Volume 56 — Missouri Reports

I. When respondent notified the County Court in writiiig that he resigned the said office, to take effect at a future time, lie expressed his intention by an unequivocal act and was in every way bound by it. It was not necessary that the resignation should be made to the governor in order to make it complete, for an office may be resigned without a formal act.

«Appeal from Linn Circuit Court. I. The acceptance of a lease, with a stated rent reserved, for a definite time, and holding thereunder for many.years, as in this case for nine years, creates a tenancy from year to year, and the tenant is entitled to notice to quit before he can be dispossessed. (Tayl.

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

I. The interlineations were not part of the June Term judgments and were void. Hence the special executions directing sale of the leasehold were also void. II. There was no proof of the filing of the liens or commencement of the suits which resulted in the judgment. III. The sheriffs deed should have been excluded. It recited three judgments and three executions, when it was shown that no such judgments or executions ever issued. IV.

The law presumes that a person in possession of land has acquired the title which the people or sovereign once held. (Tyl. Ej., 105, 569 ; 14 How., 295.) In actions of ejectment, the statute of limitations does not begin to run so as to confer title till the “fee” has passed from the General Government, by patent or grant.

Jlppeal from Jindrew Circuit Court. I. Andrew county, at date of the bonds, was restricted by express statute to seven per cent, interest on bonds. (R. C. 1855, p. 429, § 33.) In the absence of charter or special law prescribing rate of interest, said county was governed by that section. The court of Andrew county was a mere agent for the county, and bound to follow strictly the power conferred by law.

<p>1. Judgment affirmed. See Ross ys. Murphy, ante, p. 372.</p>

Charles Circuit Court. The court refused, the following instructions asked by defendant : “The court declares the law to be, that when an appeal has been granted, the court has no further jurisdiction over the cause, and if the evidence in this cause shows that the verdict and judgment of the court in case of Kingman & Co. vs. Abington, rendered at its September term, 1871, has never been set aside, reversed or modified, then said judgment is still in full force and effect;…

<p> Appeal from, St. Louis Oircuit Court. </p>

Louis Circuit Court. The requirement that the assessment shall be made “according to the value of the property to be assessed, and in proportion that such property may be benefited by the proposed improvement” (Sess. Acts, 1870, p. 478, § 3), was not intended to regulate and limit the assessment upon a given piece of property bj’ the actual benefit it may have received.

<p>1. Collector — Check received for taxes, when amounts to payment. — Where a tax-payer lias funds iu bank sufficient to pay his taxes and the collector receives his check for the amount, and fails to preseut the check in due time at the bank and the institution afterwards fails, the collector must bear the loss. And if after receipt of the check, the collector returns the taxes delinquent, and the tax-payer is compelled to pay them with another appropriation of money, the collector becomes liable to him for the amount of the check. .</p>

I. The holding of defendant was a tenancy for mining, and not apure tenancy at will. (1 Washb. R. P., 395, §1, et seq. [2nd Ed.]; Kerr vs. Clark, 19 Mo., 132; Williams vs. Deriar, 31 Mo., 15; Tayl. Land. & Ten., 14.) Hence a notice to quit and 'the fixing of a time when the tenancy would cease were necessary. These acts do not appear to have been done. Therefore, the petition does not show that the plaintiff in error was at any time a trespasser. (2 Wagn.

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

Louis Circuit Court. I. This being an action ait law was for a jury, and defendant not consenting, to waiving a jury, was wrongfully referred. Under § 17, Art. I, State Const, there can be no compulsory reference of an action at law. (Townsend vs. Hendricks, 40 How. Pr., 143 ; Greene vs. Norris, 19 Cal., 140.) II. There is no pretense that the referee was sworn as required by statute (Wagn, Stat., 147, § 30), or that the affidavit was waived.

<p> •Appeal from St. Louis Circuit Court. </p> <p>Defendant in no wise participated in the execution of the attachment process. He neither delivered the writ to the constable nor did he direct him to levy, nor indicate to him the property to be levied on, nor was he present at any time whilst the levy was in force. (Drake At., § 730.)</p> <p>To maintain this action it must appear that plaintiff in the attachment knew that he had no cause of action, and that he acted maliciously therein. (Alexander vs. Harrison, 38 Mo., 258 ; Drake At., § 734.)</p> <p>There was no case made for exemplary or vindictive damages. The ingredients of “malice, violence, oppression or wanton recklessness,” are wanting altogether. (Kennedy vs. North Mo. D. D. Co., 36 Mo., 351, 365 ; Franz vs. Hilterbrand, 45 Mo., 121.)</p> <p>The damages, even after the remittitur are obviously excessive and unwarranted, and in such case the Appellate Court will award a new trial. (Pratt vs. Blakey, 5 Mo., 205; Woodson vs. Scott, 20 Mo., 272; Barth vs. Merritt, 20 Mo., 567; Wells vs. Sanger, 21 Mo., 351; Groetz vs. Ambs, 22 Mo., 170.)</p>

Louis Circuit Court. Defendant received the drafts for collection, not merely for transmission. (Bank of Washington vs. Triplett, 1 Pet., 25. It will be presumed that the bank undertook the collection for a sufficient consideration and-they will not be permitted to rebut it. Gerhardt vs. Boatmen’s Saving Ins., 38 Mo., 60; citing and approving Allen vs. Merchants’ Bank, 22 Wend., 215; Morse Banking, 323, 2 para.

Louis Circuit Court. I. Special ordinance No. 6,583, fails to specify the time within which it should be performed. Time is of the essence of contracts of this character. Fixing the time is a part of the legislative power, can only he exercised by the City Council, and cannot be delegated, (See Ruggles vs. Collier, 43 Mo., 365; Thompson vs. Sehermerhorn, 6 N. Y., [2 Seld.,] 92; City of East St. Louis vs. Wehrung, 50 111., 28.) II.

Information in nature of a Quo Warranto. Tbe returns and abstracts in tlie County Clerk’s Office were not conclusive but only primafacie evidence, and tlie defendant should not have been forbidden to go behind them. That defendant’s position is correct, will appear from tbe following authorities and uniform adjudications on this subject in this and other States ; (Cooley, Const. Lim., 3d ed., § 623 ; Mayo vs. Freeland, 10 Mo., 630 ; State, ex rel.

<p> Jiff cal from, St. Louis Circuit Court. </p>

<p>1. Practice, civil — Continuance—Granting of, left to discretion of court, etc.— The continuance of a cause rests very much in the sound discretion of the court, and the exercise of such discretion will be presumed to be sound and proper. Unless it plainly appears from the record that the discretion has been unsoundly or oppressively exercised, the Supreme Court ought not to interfere.</p> <p>2. Practice, civil — Pleading—'Allegations taken as true, when, etc., and as to whom. — Under the Practice Act (Wagn. Stat., p. 1019, \ 86) facts not controverted in a previous pleading are to be taken as true in favor of the party pleading them, not as a matter .to be submitted to and found by the jury. But they are taken as true as a matter of law to be declared by the court. But (the failure of plaintiff to reply to a defense set up in the separate answer of one defendant is no admission of such defense as to the other defendants not setting it up.</p>

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

<p> Appeal from St. Louis Circuit Court. </p> <p>The indorser, having assented to the release of his maker, is not discharged. (Mont. Comp., 36; Sto. Bills, 430; Lewis vs. Jones, 4 B. & Or., §515; Sto. Pro. Notes, 427; Edw. Bills & N., 291.)</p>

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

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

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

<p>1. Trade marks — Act of 1870 — Meant to protect foreign as well as domestic trade marks. — The act'to protect merchants, etc., against counterfeit trade marks approved February 22nd ÍSÍO, (Adj. Sess. Acts I8i0,)ivas designed to protect foreign as well as domestic trade marks, and may be invoked by citizens of other States and countries. . ' -</p>

<p>1. Promissory Notes — Purchase after dishonor — Defenses, etc. — The purchaser of a note after maturity takes it subject to all existing and prior equities</p>

Louis Circuit Court. The counsel of the parties agree upon the following statement as showing the facts of the case upon which the question of law arises. This was an ejectment to recover -part of U. S. Surv. No. 2553, of New Madrid, Loc.'No. 95, in the name of Nicholas Hebert or his Legal Representative. The plaintiffs title was traversed by the answer. At the trial the plaintiff read the patent of'the IJ.

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

Louis Circuit Court. Plaintiff being unable to pay the premium refused to accept the policy till after the fire,.when he obtained it by concealing that fact. The contract of Insurance could not consist with such refusal. In Keim vs. Home Mnt. Eire Ins. Co. (42 Mo., 38,) no demand was ever made upon Waterman for the premium; and there was no refusal on his part.

<p>1. Fraudulent conveyances — Change of possession, what necessary under the statute. — To render a sale of personal property valid as against creditors, etc., it must be followed by an actual and continued change of possession, and a change so open, notorious and unequivocal as to apprise the community that the vendor had ceased to be the owner of the property. (See Wagn. Stat., 281, §10; Claflin vs. Bosenburg, 42 Mo., 439 ; Lessem vs. Herriford, 44 Mo., 323.) .</p> <p>2. Sale of personal property — Change of possession — Reasonable time — What is. — What will be a “reasonable time” for change of possession of personal property after sale, as meant by the statute (Wage.- Stat., 281, § 10,) must be determined b the circumstances of each case. No definite rule can be laid down.</p>

Jlppeal from St. Louis Circuit Court. I. The question of the dedication of private property to public use depends on the circumstances of each particular case. (Smith vs. State, 3 Zabr., 723; Gamble vs. St Louis, 12 Mo., 617.) II. To constitute such dedication, there must be first a pllin, unequivocal intention to appropriate it to public use; (Becker vs. St. Charles, 37 Mo., 18 ; Pennington vs. Willard, 1 Rh.

<p>1. Administrator must determiiu for himself whether fund belongs to estate of deceased — Parol evidence,when proper, etc. — An agent credited to the account of the husband, the proceeds derived from the sale of certain lands belonging to the wife, and turned the sum over to the administrator of the husband, Held that the administrator properly refused to be governed by the books of the agent, and was right in not charging himself with that amount. He was authorized to determine for himself to what fund it belonged. And the fact might be shown by parol evidence.</p>

<p>1. Negligence, immediate and proximate cause of injury — Recovery in case of,negligence of plaintiff; of both parties. — No one can recover for an injury of which his own negligence in part or in whole was the immediate and proximate cause. Where the negligence of both parties was the proximate cause, neither can recover.</p> <p>2. Practice, civil — Verdict—General finding for defendant sufficient, unless in case of counter-claims. — It is not necessary to find separately for defendant on each count. A general finding for defendant embraces all the issues and is in effect the same as finding each issue for him. This rule may not apply where the answer contains distinct and separate counter-claims.</p>

<p> Jlppealfrom St. Louis Circuit Court. </p> <p>I. The court is bound to know judicially that the legal title to the land in question is in the United States and there remains until it is divested by patent or grant. (3 Washb. Real Prop., 168; Carman vs. Johnson, 20 Mo., 108; Gibson vs. Chouteau, 13 Wall., 93.)</p> <p>II. The rule of the common law that the defendant in an action of ejectment may show an outstanding title in a third person to defeat the suit of plaintiff, is not changed by the statute. (Gurno vs. Janis, 6 Mo., 330; Keene vs. Barnes, 29 Mo., 377; Border vs. Davis, 38 Mo., 107; Foster vs. Evans, 51 Mo., 39 ; Wagn. Stat. title “Ejectment” with foot notes.)</p>

<p> dppeal from Si. Louis Circuit Court. </p>

Louis Circuit Court. I. Plain fifí was not a stranger to the title. The sale, inter partes was good. If void as to creditors, it was void only as to the amount of the execution. (Dilworth vs. McKelvey, 30 Mo., 149; Eallon vs. Manning, 35 Mo., 271; Erei vs. Vogel, 40 Mo., 149.) II. Plaintiff was a competent witness. The “'cause of action” in this suit was the fraud alleged iu Slattery’s answer to make his levy valid. The parties to that fraud were plaintiff and Rottinghaus.

. Louis- Civcmt Court I. The decision in the case of City of St. Louis to use, etc. vs. DeNoue, (44 Mo., 136,) does not authorize the insertion of a new name by the parties after the tax.bill has left the city engineer. Such an alteration destroyed the instrument for legal purposes and rendered it inadmissible as evidence. II. The tax bill was incompetent as evidence, because the city engineer who signed the bill, had no personal knowledge of the work charged.

<p> Appeal from, Si. Louis Circuit Court. </p> <p>E. P. McCarty, for Respondent, cited in argument: Mayer vs. Sheffield, 4'W’al., 195; Dillon on Municipal Corporations, § 790, p. 759-60-61; Cole vs. Tillage of Medina, 27 Barb.,218; Peck vs. Same, 32 Barb., 134; Hart vs. City of -Brooklyn, 36 Barb., 229 ; Yan Dyke vs. Cincinnati, 1 Dis. 737-8 ; McGinity vs. City of New York, 5 Duer., 674.</p>

Louis Circuit Court. 1st. It appears plainly from tlie record that the land in controversy was, in 1811, confirmed to the legal representative of Provenchere, who was Calvin Adams. 2nd. That Calvin Adams had been with his family in possession of this land since 1805, and that they and their legal representatives have been in possession of it ever since, the defendant succeeding, by purchase, to their claim and possession in 1858. 3rd.

Louis Circuit Court. I. This is an action at law, and defendant Emeline’s separate estate can only be reached by equity. (See Eiley vs. McCord, 24 Mo., 265 ; 4 Kent’s Com., 192-5 ; Higgins vs. Peltzer, 49 Mo., 156 ; Bauer vs. Bauer, 40 Mo., 62.) II. Defendant, Emeline, upon the facts shown, did nothing to charge her separate estate, as the same was not derived from her husband.

Louis Circuit Court. I. It was too late to disaffirm more than three years after majority. The disaffirmance must take place within a reasonable time. (Doe vs. Smith, 3 T. R., 436; 3 Bac. Abr., 145 ; 3 Burr., 1719; Richardson vs. Bright, 9 Ver., 368; Bigelow vs. Hening, 3 Ver., 353; Wallace vs. Lewis, 4 Harr. Mich., 75; Hastings vs. Dollarhide, 24 Cal., 245 ; Jenkins vs. Jenkins, 12 Iowa, 198; Blenkensop vs. Stout, 25 111., 132.) II.

<p> Error to St. Louis Circuit Court. </p> <p>I. Tlie acts of the legislature affecting the property in controversy were void as conferring arbitrary power over the property of the infant, Antoinette Rutgers. Her property was free from legislative touch except for her protection and use. (Rice vs. Parkman, 16- Mass., 326; Hibby vs. Chitwood, 4' Mon., 71; Stewart vs. Griffith, 33 Mo., 23; Carroll vs. Olmstead, 16 Ohio, 261; Cochran vs. Van Snrley, 20 ’Wend., 365, 373; Leggett vs. Hunter, 19 N. V., 445; Cool. Const. Lim., 103 ; Fullerton vs. McArthur, Grants. Gas., .232; Estep vs. Hutchman, 14 Serg. & R., 438; Gannett vs. Leonard, 47 Mo., 205.)</p> <p>When a law is enacted for handling the property of infants, and shows that it was made for the benefit of the owner, it must be treated as made in the performance of lawful governmental duty and power. But if' a law is passed that takes A.’s property from him and gives it to B. in express terms; or takes from A. his property, not for his benefit; or takes it from A. and places it beyond his reach, and provides him no security and no remedy; or converts his fee simple absolute estate into a contingent remainder, such a law is not made in the exercise of governmental authority or duty, and. is void.. (See Norman vs. Herst, 5 W., 173 -y Jackson vs. Lyon, 9 Cow., 664; Bloodgood vs. M. & H. R. R. Co., 18 Wend. 9.) When property is divested there must be compensation or some sure and adequate remedy to procure it. (Rockwell vs. Nearing, 35 N. Y., 202; Powers vs. Bergen, 6 N. Y., 358.)</p> <p>If it be unconstitutional to seize upon the property by force, not less flagrant is the injustice of pretending to exercise the constitutional power of converting the. property of an infant and using it for his benefit, by an act of legislation which virtually deprives him of his property without reference to compensation.</p> <p>II. The legislature had no power to authorize Pelagie Rutgers to compromise the pending suit. (Taylor vs. Porter, 4 Hill., 140 ; King vs. Dedham, etc., 15 Mass., 447; Bebee vs. The State, 6 Ind., 515; Taylor vs. Place, 4 R. I., 336 ; Bowman vs. Middleton, 1 Bay, 252.)</p> <p>I. The act of the legislature of Missouri authorizing certain minors, by their parents and guardians, to execute quit-claim deeds, approved February 11, 1847, Acts of 1847, p. 307, and the act amendatory thereto, approved February 27,1851, Acts of 1851, p. 616, are not void or unconstitutional. (Stewart vs. Griffith, 33 Mo., 13;. Gannett vs. Leonard, 47 Mo., 205 ; Highley vs. Barron, 49 Mo., 103; - Davidson vs. Jahannot, 6 Mete., 388 ; Rice vs. Parkman, 16 Mass., 326 ; Sobiet vs. Massachusetts General Hospital, 3 Cush., 483; Clark vs. Yan Suriey, 15 Wend., 436; Cochran vs. Yan Surley, 20 Wend., 365 ; Estep vs. Hutchman, 14 Serg. & R., 435; Wilkinson vs. Leland, 2 Pet., 627; Watkins vs. Holman, 16 Pet., 25; Leggett vs. Hunter, 19 N. Y., 445.)</p> <p>II. Said Antoinette ratified and affirmed said deeds of compromise after she became of age and before she married * * by living in the vicinity, seeing and knowing of the erection of . valuable improvements on said lot in dispute, by the defendants, and not notifying or informing them of her claim to said lots. (Highley vs. Barron, 49 Mo., 103; Wheaton vs. East, 5 Yerg., 41; Wallace vs. Lewis, 4 Harrington, 75; McNees vs. Swaney, 50 Mo., 392.)</p>

I. Defendant was liable for any injury resulting to plaintiff from the dangerous manner of erecting the buildings, if the falling thereof occurred either from the inherent danger attending the use of the old wall and floors as directed in the contract, or from the doing of the extra work, or day’s work, as done, or directed, or permitted, by defendant or his agents, in a careless, dangerous or negligent manner.

<p>I. Attachment — Plaintiffs bond may be sued on withmit plea in abatement — Damages for detention of money by garnishee. — Under the statute of I860, (Wagn. Stat., p. 189, J 42,) defendant In a suit by attachment, in case of judgment in his favor on the merits, may sue on the plaintiff’s attachment bond, without having entered his plea in abatement. (State to use of Roe vs. Thomas, 19 Mo., 613.)</p> <p>In such suit he may recover damages growing out of the detention by garnishment of money due him, not exceeding of course the legal rate of interest.</p>

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

<p>1. Lease — Release from “further” liability — The meaning of word “further."— A release by a lessor of bis lessee from “further” liability under his lease'is not a release from liability for taxes already accrued and which by the terms of the lease, the lessee had assumed to pay. The word “further” as there used means “future.”</p>

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

The deeds introduced showed color of title. (Ang. Lim., [5th Ed.] p. 408, and eases cited; Fugate vs. Pearce, 49 Mo., 441.) Possession had been shown under that color of title. (Crispen vs. Hannavan, 50 Mo., 536.) The south fourth ” of a quarter section gives no description at all. When such a description occurs the deed gives no col- or of title.

Jtppeal from St. Louis Circuit Court. I. “Motions to strike out parts of pleadings should contain the parts sought to be stricken out; or those parts should be so designated that they can be readily ascertained.” (Pierce vs. McIntyre, 29 Mo., 423.) II. Again: “All motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reasons not so specified shall be urged in support of the motions.” (Geni.

<p>1. Promissory note — Defense—.Failure of consideration,. — An answer to a suit on a noto which admits its execution, but alleges that it was “without any consideration whatever,” sets up a good defense.</p>

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

Louis Circuit Court. According to the trust, “the net proceeds” of the sale belonged to Smith absolutely. The fact that the garnisliee held the net income in a fiduciary relation does not exempt him from charge. Under Carling vs. Hyde, (10 Mo., 374.) as soon as the court ordered a distribution of tbe fund held by tbe administrator, he became liable to garnishment. On this point see also Wagn.

<p> Jippeal from St. Louis Circuit Court. </p> <p>I. Notice should have been averred and proved. (Lewis vs. Bradley, 2 Ired., 305.; Herring’s case, Cro. Jac. 432, .2 Saund., 62; Rex vs. Holland, 5 Tenn., 62; Spooner vs. Baxc ter, 16 Pick, 419 ; Greece vs. Ricks, 3 Dev., 362; Adcock v. Fleming, 2 Dev. & Bat., 470; Lewis vs. Brewster, 2 McLean, 31; Sage vs. Wilcox, 6 Conn. 31; Rankin vs. Childs, 9 Mo.j 674.)</p> <p>I. Notice of non-payment was not necessary. (2 Am. Lead. Cas. 60, 133; Stern vs. Marks, 35 Barb., 565; Lamp-herd vs. Cowan, 42 Term., 175; James vs. Scott, 59 Pa. St., 182; 2 Am. Lead. Cases, [5th. Ed.] 59 ; Yinal vs. Richardson, 13 Allen, 527; Montgomery vs. Kellops, 43 Miss. 496; Hall vs. Rogers, 7 Humph., 541; Craig vs. Parker, 40 N. T., 181.)</p>

Louis Circuit Court. I. Ordinance No. 7550 establishes a sewer district, but no sewers in the district; and it purports to delegate to the city engineer the power to determine how many sewers there shall be, and where the same shall be located. (Sess. Acts 1870, Art.VIII, § 12, p. 180; Buggies vs. Collier, 13 Mo., 353 ; also Sess. Acts 1870, Art, III, § 1, pp. 163 and 161, subd. 6; Murphy vs. Clemens, 13 Mo. 395.) II.

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

Louis Circuit Court. None of the ordinances specify the time in which the work is to be done, or its dimensions or material. No plans or estimates of the work were prepared by the city engineer, nor were any such plans submitted to or approved by the council. . Unless this is done, the statute expressly declares that the contract shall not be valid. (Sess. Acts 1867, Art. 6, § 16, p. 69 ; State ex rel., Dunn vs. Barlow, 4S Mo., The judgment given is clearly not authorized.

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

<p>1. Mortgage — Note secured by — Payment of — Subrogation—Remedy against estate of married woman, etc. — Where a third person, at the instance of a mortgagor, or for his own protection, pays a note secured by the mortgage, he becomes entitled in equity to the benefit of the mortgage; and in such case, a court of equity will subrogate him to all the rights of the creditor. But where • the owner of the property mortgaged is no party to the note, and is a stranger to the transaction by which the note was paid, and is a married woman not . holding the land in her own separate right, the party so paying the note, can have no claim on the property.</p> <p>2. Supreme Court — W!iat points examined by, — The Supreme Court will only pass upon such points as were presented in the court below.</p>

<p>1. Instructions should present the whole case. — If an instruction does not cover the whole case, the court may modify it so as to present the views of both parties under the pleadings and the evidence.</p>

Jlppéál from St. Louis Circuit Court. I. The second ordinance passed in consequence of the agreement with defendant for the right of way, without which the city could not have taken the sewer through his ground. The city availed itself of the agreement, and profited thereby. II. The city had no right to put the sewer on Armstrong’s ground without his consent.

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

Louis Circuit Court. I. The Probate Court cannot change the classification of demands against an administrator’s estate at a subsequent term. (Miller vs. Janney, 15 Mo., 265; Nelson vs. O’Brien, Id., 357.) Motion to correct will not lie in such case. II. The case of Gibson vs. Chouteau, (45 Mo., 173,) was one where the mistake was that of the clerk and not the court.

<p>1. Bills and notes — Solder for value before maturity presumed to be an innocent holder — Consideration, when can be impeached. — The indorsee of negotiable paper for value before maturity is presumed to be au innocent holder, and must be so treated in the absence of proof to the contrary; and without such proof no evidence is admissible to impeach the consideration.</p> <p>2. Bills and notes — Considei'ation, what sufficient notice of fraud. — The notice of fraud must be at least sufficient to put the purchaser on inquiry. Express notice is not indispensable; it will be sufficient if the circumstances are such as to strongly indibate that there was fraud in procuring the paper; but the circumstances must be of such á strong and pointed character as necessarily to cast a shade on the transaction and to put the holder on inquiry.</p>

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

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

<p>I. Judgment — Assignment of — Equity.—An assignee of a judgment which has been compromised cannot enforce it against the defendant in the judgment. The assignee takes the judgment subject to all its equities. And, a fortiori, a bill in equity will not lie on behalf of the creditors of the assignee, to enforce it against the judgment creditor.</p>

Louis Circuit Court. I. A merchant assenting to sell on orders is not at liberty to disobey them. (Given vs. Lemoine, 35 Mo., 119.) II.

<p> id.ppe.al from Si. Louis Circuit Court. </p>

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

<p>3. Administration — Practice, civil — Parlies—Action on administrator's bond— Distributees may sue jointly, before order of distribution. — Before an order of distribution is made, those entitled to distribution have a common interest in the fund, and in an action against the sureties on the administrator’s bond they may properly be joined as plaintiffs to prevent a multiplicity of suits.</p> <p>2 Administrator's bond — Sureties—Distributees may maintain action before final settlement. — Where the administrator has failed to distribute funds in his hands according to law and has been removed, where<there are no debts due by the estate persons entitled to distribution may bring suit on the administrator’s bond without the appointment of an administrator de bonis non and befoi'e a final settlement.</p>

<p>1. Van Studdiford, Trustee, etc., vs. Hazlett, ante p. 322, affirmed.</p>

Louis Circuit Court. I. In Jan. 1868, the defendant had taken the plaintiff to the house of Mr. Bliss at Nokomis, 111., and that had become their home. On the 28th of Jan., of that year, he willfully and intentionally deserted her there. Her friends, the Blisses, gave her there a home, comfort, sympathy and'assistance.

<p>1. Paifroads. — Damages—Negligence, contributory.— Although one injured by a railroad collision may have failed to exercise ordinary care and prudence, and thereby contributed remotely to the injury complained of, yet if the accident was directly eaused by negligence of the company, the latter will be liable.</p> <p>2. Practice,, civ,il — Jury—Evidence.—In civil law cases, the jury must determine the weight of evidence.</p>

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

Louis Circuit Court. It does not appear that appellant intended to bind her separate estate. It clearly appears that she did not. I. She cannot charge her property, except when the intention so to do is clear and unequivocal, and only then where the contract is for her personal benefit or advantage, or for the benefit or advantage of her separate property.

<p>1. P'actice, civil — Conflict of evidence. — In civil law cases, questions of conflicting evidence will not be reviewed by the Supreme Oourt.</p> <p>2. Special tax bills — Judgment on, should be special. — Judgments in suits upon special tax bills should be special — against the property charged with the lien — and not a personal or general one. \</p>

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

Louis Circuit Court. I. If an executor or administrator receive assets from abroad, lie and his sureties are liable for the same.

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

Louis Circuit Court. I. Defendants were entitled to open and close. ’ (Cravens vs. Faulconer, 28 Mo., 19; Tingley vs. Cowgill, 48 Mo. 291; Handley vs. Stacey, 1 Post. & Fin., 674.) II. Physical inability to transact business constitutes no disqualification for making a will. There must be a want of mental capacity, not to “ transact,” but to comprehend or understand, ordinary business.

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

<p>I. Justices’ courts — Appeal—Sureties—Noti-suit.—Where defendant appealed from the judgment of a justice, and in the Circuit Court plaintiff took a voluntary nou-3uit, which was afterwards set aside without the knowledge or consent of the sureties on the appeal bond, and plaintiff had judgment against defendant and his sureties. Meld, that the sureties were bound by the judgment.</p>

<p>1. Praatiae, civil — Trials—References—Exceptions to report. — Unless exceptions to a referee’s report are allowed, the report should be confirmed and judgment rendered thereon in the same manner and with like effect as upon a special verdict. The case should not be set down for a re-trial by the court.</p>

St. Louis Circuit Court. I. Under our mechanics’ lien law the Hen does not attach until the account is filed in the office of the cleric of the Circuit Court. Held: that after a petition in bankruptcy was filed against a debtor, no court, other than the bankruptcy court, could obtain jurisdiction over, or in any way affect, the property of the bankrupt, by proceedings com menced after the petition is filed. (In re. Barson, 1 Bank. Beg., 125; Jones vs. Leach, 1 Bank.

Louis Circuit Court. I. If the tract — lots 6 and 12 — contain more than 320 acres, this deed would convey so much or such a proportional interest as 320 is to the full number. Such a deed is good inter vims. (Pipkin’s Case, 29 Mo., 229; 82 Mass., 155 ; 7 Wend., 136 ; 14 Wend., 619 ; 46 Mo., 434 ; 3 Mass., 352; 1 Washb. Real Prop., 568.) II. The reasons, which make such a deed by a sheriff void, (3 Mo., 579,) do not apply to this deed.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. The court has no power, by decree, to establish a boundary line. The statute provides a way for restoring lost boundaries, and a court cannot make new laws to supersede the statute. If tlie bed of the creek exists where defendant says it does, it is a fact needing no 'assistance from a court of equity. If it does not, and did not exist there naturally in 1851, the court cannot put it there by a decree. The court has no legislative power to create it. The existence of it was a fact to be found and best ascertained by a trial. If that had been tried by the new evidence, and between the new parties, and plaintiffs had failed, the way would have been open to enforce the injunction.</p> <p>II. There was no privity of estate between John P. Eeily or Octavia "Warren and any of the parties to the records offered in evidence. Privity of estate, says Bouvier, exists when a relation is established like that of landlord and tenant, or grantor and grantee. “The term privity,” says Grreenleaf) (1 Ev., p. 216, § 199) “denotes mutual or successive relationship to the same rights of property, and privies are distributed into several classes according to the manner of this relationship. Thus, then, are privies of estate, as donor and donee, lessor and lessee, and joint tenants, etc.” But the relations of donor and donee, or grantor and grantee, do not exist between John P. Eeily or Octavia Warren and any of the other parties to this action. Their tifies are independent of each other, (i Kent, p. 368.)</p> <p>J.P.Eeily and OctaviaWarren and the parties plain tiff in the preceding suits were not joint tenants of the land in question, for joint tenants are closer allied than tenants in common. To constitute the estate of joint tenancy there must be unity of interest, title, time and possession, that is, that each and all of the said joint tenants must have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. Joint tenants are persons who own “land by a joint title, created expressly by one and the same deed or will,” and hold uniformly by purchase. (2 Blackst. Com., 180; é Kent, 357.)</p> <p>The relation of joint tenants never existed between'John P. Eeily and Octavia Warren, and the other appellants herein. Their titles are diverse in time, duration, etc. No dower is allowed in joint tenancy. The court therefore erred in permitting even these records to be read against them, there being no privity in estate between said parties and said Reily and Warren; and they are, therefore, not bound by the prior judgments. (1 Stark. Ev., 59, et seq.; 1 Greenl. Ev., § 174, etseq.; Br. Leg. Max., “Res inter alios acta”)</p> <p>Between tenants in common there is no privity in estate. (4 Kent, pp. 359, 367.)</p> <p>There has been no judgment against Octavia Warren and John P. Reily — not one judgment against their privies in estate, and one judgment in their favor.</p> <p>I. It is well settled, that whenever any fact has once been judicially determined between A and B, it is at rest for ever. Neither party can afterwards reagitate it. (Miles vs. Caldwell, 2 Wall., 35; Outram vs. Morewood, 3 East., 345 ; Gardner vs. Buckbee, 3 Cow., 120; Doty vs. Brown, 4 Com-' stock, 71; Kitchen vs. Campbell, 3 Wilson, 304; Betts vs. Starr, 5 Conn., 550; Kent vs. Kent, 2 Mass., 338; Burt vs. Steinburgh, 4 Cowen, 55; Beebe vs. Elliott, 4 Barb. 457; Shode vs. Seaton, 2 Crompton, M. & R., 728 ; 1 Cow., 120; 3 Wils., 304.)</p> <p>These authorities show not only that a judgment between A and B was conclusive as to the matter of the judgment itself, but that if any particular facts which contributed to the judgment, were put in issue between the litigants though not mentioned (or even mentionable) in the judgment, its determination was conclusive.</p>

<p>1. Contracts — Action for breach of — Evidence not admissible to show a different breach from that set up. — Where suit is brought for damuges for a specified breach of contract, evidence of a different and additional breach is not admissible.</p>

I. The powers of administrators pendente lite are simply those of a collector of the estate, while no authorized person to do so is existing. (Ellis vs. Deane, Beatty, pp. 5-12; Walker vs. Woollaston, 2 P. Wm’s, 589; Wills vs. Rich, 2 Atkyn’s, 284, 5 ; 1 Wil. Ex’rs., 311-13.) II. Such administrator will not be.appointed where there is a general administrator appointed and qualified to act.

•Appeal from St. Louis Circuit Court. T. The instruction given on the part of respondent is erroneoits; (a.) in leaving out of view the question, whether the plaintiffs were, or were not,estopped from denying the right of Berlzheimer to collect the money, by permitting the defendant to rest under the impression that be could safely pay Berlzheimer.

<p>1. Landlord and tenant — Crops—Pledge of as security for rent — Bights of landlord — Beplevin.—An agreement of lease of a farm contained a provision that in order to secure the rent reserved, the lessee conveyed and sold to the landlord all of a certain crop then growing on the land, with the power, in case of non-payment of the rent when due, to take possession of the crop and apply the proceeds pro tanto to the payment of his rent. Be Id, that the landlord had no right to the immediate possession of the crop; his right to possession depended upon the lessee’s failure to pay rent, therefore before that contingency occurred the landlord had no right to replevy the crops.</p>

Louis Circuit Court. relied upon Washington University vs. Finch, Cent. Law Journ., No. 6,1874. I. The last of the notes fell due while the war was raging and could not have been paid; and under that state of facts, the law would not allow it to be paid or the holders to receive payment. There was, therefore, no default on the part of the plaintiffs.

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

<p>1. Spears vs. Ledergerber, ante p. 465, affirmed.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>The defense in tbis case arises under the Statute of Frauds. (Wagn. Stat., p. 438, § 5.)</p> <p>The “Field Boob,” or so much as purported to contain the contract sued on, was inadmissible to prove the contract pleaded in the petition. That contained in the “Field Book,” and put in evidence is at variance with the contract set up in the petition. First — The contract put in evidence, on its face shows a contract with John Riggin, Jr. He is the contracting party. Parol proof was introduced to show, that although John Riggin, Jr., is named in the memorandum as the contracting party, he was not such, -but that Jane Briggs, not at ail named in the memorandum, was the contracting party. The evidence was clearly inadmissible. (Higgins vs. Senior, 8 Mees. & W., 843; Wilson vs. Bailey,1 Handvs, 178; Kean vs. Davis, Spencer, N. J., 425.)</p> <p>Second — The name of the plaintiff does not appear in the memorandum as the contracting party. When parol proof is admitted to explain the memorandum offered in evidence so as to substitute Jane Briggs for John Biggin, Jr., for this is really what has been done in the case, additional parties are introduced and the memorandum is made a joint contract by several persons, instead of a contract with Jane Briggs, which is attempted to be proved by the memorandum. In other words, a contract with several persons jointly is introduced to prove a contract alleged to have been made by one person, which is a fatal variance. The memorandum shows a joint contract, whereas a personal contract is pleaded. (Sngd. on Vendors, 130; Davis vs. Symonds, 1 Cox. Ck., 409; Story on Sales, §§ 466-7; Hilliard on Sales, p. 482, § 28; Hicks vs. Whitmore, 12 Wend., 548; Craig vs. Godfrey, 1 Cal., 415 ; Horton vs. McCarty, 53 Me., 394; Buekmaster vs. Harrop, 13 Ves., 456 ; Smith vs. Arnold, 5 Mason, 414.) Story on Sales, § 257, Note 1, cases cited.)</p> <p>The printed portion of the memorandum shows two facts patent. First — That the sale was on account of the heirs of the Briggs estate; a sale by the heirs of Briggs. Second— That the sale was of a joint property. It implies a joint property, undivided, in the heirs of Briggs. (Story on Sales, § 257;- and Note 1, cases cited; l.d, § 46.)</p> <p>Whatever the words “Sold for account of John Biggin, Jr,” might import if unexplained, the explanation of Biggin’s connection to the transaction, as detailed by himself, clears away any inference that he was the other party to the contract. He was no more than a speculator at whose expense the sale was to be conducted and to whom the auctioneers were to look for compensation for their services. His testimony cannot be objected to by defendant as explaining a writing by parol evidence, because it was drawn out on cross-examination by defendant himself.</p> <p>Whether the language of the memorandum is sufficiently precise as to the ownership or not, can make no difference. Granting it to be equivocal, it is certainly legitimate to resort to the pleadings for any facts that may explain it, and the pleadings and evidence clearly show it. (Browne Stat. Frauds, §350.)</p> <p>The memorandum shows the property sold was in the Briggs Estate and was lots 1 & 2,- block 3.. The Briggs Estate is in St. Louis county, Missouri, and was partitioned by commissioners and subdivided into lots, and the plat of the subdivision recorded in the office of the Beeorder of Deeds for the county. The lots could not be more certainly identified.</p> <p>As to the objection, that the name of the plaintiff does not appear in the memorandum ; — Defendant’s name appears in full in the memorandum. — Plaintiff’s name does not appear, but in place of it we find those of her admitted agents, Belt and Priest. That is enough. If the name of the agent appears, that makes it the contract of the principal. The principals need not appear, whether the cáse comes under the statute of frauds or not. (Cato vs. Hutson, 7 Mo., 142, 148 ; Higgins vs. Dellinger, 22 Mo., 397; Wiley vs. Eobert, 27 Mo., 388; Higgins vs. Senior, 8 Mees. & W., 844; Trueman vs. Loder, 11 Ad. & Ell., 589; Ford vs. Williams, 21 How., 289; Yerby vs. Grigsby, 9 Leigh, 391 ; Hubbert vs. Borden, 6 Whart., 79 ; Bank of U. S. vs. Lyman, 20 Verm., 673, 674 ; Williams vs. Bacon, 2 Gray, 393.)</p> <p>Where the writing does not purport to be the contract, but only a memorandum of it, resort may be had even to parol evidence to explain it. (Eollins vs. Claybrook, 22 Mo., 405 ; Moss vs. Green, 41 Mo., 389.)</p> <p>As a defendant may be charged on a contract wherein only his agent’s name appears, so may a plaintiff avail himself of such a contract and maintain an action on it. (Browne Stat. Frauds, § 373; Bateman vs. Phillips, 15 East., 272; Salmon Falls Manuf’g Oo. vs. Goddard, 14 How., 446; New Jersey Steam Navig’n Oo. vs. The Bank, 6 How., 380 ; York County Bank vs. Stein, 24 Md., 464 ; Brooks vs. Minturn, 1 Cal., 481; Beebe vs. Eobert, 12 Wend., 413; Taintor vs. Prendergrast, 3 Hill,, 72; Sims vs. Bond, 3 Barn & Ad., 38; 'Catliay vs. Fennell, 10 B. & 0., 672; Beckham vs. Drake, 9 Mees. & W., 79.; Same Case, 11 Id., 315 ; 1 Parson’s Bills & Notes, 102; Higgins vs. Dellinger, 22 Mo., 397; Higgins vs. Senior, 8 Mees & W., 844.)</p> <p>When the fact of agency is expressly admitted, as in this case, there can be no doubt that an unnamed principal can avail himself of it.</p>

<p>1. Judgment — Satisfaction of — Notes given for. — A note given by a judgment debtor to the judgment creditor for the amount of the debt, but designed only to fix the time for payment, and which being unpaid at maturity is returned to the maker, is not a satisfaction of the judgment; and the co-defendants of the debtor, against whom judgment has also been rendered, are not entitled, on account of said note, to have the judgment entered as satisfied. The delivery of such note, to plaintiff is not a satisfaction of thejudgment either at law or in equity.</p> <p>2. Equity — Practice, civil — Motions—Relief—Where a motion is made under a statute for a particular remedy therein provided, it is not competent for the court, on that motion, to grant other equitable relief which is not embraced in or relied on in the motion.</p>

<p>1. Practice, Supreme Court — Evidence, not weighed — Tlie Supreme Court will not weigh evidence in a cause to see if it' was properly considered by the jury; although, if it were clearly shown that there was absolutely no evidence to uphold a verdict so as to plainly indicate that the verdict was the result of mistake, prejudice or corruption, the Supreme Court would not hesitate to reverse the judgment rendered on such a verdict. To induce such action the case must be a clear one.</p>

dip peal from. St. Louis Circuit Court. The court below erred in giving the instruction asked by the plaintiff, which declared the leasehold property to be the absolute property of William B. Pemberthy. (Churchill vs. Reamer, 8 Bush [Ky.], 256; Ralston vs. Wain, 44 Penn.

<p>1. Straat, Adm’r of Pemberthy ts. Uhrig, ante p. 482, affirmed.</p>

Louis Girauit Court. 1. It is no defense to my action upon your note for yon to plead that you hold my covenant not to sue yon upon said note, and therefore I ought not to have and maintain my action. (Atwood vs. Lewis, 6 Mo., 392; Bircher vs. Payne, 7 Mo., 462; Bond vs. Worley, 26 Mo., 253.)

<p>1. Execution creditor — Appropriation of money in hands of sheriff to — Levy upon, under writ against execution creditor. — A sheriff who has received money on an execution, cannot before the same is paid over or appropriated, attach or levy upon the money so held, on a writ issued against the execution creditor. If in such ease the sheriff should make the proper appropriation, his act in so doing might be upheld. But he is not bound to appropriate the money but may return his executions and money into court for its disposition of the same.</p>

<p>1. Administration — Bond—Sureties—Additional—Release of former. — The seeu.rity contemplated by the 41st seetion of the Administration Law, is additional to that previously given, and does not have the effect of releasing the former sureties. The 39th seetion applies to an entirely different case, and does not apply to that contemplated by the 41st section. (State ex rel, Glenn vs. Wright’s Adm., 83 Mo., 479, affirmed.)</p>

<p>1. Haskell vs. Parrar, ante p. 497, affirmed.</p>

<p>1. Zandlord and tenant — Sent—Crops—Zien—Attachment—Injunction.—Under the statute which provides that every landlord shall have a lien upon the crop grown on the demised premises in any year, for the rent that shall accrue for such year, (1 Wagn. Stat., 880, §. 18,) an attachment as provided for in the 26th section of the same act, (Wagn. Stat., 881-2,) is not necessary to enforce the lien. The court would enforce the lien without such process and would enjoin the removal or disposition of the crops while the lien continued. An attachment is proper only where there is no lien.</p>

Louis Circuit Court. I. There is nothing in rule 57 that authorizes-the issuing of a writ of error — the rule relates merely to the filing of briefs. II. If writs of error are allowed in cases of this character, they might lie for an indefinite time after judgment in the Circuit Court, and then might be taken up to the General Term, and after being disposed of there, plaintiff in error would still have three years more within which to go to the Supreme Court. III.

Louis Circuit Court. I. The third instruction given assumes, as a fact,that the Eire Department had declared this wall to bo in a dangerous condition, and had ordered its removal, thus withdrawing from the jury vital questions at issue as to this very matter. This was gross error. (Thompson- vs. Botts, 8 Mo., 710 ; Chouquette vs. Barada, 28 Mo., 491; Merritt vs. Green, 34 Mo., 98 ; Sawyer vs. Hannibal & St. Jo. R. R. Co., 37 Mo., 240; Glasgow vs. Lindel], 50 Mo., 60.) II.

<p>1. Common carriers — Inability for disposition of goods at the end of their line— Due diligence. — Goods designed to be delivered at Vicksburg, Miss., were delivered at New York to a common carrier whose line’extended only to St. Louis and. were receipted for by the carrier, as shipped “ via. St. Louis, care of St. Louis & Vicksburg Packet Co., for A, B. & C., Vicksburg, Miss.” At’the time of the arrival of the goods at. St. Louis, there was no company or person in existence in St. Louis, or having an office or place of business there under the name of the St. Louis & Vicksburg Packet Co. The carrier thereupon, shipped the goods on a first class steamer on which it was usual and customary to ship goods from St. Louis to Vicksburg. The steamer was sunk on her way down and the goods partly lost, partly damaged and all detained. On suit against the carrier for such loss, damage and detention, Held, that it was proper for the carrier, having carried the goods to St. Louis, to store them, or to forward them at once, as might be most expedient, regard being had to the nature of the goods, and that having, in the exercise of a sound discretion, forwarded them by a usual mode of transportation, the carrier’s liability ceased.</p> <p>2- Common carriers — Forwarders—Notice to consignors or owners. — A carrier who receives goods, as such, and forwards them to their destination from the end of his line in the exercise of a sound discretion, cannot be held responsible for want of notice of his action to the owner or consignor. Such responsibility would grow out of his duty as a forwarder, and could not be set up in a suit brought against him simply as a carrier.</p>

./?ppeal from St. Louis Circuit Court. I. The plaintiffs could not recover on their petition in general indebitatus assumpsit, after admitting the existence of a contract.

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

Louis Circuit Court. I. The statute upon which this action is based is a penal statute and must be strictly construed. (Allsup vs. Ross, 24 Mo., 284; Yaughn vs. McQueen, 9 Mo., 330.) II. Being a penal statute, the penalty cannot be inflicted unless the act is clearly within the letter and spirit of the statute. The intent is the essence of the offense. The will must concur with the act. Ignorance or mistake in point of fact is in all cases a sufficient excuse. (Pot. Dwar.

<p> Appeal from, St. Louis Circuit Court. </p> <p>I. In Gilchrist vs. Donnell, (53 Mo., 591) this court says, “ It was the duty of the notary to inquire at least of all the parties to the note, if accessible to him, as to the residence of the defendants.” (See Dennis vs. Walker, 7 N. H., 199; Packard vs. Lyon, 5 Duer., 82; Wheeler vs. Field, 6 Met., 290; Porter vs. Judson, 1 Gray, 175.)</p> <p>The notary, if not bound to make demand at the maker’s said office, was bound, inasmuch as he knew the maker was in New York, to make demand upon him there. (Smith vs. Philbrick, 10 Gray, 252 ; 1 Parson, Notes and Bills, p. 459, N. S.; Galpin vs. Hard, 3 M’Cord, 394.)</p> <p>“ Proof that the notary made inquiry of several of his acquaintances in different parts of the city of St. Louis, as to the place of business or residence of the maker of the bill, without being able to ascertain either, was held to dispense with proof of notice.” (Shepard vs. Citizen’s Ins. Co., 8 Mo, 272; Plahto’s Adm’r vs. Patchin, 26 Mo., 389; Barry vs. Crowley, 4 Gill., 203 ; Pars. Notes and Bills, pp. 448, 459; Duncan vs. McCullough, 4 S. & R., 480; Eranldin vs. Yerbois, 6 La., 729 ; Sto. Prom. Notes, § 235; Hunt vs. Maybee, 7 N. Y., 266.)</p> <p>What is due diligence, can only be determined by the circumstances of the case. (Linville vs. Welch, 29 Mo., 203; Bank of Columbia vs. Laurence, 1 Pet., 578; Harris vs. Robinson, 4 How., (H. S.) 336; Ranson vs. Mack, 2 Hill, 587.)</p> <p>The notary may act upon the best information he can get. Harris vs. Robinson, 4 How., (U. S.) 336; Bartlett v. Isbell, 31 Conn., 296.)</p>

<p> Appeal from, Si. Louis Circuit Court. </p>

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

Louis Circuit Court. I.- This is not a case of conflicting testimony, but one where the verdict is directly contrary to all the evidence. In such cases, .the Supreme Court will consider the evidence and reverse the judgment.

<p>1-, Partnership — Contracts—Evidence.—A firm composed of A. and others, under the Arm name of A. & Co., had been doing business in another city, and had had transactions with C. doing business in St. Louis. The firm of'A. & Co. was dissolved and A. formed.a new partnership withB. under the name of A. & B., and succeeded to the business of the old firm. Subsequent to this change, G. sent an order for goods addressed to A. & Co.,which was filled by A. & B. and a letter was written to C. by a clerk who liad been in the employment of A. & Co., and continued in the employ of A. and B., advising him of the shipment of the goods ; this letter was written in the name of A. & Co., and'the goods were marked with their initials, and A. & Co. were credited by C. with the value of the goods. Other letters were also written by the same clerk under the name of A. & Go. to other parties, after said dissolution, concerning their business in St. Louis. After the purchase of these goods C. was garnished on an attachment against A. & Co., and paid over their'value under the garnishment. On a suit by A. & B. against C. for the price of the goods, Held, that it was a question of fact for the jury whether B. had knowledge, at the time, of the manner in which the goods had been shipped, and that if he had such knowledge, he was bound by the letter of the clerk written to 0., and that said letter was admissible in evidence; and also, that the other letters were admissible to'show that the firm of A. & Co.,was still in existence to parties in St. Louis as assumed to be so with the knowledge of B.</p>

<p>1. Eminent domain — Proceedings for condemnation of land — Exceptions filed out of time — Attempt at bargain with land owner— When need not appear. —In proceedings for the condemnation of private property'for public uses, in conformity with the act of March 10th, 1849, (Sess. Acts 1849, p. 598), as a general rule it must appear from the record that an attempt had been made to purchase the land of the owner, before it can be appropriated in invitum. But where the owner appears in court after the time for filing exceptions is past, and obtains leave to file them on condition of waiving all objections save as to the sufficiency of the damages, he cannot afterward avail himself of the failure of the record to show such attempt at bargain.</p>

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

Louis Circuit Court. I. The facts to be proved by the wife, viz: the condition of her wardrobe, and her husband’s refusal or neglect to supply her with things needful, were in their nature “ secret facts,” not susceptible of proof by any other person. She was, therefore, a competent witness, notwithstanding the general rule excluding her. (1 Greenl.

<p>1. Practice, civil — Trials—Evidence—Tnstructimis.—Where testimony is presented on both sides tending in any degree to establish the respective theories of plaintiff and defendant, it is error to take the case from the jury by instruction.</p>

Louis Circuit Court. I. The resolution of the directors and the notice in this case are in exact compliance with the “conditions of insurance.” The conditions say the directors may terminate the policy after notice given of intention to do so. The notice recites the resolution and says that from and after the receipt of that uotice, the policy is canceled. No length of time is required after notice and before cancellation. (27 Upper Canada, 213, 217 and 153.) II.

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

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