Volume 45 — Missouri Reports

<p> Error to Sixth District Court. </p> <p>cited The People v. Utica Ins. Co., 15 Johns. 387, 388; Thompson v. The People, 23 Wend. 567 ; The King v, Leigh, 4 Burrows, 2145 to 2147 ; Art. Ill, Const. Mo. ; People v. Wren. 4 Scam. 269 ; Sloan v. State, 8 Blackf. 361; Cheney y. Hosier, 7 Mun. 334 ; State y. McBride, 4 Mo. 303 ; Dartmouth College case, 4 Wheat. 518.</p> <p>cited Betts v. The City of Wil-liamsburgh, 15 Barb. 255 ; Wood v. Peake, 8 Johns. 69 ; 3 Hill. 243 ; Griffith v. Bogart, 18 How. 158; Wyman et al. v. Campbell, 6 Porter, 219; 9 Wend. 382; 8 Wend. 645 ; Fry v. Bennett, 5 S&ndf. 54; Garman et al. y. Lennox, Ex’r, 15 Pet. 115; 4 Cranch, 333; 3 Crunch, 229; 12 Barb. 573; State cx rel. Hequembourg y. Lawrence, 38 Mo. 535 ; Syme v. Steamboat “Indiana,” 28 Mo. 335; Kayser y. Trustees of Bremen,' 16 Mo. 88.</p>

I. The petition simply alleges a legal conclusion. It does not comply with the practice act (Gen. Stat. 1865, ch. 165, § 8, p. 658). It should allege wherein the appellant was guilty of carelessness and negligence. (Sugg y. Blow, 17 Mo. 359.) II. The second instruction given to the jury at the request of the respondent does not embrace the defense raised by the evidence on behalf of the appellant.

Petition for mandamus. That portion of the order granting an appeal containing a condition precedent thereto, is without the authority of law — is a nullity, and void. It could not excuse the plain statutory duty of the clerk, and is not, therefore, a prohibition — is no justification.

<p> Appeal from Sixth District Court. </p> <p>cited Bank of the State of Missouri v. Bray et al., 37 Mo. 194; Newman v. Hook, 37 Mo. 207; Turner v. Kellar, 38 Mo. 332 ; Lackey v. Lubke, 36 Mo. 115; Merchants’ Bank of St. Louis v. Harrison, 89 Mo. 438-4; Swift’s Dig. 795; Gantly v. Ewing, 15 Curtis’ IT. S. 608 et seq. ; Williams v. Amory, 14 Mass 28-9 ; Litchfield v. Cudwéll, 15 Pick. 27-8 ; Breese v. Bange, 2 E. D. Smith, 474 ; Russell v. Dyer, 40 N. H. 173 ; McElwee y. Sutton, 2 Bailey, 361.</p>

<p>1. Practice, Civil — Assignment of errors — Judgment affirmed, when. — When, plaintiff in error neglects to file an assignment of errors, and no cause for the omission is shown, the judgment of the court below will be affirmed.</p>

<p>1. Dennis McDonald et al. v. (Jronefeld, ante, p. 28, affirmed.</p>

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

This was a suit against the Hannibal & St. Joseph Railroad Company to recover possession of a lot in the town of Shelbina, in Shelby county, Missouri.

<p> Appeal from Sixth District Court. </p> <p>cited Wood v. Dalton, 26 Mo. 582 ; Pentz v. Kuester, 41 Mo. 450 ; Burns v. Patrick, 27 . Mo. 434 ; Reed v. Bell, 26 Mo. 218.</p> <p>cited Gen. Stat. 1865, ch. 187, § 36 ; Garrison y. Savignac, 25 Mo. 47; Ber-necker v. Miller & Miller, 40 Mo. 473 ; Goerges v. Hufsclnnidt, 44 Mo. 179 ; Bartlett v. Draper, 23 Mo. 409 ; Spalding v. May-hall, 27 Mo. 380; King’s Adm’r v. St. Louis Gas Company, 34 Mo. 304; Keyscr v. Rawlings, 22 Mo. 126,136; Draper v. Shoot, 25 Mo. 203-4 ; Menkens y. Ovenkouse, 22 Mo. 70; Williams y. Dougan, 20 Mo. 186 ; Johnson v. Prewitt, 32 Mo. 554 ; Carondelet v. Simon, 37 Mo. 408.</p>

<p>1. Practice, Oivil — Supreme Court — Failure to prosecute appeal —Judgment affirmed, when. — "Where respondent presents in the Supreme Court a perfect transcript of the record, and it appears therefrom that the appeal was taken more than thirty days before the commencement of the term, and that no steps have been taken to prosecute the appeal, the judgment of the lower court will, on motion, be affirmed. (See Gen. Slat. 1865, ch. 135, 29, 46, and p. 890, ¡S17.)</p>

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

<p> Information in the nature of a quo warranto. </p>

Louis Circuit Court. The bond sued on, taken in connection with its conditions, is not a writing for the payment of money; and the period of limitation is five years, and not ten. (Glen. Stat. 1865, ch. 191, §§ 9, 10; Little v. Mercer, 9 Mo. 221; Crigler v. Quarles, 10 Mo. 324.) The action against the securities on the bond is not limited to five years.

Petition of certiorari. This court may review the subscription of the County Court, on certiorari. The writ is addressed to. a court, proceeding under a special law, and judicially construing that law erroneously, and there is no remedy by appeal on error.

<p> Petition for mandamus. </p>

<p> Petition for mandamus. </p>

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

<p>1. Practice, criminal — Oral instructions, 'parties can not consent to. — The statute (Q-en. Stat. 1865, ch. 213, $ 30), does not authorize the judge of a Criminal Court, even at the request or by consent of parties, to give oral instructions as to matters of law. It would ho incompetent for the prisoner himself to consent to such waiver of the statutory requirement, and, a fortiori, his counsel can have no such right.</p>

St. Louis Circuit Court. The cause of action sued on, under tbe constitution and laws of the United States, is not within the jurisdiction of the Federal courts, but belongs purely to the State courts. (People’s Ferry Co. v. Beers, 20 How. 893 ; Morewood v. Enequist, 23 How. 491; Roach v. Chapman, 24 How. 129 ; The Belfast, 7 Wall. 624, 646.)

<p>1. Mitchell v. Steamboat Magnolia, ante, p. G7, affirmed.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>cited Wrigbt v. Malden Railroad Co., 4 Allen, 283 ; Tiwr. Vermont Central Railroad, 24 Verm. 487 ; Buggs v. Taylor, 28 Verm. 180 ; Lucas v. New Bedford & T. R.R. Co., 6 Gray, 64 ; Gilman v. Deerfield, etc., 16 Gray, —; Garrell v. Manchester, etc., 16 Gray, —; Gallagher v. Boston, etc., 1 Allen, 187 ; Todd y. Old Colony, etc., 3 Allen, 21; 36 Mo. 484 ; Holly v. Boston Gas-Light Company, 8 Gray, 123 ; Hatfield v. Roper, 21 Wend. 615; Lehman v. Brooklyn, 29 Barb. 236; Boland and Wife v. Missouri Railroad Company, 36 Mo. 484; Bliss v. Hibbraham, 8 Allen, 564; Haley v. Earle, 30 N. Y. 208; Pool v. North Carolina Railroad Company, 8 Jones’ L. R. 340.</p> <p>cited Huelsenkamp v. The Citizens’ Railway Company, 34 Mo. 45; same case, 37 Mo. 554; Boland and Wife v. Missouri Railroad Company, 36 Mo. 484; Meyer v. Pacific Railroad Company, 37 Mo. 151-4; Liddy v. St. Louis Railroad Company, 40 Mo. 506 ; id. 153 ; Morrissey v. Wiggins Ferry Company, 43 Mo. 380.</p>

I. The action of the court in the case at bar was judicial. (The State v. Cooper County, 17 Mo. 507; Sullivan County v. Burgess, 37 Mo. 300 ; Jones v. Brinker, 20 Mo. 87; State, use of, etc., v. Rowland, 23 Mo. 98.) II. The judgment of a court of competent jurisdiction can be impeached for fraud only.

<p>1. Equity — Lands, sale of — Specific perfm'mance, discretimi of court in enforcing. — Whether a decree for specific performance shall be awarded in any particular case, is always a matter resting in the sound and reasonable discretion of the court, and it is held to be a reasonable exercise of this power to deny a decree when its allowance would be harsh or oppressive in its operation on either party.</p> <p>2. Contracts, specific enforcement of — Must be precise, etc. — Contracts sought to be specifically enforced must not only be proved in a general way, but their terms must be so precise and exact that neither party could reasonably misunderstand them, and those terms must be satisfactorily established by the evidence.</p>

<p>1. Insurance — Action on policy — Request to exhibit boohs, etc. — Refusal — Pleadings as to.— In an action on an insurance policy, the condition contained in the policy, that the insured, if requested, should exhibit to the insurer, upon adjustment of loss, his boohs of account, invoices, etc., is not included in a general allegation by plaintiff of performance of conditions precedent to a right of recovery. Such condition can only be brought into the record by defendant; and if he does not tender an issue upon it, it is outside of the case. Defendant’s answer having alleged demand for the books of account, etc., and refusal or neglect to exhibit them, plaintiff should deny the one or the other, or give some excuse for not complying with the demand. In such case plaintiff could not introduce evidence showing waiver by defendant of the production of books, etc., unless the waiver were pleaded in the replication.</p> <p>2. Practice, civil — Instructions—■Term “gross,” when should he used in.— An instruction using the term “gross” should not be given without some explanation of its import, especially without some testimony upon which to found it.</p>

<p>1. ’Evidence — Certificate of deposit — Manual delivery, effect of — A. deposited a certain fund in bank, and, as evidence of Ms title, took a certificate of deposit payable to bis own order. His title thus acquired must be presumed to continue until a divestment of it is shown, and a mere manual delivery of the certificate to B., without indorsement, and unaccompanied with evidence of a consideration paid, would not pass the title as against A.</p> <p>2. Practice, civil — Trial—Instructions neither given nor refused, effect of.— An instruction was asked by defendant, at the conclusion of plaintiff’s case, to the effect that plaintiff was not entitled to recover on the proofs. The court took no action on the instruction, but the trial proceeded, and defendant put in his evidence: held, that the instruction was practically refused.</p>

Louis Circuit Court. City of St. Louis. The city was not liable on the facts in evidence, and the court should so have instructed the jury. (Ang. & Ames on Corp., § 388, 8th ed.; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479 ; 7 Cush. 385, 388 ; Tweed v. Panama R.R. Co., 17 N. Y. 362; Thayer v. Boston, 19 Pick. 516-17; Dozier v. German, 30 Mo. 220.) The St. Louis Railroad Company. I. The railroad company was liable for the acts of Settle.

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

<p>1. Mechanics’ lien, action on — Continuous delivery — Statutory limitation.— In suit on a mechanics’ lien, the petition alleged that between certain dates plaintiffs delivered divers material to defendants. The' first delivery was more than six months anterior to the filing of the lien: held, .that a fair construction of this averment was that the sales and deliveries were continuous between the dates mentioned, and that the whole account was brought within the statutory limit of six months. ( Gen. Stat. 1865, ch. 195, | 6.)</p>

Louis Circuit Court.. This suit was brought on a note made by one Hugh Davis to tbe order of respondent, and the defendant wrote his name on the back of the note, of which he was neither payee nor indorsee. While the appellant is prima fade a co-maker, it is competent to show by parol evidence that the signature was affixed only as indorser.

Louis Circuit Court. Tbe contract, was assignable. (North v. Turner, 9 Serg. & Rawle, 248; More v. Mazzini, 32 Cal. 92; Hay v. Smith, 49 Barb. 360 ; Merrill v. Grinnell, 30 N. Y. 594 ; Jorden v. Gillen, 44 N. H. 424.) I. The contract was executory, and could not legally be assigned to appellants.

<p>1. Insurance companies — Motion for judgment against stockholders — President, purchase of judgments by. — In case of motion against the president of an insolvent insurance company, as stockholder therein, for the amount of an unsatisfied judgment against the company, he will riot he allowed to offset the face of a judgment against the company, purchased hy him while president, on speculation, but only the sum actually paid by him for the same. In such case the company’s interests and his were identical. Public policy and morality alike forbid the chief managing officer of a company in such a manner to speculate for his private gain.</p>

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

<p>Jiprpeal from, Second District Court. '</p> <p>cited 19 Mo. 642 ; 20 Mo. 276; 21 Mo. 437, 443; 31 Mo. 502, 532; 24 Mo. 524; 33 Mo. 577 ; 37 Mo. 338 ; 33 Mo. 405 ; 30 Mo. 620 ; 8 Mo. 234, 656; 14 Mo. 367; 26 Mo. 122; 25 Mo. 415; 9 Mo. 351; 18 Mo. 103, 106; 31 Mo. 257 ; Collins v. Hough, 26 Mo. 152 ; 30 Mo. 357 ; Berghoff v. Heckwolf, 26 Mo. 514.</p>

<p> Jlppeal from Sixth District Court. </p> <p>cited White River Bank v. Downer, 29 Verm. 332'; Newhall v. Provost, 6 Cal. 85"; Reynolds v. Davis, 5 Sandf. 267; Green v. Clark, 13 Barb. 57; Jackson v. Ashton, 10 Pet. 480 ; Chambers’ Adm’r v. Smith’s Adm’r, 30 Mo. 156 ; Kitchen v. Reinsky, 42 Mo. 427.</p> <p>cited Corby’s Assignor v. Burns et al., 36 Mo. 194; Blanton v. Jamison, 8 Mo. 52; Dobbins v. Thompson, 4 Mo. 118 ; Waddingham v. City of St. Louis, 14 Mo. 190-4; Hickman v. Barnes, 1 Mo. 158 ; Stewart et al. v. Stringer et al., 41 Mo. 400 ; 9 Mo. 437 ; 30 Mo. 156 ;°4 Mo. 18 ; id. 626 ; 9 Mo. 437 ; 41 Mo. 400.</p>

Louis Circuit Court. I. The appeal was not taken in time, and is a nullity. (Ber-necker v. Miller, 37 Mo. 498.) II. An appellate court can not get jurisdiction by appearance or consent. ( Latham v. Edgerton, 9 Cow. 227 ; Ex parte Shethar, 4 Cow. 80, 82, 540 ; Gibson v. Lynch, 1 Murphy, N. C., 495.) III. An appeal allowed by a court below, when court has no authority to allow it, is a nullity, and the original judgment remains in full force.

Erro? to Second District Court. I. The first and second instructions given for plaintiff were warranted by the evidence, and were proper.

Louis Circuit Court. This was a suit to enforce the specific performance of a bond to convey certain real estate. The facts sufficiently appear in the opinioh of the court, and in Dover v. Kennedy, 44 Mo. 145, and 38 Mo. 469. In equity, time is not of the essence of the contract; and equity will relieve against a non-compliance with the terms as to time, where it would be inequitable for a party to take advantage of the forfeiture.

Louis Circuit Court. The present revenue law (G-en. Stat. 1865, ch. 12, p. 98 et seq.) does not provide or contemplate that the assessments to be made thereunder shall operate as liens by relation, but only from the time when they shall actually be made. (Gen. Stat. 1865, ch. 12, §§ 9, 10, 13, pp. 99, 100; id. § 67, p. 108; Long v. Moler, 5 Ohio St. 272; Hutchins v. Moody, 30 Yerm. 657; Jackson v. Sassaman, 29 Penn.

Louis Circuit Court. I. A decree is final where it decides and disposes of the whole merits of the points in issue, although it directs a reference. (1 Barb. Ch. 330 ; 2 Daniels’ Ch. 1001, 1010; 1 Cow. 691.) II. A judgment, if erroneous, may be set aside during the term; but after the term no alteration of the judgment is allowable, except such as is authorized by statute of jeofails and amendments. (4 Mo. 228, 315 ; 7 Mo. 320.) III.

<p>1. Practice, civil — Trial — Instructions — Evidence. — In trials at law, the Supreme Court will not weigh conflicting evidence.</p> <p>2. Practice, civil — Trial—Instructions — Singling out specific acts, etc., not permissible. — The practice of singling out in instructions specific acts, and asking the court to say, as a matter of law, that if those acts were established there could be no recovery, is not permissible.</p>

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

<p> Appeal from St. Louis Circuit Court. </p> <p>For statement of the case, see Connoyer et al. v. Washington University, 36 Mo. 481.</p> <p>cited Hogan v. Page, 2 Wall., U. S., 605 ; Allen v. Moss, 27 Mo. 354; Allen v. King et at., 35 Mo. 216 ; Hogan v. Page, 22 Mo. 55 ; Mercicr v. Letcher, 22 Mo. 66.</p> <p>cited Bissell v. Penrose, 8 How. 317. Here Rudolph Tillier presented the claim before the first board, and exhibited before the board as evidence of his title an unacknowledged deed from Benito Vasquez to him. The court says that there was no claim on the part of Vasquez, but the claim was by Tillier, both by producing concession, and with it the written evidence of his claim, as required by the act, and decide that the title was confirmed to Tillier, the assignee, as claimant, under the act of 1836. (Boon v. Moore, 14 Mo. 120; Connoyer v. Washington University, 36 Mo. 481; Hogan v. Page, 2 Wall. 605; 22 Mo. 55; 32 Mo. 68.)</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>The secretary bad no power in the matter until after approval by tbe committee. (Plabto v. Mercb. & Man. Ins. Co., 88 Mo. 255; Mound City Mut. Ins. Co. v. Curran, 42 Mo. 374; Ang. & Ames on Corp. 291; 11 C. & B. 926-7; 2 Crancb, 127 ; 5 McLean, 194; 31 Eng. Law & Eq. 57; 4 Wheat. 636 ; 4 Pet. 152; 9 How. 172.) In case of special hazard, the majority of the directors, the president and secretary, had no right to issue a policy until the committee of three had examined and approved, in accordance with by-laws. (13 Pet. 519; 14 Pet. 122 ; 1 Sumner, 46; 1 Blackst. C. C. 425.)</p> <p>I. The directors are the managing agents of the company, and their action is, prima facie, binding upon the members.</p> <p>n. JEven if the by-laws provide that certain property shall not be insured, and the officers of the company issue a policy insuring such property, with knowledge of the facts, the company will be held to have waived the by-law, and neither party to the contract can interpose the by-law as a defense. By-laws are passed for the convenience of the company. They are not restrictive of its power. (U. M. Ins. Co. v. Keyser, 32 N. H. 313; Campbell v. M. & E. Ins. Co., 37 N. H. 35; 12 Iowa, 134; 5 Denio, 156; A.ng. on Ins. § 242.)</p> <p>HI. In the absence of fraudulent concealment of facts, the issuing of the policy is conclusive upon the plaintiff. The doctrine of estoppel in pais clearly applies. (Combs v. Hannibal Ins. Co., 43 Mo. 151; Eranklin v. Altantic Ins. Co., 42 Mo. 460, 462 ; Horwitz v. Equitable Ins. Co., 40 Mo. 557 ; Rowley v. Empire Ins. Co., 36 N. Y. 550.)</p>

Louis Circuit Court. 'Tbe 'mere delivery of the receipts gave the respondent no title to the property covered by them, and no claim upon the fund realized from its sale, there being no indorsement or appropriate written words of assignment. (Conant v. Atlantic Ins. Co., 1 Pet. 386, 445; Merch. & Mech. Bank of Chicago v. Hewitt, 3 Iowa, 93, 103 ; Law v. Hatcher, 4 Blackf. 364-6; Conrad v. Atlantic Ins.

Louis Circuit Court. I. Before the instruction in question could be given, it must appear that the notes were taken in satisfaction of the account. (McMurray v. Taylor, 30 Mo. 263.) II. Only an express agreement and understanding between the parties will make a promissory note payment of an open account and extinguish the original debt; and the giving of a receipt in full for the original debt is not evidence of such agreement. (Colev.

<p>1. Practice, criminal — Costs, exemption from payment of — Law relating to, in United States. — The only feature of the English law relating to the exemption of poor persons from liability to pay costs, adopted in the criminal practice of the United States, is'the obligation of the court to assign counsel for such accused persons as are unable to emplojr any.</p> <p>2. Practice, criminal — Appeal—Transcript—Clerk must make out transcript, although costs are unpaid. — The duty (under Con. Stat. 1805, ch. 215, ?¿ 10) of sending up a proper transcript, upon supersedeas in a criminal prosecution, is imperative, and is personal to the clerk, without the application of the accused; and for the performance of this duty the law imposes upon no one the obligation of advancing the fees.</p>

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

<p>1. Partnership — Weight of testimony not passed on by Supreme Court. — In suit to recover a moiety of partnership assets, this court will not pass on the question of the weight of testimony.</p>

Louis Circuit Court. I. The recitals in the decree, being upon a matter collateral and incidental to the issues, are not conclusive. (15 N. H. 17 ; Minor v. Walter, 17 Mass. 237; 2 Am. Lead. Cas. 792-813.) N. A decree is not constructive notice to any persons who are' not parties to it. (1 Sto. Eq., §§ 405-407.) NI.

Louis Circuit Court. I. Respondent is not entitled to equitable relief by a decree for specific performance. (81 N. Y. 91; McLean v. White, 5 Maine, 178.) H. Without the clause authorizing a conveyance in fee, the deed would undoubtedly create an estate in remainder in the heirs of the bodies of John F. and Caroline Hume, who would take as purchasers as well at common law as under our statute. The rule in Shelley’s case would not apply, even if the statute were not in force.

Motion to correct judgment. cited 39 Mo. 573 ; State v. Clark, 18 Mo. 432; 10 Mo. 359; Commonwealth v. Wistar, 3 Pet. 431; Graham v. Lynn, 4 B. Monr. 18; United States v. McKnight, 1 Cranch, 84. The record of this court was closed here by a final order of this court in 1867, and the court has no power to touch it. (10 Mo. 359 ; 18 Mo. 432 ; 19 Mo. 127.) The court has changed ; there is only one judge now on the bench who made the order.

Louis Circuit Court. The material facts in the case are sufficiently stated in the ODinion of the court. See also same case, 88 Mo. 281. I. Plaintiff and defendants hold to each other the relation of co-sureties for John J. Anderson & Co., and, therefore, the plaintiff was only entitled to recover of defendants one-half of the amount paid by plaintiff upon the bill sued on. (Bering v. Earl of Winchelsea, 1 White & T. Lead. Cas. Eq. 60 ; 1 Cox, 318 ; Lead. Cas.

I. No property right or power can be derived from a violation of the laws of the church by any party. (Inne, 271, 376, 378, 380, 385, 399; The Scottish Seceders, 1 Dows, 16; Muller v. Gable, 2 Denio, 492; The People v. Steele, 2 Barb. 397; Kniskern v. The Lutheran Church of St. John & St. Peter et al., 1 Sandf. Ch. 439.) II.

I. The bonds sued on are not penal. (2 Bouv. Law Die. 323, Penalty; Gen. Stat. 1865, p. 604, § 1 et seq.) They are alternative obligations for the direct payment of money. The whole amount of the bond is entirely paid. The bond is in no event to become void, either upon the payment or non-payment of the coupon interest.

<p>1. Damages— trespass — Fence, sufficiency of. — -The fence inclosing the land of A. was built within the boundary line of the land of B. In trespass for damages done to A.’s crop by cattle of B.: held, that the land was inclosed as required bylaw (Gen. Stat. 1865, ch. 80, %% 1, 2) as a condition to recovery. If the fence was of the required character and dimensions, and was treated and used as a partition fence that was sufficient without regard to its ownership.</p> <p>2. Damages — Trespass — Fence — Proof— Common and statute law.— In an action of trespass for breaking through plaintiffs fence, he may sue for single damages at common larv. He must comply with the statute (Gen. Stat. 1865, ch. 80) by showing, as a condition to his right of recovery, that his field was inclosed by such a fence as the law defines. But the mode of proof is not modified or affected by the statute.</p>

Sale of land in partition unquestionably divests the inchoate dower of the wife. (Lee v. Lindell, 22 Mo. 202; Jackson v. Edwards, 22 Wend. 498.) If the sale takes place after the husband’s death, she would have the same Interest in the money as though it were received by her husband while living. Her interest in the money would attach at his death, just as that right or interest would attach to the parcel of land were it assigned him in the partition.

I. The contract between the parties to the instrument for the depot ground and reservoir was a valid contract, and has not been complied with. (Sess. Acts 1849, p. 219, §§ 7, 8, 10;. Sess. Acts 1851, p. 268, § 9; R. C. 1855, § 1, subd. 4, §§ 13-22, 27, 29, subds. 2, 3.) XI. The Pacific railroad had- authority to locate its stations where it deemed best for itself, and to contract for such location. Railroads are private corporations for private profit.

I. There is no proof that Brown was a passenger at the time he was killed, or that he was traveling on any conveyance of the kind described in the petition. EE. The question of vexatious refusal to pay, is a question of fact; and it was error in the court to instruct the jury that they had power to allow the plaintiff damages not exceeding ten per cent., in the absence of proof that the refusal to pay was vexatious.

<p> jPetition for mandamus. </p>

<p>1. State ex rel. Wallendorf v. Cole County Court, ante, p. 228, affirmed.</p>

<p>1. Judgment affirmed.</p>

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

I. This expenditure by Bruns was a settlement on his wife, and he being at the time in debt, the settlement was a nullity. (Reader. Livingston, 5 Johns. Ch. 504; Sto. Eq. 355, 357, 359, 368 ; How & Wallace v. Waysman et al., 12 Mo. 171-4 ; Beach & Eddy v. Baldwin, 14 Mo. 597-8 ; Pawley v. Yogel, 42 Mo. 303 ; Tyler on Married Women, etc., 641; Mcllvaine v. Smith, 42 Mo. 45, 58, 59.) II.

<p>1. Practice, civil — Instructions — Evidence not weighed hy Supreme Court.— In trials at law, this court will not attempt to weigh evidence. But when there is a complete failure of evidence this court will intervene to prevent injustice being done.</p> <p>2. Practice, civil — Bill of exceptions should state that it contains all the evidence.— A bill of exceptions is defective in not stating that it contains all the evidence which was given in the cause.</p>

I. In the absence of a special contract, the carrier is only liable for the extent of his oavii route, and for safe storage and delivery to the next carrier. (1 Redf. on Raifw. 282, 283 ; -Van Santvoord y. St.- John, 6 Hill, 158 ; Hood v. N. Y. & N. H. R.R. 22 Conn. 1, 502; 23 Yerm. 186; Nutting v. Conn. R.R., 1 Gray, 502 ; 25 Wend. 66 ; 24 Conn. 468.) II.

Petition for mandamus. I. The finding of the County Court is conclusive in this ease, and can not he collaterally inquired into. The presumption is that such finding was correct, and that the bonds were legally issued, and^the court is estopped by their own recitals o£ record from controverting or impeaching the legality, of the election. (21 How; 589; 38 Mo. 440.). II. The railroad company was an innocent purchaser. (Sess.

<p>1. Fire insurance — Policy — Conditions — Meaning of words “■partial ” and “ total” modified by understanding of ’parties. — ’Attached to afire insurance policy were the following conditions: “ 2. In case of total loss the company is not liable to pay more than two.thirds of the actual value of the building at the time of the loss, nor more than one-half the value of the personal property,” and “3. Partial losses are paid in full, not exceeding the amount insured, provided the insured has on hand the lowest amount stated in the application.” The amount of goods to be kept on hand, was stated in the application to bo of the ^alue of $3,000. The loss of the insured was $3,859, property of the value of some seventy dollars having been saved, making the total value of the stock on hand at the time of the loss, $3,929. Seld, that the words “at the time of the loss,” mentioned in the second clause, wore applicable not only to the real property but the merchandise on hand at that particular time, and that within the true meaning of the two clauses taken together the loss was not partial so as to entitle the insured to recover the full amount of his insurance. The meaning of the words “partial” and “total” should be taken subject to such modification as may be noce'ssary to an ascertainment of the actual understanding and intention of the parties.</p>

I. If an action is based upon a statute, public or private, there must be reference thereto in the petition. (Gren. Stat. 1865, p. 661, § 41; 1 Chit. Plead., 872 ; 2 Chit.

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

I. The deposition of Isaac Parsons ought to have been admitted. The same subject-matter was in dispute, and there was a privity in the parties. (1 Greenl. Ev., §§ 553, 554; Cabanne et al. v. Walker,' 31 Mo. 274 ; Jaccard et al. v. Anderson, 37 Mo. 91.) II. The deposition can not be excluded under the statute. (2 Wagn.

<p>1. Administrator ■ — •Bond of — Suit on — Allegations — Breaches — Verdict, arrest of. — In a suit on an administrator’s bond, where the petitioner set out several distinct breaches, a verdict for an entire and gross sum is erroneous, and furnishes a sufficient ground for arrest of judgment, on motion.</p> <p>2. Administrator de bonis non ■ — ■ Must sue for the assets — Creditors can not sue for them. — "When an administrator dies, the administrator de bonis non is the proper person to sue for the assets belonging to the estate, and a creditor of the estate will not be permitted to sue for his entire debt on the bond of the deceased administrator. Such a course would lead to confusion, and destroy and practically annul the statutory provisions concerning priorities and classifications.</p>

<p> Error to First District Court. </p> <p>I. McNees must show himself in a condition to demand a reconveyance of the property according to the terms of the agreement within a reasonable time. Five years is not within a reasonable time. (4 Seld. 219 ; McNew v. Booth, 42 Mo. 189 ; 8 Paige, 257; 14 Pick. 467; 4 Denio, 495; 1 Littell, 190-1; Mackelreth v. Fox, 1 Lead. Cas. in Eq. 150, and notes; 6 Hill, 219.)</p> <p>II. A mortgagee may become the purchaser of the equity of redemption, with the assent of the mortgagor, at his own sale. The pleadings admit that Swaney purchased through Hayden, with the express assent of McNees and with his full knowledge and agreement thereto. The sale can not be set aside on that account. (Hendricks v. Robinson, 2 Johns. Ch. 283, 311 ; McNair v. Biddle, 8 Mo. 257 ; 7 Iowa, 60 ; 4 Blackf. 339.)</p> <p>IH. McNees having been present at the sale, instrumental in causing it to be made, assenting to the same, standing by and -permitting the property to be improved and grow in value, is now estopped from denying its regularity. (5 Ala. 427; 2 Law Reg., new series, 730.)</p> <p>I. The interest of McNees’ in the mortgaged property before the sale was an equity of redemption, and was not foreclosed by it. The sale was voidable, and properly set aside. The purchase by the mortgagee was fraudulent and void. (Thornton v. Irwin et al., 43 Mo. 153 ; Fox v. Macreath, 2 Bro. C. C. 400 ; Davore v. Fanning, 2t Johns. Ch. 252; 1 Lead. Cas. in Eq. 92.)</p> <p>II. The agreement between McNees and Swaney was at best an agreement to clog the equity of redemption made between mortgagor and mortgagee, and, as such, is void; and if the sale stands upon that agreement, the sale itself is void. (Perkins v. Drye, 3 Dana, 170; Clark v. Henry, 2 Conn. 327; Wharf v. Howell and Wife, 5 Binn. 399; Johnston v. Gray, 16 Serg. & R. 365; Jacques v. Miles, 7 Wend. 261.)</p> <p>HI. The notice of the sale was insufficient, and the sale liable to be set aside for that cause alone. (Beattie v. Butler, 21 Mo. 313.)</p>

<p>1. Damages — Sale of land — Easement — Right of way — Clause of deed in restraint of alienation, etc.— A. sold B. a certain tract of land lying within his own, hut communicating with a public highway through a gate in the fence inclosing the land of A. The deed of purchase declared that the fence was “not to be disturbed without the permission” of A. A mere verbal statement by A. to B. of an intention to open a street from the land sold to the highway, without proof of any inducement to such statement, would not render A. liable to B. in damages, for failure to open the street. The clause in the deed was in no way a restraint of alienation, and was a valid provision</p>

Petition for writ of prohibition. I. The office of prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial power. (3 Blackst. Com. 112, 113 ; Thomas v. Mead, 36 Mo. 232 ; State ex rel. West et al. v. Clerk County Court et al., 41 Mo. 44 ; Vitt v. Owens et al., 42 Mo. 512.) II.

<p>1. Land, sale of — Part performance — Escrow—Delivery of deed. — A. made a verbal contract witli B. for the purchase of certain land. Part of the purchase money was paid at the time. The remainder was to he paid in two weeks, when a warrantee deed for the property was to bo given. The deed in the meantime was deposited with a third party as an escrow. At the time named for completing the contract, A. refused to pay the remainder, and having- purchased of C., who held adversely to B., went into possession under him. Held, that the facts showed no such part performance as to take the- case out of the statute of frauds. Such a deposit of the deed could not be made to operate as a delivery. At law the statute would be a complete bar to an action to recover the money due, even if the contract were so performed as to make it a fraud to seek to evade it.</p>

<p> Error to First District Court. </p> <p>The petition should allege that the property upon which the lien was sought to be enforced, was situated in Kaw township. The Kansas City Court of Common Pleas is a court of inferior and limited jurisdiction, and could take nothing by implication, and nothing will be presumed in favor of its jurisdiction. (Bloom v. Burdick, 1 Hill, 139 ; Bridge et al. v. Bracken, 3 Chand. 75 ; Pelton v. The Town of Blooming Grove, 3 Wis. 310 ; Simmons v. De Barre,.8 Abb. Pr. 269; 1 Johns. Cas. 2; Walker v. Turner, 9 Wheat. 549, Curtis’ ed., vol. 6, p. 178; McCormick v. Sullivant, 10 Wheat. 192 ; Statey v. Bank of America, 4 Dallas, 111; Kemp’s lessee v. Kennedy, 5 Cranch, 185 ; Schu-lenberg et al. v. Baseom et al., 38 Mo. 188 ; MeCune et al. v. Hull et al., 20 Mo. 596 ; Patrick el al. v. Abeles, 27 Mo. 184.)</p> <p>I. The order of publication was properly made by the clerk— it being his duty to issue such order at any time during vacation, upon the filing of the proper affidavit. (Gen. Stat. 1865, ch. 167, §§ 13-15; Pomeroy et al. v. Butts et al., 31 Mo. 419.)</p> <p>II. Even if this were not true, the appearance of Leland in in court, by attorney, cured and waived any defect or irregularity attending the order of notice or its publication. (Buxton et al. v. Arnold et al., 9 How. 455; Powers v. Browder’s Adm’rs, 18 Mo. 154; Davis v. Wood, 7 Mo. 162.)</p> <p>HI. The Kansas City Court of Common Pleas had jurisdiction over the subject-matter of the suit (Sess. Acts 1858-9, pp. 353-4, § 5, p. 355, § 15), and the court will take judicial knowledge of the fact that Kansas City is in Kaw township, Jackson county,.State of Missouri. (Price v. Page, 24 Mo. 65 ; State v. Warrell, 25 Mo. 205, 212.)</p>

Petition for mandamus. I. Notwithstanding an action on the case may lie for neglect of duty, the respondent may be compelled by mandamus to exercise bis functions, and perform his duties according to law. (McCullough v. The Mayor of Brooklyn, 23 Wend. 458 ; The People v. Mead, 24 N. Y. 120 ; Ex parte Lynch, 2 Hill, 47 ; Strong, petitioner, 20.

I. When the purchase money has been paid and the vendee is in possession he can not rescind and recover back the purchase money, even though the vendor make default to convey. His only remedy in such cases is by petition for specific performance. (1 Hilliard on Vendors, 299, § 18; Barickman v. Kuykendall, 6 Blackf. 21; Secrest v Jones, 21 Texas, 121.) II. Nor can the contract be rescinded by the vendee without restoring possession to the vendor.

A witness can not testify to the handwriting of a party from mere comparison with other writing proved to he genuine. (2 Phillips on Ev. 609-615, and notes; 4 Blackst. 358 ; The People v. Spooner, 1 Denio, 343; Jackson v. Phillips, 9 Cow. 112; Wilson v. Kirkland, 5 Hill, 182; Clark v. Wyatt, 15 Ind. 271; Jumpertz v. People, 21 Ill. 375; Bishop v. State, 30 Ala. 34; McNair v. Commonwealth, 26 Penn.

<p> Error to Third District Court. </p> <p>Tbe grantees and purchasers from the lessor have now in this State the same remedy for possession by unlawful detainer that the lessor might have had. (Wagn. Stat. 648, §§ 36, 37, 40; Gen. Stat. 1865, p. 733, §§ 36-7 ; Ferguson v. Brook, 27 Mo. 249 ; Young v. Smith, 28 Mo. 65; Pentz v. Ivuester, 41 Mo. 447 ;. Fanning v. Voelker, 40 Mo. 129; Wood v. Dalton, 26 Mo. 581.)</p>

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

<p>1. State ex rel. Collins et al. v. Dulle et al., ante, p. 269, affirmed.</p>

I. .The exclusion of the first and the last days clearly means that the party shall have four months within which to file his lien, besides these days, and without counting either one of them. (Carothers v. Wheeler, 1 Oregon, 194.) To have been in time, the lien should have been filed on the 7th of March. (Sedgw. Stat. & Const. Law, 420 ; Broome v. Wellington, 1 Sandf. 664; ex parte Dodge, 7 Cow. 147; 2 Hill, 876.)

<p>1. Attachment — Order of publication, may be issued on affidavit at time of issuing writ. — In attachment suits courts have power to award orders of publication, on affidavit at the same term during which the suit was commenced. (E. 0. 1855, ch. 128, § 18; Wagn. Stat. 1008, § 13.)</p>

Jippeal from Third District Court. I. The recitals in a deed executed by a sheriff upon a sale under a distress warrant are not prima facie or presumptive evidence of the facts therein stated, as they are in a deed made by virtue of an execution upon a judgment. The act concerning executions does not apply to sales made by virtue of distress warrants. II.

Tbe plaintiff having shown that the fire originated from sparks escaping from defendant’s engine, the burden of proof was on the defendant to show that the engine from which the sparks escaped -was, at the time, equipped with the most improved mechanical contrivances employed to prevent the escape of fire. (Ill. Cent. R.R. v. Mills, 42 Ill. 410 ; McClelland v. Ill. Cent. R.R., 42 Ill. 354.

<p>1. Practice, civil — Jury, separation of, will not invalidate a verdict, when.— It is the well-settled doctrine in this State that the separation of a jury in a criminal case will not invalidate a verdict or furnish grounds for a new trial, there being no ground to suspect that they have been tampered with or that they have acted improperly.</p>

<p>1. Practice, criminal— Convictions ■ — Sentences — Terms', of imprisonment — Construction of statute.— On tlie same day a prisoner was convicted and sentenced under two indictments. The sentences were pronounced after the verdicts in hoth cases had been rendered. The terms of imprisonment were, respectively, three and two years, hut the day when they were to begin was not specified. Held, that the statute ("Wagn. Stat. 613, $ 9), without the aid of such specification, makes the second term commence on the expiration of the first, and habeas corpus for his discharge at the end of the first term, on the ground that the second and shorter term had already elapsed, will be denied.</p>

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

Error to First District Court, The sale should have been made at Pleasant Hill, where the court out of which the execution issued was held, and during the session thereof. (Blanchard v. Held: and during the session thereof. (Blanchard v. Baker, 29 Mo. 441; Sess. Acts 1851, p. 203 ; Sess. Acts 1867, p. 85.)

Petition for ivrit of prohibition. I. Mandamus will not lie to compel an inferior tribunal to give a particular judgment, or to reverse a decision where it has once acted. (State ex rel. Adamson v. Lafayette County Court, 41 Mo. 224-5; ex parte Jesse Hoyt, 13 Pet., Sup. 0.

<p>1. Election— Contest — Count of votes, final — Term of notice — Mode of contest in certain ease by quo warranto. — "Within eight days after an election, the county clerk, under the statute touching elections (Wagn. Stat. 569, $ 25), proceeded to cast up the votes, and gave a certificate of election to A. Afterward, B. giving notice that he would contest the election, he made a second count and gave a certificate to B. Within twenty days after the second count, but more than twenty days after the first, A. also gave-notice that he would contest the election. Held, 1st, that the duty of the clerk was simply ministerial, and when finished was wholly performed, and that the second count of votes and award of certificates was invalid and null; a fortiori, if made after the eight days had expired, and the matter had been removed by notice of contest to the Circuit Court; 2d, that the requirements of the statute concerning twenty days’ notice (Wagn. Stat. 573,. g 52) was imperative, and that the notice was insufficient, not having been given within twenty days from the first count; 3d, that the proper remedy in such case is by quo war-ranto in the Circuit Court.</p>

<p>1. Statute of frauds — Contracts'not to be per formed in one year, executed by one party, statute can not be invoked by the other.— The purchaser of a carding machine, by a verbal agreement with the vendor, bound himself not to use any other carding machine in the vicinity of the one sold, for a period of four years. In suit by the vendor for breach of the contract, held, that although the contract could not be wholly performed within one year, yet having been completely executed by the plaintiff, defendant could not interpose the statute of frauds. ^</p>

<p>1. County Court — Johnson county — Judges—Term of office — Allotment — Construction of statute. — Under the act of March 19, 1866 (Sess. Acts 1865-6, p. 82, § 1), A. was, in 1866, elected one of two justices of the County Court of Johnson, and "by allotment under section 3, chapter 137, Gen. Stat. 1865, his term of office was fixed at two years. But, held, that the provision of the section last named, in regard to allotment, applied only to County Courts composed of three persons, and that, under section 2 of the same chapter, his term of office continued for six years.</p>

<p>1. Deeds — Misdescription — Meaning of word “ on."— A deed described certain land as lying “on the Louisville & Nashville railroad,” without giving the description of it by boundaries. In suit to set aside the conveyance as bad for misdescription, the proof showed that the land was near to, but not bordering upon, the road. Held, that the word “ on,” as denoting contiguity or neighborhood, may mean as well “near to,” as “at;” and in this sense the land was not misdescribed.</p>

<p>L Equity — Injunction to stay judgment — What diligence in defending original suit must be shown. — A., who being personally and duly served with process, permits judgment to go against him by default, can not enjoin its execution on the ground that he was kept away from attendance at court by threats of bodily harm. Such allegation shows no use of reasonable diligence in his endeavors to defend. Non constat but he might have defended through counsel, without his personal attendance.</p>

Petition for mandamus. I. The two offices of circuit judge and State representative are made incompatible by our constitution. (Const., art. 4, § 11.) II. These offices would be incompatible at common law. (Bryan v. Cattell, 15 Iowa, 550 ; Milward v. Thatcher, 2 T. R. 81; 17 Howell’s State Trials, 846, note ; Rex v. Tizzard, 9 B. & C. 418; Rex v. Geyer, 1 Burr. 245; Rex v. Lawrence, 2 Chit. 271; Rex v. Sir Wm.

<p>1. Courts, justices’ — Items of account must show the amount sued for. — -In an action before a justice of the peace, the account sued on and the specific items claimed, and not the amount named in the prayer for judgment, must be taken as showing the “debt or balance” sued for.</p> <p>2. Agent — Testimony of, binding on principal, when — Practice, civil — Actions ex contractu. — In a suit against a sheriff for pasturage of certain cattle seized under execution, a promise to pay the amount claimed, by one who acted as his deputy in the transaction of the business, is binding on the sheriff. In such case, if the cattle remained in the plaintiff’s pasture by his permission, he would be entitled to a reasonable compensation, even though they were originally placed there against his consent. Plaintiff, on such a state of facts, could properly recover in an action ex contractu.</p>

The verdict of a jury in tlie matter of opening roads is final and conclusive as to the matter of damages. No appeal lies therefrom. (Emory S. Foster et al. v. Dunklin, 44 Mo. 216.) The jurisdiction of the Circuit Court in such cases is confined solely to an examination of the record, and can reverse only for error apparent thereon. The Legislature have made no provision for an appeal in such case as the one at bar.

<p> Jtppeal from Third District Court. </p> <p>I. A partial payment by one joint obligor or partner, after dissolution of the partnership, will take a debt, not yet barred, out of the statute of limitations as to all. (Whitcomb v. Whitney, 2 Doug. 652 ; Wood v. Braddick, 1 Taunt. 104 ; Jackson v. Fair-bank, 2 H. Bl. 340 ; Goddard v. Ingram, 3 Ad. & El. 839 ; Smith v. Ludlow, 6 Johns. 267 ; Roosevelt v. Marks, 6 Johns. Ch. 266; Shelton v. Cook, 3 Munf. 191; Simpson v. Morrison, 2 Bay, 533 ; Kauffman v. Fisher, 3 Grant, 802 ; Carroll v. Gayarre, 15 La. An. 671; Hunt v. Bridgham, 2 Pick. 581; Sigourney v. Drury, 14 Pick. 387; Fisher v. Tucker, 1 McCord’s CL 190 ; Patterson v. Choate, 7 Wend. 441; Pike v.Warren, 14 Maine, 390; Dinsmore y. Dinsmore, 21 Maine, 433; Shepley v. Waterhouse, 22 Maine, 497 ; White v. Hale, 3 Pick. 291; Getchell v. ITeald, 7 Greene, 26; Bound v. Lathrop, 4 Conn. 336; Coit v. Tracy, 8 Conn. 268; Austin v. Bostwick, 9 Conn. 496 ; Craig v. Calla-way County Court, 12 Mo. 94; Lawrence County v. Dunkle, 35 Mo. 895; Smith’s Adm’r v. Irwin, 37 Mo. 169; Burr v. Williams, 20 Ark. 171; Hicks v. Lusk, 19 Ark. 692 ; Tjllinghast v. Norse, 14 Ga. 641; Cox y. Bailey, 9 Ga. 467; Colburn v. Averill, 30 Maine, 425; Tanner v. Ross, 1 R. I. 88 ; Whitaker ■v. Rice, 9 Minn. 13 ; Corlies v. Fleming, 1 Yroom, 349 ; Patch v. King, 29 Maine, 448; Zent v. Hart, 8 Barr. 337; Davis v. Coleman, 7 Ired. 424.)</p> <p>II. In this case, the partial payment being made before the bar attached, and while each partner was liable and authorized to pay for all, it merely continued their liability, and did not create a new obligation. Hence, the statute would only begin to run from the time of such partial payment. (Craig v. Callaway County Court, 12 Mo. 94; Collyer on Part., § 430, and notes ; Story on Part., § 324, and notes; Carr’s Adm’r v. Iiurlburt’s Adm’x, 41 Mo. 264; Isley v. Dewett, 3 Mete. 439 A</p> <p>A partner, after dissolution, can not, by any act of his alone, bind his former co-partners so as to create any new liability against them, or extend or increase their responsibility. (3 Pars, on Cont. 79, § 4, and note; 1 Kernan, 176 ; 7 Yerger, 534.) The case of Lawrence County v. Kinlde, 35 Mo. 395, is not applicable to this case. The dissenting opinion of McBride, J., in Callaway County Court y. Craig, 12 Mo. 94, contains the true modern doctrine; and see 37 Mo. 169.</p>

I. Any collateral agreement between the parties to the suit,, which is not executed, is no defense to the notes sued on, and an acceptance of the performance of such agreement by plaintiff is-necessary to its existence.

If the evidence shows the defendant guilty of breaking plaintiff’s mill by carelessness or negligence, it need not show, in order to establish plaintiff’s right of recovery, that such breaking was willful.

I. The court having failed to assess the damages when the suit in replevin was dismissed, or to render judgment for the return of the property, the defendant in that action and the plaintiff in this was entitled to judgment on the bond for all damages sustained. (Berghoff v. Heckwolf, 26 Mo. 511; Reed v. Wilson. 13 Mo. 28; Smith v. Winston, 10 Mo. 299.) II. There is nothing on the face of the petition which shows that the justice did not have jurisdiction of the cause.

<p> Appeal from Fourth District Court. </p> <p>Plaintiffs made out a prima facie case of the loss or destruction of the original; and when this is the case, a copy or the record of the original may be read in evidence. (Gen. Stat. 1865, pp. 447-8, §§ 35-38 ; Taunton Bank v. Richardson, 5 Pick. 441; Minor v. Tillottson, 7 Pet. 99 ; Davis v. Spooner, 3 Pick. 284; Turnispeed v. Freeman, 2 McCord, 269 ; Ward v. Fuller, 15 Pick. 187; Southerin v. Mendum, 5 N. H. 428 ; Hewes v. Wiswell, 8 Greenl. 94; Scanlan v. Wright, 13 Pick. 523 ; Eaton v. Campbell, 7 Pick. 10 ; Hathaway v. Spooner, 9 Pick. 26 ; Poignard v. Smith, 8 Pick. 272; Taylor v. Riggs, 1 Pet. 591; Knox v. Silloway, 1 Fairf. 201; Burghard v. Turner, 12 Pick. 534 ; Kent v. Weld, 2 Fairf. 459 ; 7 N. H. 475 ; 7 Greenl. 181; 17 Wend. 338.)</p> <p>The record of the deed from Smith to Gaile was properly-excluded. The preliminary proof was insufficient. (Gen. Stat. 1865, ch. 109, §§ 35-38 ; Barton v. Murrain, 27 Mo. 235 Mariner v. Saunders, 5 Gilm. 113, 117; 1 Greenl. Ev., § 558 ; Jackson v. Hasbrouck, 12 Johns. 192 ; Dan v. Brown,. 4 Cow. 483.)</p>

The plaintiffs in error should have brought their action within ninety days from the first day of August, 1866, and, failing so to do, they lost their lien. (Gen. Stat. 1865, p. 883, § 4; 82 Mo. 334 ; Stocking et al. v. Hunt, 3 Denio, 274.) Statutes of limitation act exclusively upon the remedy. (Jackson v. Lam-phire, 3 Pet. 280 ; Rexford v. Knight, 11 N. Y. 308 ; Walte-mire v. Westman, 14 N. Y. 20; Strong v. Crowninshield, 4 Wheat. 122 ; Hawkins v. Goold, 11 N. Y. 281.)

The limitation in this case was ten, and not five, years. (1 Pars, on Cont. 471, note c, p. 85.) In the case of one surety paying the debt of the principal, or more than his aliquot part, a right of action accrues to him for contribution; and hence the statute of limitations begins to run against him at the time of such payment, and not until then.

<p>1 Practice, civil — Pleadings —Objections to petition — What can not be made by motion in amst. — An objection to a petition for misjoinder of counts, or a union of several causes in one count, if not made by demurrer or motion to strike out, will be deemed to have been waived (Wagn. Stat. 1015, § 10), and can not be raised by motion in arrest of judgment. (Hoagland v. Hann. •% St. Jo. K.R. Co., 39 Mo. 451, overruled.)</p>

Where a party claims beyond the true line, through mistake, lapse of time merely does not give the title.

The deed of the sheriff should have been excluded, not containing the recitals required by law. (36 Mo. 115 ; 35 Mo. 239 ; 37 Mo. 194.) The transcript of the judgment before the justice did not sustain the authority of the sheriff to sell. (Coonce v. Munday, 3 Mo. 265 ; 4 Mo. 116.) The issue and return of the execution could only be evidenced by the constable’s return, which was never made.

One wbo purchases land at a sheriff’s sale, supposing it to be that of the judgment debtor, pays the money, takes possession, and makes lasting improvements, and is afterwards dispossessed by the debtor, may recover back the amount of the purchase money, even when no fraud at the sale is imputed to the debtor. The doctrine of caveat emptor does not apply to the case at bar.

A judgment rendered against an infant defendant, who appeared' by attorney and without a guardian, is an error of fact, and tbe infant can avoid such judgment at any time, even after his majority, when it is attempted to be enforced against him, by pleading the fact of his infancy at the rendition of the judgment. ,(6 Cow. 50 ; 14 Johns. 416 ; 15 Johns. 533 ; Dewitt v, Post, .11 Johns. 458 ; 17 Mo. 441; Graham’s Prac. 746.) I. The judgment sued on was not void, but voidable.

I. The objection of plaintiff to the admission of the evidence of the defendant which tended to show a parol release of the contract read in evidence bj plaintiff, should have been sustained, because the contract was under seal, and the burden of the covenant could not be removed otherwise than by an instrument of equal solemnity with that creating it.

<p>1. Bills and notes, action on — Averments as to title — Pre-existing indebtedness — Manner of acquiring ownership — Allegation as to, immaterial. —In a suit on a promissory note, tlie petition alleged that the payer transferred the note to plaintiff “for a valuable consideration .to the payee in hand paid.” Held, that proof showing the note to have been sold plaintiff in satisfaction of a pre-existing debt, sufficiently sustained the averment of the petition in regard to title. Under such averment the only material fact to be established was that of ownership; and the manner of acquiring it, whether by purchase with cash or other property, or by a discharge of pre-existing indebtedness, is of no importance.</p> <p>2. Bills and notes, suits on — Pendency of attachment suit wherein defendant was garnishee, no defense, when. — In a suit on a note by the assignee of the payee against the makers, the pendency of an attachment suit against the payee, ■wherein the makers wore sued as garnishees, would constitute no defense if the assignment was in fact made before the garnishment. The pendency of the attachment might be pleaded in bar, provided the defense alleged that the note sued on was, e. g., in fact still the property of the attachment debtor, and not simply charged by the creditor as his property. The garnishee may protect himself from liability to double payment by conforming to the requirements of the statute. (Wagn. Stat. 668, $$ 25-6.)</p>

The court erred in refusing to give judgment for defendant, he having the superior possession, as well as having shotvn, by his sheriff’s deed, prima facie title. It Avas only necessary for defendant to offer his deed, and the Iuav did not require him to make proof of a judgment. The plaintiff could only overcome this by affirmative evidence, which AYas not done. (2 Greenl.

I. It was not necessary for appellant to plead Ms title. He could avail himself of it under the general issue. (Carter v. Scaggs, 38 Mo. 302; McCormick v. Eitzmorris, 39 Mo. 35.) II. Section 14, chapter 115, Gen. Stat. 1865, can not have a retroactive operation, so as to bar existing debts at the time of its going into operation. (Cunningham v. Gray, 20 Mo. 170 ; Barbee v. Wimer, 27 Mo. 140 ; 26 Mo. 219.) HI. The court below erred in refusing to admit the sheriff’s deed.

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

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

I. Gregg, being an innocent purchaser for value without notice, had a right to go on and acquire the legal title. (2 Lead. Cas. in Eq., part 1, p. 86 et seq.; id. 57.) H. Á court of equity will not even assist a party who has fortified himself with the legal estate against a bona fide purchaser. (2 Lead. Cas. in Eq., part 1, p. 38 ; id. 81 et seq.') HI. The levy of the attachment in this case was not notice to Gregg of plaintiffs’ claim.

<p>1.', Practice, civil — Weight of evidence, verdict of jury considered as to. — Hi trials at law, juries are the proper judges as to the weight of evidence, and , their verdicts on that issue are conclusive on the Supreme Court.</p>

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

<p>1. Qwestio» of credibility for jury. — The jury are the sole judges of the credibility of witnesses.</p> <p>2. Damages.— On appeals without merit, ten per cent, damages may bo awarded.</p>

The averment that the goods sold were not the growth, produce, or manufacture of this State is peculiarly within the knowledge of the accused, and should be established by him in his defense. (1 Am. Crim. Law, §§ 614-15, 6th ed.; State v. McGlynn, 34 N. H. 422.)

<p>1. 'Equity— Conveyances to hinder and delay creditors — Solvency of grantor, etc. —In a suit in equity against a father and son to set aside a conveyance made hy the former to the latter, the proof showed that at the time of the conveyance, in 1852, and long afterward, the father was in good circumstances and abundantly able to meet all his current liabilities. The testimony of certain witnesses having no personal interest in the matter, and given many years after the occurrence, showed that the father had said that the conveyance was made to defeat the collection of a security debt of fifty dollars, of the existence of which the only proof was his own statement. He testified that he paid the debt before judgment; that at the time of the purchase he had no recollection of its existence. Held, that the evidence showed no such fraud as to invalidate the deed.</p>

<p> Error to Fifth District Court. </p> <p>It seems to have been contended on behalf of defendants in this case, among other things, that Reed entered the premises as tenant of the Hannibal & tit. Joseph railroad, and afterward attorned to defendant, which attornment was void under section 15, Gen. Stat. 1865, p. 740. Eor further facts, see opinion of the court.</p>

The sheriff’s deed is void, in not having the recitals required by the statute. (R. C. 1855, ch. 63, §§ 54, 56; 18 Mo. 580 ; 36 Mo. 115 ; 37 Mo. 194.) The conveyance of land by a sheriff upon sale under execution is a statutory power, and the statute must be pursued strictly; otherwise the conveyance passes no title. (Allen v. Moss, 27 Mo. 364; 9 Mo. 156; 18 Mo. 586-7.)

<p> Appeal from, Fourth District Court </p> <p>cited Railroad Laws, 117, § 7; Pacific R.R. v. Lindell’s Heirs, 39 Mo. 342 ; Baker v. Gee, 1 Wall. 333 ; Papin v. Ryan & Walker, 32 Mo. 21-24; Hann. & St. Jo. R.R. Co. v. Smith, 41 Mo. 310.</p>

I. A necessary party to a suit can not be the agent of either party to the contract, on a sale of property at public auction, so as to bind him by signing the memorandum, although he has no beneficial interest in the contract. (Browne on Frauds, §§ 367-8, note 1; Buckmaster v. Harrop, 13 Yes. 456 ; Smith v. Arnold, 5 Mass. Ch. Cas. 417; Bent v. Cobb, 9 Gray, 397.) II.

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

flppeal from Fifth District Court. Plaintiffs knew the street mentioned in tbe petition was dangerous when they entered upon it. They had no right to proceed! and take their chances, and, if they were' actually injured, look, to the city for indemnity. (Hartón v. Inhabitants of Ipswich, 12. Cush. 492; Willson and Wife v. City of Charleston, 8 Allen,. 188 ; 3 Allen, 21; Fox v. Town of Grlastenburg, 29 Cow. 205;; 50 Maine, 222 ; 51 Maine, 127.)

I. The plaintiff being entitled to the office, and the defendant, a stranger, taking its fees by usurpation, plaintiff is entitled to recover damages in an action at law. (Powell v. Millbank, 1 T. R. 399 ; Boyten v. Dodsworth, 6 T. R. 681; Allen v. McKean, 1 Sumn. 317; Glasscock v. Lyon, 20 Ind. 1; 8 Blackst. 102, ¶ 5; 1 Chit. PI. 100; Chit, on Cont. 640 ; Oliver’s Precedents, 105.) II.

I. Chapter 47, Gen. Stat. 1865, is unconstitutional. It is not a law of its own force, but depends for its vitality upon a vote of the people of the locality, which vote can neither make it a law nor repeal the general law under which the plaintiff in error claims a right to the office of school director. (State v. Scott, 17 Mo. 521, 530 ; Const.

<p>1. Eminent domain — Land taken for railroads — Damages, assessment of.— Construction of statute. — Under the act for the appropriation and valuation of land taken for telegraph and other purposes (Wagn. Stat. 327-8, \\ 3, 4), unless the court is clearly satisfied that the commissioners appointed to assess damages have erred in the principles upon which they have made their appraisals, their report should not be disturbed by review or a new appraisement.</p> <p>2. Eminent domain — Land taken for railroads — Benefits, assessment of, how estimated.— The settled law of this State is that in assessment of damages for land taken for railroad purposes (Wagn. Stat. 327-8, \\ 3, 4) the benefit derived which is to be taken into account is the direct and peculiar benefit resulting to the land in particular — not the general benefit accruing to it in common with other land which is enhanced in value by the building of the road.</p>

I. The statement was sufficient. (Burt v. Warne, 81 Mo. 296 ; Wathen y. Farr, 8 Mo. 327; Pearson v. Inlow, 20 Mo. 322 ; Early v. Fleming, 16 Mo. 154.) II. The place where the cow was killed is admitted to have been open, uninclosed prairie land, and not at the crossing of any street. In such a case the railroad is not only liable to double damages, but it is unnecessary to show negligence. (Gorham v. Pacific R.R.. Co., 26 Mo. 442; Powell v. Hann. & St. Jo.

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

The objection to the jurisdiction of the justice, made in the justice’s court, and the Circuit Court and District Court, should have been sustained. (1 Hill, on Torts, 508, note 5; 6 Hill, 342; 15 Ohio, 489.)

The statute of frauds has no application in this case. The plaintiffs in error, by suing upon the agreement filed as the foundation of the suit, did an act that bound them; and the defendants in error signed the agreement, and therefore could not plead the statute.

<p> Error to Fifth District Court. </p> <p>cited 2 Greene, Iowa, 558 ; 20 Wis. 98 ; 19 Wend. 409 ; 6 Johns. 37; 5 East, 294 ; 3 Monr. 303 ; 10 U. S. Dig. 7, § 7 ; 11 U. S. Dig. 7, § 2 ; 20 Coav. 559 ; 20 Johns. 77 ; 8 Johns. 389 ; 15 Johns. 247 ; § Cow. 78 ; 19 Johns. 295 ; 5 Hill, 450 ; 17 Johns. 169 ; 28 Ind. 97 ; 1 Ind. 310; 5 Black, 71; 4 Greene, 544; 27 Maine, 370 ; 26 Maine, 88 ; 2 Mete. 285 ; 9 Cush. 150 ; Chit, on Bills, 524; 15 Johns. 248 ; 1 Hill, 516.</p> <p>cited Edw. on Bills and Prom. Notes, 2d ed., 546; Boyd v. Hitchcock, 20 N. Y. 76 ; Sheely v. Mandeville, etc., 6 Cranch, 253 ; Appleton v. Kénnon, 19 Mo. 640 ; Sto. on Prom. Notes, § 404; St. John v. Purdy, 1 Sandf. 9 ; Willard v. German, 1 Sandf. 50 ; Southwick v. Sax, 9 Wend. 122 ; New York State Bank v. Fletcher, 5 Wend. 85-7; Arnold v. Camp, 12 Johns. 409; Frisby v. Earned, 21 Wend. 450 ; Cole v. Sackett, 1 Hill, 516.</p>

<p>1. St. Louis and St. Joseph Railroad Company v. Richardson, ante, p. 466, affirmed.</p>

Louis Circuit Cou When the deed contains a contract or provision changing the order of payment, such contract or provision will be enforced by the courts.

<p>1. -jReplevin — Execution against copartnership effects, under judgment against insolvent partner — Replevin by solvent partner against sheriff’s judgment, for value of property or return thereof. — Defendant in a replevin suit claimed a lien on the replevied property as constable, by virtue of a levy upon it under a judgment against plaintiff’s co-partner. The property was a portion of the partnership assets. In such a case the constable’s interest in the property was limited to the execution debtor’s interest -in the partnership effects, and plaintiff was entitled to show that the interest of the latter was merely nominal and of no value. In these suits, when plaintiff gives bond and takes the property, the jury should find a verdict for defendant for the value of his interest in the property, nominal damages and costs, or for a return of the property, at the election of defendant. (Wagn. Stat. 1026, $ 12.) But plaintiff might, by paying off the amount of the lien, retain the property, and defendant would have no alternative but to accept the money if seasonably tendered.</p>

Louis Court of Criminal Correction. Tbe record on its face shows that the St. Louis Court of Criminal Correction had no jurisdiction over the subject-matter charged in the complaint. (Gen. Stat. 1865, p. 897, § 10, p. 808, §§ 18, 23, p. 696, § 30.) Courts of limited or inferior jurisdiction have such jurisdiction only as is expressly conferred by statute, and their powers can not be enlarged by implication.

Louis Court of Criminal Correction. The indictment is framed under a section of a law which is unconstitutional and void, because, 1st, it treats of two subject-matters ; 2d, the particular subject-matter treated in it is not mentioned in its title; 8d, nor is such subject-matter germain to that mentioned in the title of the act, which treats of transfers to bailees, and not sales to vendees. (Const. Mo., art. 4, §32; State ex rel.

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

Louis Circuit Court. I. There was a fatal variance between the pleading and proof. (2 Greenl. on Ev. 142, § 160; Edw. on Bills, 574; Cotes v. Campbell, 3 Cal. 191; Spangler v. Pugh, 21 Ill. 85.) II. Plaintiff sues on one contract and- proves another. He describes defendant Kellner as maker, and proves him as security. This is fatal. (Perry v. Barrett, 18 Mo. 140 ;Edw. on Bills and Prom. Notes, 204, § 217.) III. A judgment erroneous as to one, is so to all.

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

Louis Circuit Court. I. The court below should have dissolved the injunction and dismissed the bill. The answer disputes the respondent’s title. (Eden on Injunctions; Field v. Jackson, 2 Hick. 599; Pills-worth v. Hopton, 6 Yes. 51; Smith v. Collier, 8 Yes. 89; Hannon y.. Gardiner, 7 Yes.-305; Norway v. Rowe, 19 Yes. 144-7; Irvin v; Dixon, 9 How. 10, 28.) II. Even-if: respondent bad title, the-injunction slioüld have been dissolved.

<p>1. Husband and wife — Neglect to “maintain or provide” — Words sufficient under statute. — Under the act of 1867, p. 112, section 1, a complaint which charged that the defendant abandoned his wife, and failed to maintain or provide for her, is sufficient. The words “maintain and provide,” as used in the statute, mean simply a provision of maintenance, the neglect of which, after abandonment, completes the offense defined.</p> <p>2. Misdemeanors, trial of — Jury—Waiver.—In misdemeanor cases, the statute does not require any express waiver of a jury in order to authorize a trial by the court. If defendant was not willing to he tried by the court, he should have objected at the time; and in such cases, as it is not required that the submission shall he entered on the minutes, or in any manner become a matter of record, it is not to be presumed from the silence of the record that the court proceeded irregularly and without authority.</p>

<p>1. Husband and wife — Action charging husband with refusal to maintain wife, etc. — In an information by the wife charging her husband with abandoning her without good cause, and refusing to maintain and provide for her, the question put to a witness, whether defendant had not rented of him a house which plaintiff refused to occupy, was proper, and should have been allowed.</p>

Louis Circuit Court. I. The by-law set out in the agreed case is to be most strictly-construed against the bank. It only purports to prevent the-stock-owner from transferring his stock while he remains indebted to the corporation. It does not pretend to • interfere with the' rights of the general creditor to levy and sell the stock in the' manner prescribed by law. (See tit. Executions, 1 Wagn. Stat. 607, §§ 25 26, 28.) II.

Louis Circuit Court. . I. By tbeir acceptance defendants ratified the verbal sale to Lamb & Quinlin, and the transfer by them to plaintiff, and they surrendered their possession to plaintiffs arid made themselves their agents. There was, then, a delivery to plaintiff.

Louis Circuit Court. Tbe fourth instruction for respondent is fatal in stating that it must be such a change of possession or control of the property as to indicate or show to persons or purchasers at large that the vendees, Waterman & Bruckheimer, were no longer in possession or control of the goods, and that such visible and exclusive possession commenced at the time of sale, or within a reasonable time thereafter; whereas all the law requires is some open, notorious, or…

<p>1. Replevin — Profits and losses shown is no proof of ownership, etc. — A. may have been the ’ owner of, and entitled to the' possession of, certain goods, notwithstanding that B. was interested in the profits of the sales. And in replevin for the goods against a sheriff, the jury were improperly instructed to find for defendant if, at the time of seizure, B. was. owner of the property, or interested in the profits to be realized from the sale thereof.</p> <p>2. Partnership property seized by creditor of one partner — Partners in interest asceriained.-~The interest of a partner is subject-to--seizure by his private creditors, and the measure of his interest can be determined in the trial of a replevin suit for the property.</p>

<p>1. Bills and notes — Protest, notice of — Forwarding—Proof as to res gestee.— In a suit against the indorsers on a promissory note, when a controversy arose as to the time and manner of forwarding the notices of protest, the declarations of one who delivered them to defendants, made at the time of delivery, were sought to he introduced in evidence, although it did not appear how he came by them, or that the notary delivered them to him, or had ever seen or heard of him. Held, that such declarations were not to he regarded as res gestee in connection with the forwarding of the notices, and were inadmissible.</p>

Louis Circuit Court. I. No valid sale of the stock in question could be made by the agent appointed to make sale thereof, under act of^March 5, 1866, unless he complied strictly with the requirements of the act. The attempt on the part of Fogg to dispose of tke stock without notice to the public, as required by the act, was such an abuse as rendered the whole proceeding void. (Sedgw. on Stat. and Const.

Louis. Circuit Court. The suit was based on bills of -.lading in :thg ..usual form,, by which the boat was to deliver the goods shipped to defendant’s consignee, he paying freight therefor. Defendant, receiving said goods under such bills of lading, was bound to pay the freight thereon. (2 Sumn. 604; Abbott on Shipping, 177-8 ; 3 Kent, 138; Olcutt’s Adm. R. 149; 1 Pars.

<p>1. Administration — Executor can not purchase at his own sale for himself ■ or others. — That a trustee, such as an executor, etc., can. not become a purchaser or interested in a purchase, at his own sale, is too well and thoroughly settled to permit discussion. And the same rule applies with almost equal force to the employment of the auctioneer or trustee to make bids for the purchaser.</p> <p>2. Administration — Sale of real estate by executor — Decree obtained by fraud. —Where an executor obtained a decree for the sale of real estate of his decedent by representing that such sale was necessary to pay the debts of the estate, one of the principal creditors being a minor heir of the decedent, who had no guardian, and the executor having purchased a large part of the other debts at a large discount; and where the debt due the minor heir had never been probated, and the real estate sought to be sold, in which this minor as an heir was interested, was sure to increase in value, making it more for his interest to receive the land ultimately than to receive the proceeds realized by an immediate sale — semble, that such a state of facts would show that the decree was obtained by fraud upon the court, and be alono sufficient to entitle the heir to have the sale under such decree set aside.</p> <p>3. Administration — ■Purchase by executor of debts against the estate — To whom the benefits belong. — An executor has no claims against an estate for the face of claims which he purchases at a discount. He may so purchase, but not for himself; and all his transactions in that regard should be treated as for the estate, whose agent and servant he is.</p>

Louis Circuit Court. The case, if stated on plaintiff’s own theory, is one of pecuniary damages. He had no longer any interest in the buildings as against the landlord. The remedy of defendant Weigel is adequate at law, and injunction therefore does not lie. (Burgess v. Kattleman, 41 Mo. 482.) Whenever a trespass goes to the destruction of plaintiff’s estate, he is entitled to an injunction. (Herr v. Bierbower, 8 Md.

Jlppeal from Si: Louis Circuit Court. .. The court below erred in allowing plaintiff/to'amend, because - amendment changed substantially the claim and defense. It substituted a hew and wholly different action for the old one.

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

Louis Circuit Court. The justice had’ no jurisdiction over the subject-matter of the action. (Gen, Stat. 1865, ch. 177, §§ 2, 3 ; Sess. Acts 1868, p. 59, §§ 1, 2; Gen. Stat. 1865, ch. 142, § 37; Doggett v. St. Louis Marine and Fire Ins. Co., 19 Mo. 201.) The judgment of the justice against the garnishee was void because it was rendered before the return day of the execution.

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

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

<p>1. Mechanics’ lien — Statement of the balance due the 'plaintiff, without detailed statement of credits, etc., insufficient. — .The term “account,” as used in the mechanics’ lien law, means a detailed statement of mutual demands in the matter of debit and credit, arising out of a contract, or some fiduciary relation between parties; and a statement filed in a mechanics’ lien.suit which does not show even the aggregate of the different items, or the aggregate of the credits on account of the work, but simply sets down, in a round sum, what the plaintiffs claim as the balance due them, is insufficient.</p>

Louis Court of Criminal Correction. I. “ To be a merchant, in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present delivery, and must also actually deal in the selling of the same.” (The State v. Whittaker, 33 Mo. 457; The State v. West, 34 Mo. 424; R. C. 1855, p. 409, §§ 1, 2.) II.

Louis Circuit Court. I. No case is made for partition. This was an adversary-proceeding in wbicb the title was in- question, and in order to determine the question of title the court tided' a suit in chancery, not, however, between the parties concerned, but with a palpable defect of parties. II. ■ The eldest daughter of Mrs. Elizabeth Robertson was a necessary party; this was disclosed by the answer and by all the evidence. III.

flppeal from St. Louis Circuit Court. I. The court below erred in holding the confirmation to be to James Bankson, assignee-of John Butler. John Butler was the original claimant in 1806 ; James Bankson was a second claimant in 1811. The first and second claims, if ever made, were directly in conflict, and the board granted the land to John Butler and his legal representatives. It was a direct confirmation to Butler as the original claimant.

Louis Circuit Court. I. The imitation of an original trade-mark need not be exact-, or .perfect. It may be limited and partial; nor is it requisite-that the whole should be pirated. (44 Mo.. 178 ; 47 Barb. 469 1 Ch. Ap.

Appeal'from St. Louis Circuit Court. Marriage being a civil contract, to which the consent of the parties capable in law of contracting is essential, the second pretended marriage of appellant was void.

Jippcal from St. Louis Circuit Court. I. The father is the natural and legal custodian of his children, unless shown to be an unfit custodian.' (The People v. Merriam, 25 Wend. 64; 18 Wend. 637; 3 Hill, 399 ; 19 Wend. 16.) There is no evidence in the record tending to show that defendant is an unfit custodian of these children.