Volume 55 — Missouri Reports

I. The sale of the real estate, &c., by William’s trustee was valid and. binding upon the mortgagor and all persons claiming under or in privity with him; and no subsequent orsubsidary lien to those, under which the sale was made was binding on the defendant, Zeibold, or on the property. (2 Wagn.

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

I. An action for money had and received, lies wherever money has been received by the defendant, which ex equo et bono, belongs to the plaintiff, whether there is any privity between the parties or not. (Kuutz vs. Livingstone, 15 Cab, 344; Cary vs. Curtis, 3 How., [IT. S.] 235; Prett vs. Ide, 3 Blackf., 240; Stratton vs. Rastall, 2 T. R., 370; Moses vs. McFerlaue, 2 Bull., 1008; McLean vs. Martin, 45 Mo., 393.) II. The statute fixes the rights of the parties.

<p> <A])]}eal from Moniteau Circuit Court. </p>

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

•Appeal from Jasper Circuit Court. I. In the ease at bar the respondent agreed to bring his action at once, and made some effort in that direction. This was sufficient to show that he waived a notice in writing. II. Under our rules of pleading, we were not required to set out in the answer that the notice was in writing. It was a question of evidence whether the notice was in writing. III.

I. The burden is on the plaintiff to establish, that the neglect to ring the bell was the cause of the injury to the horses. The mere fact that the bell was not rung, does not of itself prove that, if it had been, the horses would not have been struck. There must be affirmative evidence of that fact. That is not only the law, but was the well settled construction of this statute when it was adopted. (See 1 Redf. Railw., p. 480, § 29 ; 111.

<p>1. Ejectment — Chain of title — Common scource — Prima facie case. — When both parties to a suit in ejectment claim title through a common source, plaintiff will make a prima facie case without tracing his title further.</p> <p>2. Sheriff’s sale — Purchase at by plaintiff in execution — Irregularities in judgment, etc. — Plaintiff in an execution issued on an irregular judgment, who purchases at the sheriff's sale, will hold the title, subject to divestiture by an after reversal of the judgment.</p> <p>8. Attachment — Notice by publication — Failure of to name amount of damages— Judgment — Title of purchaser how affected, etc. — The omission in a notice by publication, issued in an attachment, to state the amount of damages claimed, does not render the subsequent proceedings and judgment void, so that the title of a purchaser at special execution sale made thereunder may be at" tacked collaterally.</p> <p>4. Attachment — Publication—Amended petition — Sum originally prayed for— Judgment for, proper, when. — Defendant in an attachment was brought in by publication, and a subsequent amended petition asked for judgment in excess of that originally prayed for, but the judgment was given for tK6 amount originally claimed. The judgment was held proper within the meaning of the statute. (Wagn. Stat., 1054 \ 12 ; Janney vs. Spedden, 38 Mo., 393.)</p>

I. When a defendant is recognized in a criminal case to appear at a subsequent term of the court, that the obligation continues until the record is made discharging him from such recognizance. (State vs. Randolph, 22 Mo., 474.)

I. The deed from Thomas J. Porter, as trustee, to defendants Hughes and Wasson, was void upon its face. Kent.

I. This defendant was indicted for robbery in the first degree, but there was only one count in the indictment and it did not embrace robbery in the second degree. The case was submitted to a j ury, and a verdict returned of robbery in the second degree, which is, under the decisions of this court,an acquittal of the offense charged in the indictment, and defendant ought not to have been tried again under the law. (State Const., Art. I, §19; Bish. Crim.

<p>1. Dram-shop licenses — Where wine may he sold without paying license — Const. Stat. — Under the statute (Wagn. Stat., 18Í2, p. 654, § 29,) there can be but one place where it is lawful to sell wine without first obtaining a license for that purpose, and that is on the premises where it is produced or manufactured.</p>

<p>1. Criminal law — Separation of jury — When not a ground for new trial. — The mere fact of the separation of the jury will not invalidate the verdict or furnish grounds for new trial, unless it be made to appear that they have been tampered with, or that they have acted improperly.</p>

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

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

<p> Appeal from Greene Oirauit Gowrt. </p> <p>I. The right of cross-examination is an absolute one, and essential to the competency of testimony. (1. Greenl. Ev., §446.)</p> <p>II. The court erred in not instructing the jury as to what constitutes murder in the second degree. (State vs. Matthews 20 Mo.. 55; State vs. Wyatt, 50 Mo.. 309.></p> <p>III. The court prescribed as the regulation question, to reach the character of the deceased, this, “What was his reputation for peace and quiet, in the community in which he lived, good or bad 2” And refused to permit the defendant, to ask the two questions. 1. “Do you know McGee’s reputation in his life-time in this community, for being a dangerous and desperate man 2” 2. “Did you know what his reputation in this community was for going around armed 2” These questions should have been permitted. (State vs. Keene, 50 Mo., 357.)</p> <p>I. The indictment was for murder in the first degree, and the court by instructions defined that crime — no other offense is charged. Even under the first instruction alone, without any other, the jury would be justified in finding the defendants guilty of murder in the second degree, or of any degree of manslaughter. The case of the State vs. Matthews, 20 Mo., 55, does not lay down a different rule.</p> <p>II. It is conceded that defendants are entitled to cross-examine witnesses, and it will be seen by examination of the evidence in the record, that the defense of each was identical; and the case made by the attorneys, was simply to embarrass the proceedings. Legitimate cross-examination was not refused, and the discretion of the court was soundly exercised. Besides, no intimation is given as to the purpose of such further cross-examination.</p>

I. Defendants were in no wise liable for any default or failure of their principal to pay over school monies. The treasurer must give a separate bond for that. (Wagn. Stat., 1251, § m I. Section 5, p. 410,Wagn. Stat., 1870, provides that the treasurer shall give bond to the county “for the faithful performance of the duties of his office.” One of his duties of his office is to reeeive'and pay over school monies, and for failure to do this he is liable on his bond.

I.- If the defendants come into the possession of the horses lawfully (and there is no question on this point), it will not be larceny to afterwards condeive the intent to convert them to their own nse. (State vs. Conway, 18 Mo., 321; State vs. Williams, 35 Mo., 229.) ■ I. Intent is the essence of the crime of larceny, but it is not necessary that it should he found at the time of taking the property.

There is no provision in the statute authorizing a court to discharge grand jurors, and substitute from by-stan ders peremptorily as charged in the plea in abatement. The body thus constituted was illegal, and the bill found by them against appellant was void. (Wagn. Stat., p. 799, § 11.) II. The objection made by the plea was not “a” challenge to the array of grand jurors, or to any person summoned as a grand juror within the meaning of Wagn. Stat., 1081, § 3.

<p>1. Evidence — Married woman — Declarations of — Testimony concerning. — As to matters, touching which a married woman is an incompetent witness, testimony concerning her declarations is inadmissible.</p> <p>2. Criminal law — Guardian—“ Other persons” — Defiling girl under eighteen— Construction of Statute. — In aprosecutionunder the statute (Wagn.’Stat., p.SOO, §91) for defiling a girl under eighteen years of age, held, that mere permission given her to help the prisoner plant corn was not confiding her to his care and protection within the meaning of the law. The statute contemplated that the “other person.” should stand in a position similar to that of a guardian, not necessarily that of legal protector, but in an attitude of special trust, care and supervision.</p>

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

Jlpyptal from Jackson Circuit Court. I. This court held in Dilworth vs. McKelvy, 30 Mo. 149, that the statute did not contemplate the assessment of the entire value of the property, except where the defendant is the absolute owner. Where as in the- case at bar, the defendant has only a special interest in the property, the jury or court should assess the value of the interest.

relied upon the statute of frauds, (Wagn. Stat., 656, § 5,) and Atwood’s Admr.'vs. Fox, 30 Mo., 499. I. Respondents contend, that the real time, within the meaning of the statute, when said contract was actually made and concluded, was March 1st, 1871, when they commenced hauling, and appellants commenced receiving the coal. They acted under the original understanding, and on that day (March 1st 1871,) ratified and made binding the previous understanding between the parties.

I. If a mother has maintained her infant child without the order of the court, she will be entitled to a liberal allowance or indemnity for what she has expended, without reference to the infant’s fortune, though, if the court be applied to for prospective allowance, regard may be had to his fortune. (Bruin vs. Knott, 12 Simon, 436; see also 6 Yes. Jr., 454; 4 Turner, 118; Elliot vs. Lewis, 3 Edw. Chy., 40; 2 Sto. Eq., 1354-5 ; 5 Johns. Chy., 497 ;„ 2 Saund.

The act of March, 1873, authorizing the leasing of the penitentiary, refers to the contract of plaintiffs and others of the same kind in direct terms, and gives sixty days in which the contractors are to wind up their business and turn it over to the lessees. There can be no doubt, but that the effect of this act, if carried out, is to impair the obligations of their contract, and that it was so intended by the Legislature.

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

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

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

Jippeal from Jackson Circuit Court. I. The notice of a demand due from Messrs Ross & Shane, contractors, is not sufficient upon a petition alleging that D. M. Ross, was the contractor, and that the demand was due .plaintiffs from D. M. Ross, particularly when the record shows that the firm of Ross & Shane, and not the individual D. M. Ross, were the contractors. II. The original contractors are proper and necessary parties to an action to enforce a mechanic’s lien.

<p> Appeal from Greene Circuit Court. </p> <p>cited in argument Turner vs. Dartmouth, 13 Allen 291; 3 Kent, 452; Gale & Wh. Eas., 182; Gannon vs. Hargadon, 10 Allen 106; Franklin vs. Fisk, 13 Allen, 211; Flagg vs. Worcester, 13 Gray, 601; Goodale vs. Tuttle, 29 N. Y., 459.</p> <p>cited among others the following authorities: Mayor vs. Furze, 3 Hill, 612; Wilson vs. Mayor of New York, 1 Denio, 595; Mills vs. City of 'Brooklyn, 32 N. Y., 489 ; Dil. Mun. Corp., § 802 ; Rose vs. City of St. Charles, 49 Mo., 510; Brine vs. Railway Co., 110 Eng. Com. L., 402; Sprague vs.Worcester, 13 Gray, 193; Perry vs.Worcester, 6 Gray, 544; Proprietors of Locks vs. Lowell, 7 Gray, 223; Flagg v. Worcester, 13 Gray, 601; Barton vs. Syracuse, 36 N. Y., 54; Conrad vs. Ithaca, 16 N. Y., 158; City Council vs. Gilmer, 33 Ala., 116; Cotes vs. Davenport, 9 Iowa, 287.</p>

Jlppeal from, Greene Circuit Court„ I. The affidavit to the truth of the facts in the petition, and. the additional affidavit of non-residence of the defendants, taken together, constitute almost a literal compliance with the statute. (Drake Att., Ch. 5, § 95.) The most important point in the affidavit is the ground of the attachment, which is here clearly stated.

<p>1, Principal and surety — Extension of time— Contract — Concurrence of surety —Pleading.—The surety on a bond will not- be discharged by reason of an extension given to his principal, unless the time was extended by virtue of a contract made by the creditor with the principal, and without the concurrence of the surety.’ And the extension cannot be pleaded as a defense by the surety unless these facts be set up. ,</p>

Jlppeal from Cole Circuit Court. I. The right to maintain an action for a stock certificate is perfect the moment the payment is completed, as it is the duty of the company to issue the certificate… Held: that the statute of limitations runs from the date of the note, and not from demand. (Easton vs. McAllister, 1 Mo., 662; Ang.

Jlppeal from Cooper Circuit Court. “If the defendants as directors of the sub-district employed plaintiff as teacher, they had the right in their official capacity in behalf of the sub-district to discharge him, and are not personally liable for such act.” The power to manage and control the local interests and affairs of the suh-district is vested in the directors by statute. (Wagn.

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

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

I. The award became a cause of action without judgment thereon. (2 G-reenl. Ev., 68.) Our statute does not require a judgment upon the award ; it only permits it. (Yalle vs. N. Mo. R. R. Oo., 37 Mo., 445.) And our courts recognize the common law effect of an award as defined by Greenleaf. (Hamlin vs. Duke, 28 Mo., 166; Bowen vs. Lasalere, 44 Mo., 383.) And the bond itself requires the defendants to pay the award and not a judgment thereon. II.

<p>, Error to Franklin Circuit Court.</p>

<p> Error to Morgam, Circuit Court. </p>

<p> Error to Jaekson Circuit Court. </p> <p>I. The taking of personal security was a waiver of the lien of the vendor. (Delassus vs. Poston, 19 Mo., 465; Gilman vs. Brown, 1 Mason, 191; Brown vs. Gilman, 4 Wheat., 255; White vs. Dougherty, Mart. & Yerg. 309; Mayham vs. Coombs, 14 Ohio, 428 ; Ducker vs. Gray, 3 J. J. Marsh., 163.)</p> <p>II. But if there was a lien in the first instance, it was extinguished by the payment made by Jesse. Jesse borrowed money of Shoemaker and gave his note with Strickland as surety therefor. This money was paid to extinguish the original purchase note for the land. Jesse then became the debtor of</p> <p>' Shoemaker. The purchase money was paid and how could there be a lien therefor ? Strickland paid the note on which he was surety to Shoemaker for J esse, and took an assignment of ' the note. By what principle of. equity can it be insisted that this note can be for the purchase money, or a vendor’s lien declared therefor ? There is no purchase money unpaid. The amount due plaintiff is no part of the purchase money. The fact that Jesse agreed verbally, two years after the sale to him, that the money for which he was indebted to plaintiff on account of the amount paid Shoemaker, should be paid before plaintiff was bound to make the deed under the original contract and sale, had no significance or bearing in the case. There was no consideration for such promise and the agreement is within the statute of fraud besides. The lien of a vendor can exist only for unpaid purchase money. (Meigs vs. Dimock, 6 Conn., 458.)</p> <p>I. The title to the land was in Strickland, and he had the lawful right to hold tlio same till all the money Jesse had agreed to pay for the land was paid. Summerville having by his agreement procured the deed to be made, became liable to pay the debt and Strickland had a vendor’s lien for the same. (Adams vs. Buchanan, 49 Mo., 64, and the cases there cited.)</p> <p>II. As between the vendor and the vendee, and all persons purchasing with notice, a lien exists in favor of the vendor for the purchase money, unless the same shall be waived by the vendor. A waiver can only be by taking security other than the land. (Adams vs. Buchanan, supra.) Here the vendor never took a note with or without security; but looked only to the land for his money.</p> <p>III. The sale was amere verbal one, and no court of equity would have compelled him to convey until the whole of the purchase money had been paid. The undertaking of Summerville, to pay .SUickland so much of the purchase money as he had agreed to pay Jesse, stamps it Avith the character of purchase money, and of itself created a vendor’s lien.</p>

I. The second instruction given for plaintiff is erroneous. A man cannot compel the carrier to buy his goods, simply because there may have been an unreasonable delay. This is well settled. (2 Redf. Railw. p. 167, § 175, note 2; Briggs vs. N. Y. Cent. R. R., 28 Barb., 515 ; Redf. Cay., § 3, 14 ; Arig. Car., § 490a; Scoville vs. Griffith, 12 N. Y., 509 ; Sedg.

I. In Hayward vs.' Nat. Ins. Oo. Han. (52 Mo., 181,) the ease of Hntehins vs. The Western Ins. Co., 21 Mo., 97, has been overruled, and the equitable rule has been established, that the condition in the policy may be waived by the company, and that the waiver may be made as well by acts as by positive declarations, and that the Company may be estopped from setting up the want of indorsement by its course of dealing under the circumstances. In Geib vs. The International Ins.

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

<p>X. Justice’s Court — Set-off in excess of jurisdiction not allowed. — In suit before a justice, defendant cannot introduce proof of set-off on an account which exceeds the jurisdiction of the justice, although by crediting plaintiff’s demand upon it the claim is reduced within the limit of the jurisdiction.</p> <p>2- Justice — Defense of payment — Statement unnecessary. — In suit before a justice defendant may prove payment without filing his statement thereof.</p>

I. Tbe Circuit Court had no jurisdiction to hold courts at said meeting bouse, and its judgments, orders and decrees made thereat, without tbe appearance of parties and consent for trial or bearing,… Held: is at the proper place for an execution sale. (1 Wagn. Stat., 609, § 42,) It would not be valid if made at any other place. (Merr vs. Bell, 45 Mo., 333.) The building, in which the Circuit Court is held, is in contemplation of law the court house. II.

I. After plaintiff had refused to pay the regular fare, the defendant was under no obligation to transport him further, but had the right to eject him from the cars; and anjr subsequent offer to pay… Held: that in a conductor’s excluding a person who is not entitled to be admitted or to remain in tbe cars, tbe relation of master and servant is as clear and apparent as it is in receiving and providing for those who are entitled to admission.

<p>1. The last clause of Art. VI. § 14 of the State Constitution, which provides, that “No judicial circuit shall be altered or changed at any session of the General Assembly next preceding the general election for said judges,” does not prohibit the passage, at such session, of a law abolishing the old judicial circuits throughout the State ; and creating a new system in Mo ; where the law does not take effect and the new judges are not elected, till the expiration of term of office of the judges holding under the former system</p>

I. The deed of the Farmers’ Bank of Mo. to Jeremiah Bear, trustee for Susan C. Baer, being signed by the president of the bank, was properly executed and ought to have been received in evidence. It is the seal of tbe corporation attached to tbe deed that makes it the act of the bauk, it purporting on its face to be tbe deed of tbe bank. (Johnson vs. Musser, 42 M'o., 74; Wagn. Stat., 273, § 5; Sug. Tend., [Old 2 Am. Ed.] 501-2 ; Perry vs. Buggies, 1 Mo., 349 ; Ang. and Am.

Jlppeal from Johnson Court of Common Pleas. I. It is well settled in this State, that in a suit on a note, given for the'purchase money of a tract of land, a plea alleging the want of title in the plaintiff is a good defense to the note to the extent of the value of the land so conveyed without title. (Wagn.

I. Tlie petition for an order of sale and the notiee of the pendency of such application gave the court jurisdiction to order the sale of the real estate. (Overton vs. Johnson, 17 Mb., 442; Frye vs. Kimball, 16 Mo., 9; Vasquez vs. Richardson, 19 Mo., 96; Strouse vs. Drennan, 41 Mo., 289; Robert vs. Oasey, 25 Mo., 584.) II. The deed of Stiles, Adm’r. by his attorney is valid.

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

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

I. To constitute a vested remainder, the person who takes must be in esse and ascertained by tbe instrument creating the same. This deed from Wm. J. Stone to Wyatt H. Stone as trustee, does not name or ascertain the children or grandchildren who are to take the remainder in said estate. The remainder created by said deed, could not vest till tbe death of MaryY. Stone, and was therefore contingent till tbattime. (2 Waslib.

<p>1. fraudulent Conveyances — Creditors—Participation imfrauds, etc. ¿"purchaser at an execution sale becomes invested with all the rights of the creditor, and is clothed with all his remedies against fraudulent contrivances of the execution debtor. But those who become interested in the property ^without participating in the frauds are not affected by them.</p> <p>2. Skm'iff — Power of sale passes legal Hile. Where a power of sale is confer, red on the Sheriff by the parties to a deed of trust, the execution of the power transfers the legal title.</p>

<p> Error to Saline Circuit Court. </p> <p>I. The conveyance of George W: Allen to Presly Shroyer and wife vested the title to the real estate sued for in .both as one by the entireties. Both must join in any contract or conveyance to invest the title as a quasi corporation. (12 Mo., 385,) Hence, the statute, prescribing the mode in which a married woman may convey her real estate, has no application to the case. (R. O., 1855, 302,. § 35.) Therefore, the two together, making a contract or conveyance, may and can do So, just as any other person, so that an executory contract signed by both will be enforced against either or the survivor.</p> <p>II. Even in case of an executory ¿contract by husband and wife, in relation to sale of her real estate, in which the purchase money' is received and lasting improvements made, this court has held, that, before the land can be recovered in ejectment, the purchase money must be repaid and the lasting improvements paid for. (50 Mo., 228.)</p> <p>III. In all the cases in which the courts have .decided that a court of equity will not correct an error in a married woman’s deed, the land was owned by the wife in her own right: Certainly, the court will not follow the precedents by extending the rule to cases like the present 'against manifest justice.</p> <p>I. The title to the whole or any interest in the land could only pass by a deed, in which Shroyer and his wife joined, duly acknowledged in accordance with the statute of this State. It is well settled, that a married woman can only dispose of her interest in real estate in this State by deed, in which her husband jojns with her, duly acknowledged in conformity with the statute.</p> <p>II. A court of equity will not enforce a contract made by a feme covert for the sale of real estate, unless it be executed and acknowledged in the manner prescribed in the statute, nor will a court of equity interfere to amend or correct any mistake in the contract or to make it conform to the statute. (Huff vs. Price, 50 Mo., 228; Carr vs. Williams, 10 Ohio, 305 ; Martin vs. Dwelly, 6 Wend., 9; Doe vs. Howland, 8 Cowan, 278; Knowles vs. Canley, 10 Paige Cli., 343; Jackson vs. Sears, 10 Johns., 435 ; Jackson vs. Stevens, 16 Johns., 110; Johns vs. Reardon, 11 Md., 465 ; Chauvin vs. Wagner, 18 Mo., 544; Wannall vs. Kem, 51 Mo., 150.)</p>

I. The stock came on the road from an unenclosed and uncultivated, rough, rocky piece of woodland “commons” and not from an enclosed or cultivated field, or an unenclosed prairie,” the only cases provided for by the statute. Hence defendant was not liable under the statute. (Wagn. Stat., 310, §4.3; Cecil vs. Pac. R. R., 47 Mo., 246.)

The following diagram represents the localities described by tbe court. A R. R. track. B R. R. lands. C Private alley. D Sandrock’s house. E Bars. F Gate. G Public street. H Ells’ lands. I Sandrock’s lands. K Unenclosed lands Appeal from Cooper Circuit Court. I. Strangers and trespassers on lands have inferior rights to land owners when their stock are killed.

I. A State law discriminating in favor of its own productions, and against those of other States, whether the discrimination is called privilege, license, or any other name, is in conflict with the provisions of §§ 8, 10, Art.I, of the Constitution of the United States, and void.

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

<p>1. Equity — Reference not allowed unless by consent, when. — In proceedings in cliancery to correct a mistake in the description of land in a conveyance, the court, under the statute, ("Wagn; Stat., 1040, § 12 ; 1041, $§ 13, 11,) has no all-' thority to award issues and refer them to be tried by referees, without the written consent of the parties. Such case does not come within the provisions of § 1'8 p. 1041, Wagn. Stat.</p>

<p>1. Counties, political sub-divisions of the'State. — Counties are sub-divisions of the State for governmental purposes, and the General Assembly may create, alter, abolish and regulate them as expediency may demand, so that no vested rights are interfered with.</p> <p>Per Curiam.</p> <p>2. Township Organization Law constitutional — Does not delegate legislation. — The Township Organization Law is not unconstitutional. It is a general law, which takes effect from and after its passage. If the majority of the voters in a county vote for it, the vote does not create the law, but places the county so voting within its provisions. The law does not delegate legislative authority to the counties. (See State ex rel. vs. Wilcox, 45 Mo., 458 and authorities cited.)</p> <p>Per Vories, J., Dissenting.</p> <p>8. Township law unconstitutional — Delegation of power to counties. — The Township Organization Law is unconstitutional, for it attempts to delegate the legislative power to the different counties of the State. It derives vitality from the action of the several counties, and without such action would remain a dead letter It has force from its passage merely for the purpose of transferring the power, to adopt the act, from the legislature to the counties. (State vs. Field, 1Í Mo., 529.)</p>

<p>1. Practice, civil — Bill of Exceptions — Filing of in vacation without consent— Effect of. — A bill of exceptions in order to become part of the record must be signed and filed during the term at which judgment is rendered; except that by consent of parties, also made matter of record, it may be signed and filed at a subsequent period.</p>

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

I. The deed from Thomas J. Porter, as trustee, to defendants Hughes and Wasson was void upon its face. 4 Kent Comm. 333 establishes the doctrine: “ That when the consent of a third person to the execution - of a power is requisite, the consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon, and the instrument or certificate shall be duly proved or acknowledged.” (Barbour vs. Carey,' 1 Kern., 397.) In the case at…

I. The association, in question takes its existence as a body corporate from the date of recording the certificates with the recorder of the county, and not from the time of filing the same with the Secretary of State, as specified in Sec. 4, of Art. I, page 289, 1 Wagn. Stat.

The doctrine of Childs vs. Bank of Missouri, (17 Mo., 213,) is not the law now in relation to the questions involved in this case. (Reg. vs. Gr. North, of Engl. R. R. Co., 58 ^lng.,C. L. 314, 324; Goodspeed vs. East Haddam Bank, 22 Conn., 530.) A corporation may ’be guilty of trespass. (Ang. & Ames, Corp., [4 Ed., 387,] and authorities there cited.

I. The commands of the writ are unauthorized. It commands the relator to do a certain specific, judicial act (to-wit: grant the appeal), while the real object of the writ is only to require the inferior court to act, and not prescribe-what its action shall be. (Mos. Mand., 23, 34 and 53; Tap. Mand. 280; Rex. vs. West Rid. York.

I. The mortgage deed was void for uncertainty of the description of land. The ambiguity was apparent upon the face of the instrument. (Hardy vs. Matthews, 38 Mo., 124.) II. The opinion of Pritchard, that he could find the land from the description on the mortgage deed, was inadmissible. (Schultz vs. Lindell, 30 Mo., 32,0 \ Blumenthal vs. Ralls, 24 Mo., .113.) Í.

I. The paper propounded as the will of Henry Catlett, deceased, was not written in his presence nor by him, nor was tlie same signed by him or any person, by his direction, in bis presence, as required by tlie statute. (Wagn. Stat., 1364, § 3 ; Rigg vs. Wilton, 13 Ills., 18 ; Dunlap vs. Dunlap, 10 Watts, 153 ; Nortbcntt vs. Nortlieutt, 20 Mo., 268.) Our statute in regard to tbe manner of executing wills is mandatory, and a will not executed in conformity with the act is void.

I. The petition nowhere alleges the value of the property-destroyed, or that it was of any value whatever, or that the plaintiff sustained any loss, or that the destruction of said property so insured was any damage or loss to plaintiff. II. The court without the intervention of a jury had no authority to try and determine the matters in controversy in this case. (Wagn. Stat., 1040, §12.) The defendant had filed an answer pleading to the merits.

<p> Error to Demies Circuit Court. </p> <p>I. The petition shows that John Higgins could not have legally entered the land in his own name, and the entry was made in his son’s name to evade the pre-emption laws of the United States. No resulting trust can be set up, if it would break in upon the policy of the law, or a public statute. (Miller vs. Davis, 50 Mo., 572; Alexander vs. Warrance, 17 Mo., 228; Baldwin vs. Oampfield, 4 Halst. Ch., 891; Ex parte Tallop, 15 Yes., 60; Ford vs. Lewis, 10 B. Mon., 127; Oottington vs. Fletcher, 2 Atk., 156; Muckleston vs. Brown, 6 Yes., 68; 1 Sto, Ec[. Jur., §294; Cooth vs. Jackson, 6 Yes., 12.)</p> <p>I. The petition does not show that the father entered the land in the name of the son, for the purpose of evading any act of Congress.</p> <p>II. The petition is sufficient after verdict.</p> <p>III. "Where a father purchases or enters land in the name of his son, although the presumption is, that it was intended as an advancement to the son, yet that presumption may be rebutted by testimony.</p>

I: Plaintiffs had no right to redeem. The money due on the note and mortgage was paid. (Curtis Eq. Prac., 404; Thornton vs. Irwin, 43 Mo., 160, 161; Bollinger vs. Chouteau, 20 Mo., 89, 95; 4 Kent’s Com., 186 ; 4 John. Ch., 140-.) There was no application to redeem alleged in the -petition, nor proved on the trial, before the institution of the suit. (2 Hill. Mort., 58, § 18; 6 Am.

I. In actions of slander, the slanderous words must be proved as charged; proof of equivalent words is not sufficient; so many of the identical words charged as are necessary to constitute in themselves the slanderous accusation, must he proved as laid. (Birch vs. Benton, 26 Mo., 153 ; Oreelman vs. Marks, 7 Blackf., 281; Fox vs. Vanderbeek, 5 Cow., 515; 8 Phil., Ev., 551 & notes; 1 Hill. Torts, 397.) II.

<p>1. Achon to quiet title — Answer, what estops defendant. — In suit under the statute, (Wagn. Stat., 1022, (¡§ 53, 54,) to quiet title where defendant by his answer disclaimed all right and title adverse to the petitioner but also denied plaintiff’s title, held, error in the court to enter upon a trial of the cause.- Tiie disclaimer operated as a bar to any adverse claim of defendant; that portion of defendant’s answer denying plaintiff’s title was a mere nullity and surplusage.</p>

<p> Appeal from Livingston Circuit Court. </p> <p>I. The statute does not authorize a judgment for double damages, when the injury is committed on timbered lands for want of a fence.</p>

<p>1. Administrator — Action by, in the Buchanan Court of Common Pleas — Counter-claim may be set up — Statute, construction of. — Section 6 of tlie act establishing Courts of Probate in the counties of Ralls, * * * Buchanan * * * etc. (Sess. Acts 1S65--6, p. 83,) gives the Probate Courts exclusive jurisdiction “to hear and determine all suits and other proceedings against executors and administrators upon any demand against the estate of their testators or intes* tate.” Held, that iu a suit by'an administrator on an indebtedness to the estate of the deceased, defendant may set up as a counter-claim a debt owing him by the estate, although the action was brought in the Buchanan Court of Cpmmon Pleas, and not the" said Probate Court.</p> <p>2. Administrator — limitations, statute of — Letters, grant of — Averments as to.— , An administrator, although not bound to plead the general statute of limitations, must, in order. to avail himself of it, plead the statute specially applying to suits against him in his official character ; and must also allege the granting of his letters in the manner, and within the time prescribed by law.</p> <p>3. Administrator — Suit by, against creditor — Counter-claim—Limitations, statute of. — The special statute of limitations touching administrators, contemplates cases where the creditor in the first instance brings his claim against the estate, and has no application to suits by the administrator against the creditor, where the demand of the latter is set up as a counter-claim. In such suit the only statute which can be pleaded against the counter-claim, under the statute (Wagn. Stat., p. 1274, $ 3), is the general limitation law.</p> <p>4. Administration — Affidavit as to allowance of credits, etc., required only to causes in Probate Court. — The requirement of the statute, (Wagn. Stat., p_ 103, 12, 15,) that a creditor, in establishing his demand against the estate of an administrator, shall make affidavit of allowance of all just credits and off-sets, etc., applies only to cases where the claim is presented in the Probate Court. When, the party js sued in another court, the cause is tried upon pleadings and proofs as in ordinary actions.</p>

Error from Linn Circuit Court. I. There is no allegation in the first count of the petition, that the money was paid by plaintiff to Arnold at the request of Rooker, or that Rooker ever consented to it after it was done. There is no privity between Arnold and Rooker, and «ertainly Arnold could not be made the debtor of Rooker without his consent. Then if^these views be correct, neither Rooker nor J. R. 0. Menefee could sue Arnold for the money.

■ I. The Circuit Court of Caldwell county has appellate juris-diction from the final judgments and decisions of its Common Pleas Court, by appeal or writ of error. (See § 13 of Act of 1870, pp. 209-10.) Wherefore the Circuit Court erred in dismissing said appeal for want of jurisdiction, and its judgment should be reversed and the cause remanded. II.

I. Advertising to receive bids till a specified time, and closing a contract with a favorite contractor long before that time had expired, carries the stamp of fraud and illegality upon its face. (Dill. Mun.

I. The Act approved March 10th, 1871, is unconstitutional. (See Art. XI, § 16;. Art. I, § 30, Const, of Mo.) . This rule subjecting property to taxation in proportion to its value is imperative. (Life As. Am. vs. B. of As., 49 Mo-., 517.) II.

<p> Jipjpealfrom, Buchanan Common Pleas Court. </p>

I. Appellant is not estopped by anything he said or did prior to or at the time of the sale of said land under the County Court judgment. To constitute an estoppel in pais, the act or admission relied upon to have that effect, must be the moving cause and inducement, in the absence of which the party setting it up would not have done that upon which he claims the estoppel. (Hill vs. Epley, 31 Penn. St., 334; 2 Washb.

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

The Appellant — plaintiff below — after recovery against him in ejectment by the respondents, brought this suit to recover the value of his improvements on the land so recovered, and enjoined the respondents from entry and possession, until-the determination of this suit by injunction. For statement see also opinion of court.

<p> Appeal from. Livingston Circuit Cou/ri </p>

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

<p> Appeal from Clinton Circuit Court. </p> <p>I. Section 43 is penal (Sedgw. Const. Law, 41), and the action should have gone in name of The State. (Trice vs. Han. &. St. Jo. R. R. Co., 49 Mo., 438 ; Iba vs. Han. & St. Jo. R. R. Co., 45 Mo., 469.)</p> <p>I. The damages given by § 43 of the Railroad Act (Wagn. Stat., 310), although in the nature of a penalty, are given to the owner of the cattle injured or killed.</p> <p>II. Section 42 is directory, not mandatory. (State to use, etc. vs. Hann. & St. Jo. R. R. Co., 51 Mo., 532.)</p>

I. The court below erred in refusing to require the defendants to answer jointly, as their separate answers were exact copies of each other. (Wagn. Stat., 1017, § 14.) II. The allegations of the petition are sufficient, in a proceeding like this, to show a dissolution of the corporation. (Slee vs. Bloom, 19 Johns., 456; Briggs vs. Penniman, 8 Cow., 387; Moore vs. Whitcomb, 48 Mo., 543; State Sav. As’n. of St. Louis vs. Kellogg, 52 Mo., 583.) III.

<p>1. Practice, civil — Costs, taxation of — Becovei-y of amommt below jurisdiction of court. — The action of a lower court in overruling a motion to tax the costs against the plaintiff in a case on contract, wherein plaintiff recovered an amount below the jurisdiction of the court, is evidence that the court considered, that the plain tiff had'reasonable ground to believe at the time of the commencement of the suit, that he was justly entitled to recover judgment for an amount withiin the jurisdiction of the court. (Wagn. Stat., 343, § 12.)</p>

<p> Error to Clinton Circuit Cou/rt. </p>

<p>1. Execution sale, in session of County and not of Circuit Court void. — An execution sale of land otherwise regular, but made during a session of the County Court, and not shown to be made during a term of the Circuit Court, and a deed made under such sale,would be absolutely void, both in direct and collateral proceeding.</p>

. . • I. While it Las seldom been decided under the Act of 1867, it has been repeatedly held, under the Act of 1841, that a discharge is a bar to any… Held: under the Act of 1841, that a discharge is a bar to any claim by a surety for money which he has been compelled to pay for the bankrupt, after his discharge, on a contract made prior to his bankruptcy. (Mace vs. Wells, 7 How., 272; Crafts vs. Mott, 4 N. Y., 603; Butcher vs. Forman, 6 Hill, 583 ; Morse vs. Hovey, 1 Sandf.

1. Under a proper construction of the act of 1873 (Sess. Acts, 1873, p. 56), appellant was not bound to prove anything to the court below. It is sufficient if it appears by the record that the court is prejudiced against the defendant.

The third instruction given on behalf of plaintiff was as follows: “If the jury believe from the evidence, that'defendants owe plaintiffs for corn, or cash paid for freight on cars, or pigs feet, or shrinkage on hogs, they will allow on said • third count of plaintiffs’ petition such amount therefor, as the evidence satisfies them that the plaintiffs are entitled to.” The third instruction asked by defendant, and refused by the court, was as follows: “There is no legal…

<p> Appeal from Buchanan County Circuit Court. </p> <p>The sheriffs deed relates back to the date of sale. (Winston vs. Affalter, 49 Mo., 263.)</p> <p>After' the sheriff’s deed to appellant, the latter exhibited his deed to respondent and demanded rent, as he had a right to do, having succeeded to Saltzman’s estate. (Wagn. Stat., 883, §38; Walker vs. Harper, 33 Mo., 592.)</p> <p>•The attornment of Koenig to Pinger was .void. (Wagn. Stat., 880, § 15 ; Schultz vs. Arnot, 3.3 Mo., 172; Rutherford vs. Ullman, 42 Mo., 216.)</p>

<p> Appeal from, Linn Common Pleas. </p>

<p>1. Practice, civil — Appeal—Record—Motions.—Motions in arrest and for a new trial constitute no part of the record, unless they are incorporated in the bill of exceptions.</p>

flppeal from Buchanan Circuit Court. I. Compensation for plaintiff’s services in waiting upon his wife should have been claimed in the first suit. Plaintiff cannot split his cause of action. II. The law gives no such damages. III. The petition makes no claim therefor. (Sedg. Meas. Dam., 682, n. 1; 52 Me., 378; 2 Greenl., 284; 25 111., 86.) I. The damages in the two cases are entirely different.

<p> Appeal from, Buchanan Circuit Court. </p> <p>The .admissions of Conner were admissible in evidence as part of the res gestae.</p>

Error-to Carroll Circuit Court. I. Defendant had the right to drain the surface-water from his own land by ditches and embankments thereon, and if said ditching and embankments were done on his own lands with reasonable care and skill, and plaintiff is incidentally inconvenienced or injured thereby, he is without remedy. The caséis one of “damnum absque injuria.” (Swett vs. Cutts, Amer.

<p>1. Equity — Mixed question of law and fact — Opinion of jury — Statute, con~ struction of — Reversal.—In equitable proceedings, the court cannot, under the statute (Wagn. Stat., 1041, § 13), submit to a jury for its opinion a mixed question of law and fact, but the error is not such as will justify the reversal of the judgment, the whole case having beeu heard and pronounced upon by the court itself.</p> <p>2. Tender, how must be accepted. — A party must accept a tender as made, or lie must reject it; he cannot accept it and prescribe the terms of his acceptance.</p> <p>3. Tender — Time of — Objection as to, when waived. — A party is presumed to , waive the objection that a tender is not in'time, if he does not raise that objection when the tender is made.</p>

I. This was a proceeding brought under section 34 of the Dower Act (Wagn. Stat., 544). If, The sale transferred to defendant the interest of Holt county in the mortgage, and he being in possession of the land as mortgagee, had the right to so remain until said debt was paid and the land redeemed by Honaker’s heirs — he being substituted to the rights of Holt county and an assignee of. said mortgage.

•Appeal from Buohanan Circuit Court. Unless the acts of the person killed were the direct and proximate cause of the disaster, the company will not be excused from liability. (Kennayde vs. Pacific Railroad, 45 Mo., 253-; Colegrove vs. N. Y. & H. R. R. R,, 6 Duer., 382; Shearm. & Redf. Neg., 25, 28, 29, 47, and cases cited; Morrissey vs.. Wiggins Ferry Co., 43 Mo., 380 ; Davies vs. Mann, 10 Mees. & W., 545; State vs. Manchester & L. R. R., 52 N. H., 528; Thompson vs. N. Mo.

Jtppealfrom Buchanan Circuit Court. The second instruction1 given for respondent was wrong. The question of negligence in this case was for the jury. Where the facts are not perfectly clear, as in the case at bar, he whole matter should be submitted to the jury under propsr instructions.

<p>X. Msloppel in pah does not affect subsequently acquired tiñe. — In ejectment for certain lands bought by defendant at a sheriff’s sale, plaintiff will not be estopped from setting up an adverse title, by reason of the fact that at the sale, not then having any title in himself, plaintiff induced defendant to purchase by his representations that a good title would pass by the sale. Acts of estoppel in pah, operate only upon existing rights, and do not affect a subsequently acquired title.</p>

I. The certified copy of the record of the deed from Whitehead to Snell was not admissible in evidence, because the original of said deed did not appear to have been properly acknowledged under our laws or the laws of Kentucky, when made, nor was any proof of its execution offered, nor was any proof offered to show what were the laws of Kentucky at that time in reference to the acknowledgment of deeds. (Crispen vs. Hannavan, 50 Mo., 415 ; 1 Greenl.

<p>1. Constitution — “ Solemn occasion,” etc. — Whatis—Each branch of State government to determine question for itself. — Semble, That what are “important questions of constitutional law,” and what are “solemn occasions,” (Art. VI, §11, State Const.) the framers of the Constitution intended each branch of the State government, to determine for itself.</p> <p>2. Constitution — Opinion of Supreme Court, cannot be given, iolten. — The Court cannot under the State Constitution, (Art. VI, Supreme § 11,) give opinions on questions involving the interests of corporations or private persons, which may subsequently come before it in contested cases.</p> <p>3. Constitution — Proposed legislation — Effect of on State lien, etc. — Questions relating to the effect of a proposed law upon a prior lien of the State, are not ones of constitutional law, but depend upon facts and principles of common law.</p> <p>4. Constitution — Extension of loan — Giving or loaning of credit. — Semble, That an act of the legislature granting an extension of time upon a loan formerly made to a railroad company, is not in conflict with Art. XI, g 14, State Const., which prohibits the giving or loaning of the State’s credit, in aid of any person, association or corporation.</p>

I. Plaintiff could not combine in one count trespass for cutting and carrying away timber, and an action in equity, to restrain defendant from further trespasses. (Peyton vs. Rose, 41 Mo., 257; Jones vs. Moore, 42 Mo., 413 ; Henderson vs. Dickey, 50 Mo., 160; Curd vs. Lackland, 43 Mo., 139.) II. An action of trespass is one for injury to the possession; and plaintiff had none.

I. The taking of the notes in the names of the principals and in their business, without the continued possession of the same, or at least having the same in possession up to,, and at the time of, payment, did not authorize said agents to collect the money due thereon by virtue of their agency. (Sto. Ag., 114, § 98 ; Doubleday vs. Krew, 60 Barb., 181.) II. The said agents had the first two nptes in their possession at the time of their collection of them.

I. The court erred in holding, that by the sale under the proceedings at law Moore acquired a fee simple title to the land purchased by him.

I. Plaintiff here makes no claim for the recovery of the specific property, but for deprivation of its use. Sub-division 4 refers to replevin cases. There the recovery of the property in specie is the cause of action, and its detention is the incident.

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

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

<p>1. Practice, civil — Pleadings—Corporation cannot deny its existence, when. — In a suit by attachment against a foreign corporation, where defendant voluntarily appeared and gave bond in its corporate name, -held, that the company was thereby estopped from denying its corporate existence. (Seaton vs. Chicago, R. I. &P. R. E. Co., ante p. 416.)</p>

<p>1. Conveyances — Construction—Trusts—Uses,—A conveyance was made to A. a married woman, conveying certain land to “her and her heirs forever,” and providing that if B., who was a son of A. “should pay to each of the other heirs five hundred dollars and keep his father during life,'then he will have and shall hold the same, and to his heirs and assigns forever, otherwise the same to be divided with all the heirs equally.” Held, that the deed was not intended to vest the estate to the land, legal and equitable, in the grantee, but that she was to have the whole estate until the death of her husband, and at his deuth she became a trustee for B. and his brothers and sisters, the children of her husband; that by the terms of the deed B. was to be the sole beneficiary if he supported his father during his life, and paid the other children five hundred dollars each, but if he failed to do this, he was to share equally with the other children; and as a person while living cannot have heirs, the word heirs was not used i.n its technical sense, and meant the children of A’s. husband. '</p> <p>3. Trusts — How created — How manifested. — A trust need not be created by writing, but must be manifested and proved by writing.</p>

<p> Appeal from Platte Circuit Court. </p> <p>'I. Tbis action is in rem. (Wagn. Stat., 1005, § 3; Han. & St. Jo. E. E. vs. Mahoney, 42 Mo.', 469-471; Doe vs. Oliver, 2 Smith’s Lead. Gas., § 585; Freeman Judg., pp. 504-6 §606.) ...</p> <p>... II. Neither acquiescence nor consent, can confer jurisdiction. (Grermond vs. People, 1 Hill, 343 ; Dudley vs. May hew, 3 Com., 9 ; Clyde & Rose Plankroad vs. Parker, 22 Barb., 323; Freeman Judg., §120, and authorities there cited; Bangs vs. McIntosh, 22 Barb., 591.)</p> <p>III. The law requires transcripts on change of venue to be filed at or before the second term after the order. (Wagn. Stat., pp. 1356-7, §§ 7,12.)</p> <p>IV. James Henderson, Sr., had the undoubted right to prefer one creditor over another. (Cason vs. Murray, 15 Mo., 378 ; Drury vs. Cross, 7 Wallace, 302; Tompkins vs. Wheeler, 16 Peters, 106; Marden vs. Babcock, 2 Mete., 99 ; Auburn Ex. Bank vs. Fitch, 48 Barb., 344.)</p> <p>V. The petition alleges the acknowledgment and record of the deed. Witness Hardwick says it was not recorded. A party cannot contradict his own pleadings. Such testimony would operate a surpise on the other party, and on that score was wrong.</p> <p>YI. A copy of the record entry of the acknowledgment, was, after proof of loss, the next best evidence. (Wagn. Stat., 612, §§56-7; Greenl. Ev., [Ed. 1859,] p. 119, §82, p. 124, § 86, p. 127, § 88; Commonwealth vs. Kinison, 4 Mass., 646 ; Waterman vs. Eobinson, 5 Mass., 309; Philipson vs. Bates, 2 Mo., 116; Milan vs. Pemberton, 12 Mo., 598; Medlin vs. Platte Co., 7 Mo., 235 ; 1 Phillips on Evidence, 588.)</p> <p>I. After the order, the Platte Circuit Court had jurisdiction. The statute (Wagn. Stat., 1356-7, §§ 7, 12 ;) is directory. (Sedg. Stat. & Const. Law, pp. 368, 372.) By appearing to the suit in that court, they waived objections to venue. (Powers vs. Browder, 13 Mo., 154; Smith vs. Elder, 3 Johns, 105; Street vs. Chapman, 29 Ind., 142; Burnham vs. Hatfield, 5 Blackf., 21; Gilstrap vs. Felts, 50 Mo., 428.)</p> <p>II. And a party may recover upon parol evidence of the contents of a deed, when it is lost. (Smith vs. Phillips, 25 Mo., 557; Newman vs. Studley, 5 Mo., 291; Jackson vs. Eice, 3 Wend., 183; 3 Yates, [Penn.] 184.)</p> <p>III. The testimony raises the presumption, that Henderson’s conveyance was designed to defeat his creditors, and in an equity case like this, fraud may be presumed. (King vs. Moon, 42 Mo., 551.)</p>

<p> Appeal from Glinton Circuit Court, </p> <p>I. The court will take judicial notice of county boundaries. (State vs. Worrell, 25 Mo., 212; Hinckly vs. Beck-with, 23 Wis., 328; Mossman vs. Forrest, 27 Ind., 233; Indianapolis B. B. Co. vs. Stephens, 28 Ind., 429 ; Woodward vs. Chicago & E. Co., 1 Wis., 309; Martin vs. Martin, 51 Mo., 366.)</p> <p>II. The statute of this State requires the metes and bounds of a municipal corporation to be stated in the order of the court creating the corporation. (Gen. Stat. 1865, p. 240, §1; Dill. Mun. Corp., 124.)</p> <p>III. Any ambiguity or doubt arising out of the terms of the order, must be resolved in favor of the public. (Dill. Mun. Corp., 103 ; Minton vs. Lane, 23 How., [U. S.] 435-6, 8 Conn., 247; 10 Conn., 442.)</p> <p>IY. The order of the County Court of Glinton county, incorporating the inhabitants. of the town of Cameron, is conclusive of the metes and bounds of the corporation and of the location and extent of the territory thereof, and no evidence of antecedent facts is admissible to change or explain the said order. (State vs. Weatherby, 45 Mo., 17; 12 Barb., 573.)</p>

I. The annual settlements made by the administrator, were not judgments, and constituted no defense or impediment to a suit upon the bond, for breaches of its conditions. (Picot vs. Biddle’s Admr., 35 Mo., 35, and cases therein cited; State to use, etc. vs. Plynn,48 Mo., 413.) I. A person seeking to falsify the allowances and accounts of the settlements of administrators must petition the Circuit Court, as a court of law and equity, for that purpose.

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

Error from Daviess Common Pleas. I. The mere filing of the petition entitled against the other parties, without summons, service, or appearance, did not constitute the commencement of a suit against them. Hence, no dismissal as to them was necessary. (See 52 Mo., 332; 34 Mo., 326 ; 32 Mo., 423.) II. The judgment being taken by agreement of the parties with a stay of execution for a definite period, the defendant is estopped from setting up the pretended irregularity.

<p> Appealfrom Buchanan Circuit Court. </p> <p>I. The appeal in the case at bar has the effect of certiorari and none other. (County of St. Louis vs. Lind, 42 Mo., 348; Lacy vs. Williams, 27 Mo., 280) Lewis vs. Nuckolls, 26 Mo., 278; County of St. Louis vs. Sparks, 11 Mo., 202.)</p> <p>Boggs vs. Brooks, (45 Mo., 232) is not in conflict with the appellant’s position. There the act expressly refers to a “trial anewno such language occurs here.</p> <p>1. The act authorizes a trial de novo, in the appellate court. It declares, sec. 7, “that the appeal shall be in the same manner, and to such courts as appeals are allowed from judgments oí justices of the peace.”</p>

I. Fraud in tlie execution of a note, negotiable in its character, does not afFect its validity in the hands of a bona fide purchaser before maturity for value, in the usual course of trade. (Kent. Com. 9 Ed., Yol. 3, §§ 79, 80 ; Story Prom.

<p>1. Damages — Railroads—Killing stock — Negligence.—In unloading salt at a depot by the railroad employees, some of ,it was spilled, and afterwards a cow was killed by the cars at this point, presumably attracted thither by the salt: Held, that it was negligence to leave this salt on the track, and the railroad was liable.</p>

<p>1. Acknowledgment — Certificate neednot declare parly to be “personally” known. —It is settled in this State that it is not necessary that a certificate of acknowledgment should state that the person therein named as grantor was-“personally” known to the officer. It is sufficient if it sets forth that such person was known to him.</p> <p>2. Ejectment — Sheriff's deed — Idem sonans. — In ejectment by the grantee in.a sheriff’s deed, where the evidence showed that judgment was rendered for one “Mariah H. Matherbut .the deed recited the rendition, of judgment for “Mariah Mathews,” held, that the deed was inadmissible. Mathews and Mather are not idem, sonans.</p> <p>'It matters not how words'are spelled, they are idem sonans within the meaning - of the books, when, if the attentive ear finds difficulty in distinguishing them when pronounced; or common and long continued usage has by corruption or abbreviation made them identical in pronunciation.</p>

<p> Appeal from Caldwell Common Pleas. </p>

Appeal from, Linn Circuit Court. I. Under an averment of performance, evidence showing an excuse for non-performance cannot be given. (Pier vs. Heinri chollen^ 52 Mo., 333 ; 4 Sandf, 665; 3 Abb. Pr., 562; 29 Iowa., 104; 12 Tex., 118 ; 7 Barb;, 167-71; 2 Wend.. 399 ; 8 Johns., 392; 9 Johns., 115; 3 Johns., 528, 11 N. Y., 25-33.) II. Where insurance in a specially named company is permitted, it cannot be renewed without consent of the insurer in another company. I.

<p>1. Construction of statute — Repeals—Remedies when concurrent — When not.— The settled rule is that if a statute giv.es a remedy in the affirmative, without containing any express or implied negative, for a matter which was theretofore actionable at common law, this does not take, away the common law; remedy. And the same rule holds in civil and criminal cases.</p> <p>Crimes and punishments — Embezzlement—Donations to N. W'■ Lunatic Asylum — Failure of agent to pay over — What remedy proper. — An agent of the County of. Buchanan who under the act of Mjarch 28th, 1S72, (Wagn. Stat., 1706, ? 7) received a donation to be paid over to the commissioners, for the. North-western Insane. Asylum “as soon as the same should be located at or near the City of St. Joseph, would not be liable to indictment for embezzlement under \ 41, Art. 3, of the statute touching Crimes and. Punishments (Wagn. Stat., 459-60,) .for failure to pay over the' money tp the institution before it was permanently located at that point. The proper rqmedy in case of default in payment of money to that asylum when the same was due, wopld be a prosecution under § 25, of said act of March, 28th, (Wagn. Stat., p. 170). The agent would also be 'liable.therefor to a.civil action.</p>

<p>1. Practice, Supreme Court — Bill of exceptions — How must he signed. — A bill of exceptions signed neither by the judge, nor in case of his refusal, by the bystanders. (Wagn. Stat., p. 1044, g SO) is a nullity and will be.disregarded by the Supreme Court.</p>