Volume 51 — Missouri Reports

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

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

<p>1. Collector, bond of — Motion for judgment, form of. — In a motion for judgment against a collector and his sureties, under the statute, for moneys due the State (Wagn. Stat 1209, $ 128), the motion should describe the official character of the collector, the specific collections made by him, and his default, and the fact that those sought to be charged are sureties on his official . bond. But it need not set out the bond in detail. In such case the formalities of ordinary pleading are not required.</p> <p>2. Collector, action on bond of — Defenses — Illegal collections — Estoppel.— A county collector is estopped from setting up, as a defense to an action on his bond therefor, that he acted illegally in collecting moneys, and for that reason is not officially responsible.</p> <p>3. Revenue — County jails — Taxes may be levied for.— County Courts may levy taxes for the building of county jails. The statute ("Wagn. Stat. 402) contains no provision which forbids such levy.</p>

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

<p>1. Criminal law — Jury, challenges of. — In a trial for murder, defendant is entitled, under the statute ("Wagn. Stat. 1102, § 4), to a full panel of forty qualified jurors before he can be compelled to make his peremptory challenges.</p> <p>2. Ciminal law — Murder — Evidence — Testimony of wife for co-defendant of husband. — Where two persons are jointly indicted for murder, and they are tried separately, the wife of one is a competent witness for the other.</p>

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

<p> Appeal from Cape Girardeau Circuit Court. </p>

<p>1. Bills and notes — Note given payee for third party, without consideration as to payee — Trusteeship, etc. — “Where it was agreed, at the time of the execution of a note, that either it or its proceeds should go to a third party, ■ in such case the latter would be the substantial creditor; and if the payee gave no consideration for it, he would be a mere naked trustee, and neither he nor his assigns could set up an interest against the real beneficiary.</p> <p>2. Garnishment — Note — Payee, agreement of as to maker — Estoppel, etc.— In garnishment proceedings wherein the maker and payee of the note were both made defendants, if the payee, by an agreement or arrangement, had the garnishment proceedings dismissed as to him, with the understanding that the judgment should be taken against the maker, he could not afterward be heard alleging that he was not bound thereby.</p>

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

<p>1. Ejectment, judgment in — Subsequent suit — Defenses, etc. — A judgment in ejectment is no bar to another suit, or to defenses set up in a subsequent suit, unless the titles and defenses are precisely the same as in the first suit.</p> <p>2. Ejectment — Plaintiff in, must stand on his own title. — A plaintiff in ejectment must first show title in himself before he can have any standing to disturb defendant’s possession.</p> <p>3. Lands and land titles — Grant of land to States — Entry with register, etc. —A grant of land to the State, under the act of September 28, 1850, for reclamation of swamp lands, reserved it from sale by ordinary entry with the United States register or receiver.</p>

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

I. Corporations, like natural persons, are bound by the acts and contracts (though not under seal) done by their agents and made within the scope of their authority, and parol evidence is admissible upon the agency and authority. (29 Mo. 68 ; 33 Mo. 354; 28 Mo. 415-491; 30 Mo. 118, 452 ; 38 Mo. 228 ; 5 Kent’s Com. 292 ; Ang. & Ames on Corp., §§ 294, 297; Sto.

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

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

Error\ to St. Francois Circuit Court. At the time this suit in the Probate Court was brought, Mrs. Orten her husband and Mrs. Conway, children of deceased, Spradling, were all dead, and the design of the petition was to make the children of Mrs. Orten and the children and grandchildren of Mrs. Conway, grand and great-grandchildren of said Spradling, account for advancements which it was alleged their respective mothers had received in the lifetime of William Spradling. cited…

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

<p> Error to Cape Girardeau Circuit Court. </p>

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

No formal motion for new trial was necessary. There was but one point in the ease, and exceptions were saved to the ruling of the court below.

jError to Cape Girardeau Court of Common Pleas. Fraud charged in general terms is a good defense, and it is error to exclude proof of it (Edgell v. Seigerson, 20 Mo. 494), more especially where, as in the case at bar, a replication had been filed to this count.

The information stated facts sufficient to show to the court that the lot had escheated to the State (Wagn. Stat. 584, § 1; id. 586, § 10), and upon the death of Bartholomew Murphy the title to the lot vested in the State. (Farrar v. Dean, 24 Mo. 16.) It is true that the title to land vests in the State by escheat upon the death of the person last lawfully seized, upon the contingency mentioned in the statute (Wagn. Stat. 585, § I), without inquisition of office found.

The act (see Sess. Acts 1868, p. 263) is unconstitutional. If 'section 27 o£ article it. of our constitution means anything, this act must fall. The words “ the general assembly shall pass no special law for any case for which provision can be made by a general law, * * * for all cases where a general law can be made applicable,” are clear and explicit.

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

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

Upon the face of the note, Farrell was not the payee, nor was he in any legal sense an indorser. The law has fixed and settled the prima facie contract of the parties, and in order to prove a different contract or promise to pay, defendant should have pleaded it.

<p>1. Bonds may he reformed hy courts — Evidence of mistake should he clear, etc. — Courts may reform bonds, both as against principals and sureties. But to authorize such steps, the evidence must be unequivocal to show the existence of the mistake and its precise character. T)ms a court may insert the penalty in a bond, where the same was omitted clearly by mistake, and the extent of the liability of those who executed the instrument can be definitely ascertained.</p>

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

<p>Judgment affirmed.</p>

<p>1. Fraud, Limitations — Statute of — commences running, when. — In actions for relief on the ground of fraud, the statute of limitations begins to run from the discovery of the fraud, and where the fraud is connected with the eon- ' veyance of realty, ten years constitutes the bar. (Hunter vs. Hunter, 60 Mo., 446.)</p>

<p>1. Judgment affirmed for want of exceptions.</p>

cited Revely vs. Skinner, et dl., 83 Mo. Rep., pages 98 and 99; 5th Howard, P. R-341. In the “ agreement” there is no admission that the plaintiff’s case was proved, or that any fact on which it depended was true. ' The sense of the agreement is “ that the witnesses would swear in this case as in the one just tried’,’ not that plaintiff’s witnesses had proved a singly fact. The case of Revely vs. Skinner, 33 Mo., p. 98, is not therefore in point.

1. The fee of the Circuit Attorney in this case, is controlled by the third clause of § 2, ~W. S., 619. 2. The defendant was indicted under § 27, W. S., 496. The indictment contained four counts, and charged the commission of four different and distinct offenses.

<p> Error to Sle. Genevieve Circuit Court. </p>

<p>I. Justice’s Courts — Attachment—Affidavit, amendment after levy.</p> <p>In an attachment suit before a justice, that officer would have power to allow the affidavit for attachment to be so amended after the original levy, as to authorize the seizure of property otherwise exempt from attachment, and the amendment would relate back to the date of the original levy.</p>

<p>I. Sill of Exceptions — Extension—Signing of. — A bill of exceptions cannot be signed after the extension agreed upon has expired.</p> <p>2. Practice, civil — New trial — Exceptions—Appeal, eta. — Where no motion for new trial is filed, and the errors complained of arise upon the trial, and should be preserved by exceptions, appeal will not be entertained.</p>

<p>1. Judgment on demurrer. * What will not support an appeal. — A record entry that the “demurrer was by the court overruled ; to which ruling the defendant at the time excepted; and defendant filing no further pleadings, judgment is rendered for plaintiff,” is no such judgment as will support an appeal.</p>

<p>1. Sales, inadequacy of prize, eta. — Inadequacy of price taken by itself is not sufficient ground for setting aside a sale of land, but, when coupled with other facts it is a circumstance entitled to consideration.</p> <p>2. Lands, sale of — Bidders kept away — Competition repressed, eta. — Where evidence shows that by the acts, connivance and representations of a purchaser, bidders were kept away from the sale of certain land; that competition was repressed when the sale took place, and that, except for these practices the land would have brought a price greatly in excess of that actually realized, the sale will be set aside.</p>

jError to Scott Circuit Court. Although as a general rule husband and wife cannot testify against each other, this rule only excludes confidential communications and does not extend to facts equally accessible to any person not standing in that relation. 1 Greenlf. Ev. § 254. In Hoffman v. Hoffman, 43 Mo. 551, top of page, it seems the plaintiff 'testified.

The mere fact that defendant may have visited this state for a short time without changing his residence, did not in any sense affect the operation of the Statute of Limitations.

<p>1. St. Charles. Charter of. Ordinance on Wagons, etc. — So much of the ordinance of the city of St. Charles requiring a license tax for wagons used for pay, as attempted to impose a tax upon wagons of outside residents engaged in hauling into and out of the city, was void as not being authorized by the charter of that city, and the Legislature could give the City Council no authority to pass such an ordinance. The tax being upon outside citizens and for the benefit of those living in the city, would be in eifect taking property for private use; that is, for the use of a particular community of which the outside citizens form no part.</p>

If the use limited by deed expire and cannot vest, the use reverted back to ■ the grantor who created it. (4 Kent? 298, 126, 125; 5 Pick, 528; 11 Paige, .414; 13 Ills.? 465; 11 Ills.', 339 ; 5 Gray, 17; 5 Allen, 540 ; 21 Peck, 215.) The congregation should have built upon the lots within a reasonable time. (2 Met., 495 ; 5 Peck, 528.) The deed is not conditional and the court properly declared the law. A deed in trust and confidence is not conditional.

<p>1. Notes and Bills — Agency—Descriptio personae__A note made to “ C. H. Morris, agent,” is payable to him personally. The word agent after his name is merely descriptio personae.</p>

<p> Jlppeal from Oape Girardeau Court of Common Pleas. </p>

<p>1. Administrator-Failure of, to give notice of his administration — Effect of.— The failure of an administrator to file a notice of the fact of his administering on an estate as contemplated by the statute (Wag. Stat. 122, \ 13) will not invalidate his acts in the premises.</p> <p>2. Administrator — Petition of for sale of land--Order of sale — Failure of to specify lands to he sold~-Effect of — Where the petition of an administrator, praying for the sale of certain lands, and the appraisement set out the mumber, description and location of the land, and the order of sale referred to and was based upon the petition and description, the sale is not void because the order did not specify and set out the land to be sold.</p>

I. The statute of our State nowhere directs that in criminal proceedings of bail, no person shall be accepted as bail who is not possessed of property greater than the amount exempt by law from execution. (W. S. 1078, § 30.) II. The enforcement of the homestead law in cases like the one at bar, would interfere with and retard the administration of criminal justice. Its enforcement in such cases is essential to the soverign capacity of the State, (Broom’s Legal Maxims, 5th Am.

<p> Appeal from the Adair Circuit Court. </p> <p>There is no light to enter on an enclosure until the money is actually paid in. (Walther vs. "Warner, 25 Mo., 277-88-9-90-91; Wag. Stat., 327, § 3.)</p>

If the adjacent land owner may take two feet of the corporation’s land by setting his fence off the line, he may take ten or any greater number of feet, or, if it does not operate as a robbery of the corporation of its land, it will at least impose upon it the burden of moving back or moving out a fence it has been compelled to pay for, to its line, in order to save its land for use, and from the operation of the statute of limitations.

<p>I, Practice — Supreme Court — Exceptions, etc. — The Supreme Court will not ex amine law points not raised by instruction or exception in the court below.</p>

<p>1. Railways — Mo. Pacific, ordinance 1865, imposing tax on road — Act Feb. 10,18<54> etc., not a contract limiting taxing power — The Pacific Railroad Company of MissourHs not exempt from tlie tax of ten or fifteen per cent, imposed upon it by the ordinance of April 8th, 1865, (Gen. Stat. 1865, p. 52.) Nor does the act of Feb. 10, 1864, (Sea. Acts 1863-4, p. 50) amount to such a contract, as limite the right of the State to impose the tax. (North Mo- R. R* Co. y. Maguire, 49 Mo., 490, affirmed).*</p>

<p> Error to Cape Girardeau Court of Common Pleas. </p>

<p>Practice, civil — Demurrer, waiver, etc. — A party failing to except on demurrer overruled, and answering over, cannot afterward raise the points involved in the demurrer, before the Supreme Court.</p>

<p>1. Practice — Supreme Court — No appeal etc. — Where the record of a case brought up from a lower court shows no allowance of an appeal or writ of error, it will be stricken from the docket.</p>

<p>1. Practice, civil — Appeal—Affidavit—Informality of — An affidavit for appeal is not invalidated from the fact that the signature of deponent was through mistake placed.below the jurat instead of being in its proper place.</p>

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

<p> Appeal from Lousiana Court of Common Pleas. </p> <p>cited Stephens vs. Montgomery, 20 Ark. 373; Carney vs. Hopple, 17 Ohio State, 16.</p> <p>cited Chauvin vs. Wagner, 18 Mo., 531.</p>

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

<p>1. Justice's Court — Appeal—Security for Costs — Non-residence.—On appeal from a justice, appellant asked that respondent be ruled to give security for costs, on the ground that he had, pending the appeal, become'a non-resident Rule not granted. (Wag. Stat. 842, 343.)</p>

I. To the allegations of the answer there was no reply, and it stands confessed that the warrants were obtained by fraud and in violation of law, and that no consideration was paid therefor. (Gen. Stat. 1865, p. 661, § 36 ; Robards vs. Munson, 20 Mo., 65 ; Ennis vs. Hogan, 47 Mo., 513.) II.

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

<p>1. Action for Purchase Money — Special Verdict — Specific Performance— Judgment for, may be corrected, when. — In suit by the vendor of certain lands, against the vendee thereof for a portion of the purchase money, plaintiff prayed for a decree ordering defendant to pay a portion of the amount to a third party. A special verdict and judgment were rendered accordingly. Held, that the suit was purely a legal one and not an action for specific performance. But that the error was an informal one and might be corrected on application to the court, by the substitution in place of the special decree, of a general judgment for the amount ascertained by the verdict.</p>

<p>1. Whaley vs. Whaley, ante, p. 36, affirmed.</p>

<p>1. Criminal law — Dying declarations — When admissible as evidence. — In order to render dying declarations admissible in'evidence, it must appear that the person making them was under the belief that his dissolution was near at hand, and that he had abandoned all hope of recovery. (State vs. Simon, SO Mo., 370, affirmed.)</p> <p>2. Practice, criminal — Instructions—Dying declarations — Credit to be attached to, to be determined by the jury. — An instruction in a murder trial, that the dying declarations of the person killed as to the circumstances which produced his death, should receive the same credit as his testimony if taken under oath, would be erroneous. The only province of the court is to determine the admissibility of such declarations. The degree of credit to he attached to them should be left to the jury to determine.</p>

<p>1. Judgment by default — Diligence—Meritorious defence — A judgment by default regularly rendered, will not be set aside unless due diligence be shown, and an affidavit of a good and meritorious defence be filed.</p>

I. The landlord can. enforce such lien only by a strict compliance with the statutory method for such actions. (2 Wag., 881, §§ 26, 27; Schell vs. Leland, 45 Mo., 294). II.

<p>1. Married women — Estates of — Debts created by trustees, do not mmrnber.— The law ia well settled that a married woman holding separate property, may create debts in reference thereunto and so bind it in equity for their payment. But the simple fact, for example, that her trustee creates debts for improvements ordered by him on her property, does not of itself create a lien on the property without any deed or other appropriate instrument of writing executed by him.</p>

Genevieve Circuit Court. I. Tbe evidence shows the signing of the promissory note by the defendant Johanna Hartman before the delivery thereof to the plaintiff. From the circumstance of the signing of the note by the defendant before delivery to plaintiff, the law-fixes the relations of the parties to the instrument and to each, other, and presumes that the defendant was a maker or comaker.

<p>1. Practice, civil, Supreme Qoivrt — Appeal—General exceptions, effect of. — A general statement at the end of a bill of exceptions, that to all the rulings, orders and judgments of the court the defendant excepted, is insufficient and will not be noticed by the Supreme Court. The exception must be saved to the specific ruling in the progress of the cause.</p>

Prom the statement of defendant in Error, it appears that Houck did not claim to represent Hastings, Britton & Co., and that they took no part in the matter of the assignment, and were not represented in it, except that Houck agreed with Whitelaw, Garrett & Co., to see to it that H., B. & Co. should receive their fro rata share of the proceeds.

<p>1. Practice, criminal. — Motion in arrest, eta. — No plea entered. — Where the accused in a criminal trial puts in no plea, and the plea of not guilty is not entered in his behalf, it is error, for which motion in arrest will lie. But in granting the motion in arrest, the court has no right to enter a judgment discharging the prisoner. The proper course in the premises would be to set aside the judgment and order a new trial on the indictment.</p>

Francois Circuit Court. I. The covenants, in the bond for a deed, of defendant in error’s testator, and the execution of the notes by plaintiff/in error for the payment of the purchase money, were, unquestionably, mutual and dependent contracts and covenants.

<p>1. Practice, civil — Pleading—Different counts — Suit on contract containing more than one stipulation — Variance, etc. — In suit on a note wherein defendant promised to pay a certain sum (together with costs and attorney’s fees,) it was held no variance that the first count omitted, and the second count set forth the stipulation as to payment of costs, etc. In such' case the second count might be treated as a continuation of the first, or as part of it and both might be considered as one count.</p> <p>2. Contract, stipulations in — Failure to sue upon all — Effect of. — A party need not sue upon all the stipulations of a contract. But if he sues upon one and neglects to sue upon the other stipulations contained in the same contract, judgment in the first suit might be a bar to an action on the omitted stipulations.</p>

The writ of scire facias is a judicial writ; no petition is necessary to base it upon; and it is a continuation of the former suit; 2 Tidd, 1096, dtk American edition; Humphreys vs. Lundy 37 Mo.,… Held: that where by the testimony of the keeper of the record there was no other judgment but the one in question on which the execution issued, though there was a variance in amount and names of parties to the judgment, the identity of the judgment was established.

It is not necessary to allege that the plaintiff had taken d/ue care, that is matter of defense. Shearm. & Redf. on Negligence, 46, §44 and note 2; 2 Chitty Pleadings, 647, et seq., for forms of Declaration. The burden of proof is on the complainant to prove, that he himself was in the use of ordinary care and without fault at the time, directly contributing to the injury complained of. Warner vs. N. Y. Cent.

I. Sec. 13, Art. I of the Administration Act relates wholly to eases where the wil‘1 is first presented for probate, and makes provisions only where the nominated executor for the time being cannot be appointed. This construction gives to the statute its full force and does no violence to its language, as does the construction placed upon it by respondents.

I. The statute only authorizes the court to act on the suggestion and upon the affidavit of a person interested in the debt or liability secured by the deed of trust.

The judgment of condemnation in this case is void, and may he attacked collaterally. See the following authorities: (Boswell’s Besses vs. Otis, 9 Howard, 336; same case, 18 Curtis, S. C., 168 ; Harris vs. Hardeman et al., 14 Howard, 334 and authorities cited; same case, 20 Curtis, TJ. S., 206; Fithiau vs. Monks, 43 Mo. Rep., 520, 521, 522 and the numerous authorities cited; 44 Mo., 540 ; City of Boonville vs. Omrod’s adm., 26 Mo., 193 ; Cooley on Const.

It is submitted that in issuing warrants to the plaintiff to make up his loss, the county court did not abuse its discretion.

A sheriff’s deed to the purchaser of land sold under execution, must contain a description of the land sold. (1 W. S., 612, § 54.) The description must be identical with that contained in the levy and advertisement. Particularly is this required, where a sheriff executes a deed for a predecessor in officer, under the statute. The deeds offered in evidence were competent.

<p>1. Partition Sale — Motion to set aside — Affidavit, etc. — In proceeding on motion to set aside the sale of land in partition, the Circuit Court must he allowed to exercise a sound discretion in regard to the sort of proofs to be used. And where they adopt the practice of allowing affidavits to be read pro. and core., the Supreme Court will not interfere.</p> <p>2. Partition Sale — Reports as to time of sale — Motion to set aside sale, etc.— Where bidders were kept away from a partition sale by rumors that the land would not be sold till the day following, and by reason thereof the land sold at greatly reduced rates, Semble that the sale ought to be set aside; and it is no matter how the reports got into circulation; whether by the agency of the purchasers or otherwise.</p> <p>3. Partition Sale — Minor heirs not brought in court — Sale set aside, etc. — A. partition,sale may be set aside, where it appears that a portion of the minor heirs were not properly brought before the court.</p>

The judgment is on its face void, as the transcript does not show that the service was made in time to give the justice jurisdiction. (Sanders vs. Rains, 10 Mo'., 770 to 73.) Jurisdiction will not be presumed as to inferior courts, (Bersch vs. Schneider, 27 Mo., 101.) The Circuit Court erred in not permitting us to show that we had not been served with process. (Van Rensselaer vs. Ogden, 7How. Pr., 297; Wallis vs. Lott, 15 How.

By virtue of the administrator’s deed, Brandt acquired Thruston’s inchoate title to the land, and nothing remained for him to do in order to perfect the title in himself, but to discharge the county’s lien on the lands for the purchase money ; and having done so he takes the land free from any claim for dower.

Jippeal from Howard County Circuit Court. I. The declaration in the deed of'Lisle, that part of the purchase money was paid and the balance secured to be'paid, was a notice to Peacher of the vendor’s lien, and retained the same against him and every other person claiming through that deed. (Johnson vs. Gwathmey, 4 Lit. Ky., -317; Thornton vs. Knox, 6 B. Munr., 74.) II.

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

Jippealfrom Pettis County Circuit Court. I. The deed offered in evidence is in the usual form, duly recorded in the office of the Register, duly acknowledged by the Register, and duly recorded by the Recorder of Pettis. By the statute, such deed is made prima facie evidence of title. II.

The judgment could have been set aside for irregularity wpon motion, at any time within three years, but was not void. And unless the judgment was absolutely void a title passed under the proceedings.

The paper sued on was not the note of Ewart, his mind gave no assent to its creation. Nor was he guilty of laches so as to bind him. Nor is genuineness of signature alone sufficient to bind him. (State Bank vs. McCay, Am. Law Times, April 1871, Yok 4, pages 76, 79, 80 ; Whitney vs. Synder, reported in Albany Law Journal 7th January, 1871, No. 1, Yol. 8, p. 3 ; Foster vs. MacKinnon, 4 English, Com. PL, 704; Awde vs. Dixon, 6 Exch.

<p>Deeds — Ambiguity.—Recital of county, eta. — Where land is accurately described in a deed by section, township and range, and the deed is regularly ac knowledged by a Justice of the Peace of one of the counties of this Stat®, it is not incompetent as evidence from the further fact that it does not recite the names of the county and state in which the lands are situated.</p>

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

The demands which can be legally presented for allowance, under the statutory notice to the adminstrator, arise on contract alone, either express or implied, or upon a judgment obtained for the same. And for trespasses to property the damage must be first ascertained.

Notes, bonds and bills are such personal property as the law (W. S., 88, § 35,) contemplates in giving a widow four hundred dollars out of the personal property belonging to the estate of her deceased husband. ' I. In allowing the widow to choose the additional personal property not exceeding the appraised value of $400, the statute (W. S., 88, § 35) obviously contemplates choses in possession, but not choses in action. II.

<p> Error to Cass County Circuit Court. </p> <p>I. This administrator had given bonds to “ pay and deliver ail money of said estate, ” and notwithstanding the decision in State ex rel., Townshend vs. Meagher, etal., 14 Mo., 356. We submit that, under the terms of his bond (1 W. S., p. 73, §§ 17, 18,) he is bound to higher responsibility than an ordinary bailee, and cannot discharge such liability, by showing that the money was stolen. (Boydenvs. United States, 13 Wall., 17; JBevans vs. United States, id., 56; United States vs. Prescott, 3 How., 578 ; United States vs. Keehler, 9 Wall., 83; United States vs. Dashiel, 4 Wall., 182 ; Commonwealth vs. Comly, 3 Penn. St., 372; Muzzy vs. Shattnck, et al., 1 Denio, 233 ; • Halbert vs. The State, 22 Ind., 125; Thompson vs. Board of Trustees, 30 Ills., 99.)</p> <p>II. But this administrator did not exercise the care, skill and diligence required of a bailee for hire. The money came in his possession in the fall of 1860, and when he saw the disturbed condition of the country coming on, the following spring and summer, it was carelessness, and negligence to keep this amount of money in a bureau drawer at a country residence. He could have deposited the same at some place beyond the impending and apparent danger, and it was negligence not to do so. (State, ex rel., Townshend vs. Meagher, sufra; Tracy vs. Wood, 3 Mass. C. C., 132; 2 Williams on Executors, 1636 to 1648; Foster, el al., vs. Davis, 46 Mo., 268.)</p> <p>III. The judgment of the Circuit Court was clearly erroneous in not allowing interest on the amount found due, at least from the date of the final settlement of the administration. (Foster, et al., vs. Davis, 46 Mo., 271.)</p> <p>I. Defendant in Error was rightfully allowed credit by the voucher numbered 17, for $444.00. The testimony shows that Defendant in Error took the best care of the estate that he could do, under the circumstances. The facts, in this case, are materially different from those in the cases reported in 44 Mo., page 356 and 46 Mo., page 268. The facts in this ease bring this party clearly within the rule there stated, as exempting persons holding fiduciary relations to money or'property from liability.</p>

<p> Error to Lafayette Common Pleas Court. </p>

<p>1. Principal and agent — Action by attorney against agent based on false repre mentations — Measure of damages, etc. — Where an agent of a bank, by-means of false representations as to his authority to employ attorneys for his principal, secured professional services for the bank in sundry attachment proceedings; and on suit brought against the bank by the attorney for the value of his services, it turned out that the agent had no such authority as represented, and so the bank could not be made responsible.</p> <p>Held, That the attorney had his action against the agent personally for the value of his services.</p> <p>And that his petition would not be- held bad on demurrer for misjoinder, because it included counts for services in the different attachment suits; said suits appearing to have been brought under the same employment:</p> <p>And the measure of his damages would be the reasonable value of his services as attorney, together with the actual amount of his costs incurred in the suit against the bank.</p>

I. The note was endorsed to the plaintiff before maturity, and even though the words “ten” and “date” were added without the knowledge or consent of the defendants still they are liable; for the plaintiff was an innocent holder for value. (Isnard vs. Torres, 10 Louis, An., 103., Yisscher vs. Webster 8 Cal., 109.) II.

<p>1. Agency — Bills and notes — Draft-Money paid collector by mistake — Collector liable, when. — A draft drawn by A. uponB., by inadvertence of the collector, was presented to C., and paid by him, under a mistaken impression as to his liability, and remitted to A. by the collector before the mistake was discovered. Held, that as the money was paid by C. and received by the collector under a mutual-mistake as to the facts, the .latter would be liable to the former in an actien for money paid. In such case, it makes no difference that plaintiff had the means of knowing of the error, and might by diligence and care have avoided the payment.</p>

The Circuit Court in sustaining the demurrer, disregarded the 8th section of chapter 161, page 151, of the General Statutes, which authorizes actions concerning the separate property of the wife to be prosecuted against her alone. And the session acts of 1868, p. 87, gives her the right to defend by attorney and to be sued alone when she is defendant only.

I. Any act by which the person named as trustee, manifests an intent to acquire or exercise any influence in the management of the trust property, will tend to fix upon him the responsibilities of the trust. (Tiff. & Bull., Trusts and Trustees, oil; Hill on Trustees, 4th Am. Ed., 215; O’Neil vs. Henderson, 15 Ark., 235; Montford vs. Cadogan, 17 Yes., 488, and same parties 19 Yes., 638.) And certainly five years possession is sufficient.

I. If a covenantee surrenders to one having a paramount title after the person holding the paramount title has hostilely asserted the same, he may maintain his action on the covenant in the deed but if he does so without actual eviction he takes on himself the burthen of proof that the covenantor at the date of the deed had no title, and this he must prove affirmatively. It is not enough that he show title in another person.

<p>1. Trustee — Suit by — Mention of beneficiary in caption. — In suit by a trustee, it isnot necessary that the name of the beneficiary should appear in the caption even, where the trust is an express or,e.</p> <p>2. Probate Court — Final judgment, appeal etc. — On appeal from proceedings brought in a Probate Court to establish n demand against the estate of the deceased where the Circuit Count merely renders a finding' as to the amount, without entering a final judgment, no appeal will lie.</p>

I. The application for a change of venue, if considered at all, must be either sustained or overruled, and if sustained, a change of venue should have been awarded to another court. (W. S., 1356, § 4.) It was not transferring the cause to another court or awarding a change of venue in any sense, to simply substitute another person for the Judge as was done. II. The court had no authority to appoint any person to act as Judge, and sit as a court for the trial, of the cause.

Jlppeal from, Newton Circuit Court. Plaintiff as administrator, sued Cloud & Ritcby on a note and certain account, due to the firm of Caynor & Co. Other . facts appear in the opinion of the court.

I. If ten years had not elapsed between the maturity of the note and the death oí the maker, or grant of the letters of administration, then it was not barred by the ten years statute, for as soon as Gay died, the statute ceased to run until an administration was had on his estate. The plaintiff certainly had the right to prove facts which would take the case out ot the statute.

<p> Appeal from Laclede Circuit Court. </p> <p>I. Appellant was within the meaning of the statute, a non-resident of Laclede county, bat was a resident of St. Louis county. (Conn. R. R. vs. Cooper, 30 Yermont, 476; 2 Redf., on R. R., 384; Thorn vs. Central R. R., 2 Dutch N. J., 121; R. R. Co. vs. Alexandria, 17 G-ratt., 76; Jenkins vs. California Stage Co., 22 Cal. 537; How., Pr., 149; Sangamon county R. R. vs. Morgan county 14 Ills., 166.)</p> <p>1. Appellant was a resident of Laclede county within the meaning of Sec. 3, p 847, "Wag. Stat. In legal contemplation a railroad resides in any county through which its road passes. (Bristol vs. The Chicago and Aurora R. R. Co. 15 111., 436 Baldwin vs. Miss. & C. R. R., 5 Clark (Iowa) 518; Rich-; ardson vs. Rurlington R. R. Co., 8 Clark (Iowa) 260; Crofut. vs. Brooklyn Ferry Co. 36 Barb. 201; See also Farnsworth vs. Terre Haute and Alton R. R. Co., 29 Mo., 75; Androscoggin and Kenebec R. R. Co., vs. Stephens, 28 Maine, 434; Belden vs. New York and Harlem R. R. Co., 15 How., Pr., 17.)</p>

<p>1. — Railroads —Freights — Transportation — Fressm-e of business — Inodeqaacy of rolling stoek. — Where, by reason of unusual pressure of busjpess, the rolling stock of a railroad is inadequate for the transportation of freight, the comnany may decline to receive it, without incurring any liability; but where the freight is received and shipped, the railroad must forward it without delay, or answer for damages caused .thereby. And in such case the measure of damages will be the difference in the price of the goods when they ought to have been delivered, and when they were actually received at their place of destination.</p>

<p>1. Judgment of Circuit Court — Pleading as to allegations cmicerning. — In pleading the judgment of a Circuit Court, it is not necessary to aver that it gave a valid judgment. The mere allegation that it gave judgment is sufficient.</p> <p>2. Damages — Land—Sale of — False Representations Semble that persons conspiring together by their false and fraudulent representations, causing land to be sold at a sacrifice, will be liable in damages for the injuries done.</p>

<p> Appeal from, Polk Circuit Court. </p> <p>cited: Logan vs. Small, 43 Mo., 254; Franz vs. Hilterbrand, 45 Mo., 121; McKeon vs. Citizens Railway, 42 Mo., 80; (latter clause on page 88.) ■</p> <p>cited: Allred vs. Bray, 41 Mo., 485; Franz vs. Hilterbrand, 45 Mo., 122; Walker vs. Bprland, 21 Mo., 289; Goetz vs. Ambs, 27 Mo., 31; Friedenheit vs. Edmonson, 36 Mo., 230.</p>

<p> Appealfrom Polk Circuit Court. </p> <p>The order of publication made, and notice of suit published, do not state the property of defendant, has been or is about to be attached.</p> <p>The publication is within the spirit and intent of the statute of 1855, and literally embraces the law in the statute ot 1865, which only requires an order “notifying them of the commencement of the suit and stating briefly the object and general nature of his petition.” (W. S., 1008, § 13.) The statute does not make it essential that the clerk making the order, should insert the words, “That his property has been attached.” — (Sec. 23 p. 246.)</p>

If the bond sued on is not a good statutory one, yet it is a good voluntary and common law bond, and the respondent will not be permitted to complain. (State to the use, etc., vs. Berry, 12 Mo., 376; 7 Mo., 458; Barnes vs. Webster 16, Mo., 258.) The breach is well assigned, (12 Mo., 376; Barnes vs. Webster, 16 Mo., 258.) The evidence excluded was competent under the pleadings.

Plaintiff asked declarations of law to the effect “That said Louisa T. Campbell under the said will took but a life estate in said lands; that her deed to Holland conveyed only a life estate, and such other as she had inherited from'her children, who had died since her husband’s death and before the delivery of said deed; that plaintiff was entitled to recover the lands sued for, except such portions of the same as Louisa T. Campbell had inherited from her children.” * * * *…

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

<p>1. Attachment writs. — Service by Elisor. — Where there is no sheriff or coroner in the county, a writ of attachment may be served by an Elisor appointed by the court.</p>

The United States Circuit Court has always had the right by the various acts of Congress from 1798 to the present time, to prescribe rules for its action, and to authorize the sale of real estate at a Circuit Court or County Court, and the rules of the court, clearly show it. Such has always been and is now the rule, and sales are constantly made at terms of County Courts.

I. The law is well settled that where, by a regular judgment and execution, the sheriff is invested with the power to séll, any irregularity in selling on a day different from that directed by law for selling, and even without the proper notice, does not affect the title of a bona fide purchaser.

I. The Circuit Attorney has no authority to proceed in the name of the State in this case. Held: in the case against the Macon County Court, above referred to, that an authority given by Legislative enactment to a County Court to make such a subscription of stock was not taken away by the adoption of the provision in the constitution, by which thereafter such subscription could be authorized, only by a vote of the people.

I. Tbe South Branch of the Louisiana and Missouri River Railroad was a new enterprise not authorized by the original act or charter, and the only authority for the new enterprise is the amendatory act of 1868. The subscription forming the basis of the bonds in question was wholly unauthorized, no assent having been given to the same by the qualified voters of the county.

1. No appeal lies fromtbe judgment of a County Court approving the sale by a Curator of his wards’ lands. (See chapter 116 of General statutes, page 465, which contains tbe wliole law on this point.) Section 50, page 473, allows appeals from a final settlement, but no appeal in any other matter.

I. The order of the court referred to in the administrator’s deed did not authorize the administrator to sell the land in controversy, and the sale of land without an order of court expressly conferring upon the administrator the power to sell, is void and passes no title, and the approval of such sale is a nullity.

<p>1. Tutt v. Boyer, ante p. 425 affirmed.</p>

<p>1. Officers, liability of — Courts; County — Jurisdiction—Roads, opening of— Obedience to mandate. — When a county court has jurisdiction of the subject matter of opening roads, its order will generally be a protection to an overseer acting under its command; previous irregularities cannot affect .him.</p> <p>?. Officers, liability of — Courts, mandate of — Mode of execution. — The order of a Court of competent jurisdiction, will protect an officer in its legal and proper execution, but not in reckless!) and wantonly injuring others,</p> <p>8. Proceedings, summary — Rights of third parties — Notice to — Legal implications. — In summary proceedings, where the rights of third parties are involved, the law always implies that they shall have reasonable notice to prepare for the protection of their rights. •</p>

<p> Appeal from Henry County Court of Common Pleas. </p>

<p> Appeal from Henry Circuit Court. </p> <p>McBeth & Price, and Lay & Belch, for Respondent.</p>

<p> Error to Cedar County Circuit Court. </p>

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

<p>1. Practice — Supreme Court — Appeal—Affidavit.—Where the record fails to show that the appellant has filed the affidavit for an appeal required by the statute, the appeal will be dismissed.</p>

I. A trne description of the property, or so near as to identify the same was not filed with the clerk, nor even stated in tlie petition. (Matlack vs. Lare, 32 Mo., 262.) II.

The wife’s choses or personals in possession, whether owned at tlie time of the marriage or acquired subsequently, pass immediately and absolutely to the husband. (Sehoul. Dom.

<p> Error to Kansas City Court of Common Pleas </p> <p>(1.) As to exercise of discretion by trustee ; MeKnight vs. "Wnner, 38 Mo., 132; Singleton vs. Scott, 11 Iowa, 589 ; Pearron vs. Jamison, 1 McLean, 197; Platt vs. McCullough, Id., . 69, and cases there cited.</p> <p>(2.) As to estoppel, Lamb vs. Goodwin, 10 Ired, 320; Chown ing vs. O ox, 1 Rand., 306; 3 Leigb, 654; Wilburn vs. Spot ford, 4 Sneed, 704; Kellogg vs. Carrico, 47 .Mo., 157; Jones vs. Moore, 42 Mo., 413 ; Medsker vs. Swaney, 45 Mo., 273.</p> <p>The only point we deem it necessary to call the attention of the Court to, is the fact that the evidence shows that the trustee .Benjamin Perry was not present at the sale.</p> <p>At the time of the sale the plaintiff was in Weston, Platte county, Mo., where he resided, and until the trial of this cause had not been in Kansas City for nearly twenty years. Graham vs. King, 50 Mo., 22; and authorities there cited.</p>

I. Where a motion in arrest of judgment is sustained and the judgment arrested it is optional, with the plaintiff as to whether lie will amend his petition or not, and if he declines doing so the Court may' dismiss his petition, and from this judgment of dismissal an appeal or writ of error will lie. (Frazier vs. Roberts,-32 Mo., 459.) II.

The contract of sale and purchase was complete, when the property was struck off to appellant and his name was entered in the sale book as purchaser. The sheriff had no power to alter or affect that contract, and the rights of the execution creditors therein, by any subsequent alteration or amendment thereof, made by him.

The appellant having subscribed to the stock of the corporation by its corporate name, and having subscribed ten additional shares after the increase of its capital stock, having voted for the increase and participated in the meeting for the increase, having acted as a director and voted for assessment on the increased stock, and having paid assessments so made after the increase of the capital stock, cannot question the legal existence of the corporation, nor the validity…

<p>1. Practice, civil, Appeal — Judgment, what final. — A judgment “ that defendant go hence and that he recover his costs, etc.,” although not very formal or full, is substantially a good final judgment, and will support an appeal.</p> <p>2. Practice, civil, Parties — P/wstee and beneficiary — Agreement between other parties may be sued on by beneficiary. — A party for whose use a contract or a stipulation in a contract is made, when this fact appears on the face of the contract, may maintain a suit in his own name on such stipulation, and this rule applies as well to simple contracts as contracts under seal. The party in whose name the contract is made, is declared by our practice act to be a trustee of an express trust, and may sue in his own name; (2 W. S., 1000, \ 3,) but this does not bar the beneficiary frorn doing so; a recovery by either would be a bar to an action by the other.</p>

dip peal from Jackson Circuit Court. I. In almost every case like the present, where a will is contested on the ground that it has been procured by fraud and undue influence on the part of the principal devisee, the chief inquiry after ascertaining the character of the testator, is to ascertain the character of tiie devisee. (Nussear vs. Arnold, 13 Serg. & R., 327; Dietrick vs. Dietrick, 5 Serg. &R., 208; Dean vs. Negley, 41 Penn.

The sole power of vacation is vested in the County Court (Gf. S., 1865, ch. 52, especially § 12, 45 Mo., 284); and the only way the court could vacate the road was by a strict compliance with the statute.

I. The State stands precisely as the defendants, as to its right to bring cases to this court, either by appeal or by writ of error. (State vs. Leapfoot, 19 Mo., 375 ; State vs. Baker, 19 Mo., 683 ; State vs. Wislion, 15 Mo., 504.)

<p>1. Guardians — Appointment, order of- — Recital of names of minors. — In the order of the Probate Court appointing A. the guardian of the minor children of B., it is not necessary to set out the names of the children. Such recital serves only as a means of identification.</p>

I. The evidence introduced by defendant did not tend to make out a valid defense to the suit. The rule is well established that where a municipal corporation has power under any circumstances to issue negotiable securities, a bona fide holder has the right to presume that they were issued under circumstances which gave the requisite authority. (Elagg vs. Palmyra, 33 Mo., MO; G-elpcke vs. City of Dubuque, 1 Wall., 203 ; 5 Wall., ?84; 48 Mo., 392; 48 Mo.', 16?.) II.

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

tAppeal from Common Pleas Court of Livingston County. There was no evidence that it was any part of the business of the Treasurer of the Railroad to employ attorneys or to contract in reference thereto. (Sto. Agency, 6th Ed., § 134, et seq., and authorities there cited. 1 Greenl. Ev., 5th Ed., §§ 113, 114 ; Swearingen vs. Knox, 10 Mo., 31.) The Rail Road Company was bound by the acts, declarations and promises of • its officers, Slianklin and Ballew.

Jippeal from, Buchanan Court of Common Pleas. I. The petition contains facts sufficient to constitute a cause of action. (Blake vs. The City of St. Louis, 40 Mo., 570; Weightman vs. Corporation of Washington, 1 Black, U. S. 39.) Injuries sustained by persons from defects in the streets, for which the city would be liable are limited to injuries sustained within the territory of the street.

When a foreign corporation has located here — does business her — and suit is brought and service obtained here, and it appears and answers to the petition, it is within the jurisdiction of the court.

Jlppeal from Sullivan Circuit Court. So far as appears from the allegations in the petition, at the time that the present constitution went into effect the act of the Legislature organizing the St. Joseph and Iowa Railroad Company had ceased to have any vitality by its own limitation, and the counties had no more right or power, to take stock therein, than if the act had never been passed : so that there was nothing to prevent the Constitution taking full effect in its…

The only question raised here by the record is : Was the service sufficient? Plaintiff contends that the service was good. (W. S., § 26, p. 294; Dixon vs. Han. & St. Jo. R. R. Company, 31 Mo., 409; Boston, C. & M. R. R. vs. The State, 32 N. TL, 215; Dean vs. White & Haight, 5 Iowa, 265; Iba vs. Han. & St. Jo.

Jippeal from Linn County Court. The receipt in this case is not a promise to pay money. In Reyburn vs. Casey, (29 Mo., 129) the court held that the fact that the receipt on its face acknowledged the receipt of the money for the plaintiff, implied a promise of payment. And in the case of Moorman vs. Sharp, (35 Mo., 283,) the writing contained a promise to account to the plaintiff for the money.

<p>1. Husbmd, and wife — Wife competent witness, when, — The wife is a competent witness where she is joined with her husband in a suit, except as to com-' munieations between herself and her husband.</p>

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

I. Respondent on electing to take a child’s part in the real estate of her hraband, thereby renounced her dower in such real estate, and a child’s share therein, so elected by her to be taken, became and was a fixed and an absolute estate in fee simple. Such interest is not dower, but in lieu of, and a substitute therefor, and she thus became a tenant in common with her two minor children, with a similar fixed and ascertained interest.

<p>1. Ejectment — Title—Common grantor — Title in third party, etc. — When both parties in an ejectment suit claim under a common grantor, all that is necessary for plaintiff to do, in order to insure a recovery, is to show that he has a better title from the common grantor. That some one else has a better title in such a case does not matter.</p> <p>2. Lands and land titles — Lien of judgment — Sale tender execution will relate back to date of judgment, when. — Where an execution is issued and levied on real estate, while the lien of the judgment thereon is in force, and a sale under the execution is properly made, and a deed executed to the purchaser, such deed will relate back to the date of the judgment, and the title that defendant had at that time will pass.</p>

<p> Appeal from Livingston Circuit Court. </p> <p>cited: Tamm vs. Kellogg, 19 Mo., 118 ; 5 Met., 179 ; 11 Cush., 210 ; Kincaid vs. Donney, 17 Mo., 337.</p>

<p>1. Costs, criminal — indictment—Sentence to a county jail — Costs paid by county. —Under an indictment for mnrder, defendant was found guilty of manslaughter in the third degree, and sentenced to imprisonment for one year in the penitentiary. Afterward the verdict having been set aside, and anew trial granted, he pleaded guilty to manslaughter in the third degree, and was sentenced to confinement in the county jail, and to a fine of one hundred dollars. The prisoner being insolvent, held that the county was liable for all the costs. (See W. S., pp. 848-849, \\ I, 2.)</p>

<p>1. Clerk of Circuit Court — Account for hunching and labeling old papers — Mandamus. — Under a proper construction of the statute (W. S., pp. 258 — 9, $ 11 and pp. 1138-7, | 12,) the Circuit Court has no authority to audit and allow an account presented by the clerk thereof for “properly bunching, labeling and briefing the old papers in the office.” And mandamus will not lie against the County Court to compel the payment of such accounts although audited by the Circuit Court.</p>

<p>1. Practice, civil — Testimony, objections to — When overruled as being too general. —An objection to a power of attorney on tbe ground that it is incompetent, illegal and not responsive to tbe issues made, is too general, and for that reason, may be disregarded and overruled by the court.</p> <p>2. Testimony — Objections to, not preserved, presumed correct, — Where an objec-’ tion to evidence is not preserved, the action of the court overruling it is presumed to be correct.</p> <p>8. JOvidence, objections to — Motions for a new trial — Bill of exceptions, etc. — Where objections to testimony are not incorporated in a bill of exceptions, and the attention of the court is not called to them, on motion for a new trial, they will not be considered in the Supreme Court.</p>

<p>1. Practice, civil — Demurrer—Involuntary non-suit, etc__After demurrer sustained plaintiff may either stand on his demurrer and submit to a final judgment, or he may amend his petition ; but he cannot be forced to take anon-suit.</p> <p>2. Contract with two stipulations — Suit upon —Misjoinder, etc. — A contract to pay a given sum of money and in case of failure to psy the same on maturity and suit for the amount, to pay areasonable attorney’s fee in addition, is but one contract with two stipulations, and suit in one count on both stipulations is not demurrable by reason oflmisjoinder of causes of action. By suing on one stipulation and omitting the other, plaintiff might have barred himself from a subsequent suit on the remaining stipulation.</p>

The petition alleges that she signed the note. The chancellor will declare from the fact that the wife signs the note, that she meant to charge her separate estate. (2 Sto.

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

<p>1. Justice of the Peace — Appeal—Failure to enter appearance on the 2nd day of the term — Judgment not allowed when. — Where an appeal is allowed from a'Justice of the Peace on a day subsequent to that of the judgment, and appellant fails to give the ten days’ notice of his appeal required by the statute,(2 W. S. 850 {i 21) before the second ensuing term of the Circuit Court, the appellee may appear simply for the purpose of having the judgment affirmed, and will be entitled to such affirmance, by reason of the continued failure of appellant to give suoli notice. But judgment of affirmance for want of prosecution cannot be taken at the return term of the appeal, unless appellee enter his appearance on or before the second day of the term. {Id., \ 22.)</p>

I. The complaint does not show that the matter has been adjudicated. If no damages were assessed on the trial of claim' and delivery they could be recorded by a common law action on the bond.

I. The Tennessee Judgment in favor of plaintiffs and against defendants, as pleaded in the petition, is valid against, and binding upon, the defendant. A judgment of a court of general jurisdiction oí a Sister State is conclusive, if the court which rendered the judgment had jurisdiction over the person of the defendant, and the subject matter of the action.

<p>1. Supreme Court, Judges of- — Questions propounded, by the Legislature — Constitution, construction of. — The Judges of the Supreme^ Court have the undoubted right to decide for themselves, whether questions presented for their determination by the Legislature and the occasions on which the questions are so presented, are such as to authorize the rendition of opinions as cqntemplated by tlie Constitution. (Art. VI, § 11.)</p> <p>2. Railroads, sale of — -Act touching — Constitutionality of opinion of Supreme Court. — The question a&to the constitutionality of the sale of the North Missouri and that of the Missouri Pacific Railroads under the respective acts of March lith, 1868, and March 31st, 1868, concerns tlie property rights of the State and the vested rights of individuals and corporations, and cannot be passed upon by the Supreme Court in response to resolutions relating thereto by the Legislature.</p> <p>3. The Judges can only be called on for opinions touching matters of public concern when the occasion is such as to authorize such a call.</p>

<p> Appeal from Linn Common Pleas. </p> <p>The deed of trust from Moore to Stephens and Stephens’ deed to Dail were properly read in evidence, although the certificate of acknowledgment to the deed of trust may have been void. It was good without any acknowledgment as between the parties thereto. Its execution was not denied by appellant, therefore there was no necessity of proving it.</p> <p>As Stephens’ name is attached to the deed, it is prima facie his deed. (Caldwell vs. Head, 17 Mo., 562 ; Cooley vs. Rankin, 11 Mo., 612 ; 2 Greenl. Ev., § 300. )</p>

<p>1, Convey anee from father to son — Removal, consideration, what sufficient. — The removal of a sou to certain land, on the faith of a promise by his father to give him the land, the father being at that time in good circumstances; and the fact that afterwards the son parted with said land for the purpose of effecting the exchange, is a valuable consideration to support a conveyance by the father to the son, of other lands; even though at the time of the latter conveyance, the father had become insolvent.</p> <p>2. Fraud, presumptions as to. — Fraud will not be presumed where all the facta consist as well with honesty and fair dealing, as they do with an intention to defraud.</p>

<p> Jlppeal from, the Common Pleás Court of Livingston County. </p>