Volume 44 — Missouri Reports

Louis Circuit Court. The facts material to the case are set forth in the opinion of the court. I. The draft operated as an equitable assignment of the fund, because it was drawn against a particular fund, viz: assessments on capital stock. It directed payment of the fund to he made to plaintiff, and the payment was not dependent on any contingency, There was no reservation, on the part of the drawee, of any power or authority over the fund. It was drawn for all of the fund.

<p>1. City of St. Louis, to use of Murphy, v. Clemens, 43 Mo. 395, affirmed.</p>

Louis Circuit Court. The facts appear in the opinion of the court. The first instruction given by the court, marked No. 1, amounted to a comment upon the evidence, and that of the most dangerous character. It virtually told the jury that they were not bound to decide according to the evidence in the cause, but might decide from all the circumstances of the case.

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

Louis Circuit Court. Equity will not give certainty and definiteness to a contract wbicb, as in the case at bar, the parties have left utterly uncertain and indefinite. It is only where the terms of a covenant to renew are express and unequivocal that specific performance will be enforced. (Taylor on Land, and Ten. §§ 832, 333 ; Fry on Spec. Perf. § 203; Robinson v. Kittelas, 4 Edw. Oh.; Whitlock v. Dufiield, 1 Hoff. Ch. 110 ; Hammer v. Eldowney, 46 Penn.

Louis Circuit Court, The facts sufficiently appear in tbe opinion of the court. I. The Circuit Court erred in admitting in evidence the statements of Theodore Cook, made to Charles M. Elleard, A. B. M. Thompson, and Richard J. Howard, concerning the amounts of money for which, he was in arrear to his employers.

Louis District Court. The facts sufficiently appear in the opinion of the court. I. All others besides the lessee, upon the strip of land leased, were either under the lease, and so liable to all its conditions, or not under the lease, and so liable to be put off as trespassers against the peaceable possession of the lessee by him; and upon forfeiture by the lessee the lessor acquires the right of possession under the statute.

Louis Circuit Court. The eleventh article of the articles of partnership referred to in the opinion of the court is as follows : “ Eleventh. — That in case of the death of any of the said partners, violation of any of the articles of this agreement, or other dissolution of this partnership, a general account of stock shall be taken in writing, as before provided, and the balance due such deceased or outgoing partner or partners ascertained, and such balance paid such…

Louis Circuit Court. The facts as agreed between the parties are set out in the opinion of the court. Appellant was hired by respondent for a definite voyage, on monthly wages. At the time the vessel in which he had shipped became unseaworthy, the appellant had served one, month. It is for this month’s wages that this action is brought.

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. I. Plaintiff can not sue on one cause of action, and, when a counter claim or set-off is pleaded, set up another cause of action in his reply as a set-off or counter claim to the matter pleaded by defendant as such.

Louis Circuit Court. The facts sufficiently appear in the opinion of the court. Held: and could not be seized by attachment or execution against Henry Held to pay the debt of Henry Held. These lots belonged to Anna Held before her marriage with Henry Held.

Louis Circuit Court. The facts are fully set out in the opinion of the court. I. As the right' and title of the appellant to the flour in controversy is derived from Lamb & Quinlin, the main question is, was there a sufficient sale and delivery by the respondent to them, in construction of law ? The delivery of this order by the defendant (the seller) to Lamb & Quinlin (the purchasers) was a delivery of the property.

Louis Circuit Court. On the trial the court gave the following, with other instructions : “ 1.

<p>1. Practice, Civil — Prials—Instructions must bepredicateduponihe whole case. —Where, in the course of a trial, a fact was developed by the testimony of one witness, it was error for the court to instruct the jury that if they believed that fact to be true they should find for a designated party accordingly. Instructions should he predicated upon the whole case and take in all the evidence.</p>

Louis Circuit Court. The facts of the case sufficiently appear in the opinion of the court. The court below erred: (I.) In granting the instruction given for plaintiff: 1. It calls for the location of the channel when the pond ivas exhausted, and then only. 2. It fixes on the year 1851 as the only time when the boundary channel could be ascertained, and makes the survey at that time conclusive as to its location. 3.

<p>1. Execution — Exemption — Construction of statute. — Under the provisions of sections 9 and 11, of chapter 160, of the General Statutes, the head of a family is entitled to hold exempt from execution one hundred dollars’ worth of household goods and furniture for the convenience and comfort of the family, and three hundred dollars’ worth of other property to contribute to their maintenance and support.</p> <p>2. Execution — Exemption — Officer malting levy, duty of. — It is the duty of the officer having the writ or process in his hands, to notify the debtor of his rights of exemption from levy.</p> <p>3. Practice, Civil — Pleading — Answet--Avoidance. — Where a suit was brought against a constable for an unlawful levy under an execution, an answer which attempted to avoid liability bj' stating that the constable took from the plaintiffs in the execution, bonds to indemnify him against all claim or harm, was properly stricken out on motion. The bond was not authorized by law, and furnished no protection to the officer against his trespass.</p>

Louis Circuit Court. In 1885 Morgan Lick, owned and occupied forty acres of land, tke west kalf of tke east kalf of tke nortkeast quarter of section seven, townskip forty-five nortk, range six east — tke same kere sued for. Frederick Clouse owned tke east kalf of said eigkty acres at said time.

Respondent, in his return, after setting forth the twelfth and sixteenth rules of court, proceeded as follows : “ And the respondent further shows that the appeal of the said Frank was not prayed for by him, as required by said rule numbered twelve, within five days after the rendition of the judgment overruling his motion for a rehearing on the 25th day of February, 1869; nor was his bill of exceptions presented within five days after said day to the attorney for the…

Aji abandonment of the property after condemnation completed does not affect the right of compensation. (Wilkerson v. Buchanan County, 12 Mo. 828 ; St. Francois County v. Marks, 14 Mo. 589; St. Francois County v. Peers, 14 Mo. 537 ; Harrington v. Commissioners Berkshire County, 22 Pick. 263; Ilallock y. County of Franklin, 2 Mete. 558; Town of Hampton y. Coffin, 4 N. H. 517; 33 Mo. 440.) II.

<p>I. The Circuit Court erred in causing the petition to be so amended as to change the issues, after the evidence had been closed, and in rendering a judgment upon the allegations of the petition, without an opportunity for defense.</p> <p>H. To entitle the plaintiff to recover at all the contract must be rescinded. If there was a rescission or an abandonment of the contract, John Kerr must be a party to this proceeding — either plaintiff or defendant. (Teed v. Elworthy, 14 East. 210 ; Goode v. Harrison, 5. Earn. & Aid. 150 ; Thomason v. There, 10 East. 418 ; Murray v. Murray, 15 Johns. 70 ; Peters v. Davies, 7 Mass. 257 ; Wamsley v. Lindenberger, 2 Rand., Ya., 478.)</p> <p>HI. If the court rescinds the contract in this proceeding because of infancy, the parties should be put in statu quo, which in this case can not be done. (3 Kent’s Com. 33 ; 9 Johns. 470 ; 8 Greenl. 170 ; 17 Mass. 197 ; 3 N. H. 64 ; 7 Conn. 307 ; 15 Serg. & Rawle, 137; 19 Johns. 226; 18 Mart., La., 48; 2 Peters, S. C., 195; 5 Peters, S. C., 529.)</p> <p>IY. It is doubtful whether the contract of an infant, made with consent of his guardian, should be set aside on the ground of infancy at all; and authorities show that money paid by an infant in execution of a contract should not be recovered back in the absence of fraud. (Stone v. Dennison, 13 Pick. 1; Breed v. Judd, 1 Gray, 450 ; Holmes v. Blogg, 8 Taunt. 508 ; 5 N. H. 345; 4 Blackf. 337; Goode v. Harrison, 5 Barn. & Aid. 150.)</p> <p>Y. If an infant puts his funds into a joint scheme with others, any one of whom ma'y bind the firm, he can not recover back money paid out by his partners. If the infant can avoid any contract, it is that by which he entered the copartnership. He can not avoid a contract made by his partners with third persons, and much less should he be able to avoid them without making his copartners parties.</p> <p>I. The variance in the amended petition was not material. (Gen. Stat. 1865, p. 669, § 3.)</p> <p>II. Many cases are reported in which infants have been joint contractors with adults, and in none of them was the right of disaffirmance ever questioned on that ground. ( Smith v. Evans, 5 Humph. 27 ; Hillyer v. Bennett, 3 Edw. Ch. 222.)</p> <p>HI. This was a joint purchase of real estate, and nothing else. The terms of the purchase had no reference to the carrying on of a partnership together, with a communion of profits and losses. That might have been their intention; but, if so, it w'as wdiolly independent of the transaction with the defendant. (Grace v. Hale, 2 Humph. 27 ; Hill v. Anderson, 5 Smedes & Mar. 216 ; Smith v. Evans, 5 Humph. 70; Hillyer v. Bennett, 3 Edw. Ch. 222 ; Tyler on Infancy, etc., 75.)</p> <p>TV. The minor was entitled to receive back all that he had paid. (Tyler on Infancy, etc., 75; 1 Am. Lead. Cas. 115-6.)</p> <p>V. If, from anything in the nature of the case, it appear that the elder Kerr should have been made a party to the suit, that point has been waived by the defendant in his failure to demur for defect of parties. (Gen. Stat. 1865, p. 658, §§ 6, 10.)</p> <p>VI. The whole case is settled by the defendants acceptance of the surrender tendered by the plaintiff, and his subsequent acts confirming the mutual abandonment of the contract with plaintiff. The abandonment is executed on the part of the plaintiff, and the defendant, while enjoying its advantages in the possession and renting of the farm, yet refuses to perform his share. He can not now be permitted to recede from such an abandonment on any terms.</p>

Louis Circuit Court. The facts are stated in the opinion of the court. I. On the appeal bond read in evidence by the plaintiff, together with the allegations of the petition, the plaintiff could not recover the rents and profits accruing before the justice. H. The only breach of the conditions of the bond is that the defendant failed to prosecute the appeal with effect.

<p>1. Office — Ads of 1865 and 1868, validity of — Circuit AMorncy — Vacating ordinance, tenure of — The law providing for the election of circuit attorneys in 1866, and every four years thereafter (Gen. Stat. 1865, ch. 18, § 6), was void only so far as concerned officers holding under the vacating ordinance. (Gen. Stat. 1865, p. 47; vide 38 Mo. 419; 41 Mo. 58.) And whore a circuit attorney was appointed and claimed his tenure of office, not under the vacating ordinance, but under the act of 1866, he could not hold as against a circuit attorney elected to the office at the general election of 1868. In point of legal conformity and principle, the acts providing respectively for elections in 1866 and 1868 are equally valid as to officers not holding under the vacating ordinance.</p> <p>2. Legislative office in the United States — Incumbent has no vested right in.— In the United States, offices created by the Legislature are not held by grant or contract; nor has any person a private property or vested interest in them, and they are therefore liable to such modifications and changes as the lawmaking power may deem it advisable to enact.</p>

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

<p> Error to St. Louis Circuit Court. </p> <p>I. Tbe intention of the law evidently is to make the cost of this class of work a direct charge upon the property itself. The engineer is directed to issue his tax bills against the ground, not against the owner of the ground; and when the assessment is made against the ground, the law then says that the owner shall pay it. (Holland v. Anderson, 40 Mo. 600.)</p> <p>H. The provision in the charter that the engineer shall make out his tax bills against each lot, in the name of the owner thereof, is directory in its nature. It is a provision intended to be for the benefit of the contractor, 'not of the property owner. It is a guide to the contractor to the person who owns the ground and who should pay him. In the general revenue law, lands are required to be listed in the name of the owner, in order to apprise the owner, at the different stages of the collector’s proceeding to collect the tax, that the lands have been assessed, and are advertised as delinquent and about to be sold for non-payment of taxes. The collector does not summon the delinquent tax-payers by personal service, or afford them a day in court to make a defense, but proceeds to divest the ownership by constructive notice. But under the city charter the proceedings are by ordinary process of law, and any defendant, whether named in the tax bill or not, may show to the court that he is not an owner nor interested in the land, and therefore not a necessary party defendant. (Blackw. on Tax Tit. 173 ; Wheeler v. Anthony, 10 Wend. 346 ; Noble v. City of Indianapolis, 16 Ind. 506 ; 20 Pick. 418.)</p> <p>I. To create a charge against the property, and to give the plaintiff a cause of action, the statute must have been followed with strictness. (Oooms v. Warren, 34 Me. 89; Carmichael v. Aikin’s Heirs, 13 La. 205; Yenda v. Wheeler, 9 Texas, 408.)</p> <p>H. Ludovic De Noue is not the owner in the sense of the statute.</p> <p>HI. While a personal judgment might be rendered against Madame De Noue as owner (if the tax bill conforms to the statute), and a special judgment be rendered against the realty, yet a general judgment against all the defendants is manifestly wrong. (Ruggles ctal. v. Collier, 43 Mo. 353.)</p>

I. The Legislature intended to confer no more right or power upon the Probate Court to grant a new trial than upon a justice of the peace. (Gen. Slat. 1865, §§ 2, 8, p. 514; 1 Mo. 589 ; 8 Mo. 45 ; Gen. Stat. 1865, § 17, p. 713.) No rule of the probate judge is regarded. No error is charged. The circuit judge, on appeal to the Circuit Court, simply proceeds to try the case anew, and makes and completes a record for the District and Supreme Courts.

For statement of the facts in this case, see Dover v. Kennerly et al., 38 Mo. 469. An agreement made among several persons to divide property purchased or bid off by one o£ them at a public or judicial sale is not objectionable, unless the agreement is equivalent to a combination among those who would otherwise be themselves bidders to obtain the property at a reduced price.

Petition for habeas corpus. Under the provision of the statute, sections 28, 29, chapter 213, the prisoner would not be entitled to his discharge until the expiration of the March term, 1869, and such term has not yet expired.

<p>1. Quo warranto, writ of — Informatioii in nature of a civil proceeding — Burden of proof in proceeding under. —An information in the nature of a writ of quo wan-anto is essentially a civil proceeding; and where such an information was brought to try the right of respondent to the office of secretary of a certain insurance company: held, that the burden of proof was upon the relator, and that every reasonable intendment was to be made in favor of the regularity of the proceedings by which respondent was put in office. They were the acts of a private corporation, and are to bo presumed regular until the contrary appears.</p> <p>2. Corporations— Officers, election of — Presumptions.— Officers of a corporation, in possession of their respective offices, are presumed to be regularly elected and entitled to hold mitil the contrary be shown.</p> <p>3. The “ German Insurance Company,” of St. Louis — Power of removal by directors. — Under the twenty-second by-law of that institution, a majority of the defacto board of directors of the “ German Insurance Company, ” of St. Louis, had a right to remove the secretary for sufficient cause, without formal notice of charges or trial; and until their action is impeached it is to bo presumed that they acted on sufficient grounds.</p>

Information in the nature of a quo warranto. As appears from the petition of the attorney-general, under the act of February 9, 1864, establishing a recorder’s office for the county of Buchanan, respondent was, in November, 1864, elected recorder of the county, and was again elected in November, 1866; and afterward, in the general election, held in November, 1868, one Alexander Bell was elected to the same office.

Louis Circuit Court. For statement of the case, see opinion of the court. See also Graham v. Carondelet, 33 Mo. 262, and Holmes y. Carondelet, 38 Mo. 551. I. There was a surrender of the lease in law.

Louis Circuit Court. The facts are fully set out in the opinion of the court. I. A silent acquiescence in use or imitation of a trade-mark, even for a short period, has been deemed sufficient ground for withholding equitable relief. (Elavel v. Harrison, 10 Hare, 467; G-illott v. Esterbrook, 47 Barb. 455.) II.

<p>1. Instructions — Refusal of evidence. — Instructions not based upon evidence are properly refused.</p> <p>2. .Ejectment— Tenant not a party to, not affected by. — No tenant who was in possession anterior to the commencement of an ejectment suit can be dispossessed upon a judgment to which he was no party. (Garrison v. Savignac, 25 Mo. 53.)</p> <p>3. Forcible entry and detainer — Question of title not admissible. — In an action of forcible entry and detainer, no question of title is admissible. All that devolves upon plaintiff in that proceeding is to show that he was lawfully possessed of the promises, and that defendant unlawfully entered into and detained the same.</p>

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

<p>I. Bills and notes — Statute of limitations — Indorsements of credit, effect upon. — Tho timo when tho indorsement of a credit on a note was made is a fact to be settled by the jury, and to this end the writing must be laid before them. If there is no evidence to the contrary, tho presumption is that the indorsement was made at the time it purports to bear date, and the burden of proving the dato to bo false lies with the other party. But if tho date does not purport to bo made cotemporaneously with the receipt of the money, it is inadmissible as a part of the res gestae.</p> <p>2. Bills and notes — Statute of limitations — Credits indorsed upon, when evidence of part payment.— In an auction by an administrator upon a note made to his intestate more than ten years before, the indorsement of a credit thereon by the intestate, nearly two years before the note expired by limitation, would he prima facie evidence that he had received part payment on the note. Such indorsement was clearly admissible, because against the interest of the deceased.</p>

<p> Petition for mandamus. </p> <p>I. The bonds sued on are negotiable. (2 Pars, on Bills and Notes, 34 and notes ; Craig v. City of Yicksburg, 31 Miss. 216, 221, 247 ; 1 Wall. 95 ; 2 Wall. 110-122.)</p> <p>II. Having issued such securities, it is too late now, even as against the railroad company, much more a “ bona fide holder thereof,” for the county to set up any defense based upon conditions precedent to subscription, or conditions in subscription; and the county, by issue of its bonds, is estopped from denying that power was properly executed. (33 Mo. 440-450; 36 Mo. 294; 3 Wall. 654; 4 Wall 271, 274^5 ; 1 Wall. 83, 175, 291, 384 ; 1 Black, 386 ; 2 Black, 722-731; 21 How. 545; 43 Penn. St. 401-2 ; 43 Penn. 391.)</p> <p>HI. The act of said county in voting upon said subscription for over twelve years — from 1854 to 1867 — is a complete waiver of all conditions. (36 Mo. 294 ; Const, of Mo. ; Gen. Stat. 1865, p. 36, § 3.)</p> <p>IV. The bonds were due and in hands of bona fide holder before any change in “present survey” as understood by the court — they were due in 1860. If there was an equity against the bonds, it arose after the paper was transferred, and after its maturity.</p> <p>I. The bonds are not negotiable under the law in force at their issue. (R. C. 1855, p. 295, § 15 ; id. 320, § 2 ; id. 322, § 3.)</p> <p>H. There being no election held, neither the County Court nor their agent had any power or authority in law to make the subscription. (Sess. Acts 1853, p. 135, § 29 ; R. C. 1855, p 427, § 30 ; Leavenworth and Des Moines R.R. Co. v. Platte County, 42 Mo. 171.)</p>

<p>1. Bills and notes —Lands — Notes given for purchase money ; deed of trust to secicre— Verbal agreement to buy in land under given condition — Suit on notes, etc. — -"Whore the vendee of land paid a portion of the purchase money, and for the remainder gave his notes, secured by deed of trust on the property, testimony simply showing that the vendor expressed his willingness to exchange the notes for the land in case he could get a good title without a sale under the deed of trust, and that the property was sold six months after by the trustee, and bought in by the vendor, without showing any connection between the events, would not prevent the vendor from recovering judgment upon the notes, notwithstanding the apparent hardship to defendant of such a proceeding.</p>

An unrecorded mortgage will not prevail over a subsequent judgment, although the mortgagee give notice of his mortgage before sale under the judgment. (Washington’s Lessee v. Trousdale and the Banks, Mart. & Yerg. 385; Smith v. Jordan, 25 Ga. 687; Shepherd v. Burkhalter, 13 Ga. 443; Guerrant v. Anderson, 4 Rand. 208 ; Priest v. Rice, 4 Pick. 164; Davidson v. Cowan, 1 Dev.

<p>1. Clark county —Removal of county seat— Construction of Sess. Acts 1865, p. SIS, and R. C. 1.855, p. 514, ch. 45.— It would seem to have been the obvious purpose of the Legislature, in the sixth section of the act to re-locate the county seat of Clark county (Sess. Acts 1865, p. 312), to adopt the machinery provided by the act of 1855 (R. C. 1855, p. 514, ch. 45), whore that machinery was not superseded by the express provisions of the former act. The two acts taken together must be understood and construed as providing that the County Court of Clark county should act on the petition of a majority of the legal voters of that county, and appoint five commissioners to select a site for the public buildings “ within two miles of said town of Cahoka,’' and to do whatever else the act of 1855 required of them, not at variance with the act of 1865; and that w’hen the commissioners had made the selection, and discharged the duties devolved upon them in this behalf, the County Court should order the removal of the county seat to the selected locality.</p>

<p>1. Supreme Court, jurisdiction of — Not original touching litigation of private rights. — It was never intended-that this court should exercise original jurisdiction in matters of general litigation, or in contests respecting mere private rights.</p> <p>2. Supreme Court, jurisdiction of, generally appellate — Habeas corpus, etc., prerogative writs, variant from ordinary process. — This court was designed to bo strictly appellate in its character, duties, and functions, with certain marked and definite exceptions, such as cases of habeas corpus, mandamus, quo warranto, prohibition, etc. These are high prerogative writs, emanating from this court by direct application and by the authority of the sovereign power of the State. They are only issued when applied for in a proper case, and are wholly variant from that process of summons or notice by which one party brings an adverse party into court to determine a private right or to settle a matter of ordinary litigation.</p> <p>3. Circuit judge, contest for office of — Statute concerning, unconstitutional.— Section 80, chapter 2, Gen. Stat. 1865, authoi'izing the contestor of the office of circuit judge to bring the issue originally before the Supreme Court by petition, without appeal or writ of error, invests it with a jurisdiction not authorized, but prohibited, by the constitution.</p> <p>4 Circuit judge, contest for office of — •Does not wan-ant remedial writ.— The contest for the office of circuit judge concerns a civil right, to be decided on the facts and issues, and does not call forth the extraordinary remedial writs of this court.</p> <p>§. Circuit judge, contest for office of — May be settled in lower courts. — The law, as it now exists, affords an ample and complete remedy where the issues between parties contesting the office of circuit judge can be tried, and if the result is not satisfactory, an appeal will lie to this court; and tho Legislature may also prescribe new and additional means for determining such contests. But this court can not assume jurisdiction, nor hear and determine cases, except on appeal or on writ issuing from this court.</p>

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

I. The sheriff intended to except the dower interest of Mrs. Caldwell, and nothing more. H. Oral testimony as to declarations, actions, or omissions of the sheriff was incompetent to affect the case. (Jackson v. Croy, 12 Johns. 429 ; Jackson v. Yanderheyden, 17 Johns. 168.) The only remedy in such case is to make the court, by a direct and timely application, to set aside the sale and deed of the sheriff. It can not be done collaterally.

I. On an ex-officio information in the nature of a quo warranlo, the court will look beyond the relator’s certificate of election and commission, and, unless he has been legally elected, will give judgment of ouster. (The People ex rel. Benton v. Yail, 20 Wend. 12 ; The People ex rel. Yan Yourt v. Yan Slyck, 4 Cow. 297; The People ex rel. Yeates v. Ferguson, 8 Cow. 102; Attorney-General ex rel.

<p>1. State ex rel. Attorney-General v. Steers, ante, p. 223, affirmed.</p>

Petition for mandamus. This was a petition by relator setting forth his election to the office of county treasurer of Texas county, and praying for a writ of mandamus requiring the County Court of Texas county to accept and approve his bond as county treasurer, and to annul an order passed by the court which declared the office of county treasurer vacant, and appointed one Ira Martin to fill' the same. Eor statement of the case, see, also, opinion of the court.

<p>1. State ex rel. Attorney-General v. Steers, defendant, ante, p. 223, affirmed.</p>

On the 24th day of February, 1845, the Legislature granted a “legislative divorce” to plaintiff in error, dissolving the marriage between himself and the defendant in error. Defendant in error afterward instituted proceedings in the Circuit Court of Pike county, Missouri, to obtain alimony; and bn the 10th of April, 1851, the Circuit Court rendered a decree granting her, as alimony, $275 per annum.

<p>1. Crimes and punishments — Offense consisting of different grades — Instructions limiting verdict to one grade. — It is the established doctrine in this State that upon the trial of a person indicted for an offense consisting of different grades, the court may, by suitable instructions, if the evidence warrants it, direct the jury that the case, as made out by the evidence, belongs to one of the specified grades, and that, if the evidence is believed, they must find their verdict accordingly.</p>

<p> Petition for mandamus. </p>

<p>1. Sale — -Delivery — Reasonable time, how determined. — "What would be a “reasonable lime,” under the statute (Gen. Stat. 1865, p. 440, $ 10), for delivery of goods after sale must be determined by the circumstances of each case. And instructions may properly call the attention of the jury to the evidence, and, upon a proper hypothesis, may direct what the verdict shall be.</p> <p>2. Practice, Civil — Trial — Instructions should not reiterate each other.— If an instruction is simply a reiteration of other instructions given, and embraces no new proposition applicable to the case, it need not be given. Courts should simplify their directions to the jury, and ought not to embarrass them by elaborations of the same point in different ways.</p> <p>8. Practice — Evidence, objections to — Reasons for must be assigned at the time.— Objections to admission of testimony will not be noticed on appeal unless the reason therefor be given.</p> <p>4. Attachment bond, suit on — Delivery of goods — Declaration of vendor proper. — In a suit on the "bond of an attaching plaintiff, by the claimant of certain household furniture, which had been levied on, declarations of the vendor at the time of the sale, concerning his intention of leaving the house, are competent as bearing on the question of fraud and that of delivery.</p> <p>5. Attachment bond, action on — Pleadings—Verdict — Judgment — Exceptions to, when must be taken. — In an action on an attachment bond, under sections 2 and 4 of act of March 3,1855 (Sess. Acts 1855, p. 464), plaintiff’s petition was drawn on the supposition that the party to whose use the bond " was given, and not the State of Missouri, was plaintiff, and verdict and judgment were rendered for him accordingly. No exceptions wore taken to the pleadings, verdict, or judgment, either in the lower courts or by assignment of errors. Reid, that the defects were wholly formal, and noticed too late in this court. In such case, the judgment below is as complete a bar as though entirely formal.</p>

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

<p>1. State Savings Association — Act for payment of, vouchers unnecessary.— The act of March 4, 1869, appropriating a specified sum to pay the amount “ due the State Savings Association, of St. Louis, for moneys advanced by said Association to Governor Gamble, September 2, 1862,” is conclusive evidence of the indebtedness and its amount; and, under the law, no voucher or other evidence is necessary.</p>

The description in the deed is too vague to convey the forty acres in controversy. (1 Gxeenl. Ev. § 301, and authorities cited.) Plaintiffs having recovered the purchase money for said forty acres from defendant on the ground that they had no conveyance therefor, are estopped from setting up a title to the same against defendant. (1 Greenl.

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

.Bpypeal from Fourth District Court. I. The act of 1857 was not a naked power to two individuals, disconnected with Watts’ estate, but was to the two administrators of the estate, and simply extends the power already possessed by them under the general law; and the general law of adminis-; trators, which gives the survivor power to do all the acts intrusted to both, was a part of the act of 1857.

<p>1. Ejectment — Suit maybe brought by an insane person in his own name.— An ejectment suit in this State may proceed in the name of plaintiff, without the intervention of a guardian, although it appear that ho is insane.</p> <p>2. Ejectment — Mortgagor — Life interest of, no bar to suit.— Where suit in ejectment is brought against a mortgagor who has possession and a life estate in the property, he can not retain his possession by showing that, when his curtesy ceases, the heirs of his deceased wife may be entitled to it.</p> <p>3. Ejectment — Party in possession — Heirs need not be made party. — -In a suit by ejectment against a party who has a possessory title and life interest in the property, it is improper to make his heirs parties defendant.</p> <p>4. Practice, Oivil — Trial — Amendments, when allowed, during.- — If facts are developed upon a trial which would enable defendant to impeach the transaction upon which the suit is based, and he is taken by surprise by those facts, or if other facts have come to his knowledge since making up the issues, or any other good excuse can be given for not having made up the issues, so as to admit the testimony ho desires to offer, he should be permitted to amend upon terms. But a general application to amend an answer so as to set up fraud, without stating what amendment defendant wishes to make, is properly overruled in the discretion of the court.</p> <p>5. Mortgages — Mortgagee with power of sale may purchase property, with what limitation. — A mortgagee with power of sale is a trustee as well as a creditor, and, at his own sale, can not become the purchaser either directly or indirccUy, so as to cut off the equity of redemption. But such a sale is not void. It is good as to all the world, and for all purposes, excepting only that the mortgagor still has the right to pay the debt and redeem the land.</p>

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

<p>1. Judgments in personam, where no property was attached, held invalid. — A judgment merely in personam against a non-resident debtor founded on notice by publication, as provided by section 13, p. 1224, K. O. 1855, is void, and may bo impeached collaterally. The publication gave the court no jurisdiction over his person. Plaintiff by attachment under such notice might secure jurisdiction over the specific property attached, but not over the person or any other property.</p>

<p> Error io Third District Court. </p> <p>relied, among others, upon the following authorities: State v. Harrold, 38 Mo. 496 ; State, to use, etc., v. Smith, 31 Mo. 566; State v. Wissmark et al., 36 Mo. 592; Young v. White, 18 Mo. 93; Beale v. Cullum, 31 Mo. 258; Bay v. Sullivan, 30 Mo. 191; Gonsolis v. Gearhart, 31 Mo. 585.</p> <p>relied upon the following authorities: 2 Pars, on Cont., 5th ed., 780-2 ; Moyer v. Shoemaker, 5 Barb. 319; Matteawan Co. v. Bentley et al., 13 Barb. 641; Wheaton v. Baker, 14 Barb. 594 ; Masson v. Bovet, 1. Den. 69; Hogan v. Weyer, 5 Hill. 389 ; Chit, on Cont. 646, 748 ; 1 Greenl. Ev. § 192.</p>

<p> Petition for mandamus. </p>

<p> Petition for habeas corpus. </p> <p>cited 2 Mete., Ky., 271; 11 Ind. 389.</p> <p>cited State v. Truman, ante, p. 181; Gen. Stat. 1865, §§ 35-6.</p>

<p> Petition for mandamus. </p>

<p>1. Bills of exchange, action on — Failure of notice of dishonor, excuses for — Burden of proof. — la an action against the drawer of a bill of exchange, who had received no notice of its dishonor, it was sufficient for plaintiff, in order to bring his cas % prima facie within the rule which excuses want of notice, to allege in his petition that defendant had no funds in the hands of the drawee; and if there are other facts in the knowledge of defendant neutralizing the effect of this excuse, the burden of pleading them is with him.</p> <p>2. Bills of exchange, action on — Bo funds in hands of drawee — Accommodation drawer— Presumptions.— In an action against the drawer of a bill of exchange, he would be entitled to notice of dishonor, even though he had no funds in the hands of the drawee, if he were an accommodation drawer. But in the absence of countervailing testimony, he will be presumed to be an interested party. The onus of proving the contrary is upon him.</p>

<p> Error to Fifth District Court. </p> <p>cited 1 Hill, on Torts, '372, § 36, note a; Redf. on Railw. 493; Pennsylvania Railway v. Haskett, 10 Ind. 409; Gen. Stat. 1865, p. 601, § 5.</p> <p>cited Morgan v. Cos, 22 Mo. 373; 16 Mo. 508; 11 Mass. 137; 18 Johns. 256, 288 ; 19 Johns. 881; 26 Mo. 441; 42 Mo. 193 ; 31 Miss. 156; 2 Comst. 165; 3 Hill. 612 ; 35 Mo. 457; 39 Maine, 273 ; 24 Verm. 488 ; 15 East. 388 ; 4 Den. 464; 8 Barb. 427.</p>

This was a suit brought ojj a draft for $1200, drawn March 29, 1866, at Alleghany City, Pa., by the Alleghany Savings Bank, on Messrs. Work, McCouch & Co., payable to the order of Messrs. Baxter & Bell, indorsed by the latter to defendant, and by defendant to plaintiff. The petition alleged that the draft was transferred to plaintiff July 12, 1866, .and that plaintiff transferred it for the purpose of collection to Messrs.

<p>I. Practice, Oivil — Account, balance of, when treated as an account stated.— Where defendant acknowledged his indebtedness for a specific sum, being a balance of an account, the court was at liberty to treat it as an account stated, and properly gave judgment for such balance, although the account was not itemized. And where appeal is taken by reason of such objection to an account, this court will award ten per cent, damages against appellant.</p>

I. Whether plaintiff was guilty of negligence in not refencing the land, was a question of fact for the jury to determine. (18 Mo. 365; 14 ü. S. Dig. 150, § 2; 12 Mete. 415; 7 Grreenl. 42.) H. There was no evidence that the land was necessarily burned out in consequence of the fire. For all that appeal’s in the evidence, the plaintiff made no effort to refence it.

<p> Error to Fifth District Court. </p> <p>Benson was principal, and Campbell and Mills were securities on his bond as administrator. This suit was brought by plaintiffs, as heirs, against Matson, as administrator of Benson, and Mills and the heirs of Campbell, for breach of the administration bond, by reason of the failure of Benson to account for moneys in his hands. The suit was commenced eight years after Benson’s final settlement. ( Vide, also, opinion of the court.)</p> <p>The defendants in error, by dismissing their suit against the Campbell heirs, after demurrer sustained as to them, thereby released the-co-security (Mills) from the obligations of the bond. (18 Johns. 481; 7 Marsh. 67 ; 25 Wend. 320 ; 21 Wend. 108 ; 8 Paige, 237, and cases cited; 4 Wend. 368; 9 Cow. 128.)</p> <p>I. The release of one of several co-obligors does not discharge the others. (State, to use, etc., v. Atherton, 40 Mo. 209; Dodd v. Wynn, 27 Mo. 501.)</p> <p>H. In this case it is fair to assume that the estate was fully settled; but if any creditors should still exist, the suit could be maintained nevertheless, because the law provides that the heir in such case can be made to refund. (State, to use, etc., v. Campbell, 10 Mo. 724; Einney et al. v. State, to use, etc., 9 Mo. 624 ; State, to use, etc., v. Porter, id. 352 ; State v. Morton, 18 Mo. 53.)</p>

I. Plaintiffs in error were only chargeable with notice of the mortgage to the extent of $200. (Lessee of Jennings v. Wood, 20 Ohio, 261; 1 U. S. Dig. 158, § 107; 1 Sup. U. S. Dig. 534, § 355 ; 2 U. S. Dig. 37, § 263 ; 8 Yerm. 172.) II. The recorder failed to record correctly the mortgage to the defendant, and not the mortgage to Terrell; and if an injury resulted thereby, the defendant was the party damnified, and should sue the recorder. ( See above authorities.) HI.

I. The plaintiff, in his instruction, sought to recover on a case not set up in his petition. The case made in plaintiff’s pleadings and that made in his instructions are totally different. The one charges defendant, and those acting in concert with him, with injuring plaintiff; the other seeks to recover for an injury committed by those acting against defendant, and actually trying to kill and murder him. (1 Van Sand. PI. 249; Harris v. Han. & St. Jo.

The property having been in Herriforcl & Lowry, a sale by them is fraudulent unless there was an actual change of possession. A mere constructive change of possession is not sufficient. (4 1-Iill. 297; 2 Hill. 629 ; 3 Sandf. 69-73 ; 42 Mo. 439.) I. Section 10, chapter 67, R. C. 1855, only applies where the immediate vendor remains in possession after the sale. H. Had Herriford been respondent’s immediate vendee, this instruction would have been proper.

<p>1. Contract — Sale, conditional —= Purchase from vendee by third party— Title — Replevin.—By the terms of a 'written contract, A. agreed to sell B. a certain engine for a specified sum; and B. agreed to return the same in default of payment within six months. B. took possession of the property, and, before the expiration of the time or the payment-of the money, sold it to 0., who purchased without notice of the rights of A. Suit in replevin was brought by A. against O. for the property. Held, that the contract was at best only a conditional sale, and no title vested in B.; and (in the absence of evidence showing laches in A.) O. acquired nothing by his purchase.</p>

•Appeal from Fifth District Court. Section 38, p. 661, Gen. Stat. 1865, is not applicable to this case. Here the written assumption of the respondent is the foundation of the action and the principal thing, and the amount of the debt the incident. I. The account sued on is not a bill of items or particulars, as required by tlie statute. (Gen. Stat. 1865, p. 661, § 38.) II. Plaintiffs’ petition does not state facts that will in any event authorize proof or judgment.

Where the description of the deed is particular, that must be followed; and if there is no property to which it can apply, the grant fails. (2 Washb. Real Prop. 689-71; Smith v. Strong, 14 Pick. 128 ; Whiting v. Dewey, 35 Pick. 484; Winn v. Cattell, 18 Pick. 534; Dana v. Middlesex, 10 Met. 250 ; 4 Kent’s Com. 467.) Both deeds made by Harker, sheriff, refer to the same sale. The first is an execution of the power, and the second is a nullity.

The Circuit Court erred in substituting the defendant in error in the place of Thomas Preston as co-security, and in holding that the defendant in error had a right to have the lien revived, and his claim enforced against the land of Selby, Cox & Gifford. I. In this case plaintiff stands in the same situation as a surety, and is entitled to the same equities. (1 Sto. Eq. § 638; Ckesebro v. Millard, 1 Johns. Oh. 409; King v. Baldwin & Eowler, 2 Johns.

I. The order of the Circuit Court dismissing this case is not such an order as a writ of error will lie for. (1 Mo. 222; 35 Mo. 190; 33 Mo. 117.) H. The judgment of the Circuit Court does not help the case. It was rendered after the case was taken by writ of error to the District Court, and while the case was pending in the District Court. The Circuit Court, at the time of entering up that final judgment, had no jurisdiction whatever of the cause.

<p> Jlppcal from Fifth District Court. </p> <p>I. The indictment is good. (State v. Neal, 119; Campbell v. People, 8 Wend. 636; Const, of Mo., art. 13, § 6; Gen. Stat. 1865, ch. 203, §§ 1-2 ; 3 Am. Crim. L., 6th ed., §§ 2259, 2260 ; Whart. Prec. of Indictments, 590.)</p> <p>II. There is -nothing in the objection that the indictment charges that the defendant enrolled and caused himself to be enrolled as a southern sympathizer. When a statute forbids several things in the alternative, it is competent to charge him with all, and sufficient to prove him guilty of either. (1 Bish. Crim. L. 273, 863 ; Commonwealth v. Tuck, 20 Pick. 356; Stevens v. Commonwealth, 6 Met. 241; State v. Slocum, 8 Black, 313 ; State v. Woodward, 23 Term. 616; 1 Bish. Crim. Proc. 191-3, 334; Wingard v. State, 13 Ga. 396-8; Rex v. North, 6 Dowl. & R. 143.)</p> <p>PH. It was not necessary to allege or prove the purpose with which defendant enrolled or caused himself to be enrolled as stated. The law would presume it was for some purpose; and if for any purpose, it is sufficient.</p>

Petition for mandamus. Relator’s petition alleged, in substance, that on the 3d day of August, 1869, an election was held in the county of Buchanan by the qualified voters of the county, at which relator was elected judge of the Court of Common Pleas of that county, and thereby became entitled to that office; that, after the said 3d day of August, 1869, the judges of the several election districts returned to the clerk of the County Court the poll-books; and the clerk and…

<p>1, Practice, Civil — Pleadings — “ Plain and concise statement of facts,” what is meant by. — The “plain and concise statement of facts” required by the statute does not refer so much to the style of the pleader — to his command of ' terse and simple English — as to the attempt sometimes made to give a long ' and prolix history of the transaction upon which the suit is based, and encumber the pleadings with a number of impertinent allegations.</p> <p>2. Administrator — Note secured by deed of trust — Sale of land under — Bill in equity to redeem —Usury — Tender.— "Whore the amount due on a note secured by a deed of trust on real estate is tendered by the administrator of the original maker, and is refused, he may immediately afterward file his petition to redeem the land; and if it be sold under the deed after tender, he may still obtain an order to sot aside the sale and redeem the property; and if he needs the money to be derived from an administration salo of the land in order to pay the debts of the estate, he is a proper plaintiff in a bill for cancellation of the sale under the trust deed. If the amount called for by the trust note is in part usurious, the administrator, under section 4, chapter 89, Gen. Stat. 1865, may refuse to pay the usurious portion of it, and need only make tender of the balance.</p> <p>3. Practice, Civil — Pleading — Bill in equity — Multifariousness. — Multifariousncss is the joining in one petition of distinct and independent matters, each of which would constitute a cause of action. Distinct facts forming a series of transactions tending to a common end, or all necessary to plaintiff’s equity, do not constitute multifariousness, nor does redundant or irrelevant matter that may be stricken out on motion, under section 20, chapter 165, Gen. Stat. 1865.</p> <p>4. Practice, Civil — Bill in equity — Prayer for relief. — In a bill in equity, if the petitioner make a case which will entitle him to some relief in the power of the court to grant, although he may mistake as to the specific relief) he will not, in consequence, be turned out of court; much less, if he has one good specific request and a general prayer. All that portion of the prayer not warranted by the petition is a nullity, and should be treated as surplusage.</p>

<p>1. Administrator — Property stolen from — Not responsible for in equity.— Where funds belonging to an estate are stolen from the executor or administrator while in his charge, he .can not in equity be held liable; and in such case an equitable defense may be made to an action at law. The suit will be tried by a jury instead of the chancellor. But his right to the equitable defense remains. And he will be permitted to .testify in his own behalf under the statute (Gen. Stat. 1865, ch. 144, ¡¡ 1), and independently of it, under the common law.</p> <p>2. Administrators are liable, for what care. — Executors and administrators stand in the position of trustees of those interested in the estates upon which they administer, and are liable only for want of due care and skill; and the measure of care and skill required of them is the same as that demanded of bailees for hire, viz: that which prudent men exercise in the direction of their affairs.</p> <p>3. Bailee, care to be exercised by. — The care to be exercised by a bailee over property in his charge must be graduated according to the character of the property, its value, and the convenience of its being made secure, the facility for its being stolen, and the temptations thereto.</p> <p>4. Administrator — Competency of as a witness — Construction of section 1, chapter 144, Gen. Stat. 1805. — Under section 1, chapter 144, Gen. Stat. 1865, where the testimony of one of the parties to the transaction, or cause of action, or matter of defense, was placed beyond roach by death or insanity, the testimony of the other party was shut out, so as to preserve, as far as possible, an equality of position between them, and for no other reason. And in respect to a case where property in tho charge of an administrator, belonging to tho estate, is stolon, no testimony being lost by reason of tho death of tho intestate, the administrator is not within the reason of the exceptions named in the section, and is not excluded from testifying because of it.</p>

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

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

Improvements and buildings erected on the land of another become the property of the land-owner. (1 Washb. on Real Prop. 4 ; Crest v. Jack, 3 Watts, Penn., 239 ; West v. Stewart, 7 Penn, St. 122.) And defendant in this suit was guilty of trespass in throwing down the fence and removing the rails. (2 Greenl. Ev. § 617; 28 Mo. 556.) This is so, even if the fence had been placed there by a license from plaintiff. (Prince v.Case, 2 Am. Lead.

If the jury believe from the evidence that plaintiff delivered to the defendant, who ivas then in his employment as his servant or clerk, a belt with its contents, to be by him kept, and re-delivered on demand to plaintiff, and that plaintiff afterward demanded said belt and contents from defendant, who refused, without lawful excuse, to deliver the same to him, then they will find for the plaintiff. 9.

The Circuit Court erred in instructing the jury that the cause of action Accrued at the time of the collection of the money sued for. (ft. C. 1855, p. 751, § 67; Gen. Stat. 1865, p. 648, § 65, pp. 614-15, §§ 34-5, 38-40; 4Blackf., Ind., 775; Weston v. Ames, 10 Mete. 244; Euqua v. Young, 14 La.

<p>1. Justices’ courts — Exhibits filed — Lease — Instrument of writing. — Alease in writing, duly signed, sealed, and delivered, is an instrument of writing within the meaning of the statute concerning the filing of such instruments, in actions founded thereon, injustices’ courts (Gen. Stat. 1865, p. 201, § 13); and the circumstance that it provides for other things than the direct payment of money or property in no way affects its character as a written instrument within the meaning of said statute.</p> <p>2. Justices’ courts — Jurisdiction not lost by reason of failure of the instrument filed to show the amount demanded — Yerbal statement.— Although a lease filed as an instrument of writing, as the foundation of an action, before a justice of the peace, does not on its face show the amount demanded, that fact is not sufficient to deprive the justice’s court of jurisdiction. In such case the defendant is entitled to the verbal statement provided for by section 12, p. 706, Gen. Stat. 1865.</p>

I. This suit can not be maintained in a court of equity. Equity will not assist a lender of money to enforce a usurious contract. (1 Sto. Eq. 301-2, § 64, e ; 4 Johns. Ch. 122.) H. Plaintiffs must concede the usury in their petition, and offer to abate usury, and ask to correct and enforce the contract as to the remainder.

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

I. The submission in writing to arbitration operated as a discontinuance of the cause ; and the District Court did not err in reversing the judgment of the court below.

Jlppcal from Fifth District Court. . I. A grantee.may set up,as defense to anote given for tbe purcliase of real estate, that the property sold to him, or part of it, was not the property of the grantor,-though he (the grantee) may not have been evicted. - ( 23 Mo. 151; 4 Mass. 627; 12 Mass. 304; 8 Pick. 547 ; Rawle on Covenants, 464.) H. The answer sets up fraud, and sets out the representations made by the agent of the' plaintiff, upon which he relied, and which proved to…

The mortgage referred to in the petition was the foundation of the action, and should have been filed with the petition in the cause. (Gen. Stat. 1865, p. 662, § 51; 37 Mo. 167 ; 38 Mo. 224.)

cited 10 Kinne’s Law Compendium, 42; 3 Barb. 275; 2 Hill, N. Y., 387; 12 Wend. 503 ; 23 Wend. 628. ' I. The law does not authorize or permit a demurrer to a motion to confirm the award of the arbitrators, and the award and motion were sufficient in law. II. The court below erred in not confirming said award, and in sustaining the demurrer.

If enough of the contract is set forth to show the obligation of defendant and the breach complained of, this is sufficient, and will work no surprise on the party. (Little v. Mercer, 9S Mo. 218 ; 4 Mo. 32; 2 Mo. 39; 10 Mo. 515; 1 Chit.

Payment to the justice, under direction of the constable, was in effect payment to the constable within the meaning of the statute. (2 Greenl. Ev. §§ 600-603 ; 6 Bacon’s Abr., 6th ed.) 'No error was committed by the court below, because no deposit was made with the constable as required bylaw. (Gen. Stat. 1865, ch. 180, §§ 17-19.)

Jlppeal from Fifth District Court. A person can not be made a bailee or depository against his will and consent. (2 Pars, on Cont. 96.) The deposit having been made in the name of the agent, and the certificate of deposit sent to him, were equivalent to payment of the money to him, for his principal, and he was responsible to his principal for the money so deposited; and if he was liable, his estate must be.

<p>1. Sale — Properly may he reclaimed, when.— A. sold a certain mare to B., with the express agreement that, until the whole of the purchase money was paid over, the title should remain in A. Before payment of the purchase money due, and without the knowledge of A., B. sold the mare. Held, that B. had no vested right in the mare, and could convey no title by sale; and A., being guilty of no laches, might reclaim the property from an innocent purchaser without notice.</p>

Fourth District Court. I. This is in the nature of an equitable proceeding praying summary relief, and this court will review both the facts and the law. H. The filing and approval of the recognizance for an appeal to the Supreme Court, and granting the same, operated as a supersedeas of said execution. (R. C. 1855, ch. 128, § 12, p. 1287.) III. There was a gross inadequacy of price in this case.

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

PLppeal from Fifth District Court. I. The right given to the city council by charter to judge of the election, returns, and qualifications of its members does not exclude the jurisdiction of the common-law court therein, and certainly not where the jurisdiction by statute is expressly conferred on the Circuit Court to determine the right of any person to hold any office or franchise, who has usurped, intruded into, or unlawfully holds and executes such office or franchise.

<p> Jlppeal from Fifth District Court. </p> <p>I. The conveyance and agreement admitted in the pleadings constitute a mortgage. (1 Washb. on Real Prop. 502.)</p> <p>H. It is not necessary to insert the terms upon which the conveyance may be defeated in the deed by which it is made. It is sufficient if it be done in a separate instrument. (1 Washb. on Real Prop. 503 ; 3 Blackf. 51; 1 Hill, on Mort. 23, § 36.)</p> <p>IH. The deed in this case is absolute in its terms. But the agreement executed at the same time, and which is therefore to be considered a part of the same transaction, qualifies the terms and introduces conditions.</p> <p>IY. A written agreement to reconvey upon the repayment of the consideration named in a deed, is a mortgage. (1 Hill, on Mort. 38, § 7; id. 105, § 9; 1 Washb. on Real Prop. 504; 3 Watts, 196 ; 6 Watts, 406, 409 ; 1 Mete. 199 ; 1 Allen, 108 ; 7 Wend. 249; 19 Wend. 520; 1 Sandf. Ch. 57; 12 How., U. S., 152; 1 Washb..on Real Prop. 516; 1 Hill, on Mort. 39, 40 ; 2 Blackf. 51; 17 Ohio, 356; 20 Ohio, 666 ; 4 Pick. 352; 1 Mete. 117; 1 Hill, on Mort. 115, § 14.) And the agreement to recovery may be made to a third person. (1 Hill, on Mort. 25 ; 2 Sumn. 540.)</p> <p>Y. Where there is a doubt whether the transaction be a mortgage or not, the court resolves the doubt in favor of the mortgagor. (1 Washb. on Real Prop. 516; 7 Mo. 327; 16 Mo. 145.)</p> <p>YI. The transaction in proof created at least a trust in Kerr, and an equity in Turner, which chancery will enforce. (3 Hill. 95.)</p> <p>YTI. “ Where the sale was for full value, but with an agreement on the part of the grantor that if lie could, within a certain time, sell for more than the purchase money, with interest, the surplus should be paid over to the grantor, the transaction was held a mortgage.” (1 Washb. on Real Prop. 516; 1 Hill, on Mort. 40; Palmer v. Gurnsey, 7 Wend. 249.)</p> <p>I. The transaction had no ingredient ’of a mortgage. No instrument is construed to be a mortgage where the relation of debtor and creditor does not exist. (1 Hill, on Mort., 3d ed., 95-107, notes and authorities- there cited; 4 Kent, 144, 145; Slowcy v. McMurray, 27 Mo. 113; Holmes v. Grant et al., 8 Paige, 243 ; Conway v. Alexander, 7 Cranch, 238 ; Brewrster v. Baker, 20 Barb., S. 0., 364; Lee v. Kilburn, 3 Gray, Mass., 594; Baker v. Thrasher, 4 Den. 493 ; Elagg v. Mann, 14 Pick. 467; 2 Sumn. 534.)</p> <p>H. The debt of respondent Kerr against Turner ivas extinguished by the sale of lots, and the note given up to Turner in accordance with said written agreement.</p> <p>HI. The agreement in suit was in the nature of a conditional sale, and the party seeking relief under it must show a strict compliance on his part. (27 Mo. 113.)</p>

I. IE the collector so made his return (after the land tax was tendered to him) as to induce and cause the County Court to render judgment a,gainst the land for both land and personal tax, he violated the law, and is liable in this action. II. The relators wore bound to take notice of all that the collector or County Court might lawfully do, but they were not bound by any unlawful act of the collector or County Court in the premises. HI.

<p>1. Act reorganizing Macon Court of Common Pleas — Misdemeanor—Felony— Jurisdiction — Construction of statute.— By the third, section of the act organizing the Macon Court of Common Pleas (Soss. Acts 1868, p. 275), that court is prohibited from usurping the powers of the Circuit Court, which has exclusivo and original jurisdiction over felonies; and when, upon examination, it is disclosed that the offense is a felony instead of a misdemeanor, it is the duty oftho Common Pleas Court to certify that fact to the Circuit Court. But it has jurisdiction to proceed by complaint or information in casos of misdemeanor.</p>

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

<p> Jlppeal from, St. Louis Circuit Court. </p> <p>I. The equitable title to the lease is in Grumley. 1. Webb’s permitting Grumley’s improvements to remain on the land for his own benefit, was a fraud upon Grumley’s rights. His procuring the sheriff’s deed of January 31,1857, was a gross fraud in law and in fact upon his principal, Grumley. His retaining possession under that deed, excluding Grumley, refusing to account for rents,' and forcing Grumley to sue him, were also gross frauds on Grumley’s rights. And it was because Webb suffered the buildings to remain, and because he had a seeming title, and because he had possession, that he was enabled to get the lease now in controversy. 2. When a new lease is granted, the old one is considered to be still in being. Tho new lease is considered a graft upon the old. Whoever is entitled to the profits of the old lease is entitled also to those of the new. (Rawe v. Chichester, 1 Ambler, 719; Randall v. Russell, 3 Merivale, 195 ; Taster v. Marriott, 1 Ambler, 668 ; Byre v. Godolphin, 1 Ball & B. 299 ; Holridge v. Gillespie, 2 Johns. Ch. 29 ; Ralcestraw v. Brewer, 2 Pierre W. 512.) 3. The agency of the defendant estopped him, under any circumstances, from getting a new lease for himself. (Zilkin v. Carkart, 3 Bradf., N. Y., 376 ; Phyfe v. Wardell, 5 Paige’s Ch. 279 ; Tanner v. Elworthy, 4 Beav. 491.) The ground of decreeing renewals by trustees to inure to the benefit of the infant is public policy, to prevent persons in such situations from acting so as to take a benefit to themselves. (Griffin v. Griffin, 1 Sch. & Lefr. 352; Owen v. Williams, 1 Ambler, 734; Bennett v. Yansyckel, 4 Duer, 462 ; Davoue v. Banning, 2 Johns. Ch. 251; Pickering v. Yowles, 1 Brown’s Ch. 182; Eitzroy v. Howard, 3 Russ. Ch. 233 ; Beatherstonhaugh v. Benwick, 17 Yes. Jr. 298 ; Yan Horn v. Bonda, 5 Johns. Ch. 409 ; Iluson v. Wallace, 1 Richardson’s Eq. 2-7 ; Whalley v. Whalley, 1 Yern. 484; Mulvaney v. Dillon, 1 Ball & B. 417; 2 Bonblanque’s Eq. 189.) 4. It matters not that there was no covenant of renewal contained in the old lease. The right to the new lease is not based on covenant. It results from the relation of the parties — from the “beneficial interest connected with a tenancy as an inducement toward a renewal.” (Zilkin v. Carkart, supra.} “Though the lessors are not bound to renew, yet, when done, it is a continuation of the old lease.” (Rawe v. Chichester, 1 Ambler, 719; Owen v. Williams, supra; Pickering v. Yowles, 1 Brown’s Ch. 182; Griffin v. Griffin, supra; Eyre v. Godolphin, 1 Ball & B. 299; Davoue v. Banning, supra; Bennett v. Yansyckel, supra.} 5. The policy of the law prohibits a trustee from getting a new lease to himself, although the lessor refuses to renew to the cestui que trust. (Bennett v. Yansyckel, supra; Keech v. Sandford, 3 Eq. Cas. Abr. 741; Davoue v. Banning, supra; Lead. Cas. in Eq., Hare & Wall. Notes, pp. 84, 97.)</p> <p>H: The plaintiff Grumley has never in any way parted with his equitable interest in this new lease. • 1. Webb has no writing sufficient, under the statute of frauds, to show such transfer. The only writing the defendant has is a receipt for the judgment alone. The receipt itself includes nothing else. The sweeping clause “in full of all claims and demands” is to be restrained and limited by the previous special recital of the “judgment.” A general release is to be taken most strongly against the releasor ; but where there is a special recital, and then general words follow, the general words are to be restrained and qualified by the special recital. (Bac. Abr. 633; Sto. on Agency, §§ 21, 62, 65, 66, 74; Sto. on Cont. § 642 et seq.; Chit, on Cont. 84; 2 Pars, on Cont. 220 ; Add. on Cont. 845 ; Eox on Cont. 155 ; Powell on Cont. 235-6; Swift’s Dig. 300 ; Jackson v. Stackhouse, 1 Cow. 122; Lyman v. Clark et al., 9 Mass. 237; Mclntire v. Williamson, 1 Edw. Ch. 34; Payne v. Allen, Sprague, 304; Averill v. Lyman, 18 Pick. 346; Rich v. Lord, 18 Pick. 346; Van Hagen v. Van Rensselaer, 18 Johns. 420 ; Elmendorf v. Lansing, 5 Cow. 470; Payler v. Homersham, 4 Maulé & Selw. 425 ; Ramsden v. Hylton, 2 Ves. Sr. 309; Cole v. Gibson, 1 Ves. Sr. 505; Thorpe v. Thorpe, 1 Raymond, 235; Cole v. Knight, 3 Mod. 277; Butcher v. Butcher, 4 Bos..& Pul. 118 ; Simons v. Johnson, 3 Bam. k Aid. 180; Bruen v. Marquand, 17 Johns. 58 ; Littlefield v. Winslow, 19 Maine, 397; Rossiter v. Rossiter, 8 Wend. 494; Hays v. Goldsmidt, cited in 1 Taunt. 349 ; Hoes v. Van Iloesen, 1 Barb. Ch. 398 ; Taylor v. Robinson, 14 Cal. 899 ;. Washburn v. Alden, 5 Cal. 463.) 2. The defense is seeking to extend the receipt by parol. Even if they had a right to do this, it would yet be incumbent on them to show, by direct and positive testimony, that the matter in regard to which they wish to introduce parol evidence was expressly mentioned, and that, too, in the way of bargain and sale; and it being an interest in land, a transfer of which they are seeking to prove by parol, they must prove it (if'at all) by indubitable proof of the contract in all its parts.</p> <p>I. The plaintiff, by his petition and proofs, seeks to raise a constructive trust and fasten it on the conscience of the defendant, and convert him into a trustee for the plaintiff quoad the property in question. To raise a constructive trust, the burden rests on the plaintiff to show that the acquisition, by defendant', of the lease of John O’Fallon for a term of ten years from January 1, 1864, was effected with fraud. He has failed to show this.</p> <p>II. In order to raise a constructive trust, it is essential that three things be made to appear, viz : 1. That the plaintiff had a right to, or property or interest in, the subject matter of the trust. 2. That the defendant, at the time of the transaction, stood in a fiduciary relation to the plaintiff or the property. 3. That the defendant, in his fiduciary capacity, had control of the subject matter, and by reason of such control obtained the property to his own use. The evidence establishes neither of these propositions.</p> <p>HI. The settlement made March 7,1865, set up in the answer, is a full and complete defense to this action. The plaintiff, by his receipt, acknowledged the sum paid ($6,500) to be in full satisfaction of all claims and demands which he then had or' held against the defendant. The language used in the receipt is the most comprehensive known in the law. “ ‘Demand’ is a word of. most extensive import, and a release of all demands discharges all manner of actions existing at the time.” (4 Den. 166.) That settlement included all damages the plaintiff had sustained by reason o£ the alleged wrongs of the defendant in respect to the leasehold property, and the receipt is a good bar to any subsequent action for damages, and also a bar to a suit m equity for the title. (Hughes v. Moore, 7 Crunch, 178; Swift’s Dig. 300.) -</p>

Louis Circuit Court. Uhrig, being the owner of a lot of ground on Washington avenue, brought this suit to enjoin the collection of benefits assessed against his property for the opening of a part of said avenue.

Jlppeal from St. Louis Circuit Court. Whenever any one standing in a fiduciary relation receives a benefit from his dependent, the law looks on the act with suspicion, and either holds it void or so far condemned as to require from the donee proof that no undue influence or fraud induced the transaction.

Louis Circuit Court. A municipal corporation is not civilly liable for the nonfeasance, or malfeasance, or misfeasance, of its officers and servants while engaged in the discharge of the public political duties of the corporation. (City of Richmond v. Long’s Adm’r, 17 Grat. 375 ; Dargan v. Mobile, 31 Ala. 469; Stewart v. New Orleans, 9 La.

<p>1. Practice, Civil — •Pleading— Want of demand. — -'Want of demand by plain tiff, to bo of any avail to defendant, must be pleaded.</p> <p>2. Practice, Civil — City of St. Louis — Contract—Suit for price — Tax bills.— The city of Bt. Louis agreed with plaintiff to pay for certain work in tax bills. The work was done, but the tax bills proved to bo invalid. Held, that plaintiff properly brought suit to recover the contract price for the work, without returning the void bills and demanding others; nor was he obliged to sue for failure to issue and deliver proper tax bills.</p>

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

Louis Circuit Court. Plaintiff was a minor and sued by his next friend. A company is responsible to its servants for its own negligent acts. (Snow v. H. R.R., 8 Allen, 445; Keegan v. Western R.R., 4 Seld., N. Y., 175; Noyes v. Smith, 28 Verm. 62; Ryan v. Fowler, 24 N. Y. 413 ; Wright v. N. Y. C. R.R., 25 N. Y. 565 ; Warner v. Erie R.R. Co., 39 N. Y. 478 ; Patterson, v. Wallace, 28 Eng. Law & Eq. 50; Marshall v. Stewart, 33 Eng.

I. The demurrer ought not to have been sustained. 1. A judge or judicial officer, when acting judicially and within the limits of his jurisdiction, is not liable for any erroneous decision, whether made honestly or from corrupt and malicious motives. (Yates v. Lansing, 9 Johns. 395 ; Pratt v. Gardner, 2 Cush. 63 ; Burn-ham v..

<p>1. Revenue- — -Act of Congress — -Bank shares — -Taxes—Assessments made, how. — Under the provisions of section 41 of the act of Congress of June 3, 1864, re-enacting and amending the act of February 25, 1863 (U. S. Laws 1863-4. p. 112), the county collector should make his assessments for taxes on bank shares against the shareholders personally, and has no right to collect the tax by soiling the property of the bank, or the shares or other property of the shareholders, except that of the delinquent.</p> <p>2. Revenue — Banks — Act of Congress — Illegal tax — Injunction, when proper. — Injunction by a bank organized under act of Juno 3,1864, to restrain the collection of taxes, is not the proper remedy for an illegal or irregular tax, unless the sale of the property is accompanied by such circumstances that it will work irreparable mischief.</p> <p>3. Revenue — Banks, under act' of Congress of June S, 1864 — Assessments against hanks for tax on shares — Injunction — Demurrer.— Suit by a banking institution organized under act of Congress of Juno 3, 1864, to enjoin the collection of taxes assessed against itself on its bank shares, has no equity. The bank, as a corporation, will lose nothing if the shares of its stockholders are sold. The shareholders are the ones who suffer, and they, if any one, are entitled to relief. In such suit demurrer will properly lie for that reason.</p>

Petition for mandamus. I. Bonds issued under the act of March 23, 1868, (Sess. Acts 1868, p. 92,) are not the bonds of the county, but are the bonds of the township; and, although the act requires them to be issued in the name of the county, the township alone is responsible for their payment.

Louis Circuit Court. I. The covenant of indefeasible seizin, created by the statute, is a covenant for title, and runs with the land. (Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174.) II. The covenant sued upon being one which runs with the land, and not broken until after defendant’s act and discharge in bankruptcy, that discharge does not release defendant from liability to plaintiff in this action.

Louis Circuit Court. I. The Probate Court of St. Louis has no equitable jurisdiction. The premises convoyed by trustee Dick to LeBeaume, however fraudulent the deed, formed no part of C. Zelina Fremon’s estate at the time of her death, nor had the Probate Court any jurisdiction over them. (George v. Williamson, 26 Mo. 193; McLaughlin v. McLaughlin, 16 Mo. 242.) To perfect the right of creditors to set a deed aside, they must first exhaust the personal estate.

<p>1. Insurance companies — Act of March 10, 1869 — Information touching business of companies, failure to give — Penalty for.— The gui tarn action provided by section 43 of the act of March 10, 1869, for the incorporation of insurance companies, etc. (Sess. Acts 1869, p. 60), for violation of the act by such companies, is not exclusive. That section refers generally to all violations of the act. But when parties fail to comply with or violate section 13 of the act “to create an insurance department” (Sess. Acts 1869, p. 23), requiring insurance companies to give information to the State superintendent of insurance touching their business, they are liable to be proceeded against for misdemeanor, under that section.</p> <p>2. Insurance companies — Act of March 4, 1869 — Title of statute — Constitution.— Section 13 of the act entitled “ An act to create an insurance department” (Sess. Acts, 1869, p. 23), in substance, required insurance companies, on demand, to give the State superintendent of insurance, information touching their business, and, for failure to furnish the same, made the party offending guilty of misdemeanor, and subject to fine and imprisonment. Held, that the said section was not in violation of section 32, art. IV, of the State constitution as relating to a subject not included in the title of the act. Il was necessary, in order to carry out the act, to empower the superintendent to obtain such information; hut the power would have been fruitless without the authority to enforce it.</p> <p>3. Constitution — Section 32, art. IV. — Intention of.— Section 32, art. IV, of the State constitution was intended to effectually inhibit the putting of diverse subjects in the same bill.</p> <p>4. Insurance companies — Act of March 10, 1869 — Title of — What companies embraced in. — An act entitled “An act for tlie incorporation of insurance companies and other than life insurance companies, and for the regulation of insurance business, other than life assurance business ” (Sess. Acts 1869, p. 45), comprehends fire and marine insurance companies.</p> <p>5. Insurance companies — Act of March 4, 1869 — TJ. S. constitution — Contracts— Impairing obligation of. — A fire and marine insurance company was chartered prior to the passage of the act of March 4, 1869, “to create an insurance department.” Meld, that section 13 of that act requiring insurance companies, on demand, to furnish the State superintendent of insurance with information touching their business was not in violation of the constitution of the United States, as impairing the obligation of the contract between the State and the company, arising from the charter. Corporations, like natural persons; are subject to those laws which the State may prescribe for the good government and regulation of the community, and the protection of the citizen. The power of the State to prescribe such laws is inherent in every sovereignty, and can not he surrendered even in the granting of a charter.</p>

Louis Circuit Court. I. The agreement to submit the matters in dispute is a submission within the statute; and, as it was not shown that the arbitrators took the oath prescribed in the statute, their award is invalid. (Toler v. Hayden, 18 Mo. 399 ; Eassett v. Eassett, 41 Mo. 516 ; Walt v. Iiuse, etc., 38 Mo. 210.) n. The provisions of the charter of the company, the policy sued on, and conditions annexed, do not change the question.

Jlppeal from Fourth District Court. The facts appear in the opinion of the court. T. The defendant acquired the title to her.property by “ actual fraud, arising from plain facts and circumstances of imposition.” (Chesterfield v. Jansen, 2 Ves., Sr. 155.) “Fraud or covin may, in judgment of law, avoid every kind of act.” (Bright, Ex’r, v. Eynon, 1 Burr. 390 — see p. 395, at bottom — citing Fermon’s case, 3 Co. 77.) II.

Jlpfieal from St.Louis Circuit Court. I. The petition does not show, nor does the petitioner claim, that he offered or tried to make a private bargain with the owner for the rock or for the use of the quarry. Whenever the property of an individual is to be divested by proceedings against his will, there must be a strict compliance with all the provisions of the law. (Reitenburgh v. Chester Valley R.R. Co., 21 Perm. 100 ; Vail v. Morris & Essex R.R. Co., 1 Zabr. 189.) II.

<p>1. Agency — Commissary vouchers, when stolen,, what title passes to purchaser. —[An IT. S. commissary voucher is not, in the commercial sense, a negotiable instrument, and the law merchant has no application to it. It is, however, property, or rather a convenient representation of property, and when actually sold, passes by delivery, like other personal property. But the purchaser can acquire no greater right than the seller, and when the property is stolen, there can be no further transfer. An agent who collects the money on such a voucher, for an innocent purchaser thereof after the voucher has been stolen, will be liable for its value to the original owner. A sale of the property by the agent is evidence of conversion; and, to hold him. liable, it is not necessary that he should use the proceeds of the conversion for his own benefit.</p> <p>2. Agency — Conversion — What constitutes. — The fact that one takes possession merely of stolon property, as a depositary or common carrier, is not sufficient to charge him with conversion. Some action by which it is converted into something else, as into money or other property, either by sale, exchange, or collection, or some other intermeddling, inconsistent with the owner’s right, should be found, in order to make the person responsible who has obtained innocent possession.</p>

Louis Criminal Court. I. The ordinance 5,434, relating to markets, is invalid, because unreasonable and not warranted by the charter in force when it was passed. (Commissioners v. Gras Co., 12 Penn. St. 318 ; Mayor of Hudson v. Thorne, 7 Paige, 261; 3 Pick. 462.) H. If the city council had power under the charter of March 3, 1851, to prohibit or suppress meat shops, the power to prohibit was taken away by the charter of March 19, 1866 (Sess.

<p>1. State ex rel. Mo. & Miss. RR. Co. v. Macon County Court, 41 Mo. 453, affirmed.</p>

<p> Appeal from, St. Louis Circuit Court. </p> <p>relied upon Commercial Bank of Albany v. Clark, 28 Verm. 325, 329 ; Duvall v. Farmers’ Bank, 9 Gill & J. 31; Commercial Bank v. Hughes, 17 Wend. 98-9 ; Breed v. Hillhouse, 7 Conn. 523 ; Hall v. Freeman, 2 Nott & McC. 479 ; Low v. Howard, 10 Cush. 163 ; Conroy v. Warren, 3 Johns. Cas., per Thompson, J., 262, and Kent, J., 264 ; Story on Bills, § 291 et seq.; Byles on Bills, 150, 159 et seq.; Sice v. Cunningham, 1 Cow. 397, 406; Miller v. Ilackley, 5 Johns. 385 ; Griffin v. Goff, 12 Johns. 423 ; Pars, on Bills, 621, notes; Story on Bills, § 320 ; Mogadara v. Holt, 1 Shower, 318 ; Borradaile v. Low, 6 Taunton, 93 et seq.; Lundie v. Robertson, 7 East. 231; Gibbon v. Coggen, 2 Campb. 188 ; Taylor v. Jones, 2 Camp. 105; Blesard v. Hirst et al., 5 Bur. 2,670.</p>

Louis Circuit Court. I. Covenant to stand séized is one of the forms of conveyance upon which the statute of uses operates. (Burton, 21 Law Lib. 19, § 136; 4 Kent Com. 492.) The deed of April 23, 1844, is a covenant to stand seized. (Roe v. Tranmarr, Willes, 682.) II. Both the deeds are voluntary conveyances, neither of them being to bona fide purchasers for a valuable consideration. The registry act, therefore, does not apply.

I. The act of December 11, 1863, was inoperative and conferred no title to the curatorship on the defendants in this case. (Fletcher v. Peck, 6 Cranch, 87,136 ; State v. Wilson, 7 Cranch, 164; Pawlet v. Clark, 9 Cranch, 292 ; 1 Kyd on Corporations, 16; Wales v. Stetson, 2 Mass. 143, 146; Terret v. Taylor, 9 Cranch, 43.) H. If the amendment of 1847 was invalid for any cause, it was simply a nullity.

Petition for mandamus. I. A verdict responsive to the issues should be received and recorded. (State v. Ostrander, 30 Mo. 13; State v. Schoenwald, 31 Mo. 155, 158; State v. Arrington, 3 Murphy, 571; Moody v. McDonald, 4 Cal. 297; Russell v. Wheeler, 1 Hemp. 3.) An unintelligible verdict may be set aside on motion. (Ford v. Ford,'3 Wis. 399.) H. Mandamus is a proper remedy in this case.

Louis Circuit Court. I. The plea of the statute of limitations is a plea in confession and avoidance. (1 Chit. 556; Steph. on PI. 138,139,198, 200 ; Bauer v. Wagner, 39 Mo. 385.) II. The deed from the sheriff to Nelson contains a definite and certain description of the property conveyed.

<p>I. Practice, Civil — Assignment of errors — In absence of, ¡judgment affirmed.— Where appellants neglect to file an assignment of errors, tlio judgment of the court below will be affirmed.</p>