Volume 52 — Missouri Reports

<p>1. Practice, civil — Note—Suit on — Allegation that plaintiff is a corporation, when necessary. — Iu a suit by a corporation on a promissory note given to it in its corporate capacity by defendant, it is not ground of demurrer that plaintiff failed to allege that it was, at the date of the note, a corporation, etc. Defendant having entered into the contract with the company in its corporate name, thereby admitted it to be duly constituted a body politic and corporate.</p> <p>2. Receiver — Gannot sue, when. — A receiver cannot sue in a foreign jurisdiction for the property of the debtor.</p>

<p>1. Practice, civil — Coimts—Verdict, eta__The rule that where a petition contains ' more than one count, there should be a separate verdict on each count, only applies where the counts are for separate and distinct causes of action.</p> <p>2. New trial — Objections, not appearing — Result.—Objections not raised on motion for new trial will not be considered by tile Supreme Court.</p>

<p> Appeal from the Linn Court of Common Pleas. </p>

<p>1. Jury — Notes of evidence given to, etc. — It would undoubtedly be improper to permit a jury to take the attorney’s notes of evidence without the consent of the parties or their attorneys. But where such consent is given, the circumstance cannot be afterward urged as an objection to the verdict.</p>

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

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

<p> Appealfrom Ray Circuit Court. </p>

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

<p>1. Practice, criminal — Evidence—Negative averments. — Where the subject matter ' of a negative averment lies peculiarly within the knowledge of the other party, it is taken as true, unless disproved by that party.</p>

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

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

I. The Law of Self Defense necessarily includes the right of attack, and the 5th instruction given for the State is erroneous. (State of Mo. vs. Sloan, 47 Mo., 604; see page 613 ; Rosc. Crim. Ev., cited and approved ; Wharton’s Crim., Law, 5th Rev. Ed., §§ 1026, 1027 ; State vs. Scott, 17 Mo. 521.) II. The sixth instruction given for the State is erroneous.

<p>1. Judgments, assignment of — Statute—Equitable title. — Tlie statutory mode of assigning judgments is cumulative, and does not prevent a party from making an equitable assignment in any other lawful way.</p> <p>2. Judgments, assignment of — Execution—Sheriff, notice of assignment. — -If a sheriff with an execution in his hands, receives notice of the assignment of the judgment, he must hold the money when collected, for the use of tlie assignee.</p> <p>3. Judgments, assignment of — Husband and Wife — Power of disposition.— The husband is the proper party to receive payment of a judgment in favor of himself and wife, or the money may be paid to the sheriff to be applied by him in favor of the husband’s execution-creditor.</p> <p>4. Sheriff- — Execution, rclwi'n of — Inability for interest — Demand—A sheriff is not liable for interest upon the return of an execution, until a demand is made on him.</p>

<p>1. Trespass — Fencing, Removal of — Possession, ete. — An action of trespass under the statute for removing certain 'fencing will not lie against a defendant who is in actual possession of the premises on which the fence was built. In such case the remedy is by ejectment.</p>

The suit of Tiffin v. Leabo is not a continuation of the suit of Place v. Leabo, and can have no connection with said suit because the plaintiffs are not the same. See Williams v. Council, 4th Jones Law, (N. C.) 206.

The facts stated in the second count of the petition do not constitute a substantive cause of action, they could only be considered as to the measure of damages, hut such damages were too remote. (Douglas vs. Stephens, 18 Mo., 366.)

I. The only question properly here is that of jurisdiction in the inferior court. The appearance of the defendant at the April term, A. D. 1870, and placing the .cause at the foot of the docket was an appearance which gives jurisdiction. (Rector vs. St. Louis Circuit Court, 1 Mo., 607; 3 Mo., 40; Id., 369 5 Mo., 443 ; 6 Mo., 50 ; 7 Mo., 411; 8 Mo., 257; 13 Mo., 154; 26 Mo., 180 ; 1 Comst., 227.) IT.

While repugnant statutes necessarily supplant previous ones, they must he clearly repugnant; for unless the legislative intent is expressed in terms, it will not he assumed if any other construction can he given to the subsequent act. (State ex rel., Maguire vs. Draper, 47 Mo., 29, 33 ; State, ex rel.

I. An amendatory or nunc fro tunc entry can be made after tbe term at which the proceeding was had, and after the matter had ceased to be in fieri, only when the record itself, or at most entries quasi of record, such as those made by the Judge upon his docket, or the clerk upon his minute book, discloses what actually took place.

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

Plaintiff could not bring his suit until he knew he had a right of action; and the improper act of defendant prevented his knowing it.

<p>X. Lands and land-titles — Conveyances—Husband and wife — Joint-tenancy• A conveyance of real estate in fee to husband and wife creates a tenancy by fclie entirety with the right of survivorship.</p>

<p>1. Garner vs. Jones, ante, p. 68 affirmed.</p>

When one surety has signed a bond on condition that it shall be signed by another before its delivery no obligation is incurred until the condition shall happen, and it may be delivered to the principal in the bond to remain as an escrow, aa well as to any other person.

<p> Appeal from the Linn Cotmty Court of Common Pleas </p> <p>If the maker prove the note had been obtained from him by fraud, or was fraudulently put in circulation by the payee, the holder must prove that he took it honestly, without knowledge of the fraud. (Story on Promissory Notes (5th Ed.) § 196, and note; 1 Parsons on Notes and Bills, 188, and note (A); Bailey vs. Bidwell, 13 Meeson & Welsby, 73 ; Woodhull vs. Holmes, 10 John., 231 ; Vallett vs. Parker, 6 Wend., 622 ; Small vs. Smith, 1 Denio, 583, 586 ; Monroe vs. Cooper, 5 Pickering, 412 ; Vathir vs. Zane, 6 Gratt., 246 ; Ross vs. Bedell, 5 Duer., 462 ; Catlin vs. Hanson, 1 Duer., 322 ; Devlin v. Clark, 31 Mo., 22 ; Renshaw vs. Wills, 38 Mo., 201 ; McKesson vs. Stanbury, 3 Ohio St., 156 ; Sandford vs. Norton, 14 Vt., 228 ; Stalker vs. McDonald, 6 Hill., 93.)</p> <p>Whatever is notice enough to excite attention, and put a party on his guard and call for inquiry, is notice of everything to which such inquiry might have led. (Story on Bills, (4th Ed.) § 194; 3 Kents Com. Marg-., pp. 79, 82; 1 Parsons N. and B., 257, 259 ; Renshaw vs. Wills, 38 Mo., 201 ; Devlin vs. Clark, 31 Mo., 22 ; Goodman vs. Simonds, 19 Mo., 106 ; Rhodes vs. Outcalt, 48 Mo., 367 ; Speck vs. Riggin, 40 Mo., 405 ; Louisiana St. Bk., vs. The N. O. Nav. Co., 3 La. An., 294 ; Kennedy vs. Green, 3 Mylue & Keen., 719 ; Cone vs. Baldwin, 12 Pick., 545 ; Gould vs. Stevens, 5 Am. R., 265 ; (43 Vt. 125.) Howard vs. Kimball, 6 Am. R., p. 740. (65 N. O. , 175.)</p> <p>The holder of a negotiable note, for value, without notice, can recover it, notwithstanding that he took it under circumstances which ought to excite the suspicion of a prudent man.</p> <p>In order to destroy such holder’s title, it must be shown that he took it mala fide. (Story on Bills, § 416; Edwards on Bills,-506; 2 Parsons on Bills, 277, 278, 279 ; Story on Prom. Notes, (Ed. of 1868,) § 382; Swift vs. Tyson, 16 Peters, 1 ; Goodman vs. Simonds, 20 How., 343 ; Bank vs. Neal, 22 How., 96 ; Murray vs. Lardner, 2 Wall., 110 ; Brush vs. Scribner, 11 Conn., 388 ; Redfield’s Leading cases on Notes and Bills, 257 ; Phelon vs. Moss., 67 Pa., 59 ; Magee vs. Badger, 34 N. Y., 247 ; Bank vs. Hoge, 35 N. Y., 65.)</p> <p>All the cases to the contrary were based upon Gill vs. Cubitt, 3 B. & C., 466 ; (10 Eng. Com. Law Rep., 144,) -which has been overruled by Goodman vs. Harvey, 4 Adolph & Ellis, 870 ; (31 Eng. Com. Law Rep., 381.)</p>

•Appeal from Macon Circuit Court. I. In case of misfeasance or malfeasance of the County Court, a tax-payer or tax-payers may bring a suit on behalf of himself or themselves, and all others similarly interested.

<p>1. Practice, civil, Pleading — ■Mandamus, alternative writ of — Petition—Statement of case. — In a petition for, and in the alternative writ of mandamus, the relator should so set forth the facts upon which he relies for the relief sought that tlie defendant may be able to take issue on them.</p>

The facts stated in the petition show the existence of a lien against the property sought to be charged. (Wash, on Real Prop., Vol 2, pp. 86, 87, 88 ; Story Eq. Jur., §§ 1217, 1218, 1219 ; Delassus vs. Poston, 19 Mo., 428 ; Marsh vs. Turner, 4 Mo., 253.)

<p>1. Dower — Married woman not estopped from claiming, when. — The fact that a married woman, was made a party to the record in suit for the partition of land? ofher former husband, and for the assignment of her dower therein, will not estop her from afterward denying and contesting the validity of those proceedings.</p>

The partiality, or prejudice of an arbitrator must be taken advantage of by a motion to vacate the award, (W. S., p. 144, §§ 9, 11,) and cannot be shown in defense to an action on the award. (Wats, on Arb. Marg., pp. 153, 224; Billing on Awards Marg., p. 283; 1 Saund., 327, N. 3; 8 East., 244; 2 Phil.,Ev., 107, Wills vs. Maccarmick, 2 Wils., 148; Morewood vs. Jewett, N. Y. Supr.

<p>1. Practice, criminal — Appeals—Final judgments — Demurrers—Indictments.— Where a demurrer to an indictment is sustained, but no final judgment is given on the demurrer, an appeal will be dismissed.</p>

If Olías. S. Rannels made a parol gift of the premises .in question to Mary D. Rannels, then by operation of law an estate at will — no other and no greater estate — was thereby vest-, ed in Mary D. Rannels, and she became and was a tenant at will of Chas. S. Rannels, and as such tenant could not hold adversely to him. (W. S., 665.

<p>1. Sheriff’s sales, Validity of — -Purchaser under. — A purchaser at a sheriff’s sale looks only to the judgment, execution, levy, and sheriff’s deed. All other questions are between the parties to the judgment and the sheriff.</p> <p>2. Sheriff’s sales, validity of — Erroneous judgment — Collateral proceedings.— Where a sheriff sells laud under a judgment, erroneous in the fact that it was a joint judgment whereas only one defendant was served, such judgment is not void as to the defendant served, and can only be set aside as to him by direct proceedings for that purpose, and cann-ot be attacked in a collateral proceeding.</p>

I. A jury trial was wrongfully dispensed with by court. (Brown vs. II. & St. J. B. B. Co., 37 Mo., 299 ; Vaughn vs. Scade, 30 Mo., 604; 2 Abb. U. S. Prac., 140; Gen. Stat., ch 1. 69, § 14, p. 674; Scott vs. Bussell, 39 Mo., 407.) The record discloses that tbe parties either waived a jury trial in open court by appearing and “not deman ding a jury and submitting said cause to the court,” or waived tlie jury trial by not appearing at the trial.

Jlpjyeal from Marion Circziit Court. The appellant waived and released the errors complained of, if any, and expressly assented to the judgment in the cause by appearing in said court and moving for a reduction in the amount of the judgment.

Louis Circuit Court. The recognition and implied authorization of the practice of delivering money to the auditor by the ordinances in force at the time of the execution of this bond, make the receipt of this money his official act and his direct violation of the express 'provision of ordinance as to its disposition, a breach of the bond.

<p>1. Administration — Probate Court, exclusive jurisdiction of — Cirmit Court— Bill of Interpleader. — The Probate Court has exclusive original jurisdiction in directing the appropriation of the proceeds, of an estate by an administrator, and a bill of interpleader by an administrator in the Circuit Court to determine the claims of different parties on such funds cannot be sustained.</p>

Louis Circuit Court. 1. The turning out of Anapias Eice under the writ of possession against him alone, did not affect the rights of Eobert P. Eice, whose tenant Anapias Eice was, in the premises. 2. Eobert P. Eice had had more than three years uninterrupted constructive possession, claiming as owner under deed ; and the right was with him to enter peaceably as against the constructive possession of a stranger. 3.

I. The ordinance of the City of St. Louis, No. 6001, is invalid in that it did not give the position, extent or direction of the sewer intended to be established. ■ II. The ordinance is invalid because it did not prescribe the dimensions of the sewer intended to be constructed. (City of St. Louis, to the use of Murphy vs. Clemens, 43 Mo., 395.) III. The ordinance was invalid and the original assessment for the purpose of meeting the expenses thereby caused is invalid.

Louis Circuit Court. The recognizance is a record which the defendants have voluntarily made and they are estopped from disputing it. (People vs. Liggett, 5 Barb., 362; G-ildersleeve vs. The People, 10 Barb., 40 ; Adair, et at., vs. The State, 1 Blackf., 200; Me.

<p>1. Evidence — Husband and Wife — Witnesses—Communications.•—Communications between husband and wife are privileged and neither can testify concern-, ing such.</p> <p>2. Evidence — Divorce—Witnesses—Husband and Wife — Competency.—Hus. ' bands and wives are competent witnesses against each other in ‘divorce suits. pioore vs. Moore, 51 Mo., affirmed.]</p>

Louis Circuit Court. A party cannot by his misconduct prevent an award, and take advantage of it, in equity. (Morse vs. Merest,6 Madd. Ch., 25.) An agreement of parties not to sue each other, in the adjustment of any difficulties in the courts of the country, but to submit them all to arbitration, will hardly be pleaded successfully in bar of such an action.

Louis Circuit Court. The defense unsupported by an actual elaim set up by Barlow himself, is no defense. (30 Mo., 258; G. S., 514, §; 9, 569, § 52.) Cutter recovered the damages as trustee for Barlow. (Van Rensellaer vs. Owen, 48 Barb., S. C., 61.) If the plaintiff objected to this defense, the answer of the garnishee should have excepted to as insufficient.

<p>I. Practice, criminal — Criminal prosecution — Language, loud and abusive.— Disturbing the peace of a single individual by loud and abusive language, is not a criminal offense.</p>

<p>1. Practice, criminal — Court of Criminal Correction of St. Louis County — Justices of the Peace — Disturbing the peace. — A. was prosecuted before a Justice of tile Peace in St. Louis County, for disturbing the peace of a neighborhood, was convicted, and appealed to the Court of Criminal Correction ; Held, though, the Justice had jurisdiction to commit for trial before said Court, hut not te try, yet said court should try the case on the information filed before the Justice, or on a new one, disregarding tile former trial. [State vs. Barada, 49 Mo., 504, affirmed.]</p>

<p>1. Duress — Payment of money — When recoverable. — Payment of money upon an illegal and unjust demand, when the party is advised of all the facts, can only be considered involuntary, when it is made to procure the release of the person or property of the party from detention, or where the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it.</p>

Jlppeal from St. Louis Court of Criminal Correction. I. The judgment was contrary to the evidence, because it appeared there was a divorce suit pending at the time wherein the prosecutrix was the defendant and had the right to apply for alimony “ pendente lite.” II. The filing of a divorce suit, coupled with the fact of acting under the advice of counsel, is'a sufficient excuse for aban-, donment of wife.

Louis Criminal Court. The act of the Legislature entitled, An act to preserve the health of the inhabitants of St. Louis County, by providing for the abatement of nuisances, and regulating the traffic in the carcasses of dead animals, within said county,” approved March 14th, 1872, (See Sess. Acts of 1872, p. 265,) is void. 1st. The act proposes to create a monopoly of the trade of rendering, steaming and tanking of the remains of dead animals. 2nd.

<p>1. Practice, civil — New trial, motion for — Yerdict—Arrest of judgment, motion in. — An objection to a general Yerdict onapetition containing two counts, that it does not specify the amount found due on each count, will not be considered • by this court, if it was not alleged in the motion for a new trial or in arrest.</p>

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

<p>1. Agent — Notice to — Principal, when bound. — Notice given to an agent while his agency exists, and referring to business coming within the scope of his authority,, is notice to the principal.</p> <p>2. Contracts — Conditions,waiver of — Insurance, policies of. — A condition in a policy of insurance that any other insurance on such property should avoid that policy, unless the assent of the insurer to such increased insurance was indorsed on the original policy, may be waived by acts or positive declarations, and the insurer may be estopped to set up such forfeiture, where by a course of dealing or by open actions, the insurer has induced the assured to pursue a policy to his detriment. [Hutchins vs. Western Insurance Company, 21 Mo.,. 9?, overruled.]</p>

“ A credit given by plaintiff, on an account which would otherwise be barred on its face, without proof of payment by defendant does not take the debt out of the operation of the statute of limitations.” (Taylor & McDonald, 2 Eep. Con.

Louis Gourt of Criminal Correction. The complaint does not sufficiently describe the offense. The complaint sets forth the offense charged, fully and clearly according to the language of the Statute. (W. S., p. 496.)

Louis Circuit Court. I. Where several parties, all apparently makers, sign the same note, parol evidence is admissible to show that one signs as principal and the others as sureties. (Parsons on Notes and Bills, 233, note a; Garrett, et al., vs. Ferguson’s Administrator, 9 ,Mo., 128, 129; Scott vs. Bailey, 23 Mo., 147, 150; Smarr vs. Schnitter, 38 Mo., 481.) II. The Court erred in refusing to permit appellant to strike out portions of his answer.

Louis Circuit Court. The answer must specifically and separately deny the matters intended to be put in issue. (Dare vs. Pacific E. E., 31 Mo., 480; W. S., 1015.) A defendant cannot have two answers pending in the same case, one principal and the other supplementary.

Louis Circuit Court, “ Service of notice of protest by a notary through the hands of a clerk,” without stating the nature of that notice, and especially that the indorser is looked to for payment, is -not “ sufficient to charge the indorsers.” (34 Mo., 575), If the makers of the note had changed or given up their places of business, a demand at their old place of business or late place of business would be insufficient.

Louis Circuit Court. The beneficiary was not. a necessary party defendant to the injunction suit; the trustee fully represented him and had power to enforce any claim for damage. (Ashton vs. Atlantic Bank, 3 Allen, 217; N. J. Eranklinite Co. vs. Ames, 1 Beasley, 507; Shaw vs. Norfolk Go.

<p> Appeal from, St. Louis Circuit Court. </p> <p>A life policy is not one of indemnity. (Dally vs. The India and Life Assurance Company, 15 Com. Bench., 364.)</p> <p>The act of 4, Geo. Ill, Chap. 48 is declaratory of the Common Law. (Bnnyon on Life Ins., 19; Ruse vs. Mutual Benefit, 1 Bigelow, 472.</p> <p>The plaintiff had no insurable interest in the life of Clark. All of the American cases agree that there must be some interest.</p> <p>The following cases show a direct pecuniary interest. Mutual Life Ins. Co. vs. Johnston, 1 Bigelow, 327; Hoyt vs. N. Y. Life Ins. Co., Id., 497 ; Am. Life Ins. Co. vs. Robert Shaw, Id., 665 ; Rawls vs. American Life Ins. Co., Id., 549; Bevin vs. Conn. Mnt., Id., 19 ; Miller vs. Eagle Life Ins. Co., Id., 375 ; Mitchell vs. Mnt. Life Ins. Co., Id., 137; McKee vs. Phoenix Ins. Co., 28 Mo., 385; Loomis vs. Eagle Life Ins. Co., Id., 175; Mitchell vs. Union Life Ins. Co., Id., 137; Patton vs. National Loan Fund Ins. Society, 1 Bigelow, 409 ; Mutual Life Ins. Co. of N. Y., vs. Wager, Bigelow, 483.</p> <p>I. There is no statute in this State touching this contract, and therefore this isa contract at common law and valid. (Bnnyon on Iffe Insurance, 18, note b., Id. 21, § 6 ; Lord vs. Dali, (12 Mass.. 115); Bigelow’s Life and Accident Reports, 1 Yol. 154, 32S, 374; Miller vs. E. G. and H. Co., 2 E. D. Smith, 290; Trenton Life, &c. vs. Johnson, 4 Zabriskie, 576; Shannon vs. Nugent, Hayes’ Irish Rep., 537; Dalby vs. India and London Life Ins. Co. 28; English Law and Eq., 28 312; Campbell vs. N. E. Life, 98 Mass., 381.)</p> <p>IT. Even if an insurable interest was a necessary pre-requisite to the validity of the contract, the matrimonial contract between plaintiff and the person insured, was amply sufficient.</p> <p>The certainty or probability, direct or incidental, of pecuniary benefit to the living, or pecuniary loss or damage to any one by the death of another, gives an insurable interest. (Phillips on Ins. O. 3, § XIV; Phila. Life Go. vs. Amer. Life Co., 23 Penn. St., 65; Loomis vs. Eagle Life, 1 Bigelow, 175; McKee vs. Phcenix Ins. Co., 28 Mo., 384; Miller vs. Eagle, Life Ins. Co., 1 Bigelow, 394.)</p>

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

Louis Circuit Court. Tlie plaintiff in his petition declared upon two distinct contracts, one being express and the other implied. The express contract (the item of $371,) was done more than four months before the filing of the lien, and the plaintiff could not have a lien for that item. (See Livermore vs. Wright, 33 Mo., 31.) The pleadings in the cause, admit that the demand of plaintiff arose out of but one contract.

Louis Circuit Court. Witnesses must give facts and not opinions. (Dickinson vs. Johnson, 24 Ark., 251.) The exceptions to the rule are confined to cases where from the nature of the subject of inquiry, facts disconnected from opinions cannot be so presented to the jury as to enable them to pass upon the question presented with the requisite knowledge and judgment.

flppeal from St. Louis Circuit Court. I. A contract under seal may be waived by a parol agreement or the mode of the discharge of the obligations altered— more especially, if the parol agreement shall be executed. (Monroe vs. Perkins, 9 Pick., 298; Lattimore vs. Harsen, 14 Johns 330; Dearborn vs. Gross, 1 Oowen, 48; Richardson vs. Cooper, 25 Maine, 450.) II.

Louis Oircuit Oourt. The bond for costs may be filed in vacation, and has* been even ordered to be filed in vacation, (Brown vs. Ravens-croft, 1 Mo., 397.) Both at Common Law and under the Code the days for filing motions for new trial or in arrest of judgment are judicial or sitting days of court.

Louis Circuit Court. I. When the ordinance 6,599, was passed, Grand Avenue had not been opened to the width of 120 feet as required by ordinance 6,126 ; and the charter prohibits the City Council from grading, paving or macadamizing any street or avenue “not established and opened-according to law and ordinance.” (Sess. Acts 1867, p. 71, Act 8, § 1; Dillon on Mun.

<p>1. Moran vs. Lindell, ante, p. 229 affirmed.</p>

Louis Circuit Court. If Sess. Act 1867, p. 56, is to be held to apply to tliis case, then this work (repairing) cannot be assessed as a special tax. Thos. Grace, for Kespondent, relied on Sess. Acts 1867, p. 73, § 10.

Louis Circuit Court. The verdict was that of a jury, on evidence properly before them, and this court will not disturb it.

Louis Circuit Court. Plaintiffs procured a party with the money in readiness and willing to loan, the samé upon the property upon certain terms, to all of which defendant agreed, and delivered his title deeds to the agent of the lender for investigation. Her^ the undertaking of the brokers was accomplished and their commission earned. (Barnard vs. Monnot, Am. L. Reg., Yol. VI, 209 ; Bailey vs. Chapman, 41 Mo., 536.)

<p>1. Contracts — Real estate agents — Commissions, when entitled to. — If property is put into the hands of a real estate agent to sell, lie is entitled to his commis. sion, if the sale is brought about by his advertisements or exertions, or if he introduces the purchaser or discloses liis name to the seller, and through such introduction or disclosures the sale is effected, even though the sale may be made by the owner.</p>

JLppeal from St. Francois Circuit Court. The instruction given concerning the weight and bearing of evidence of appellant’s good character was wrong, and was the virtual exclusion of that evidence from the jury. (2 Eussell on Crimes, 785, 786 ; 1 Wharton American Criminal Law, §§ 645, 646, et seq.) Evidence to sustain a good character was admitted and submitted to the jury, and it was therefore the duty of the court to instruct the jury as to its legal effect.

Louis Circuit Court. I. There being no evidence of any negligence on tbe part of the defendant causing the injury complained of, it was the duty of the court to direct the jury accordingly. II. The facts being agreed by the parties or found by the triers, negligence is a question of law for the court.

Louis Circuit Court. I. In cases of general agency, a principal is bound, though the agent disobeys his instructions in making a contract within' the scope of his employment. (Story on Agency, §§ 126, 127; Butler vs. Maples, 9 Wal., 766; Pickering vs. Busk, 15 East, 37; Gilman vs. Robinson, 1 Ry. & Mod., 226; Winter vs. Pacific R. R. Co., 41 Mo., 503.) . II.

<p>1. Presumptionsiof law — Real Estate, ownership of — Possession.—The general presumption is, nothing appearing to the contrary, that the party who has the exclusive legal title to real estate, has also the possesssion.</p> <p>2. Equity — Cloud on title — Possession, lack of. — A party not in possession cannot go into equity to have a cloud removed from his title as against one in possession holding under a deed.</p> <p>8. Equity — Cloud on title — Record—Refect apparent. — When the opposite party can only claim title through the record, and a defect appears upon the face of ' such record, there is no cloud on the title such as will call for the exercise of the equitable powers of the court.</p> <p>4; Equity — Gloud, on title — Record—Extrinsic evidence. — Where the opposite party can claim title only through the record, and there is no defect apparent on the record, but such defect must be proved by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, there is a cloud on the title.</p> <p>6 Evidence — Deed—Title—Grantor's interest. — In showing title under a deed, or a cloud on a title through a deed, it is necessary to show that the grantor had some sort of title, either real or apparent.</p> <p>6. Practice, civil, pleadings — Equity, bill in — Muliifariousness.—A bill in equity is multifarious, when the distinct and independent matters are improperly joined ; as several matters perfectly distinct and unconnected united in one bill against one defendant, or the demand of several matters of a distinct and independent nature, against several defendants in the same bill.</p>

<p>X. Practice; civil — Supreme Court — Reversal—Improper evidence. — This court will not reverse a case on account of tile admission of improper evidence,when such evidence cannot have prejudiced the case of the appellants. (</p> <p>2. Protcer — Real estate— Commissions — default of owner. — A broker, who negotiates a sale of real estate is entitled to his commissions, though, owing to the default of his employer, the sale is never effected.</p>

Louis Circuit Court. I. There was sufficient legal consideration for the execution, of the agreement by the plaintiff. II. The indorser of a promissory note is discharged from any liability thereon by any valid agreement between the holder and the maker, whereby the holder accepts a composition in discharge of the maker. All other parties to the note who have remedies over against the maker are discharged. (Edwards on Bills, 294; Story on Bills, Oap.

<p> Appeal from St. Louis Circuit Court. </p> <p>The Court erred in excluding the plaintiff, the legatee, when offered as a witness by appellant. (Shailer vs. Bnmstead, 99 Mass., 130; Garvin’s Admr. vs. Williams, 50 Mo., 206; Granger vs. Barrett, 98 Mass., 463; Baxter vs. Abbott, 7 Gray, 82; Gay vs. Gay, 5 Allen, 157; Looker vs. Davis, 47 Mo., 141; Mass. Bev. Stat., 1860, 672.)</p> <p>The testimony of the beneficiary in a will to acquit himself of the charge of practising a fraud or undue influence on the mind of Prevost to procure the will, was incompetent.</p> <p>The statute says : “Where one of the original parties to the contract or cause of action in issue and on trial is dead, or shown to be insane, the other party shall not be admitted to testify in his own favor.”</p> <p>The question then is, what is the cause of action in this suit to establish the will of Prevost, to which there were original parties or actors ? A cause of action is any matter for which an action may be brought. (1 Bouvier Die., 247.) The defendants state that the paper is not Prevost’s will, for the reason that it was obtained by fraud and undue influence practised by plaintiff himself, upon Prevost in his life time. The issue and cause of action which is distinctly presented by the pleadings, is whether Prevost was imposed upon, and defrauded in his life time by plaintiff. If defendant’s allegations are true, then the testator Prevost was the victim of the fraud and undue influence, and was therefore an original party to the cause of action, and the plaintiff the fraudulent procurer of the paper, the other party to the cause of action.</p> <p>A will is a transaction between the deceased and the devisees as much as if it was a deed and not a will, (Garvin vs. Williams, 44 Mo., 471,) and so all authorities agree. If then, there is no difference in the rules of dealing with fraud in procuring a will, and fraud in procuring a deed, the rule of evidence should be the same. If this were a suit to cancel a deed by Prevost, the cause of action would be the fraud in procuring it. In such a case the grantee would not be a competent witness, Prevost being dead.</p> <p>A party to a cause of action is incompetent for any purpose whatever, if the other party is dead.</p> <p>The following cases contain a great variety of illustrations of a party’s incompetency, where a contract with a deceased party is involved in the determination of the suit: Brown vs.</p> <p>Brightman, 11 Allen, 226 ; Stanton vs. Ryan, 41 Mo., 510 ; Parson vs. Parson, 45 Mo., 268 ; Johnson vs. Quarles, 46 Mo., 429 ; State ex rel. Townshend vs. Meagher, 44 Mo.363. See also (Hollister’s Admr. vs. Young, 42 Yt., 403; Merrill, Admr. vs. Pinney, 43 Yt., 606; Fitzsimmon vs. Southwick, 38 Yt., 509 : Smith vs. Smith, 1 Allen, 231; Byrne vs. McDonald, Id., 293; Hubbard vs. Chapin, 2 Allen, 328; Fisher vs. Morse, 9 Gray, 440 (Woodrow vs. Mansfield, 106 Mass., 112; Merrill, Admr. &c. vs. Brown, 43 Yt., 605; Ayres, Admr. vs. Ayres, 11 Gray, 130; Timón vs. Claffy, 45 Barb., 438; Dyer vs. Dyer, 48 Barb., 190; Yan Alstyne vs. Yan Alstyne, 28 N.Y. R., 375; Stephens vs. Hartley, 13 Ohio St., 531; Hollister’s Admr. vs. Young, 41 Yt., 159; Little vs. Little, 13 Gray, 266; Ford’s Exr. vs. Cheney, 40 Yt., 155; Ela, Exr. vs. Edwards, 97 Mass., 318; Granger vs. Bassett, 98 Mass., 468. — Shailer vs. Bumstead, 99 Mass., 130 is evidently not a well considered case and is contrary to prior decisions in that State. It says there was no cause of action till the death of the testatrix. But action and cause of action are different things. When suit was brought the cause of action reached back to the fraud and influence, which took place before the death. That ease was ruled on the idea that there was a difference between a will and a deed, which idea is overthrown in Garvin vs. Williams, 44 Mo. 477.</p>

<p>1. Administration--Assets — Situs.—In administration thereal situs of the assets is, where the debtor resides and the assets are located.</p> <p>2. Administrator — Authority of — Foreign Stats. — -The authority of au administrator does not extend beyond the limits of the Government granting the letters unless the foreign law controlling the assets permits it.</p>

Louis Circuit Court. The counter-claim was for unliquidated damages, and arose out of a cause of action, different from that set out in the petition. The provisions relating to counter-claim, must be construed in connection with the statute of set-off still in force. (W. S., 1273; Id. 1016, § 13; Berdell vs. Johnson, 18 Barb.', 559; Yassear vs. Livingston, 3 Kem., 256 ; Xenia Bank vs. Lee, 7 Abb., Pr.

Louis Circuit Court. I. Evidence tbat may be a link in a cbain of testimony,, should not be excluded, although such evidence may not. be sufficient of itself to establish sncli defense. (Platt Co. vs. Marshall, 10 Mo., 315 ; Lane vs. Kingsberry, 11 Mo., 102.) II.

Louis Circuit Court. The tax books when regularly certified and authenticated afford the same protection to the collector in collecting taxes therein assessed, that a judgment at law does to the Sheriff in enforcing an execution issued thereon. (State vs. Shacklett, 37 Mo., 284; 47 Mo., 463; 43 Mo., 463 ; 49 Mo., 482 ; 50 Mo., 134.) The revenue acts and the school tax acts, being in pari materia taxations, must be construed together and as a whole.

<p> Error to Si. Louis Circuit Court. </p> <p>The “Board of President and Directors of the St. Louis Public Schools,” is a municipal corporation. It exists as a corporation for tlie public advantage. (Dillon on Municipal Corporations, 29.)</p> <p>The Board of President and Directors of the Public Schools is not a municipal corporation within tlie purview of tlie law. (2 Kent’s Com., 11th Edition pp. 316-321; 4 Wheaton, pp. 634 el seq., 694passim', Dartmouth College vs. Woodward, 1 Smnner, 276, 296, 302, 313 ; Osborn vs. U. S. Bank, 9 Wheat., 938; Bank of the State of So. Car. vs. Smith’s Exr., 3 McCord. 377; U. S. Bank vs. Planters Bank of Georgia, 9 Wheaton, 907; Trustees for Vincennes University vs. State of Indiana, 14 Howard, 277; Bout. Law, Die. Title, Municipal Corporations.)</p>

Louis Circuit Court. The appellant stands by the doctrine of estoppel invoked, and by the total failure on the trial, to disprove his title and possession to lot 43, he being the owner and possessor of that lot.

<p>1. Practice, civil, trials — Instructions—Misleading.—Instructions, which are likely to confuse and mislead the minds of the jury, should not be given.</p>

Louis Circuit Court. The counsel on both sides filed elaborate briefs, but as the court does not touch on the questions therein, they are necessarily omitted.

Louis Circuit Court. The legal rule in the construction of written instruments, even where detached and separated, is to construe them as one writing. (15 Mo., 40; 7 Har. and John’s 296; 18 Johns., 420.) The assignment of a lease puts the assignee into the place the assignor with all the benefits and burthens attending the original lease, and the inherent covenants go with the land into whose hands soever the lands come.

Louis Circuit Court. The individual note of a continuing partner, given for the debt of the firm, cannot be held to be a discharge of the partnership debt, even where there is an express agreement by the creditor to receive it as such. (2 Parsons Bills & Notes, 202; Way dell vs. Luer, 5 Hill, 448; Cole vs. Sachet, 1 Hill, 516 ; Brown vs. Stills, 49 Penn.

Louis Circuit Court. Barns vs. Webster, 16 Mo., 330; Williams vs. Coleman, 51 Mo., 21. The defense is founded on the defendants’ own omission, and is contrary to a fundamental principle, that no man shall take ad vantage of his own wrongi Brooms Leg. Max. 5th Am. Ed. side page 285. The act of the justice, in granting an appeal was entirely without warrant of law, and void, and there is no consideration for the bond : in .any such case, it is void.

•Appeal from St. Louis Circuit Court. I. Defendant was entitled to one month’s notice in writing of the intention of bis landlord to terminate the tenancy. (2 W. S., 879, § 13.) The notice should baye been given at least one month before the termination of some regular month of the tenancy. (1 Wasb.

<p> Appeal from St. Louis Circuit Court. </p> <p>“An averment in the usual form, alleging due presentment, and notice, is sustained by proof of any state of facts showing an excuse according to the custom of merchants.” (Greenl., Ev. Vol. 2,197 ; Norton vs. Lewis, 2 Conn.,178; Hopkins vs. Liswell,12 Mass. 52; Williams vs. Mathews, 8 Cowen, 252; Wind-ham Bank vs. Norton, et als., 22 Oonn., 219.)</p> <p>The rejection of any material testimony by the court, entitles the party to then take his non-suit, and this court will not refuse to set it aside because the record does not show, that plaintiff could make the other points in his case, or that he was prepared with proof on the other points. (Dowd vs. Winters 20 Mo. 361.)</p>

Louis Circuit Gourt By taking the whole contract together it will be seen that the parties were tenants in common'in a certain chattel; that-upon the death of one of the tenants in common, his interest was to revert in his co-tenant and as the assessed value of such interest, his representatives were to receive $1,000 which said co-tenant obligates himself by said contract to pay.

Louis Circuit Court These obligations and covenants are all personal covenants assumed by Sheppard alone. If a person covenants in his own name, it is his covenant, not the covenant of his principal. (Appleton vs. Binks, 5 East, 148; Townsend vs. Hubbard, 4 Hill, 351; Skinner vs. Gunns, 9 Porter, 305-7; Stringfellow vs. Mariott, 1 Ala., 573-576; Deming vs. Bullitt, 1 Blackf., 241, 242 ; Hale vs. Woods, 10 N. H., 470; See cases collected 1 Am. Ld. Cas. 585.)

Louis Circuit Court. I. There being no evidence to support the judgment, it cannot stand even though no point had been raised by instructions. (Hunt vs. Leavenworth, 11 Mo., 629.) II. The plaintiff could only recover for commissions (under his agreement with defendant,) on advertising bills collected before the institution of this suit, unless he affirmatively proved negligence on the part of the defendant in making such collections.

Louis Circuit Court. By section 2 of ordinance (No. 6626,) the City Engineer was empowered to construct said sewer with such materials and of such dimensions as he might deem requisite. By subsequent ordinance (No. 6854,) the materials and dimensions of said certain sewer were specified by the City Council. Before the passage of the latter Ordinance said sewer was nearly completed, and was entirely completed in front of appellant’s property.

Louis Circuit Court. I. It does not belong to the complainant vicariously to enforce the contract of other persons or protect their rights. (Gil-man vs. City of Sheboygan, 2 Black, 513.) II. The burden of proof that the act in question is unconstitutional rests upon the complainant, and that proof must he so clear and convincing that not a doubt remains. (Eletcher vs. Peck, 6 Cranch., 87; 48 Mo. pp. 470 and 471.) III.

Jijppealfrom St. Louis Circuit Court, In the absence of special statutes to the contrary, the father in law is not obliged to maintain his step-children.

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

<p>1. Mechanics Lien — Judgment—Removal of buildings — Action for Prevention— St. Louis County. — If tte owner of property in the County of St. Louis prevents the purchaser of a building thereon, under a judgment on a mechanic’s lien, from removing the building, his proper remedy is an action for damages against the owner of the property.</p>

<p>1. Trusts and trust funds — Batik deposits — Consent of — cestui que trust — Transfer of certificates of deposit. — A. owing B. money on collections, made a special deposit of that amount in a bank, subject to his own order which he intended for B. Seld, by the consent of B. to this action, the money became his, and after the indorsement of the certificate of deposit to-him, his title thereto became complete at law.</p>

Jlpj)ealfrom St. Louis Circuit Court. I. The plaintiff could judge of the sufficiency of the braces, and other timbers, as well as the defendants. In such cases the master is not liable. (Williams ys. Clough, 3 LL & Nv 259; Dynen ys. Leach, 26 Law Journal, [N. S.] Excli., 221; Wright ys. N. Y. Cent. R. R., 23 N. Y., 566.; Hayden ys. Smithville Manuf’g Co., 29 Conn., 548; Griffith vs. Gidlow, 3 Hurlst, & Norm., 648; Devittvs. Pac, R. R., 50 Mo., 302; Warner ys.

Louis Circuit Court. The corporation liad the right tinder its charter to prescribe the mode and form of the transfer of its stock, and unless that mode and form were complied with; or offered to be complied with, the company could uot be held liable for a refusal to transfer.

<p> Appeal from, St. Louis Circuit Court. </p> <p>I. If Sinuoth and Adams were held out as agents to give bills of lading generally for the boat, and acted as such, and made tbe bill of lading, and plaintiffs purchased it innocently, — then although there were restrictions, in tbe instructions to them or in their authority, as between them and their principals, and they violated it; yet if plaintiff knew nothing of such limitation or of its violation — lie is not affected thereby. — The principals must account to plaintiff, and look to their agent for redress. (Story on Agency, § 126,-127 et seg.,)</p> <p>II. The defendants (by agent) having made, delivered and put in circulation, the bill of lading, it being purchased or advanced upon by an innocent third person, as to him they are concluded thereby, by their statement therein, that the goods had in fact been all shipped on board the vessel. (Dickerson vs. Seelye, 12 Barbour Sup. Ct. Reps., 99 ; Howard vs. Tucker, 1 Barnwell & Ad., 712, &c.; Strong vs. Grand Trunk Railway Co., 6 American Law Register, (N. S.) 680-681, &c.; Meyer vs. Peek, 28 N. Y., 590-597, &o.; See pp. 598-9; 1 Parsons on Maritime Law, 135-136-137, and note 2 at p. 137.)</p> <p>If the master had signed this bill of lading, the property not being actually on board, no liability attaches to the owners, either to the consignee or to his assignee for value. (Goodrich vs. Norris, 1 Abbott Adm., 200; Mortell vs. Ship W. H. Rutan, Rose, Master; Int. Rev. Record Yol. I, p. 125 ; Grant vs. Norway, 2 Eng. Law & Equity, 337; Schooner Ereeman vs. Buckingham, 18 How. U. S., 182; 1 Parson’s Marit. Law, 135 and n. 2; Herbbersty vs. Ward, 8 Exch., 330 ; Jessell vs. Bath, 2 Law Rep. (Exch.,) 267.)</p> <p>The agent has no higher authority than the master and cannot bind owners where goods are not on board. (Gessel vs. Barth, 2 Law Rep. Exch., 267; per Chief Baron Kelley and Baron Bramwell.)</p>

<p> tfryffeal from St. Louis Circuit Court. </p> <p>cited: Weston vs. Ernes, 1 Taunton, 115 ; Wright vs. Smith, 16 Gray, 499.</p> <p>cited: McDonald vs. Longbottom, 1 Ellis & Ellis, 977; 1 Greenleaf Ev., §§ 285, 297. •</p>

Louis Circuit Court. I. Under the special contract defendant was not a common carrier as to this glass, blit a private carrier for hire and responsible according to the terms of his contract, (Angelí on Carriers, 54; Sunderland vs. Westcott, 2 Sweeny, [N. Y.,] 260 ; Dorr vs. N. J. Steam Nav. -Co., 11 N. Y., 485 ; Meyer vs. Hamden’s Exp. Co., 24 How. Pr., 290 ; Moore vs. Evans, 14 Barb., 529 ; French vs. Buff, N. Y. & E. R. R., 4 Keyes, 119; Nelson vs. II.

Louis Circuit Court. Green E. Ruby having induced Mueller to part with Ms lien on tbe mare for work and materials furnished in shoeing her, by Ms own declarations that the mare was the property of Thomas P. Ruby, was estopped from setting up Ms claim to tbe mare as against said Mueller or the constable who levied on the mare under executions for such work and materials, in favor of said Mueller, and against said Thomas E. Ruby.

<p>1 Bills of exchange and promissory notes — Consideration—Appointment of an administrator — ■Public policy. — A promissory note, whereof the consideration is an agreement to procure a responsible party and have him appointed administrator of an estate, is void as against public, policy.</p>

Louis Circuit Court, The plaintiffs standing in the shoes of the residuary legatee as to the partnership estate, are entitled to enforce due performance of all trusts under the will, necessary for the preservation of their legacy. (Story’s Eq. Jur. (Redf.

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

<p>I. Money brokers — Licenses—Counties—State.—Under the Statutes W. S., 247 $ 1; Id., 1196, § 76,) the county courts are empowered to levy taxes and exact licenses from money brokers, for State and county purposes.</p>

<p> Error to the St. Charles Cirmit Court. </p>

Jlfjpeal from. St. Louis Circuit Court. I. No county tax had been imposed on licenses at the time when relator demanded his, and offered to perform all the conditions which the law at that time prescribed for obtaining the same; bis right accrued on the day of his demand, and could not be affected by any subsequent order of the County Court imposing new conditions.

Appealfrom Cape Girardeau Court of Common Pleas. I. A bill having, passed the General Assembly and received the approval of the Governor, although entirely wanting an enacting clause, as set out in the Constitution, Article 4, § 26, is valid.

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

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

Louis Circuit Court. I. The phrase “six days” means six legal days, ( W. S., 651, § 12,) that is, six judicial days, and if Sunday is one of the intervening days, as the act prescribed to be done on one of the days, cannot be done on that day, Sunday is not to be counted. (National Bank vs. Williams, 46 Mo., 17.) Sunday is not to be counted as one of the days of the term of a court.

<p>1. Omtom — To he binding must he actually known, or universal and notorious. —A person is not bound by a custom unless he has personal knowledge thereof, or it is so notorious, universal andwell established that his knowledge thereof would be conclusively presumed.</p> <p>2. Damages for personal injuries — Negligence—Contributory negligence. — In an action for damages for personal injuries the rule is, that although the plaintiff may have failed to exercise ordinary care and diligence and such failure contributed in. a remote degree to the injury, yet if defendant was guilty of negligence which was the immediate cause of the injury, and with the exercise of ordinary prudence and care by defendant the injury could have been prevented, defendant is liable. But if plaintiff could have avoided the injury by the exercise of ordinary care and prudence, defendant is not liable. And this principle is not confined to any particular class or classes of persons.</p>

Louis Circuit Court. I. Tlie bill charges that one of the papers in which the advertisement of the Trustee was printed, the St. Louis County Legal Record and Advertiser, was not a newspaper in the proper sense of the word, and that therefore a publication therein was not sufficient.

Louis Circuit Court. I. There was no sufficient change of possession of the property. (Claflin vs. Rosenberg, 43 Mo., 593 ; Gillham vs. Kerone, 45 Mo., 487.) H. An action for the claim and delivery of personal property seized on execution, must be brought against the officer, who in the view of the law has the possession, though the seizure was made by his deputy. (Richardson vs. Reed, and Skilton vs. Winslow, 4 Gray, 441.)

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

Louis Circuit Court. The defendant was present at the sheriff’s sale, and by its silence and by letting judgment go,is now estopped from denying plaintiff’s title. (Dolde vs. Yodicka, 49 Mo., 101; Rice vs. Bunce, 49 Mo., 234-5; State to use, &c. Ross vs. Cave, 49 Mo., 131.) cited: Collins vs. Mott, 45 Mo., 100.

<p> PLppeal from St. Louis Circuit Cou/rt. </p>

Louis Circuit Court. I. The plaintiffs were barred of their action by the statute of limitations, by failure to bring suit within the year. The court below erred in allowing plaintiffs to amend because the amendment changed “ substantially the claim and defense.” It substituted a new and wholly different-action for the old one.

Louis Circuit Court. The evidence showed no authority on the part of the corporation under its charter to make such a contract. The authority of an agent to act for a corporation need not be proved by record or writing, but may be presumed from his acts and the general course of business. (Warner vs, Ocean Ins. Co., 4 Shep. [Maine,] 439.)

Louis Circuit Court. The replevin suit and the judgment therein being all the result of plaintiff’s wrongful act, it was allowing him to take advantage of Ms own wrong to put the record in evidence against defendants. The natural and legitimate damages'that plaintiff sustained as a direct consequence of a levy, he could recover on showing what they were, and in the absence of proof of what they were he could only recover nominal damages for the levy.

•Appeal from St. Louis Circuit Court. This case stands on simple naked acts of indulgencies granted to the plaintiff, for two successive years. The memorandum referred to, formed a part of the policy itself.

The contract sued upon did not contemplate the doing of any act prohibited by Section 35, Chap. 206, Gr. S. 1865. This was a contract for the sale of merchandise on Sunday (Smith vs. Wilcox, 24 N. T. 353).

<p>X. Practice, civil — Súfreme Court — Evidence, weight of. — In a law case, this Court will not decide upon the weight of the evidence, when there was evidence on both sides.</p>

<p>1. Contracts — Promissory notes — Signature—Descriptio persones — Ambiguity— Parol evidence. — If there is any ambiguity in a contract in writing or a promissory note, in the description of the person, parol evidence is admissible to afford an explanation thereof, and to show upon whom the responsibility of the note should rest, and for whose benefit the contract was made; and if a contract and a note refer in their terms to each other,both may be taken together in construing them.</p> <p>2. Corporations — Officers—Acts of — Authority presumed. — The authority of the chief officer of a corporation to perform certain official acts, may be proven by co-temporaneous or subsequent evidence of special authority.</p> <p>3. Practice, civil — Trials—.Instructions must not assume facts not in evidence.— Instructions which assume the existence of facts which are not in evidence are improper.</p>

Louis Circuit Court. One legislature cannot bind or restrict another in the power of legislation, and according to established rules of construction of statutes, a law goes into effect on its passage, unless otherwise ordered in the law itself. The orders of County Courts are not to be construed with critical nicety.

Louis Circuit Court. 1. Plaintiffs had no right to claim a renewal except of the whole leasehold property described in their lease. Unless they did claim such renewal, they had no claim for the value of the buildings, nor, under the provisions of the lease, was there any valuation of the buildings to be made, until the expiration of the renewal term. (Taylor on Landlord & Tenant, § 335,4th Edition ; 6 John. Oh.

The commission from the governor, invested the relator ■with the title, and so far as this inquiry is concerned, is not only prima facie, but conclusive evidence of liis right to the office and its emoluments. (The State, ex rel. Jackson vs. Auditor, 34 Mo., 375; Winston vs. Auditor, 35 Mo., 146; The State, ex rel. Jackson vs. Auditor, 36 Mo., 70; Beck vs. Jackson, 43 Mo., 117; State ex rel.

<p>1. Ordinances — Ordaining clause, omission of — Act directory. — An ordinance of a city is not invalid, because the ordaining clause is omitted; tbe law requiring such a clause, but not declaring tbe law void if that form is not pursued, is directory. (City of Cape Girardeau vs. Riley, ante p. 424 — affirmed.)</p> <p>2. Statutes, validity tf — Forms prescribed — Departure from — Ordinances—Authentication — Law directory. — A statute authenticated in the manner pointed out by law cannot be impeached by showing a departure from the forms prescribed by tbe constitution in the passage of tbe law; and tbe same principle applies to municipal corporations (Pacific Railroad vs. Tbe Governor, 23 Mo., 353 affirmed.) Such provisions or laws are directory, if there is no provision declaring such laws or ordinances void, if the said forms are not complied with.</p> <p>3. Ordinances — Revision of — Continuity.—When a former law is included in a revised law, the revision has not the effect of breaking tbe continuity of those provisions which were in force before.</p> <p>4. Ordinances — Collation of — St. Louis, City of — Publication — Seal—Proof.— When tbe ordinances of the City of St. Louis are collated and published by authority of the city they are admissible in evidence without any seal or attestation.</p>

The damages were flagrantly excessive. The sheriff was not bound to levy on more goods then enough to satisfy the debt. If by doing so he occasion a loss out of proportion to the amount of the execution he is trying to make the money on, he can blame no one but himself. (State vs. Doan, 39 Mo., 52.)

<p> •Appeal from St. Louis Cirouit Court. </p>

<p>1. Snider vs. Murdock, 5131o. 1Í5 affirmed.</p>

“Negligence may be established, either by proof of the facts and circumstances attending the transaction, or by showing that the injury was done on a part of the road not enclosed by a lawful fence, or not on the crossing of a public highway.” (Calvert vs. Hannibal & St. Joe. E. E. Co. 38 Mo., 467.) This petition was drawn in accordance with the opinion of this court as expressed in the same case reported 34 Mo. 242.

•Appeal from St. Louis Circuit Court. If a party against whom a verdict is found and judgment given fail to file his motion for a new trial within the four days prescribed by the statute, but- subsequently files his motion, which is overruled, no writ of error will lie from the judgment overruling the motion. (W% S., 1059, § 6; Richmond’s Adm’x vs. Wardlaw, 36 Mo., 313 ; Nordmanser vs. Hitchcock, 40 Mo., 178; Frederick vs. Rice, 46 Mo., 24; State vs. Marshall, 36 Mo., 400.)

Louis Circuit Court. Tlie instructions given for the plaintiff and defendant fully present the law, and it is not necessary that all the principles of law relating to the case should be presented in any one of the instructions given by either party. (McKeonvs. Citizens Railway Oo., 43 Mo., 405 ; Moore vs. Sauborin, 42 Mo., 490; Marshall vs. Thames Fire Ins. Co., 43 Mo., 586.)

Louis Circuit Court. I. A party can have but one satisfaction for the same wrong. (Thomas vs. Rumsey, 6 Johns. 26 ; Webb vs. Cecil, 9 B. Monroe, 198.) II. The record showing recovery and satisfaction in the former case, was competent evidence in this case in mitigation of damages. Partners, as a partnership, cannot recover in slander for injury to their private feelings and personal character, but only for damages to their joint trade or business.

Hppeal from Wayne Circuit Court. No cause of action was stated in the petition. The respondent was entitled to the instruction asked for.

Louis Circuit Court. When the maker of a note endorsed before maturity proves lack of consideration therefor, the burden of proof is on the holder, to prove that he received it for value. (Story on Bills, 215, § 193; Bryant and Stratton’s Commercial Law, 174, § 365 ; Rogers vs. Morton, 12 Wend., 484; Munroe vs. Cooper, 5 Pick., 412.) The holder of any negotiable paper before it is due, is not bound to prove that he is a bona fide holder for value, without notice.

fLppeal from 8t. Louis Circuit Court. I. The central question in this case is, where a deed of conveyance is executed in blank as to the grantee, and then delivered in that condition to a third person, and without authority under seal from him who executed it, and in his absence such third person fills the blank and delivers the deed : , — Whether such deed with its covenants is valid or void.

Louis Oireuit Court. Appellant filed- an elaborate brief, but it is necessarily omitted here, because the Court does not pass upon the points discussed therein.

<p> Appeal from, St. Louis Circuit Court. </p> <p>Tlie original notes having been procured by the respondent by purchase, the respondent never had any claim against the firm of D. T. "Wright & Co., at any time, except upon the various notes taken by it and no claim is based upon these notes or any of them, none of them having been either produced or offered in evidence, so that the plaintiff never in fact shoioed any ground of recovery against the estate oí Maddox.</p> <p>A renewal of notes by Banks is a payment and satisfaction of the old notes. (2 Parsons on Notes and Bills 203.)</p> <p>relied on, Powell vs. Charless, 34 Mo., 485.</p>

Louis Circuit Court. I. The notes given in renewal of the original notes maturing next after Maddox’s death, were not given or accepted in satisfaction or extinguishment of the original notes, but with the understanding that all the parties originally liable should remain bound for any unpaid part thereof. (Powell vs. Char-less’ Exr., 34 Mo., 483.) II.

<p>1. Circuit Clerks — Fees—Excess of, over salary — Must he paid into county treasury whenever collected. — Tlie fees collected by the clerk of a Circuit Court, Which are in excess of the salary allowed by law, must be paid into the county treasury whether they are collected before or after his term of office expires.</p>

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

Jlppeal from St. Louis Circuit Court. I. The adoption of the constitutional amendment on 8th Nov. 1870, had at least the effect to take away the special, summary, statutory remedy by motion for execution against u stockholder. The remedy may be changed without impairing the obligation of a contract. (4 Wheat., 200, 245 ; Cool. Const. Liin., 286-7-8, 361, et seq.; Sedg. Stat. & Const.

<p>1. Washington Mut. Fire Ins. Co. ys. St. Mary’s Seminary, ante, p. 480 affirmed.</p>

Jlppeal from St. Louis Circuit Court. Laws and amendments to constitutions touching remedies may be repealed or amended according to the will of the Legislature. (Sturgis vs. Orowninshield 4,Wheat. 122; Cooley’s Const., Lim., 286-7.) I. Although the double liability clause was repealed in November, 1870, and before respondent obtained judgment, such repeal cannot affect the rights of respondent which accrued while said clause was in force.

Louis Circuit Court I. The State location by McPherson as agent for the State is void, for the following reasons: ■ (a) It is not on land subject to sale or entry. The land was not public land in 1850, but was. reserved from sale, entry or location, being a part of tbe commons of Carondelet, a Spanish village having commons and common fields, adjoining on the south the common fields of St. Louis, another Spanish village, now the city of St. Louis.

<p>1. Statutes, construction of- — City of St. Louis, charter of — Opening streets— Assessment of benefits to the city. — The provision of the charter of the City of St. Louis, providing that not more than ten per cent, of the benefits accruing from the opening of a street shall be assessed against the City, is valid. [Uh-rig vs. City of St. Louis, 44 Mo., 468, affirmed.] ,</p> <p>2. Land Commissioner — Charter of City of St. Louis — Ordinance—Jury, selection of. — The charter of the City of St. Louis provided that the benefits accruing from the opening of streets should be ascertained by the Land Commissioner by a jury, by proceedings prescribed by ordinance, and an ordinance of the City directed the Mayor of the City to furnish the Marshal summoning the jury, with the names of proper persons. Held, that a jury so procured was a legal jury, but the Land Commissioner was not required to receive such jurors, unless they were competent and qualified.</p>

Mandamus. — On motion for a re-hea/ring. I. A re-hearing is prayed. — Because the court overlooked the fact that the warrant was drawn and delivered after the passage of the act creating the “ Military Fund.” II. Because the decision of the court is in conflict with the cases of Fremont vs. The United States, 2 Ct. of Cl R. 461, and Theodore Adams vs. The United States,2 Ct. of 01. R., 70.

Louis Circuit Court. The statute of limitations does not run in favor of a trustee, until denial of trust or something done in breach thereof. If an attorney procure a judgment in his own name and collect the money, there is a cause of action, and he may avail himself of the protection of the statute. (Johnson vs. Smith, 27 Mo., 591.) But until he collects the money there is no cause of action to be barred.

Louis Circuit Court. I. The Southwestern Freight and Cotton Press Company • was “dissolved” in June, 1869. It is admitted by the pleadings, that it was in that month decreed a bankrupt. It is further admitted by the pleadings, that it was then wholly without funds or means.

<p>1. Fraudulent convey anees — Personal property — Change of possession — Bailees, notification to. — A sale of personal property then in tlie hands of a bailee, followed by a notification to the bailee of such sale, is a sufficient change of possession. as against the creditors of the vendor.</p>

Louis Circuit Court. Exhibit X was inadmissible in evidence, because the account consisted of private and official items without distinguishing which. Exhibit “ X ” was a statement of the accounts between the parties, made by deféndant’s clerk by his directions, and from his books ; and with that statement both parties were satisfied, and fully acquiesced in it.