Volume 47 — Missouri Reports

Louis Circuit Court. I. It appears in evidence, in this case, that the 'money deposited by plaintiff was the proceeds of real estate belonging to her. H. The amount in suit the bank claims to have paid to her husband on checks signed by him “ Sarah P. Clark, by L. P. C. Clark.” But the husband, by the very act of checking it out, recognized it to be her money by signing his name as her agent. No attempt is made to show that he was her agent for any such purpose.

Louis Circuit Court. I. The contract of October, 1845, settles no property on Mary Melinda except- that which is therein conveyed to trustees for her use. II. As to after-acquired property, it merely contains a covenant that Britton A. Hill will renounce all rights thereto accruing to him by reason of the marriage. III. The marriage between Britton A. Hill and Mary.

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

Petition for Mandamus. The act of March 18, 1870, attempts to amend many sections of the old law, and nowhere sets forth or publishes these sections as amended. The law ought, therefore, to be declared void. (Davis v. State, 7 Md. 151-9; Langdon v. Applegate, 5 Ind. 830 ; Walker v. Caldwell, 4 La. Ann. 297; Heirs of Diiverge v. Salter & Marcy, 5 La.

<p>1. Revenue, collection of — Act of March IS, 1870, constitutional. — The act of March 18, 1870, touching the assessment and collection of revenue on real estate (Sess. Acts 1870, p. 114), is constitutional. (State ex rel. Maguire v. Draper, ante, p. 29, affirmed.)</p>

<p>1. Practice, Supreme Court — Appeal — Failure to file transcript. — When appellant fails to prosecute his appeal as required by statute, and respondent presents to this court a perfect transcript, no reasons being shown to the contrary, motion for affirmance óf judgment will be sustained.</p>

Jlppeal from Sixth District Court. I. An agreement for valuable consideration to make a will in a particular way is valid in law and enforceable in equity. If the contract can not be performed literally and exactly, it will yet be performed substantially if it can be done. (Wright v. Tinsley, 30 Mo. 389 ; Davidson v. Davidson, 2 Beasley, N. J., 246 ; 3 Pars. Cont. 406, and notes e, o,f; 2 Sto. Eq.

Louis Circuit Court. I. The measure of damages established by the fifth instruction is erroneous and the damages are excessive. II. The contract of insurance is a contract of indemnity. If entitled to recover at all, the assured is only entitled to recover what he has lost by the peril insured against. (1 Phill. Ins. 1, § 1; id. 5, § 5185, § 827; 2 Phill. Ins. 47, § 1238; McGregor v. Ins. Co. of Pennsylvania, 1 Wash.

I. A certificate of loss sworn to by the insured himself is a condition precedent, and must be complied with before a recovery can be had on the policy. (Mann v. Harvey, 8 Exch. 819 ; Norton v. The R. & S. M. Co., 8 Cow. 645; Ang. Ins., § 226; Noonan v. Hartford Ins. Co., 21 Mo. 81; 2 Pet. 25; 10 Pet. 507; Wallingford v. Home Mut. Ins. Co., 30 Mo. 46 ; 3 Kent’s Com. 376, and authorities cited; Leadbetter v. Ins. Co., 13 Me. 265; Ang. Ins., §§ 225, 227; ¿Etna Ins.

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

I. Plaintiff claims that the agreement with him can be proven by parol. (28 Mo. 586 ; 84 Mo. 883-8.) It was not a judicial proceeding. Directing an index to be made was no adjudication.

I. This action was not brought until five years and six months had elapsed after Boyce arrived at the age of twenty-one years. Within two years from that time he could have sued, but not after that time. The law expressly forbids it. It is positively prohibitory. (Wagn. Stat., tit. “ Apprentices,” §§ 11-17.) II. The finding for plaintiff was irregular, and the judgment should have been arrested and a new trial granted.

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

<p> Error to First District Court. </p> <p>I. The indictment is based on section 35, chapter 206, Gen. Stat. 1865 (Wagn. Stat. 504), for the violation of which the law originally provided two remedies: one by civil action before a justice of the peace (Wagn. Stat. 809, § 2; id. 516, § 29); the other by indictment in the Circuit Court {id., §§ 30, 32). The act of 1868 (Sess. Acts 1868, p. 81) did not abojish both remedies. (See Const, of Mo., art. iy? § 32, and the title and provisions of the act itself.) Neither- the title nor the body of the act touch the remedy by civil action. There being, then, a statutory remedy, and the offense being of a statutory creation, that remedy must be pursued, and indictment will not lie. (Rid-dick v. Governor, 1 Mo. 147; Journey v. State, id. 428 ; Williams v. State, 4 Mo. 480 ; State v. Corwin, id. 609 ; 4 Kent, 467, and notes ; 3 Bac. 97, and notes.)</p> <p>II. Section 2, page 809, Wagn. Stat., and sections 29 and 32, page 516, Wagn. Stat., are not inconsistent with the act of 1868, and were not repealed by it. And, as all the provisions may stand together, the rule of repeal by implication does not apply.</p> <p>III. Though repealed February 24, 1869, the act of 1868 continued in force as to offenses committed prior to its repeal. (Wagn. Stat. 895, § 6.) The repeal did not affect the offense committed, nor the fine incurred, “ but the trial and punishment of the offense and the recovery of the fine shall be had in all respects as if the provision had remained in force.”</p> <p>I. Under the General Statutes there were two remedies for the offense charged in this case. 1. By civil action before a justice of the peace. 2. By indictment (Gen. Stat. 1865, ch. 207, §§ 29, 30). By the act of 1868 (Sess. Acts 1868, p. 81) both of these remedies were abolished, and the remedy by information substituted in their place. This latter act was repealed (Sess. Acts 1869, p. 69), but neither of the former remedies were re-enacted, thus leaving the offense without any positive statutory remedy.</p> <p>II. Where an act is made an offense by statute, which was not an offense at common law, and no remedy or mode of punishment is directed, it may be prosecuted by indictment or any other common-law remedy adapted to the case. (1 Chit. Crim. L. 162; 5 Bac. Abr. 56 ;■ 2 Hawk, P. C., ch. 25, § 4; Rex v. Lainsbury, 4 T. R. 457; 1 Arch. Crim. Pr. & PI. 4; Commonwealth v. Hawes, 15 Pick. 231; Wood v. Commonwealth, 12 Serg. & R. 213.)</p> <p>III. But even if the remedy by civil action was not repealed, the offense would be indictable. Where the only statutory remedy for an offense created by statute is by civil action, the remedy by indictment is not excluded. (2 Hawk, P. C., supra; 5 Bac. Abr. 57.)</p> <p>IV. And where an offense is created by statute, which was not an offense at common law, and a particular punishment or mode of' proceeding is assigned, but such mode of proceeding is not prescribed by some clause or section of the statute which creates the offense, the remedy by indictment is not taken away, unless by express negative words. (1 Arch. Crim. Pr. & PI. 4; 1 Russ. Crimes, 49, 50 ; 2 Hawk, P. C., supra; Doug. 441-6 ; 1 Burr. 445 ; State v. Thompson, 2 'Strob. 12; King v. Harris, 4 Tenn. 205 ; Sedgw. Stat. & Const. Law, 406.)</p>

Jlppeal from St. Louis Circuit Court. I. By reason of Ms fiduciary relations, defendant’s claims, as set up in this case, are rendered absolutely fraudulent and void. The law will never permit any one wbo acts in a fiduciary capacity to make tbe least profit or speculation out of the trust property or out of the relation he sustains to the subject-matter of the trust or Ms relations to it.

Louis Circuit Court. The court erred in admitting in evidence the sale of the personal property and the assignment of the lease by M. Peppier, as administratrix, because said sale was void — it not being authorized by the Probate Court — and the administratrix had no power to sell at private sale without authority from the court. The petition by her to the Probate Court for leave to sell was not granted, as appears of record. (Wagn.

Where the acts or covenants of the parties are concurrent and to be done or performed at the same time, the covenants are dependent, and neither party can maintain an action against the other without averring and proving performance on his part.

<p>1. Revenue, county — Roads— General county tax — Construction of charter.— Citizens of the city of Hannibal are not exempt from county taxes by virtue of section 7, article ix, of the charter of that city (Sess. Acts 1851, p. 337). The charter merely exempts them from taxes “for any county road purposes.” The word “road” was evidently omitted inadvertently.</p>

I. The court erred in sustaining respondent’s motion to strike out appellant’s plea to the affidavit for attachment. The cases where such plea has been stricken out for the reasons assigned in respondent’s motion, are decisions under statutes providing that the suit should be dismissed if the plea to the attachment should prevail (Sess.

I. Tbe act of 1864 is a new charter, and no amendment to the act of 1857. Corporations are tbe creatures of tbe law; and, without any express declaration in the charter of 1864 that the same shall be an amendment to the act of 1857, no court has a right to presume so from the mere fact that the name of the corporation is the same. II.

To say that the acknowledgment must be one of a subsisting debt which the party is ready and willing to pay, is to say that the acknowledgment must in terms also show a promise to pay. If that be so, then there is really no distinction between an acknowledgment and a promise.

*ror to Sixth District Court. This was a bill for an injunction brought against the County Court of Lincoln county to restrain the issue of the county bonds designed to be given for the purchase of the capital stock of the St. Louis and Keokuk Railroad Company.

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

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

I. On the facts set forth in the instruction of the court below, the limitation act of 1825 governs in this case, and the suit was not barred. (Schultz v. Lindell’s Heirs, 40 Mo. 852; Reaume v. Chambers, 22 Mo. 54; Billon v. Larimore, 37 Mo. 387.) H. The instruction given by the court assumes a state of facts which was not in proof. Mary Lyons took a life estate in the land upon a condition subsequent. (2 Washb.

<p>1. Equity — Election, general principle of. — The general principle of election is frequently applied by courts of equity in cases of wills, and rests upon the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one, that he should not enjoy both.</p> <p>2. Equity — Specific performance — Election.—A testator made a devise of “the residue ” of his estate, in trust for the use and benefit of his heirs, among whom was A. Afterward the testator agreed to convey to A. a certain tract in Shelby county, which tract A. proceeded to possess and improve. On testator’s death, the trustees paid over to A. his portion of the uses and profits derived from the “residue.” In suit against the trustees for specific performance of testator’s contract to convey, held, that A. would not be compelled to elect between the rents and profits of his share in the residue and the land in controversy. The disposal of the Shelby land during the lifetime of the testator, took it out of the residuary clause, and showed that he had no intention to include that property in the devise.</p>

On Motion to Jlffirm Judgment of Common Pleas Court. This is a motion to affirm the judgment of the Common Pleas rendered at the March term, 1865. From that judgment an appeal was taken to this court, and at the March term, 1867 (40 Mo. 406), said judgment was reversed and Magwire’s petition dismissed.

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

Jippeal from Sixth District Court. I. A verbal promise to pay the debt of another is invalid in all cases, unless the debt is extinguished and the new promise accepted in its stead.

<p>1. Partition, sale in imports no warranty of title. — In a suit by a sheriff on a note given by the purchaser of land at sheriff’s sale in partition, for the payment of the purchase money, an answer averring failure of title in the grantor constitutes no defense. A sale in partition imports no warranty of title. The deed simply conveys the interest of the parties to the proceedings, and is only a bar against them and persons claiming under them.</p>

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

Louis Circuit Court. This was an action of ejectment. At the trial plaintiff put in evidence an act of Congress, approved April 12,1866 (14 U. S. Stat. 580), confirming to Augustin Amiot or his legal representatives a certain described lot in block 46 of the city of St. Louis. It was admitted that the plaintiff was the legal representative of Augustin Amiot.

I. The Circuit Court of St. Charles erred in framing issues and sending them out to be tried by a jury in this case. This was a chancery case, and neither party had any right to demand a jury. (Morris v. Morris, 28 Mo. 114-17.) II. The court erred in allowing the plaintiff to testify to an alleged contract made by him with John B. Davis in his lifetime. This alleged contract is the foundation of plaintiff’s claim. It was the matter in issue and on trial.

<p>1. Repeals by implication not favored. — The law does not favor repeals of statutes by implication. A later statute, which is general and affirmative, does not abrogate a former one which is particular, unless negative words are used, or unless the two acts are irreconcilably inconsistent.</p> <p>2. Revenue — Foreign insurance companies — Ordinance compelling payment of ‡%00 invalid — Construction of statute. — Agents of foreign insurance companies are not liable to payment of $200 for license, as called for by the city ordinance of St. Louis, approved June 29,1869. Subdivision 45 of section 1, article rv, of the city charter, passed in 1867 (Sess. Acts 1867, p. 45), authorizing the license, by ci'dinance not inconsistent with the laws of the State, of “all insurance companies, banking corporations and banking associations,” did not repeal section 6, page 780, "Wagn. Stat., compelling agents of foreigD insurance companies to pay an annual tax of $100 to the city collector, but left that section in full force. There was nothing irreconcilable between the general affirmative power as to licensing, contained in the city charter, and the especial clause embodied in the statute. Hence the ordinance of June 29,1869, was unauthorized and void.</p>

St. Louis Circuit Court. I. The power to license merely does not confer the right to impose a tax for the purpose of revenue. (Essex v. Barber, 2 Halst. 64; Kip v. City of Patterson, 2 Dutch. 301; City of Cincinnati v. Bryson, 15 Ohio, 625.) H. It is submitted that the clause of the city charter in question impairs the obligation of the contract created by the charter of defendant, and is an infringement of its vested rights.

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

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

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

<p>1. Habeas corpus, constitutionality of law should not be tested by in the Supreme Court. — Where one has been arrested and detained on legal process by a court having jurisdiction of the person and the offense, is in custody of the proper officer, and by virtue of a provision of the law, this court will not, on a writ of habeas corpus, inquire into the constitutionality of the law under which he waa arrested. He should tost the validity of that question by means of trial in the appropriate court.</p>

<p>I. Act of March IS, 1867 — Construction of statute —Revenue —Special tax hills — Execution—Transcript. — The act of March 13, 1867 (Sess. Acts 1867, p. 79, art. xi), repealing that of March 19,1866 (Sess. Acts 1865-6, p. 79), does not authorize the enforcement of the judgment of a justice of the peace upon a special tax bill, oh filing of a transcript of the judgment, by the issue of an execution thereon by the circuit cleric.</p>

<p>1. City of St. Louis v. The Independent Ins. Co. of Massachusetts, ante,, p. 146, affirmed.</p>

<p>1. Forcible entry and detainer, question of right does not arise in. —In actions ' of forcible entry and detainer the question of right does not arise. "</p>

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

I. Defendant’s counter-claim was in the nature of a new suit, and was the suit of defendant against the plaintiffs, which suit plaintiffs could not dismiss. (Gen. Stat. 1865, ch. 165, § 147; Riley v. Carter, 3 Humph. 230; Waterm. Set-off, § 613, note d.) II.

<p>1. The City of St. Louis v. The Independent Ins. Co. of Massachusetts, ante, p. 146, affirmed.</p>

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

<p> Error to Second District Court. </p> <p>cited Davis v. Davis, 8 Mo. 56; 5 Am. Law Reg., N. S., 142 ; 1 Stark. Ev., § 652 ; Boardman v. Reed’s Lessee, 6 Pet. 845 ; Dell v. Dawson, 32 Mo. 87; Hardy v. Mathews, 38 Mo. 121 ; Campbell v. Johnson, 44 Mo. 250; Clemens v- Rannells et al., 34 Mo. 579; Speck v. Wohlien, 22 Mo. 315; Moreau v. Detchemendy, 18 Mo. 522.</p> <p>The omission of not stating the county in the deed was not such an ambiguity as would defeat the title. (Hart v. Rector et al., 13 Mo. 497 ; Evans v. Green, 21 Mo. 170 ; 44 Mo. 185; 43 Mo. 13 ; 1 Greenl. Ev. 6.)</p>

Louis Circuit Court. The employer has the right to say how his business shall be transacted, and the rules which he lays down for the government o£ that business must be observed by the employees unless they are in violation of law or morals. (Switzer v. Connet, 11 Mo. 89.) The employee who receives a reward is bound to observe with care and diligence the interests of his master or employer, and must exercise the same vigilance and attention his employer would have done.

Louis Circuit Court. It was not within the jurisdiction of the Circuit Court to reverse the judgment ■ of the Circuit Court at Special Term because, in the opinion of the judges of the Circuit Court at General Term, the verdict was against the weight of evidence.

<p>1. Lands — Swamp lands — Sale of by County Court, act of 1868 to validate, not unconstitutional.— Certain swamp lands were sold by tbe County Court of Barton county. The court had full jurisdiction in tbe premises, but the sales were attended with informalities and irregularities. Held, that the act of March 26,1868, validating the titles to those lands, was not unconstitutional as being retrospective in its operation.</p> <p>As between individuals, the Legislature can not validate void deeds. But counties are not individuals. They are political divisions of the State; their functions are of a public nature; they hold their property in subordination and under tbe control of the Legislature.</p> <p>The law distinguishes between sales by County Courts which are without authority and absolutely void ab initio, and those which are made by authority of law, but are informal and irregular.</p>

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

Jlppeal from First District Court. Crandall 4’ Sinnet, for appellant, urged, among other points, that the motion in arrest should have been sustained because there was a defect in parties; that George R. Smith held the legal title to the lot in controversy, and should have been made a party defendant. (Sto. Eq.

<p>1. Wills. —A testator by will gave all his property to bis wife, to manage and control for her benefit and that of their children, with power of sale, etc., and, at her death, to bo divided among his children. On her death the administrator of testator took possession of her personal property, embracing household furniture, notes and accounts, claiming that they belonged to that estate,- to be distributed according to tbe will. The administrator of the estate of the wife demanded the property, and proceeded against testator’s administrator by attachment, under the statute (Wagn. Stat. 85, gg 7-11). It appeared in evidence that, for many years after tbe death of her husband, the wife continued the business, and died in possession of an estate, treating it as her own, worth more than double that which was left her. Held: 1. That the property in charge of the wife, although a trust estate, as it terminated at her death, did not go to the administrator of the trustee, but went at once to tbe heirs of the testator, 2. That the household furniture was hers, whether she accepted ox renounced the trust, and that the will should be held to apply only to tho property subject to distribution. 3. That though the proper increase of the trust property was affected by the trust, yet the will being partly for her benefit, she was entitled to her proportionate share in the profits, á. That, as the property belonging to the wife was so mixed with the other as not to be easily separated, the proceedings under the statute for concealing and embezzling property were not the proper ones for investigating the subject.</p>

<p>1. Contracts — Constitution—Act of 1859, vacating offices in the University of the State of Missouri, did not impair the obligation of a contract. — In a suit against tho University of tho State of Missouri, for salary claimed to bo due plaintiff, it appeared that he had been elected to fill an office made vacant by the act of 1855 (R. C. 1855, p. 1502, g 24), for a term of six years, “subject to lawthat by the act of December 17, 1859 (Sess. Acts 1859-60, p. 91), all the offices of professors, tutors, and teachers connected with the university, including his own, had been declared vacant. Held, that the act was not unconstitutional as impairing the obligation of a contract.</p> <p>The university was a public and not a private corporation. There were no grantees named in the act creating it (Sess. Acts 183S-9, p. 176), and consequently no parties either to accept or reject the grant. Under it the State entered into no compact with private parties; the private contributions given to secure its location did not make the contributors founders of the university; nor did the contributions alter tho character of the institution.</p> <p>Being elected, plaintiff did not hold his office by virtue of a contract with the university. He was an officer, and not an employee, of the institution.</p> <p>Being elected “subject to law,” he was subject both to existing laws and such laws as the Legislature might thereafter enact.</p>

I. Plaintiffs could only recover on their legal title, and they had none when they instituted their suit, nor have they any now. (Hill v. Draper, 10 Barb. 454; Gurno v. Janis’ Adm’r, 6 Mo. 330.) H. An outstanding title in a mortgagee is a good defense to an action of ejectment, and the same rule applies as to deeds of trust. (Meyers v. Campbell et at., 12 Mo. 603 ; Norcum v. D’Oench et al., 17 Mo. 98; 2 Greenl.

The Circuit Court erred in refusing to allow the deed from Alexander to Carey and Stevens to be read in evidence. The land it described had been sold to Carey and Stevens, and they had entered into possession of same. The sale to Carey and Stevens and entry into the premises was a delivery and accept-. anee-of the deed. Although the deed remained in Alexander’s custody, it was constructively delivered, and he was a mere bailee J thereof.

This was a suit begun by attachment. Judgment by default was rendered against defendant. Afterward the judgment was set aside on motion of defendant, who thereupon demurred to the petition. The demurrer was sustained, and the plaintiff excepted. Then on motion o£ defendant the court dissolved the attachment and dismissed the cause, gave judgment for costs and charges, and ordered execution. ' For statement of the case see also opinion of the court.

<p>1. Practice, civil — Actions — General verdict, when petition sets out different causes of action, bad. — When a petition sets out several distinct causes of action, a verdict for an entire and gross sum can not be sustained. There should be a separate assessment on each cause or count, in order that the court may know how the issues were found and what amount was assessed on each count. But if there is one entire cause of action, and one good count in the declaration, a general verdict and general assessment of damages will answer.</p> <p>2. Practice, civil — Damages, action for, against railroad company — Cause of action — Count—General verdict. — In suit against a railroad company for the killing of plaintiff’s husband, the petition embraced two counts, framed respectively on the second and third sections of the act relating to damages (“Wagii. Stat. 519-20). The first count charged that the killing was caused indirectly by the corporation, through the negligence, unskillfulness, and criminal intent of its employees; the second, that the death was ' owing directly to the neglect or default of the company. PCeld, that the two counts contained but one subject-matter of complaint, .viz: the killing of complainant’s husband; and therefore but one cause of action, although stated in different ways to meet the evidence. Hence there could be but cne verdict and one assessment.</p> <p>A verdict based on either section would be a complete bar to a prosecution of the action on the other section. And where such is the case the cause of action must necessarily be the same.</p> <p>8. Evidence — Dying declarations, when admissible in civil actions as part of the res gestae. — The doctrine permitting dying declarations, as- such, to be given in evidence, applies exclusively to criminal prosecutions for felonious homicides, and has no reference to civil cases. But in suits of the latter description, declarations of dying persons are sometimes admitted on a'different principle.' Thus, such a declaration in regard to the cause of-■death growing directly out of, and made immediately after the happening of, the fatal event, would be admissible as constituting a part of the res gestee.</p>

Under the statute (Wagn. Stat. 310, § 43), it is indispensable that plaintiff allege and prove not only that stock got on where defendant was obliged to fence, but also that the stock did not get on at the public crossing. (Calvert v. Hann. & St. Jo. R.R., .34 Mo. 244 ; Quick v. Hann. & St. Jo. R.R., 31 Mo.'399 ; West v. Hann. & St. Jo. R.R., 34 Mo. 177; Dyer v. Pacific R.R., id. 129; O. & M. R.R. v. Brown, 23 111. 94; O. & M. R.R. v. Taylor, 27 111. 207; Gr.

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

<p> Petition for Habeas Corpus. </p>

Petition for Habeas Corpus. I. The prisoner should be discharged from his imprisonment. The full term of his imprisonment has expired. II. The trial, conviction and sentence, under which the third warrant issued, were illegal, and said warrant void, the prisoner at the time of such trial being under sentence for felony. (Ex parte Meyers, 44 Mo. 279; Ex parte Turner, 45 Mo. 331; Wagn. Stat. 513.)

I. The two commissioners, Dyer and Wilson, not having been re-appointed, and having made a report in pursuance of their first appointment, could not again act and report. This is a statutory proceeding ; the law is explicit that the report of commissioners must fail of approval before the commissioners can again proceed. (Gen. Stat. 1865, ch. 130, p. 523, § 29; Shore v. Coons, 24 Mo. 556.) II.

I. The appearance of a defendant by filing his petition, and the presentation of it to the court for the purpose of having the original judgments in the cause set aside, are very different things; one may be done in vacation, the other only .in term time.

This was a suit commenced in the Cole Circuit Court by plaintiffs, upon a mechanic’s lien filed against the Presbyterian church in the City of Jefferson. The title of the suit is, “ S. K. Miller, M. L. Miller, and S. N. Sheldon v. The Presbyterian Church,” etc. Defendants answered, setting up amongst other things that the defendant, the Presbyterian Church, was a corporation, and must be sued as such.

<p>The law certainly contemplates more than one meeting of the board. (Sess. Acts 1870, p. 135, § 6.)</p>

I. The limitation of liability of stockholders to suits commenced within one year applies only to the constitutional individual liability, and not to the amount due on subscriptions to stock. (1 Wagn. Stat. 291, § 13 ; id. 336, § 13.) H. The statutory provision prescribing one year’s limitation is unreasonable and void. ■ (Cooley on Const.

<p>1. Conveyance, suit to reform — Evidence required. — In a suit to reform a deed5 if the mistake be denied by defendant, very positive evidence would bo required to establish it; but where the mistake is admitted, a preponderance may be sufficient to show what was intended to be inserted in the place of the erroneous matter. ‘</p>

<p> Error to First District Court. </p> <p>cited 1 Bisk. Crim. Pr. 191, 195; 1 Bisk. Crim. Law, 274, 803, 810; LeBeau v. The People, 6 Pars. Crim. Law, 387; State v. Francisco, 3 Zabr. 32; Barnes v. State, 20 Conn. 236; 1 Arch. Crim. Pr. & P. C. 315; State v. Gray, 10 Mo. 440.</p>

<p>1. Practice, civil —Exception — Amendment. — Although defendant may except to the action of the court in striking out his answer, yet by afterward answering over,he waives his right to avail himself of his exception.</p> <p>2. Practice, civil — Amendment, filing of, permission as to rests largely in the discretion of court. — The filing of amended pleadings is a matter resting largely in the discretion of the court. And where an answer was sought to he filed after the impaneling of the jury and the hearing of plaintiff’s case, which changed materially the whole aspect of the suit, and no reason appeared why it was not filed earlier, the Supreme Court would not interfere with the exercise of that discretion in the lower court in refusing to allow the amendment.</p>

I. The will does not vest in said executrix the fee-simple title, hut only a life interest in said lands. Neither is there any special power in the will authorizing her to convey said land. (4 Kent, 360 et seq.; 3 Hill, 361; Franklin v. Osgood, 14 Johns. 560; 11 Johns. 169; 17 Mo. 98.) II.

insisted, among other propositions, that the acceptance of the quit-claim deed by defendants in error, in 1866, from Knox, was the recognition by them of a title in Knox, and precluded them from setting up an adverse possessory title. (Adams’ Eject. 46-7, 56, and notes; 5 Johns. Ch. 353 ; 2 Hayes, 294; 12 Johns. 427, 430.)

The Cedar Circuit Court clearly had jurisdiction of the subject-matter of the suit,, and the parties voluntarily submitted themselves to that jurisdiction, and can not be heard to question it after trial and judgment.

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

Samuel Cones brought suit in the Circuit Court of Barton county against the administrator of the estate of George E. Ward, deceased, the predecessor of the present administrator, for work and labor done and materials furnished to decedent in his lifetime. The petition is in the usual form. Service was had upon the administratrix, and she appeared and demurred to the petition,' assigning as ground that the court had no jurisdiction.

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

The testimony of Wangelin, accompanied by the instruction of the court, at the time was properly admitted. After a vendor has parted with his property, of course he can not affect the title by any subsequent acts or declarations (35 Mo. 202) ; but when a fraudulent conspiracy is charged, and when the court explains at the time to the jury the effect of such evidence, it is no ground for a reversal. (3 Greenl.

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

<p>1. Lands and land titles — EreciionSy removal of— When personal property — License. —"When one builds a house or fence, or places any other erection upon the land of another, with his permission, and with the intention that it be held as the property of tho builder, it continues personal property, a^d the owner may remove it when the license is withdrawn. (Matson v. Calhoun, 4A Mo. 368.)</p>

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

I. The plaintiff in error, Williamson, was sole administrator of Cooksey’s estate, and he complied strictly with the statute in prosecuting his demand to the Probate Court. He presented it to the court at the December Term, 1864, within one year after the grant of his letters, as is shown by the records.

•Appeal from First District Court. I. Appellant, Baird, was in possession of the office of treasurer at the time respondent filed his information, and held said office in virtue of a regular commission issued by the County Court, and the court below was bound to presume that said commission was valid, in the absence of evidence to show that it was invalid. (State v. Kupferle, 44 Mo. 154.) II.

<p>1. Conveyances — Record— Consideration — Notice.—As against the first grantee of an unrecorded deed of land, a record of Ms own conveyance by a subsequent purchaser from the first grantor will avail nothing, provided he purchase with notice of the original unrecorded conveyance, or his purchase is not made on payment of a good and valuable consideration.</p> <p>The actual notice required by the statute is used in contradistinction to the constructive notice given by a record. It does not mean that there must necessarily be direct and positive evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show it — facts and circumstances coming to his knowledge that would put a man- of ordinary circnmspection on his inquiry — should go to the jury as evidence of such notice. Proof of actual knowledge of the existence of the former deed has never been held to be necessary, but the jury have the right to infer such knowledge from facts that would naturally suggest it, and from which the actual relation of the prior purchaser to the land might be reasonably inferred.</p> <p>2. Executions, additional authorization in — Venditioni exponas — Act March S, 1863. — Where an execution in the form of an ordinary venditioni exponas was issued, reciting former levies and ordering the sale of what had been levied on, but leaving out entirely the command to levy on additional property, as required by the act of March 3, 1863 (Sess. A.ets 1863, p. 20, j! 1), sale thereunder of additional property not before levied on would convey no title. The omission in the execution of the authorization to make additional levies would, in such case, not he held to he a clerical mistake, hut a neglect by the party in interest to sue out the double writ to which he was entitled.</p>

Petition for Quo Warranto. The object of the Legislature was to create uniformity in the several counties requiring a treasurer, and courts must so construe the several enactments as to carry out… Held: and no other form of election being provided by law under the existing constitution, it is fair to presume that the Legislature did not intend any omission to provide for the election of a county treasurer in St. Louis county.

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

<p>1. Administration — Suit hy administrator — Set-off — Affidavit—Presumption. — Proof of the existence of a debt, which might be used as a set-off to a demand sworn to against an estate, is not of itself sufficient evidence to show prima facie that the debt was actually so applied, especially when neither the minutes of the court nor the account presented show anything in relation to the set-off. Affidavit of the claimant that he has allowed all just credits and set-offs establishes no such presumption.</p>

<p> Error to First District Court. </p> <p>Ewing Sf Smith, for defendant in error, cited 38 Mo. 501; 8 Mo. 609 ; 34 Mo. 204; 33 Mo. 117.</p>

Defendants asked the court to give the following instructions: “1. Upon the evidence adduced in this cause, the plaintiff can not recover in this action. 2.

This was an action upon a note and upon two accounts. The court erred in striking out the defendant’s answer. The only question in the case is the right of the defendant in equity to make this defense. We hold that it is his only remedy, and that it is authorized by law. (Field v. Oliver, 43 Mo. 200 ; 2 Sto. Eq.

The Circuit Court had no jurisdiction over defendant Knox. (Jacobs v. Mellen, 14 Mass. 132 ; 41 Mo. 493 ; 2 Johns. 294 ; 3 Abb. Pr. 474 ; 3 Cow. 381; 28 Mo. 75; 38 Mo. 421.) In this case it may have been unbind in Vose to sell tbe dishonored note of Knox so far from bis domicile. But wherein is it unlawful ? No property of Knox is taken, no right divested. The court, it is presumed, would, administer tbe rights of parties correctly.

The evidence in this case showed that the appellant was the owner of 120 acres of land off the north side of the northwest quarter of section 1, in township 56, range 24, in Livingston county, Mo., and the respondent is the owner of the remainder of said quarter-section.

<p>1. Practice, civil — Costs — Superfluous costs may he retaxed and money refunded hy the cleric, when. — "Where superfluous and unnecessary matter is inserted in a transcript hy the clerk, costs may he retaxed, and the clork may he compelled to refund costs taxed for such superfluous matter.</p>

<p> Appeal from, Livingston Court of Common Pleas. </p>

I. The suit in the Circuit Court to recover the first installment of interest due on the. note in controversy, and the suit in the Common Pleas Court to recover the second installment o-f interest due on said note, are based upon separate and distinct causes of action, notwithstanding the said installments of interest were secured by one and the same mortgage.

I. The account is not itemized, a-nd is an insufficient foundation for an action. (Gen. Stat. 1865, p. 701, § 12; id. 661, § 38; Sess. Acts 1867, p. 133.) II. Unless this was an account stated between these parties there could be no recovery. The evidence shows that this account, or something like it, was presented to Faulkner, who made no objection to it. It was never presented to defendant.

<p>1. Practice, civil — Judgment — Motion for new trial. — Where appellant fails to move for a new trial, the judgment of the lower court will not be disturbed.</p>

<p> Jlppeal from Livingston Court of Common Pleas </p>

Petition for Mandamus. The Missouri Valley Railroad Company was authorized to build a railroad through the county of Nodaway, and t-he laws under which said company were organized, and which were passed before the new constitution of Missouri took effect, authorized the counties along the line of said railroad to make subscriptions to its stock and to issue bonds in payment thereof, submitting the proposition to take stock to a vote of the people.

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

The property in controversy is not the separate property of Lucy A. Eisk, and she has no interest therein. At most it was her legal property only, and, having been reduced to possession of her husband, was liable for his debts on execution.

The title of defendants in error to the land in controversy is through the deed of the administrator. But the report of the sale by the administrator was not made to the next term of the court, but at the same term, and thereupon conveyed to the defendants in error no title. (Strouse v. Drennan, 41 Mo. 289; Sess.

The courts below erred in admitting the testimony of Muldrow, McPike, Briggs, and others, to contradict the sheriff’s deed to Proctor. Muldrow was himself the sheriff. (Jackson v. Cray, 12 Johns. 427; Jackson y. Yanderheyden, 17 Johns. 167; Jackson y. Eberle, 20 Johns. 49; Jackson y. Roberts, 7 Wend. 83 ; Reed v. Austin, 9 Mo. 723.) Aside from the Proctor execution, the sale under the Rice execution carried the title.

<p>1. Depositions— Certificate to, what sufficient. — The certificate to a deposition stating- that the witness was sworn to testify in the cause, that the deposition was reduced to writing and subscribed by him in the presence of the ofiicer, on the day and between the hours (naming them) mentioned in the notice, is a sufficient compliance with the statute (Wagn. Stat. 526, § 22).</p> <p>2. Evidence — Admissions of one in possession of property, explanatory of his possession, when proper. — The declarations or admissions made by one while in possession of property, explanatory of his possession — as that he holds it in his own right, or as a tenant or trustee of another — are admissible in evidence because they explain the character of the possession, and also as a part of the res gestes. ■</p>

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

<p> Appeal from Livingston Court of Common Pleas. </p>

I. Malkin’s bond to Young gave Young an equity in the property. (Wagn. Stat. 277, §§ 24-26; Truesdale v. Callaway, 6 Mo, 605; Woodward v. Yan Hay, 45 Mo. 800.) II. Respondent made two purchases of the property: one of Williams’ equity, and the other of the legal title from Malkin. His purchase of Williams’ equity was accompanied by the actual possession of the bond from Malkin to Young, and by Young assigned to Williams.

<p>1. Practice, criminal — Motion to quash must state what. — A general statement, in a motion or demurrer to quash an indictment, that the same is defectivo and insufficient, does not comply with the statute (“Wagn. Stat. 1090, \ 24). The specific defect must be pointed out.</p> <p>2. Criminal law — False affidavit, information as to — Allegation.—In an information under the statute (Wagn. Stat. 476, l 4) for making a fals^ affidavit, if the authority of the magistrate to administer the oath is clearly asserted, that is sufficient, and the information need not set out the various facts which would authorize him to act as magistrate, such as his election, qualification, etc.</p> <p>3. Criminal law — Indictment—•False oath, allegations as to. — In indictments for making false affidavits it has always been held that if the materiality of the oath appear from the facts or documents set forth in the indictment, it is sufficient without any express allegation on the subject.</p> <p>4. Practice, criminal — Evidence in criminal cases examined in the Supreme Court. — In criminal cases this court has always felt under obligation to examine the record and direct a new trial if conviction is not warranted by the evidence.</p>

<p>1. Insurance, foreign — Agent —Proceedings against — Information — Court of Criminal Correction. — One acting as agent and receiving premiums in St. Louis county, on behalf of a foreign insurance company which was not authorized by the superintendent of the insurance department to do business in this State, contrary to section 42 of the act concerning insurance other than life (Wagn. Stat. 777), may be proceeded against under section 30, p. 516, Wagner’s Statutes. Notwithstanding that tho statute which creates the offense provides for a different remedy (Wagn. Stat. 777, $ 43), there is no inconsistency between the two statutes. But tho proceeding jn such case must he by information in the Court of Criminal Correction, and not by indictment.</p> <p>As to all the rest of the State besides St. Louis county, tho misdemeanor act of March 27, 1868 (Sess. Acts 1868,_ p. 81), repealed by implication section 30, supra, and was not restored by the repealing act of February 24, 1869 (Sess. Acts 1869, p. 69). (See State v. Huffscbmidt, ante, p. 73.)</p>

Louis Circuit Court. This is a suit.to. recover from defendant an indebtedness which arose by a sale of liquorice of the plaintiff, consigned to defendant as a factor or commission merchant. Before all the proceeds of sale had been paid over, the defendant failed, and now pleads his discharge in bankruptcy as a bar to the suit. The court, on demurrer, decided for plaintiff, and final judgment was entered.

Louis Circuit Court. What is a cloud must generally be determined from an examination of the cases where that matter has been decided. In Morris v. Hogle, 37 111. 150, it was decided that a sale under a void decree was a cloud, and the sale was set aside. In England v. Lewis, 25 Cal. 357, it is decided that a sale under a judgment claimed as a lien, where in law there was no lien, would be a cloud, and such sale was enjoined.

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

<p> Jlppeal from St. Louis Circuit Court. </p> <p>I. Tbe assessment and tax bill upon which this levy was made are utterly void upon their face, because: (a) All the assessment, including the §70,500 of United States bonds, was upon capital stock of the corporation, and the whole of it was void as unauthorized by law. If there could be any assessment against said corporation whatever, under the law as it then existed, it could only be for so much property specifically stated in the assessment as so much property “in excess of capital stock” distinctly stated to be assessed as such. (5) That portion of the payment of which the levy was made was void for the additional reason that it was part o’f the capital stock invested in United States bonds, and was so stated on the faee of the tax bill, (c) There was then nothing upon the face of the assessment or tax bill authorizing the collection of any tax against this company — certainly nothing authorizing this. (42 Mo. 426.)</p> <p>II. It being altogether illegal, the officer can not justify under the warrant. (State, etc., v; Shacklett, 37 Mo. 280, and cases cited; Hann. & St. Jo. R.R. v. Shacklett, 30 Mo. 550.)</p> <p>HI. The case of Glasgow v. Rowse, 43 Mo. 479, holds no doctrine antagonistic to this.</p> <p>IV. The assessment and tax was illegal and unconstitutional, if held to be a taxation upon shares, in requiring it to be paid by the corporation.</p> <p>V. If the instruction given by the court be correct, then so long as the officer can find personal property to levy upon, no person can resist the payment of an illegal tax. Nor is it any answer to say that the corporation can be made to pay the same tax by re-assessing the shares of stock in the rightful owner. It is of the greatest importance that the officers should comply with the law and make their assessments legally. If they do, and the bank pays, the law provides the way in which it may get back the amount paid by it for the individual stockholder.</p> <p>I. Although the capital stock of the corporation invested in the bonds of the United States is not subject to taxation by the State, the shares of stock of a corporation, although every dollar of the capital is invested in United States bonds, are subject to taxation by the State.</p> <p>H. Whether the assessment was in proper form or not, the defendant can not be held liable as a trespasser. He is protected and justified by the tax bill, and is perfectly defended as a ministerial officer charged by law with the execution of process. (Glasgow v. Rowse, 43 Mo. 480; Turner v. Franklin, 29 Mo. 285; Milburn v. Gilman, 11 Mo. 64 ; Davis v. Packard, 10 Wend. 71; Coleman v. McAnulty, 16 Mo. 176.)</p>

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

<p>1. Damages, measure of-.— Contracts not completed iy reason of the default or unwarranted acts of the other party — Quantum memit, etc. — Where the contractor is prevented from completing his job by the unwarranted acts and defaults of the other party, he may either sue upon the contract and claim damages for a breach of it, or he may waive the contract and sue for the reasonable value of his work. He is not restricted to a pro rata share of the contract price.</p>

<p>1. Courts, prolate — Claims, allowance of — Judgment, impeachment of.— Where a Probate Court disallowed a credit claimed by an administrator in his final settlement against an estate, for a payment which had been made byhim in advance of any order of that court, and within a year from the grant of his letters, the order of disallowance will, on appeal to the Supreme Court, be sustained, notwithstanding that the Probate Court had allowed and. classified the claim paid by him. It is true that an allowance and classification'by the Probate Court is in effect a valid judgment, which can not be impeached collaterally. But the disallowance of the credit does not rest upon the theory of any error or wrong in the judgment of the Probate Court.</p>

<p>1. Forfeitures not favored. — Forfeitures, if legally established, must bo enforced, But are not favored.</p> <p>2. Insurance companies — Premium notes, forfeiture offer non-payment waived by subsequent receipt of money.— The forfeiture of an insurance policy for non-payment of the premium note will be waived by subsequent receipt, without objections, of the money by the company.</p>

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

Louis Circuit Court. In this case the suit is not brought against the firm. Hawkins alone is sued. There is no proof that he ever collected the money. Therefore the respondents failed to make out their cause of action. (Cummins v. McLean, 2 Ark. 402; Fraser v. Roberts, 32 Mo. 461; 2 Tidd’s Pr. 919; 11 Wend. 374; Andrews v. Lynch, 27 Mo. 167; Welch v. Bryan, 28 Mo. 30 ; Syme v. Str. Indiana, 28 Mo. 335; 2 Wagn.

tflppeal from St. Louis Circuit Court. I. Nothing short of an express ratification, with full knowledge of all the facts, would render the principal liable in-the case at bar. There was no evidence of any such express ratification. H. The verdict of the jury in this cause must of necessity have been for a smaller sum than the one in the record.

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

Jlppcal from Si. Louis Circuit Court. 1. That the assignment of the husband was invalid against the wife’s title by survivorship is well settled, by our own -decisions as well as the English and other American authorities. (Wood v. Simmons, 20 Mo. 363 ; Craft v. Bolton, 31 Mo. 355:; Purdew v. Jackson, 1 Russell, ck. 1; Honor v* Marton, 3 Russell, 65 ; Sto.

Louis Circuit Court. A parol contract of insurance, suck as (we say) was made with defendant in March, 1864, acted upon and carried into effect as it was, is binding and enforceable at law. That such a contract may be made, and that it binds the corporation, though without Avriting, has been repeatedly decided by courts of the highest authority, viz: Kennebec Co. v. Augusta Insurance & Banking Co., 6 Gray, Mass., 204; First Baptist Church v. Brooklyn Fire Ins.

<p> Appeal from St. Louis Circuit Court. </p> <p>other points,</p> <p>among other points,contended that the indorsement on the policy, “ Loss, if any, payable to Northrup,” etc., by the clerk of defendant, did not amount to a renewal of the policy to plaintiffs. The cleric had no power to make a new policy, and could not make a substitution amounting to a renewal. (42 Mo. 874.) There wras error in the action at Special Term, and the reversal by General Term was proper.</p>

<p>1. State v. Yasel, arde, p. 416, affirmed.</p>

Louis Circuit Court. I. The appellants insist.that the court erred in admitting the testimony of Charles Bell against the sureties of Edwards. The imaginary conversation to which he referred took place several weeks after Edwards had been discharged by the plaintiff. (1 Greenl.

Louis Circuit Court. The assignment is void because Ellen Baker and George Baker could not execute a valid assignment of Ellen Baker’s interest in said policy before the court, under any circumstance, by reason of her coverture.

<p> Error to St. Louis Circuit Court. </p> <p>I. The third and fourth counts of the petition do not state facts sufficient to constitute a cause of action. (Langford et at. v. Sanger et al., 40 Mo. 160 ; House v. Lovell et al., 45 Mo. 381.) The counts fail to allege performance on his part by the defendant in error of conditions by him to be performed. An averment signifies a positive statement of fact in opposition to argument or inference. (1 Chit. PI., 8th Am. ed., § 321.) The defendant in error must have averred performance or an excuse for nonperformance. {Id., § 326.) Performance, or readiness to perform, is not to be inferred; it must be averred. (Hatch v. Peel et al., 23 Barb. 575 ; Smith v. Brown, 17 Barb. 431; Helen v. Wilson, 4 Mo. 41, 44; Carpenter v. Stevens, 12 Wend. 589.)</p> <p>H. The first count of the petition contains two causes of action improperly united, {a) The defect is apparent on the record. No exception to the action of the lower court was necessary to save the point. (Bateson v. Clark et al., 37 Mo. 31.) (5) Even if .the court should hold that answering over waived the objection now complained of, yet an opportunity should be given the plaintiff in error to avail itself of the defect in the record. $.t the time the demurrer was filed it was the settled doctrine of this court that the objection that causes of action are improperly united in a petition is never waived and may be taken advantage of in arrest of judgment. (McCoy v. Yaeger, 34 Mo. 134; Clark v. Hann. & St. Jo. R.R., 36 Mo. 202; Meyer v. Field et al., 37 Mo. 434; Hoagland v. Hann. & St. Jo. R.R., 39 Mo. 451; Peyton v. Rose, 41 Mo. 257.) (c) The objections urged against the first count, if tenable, are fatal to the last count.</p> <p>IH. The defendant in error has divided one cause of action into three parts and sued upon each part. The court has found in his favor specially upon- each part. All damage resulting to the defendant in error from a failure on the part of the plaintiff in error to perform its contract, is an entirety. Such damage is to be recovered in one suit founded upon one cause of action. “The authorities all agree that where the demand is an entirety, although consisting of several items, if judgment be recovered for a part of it, the judgment is a bar to an action for the remainder.” (Flaherty’s Adm’r v. Taylor, 35 Mo. 447.) Now, having reference solely to the first, third and fourth separate causes of action sued upon by the defendant in error, it is clear that he can not have a finding in his favor under the first without such finding operating as a bar to any subsequent finding upon the second and third. (Town of Marlborough v. Sisson, 31 Conn. 332.) The findings and judgment under the first and third causes of action can not be maintained. Under each o£ these causes of action the defendant in error has a finding in his favor. * So that if this judgment is to be sustained, a party to a contract can sue and recover not only the contract price, but may have specific damages for non-compliance by the other party, with certain conditions of such contract during performance.</p>

Louis Circuit Court. The appellant is a stock corporation organized under a charter given it by the State of Missouri in 1861, with a capital stock of the par value of $100,000, all paid up. This stock was regularly listed and taxed for the year 1866 for city, county, State and school purposes, and duly paid by the corporation.

Louis Circuit Court. Where ane account is with the debtor as executor and the other is in his own right, the law will apply the payment made, when nothing is said, to the debt due from himself individually, and will not allow the creditor to appropriate it to the other demand. (Chit. Cont., 5th ed., 583 ; Pars. Cont., § 31, and notes.) Nor can a debtor apply payments, where one is barred by the statute, so as to remove the bar of the statute. (Pars.

Louis Circuit Court. I. . The authority of the secretary was not specifically denied. (20 Barb. 472; 32 Barb. 294; Dover v. Pacific R.R., 31 Mo. 488.) The case of Wynn v. Cory, 43 Mo. 301, is not opposed to the above case, nor is it authority in support of the answer in this case. II. The authority of the agent of a corporation to act, like that of a natural person, may be implied in general from his being held out as an authorized agent of the corporation.

<p>1. Revenue — Land commissioner, proceedings before for opening street — Assessments against adjoining property-owners — Property of can not be sold unless a bargain could not be made with owner of property sought to be taken — Injunction a proper remedy in such cases. — To entitle the city of St. Louis to collect from adjoining property-owners the amount of assessments taxed against them for the opening of streets, under the city charter (Sess, Acts 1807, p. 72, \ 2), it must appear that before instituting proceedings before tho land commissioner for the condemnation of the property to be taken, an attempt was made with the owner thereof to effect an agreement as to the terms of purchase. The effort to make puch agreement was an imperative obligation and constituted a condition precedent to the exercise of the right of eminent domain by the city. And tho duty of proving the failure to agree devolved upon the city. Tho power to take private property for public use, without the consent of the owner, is in derogation of the rights of the citizen, and can only be justified on grounds of absolute necessity; and, when exercised, the power conferring tho right must be strictly adhered to 'and complied with.</p> <p>And where no such agreement is shown to have been made, the adjoining property-owner may restrain the city, by injunction, from selling his land to satisfy such assessment. Courts of equity never allow relief by injunction to prevent the sale of personal property; but where real property is about tobo sold by a municipal corporation for the payment of taxes or assessments, equity will interpose. Tho distinction lies in the fact that in tho one case a full and complete remedy is furnished at law, while in the other a cloud is about to be cast over a land title, and the court interferes to prevent it.</p>

Louis Circuit Court. There is no equity in plaintiffs’ bill; their remedy was in the forum of the law court, and they had a perfect and adequate remedy at law. If the proceedings are in a court of record, according to the course of the common law, a writ of error is the proper remedy to reverse and vacate the erroneous judgment ; otherwise the remedy is by certiorari.

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

Louis Circuit Court. I. Arbitrators could not become such without talcing the oath. ££ Arbitrators not sworn can make no award that is binding and valid as a statutory award.” (Walt v. Huse, 38 Mo. 210-13, confirming 18 Mo. 399, and modifying and reviewing 28 Mo. 166 ; 10 Mo. 161; Fassett v. Fassett, 41 Mo. 616.) II. The award ivas not signed by the arbitrators. III. The award was not attested. I. The arbitrator’s oath in the case at bar could be waived.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. In proceedings of this character it must affirmatively appear that the council declared it necessary to lay the pipe. The law is express : they must “ so declare.” “Necessity” in this case is not synonymous with “expediency.” (Commonwealth v. Egremont, 6 Mass. 491 ;• 2 Mass. 271; 29 Conn. 495; Hunter v. Newport, 5 R. I. 329; 23 Me. 9; 2 Pick. 228 ; Conners v. Swain, 8 Pick. 547 ; Jones v. Anderson, 9 Pick. 132 ; Bethel v. County Court, 42 Me. 479 ; 8 Conn. 164, 243 ; 9 Conn. 232; 11 Conn. 577; 17 Conn. 197; 1 Dutch., N. J., 434; Mallett v Kennan, 22 Ala. 484.)</p> <p>n. It does not appear hy the record that the vote was a. two-thirds vote, even of those who were present; still less of those who were elected. It must so appear. (See 9 Yerg. 268 ; Henderson v. Baltimore, 8 Ind. 352; Mallett v. Kennan, supra; 1 Cow. 316; 1 Johns. 75 ; 4 Hill, 76; 3 Greenl. 340 ;. Dougherty v. Hope, 1 Comst. 79.)</p> <p>The records of this judicial tribunal should show this fact. It is a jurisdictional fact, and every inferior or judicial tribunal other than a common-law tribunal must affirmatively show its jurisdiction. (Iba v. Hann. & St. Jo. R.R., 45 Mo. 475 ; Hamberger v. Pacific R.R., 41 Mo. 227; 26 Mo. 65 ; 31 Mo. 264; 37 Mo. 228 ; 6 Wheat. 119 ; Haywardv. Charlestown, 3N. H. 23.)</p> <p>TTT- This ordinance w'as repealed by the resolution. If the ordinance was a declaration that the pipe was necessary, the resolution was a declaration that it was a mistake — that it was unnecessary.</p>

<p>1. Mechanic’s lien — Married women, separate property of, when liable to lien. —A married woman was shown to have had personal knowledge of work done and material furnished on her separate estate, and to some extent to have giveA personal directions respecting- it, although her husband was the principal manager. It was also shown that she joined her husband in the execution of a note in settlement of the claim; the claimants, however, declining to receive the note in adjustment of their demand. Held, that under such circumstances the property might be subjected to a mechanic’s lien,</p>

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

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

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

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

Louis Circuit Court. I. There can be no doubt that a married woman can charge her separate estate by verbal as well as by written contracts. The only difference is that the writing is the evidence and indicates her intention in the one case; while such intention, in the absence of an express statement of her intent to charge, has to be shown from circumstances.

No reply was required in this case. The answer does not confess and avoid the allegation of the petition; does not admit the claim against the defendants by the plaintiffs, and then show a demand existing in favor of the defendant against the plaintiffs; is not new matter, nor is it a counter-claim within the meaning of the statute. ‘ ‘ The practice act only requires a reply when the answer contains new matter constituting a counter-claim.” (Carpenter v. Meyers, 82 Mo. 218;…

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

Louis Circuit Court. This suit was brought to the April, 1869, term of the St. Louis Circuit Court, to divest title out of respondents and to vest it in appellant, Edwin R. Mason, as trustee of Mary C. Mason. This was an offer to sell, and if there is any doubt as to the terms and conditions of sale, it will be construed against the vendor.

Jippcal from St. Louis Circuit Court. For tbe main facts in this case see 43 Mo. 380. The court erred in excluding the Buffalo depositions offered by defendant. (Childress v. Cutter, 16 Mo. 24.) We understand the rule, as declared in that case, to be that if the country where such registers are kept recognizes them as authentic, they will be admitted here.

<p>1. Attachment — Replevin — Evidence in what, proper.— Certain goods having been seized by a sheriff on attachment as the property of A., were replevied by B., whereupon the sheriff’ admitted the talcing, and justified on the ground that the goods were the property of A., and were taken in virtue of the attachment. In the replevin suit it was proper for B. to show that A. made to him false representations as to his financial standing, as going to prove that the goods were procured fraudulently. It was not competent, however, for the sheriff to show that A. had pledged the goods sued for, while yet in his possession, as security to a third party for borrowed money. Such testimony was not germain to the issues involved.</p>

<p> Appeal from St. Louis Circuit Court. ■ </p> <p>The plaintiff obtained an injunction against the city in a controversy which came before this court at its October Term, 1869, and is reported in 44 Mo. 458. After the decision here reversing the decree and dismissing the bill, the city claiming an attorney’s fee for defending the injunction, filed a motion to assess the same against the appellants as damages upon the injunction bond. No other damages were claimed. The motion was submitted to the court below on an agreement of facts, from which it appears that defendant employed no special counsel in the cause, but that the cause was defended by the city counselor, the law officer of the city, who receives a stated salary annually for all the business he does for the city.</p>

Louis Criminal Court. The indictment in this case is insufficient at common law because it does not sufficiently describe the check or money alleged to have been stolen. (People v. Ball, 14 Cal. 101; State v. Langbottom, 11 Humph. 39 ; Rhodus v. Commonwealth, 2 Duvall, Ky., 159; Stewart v. Commonwealth, 4 Serg. & R. 194 ; Dame-wood v. State, 1 How., Miss., 262 ; Spangler v. Commonwealth, 3 Binn. 533; State v. Bond, 8 Clark, Iowa, 540; State v. Morey, 2 Wis. 494.)

<p>1. Magwire v. Biggin, 44 Mo. 512, affirmed.</p>

Louis Circuit Court. Plaintiff, Margaret, was not named or provided for in her father’s will; he therefore died intestate as to her.

<p> Appeal from St. Louis Circuit Court. </p> <p>The wife, before assignment of dower, has no right in her husband’s land. Her right, until dower is assigned, is a mere chose in action, and therefore not such an estate in land as is contemplated by the statute for quieting titles. (McClannahan v. Porter, 10 Mo. 751; 4 Kent’s Com. 61-2 ; Johnson v. Shields, 32 Me. 424; 1 Washb. Real Prop. 251-3.) Until dower is assigned the widow has no right of entry (1 Washb. Real Prop. 253), and therefore has no such right as will enable her to maintain ejectment or partition. (Pringle v. Grew, 5 Serg. &R. 536; Doe v. Nutt, 2 Car. & P. 430; Bradshaw v. Callaghan, 5 Johns. 80; Coles v. Coles, 15 Johns. 319.)</p>

<p>1. Damages — Illinois railroads, whose chief place of business is not in Si. Louis — Jurisdiction of courts of this State. — In suit for damages against the Chicago, Alton and St. Louis Railroad Company, the proof showed that by defendant’s charter its “chief office” was to be held in Chicago; that the company had an office in the city of St. Louis for the sale of tickets and for receiving and handling freight; but the general freight office, the offices of the president and secretary and the board of directors, were in Chicago. Reid, that under the statute concerning corporations (Wagn. Stat. 292, § 19) the courts of this State had no jurisdiction.</p> <p>Where the road terminates opposite the city of St. Louis, and has its chief office for the transaction of business in St. Louis, then the law regards it as a domestic corporation and amenable to the jurisdiction of our courts by the ordinary process of summons.</p>

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

I. The decree in this case is erroneous because it does not recite or state the facts on which-itis founded or which the court below considered as proved. This is error for which a bill of review would lie. A decree in chancery, without finding the facts that warrant it, is erroneous. (1 Root, 278.) A decree in chancery must find the facts directly and positively. {Id. 466, 521; 2 Ch. Cas. 161; 2 Mad.

<p> Appeal from St. Louis Circuit Court. </p> <p>The first count of the indictment charged that said Kroeger, 11 on the eleventh day of December, in the year of our Lord one thousand eight hundred and sixty-nine, at St. Louis, in the county of St. Louis aforesaid, with intent then and there to injure and defraud, did unlawfully and feloniously falsely make, forge and counterfeit, in county and State aforesaid, a check for the payment of money, purporting to be the act of M. E. Susisky, treasurer of the city of St. Louis, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Missouri, in words and figures following:</p> <p>‘Office of City Treasurer,</p> <p>‘No. 143. St. Louis, Lea. 11, 1S69.</p> <p>‘TRADERS’ BANK,</p> <p>‘Pay to BEQE5HE2I cash or bearer, ‘Six thousand....... ‘$6,000. United States Internal Revenues Stamp. 2 Cents. lorDollars.</p> <p>‘M. E. Susiskx,</p> <p>‘ Treasurer.’</p> <p>With intent then and there to defraud and injure the Traders’ Bank, a bank at St. Louis, in the county of St. Louis aforesaid, duly incorporated under and by virtue of the laws of the State of Missouri, out of the sum of six thousand dollars, against the peace and dignity of the State and contrary to the form of the statute in such case made and provided.”</p> <p>The second instruction asked by the defendant, and refused by the court, was as follows:</p> <p>“2. If the jury find from the evidence that M. E. Susisky signed the paper set out in the indictment, in blank, and delivered the same to defendant alone, or with another, and gave the defendant authority to fill up said paper, and use the same or its proceeds for certain purposes designated by Susisky, and that the defendant, under this authority, filled up the blanks in said paper, then the jury ought to acquit the defendant, even though they may believe that defendant used said paper or its proceeds for a purpose or purposes not designated by said Susisky.”</p> <p>The testimony of Susisky showed that the printed words “the order of” had been struck out by ink lines; that the words and figures “No. 143,” and the words and figures “December 11, 1869,” “ cash or bearer, six thousand dollars,” had been inserted.</p> <p>The third paragraph of the instruction given by the court, of its own motion, was as follows : “If the jury believe, from the evidence in the case, that M. E. Susisky was, on or about the 2d day of December, 1869, treasurer of the (city of St. Louis, and that at said time he delivered the check described in the indictment to the defendant, already signed by him, with the name of ‘ M. E. Susisky, treasurer,’ with the date, payee and amount left blank, with authority to fill up and use the same for the use and benefit of the city of St. Louis, and to fill up and use the same for no other purpose; and if you further find from the evidence that the defendant, on or about the 11th day of December, 1869, at St. Louis city and county, feloniously filled up said blanks by inserting ‘December 11, 1869,’ ‘cash or bearer,’ ‘ six thousand,’ and ‘ $6,000,’ with intent then and there to use the same for his own use and benefit; and that he did so use the same for his own use and benefit, and not for the use and benefit of said city of St. Louis, with intent to defraud and injure as charged, then this constitutes the crime of forgery in the third degree, and so you should find.”</p> <p>I. As substantially the samo questions are raised upon the motion to quash the indictment and the motion in arrest of judgment, they will be considered together. The allegations in the indictment are repugnant to and inconsistent with each other. In the indictment it is averred that the defendant forged a check which purported to be the check of M. E. Susisky, treasurer of the city of St. Louis, and the check set out in the indictment does not so purport. As to the meaning of the word “ purport,” see Downing v. The State, 4 Mo. 572 ; Bright et al. v. White, 8 Mo. 421; State v. Page & Bacon, 19 Mo. 213 ; 2 Bussell on Crimes, 380 ; Commonwealth v. Kearns, 1 Ya. Cases, 109 ; Arch. Orim. PL, 5th ed., 47; Bex v. Beading, 1 East, 180 ; 2 Leach, C. C., 590; Bex v. Gilchrist, 2 Leach, 657 ; Bex v. Edsall, id. 662 ; State v. Smith, 31 Mo. 120; State v. Waters, 3 Brevard, 507 ; State v. Shawley, 3 Haywood, Tenn., 256. It is true, the instrument set out in the indictment has on its caption the words “ office of city treasurer,” but there is no indication of the office of city treasurer of the city of St. Louis, and the instrument does not so purport. Again, this caption forms no part of the check. It is in nowise necessary to make it a complete instrument. Any one could date a check at the city treasurer’s office. It is also true that the word “treasurer” follows Susisky’s name on the check, but this no more purports to be his act as “ treasurer of the city of St. Louis ” than it does as treasurer of any other city, or corporation, or voluntary society.</p> <p>H. The indictment is insufficient because the offense is not averred in the language of the statute, to-wit: that it does not allege that the instrument set out was, or purported to be, the act of another, by which any pecuniary demand or obligation was, or purported to be, transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever was, or purported to be, transferred, conveyed, discharged, increased or in any manner affected. (Gen. Stat. 1865, ch. 202, p. 795, § 16.) It is true, the case of The State v. Fenly, 18 Mo. 445, decides this point against the defendant, and, as an authority, chiefly relies upon the case of The People v. Rynders, 12 Wend. 425. Both of these cases were decided, however, by only a majority of the court, and they must be admitted to be a departure from the rules of the criminal law which require the indictment to follow the language of the statute upon AYhich it is draAA’n, descriptive of the offense.</p> <p>HI. Where an intent to defraud a particular person is averred it must be shoAvn either, first, that the instrument, if genuine, Would be the obligation of such person; or, second, that the defendant passed, or attempted to pass, the instrument to such person, as true, with knowledge of its real character. (United States v. Shelmire, 1 Bald. 370.) There is no presumption of laAV arising upon the face of the check, that defendant intended to defraud the Traders’ Bank; because, if it were genuine, it would not be the contract of that bank. (2 Pars. Bills and Notes, 61, note.) . And the proof utterly fails to shoAV any such intention to defraud. The defendant never presented the check, for any purpose, to the Traders’ Bank; but, on the contrary, presented it to the First National Bank, where it was deposited to his credit.</p> <p>The third paragraph of the charge or instruction given by the court presents, in substance, to the jury this proposition, to-wit: that if Susisky signed the check in blank, and delivered it to defendant with authority for him to fill up and use it for the benefit of the city of St. Louis, and that defendant, under these circumstances, filled up and used the check for his own use, Avith the intent to defraud, etc., then the jury should find him guilty of forgery in the third degree. We deny that this instruction given by the court correctly presents the law applicable to the facts. On the trial before the Criminal Court, the counsel for the State relied upon three cases decided in England, in which the court held that where checks signed in blank were delivered to the defendants, with authority to fill them up with certain definite sums, and they were filled up with greater sums than those named, and the excess converted to the use of the parties filling them up, they were guilty of forgery. (Regina v. Wilson, 2 Car. & Kerr, 527; Rex v. Minterhart, 2 Brit. C. C. 486 ; 7 Car. & Payne, 652; Regina v. Bateman, 1 Coxe O. C. 186.) In regard to these cases we have to say that they are not in point. The questions in them do not arise in this case. The doctrine of these cases has been decided by this court, in three cases, to be otherwise; in which it has been held by this court that where instruments signed in blank were delivered to third parties, with authority to fill them up with certain specified sums, the fact that they were filled for amounts greater than those limited did not constitute forgery. (Tumelty v. Bank of Missouri, 13 Mo. 276 ; Farmer’s Bank v. Gertin et al., 34 Mo. 119-22; Henderson v. Bendervoort et al., 39 Mo. 373 ; Spitler v. James, 9 Am. Law Reg., N. S., 605.) On same point see Trustees of Iowa College v. Hill, 1 Am. Law Reg., N. S., 744, note ; State v. Flanders, 88 N. H. 324 ; Commonwealth v. Sankey, 22 Penn. 390 ; Hill v. Tennessee, 1 Yerg. 76. The last three cases would seem to establish the principle that if Kroeger obtained the check in question, signed in blank by Susisky, under a false and fraudulent representation or pretense that he would fill up and use it for the benefit of the city of St. Louis, and that if he afterward filled up and converted the check to his own use, it would not be forgery. It is true that in all the text-writers, from Coke and Hawkins down to Wharton, it is laid down that if one be employed to write a will, with instructions as to what it shall contain, and he write the will materially different from the instructions, and fraudulently procure the testator to execute it, under the belief that it is drawn agreeably to his instructions, it will constitute forgery. But wre submit that this is a legal heresy; that the doctrine of the text-writers on this point is not supported by the cases referred to by them, and that it has been denied on principle by all the subsequent cases, with one single exception. This erroneous doctrine is stated in 8 Inst. 170 ; 2 Bast, P. C., 855 ; 1 Hawk. P. C., ch. 20, §§ 2-6 ; Bacon’s Abr., tit. Forgery A; 2 Russell’s Crim. Law, 318-22, and others of a more modern date. The texts cite and are founded upon Comb’s case in Noy’s Reports, 101, and also reported in Moore’s Reports, 769. These texts are opposed by the case of Sir. John Marvin’s will (3 Deyer, 288), which is directly in point, and opposed in principle by the cases of Regina v. Collins, 2 Moody & R. 461, and Regina v. Chadwick, id. 546, decided in England, besides the cases cited herein decided in the United States. There is also one exception to the uniform decisions in the United States in the same direction. We allude to the case of The State v. Shurtliff, 18 Me. 371. Weston, C. J., in delivering the opinion, cites 2 Russell, 317, which, in turn, refers to 2 East, 855; Noy, 101; Moore, 759 (the old Star Chaniber case) ; 3 Inst. 170; Hawk. ch. 21; Bacon’s Abr., tit. Forgery A. And thus the same ancient chronic errors are marshaled without any allusion to the modern cases to which we have above referred. We would refer the court to the opinion of Judge Agnew, of the •Quarter Sessions, in the case of Commonwealth v. Sankey, supra, with the opinion of the Supreme Court by Black, C. J., in the same case, in which the opinion of Agnew, J., is fully adopted, to which opinions we are indebted for some*of the views here expressed. The only case decided in America or England we have been able to find, which appears to cover the principles involved in this case closely, is that of Putnam et al. v. Sullivan et al., 4 Mass. 53. In the case at bar, the check was signed and delivered by Susislcy to Kroeger in blank, accompanied with a trust or confidence, in the language of Parsons, C. J., in the case referred to. And this is the key which unlocks this transaction, and makes the proposition of law involved in it of easy solution. If the check was delivered by Susisky to Kroeger in blank, coupled with a trust or confidence, and that trust or confidence embraced authority for Kroeger to fill it up for any purpose, then there can be no forgery in the case, because then the forgery would be predicated solely upon a mere breach of trust or confidence.</p> <p>The error in the instruction of the Criminal Court, of which we here complain, is apparent in this: that it makes the fraudulent use — and that alone, it may be — of a clearly granted power to fill up a check, a forgery. Now it is perfectly clear, and can not be denied, that the crime of forgery consists of two elements, to-wit: first, a false making; and, second, a fraudulent intent. And the fatal error in this instruction is that it entirely ignores the false making, and tells the jury that although Kroeger may have had power to fill up the check, yet if he did so with a fraudulent intent he is guilty of forgery. Now, if Kroeger had authority to fill up the check, as we have seen, there was no false making, and consequently that element-necessary to constitute the crime of forgery is wanting. We are unable to see any escape from this conclusion.</p> <p>In conclusion, we have only to add on this point that if it be true that Kroeger had authority to act as the agent of Susisky in filling up the check, then it ought to be regarded as having been filled up and made a complete instrument by Susisky himself, in his own proper person; and therefore the transaction disclosed in this case, so far as legal principles are concerned, ought to be viewed in precisely the same light as if Susisky had filled up this check, and thereby had made it a complete and genuine instrument himself personally, and had delivered it to Kroeger with instructions for him to apply it or its proceeds to a particular named purpose, and Kroeger, in violation of such instructions, had converted the check or its proceeds to his own use. This would certainly be a fraud and a wrong on the part of Kroeger, unless he could justify his action; but it must be admitted that a fraud or wrong is not necessarily a forgery, and it is just as certain there would be no forgery in this transaction because there would be no false making. And this, as it seems to us, is the only logical or legal conclusion which can be reached on this point.</p> <p>The check in evidence embraces all the elements contained in the clause of the statute creating the forgery attempted to be charged. (State v. Fenly, 18 Mo. 445; Gen. Stat. 1865, ch. 211, p. 842, § 828.) The indictment not only conforms to the requirements of our statute, but goes far beyond what would be a good and sufficient count under it. It describes the forged instrument by the name by which it is usually known,' and sets it out in its words and figures.</p> <p>It has been urged that the indictment should ayer that M. E. Susisky was treasurer of the city of St. Louis. But at best such averment could only be descripiio personae, as the offense would be complete under our statute if there was no such person as M. E. Susisky, or the corporation of the city of St. Louis, or the office of treasurer of the city of St. Louis, in existence. (Gen. Stat. 1865, ch. 202, § 26.)</p> <p>This is no case of breach of trust. If he had power to make an instrument and utter it, it was simply to fill up the blanks with the name of the holder of a warrant, and fill into the check the amount of the warrant and deliver it in satisfaction, and take up the warrant as a voucher for the check. If he had any authority at all, this was its extent; and if he had this power, he never exercised it in a single instance. All the checks that -were used for the city of St. Louis in the absence of M. E. Susisky, its treasurer, were filled up by Mr. Dougherty, the deputy treasurer, who had power of attorney from Susisky to conduct the office in his absence, which lasted twenty-one days, and during which time the prisoner is said to have filled up checks and drawn out the money of the city of St. Louis to the amount of $46,000 and converted it to his own use.</p> <p>Our statute creating or defining the crime of forgery enlarges upon the common-law definition and covers almost every conceivable alteration or felonious interference with instruments of writing creating or transferring, enlarging or diminishing money obligations. (Gen. Stat. 1865, ch. 202, §§ 8, 16.) No special intent to defraud is necessary to constitute forgery. If the probable or natural consequence of the act be to defraud, that will, in law, constitute the fraudulent intent of the statute, and such intent will be enforced in law. (1 Eng. Crim. Cas. 291; 2 Russell on Crimes, 862 ; Arch. Crim. Pr. 342; Regina v. Beard, 34 Eng. Com. Law, 329; Regina v. Parrish, id. 307; 8 Oar. & P. 94.) The making a false and fraudulent instrument over a genuine signature is as much a forgery as the making a false signature to a genuine writing. (Halbv. Fuller, 5 B. & O. 750.) The instrument must be genuine in all particulars. (Rex v. Minterhart, 7 Car. & P. 652; Regina v. Wilson, 2 Car. & K. 528 ; 2 Coxe C. C. 360, 426 ; Rex v. Hart, 1 Moody C. C. 486 ; Regina v. Balmer, 1 Coxe C. C. 186.) Authority to do a particular thing furnishes no authority to do another and different thing. (2 Bish. Crim. Law, 306, 477.) A signature fraudulently obtained has been held to be a forgery. (State v. Shurtliff, 6 Shepley, 368; Rex v. Hart, 9 Car. & P. 752.) In Rex v. Hart, Ryan & M. Crim. Oas. 486, it was determined by all the judges of England, without a dissent, that the filling up a blank check with ¿¡500, when authority was to fill up for A200, was forgery. The same doctrine is clearly recognized in 2 Russell on Crimes, 321; Arch. Crim. Pr. 342. The act must'be authorized, otherwise it is a forgery. (Regina v. Beard, 34 Eng. C. L. 497; 7 C. & B. 294; Goodman v. Eastman, 4 N. H. 455.)</p> <p>The entire argument of the learned counselors for the prisoner proceeds upon a mistaken notion that the principles applicable to civil cases furnish the rule for determining what acts are necessary to constitute the crime of fo/rgery in a State prosecution. • In two or three of these civil cases remarks are found apparently favoring their position. Where this error occurs it is mostly out of mere inadvertence, and can furnish no force or authority in a criminal case, as the matter of mere civil liability could in no sense determine the question of the guilt or innocence of the party filling up the blanks contrary to his authority. This question could alone be determined by the criminal tribunals of the country, so as to furnish precedents and authority for the case at bar.</p> <p>It is claimed and stated that the doctrine on this subject is different in this country from that of England. This we deny. English courts have repeatedly held that forgery could not be pleaded in bar against the holder; but the same courts have as often held the accused guilty of forgery on criminal prosecution. (2 Car. & K. 528 ; 7 C. & B. 652; 1 Coxe O. C. 186 ; 1 Moody C. C. 486; 2 Coxe C. C. 360, 426.) The doctrine held on the civil side of the court was clearly and fully laid down. (Russell v. Longstaff, Dough 514.) This doctrine has never been departed from by the English courts, so far as we have been able to find. It is contended that this doctrine has recently undergone a change in the courts of that country. (See Awde v. Dixon, 6 Excheq. 869.) Parke, B., in his opinion in this case, remarks that a party who takes a blank note can not recover upon it unless the person from whom he receives it had a real authority to deal with it. There was no such authority in this case. State v. Santee, 22 Penn. 39, and State v. Flanders, 38 N. H. 324, are cases where the signatures to genuine instruments were procured through fraud and false pretenses, and therefore not forgeries; in which we fully concur. This has always been the doctrine of the Court of King’s Bench and all other courts of England, except one case at Star Chamber, many years ago, in the execution of a will, decided ex parte. (Regina v. Collins, 2 Moody & R. 461; Regina v. Chadwick, id. 545.)</p> <p>We have, in conclusion, one more consideration to urge. It is the relation sustained by the forger to the instrument forged, and the fund sought to be reached by this forgery. This check was forged in the city treasurer’s office. The funds of the city against which it was drawn were on deposit for the city in its banks of deposit. The prisoner knew he had no power to erase and fill up the check for his own use. He also knew that no one could confer any such power upon him. He knew the fund could not be interfered with without the intervention of a joint maker. Until the co-surety has joined in its execution by signing the space left by defendants for his signature, it was invalid and incomplete. It was not a note signed in blank to be filled up. It was a joint note, signed by one of its makers only, and could not become complete until the other had signed. And the plaintiff took it solely on the false representation that the defendant had authorized it to be delivered as a complete and binding instrument. In principle, this case is not unlike the creation and delivery of a note by affixing the name of the maker without any authority whatever.' The declaration made, that the party signing the name had authority to use the name of another, could m no sense make the payee a bona fide holder unless it could be shown that he had authority -to sign the name of the maker.</p>

Louis Circuit Court. I. The proof was uniform that the company tolerated the practice of engineers, at switches and on side-trades, allowing their firemen to handle the locomotive only when the engineer deemed the fireman competent to do so. Even then the fireman was held responsible for th« train.

Louis Circuit Court. The sale did not cancel or satisfy the previously existing deed of trust. 1. The bill of sale was not taken or intended as pajrmen-t or satisfaction of the deed of trust; on the contrary, it was founded on a new and distinct consideration. 2. Eichmann having remained in possession, the sale was void (Wagn. Stat. 281, § 10) ; whereas the deed of trust, being acknowledged and recorded, was valid by section 8 of the same act.

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

<p> Appeal from St. Louis Circuit Court. </p> <p>Ordinarily, the possession of one tenant in common is not adverse to his co-tenant. It may, however, become so, and does become so the moment there is an assertion of exclusive ownership on the part of the person in possession — the moment that he gives notice, expressly or impliedly, to the person out of possession that the possession held by him is of an adversary nature. And if, from that moment, the statutory period of limitations elapses before the assertion of the title of the holder of any undivided interest, such title is barred — is not held for him but against him; which is only saying that adverse possession for ten years bars a tenant in common as well as a stranger, or that a tenant in common is on the same footing as a stranger in respect to possession. Acquiescence in such a claim of exclusive ownership for the period of limitations is a complete bar to the subsequent assertion of the ousted tenant’s title, though he was originally tenant in common. (See Warfield v. Lindell, 30 Mo. 282.)</p> <p>I. The defendants and E. W. Paul being tenants in common, the possession of one was the possession of all in support of the common title, until an actual ouster be shown, or circumstances from which one can be inferred or presumed. Mere reception of all the rents, without any claim by E. W. Paul, or any declaration to him or others, will not be held sufficient to raise any presumption or inference of an ouster. Here, while .the onus probandi is upon the defendants, there is no proof of any possession even adverse to E. W. Paul, no claim by him, and no exclusion of him, or declaration of any intention to exclude him; and his long-continued insolvency and the peculiar provisions of Therese O. Chouteau’s deed explain this.</p> <p>II. Seventeen years’ quiet possession will not raise the presumption of an ouster. In a New York case quoted in Warfield v. Lindell, 30 Mo. 273, it urns held that an exclusive possession for twenty-seven years was not sufficient to authorize the presumption of an ouster, even where there had been an actual resistance to plaintiff’s entry and claim: (Norwich v. Wright, 24 Wend. 221.) In some of the cases quoted below it has been held that an occupancy by one joint tenant or tenant in common, and levying a fine, was not sufficient to raise the presumption of an ouster. In one case, I think in Pennsylvania, it was held that forty-six years Was not sufficient without other circumstances. (See, generally, 5 Burr. 2604; 1 East, 277; Ang. Lim. 422-3 ; McClurg v. Ross, 5 Wheat. 124; Warfield v. Lindell, 30 Mo. 273 ; 38 Mo. 561; Johnson v. Prewitt, 22 Mo. 554; Knowlton v. Smith, 36 Mo. 507; Cole v. Roe, 39 Mo. 411; Scruggs v. Scruggs, 41 Mo. 242; Doan v. Sloan, 42 Mo. 106.)</p>

Louis Circuit Court. I. The devise of the testator to his three sons became void on the failure of the contingency upon which it was predicated. As John died without issue before the testator died, and the devise was wholly dependent on his arriving at age, it could never take effect, and is void. And as the subsequent provisos are also wholly dependent on his arriving at age, the whole clause is void. II. Even if John had any interest, when he died it lapsed. (1 Jarm.

Louis Circuit Court. In City of St. Louis v. Wiggins Ferry Co., 40 Mo. 580, Judge Holmes lays down this general rule: “ The personal property of a non-resident, actually situated in another State, is not to be assessed and taxed agaifist him in this State ; but the property of either a resident or a non-resident is taxable here if it be found situate within the local jurisdiction, whether it be in the hands oE the owner himself or of his agent.” (Maltby v. Reading & Columbia…

I. It was error to exclude evidence of Moore’s threats and conduct before the affray, and in holding that all threats and demonstrations made by him more than three days before the affray were too stale to be given in evidence, although communicated before the shooting; and that all such as had not been communicated were inadmissible, however recent.