Volume 48 — Missouri Reports

<p> PeMtion for Mandamus. </p> <p>I. Tbe ordinance establishing and regulating tbe engineer, department, approved by tbe mayor August 5, 1864, fifth section, article I, ordained that all public works ordered by tbe city, unless otherwise directed, shall be let by tbe city engineer to tbe lowest and best bidder, and that notice of tbe letting out of such work should be publicly given. By section 1 of article vi of ordinance No. 5399, it is ordained that “ tbe city engineer is hereby authorized and instructed to contract in tbe same manner as for other city work, for tbe cleaning, lighting and repairing of tbe public street lamps for tbe term of one year; and tbe said work shall be re-let annually thereafter, unless otherwise ordered by tbe committee on gasworks. Tbe lighting, cleaning and repairing shall each be let separately, if it shall be the interest of tbe city to do só, and tbe price shall be for each item.”</p> <p>II. Tbe act, approved March 4, 1870, entitled “An act to revise the charter of the city of St. Louis and to extend the limits thereof,” provides that the city council shall' have no power directly to contract for any public work or improvements, or repairs thereof, contemplated by this charter, nor to fix the price or rate therefor; but the city engineer shall in all cases, except in cases of necessary repairs, prepare and submit to the council plans, profiles and estimates of the cost of any proposed work; and, under the direction of ordinance, shall advertise for bids and let out said work, by contract, to the lowest and best bidder, subject to the approval of the council. The alleged agreement, entered into on the Bd of January, 1871, by F. Bischoff, city engineer, for the extension of said contract No. 1402 until the 1st day of March, 1872, was made without any authority either in the laws of the State or ordinances of the city of St. Louis, and without any lawful authority whatever, and the same is therefore null and void. The engineer had no authority to contract with said Dunn or any other person for lighting,'cleaning and repairing the public street lamps in the city except by complying with the provisions of said fifth section of article I of said ordinance 5899, above recited, and by letting the said work to the lowest and best bidder, all which said engineer failed and omitted-to do.</p> <p>I. If the contract made with Mr. Dunn was valid, it was the duty of the comptroller to countersign it.</p> <p>H. The contract made with Mr. Dunn was prepared by the city engineer in proper form, signed by Mr. Dunn and his sureties, submitted to the council for their approval, and approved by them ; and the action of the city engineer in the premises was in conformity with instructions emanating from the committee om gasworks. These facts make the agreement with Mr. Dunn a valid, contract under the city charter and ordinances. The meaning; of section 17, article VHI, amended charter, approved March 4, 1870, is obvious: 1. The council shall not contract directly, hut may contract indirectly, for work indicated in that section, after plans, profiles and estimates, advertisements and bids approved by the council. 2. But no work, improvement or repairs mentioned in that section is to be let out after advertisement and bids unless it be of nature to admit of plans, profiles and estimates of costs. That is perfectly clear. Section 18 enforces-the same view wherein it says every ordinance requiring such work shall contain a specific appropriation from the proper revenue or fund, based on an estimate of cost, etc. Now, what is meant by such work ? Evidently that of which profiles and plans may be made and submitted — that previously mentioned, streets, alleys, wharves, sewers, etc.</p>

Appeal froin St. Louis Circuit Court, The first instruction given on motion of respondent is palpably erroneous. It asserts that unless the jury found that “ at the time of the signing of said note, and before its delivery to the plaintiff, an agreement or understanding was had between him and said Bent and Leisse that said Bent and Leisse should he held and considered as indorsers,” then the jury could not find that the appellant was an indorser of the note.

•Appeal from St. Louis Circuit Court. I. The plaintiff was not entitled to a judgment against defend» ant as for the taking and conversion of plaintiff’s property: 1. Because there was no evidence as to the value of the property so taken and converted. 2. Because the taking and conversion was justified under the law. The execution under which the property was taken was a lien on the same. (Wagn.

Petition for Mandamus. I. Tbe respondents are tbe commissioners of tbe public printing during tbeir terms of office respectively. (2 Wagn. Stat. 1127, § 1.) H. It is the duty of tbe commissioners of tbe public printing to audit- and examine tbe accounts for all work done under tbe provisions of tbe act aforesaid. (2 Wagn. Stat., §§ 18, 20.) HI.

<p> Jippeal from Sixth District Court. </p> <p>I. There is no dispute as to the fact that the officers who ordered the seizure and who made the sale of plaintiff’s property-had no higher authority than their own official position gave them.</p> <p>EL Neither the government nor its officers had authority to seize this property. It cannot acquire title to property except by law and under authority of law. (Ex parte Mulligan, 4 Wall. 1; Wilson v. Crockett, 43 Mo. 218.)</p> <p>III. The action of the inferior court is tantamount to declaring that the agent of the government can divest title and give title to property when the government itself could not do either; for the citizen’s right to his property is by the constitution protected as well against the government as against his fellow-citizen.</p> <p>IY. The vendor can sell no more interest than he legally possesses; and if the government had no title, the . defendant has none. (Wilson v. -Crockett, 43 Mo. 218.)</p> <p>The declarations of law made by the court stated the lair correctly, and the verdict was for the right party. (Wellman v. Wickersham, 44 Mo. 484.) The evidence here docs show how the horse in question came into the possession of the government through its officers, and the fact that the government asserted title to it. It was sold by proper authority and the proceeds paid over to the officers of the government. If the plaintiff has any remedy in this case, it is against the government, and not against a party who is now in possession. It makes no difference whether the testimony discloses the precise purpose for which it was taken or the circumstances under which it was taken. The act of these persons was sufficiently recognized, and the court must presume that the possession of the property by the government, with the proceedings,- its sale, etc., were sufficient to show its assertion of title; and any controversy now as to the regularity or propriety of the proceedings on the part of the officers who actually took and sold the property must be between the appellant and the government ; and an innocent purchaser, or those holding under him, should not be called upon to answer for any irregularity of such officers, if in point of fact they were guilty of any. ■</p>

Louis Circuit Court, I. Tbe plaintiff could not assign tbe contract without tbe consent of tbe city by ordinance. (City Ordinance 423, art. K.) ' II.. This ordinance (No. 6016) confers an exclusive privilege upon McCbestney & Co. This privilege and duty is in tbe nature of a license, and, as sucb, is not assignable without tbe consent of tbe licensor. Tbe license is founded on personal trust, and, like every other license, is not assignable.

Louis Circuit Court. I. .The statements of Kribben should have been excluded because the admission was not made in the course of Kribben’s business, nor in an accounting with his employers, nor cotem-poraneously with the act of receiving the money, but long subsequent thereto, and was an admission of a fact existing anterior to the bond.

<p>1. Attachment — Non-residence—Evidence.—Upon an issue made by a plea in abatement, in an attachment suit grounded upon alleged non-residence, evidence showing merely that defendant owned property in another State is incompetent, and is properly excluded, unless peculiar circumstances rendering the evidence admissible be first shown to exist.</p> <p>2. Practice, civil — Appeal — Supreme Court will not weigh evidence in law cases. — The Supreme Court will not look into evidence or pass upon its weight in law cases, even where the case was tried by the court below without the aid of a jury.</p>

Louis Circuit Court. I. The courts of this State, where a foreign judgment is sought to he enforced bj suit before them, will inquire into the jurisdiction of the court rendering the same, and if they find that the said court had not jurisdiction of the person of the defendant and the subject-matter of the suit, they will treat such judgment as null and void.

<p>1 Lapeyre v. Paul, 47 Mo. 586, affirmed.</p>

Louis Circuit Court. I. The issue devisavit vel non having been regularly raised by the parties contestant, the executor becomes the propounder of the will and actor in the proceeding, which is in the nature of a proceeding in rem. Unlike an ordinary suit between indi viduals, it is inaccurate, and a misconception of this statutory proceeding, to call either of the parties plaintiffs or defendants.

<p>1. Practice, criminal — Argument by counsel, order of, in discretion of trial court.— The order in which counsel shall address the jury on the trial of a criminal case is a matter resting in the discretion of the court trying the cause, and unless it appears to have been exercised wrongfully ana so as to injure a party, the Supreme Court will not decide that the discretion has been abused.</p>

Petition for Mandamus. I. The auditor doubts his power to allow the bills because of the provisions of law (Gren. Stat. 1865, ch. 137, § 24, tit. “ Treasury Department;” 2 Wagn.

Petition for Mandamus. I. By the act of 1853, section 1, the title to certain swamp lands was conveyed to the county of Ripley. (Sess. Acts 1853, p. 108.) The county of Ripley was organized in 1840 ( Sess. Acts 1840-1, p. 43), and its eastern boundary, as then defined, remained unchanged until 1864. Butler county was organized in 1849 (Sess.

Louis Circuit Court. I. The bill was drawn by both' Dameron Brothers and Logan D. Dameron, on the plaintiffs, when both parties knew that plaintiffs had no funds belonging to either of them in their hands. II. The draft was not indorsed by the defendant in the ordinary course of mercantile dealing, and he is not an indorser in the strict sense of the law merchant. 'ill.

Louis Circuit Court. I. The rule is that when the parties to be charged as indorsers live in the same town or city where the note is made payable, the notice must be given to the party entitled thereto personally, or at his domicile or place of business. (Sto. Prom. Notes, §812.) II. The holder, at maturity, having undertaken to notify the defendant, it was its duty to use due diligence.

<p>1. Practice, criminal — Assault and battery — Prior conviction not a defense when fraudulently obtained. — A defendant, having committed an assault and battery, procured himself to be arrested and fined a small amount. Held, that such conviction and fine was not a defense to a subsequent prosecution instituted by the injured party for the same offense. Such action was a mere fraud upon the criminal justice of the State, and cannot be allowed to succeed.</p>

Louis Circuit Court. I. The certificate offered as proof of protest of the note sued upon was incompetent. Held: that the allegation that when the note became due and payable it was presented for payment, was a material averment, and no proof of a previous or subsequent presentation would satisfy it.” (Schluter v. Rector, 1 Mo. 286.) (2) To make such alleged certificate of protest prima facie evidence of the facts therein stated, it should have…

<p>1. Partnership, what constitutes — Equity — Judgment affirmed. — A. brought an action in equity against B. to wind up an alleged partnership. There was no written agreement between them. A. testified that they were partners, and B. denied it. Nothing was paid by A. It was known for two years to A. that B. denied the partnership right claimed by him, but he nevertheless allowed the whole matter to sleep until B. had left the State. It was shown that the parties were operating together in some way as to the subject-matter of the alleged partnership ; that B. rendered some service in the matter, and A. offered to make compensation for it. Held, that in such a case the burden of proving the partnership was on the plaintiff, and the evidence recited was not sufficient to establish it.</p>

I. No motion in the Circuit Court for a new trial was required, for it is never allowed to urge, in a motion in arrest, the same matters passed upon by the demurrer.- (7 Mo. 298.) Would not the same reason dispense with a motion for a new trial ? A demurrer is the pleading of a defendant, made so by statute, and is therefore a part of the record proper; and from a final judgment on a demurrer an appeal will lie, without either a motion in arrest or for new trial.

<p>3. Practice, civil — Justices’ courts —sAppeals — Judgment in the appellate court for an amount exceeding the justice’s jurisdiction, improper.— On an appeal from the judgment of a justice of the peace, a judgment in the appellate court for an amount which, exclusive of interest, exceeds the jurisdiction of a justice’s court, is not warranted. The judgment must be limited to an amount within the jurisdiction of the justice.</p> <p> Appeal from St. Louis Circuit Court. </p> <p>I. The plaintiff did not leave the right of possession to the premises in controversy at the time of bringing this suit for possession. The only interest the plaintiff ever had in the premises in controversy was in the right of his wife. A valid lease of the wife’s real estate, for any definite time, must necessarily have been made by both husband and wife. The joining of the bus*-band and wife was essential to the full enjoyment by the husband of his marital interest in the property. This act of the wife, in giving him the full enjoyment of his estate in the property, did not thereby enlarge his estate and extend it beyond her death, to the end of the term. No such estate is known to the law. (Hill v. Sanders, 2 Bing. 112.)</p> <p>H. This suit was for possession alone, and not for rent.- In proceedings under a landlord’s summons, prior to the taking effect of the General Statutes of 1865, no judgment could-be rendered, in this State for rent. It was necessary for the plaintiff, however, even under the law of 1855, to state in his affidavit for the-summons the exact amount of rent due, although he could only-recover judgment for possession. (Vaughn v. Locke, 27 Mo. 290.) The section of the General Statutes of 1865 (p. 741, § 33) which gives the substance of what the plaintiff’s affidavit shall contain, is exactly similar to the section of the law of 1855 (R. C. 1855, p. 1018, § 33). Section 35, Gen. Stat. 1865 (p. 742), authorizes the justice not only to give judgment for possession, but “ also his debt for the amount of rent then due,” if that amount does not exceed the jurisdiction of the justice. The section then closes with this proviso: “ And provided further, that, if the plaintiff so elects, he may sue for possession alone, •without asking for a payment of the rent due.” If he does not elect to sue for possession alone, must he not, in the words of the act, ‘ ‘ ask for a payment of the rent due ? ” In this suit no payment for the rent due was asked.</p> <p>III. It was error in the Circuit Court to render judgment for an amount of rent greater than within the jurisdiction of a justice. The jurisdiction of an appellate court, in cases that come up from a court of limited jurisdiction, is exactly co-extensive with that of the inferior court from which the'appeal was taken. (Bridle v. Grau, 42 Mo. 859.)</p> <p>I. This suit was properly instituted in the name of the husband, who was the surviving lessor. The rent was payable to him, and the term, after the death of his wife, inured to his benefit. (Gen. Stat. 1865, p. 741, §§ 29, 30, 32, 33.)</p> <p>II. The judgment entered by the justice should be' for the possession of the leased property and the rent due, if it shall not exceed the jurisdiction of the justice. (R. C. 1855, p. 742, § 35 ; Ridgley v. Stillwell, 28 Mo. 400.)</p> <p>III. The premises belonged to Mrs. Shields, with full power to sell, lease, dispose of and appoint the use to whomsoever she saw fit. And by this lease, and the reservation of the rents to her husband for the term of two years, she made him her appointee, and appropriated the estate to his use and benefit for the full term .of the lease. The notes being made payable to Shields and wife in law, made them payable to him alone, and no one else; and in no event could the remainder attach until the end of the lease, which was an appropriation of the estate to the husband — the end of the term.</p> <p>IV. The judgment, was properly entered against Clifford and her sureties on the appeal bond. (Gen. Stat. 1865, p. 725, § 23.) The judgment of the justice was regular in so far as it awarded restitution of the premises and judgment for the rent of $200 then due, that sum being within the jurisdiction of a justice of the peace, and the rent that accrued afterward was merely incident to tbe appeal; and tbe continued occupancy of tbe premises by tbe wrongful act of tbe defendant could in nowise oust tbe Circuit Court of its jurisdiction of tbe entire cause.</p>

Louis Circuit Court. I. The parol evidence offered by plaintiffs, of the terms of the contract, was clearly inadmissible, there being no proof of the loss of the written contract, and no notice having been served on defendant to produce it.

I. Tbe allegation of false swearing against tbe defendant in tbe indictment is not too general and indefinite. It is stated with sufficient certainty and particularity. It states that the “evidence was material to tbe issue at said trial.” This is sufficient, and it is not necessary to show bow it was material. Neither is it necessary that tbe record should show that tbe false oath was material. (Whart. Crim.

<p>1. Equity —Fraudulent conveyances — Sufficiency of consideration. — A., being the owner of certain land which he occupied jointly with B., sold said land in 1861 to 0. for $2,500, and received O.’s notes for the purchase money, secured by deed of trust on the property. On the 12th of February, 1866, some three or four days before a judgment of $1,200 was rendered against him, A., notwithstanding the conveyance to. O., executed a lease of the land to B. for six years, at a rent of $1,200 fbr the term, the receipt of which'was acknowledged the same day. On the 5th of July, 1866, A. purchased in the name of B. twenty acres of ground from D. and his wife and her trustee, for a nominal consideration of $2,300, and, in connection with this purchase, transferred the note's and deed of trust from O., then amounting to some $3,000, to D. or his wife, by her trustee. D. and his wife, in addition to the conveyance of the land, paid $500 cash, and the half-interest in a growing crop of tobacco on the premises, that interest being valued at $450. At the same time the lease above mentioned from A. to B. was turned over to D. and his wife, or one of them. D. subsequently enforced the payment of O.’s note by sale under the deed of trust, and purchased the property for himself. He Id, that the assignment of the notes and deed of trust must be regarded as the consideration paid for the twenty acres; that the lease assigned, being from one who had no title to the 'property leased, was of no value, and could not constitute a good consideration for such purchase, and therefore the consideration passed from A.; and under such circumstances the land so purchased in B.’s name will be held to .be vested in B. as a secret trustee for A., and to be liable to the demands of A.’s creditors.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>The act to incorporate the Pacific Railroad, approved March 12, 1849, did not give the County Court of Johnson county the power to levy a special tax to pay the bonds issued by the court to pay its subscription of $100,000, made September 13, 1851, or to pay the $50,000 which was subscribed on the 12th day of November, 1853. Section 14 of the above act, which is supposed to confer the power, merely gives the County Court the power to invest the funds of the county in the stock of the company. Section 14 also provides for the issuing of bonds of such county to raise funds to pay for the stock thus described; but nowhere in the section, or in the whole act, is the power given to levy a special tax to pay either of the subscriptions. The mere existence of the act of 1853 shows that it was a remedial act passed to confer the power on the County Court to levy a special tax in order to meet the installments coming due on subscriptions which the several County Courts had made prior to the passage of the act of 1853 (Sess. Acts 1853, p. 121, § 33). Nothing was done under the act of 1849; everything was done under the act of 1853. No step was taken to levy a special tax until 1854, and the bonds for the $100,000 were not issued until January, 1857; and they bear upon their face the words “to be paid by special tax, according to the rate of tax-payers of Johnson county.” Section 30" of the act of 1853 makes provision not only for all future' subscriptions to be made and paid for, but also all subscriptions “heretofore made” — that is, made under the former law — to the capital stock of any railroad, and provides for the levy of a special tax to pay the principal and interest on the bonds issued by the court to pay such subscription; and the conclusion is that,, when so paid by special tax, the persons who pay the special tax shall become owners of the stock by complying with the provisions of the law (Sess. Acts 1858, p. 136, §§ 30, 31); that, under the act of incorporation of 1849, the County Court could only use the proceeds from the internal improvement fund, and swamp land and other funds of the county, to pay off the subscriptions made prior to the act of 1853. The act of 1853 was passed to empower the County Court by special tax to meet the installments due when its own funds failed (Sess. Acts 1853, p. 137, § 32); so that all the stock that was paid for out of the county’s own funds would be owned by the county as a county, and all the stock paid for by the proceeds of the levy of the special tax would be held by the County Court, under the act of 1853, in trust for the persons paying the special tax. (Sess. Acts 1853, p. 136, § 31.)</p> <p>Section 14 of the act of March 12, 1849 (Sess. Acts 1849, p. 219), authorizes County Courts of counties through which the Pacific Railroad might be located, to subscribe to the stock of that company, and to invest the funds of the county in such stock; to issue bonds of the counties to raise funds to pay the stock subscribed, and take proper steps to protect the county’s interest and credit, and appoint agents of the county to represent it, vote for it, and receive its dividends, etc. The act of March, 1849, is clear and not susceptible of misconstruction. It makes the county the owner of the stock subscribed for under it Whether that stock is paid for by funds of the county on hand, when it is purchased or raised afterward by taxation or by sale of the county bonds, or how the bonds are eventually paid, make no difference ; the law only provides for the county being the stockholder, and no law looking to any other had any existence. The “ act to authorize the formation of railroad associations and to regulate the same,” approved February 24, 1853 (Sess. Acts 1853, p. 121, §§ 29-32; id. 135-7), relates to and provides for subscriptions thereafter to be made by counties, etc. As to the Pacific Railroad and counties through which it was located, the law of 1849, under which the subscription was made, gave ample power. It made it a county debt, and the stock county property, to be paid for-out of the treasury — out of its general funds — as any other county debt; no account kept of who paid the money into the treasury, except as in any other matter of taxation, and no idea of any individual owning the stock. This general law of 1853 for the first time looks to a special tax for subscriptions under it, constituting a separate fund from the general fund of the county, and provides that for subscriptions thereunder, and special taxes paid therefor, the tax-payers may get stock by getting transfers thereof from the county. After fully providing as to future subscriptions, the act provides that any county which had theretofore subscribed to the capital stock of any railroad, should be entitled to the privileges and subject to the liabilities of any other stockholder. Not a word is said of divesting the county of its title and giving it to a class of individuals who might pay as much as $100 of tax; but the title is expressly left in the county, where it was when and before that law was passed. The counties are to continue to have and hold their stock theretofore acquired and owned, and be subject to just the same liabilities and have just the rights of any other stockholder.</p>

I. The- respondent claims that the County Court of Macon county, by districting the said county, legislated the justices of said court out of office; that such is the legal effect of the exercise by any court of the powers conferred by section 1 of chapter 187. Concede this construction, and not one county in the State would ever be districted for County Court purposes.

Louis Circuit Court. I. Our statute concerning proceedings in justices’ courts, ■which provides that a justice may be compelled to grant an appeal by rule and attachment when the circuit judge is satisfied that an appeal ought to be allowed, does not deprive the court of its power to proceed by mandamus, which it always possessed (Trustees, etc., v. Johnson, 2 Ired. 219; Tapping on Mandamus, 281, 289, and cases cited), because: (1) There is nothing in the act showing that…

Louis Circuit Court. I. Lucien Mead took an estate in the land of his wife for her life, and that passed bj the sheriff’s deed. (Boyce’s Adm’r v. Cayce, 17 Mo. 47; Schneider v. Staihr, 20 Mo. 269 ; 2 Kent, il0-111.) If, then, the deed of McLain vested the fee in Martha Mead, the husband took a fee during the marriage, and this, by the sheriff’s deed, passed to McLaran. II.

<p>1. Wills, proof of— Probate Court, judgment of, how impeached.— The judg me'nt of a court probating a will is like the judgment of any other court of competent jurisdiction, and cannot be impeached collaterally. It matters not that the court erred, or that the evidence upon which it was founded was not sufficient to justify it. That would simply constitute an error in the proceedings of the court rendering it. But the judgment would be valid until reversed, annulled, or set aside in the proper manner. The evidence is no part of the judgment, and whether it was rendered upon sufficient or legal evidence can only be inquired into by a direct proceeding. The evidence does not confer jurisdiction upon the court; it is merely the means by which the conclusion is arrived at.</p> <p>2. Wills — Powers — Execution, by administrator with will annexed, of power not executed by the executor in whom it was vested by the will. — Under section 1, article m, chapter 2, "Wagn. Stat. 93, an administrator with the will annexed can legally and effectively execute a power of sale of lands which was vested by the testator in the executor named in the will, when such executor has died without executing the power, and when the will absolutely directs that the lands shall be sold, and no confidence or trust is reposed specially in the executor named, although the power may be accompanied by and involve the exercise of a discretion.</p>

Louis Circuit Court. I. There was no evidence of any transfer of stock on the books of the company, or of any acceptance of a transfer by the company. H. The sale of the certificate, though not entered on the books of the company, gives an equitable title to the shares. It may not secure the right to vote the stock or co-operate in other official relations as a stockholder, but the beneficial ownership passes.

■ Louis Circuit Court. I. There was no trust created by the language of the deeds. What purported to be a trust was instantly executed by the statute of uses, leaving no estate in the trustee. . (Hill on Trustees, 232-8.) (a) The fact that one of the cestuis que trust was or became a married woman does not defeat the operation of the statute, because the estate to her was not a separate estate. An estate to the joint use of husband and wife is not a separate estate.

The court erred in allowing the pretended deed from French, as guardian of said minors, to be read in evidence. The report of commissioners, the order of sale by the court, the report of sale, and the sale and conveyance all having been made at the same term of court, the proceedings were void and did not affect the title of the infants to said land. (Sedgw. Stat. and Const.

<p> Appeal from, St. Louis. Circuit Court. </p> <p>I. The deposition of John N. Edwards, proving that the defendants bad nothing to do with the composition or publication of the alleged libel, and in fact knew nothing about it until after it appeared in the Republican, was proper evidence to rebut malice in fact, and also “to enable the jury to estimate the probable quantum of injury sustained.” (2 Stark. Sland. 78; Thornton v. Stephen, 2 Moo.dy & R. 45-6; Richards v. Richards, id. 558.) And this evidence was proper in mitigation of damages under the justification. (Chalmers v. Shaekell, 6 Carr. & P. 475 ; Morris v. Duane, 1 Binn. 90; Kennedy v. Gregory, id. 85; Coleman v. Southwick, 9 Johns. 46; Hotchkiss v. Lathrop, 1 Johns. 288 ; Root v. King, 7 Cow. 613, 632-8 ; Gillman v. Lowell, 8 Wend. 575 '; Parsons v. Harper, 16 Gratt. 76; Shank v. Case, 1 Ind. 170; Murphy v. Stout, id. 372; Swails v. Butcher, 2 Ind. 84; Shoulty v. Miller, 1 Ind. 544; Sloan v. Petrie, 15 Ill. 425 ; 16 Ill. 405 ; McAlister v. Tibley, 25 Me. 474; Sanders v. Johnson, 6 Blaekf.55.) It is not necessary to plead mitigating circumstances in mitigation of damages, under the code of Indiana (just like our own code), because evidence given under a plea of justification, but not fully proving the plea, will be considered in mitigation of the damages. (O’Connor v. O’Connor, 27 Ind. 70 ; Sweeny v. Nave et al., 22 Ind. 180 ; 1 B. Monr. 172; 18 B. Monr. 786; Tinsley v. Freeman, 50 Ill. 497.) A plea of justification, not fully sustained, does not aggravate the damage in an action for libel or slander in this State; and evidence given under such a plea mav reduce the damages to a nominal sum. The reason for pleading facts and circumstances in mitigation of damages in the courts of New York never prevailed in Indiana nor in this State; hence the decisions in Indiana, notwithstanding the provision of the New York code, was literally copied into that of Indiana, and it has been copied into our own code. (See O’Connor v. O’Connor, supra; Sweeney v. Nave et al., supra; Nelson v. Musgrave, 10 Mo. 649 ; also see Detroit Daily Post Co. et al. v. McArthur, 16 Mich. 451.)</p> <p>H. Evidence of the wealth or pecuniary circumstances of a defendant is not admissible, in actions for libel and slander, to enhance the damages, or for any other purpose. (Townsh. Sland. and Libel, 479, § 391; Meyers v. Malcolm, 6 Hill, 292 ; Palmer v. Haskins, 28-Barb. 90 ; Morris v. Barker, 4 Harrington, Del., 520 ; Ware v. Curtledge, 24 Ala. 622 ; Taber v. Hutson, 2 Ind. 322; Moody v. Osgood, 50 Barb. 632; Stout v. Proll, 1 Cox, N. J., 78-80 ; Grandy v. Humphries, 35 Ala., N. S., 626 ; Pool v. Deevers, 30 Ala. 675.)</p> <p>HI.' The court erred in charging the jury that if they found for the plaintiff they might give the plaintiff compensatory and exemplary damages. A libeller may be indicted and punished. (Weber v. State, 10 Mo. 4.) Exemplary or punitory damages are not recoverable in such cases. (Austin v. Wilson, 4 Cush. 273 ; Taber v. Hutson, 5 Ind. 326 ; 11 Ind. 159.) The general rule is to give such damages as will compensate the plaintiff, without any reference whatever to the operation - of the verdict upon the minds of others as an example, or to deter them from the commission of similar wrong. Crimes are .punished in courts of criminal jurisdiction, for the reformation of offenders, and also to deter others from offending in like cases ; while damages in civil actions are given to repair losses and compensate the injured to the extent of the injury sustained in every case of actual wrong. Intentional and malicious wrongs have been made exceptions, by the courts, to the general rule of compensation in not a few cases. The latest decision of our own Supreme Court on the subject inclines strongly to the principle of compensation. (Levering et al. v. Union Trans. & Ins. Co.,!42 Mo. 88 ; Goetz v. Ambs, 22 Mo. 170 ; 27 Mo. 88 ; 2 Greenl. Ev.' 257, § 253; Malone v. Murphy, 2 Kan. 262; Hodgson v. Millward et al., 3 Grant’s Lead. Cas. 411; Flint v. Clark, 13 Conn. 366, 370 ; Bristol Manuf. Co. v. Gridley, 28 Conn. 288 ; Markham v. Russell, 12 Allen, 573 ; Harrison v. Swift, 13 Allen, 144.)</p> <p>IV. The damages found for the plaintiff are excessive, and the court ought to have granted the defendants’ motion for a new trial on that ground. (Goetz v. Ambs, supra; Kinsey v. Wallace, 36 Cal. 480; Swartzel v. Hey, 3 Kan. 244.)</p> <p>I. The court erred in ruling out the testimony of the witness Edwards. If he wrote the article containing the alleged libel, and it was published in the paper of appellants without their knowledge or consent, these facts were competent evidence in mitigation of damages.</p> <p>H. The court erred in admitting testimony tending to show the pecuniary condition of the defendants. Such testimony is incompetent. (Myers v. Malcolm, 6 Hill, N. Y., 292 ; Ware v. Curtlege, 24 Ala. 622 ; Palmer v. Haskins, 28 Barb. 90 ; Morris v. Baker, 4 Harring. 520 ; James v. Biddington, 6 Carr. & P. 590 ; Coryell v. Colbaugh, 1 Coxe, N. J., 77; Townsh. Sland. 479, § 391.)</p> <p>TTT. The following cases, cited as authorities against this position, were reviewed at length: Fry v. Bennett, 4 Duer, 247; Bennett v. Hyde, 6 Conn. 24; Case v. Marks, 20 Conn. 248; Adcock v. Mead, 8 Ired. 360 ; Karney v. Paisley, 13 Iowa, 92; Humphries v. Parker, 52 Me. 502; Halsey v. Brooks, 20 Ill. 115; Lewis v. Chapman, 19 Barb. 252; State v. .Barrett, 7 Pick. 86; McNamara v. King, 2 Gilman, Ill., 432; McAlmont v. McClellan, 14 S. & R. 359 ; Grabe v. Margrave, 4 Ill. 372; Reed v. Davis, 4 Pick. 216.</p> <p>TV. If the appellants composed and publised a libel against the respondent, they are liable to be tried and convicted for it, and may be punished both by fine and imprisonment. (2 Wagn. Stat. 886, § 2 ; Austin v. Wilson, 4 Cush. 273 ; Tabor v. Hutson, 5 Ind. 159; Weber v. State, 10 Mo. 4.) This is a reason why punitory damages should not be given in this suit; otherwise the defendants might be punished twice for the same offense.</p> <p>Y. The court erred in the first instruction, because it assumes by implication that the appellants charged respondent with fornication. This should have been left to the jury. It also assumes that the action of appellants was unlawful. This shut out inquiry as to the facts which made it so.</p> <p>YI. The second instruction is erroneous because it required the defendants to establish by proof divers fornications with divers persons. One act of fornication, or divers acts of fornication with one person, were declared by the- court as not sufficient defense under the answer.</p> <p>I. This being an action of tort, and the damages being unas-certained, the court below properly permitted the plaintiff to open and close the case. (Carter v. 'Jones, 5 0. & P. 641; Mercer v. Whall, 5 Q. B. 447; Cotton v. James, M. & M. 273; 1 Greenl. Ev. 102, and note 4.)</p> <p>II. The petition in the divorce suit of Robert Buckley v. Jane Buckley, and the deposition of Edwards, offered by defendants to show, in mitigation of damages, that the defendants were not the originators of the libel, were properly excluded: 1. Because this circumstance was not pleaded in mitigation. The defendant in libel and slander must set up the mitigating facts relied on (Gen. Stat. 1865, ch. 165, § 44), and especially must this be done when the truth is pleaded. (Weaver v. Hendricks, 30 Mo. 507.) 2. Because such a circumstance is not admissible in evidence in mitigation of damages, under the rules of evidence. (Anthony v. Stevens, 1 Mo. 254; Moberly v. Preston, 8 Mo. 462.) The rule'of evidence is not changed by the statute cited above, but the rule of pleading only.</p> <p>HI. Evidence of the wealth of the defendant was properly admitted. 1. The plea of truth in the answer, unsupported by testimony, was evidence of actual malice. (1 Hill. Torts, 425, § 190; 24 Ala. 174; 4 Comst. 162; 5 Yerg. 211; 13 Penn. 610; 4 Shep. 13; 1 Am. Lead. Cas., Harr. & Wall., 179; 2 Pick. 113, 121; 3 Watts & Serg. 555; 5 Ohio, 225; 5 How., Miss., 158.) Hence punitory damages were authorized (Franz v. Hilterbrand, 45 Mo. 121, and cases cited), and evidence of defendants’ wealth was necessary to enable the jury intelligently to determine the amount of damages requisite to inflict the proper punishment. (26 Md. 380 ; 32 Ga. 374; 41 Ill. 141; 52 Me. 502; 6 Conn. 24; 2 Whart. 314; 3^Mass. 546.) 2. Evidence of wealth tended to establish the social rank and influence of defendants, and their consequent power to injure plaintiffs by their publication. (3 Mass., supra; 2 Whart., supra; 14 Serg. & R. 359, 362; 8 Wend. 573; 52 Me., supra.) .</p> <p>IV. The record shows no specific ground of objection to any other testimony complained of, and this court will not consider the objections. (23 Mo. 438; 25 Mo. 41; 32 Mo. 255; 39 ■Mo. 229; 40 Mo. 369.)</p> <p>V. The instruction authorizing exemplary damages was properly given for plaintiff. (See authorities, supra.) This instruction, when taken, in connection with the fifth given for defendants, is otherwise unobjectionable.</p>

Jlppeal from St. Louis Circuit Court. This was an action of ejectment to recover a portion of a common-field lot in St. Louis Prairie, confirmed and surveyed for widow Dodier or her legal representatives, under act of Congress of July 4, 1836. Por facts in this case, see 45 Mo. 139. The case is the same now as that presented in Connoyer v. Washington University, 36 Mo. 481.

St. Louis Circuit Court. among other points made the following, in respect to the powers and acts of municipal corporations: Where power is given upon condition, the condition must be fulfilled or the power is never acquired. Where the law prescribes their acts to be of record, then no act unrecorded can be valid-; and this applies to acts preliminary to the acquisition of power, as well as to acts done after power is acquired.

<p>1. Interest — Usury — Loans — Purchaser of commercial paper — Boatmen’s Savings Institution.— Under the charter of the Boatmen’s Savings Institution of St. Louis (Adj. Sess. Acts 1855, p. 149, $ 3), the discounting of commercial paper by the bank constituted a loan, and discount at the rate of over eight per cent, reserved would amount to usury. But the bank might purchase bills of exchange at whatever rates might be agreed on between itself and its customers. Usury has no application to such transactions. To constitute usury there must be an express or implied loan. And an allegation that the bank simply purchased bills at figures exceeding the current rates of exchange, with a view to evading the charter restrictions as to interest, would be held on demurrer insufficient to charge usury.</p>

<p>1. Lands and land titles — Boundaries — Monuments will not prevail,'when. — Although monuments will generally prevail over other calls in a deed, yet if, taking the whole deed together, they are apparently erroneous, they will be disregarded. And a boundary may be rejected when' it is clear that it was inadvertently inserted, and that a tract with different boundaries was intended to he conveyed.</p>

<p> Petition for Prohibition. </p>

I. The duty of the defendant was simply to cast up the votes after opening the returns, and .certify the result. He had no power to look out of or beyond the returns. (Mayo v. Freeland, 10 Mo. 629 ; State v. Harrison, 38 Mo. 540.) EE. The bouse of representatives in Congress bad power to Say wbo should sit in tbe body, but no jurisdiction of this suit. III. Tbe defendant is charged with refusing to open, cast up and certify tbe returns.

L The contract of insurance never was consummated. This policy could have become binding only by the dispatch of a notification of acceptance directed to the insurer, by mail or otherwise, before the fire. (Phill. Ins., § 17 ; Taylor v. Merch. Fire Ins. Co., 9 How. B90 ; Wallingford v. Home Mutual Fire Ins. Co., 30 Mo. ^46; Neville v. Merch. & Manuf. Ins.

By her contract the county has pledged a fund for the payment of this warrant, and cannot be allowed now to say that by the terms of her contract she was to pay the debt only so long as the fund was designated as the “ road and canal fund.” She cannot receive and enjoy this fund for other purposes, and at the same time use and receive the benefit of this work and labor performed under the contract, released from any and all liability therefor.

I. A denial of any fact which the plaintiff must prove in order to recover is not new matter. (Stoddard v. Onondaga, 12 Barb. 578 ; Yassuer v. Livingston, 8 Kern. 248 ;• Wells v. Pike, 31 Mo. 590; Carpenter v. Meyers, 32 Mo. 213; Holtzbauer v. Hiene et al., 37 Mo. 443.) II. A writ of error or appeal will not lie from a judgment on a plea in abatement, and the motion for new trial was improperly filed. (Davis et al. v. Perry et el., 46 Mo. 449.) HI.

Petition for Mandamus. Relator is in under color of title at least — that is, under the commission issued by Governor McClurg to him, on the 20th day of April, 1869. Even though the commission may have been wrongfully issued to Yail, and Vail may not have been elected, the commission for that reason is not void; he was and is de facto judge (St. Louis County Court-v. Sparks, 10 Mo. 118), and could only be ousted by the means and in the manner designated by law.

<p>1. Practice, Supreme Court — Failure to malic out appeal — Neglect of cleric. — When it appears from the records that appellant has failed to prosecute his appeal within the time required by law, the judgment will, on motion, be affirmed, even- though it further appear that the transcript was ordered in time, but that the clerk neglected to make it out. The respondent must not be made to suffer by reason of his failure.</p>

<p>1. Conveyances — Sheriff’s deed — Amended deed should he made, when — Effect of amendment on former deed — Innocent purchasers, who are. — It is the right and duty of a sheriff to amend a defective deed when the facts will warrant him in so doing, and the amended deed will relate hack to the date of the original one.</p> <p>In such case the former deed may he first set aside on motion. But the last and correct deed is not void because the imperfect deed was not first set aside.</p> <p>A purchaser of the land between the date of the first and second deeds will he affected by the latter only where he had either actual notice of the facts therein recited, or notice of such recorded proceedings as would advise him of them.</p> <p>Where A. purchased at sheriff’s sale and went into open, notorious possession of the premises, of which fact B. was aware, but, learning that the title was defective by reason of infirmities in the sheriff’s deed, proceeded to hid off the property under another judgment for a nominal sum, to say that B., in such a case, was a stranger, and should he protected as an innocent purchaser from the operation of a second and amended sheriff’s deed to A., would confound all ideas as to what constitutes innocence either in an actual or moral sense.</p>

<p> Jlppeal from Greene Circuit Court. </p>

I. The recital in the sheriff’s deed to plaintiff, of the date of the levy of the writ of attachment in the case under which he claims, is prima facie evidence of the fact as therein recited, and is… Held: where the statute is silent as to what recitals shall be contained in a statutory deed, that the form must be adapted to the facts in the case, and that construction cannot be employed to give such a deed an effect beyond the broadest scope of its own terms.

I. A contract by a railroad with a land-owner to fence the, road through his ground, is a good answer to him for killing his stock. {Indiana R.R. v. Petty, 25 Ind. 413; Johnson v. Milwaukee R.R., 19 Wis. 139; Corwin v. N. Y. & Erie R.R., 13 N. Y. 49; Talmadge v. R. & S. R.R., 13 Barb. 493 ; Towles v. R. & S. R.R., 18 Barb. 583 ; 2 Hill, N. Y. Com. Pleas, 496; Easter v. L. M., 14 Ohio St. 48 ; Cin. & Ham. R.R. v. Waterman, 4 Ohio St. 424; 33 Oal. 280; St. Louis & Cin.

<p>1. Partnership, community of profits essential to. — An agreement that something shall be done or attempted with a view to gain, and that the gain shall be shared by the parties to the agreement, is the essential characteristic of every partnership agreement.</p>

<p> Appeal from Morgan Circuit Court. </p>

Defendant cannot be ejected after he has laid out his money on the contract. It would work a fraud upon him. (25 Mo. 63 ; 23 Mo. 423.) There was part performance of the verbal contract, and it ought to be enforced entire. (28 Mo. 134, 604; 35 Mo. 316.) The payments made to plaintiff the law required to be applied to the individual indebtedness in the absence of directions to the contrary.

<p>1. Criminal law — Larceny — Indictment — Absence for purpose of avoiding arrest, equivalent to fleeing from justice— Construction of statute. — Under an indictment for larceny the jury wore properly instructed that the time during which defendant was out of the State or away from his usual place of abode, for the purpose of avoiding arrest or prosecution, should not be included in the period limited by the statute for the prosecution. Under that law (Wagn. Stat. 1120, 28) absence for the purpose of avoiding arrest would amount to a “fleeing from justice.”</p>

<p> Error to Cole Circuit Court. </p>

The use must be sucb as is public in its character, and not • merely publicbecause declared such. (East St. Louis v. St. John, 47 Ill. 90 ; Am.

<p> Appeal from Cole Circuit Court. </p>

This was a suit to recover damages for breach of warranty in a sale of real estate. The petition alleged, among other things, that plaintiff paid defendant for the land $400, but that plaintiff had at no time any title to or possession of the same, for the reason that defendant at no time had any title thereto, since at the time of such conveyance the same was owned by the trustees of the Methodist Episcopal Church of St. Louis.

<p>1. Execution — Constable's bond, action on — Judgment on which execution was based must be proved. — In suit on a constable’s bond for failure to make levy on an execution, defendant cannot call in question tbe regularity of the judgment on which the execution was founded, but plaintiff must prove that the judgment was rendered.</p> <p>2. Execution— Constable’s bond — Action on for failure to levy — Measure of damages. — In an action on a constable’s bond for failure to make a leyy</p> <p>■ on an execution, the measure of damages would be the amount of complainant’s actual injury resulting from the negligence or misconduct of the constable, and not the amount called for by the face of the execution.</p> <p>3. Justice of the peace — Acts of after expiration of term of office.— When a justice of the peace continued to act officially after the expiration of his commission, his continued acts colore officii within the jurisdiction of a justice de jure were valid as to third parties, and could not be collaterally drawn in question.</p>

Tbe office of defendants was mainly ministerial, and if they were in this case acting judicially, this fact must be set up in an answer, and proven like any other defense. So the court erred in sustaining the demurrer. (7 Hour. 130; Greenl. Ev. 399; 12 How. 404-5; 17 Verm. 609; Shearm. & Redf. Negl. 188, §§ 158-9, note 1; 26 Mo. 65; 35 Me. 129; 1 Sandf.

Defendant, between tbe making of tbe first and second deeds of trust, obtained judgment against Cordell, and bad tbe land in controversy levied on and sold. For facts generally, see 48 Mo.‘ 179. I. Tbe mistake in tbe first deed of trust was not cured by the-making of tbe second deed of trust, as judgment liens intervened;. II. Young did not show that be bad paid tbe debt; m. Those wbo were substituted on tbe record as co-plaintiffs-bad no status in court.

<p>1. Garnishment — Wages, payment of. — A garnishee will not he chargeable for payment of monthly wages to his employee after garnishment, the payments having been made so as to keep the amount due the employee below' the value of his services for the thirty days preceding the several payments. (See Wagn. Stat. 664, \ 37.)</p>

All tbe evidence of tbe agreement between Ballinger and Clinton Reno to obtain tbe pardon of John Reno, and tending to show that tbe money was sent to Jefferson City to be paid to Ballinger alone, was wholly inadmissible in support'of tbe claim of tbe interpleader.

This suit was brought by plaintiff by virtue of her rights under the general law of descents and distributions. Judgmént in the lower court was for plaintiff, and was affirmed in the District Court.

<p>1. Interest — Money received by party who improperly applies it to his own use. — "When money is received by a party who applies it to his own use, or otherwise improperly detains it, he should pay the interest upon the money so used or detained.</p> <p>2. .Practice, civil — Pleading — Demurrer waived by answering over.— Defendant, by answering over after demurrer overruled, practically abandons the demurrer.</p> <p>3. Agency — Principal, by adopting acts of agent, makes them his own.— A principal, by ratifying and confirming the acts of his agent, adopts them and makes them his own as from the beginning.</p>

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

<p>1. Practice, civil — Judgment for costs — Appeal—Nonsuit.—A judgment for costs is not-a final judgment, and will not support an appeal or writ of error. And the rule holds, although the judgment was rendered on a nonsuit.</p> <p>Where a nonsuit is taken, in order to justify an appeal or writ of error the judgment should be formally set out, “that it is by the court therefore con'sidered and adjudged that the plaintiff take nothing by his writ, and that the defendant go thereof without day and recover of plaintiff his costs,” etc.</p>

The court did not err in permitting Breckenridge, Whitson and Maupin to become parties. They had an interest in the result of the suit. Their petition supplemental shows that they asked and obtained permission to be made parties, and certainly their petition shows interest. This practice is allowed by the statute. (Wagn. Stat. 1034, §§ 8, 4; 42 Mo’. 101; 2 Head, 289; 29 Mo. 429; 27 Mo. 227; 3 Conn. 537; 3 Barb.

<p>1. Revenue — Taxation, repeal of temporary rate of — Power of Legislature, etc.— As a general proposition, there can be no doubt of the power of the . Legislature to repeal a temporary rate of taxation and impose another and higher rate, or additional taxes, by virtue of the State sovereignty over the whole subject of taxation, unless there has been some éxpress contract in limitation of the power, .upon a consideration deemed to be a part of the value of the grant or the charter.</p> <p>2. Revenue — Pacific Railroad liable for county taxes — Construction of statute. — Although, by the amended charter of the Pacific Eailroad Company (Sess. Acts 1851, p. 271, \ 6) and the laws applicable to said road (Sess. Acts 1863, p. 13, \ 12), provision was simply made for the payment by the corporation of State taxes, nevertheless, under the constitution (art. ii, \ 16) and the general statute (2 'Wagn. Stat. 1159-61, §§ 1-9), the company was liable for its county taxes.</p> <p>3. Revenue— County collector a ministerial officer — Where assessor has jurisdiction. collector protected in malting levy, etc.— The office of county collector is a ministerial one, and-where an action of trespass is brought against a county collector for levying upon and seizing property for unpaid taxes, if it appear that the assessor has jurisdiction over the property — i. e. that it is liable to taxation in any form — then the collector will he protected notwithstanding irregularities in the mode of assessment.</p>

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

I. The court committed error in refusing to direct an issue to be made up in accordance with the prayer of the petition, whether the writing purporting to be the will of John Cowgill, deceased, was his will or not. (Wagn. Stat. 1868, § 29.) H. The parties sustaining the will held the affirmative and were entitled to open and close the case. The history of the proceedings shows that the defendants were injured by refusing them this right.

I. This cause should be dismissed from this court, because the record shows no final judgment from which a writ of error will lie. (Whittel’s Pr. 212, 407, 500.) The transcript of the record must show in this court that final judgment has been entered in the court below.

J. jF. uSsper, for plaintiff in error, among various points urged, contended that the trustee did not strictly pursue his authority in the matter of notice. Putting up notices on four sides of the square was not putting them up in four public places in the city of Chillicothe. The court-house was more public, and it was usual to put notices on the door. People from all parts of the country visited there.

County Common. Pleas' Court. I. As payees of the note sued, the plaintiffs below had a right to strike out all indorsements on said, note; and sue as payees. (Glasgow v. Switzer, 12 Mo. 895.) n. As holders of said nbte they had. a fight, under the statute, to sue in their own name. I. After the note in suit had been transferred to Strong for the use of the Union Printing Company, that company could not have sued on it in a court of law.

<p>1. Administrator — Settlement $y, has the force of a judgment, when. — The' final settlement by an administrator of his administration accounts, and-the allowance of a balance in his favor by the Probate Court, has the force of a judgment, and is conclusive upon all parties till reversed or set aside by-some proper proceedings.</p>

This was not a case in which the opinion of a jury could properly be taken. (Wagn. Stat. 1041, § 13 ; Morris v. Morris, 28 Mo. 114.) Even if this had been a case in which issues might properly have been submitted to a jury, the issues here are not such as are authorized by the statute. The issues were properly made up and submitted to the jury.

I. Pixlee having purchased Osborn’s interest, had the same right of action. (26 Mo. 364.) II. After the purchase by Pixlee, Osborn had no interest in the land subject to execution. (10 Mo. 398.) HI. The sale and purchase by Walker, relied on in the answer, was void because the vendor’s lien cannot be enforced by a suit in 'personam. Walker’s suit should have been an action in rem, and Pixlee made the party defendant.

'Error to Clinton Circuit Court. The petition states a cause of action. (Ramsours v. Campbell, 19 Mo. 358.) I. The petition does not state facts sufficient to constitute a cause of action. (a) Plaintiff does not state in his petition tlie terms and substance of his contract by which he claims, or upon which he relied. (Bowling v. McFarland, 38 Mo. 465.) (5) The petition fails to show what remedy is sought, or upon what ground the suit is based.

<p>Error to Grundy Circuit Court.</p> <p>I. The petition is sufficient. The facts and allegations necessary to constitute a cause of action are sufficiently alleged.</p> <p>II. When a fraudulent conveyance is made, as in the present case by Craig, the creditors or any one of them may file a bill in equity to have the same set aside. (George v. .Williamson, 26 Mo. 190 ; Brown’s Adm’r v. Quinley, 18 Mo. 375.)</p> <p>IH. Norman J. Bliss, as administrator of the estate of Andrew" Craig, deceased, is a necessary party to the suit. (1 Am. Lead. Cas. 74, and authorities cited.)</p> <p>IV. Plaintiff is not attempting to enforce the lien of a judgment, but is merely attempting to subject the property to the payment of his debt. The death of Craig after the expiration of plaintiff’s judgment lien does not preclude him from asserting his equitable right as a creditor to set aside the conveyances made and accepted for the purpose of defrauding Craig’s creditors, and from proceeding against the fraudulent grantee, Leper, and to subject the property found in his possession to the payment of the debts of said Craig. The death of Craig did not make the fraudulent conveyances valid as against his creditors.</p> <p>I. Norman J. Bliss, as administrator of Andrew Craig, has no interest in the controversy, and is not a necessary party to a complete determination of the action.</p> <p>H. The petition does not state facts sufficient to constitute a cause of action, in this : the petition does not show or allege any title, claim or lien in the plaintiff to the land to be affected by the decree sought, nor any right whatever to the land or any part thereof, or to set aside the conveyances of the same. (Hiney v. Thomas, 36 Mo. 377; Martin v. Michael, 23 Mo. 50; Brink-erkoof v. Brown, 4 Johns. Ch. 671; Melville v. Brown. 1 Har. Johns. 367.)</p> <p>III. The petition does not even show that execution was ever issued. (2 Sto. Eq. Jur. 438 and note.)</p>

Under the statute (R. C. 1855, p. 951, § 6 ; Gen. Stat. 1865, p. 712, § 6) the appellant could not sue out an execution unless the judgment was first revived, and this could only be done by a citation served on the defendants, which citation could only be served by the constable of the township in which the suit was pending in his county, and not out of it.

'The words charged are not actionable per se ; hence, malice should have been proved by respondent. (2 Greenl. Ev. 894, § 418.) The slanderous words charged in the. petition, with the aver-ments there made, impart malice per se, and express malice need not.be proved, for when words are actionable in themselves, malice is always implied. As to malice implied, see Estes v. Antrobus, 1 Mo. 140 ; Weaver v. Hendrick, 30 Mo. 502.

The deed from plaintiff to said Demeter’s grantor did not convey the whole of lot 3. In giving construction to the deed, the whole must be taken together to ascertain its meaning. (Campbell et al. v. Johnson, 44 Mo. 248.) Plaintiff was not estopped by his acts from claiming his lot, because defendant was better informed of its location than the plaintiff, and had all the means in his favor of ascertaining its true location.

<p> Appeal from Linn Circuit Court. </p> <p>The petition stated a good cause of action against Woods and Stephens, and even if Pratt was improperly joined, or if no cause of action was stated against him, the demurrer could only have been sustained as to him; and the court should not have given judgment on such demurrer in favor of Stephens and Woods. (Ashby v. Winston, 26 Mo. 210, and cases cited; Lyon v. Page, 21 Mo. 104.)</p> <p>The defendants had the right to join in the demurrer because of a misjoinder of parties defendant, (Farmers’ Bank of Mo. v. Bayless, 41 Mo. 285; Wagn. Stat. 1014, § 6.)</p> <p>In the case of Ashby v. Winston, 26 Mo. 210, the defendants who were improperly made parties did'not join in the demurrer. Winston alone demurred, and the court held that he could not take advantage of tbe fact that other parties were improperly joined as defendants. In this case the defendants all join in the demurrer.</p> <p>While it is conceded that the better practice is for those alone to demur who are improperly made parties, it is insisted that all the parties, either plaintiffs or defendants, may join in the demurrer when the cause assigned is a misjoinder of parties.</p>

When the Legislature authorized the county clerks to collect fines and penalties, which amount at most to a few hundred dollars annually, it did not mean, by the addition of the words “ other school moneys,” to authorize the clerks to collect the whole school fund, which in many counties amounts to tens of thousands of dollars. (1 Blackst. Com. 87, § 2.) The words “fines, penalties, and all other moneys,” mean fines, penalties, and all other moneys of a like character.

<p>1. Ejectment — Possession, adverse, what sufficient. — Possession, to be adverse and bar tbe original owner, must be actual, open and notorious, under .claim of ownership, and continuous and uninterrupted, either in the party holding or hie grantor.</p> <p>2. Conveyances — Record — Notice.— One who has a conveyance from the actual owner of land, directly or through others, is protected under tbe registry act, although there may have been a previous conveyance, provided such prior deed be unrecorded and he- has no actual knowledge -of its existence.</p>

No motion for a new trial was necessary in this case in order ■to bring it properly into the Supreme Court, the judgment from which this appeal has been taken being a judgment on a motion to amend sheriff’s return after final judgment in the case. (See Baker v. Waugh, 34 Mo. 330 ; Bruce v. Vogel, 38 Mo. 100; Parker v. Hann. & St. Jo.

<p>Petition for Mandamus.</p>

■ This was a suit in ejectment in the Clay Circuit Court by the plaintiff against Garrard Long, defendant. The evidence showed among other things a sheriff’s deed to plaintiff, purporting to convey to him the interest of defendant, G'arrard Long, in the land in controversy. For other points, see opinion of court.

. The expenses were all incident to the trial of the.prisoner, and as he was charged with a felony, the State was liable for the-expenses incident to his trial, and not the county of Gentry.. (Wagn. Stat. 348, §§ 1-4; id. 625, § 14.) Under the statute' (Wagn. Stat. 787, §§ 19-20 ; id. 351-2, §19) the judgment is correct as far as it gpes. ■ But the judgment of the court ought to have been for the whole bill.

Jlppeal from Linn Circuit Court. As appears from defendant’s answer, the property bid in by Waters and Cave, as stated in the opinion of the court, was sold to them in 1860, which was after the deed of trust, and after the date of the deed from Reid, Sr., to Reid, Jr., but before the 'sale under the trust deed. The deed from James Reid, Sr., to James Reid, Jr., the plaintiff, was utterly void. (Wagn.

<p> Appeal from Livingston County Circuit Court. </p> <p>Mrs. Wynn, it appears, was half-sister of Alva Peery, son of Henry W. Peery, and, as plaintiffs claim, inherited from Álva, who acquired title under the will of his father.</p> <p>For facts in the case see opinion of the court, and same case as reported in 43 Mo. 301.</p> <p>among other points presented, contended that the court below erred in admitting the declarations of Archibald Peery, deceased; citing Stewart v. Thomas,' 35 Mo. 202; Dicherson v. Chrisman, 28 Mo. 134; Turner v. Belden, 9 Mo. 797; Wilson, Adm’r of Owen, v. Woodruff, 5 Mo. 42, 43; Foster v. Nowlin, 4 Mo. 18 ; Criddle v. Criddle, 21 Mo. 522.</p> <p>I. The declarations of Archibald Peery after his deed to Henry W. Peery, and the declarations of his heirs claiming under him after his death and before their conveyance to defendant, who claims under them, coupled with evidence of defendant’s knowledge of the claim and rights of the plaintiff Josephine at and before his purchase, were properly admitted in evidence. (Dickinson v. Chrisman, 28 Mo. 184; McLaughlin v. McLaughlin, 16 Mo. 250; Davis v. Spooner, 3 Pick. 284; Cow. & Hill’s notes, 652; Bridges v. Eggleston, 14 Mass. 244; 1 Greenl. Ev. 189.)</p> <p>H. In this case the statute of limitations was neither pleaded as a bar nor relied on in the answer. All statutes of limitations, to avail defendant, must be pleaded. If not pleaded, plaintiff has a right to presume that the statute is waived, and would come to trial unprepared to meet such a defense. (Heath v. Page, 48 Penn. St. 142; Hayden v. Stone, 1 Duvall, Ky., 396; Benoist v. Darby, 12 Mo. 196; Howell v. Howell, 15 Wis. 55.)</p>

Jlppe.al from Sullivan Circuit Court. Officers of registration, while discharging their duties as such, are invested with full power to compel the atténdance'of witnesses before them; and hence, by implication, the witnesses have a right to demand and recover compensation for their services as such. (Gen. Stat. 1865, p. 908, § 20.)

I. The sheriff’s deed in this case was made under the statute of 1825, under which the recitals in the deeds were not evidence of a judgment and execution, and persons relying on such deeds must produce valid judgments and executions to sustain them. (R. S. 1825, tit. Executions; McCormick v. Eitzmorris, 89 Mo. 24.) II. The judgment produced to sustain the deed in the case is void.

. The note referred to in the opinion of the' court was given in pursuance of a contract made between Boone and Smith, in which Smith assumed to grant Boone the exclusive right to sell and put up certain patent copper scroll lightning-rods in various counties in Missouri, and also in the counties of Brown and Doniphan in Kansas.

<p>3. Estoppel — Park — Land dedicated for common, cannot he diverted to other use, when. — Certain land was by -its proprietor laid off and dedicated to an incorporated town for the purposes of a public park. The statute was then in force (Wagn. Stat. 1828, $ 8) under which the plat, when recorded, was made to vest the title of the property in the town, “in trust for the uses therein named, expressed and intended, and for no other use'and purpose.” Eeld, that persons who had purchased and improved adjoining lands on the faith that the park would ever remain a public one, might enjoin the trustees of the town from diverting the property from its original use and the purpose specified by the donor in the act of dedication, by causing public streets to be run through it.</p> <p>The act of March, 1869, authorizing them to lay out streets and alleys, appointing commissioners to assess damages to property-holders, etc. ("Wagn. Stat. 1815-16, J 7), gave them no such authority. The property was not acquired by right of eminent domain.</p>

<p> Jlppeal from Cameron Court of Common Pleas. </p>

I. The principle contended for by tbe bank, that all the parties being creditors seeking a preference made their equities equal, and precluded the court from exercising its jurisdiction to disturb the title acquired by the bank, is not supported by any authority, and is directly in conflict with numerous decided cases directly in point.

There was no law in force in the year 1868 or 1869 authorizing school corporations in towns or villages to include as taxable merchants’ statements, or authorizing collectors to collect school taxes on such statements for such corporations ; and no reference is made in the petition to any statute authorizing the assessment of such statements for such purposes.

<p>1/ Practice, civil — Supreme Court will not disturb verdict on questions of fact. — In cases at law this court will not disturb the verdict of a jury where no legal question? have been raised.</p> <p>2. Bill of exceptions, what is not. — A bill of exceptions which does not embody or set out the testimony, but only purports to state the substance of what was proved, is not properly a bill of exceptions at all.</p> <p>8. Practice, civil — Supreme Court — Bill of exceptions, refusal of court to sign —Affidavits filed in vacation, etc. — A bill of exceptions left unsigned by the judge as being untrue and not signed by bystanders, but only accompanied by affidavits sworn to and filed in vacation, and that without any consent that the same should be filed out of time, is not such a bill of exceptions as the law (Wagn. Stat. 1043-4, $ 28, 30, 32, 34) requires, and the affidavits will not be considered by the court.</p>

The petition alleges that the plaintiffs and defendants — that is, those whose husbands are joined with them — are the owners of said land, that they hold it in common; and then again it is stated that each owns one-fifth part by an estate of inheritance in fee. These allegations of title are sufficient. It is not necessary to set forth the manner in which the title is derived, or to state the mere evidence in the cause.

A partition or division fence may be made of rails in the form of a worm fence, one-half on either side of the mathematical or air line, and the owner or builder of the fence is not a trespasser, nor does he hold the land on which the fence stands adversely to the rights of the adjacent owner. (Dysatt v. Leeds, 2 Barr, 488 ; U. S. Dig. tit.

<p> Error to Clinton Circuit Court. </p>

This suit was not on the bond of appellant as constable, and clearly respondent’s cause of action did not accrue until he made demand of appellant for the money he had collected.

<p> Appeal from, Sullivan Circuit Court. </p>

I. In malting the payment relied upon, defendant was acting in pursuance of his previous obligation to pay under the statute — an obligation voluntarily assumed; and if he made the payment contrary to the statute, or to an unauthorized person, he acted at his own peril. Among the county officers selected by the Legislature to manage the school funds (see art. II, p. 1419, R. C. 1855) county attorneys are nowhere to be found.

The original paper filed with the justice fails to be “a statement of facts constituting the cause of action,”- as expressly required where the suit is not founded on an account or 'instiument-of writing. : Neither the statement nor the amended statement sets forth' the facts necessary to entitle plaintiff;'to double-damages-under the-statute; There is no allegation that the cow. in suit got on tbe track of the railroad in consequence of the failure of defendant to construct…

<p> Error to Clinton Circuit Court. </p>

Petition for Mandamus. The bonds are duly issued and signed by tbe presiding justice of the County Court, and attested by the clerk under the official seal of the county, and recite on their face that they are issued under and pursuant to the provision of the act of the Legislature, reciting its date, etc., and having passed into the hands of innocent purchasers for a valuable consideration, it is too late to set up or show informality in the issuing of them, or that, the…

The defendant’s bull, charged in the petition with having killed the plaintiff’s horse, comes within one of the statutory exceptions to the common-law rule permitting domestic animals to roam at large. (Wagn, Stat. 134, § 5 ; Sess. Acts 1869, p. 80.) At the old common law every man was bound to keep his beasts within his own close, under the penalty of answering by distress or action for all injuries arising from their being abroad.

<p>1. Partnership — Individual liability — Partnership articles, — The articles of partnership of A. & Oo. provided that A. should be the financier of the firm and should provide funds for carrying on the business, but should be obliged to use his individual name alone for the purpose of procuring money by notes or otherwise, and should be individually liable for all debts contracted in that way, and for all loans which might occur in consequence of indorse-ments made for such purpose. Held, that said articles did not authorize A. to bind the firm by notes drawn in his own name, or to involve them as to money borrowed, except when actually embarked in its affairs.</p>

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

jError to Louisiana Court of Common Pleas. I. The deed of Mendenhall was fraudulent and void as to those who were his creditors at its date. II. The sale by the administrator to the plaintiff conveyed all the interest of Amos Mendenhall, and the deed by Block to the “ heirs and legal representatives of Amos Mendenhall, deceased,” inured to the be'nefit of the plaintiff, and vested in him the legal title, subject to the dower interest of defendant Elizabeth Stine. III.

I. Maupin & King proved conclusively, and the court in its decision admits the fact, that the debt which Bates claimed to be assigned was fully paid and extinguished; and further, that the sheriff’s deed, regular and formal on its face, was prima facie evidence of title in Maupin & King. II. The sheriff’s deed, perfectly regular and formal on its face, shows a strict compliance with every requirement of the statute.

I. Plaintiff in his petition does not bring himself within the provisions of sections 46-8, p. 77, of Wagner’s Statutes. He does not aver that French’s legal representatives were ever cited by the County Court to mate “final settlement” of money, property, etc., of the estate of Wishart.

<p>1. Deed of trust — Assignment — Must he signed by all, etc. — Certain grantees in a deed of trust conveying real estate, in common with various other creditors of the grantor, signed an agreement releasing him from his indebtedness on, his conveyance to them pro rata of certain portions of the land embraced in the deed of trust. Some of the grantees therein refused to sign the agreement. Those signing did so with the understanding that the remainder should join in it. Meld, that the signers of the agreement did not thereby lose their rights under the deed of trust, first, because the grantor in the trust deed could pass no title to the land unless all the grantees entered into the agreement; second, because they were not bound by the agreement unless all signed it.</p>

Louis Criminal Court. I. It is not necessary, in prosecutions for forgery, to charge a design to defraud any person or corporation; but this is of the essence of the offence where the whole gravamen of the crime complained of is directed, as in this case, against one individual. II. The indictment does not charge that the check was not paid. (1 Chit. Or. Law, 168-9; see generally 2 Burr. 1127; The People v. Gates, 15 Wend* 818.) III.

Louis Circuit Court. ■ The Borg deed of trust’was given May 28, 1867, to secure four notes for $1,750 each, of that date, and payable in' one, two, three and four years respectively. Previous to this deed another had been given, November 14, 1866, to one Barth, to secure the payment of certain other notes.

Louis Circuit Court. Plaintiffs’ petition contained two counts, one for ejectment and the other for trespass. Plaintiffs’ evidence disclosed the following facts. Sweringen and others, in 1859, leased the lot claimed by plaintiffs to one Lloyd J. Cooper for a period of ten years, expiring in October, 1869. In 1861, Cooper sold to Dennis ■ Collins and continued to live in it as the tenant of Collins.

<p> Appeal from Si. Louis Criminal Court. </p> <p>The prisoner is charged with committing the offense within the county of St. Louis. The proof shows that it was committed in Mullanphy street, but does not show that this street was in the county of St. Louis. Hence the jurisdiction of the court is not shown. (See Const. U. S., art. I, § 6; Mo. Bill of Rights, art. I, § 18 ; -Ewell v. State, 6 Yerg. 364; Hite v. State, 9 Yerg. 357; Yates v. State, 10 Yerg. 549; 1 Chit. 178; 2 Leach, 637 ; 2 East, 605 ; 2 Russ. Crimes, 799-800 ; Bish. Cr. Law, 552-67, § 8; Rose. Crim. Ev., tit. Yenue, 250-259; 1 Whart. Cr. Law, § 601; Rex v. Crocker, 2 N. P. 87; Anderson v. State, 14 Tex. 583 ; People v. Slater, 5 Hill, 401; 1 Phil. Ev. 206; Morsley v. State, 7 Blackf. 424; Gordon v. State, 4 Mo. 375.)</p> <p>The jurisdiction of the Criminal Court extends over the county of St. Louis. (Gen. Stat. 1865, p. 894.) The Legislature has recognized the city of St. Louis as being within the county of St. Louis. (Gen. Stat. 1865, p. 894, § 17; Wagn. Stat. ch. 142, § 15.) It was a question of fact for the jury to determine whether or not the defendant committed the offense as laid in the indictment, and the instructions of tlie court presented the issue clearly and perspicuously before them. The rule has been promulgated time and again in the decisions of this' court — a rule sustained by extensive and incontrovertible authority — that it will not disturb the verdict of- a jury unless manifest injustice and wrong have been done. (State v. Cruise, 16 Mo. 611; State v. Packwood, 26 Mo. 340 ; Hartt v. Leavenworth, 11 Mo. 629 ; .Campbell v. Hood, 6 Mo. 218 ; McLean v. Bragg, 30 Mo. 26; State v. Burnside, 37 Mo. 343.) •'</p>

<p>1. Slate v. Burns, ante, p. 438, affirmed.</p>

I. A petition need not be more explicit than tbe statute. Held: and our statute contemplates, that it is only those defects that are incurable that the defendant can take advantage.of at the trial. (Loler v. Cool, supra; Jones v. Louderman, supra; Burnham v. DeBevorse, 8 How. Pr. 159; Lawrence v. Wright, 2 Duer, 673 ; St. John v. Northrup, 23 Barb. 30; Coates v. Galena, 18 Iowa, 277.) II.

<p>1. Conveyances — Sheriff’s deed, defective acknowledgment of — Not aided by ream'd. — The record of a certificate of acknowledgment to a sheriff’s deed, made by the clerk of a Circuit Court (Wagn. Stat. 612, % 56), is inadmissible to sustain an original acknowledgment thereof, where the latter was defective.</p> <p>2. Conveyances — Acknowledgment — Clerical error. — A certificate of acknowl- ■ edgment indorsed on the back of a sheriff’s deed is not invalid because it recited that “he appeared in court and acknowledged that he executed and delivered a deed for the uses,” etc., and did not specifically refer to.the deed acknowledged. No material or necessary part of the certificate was omitted, and the intention was sufficiently clear on the face of the paper.</p> <p>8. Conveyances — Seal — Scrawl sufficient. — In a sheriff’s deed, a scrawl appended to his name, with the word “ seal” written therein, is, under the laws of this State, a sufficient seal.</p> <p>4. Sheriff’s deed prima facie evidence of the truth of its recitals. — Where execution issues from the circuit clerk’s office on a justice’s transcript, and the land is sold by the sheriff, the recitals in his deed are prima facie evidence of the judgment and execution in the justice’s court, and of the other facts recited, without the necessity of producing the transcript to prove the facts. But the recitals may be invalidated or destroyed by the party resisting the deed.</p> <p>6. Conveyance — Acknowledgment of by deputy sheriff in his own name invalid. — An acknowledgment to a deed, of land sold under execution, made by a deputy sheriff in his own name, is invalid.</p> <p>6. Mechanic’s lien on frame building would not authorize the sale of the land. —Under the statute of 1855 (R. 0. 1855, p. 1068, $ 10), a mechanic’s lien simply attaching to a frame building would not authorize the sale of the land.</p> <p>7. Equity — Notice—Lis pendens. — A suit pending is not notice to a purchaser, so as to affect and bind his interest, until the writ served after petition filed.</p>

No plea of guilty or consent of the defendant can confer jurisdiction over the subject-matter or change the form of proceeding prescribed by law. This court has held that in cases like this the civil remedy is the only one that.can be pursued by the State, and that the offense here committed is not indictable.

Genevieve Circuit Court. The Circuit Court of St. Genevieve county bad jurisdiction of the subject-matter of this proceeding concurrent with justices of the peace. (Wagn. Stat. 516, §§ 29-82.) The Circuit Court of St. Genevieve county had no jurisdiction of the indictment, or of the offense charged in the indictment. .The offense of selling liquor on Sunday was a misdemeanor within the exclusive jurisdiction of justices of the peace in said county. (Wagn.

Louis Circuit Court. The first, second and third instructions given by the court for the plaintiff were as follows : “1. That the contract set out in the plaintiff’s petition is an absolute undertaking on the part of defendant to pay the plaintiff |15,000 if the plaintiff would loan that sum to O’Neil & Co.; and if plaintiff did loan said sum to O’Neil & Co. in pursuance of said contract, plaintiff is entitled^to recover. “2.

I. The Legislature has no power to amend a special act passed under the old constitution. (a) The object of the constitutional provisions (art. iv, § 27; art. vhi,' § 4) was to prevent and inhibit special legislation.

Charles Circuit Court. Defendant was not plaintiff’s tenant, nor did heattorn to his grantee. Hence the case of Pentz v. Kuester has no application. Such attornment is essential; otherwise the possession remains unchanged in the landlord. In the case at bar the possession was in plaintiff when defendant entered, and the entry was trespass. (Forcible Entry and Detainer Act, §§ 1, 16, 36.) I. Defendant’s entry was made with the knowledge and consent of plaintiff’s tenant. II.

I. If tbe County Court, by mistake or otherwise, audited an illegal claim, payment cannot be compelled by mandamus, for courts will leave the parties to such remedies as they may have by ordinary proceedings. (43 Mo. 230 ; The People ex rel.

<p>1. State ex rel. Circuit Attorney v. Cape Girardeau & State Line R.R., ante, p. 468, affirmed.</p>

<p>1. State v. Warlike; ante, p. 451, affirmed.</p>

<p>1. State v. Warnke, ante, p. 451, affirmed.</p>

<p> Error to Hannibal Court of Common Pleas. </p>

<p>1. State v. Warnke, ante, p. 451, affirmed.</p>

<p>1. Criminal law — Misdemeanors — Disturbing pub lie worship, indictable.— The offense of disturbing a religious congregation (Wagn. Stat. 604, (S 30) being punishable by fine and imprisonment (vide same section), is an indictable one. The case is distinguishable from that of selling liqupr on Sunday, which is punishable by fine only, and under Wagn. Stat. 516, g 29, amenable only to a civil action. (State v. Huffscbmidt, 47 Mo. 73.)</p> <p>2. Disturbing public worship— Circuit Court has jurisdiction. — Of the offense of disturbing a religious congregation (Wagn. Stat. 604, $ 30) the Circuit Court has jurisdiction. (Wagn. Stat. 616, § 32; State v. Warnke, ante, p. 461.)</p>

I. When a deed has been made by. a.weak.jperson in favor of' one who stood toward him in. a relation of confidence, and the-,.provisions of the deed are .unreasonable or .extraordinary, :or the-consideration is. nugatory or insufficient, or.when a pecuniary consideration is.set forth contrary to the truth — or more strongly still,, where practicing .or influence has been actually ¡used. ..to> .induce the execution — the deed will.be set. .aside. - If, ,in j3uch ..case, an…

I. “Until dower is assigned, the widow may remain in and enjoy tbe mansion-honse of her husband, and the messuage or plantations thereto belonging,” and, when deforced, may maintain ejectment for the same. The remedy given under section 22 of the dower law (Gen. Stat. 1865) is only cumulative. (See Wagn. Stat. 542, § 21; id. 557, note-1; Stokes v. McAllister, 2 Mo. 166; Orrick v. Pratt’s Adm’r, 34 Mo. 227; Waller v. Mardus, 29 Mo. 28.) II.

The sale by the sheriff was a mere snam to evade the law prohibiting him from purchasing at his- own sale. A purchase of the trust estate per interposition personam by a trustee, at an inadequate price, carries fraud on its face. (Smith v. Williams, 12 Mo. 106-9.) He cannot, without an enabling act, purchase at a sale made by himself. (2 Am.

<p> Appeal from Clark Circuit Court. </p> <p>I. There can be no breach of 'defendant’s contract until the State has first made a deed to him.</p> <p>II. Defendant concedes that parol evidence is not admissible to vary or contradict the written contract; but defendant submits ■that it is admissible to show the existence of another and a further consideration not inconsistent with the one mentioned in the writing, as in this case. (1 Greenl. Ev., §§ 285, 287.)</p>

<p>1. Practice, civil — Evidence — Verdict — Appeal. — In law cases the Supreme Court will not reverse because the verdict is against the weight of the evidence.</p>

I. The general verdict on both counts was error. (Mooney v. Kennett, 19 Mo. 551; Clark’s Adm’r v. Hann. & St. Jo. R.R. Co., 36 Mo. 215.) II. This error was properly passed upon in overruling the motion for a new trial.

. I. The court erred in sustaining defendant’s demurrer. The petition is sufficient under section 43 of the act in relation to railroad companies (Wagn. Stat. 310, 6 43 ; Cecil v. Pacific R.R., 47 Mo. 248.) II. The petition is sufficient under the common law, if not under the statute, and the demurrer should have been overruled.

<p>1. Landlord and.tenant — Lease, construction of — Abandonment — Jury— —Construction of lease not left to, when. — A dwelling-house was leased solely o¿ condition that the tenant should continuously occupy and run a saw-mill owned by the' landlord.’ This was the sole consideration of the lease. The instrument contained no condition of forfeiture. Held, that an abandonment of the mill was an abandonment of the house, and, at the option of the.landlord, terminated the lease.</p> <p>In suit by the landlord for possession of the dwelling-house, the court should tell the jury what formed the consideration -for the lease, as far as shown by the instrument, instead of leaving that point to be determined by the jury.</p>

Jlppeal from St. Louis Criminal Court. ' I. The indictment was defective under the statute (Wagn. Stat. 468, § 9) in not charging anything touching the sale, exchange or” delivery of the check, or any consideration passing. II. There was no uttering of the check in a legal sense. It was simply deposited for safe-keeping.' The' hotel clerk was a mere bailee. There was no transfer for a consideration.

The motion of plaintiffs in error to quash was proper. (Parker et al. v. Waugh, etc., 34 Mo. 340.) No one but the defendant in the execution can. move to quash, and no one but the defendant in a judgment can move to set aside except in the case of judgments confessed, and then only for insufficiency of statement. *

<p>1. Injunction — County collector — Void levy — Trespass.—A collector cannot be enjoined from enforcing the collection of a tax on a.void levy. In such case the officer would be a mere trespasser, and the injured party would have an ample remedy at law.</p>

<p>1. Promissory notes — Guaranty—Notice not necessary to render guarantor liable, when. — The words “ I assign the within note to A. for value received, and guaranty its prompt and full payment,” indorsed by the payee on the ' back of the note, impose upon the assignor an absolute obligation to pay, and no demand or notice of the maker’s default is necessary to render him liable.</p>

I. To avail him, plaintiff’s change of possession must be unequivocal-. The occupancy of a tenant after parol contract of sale amounts to nothing. (Price v. Hart, 29 Mo. 173; Spaulding V. Conzelman, 80 Mo. 182; Browne on Frauds, 47T.) Tbe case must be such as would make plaintiff a trespasser unless specific performance were decreed. (Sto. Eq., § 896.) Here plaintiff was a coparcener and could not be a trespasser. II.

<p> Appeal from, St. Louis Criminal Court. </p> <p>cited 2 Bish. Cr. Law, § 280-315; 2 Russ. Crimes, 167-72; 5 Denio, 76; 7 and 8 Geo. IY, ch. 29, § 47; 6 Conn. 9 ; 3 Paine, 423 ; 7 Paine, 833 ; 3 Carr. & P. 422 ; 7 Carr. & P. 281; 14 Eng. Com. Law Rep. 277; 22 id. 759; 41 id. 274; 47 id. 63.</p>

jError to Cape Girardeau Court of Common Pleas. Proof of arrest and bail are not essential prerequisites to tbe present action. (Pangburn v. Bull, 1 Wend. 346; Besson v. Southard, 10 N. Y. 236; State, to use of Roe, v. Thomas, 19 Mo. 617; Alexander v. Harrison, 38 Mo. 258.) A malicious and groundless institution of legal proceedings of any kind, under circumstances of special damage, or raising a legal presumption of damage, is actionable.

<p> Appeal from Schuyler Circuit Court. </p> <p>The posting of written handbills was insufficient. (Abbott v. Lindenbower, 42 Mo. 162; Blackw. Tax Tit. 215; Williams v. Payton, 4 Wheat. 79; Barker v. Rule’s Lessee, 9 Cranch, 64; Garnett v. Wiggins, 1 Scam. 837; Fitch et al. v. Pickard et al., 4 Scam. 69; Pope & Hammer v. Hayden, 5 Ala., N. S., 433; Scales v. Alvis, 12 Ala. 617; Hughey v. Horrell et al., 2 Ham. 231; Mills v. Walker, 4 Mich. 641; Styles v. Weir et al., 26 Miss. 189; Brown v. Yeazie, 25 Me. 359 ; Curlew v. Hayden, 1 Verm. 359 ; Young v. Martin, 2 Yeats, 312 ; Porter v. Whitney, 1 Greenl. 306; Pierce v. Sweester, 2 Carter, 649; Tidd v. Smith, 3 N. W. 178.) The deed, showing as it does that the notice required by law has not been given, is void upon its face. (Moore v. Browne et al., 4 McLean, 211; Farrar v. Eastman, 10 Me. 191.)</p> <p>The terms of the proviso in section 2, p. 85, Adj. Sess. Acts 1863, do not require a “ printed notice.” Nor is a printed notice more requisite than a printed list, which is the essence of the notice and might be printed.</p> <p>The Legislature evidently intended to provide for a written notice when a printed one was impracticable, as was the case in many counties during 1864. As to a title acquired by purchase at tax sale and its effects, see Stewart v. Parish, 6 Ohio, 474; Wallace v. Seymour, 7 Ohio, 156; Renick v. Wallace, 8 Ohio, 539; Douglas v. Dangerfield, 14 Ohio, 522; Milliken y. Sterling, 16 Ohio, 61; Ghvynne v. Niswanger, 15 Ohio, 366; Abbott v. Lindenbower, 46 Mo. 291.</p>

.... . The verdict was -not merely informal, but defective/ It-was not certain,-.positive and free from• ambiguity. ■ -Hence it was void. (3 Gra. & Wat. N. T. 1378, 1380-2; Murray v.-King, 8 Ired; 528.) It whs not • responsive to the - issues.(Gra. & Wat. N. T. 1884 et seq.) The clerk could not make the motion to elect part of the record. (United States v. Gamble, 10 Houck, 459.) The order of court compelling plaintiff to elect was a part of the record.

<p> Error to Washington Circuit Court. </p>

One Jordan sued Fullerton, plaintiff in this case, by attachment before a justice, wherein Kelliher, present defendant, being garnished, admitted an indebtedness of $121.00, less attorney’s fees ; and for this sum judgment was rendered against him.

I. By section 19, p. 329, Gen. Stat. 1865, it is expressly provided that on the dissolution of a corporation the officers of it are trustees for the purpose of administering its assets. If there is only one surviving officer, he, of course, is sole trustee for these purposes. II. There can be no question that the corporation was dissolved at the time this proceeding was instituted.

I. A United States land warrant is real estate and descends to beirs. (Reader et al. v. Barr et al., 5 Ohio, 458 ; Brush v. Ware, 15 Pet. 98; 3 Opinions of At.-Gen. 382 ; Public Lands, Laws and Instructions, 63-5, 176, 184.) If tbe warrant is real estate the defendant has dower in it. II. Henry Calvin Skinner gets tbe land by descent and not by purchase.

<p> •Appeal from Jefferson Circuit Court. </p>

<p>1. Practice, civil— Judgment por costs not final. — A judgment &t costs only will not support an appeal.</p> <p>2. Practice, civil — Appeal — Objections —■Exceptions.— Objections not saved by exceptions will not be examined on appeal.</p>

<p>1. Practice, Supreme Court — Error—Appeal.—A. case showing no writ of error or appeal will he dismissed.</p>

John L. Thomas, for plaintiff in error, contended that the cases of Iba v. Hann, & St. Jo. R.R. Co, 45 Mo. 469 ; Meyer v. North Mo. R.R. Co., 35 Mo. 352, and Yan Decker v. Rensselaer & Saratoga R.R. Co., 13 Barb. 390, did not adjudicate the case at bar, and that on principle there was more necessity for fencing railroad tracks in towns and cities, and particularly about depots and switches, the neighborhood where the accident occurred.

I. It does not appear that the former judgment pleaded in this cause was a decision on the merits. Hence it was no bar.

•Appeal from St. Louis Circuit Court. The cause of action in this case originated prior to the date of the discharge. All the facts upon which this suit is based were well known to Grumley when he made the settlement. The receipt, when interpreted in the light of all the facts and circumstances connected with the settlement, is a full discharge of the plaintiff’s claims embraced in-this suit.