Volume 49 — Missouri Reports

<p> Jippe.al from Warren Circuit Court. </p> <p>Defendant is protected by section 4, article xi, of the State constitution, and the defense is sufficiently pleaded. If, whenever this section is invoked, defendant must show the legality of the military order under which he acted, the section would be nugatory. (Clark v. Dick, 9 Am. Law Reg. 742.) This court has held that the circumstances under which the order was issued, such as the pressure of military necessity, or at whose instance it issued, need not be shown. (Drehman v. Stifel, 41 Mo. 208.) The existence of the urgency or military necessity will be conclusively presumed from the order itself. The only facts required to be proved by defendant are: first, that the military order existed; second, that those issuing it were then clothed by the United States with military authority over Missouri. (Clark v. Dick, supra.}</p> <p>It is immaterial, under the section referred to, that defendant was a private citizen. (See same case.)</p> <p>That section is not a bill of attainder nor an ex post facto law. (Drehman v. Stifel, 8 Wall. 595.)</p> <p>Nor is the law void as being retrospective. Retrospective laws are not void for that reason, unless they are made so by express constitutional provisions. Now this is not a statute law, but apart of the constitution of Missouri itself — a part of the fundamental law of the State, which cannot by implication be nullified by another part of that same instrument prohibiting the Legislature from passing retrospective laws. (Const., art. X, §28.)</p> <p>Section 4 of article xi did not impair the obligation of defendant’s contract as contained in his sheriff’s bond. (Drehman v. Stifel, 8 Wall. 601.) The obligation of the bond was not to pay over the $10,000 to Judge, but to faithfully discharge his official duties. The “duties” meant were certainly not those imposed on him at the time the bond was executed, otherwise they could not afterward be altered by the Legislature. Yet undoubtedly that body might require the sheriff to pay the balance in his hands into court, or into the county treasury; or the State convention could direct him to pay it over in obedience to military orders. If there was no legal authority for the military order, defendant has his remedy against the government.</p> <p>This suit is barred by the Congressional statute of limitations. (12 U. S. Stat. 755, § 7.)</p> <p>The action was brought more than two years after the execution was returned satisfied. From that date, and not the time of demand, the statute began to run. (See Clark v. Dick, supra, and Bigelow v. Forrest, 9 Wall. 348-9.) And the operation of this act is not confined to the case when arising in the Federal court, but affects it in a State court as well. (See Mayor of Nashville v. Cooper, 6 Wall. 247; Clark v. Dick, supra.)</p> <p>Defendant was a mere bailee, and responsible only for ordinary care and diligence. He was certainly not liable if the money was taken from him by irresistible force, and under threats of his personal liberty.</p> <p>I. By the terms of his bond, defendant in effect contracted to pay over to plaintiff any surplus in his hands after satisfying the execution; and section 4, art. XI, of the State constitution, in so far as it released defendant from that obligation, “impaired the obligation” of his contract. This section in the case at bar would not merely modify plaintiff’s remedy, but would take it away altogether.</p> <p>In the case of Drehman v. Stifel, 8 Wall. 595, this section was permitted to govern, solely because it did not bar plaintiff from his right to recover property rights, but only from a specific form, of action. It was said that the result might be different if “by giving effect to the provision the party was precluded from asserting a title or enforcing a right.” That suit was for the recovery of property which plaintiff charged to have been tortiously taken from him, and the action was not for the enforcement of a contract, but a preventive remedy for a forcible and wrongful ousting.</p> <p>In this case the action is brought specifically for the enforcement of a contract, under which the plaintiff had acquired vested rights at the time of the adoption of the constitutional provision which is here arrayed against him.</p> <p>II. Even supposing the provision to be constitutional, it has no application here. Defendant had no military authority; nor, properly speaking, was the act - done by him under “orders received by him ” from one vested with such authority. A private soldier may receive an orde# from his superior officer. But the law could not have been intended to apply to any unauthorized direction given by a military officer to a person not subject to his control, and under no obligation, military or civil, to obey him! Such a construction would give perpetual license to the commission of all the crimes in the calendar. The defendant stood in no relation of subordination to the military officer whose dictates he chose to obey. But further, under this law the person who gives the order must also have “ authority vested in him by the government of the United States, or that of this State, to do such act.” The provost marshal never was vested with authority from either government to deprive Judge of his lawful property. The whole proceedings of the military commission under which he acted were void, and could not validate any act, order or sentence of theirs which had no other “ authority” to sustain it.</p> <p>HI. The Congressional statute of limitation has no application-, as demand was made not far from January 1, 1867, at which time the cause of action accrued, and suit was brought April 23d of that year. (Kivett v. Massey, 63 N. C. 240 ; Pope v. Hays, 1 Mo. 450.)</p> <p>The “authority” referred to in section 4, art. xi, is legal military authority, such as the government possessed under the constitution and laws to clothe its officers with. The provost marshal had no authority whatever over the sheriff, who was a mere civil officer and not under his control. The case of Drehman v. Stifel, and every case where section 4 has come up, were cases where the acts complained of were military acts and done by persons in the military service, or subject to military order. This case does not come within the principle of those cases. (See Smith v. Owens, 42 Mo. 508 ; Edmondson v. Kite, 48 Mo. 176.) The case of Wellman v. Wickerman, 44 Mo. 484, went off on a question of eminent domain.</p> <p>The Congressional act of limitations was never designed to establish a rule in State courts limiting suits on sheriffs’ bonds.</p> <p>If the sheriff were overpowered by the military force, he ought to have gone to prison rather than to have paid the money. Robbery or theft is no defense to a suit on a sheriff’s bond for money collected on execution. (United States v. Prescott et al., 3 How. 578 ; Thompson v. Board of Trustees, 30 111. 99 ; Commonwealth v. Cowley, 3 Penn. St. 372 ; Haller v. State, 22 Ind. 125.) (Counsel argued other points embraced in the brief of E. A. Lewis.)</p>

There is in the will an express devise to Ellen of the use and occupation of the whole estate during the lives of Samuel and George, and not for their support alone, but for that of her own children. The estate was a trust in her hands, partly for the benefit of her children, and continues so still. Her death does not destroy the trust. That the words of the will are sufficient to create a trust, see Pierce v. McKeehan, 3 Watts & S. 280 ; Redf. Wills, 174.

The evidence shows that Rogers, at the time Welker sold the mare, and. ever since, was a resident citizen, and for four years the sheriff of Bollinger county, which was also the residence of the plaintiff. And upon the principle that no man shall take advantage of his own laches or wrong, plaintiff ought not to recover.

I. An administrator’s or guardian’s settlement maybe set aside in equity, for fraud in the administration or devastavit by him. It is not necessary, as assumed by the court in Picot v. Bates, 48 Mo. 891, that an actual fraud should be proved. It is enough that the administrator shall have been guilty of any acts, omissions or concealments by which plaintiffs have been injured. (Sto. Eq. PL, § 187.) It is the difference between fraud in law and fraud in fact.

Charles Circuit Court. The return is bad. (Stringer v. Stewart, 41 Mo. 400.) A person cannot be a member .of two families at the same time. Neither Philip nor George Weber could have any family. Both were minors. The service is good. (Wagn. Stat. 1007, § 7.) The statute makes no distinction between service on an infant and on an adult. (Baumgartner v. Guessfield, S8 Mo. 87-41.) The term “ family” is not confined to persons under the control or in the employ of defendant.

<p>1. Judgment reversed and cause remanded.</p>

In-cases arising under the execution laws this court has held that a vendor who has received part- of the purchase-money is a trustee for the vendee. (Brant v. Robinson, 16 Mo. 149.) As to the general doctrine, see Atk. Titles, § 8; Smiley v. Wright, 2 Ohio, 512; McDonald v. Ater, 1 Ohio St. 296; 6 Dana, Ky., 204.

I. Brockvogel’s declarations were hearsay and incompetent. He was no party to the suit. There was no proof of a fraudulent combination between him and the plaintiffs. The proof, shows that the deed of trust was bona fide, and that the fraud, if any, was by Broekvogel on plaintiffs. II. The rule of res gestee does not apply here. His mere possession of the deed is not an act that may be qualified by his declarations, and in point of fact he made none touching his possession.

<p>1. Bills and notes — Action upon —Deseriptio personas. — A note made payable to “ the superintendent of the Decatur Agricultural Works ” may be sued on by the payee in his own name, describing himself as such superintendent.</p>

If the defendants in the execution had no title or interest in the property levied on, they had' no right to the possession of it when replevied; and having neither the right of property nor of possession, were not damaged by the replevin. The decision in Dilworth v..McKelvy, 30 Mo. 149, is based on the fact that defendant had a special interest in the property, and hence a right to possession. Here defendants have no interest or right of possession.

The petition shows neither directly nor indirectly any contract with Eliza Weippert, or whether she held the lot as her separate or general estate ; it is therefore bad. (Porter et al.y. Tooke et al., 35 Mo. 107.) Hence the judgment, being against John and Eliza Weippert, was wrong. (Heltzell v. Hynes, 35 Mo. 482; Walkenborst v. Coste, 33 Mo. 401.) The judgment was also special against the property of the wife, while she was no party to the contract.

<p> Error to Shelby Circuit Court. </p> <p>The warrant did not show any criminal offense on its face. The defendant and all parties concerned in arresting plaintiff under said warrant were trespassers, and guilty of false imprisonment in restraining plaintiff of his liberty without any legal warrant. (Maher v. Ashmead, 6 Casey, 344; Baird v. Hóuse■holder, 8 id. 168.)</p>

Defendants purchased without any notice of plaintiff’s lien, and could not be affected by it. The deed was sufficient to pass title, notwithstanding the lack of the clerk’s indorsement of the sheriff’s acknowledgment. (Scruggs v. Scruggs, 41 Mo. 242; Crowley v. Wallace, 12 Mo. 145.) Plaintiff’s obtaining judgment against defendants’ property, real and personal, was most emphatically a taking of other security, which discharged his lien.

<p>1. Sheriff — Execution — Bond, action on — Measure of liability. — A sheriff is bound to use reasonable diligence in searching for property on which to levy. It is usual for the plaintiff to point out property where it is not known to the officer; hut if it were pointed out by another, or if the officer had knowledge of such property, no matter how obtained, and failed to make a levy, it would be sufficient to establish his liability on his bond. But his liability does not follow from the mere fact that there was property in possession of defendant not levied on, without proof that he knew of the property or might have ascertained about it by the exercise of reasonable diligence.</p> <p>2. Sheriff — Bond, suit on — Default — What allegation, may be ingidred into after. — In suit on a sheriff’s bond for failure to levy upon property sufficient to satisfy an execution, the truth of the allegation that the sheriff had notice of the execution-defendant’s having property subject to execution, is not admitted by a default taken in the ease; hut, under the statute (Wagn. Stat. 240, ? 7), must he inquired into. Proof of the existence of such property, and consequently of his knowledge thereof, pertains to the condition and breach, not to the penalty or the execution of the bond.</p>

The subscription paper was a mere proposal to donate, and not an express promise or agreement to pay, as required by the statute (Wagn. Stat. 270, § 6), and constitutes mo valid obligation which can be made the foundation of a suit. (Baird v. Thayer, 8 Blackf. 146; Ephraim v. Murdock, 7 Blackf. 10; Breeze R. 103 ; 8 Mass. 138, 292 ; 11 Mass. 114.) A request cannot be implied from the beneficial nature of the services to the subscribers.

<p>1. Bond, guardian’s — Suit on — - Contribution — Petition — Allegations — Verdict— Jeofails — Record — Surplusage. — Where judgment was obtained against a surety on a guardian’s bond, and the surety sued his co-surety for contribution, the failure of his petition to state that the original suit was brought in the name of the State, to the use of the beneficiaries on the guardian’s bond, should not be held to vitiate his judgment. The error would be cured by verdict. And on the trial, notwithstanding such defective averment, the record in the former suit might be admitted in evidence. And no mere informalities, not sufficient to have invalidated the first judgment, ought to be considered. Nor would the record be rendered inadmissible in evidence from the fact that it embraced a copy of the guardian’s bond. The latter was no part of the record, and should be treated as surplusage.</p>

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

Louis Court of Criminal Correction. The statute has no application to a case like this, showing no malice. From the defendant’s acts the law presumes malice.

<p>1. Practice, civil — Exceptions signed by bystanders.— Under the statute (Wagn. Stat. 1044), if the judge refuses to sign a bill of exceptions, and permits one to he signed by the bystanders to he filed, the record should show it, and in that case it becomes a part of the record. If he refuses permission, the reason should he stated, and the hill does not become part of the record, hut the original paper is sent up with copies of the affidavits filed in'its support.</p>

jError to Sixth District Court. The question here is not whether the writing is to be contradicted or explained, but whether the written note was ever delivered to the plaintiff as a complete and executed instrument. It is surely competent to show by oral testimony that a note sued on was never delivered. To show the character of the possession of a written instrument sued on, does not change, vary or contradict the writing itself. (1 Greenl.

<p>1. Crimes and punishments — Disturbance of peace — Threats — Construction of statute. — The act of 1870, touching disturbance of the peace (Sess. Acts 1870, p. 45), in general applies to cases where complainant was on his own premises, or in some public place where he had a right to be. It is not designed to punish one for use of violent language and threats which could not result in bodily harm, where the language was used toward an intruder who had before threatened personal injury.</p>

Jlppeal from Jefferson Circuit Court. The evidence shows that David Morse had an equitable ownership in the land. Therefore Trow, Marshall & Co. were not agents appointed by an agent, but by a principal; and these representations to Rathburn about this property are as binding upon the plaintiff as if he had made them himself.

<p>1. Referee — Additional testimony. — When a case is referred back to a referee after report filed, to re-state an account, the hearing of additional testimony is a matter resting very much in his discretion. '</p> <p>2. Referee, report of — Appeal —Evidence, weight of — The report of a referee in stating an account is equivalent to a special verdict, and will not be disturbed on appeal, as being against the weight of evidence.</p>

<p>1. Equity — Trespass — Ex parte estate — Vendor’s lien — Petition — Certain separate estate was owned by a married woman, subject to tbe vendor’s lien. Part of it was subjected to payment of her debts by a judgment, definitely describing the same. A bill being brought by the purchaser thereof at execution sale, to subject her remaining estate to the payment of the vendor’s lien, on the ground that the original suit by mistake failed to embrace these lands, held, that the bill contained no equity, and was properly dismissed; for the proceedings under which he purchased gave him no title to said lands, and no attempt was made by suit for that purpose to reform those proceedings.</p>

<p>1. Deed — Reference to survey in — Effect of — Where no other description is given of the land sold than hy the number of the lot in the survey of a tract of land or the plan of a town or an additiofi to the same, the authentic map of such survey is as much a part of the deed as though set out in it.</p> <p>2. Estoppel in pais — Boundary line — Improvement, acquiescence in. — Without any agreement more than is implied from their acts, if two persons trace their dividing line, and both recognizing it as such, one goes forward with the knowledge and acquiescence of the other, and makes valuable improvements, so valuable as to work great injury to the party making them if the line be disturbed, the other will be estopped from afterward alleging such mistake as shall deprive the builder of his improvements; and especially if the party seeking to disturb the line knew at the time the improvements were made, all that he subsequently learned, or if he had the means of knowledge. In such case it is not necessary to show actual fraud in the party estopped.</p>

I. The approval of the sale of Highley to Scott by the County Court of Washington county, taking place at the same term during which said sale was made, was invalid. (Sess. Apts 1855, p. 447 ; Strouse v. Drennan et at., 41 Mo. 289; Speck v. Wohlien, 22 Mo. 310; Mitchell v. Bliss, 47 Mo. 353.) II. The doctrine of ratification or confirmation of sales made during infancy, by act of the party after majority, has no application here.

<p>1. Tender — Sale of real estate — Suit for specific performance— When tender need not he made.— When the vendor of land claims to have rescinded, and repudiates and denies the obligation of the contract, placing himself in such a position that it appears that if tender were made its acceptance would be refused, then no tender need be made by the vendee. In such case it is enough if the latter, in a suit for specific performance, offer by his bill to bring in the money when the amount is liquidated and he has his decree for performance.</p>

<p> Error to Washingon Circuit Court. </p> <p>The judgment by default having been rendered at the May term, it was irregular to enter up final judgment^ at that term. So far as Arnold was concerned, this May term was the return term ; he should have been allowed until the next term to come in with his defeuse, and it was error to render a final judgment against him at that term. (Doan v. Holly, 26 Mo. 187; Lawther v. Agee, 34 Mo. 372; Lombard v. Clark, 33 Mo. 308 ; Hopkins v. McGee, 33 Mo. 312.) The offer by defendant Arnold to appear and file answer was no appearance ; nor was he ever served with process, nor was he made a party as representative of one who had been served. (Wagn. Stat. 1054, § 13 ; Campbell v. Garton, 29 Mo. 343 ; Stewart et al. v. Stringer et al., 41 Mo. 403 ; Downing, v. Still, Adm’r, etc., 43 Mo. 315 ; Harbor v. Pacific R.R. Co., 32 Mo. 426 ; see also Smith’s Adm’r v. Rollins, 25 Mo. 408.) Error lies from the action of the lower courts on motions made after judgments, and on judgments on motions. ' (Parker v. Hannibal & St. Jo. R.R. Co., 44 Mo. 419.)</p> <p>I. Arnold had voluntarily appeared to the suit, and if the Circuit Court committed error in entering up a default against him, his remedy was to move to set aside the default or interlocutory judgment and sue out his exceptions. (Campbell v. Garton, 29 Mo. 343.)</p> <p>H. It was not error to render a final judgment at same term of court. (Wagn. Stat. 1053, §§ 10, 11.) The law is now, if a defendant is in default you may take final judgment at same term at which you take the interlocutory judgment. The law was otherwise up to 1864. (See R. C. 1855, p. 1280, § 10.)</p>

cited State v. Shacklett, 37 Moi 283 ; Elliott v. Swartout, 10 Pet. 137; Hearsey v. Pryn, 7 Johns. 179; Ripley v. Gelston, 9 Johns. 201; Fry v. Lockwood, 4 Cow. 454. The tax list showing jurisdiction of the subject-matter, and being entirely regular, the defendant is protected. (St. Louis Mutual Life Ins.

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

The court could not sell the minor’s estate for expenses of his education without a petition from his guardian. The statutes in point are Wagn. Stat. 675, § 17; id. 676, § 28. The guardian has the sole charge of his education. The curator of the minor’s estate is the only proper person to apply for authority to sell the ward’s estate, so as to furnish funds for his education. (R. S. 1845, p. 542, § 7.) The opposite theory has no sanction in the statute.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. The record does not show any privity between the plaintiff and defendant. (1 Wheat. Sel. Nisi Prius, 104.) The plaintiff, Tamm, was no party to the proceedings of the city of St. Louis v. Kellogg. The verdict and assessment of the jury was in favor of defendant. The verdict was confirmed and the money paid to defendant by the city. Plaintiff had no interest in it. By the payment of the money the city was entitled to take possession and did take possession of the land, and defendant’s title was vested in the city.</p> <p>II. The plaintiff did not show any legal title to the land. The rights of the parties to this suit depend upon whether Chouteau Mill creek, in 1845, was a fixed or a shifting boundary, which is a question of law upon the facts proved. The channel of said creek was actually located and fixed in 1845,-by survey, and could not afterward be a shifting boundary line. (Ang. Wat. Cours., § 57; 8 Kent’s Com. 428; Mincke v. Skinner, 44 Mo. 92-7; Primm v. Walker, 88 Mo. 94, 99.)</p> <p>III. The plaintiff testified that he claimed and now claims only so much land as is included in his deeds from Paul in 1847. Paul’s possession did not extend beyond the center of the creek as it was in 1845 and 1847, and if, then, the creek has moved to the eastward at any time since 1847, from any cause, the plaintiff’s possession is by mistake, and, under the instruction of the court, cannot avail him in this suit.</p> <p>I. Defendant cannot say that the city did not acquire full title to the land; he was a party to the land commissioner’s proceeding, claimed the land in question, and received its equivalent in money.</p> <p>II. Land may be dedicated to public use without a deed. Plaintiff, in bringing this action, assents to and confirms the taking of his land and the proceedings before the land commissioner ; this, with a judgment for the compensation assessed, will work a dedication of the land. (Soulard v. City, 36 Mo. 546 ; McKee v. City, 17 Mo. 184.)</p>

A power may be executed without reciting or even referring to it if the act shows that the donor had in view the subject of the power. (18 Kent’s Com. 383; 2 Bro. C. C. 303 ; 2 II. Bl. 139; 6 Coke, 17; 8 Tenn. 118; Bradish v. Gibbs, 3 Johns. Ch. 551.) The deed which Rolfe and Jamieson executed to Yan Doren was a good execution of the power. The fee was in them. It was not a sale of Johnson’s land.

<p> JJppeal from Monroe Circuit Court. </p> <p>cited 11 Mo. 587; Alexander v. Eberhardt, 35 Mo. 475 ; -Milburn v. State, to use of Ray et ux, 11 Mo. 188 ; Douglas v. Baker, id. 41; State, to use of Sublett et al., v. Melton, 8 Mo. 417; Wilson v. Huston, 4 Bibb, 332.</p>

Charles Circuit Court. In tins case the recorder refused to grant the appeal on the ground that there was no judgment in the case, and for that reason no appeal would lie; but an order having been made by the Circuit Court, the appeal was allowed and the transcript was sent up. Before the Circuit Court the city counsel moved to dismiss for the reasons assigned by the recorder, but the motion was overruled.

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

<p>1. Evidence — Bond — Testimony touching, at date of. — In suit on a bond, statements of tbe principal at the date of its execution, in the absence of plaintiff or his agent, are inadmissible.</p>

Louis Circuit Court. Moore & Hawkins were a law firm employed by plaintiffs to collect two notes from one John H. Stokes, and brought suit and obtained judgment against him. See further the -opinion of the court, and Bryant v. Hawkins, 47 Mo. 410.

Where the amount proved on the counter-claim exceeds the sum found due plaintiff, the court may give defendant judgment for the balance. (Gen. Stat. 1865, ch. 171, § 2; id. ch. 165, §§ 12, 18 ; Nelson v. Johnson, 25 Mo. 430 et seq.; House v. Marshall, 18 Mo. 368-74; Grand Lodge v. Knox, 20 Mo. 433 ; Ogden v. Coddington, 2 E. D. Smith, 317, 323 ; 1 Van Santv. PI. 545, 569.) Counter-claims embrace both set-offs and recoupments, as they were understood 'prior to the code.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. Under his general power as military commander of this district, General Schofield, in the emergency which existed, had the power to seize these rents and appropriate them to the public use. The necessity was apparent, and is admitted by the demurrer. The payment by defendant under this order, and under the compulsion of. force, was a discharge of the obligation of his case.</p> <p>II. The act of Congress of March, 1862, is applicable, to such a case, and both in its letter and spirit embraces it, and protects both the officer who seized the rents and the tenant from whom they were seized from an action to recover them. Plaintiff can not recover such property or effects thus taken, either by a direct action, or indirectly by an action upon the covenants of his case. (16 How. 164.)</p> <p>ILL The constitution of Missouri is also applicable, and protects both the officer and the party paying the rents.</p> <p>IV. The statute of limitations pleaded is a bar.</p>

Petition for Mandamus. If there be a right and no other specific remedy, mandamus will lie. (Moses Mand. 17, 18.) The discretion of a superior court in issuing it is not arbitrary but judicial. (Moses Mand. 18.) The granting of an injunction by a court or judge is a ministerial act. (4 Ark. 302; 9 Ark. 336.) An injunction bill which if answerable will not be refused though erroneous. (See 19 Penn. 211; 14 Md. 152; 15 Cal. 107; 40 111. 388 ; 4 Iowa, 570 ; 16 Eng.

Louis Circuit Court. I. The purchaser of land at a sheriff’s sale under an execution is not bound to examine into the regularity of the proceedings by which the execution was obtained.

Whether the action were legal or equitable, if it involved issues, defendant'was entitled to a jury. The “decree” in this case merely found the amount of indebtedness, and was virtually # nothing but a judgment at law. In equity the judgment must set for ththe facts (Marmaduke v. McMasters, 24 Mo. 51) and cover all the issues made. (Downing v. Bourlier, 21' Mo. 149; Murdock v. Finney, id. 140.) This is properly a case of equity (1 Sto. Eq.

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

<p>1. Equity — Partition sale of lands under — Person having interest not a party — Action to set judgment aside, etc.— One claiming an interest in lands sold in a partition suit, to which he was not a party and by which he was not bound, is not entitled to a decree in a court of equity setting the proceedings aside on the ground that the same were fraudulent and void.</p> <p>2. Practice, civil — Demurred— Filing of out of time.— Permission to file a demurrer after the time originally fixed for pleading has elapsed, may be exercised in the sound discretion of the court.</p>

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

<p>1. Eminent domain — Railroads — Statute — What uses public. — The Hannibal & St. Joseph R.R. Co. are authorized under the statute (Wagn. Stat. 298, § 2, subd. 7) and charter (g 5), to condemn land for purposes of depots, engine-houses and repair-shops. Such use is a public use, for which property may be taken against the owner’s consent.</p> <p>2. Railroads — Condemnation of lands — Proceedings for — Allegations in.— In proceedings to condemn lands for railroad purposes, an allegation in the petition that the parties could not agree upon the proper compensation to be paid for the land proposed to be taken, is a sufficient averment of .the fact of disagreement to put the adverse party upon his defense upon the merits.</p> <p>8. Eminent domain — Benefits, assessment of — Exceptions, etc. — "Where pro- ■ ceedings of commissioners appointed to assess damages for taking of railroad lands are regular, and there is nothing to show that they erred in the principles upon which their valuation was made, exceptions to the proceedings' should be overruled.</p>

<p> Error to Cole Circuit Court. </p> <p>I. The second count is demurrable under the third section of the damage act (Wagn. Stat. 520). Unless the master was guilty of the lack of ordinary care in the selection of servants, he is not liable. (McDermott v. Pacific R.R., 30 Mo. 115; Rohback v. Pacific R.R., 43 Mo. 187; Gibson v. Pacific R.R., 46 Mo. 169; Warner v. Erie, 39 N. Y. 468 ; P. & Ft. W. R.R. v. Devereaux, 17 Ohio, 197.) The plaintiff clearly intended to charge defendant with personal negligence in this, that it did not use ordinary care and diligence in the selection of its servants, but has failed to do so. Negligence cannot be charged by inference, but must be by direct, positive and traversable averment — by declarations that directly tender to defendant an issue on negligence, the gist of the action — otherwise it is bad on demurrer. (Brown v. Harmon, 21 Barb., N. Y., 508; 10 Minn. 71; Griggs v. Upham, 9 Minn. 246 ; P. & O. R.R. v. Kelly, 23 Ind. 133 ; 10 Allen, Mass., 301; Atwood v. Caswell, 19 Pick. 495; Buffalo v. Holloway, 7 N. Y. 498. )</p> <p>H. It is stated that defendant authorized and allowed its servants to neglect their “ duties.” This word is a mere nullity. The pleader must state what duties, whether duties to defendant, duties imposed upon every man alike by the law of the land, or duties imposed by Christianity and morality. Judging from the pleading, -it is the latter duties to which the pleader refers. This is entirely insufficient. (Buffalo v. Holloway, supra; 2 Duer, N. Y., 678 ; 43 Mo. 546 ; 37 Mo. 330 ; Ticknor v. Yoorhies, 46 Mo. 110.) It is a mere conclusion of law or of the pleader, no allegation of fact. (Anderson v. Jaccard, 32 Mo. 188 ; Stearns v. Stearns’ Adm’r, 30 Yerm. 216; 3 Gray, Mass., 484.)</p>

Testator did not intend to make the validity of the will depend on his death while in Kentucky. (2 Mete., Ky., 864 ; Ex parte Lindsay, 2 Brad. Suit. 204 ; Thompson v. Connor, 3 Brad. Surr. 366.) He merely gave the reason or occasion that induced the will. (1 Redf.

* The sheriff had the right to seize the county warrant under the execution. And the taking of it on the execution was in fact a levy thereof, and the execution was satisfied by this levy, even before the warrant had been prosecuted for payment. (See R. C. 1855, p. 741, §§ 18-19; Blair v. Caldwell, 8 Mo. 353.) I. The statement that the sheriff took the warrant in payment is a mere inference not authorized by the facts.

The recital of the deed, that notice was given in manner as required by law, is sufficient prima facie evidence that the law had been complied with. (Gen. Stat. 1865, ch. 13, § 112; Abbott v. Lindenbower, 42 Mo. 162.) The deed shows that there was no notice to the person of the intended application for judgment, nor does it recite any fact, matter or thing showing or intending to show that the court had jurisdiction of the subject.

<p> %/lppeal from Pettis Circuit Court. </p> <p>I. Even by the laws of 1849 and 1855, the property of the wife was not exempt from execution for the debts of the husband contracted after the reception of the money or property by the wife. (Cunningham v. Gray, 20 Mo. 170; Tally v. Thomson, 20 Mo. 277; Barber v. Wimer, 27 Mo. 140.) In the case at bar, Mrs. Coe acquired the title to the real estate under the statute of 1865, which went into effect August 1,1866 (Gen. Stat. 1865, p. 464, § 14); and unless acquired by “gift, grant, devise or inheritance,” it was subject to the debts of her husband contracted either before or after that time.</p> <p>H. Mrs. Coe must have obtained the property without valuable consideration, or it will be liable. All the reasoning of Phelps v. Tappan, 18 Mo. 898, and Pawley v. Vogel, 42 Mo., apply with even greater force to the statute of 1865 than to those of 1849 and 1855. The statute of 1865 leaves out the words “ or otherwise,” and if the language of the laws of 1849 and 1855 applied only to lucrative titles, that of 1865 has certainly the same meaning. There can be no pretense that Mrs. Coe acquired this property by a lucrative title.</p> <p>The case of Tennison v. Tennison, 46 Mo. 80, does not construe the statute here invoked. That of Schafroth v. Ambs, 46 Mo. 118, does not decide the point in our statute as to the distinction between lucrative and onerous titles.</p> <p>Counsel cited generally Sexton v. Wheaton, 8 Wheat. 251; 3 Johns. Ch. 517; Pawley v. Vogel, 42 Mo. 300; Cunningham v. Gray, 20 Mo. 173 ; Keith v. Woombell, 8 Pick. 215; Bullard v. Briggs, 7 Pick. 567’; Thomas v. Brown et al., 10 Ohio St. 247; Stanton v. Kinsch, 6 Wis. 338; Elliott v. Bentley, 17 Wis. 365; 3 Johns. Ch. 481; 6 Seld. 231; Sto. Agency, § 267.</p> <p>The court expressly found that the money which Mrs. Coe owned before the marriage, remained loaned out and was never reduced to possession by the husband, and the residue of the money which was used in paying the balance of the purchase-money and improvements on the- lot was furnished by her brother ; and also that this money was invested in the lot for her with the assent of her husband. This finding negatived the theory that the property was bought with the husband’s money. A husband is not entitled to a wife’s choses in action until reduced to possession. (Leaky, Adm’r, v Maupin, 10 Mo. 368.) The right of a husband to his wife’s property is regarded as a marital right, which he may waive or insist on as he pleases, and which, if he does waive, the goods remain the property of the wife. (George v. Cutting, 46 N. H. 130.)</p>

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

<p> Appeal from Lafayette Court of Common Pleas. </p> <p>A “bond” is a sealed instrument. (1 Bouv. Law Die. 200 ; 2 Serg. & R. 502 ; 1 Baldw. 120 ; 2 Porter, 19 ; 1 Blackf. 241; Harper, 434 ; 6 Vern. 40.) Sir William Blackstone defines a bond to be a deed. (2 Blackst. Com. 340 ; Drake on Attach., § 125; Homan v. Brinckerhoff, 1 Denio, 184; Rockefeller v. Hoysradt, 2 Hill, 616; Drake on Attach., § 124; icl., § 121; id., § 137; Walker v. Keile, 8 Mo. 301-2 ; Glasscock v. Glass-cock & Dodd, 8 Mo. 577.) A sheriff ’s deed without actual seal, and without scrawl by way of seal, is no deed. (Morean v. Detchemendy, 18 Mo. 530; 4 Kent’s Com. 452.)</p> <p>I. The appellants have prosecuted an attachment suit under an instrument which they filed in the attachment suit as a bond, which they called a bond, treated as a bond, got all the benefits of as a bond, did the respondent all the damage they could under it as a bond, and which they speak of in the body of the instrument as being “ sealed with our seals.” They cannot now be allowed to say that it is no bond, notwithstanding no scrawl is attached. We submit the following authorities: Underwood v. Campbell, 14 N. H. 393 ; Comerforce v. Cobb, 2 Fla. 418 ; 5 Johns. Oh. 224; 12 Mo. 341.</p> <p>II. The doctrine of estoppel will apply here.</p>

I. The petition is bad on demurrer. It shows no facts making. the assessment illegal and void. II. If the property was subject to taxation, the collector was bound to levy and would be protected. (11 Mo. 64; 29 Mo. 285.) If the assessment was irregular, plaintiff had his remedy by appeal. Failing to do this, he is bound. I. The tax was illegal. The rolling stock was exempt, not being permanently located within the taxable jurisdiction of Jefferson City.

Where a surety is induced to sign a bond by fraudulent reprei sentations that tbe signature of a co-surety is genuine, be is released. (Pepper v. Tbe State, 22 Ind. 399; The People v. Bostwick, 43 Barb., N. Y., 9; United States v. Lifter, 11 Pet. 86; Pawling v. Tbe United States, 4 Cranch, 219; Johnson et al. v...Baker, 6 Eng. Com.

I. The Circuit Court had no power to pay or order to be paid the claim of Cass county. The debts must be paid according to the deed of assignment. A debtor, under the law of 1855, had a right to prefer one creditor to another, and the debts therefore must be paid as required and directed by the debtor in his deed of assignment. (Woods v. Tinnerman’s Assignee, 27 Mo. 107; 5 Johns. 335; Wilkes v. Ferris, 5 Tenn. 420 ; Shapleigh & Rue v. Baird, 26 Mo. 322.) II.

If there are certain approaches to railroad depots in villages and towns, in actual and constant use by the public, and which necessarily are left unfenced in order to enable the public to ship and defendant to receive and deliver freight, and to perform the duties which the law requires of it, and if, the same being fenced up, a public nuisance would be created, defendant is not liable for failure to fence such avenues of. approach and departure, and is not responsible in…

' Appeal from, Lafayette Circuit Court. There are no recitals in the deed as to how Price got out of office, or showing that Adamson had any authority to make this deed. If Price was out of office as contemplated by section 58 of the execution law (Wagn.

A widow is entitled to dower in lands held by her husband under an executory contract, although all the purchase-money was not paid. (Brewer v. Vernondale, 6 Dana, 204; 7 Gray, 533 ; Stephens v. Smith, 4 J. J. Marsh. 64.) The true rule seems to be that the widow is entitled to dower where the husband had an equity in fee which would authorize the demand to the chancellor to decree title.

I. Anderson, at the time of the attachment and sheriff’s sale, had no interest in the land in controversy which could be sold under execution. He had no seizin in law or equity; nor did Seely, at the time of the attachment, hold the title for Anderson’s-use. There was nothing to sell, so far as the land was concerned, and nothing could pass by the sale. (1 Wagn. Stat. 605, § 16 ; 18 Johns. 941 Johns.

The evidence did not vary or contradict the stipulations of the deed. To show another or additional consideration to that expressed in it was not repugnant to it. (See 6 Cush. 519, 553, 557; 17 Mass. 249,- 257 ; 14 Mo. 482; 39 Mo. 250 ; 3 Hill, 219 ; 26 Iowa, 97, 110 ; 15 Wend. 308, 310-11, 313 ; 33 Wis. 519; 23 Ind. 590; 26 N. Y. 378; 16 Wend. 460 ; 41 N. Y. 316.) The court properly excluded the testimony of the defendant Ingram.

I. The liability of the county is general, and is not restricted by the warrant being payable out of a particular fund. (Ubsdell & Pierson v. Cunningham, 22 Mo. 124; Terry v. Milwaukee, 15 Wis. 490; Savage v. Supervisors of Crawford County, 10 Wis. 49 ; id. 73 ; Lyell v. Supervisors Lapier County, 6 M. L. 446 ; Paddock v. Symonds et al., 11 Barb. 117; Young v. Camden, 19 Mo. 309; Campbell v. The County of Polk, 3 Iowa, 467; Clark v. Des Moines, 19 Iowa, 199.) II.

<p>1. Constitution — Opinion of Supreme Court — Governor entitled to, when.— The judges of the Supreme Court have the right to determine for themselves whether the “occasion” is such as, under section 11, art vi, of the State constitution, to warrant the governor in calling upon them for their opinion.</p> <p>2. Bonds, Pacific Railroad — Payable, when — Out of what fund — By whom —In what money.— 1. The State Pacific Railroad bonds of January 15, 1852, are payable twenty years from date, and the time of their payment is not postponed by the provision incorporated in the bonds making them redeemable, in the pleasure of the Legislature, at any time after the expiration of twenty years.</p> <p>2. Said bonds can only be paid out of a fund expressly appropriated for that purpose by the Legislature.</p> <p>3. The State interest fund created by the act of 1855 (R. C. 1855, p. 1487) and the State sinking fund created by the act of 1865 (Wagn. Stat. 1281; see also Sess. Acts 1871, p. 80), were appropriated for the payment of these among other State bonds.</p> <p>4. Payment is to be made by the State commissioners created by said acts, without any further order than that contained in the acts. If there be not funds enough on hand to pay the bonds as they mature, they are required to sell such bonds as they may have purchased, so as to.raise money for that purpose.</p> <p>5. Said bonds, according to their terms, are payable in gold or silver coin. And this provision contained in the bonds is not overruled by the legal-tender acts passed by Congress in 1862. And it would be a breach of the contract entered into by the State in issuing these bonds to order their payment in legal-tender notes.</p>

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

Error lo .First District Court. I. Defendant in the execution was in possession of property more than adequate to satisfy the- execution, as shown by the evidence. His possession was presumptive of ownership. Hence plaintiffs in error were entitled to recover. (1 J. J. Marsh. 533 ; 30 Mo. 126, 129 ; Wagn. Stat. 60'4,’§ 68.) II. Eailure to return the execution according to the •commands of the writ was sufficient to warrant a recovery of nominal damages. (Wagn.

I. The decision and final judgment rendered by the Kansas City Court of Common Pleas was rendered upon a special' demurrer to petition, for the reason that-the petition did not state facts sufficient to constitute a cause of action. This cannot constitute a bar to a subsequent suit for the same cause of-action. (See 21 Pick. 250 ; 10 Pet, 299 ; 12 Curtis’ Dig. 130-3; 21 Ind. 190 ; 12.Mo. 103.; 15 111. 300; 1 Black! 56 ; 6 Black! 56.) II.

Ferguson had a right to appear at the sale as a bidder: 1. For the reason that he owned an equity to the north half, and sought by the purchase to acquire the legal title to the whole lot. 2. He bid also for the south half, in which he claimed title.

I. Ray county is a public corporation, and possesses no other powers than those defined in the law. (Ang. & Ames Corp. 9, § 14; id. 19, § 23 ; id. 20, § 24.) II. The power of Ray county to act as trustee of the school funds of said county is created by statute, and her duties are distinctly defined therein and cannot be exceeded. (Wagn. Stat. 868, § 8 ; id. 870, §§ 18-20 ; id. 1261, § 90; id. 1259, §§ 79-83, 86-7; Harm. & St. Jo.

Jlpppal from, Pettis Circuit Court. I. The action was brought in August, 1868, and the sheriff’s deed to plaintiff, on which alone she could assert title, was not made until August, 186.9. She was bound to show title before the date of the ouster laid in the petition.

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

<p>1. Equity — Trust estate — Notice. — One who, in consequence of a blunder in the terms of a deed, obtains the legal title to land the equitable ownership of which is in another, and has full knowledge of the fact, will hold as trustee for the latter. And a grantee, with notice from the legal^ owner, will be affected with the same trust.</p>

Hatton, administrator de bonis non and successor to Roberson, who is charged with combining and confederating with Roberson in making his fraudulent final settlement, was a necessary party to a complete determination of the questions involved. There is in fact but one administrator of an estate. The administrator de bonis non stands in the situation of his predecessor.

I. This cause o£ action did not accrue at the time the note became due, but at the time plaintiff paid Guy the money. (Singleton v. Townsend, 45 Mo.'379; 1 Pars. Cont. 36 — 7; 2 Pars. •Bills and Notes, 253, § 7.) Nor does the administration statute of limitation of three years begin to run against a surety who pays the debt of his principal, until he has paid it.

Jlppeal from, Pettis Circuit Court. The quit-claim deed from John C. Porter and R. R. Powell, trustees of said company, to plaintiff, should have been excluded. Trustees must be regularly appointed, or empowered and authorized to act. The Pacific Railroad Company did not appoint and nominate said Porter and Powell trustees.

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

The sheriff’s second deed to plaintiff was inoperative, being made after the institution of this suit. (11 Mo. 481; Tyler Eject. 75 ; 25 111. 587.) After the first deed the sheriff lost all power over the property, and nothing passed by the second. The sale under Gr.

I. Defendant was entitled to twelve jurors. (2 Black, 719 ; 2 How. 771; 6 Blackf. 461; 8 Blackf. 561; 2 Ohio, 296.) And the act under which this conviction was obtained, in so far as it provided for a jury of six only, and authorized a conviction upon their finding, is unconstitutional. (1 A. K. Marsh. 290; 2 Penn. 943 ; 5 How., Miss., 681; 3 English, Arle., 436.) II. • There can be no waiver of this right of twelve jurors unless the same is entered of record.

<p>I. Judgment affirmed.</p>

The Knobnoster Savings Bank is not required to pay a broker’s license. It is incapable of acting as a moral agent, and cannot be punished as a moral agent. It can do only such acts and perform such duties as aggregate corporations vested with its powers are permitted to do. It has no power or capacity to take an oath, and the Legislature could not invest it with such power. The Legislature cannot invest a dry corporation with the powers and duties of a moral agent.

I. The court erred in permitting the letter of Taylor to be read in evidence. II. The court erred in refusing to allow the conductor to answer the question as to what would have been the effect if Gavisk had held on to the brake. There is no objection to it on the ground that he was not an expert.

To have been strictly regular and formal, the judgment should have ordered a special execution upon the property attached. But the omission in the form of the judgment could not vacate the attachment lien. It was one of those irregularities in form which might at any time have been corrected nunc pro tunc.

I. The grand jury was not lawfully summoned. It met at an adjourned term, but without any order from the cour-t directed to the sheriff and entered on the'minutes of the court. (Wagn. Stat. 1083, § 13 ; State v. Barnes, 20 Mo. 413.) Without such steps the indictment is a nullity. This fact appears on the face of the record, and may be taken advantage of at any time.

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

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

<p>1. Practice, civil — Court — Items.— In a suit by an agent, where the petition, though setting out several distinct items and claiming judgment for each, is founded on matters growing out of the same alleged agency, it may be treated as containing but one count.</p>

<p>1. Conveyances — Acknowledgments — Deputy clerks.— Deputy clerks acting in the name of the chief clerk have power to take the acknowledgments of deeds and grant certificates thereon.</p>

<p>1. Practice, civil — Supreme Court — Appeal — Failure of order. — Where the record shows no order granting an appeal, the case will be stricken from the docket.</p>

dippecu from Greene Circuit Court. The tax deed was prima facie evidence of title. No essential prerequisite to the valid exercise of the taxing p,ower was shotvn to have been omitted.

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

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

•Appeal from Crawford Circuit Court. relied on Enstein v. Gay, 45 Mo. 62. The deed does not contain the necessary recitals to make it a valid deed, and is void and inoperative. (Enstein v. Gay, 45 Mo. 62.) Appellant was upon the land without the authority of any one, without color of title, and without permission of the former owner, and cannot interpose against respondent. He cannot take advantage of his own wrong. The recitals of the deed conform to the law. (Sess.

<p> Jljipeal from Benton Circuit Court. </p>

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

<p> Appeal from Saline Court of Common Pleas. </p> <p>cited 2 Kent, 830-2, note 1, § 647, and authorities referred to; Unwin v. Wolsely, 1 Term, 674; Hodges v. Dexter, 1 Cranch, 345; Olney v. Wilkes, 18 Johns. 122; Daws v. Jackson, 9 Mass. 490 ; Fox v. Drake, 8 Cow. 191; Wiggins v. Hathaway, 6 Barb., S. C., 632; Smith Merc. Law, 144; Paley on Agency, §§ 368-9; Sto. Agency, 160, 261-3 ; Roberts v. Butler, 14 Verm, 195; Kirkpatrick v. Stainer, 22 Wend. 962 ; Shelton v. Darling, 2 Conn. 435 ; Matt v. Hicks, 1 Cow. 513 ; Rockaway v. Allen, 17 Wend 40 ; Stanton v. Comp, 4 Barb., S. C., 274; Smith v. Alexander, 31 Mo. 193 ; Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 336 ; Lazarus v. Shearer, 2 Ala. 718; Kicks v. Hinde, 9 Barb. 529.</p>

The deed set up is an equitable mortgage, and will be enforced in equity in an action between the parties thereto and all purchasers with notice. Paul could not acquire more by his purchase than his vendor possessed.

Jlppeal from Polk Circuit Court. I. The sheriff’s deed to Smith is void on its face and conveys no title. A deed conveying land by virtue of a power must show-on its face that the power exists and has been strictly pursued. (Curtis v. Doe ex dem., Breese, 111.., 99 ; Williams v. Payton, 4 Wheat. 77; Lackey v. Lubke, 86 Mo. 121; Hardy v. Heard, 14 Ark. 185.) The sale shows that in this case the deed was made after the return term, when the writ was functus oficio and dead.

The court had no power to dissolve the attachment in vacation; consequently there was no damage to plaintiff Williams occasioned by giving of the bond. The attachment could be dissolved only on motion in term time. I. The defendants are estopped from questioning the validity of the bond in any particular. (Livingston v. Hammer, 7 Bosw;, N. Y., 670; Price v. Kennedy, 16 La.

The record does not show that the defendant was present in court when the verdict of the jury was returned into court and recorded. This should appear affirmatively by the record. (Wagn. Stat. 1103, § 15 ; State v. Cross; 27 Mo. 332 ; State v. Matthews, 20 Mo. 55.) The defendant was absent from the trial while it was going on, for six days, all the time. This was gross error. (Wagn. Stat. 1103, § 15; State v. Braumschweig, 36 Mo. 397; 31 Mo. 149; 36 Mo. 393.)

FLppeal from Franklin Circuit Court. . The court improperly admitted in evidence the copy of the resolution ordering an assessment. It was incompetent until after the plaintiff had offered proof to show that losses had been sustained for which an assessment was authorized to be made. The payment of the note was conditional, and not at the mere discretion of the directors.

Jtppeal from Johnson Court of Common Pleas. I. Under section 57, chapter 55, Wagner’s Statutes, 612, the sheriff’s deed, offered in evidence was not admissible, not having been recorded. The statute, in declaring that after record the deed may be put in evidence, holds by implication that without record it is not admissible. (3 Brevard, S. C., 306; 5 Texas, 418 ; Bradley v. Holloway, 28 Mo. 155; 36 Mo. 28 ; id. 619.) II.

Jlppeal from Dade Circuit Court. cited in argument Faust v. Echols et at., 4 Coldw. 397; Fleece v. Gordu,, 1 Dav. 306 ; McClain v. Winchester, 17 Mo. 49. I. The statute of 1864, to supply lost records, was a repeal of all common-law remedies upon lost judgments. It gives new and substantial remedies to the creditor. The statute does not, afford merely a cumulative remedy. Such an interpretation overthrows the reason of its enactment.

<p>1. Revenue — County Collectin' — County tax, payment of — License — Construction of statute — Mandamus. — Under the act of 1868, concerning county revenue (Wagn. Stat. 1196, J 76), and the act concerning brokers (Wagn. Stat. 219, gg 6,7), taken together, a county collector may levy a tax, not exceeding by one hundred per cent, the State tax, upon the license of a broker; and mandamus will not lie to compel the delivery of the license until such county tax is paid.</p>

Pockman, deceased, in Linn county. The suit was commenced on the 6th day of August, 1866, by filing a petition for partition in the office of the clerk of the Circuit Court of said county. On the 6th day of August, 1867, a final judgment and decree of partition was made. In this final decree, as entered by the clerk, no finding of the interests of the parties in the lands was made.

<p> Appeal from Linn Circuit Court. </p> <p>cited 48 Penn. 238; 8 Me. 94 ; 5 Binn. 129.</p>

<p> Appeal from Andrew Circuit Court. </p> <p>cited Tyler Eject. 513-14 ; Vanderpool v. Van Valkenburgh, 6 N. Y. 190; Morris v. Keys, 1 Hill, 540; Caw v. Robertson, 5-N. Y. 125; Hill v. Crockford, 24 N Y. 128.</p>

<p>1. Deed of trust — Name of trustee may be supplied by a court of equity.— Where the name of the trustee in a deed of trust was omitted in making out the deed, hut the grantor gave the cestui que trust verbal authority to fill up the blank with the name of some suitable person, a court of equity has the power to reform the instrument and supply the name of the trustee.</p> <p>2. Practice, civil — Counts — Misjoinder. — A petition containing a count praying for equitable relief, and another separately stated asking for the forexlosure of a mortgage, is not bad for misjoinder.</p>

<p>1. Instructions must he taken as a whole.— The fact that isolated instructions are partial or misleading will not authorize a reversal where the instructions taken as a whole present the case properly.</p>

This was a bill in equity; the set- off and recoupment went to the whole bill, and should have been estimated and allowed. Each count in a petition stands as an independent cause of- action. An original and a cross-bill make but one suit; the cross-bill is considered as a matter of defense to the hill. (3 Atlc. 812; 7 Johns. Ch. 250-2; 3 Danl. Ch. 1743; Slason v. Wright, 14 Verm. 208; Sto. Eq.

‘ ‘ The vendee has the right to act and contract on the faith of any statement of fact made to him by the other party; and it cannot be imputed to want of diligence that he made no inquiry to ascertain the truth of such statement, but he had the right to rely and act upon such statements as true.” (Mead, Adm’r, v. Bunn, 32 N. Y. 275; Whitney v. Allair, 1 N. Y. 309; Smith v. Countyman, 30 N. Y. 655 ; Bryan v. Hitchcock, 43 Mo. 528 ; Van Epp v. Harrison, 5 W. Hill, 63 ;…

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

Petition for Certiorari. The court had no jurisdiction. . The statute under which the proceedings were had, so far as it relates to collectors, was superseded and repealed by the act of 1864 (Sess. Acts 1863-4, p. 61). Every affirmative statute repeals by implication a preceding affirmative statute so far as the same is contrary thereto. (Dwar.

Hogan, 47 Mo. 474. I. The evidence offered by plaintiff and objected to by defendant was properly admitted. The action of defendant, in recognizing the validity of the acts of its agent to bind it, is the very best evidence .of the agent’s authority and of its extent. (6 Wall. 785 ; 5 Mo. 555 ; 7 Mo. 318 ; 2 Stark. Ev. 33.) II. A recognition by the principal, of the agency in the particular instances, or in similar instances, is evidence of the authority of the agent.

The agency created by the contract sued on was a special as contradistinguished from a general agency, and its directions must have been strictly pursued in order to hold the principal liable under the contract. And it makes no difference that the attempted departure from those instructions by the agent was for the'interest and benefit of the principal. Every man has a right to decide for himself how his own business shall be conducted. (Tate v. Evans, 7 Mo. 419 ; Sto.

<p>1. Divorce — Alimony— Counsel fees — Dismissal of suit. — Under a proper construction of tbe act of 1868, touching alimony (Wagn. Stat. 535, § 12), in a suit for divorce by the husband against the wife, the latter is entitled to the allowance of a reasonable sum for defending the suit; and this sum should be large enough to cover counsel fees. But they should not be entered up as specific costs; she must make her own terms and pay the amount from the general fund. The sum may be increased if necessary as the suit progresses, and the allowance may be enforced by attachment, or the court may make its payment a condition to the further prosecution of the suit. And the dismissal of the suit by plaintiff while the application for alimony is .under consideration by the court, will not defeat the claim, although it may diminish its amount.</p>

Upon condition broken, the mortgagee may maintain ejectment for the possession of the mortgaged premises. (Tyler Eject. 169 ; Walcop et al. v. McKinney’s Heirs, 10 Mo. 229; Sutton v. Mason, 38 Mo. 120; 2 Washb. Real Prop. 226.) When a mortgage is given to secure the payment when due of several promissory notes falling due at different times, it may be foreclosed upon default in payment of the note first due.

The trustee received at the sale a sufficient amount to pay off the debt. He advertised and sold the property and executed a written conveyance thereof to the purchaser, strictly in accordance with the terms of the deed of trust. That sale and conveyance passed to the purchaser whatever title was held by the plaintiff as trustee to said property. No actual delivery of the property by the trustee to the purchaser was necessary, nor is that question material in this case.

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

<p>1. Forcible entry and detainer — Indicia of actual possession — What sufficient. —In an action of forcible entry and detainer it appeared that plaintiff, in’ entering upon land, caused it to be surveyed, established the corners, cut hay upon the land and ricked it up, and forbade others to cut hay upon it; held, that such acts amounted to open and visible indicia of possession, from which the jury might deduce actual possession and find for plaintiff.</p> <p>2. Forcible entry and detainer — Proof of possession— What sufficient. —In actions under the statute for forcible entry and detainer, proof of title in the plaintiff, with payment of taxes and acts of ownership merely, is not evidence of peaceable possession. But plaintiff need not be always on the land, provided the occupation by the owner is intended to be permanent.</p> <p>3. Forcible entry — Possession—Wild lands. — There may be possession in fact of unimproved and uncultivated land. An entry upon land, with the intention of clearing and fitting it up for cultivation, is such an entry as that a jury may be authorized to infer actual possession from it.</p>

Petition for Mandamus. It was because of the failure to secure money independent of the city subscription that the modifying ordinance was passed and the original subscription was changed. The city knew that relator could not get money from sources independent of the city, and hence modified its original subscription so that relator might be relieved from the necessity of raising money outside of the city subscription.

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

I. At the time the contract was made the parties could make no exact computation of the damages resulting from non-performance. Hence they had the right to liquidate their damages. (S Pars. Cont. 159; 17 Ind. 12.) H. The contract contained but a single c’ovenant, as is evident from the fact that it would be entirely performed by the delivery to plaintiff of the 100 machines (21 N. Y. 256; 2 Allen, 460), and that one covenant was entirely broken.

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

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

As appears from the petition, in December, 1866, plaintiff executed to one William A. J, Smith his note for'$2,300, and to secure it executed to Smith his mortgage, with power of sale, conveying the undivided half of certain lands in Andrew county, Missouri. Afterward plaintiff paid on the note $1,500, and Smith assigned it, with the credit thereon, to defendant Johnson.

The jury in this case found a verdict for plaintiffs for the amount sued on, and found that plaintiffs were entitled to a lien on defendants’ property for the amount. I. Where there has been no special appropriation of the payments made by either party to a running account, they will be applied to the discharge of the items of debt antecedently due, in the order of time in which they stand in the account. (1 Sto. Eq. Jur., § 459 a; 2 Pars.

<p>1. Practice, criminal — Misdemeanor — Information — Repeal of law — Jurisdiction.— Under the act touching laws, etc. (Wagn. Stat. 895, § 7), the court continued to have jurisdiction over one charged on information with a misdemeanor, notwithstanding that the act authorizing such proceeding was repealed ponding the trial.</p>

<p>1. Practice, civil — Evidence — Motion for new trial — Supreme' Court. — An objection to the admission of testimony, not urged upon the attention of the court) and not incorporated in the motion for new trial, will not he inquired into in the Supreme Court.</p>

I. The act of the General Assembly, approved February 26, 1869, extending the corporate limits of the city, is not in conflict with the constitution. (Cooley Const. Lina. 192-3 ; St. Louis v. Allen, 13 Mo. 400 ; St. Louis v. Russell, 9 Mo. 503 ; Sharp v. Dunavan, 17 B. Monr. 223 ; Weeks v. Milwaukee, 10 Wis. 242, 262 ; Langworthy v. Dubuque, 16 Iowa, 271.) II.

<p> dip peal from, Bay Court of Common Pleas. </p>

<p>1. Replevin bond — Action on —Bond payable to sheriff — Remedy.— A bond given by defendant in a replevin suit, conditioned for the delivery of the property to the sheriff instead of the plaintiff, does not conform to the statute (Wagn. Stat. 1024, $ 4), and hence does not authorize a summary judgment under the statute. (Wagn.- Stat. 1028, § 14.)</p> <p>In such a case a motion to set aside the judgment or quash the execution, or both, is the proper course, and the party should not be driven to his writ of error.</p>

Even if the partnership estate should be regarded as a distinct and independent estate, and the administrator in charge of both as acting in two entirely different capacities, his sureties on his general administration bond are liable for the distributive share of the deceased partner, and not his sureties on the bond given in respect to the'partnership estate. (Wagn. Stat. 73, § 18; id. 79, §§ 59, 60; id. 109, § 11; Schnell v. Schroeder, 1 Bail.

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

The trust and confidence shown .in this case'were a sufficient consideration. If a man makes a gratuitous promise, and enters upon the performance of it, he is held to a full'.execution of all he has undertaken. (1 Pars. Cont. 872-8, § 8.,), Xl,»T There was no consideration to support the promise, of’ defendants, even if any such were made.

<p> Hppeal from Buchanan Court of Common Pleas, </p> <p>cited Reubins v. Joel, 13 N. Y. 488.</p>

Jippeal from Macon Court of Common Pleas. I. While it is conceded that the State has the right, by virtue of its authority, to make police regulations, to require the appellant to erect and maintain a fence on each side of its railroad, still, under the pretense of doing this, the State'has no constitutional right or authority to pass a law requiring the appellant to erect and maintain fences, where its railroad passes through cultivated fields, to protect the crops growing…

I. Thomas J. Hughes was an incompetent witness. (1 Phil. Ev. 76, 82; 1 Cow. & Hill’s Notes, note 151; 1 Greenl. Ev., §§ 334-5, 341, and cases cited.) The statute provides for and removes the objection which would arise from his being a party, but says nothing to relieve his disability as her husband.

I. When a plaintiff in the execution buys property under his own judgment, he takes with notice of all defects and irregularities, and they become fraudulent as to him, and his deed can be attacked in a collateral proceeding. This is the rule in equity. (G-ott v. Powell, 41 Mo. 416; Haim. & St. Jo.

<p> Appeal from St. Charles Circuit Court. </p> <p>cited in argument Wagn. Stat. 650, 55 4, 14; Keary v. Baker et al., 38 Mo. 603.</p>

<p> Appeal from, Lincoln Circuit Court. </p> <p>cited 2 Stark. Ev. 515; 5 Phil. Ev. 265; Ewing v. Burnet, 11 Pet. 41; Ellicott v. Pearl, 10 Pet. 442; Menkens v. Ovenhouse, 22 Mo. 70; Williams v. Donegan, 20 Mo. 186; Draper v. Shoot, 25 Mo. 197; City of St. Louis v. Gorman, 29 Mo. 593; De Grow v. Taylor, 37 Mo. 310; City of Carondelet v. Simon, id. 408; Schultz v. Lindell, 30 Mo. 310 ; Wall et al. v. Schindler, 47 Mo. 282.</p>

<p>1. Trusts — Inaccuracies in trust deeds — What will not vitiate them. — Where notice of sale under a deed of trust sufficiently designated the property to be sold, the time and place of sale, and for what' debt, and the names of the trustees were correctly printed in the body of the advertisement, a mistake in the name of one of them, at the bottom of the instrument, will not vitiate the sale.</p>

Wayne county could take and hold the fee to the land, and her rights would he in the nature of other private rights. (Touchard v. Touchard, 5 Cal. 806; Rev. Stat. 1846, p. 289, ch. 38, § 1; R. C. 1855, p. 502, ch. 43, § 1; Barton County v. Walser, 47 Mo. 189.) And after the statute of February 28, 1855, all efforts by the State to divest Wayne county of title thereto, not accompanied with compensation, would be of no effect upon constitutional grounds.

<p> Error to St. Louis Court of Criminal Correction. </p> <p>cited in argument Prince v. Cole, 28 Mo. 486.</p> <p>I. The court committed no error in discharging the defendant, as it had previously heard all the testimony which the State chose to offer at the trial; and as this court had decided that the evidence offered was insufficient to sustain the charge, it would have been an infringement upon the defendant’s constitutional rights to try him again for the same offense. (The People v. Groodwin, 18 Johns., N. Y., 202.)</p> <p>II. If any error was committed by the court below, the case is not properly before this court, as- no motion for rehearing or in arrest of judgment was filed to give the court an opportunity to correct its errors, if any. (Beatty v. Eurnald, 47 Mo. 848 ; State v. Marshall, 86 Mo.. 408.)</p> <p>TTT. The facts as they exist in this case are not such as would entitle the State to an appeal as provided in Wagn. Stat. 1114, §§13, 14, unless at the discretion of the court. Can a writ of error he resorted to for the purpose of bringing a case to this court when the error complained of would not entitle the State to an appeal were all the necessary steps taken to perfect it ?</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>cited Faikney v.Reynous, 4 Burr. 2069; Holman v. Johnson, Cowp. 341; Pellecat v. Angelí, 2 Cr. M. & Rose, 311; Hodgson v. Temple, 5 Taunt. 181; Tracy v. Talmadge, 4 Kern., N. Y., 169; Bowery v. Bennett, 1 Campb. 348 ; Clieney v. Duke, 10 Gill & J. 11.</p> <p>cited Pearce v. Brooks, 1 Excli. L. R. 213 ; Peck v. Briggs, 3 Denio; 107; Ruckman v. Bryan, id. 340 ; Nuger v. Boas, 13 Penn. St.. 601; Ex turpi causa non oritur actio; Shiffner v. Gordon, 12 East, 304; Belding v. Pitkin, 2 Caines, 149; Springfield Bank v. Merrick, 14 Mass. 322; Russell v. DeGrand, 15 Mass. 39 ; 17 Mass. 281 ; 2 Leo, 174; Hutton, 56 ; Cowp. 343 ; 7 Scott, 779 ; 3 B. & Ad. 221; 2 C. B. 501; 7 Taunt. 246 ; Ryan & M. 251; 1 Esp. 13 ; 1 Bos. & Pul. 340; 1 Campb. 348 ; 2 Carr. & P. 347 ; Bernard v. Lupping et al., 32 Mo. 341; Hayden v. Little, 35 Mo. 422 ; Shropshire v. Glasscock et al., 4 Mo. 536 ; Boynton v. Curie, id. 599 ; Hickerson v. Benson, 8 Mo. 8 ; Spalding v. Preston, 21 Term. 1; Bloss v. Bloomer, 23 Barb. 604; Sto. Part., §§ 134, 138-9, 144-6, 150, 153-4, 243; Watson v. Fletcher, 7 Gratt. 4; Gow Part. 45; Coll. Part., 2d ed., 29, 54; Wats. Part. 35, 46; 3 Kent, 28; Sto. Confl. Laws, §§ 240, 260.</p>

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

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

<p> Jippeal from St. Charles Circuit Court. </p>

Louis Circuit Court. I. The appropriation was within the scope of the charter. (Sess. Acts 1867, art. I, pp. 51, 66, § 50.) The liberal interpretation given by the Supreme Court in Chambers v. City of St. Louis, 29 Mo. 579, to the words “ for maintaining the peace, good government and welfare of the city,” leaves no doubt of the validity of this appropriation. Foundlings are human beings.

Misdemeanor in Office. In Tail v. Dinning, the only matter decided was that between private persons in matters of private right, this court would not exercise original jurisdiction, and that the Legislature had no right to confer it. Surely this doctrine and that decision have not necessarily any application here. This court possesses all of the common-law power that obtained in the Court of King’s Bench.

Charles Circuit Court. The ordinance “for the payment of the State and Railroad indebtedness,”- adopted by the people of the State of Missouri in convention, April 8, 1865, is not in contravention of any provision of the constitution of the United States.

<p>1. Justices’ courts — Misdemeanors — Appeals — Discharge of defendant.'"Where appeal is taken from the judgment of a justice of the peace in St. Louis, on the ground that the case involves a higher grade of misdemeanor than is triable before a justice, the Circuit Court has no right to discharge the defendant. But the case must proceed in some way, either on a new information to be filed, or on the original information made before the justice. If the original information were sufficient, there would be no necessity for filing any other.</p>

<p>1. Witnesses — Testimony, contradictory — Disregarded, when. — If a witness contradict himself on any material point, his testimony may be disregarded.</p> <p>2. JEvidence — Qui tacet, etc. — Statements made in the presence of a party sought to be bound by them, and not denied, are competent evidence against him.</p>

’ Appeal from, Iron Circuit Court. I. The assignment of Johnson Campbell to William Morrison and Guy Bryan, on the back of Evans’ deed, conveyed no legal title. At the most it could only transfer an equitable interest. It was neither executed nor acknowledged, so as to make a copy evidence, nor could an action of ejectment be founded on such a title; .and this is the best title, and indeed the only title, under which plaintiff claims.

<p>1. Cities, actions against — Jurors — Special venire. — In an action against the city of St. Charles, where some of the jurors were residents and tax-payors* plaintiff would be entitled to a special venire for jurors who owned no property in the city. But notice of such venire will not be granted after the jury is called.</p> <p>2. Streets — Become public property, how — Ordinance, 'acceptance of — Dedication. —It is not necessary, in order to constitute a street or alley in a municipal corporation, that the statutory course should be pursued. Any act by the owner setting apart to the public a portion of his property, clearly showing that such was his intention, vesta the use of the property in the public for the purposes indicated ; and’if' actually thrown open, the public may take possession. In such case no ordinance or formal acceptance of dedication is necessary.</p> <p>8. ’ Water-courses — Cities — Improvements — Trial — Verdict, etc. — As a matter of law, a city, in making improvements, has no right to dam up any water-course and thereby flood the land of others, even though the water- ■ course does not form a permanent stream. And a verdict embodying that proposition should be set aside.</p>

<p>1. Bill of rights, section 30 — Proceedings under, imperative.— Section 30 of the Missouri bill of rights, which declares that “ all property subject to taxation ought to be taxed in proportion to its value,” is a prohibition against . taxation in any other mode. The word ought therein used is not directory but mandatory.</p> <p>2. Revenue — Taxation — Exemption — Commutation — Statute, consti'uction of. — Section 40, in regard to the incorporation and regulation of life insurance companies (Wagn. Stat. 752), declaring that the payment of certain fees from the companies shall be received in lieu of taxes, cannot have the effect of exempting them from taxation. That section is rather an exemption than a commutation. But the Legislature has no power, under the present constitution, to exempt property from taxation, or to commute the payment of taxes.</p> <p>3. Revenue — Corporation, property of — Shares of stock — Assessment.—Notwithstanding- that the property of a corporation does not embrace shares of stock, and hence cannot be assessed under sections 23-4 of the statute concerning revenue (Wagn. Stat. 1169), yet, being owned by the company and in its possession, it may be assessed under the general revenue law.</p>

Louis Circuit Court. This is a suit on a special tax-bill issued by tbe city engineer of the city of St. Louis, to defray in part the cost of constructing a street, under the city charter of the city of St. Louis.

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

<p>1. Street opening — City of St. Charles — Circuit Court — Appeal — Certiorari. —Under the charter of the city of St. Charles, section 7, article iv (Sess. Acts 1867, p. 147), appeal will not lie to the Circuit Court from proceedings to condemn private property in that city for establishing or altering streets. Such proceedings can only be reviewed by certiorari. (City of St. Charles v. Stewart, ante, p. 182.) And the action of the Circuit Court in trying such a case de novo is outside of its jurisdiction and void.</p>

<p>1. Instmmmt, lost — Execution, proof of— Evidence, primary and secondary — What permissible. — The establishment of the loss of an instrument will not dispense with the necessity of proving its execution. And the best evidence of this fact which the case will admit of must be produced. But on the failure of better proof, secondary evidence, down to its lowest stages, is admissible. Thus, the copy of the record of a deed proved to be lost may be introduced, the recorder having sworn to his recollection of the original deed and to the fact that the record and copy were faithful transcripts of the original.</p> <p>2. Evidence — Instruments, copies of — Entries, cotemporaneous. — Cotemporaneous entries, not only of acts and occurrences, but of copies of instruments, if made in the course of business, or where they would naturally be looked for, are often received, especially when sustained by other evidence.</p> <p>3. Conveyances, voluntary — Adverse claims — Notice.— Ho notice of adverse claims is required to bind the grantor in a voluntary conveyance of land.</p>

Charles Circuit Court. I. The statements of Chittenden could not have been admitted on the ground of Griffith’s presence and acquiescence in them when made, as it does not appear that he was within hearing of the conversations between Chittenden and Orriek.

I. The creditor, after volunteering relief on professed motives of personal friendship, and thereby evoking from plaintiff an advisory confidence, could not employ such relation to plaintiff’s injury. (1 Sto. Eq.

<p> Jlppeal from St. Louis Criminal Court. </p> <p>I. The indictment fails to charge any offense punishable under the statute. (Rex v. Douglas, Brit. Cro. Cas., Moody, 462 ; Rex v. Goodall, id., Russell & R., 461; Regina v. Johnson, id., 2 Moody, 254; Com. v. Strain, 10 Mete. 521; State v. Green, 7 Wis. 676; State v.( Bonnell, 46 Mo. 395; People v. Gates, 13 Wend. 311; The People v. Haynes, 14 Wend. 564; Rex v. Reed, 7 Carr. & P. 848; Rex v. Dale, id. 352; 8 Cox Cro. Cas. 233 ; Regina v. Evans, 9 Cox, 241; Dillingham v. State, 5 Ohio St. 283 ; Commonwealth v. Drew, 19 Pick. 184-5.)</p> <p>H. The indictment does not allege that McDermott believed’ the false pretenses to be true, or that he was deceived by them, or that he was induced to part with his money by reason of these false pretenses and representations. These are essential allegations. See forms of indictment. (People v. Smith, 5 Parkes Crim. Rep. 491; The People v. Cook, 6 Parkes Crim. Rep. 32.)</p> <p>cited in argument Commonwealth v. Drew, 17 Pick. 183 ; The People v. Haynes, 14 Wend. 555, 559 ; Rex v. Jennison, 9 Cox Cro. Cas. 168 ; Rex v. Douglass, 1 Moody, 462 ; State v. Raule, 14 Conn. 101; Wagn. Stat. 461, § 47; Young v. Rex, 3 T. 98.)</p>

<p>interest of the widow in the real estate of the deceased. 1. Dower properly real estate. — The term “dower” properly refers to tbe</p> <p>2. Dower — household furniture, etc , not dower estate — Construction of statute. — The household furniture, provisions, etc., allowed the widow by statute (Wagn. Stat. 88, $ 33), are no part of her dower proper. She has an absolute property, and not a life estate, in them.</p> <p>3. Dowet — Devise in will not taken in lieu of iy implication. — A devise or bequest in favor of the wife, contained in the will of the husband, will never be construed by implication to be in lieu of dower. The design to substitute the one for the other must be unequivocally expressed</p>

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

Louis Circuit Court. The second instruction asked by defendant and refused is as follows : “If the defendant sustained any damage from the way in which the city contracted for or directed the work to be done, or from the unskillful and improper manner in which the work in question was done, then defendant is entitled to recover such damages as may have accrued therefrom, as fully and completely as if the city was the plaintiff.” relied on City, to use, etc., v. Clemens, 36…

<p>1. Eminent domain — Bridge approaches — Appraisement of land — Verdict of commissioners may be set aside by Circuit Court. — The finding of commissioners appointed to appraise land to be condemned for approaches to a bridge, is not conclusive upon the Circuit Court; but on written exceptions, filed by either party, the court may re-examine the evidence, and, if the verdict of the commissioners was wrong, may set it aside. ("Wagn. Stat. 328, l 4.)</p>

<p>1. Revenue — Rower of taxation may be delegated — Language used must be concise. — The power of the State to tax all professions is unquestioned; and the State may delegate the authority, hut the delegation should be made in clear and unambiguous terms.</p> <p>2. Statute, construction of — General and particular words — Rule as to.— It is an established rule of construction, where general words follow particular ones, to construe the power as applicable to the things or persons particularly mentioned.</p> <p>3. Attorneys at law — License tax invalid — Charter—Rule ejusdem generis.— The charter of the city of St. Louis, approved March 4, 1870, provided (•art. Ill, § 9) that the mayor and city council should have power to license “auctioneers, grocers, merchants, retailers, hotels, * * * hackney carriages, omnibuses, carts, drays and other vehicles, and all other business, trades, avocations or professions whatever.” The profession of “law” was not specifically enumerated in the section. Held, tha't under said provision the city council of St. Louis had no power to pass an ordinance levying a tax on attorneys at law. The rule is, where general words follow particular ones, to construe them as applicable only to persons or things of the same general character or class. And in the ease mentioned, the profession of law was not ejusdem generis, and could not he embraced in the purview of the act.</p>

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

<p> Appeal from Perry Circuit Court. </p> <p>cited in argument Schubart v. Harteau, 34 Barb., N. Y., 447; Signot v. Redding, 4 B. D. Smith, N. Y., 285; Waterm. Set-off, § 6; 1 Yans. PL, 2d ed., 554; Austin v. Beland, 8 Mo. 309; Waterm. Set-off, § 286; Grand Lodge v. Knox, 20 Mo. 433 ; Mcllvaine v. Harris, 20 Mo. 457; 4 Kent, 549; 1 Nash, 104, § 13.</p> <p>cited in argument Sly-back v. Jones, 9 Ind. 470 ; Barhyte v. Hughes, 33 Barb. 320; Waterm. Set-off, etc., 154-5, 149, 150, §§ 124-5 ; 49 111. 90 ; 48 111. 408 ; 42 111. 500; 3 Gill, 227; Barb. 320 ; Pratte v. Menkins, 18 Mo. 158.</p>

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

<p>1. Revenue — Banks — Taxation, surrender of — Power to increase. — The charter of the Manufacturers’ Savings Bank of St. Louis declared that one per cent, of the net profits of the bank should be paid to the State, but contained no negative or restrictive words indicating any intention of the State to surrender the power of taxation if it saw fit to do so. Held, that clause of the charter referred to was a contract between the company and the State, but that an ordinance imposing a license in addition to the above one per cent, was not unconstitutional as impairing its obligation. The rule is that the Legislature has full power and control over the subject of taxation, and that this power will never be considered surrendered unless it is done expressly or by necessary implication in the charter itself.</p> <p>2. Revenue — Power of taxation, delegation of. — Where the Legislature has the power to tax an institution it may delegate that power to a city corporation.</p>

Louis Circuit Court. The plaintiffs’ assignors having failed to insure the property in the name and for the benefit of plaintiffs, as ordered by plaintiffs, became liable to them for the full value of the ice lost. (Sto. Agency, §§ 110, 111; 2 Pars.

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

LLppeal from St. Louis Circuit Court. The dowress should have been permitted to show at what rate she could have rented the land had she been in possession from November, 1855, to date of injunction, with power to fence, clear and cultivate the land as lands in the neighborhood are used.

Louis .Circuit Court. I. It is unnecessary for defendant in this case to claim, and he does not, that the State has a preference over other creditors, for a debt due to it which arises ex contractu, and which is therefore due to it in its corporate capacity. (6 Gill & J. 205, 230.) II.

<p>1. Undue influence — Donations to persons in relation of trust, etc. — Donations to persons sustaining the relation of confidential friend and adviser of the donor, will he watched with great jealousy, and will be set aside on the discovery of the least fraud. Every presumption will be against them.</p>

<p> Jippeal from St. Louis Circuit Court. </p> <p>The defendant was not authorized to proceed ex parte in the appraisement. (Peters v. Newkirk, 6 Cow. 103 ; Elmendorf v. Plarris, 23 Wend. 631-2; Ryder v. Jenny, 2 Robertson, N. Y., 58, 70; Caldw. Arb. 119, 120-1; Merrifield v. Cobleigh, 4 Cush. 184 ; Wray v. Rhinelander, 52 Barb. 566 ; Anderson v. The City of St. Louis, 47 Mo. 479.) When from any want of foresight of the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to supply the defect or furnish the remedy. (Quick v. Stuyvesant, 2 Paige, 84 ; Chase v. Barrett, 4 Paige, 148 ; Douglass v. Viele, 3 Sandf. Ch. 439, 448 ; 1 Sto. Eq. 78, note 4 ; Backus’ Appeal, 58 Penn. 186, 194; Swift v. Larrabee, 31 Conn. 225, 237.) An infant cannot bind himself by a submission of his rights to arbitration, nor can this want of capacity be cured even by the chancellor, unless' there is a suit pending in which the infant is a party. (Jones v. Payne, 41 Ga. '23 ; Bill. Awards, 34; 1 Am. Lead. Cas., 5th ed., 300 et seq.; Perry Trusts, 52.)</p> <p>cited Brown v. Haines, 12 Ohio, 1; 2 Sto. Eq. 100, § 771; Kendall v. Almy, 2 Sumn. 293 ; Rogers v. Saunders, 16 Me. 97; Lewis v. Woods, 4 How., Miss., 86; Stevenson v. Dunlap, 7 Monr. 142; Tyl. Inf. 158, , 172, §§ 108, 119; Scott v. Houghton, 2 Vernon, 560.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>“ The intention of the Legislature is to be found in the statute, itself, and there only.” (Sedgw. Stat. and Const. Law, 230, 243 ; In re Powers, 23 Verm. 265; Hadden v. The Collector, 5 Wall., U. .S , 111; Fisher v. Blight, 2 Cranck, 358, 399 ; Brown v. Bough, 14 Pet. 198 ; Ellis v. Payne et at., 1 Pick. 43 ; Story on Cont., § 624.)</p> <p>“But bare knowledge on the part of a vendor, that the vendee intends to put the goods to an illegal use, will not vitiate the sale and deprive the vendor of all remedy for the purchase-money.” (See Kreiss v. Seligman, 8 Barb, and authorities cited.)</p>