Volume 54 — Missouri Reports

Louis Court of Criminal Correction. I. The Charter of the City of St. Louis gives the City Council power by ordinance, to “regulate or suppress” bawdy or disorderly houses, houses of ill fame or assignation. It is evident, that the Legislature intended to give the City Council power to control bawdy houses. And this power includes the idea of permissive existence. Under the power to “regulate commerce,” Congress has full and entire control of the whole subject as a unit.

I. To enable plaintiff to recover, the exclusive credit must have been given to defendant. (Matson vs. Wharam, 2 T. R. 80; Obit. Cont. 507, 510; Rob. Frauds, 208; Brown, Stat. of Frauds, §§ 197, 198; Cahill vs. Bigelow, 18 Pick, 369 ; Cutler vs. Hinton, 6 Rand., 509 ; Elder vs. Warfield, 7 liar. & J., 391; 1 McCord, 100 ; Rogers vs. Kneel and, 13 Wend., 121; Leonard vs. Yerdenburg, 8 Johns., 37.) II.

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

contended, among other things, that the power vested in the County Courts to subscribe stock in the North Mo., and the Alexandria and Bloomfield Railroad, was not a franchise of the companies, and that the bonds issued in aid of such subscription were void, and cited Aspinwall vs. Davies County, 22 How., 364. I. The Circuit Court had jurisdiction. There are seven counts in the petition. The aggregate amount sued for determines jurisdiction, and not the- amount of each coupon.

I. A rash, improvident and hard bargain made by an infant with an adult, who has knowledge of his infancy, without an adequate consideration, is clearly and utterly void and will be so declared by a court of equity. (1 Sto. Eq., §§ 235, 236, 240, 242; Sto. on Cont., § 57; 25 Iowa, 95; 2 Atkins, 34.) Those contracts of infants are void which the courts can declare to be to their prejudice.

I. “A bill is not treated as multifarious because it joins two good causes of action, growing out. of the same transaction.” (Story Eq. PL, § 281.) II. Equity will do complete justice between the parties. (McDaniels vs. Lee, 37 Mo., 204; Holland vs. Anderson, 38 Mo., 55; Watts vs. Waddle, 6 Pet., 389; Stevens vs. Glad-ding, 17 How., 459 ; 3 Dan. Ohy.

I. Tlie statute of limitations did not begin to run against the children of George Washington Kerr, until Mrs. Susan Kerr’s death, which took place in 1865, and hence, the plaintiffs claim was not barred. The plaintiff’s cause of action did not arise till Mrs. Kerr died. (Park vs. Cheek, 4 Cold., 20; Smith vs. Thompson, 2 Swan, 381; Ang. on Lim., §§470-475.) II.

<p>1. Administrator — Final settlement, continuance of — Notification, failure of— Effect of. — In 1860 an administrator gave statutory notice of a final settlement at the next term of Probate Court. At that term he filed his settlement ; but on his motion, the same was continued till the next term. No further notice was taken of the settlement till IRÍO, when the administrator, without further notification, withdrew his final settlement and made a different and corrected one. Held, that the latter settlement had no binding force on the parties interested in the estate.</p>

<p>1. Ejectment — Possession—Limitation.—Open, notorious, peaceable, continuous and adverse possession of land for twenty years will give a title that will authorize a recovery in ejectment.</p> <p>2. Acknowledgment — Leed with defective — Adverse possession. — A deed, notwithstanding a defective acknowledgment, is good between the parties. It would constitute color of title, and enable persons in possession of land to avail themselves of title by adverse holding.</p>

<p>1. Wills — Probate—Administrator, appointment of — Proofs—When contested.— The appointment by the court of the executor named in the will, or, in case of his renunciation, of such person as the statute authorizes as administrator, with the will annexed, assumes, that the court has passed upon the sufficiency of the proofs and admitted the will to probate. But this assumption may be contested by the proper parties in‘due time.</p> <p>2. Wills — Probate—Wife, renunciation by — Sale of lands — Estoppel.—A. made his will, appointing his wife executrix, but she by a written communication to the court declined to act, when an administrator with the will annexed was appointed by her consent and at her request, and the order appointing him recited that the will had been duly probated. The will was proved by the subscribing witnesses, and no objection was made to the sufficiency of the proof. It appeared by parol proof, that the widow was informed of her right to renounce the will, but declined to do so. The entry of the clerk of the court was, that the will had, “in due form of law, been exhibited, proved and recorded but there was no entry of any formal judgment of probate. Five years after the death of the testator the land conveyed in the will to the wife was sold by the administrator by order of court to pay the debts of the estate, and, seven years after the sale, the wife renounced the will and sued for dower in the land. Held, that the conduct of the wife amounted to an estoppel in pais.</p>

I. In this case the parties to the contract are sued by the administrator de bonis non; hence, this case does not fall within the words of Sess. Acts 1865-6, p. 85. II. The Circuit Court based its decision upon Dodson vs. Scroggs, él Mo., 285, but that case does not bear out the court’s ruling.

I. Under the law in force when the plaintiff’s debts accrued, and at the date of consolidation,when “ The Missouri, Iowa & Nebraska Railway Company” became obligated to pay the same, the stockholders existing at the time of theissuing of execution were liable under “double liability clause.” (G. S:, 328, §§ 11, 12; Constitution 1865, Art. 8, § 6; McClaren vs. Franeiscus, 43 Mo., 452.) II.

I. The statute of limitations, has never been permitted to he pleaded in bar of a trust, to cover up a mistaké, or to take the benefit of. a fraud by the party pleading it. (1st. Danl. Ch. Pr. [3d Ed.] 666, et seq.; Kane vs. Bloodgood, 8 Johns. Oh., 90; Keeton vs. Keeton, 20 Mo.,- 530; Johnson vs. Smith, 27 Mo., 591; Fugate vs. Fierce, 49 Mo., 441; Ang. Lim. [4 Ed.] § 384 and notes.) II.

<p> Error to Washington Circuit Court. </p> <p>I. The correcting of a clerical error of the clerk in the judgment was right. (Gribson vs. Chouteau, *45 Mo., 110; Turner vs. Christy, 50 Mo., 145.)</p> <p>II. There was no merit in the motion for a new trial. (Whittel. Mo. Prac., 461, and cases cited; Jaccard vs. Davis, 43 Mo., 535.)</p>

<p>1. Practice, civil — Chancery cases — Issues refm-ed to jury — Whether their verdict can he examined in Supreme Court. — The verdict of a jury, upon issues referred to it by the court in a chancery case, is not properly reviewable in the Supreme Court. The lower court may disregard the verdict, and decide upon the issues, or may refer them to another jury (W. S., 10ál, ji 13).</p>

The briefs of the counsel for both parties are necessarily omitted, because the points urged therein are not discussed • in the opinion of the court.

<p>1. Slander — Words spoTcen in Dutch, set out in English, eta. — In slander, when the petition charges that the words alleged to be slanderous were spoken in tbe Dutch language, but only the English translation is set out, if defendant answers over, he cannot object at the trial to the introduction of evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action.</p>

I. Even if the sale under the deed of trust after the filing of the petition in bankruptcy against the grantor, would not prevent the assignee subsequently appointed from redeeming the premises, the purchaser at such sale acquired the legal title, and is, therefore, entitled to the possession, till the sale be set aside, and the proper party has been permitted to redeem.

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

Louis Criminal Court. I. The indictment does not charge a crime against defendant in that it does not state, that he had carnal knowledge of the prosecutrix, knowing her to be his daughter. (Williams vs. State, 2 Ind., 439.) II. The fact that defendant had called the prosecutrix daughter, and she had called him father, which is all the evidence offered on this subject, is not sufficient evidence of the relationship.

I. The corporation act is designedly liberal in its terms, and' under it the plaintiff has his option as to where he will have his suit against a corporation. (W. S., 294, §§ 26,28; Dixon vs. Han. & St. Jo. B. B., 31 Mo., 409; Han. & St. Jo.

<p>1. Practice, civil — Trials—Bonds, loss of — Parol testimony. — When a bond is given in a cause and is afterwards lost, its contents may be proved in that cause by parol testimony.</p>

<p>1. Practice,civil — Exceptions—Reversal—Where no exceptions are taken to the rulings of the lower court, this court will not reverse the ease on the ground of such rulings.</p>

' I. It was error for the court to go into the jury room, and converse with the jurors about the case, in the absence of, and without the consent of, plaintiff. (Moody vs. Pomeroy, 1 Denio, 115, and cases cited.) II. It was error to ’ allow the jury, after they had been charged and sent out to their room, to separate and mix with the people and witnesses, and hear the ease discussed out of court.

•Appeal from Warren Circuit Court. I. The appellant could not be forced to trial at the first term, because the appeal is not taken on the day of the judgment, no notice was served on the appellee, and it did not enter its appearance (W. S., 850, §§21, 22; Me Cabe vs. Lecompte, 15 Mo., 78; Rowley vs. Hinds, 50 Mo., 403; Purcell vs. Han & St. Jo. R. R.), 50 Mo., 504; May vs. Han & St. Jo.

<p> Appeal from St. Louis Criminal Court. </p> <p>I. The jury should have been selected by the clerk of the court from the first twelve names remaining on the list unchallenged. (W. S., 800, § 25; State vs. ILays, 23 Mo., 287.)</p> <p>II. The court erred in defining “ deliberately and premeditatedly ” in the first instruction given. (Comm. vs. Drum, 58 .Penn. St., 9; 9 Whar. Homicide, [Ed .1855] 36S-372;Bouv.Law Die. “ Deliberation and Premeditation;” 2 Whar.Ana. Grim. Law, 133 ; Dale vs. State, 10 Yerg., [Tenn.] 551; Anthony vs. State, 1 Meigs, [Tenn.] 265.)</p> <p>III. Express malice or malice in fact is requisite to be proved. (Bower vs. State, 5 Mo., 364, dissenting opinion; State vs. Phillips, 24 Mo., 475; State vs. Starr, 38 Mo., 270; Comm, vs. Drum., 58 Penn. St., 9; Comm. vs. O’Hara, 2 Ya. Oases, 86; Whiteford vs. Oomm., 6 Band., 721; Wilson vs. People, 52 N. Y., reported in Am. Law Bev. for Oct-1873, p. 42; Mitchell vs. State, 5 Yerg., 352; Short vs. State, 7 Yerg., 510 ; Coffee vs. State, 3 Yerg., 283; Witt vs. State, 6 Cold., 5 ; Oomm. vs. York, dissenting opinion of Judge Wilde, 9 Met., 125; Maher vs. People, 10 Mich., 218; Shoemaker vs. State, 12 Ohio, 53; State vs. Turner, Wright, 28; Lisbon vs. Lyman, 49 N. H., 553.)</p> <p>IY. It is not necessary to reduce the offense to manslaughter that the wife shall be found in the act of adultery. (Maher vs. People, 10 Mich., 212.)</p> <p>Y. It is a true test of manslaughter, that the homicide be committed in a sudden transport of passion, arising upon a reasonable provocation and without malice. The authorities use the terms “adequate, sufficient and reasonable,” when applied to the provocation, as equivalent. (1 East R. 0., 232; 1 Whar. Or. Law, § 987; 2 Bish, Or,”Law, § 630 and n.; Young vs. State, 11 Humph., 200, and authorities cited.)</p> <p>YI. A reasonable provocation is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.</p> <p>I. The law (W. S., 800, § 25,) directing the impaneling of juries, was substantially complied with. Such laws are merely directory. (Sedg. Stat. and Const. Law, 368; 1 Grah. & Wat. New Trial, 537; Birchard vs. Booth, 4 Wis., 67; Clarke vs. Comm., 29 Penn. St., 129 ; Bristow vs. Comm., 15 Gratt., 634; State vs. Gut 13 Minn., 341.)</p> <p>II. Mistakes or omissions of officers in impaneling juries when no fraud or collusion is intended, and no injury results to the defendant, is no ground for a new trial. (1 Grah. & Wat. New Trials, 35-6, 40; Steele vs. Malony, 1 Minn., 347; Thrall vs. Smiley, 9 Cal., 529.)</p> <p>III. “ In matters of form in impaneling a jury, the courts both in Great Britain and this country, have refused to interfere when points merely technical and unproductive of any injury have been presented ; and have by a series of decisions placed all applications of this kind within the principle of judicial discretion.” (1 Grah. & Wat., 37; Porsythe vs. State, 6 Ohio, 19.)</p> <p>IY. It is no ground for reversal to refuse giving an instruction which has already been given in another form. (Maston vs. Panning, 9 Mo., 305; Webb vs. Browning, 14 Mo., 354; Huntsman vs. Rutherford, 13 Mo., 465 ; Darby vs. Charless, 13 Mo., 600; Pond vs. "Wyman, 15 Mo., 175 ; State vs. Floyd, 15 Mo., 349; Phillips vs. Smoot, 15 Mo., 598; State vs. Smith, 31 Mo., 566 ; Beale vs. Cullum, 31 Mo., 258.)</p>

I. There is no cause of action stated. It is the statement of a good and sufficient cause of action i,n the petition that gives vitality and force to the judgment. (Clafiin vs. McDonough, 33 Mo., 412; 1 Cliitty PL, [6 Ed.] 129.) II. The collector was the authorized agent of the State and county, and any payment to him of taxes assessed, extinguished the tax debt.

<p>1. Practice, criminal — Trial—Imprisonment—Attempts to escape. — Xu a criminal case attempts to escape by the defendant after arrest are admissible in evidence.</p> <p>2. Practice, criminal — Stolen property — Possession of. — The recent possession of stolen property is presumptive evidence of the guilt of the possessor, and conclusive unless explained.</p>

I. The city had power to condemn private property for the establishment of a public wharf. (Sess. Acts, 1851, p. 333, § 22; Sess. Acts 1860-1, p. 247, § 15; City of Hannibal vs. Han. & St. Joe E. E., 49 Mo., 480.) II. The power to take private property for opening a public wharf includes a priori the power to establish a public wharf.

<p> Appeal from Montgomery Circuit Court. </p> <p>I. The court exercised its discretion unsoundly in its refusal to set aside the judgment by default, and appellant has suffered positive injustice thereby. (Nordrnanser vs. Hitchcock, 40 Mo., 178; Kribben vs. Eckelkamp, 84 Mo., 480; Florez vs. Uhrig’s, Adm’r, 35 Mo., 519; Frazier vs. Bishop, 29 Mo., 447.)</p> <p>I. The judge has nothing whatever to do with the setting of the docket; that is expressly given to the clerk.</p> <p>II. Defendant’s attorney made no effort to get correct information from the proper source as to the time when the case was set. It is either a mistake as to the law regulating the duties of clerks, or negligence on the part of defendant’s attorney, or both combined, that is shown by the affidavits and motion of defendant, and in neither case will this court interfere with the action of the court below. (Nordmandser vs. Hitchcock, 40 Mo., 178; Steigers vs. Darby, 8 Mo., 679; Jacob vs. McLean, 24 Mo., 40.)</p> <p>III. B.ut there is in fact, no good defense shown to the action. The affidavits state neither evidence nor facts, from which this court can say that plaintiff was not employed to attend to the injured man.</p>

Jljppeal from Madison Circuit Court. I. The indictment contained ail the allegations necessary at common law to constitute the offense of perjury. (Train & H. Preced. Indict., 405, 435.) II. The indictment fully sets forth the facts sworn to, showing they were such material matters as are required to charge the offense. (State vs. Holden, 48 Mo., 93.; State vs. Bailey, 34 Mo., 350; Hinch vs. State, 2 Mo., 158; Whart. Crim. Law, § 2263 and note; Whart. Grim. Prac., 577.) III.

I. The court erred in allowing the constable’s return to he amended, because it had no authority under the law to amend the return, nor to direct a constable, not an officer of the court, to come into that court to alter or amend a record which has been thus certified into it. In. all the cases which have been before this court, such amendment has been allowed in the court into which the return was made, and only in the appellate court after verdict rendered.

Louis Criminal Court. I. Before a confession of a defendant can be given in evidence against him, it must be shown to be voluntary. (1 Greenl. Ev., §§ 219-22 ; 1 Phillip’s Ev., 449, and cases cited ; Hector vs. State, 2 Mo., 166; State vs. Brockman, 46 Mo., 566, and eases cited.) II. The officers, who arrested defendant and induced him to confess, were persons in authority, and stood in the same relation to the defendant as the owner of the property or the prosecutor.

<p> Error to Jefferson Circuit Court. </p> <p>I. If tbe arbitrators acted within tbe scope of tlieir authority in this case, there being no allegation or proof of fraud, misconduct, accident or mistake on their part, the award is ' conclusive upon the parties.</p> <p>II. They found that the increased value of the vines in dispute was a permanent improvement. The arbitrators were the final judges of both the law and the facts. (Morse Arbit., 214-220,'292, and cases cited; 316; Boston Water Power vs. Gray, 6 Met. (Mass.), 131; Talle vs. N. Mo. B. B. Go., 37 Mo., 445.)</p> <p>I. An award is of no force at all upon any matters not embraced in the submission, and submitted to the arbitrators for their decision. (Allen vs. Gralpin. 9 Barb., 246; Pratt vs. Ilacket, 6 Johns., 14; Morse Arbit., 259, 260, 261; Tudor vs. Scovell, 20 N. II., 174; Bonner vs. Charlton, 5 East, 139.)</p> <p>II. The construction of the award, submission, &c., belongs to the court when suit is brought to enforce the award, and if the court can see that the arbitrators have awarded upon any matter not in the contemplation of the parties, their action to that extent at least, will be held void. (Kanouse vs. Kanouse, 36 Ill., 439; Bonner vs. Charlton, 5 East, 139.)</p>

I. In equity an administrator’s settlements may be set aside for fraud. It is not necessary that fraud in fact, should be proven. It is sufficient if the act of the administrator operates in law to defraud. (Sto. Eq. PL, § 187; Clyce vs. Am derson, 49 Mo., 37.) I. No fraud whatever is shown, either actual or constructive. Without that, plaintiff cannot recover.

I. The contract, offered in evidence by-plain tiff, was not admissible, not being stamped according to law. The contract by act of.congress is invalid. ('Bump Int. Rev. Laws, 813, § 158, and note a.) II. Even if the respondent had a right to put a stamp on at the trial, he could only do so upon proof, that either the stamp was forgot ten at the time, or for some other reason it was omitted with no fraudulent intent.

Jlppeal from Pike Circuit Court. I. The bonds were illegally issued, and were void. The law required that the election should be conducted in accordance with the law controlling general and special elections, then in force. (Sess. Acts 1868, p. 92, § 1.) The election was not so conducted. 1st. The order for an election undertook to prescribe qualifications for voters, contrary to, and in direct violation of, the constitution of the State.

<p> Appeal from Macon Oireuit Gourt. </p> <p>I. The stock having been voted for by the requisite number of resident tax-payers of said Hudson Township, they knowing the objects and purposes of the road, and the bonds having been issued to said road, for the payment of said stock by the Oonnty Court, the authorized agents of said township for that purpose ; and it not appearing but that these bonds have got into the hands of innocent purchasers, it would be imposing a hardship on those purchasers, that the law does not sanction, if this action be sustained. (Knox County vs. Aspinwall, 21 How., 539; Elagg vs. City of Palmyra, 33 Mo., 440.)</p> <p>II. The tax lists showed that the property of the respondent was subject to taxation, and therefore the collector was justified in collecting the tax due. (37 Mo., 280; 47 Mo., 466.)</p> <p>I. When the County Court attempted to make the so-called subscription, nothing had been done towards forming a corporation, excepting the drafting of Articles, and the subscriptions thereto, by eight persons of $200.00 each, making in all sixteen hundred dollars, which was wholly inadequate, (W. S., 296-9, §§ 1, 3) and was void.</p>

I. The action of the Probate Court in revoking the letters of administration, and granting letters testamentary, was a nullity, so far as the granting letters testamentary. It had power to revoke letters of administration, but none to grant letters testamentary without probating the will that stood upon its record as rejected. II.

Petition for■ Mandamus. I. Tlie two acts are in pari materia, and passed at the same session of the legislature, and approved within two days of each other, and ought to be construed together. I. On the 20th of March, 1873, the convict labor belonged to the State, and the 3rd and 1th Sections of the act of that date show, that the convict labor authorized by that act was in addition to the $10,000 appropriation, and not intended to come out of it. II.

<p> Appeal from, Adair Circuit Court. </p> <p>I. The- counts in the petition first, filed were below tbe concurrent jurisdiction of Circuit and Justices’ Courts, and the Circuit Court should have dismissed the same. (Clark’s Adm., vs. Han. & St. Joe R. R. Co., 36 Mo., 202.)</p> <p>II. The double damage liability imposed by § 43 (W. S., 310) is a penalty recoverable only in the name of the State of Missouri, under § 42 of the same Act. By taking sections 42 and 43, and construing them together, it will be seen, if such double liability is a penalty, that it was unnecessary to provide a means for tbe recovery thereof in such section 43, as such remedy or means is provided in section 42. Again, by section 5 (W. S., 520,) a full and complete remedy is given to tbe owner of any animal killed or injured, &c. Construing the two statutes as consistent statutes, it follows that section 5 defines tbe owner’s right of recovery to the extent of the value of his property ; and section 43, being a general police regulation, enacted for the protection of tbe public, defines tbe rights of the public, tbe people, the State of Missouri, which alone can sue for tbe penalty therein provided for. To the position taken it may be said, this court has passed upon this question of double liability in the case 'of Trice vs. Han. & St. Joe R. R. Co., 49 Mo., 436. It is admitted that, in that case, tbe question of double damages was involved ; but the question now p resented, a want of jurisdiction in t]ie court and the right of respondent to sue in his own name, were not considered.</p> <p>That case is regarded as an authority to support this position. It undoubtedly settles the constitutionality of the statute requiring railroad companies to fence; but it as well settles the question that such statute would be unconstitutional, were it not that a penalty is imposed for a failure to fence, which the legislature may dispose of in its discretion; and being a penal statute, all of its provisions should be strictly construed. And if a means of enforcement is provided by any section of such statute, it should be pursued, and no remedy not specifically provided should be implied. (State vs. Han. &St. Joe R. R. Co., 51 Mo., 532.)</p> <p>III. The instructions asked by appellant should have been given. The respondent offered ho evidence to show at what point the stock strayed upon the track. (Cecil vs. Pac. R. R. Co., 17 Mo., 216.) ’</p> <p>IY. “ A general verdict on the several separate counts in respondent’s petition was error.” The motion for a new trial among others, assigned as a reason for setting aside the verdict, because the finding or verdict is not specific or proper.” (Bigelow vs. N. Mo. R. R. Co.,'18 Mo., 510.)</p> <p>I. The Circuit Court had jurisdiction of the case originally, if all the counts together claimed judgment for $20.00. (Langham vs. Boggs, 1 Mo., 176, and cases cited ; Judson vs. Macon Co. H. S. Cir. Ct., West Dist., Mo. [April Term, 1873] ; W. S., 313, § 11; 14 Mo., 396; Clark’s Adm’r vs. Han. & St. Joe. R. R. Co., 36 Mo., -202.)</p> <p>II. • The plaintiff under the evidence was clearly entitled to a judgment for double damages. (W. S., 310-11, § 13 ; Rafferty vs. Han. & St. Joe. R. R. Co., 11 Mo., 291.)</p> <p>III. Each count of the petition in this case is good under the decisions of the-Supreme Court. (Quick vs Han. & St. Joe. R. R. Co., 31 Mo., 393; Miles vs. Han. & St. Joe. R. R. Co., 31 Mo., 107.) They contain every allegation required by the statute. (W. S., 310-11, § 13.)</p> <p>IY. The error, if any, in the finding was not properly brought to the attention of the court below in the motion for new trial.</p>

I. The same strictness is not required in a finding made by a court as in one made by a jury. II. If the petition is technically defective in not stating that the stock strayed on the road at a point where the same was not fenced, etc., yet the defendant having failed to demur, and the court having heard the evidence, and made a finding for the plaintiff, defect in the petition is cured. III.

I. The plaintiff was bound to prove, that the animal got on the track at a point where the railroad company was bound to fence its road. (Cecil vs. Pac. R. R., 47 Mo., 246.) [The other points in the brief .are necessarily omitted, not being reviewed by the court.] I. The negligence is established by showing, that the injury was on a part of the road, not inclosed by a lawful fence, or not in the crossings of a public highway. (Brown vs. Han. & St. Joe.

Charles Circuit Court. A special ordinance of the city of St. Charles directed the opening of an alley across the rear of plaintiff’s lot. An existing general ordinance provided, that in condemnation proceedings for streets, alleys, &c., all costs should be paid by the parties againts whom damages (benefits) were assessed. Another provision exempted from such payment of costs the owners in a block who should execute voluntary relinquishments to the city.

<p>1. Public roads, opening of — Gownty Courts — Circuit Court, appeal to — Re-examination. — In proceedings to open public roads, the Circuit Court, on appeal from the County Court, shall proceed to hear and try the cause anew. (Sess. Acts 1872, p. 146, § BO ; p. 148, g 71.)</p> <p>2. Inferior courts, circumscription of their powers — County Courts— Opening public roads — Petition. — Inferior courts, and those of statutory origin, must be circumscribed within the confines of the statute, which gives them being. Hence, where a petition to the County Court, praying that a public road be opened, does not show that it was signed by at least twelve householders of the township or townships, in which said road is desired, three of whom were of the immediate neighborhood as required by statute (Sess. Acts 1872, p. 140, g 8), the County Court has no jurisdiction in the premises</p>

Charles Circuit Court. I. The act, declaring this plaintiff of age, was not a legislative enactment, but a judicial decree, and therefore void. . (4 N. H., 572; State vs. Fry, 4 Mo., 120; Dartmouth Ool. vs. Woodward, 4 Wheat., 518; Blackw. Tax Titles 25-30; Bryson vs. Campbell, 12 Mo., 498; Bryson vs. Bryson, 17 Mo., 590; 4 West.

I. The subject matter constituting the cause of action being for injuries to personal property, the justice of the peace had only jurisdiction to the amount of fifty dollars; consequently the case must be dismissed. (W. S., 807, 808, §§ 2, 3; Han. & St. Joe. R. R. Co. vs. Mahoney, 42 Mo., 467 ; Webb vsTweedie, 30 Mo., 488; Langham vs. Boggs, 1 Mo., 476; Lindell’s Adtn’r vs. Han. & St. Joe. R. R. Co., 36 Mo., 543 ; Yoorhees vs. Bank, U. S., 10 Pet., 449.) II.

Charles Circuit Court. I. The earnings of a minor may be given to him, but there should be clearly shown to be a severance of the legal relation of parent and child. The emancipation must be complete and notorious — an advertisement to the world, that the child has become a man for himself, to act, possess, and control entirely and exclusively his own time, talents, and labor, and which must be continued, and not an occasional manifestation. (Reeves Dom. Rel. [Parker & Bald.

<p> Appeal from, Adair Circuit Court. </p> <p>I. If plaintiff is barred of her dower at all, it is by or under the 20tb section of tlie Dower Act, (Wagn. Stat., 542,) which is the same as the statute of Westminister. (13 Edw. I., 1 C., 34.) By this statute adultery alone would not bar dower. There must also be a voluntary separation by the wife from the husband; she must leave him sponte. If the husband go away and leave his wife, then even continued adultery after such separation will not bar the wife of her dower. (Elder vs. Reel, 62 Penn. St., 308, and cases cited; 1 Bish., Mar. & Div., § 628; Graham vs. Law, 6 Up. Can., 310 ; Coggswell vs. Tibbetts, 3 N. LL, 41; Walters vs. Jordar^ 13 Ired., 361; 2 Scribner Dow., 501, § 7.)</p> <p>II. The case of Stegall vs. Stegall, 2 Brock, [Ya.] 256, is not applicable. There the wife refused to go and live with her husband because she had heard he had another wife.</p> <p>I. The going away of a woman is not the gist of the cause of the forfeiture, but the living in adultery. (2 Scribner Dow., 498, § 3 ; 500, § 6.)</p> <p>II. All the circumstances mentioned in the statute need not concur in form, provided they do so in substance. (2 Scribner Dow., 500, § 6 and n. 3.)</p> <p>III. Where a woman and her husband voluntarily separate, or she leaves his house on account of his cruelty, or against her consent, or she refuses to go with him to his place of abode, and while living apart she commit adultery, she will forfeit her dower, unless there is a subsequent reconciliation. (1 Wash. Beal Prop., [2 Ed.] 196, § 4; 197, § 4; Hethrington vs. Graham, 6 Bing., 135; Beel'vs. Elder, 62Penn. St., 308 ; 2 Scribner Dow., 500, § 6; 503-4 §§ 10, 11, 12 ; Woodward vs. Dowse, 10 C. B., [N. S.] 722; Stegall vs. Stegall, 2 Brock. [Ya.], 256.)</p> <p>IY. The case of Beel vs. Elder, supra, relied on by the appellant, is very dissimilar from the one before the court. There the husband slipped away from his wife without her knowledge; here she refused to go with her husband. Even that case has only one case to support it;'all the other cases are against it.</p>

I. Tbe defendant was not served with process within tbe territorial limits of tbe jurisdiction, but in Scott County. He did not appear. There was no authority to send writs there, (Fithian vs. Monks, 43 Mo., 502.) He was not served with the writ; did not appear, and the judgment could be only against the property attached. (1 Wagn. Stat., 188, 189.) II. The new return of tbe sheriff was not such an amendment as is contemplated by the statute. (Wagn.

Charles Circuit Court. I. The defendant in concealing from plaintiff the fact, only known to himself, that it was almost certain his wife would die in a short time, committed a fraud upon the plaintiff in procuring a deed of gift to his wife, which therefore, contrary to the intention of the grantor, must result and did result to his own benefit. (8 Wh. & Tud. Oas. in Eq., 141,143; Huguenin vs. Baseley, 14 Yes., 299 ; Lyon vs. Home, 6 Eq.

<p>1 .Executors — Wills—Direction to support family of testator — Supplies furnished — Suit for. — A. by his will directed' liis executors to support his family till his estate should be divided. B., a merchant, sold certain supplies to the widow, and sued the executors therefor. Held, that to allow such a suit would subvert the will of the testator, who confided in his executors to> furnish the family with reasonable funds; that if they failed to do so, they could be compelled to perform this duty by a court of equity, perhaps by the Probate Court itself.</p>

<p>1. Practice, civil — Actions—Leased land — -Trespass to — Who can sue. — The owner of land can bring an action against a trespasser for cutting timber on it and carrying it away, though the land is then in the possession of his tenant.</p> <p>2. Lands and land-titles — Misdescription in deed — Subsequent deed correcting— Titles, equitable and legal. — Land was conveyed to A. but it was misdescribed in the deed. By a subsequent deed this mistake was corrected. Held, that the first deed gave him an equitable title, which the second deed perfected into a legal title.</p> <p>3. Lands and land-titles — Equitable title — Possession—Farm—Timber-land.—A. having an equitable title to 200 acres of land, consisting of a prairie-farm of 160 acres, and 40 acres of timber-land a mile or two away from it, leased the farm to tenants, allowing them to cut timber for the use of the farm and firewood from the 40 acre tract. Held, that the only value of the timber-land was in its use for such purposes, that it was not designed for cultivation or indosure, and that A. was in possession of both tracts.</p>

I. The notes under the mortgage are to be paid in the order they became due; and under this mortgage the mortgagee had no right to sell on the 4th day of May, 1872, to pay the note or any part of it due on the first day of January 1873. II.

Louis Criminal Court. I, The court erred in overruling the motion for a continuance. The record shows clearly that the defendant has been affected injuriously by being deprived of the evidence which he would have obtained by further continuing the cause.

I. The election of the plaintiff to take under the statute “was simply in lieu of her rights under the will.” II. If the widow takes under the will, she is entitled, in addition, to the four hundred dollars absolute allowance provided by §§ 35, 36, 37, Wagn. Stat., 88. III. The widow’s right to this allowance does not depend on the election or non-election. She has it, if there is no will. She has it, if there is a will and she takes under it.

<p>1. Practice, civil — Trial—Witnesses—Husband and wife — Statute, construction of. — The wife is a competent witness in a suit, when■ she is the real, and her husband only a nominal, party in interest (Wagn. Stat., 619-20, l 2).</p> <p>2. Statute, construction of — Death of child, damages for — Pecuniary loss — Funeral expenses. — Under the statute (Wagn. Stat., 520, $ 4), the damages for the killing of one’s child are not restricted to the mere pecuniary loss. Such construction would make the words — “having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect, or default ” — wholly meaningless. Also the funeral, expenses of the child are a part, of the damages.</p> <p>3. Agency — Liability of principal. — Authority to purchase wheat necessarily implies and includes authority to give directions as to its delivery.</p> <p>4. Damages — Satisfaction—Acceptance of judgment against one tort-feasor.— The acceptance of a verdict and judgment against one tort-feasor is not conclusive evidence of a compromise o£ a claim for damages, and should be left to a jury under proper instructions for their decision. ■</p>

2. Practice, civil — Trials—Instructions—Slander.— In an action of slander for charging the plaintiff with theft, an instruction to the jury to find for the defendant, if they find that the plaintiff, in person, or by agent, took away the property, is wrong, because it omits the essential ingredient of felonious intent. 3.

I. This is a suit by the father for an assault on his son. The foundation of the action is that the party assaulted was the servant of the plaintiff. Exemplary damages are not allowed in such a case. (Cowden vs. Wright, 24 Wend., 429; Whitney vs. Hitchcock, 4 Hen., 461; Pack vs. Mayor of New York, 3 Corns., 489; Castaños vs, Ritter, 3 Huer, 370; Gilligan vs. N. Y. & H. R. R., 1 E: H. Smith, 453 ; Oakland R. R. Co. vs. Fielding, 48 Penn.

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

<p> Error to Adair Circuit Court. </p> <p>I. Cutting timber on land, which is the only possession plaintiffs had, is not such possession as to authorize the parties cutting to maintain an action of forcible entry and detainer. (Bell vs. Cowan, 34 Mo., 251; Rouse vs. Dean, 9 Id., 301.)</p> <p>II. As the plaintiffs did not enter under any color of title, they were not entitled to recover any more of said land than what they had actual possession of. (Harris vs. Turner, 46 Mo., 438 ; Prewitt vs. Burnett, Id., 372.)</p> <p>relied on Miller vs. Northup, 49 Mo., 397, and cases cited; McCartney’s adm’r vs. Alderson, 45 Mo., 35 and cases cited; Bartlett vs. Draper, 23 Mo., 407; Hoffstetter vs. Blattner, 8 Mo., 276.</p>

Charles Circuit Court. I. Section 7 of the Limitation Act (Wagn. Stát., 917) evidently excepts from the operation of § 1 the class of cases enumerated in the said § 7. (Wagn. Stat., 896, §§ 2, 5.) Section 7, being incompatible with and repugnant to § 1, so far as grants to public, pious and charitable uses are concerned, restrains and repeals so much of § 1, and such repeal takes effect on tlie 1st of August, 1866. The common law rule of construction is the same. (Dwar.

jError to St. Louis Circuit Court. I. The cause was tried on the theory, that Barrow was the agent of Dent, by reason of a partnership which existed between them. The agency should have been éstablished before evidence of the acts of agency or partnership was received. (2 Starkie Ev., 40, §§ 41, 44; Brown vs. Bank Mo., 2 Mo., 191; Scarborough vs. Reynolds, 12 Ala., 252; M’Donnell vs. Bank of Montgomery; 20 Ala., 313.) II.

I. Tire proceedings for condemnation of the land were according to the statute. II. The authorities cited by respondent have no application here. I. The respondent, being a non-resident, was improperly joined in the same petition with other non-resident and resident defendants. (Wagn. Stat., 328, § 5.) II. The petition and order of publication and report should § 1; 22 Ill., 399, which explains what the description should be.)

Charles Circuit Court. I. The instrument sued on as a bond was not admissible in evidence. It was not a bond, having neither a seal nor a scrawl. (1 Bouv. Law Die., 200; Drake Attach., § 125; Moreau vs. Detchemendy, 18 Mo., 522; State vs.. Thompson, 49 Mo. 188 ; Grimsley vs. Riley’s Admr., 5 Mo., 280.) I. The only form prescribed by statute for attachment bonds does not require a seal nor scrawl thereon. (Wagn.

I. The note was for the exact amount of the defendant’s indebtedness to the plaintiff at the time it was given. The plaintiff could secure this indebtedness without compounding a felony — and it is not compounding a felony to dismiss a prosecution, unless paid or agreed .to be paid therefor. II. In the authorities cited by defendants, a careful examination of them will show that they are not in point, nor in. anywise analogous to this.

.1. John B. Chesley was not competent to testify for the respondent, because he was her husband, and because his co-defendants did not consent to his testifying. II. The sale can only be set aside on the ground of fraud or mistake. Neither of which is established by the evidence in this case. (Carter vs. Abshire, 48 Mo., 300 ; Taylor’s Heirs vs. Elliott, 32 Id., 172; Stine vs. Wilkson, 10 Id., 75; Sto.

I. After the demurrer was overruled, the court should have allowed the answer to be filed. The court could adopt no ’ rule or practice in contravention of law. I. The action of the court in refusing to permit an answer to be filed after the demurrer was overruled, was within its discretion; a discretion which this court will not undertake to control, particularly as the paper called an answer is not incorporated in the record and made a part thereof by bill of exceptions.

<p>1. Objection — Grounds of, not specified or mentioned in motion for new trial.— Effect of omission. — Where the grounds of objection are not specified, and the attention of the court is not called to them, in motion for new trial, they will n ot be regarded by the Supreme Court.</p> <p>2. Practice, civil-Motion pendente lite — Notice of, etc. — A. court may in its discre. tion, hear a motion for support and maintenance pendente Hie after a continuance of the cause, and without notice, and on the day of filing the motion.</p>

The following is the original opinion of the court rendered upon the first hearing of the case by Judge Bliss. No briefs of counsel as presented on the first hearing, except such as were also presented on the re-hearing, have been furnished to the reporter.

I. A dog is not baggage. Respondent bad no legal right to have the dog in controversy carried; and if the appellant had refused to carry the dog it would not have been guilty of a breach of duty. (Bell vs. Drew, 4 E. D. Smith, 59 ; Hawkins vs. Hoffman, 6 Hill, 585 ; Cin. & Oh.

I. The motion to dismiss ought not to be sustained, because there is a final judgment of the Circuit Court of Reynolds County, Missouri, from which the plaintiffs in error have appealed.

<p> Error to St. Charles Circuit Court. </p> <p>I. If the eon tract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not enforce it (2 Kent Com., 466; Buck vs. Albee, 26 Yer., 184). If the illegal use to be made of the goods or money enters into the contract, and forms the motive or inducement in the mind of the vendor ( or lender) to the sale or loan, then he cannot recover, provided the goods or money are so used. (Kneiss vs. Seligman, 8 Barb., 439 ; McKinnell vs. Robinson, 3 Mee. & W., 434.)</p> <p>II. That, for which a, demurrer will lie, cannot be reached by a motion to strike out.</p> <p>I. The mere fact of knowledge on the part of Howell, that Stewart was about to" bring the cattle into the county contrary to law, does not invalidate the note.</p> <p>II. The answer does not say what was done with the money. (Michael vs. Bacon, 49 Mo., 474.)</p> <p>III. As to amending the answer, there is no statement under oath or otherwise of any good defense.</p>

I. The existence in a sister State of a foreign administration, its final settlement and the discharge and release of plaintiff in error as foreign executor, were facts sufficient to authorize her as sole devisee and legatee under the will to institute in Missouri an action to recover a debt due to tbe testator, whereof under his will she was sole and absolute owner. (Sto. Confl.

I. The instrument, before it could convey any interest in the land or be any security, must be signed and sealed by the party making it. (Wagn. Stat., ch. 35, § 7.) Without a seal it is not binding between the parties. (Caldwell vs. Head, 17 Mo., 563 ; Moreau vs. Detchemendy, 18 Mo., 530.) II. As to the law of vendor’s liens and intentions to hold the land as security in this State. (Delassus vs. .Poston, 19 Mo., 425 ; Pemberton vs. Johnson, 46 Mo., 342.) III.

I. The declarations of a party in connection with acts of ownership are admissible. (1 Phil. Ev., 217.) I. The declarations of a party in possession are only admissible to explain such possession, and only then when they are against the interest of the possessor. (1 Phil.

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

Jlppeal from St. Francois Circuit Court. I. The two scrawls, following the names or signatures to the deed, were a sufficient sealing of the deed for all the parties or grantors. In the absence of explanatory evidence the law imputes or attributes one of the two seals to Radcliffe B. Lockwood, and the other to William A. Scott, and Amelia Scott, his wife.

Charles Circuit Court. I. The deeds, not admitted by tbe court, were offered to fortify the evidence of the tenant’s surrender of the possession to defendant. It was in evidence that those deeds, etc., were exhibited to the tenant to induce her to surrender. I. After the lease the lessor parted with this title by sale in in vitum, and therefore the tenant became the tenant of the grantee.

<p>1. Administrator's bond.. — Failure to approve, etc —The failure of a County or Probate Court to approve an executor’s bond does not render it invalid.</p> <p>2. Administration — Witness “to contract or cause of action." — In a suit by an administrator de bonis non, against the sureties of the former administrator or executor to recover monies, charged to have come into the hands of the former administrator as such, and not accounted for by him, Held, 1st. That it is no defense to said action for the sureties, to show that certain demands had been allowed against the estate which were barred by the statute of limitations. The question whether such claims were properly allowed, is wholly immaterial and collateral to the issues to be tried, and are not proper subjects of inquiry in the cause :</p> <p>2nd. That the testimony of the administrator of the former executor who is then dead, was competent to prove payments made by the deceased executor during his life-time, on claims or demands against the estate ; and as to what was said by said executor at the time of said payments. The subject matter of such testimony was not the contract or cause of action then in issue, nor was the witness the other party to the action.</p>

<p>1. Trusts and trustees — Redemption—Acceptance of part of land in satisfaction.— Where a party at a judicial sale constitutes himself a trustee, by deterring others from bidding, and the party entitled to redeem accepts a deed for part of the land tendered in satisfaction, it amounts to a bar to further redemption.</p>

<p> Jlppeal from St. Louis Criminal Court. </p>

I. The act establishing Forest Park is special, while its objects could have been accomplished by general law. II. The act is in violation of §§ 4, 5, Art. YIII, of the State Constitution. Held: that these were not words of technical import and should be construed to apply to a corporation to carry on a public free school and to raise funds for its support.

<p>1. Practice, criminal — Evidence—Confessions.—In order that a confession may be received in a criminal case, it must be voluntary ; it will be excluded, if it was induced by a promise of benefit or favor, threats of intimidation or disfavor, by a person having authority in the matter.</p> <p>2. Practice, criminal — Confessions—Admissibility of. — When a confession has once been obtained by means of hope or fear, subsequent confessions are presumed to come from the same motive', and are inadmissible, unless it is shown that the original motives have ceased to operate.</p> <p>8. Practice, criminal — Confessions—Artifice.—Confessions are not inadmissible because produced by artifice ; e. gn by persuading the prisoner, that his accomplices were in custody,, or that they had divulged the facts relative to the crime.</p>

<p> Error to Lafayette Circuit Court. </p> <p>I. This sheriff’s deed shows that, it was made in consummation of a sale made under a several execution in the nature of a venditioni exponas, issued under the act relative to executions, approved March 3rd, 1863.</p> <p>II. The recitals in this sheriff’s deed show authority to sell, and that the sale was made substantially according to law, which is all that the law requires. (Wagn. Stat., 612, §51; Stewart vs. Severance, 13 Mo., 322; Carpenter vs. King, 42 Mo., 219; Buchanan vs. Tracy, 15 Mo., 137; Samuels vs. Shelton, 18 Mo., 411; Porter vs. Mariner, 50 Mo., 361; McCormick vs. Fitzmorris, 39 Mo., 21; Beed vs., Austin, 9 Mo., 722; Landes vs. Perkins, 12 Mo., 238; Carson vs.’Walker, 16 Mo., 68; Waddell vs. Williams, 50 Mo., 216; Perkins vs. Dibble, 10 Ohio, 133; Sneed vs. Bearden, 1 Mar. [Ky.j, 217; Natchez vs. Minor, 10 Sm. '& Mar.. 246; Hardy vs. Heard, 15 Ark., 181; McDonald, vs. Gronefeld, 15 Mo., 28; Wood vs. Messerly, 16 Mo., 255.)</p> <p>I. The sheriff’s deed failed to recite facts which the statute requires shall be recited in such a deed. (Wagn. Stat., 612, §§ 51 57; 36 Mo., 115; 37 Mo., 191.)</p> <p>II. It does not recite the date of the execution under which levy was made. (6 Mo., 361; 9 Mo., 718 ; 46 Mo., 132; 45 Mo., 28; 18 Mo., 580 ; 17 Mo., 356 ; 36 Mo., 115; 1 Mo., 368; 1 Mo., 518.)</p> <p>I. The deed did not show that the levies were made under executions subsisting in force at the date of said levies. It does not appear from what judgments they were issued; the date of the judgments is not given, nor of the executions under which they pretended to make said levies, and even if said levies were valid when made, not being kepi alive by law, they were not revived by the executions issued on the 11th of April 1864, under which the sale was made. (Wagn. Stat., 612, § 54 ; Tanner vs. Stine, 18 Mo., 580; Lackey vs. Lubke, 36 Mo., 115; Bank-of Missouri vs. Bray, 37 Mo., 194; Turner vs. Keller, 38 Mo., 332 ; Stewart vs. Severance, 43 Mo., 322 ; McDonald vs. Gronefeld, 45 Mo., 28.)</p>

I. Sherman had sold this property to this appellant, prior to his conversation with Savage. The ex parte statements of a vendor of personal property, after the sale and transfer, do not bind the vendee. 35 (Mo., 202; 16 Mo., 242; Wilson vs. Woodruff, 5 Mo., 40.) I. Sherman’s statements to Savage tend to show possession in himself, and that he was even then offering it for sale.

'djppecil from, Greene Circuit Court. I. Evidence can only' be excluded for incompetence or irrelevance. II. Where there is any evidence tending to prove the facts there must be a finding on the evidence.

I. If Donnelly was the agent of the defendant to sign the accounts sued on, the plaintiff was bound to prove the fact of agency, before he could offer'to read the accounts in evidence. II. The statute concerning the notice to the defendant must be strictly construed. (Peters vs. Iron M. B. E., 23 Mo., 107; Schnlenburg vs. Bascom, 38 Mo., 188 ; Thomas vs. Barber, 10 Md., 380.) III. The notices read in evidence did not comply with the statute and should have been rejected.

I. The plaintiffs cannot maintain this action. They are not a “child or children” within the meaning of the law. '(Wagn. Stat., 1365, §9.)

I. It was not the intention of the constitution, that the right of suffrage of the citizen should be left to the whims and caprices of registration officers. There woidd not. be time, by any of the writs known to the law, to compel a supervisor of registration to perform his duty of filling vacancies within the time limited for registration under the law. II.

I. By the deed the premises are conveyed to William Grillis as trustee of Maria Louisa Mercier and her family.

1. Ryland was a purchaser at sheriff’s sale, and not from the original grantor, and a purchaser to come within the meaning of tbe statute must purchase from the fraudulent grantor. (1 Sto. Eq. Jnr., § 433 and n.; Kerr Fraud and Mist., 228, 229 ; Russell vs. Kearney, 27 Ga., 96; Bell vs. McCawley, ’ 29 Ga., 355. 2.

I. These fixtures had been severed from the building, and were no longer attached to it, when it was sold under the deed of trust. The purchaser only bought what was in the building at the time of the sale, unless it was represented at the sale, and so understood by the purchaser, that these former fixtures should pass by the sale. There was no evidence to that effect.

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

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

I. The lien paper, which had' been filed in the name of “Mississippi Planing Mill Company,” which was not the name of the plaintiff, was inadmissible. (32 Mo., 218.) II. The mechanic’s lien law, being in derogation of common law, must be strictly complied with. (28 Mo., 188 ; 15 Mo. 281.; 1 E. D. Smith, 654.) The evidence cannot be supplied by parol testimony. (38 Mo., 188.) III. There is no evidence that the church ever authorized the contract or ratified it afterwards.

I. The court erred in admitting any evidence. There was no proof offered tending to prove that Canaday was dead, and without proof of the death, there could be no conviction. (Whart. Am. Crim. Law, §715-6; State vs. Robinson, 12 Mo., 592; State vs. Scott, 39 Mo., 129; 1 Chit. Crim. Law, 563; 8 Ibid, 736; 1 Russ. Crimes, 567-8; 1 Grreenl. Ev., § 217.) The confessions could not be used to prove the corpus delicti. See above cases. II.

I. The right to costs depends altogether on Statute. (2 Bac. Abr. title “Costs,” p. 484, “A”; Tidd’s Pr. p. 864; Bouv. Law Diet. I Yol., title, “Costs,” p. 370 and authorities referred to.) II. That each House sits as a court, exercising judicial functions in deciding upon the election, etc., of members, and that their judgments in such eases are conclusive. (See Cool. Const. Lim., p. 133.) III.

I. The petition states a good cause of action in equity. (Harris, et al. vs. Terrell’s Ex’r, 38 Mo., 421.) II. A judgment eollusively or fraudulently procured should be set aside at the instance of the party against whom it is procured. (Miles vs. Jones, 28 Mo., 87; 19 How. Prac., 289; 21 Barb., 9; 26 Barb., 262.) III. The allegations of the petition are ample and sufficient to entitle the plaintiffs to a hearing in a court of equity.

Under the facts of the ease, the Comity Court of Greene county had power to make the subscription without an affirmative vote of the voters of the county. (1 R. C., 1855, p. 427, § 30 ; Sess. Acts 1861, p. 60; 22 How., 365.) II.

<p> Jlppeal from Pettis Court of Common Pleas. </p> <p>I. Shields was an innocent purchaser for a valuable consideration and the subsequent reversal of the judgment, whatever may have been its effect as between the plaintiff and defendant therein, in nowise affected the rights acquired by Shields, under his deed of trust. (Gott vs. Powell, 41 Mo. 420 ; Shields vs. Powers, 29 Mo., 317 ; Yoorhes vs. Bank of TJ. S., 10 Peters, 475; Coleman vs, McAnnulty, 16 Mo., 173; Fithian vs. Monks, 43 Mo., 520 and 521; McNair vs. Biddle, 8 Mo., 257-268.)</p> <p>II. The petition while it asks a court of equity to interfere for. the protection of the petitioner against a threatened salé of his property, distinctly and repeatedly avers that the trustee has not even any such legal title as would authorize him to sell, and that no title whatever would pass by his sale, This being true, all past ground or pretext for the interposition of a court of chancery is taken away, and the naked alie' gation that a cloud would be cast over his title by such sale gives no strength to a petition that is already shown to be causeless. (Kuhn vs. McNeil, 47 Mo., 389 ; Drake vs. Jones, 27 Mo., 428, 431,432; Janney vs. Spedden, 38 Mo., 395 ; City of St. Louis vs. Goode, 21 Mo., 216 ; Hopkins vs. Low ell 47 Mo., 102-3.)</p> <p>III. The remedy by injunction does not lie to restrain a sale by a trustee in such case. (City of St. Louis vs. Goode, 21 Mo., 216; Drake vs. Jones, 27 Mo., 428,-431, 432 ; Hill. Inj., 23-38.)</p> <p>IY. Even if Yogler had been entitled to a homestead in the premises, he could not on that account, restrain the sale under the deed of trust. The mode for designating and seeuring a homestead is prescribed and pointed out by statute, and if the sheriff after notice as alleged in the petition proceeded to sell notwithstanding, the injury was completed and injunction could not remedy the hurt; and if injury in fact were done him in the sale of his homestead, he had ample remedy therefor at law. But under the proof in this case, at the time of the sale by the sheriff under the first deed, the plaintiff was not entitled to any homestead in the property in controversy; because the fee title to said estate was then vested in Henry Suess by virtue of his deed fromYogler; and whatever right Nussberger acquired by said sheriff’s deed passed to and vested in Shields by virtue of the deed of trust. If the conveyance by Yogler to Suess was bona ficle and for a valuable consideration, Nussberger got nothing by his said first deed. If on the other hand the said conveyances to Suess were fraudulent and feigned as against Nussberger, he acquired an equity by his said purchase and deed which enured to the benefit of said Shields by virtue of the deed of trust; and in either case, Yogler would have no right to enjoin the sale by the trustee under said deed of trust. (Hopkins vs. Lovell, 47 Mo., 102; City of St. Louis vs. Goode, 21 Mo., 216-218.)</p> <p>Y. The beneficiary in the trust deed occupies the same relation under his deed of trust as if Nussberger had conveyed to him absolutely by deed; and in such case whilst Yogler, after the reversal by the District Court, would be entitled as against Nussberger, to be re-instated in whatever he had lost by reason of such irregular judgment and sale, yet Shields would hold the property unaffected by such reversal. (Lovell vs. German Reformed Church, 12 Barb., 67, -83; Newton & Clark, Exec. vs. McLean, 41 Barb., 285; Wood vs. Bank of Ky., 5 Monroe, 194; Clark vs. Hunt, 3 J. J. Marsh., 554 ; Bayley vs. Greenleaf) 7 Wheat, 47; Erisbee vs. Thayer, 25 Wend., 398 ; Washb., Real Prop. p. 89, 90. Yol. 1.)</p> <p>I. A sheriff’s sale and deed of a homestead are void, (Beecher vs. Boldy, 7 Mich., 506; Hamblin vs. Warnecke, 31 Tex. 91; Kendall vs. Clark, 10 Cal., 17; Ackley vs. Chamberlin, 16 Cal., 181 ;) and the sale cannot be sustained on the ground, that the homestead exceeds the amount in value limited by law. (Meyers vs. Ford, 22 Wis., 139; Cook vs. McChristian, 4 Cal., 23.)</p> <p>II. The possession by respondent and his family of the land in controversy was notice to all persons of his homestead right. (Cook vs. McChristian, 4 Cal., 23 ; Taylor vs. Hargons, lb., 268; Holden vs. Pinney, 6 Cal., 234); and no act on his part was necessary to secure such right. (Wagn. Stat., p. 697, § 1; Pardee vs. Lindley 31 Ill., 187.)</p> <p>III. A conveyance of a homestead without a removal therefrom by the owner and family, does not constitute an abandonment of the homestead; and respondent having taken a conveyance back from Sness, did not lose his homestead as against the appellants, by his deed to Suess. (1 Wagn. Stat., p. 699, § 8 ; Tumlinson vs. Swinney, 22 Ark., 400 ; Morgan vs. Stearns, 41 Yt., 398; Locke vs. Rowell, 47 N. H., 46; 1 Ain. Law Reg. [N. S.], 706-711-712; Fishback vs. Lane, 36 Ill., 437; Ives vs. Mills, 37 Ill., 73 ; Moore vs. Dunning 29 Ill., 130; Lamb vs. Shays, 14 Iowa, 570; Dealing vs. Thomas, 25 Ga., 224; Cox vs. Wilder, 2 Dill. O. C. 45; Rix vs. Capitol Bank, lb., 367; Bartholomew vs. West, lb., 290, in which Judge Dillon construes our Missouri Statute.)</p> <p>IY. A sale by Montgomery would draw a hurtful cloud over respondent’s title, and the court below therefore had jurisdiction to restrain such sale, or to give such other relief as the case might require. (Hill. Inj., 550; Kerr’s Inj. in Eq., 597; 1 St o. Eq. Jur., [10 Ed.,] §§ 698-700; Scott vs. Onderdonk, 4 Kern., 9; Petit vs. Shephard, 5 Paige Oh., 492; Gamble vs. St. Louis, 12 Mo., 617 ; Lockwood vs. St. Louis, 24 Mo., 20; Fowler vs. St. Joseph, 37 Mo., 240; McCormick vs. Fitzmorris, 39 Mo., 24; Wright vs. Christy, lb., 125; Winn vs. Cory, 43 Mo., 301; Leslie vs. St. Louis, 47 Mo., 479; McPike vs. Pen, 51 Mo., 63 ; Merchants’ Bank vs. Evans, lb., 345 ; Clark vs. Cov. Mut. Life Ins. Co., 52 Mo., 272.)</p> <p>V. A court of equity will moreover protect a homestead. The homestead right is one resting wholly in parol and is a fact in pais and cannot be created or manifested under our statute by any record evidence or notice; and while a judicial sale of a homestead is clearly void, it is believed that this is the more appropriate form of action in which to raise and decide such invalidity than in an action at law, such as ejectment and the like. See Conklin vs. Foster, 57 Ill., 104, in which it is held that a sale of the homestead draws a cloud over the title.</p>

I. The evidence in this case has just as much tendency to prove a partnership as in the ease of Rippey vs. Evans, 22 Mo., 157. II. It was not necessary to allege a partnership in plaintiffs’ petition. (See vs. Cox, 16 Mo., 167; Lessing vs. Sulzbacher35 Mo., 445 ; Smith vs. Cook, 31 Md., 174-5 ; Barry vs. Taylor, 1 Pet. 316-7; [Opinion of Chief Justice Marshall] Collyer Partn., § 715 ; Pars.

I. The notes given by Green Henly, with the defendant as his surety for money borrowed by Green Henly, and due in tlie life-time of Green Henly, wliich were paid by defendant before suit brought against him in this case, Green Henly being insolvent at tlie time of the execution of the notes and at the time of his death, were proper counter-claims in this action, and the court erred in striking them out.

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

<p>1. Damages — Injuries by reason of bad streets combining with other causes.— If the driver of a horse is in the exercise of ordinary care and prudence, and injuries done the animal are attributable to the insufficiency of the street conspiring with some accidental cause the municipality is liable in damages.</p>