Volume 46 — Missouri Reports

Louis Circuit Court. • I. The four days required by the statute mean four judicial days. (Wash v. Randolph, 9 Mo. 142.) Sunday is not a judicial day. (Hale v. Owen, 2 Salk. 625; Rex v. Elkins, 4 Burr. 2130.) • The common law on the subject is not changed by the statute (Wagn. Stat. 887-8, § 6). II.

Louis Circuit Court. When a continuance has been refused in the court below, without sufficient cause, and the party has been injured thereby, the judgment will be reversed by this court. (Tunstall v. Hamilton, 8 Mo. 502 ; Barnum v. Adams, 81 Mo. 582.) The affidavit filed in support of this motion is clearly insufficient, because it does not comply with the rule of the Circuit Court governing such applications.

<p>1. Supreme Court — Failure to prosecute appeal — Judgment affirmed. — When it appears from the transcript of the judgment and proceedings in the Circuit Court that appellant has failed to prosecute his appeal within the time proscribed by law, the judgment of the Circuit Court will, oí motion, he affirmed.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>M. L. Gray, for respondent, cited Oadwallader v. Atchison, 1 Mo. 659; Risher v. Roush, 2 Mo. 95; Yantis v. Burdett, 8 Mo. 457; 15 Mo. 95 ; George v. Tutt, 36 Mo. 141; Adams’ Eq. 196-7, note 1,; Vastine v. Bast, 41 Mo. 493 ; 10 Mo. 100; 6 Mo. 254 • 8 Mo. 679 ; 24 Mo. 40 ; Bosbyshell v. Summers et al., 40 Mo. 172; Normanser v. Hitchcock, 40 Mo. 178, 181; 7 Mo. 6, 25 ; 8 Mo. 686 ; 10 Mo. 892 ; 11 Mo. 192 ; 13 Mo. 582 ; 18 Mo. 466 ; 27 Mo. 444.</p>

<p>1. Garnishment, judgment in — Judgment creditors — Motion to set aside judgment in garnishment by. —After return day of an execution, plaintiff garnisheed a debtor of defendant. The garnishee appeared and answered the interrogatories, and judgment was obtained against him. Held, that the judgment was irregular, and Should not have been entered; that the garnishee stood as though ho had voluntarily appeared and answered interrogatories without notice, and that judgment creditors of defendant in execution, when he was shown to be insolvent and the judgment in the garnishment stood in the way of the collection of their claims, had such an interest in the suit against the garnishee as would authorize them to intervene by a motion to set aside the judgment on the garnishment.</p>

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

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

<p>1. Where appellant fails to file in the Supreme Court a statement and brief, judgment may be affirmed, with six per cent damages.</p>

<p>1. Vasquez v. Ewing, "42 Mo. 247, affirmed.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>I. “ If the wife trades in goods and buys for her trade, when she cohabits with her husband, his assent is to be presumed.” (Com. Dig., tit. Baron and Feme; Langfort v. Adm’r of Tyler, 1 Salk. 113 ; 3 Barn. & Cress. 638.) And it lies on the husband to show that the goods were furnished under such circumstances that he is not liable to pay for them. (Clifford v. Latón, 3 Car. & P. 15; 2 Bright Husb. Wife, 11, § 27.) The wife’§ contracts during cohabitation will bind the husband to a greater extent than for mere necessaries if the evidence warrants the inference that a more extensive authority had in fact been given. (2 Bright Husb. Wife, 9, § 14; 2 Mo. 69; Deerly v. Duchess Mazarine, 1 Salk. 116, note «; Reeves’ Dom. Rel. 79, 80, note 2 ; Petty v. Anderson, 3 Bing. 173-4.)</p> <p>II. The femme can in no case be sued upon a mere personal contract during coverture. (1 Chit. PI. 58; 1 Taunt. 217; 4 Price, 48; 8 T. R. 545; 2 B. & P. 105; 3 Campb. 123 ; Com. Dig. PI. 2, a 1; 2 T. R. 363 ; 2 Bright Husb. Wife, 297, 301. §23.)</p> <p>I. Even if the goods had been necessaries, the husband would not have been liable, since the presumption of his assent to their purchase would have been overthrown by the fact that credit was given the wife. (Metcalf v. Shaw, 3 Campb. 22; Bentley v. Griffin, 5 Taunt. 356 ; Moses v. Fogartie, 2 Hill, S. C., 335; Sturtevant v. Starin, 19 Wis. 268; Shelton v. Pendleton, 18 Conn. 422 ; Galusha v. Hitchcock, 29 Barb. 193 ; Godfrey v. Brooks, 5 Harrington, 396 ; Connerat v. Goldsmith, 6 Ga. 14.)</p> <p>H. The power of the wife to bind the husband is founded upon the sole ground of agency. (Sawyer v. Cutting et al., 23 Yerm. 486 ; Benjamin v. Benjamin, 15 Conn. 347 ; 18 Wis. 608 ; Taylor v. Shelton, 30 Conn. 122.) The husband is not liable unless he has given his assent. (Selw. hlisi Prius, 288.) The cases in which the husband has been held liable for goods supplied to his wife, doing business as a trader, all depend upon the fact that the husband exercised some control over the business or received its profits, or that the proceeds were appropriated to his support and that of his family. (Petty v. Anderson, 2 Car. & P. 38.)</p>

Louis Circuit Court. Defendant asked the following instruction, which was, given by the court: “ The jury are instructed that if they believe that Fogg, Miles & Co. was a firm of innkeepers, of which defendant was one, keeping a public inn at the city, of St. Louis, and that Nathan P. Case came there as a guest with his wife — the plaintiff — . and their baggage, and that Case and wife ran up a bill which they refused to pay from any cause, the jury are instructed that the…

<p>1. Husband and wife — Separate property of wife — Husband should be joined ■ in suits concerning — Otherwise where property is simply that of wife.— 'Where property is simply that of the wife, and not her separate property, whether conveyed to a trustee for her use or to her directly, the husband would have a marital interest, of which he could not be divested without his consent; and in suits pertaining to such property, he should be joined ás a party. But her separate estate, on every rule governing it, must be considered as held by heV, divested of any interest in the husband, and he need not-be made a party to actions affecting it.</p> <p>2. Husband and wife — What words necessary to create an estate in the wife. —No special or technical words are required to create in the wife a separate estate; but any provision that negatives or excludes the marital rights of the husband, while giving the property to the use of the wife, should be held to create in her a separate estate. Though the words “separate use” or “sole uso ” are usually employed, yet if the same intention is clearly expressed by other terms or provisions of the instrument, such words are not necessary.</p> <p>3. Practice, civil — Supreme Court — Penalty often per cent, damages applies io what cases. — The penalty of ten per cent, damages awarded in the Supreme Court has been usually confined to appeals for delay merely from judgments on contracts — to collection cases; and that court is not inclined to extend it to suits for false and fraudulent representations unless special reasons appear.</p>

Error ¿o Sixth District Court. I. The County Court bad jurisdiction of tbe subject-matter of the petition. (Jones’ Appeal, 3 Grant’s Cas. 169; Dubois v. Sands, 43 Barb. 412 ; Seaman v. Duryea, 10 Barb. 523 ; Cleveland v. White, 31 Barb. 546.) II. In the case now before the court, the defendant in error was not the person named or 'appointed by the testator to discharge the trust. He was not even the executor named in the will.

<p> Appeal from, St. Louis Circuit Court. </p> <p>I. Tfie instrument on which, this suit is founded was improperly admitted in evidence, as the record shows that it was not stamped, as required by the internal revenue laws of the United States, when first offered, and the respondents have not proceeded in the manner required to make an unstamped instrument valid. (Ü. S. Stat. at Large, 481, §§ 152, 158.)</p> <p>II. The instrument sued on was a guaranty only for the payment of the goods obtained on its first presentation. The liability of a .surety is not to be extended by implication beyond the term of his contract. (Miller v. Stewart, 9 Wheat. 702 ; Fisher v. Cutter, 20 Mo. 206.) A guaranty will not be construed as a continuing one unless its language clearly indicates that such was the intention of the parties. (White v. Reed, 15 Conn, 457 ; Dixon v. Fraser, 1 E. D. Smith, 32; Fellows v. Prentiss, 3 Den. 512; Royer v. Ewart, 1 Rice, 126; Whitney v. Groot, 24 Wend. 82.)</p>

Petition for mandamus. I. The County'Court, after removing its sittings to the seat of justice, has no discretion that will permit it to hold elsewhere its sittings. II. The town may be enlarged by additions without affecting the seat of justice. “ The place selected by the commissioners ” (Wagn.

Jljipeal from, Sixth District Court. This being an action of replevin for the recovery of specific personal property, the defendant is not bound to show a perfect title in himself in order to 'defeat the action, but the plaintiff is bound to show a perfect title in himself in order to recover. Replevin will not lie in this case. The action will not lie for crops cut and removed by a disseizor.- (Hill. Rem.

An appeal from the judgment of the County Court does not lie. (Gen. Stat. 1865, pp. 230-SI, § 86; R. C. 1855, p. 528, § 9; Whitehead v. Stoddard County, 29 Mo. 188.) The only remedy is the writ of certiorari. (Const. Mo., art. 6, § 3; Thomas v. Mead et al., 36 Mo. 233, 246-50; State ex rel.

I. The instructions inform tbe jury that this boat, in order to be seaworthy, was required to be able to endure the ordinary perils of navigation on the Missouri river. And such is the law. (1 Phillips on Ins. 544; 2 Sumn. 197.) In other words, if the boat was lost by any injury, cause or peril not extraordinary in its character, the defendant could not be held liable.

I. There being no bill of exceptions, this court will only notice error apparent on the face of the record proper. (Bateson v. Clarke et al., 37 Mo. 34 ; State, to the use, etc., v. Matson et al., 38 Mo. 490.) Courts of equity, for many purposes, treat tbe husband and wife as distinct persons, capable of con” tracting with each other and of having separate estates, debts, and interests. (Arundell v. Phipps, 10 Yes. 144-9 ; Livingston v. Livingston, 2 Johns. Ch. 539 ; 2 Sto.

Petition for mandamus. The verdict was a good one, and should have been recorded; and in entering judgment upon it the surplusage should have been stricken out, leaving that part which was a verdict upon the issue submitted to the jury. (1 Graham & W. on New Trials, 136, and cases cited; 8 Bac.

I. The County Court of Washington county had exclusive, original jurisdiction of the matter of probating this will. (Gen. Stat. 1865, ch. 13T, § 7.) It was therefore competent to render any judgment in the premises. That court had power to render just such a judgment as it did. (Jackson v. Jackson, 4 Mo. 210.) II. An appeal, as here taken, will not lie from the judgment of the County Court admitting a will to probate or rejecting it.

Louis Circuit Court. I. The will in question is a devise by the testatrix to her executors that they shall sell her real estate etc., and therefore the will is a, mere' naked power to sell, and does not pass the fee of the land. II. If a party devise that his executors shall sell his lands, and die seized, his heirs are in by descent, and consequently his executors have only a power to sell. (Sugd. on Powers, 128 ; Tiff. & Bull.

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

I. Until Turner and Knight proceed to sell the land in ques tion under their judgment in attachment, they are in no condition to aslc that the deed of Adams, made by the sheriff in 1862, be set aside. H. The lien of an attachment writ is not such an interest in land as to enable the plaintiffs in the proceedings to attach a legal title. III.

Louis Circuit Court. I. The only issue presented by the pleadings to the court, and which the plaintiff had to prove was whether the tax-bill sued on was genuine ; did it bear tbe genuine signature of tbe city engineer ? This fact baying been proved in the affirmative, tbe tax-bill became and was, under tbe law, prima facie evidence of tbe plaintiff’s right to recover. (Sess. Acts 1867, p. 74, § 11; Sess. Acts 1866, p. 302, § 5; Sess.

<p>1. Justices’ courts— Complaint — Averments of, h,ot controlled by title. — The . averments of a complaint "before a justice, under section 19, p. 844, Wagner’s Statutes, are not controlled bj' the title thereto, which may be treated as surplusage.</p>

Louis Circuit Court. The saving clause is evidently a dead letter, and is ^directly repugnant to the purview or body’ of the act, and can not stand without rendering the other provisions inconsistent and destructive of themselves. (1 Kent, 462; Plowden, 565 ; Gen. Stat. 1865, ch. 55, p. 608, § 9.)

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

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

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

Louis Circuit Court. I. In equity, no trustee need be named; none is necessary, whether the separate property was acquired before or during coverture, or whether the… Held: used, and enjoyed the property as her separate estate, both she and her husband treating it as such; and even if she had not acquired it as her separate estate by the conveyance, the husband and wife treating the property as the wife’s separate estate would give her the right of disposition claimed.

Louis Circuit Court. On the 9th day of January, A. D. 1846, under the provisions of the original and amended charter of the St. Louis Gaslight Company, a contract in writing was entered into between the city of St. Louis and said Gas Company, which embraced among others the following provisions: “The party of the first part do agree with the party of the second part that they will and do, under the provisions of the twenty-sixth section of the St. Louis Gaslight Company’s…

To legally maintain partition, tbe petition must sbow affirmatively : 1. That the estate is held in joint tenancy, tenancy in common or coparcenery, and whether the estate is of fee, for life, for years, tenancy by curtesy, or in dower. (Gen. Stat. 1865, p. 611, §§ 1, 3 ; Gould’s PL, ch. 4, §§ 4-13 ; Stephens’ PI. 304; Myers v. Field, 37 Mo. 441; Frazer v. Roberts, 32 Mo. 457.) 2.

Louis Circuit Court. The law of Iowa can have no extra-territorial operation, no power to compel this court to recognize as a judgment what would be no judgment. (Thurber v. Blackstone, 1 N. H. 242; Wood v. Wilkinson, 17 Conn. 500; Thompson v. Emmett, 4 McLean, 96; Holt v. Alloway, 2 Blackf. 108 ; Warren Mannf. Co. v. iEtna Ins.

Louis Circuit Court. I. The defendant, being only a gratuitous bailee without hire or reward, was bound only for ordinary care, and liable only in case of gross negligence. (Sto. on Bail., § 63 ; Jones on Bail. 48 ; 2 Kent. 567 ; Foster v. Essex Bank, 17 Mass. 479 ; McLean v. Rutherford, 8 Mo. 109.) II. There was no evidence tending to show that defendant ever did any business under the name of the Bank of the State of Missouri.

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

<p> ¡Appeal from SL Louis Circuit Court. </p> <p>cited Now York State Bank v. Fletcher, 5 Wend. 85; Booth v. Smith, 3 Wend. 63 ; Wise-man v. Lyman, 7 Mass. 286, 290 ; Cole v. Sacket, 1 Hill, 516 ; Waydell v. Luer, 5 Hill, 448; Smith’s Merc. Law, 533.</p> <p>relied on Fenn v. Dugdale, 31 Mo. 581; Smith v. Ross, 7 Mo. 463.</p>

Louis Circuit Court. A gift to an agent will be upheld if intelligently and freely made. (Nesbit v. Lockman, 34 N. Y. 167; same principle in Harris v. Tremenheero, 15 Yes. Ch. 38, 39.) The most that can be claimed from the authorities is that when a confidential relation exists between the testator and beneficiary under the will, the onus of proving that the will wras intelligently and freely made, rests upon the party claiming under it.

Jlppcal from, St.. Louis Circuit Court. Relator has an action at law — a-complete and adequate remedy— and where aÉ substantial remedy'by-action at law exists, mandamus does not lie.-■ (State ea; rei-i-Bohannan -vv Howard County,:..89-Mo:. 3T6exparte Ereeitían’s-Iñs.-Co.; 6 Hill,: 248■; Shipley v.. Merchants’ Bank, 10; Johns. 485; King v.-Banlc'of England, Doug. 525; Ang.í&.Ames on Córp.;-8th ed.,'-§§ 709, 710.)

Louis Circuit Court. The ultimate extent of the vendor’s responsibility, under all or any of the usual covenants in his deed, is the purchase money, with interest.

<p>1. Damages — Servitudes—Excavations—Pressure of buildings, etc. — In a suit for damages caused by the bursting of a sewer and certain privies in plaintiff’s promises, and the sliding in of an embankment about them into a cellar recently excavated by defendant, held, that plaintiff had a right to a support from the adjoining soil for his land in its natural state, but, in order to recover in such action, it should appear that the slide was not caused by the pressure of his buildings or by his sewer, and that the slide caused the bursting of the sower.</p>

Louis Circuit Court. I. The master is not liable to his servant for the acts of a fellow-servant, and the difference in grade of employment does not alter the rule. (Wilson v. Merry, 1 L. IJ. H. L., Sc., 326; Tarrant v. Webb, 37 Eng. L. & Eq. 281; Priestly v. Fowler, 3 M. & W. 1; Wigmore v. Jay, 5 Exch. 354 ; Hutchinson v. York, etc., R.R., 5 Exch. 343; Wiggett v. Fox et al., 36 Eng. L. & Eq. 486; 11 Exch. 832; Scott v. Mayor, etc., of Manchester, 38 Eng.

Louis Circuit Court. I. This policy is not a time policy, and no proper construction can make it such, for the reason that no time is named or limited. (1 Pars, on Mar. Ins. 312 ; May v. Modigliani, 2 Dunn & East, 30; Wooldridge y. Boydell, H. BL, C. B., 231; Robertson v. French, 4 East, 130.) Upon every fair and legal construction of'the language of that policy, the risk was to begin when the barge was towed from the port of St. Louis.

Louis Circuit Court. I. The court had no power to set aside or annul its proceedings and record made at a prior term. The judgment was by the order “forever discharged and released.” The court, at a subsequent term, had no power to re-examine the cause, or the sufficiency or the insufficiency of the reason of the court’s action at a former term. (1 Wagn.

Louis Circuit Court. I. The mere fact that Cozzens & Co. were insolvent, and that they knew themselves to be so, and that they concealed that fact from the plaintiffs — supposing such facts to he proved — do not furnish ground for the rescission of the sale. (Hill, on Sales, 807 ; 2 Pars, on Cont. 270; Sto. on Sales, § 176.) The cases .all hold that the design which will vitiate the safe and- render it null, is one not to pay for the goods at all — to get them for nothing.

<p> Appeal from St. Louis Circuit Court. </p> <p>The checks were not payment, and Dixon had not complied with his duty as collector until ho had got the money. (Ward v. Smith, 8 Am. Law Reg. 69, 70; Sherer v. Green, 3 Cal. 419 ; Keney v. Hazeltine, 6 Humph. 62 ; Cooney v. Wade, 4 Humph. 444.) His authority carried and included, as an incident, all the ^powers which were necessary and proper, or usual, as means to effectuate the purpose for which it was created. (Sto. on Agency, §§ 97, 102; id., § 451; Haskins v. Johnson, 5 Sneed, 469; Woodford v. McOlanahan, 4 Gilrn., Ill., 90; Pres., etc., y. Comen, 37 N. Y. 320; Lucas v. City, 7 Cal. 473; Combs v. Hann. Sayings & Ins. Co., 43 Mo. 148.)</p> <p>■ . Dixon had no authority, by. virtue of his position as clerk and collector, to indorse and collect checks payable to plaintiffs’ order. (Terry v. Fargo, 10 Johns. 114; 1 Pars, on Bills and Notes, 106; Murray v. East India Co., 5 B. & A. 205.) The authority to collect is not authority to indorse. (1 Pars, on Bills and Notes, 106; Esdaile v. La Nause, 1 Young & Cole, 394; Hogg v. Smith, 1 Taunt. 347; Kilgour v. Finlayson, 1 H. Bl. 155; Hay v. Goldsmith, 2 Smith, 79; Byles on Bills, § 22 et seq. ; Sto. on Agency, §§ 62-8, 98-9, 105.)</p>

‘Appeal from St. Louis Circuit Court. I. A commission merchant or warehouseman is bound to know his principal, and if he soils goods and pay the proceeds to the wrong party, either by mistake or negligence, he is still -liable to the true owner.

Louis Circuit Court. I. No final judgment is necessary. (8 Mo. 619; State v. Gregory, 88 Mo. 501; State v. Hawkins, 39 Mo, 432 ; Kelsy v. Western, 2 N. Y. 501, and authorities there cited.) II. There' wore in the court below two distinct judgments — one for the defendants upon the issue of law raised by the demurrer, that the plaintiff recover no interest, and the other upon the issue of facts, which was for the plaintiff, that he recover the principal of his bond.

<p>1. Res adjudicata — Judgment affirmed in Supreme Court for failure to assign errors. — "Where a motion to set asido a sale of land is appealed to the Supremo Court, and for want of assignment of. errors the action of the lower court is affirmed, parties are concluded by its disposition; and in event .of subsequent proceedings instituted for the same purpose, equity has no power to relieve ¡them.</p>

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

Terror to St. Louis Circuit Court. Money paid by the plaintiff to the defendant under a bona fide forgetfulness or ignorance of facts which did not entitle the defendant to receive it, or under a mistake in law under circumstances that, would make it inequitable and unconscientious for the defendant to retain it, may be recovered back as money had and received. (Kelly v. Solari, 9 M. & W. 54 ; 2 Smith’s Lead. Cas. 543 ; Broome’s Leg.

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

Error ¿ó Si. Louis Circuit Court. After obtaining the injunction, plaintiff failed to’ redeem or apply for the appointment of a receiver. Eor that reason alone, if for no other, the injunction was property dissolved. (Hill, on Injunc. 122, § 127.)

<p> JJ.ppc.al from St. Louis Circuit Court. </p> <p>cited among others the following authorities': Hall v. Franklin Ins. Co., 9 Pick. 466; Small v. U. S. Ins.. Co., 11 Pick. 90 ; Peel v. Suffolk Ins. Co., 7 Pick. 257 ; King v. Hartford Ins. Co., 1 Conn. 42; Marine Dock & Mut. Ins. Co. v. Goodman, 4 Am. Law Keg. 481; 2 Pars, on Mar. Ins. 142, note; Reynolds v. Ocean Ins. Co., 22 Pick. 198; Peel v. Merchants’ Ins. Co., 3 Mason, 42-78; Wood v. Lincoln & K. Ins. Co., 6 Mass. 479-85.</p> <p>cited Peel v. Suffolk Ins. Co., 7 Pick. 254 ; Reynolds v. Ocean Ins. Co., 1 Mete. 160 ; Peel v. Merchants’ Ins. Co., 3 Mason, 27; Norton v. Lexington Fire Ins. Co., 16 Ill. 235 ; Reynolds v. Ocean Ins. Co., 22 Pick. 191; Copelin v. Phoenix Ins. Co. of N. Y., recently decided in U. S. Supreme Court; 2 B. Monr. 47 ; 10 Cush. 37 ; 2 Pet. 8, 10, 25.</p>

Jlppeal from Fourth .District Court. I. Plaintiff lias united several causes of action in one and the same count. (34 Mo. 134 ; 36 Mo. 202 ; 39 Mo. 451.) II. The words should be laid in the petition as uttered. (Watson v. Musick, 2 Mo. 29; 7 Mo. 324; 26 Mo. 153-61.) III. While words actionable per se import malice, yet the presumption of malice is not conclusive. (2 Kern. 67 — 74.) I. The appellant gains nothing by insisting that the words charged vary from those proven.

I. The account filed before the justice was insufficient, and gave the court no jurisdiction. ■ (Gen. Stat. 1865, p. 701, §§ 12, 13 ; Casey v. Clark, 2 Mo. 12; Odie v. Clark, id. 13 ; Wathen v. Parr, 8 Mo. 324.) II. The Circuit Court had no authority to allow the plaintiff to file a new statement and cause of action on appeal, but must try the same cause of action that was tried before the justice, and no other. The cause of action can not be changed.

Louis Grintinal Court. urged among others the following points: I. If the defendant was entitled to a panel of forty qualified jurors, ho could not waive that right. (Basie v. Ambrose, 28 Mo. 46; State v. Mansfield, 51 Mo. 475; 1 Chit. 401; 11 Ga. 887 ; 3 Chit. Pr. 50, 51.) II. It was the duty of the marshal to summon forty qualified and competent jurors, and furnish defendant with a list of their names forty-eight hours before trial. III.

<p> Petition for mandamus. </p> <p>I. It matters, not, as far as the relator is concerned, whether the court borrowed money in form or not by issuing bonds therefor. Issuing warrants bearing ten per cent, interest to the contractors answered the purpose of the law, and essentially fulfilled the requirements of*the act of the Legislature; and a departure on the part of the County Court, such as is disclosed in this case, can not affect the rights of the relator or the liability of the county. (See City of Bridgeport v. Housatonic R.R. Co., 15 Conn. 475; Slack v. Maysville & Lexington R.R., 13 B. Monr. 9 ; Maddox v. .Graham & Knox, 2 Metc.,'Ky., 56; The People v. Mead, 24 N. Y. 114’; State ex rel. Moran Bros. v. Commissioners of Clinton County, 6 Ohio St. 280 ; the last case is particularly referred to.)</p> <p>II. In this case no injury could possibly result to the county by the court not issuing bonds and borrowing money in that manner, but, instead, issuing non-nogotiable warrants bearing a less rate of interest by two and a half por cent, than the court was authorized to pay for a loan.</p> <p>III. The relator stands in the place of an innocent bona fide purchaser for value of these warrants, and the county is estopped from asserting that they were illegally issued. (Ilann. & St. Jo. R.R. v. Marion County, 86 Mo. 234.)</p> <p>I. The relator seeks, by mandamus, to compel the payment of unlawful and usurious interest This writ can not bo invoked in the assertion of an inequitable claim. (State v. Treasurer of Callaway County, 43 Mo. 228.)</p> <p>II. Where the amount of a claim is not fixed by law, it must be reduced to a judgment in a court in which a trial by jury can be had, before the levying a tax to pay the same will be compelled by mandamus. (Bennet v. Auditor Portage County, 12 Ohio, 54 ; Putnam County v. Allen County, 1 Ohio, 822 ; ex parte Lynch, 2 Hill, 45; Boyce v. Russell, 2 Cow. 444; People v. Brooklyn, 1 Wend. 325; ex jiarte The Firemen’s Ins. Co., 6 Hill, 243 ; People v. Chenango County, 11N. Y. 573 ; 1 Tenn. 114 ; Moses on Mandamus, 107.)</p> <p>III. Where a debt remains in its original form as a simple contract debt, not having been reduced to a judgment, the creditor has no legal right to mandamus to compel a municipal corporation to hwy and collect a tax for its payment. (Coy v. City Council of Lyons City, 17 Iowa, 7.)</p> <p>IV. A mandamus to levy a tax will not bo granted where there has been no unreasonable delay. A County Court can not be charged with unreasonable delay where, for the purpose of payiijg county expenses and indebtedness, it has every year levied a tax upon the people of the county to the full extent allowed by law; and in such case the courts, in the use of their undoubted discretion, will refuse the writ. (Tilson v. Commissioners of Putnam County, 19 Ohio, 415.)</p>

Jippe.al from St. Louis Circuit Court. I. The action presents a claim against which tho statute of limitations will run. (II. C. 1849, p. 74, § 1; II. C. 1855, p. 1047, § 1; Wagn. Stat. 917, § 8.) II. At the date of the guardian’s settlement of his account in Probate Court, tho statute - commenced to run against him. (Wagn. Stat. 917, § 8 ; Johnson and Wife v. Smith’s Adm’r, 27 Mo. 591; Rabsuhl v. Lack, 35 Mo. 316.) III.

Louis Circuit Court. The heirs had no other title than they inherited, and that was • what the ancestor had when he died, which was nothing, because he had conveyed.

Louis Circuit Court. The agreement relied on by plaintiff was champertous, contrary to public policy, and hence void as to both parties ; and the court erred in refusing the fourth and fifth instructions.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. There was no proof that the Missouri Home Insurance Company was ever organized, or that it ever had a corporate existence for any purpose whatever. (See Gen. Stat. 1865, ch. 67, § 7; 10 Wend. 266.)</p> <p>H. There is no proof that Finn signed articles of association, and not having signed he did not become a stockholder under the provisions of section 4. Then he was not liable on the paper introduced in evidence. (Troy R.R. Co. v. Tibbits, 18 Barb. 297 ; Poughkeepsie R.R. v. Griffin, 24 N. Y. 150.)</p> <p>III. As Finn paid nothing, he was not a stockholder, and his pretended subscription can not be enforced. (Gen. Stat’. 1865, ch. 67, § 4; Hibernia Turnpike Co. v. Henderson, 8 Serg. & R. 219.) This was a Sase of first impression in this court. The ease decided in 31 Mo. 19, North Missouri R.R. v. Mills, is not a parallel one. There the company was chartered and organized, and there was a direct promise to pay, and the count alludes to tbe promise to pay. In this cage the signing is a mere preliminary step to a second signing. Here no amount is specified by the signer.</p> <p>IV. The act o£ putting figures at the end of Finn’s name, no matter by whom done, was a fraud and a forgery'upon Finn.</p> <p>V. This being air ordinary contract, and being in blank, is therefore void.</p> <p>VI. The only competent proof of what the articles of association contain is by showing them in court; and further, by showing that they have been signed and filed in the office of the circuit clerk. (See Erie R.R. Co. v. Owen, 32 Barb. 616, in connection with section 4*, chapter 67, Gen. Stat. 1865.)</p>

<p>]. Deed of trust notes — Sale — Purchaser.—Deed of trust notes may be bought up, and the purchaser may sell out and buy in the property conveyed in trust for their security.</p>

I. The execution under the above statute continued in force until the March term, 1863, when it became functus officio. If it was then intended to revive or continue the levy in force, it was necessary .either to procure from the court a writ of venditioni exponas or to cause tbe issue of said execution anew under tbe provisions of tbe act of March, 1863 (Sess. Acts 1863, p. 20').

I. The judgment being for more than the justice had jurisdiction, the same is void, and no title passes by a sale thereunder. (8 Mo. 264.) The transcripts offered in evidence were inadmissible. They do not-correspond with the judgment recited ; in the said deed. II. The executions could not issue on transcripts from clerk’s office until the executions -issued by the justice had been legally returned, and it was otherwise in this case. III.

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

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

I. The plaintiff’s first instruction was erroneous. It left the jury to determine a bare and naked question of law. It was the duty of the court to tell the jury what was necessary to constitute the ratification by the principal of the unauthorized acts of the agent, so as to bind and charge the principal. A mere promise, after the sale, by defendant, to pay for the horse was not sufficient to support an action thereon.

<p>1. Trustee,, larceny from,, should appear as clearly as the case will admit of.— "Where a party standing in a fiduciary relation undertakes to discharge himself from responsibility for trust funds committed to his care, on the ground that such trust funds have been stolen from him, the fact of the loss, in the manner asserted, should "be made to appear as clearly as the case will admit.</p>

<p>1. Ejectment — Executions — Sheriff’s amendment of return allowed, when.— The return upon an execution omitted to describe the real estate sold, but the sheriff’s deed convoying the land described it minutely. In ejectment brought many years afterward against the original defendants in execution, held, that the sheriff not being 'dependent on his memory, but being furnished by the deed with the means of accurately supplying the defects, might amend his return so as to make it show what lands were sold and who was the purchaser. And this he might do although out of office; but semhle, that the case would be otherwise where the rights of innocent purchasers might be affected. The suit being instituted long after the date of the return, the court properly refused to permit defendants to examine the sheriff as to his personal recollection of the facts of his return.</p> <p>There is no limitation of time within which amendments of this class must be made, although after the lapse of years the court should grant applications with great caution; and the granting of them rests in the sound discretion of the court, and not as a matter of right. To be entitled to amend, the party should show the fact of a mistake beyond a reasonable doubt.</p>

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

I. In a petition for words spoken it is necessary to aver that they were spoken in the presence of some person. (1 Stark, on Slander, 860; Sto. 70; 2 Mod. 41; Cro. Eliz. 861; Moss v. Thacker, 2 Lev. 193 ; Wood v. Gilchrist, 1 Code Rep. 117; 3. ■How. Pr. 406; Burbank v. Horn, 39 Me. 233; Bradshaw v. Perdue, 12 Ga. 510 ; Ware v. Cartledge, 24_Ala. 622 ; Townsh. on Sland. and Lib., § 324; Burton v. Burton, 8 Greenl., Iowa, 316; 1 Chit. PI. 406-8; 2 Chit.

I. The thirty days’ clause is confined to journeymen and day-laborers. There is no pretense that plaintiff was a day-laborer or a journeyman. . . II. The certificate of the clerk meets all the requirements of the law. The law does not require an affidavit to the claim. (Smith’s Ex’rs v. Benton, 15 Mo. 374 ; Sess. Acts 1849, § 2.) III. The Circuit Court should have permitted the clerk to amend his jurat nunc pro tunc.

<p> Error to First District Court. </p> <p>I. A mortgage until foreclosed, or an entry thereunder for a breach of its conditions, is not such an outstanding title as will bar the right of the recovery of possession in ejectment by -the mortgagor against the "world. (8 Wend. 616; Kennett v. Plum-mer, 28 Mo. 142 ; 4 Kent, 157 ; 6 Hill, 469 ; 11 Wend. 535 ; Chinnery v. Blackman, 3 Doug. 391; 1 Hill. on -Mortg. 162, § 15 et seq.; Brown v. Snell, 6 Flu. 741; Prescott & Elling-wood, 10 Shepl. 845.) •</p> <p>II. The erasure can not affect the legal title or re-invest the same in any one, or prevent the said sheriff’s deed from being read in evidence. (34 Mo. 496; 3 Stark, 60; 8 Cow. 71; 7 Wend. 864; 22 Wend. 393.)</p> <p>I. Any material alteration in a deed, made by the party claiming under it, or with his consent, vitiates, the whole deed. (Blank v. Miller, 18 Barb. 269 ; 4 Kent’s Com. 501, note 1; 9 Wheat. 580; 22 How. 89 ; 2 Black, 94.) Whilst it is true that cancellation or alteration of a deed executed and delivered does not have the effect to re-invest the title in the grantee, yet the deed itself is void, and the party who altered it can not recover by it. (Williams on Real Est. 400 ; McCormick v. Fitzsimmons, 89 Mo. 24-34.)</p> <p>II. The mortgage of Hinkle is such an outstanding title as will defeat the plaintiff’s recovery. (See 12 Mo. 618.) The mortgagee is the legal owner, or the legal title is in him, and he may maintain ejectment against the mortgagor. (38 Mo. 120 ; id Mo. 229.) In an action of ejectment under the general issue, the defendant may avail himself of the defense that the plaintiff has not the present right of possession. (38 Mo. 352.) In the case of McCormick v. Fitzsimmons et al., 39 Mo. 34, Judge Wagner, in his opinion, recognizes the doctrine that the title of a mortgagee is such an outstanding title as will defeat a recovery in ejectment.</p>

I. The act of the general assembly entitled cc an act amend-atory of an act to incorporate the city of Boonville,” approved March 23, 1868, is not in conflict with section 25 of article 4 of the constitution of the State of Missouri. (See Constitution.) This section does not require that the act or part of act amended shall be set forth and published as it stood before, but that the act or part of act amended shall be set forth and published as amended. (Cooley on Const.

I. The power of sale does'not attach to land-for non-payment of taxes until every prerequisite has been complied -with. - The party claiming under a tax deed has the burden on him to show a substantial compliance with the law through-which he claims -title. Tax sales are against common justice and right, and a-strict construction must-be given to all enactments authorizing suc-h sales. ■ II.

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

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

I. The note sued on is not entitled to bé paid first .out of the proceeds of the.sale of -the trust property, to the entire exclusion of the other two. II. Defendant does not stand in the same relation to the deed of trust as the plaintiff. The deed was made to secure the plaintiff, and not to secure the defendant.

<p>1. Practice, cicil — Supreme Court, objections raised in for first time come too late — Account — Justice’s court. — "Whore a transcript from a justice’s court stated that plaintiff filed an account in the case, and judgment on the appeal . trial in the Circuit Court found that plaintiff had sustained damages as alleged in his complaint, and the objection that plaintiff failed to file his account was raised for the first time in this court, the objection comes too late.</p>

'Error to First District Court I. The Circuit Court erred, in sustaining the demurrer, because the writing sued upon has the force and effect of a promissory note and imports a consideration. (Capíes v. Branham, 20 Mo. 244 ; 18 Mo. 513 ; 2 Am. Lead. Cas. 162 ; 4 N. H. 534 ; 20 Johns.- 89 ; 1 Mete. 570 ; 2 Denio, 403.) II.

<p>1. Sheriff — Return .made in name of deputy insufficient — May. he amended after ¡judgment, when.— A return of process signed “John Butler, deputy sheriff,” is insufficient to give the Circuit Court jurisdiction of'the person of defendant. But it .may be amended in ajd of judgment, on reversal of the cause, so as to make the return in the name of the principal sheriff; and it makes no difference that at the time of amending his return the sheriff "was out of office.</p>

I. Tbe order of sale was insufficient because it was not made returnable to the next term of the Circuit Court. (See Wa-gn. Stat. 970, §§ 31, 32; id. 602, § 4.) II. The order is insufficient because it does not state whether the sale shall be made at a term of the Circuit Court or at a term of the County Court. (Wagn. Stat. 975, § 63.) IN. The statute can not be construed to authorize a sale at the same term at which the order is made.

I. Upon the death of the plaintiff the cause of action abated, and no judgment could have been legally rendered in said cause. (Gen. Stat. 1865, p. 491, § 30.) II. The court erred in taking any action or a step in said cause, after plaintiff had died and his death had been, suggested on the record, until a scire facias had issued to defendant to show cause whv said suit should not be revived.

I. Plaintiff could not recover on this contract until be had delivered the whole of the 2,000- bushels.

Petition for mandamus. I. The act of 1865 constitutes a contract with the person elected public printer on behalf of the State, and can not he repealed or modified in a manner that will infringe the rights of the petitioner without violating that provision of the Federal constitution and also of the State constitution, which prohibits the passage of any law that “impairs the obligation of a contract.53 Although the statute creates the office of public printer and provides…

<p>1. Mandamus — Auditor — State lunatic asylum. — Board of managers, requisition by.-— The act of March 23, 1870, touching appropriations for the State lunatic asylum (Sess. Acts 1870, p. 10), does not impose upon the State auditor the burden of examining and passing upon the legality of the several items of the bills incurred by the managers of that institution for purchases and improvements, etc., before paying amounts claimed. The law intrusts the expenditure of the fund to the good faith and official responsibility of the asylum managers. It is not for the auditor to go back of the requisition, authorized by the act.</p>

Error io First District Court. I. The admission of the new depositions of Limerick and Mrs. Beck was against well-established rules of chancery practice — rules that were not based upon any mere forms peculiar to English practice, but founded upon the regulations essential to insure justice and to keep out perjury.

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

Court. urged among others the following points: I. The statute creating tbe lien is in derogation of tbe common law, and must' be strictly complied with by every person who asserts a claim of right under it. “And any ambiguity in any proceeding necessary on tbe part of tbe party seeking to enforce the lien, must operate against tbe party making it.” (Wade v. Butz, 18 Iml. 307; Lynch v. Cronan, 6 Gray,'531; Schulen-berger v. Bascom, 38 Mo. 188.

I. In order to give a lien, the contract must be sucb as can be enforced at common law (Houck on Mech. Liens, 233 ; Kirby v. Tead and Wife, 13 Mete. 149) ; and if either party be incapacitated, the contract or agreement is futile'and unavailing. (Houck on Mech. Liens, 233 ; 2 Blackst. Com. 114; Chit, on Cont. 4, 5, 29.) And it is a well-established rule of law that a wife can not bind herself by an executory contract. (Reeves’ Dom.

<p>1. Married woman— Conveyance to wife, not for separate use — Deed of trust given for — Bill in equity to subject property to debt. — A married woman has no power to bind herself by a promissory nbte, except as to her sole and separate property. Tot, when she purchases real estate — even though the purchase deed does not create an estate for her sole and separate use, but an ordinary one, in which <her husband had a marital interest — and gives her notes for the purchase money secured by mortgage upon the property purchased, the vendee can hold it in equity for such purchase money. And the lion created by the deed of trust can be enforced by an action analogous to a late proceeding in chancery to subject the property to the payment of the debt, although no personal judgment can be given upon the notes.</p>

<p> jError to Fourth District Court. </p> <p>Plaintiffs were taken by surprise by the evidence of Patterson, and were entitled to a new trial.</p>

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

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

I. Where the record shows, as in this case, that the application was taken up and considered by the court on its merits, the presumption is that all legal preliminary steps, including notice, had been taken. The notice is no part of the application nor of the record. II. The seventh instruction given by the court is erroneous.

<p>1. Corporations — Railroads — Negligence — •Public highways — Citizen may presume what. — The citizen who, on a public highway, approaches a railroad track and can neither sec nor hear any indications of a moving train, is not chargeable with negligence in assuming that there is no car sufficiently near to make the crossing dangerous. He has a right to presume that in handling their cars the railroad companies will act with appropriate care, and that the usual signals of approach will be seasonably given. (Kennayde v. Pacific B.R. Co., 45 Mo. 255, affirmed.)</p>

urged among others the following point: The plaintiff in error, by its course of business with the drawee, through the National Banking and Insurance Company of St. Louis, had .reasonable cause for believing that -its draft would be duly honored and paid upon presentation, and was “entitled to notice on both the first and second presentation of said draft. (Commercial Bank v. Barksdale et al., 36 Mo. 568 ; Edw.

Error lo Fifth District Court. I. The word “immediately,” as used by defendant in his proposition, must bo construed to mean immediately after the deed was made, and not immediately after the reception of the letter. The defendant, by the word “ immediately,” certainly meant a cash payment, or, in other words, a payment when the deed was made, and which are substantially the words in which plaintiff accepted defendant’s proposition.

dlppeal from Fiflh District Court. I. Tbe petition is sufficient under tne statute of- trespasses. This suit is not founded on a penal statute, but upon a remedial statute. Though the consequences of the violation are partially punitive, yet the primary object of the law is to give compensation for injuries actually sustained. (13 Pick. 94, 102; Gen. Stat. 1865, p. 661, § 41; id. 379, § 1.) II. This action is upon the first clause o£ section 1 of the statute (Wagn.

I. Agreements in regard to boundary lines, like all other agreements, are of no binding force upon the parties if founded upon mutual mistake in material facts. (Knowlton v. Smith, 36 Mo. 507, 513-14; Menken v. Blumenthal, 27 Mo. 198, .,203-4.) II. Color of title, with possession of a part of a tract, extends such possession no further than that embraced in the deed showing color of title. It can not include any part of adjoining tracts.

<p> Appeal from Fifth District Court. </p> <p>contended that certain legislation intended for the suppression of horse-racing, by rendering all debts incurred by betting thereon not collectable, might amount to such a constructive prohibition as would render the act punishable by indictment. (2 Bish. Grim. Law, § 591; State v. Posey, 1 Humph. 884; Huff v. The State, 2 Swan, 279 ; Meyers v. State, 3 Snead, 98.) .</p> <p>No counsel appeared for respondent.</p>

<p>1. Towns and cities — Unincorporated towns — School districts. — Under section 1, article 2, of the act relating to schools (Wagn. Stat. 1262) an unincorporated town is not legally organized as a school district, and subsequent legislation, explanatory of the meaning of that section, can not retroaet so as to alter the previous rights of parties under this law.</p>

The judgment is excessive. In no case could it have been rendered against the securities for more than the amount of the penalty in the bond. (Gen. Stat. 1865, p. 605, §§ 8-10; id. 607, § 28 ; Farrar & Brown v. United States, 5 Pet. 372; People v. Sumner, 16 Ill. 174; Robinson v. County Commissioners, 5 Gilm. 559 ; Skinner et al. v. Phillips, Sheriff, 4 Mass. 68 ; Sedgw. Meas.

This was originally an application made in May, 1869, by respondent, to the County Court of Andrew county for payment of an amount alleged to be due him for building a certain bridge in said county. The County Court found there was then due respondent $2,150, and accordingly issued warrants for that sum. Respondent then filed an account giving the county credit for said warrants, and claiming interest on the amount of the warrants.

<p> Error to Fourth District Court. </p> <p>This is an action for deceit, and not an action on the breach of warranty. (1 Smith’s Lead. Cas. -207, note 211, and cases collected; Hill. Sales, 287, § 35 and notes ; 1 Wheat. Selw. 482 ; 1 Bac. Abr. 11.)</p>

I. It has always been conceded that in cases like the one at bar an appeal would lie; and the only question has been whether the appeal operated as a certiorari or writ of error, or whether the case could be tried de novo.

Jlppeal from Fourth District Court. There was no motion made in the Circuit Court for a new trial, or in arrest of judgment, and where this is the case this court has repeatedly held that it will not review the proceedings of the court below. (Morgner v. Kister, 42 Mo. 466; Banks v. Lades, 39 Mo. 406; Bishop v. Ransom, 39 Mo. 416-17 ; Long v. Towle, 41 Mo. 398; Richmond’s Adm’r v. Pogue, 36 Mo. 313; State v. Marshall, 36 Mo. 400.)

Jlppeal from Fifth District Court. No court can rightfully render judgment in a cause until it has acquired complete jurisdiction oyer the parties, the subject-matter and the process. Judgment rendered without such jurisdiction is void.

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

<p>, Appeal from Fourth District Court.</p> <p>cited 13 Johns. 444; 7 Wend, 89; 16 Wend. 607 ; 1 Paige, 90 ; 1 Johns. Ch. 131; 1 Barb. Ch. 189 ; 4 Johns. Ch. 339, 556, and authorities cited; 3 Sandf. 463 ; 4 Paige, 399 ; 2 Paige, 509 ; 2 Seld. 147; 1 Paige, 333 ; 1 Johns. Ch. 28 ; 6 Paige, 83 ; 17 Johns. 388 ; 9 Mo. 273, 336; 13 Mo. 321; 22 Mo. 90 ; 23 Mo. 443 ; 24 Mo. 20.</p> <p>Respondent filed no brief.</p>

District Court. I. The indictment distinctly and specifically avers that the defendant obtained the money from Hoover by means of the false pretenses previously recited, Avhich is equivalent to alleging that the false pretenses were believed and acted upon by Hoover; (2 Am. Crim. Law, § 2128 ; People v. Miller, 2 Pars. Crim. Rep. 197; Commonwealth v. Mason, 9 Gray, 125 ; State v. Green, 7 Wis. 676; 2 Am. Crim.

<p>1. Statute of frauds — Promise to indemnify one not a creditor — Effect of, under the statute, when not in writing.— A. & B. composed a firm. B. gave Iris individual note for a certain, sum, and 0., being induced by the assurances of the firm that the money to be raised on the note was for their benefit, and that they would pay it, signed the same as surety. B. turning out insolvent, C. was compelled to pay the note, and brought suit against A., the remaining partner, for the amount. Held:</p> <p>L That the engagement of the firm was, in effect, a promise to indemnify C.</p> <p>2. That being a promise to indemnify, it was not void under the statute of frauds, as made to 0., who was not a creditor.</p> <p>8. That the firm being liable for the note to B., the engagement of the firm was a promise to indemnify 0. for an obligation which was their own, and hence was not void under the statute as not being in writing.</p>

I. Plaintiff in error is a bona fide purchaser for d reasonable consideration, without notice, and as such ho is entitled to be protected. (Sto. Eq., §§ 165, 881, 409-10; Grisley v. Thayer, 28 Wend. 388 ; James y. Johnson & Morey, 6 Johns. Ch. 417.) H. The deed of trust executed by Hobson to John E. Lockwood, to secure Hoffner, having been recorded first, secured the first lien on the property in controversy.

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

The seventh instruction given for the .State was calculated to mislead the jury to the prejudice of the defendant, and was a comment or argument upon the evidence by the court, which is forbidden by the law, and trenches upon the province of the jury.

I. A resulting trust is created by operation of law where the purchase money is paid by one party and the conveyance taken in the name of another. (Payne-v. Chouteau, 14 Mo. 580 ; Valle v. Bryan, 19 Mo. 423; Rankin v. Harper, 23 Mo. 579; Kelly v. Johnson, 28 Mo. 249 ; Cloud v. Ivie, id. 578 ; Baumgartner v. Guessfeld, 38 Mo. 36 ; Hill. Trust. 92, and notes; Thompson v. Renoe, 12 Mo. 157; Dyer v. Dyer, 1 Lead. Gas. in Eq. 200-1; 5 Abb.

<p>3. Practice, civil — Continuance, affidavit for — Diligence.—"Where a cause was continued from one term to another, and no orders were made for the issuing of subpoenas for witnesses till three days before the second time set for trial, an affidavit which showed, in addition, merely that the applicant for continuance on one occasion “searched all through” the town where witness resided without being able to find him, showed no sufficient diligence.</p>

I. Even if the sheriff sold the land at private sale, he did not transcend his authority. (Wagn. Stat. 867, § 3.) II. The defendants, Linn county, and Cassidy claiming under it, are estopped from denying that the land was sold by the sheriff at public sale, by the recitals in the sheriff’s certificate. (2 Washb.

I. The deed from defendant to Dodge had the effect to make Dodge and those claiming under him tenants in common. (Adams v. Erothingkam, 3 Mass. 352; 1 Washb. Real Prop. 416, “ Tenants in Common,” § 3 ; Co. Litt., § 299 ; Pipkin y. Allen, 29 Mo. 229.) II. One tenant in common can not maintain trespass against his co-tenant for injury to the joint estate. (4 Kent’s Com. 370, 411, 9th ed.) III.

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

<p> Appeal from Fourth District Court. </p> <p>As to her children and grandchildren, Mrs. Donnelly died intestate, and, as against them, the stranger in blood, Hall, took nothing. The will should bo. declared void as against plaintiffs. (Bradley v. Bradley, 24 Mo. 311; Hill v. Martin, 28 Mo. 79; Chouquette v. Baratía, 28 Mo. 491.)</p> <p>While as to plaintiffs in error the deceased died intestate, yet the will is valid, except so far as to let said heirs at law have of the inheritance an equal part with the deviseo. The will is not wholly avoided by the omissions. (R. C. 1855, ch. 181, p. 538, §§2,9.)</p>

The previous judgment ivas admissible, though not between the same parties on thejecord. The rule which renders a prior judgment conclusive on the parties thereto, is not restricted to those who bear that relation on the record; but it includes all who have an interest in the subject-matter of .the suit, and a right to make a defense or control the proceedings. (State, to -use of Hempstead, v. Coste et al., 86 Mo. 487 ; 1 Greenl.

This case is improperly in this court. The judgment appealed from is not a final judgment, the record showing that the only final judgment rendered in the cause was a judgment by the agreement of the parties, from which no appeal was ever talcen.

<p>1. Elections — Section 18 of act of 1868, touching registration, constitutional. ■ — Section 18 of the act touching registration of voters (Sess. Acts 1868, p. 136) is not in conflict with the State constitution in any of the following particulars:</p> <p>1. Its subject-matter is sufficiently pointed out and expressed in the title, of the act, under section 32, article rv, of the constitution.</p> <p>2. Its requirement of a supplemental registration to meet the exigency of a special election, is not at variance with the uniformity of registration required by section 4, article n, of the constitution.</p> <p>3. It is not in conflict with said section 4, article n, as making such special registration evidence of the right to vote.</p> <p>4. It is not unconstitutional on the ground that the neglect of duty on the part of the board of registration might practically work a disfranchisement of voters registered at the regular biennial registration.</p> <p>5. It is not in conflict with section 4, article n, because it allows said board up to five, instead of ten days before the election within which to complete the books of registration, unless the “ completion of the books ” be held to authorize a continued registration of votes down to within, five days of the election, and unless it appear that persons cast their votes within the ten days. Even if the act expressly authorized the continuance of the registration to within five days, that would not vitiate tho whole enactment, b.ut only that particular part of it.</p> <p>2. Mandamus, demurrer to treated as answer — Waiver.—In proceedings in mandamus, whore respondent filed a demurrer to the petition instead of an answer to the writ, and relator agreed to accept the demurrer as a return to the writ, and demurred to it accordingly, his agreement and subsequent action constituted a substantial waiver of his objections to the technical correctness' of the pleadings.</p>

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

The first instruction given by the trial court on its own motion, and commented upon in the opinion of this court, was as follows : “It is the duty of every man to so use his own property as not to cause injury to that belonging to his neighbors ; and the fact of fire escaping from the engine of a railroad company and communicating to the property of others, is a fact to be considered by the jury in determining the question of negligence on the part of defendant; and if the…

I. The statute of Indiana, relating to the offense, should have been pleaded and proved like any other fact. If not pleaded, the court should not have permitted it to be read in evidence. (Townsh. Sland., § 159.) II. There is clearly a variance between the allegation in the petition and the proof.

I. The statute (Rev. Stat. Arkansas, 527) works a discharge of the note everywhere. Whatever constitutes a good defense by the law of the place where the contract is made or is to be performed, is equally good in every other place where the question may be litigated.

<p>1. Deed properly recorded imparts notice, although not indexed. — A deed properly filed'and copied of the record, is recorded within the meaning of the law (B. 0. 1855, p. 1314, $$ 13,14; Wagn. Stat. 1141, 12, 13), and imparts notice to subsequent purchasers, notwithstanding the failure of the officer to index it. The index is no part of the record.</p> <p>The recorder is liable to the party aggrieved for double the amount ol damages sustained by reason of the failure of the officer to inéex the deed But semble, that it must appear that h’is damage arose from such neglect of the recorder, not from other causes, such as, e. g., his own reliance upon false outside representations as to title without an examination of the index, or from his mistaken reliance upon the covenants of his grantor, independent of the matter of notice.</p> <p>2. Deed improperly acknowledged imparts no notice. — Whore it is provided by the statute that, in order to the registration of a conveyance, it shall be acknowledged before some officer, and a certificate thereof entered upon the deed, if the same be recorded without the prescribed acknowledgment, the reeorc^ng will not be constructive notice to any one.</p> <p>3. Justice of the peace in one county can not certify acknowledgment of deed conveying land in another county. — A justice of the peace in one county has no authority to take and certify the acknowledgment of an instrument conveying lands in another county. (B. 0. 1855, p. 358, \ 17, p. 365, $$ 40-1; Wagn. Stat. 274, £ 9, p. 277, 24-5.) Such an acknowledgment is a nullitj’-, and tho deed, although recorded, imparts no notice.</p> <p>4. Conveyances — Defective acknowledgments — Act of 1855 touching, does not cure subjective acknowledgments.— Tho statute concerning evidence (E. 0. 1855, p. 731, § 4G ; Wagn. Stat. 595, $ 35), providing that conveyances made theretofore, and unacknowledged, or defectively acknowledged, should impart notice, was intended to apply exclusively and solely to conveyances made prior to the taking effect of the code of 1855. That statute derives no additional force or power from being found in the statutes of 1865. Its republication must bo construed as a continuation of the old law, and not as a new enactment. (Wagn. Stat. 897, $5.) Hence, when a defectively acknowledged mortgage was made after the adoption of the Eevised Code of 1855, it does not come within the saving clause of that enactment, and imparted no notice.</p> <p>5. Conveyances — Defective acknowledgments can only be taken advantage of by a purchaser for value. — A defective acknowledgment can onlv be taken advantage of by a purchaser for a valuable consideration. In all cases the purchaser must show that he paid tho purchase money before he is entitled to relief on account of not having any notice.</p>

I. Tbe deputy sheriff had full authority to make the deed (Ter. Laws, 618, § 10, Geyer’s Dig.); and even if no express authority were given by law, yet the making up of the deed was a ministerial act, and could be performed by a deputy. ( Lewis v. Lewis, 9 Mo. 188.) II. The defect, if any, in the certificate is cured by section 36, chapter 143, p. 595, Wagn.

I. The court erred in bolding that tbe judgment and decree of sale to enforce tbe vendor’s lien, and tbe execution sale and sheriff’s deed, were void and did not divest plaintiff of bis* equitable interest in tbe land. II. Tbe suing out of an execution by tbe administrators of tbe deceased plaintiff, without a revivor of tbe judgment, is authorized by section 17, p. 904, R. 0. 1855.

<p>1. Grimes and punishments — Evidence as to facts after the commission of the act, showing animus. — -In the trial of an indictment for willfully and maliciously killing a hog, evidence on the part of the accused, showing his animus and intention, was competent in establishing his innocence, _although it embraced facts subsequent to the killing.</p>

<p>X. Lands and land titles — Actions for recovery of lands, limitations to — Act in force at time action is commenced, and not when cause of action accrued, must govern. — An action for real estate brought more than ten years from the passage of the act of 1847, and more than three years after the disability of the defendant had been removed (Sess. Acts 1847, p. 94, $$ 1, 4), was barred, even though the cause of action accrued under the limitation act of 1825, which permitted plaintiff to sue at a date subsequent in point of time to that limited by the act of 1847. And the ease would not be taken out of the provisions of the act of 1847 by section 15 of the limitation act of 1855 (E. 0.1855, p. 1053, l 15). Under a proper interpretation of that section, plaintiff’s action was subject to the laws in force at the time of the passage of the act of 1S55, viz: the laws of 1847. The “ laws referred to in section 15 were not those in force when the right of action accrued, but when the - act of 1855 took effect. And section 14 of the limitation act of 1865 (Gen. Stat. 1865, p. 747) does not enlarge the scope of section 4 of the act of 1847. Section 14 is a continuation of section 10, article n, chapter 103, E. 0.1855, and has no ' reference to suits for the recovery of real property.</p>

<p>1. Ejectment — Sitb-letting —Rescission—Rents' and profits, testimony as to.— Under an agreement between A. and B. for the sale of certain promises then in litigation, the deed was not to be required till the title was quieted, but B. was to have immediate possession, with full power to act in all things as if he had the absolute conveyance, taking to his own use the rents, issues, and profits. B. went into possession and sub-let to 0. In ejectment by A. against 0., held, that an application of A. for rescission of the contract by mutual consent was not a rescission, nor did it imply any breach or abandonment of the contract on the part of B.; and that, while his rights in the premises continued under the agreement, rents were properly paid .to him by 0., and could not be again recovered from 0., and that testimony showing payment of money for rents and repairs by C. during that time was proper.</p>

I. The question at bar was exclusively for trial by the 'court, just -as a motion to quash'an execution’, or to have satisfaction of a judgment entered of record. N. But if it was proper to call a jury, then the whole issue should have been submitted to a jury, subject to instructions from the court. «There is no warrant for framing special issues and submitting them to a jury. The only eases in which they are authorized are specifiedin sections 12 and 18, Wagn. Stat. 1041.

<p>1. County Courts — Powers — County wmi'ants— Absconding treasurer.— Although a County Court is endowed with large discretion in the management of its affairs, it has no authority to order the issue of a county warrant for amounts of money expended by the sureties of a defaulting and absconding county treasurer in bringing him back, even though they obtained from him a large proportion of the amount in arrears, where it further appears.that the sureties were amply good for the deficit, and that there was no reason to suppose that he took with him any oftho property of the county in specie. Such ' action of the court would not be in behalf of the county, but of the signers of the bond alone. And it would not -811601 their claim, that one of the judges had advised the step and assured them of his influence with the remaining judge to secure the issue of the warrant. Such a case would not be one of.the injudicious exercise of a given power, but a naked assumption of power, in no wise granted, which it would be the duty of courts to chock.</p>

<p>I. Practice, civil — Judgments rendered against persons formerly in military service within year after discharge, irregularity of — Statute, construction of. — A judgment can not be set aside on tlio ground of irregularity under the acts of May 15, 1861, and March 13, 1803 (Sess. Acts 1861, p. 46, and Sess.^Acts 1863, p. 30,) simply because rendered against defendant within a year after his discharge from the military service of the United States. These acts do not prohibit the institution or prosecution of suits against ■ persons in the military service, but they merely secure to such persons, when sued; the right to dolay the trial and put off the final judgment until twelve months after their discharge. • And the part}1, in order to avail himself of the right, must claim it at the proper time and place; otherwise ho will be held to have waived it.</p>

I. Where the purchaser'of an equity of redemption pays an outstanding mortgage, made by his grantor, in which his wife had released dower, the mortgage will not be deemed to be merged.

If any one interested in an estate, as heir or purchaser, pay the encumbrance and discharge the mortgage, he acquires an equitable lien upon the estate. (1 Washb. Real Prop. 216, § 21; 1 Scrib.

Louis Circuit Court. Edward W. Stands was duly appointed and qualified as collector of tbe State and county revenue within and for the county of St. Louis, in the State of Missouri, for the year 1860, and until his successor should be duly appointed and qualified. The said Shands filed his official bond for $500,000, dated February 23, 1860, wherein said Shands was principal.

<p>1. Quo warranto — Information — Sufficiency of interest of relator. — The enactment that informations in the nature of a quo warranto may he exhibited at the relation of any person desiring to present the same (Wagn. Stat. 1133, ^ 1) moans any person having an interest in the subject of tho prosecution. (State ex rel. Hequembourg v. Lawrence, 38 Mo. 535, cited and affirmed.)</p> <p>2. Quo warranto — Information — Interest of relator. — An information in the nature of a quo warranto, to decide as between two parties which has the better right to a certain office, must show affirmatively that the relator has a title to the office, if the defendant’s title bo defeated, and therefore must show that the relator possessed all the requisite qualifications for the office.</p> <p>8. Elections — Votes for candidates who have not filed the candidates’ oath.— Votes cast for a candidate who has neglected to take and file the oath of loyalty prescribed by the constitution, are nugatory. The constitution distinctly prohibits their being cast up or treated as votes all.</p>

<p>t. Husband and wife — Separate property of wife — Particular mode of disposition will not preclude her from adopting another mode, when. — A femme covert is absolutely afemine sole with respect to her separate estate when she is not specially restrained, by the instrument under which she acts, to some particular mode of disposition. The jus disponendi is incident to her separate estate, and follows it by implication. And although a particular mode of disposition is pointed out, it will not preclude her from adopting any other mode of disposition unless there are words restricting- her power of disposition to the only mode pointed out.</p> <p>2. Note by mairied woman to create a charge on her separate estate, must show an intent to charge it, and the intent must be gathered from the contract itself. — Anote signed by a married woman, jointly with her husband, does not create a charge upon her separate estate unless a true interpretation of the contract shows an intent to render it liable. And her intent must be gathered from the contract itself, and not from extraneous parol evidence.</p> <p>Thus, on the sale of certain land, a note for the purchase money, signed by the wife jointly with her husband, and secured by deed of trust, would not, on that state of facts, create a charge on the separate estate of the wife so as to render it liable for the residue of the debt in case the note was unpaid, and the, land being sold under the deed of trust failed to satisfy it; and for the reason that a true interpretation of the note and deed taken together showed that the only security intended to be pledged was the property purchased.</p>

Louis . Circuit Court. I. The decisions at common law, relied on, are founded on a principle of lapsed and void legacies, which has( been radically changed by our statute. Held: notwithstanding its peculiar provisions, that Mrs. M. was not embraced in the devise, and was therefore not a devisee under the will.

<p> Appeal from Fourth District Court, </p> <p>cited 26 Mo. 102, 308 ; 23 Mo. 328; 41 Mo. 536 ; 37 Mo. 104 ; 38 Mo. 51; 31 Mo. 165; 4 Mo. 41; 29 Md. 512, 575.</p> <p>cited Chouteau v. Goddin, 39 Mo. 229 ; Newman v. Hook, 37 Mo. 207 ; Marsh v. Richards, 29 Mo. 99 ; Helm v. Wilson, 4 Mo. 41; Little v. Mercer, 9 Mo. 218; Gen. Stat. 1865, pp. 683-4, §§ 1-6 ; Bishop v. Ransom, 39 Mo. 416 ; State v. Marshall, 36 Mo.,,400 ; Bailey v. Chapman, 41 Mo. 536; Moses v. Bierling et al., 31 N. Y. 462.</p>

Louis Circuit Court. John R. Sarpy resided in France several years next preceding his death, which occurred April 26, 1868. The defendant was the agent and attorney in fact of said Sarpy, and had possession of his assets in St. Louis, and collected rents, etc.,, for him, for all which he received a regular compensation. Among the assets of Sarpy in the hands of defendant -was a note for $10,000, dated May 9,1865, payable twelve months after date.

cited Train & Heard’s Prec. & Indict. 50-4, 459-63 ; Wagn. Stat. 1090, § 27. The indictment fails to set forth any offense. There is no sur-plusage. No words can be stricken out of the indictment and make it good, without inserting others in lieu thereof. ■ The indictment did not properly set forth the material allegations constituting the crime of an attempt to commit robbery. (Wharton5? Prec. & Indict. 1048 et seq.)

Louis Criminal Court. I. The court erred in permitting the confession of the defendant to go to the jury. (1 Greenl. Ev. 26-3-66, §§ 219-22 ; 1 Phil. Ev. 449, and authorities cited; Rex v. Gibbon, 1 C. & P. 97; Rex v. Enoch & Mary Pullen, '5 C. & P. 539 ; 8 0. & P. 734; Hector v. The State, 2 Mo. 135 j 1 Arch. Crim. PI. 125-6; Roberts’ Case, 1 Dev, 259-64; Roscoe’s Crim.

I. The answer sets up facts which constitute a good legal and equitable defense to plaintiffs’ action. The consideration for the notes sued on moved from B. S. Reppy alone; Ms wife had no interest whatever in the goods sold to defendant; the making of the notes sued on payable to her was a fraud on the existing creditors of B. S. Reppy. The notes sued on really belong to him alone, and his creditors have an equitable right to subject said notes to the payment of their debts.

<p> Appeal from St. Louis Criminal Court. </p> <p>cited 31 Penn. St. 15.</p> <p>cited 31 Penn. St. 15.</p>

<p>1. Pike v. Mog-oun, 44 Mo. 491, affirmed.</p>

Louis Circuit Court. This was a suit by a city contractor against the owner of adjoining property, on three special tax bills issued by the city of St. Louis for the improvement of Destechan street, by virtue of city ordinance No. 5853. Said ordinance is as follows: [No. 5353.] Ait Ordinance for the improvement of Destrehan street, from North Second street to the Mississippi river. Be it ordained by the City Council of the city of St. Louis: Section 1.

Louis Circuit Court. I. Tho petition alleges in precise, apt terms: 1. That the property ivas conveyed to Mrs. Ambs before her marriage with defendant Poter Ambs, and while she was discovert. 2. That upon said marriage with defendant Peter, she assumed the separate use and enjoyment of said property, and has ever since had the sole and separate use thereof. 3.

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

Louis Circuit Court. I. The overwhelming weight of decisions sustain the agent’s implied power to give warranty at the time of sale, because “ a warranty is one of the usual means of effecting a sale.” (6 Hill, 336 ; Eenn v. Harrison, 3 T. R. 761; 4 T. R. 117 ; Helyear v. Hawke, 5 Espin. 72; Wo.odin v. Buford, 2 Cramp & M. 391; Andrews v. Kneeland, 6 Cow. 354; Nelson v. Cowing, 6 Hill, 336; Milburn v. Belloni, 34 Barb. 607; Hunter v. Jamison, 6 Ired. 255-60 ; Woodford v.…

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

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

<p> Appeal from SI. Louis Circuit Court. </p> <p>There was error in the refusal of defendant’s first instruction. (Wood y. Steele, 6 Wall. 80 ; 2 Pars. Bills and Notes, 550-2; Chit. Bills, 182; Triggs v. Taylor, 27 Mo. 247; Henderson v. Bondurant, 39 Mo. 374.)</p>

The evidence in this case shows that the appellant keeps a. house at which travelers are entertained and guests boarded. No dram-shop or stable are shown to be connected with it. It is a boarding-house, and in no sense can it he termed a tavern. The Legislature intended that all public houses at which there are liquors retailed, and having stables connected with them, should be licensed if the city council chose to exercise that power.

tñpjieal from St. Louis Circuit Court. I. The quantity of land in' a city, town, or village is not confined to one acre. (See Wagn. Stat. 909, § 1; Houck on Liens,1 178, § 178 ; Derrick v. Edward, S. Dutch. 45.) H. But if the law is held to be different, and the lien is held to extend only to one acre, the lien is not for that reason vitiated. ’ HI.

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

<p>1. Assignment — Chose in action not assignable — Assignee may sue on in his own name. — An assignee of a chose in action, not assignable at common law, may bring suit thereon in his own name; and this right existed prior to and independent of section 4, chapter 21, It. 0. 1855.</p>

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

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