillman, 16 Texas, 432 ; Stalbird v. Beattie, 36 N. H. 456; Eurber v. Yergin et al., 2 Sneed, 3 ; Clinton v. Phillips’s Adm’r. 7 Mon. 119.) Now, on these rulings, we contend the judgment entered in this court — the final judgment, the judgment deciding the cause against Bircher and dissolving his injunction — was annulled, vacated, and done away with for the time by the appeal. Of course the injunction stood, the judgment of this court was afterward reversed, and the cause came into the Circuit Court for trial again. Whether the injunction was saved by Bircher’s appeal depends on the effect of the appeal as vacating the final judgment. Now, the only question remaining is whether the dissolution o£ the injunction was part of the final judgment appealed from. It was. Therefore the appeal annulled pro tempore the dissolution. Cases of dissolution on rules, as by filing full answer, or on motion during the pendency of the cause, are numerous. They have no application, not being part of the final judgment. And we believe no case can be found where an appeal has been taken from a final judgment, as in this case, that it has not been held to have the operation we ask for it. We think it is idle to say the whole judgment was not appealed from, or has not been reversed, or that the dissolution was not part of the final judgment. The damages are a mere incident to the judgment upon the decision of the issues presented in the cause. Where the dissolution of the injunction affects the merits of the matter, it may be appealed from as well as any other final judgment. (Trustees v. City of Davenport, 7 Clark, Iowa, 213.) The doctrine that an injunction is saved by an appeal is not peculiar to an injunction any more than an attachment, replevin, or appointment of receiver, or any other remedial process or order which falls by the final judgment appealed from. The doctrine we contend for must be the law. It would be impossible to administer justice without it. The cases of 5 Litt. .326; 4 Bibb, 221; 5 Band. 332, proceed on the idea that the dissolution is the final judgment of the court; and if the party may appeal from it, of course he must have the benefit of the appeal, and there is no benefit except by saving the injunction. If he had appealed from the assessment of damages, and not the whole judgment, the case would have been different. Where an appeal is allowed from an order merely dissolving an injunction, the effect of maintaining the appeal is to reverse the order. (White v. Cazenave, 14 La. An. 57.)</p> <p>XL It was the proper treatment of the case to hear it as if the bill and injunction were still pending, and try the whole cause de novo.</p> <p>IH. The court did so hear and adjudge the cause, and did dismiss the bill and dissolve the injunction and assess the damages.</p> <p>IV. It was proper in the court to ascertain the value of the materials in the defendant’s improvements. Had it not been for the injunction, they would have been removed at the end of the lease. According to the law of the case as laid down in Bircher v. Parker, 40 Mo. 118, a reasonable time was allowed to remove the materials. But that could not be done, because the injunction was immediately reinstated. The respondent’s property was destroyed, therefore, by means of the injunction, which prevented its removal prior to the time of the fire. (Kennedy v. Hammond, 16 Mo. 341.)</p> <p>Y. But the appellant sold the property to Jones pending the injunction. He received by that act full value for this very property. That is the effect of his deed. In fact, he will scarcely pretend, in face of the history of this litigation, that he excepted the improvements in the sale. In construing the deed of Bircher to Jones, to ascertain what was its effect as between them, it will appear that Bircher sold the improvements, which belonged to Parker, to Jones ; that he sold them to Jones, and has been paid for them. The question is not whether he had a right to sell them and put their value in his pocket, but simply whether he did do it. ( Bratton v. Clawson, 2 Strob. 478.) When land is sold, manure lying on the land passes by the conveyance. Where the question arises on a deed of vendor as to what passes, there is no relaxation of the ancient rigid rules. (Kittridge v. Woods, 3 N. IT. 503, 306; Earrar v. Stackpole, 6 Grreenl. 154.) There may be articles which a tenant might remove as against a landlord, but as between vendor and vendee the deed will pass them. (Hays v. Doane, 3 Stock. Ch. 96.) Where the owner mortgages real property, the deed will pass all things attached to the soil, though a tenant might have the right to remove them. (Winslow v. Merchants’ Insurance Co., 4 Met. 310.) As between vendor and vendee, whatever is affixed or annexed to the freehold is part of it, and passes. (Buckley v. Buckley, 11 Barb. 63.) There is no doubt that on this bare de.ed of Bircher to Jones (there being no reservation or exception in it), Bircher has sold and conveyed, and has been paid for, all the improvements on the property at the date of his deed.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>At the October term, 1868, plaintiff below filed a motion against defendant and several others, jointly, alleging that on March 16, 1868, they recovered a judgment against the “ St. Louis Museum, Opera, and Fine-Art Gallery,” averring that it is a corporation incorporated and organized under the laws of this State in regard to corporations; that the judgment is unsatisfied, and an execution had been issued against the property of the corporation, and no property could be found whereon to levy; that appellant and the other defendants below are and were stockholders in said corporation at the time of the incurring of the indebtedness on which said judgment was rendered. Wherefore they asked for an execution to issue on said judgment against said stockholders. At the trial the motion was dismissed as to all of the defendants except the appellant.</p> <p>The following facts appeared in evidence. The respondents, McClaren and Robison, were original subscribers for twenty shares of stock in the company, and Yeates and Henderson were original subscribers for twenty-eight shares. Respondents,McClaren and Robison, made a contract with the company to make a plan and drawings for a building for it, and-perhaps some other services, for which they charged $3,500, and agreed to take stock in the company therefor to the amount of $2,000, the balance to be. paid in money. They subscribed for the $2,000 of stock on the company’s stock books, and had the certificates therefor issued to them. Their work was completed by or before October 1,1866 ; and the indebtedness of the company to them had then accrued. In October, 1866, respondents sold their twenty shares of stock to Yeates and Henderson, and were paid for it, and transferred the stock to Yeates and Henderson by assigning and delivering the certificates to them. Yeates and Henderson, in November, 1866, sold these twenty shares of stock, together with the twenty-eight shares which they held by their original subscription, to appellant, received pay, and transferred the stock to appellant by assignment and delivery of the certificates to him. Appellant then gave up to thb secretary of the company the certificates so assigned to him, and got him to issue a new certificate in lieu thereof to him, in December, 1866. There never was any transfer of any,of this stock on the stock book or any book of the company. Appellant, instead of holding the certificates with the assignments on them, took a certificate to himself in- place of them. On the 14th day of January, 1867, appellant sold the forty-eight shares of stock thus purchased to George De Baun (the witness), and transferred it to him by assigning and delivering the certificates therefor to him, and they proved that from and after said 14th day of January, 1867, De Baun had been and still was the owner and holder 'of the stock. The stock was all finally-paid-up stock, and was purchased and sold by the different parties as such.</p> <p>On the trial De Baun testified: ‘ ‘ The building burned down after the stock was transferred to me, and a judgment of $1,000 could not have been enforced at the time by execution against me, nor since. I gave Franciscus my note at ninety days for this stock, and intend to pay it when I can. Since I became insolvent Franciscus loaned me money and traded with me. Franciscus knew I was insolvent when he sold this stock to me.”</p> <p>Upon this evidence the cause was left with the court, when judgment was given for plaintiffs. Defendant asked for a new trial, which was refused, and he appealed to the general term of the St. Louis Circuit Court, where the judgment was affirmed. The case now comes here on appeal. The other material facts appear in the opinion of the court.</p> <p>I. The first point prominently presenting itself by the record is that the liability sought to be enforced does not exist against the stockholders of the “ St. Louis Museum, Opera, and Fine-Art Gallery.” It nowhere appears that such company (if a corporation at all) was created after the taking effect of our present constitution, or whether it has or has not been in existence for twenty years. There is no averment on that subject; there is no proof on the point; indeed, there is no evidence proving it to be a corporation at all. The present constitution (art. VIH, § 6, p. 40) for the first time imposed, or required legislation to impose, the liability in question. The law of 1865 (Gen. Stat. 1865, p. 328, § 11) provides for the enforcement of this provision of the constitution. It applies only to corporations created under the present constitution; it does not and cannot create and impose this new and additional liability on the stockholders in corporations existing prior to the constitution and law imposing it. (Wheeler v. The Frontier Bank, 23 Me. 308-10; Middletown Bank v. Reef, 3 Conn. 135, 139.)</p> <p>H. Franciscus was not the holder or owner of stock therein at such a time to be liable for the debt sought to be enforced. The persons who are stockholders at the time the debt is contracted are the ones liable for such debt. The provision of the constitution is that dues from private corporations shall be secured by such means as may be prescribed by law, but in all cases each stockholder shall be individually liable, over and above the stock by him or her owned and any amount unpaid thereon, in a further sum at least equal to the amount of such stock.” The provision of the -statute is that if execution shall have been issued against the property of a corporation, and there cannot be found property whereon to levy such execution, then execution may be issued against any one of the stockholders to an extent equal in amount to the amount of stock by him owned, together with any amount unpaid thereon; providing, however, that there shall first be a suit, judgment, and execution against the corporation, and a return not satisfied. All of the provisions of this constitutional liability, and of the sections of the statute for its enforcement, seem to be sufficiently clear of themselves; but a question is raised here as to who are the stockholders who are made liable' for a debt contracted by the corporation. Is it he who is a stockholder or owner or holder of stock when the debt of the corporation is contracted or made, and who gets the benefit of it, and under whose management it was made, and on the credit of whom and on the faith of whose liability as a stockholder the creditor gives credit to his company ? Or is it he who had once been a stockholder, before the debt was created or contracted, but who had ceased to be, and had no further connection with the company before the debt ? Or is it he who was not a stockholder or in any way connected with the company at the time of the transaction, or at any time before, but who purchased stock long after the debt had been contracted and had become due, and could not possibly have had any agency in the matter ? Plaintiffs and their counsel, when they commenced this proceeding and until their own evidence forced them from it, seem to have thought it was the stockholder at the time the indebtedness was created who was liable for it. Eor in their application, which is the basis of this cause, they aver that Eranciscus was a stockholder at the time of the incurring of the indebtedness to plaintiffs, and still is such; and it was after their evidence clearly proved that he was not and never was a stockholder until after the debt was contracted and became due that they claimed that the subsequent purchaser of their stock was liable to them for a debt created by them and their associates. It was on this theory that the judgment herein was recovered. The language of the constitution and statute does not admit o£ the construction forced upon them in this case, and it is doing violence to them to so construe them. Indeed, it is at least very questionable whether it would be competent for the Legislature to enact that one man should pay the debt of another in this way, which he has never contracted to pay, merely because he has subsequently purchased the stock of him who contracted it or was liable for it. ,(23 Maine, 308.) This liability is not a penalty; it is a quasi partnership liability, limited as to extent and mode of enforcement. All the authorities hereinafter referred to, and indeed all of the decisions, so hold. Suppose ten persons are partners ; they contract debts ; one afterward sells his interest in the assets and effects of the firm to defendant, and is paid in full for it: the original partner, at the time the debt was created, is liable for such debts, and, even if he has expressly contracted for his vendee to pay them and hold him harmless therefrom, he is still liable to the creditor, and his vendee is only liable on the contract of indemnity to him. In the absence of an express contract, there is no sort of liability on the vendee, even to him ; and the creditors of the company cannot, without their consent, be turned over to the vendee, who may be insolvent, and the contract and liability of their debtor impaired or released. The same principle applies to the indebtedness and liability here: A man assigns a non-negotiable note. What is the legal effect of his assignment ? The holder must sue, get judgment, execution, and return of nulla ■ bona. This proves the insolvency and fixes the state of facts on which the assignor must respond on his liability incurred by the assignment; not that his liability was created on the insolvency of the maker being established by the return of the execution nulla bona, but it is thereby established that the liability incurred by the contract of assignment was matured and must be met. So with the question before us. The plaintiffs subscribed for and owned stock in the- company. While such owners, they and their associates contracted this debt to themselves, and their common property got the benefit of it. They sue the company for the debt, get judgment and execution — returned nulla bona. It is not the simple return of the execution which creates the indebtedness or liability of the stockholders, but by the return it is established in the mode pointed out by the statute that the liability contracted by the stockholders in creating the debt is mature and must be met. This plain and only safe and sensible view is amply sustained by the best authorities under similar statutes. (Moss v. Oakley, 2 Hill, 265-70.) Judge Bronson then goes to the bottom of the true principle involved in such statutes. There the charter made all of the stockholders liable for debts of the corporation ; but, before they should be proceeded against, suit must be brought and judgment obtained against the corporation, and execution thereon,against it must be returned unsatisfied (this is the same as our constitution and statute, except that by our law the liability is to a limited extent); the holders of stock are made liable for the debts, but pro ceedings must be had against the corporation first, and execution returned nulla bona. The question was, what holders of stock are they that are liable for the debts not made on execution^such as were stockholders at the time of the judgment and execution, or those who were such when the debt was created ? The learned Judge says that, without doing any great violence to the language of the statute, it might be literally construed either way, but that little stress was to he laid on the wording of the statute. Its object was to require stockholders to manage the business of corporations so as not to contract debts beyond the company’s means to pay, and with this view to keep before them the fact of their liability for their management and to pay for their mismanagement.</p> <p>Thus, a purchaser of stock often has not the means of knowing the condition of the company until after he becomes a member, while the owner of the stock when the debt is created may know that debts are contracted by him, his agents and associates ; and his assignee of his stock must look to debts created after his purchase. This secures creditors, for whose benefit the statute was made. They gave credit to the corporation on the faith of the holders of the stock at the time of their solvency. After the credit is thus given, the liability cannot be shifted, to perhaps less responsible persons, by a sale of the stock after the credit is given, to the prejudice of creditors. The holders of stock at the time of the credit given, and they alone, are liable. This is the true meaning and sense of this provision. ( See also Adderly v. Storm & Bailey, 6 Hill, 624, to the same effect; Young v. New York and Liverpool Mail Steamship Co., 15 Abb. 69.) In Tracy v. Yates, 18 Barb. 152, 157, the statute provides that stockholders should be individually liable for all debts of the company to an amount equal to the amount of stock held by them, etc. (This is broader than our statute and constitution — the stockholders shall be liable for all debts of the company; no limit as to when or by whom contracted — all debts.) The court held that it must be construed, and it was manifestly right that it should be construed, to hold stockholders liable for debts contracted while they were holders of stock, but not for debts contracted before they were stockholders; and further, that the section of the statute providing that “no suit should be brought against a stockholder who should cease to be one, for any debt, unless commenced within two years from the time he ceased to be a stockholder,” clearly settled that the liability was intended to be and was only for such debts as were contracted while the party proceeded against was a stockholder, etc.</p> <p>Now, in connection with this, our statute (Gen. Stat. 1865, p. 870, § 13) provides substantially and almost in words the same thing, which the court says clearly settles the question. This is the only true construction of our statute. It was borrowed from the legislation and statutes of New York, where a uniform current of decisions gives this construction.</p> <p>The ruling of the court below is against all reason and the weight of authority, as we have shown. But not only this ; if sustained, it is against public policy, and fatal to the best interests of the State. For example: A railroad company, a corporation to work and develop the mining interests, or for any other business enterprise, is formed; capitalists at home or abroad propose to invest their capital here in such pursuits ; they have confidence in the undertaking; are willing to invest their money in stock among us, and risk the amount so invested in stock, and an additional amount equal to the amount of such stock, for or on account of the debts, business, and transactions of the company, after they so engage in it (as in other States under similar laws they would be liable) ; but they are met by the startling assurance that our court holds them beyond this — liable not only for liabilities contracted while they are members of the company, but also for whatever may have been done heretofore by others, of which they can not know, and which perhaps no examination by them can truly discover ; for the books and papers may not truly show it. They will not assume blindly such liabilities ; they are driven from us to other fields of enterprise. Our State suffers and languishes under such a suicidal course. The statute neither requires nor authorizes it.</p> <p>In determining this case it is necessary to ascertain who are the stockholders of a corporation within the meaning of the law, and at what time they must be the owners of the stock in order to render them liable to a creditor of the company in event of its failing to pay on execution. In this case the debt had accrued about the time the stockholder purchased the stock, and some days before the title was vested in him by a legal transfer on the stock books of the company; and before the execution was issued he had sold his shares of stock to De Baun, but they were never transferred on the books of the company; and here is the rub. They still stood in the name of Eranciscus at the only place one would go to learn who were the stockholders in the corporation. He permitted himself to be held out to the corporation and to the world as the owner of forty-eight shares of the capital stock of the corporation; and, even if George De Baun was solvent, and the attempted sale of the stock to him had been in good- faith, and not made for the purpose of avoiding the statutory liability of an owner, we cannot see on what principle of legal reasoning he can escape liability in this proceeding.</p> <p>After the return of the exécution, the plaintiff resorted to the books of the company to see who was liable to him for his money, and found forty-eight shares of the capital stock were held by Eranciscus; and.upon this evidence of title he filed his motion against Mm. Now, why should he not have execution against him? By section 11, ch. 62, Gen. Stat. 1865, p. 828, it is provided as follows: “If any execution shall have been issued against the property or effects of a corporation, and if there can not be found whereon to levy such execution, then such execution may be issued against any of the stockholders to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; provided,” etc. Section 12: “The clerk or other officer having charge of the books of any corporation, on demand of any officer holding an execution against the same, shall furnish the officer with the name, place of residence (so far as to him known), and the amount of liability, of every person liable as aforesaid.”</p> <p>From the simple reading of the statute, it is plain that the time the liability attaches to the stockholder is when an officer holds an execution against the company and is unable to find property to make the same; and section 12 directly indicates where the officer shall go to learn who are such stockholders as are liable to pay the debt. He is to call upon the officer of the company having charge,of the books of the company, whose duty it is made to give the officer a list of the stock-owners and the amount they are liable for. Now, could this be done if the record of the company is to be controlled by outside attempts at alienation of stock, or could the officer ever inform the plaintiff in the execution against whom he could file his motion?</p> <p>Where stock was transferred on the books as collateral security, and the debt was paid, and a power of attorney given to re-transfer the stock to the pledgor," and, after this had been done, and before any transfer had been made, the debt was contracted for which the company had been sued, “the court held that although the party had but the mere formal legal title, yet he was liable as stockholder; and the court says he could attend the meetings, vote on the stock, receive and receipt the dividends, and why not bear the burthens of a stockholder ? Until the transfer was made on the books of the company, he continued to be a stockholder within the meaning of the statute. If we depart from the terms of the law and inquire into the equities which may exist between the stockholder and some third person, it cannot fail to embarrass creditors in seeking a remedy for wrongs done by the corporation. If the creditor must look beyond the legal title, he can never know against whom to issue.” (Adderly v. Storm, 6 Hill, 624.) The persons in whose names the stock stands upon the books of the company should be held liable, according to every principle of justice, as they alone are entitled to manage the affairs of the company, and are held out to the world as the persons against whom those who credit the corporation can resort in event of the corporation becoming insolvent.</p> <p>In Worrell v. Judson, 6 Barb. 210, the defendant had sold his stock and transferred his certificate to the vendee, but the stock had not been transferred on the books of the corporation, but still stood in the name of the defendant, and it was held he was liable as a stockholder for a debt contracted by the company. In Rosefelt v. Brown, 11 N. Y. 148, the Court of Appeals of New York held that where stock had been transferred on the books of the company as collateral security for the payment of a note, the pledgee was liable as stockholder for the debts of the company, and that the court below properly rejected proof showing that the transfer was merely by way of pledge, on the ground that the absolute title, as shown by the books of the corporation, could not be explained, modified, contradicted, or controlled by any agreement between the parties, and that the creditors of the corporation could not be required to look beyond the stock record of the' company to ascertain -who were the owners thereof, and that any other rule would work a great injustice to the creditors of a corporation, and tend to render the statute inoperative, as the creditor could never tell whom he could proceed against to collect his debt in event of the insolvency of the corporation. (Stanley v. Stanley, 13 Shep. 191.)</p> <p>And even if the transfer of the stock as made, without being. entered on the transfer books of the company, was a legal transfer and caused Geo. He Baun to be a legal stockholder in the company, still for another reason the transfer could ‘not be made by Franciscus to He Baun, on account of the insolvency of He Baun. “ However strictly the personal responsibility imposed. upon the members of an incorporated company may be construed-against creditors, there is one point which is very clear; and that is, that no member can exonerate himself from his liability and defeat the claims of creditors by transferring his interest to a bankrupt. (Ang. & Ames on Corp. § 623, ed. 1866; Morey v. Clark, IT Mass. 330.)</p>

Louis Circuit Court On the 10th day of June, 1867, the appellants recovered a judgment against the “ St. Louis Museum and Fine-Art Gallery,” a private corporation organized under the general corporation law of Missouri, for work and labor done for said corporation, commencing in August, 1866, and ending on the last day of October, in the same year. Execution was issued on the judgment on the 22d day of February, 1868, and returned nulla bona.

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

<p>1. Landlord and Tenant — Leases and under-leases — Surrender of leasehold by implication — Forfeitures—Terms in law and equity. — A- leased certain premises to the trustee of B. for sixteen years. B. underlet them to O. for three years. Afterward an arrangement was effected between A., B., and 0., by which, in order to cancel a debt from B. to 0.', A. was to give O. the lease of the premises for two and a half years, on the same terms as those of B.’s lease; at the expiration of which time B. was to have possession under the original lease. O. held over after his term, and succeeded in procuring from the representatives of A. a lease for the remainder of B.’s sixteen-years’ leasehold : Held, that the consent of B. to the two-and-a-half-years’ lease to O. was not a surrender of her original leasehold, but that the new leasehold, being made for her use, was a clear recognition of her rights under the old one. A surrender by implication must be in conformity with the intention of the parties. A surrender will not be implied when it is obvious that the second lease was intended to be beneficial, and that the lessee was not to lose any of the rights that he possessed. A. had no right, without the consent of B., to give the lease to O. for the remainder of the sixteen years. In holding over his term he elected, so far as he had power to elect, to continue in possession under the conditions of his lease. By paying ground rent ho saved the original lease from forfeiture, and rendered any subsequent attempt to forfeit it a fraudulent sham. The claim of B. was good for her full term, and O. had no rights under his lease as against her.</p> <p>2. Landlord and Tenant — Tenant holding over — Rent, what .payable.— Ordinarily, the measure of the obligations by way of rent of a tenant holding over is the terms of his lease. But if a higher rent is demanded, or if it is clear that there is no implied consent to his remaining on those terms, the rule will not apply. He certainly, as the wrong-doer, cannot consent to its application, but the landlord may. "Where, at the expiration of his term, proceedings were instituted at once to oust the tenant, he should be held to pay all the premises were worth, less ground rent and taxes, after the expiration of his term.</p>

Louis. Circuit Court. The material facts appear in the opinion of the court. I. The act of the General Assembly of the State of Missouri, approved February 20, 1865, entitled “An act to levy additional State taxes for the years 1865 and 1866” (Sess. Acts 1865, p. 112), was a constitutional and valid act. (Locke v. New Orleans, 4 Wall. 172.) II. The assessment of the tax against the plaintiff was lawfully and regularly made under said act. IU.

Louis Circuit Court. I. In an action to recover a loss upon a policy of insurance against fire, it must be affirmatively alleged in the petition that the insured had an insurable interest in the property at the time of insuring, and also at the time of the fire; otherwise no cause of action is shown, and the petition is demurrable. (Williams v. Ins. Co. of North America, 9 How. Pr. 365 ; The Saddlers’ Co. v. Babcock, 2 Atk. 554; Freeman v. The Fulton Fire Ins.

Jlppeal from St. Louis Circuit Court. This was an action brought by the administrator of Peter E. Blow, deceased, to recover back certain money paid by mistake of intestate. Judgment was rendered in favor of plaintiff, in the court below, for $248.50. For a general statement of the case, see opinion of the court. Plaintiff’s first instruction was improper.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. The statute commenced to run at the date of the last item of the account. Plaintiff should have commenced his suit within five years from that date; otherwise he is barred. When the statute commences to run, it does not stop. (Peck v. Randall, 1 Johns. 164; Trout v. Smith, 20 Johns. 33 ; Fowler v. Hart, 10 Johns. 463; Fitzhugh v. Anderson, 2 IT. & M., Va., 289; Wilcox v. Plummer, 4 Pet. 172 ; Landes v. Perkins, 12 Mo. 238 ;' Smith v. Newby, 13 Mo. 159; Ingraham v. Bowie, 4 Miss. 17; 2 Pars.' on Cont.', ed. of 1855, p. 370.)</p> <p>H. The statute begins to run when plaintiff could have brought his action, whether he knew it or not. (2 Pars, on Cont., ed. of 1855, p. 372.)</p> <p>HI. The question of residence is almost entirely one of intention. (1 Kent’s Com., 9fch ed., p. 86 ; Sto. Confl. Laws, ch. 3.) Temporary absence does not constitute residence elsewhere. (Collester v. Hailey, 6 Gray, 517 ; Ingraham v. Bowie, 4 Miss. 17; Jennison v. Hapgood, 10 Pick. 77 ; Drew v. Drew, 37 Me. 389; Bucknam v. Thompson, 38 Me. 171; Am. Law Register, July, 1868, p. 545; Garth v. Robards, 20 Mo. 523 ; Green et al. v. TWkwith, 38 Mo. 384.)</p> <p>I. The first instruction asked by defendant was objectionable and properly refused. It is immaterial Avhether service could or could not have been made within five years after the date of the last item in the account. (Cook’s Ex’r v. Holmes et al., 29 Mo. 63 ; Burroughs v. Bloomer, 5 Denio, 532 ; Eord v. Babcock, 2 Sandf. 578 ; Didier v. Davison, 2 Barb. Ch. 477 ; Brown v. Hollins, 44 N. H. 446.)</p> <p>H. The second instruction asked by defendant was objectionable and properly refused. An intention to remain in one place •for some indefinite time is sufficient to make that place the party’s domicile. (44 N. II. 383.) This instruction might have been objectionable if the section in question had read “the time during which he has a domicile abroad,” instead of “the time of his absence.” It cannot be held that the words “ depart from and reside out of” and the word “ absence” imply a greater degree of actual or intentional permanency of habitation than the word “ domicile.”</p>

Louis Circuit Court. Tbis was an action of ejectment, commenced March 4, 1866, in the St. Louis Circuit Court, by the plaintiff in error, to recover the possession of a lot of land in the city of St. Louis.

Louis Circuit Court. On the trial the court instructed for plaintiff as follows : “If the jury believe that the plaintiff, Elizabeth, was the wife of John E. Meyer at the time of the latter’s death, and further believe that said Meyer died Norn an injury resulting from or occasioned by the negligence or unskillfulness of any agent or servant of defendant while running, conducting, or navigating one of its cars, and that said Meyer, at the time of such injury, exercised…

Uppeal from 'St. Louis Circuit Court. I. A statement of a fact or facts made by a vendor to a vendee, calculated to have, or capable of exerting, an influence on his determination to buy or refuse, which fact or facts turn outu to be false, or not facts, constitutes a sufficient ground with a court of equity for setting aside the sale or contract, especially if the statement is knowingly false and intended to mislead.

Louis Circuit Court. A new trial will not be granted on account of newly-discovered evidence, i£ the evidence is only material to impeach or contradict witnesses sworn at the former trial, nor where the evidence is merely cumulative. (Briggs v. Lynch, 22 Mo. 558 ; Harrington v. Bigelow, 2 Denio, 109 ; Bunn v. Hoyt, 3 Johns. 256 ; Halsey v. Watson, 1 Caine, 25 ; Cummins v. Walden, 4 Blackf. 307.)

Louis Circuit Court. This suit was an action at law brought by plaintiff on certain articles of agreement concerning the manufacture of “Magic Filters,” signed by plaintiff and defendants, and which provided, among other agreements, the following: “The parties of the first part” (Randall & Shiclde) “agree with the party of the second part ” (Whitehill) “ to give, and do hereby give him, one-third of the net profits arising from the sale of said filters, and from the sale of…

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. The court will review the evidence in a divorce suit, and reverse where the decree is not justified by the evidence. (Lewis v. Lewis, 5 Mo. 278 ; Nagel v. Nagel, 12 Mo. 55 ; Oliver v. Oliver, 20 Mo. 261.) Where, in a divorce suit, it appears in evidence that neither party has been injured, both the bill and cross-bill should be dismissed. (12 Mo. 53, 157.)

Louis Circuit Court. I. The tax bill offered in evidence was no evidence against the land or defendant Garesche, he holding the legal title of the land, and his name not appearing on the said bill. The law (Sess. Acts 1865-6, p. 298) makes the bill evidence against the person therein named.

Louis Circuit Court. The facts appear in the opinion of the court. The plaintiff’s evidence did not establish a legal title by possession, or by any reasonable claim of possession, and the defendant’s motion for a non-suit ought to have been sustained. (Ad. on Eject., Tillinghast’s ed., 285; 38 Mo. 302, 435; 6 Mo. 106; 30 Mo. 99; 19 Mo. 660.)

Louis Circuit Court. I. The facts found by the court do not warrant the judgment in the case. 1. It was a principle of the common law that a fraud could only be avoided by him who had a prior interest in the estate affected by the fraud, and not by him who subsequently to the fraud acquired an interest in the estate. (Upton v. Bassett, Oro., Eliz. 445, 8 Co. 83, a; French v. Shottwell, 5 Johns. Ch. 566.) 2.

JLppeal from St. Louis Circuit Court. “ The deed of the corporation of St. Louis, under the corporate seal, implies the authority of the officer executing it.” (1 Ky. 268 ; 15 Wend. 25 ; 6 S. & R, 12 ; 13 Halst. 183 ; 4 Yerg. 7; Swartz v. Page, 13 Mo. 63.) The plaintiff failed in his chain of title by omitting to read in evidence or offering in evidence the deed of Miss Lami to Michael S. Cerre, whereby it would be made to appear that he, Michael S. Cerre, was the legal…

Jlppealfrom St. Louis Circuit Court. The facts appear in the opinion of the court. The court admitted illegal and improper testimony of the respondent. He is asked this question: “ Then was Mr. Black’s statement true or not?” (Black had before testified on tbe part of tbe appellant.) This question was objected to, but tbe objection was overruled, and tbe witness was allowed to state that Black’s statement was not true.

Jlppealfrom, St. Louis Circuit Court. I. The knowledge which Colvin acquired in this case was by means of his employment as an attorney; and whether this was by a verbal statement of the case, or by an inspection o£ the papers presented, is immaterial. (1 Greenl. Ev. §§ 240, 241; Brown v. Payson, 6 N. H. 446-448 ; Wheatley v. Williams, 1 Mees. & W. 540 ; Coveney v. Tannahill et al., 1 Hill, 33 ; J ohnson v. Sullivan, 23 Mo. 480 ; Hill v. Lyon, 27 Mo. 576 ; 1 Greenl.

Louis Circuit Court. I. Where the over-insurance exists at the time of the fire, a recovery upon a policy containing conditions similar to those in the case at bar will not be permitted. But no case can be found to tbe effect that a recovery cannot be had because of a temporary over-insurance, where the over-insurance had ceased to exist at the time of the fire. (N. B. Eire & Marine Ins. Co. v. Schettler, 38 111. 166; Mitchell v. Lycoming Mut. Ins. Co., 51 Penn.

Louis Circuit Court. Upon trial of the cause in the court below, it appeared in evidence, on the part of the plaintiffs, that the garnishees made and delivered to the defendant, Bucking, a certain due-bill, of which the following is a copy: “ St. Louis, Mo., November 16,1860. “Due Henry Bucking one thousand dollars, in brandy, at five dollars per gallon.

<p>1. Voluntary Assignment — Attachment—Attachment creditor claiming pro rata distribution. — -In case of a voluntary assignment under the statute, it is not necessary that an express assent should be given on the part of the creditor to enable him to take under the assignment. This consent will be presumed. But the presumption is not absolute or conclusive, and he may, if he will, reject or repudiate an assignment. But he cannot claim a benefit under it, and at the same time attack it for fraud and attempt to destroy its validity. Ho must make his election, and either take under it or disclaim it. A creditor cannot attach property in the hands of an assignee, and afterward claim a distributive share under the assignment.</p>

Louis Circuit Court. The steamboat Magnolia was insured in the month of December, 1866, and was destroyed by fire during the night of the 13th or 14th of June, 1866 ; and this is one of a number of suits brought by her owners against various insurance companies on policies of insurance on the steamer. The facts pertinent to the issues of law decided may be gathered from the opinion of the court.

<p>1. Marshall and Kilpatrick v. Thames Ins. Co., ante, p. 586, cited and affirmed.</p>

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

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

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