Volume 53 — Missouri Reports

Louis Circuit Court. I. The mode provided by tlie Act of December 2oth, 1852, § 12, was, when accepted by appellant on January 1st, 1853, the only legal method for collection of taxes for State as distinguished from county purposes. II. This Act of December 25th, 1852, provided for the collection of taxes due the State for county purposes, not less than for those more technically known as State. (Hannibal & St. Joe.

Louis Circuit Court. I. The provisions in the city charter of 1-867, and the ordinance of the City Council of St. Louis passed in pursuance thereof, in so far as they authorize the re-pavement of a street which had already been paved, and had been paid for by the owners of the adjoining property, and which was in good order and repair, and the assessment of the cost of such re-pavement exclusively upon the same adjoining properties, are unconstitutional and void, as, in…

<p> Appeal from St. Louis Circuit Court. </p> <p>I. “ When one either sells or rents to another,- premises surrounded by the vendor’s or landlord’s land, a right of ingress and egress to and from such premises over the property of the vendor or landlords, is by law a part and parcel of the right acquired. This right extends to all who have reasonable cause to use the same.”</p> <p>If a landlord lets premises with an existing nuisance upon it, he is personally responsible to anyone who receives any injury thereby. (Addison on Wrongs, 137-138.)</p> <p>II. The defendant having provided this passage as a means of access to portions of his premises, thereby held out an inducement to. persons to use the same, and he could not either himself do or permit another to do any act which would render the way dangerous. (Corby vs. Hill, 4 C. B. N. 8., 556 ; 1 Ellis B. v. Ellis, 168; 10 Allen 374; Addison on Wrongs 141, et seq.)</p> <p>III. Even if defendant was nominally a trespasser, the wife in this case would not be barred from a recovery. (Dailey vs. N. & W. B. B. Co., 26 Conn., 596; 35 New Hampshire, 271; Barnes vs. Ward 9 M. G. & S., 420 ; Bird vs. Holbrook, 4 Bing., 646.)</p> <p>I. Deceased was going through this private alley, by a rear entrance, not designed for such use, late at night, after business hours, to borrow a paper fi’om Tegerthoff’s corner grocery, or to visit Walters and thus fell down this cellar stairway.</p> <p>If so, deceased having no connection of any kind with the building or the landlord, can have no greater right certainly than the tenant Tegerthoff or Walters whose customer or visitor he was, or sought to be. (Bobbins vs. Jones, 15 C. B. N. S. 220,f et seq.; Wilkinson vs. Eamie, et al., 1 Hurlst. & Oolem. 631, 633, 634; Shearm. & Bedf. Neg., §§ 498, 501, 2 & 3; Stone & Wife vs. Jackson, 16 C. B., 199; Janis vs. Dean, 11 Morre p. 354; Hardeastle, Adm. vs. South T. R. R. Co., 4 Hurlst. & N., 65.)</p>

Louis Circuit Court. I. The Court erred in rendering a personal judgment against the defendant, instead of a judgment in rem. The judgment ought always in these cases to he limited to the property condemned to pay the tax; — upon any other theory it may be ruinous to own inferior property on a street to be improved. II. The petition, sets out several distinct causes of action, and the verdict for an entire and gross' sum cannot be sustained.

Louis Circuit Court. This is an action, brought by the plaintiff, against the defendant, a registering officer, for refusing to register her- as a lawful voter. The defendant demurred to the petition.

<p>1. Grimes and punishments — Rape—Passive policy — Saif-way measures. — The crime of rape can only be committed where there is on the part of her on whom the attempt is made, the utmost reluctance, and the utmost resistance. A passive course of conduct, or slight resistance is not sufficient, there must be no consent, however reluctant.</p>

<p> .dppeal from Bates Circuit Court. </p>

Mandamus. 1. If it be doubtful whether a law be constitutional or not, the doubt shall by the court be resolved in favor of the law, and it shall be upheld. (Cool. Con. Lim., 182; 7 Ind. 326 ; 2 Iowa, 280 ; 12 Wheat., 270; 3 Dali., 386; 6 Cranch., 872 ; 2 Pet., 522 ; 1 Cow., 550 ; é Dali., 309.) II. The General Assembly possesses the power to create new circuits, and to ehange the limits of old ones. (Oon. of Mo., Art 6, § U.) III.

•Appeal from Texas Circuit Court. I. The essential recitals in a sheriff’s deed, (W. S. 612, § 54.) are, the date of the execution, the time, place, and manner of sale, and a description of the lands sold. These recitals are all correctly made in the sheriff’s deed to White, and are prima facie evidence that the sale was made according to law. (Tanner vs. Stein, 18 Mo. 580; Crittenden vs. Leitensdorfer, 35 Mo., 239.) II.

I. The purchaser at a sale, made by a mortgagee selling under a power, for the payment of debts, must take notice of the title and its defects. He buys at his own peril. (Barnard vs. Duncan, 38 Mo., 170.) II. There is a want of privity, and there are no equities in the bill.

<p>1. FraudulentOonveyances — Personal property — Mortgages—Sale, dill of — Possession. — In an action for the recovery of specific personal property by A. against D., it appeared that C. mortgaged this property to A., which mortgage was acknowledged and recorded. C. made a bill of sale of the same property to B., which was only intended to be a mortgage. This bill of sale was made after the first mortgage, but before the mortgage was acknowledged or recorded. The bill of sale was not acknowledged. C. remained in possession of the goods, but some months afterwards, and after the mortgage was recorded, B. took possession and sold the property to D. Held, that A. was entitled to recover the property from D.</p>

I. The act of the Legislature, (Sess. Acts 1870, p. 200, § 15) to say the least, is of doubtful and dangerous propriety. The transcript fails to show that any record of the appointment of Phelps as Judge pro tern, was made. Act of Legislature 1870, p. 200, section lé and 15, together with section 42 same act, authorize the appointment of a Judge, pro tern.

I. The admissions of the widow, as to her control over, and influence exerted upon deceased in the making of said alleged will, should have been admitted. II. The burden of proof of the will, is on the propounders of it.

Quo Warranto. I. This Court has jurisdiction. (Const.,, Mo., Art.YI. § III.) II. This case must proceed by com. law, because in such cases in this State we have only com. law and equitable remedies, III. A commission issued to a party by the Governor is not conclusive as against the State, complaining, through lier proper officer.

<p>1. Partners — Joint funds — Speculation by one. — Generally one partner cannot speculate with the partnership funds for his individual benefit.</p> <p>2. Partners — Joint funds — Speculation by one — Damages.—A. B. & O. shipped goods jointly from America to D. in England to sell for them. A. on his private account drew a bill of exchange on D., but this action did not cause nor affect the sale of the property. D. sold this bill of exchange, there being at the time a great difference in price between gold and U. S. Treasury notes. A. invested the money so realized and lost by his investments. D. in settling with the.partners, charged them interest for the money advanced to A. on account of the bill of exchange. Held, that this interest in gold was the amount due from A. to the other partners.</p>

An estray is the subject of larceny. (State vs. Martin, 28 Mo. 530.) I. This indictment is not drawn under W. S. 461, § 46, and is bad under W. S. 460, § 45. II. It is not good as an indictment for simple larceny, because all the material allegations are stated argumentatively. (Bish. Or. Pr., § 269.)

<p> d'ppeal from Si. Clair Circuit Court. </p> <p>relied upon, Eort Dodge School District, vs. Dist. Township Wahkausa, 15 Iowa, 134; Ind. School District of Granville vs. Supervisors, 25 Iowa, 305 ; Gist vs. State, 21 Ohio St., 339.</p> <p>The law of 1870 only authorized: Any Oity, town, or village, the plat, &c., together with the territory attached, &c., to be organized into, and established as a single school district, but did not authorize inhabitants of said town, or any part of them, to include under said organization neighboring territory not before attached thereto. (State vs. Searl, 50 Mo., 268.)</p>

Jlffpeal from Vernon Circuit Court. I. The act of 1873 is not amendatory of, but repeals the act of 1872 by the most emphatic language. The court cannot construe a law that can only have one manifest meaning. (Sedg. Stat. Law, 121.) There is no question here of repeal by implication. (Newkirk vs. Chapman, 17 111., 344.) II.

1. Chap. 38, Art. 2, W. S. 348, governs the liability as to what criminal costs shall be paid by the State, County, and the prosecutor, and there can be no liability except that which is imposed by the plain provisions of the Statute. (Phelps County vs. Bishop, 46 Mo., 68.) 2.

It is not averred in the body of tbe petition that the State sues. [State vs. Matson, 38 Mo., 489.) 1. The petition contains an averment tliat defendants executed their bond to the State, which states the fact sufficiently. (Hayden vs. Sample, 10 Mo., 215.) 2. If the petition were originally defective, the deficiency is cured by the verdict and judgment. (Shaler vs. Yanwormer, 33 Mo., 386 ; Eichardson vs. Farmer, 36 Mo., 35 ; Stephens vs. Frampton, 29 Mo., 264.) 3.

■ The plea in abatement did not put in issue the facts alleged in the affidavit, and should have been disregarded, (W. S., 189, § 41; 196, § 74.)

I. Upon an indictment for murder in the first degree, and a conviction under such indictment for murder in the second degree, upon a new trial granted upon the motion of defendant, he cannot be again tried for murder in the first degree^ but may be for murder in the second degree or for any degree of manslaughter. (State vs. Ross, 29 Mo., 39.) (a.) Conviction for murder in the second degree is, by necessary implication, acquittal for murder in the first degree.

The petition does, not state sufficient. facts to show that plaintiffs have any cause of action against defendant. (Gould’s PI., 160.) The omissions in the petition are cured by the verdict. As a finding on those points was necessary to the finding of the verdict rendered, it will be presumed that their omission was supplied by the evidence. (Roper vs. Olay, 18 Mo., 383; Richardson vs. Farmer, 36 Mo., 35'; Shaler vs. Van Wormer, 33 Mo., 386.)

•Appeal from the Jackson Circuit Court. Where an order is drawn upon a party, and upon the face of the order it is payable out of an indebtedness of tbe drawee to the drawer, it is a bill of exchange, and any reference in the order to tbe source of tbe indebtedness, informing tbe drawer how he may re-imburse bimseif, does not change its character. (Pars. Bills and Notes, 44 and note.

Jlppeal from, Johnson Court of Common Pleas. I. The sale by tbe sheriff in tbe case at law, no order being Issued to him by tlie County Court, was coram nonjudice, and tbe deed made by him to defendant passed no title. a. When statutory powers are conferred on aninferior tribunal of limited and statutory powers, and a mode of execut■ing such powers is prescribed, the mode prescribed must be strictly pursued, or the acts of such tribunal are coram non judice, and void.

I. Parol testimony was admissible to show that Ballow was the only principal, and that the defendants were securities. (Poster vs. Wallace, 2 Mo., 231; Garret vs. Ferguson’s Admr. 9 Mo., 125.) II. There was a general settlement between the Bank and Ballow, and a balance found due to Ballow.

I. The 14th Section of the act incorporating this railroad is unconstitutional and against public policy, as it gives, to the County Court without restriction or limitation, the power to confiscate, by taxation, the entire property of any citizen of the county. (Wells vs. City of Weston, 22 Mo. 384; W. S. 36, § 16.1 II. The writ should not only show facts sufficient to entitle the relator to the relief he claims, but it should also show his right to all the claims.

Error, to Henry Circuit Court. When a duty is enjoined upon an agent or servant of a municipal corporation, which is purely ministerial, and is violated, or not performed, or negligently performed, so that an injury results, the corporation is liable to the party injured. (Wilson vs. Peverly, 1 Amer. L. Cas., 465, and note, where the cases are collected; Hilsdorf vs. City of St. Louis, 45 Mo., 94; Ang. and Am.

<p>1. Corporations, municipal — Streets—Changing grade — Damages—Liability.— A city is not liable for the damages which may accrue to a property owner merely from a change in the grade of the streets.</p> <p>2. Kansas, City of — Charter—Establishment of grades of streets — Maps there■ of — Change thereof — Liability to an individual. — The Charter of the City of Kansas required the City Council, as soon as practicable, to establish the grades of all the streets in the City, to prepare and exhibit to public view a map thereof and thereafter only to change such grade after due public notice, etc. Held, that the City could not be held liable in damages at the suit of a private party for not obeying this provision of its Charter.</p>

I. The description in the deed is so contradictory and uncertain, that neither the court, nor defendants can know what specifie land is sued for, nor where it lies. (MeClean vs. Martin, 45 Mo. 393.) II. There was a misdescription and no title passed. (Hartt vs. Reetor, 13 Mo. 505.) III. A judgment or decree can only bind parties and privies. (1 Starlde, 186, 191-2.) Defendant holds by purchase at execution sale, and had no notice, actual or constructive.

An improvement on public lands is not subject to an execution sale. (Hatfield vs. Wallace, 7 Mo., 112.) A preemption, until accepted by proof of the pre-emption and payment of the money, amounts to. nothing more than an improvement on the public lands. The plaintiff acquired nothing by his purchase on execution, the privilege of the preemption being personal.

<p>1. Sheriffs' deeds — Acknowledgment» certificate of — Extrinsic evidence. — The certificate of acknowledgment by a Sheriff to a deed must be within and of itself complete, and no extrinsic evidence can be invoked to eke out its recitals. [Samuels vs. Shelton, 48 Mo., 444.]</p> <p>2. Sheriff — Deeds—Acknowledgment—‘Open court — Informality.—An acknowledgment of a deed by a Sheriff, certified to by the Clerk of Court and stated, by him to be entered of record in the records of said Court, is not invalidated, because stated to be taken .before the judge. . It is evident that the clerk used the words “ Judge of the Court” as synonymous with “ Court,” and it may be regarded as a mere informality.</p>

I. The petition contains but one count in which are commingled four separate and distinct causes of action. (Kansas City Hotel Co. vs. Harris, 51 Mo., 464.) II. The finding and judgment are both a part of the record, and, even had there been no motion in arrest, a single finding of one entire gross sum, where there are several causes of action stated in the petition, would be bad on appeal, or writ of error; as it would be an error apparent of record.

I. The commissioners liad no right to consider any ad vantage that was not special to the land to he condemned ; and they had no right to off-set special dis-advantages by general advantages. (19 Mo., 165.) I. The motion to set aside tbe report of commissioners is addressed to the court. Instructions in such a case are not proper, and the refusal of them cannot be assigned for error. (Conran vs. Sellew, 28 Mo., 320 ; Parker vs. Waugh, 31 Mo., 310.)

-Appeal from Greene Circuit Court. I. If it be necessary in a case like tliis to charge in the indictment the county where the offender was apprehended, it would be impossible to indict any one until he should have been first arrested for the offense. I. The defendant must have been in custody in Gjreene county at the time of the finding of the indictment, and the indictment is fatally defective in not averring that fact. (1 Rus. Or., 189 ; 2 Bish. Or.

I. The Legislature, by act of Jan. 26th, 1864, changed the time of holding courts in Folk Circuit, and made “ all writs, process and proceedings returnable to the substituted terms.” The Legislature had the right so to enact. (Carson vs. Walker, 16 Mo., 68.) II. ' In attachment causes, it is the levy of the attachment on property which gives the court jurisdiction.

<p> Appeal from, the Jackson Circuit Court. </p> <p>I. The counter-claim here pleaded, arose “out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim,” and was “connected with the subject of the action.” (W. S., 1016, § 23.)</p> <p>The two defenses are inconsistent. The first is a denial of every allegation in the petition necessary to constitute a cause of action. The second is a confession and avoidance. (Adams vs. Trigg, 37 Mo., Ill; Fugate vs. Pierce, 19 Mo., 441.)</p> <p>The counter-claim was properly stricken out. 1st. There was no mutuality of indebtedness between plaintiff and defendant Smallwood.</p> <p>2d. The damages were unliquidated, and could nof be pleaded as set-off. (W. S., 2273; Johnson vs. Jones, 16 Mo., 191; Mahan vs. Boss, 18 Mo., 121; Pratt vs. Menkins, Ibid. 158 ; Brake vs. Corning, 19 Mo., 125.)</p>

Appeal froth Lawrence Circuit Court. .1. The bond is wholly void. It was not given by the defendant or by any third person, in whose hands the property was found.

<p>1. Practice, Supreme Court — Statement and brief. — Where plaintiff in error fails to file a statement and brief, the writ will be dismissed.</p>

<p>X. Principal and sureties — Prior suit against principal, when unnecessary. — . The condition of a bond was, that a holder should not prosecute the sureties till he had exhausted all legal remedies against the principal. Held, that where the principal was totally insolvent and nothing could be realized out of him on execution, it was unnecessary to bring suit against the principal before proceeding against the sureties.</p>

<p>(The road from Pilot Knob to the Arkansas State line was an extension of the St. Louis &I. M. R. R.)</p> <p> Petition for Mandamus. </p> <p>I. The designation of the sum of $664,300 in § 8, was merely descriptive of the fund, and was not intended to limit it; and the intention should, control the letter. (44 Mo., 283.)</p> <p>II. But for the act of March, 1868, undoubtedly this sum when paid in would have belonged to the State interest fund, as provided by the General Statutes; but the act of 1868 worked a repeal of the General Statutes, so far as the purchase money of the St. Louis & Iron Mountain R. R. and the Cairo <fc Pulton R. R. were concerned, and appropriated this fund to the building of the Ai-kansas branch of the St. Louis & Iron Mountain R. R.</p> <p>I. There is no room for construction of the law. (18 Ohio St., 456; 42 N. Y., 259; 44-Mo., 283 (35 Cal.,634; 54 Penn., 86 and 180; 6 Wallace, 458.)</p> <p>II. The 40,458 dollars having been derived from the sale of railroads and paid into the treasury, was required by the statute, (W. S., 1281, §§ 1, 3,) to be' placed in the interest fund. It was so placed, and it is now inviolable. It has long since been appropriated to the payment of interest on State bonds. There is no law by which it 'can be drawn from the treasury, •except for the purpose of paying State railroad bonds or interest.</p>

<p> Appeal from Johnson Court of Common Pleas. </p> <p>cited, 11 Mo., 117; 1 Clark, (Iowa,) 571.</p>

I. Defendant in the execution had no equity which was vendible by execution sale. (Eog'ers vs. Carey, and authorities there cited, 47 Mo., 232.) II. “ A sheriff’s deed operates only on the existing title, and does not pass a subsequently acquired title.” (White vs. Davis, 50 Mo., 333.) I. The statute is imperative that “ the demurrer shall distinctly specify the grounds of objection;” and unless it does bo, the demurrer “should” be disregarded.

Jlpjieal from Greene Circuit Court. I. The matter in controversy was res adjudícala at the commencement of this suit. II. If the respondent was aggrieved by the verdict of the Mayor’s Jury, he had a complete and adequate remedy by certiorari and be should have pursued it. (49 Mo., 182; 45 Id. 861; Anderson vs. City of St. Louis, 47 Mo., 479; Ewing vs. St. Louis, 5 Wall, 413 ; 47 Mo., 474 ; 8 Wend., 47; 2 Bac.

<p>1. Certiorari, writ of — Kansas City Court of Common Pleas. — Since the act of 1859 (Sess. Acts 1859-60, p. 10,) the Clerk of the Kansas City Court of Common Pleas has had authority to issue the writ of certiorari.</p>

Jlppeal from Lafayette Circuit Court. I. The court erred in sustaining the motion for an entry of “ not guilty ” — “ nunc pro tuncP Our Statute, (W. S., 1095, § 5,) peremptorily requires the plea of “not guilty” to be entered for a defendant at the time of, or when he “shall be arraigned upon any indictment” —if he deny the charge in any form, or require a trial, or if he refuse to plead or answer, and in all cases, When he does not confess the indictment to be true.

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

<p>1. Judgment, final — Appeal.—A judgment for defendant, which is merely one for costs, is not a final one, and will not authorize an appeal.</p>

I. The motion to discharge the defendant made in the Circuit Court, and overruled, was such a final judgment as could be brought here by appeal or writ of error. (State vs. New-kirk, 49 Mo;, 472, and cases there cited.) I. There is no final judgment in this ease, from which an appeal will lie.

I. Th.e petition is vague and too indefinite to support a judgment for the violation of a penal statute. It does not clearly state the act complained of, whether there was an entire failure to file a statement, or whether an imperfect statement was filed, which was treated as no statement. II. Section 43 is so ambiguous and confused, and made to affect so many acts or omissions, that it should not be. enforced. (State vs. Boon, 1 Taylor, 246; Cheezen vs..

<p> Error to Boone Oircuit Court. </p>

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

I. The several executions issued against Brown and Thomas in favor of Lacy, after the death of Brown, were void, and the purchaser under them took no title. (See, § 20, p. 741, R. 0., 1855; 4 How., 58, leading cases in part; 6 Ala., 657; 4 Ala., 735; 19 Mo., 650; 16 Mass., 190; 4 Wall., 237, in point; 2 McLean, C. C., 59; 4 Iredell L. R., p. 377 ; Woodcock vs Bennett, 1 Cow., 738.) I.-The execution was not void.

I. The filing of a plea in abatement was an entry of appearance in the cause, and authorized a general judgment, if either party resided in Pettis county. (Evans vs. King, 7 Mo., 411.) And there being no evidence to the contrary, it will be presumed in favor of the judgment, that appellant did reside in Pettis county. Hence the rule laid down in Peery vs. Harper, (42 Mo., 131,) does not apply to this case. II.

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

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

I. Parties making a mistake in matters of fact are not held bound by acts committed by them under such mistake. (Marshall vs. Collett, 1 Y. & C. 238 ; Groves vs. Perkins, 6 Sim., 57.6 ; Currie vs. Steele, 2 Sandford, S. 0., 542; Turner vs. Turner, 2 Ch. E., 81; Bingham vs. Bingham, 1 Yes., 127; Gee vs. Spenser, 1 Yerm., 32; 1 Sto.

<p>1. Practice, Supreme Court — Points not presented in motion for new triol, not examined afterward. — Grounds of objection, not set forth in motion for new trial, will not be heard in the Supreme Court.</p> <p>2. Practice civil — Supreme Court — Evidence—Re-examination of — Where there is any evidence to sustain a verdict, the testimony will not be weighed by the Supreme Court.</p>

<p> appeal from, Olay Circuit Court. </p> <p>I. When the substituted purchaser obtains the sheriff’s, deed, he is invested with all the rights, remedies and interests of the party in whose stead he is substituted. (Wimer vs. Obear, 28 Mo., 242 ; 1 Littell, 17; 1 Wend.,'46.)</p> <p>II. If appellant had not made any disposition of his purchase, and had received the deed from the sheriff without any examination of the title, and the money had been paid to the plaintiff in the execution, he could not recover it from the sheriff, nor from any other person. So with respondents; they cannot recover from Gordon, if he is without remedy. Courts will not permit vendors to recover the purchase money, unless the vendee can be placed in statu quo. (Adams Eq., 392; note.)</p> <p>III. The defendant in the execution, as he has received the benefit of the sale, is bound in equity to make good the mistake. (McLean vs. Martin, 45 Mo., 393.)</p> <p>I. The doctrine that money paid under a mutual ■ mistake may be recovered back is well established. (McLean vs. Martin, 45 Mo., 393; Bank of Commerce vs. Union Bank, 3 N. Y.. 230; Wheaton vs. Olds, 20 Wen;, 175.)</p>

I. Municipal corporations are bound to keep streets, &c., in a proper state of repair and free from obstructions, so that they will be reasonably safe for travel, and if they neglect to do this, they will be held liable for all injuries resulting from such neglect. (Blake vs. City of St. Louis, 40 Mo., 569; Alger vs. City of Lowell, 3 Allen, 402; Beecher vs. Larkin, 19 Mo., 192.) II.

Jljppeal from Carroll Circuit Court. I. Under the issues, as formed by the pleadings, defendant could not prove that the .possession or title was in bis wife, or outstanding in a third party. (Bruce vs. Sims, 34 Mo., 246; Dougherty vs. Matthews, 35 Mo., 520 ; Harris vs. Han. & St. Jo. E. B., 37 Mo., 307; Jones vs. Louderman, 39 Mo., 287.) II.

<p>1. Mortgages — Redemption of incumb-ances by subsequent owner — Payment of usurious sums, etc. — The owner of land has his action in equity to redeem it from an. incumbrance placed upon it by a prior owner, by paying the amount justly due thereon, deducting from the incumbrance whatever part thereof consists of usurious interest; but he can make no deduction for usurious interest already paid by the former owner.</p>

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

<p>1. Practice, civil — Exceptions not saved on trial below. — When exceptions, are not saved at the time, the rulings of lower courts will not be reviewed above.</p> <p>2. Court sitting as a jury — Conflict of evidence — Instructions, etc. — Where the court sits as a jury, and the evidence is conflicting, it errs in giving an instruction, that upon the evidence plaintiff is entitled to recover.</p> <p>3. Forcible entry and detainer — Possession of defendant — Demand, etc. — To sus. tain an action for forcible entry and detainer, defendant must be in actual possession of the premises, or a part thereof, at the institution of the suit.</p> <p>To sustain such action, no prior demand for the possession need be made.</p> <p>4. Forcible entry and detainer— What possession necessary to maintain. — To establish the possession necessary to maintain forcible entry and detainer, plaintiff need only show that he entered the premises with a view to holding possession, and that his purpose was lawful. A subsequent merely temporary absence will not deprive him of his right. He must be in actual possession; but may be so either in person or by his agent.</p>

I. At Forest City,where plaintiff could get a seat, be offered, to enter into a new contract, and tendered his fare to Bigelow, wliicli defendant refused and turned liim off tbe train,when he was in justice and in law entitled to a ride. It must be an extreme case which will excuse or justify a E. E. Company in absolutely refusing to carry a passenger. (2Eedf. Eailw.,(4th Ed.,) 257, § 198 ; 258, n. 4.) II.

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

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

<p> 'Appeal from, Livingston Circuit Contri. </p>

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

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

In this case it appears that the money received by defendant was less than the amount of the mortgage debt. Error to Buchanan Circuit Court. I. The judgment rendered is substantially a judgment against the plaintiff, Hawkins, and the judgment for costs should have followed the judgment upon the merits, and been in favor of defendant, Nowland, against Hawkins. (1 AY.

<p>1. Trusts — Consent to appointment of trustee, not authorized by law — Sale of property — Estoppel.—In case of refusal of a trustee, appointed under a deed of trust, to act in the premises, the court has no authority to appoint any person to carry out the trust except 'the sheriff of the county ; but where all parties interested in the trust advised and consented to such appointment, and permitted such appointee to execute the trust and make bona fide sales of the estate; audit appears that the purchasers made permanent and valuable improvements on the property; a.nd that the proceeds were applied to the satisfaction of the debts secured by the trust deed; they will be estopped in equity from disputing the authority of the trustee or the validity of the sales.</p>

. I. Mrs. Pitcher acquired a title in fee simple; and if so, that title passed to the plaintiff, of course. (Arthur vs. Weston, 22Mo., 378 ; English vs. Beehle, 32 Mo., 186 ; McDowell vs. Brown, 21 Mo., 57; Olap vs. Draper, 4 Mass., 266.) I. By the deed from Lard, Mrs. Pitcher acquired an undivided interest equal to that of each of her children in esse at the date of Lard’s deed.

<p>1. Criminal law — Complaint—Venue.—In criminal proceedings for assault and battery, the complaint of the prosecutor filed with the justice is a part of the proceedings, and an averment therein, that the offense was committed in the county, sufficiently lays the venue.</p> <p>2. Evidence — Witness—Impeachment of — What foundation must be laid. — To impeach a witness on the ground that he had made contradictory statements, his attention must be called to the time, place and circumstances, and the persons to whom the statements were made.</p>

<p>1, Justices' courts — Default—Appeal—Motion for new trial — Dismissal of judgment for costs. — An appeal from a justice is properly dismissed, where appellant suffered default before the justice, and filed no motion to set the same aside. A further judgment in such case in the Circuit Court against the appellant and his sureties on the appeal bond for costs is a nullity so far as the surety is concerned ; but not such an error, as to reverse the judgment of dismissal.</p>

<p>1. Equity — Note, judgment procured on by fraud — Sale and purchase under, effect of. — Where the maker of a note, given for the purchase money of land, suffered the holder to procure judgment thereon, upon the strength of assurances from the latter that he intended to procure judgment merely to secure the debt, and that the judgment should be held in abeyance, and the holder afterward, without the knowledge or consent of the maker, caused the land to be sold under the judgment, and bought it in; held, that the maker of the note might resort to equity to have the sale set aside on payment of the note, and other proper relief administered. A title so obtained could stand only as security for the reimbursement of the debt.</p>

cited: Henderson vs. Drace, 30 Mo., 358; Jasper county vs. Chenault, 38 Mo., 357 ; Tevis vs. Hughes, 10 Mo., 380 ; 1 W. S.,. 183, § 9. I. This is not the case of a defective bond. It is one in which the paper claimed to be a bond is a nullity. The statute expressly- requires, that the bond shall be executed by some one as principal, and the mode pointed out by the statute must be strictly followed. (Stevenson vs. Eobbins, 5 Mo., .18; Drake Attach., §§-115, Í17, 121; 124.)

<p> Appeal from Oaldwell Cirouil Oourt. </p>

<p>1. Election — Ballots, not numbered cannot be counted — Const, of Btat. — The provision of the statute eoncerning elections (W. S., 566-67), that all ballots cast shall be numbered, and that ballots not numbered shall not be counted, is not merely directory but mandatory. And an officer, elected Oy votes not numbered as required by that statute, will, on contest raising that issue, be field to have forfeited his election.</p>

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

<p>1. Execution — Garnishment wider — Interrogatories filed by plaintiff — Prior execution — Payments.—Where plaintiff in an execution causes interrogatories to be filed and garnishees to be summoned, it is error for the court to order money,- paid into court under those proceedings, to be turned over to the plaintiff on a prior execution against the same defendant; plaintiff in the first execution not having ordered interrogatories to be filed, or garnishees summoned. And semble, that no such steps can be taken on an execution by the sheriff without directions of plaintiff.</p>

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

<p>1. Vendor's lien — Enforcement of — Land of wife — Money paid husband. — Semble, that the wife is not a necessary party to an action for the enforcement of the vendor’s lien on land belonging to the wife, and in which the husband had a marital interest, when by the terms of the sale, the purchase money was to be paid to the husband.</p> <p>2. Practice, civil — Pleadings—Defect of parties__The objection of defect of parties can be raised only by demurrer or answer. (W. S., 1014, \ 6 ; 1015, g 10.)</p>

I. The negligence of the respondent was sufficiently shown to make at least a prima facie cuse. -(Sbearm. and Redf. on Neg., 396, § 333 ; Redf. Railroad., 465 ; 42 111., 407; 45 Mo., 322; 46 Mo., 456.) 13. The damages are not too remote. (Sbearm. and Redf., Neg., 667, 669, §§ 594, 596; Sedgw. Meas, of Dam., Marg., pp. 58 and 59; Sharp vs. Powell, 2 Eng., 587; Kellogg vs; E. E. Go., 26 Wis., 225 ; 53 111., 451; Eent vs. Toledo E. E. Co., 111. Sup.

The intention of the testator must govern in the construction of the will (4 Kent, 534) ; and it will not be presumed, that the testator intended to give his wife the entire estate, or to give her the power to spend his entire property with a second husband, and leave his infant children in utter poverty. (Saylor vs. Plaine, 31 Hid., 138.) The will gave Elvira Turner only a life estate.

•Appeal from Linn Common Pleas. I. The certificate of the notary was not given “ under the hand and official seal” of said notary. The certificate was therefore insufficient, (W. S., 275, § 12 ; 960, § 6 ; 2 Greenl. Ev., § 294; Dail vs. Moore, 51 Mo., 589.) II. The court erred in excluding the evidence offered by defendant to show that the title of Jane Miller, under which plaintiff claimed, was fraudulent as to the creditors of Isaac Miller, the husband of said Jane Miller.

Picas, I. The plaintiff ought not to have been permitted to maintain his suit upon a mere copy of a note, not accompanied by any affidavit of the loss or destruction of the original, or by even any statement accounting for the absence of the original. (Hook vs. Murdock, 38 Mo., 224; W. S., 813, 814, §§ 9, 10.) II.

<p>1. Evidence — Admissions of deceased person as to resulting trusts. — Testimony as to verbal admissions of persons, since dead, is to be received with great caution, and whenever it is attempted to prove resulting trusts by virtue of such admissions, the testimony must be clear, strong and unequivocal, and leave no room for doubt in the mind of the chancellor, as to the existence of such a trust. And the admissions should be supported by other circumstances going also to show the existence of the trust</p>

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

I. The fact that the grantor 'remained in possession after condition broken, is not sufficient. It must be shown that it was done with the intention to claim the forfeiture. (Williard vs. Henry, 2 N. H., 120.) The authorities which hold that a re-entry is not necessary, or that remaining in possession is presumedly holding for the forfeiture, like 5 Mass., 320, are based upon statutes like G. S. Mass., 1860, Oh. 134, § 3. • II.

<p> Appeal from Linn Circuit Court. </p> <p>I. Plaintiffs’ right of action, if any they had, was barred by the statute of limitations. (W. S., 918, § 11; Mitchell vs. Palbright, 32 Mo., 551.)</p> <p>I. The statute did not begin to run until the appellant made return on the writ of attachment, showing what he did with the attached goods, which was not until the 10th day of December, 1870. Simply depositing' the writ in the clerk’s office, without showing what had been done with it, was no return at all. (Kirk vs. Sportsman, 48 Mo., 383; State vs. Minor, 44 Mo., 373; State vs. Gutzweiler, 49 Mo., 17; Nelson vs. Brown, 23 Mo., 13.)</p> <p>II. Bespondents Were not affected by facts attending the attachment which did not appear in the return. (2 Hill. Torts, 222, § 4; Franklin Bank vs. Small, 26 Me., 136.) And the return in this case did not show, that the dry goods had ever been attached or released, until it was amended by the appellant on the 10th day of December, 1870. The statute of limitations did not begin to run in his favor until that time. (2 W. S., 918, §11; Foley vs. Jones, 52 Mo., 64; Miller vs. Woodward, 8 Mo., 169.)</p>

I. The affidavit filed for plaintiff in the office of the clerk of the Circuit Court of Linn County, was insufficient to create a lien on the property. (W. S., 909, § 5 ; McWilliams vs. Allan, 45 Mo., 573.) ' I. It is not necessary that the original account of the demand, or a copy thereof, “(filed for the purpose of securing the lien,)” should have been filed with the plaintiffs petition.

cited: Stone vs. Corbett, 20 Mo., 3o0 ; Williams vs. Bower, 26 Mo., 601. I. Whatever may have been the defects in the summons or its service, the appearance of defendant cured such defects, (Barnett vs. Lynch, 3 Mo., 369 ; Davis vs. Wood, 7 Mo., 162; Bartlett vs. McDaniel, 3 Mo., 55 ; Schalter vs. Hunt, 1 Mo., 651; Whiting vs. Budd, 5 Mo., 443; Griffin vs. Samuel, 6 Mo., 50; McNair vs. Biddle, 8 Mo., 257; Whittlesey’s Mo. Prae., 195-6; W. S., (2nd Ed.) 815, § 16 and note.)

I. The court erred in overruling the motion in arrest of judgment. The Circuit Court being a court of record of gen-eral and common law jurisdiction, the parties are entitled to a jury of twelve men in all civil cases triable therein by a jury ; and no cause can be legally tried by a jury of any less number without the consent of the parties thereto, duly entered of record. (Yaughn vs. Scade, 30 Mo., 600 ; Brown vs. Han. & St. Jo.

<p> Appeal from Lewis Circuit Court. </p> <p>Defendant’s default was a confession of all tlie material allegations of the petition.</p>

I.-All promissory notes are payable at the - time indicated, therein, absolutely and without days of grace. (W. S., 216, § 15.) Section 18, W. S., 217, merely adopts a different mode of expression. I. The note sued on, being for the payment of money to ' the payee therein named, or order, and expressed to be for value received, ivas negotiable, and in this State has the same effect as an inland bill of exchange, under the law merchant. (W. S., 216, § 15: Kel. Mo.

I. The only way, in which the court below can rightfully obtain equity jurisdiction, is by a change of venue from the Circuit Court (Sess. Acts 1853, p. 81, § 1; 82, §§ 5,6); for courts of limited and inferior jurisdiction, and local courts, must keep within the prescribed powers of their creation.

Louis Circuit Court. I. It is immaterial what the language of the deed, as at first drawn, was, but all the parties must be governed by the deed as amended by the decree. The words “sole and separate” are recognized by tlie law as expressly indicating tbe intention of tbe parties to exclude . marital rights.. (Wills vs. Sayers, 4 Madd. Ch. [R., 216; Clancy on [Rights, 263 ; 2 Story Eq. Juris., § 1382; Nix vs. Bradley, 6 [Rich.

Charles Circuit Court. I. The evidence of defendant’s claim was inadmissible. The mere delivery of the sacks by plaintiffs to defendant was no acceptance or receipt of the goods purchased, nor was any such part performance by either party, as could take the case out of the statute of frauds.

I. The only purpose for which the tax-deed could have been used at all was to show color of title in the defendants, and inasmuch as they had failed to show possession for ten years, or evidence tending to show that fact, the deed was not competent for any purpose. II. A donation of the block could not be shown by oral testimony.

Louis Criminal Court. I. The general laws of the State exempt defendant from any liability to pay this license tax. (W. S., 752, § 40.) II. The amended charter of the city (Sess. Acts, 1870, 464) gives the city power to license, tax and regulate insurance companies, but it does not repeal W. S., 752, § 40, 'and therefore, if both acts can stand, they will be construed so that both shall stand.

I. Technicalities should not be regarded in pleadings before courts of limited jurisdiction. It was the duty of the Circuit Court to proceed to hear, try and determine this cause upon the merits.

<p>1. Practice, civil — Trials—• Written instruments — Who interioréis. — -It is the duty of the court to ascertain and interpret the meaning of written instruments as a matter of law, and the duty cannot be shifted to the jury in the shape of questions of fact.</p>

I. The Township Board of Education is responsible for the teachers’ wages; it is a body politic with power to sue and be sued, while the local board has no legal existence as a person either natural or artificial, and hence can neither sue nor be sued. The whole tenor of the School law, plainly shows that the Township Board is the only responsible party. (R. C. 1865, Chap. 46.) I. The Township Board of Education is not liable, on the contract made b,y the local directors. II.

I. A new bond given in a proceeding had under §§ 36, 37, 38 and 39, (E. O. 1855, pp. 119, 120,) when approved, has the effect of discharging the former securities from liability for the misconduct of the principal after the filing of such new bond; but a bond given under § 41 is supplemental to the former bond, and does not discharge the securities in such former bond from liability for the misconduct of the principal after the filing of such supplemental bond, and there is…

.Error to Iron Circuit Court. I. The rights and duties of the trustee depend upon the instrument creating the trust. (2 Wash. Eeal Prop,, (3rd Ed.,) 482.) These powers are special and must be strictly pursued. (Balis vs. Perry, 51 Mo., 449 ; Wallis vs. Thornton, 2 Brockenb., 422.) II.

I. The evidence is so overwhelmingly against the finding, as to shock the moral sense. I. There being no question of law saved for review, this court will not weigh the evidence, especially as the preponderance of evidence is in favor of the judgment. (St. Bt. City of Memphis vs. Mathews, 28 Mo., 248 ; Backster vs. Hull, 28 Mo., 593; Jones vs. Plummer, 29 Mo., 456; McLean vs. Bragg, 30 Mo., 262; Thompson vs. Russell, 30 Mo., 498.)

I. This was not a congregation “met” or “assembled” at the time the acts complained of were committed, and the defendant is not guilty as charged in the indictment. (32 Mo., 548.)

<p> Appeal from Oape Girardeau Court of Common Pleas. </p> <p>I. The Cape Girardeau Court of Common Pleas has jurisdiction of actions seeking to enforce mechanics’ liens. (Sess. Acts 1853, p. 81, § 1; W. S., 999, § 1.)</p> <p>II. The cases of Schell vs. Leland, 45 Mo., 289, and Gaty vs. Brown, 11 Mo., 139, cited by defendants, do not apply, for the jurisdiction of the courts referred'to was expressly limited.</p> <p>I. The act, creating 'the Court of Common Pleas of Cape Girardeau county, does not confer jurisdiction on the court to enforce mechanics’ liens. (Sess. Acts 1853, p. 81.)</p> <p>' II. The act organizing the court being silent on the matte)-, it is necessary to bring suit to enforce a lien in the Circuit Court. (W. S. 907, § 5, et seq.; Gaty vs. Brown, 11 Mo., 139; ' Schell vs. Leland, 45 Mo., 289.)</p>

Francois Circuit Court. I. The taking of the indemnity bond by the officer released -him from all liability to an action by the claimant who gave notice of his claim.

<p> Appeal from, Macon Circuit Court. </p> <p>I. The statute begins to run from the day respondent moved to Missouri. (7 Mo., 241; 15 Mo., 209.)</p> <p>IE. We ask the court to review and revise the decision in 22 Mo., 330.)</p> <p>I. Remedies on contracts are to be regarded and pursued according to the law of the place where the action is instituted ; and not by the law of the place where the contract is made. (Bobb vs. Shipley, 1 Mo., 229 ; Cartmill vs. Hopkins, 2 Mo., 220; King vs. Lane, 7 Mo., 241; Broadhead vs. Noyes, 9 Mo., 56 ; Dorsey vs. Hardesty, la., 157 ; Carson vs. Hunter, 46 Mo., 467; Stephens vs. St. Louis Nat. Bank, 43 Mo., 385; Ang. Limit., (Ed. of 1846,) ‘Chap. 8, and cases there cited ; Pearsall vs. Dwight, 2 Mass., 83 ; Nash vs Topper, 1 Caines, 402; Ruggles vs. Keeler, 3 Johns., 263; Toulandon vs. Laehenmeyer, 6 Abb., Pr., (N. S.,) 215 ; S. C., 37 How .Pr., 145;-Byrne vs. Crowninshield, 17 Mass., 55.)</p>

I. This is not a “ demand against an estate,” but a demand in favor of an estate; and hence, this cause does not fall within the words of Sess. Acts, 1865-6, p. 85. The Circuit Court based its decision upon Dodson vs.. Scroggs, 47 Mo., 285, but that case does not go so far. II. The judgment should have been against the administrator as such. (Ranney vs. Thomas, 45 Mo., 111.)

<p> Error to JYew Madrid Circuit Court. </p>

Charles Circuit Court. I. A contract of this kind is not regarded as a lease, bnt more in the nature of payment for services rendered by a part of tlie crops raised. In order to constitute a lease, the occupant must bave an interest in the soil and freehold. (Maverick vs. Lewis, 3 McCord, 211; Fry vs. Jones, 2 Rawle,ll; Adams vs. Mikesson, 53 Penn. St., 81.) II.

<p> Appeal from Monroe Circuit Court. </p> <p>I. There is no allegation in the petition that the respondent, Lydia M. Loyd, exercised proper care in attempting to aligbt from the coach in which sbe had been riding. This is an affirmative allegation, without which she was not entitled to recover. (Chicago, B. & Q. R. R. vs. Hiizzard, 26 111., 373; Evansville R. R. Co. vs. Dexter, 21 Ind., Ill ; Indianapolis, P. & C. R. R. Co. vs. Keely’s Admr. 23 Ind., 133; Gahagan, Admx. vs. Boston & Lowell R. R. Co., 1 Allen, 187.)</p> <p>II. The respondent’s evidence did not show that she .exercised proper care in alighting from the coach. She stepped out from' the train after it had moved half a car length. (Ohio & Mississippi R. R. Oo. vs. Scliiebe, 44 111., 460; Railroad Oo. vs. Aspell, 23 Penn. St., 147 ; Damont vs. Carroll-ton R. R. Co., 9 La. An., 441; Lucas, Admr. vs. Taunton & New Bedford R. R. Co., 6 Gray, 64;' Gavett vs. Manchester & Lawrenceburg R. R. Co., 16 Gray, 501; Gilman vs. Deer-field, 15 Gray, 577; Siner vs. Great Western Railway Co., 3 Excli. (Law) R., 150; Gahagan, Admr. vs. Boston & Lowell R. R. Co., 1 Allen, 187 ; Adams vs. Carlisle, 21 Pick. 146; Murphy vs. Deane, 101 Mass., 455; Wilds vs. Hudson River R. R. Co., 24 N. Y., 430.)</p> <p>III. The court below should have set aside the verdict of the jury, on account of the misbehavoir of the respondent, Lydia M.’Loyd, towards Miss Alice B. Johnson, whilst she was testifying for appellant. Miss Johnson had never been in court or testified before. She was young, modest, and easily embarrassed. The respondent’s interruption did embarass hqr so much that she was unable to testify to all the facts material to the case, to which she could and would have testified to if she had not been interrupted. Her affidavit made since the trial shows this very clearly.</p> <p>IY. The counsel for the respondents, Thomas L. Anderson, misbehaved in the closing argument to the jury. He made statements of facts and lugged in rumors .in regard to other .causes and matters in which the appellant was concerned, not relevant to the case, and not in evidence, which were not true, and which misled and prejudiced the jury.</p> <p>During the argument by the respondents’ counsel, the appellant’s counsel requested the court to require the respondents’ counsel to confine himself to the evidence. The court declined to interfere. (Tucker vs. Henniker, 41 N. IT., 317; Mitehum vs. State of Georgia, 11 Ga., 629 ; Berry vs. State of Georgia, 10 Ga., 521.)</p> <p>Y. The court erred in not making the order for the examination of- Mrs. Loyd, after she had refused to be examined. No medical man had testified in regard to the nature and extent of her injury at the time of the trial. There was no evidence before the jury as to her condition then.</p> <p>There is certainly as much necessity for an examination in this case, or this hind of a case, as there was for the writ do, ventre inspieiendo at common law, that a widow, claiming to be enciente by her deceased husband, should be viewed-by twelve knights, and searched by twelve women, in the presence of the twelve knights, el ad traclandum per ubera, et ventrem inspieiendum. (Willoughby’s case, 1 Croke, 566; 3 Black., 361; 2 Tidd’s Pr., 795; 1 Dunlap’s Pr., 601.)</p> <p>I. The novel proposition, that the court should require the plaintiff to submit to examination by two physicians of defendant’s choosing, was properly overruled. There was no ground in law or reason for such a proposition and it could not be enforced.</p> <p>II. Another point relied on to reverse is, that counsel for plaintiffs, in the closing argument to the jury, “lugged in rumors in regard to other cases and matters in which defendant was concerned not relevant to this case, and not in evidence, which were not true and which misled and prejudiced the jury.”</p> <p>The court properly overruled the objection.</p> <p>If ex parte affidavits of this kind made by a single witness would set aside a verdict, no verdict would ever be allowed to stand, and the jury system had better be abolished. The argument aud conduct of the case is submitted to the nisi prim'judge, and in matters of this sort his power is discretionary. (Hilliard’s New Trials, 225, § 40; Hilliard’s New Trials, 225, § 40; 227, §§ 45, 48, 50 ; Cobb vs. State, 27 Ga., 648 ; 2 Waterman on New Trials, 47 and cases cited.)</p> <p>III. Another point relied on was “excessive damages.” Courts will not set aside a verdict on the ground of excessive damages, unless they are outrageously so, or there is reason to believe that there was passion, or prejudice, or conniption, on the part of the jury. (ILogg vs. Emerson, 11 How., 587; Wheaton vs. N. 33. 33. 33. Co., 36 Cal., 590; Boyce vs. Cal. Stage Co., 25 Cal., 460; Buss vs. War Eagle, 14 Iowa, 363.)</p> <p>The plaintiff remitted $1,500 of the verdict, leaving only ,$2,500, which is a reasonable sum for such injuries as plaintiff received. •</p> <p>IY. Appellant contends, that the petition does not aver, that plaintiff was in the “exercise of due care,” nor negative the idea of plaintiff’s own negligence. This is not necessary. (Thompson vs. N. 3VL B. B. Co., 51 Mo., 190; Shearm. on Neg., 46 ; 11 Wis., 160 ; 5 Barb., 337; 18 N. Y., 248 ; 1 Hilton, 213; 5 Dutch., 548 ; 37 Yer., 50.)</p>

I. If defendant signed the note as surety at the request of the maker and delivered it to him on the condition that he should obtain Dyer’s name, and the maker, without seeming it, delivered the note to the payee, who had received no notice of the condition upon which defendant signed the note, the latter is liable on the note. . (Farrell vs. Hunter, 21 Mo., 136.) II.

I. The double damage liability imposed by section 43, is a penalty recoverable only in the name of the State of Missouri. ' (W. S., 310, §§ 42, 43.) ■ The peculiar language of this section must be observed.

I. Our statute, (2 W. S., Ohap.;114,) giving to certain officers power and jurisdiction to order the arrest and seizure of public records, is in its nature a special writ of replevin, and can only… Held: that the statute conferring on the Supreme Court jurisdiction to try a contest for an office is unconstitutional. (Vail vs. Dinning, 44 Mo., 210.) The statute under consideration is a similar statute, with a similar object.

<p>1. Practice, civil — Instructions—Gross negligence. — An instruction declaring that a party was responsible only for gross negligence, without defining what was ' in law “ gross negligence,” is improper.</p> <p>2. Bailment — Deposit with inn-keeper— What care required. — An inn-keeper who gratuitously receives a deposit of valuables, is only responsible in case of their loss for gros3 negligence; i. e. for that omission of care which even the most inattentive arid thoughtless never fail to take of their own concerns.</p> <p>3. Bailment — Deposit—Liability—Onus.—A depositor makes out a prima facie case when he shows a deposit made, and a demand and refusal of the thing deposited. The omts is then upon the depositary to exonerate himself from the liability which attached when he assumed the custody of the article.</p>

I. The deed from the sheriff of Ralls Co. to McPike was on its face so vague and uncertain as to fail to describe any land whatever, and was, therefore, of itself, void, (2 Caines 65; 2 Wash. Real Prop, side p. 622; 13 Johns., 67; Id. 532), and the other evidence introduced did not supply the want of a proper description in the said deed, or cure the defect. (31 Mo., 579.) II.

I. The act of September 28th, 1850, (9 U. S. Stat., 519,) did not pass the title in fee to said States, proprio vigore and unconditionally, for want of words of present grant. The words in the first section are “ shall hef and same are hereby, granted to said State. The words “ shall be ” import futurity within themselves.

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

<p>1. Practice, civil — Publication—Non-appearance—General judgment. — General judgments cannot be rendered against a defendant merely upon order of publication, and not followed, by appearance of defendant.</p> <p>2. Practice,' civil — Actions in rem — Divorce.—A. divorce suit is a suit in rem, and the res is the status of the plaintiff in relation to the defendant.</p> <p>3-. Practice, civil — Publication—Non-Appearance—Divorce—Judgment in rem— Query. — Whether in a divorce suit by publication, not followed by appearance, property can be brought before the court by describing it in the petition, and demanding a judgment in rem for alimony ?</p>

I. Nothing is better settled in this State, than that, after the term at which .a final judgment is rendered, the court cannot interfere with it.

Jlppeal from St. Louis Criminal Court. I. The association of defendant should have been presented to the jury, by the evidence and the instruction, to have been for the purpose of rendering assistance to the dangerous class, proscribed by the ordinance. That is evidently the purport of the ordinance, or it is without authority of law.

Charles Circuit Court. I. The court erred in not sustaining the motion of appellant to strike out the defense of the counter-claim.

Jipjpeal from Jefferson Circuit Court. I. When a note is made payable at a particular place, presentment at that place for payment is sufficient. (Glasgow vs. Pratte, 8 Mo., 336; Lawrence vs. Dobyns, 30 Mo., 196.) II. The notary used due diligence. (Sto.

Atjojoeal from Audrain Circuit Court. I. Frank A. Leavitt was disqualified and incompetent as a ' witness as against Mary S. Leavitt, Ms wife and co-defendant. (1 Greenl. Ev., § 334; 1 Phillip’s Ev., 77 ; W. S., 1372; Fugate ■ vs. Pierce, 49 Mo., 441.) II. The parol evidence, as given by the witness Leavitt,was incompetent either to effect the deeds to Mrs. Leavitt offered in evidence, (Kimm vs. Weippert, 46 Mo., 532; 1 Greenl.

I. The deed from the sheriff was improperly admitted. It does not appear from the deed, wliat court, if any, or authority, ordered the sale of the real estate in said deed described. (Tanner vs. Stine, 18 Mo., 580 ; Lackey vs. Lubke, 36 Mo., 115; McCormick vs. Fitzmorris, 39 Mo., 24; Bn-, ehanan vs. Tracy, 45 Mo., 437.) 2. The date of the order is totally omitted.