Volume 57 — Missouri Reports

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

<p>1. Mechanics’ liens — Jurisdiction of circuit and justices.’ courts as to amounts.— Under llie constitution (Art. VI, \ 13) and the statutes (Wagu. Scat., p. 480, §2) the Circuit Courts of this state have no jurisdiction to try a mechanic’s lien suit, where the amount involved is less than fifty dollars.</p> <p>Under the act of 1S72 (Adj. Sess. Acts 1872, p. 44), justices of the peace have jurisdiction over such cases ¡ and jurisdiction is not taken from them or conferred upon the Circuit Courts by reason of the fact that justices’ courts have no procesi by which non-resident defendants in such proceedings can be reached.</p>

<p> Petition for Mandamus. </p>

Louis Circuit Court. It is well settled that a mortgagee of personal chattels, after the day of redemption is passed, is regarded in law as the absolute owner and can dispose of the property as he pleases. (Robinson vs. Campbell, 8 Mo., 365, 366; Robertson vs. Campbell, 8 Mo., 615, 617; Williams vs. Rorer, 7 Mo., 556; Lacey vs. Gibboney, 36 Mo., 320, 322; Ferguson vs. Thomas? 26 Mo., 499.)

<p>1. 8dre facias — Suit must be revived when — Construction of statute. — The true intent and meaning of $ 6 of the act touching theabatement and revival of suit, is that the suit must be revived on or before the third term, after the term at which the suggestion of death is made. In making the computation the term at which the death is suggested, must be excluded.</p> <p>2. Zease — Sitbscribivg witness — Proof of handwriting, etc. — In suit by the maker against the othe'r party to a lease, proof of the handwriting of a subscribing witness, then dead, and of the identity of the defendant with the person named in the instrument, is sufficient to render the deed admissible in evidence.</p> <p>8. Married woman — Power to convey where husband lives abroad. — Where the husband is an alien, always residing beyond the realm, the wife may convey her estate in the same manner as a feme sole.</p>

<p> Appeal from Cape Girardeau Gourt of Common Pleas. </p>

<p> Appeal from Marion Circuit Court. </p> <p>cited: Ha ne vs. State, 4 Howard, (Miss.) 187; Com. vs. Roly, 12 Pick., 496 ; Com. vs. McCall, 1 Va. Cases, 271; McLain vs. State, 10 Yerg., 241; 13 Mass., 218; 2 N. II., 474; Boles vs. State, 13 Sin. & M., 398; Jones vs. State, 2 JBlackf., 479; McCann vs. State, 9 Sm. & M., 495; Lord Deleware’s case, (4 Harg. St. trials, 232;) 3 Whart., 3089.</p> <p>I. The court properly gave the 8th instruction for the State.</p> <p>II. The rule is now perfectly well settled both in England and in this country that the testimony of jurors is inadmissible to show their own misbehavior, but may be received to explaiu or contradict other evidence tending to impeach their verdict. (33 Mo., 71; 4 Johns., 487; 12 Pick, 520, 524, 525; 1 Greenlf. Ev., § 252; 107 Mass., 453 — reviewing the whole question; 2 Grant, 41.)</p>

<p> Appeal f rom Johnson Circuit Court. </p>

<p>1. Practice, civil — Allegata and probata — Variance, what not sufficient to invalidate verdict. — In suit for the value of certain chattels where the petition charged a sale, whereas the evidence showed merely an agreement to return the same or corresponding articles, and a subsequent admission of indebtedness and promise to pay it; held, that such variance would not vitiate the verdict in the absence of proof that defendant was surprised or injured thereby. (See Wagn. Stat., 1088-4, \\ 1, 2.)</p> <p>2. Practice, civil— Variance — What remedy in case of. — Where the variance between pleading and proof is material, the proper remedy is an affidavit filed with-the trial court, setting forth the facts and an order directing an amendment upon terms.</p>

<p>1. Revenue — Assessment of sub-divisions — Oonstr. Stat. — The proper meaning of \ 49 of the Revenue Act, (Wagn. Stat., 1167,) is that ali sub-divisions of a seotion belonging to the same person should be reported as one tract although such sub-divisions may not be contiguous.</p>

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

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

<p>1. Sheriff — Failure of to collect on execution — Recovery against for — What remedy against — Execution defendant. — A sheriff who, through neglect, has failed to collect money on an execution, and in consequence of such failure has been compelled to pay the debt to the plaintiff in the execution, cannot afterward in an ordinary action recover such amount from the defendant in the execution.</p>

<p>1. Administrator's sale — Land purchased by Judge — Report of sale, etc. — An administrator’s sale and deed of land are not rendered invalid by reason of the fact that another and distinct tract, sold' at the same sale, was purchased by the probate Judge, contrary to law, and that tlie same report, reciting both sales, was approved by the Probate Court.</p>

I. The Act of March 23rd, 1868, does not form any part of the railroad charter, and was never accepted by the company as such, and the township had no legal right or authority to become a stockholder in the road. II. The railroad has been completed; and hence, the proceeds of the bonds cannot be appropriated in said township as the road progressed.

I. Mrs. Kennedy, wife of the plaintiff, was in no sense his agent. The facts show that he was present when the alleged payment was made to A. A. Kennedy, in the full possession of his faculties, acquainted with all the circumstances, qualified, by education and otherwise, to manage his own affairs. His wife, on the other hand, could neither read nor write, and was in no respect peculiarly fitted for the office. But there is no evidence from which her agency can be inferred.

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

<p>i. Mechanic's lien — Time of fling — Gle?dcal error may he corrected, when.— Although the indorsement made by the clerk upon the written account required by the statute to perfect a mechanic’s lien, will be •prima facie evidence as to the date of filing, it will be nevertheless competent to show that he erred in this respect; and if the fact clearly appear, it is within the province of the court before whom the suit is tried to make the correction.</p>

<p>1. Practice, criminal — Indictment for robbery in first degree — Conviction of robbery in second degree — Autrefois acquit. — A prisoner was indicted for robbery in the first degree, and under the indictment might have been convicted of grand larceny. Being convicted of robbery in the second degree, the verdict was without his consent set aside. Held 1st, that a conviction of robbery in the second degree operated as an acquittal of the higher offense charged ; 2nd, that the prisoner could not be retried under the same indictment, and found guilty of grand larceny. (See State v. Brannon, 55 Mo., 63.)</p>

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

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

I. In the case of Brownell vs.Tlie Pacific R.R.Co.,(47 Slo.239) the declaration was made “immediately after the accident.” In this case the declarations were not made for several hours after, and there are “no connecting circumstances” of any kind whatever. We understand the law to be, that the res gestee are first, the statement of the cause of the injury, made by the party almost contemporaneously with its occurrence.

I. The name of Ward appears on the face of the note-as a joint maker, and it was not competent for him to show that he signed it in a different capacity, or that he assumed a different liability. (Sto.

I. Tlie court erred in admitting the statement of Wecker, taken in tlie preliminary examination, for it was not signed by liim, and we have only tlie statement. The court erred in allowing the jury to separate. Whitney vs. State, (8 Mo., 165)was a larceny, not a murder case. In State vs. Burns, (33 Mo., 483) the jury had already found a verdict before tliey separated, and then only one left.

<p> Appeal from Lafayette Circuit Court. </p> <p>I. The acts and declarations of the agent when not expressly authorized by the principal, must, in order to bind him, be within the scope of the authority conferred on him. (Sto. Ag., §§ 115, 126 to 134-; N. Y. Life Ins. & Trust Co. vs. Beebe, 3 Seld. [N. Y,] 364.)</p> <p>In this case the question is not what were the powers conferred upon the secretary by the company, but what authority Lungstrass, who dealt and corresponded with him and him only, had a right to infer the Secretary had from the Company. (Perkins vs. Washington Ins. Co., 4 Cowp., 660, 661, 663 ; New Eng. Ins. Co. vs. DeWolf, 8 Pick.. 59, 62, 63 ; Goodwin vs. Union Screw Co., 34 N H., 378; Northrop vs. Miss. Valley Ins., Co., 47 IVIo., 440; Merchants Bank vs. State Bank, 10 Wall., 644; See 15 Md., 494, 50 L; Nicoll vs. Am. Ins. Co.,3 Woodb.&Min., 529 ; Hough vs. City Fire Ins. Co., 29 Conn., 10; .¿Etna Ins. Co. vs. Maguire, 51 Ill., 350, 351.)</p>

<p>1. Judgment for costs not final. — A judgment for costs is not a final judgment from which an appeal will lie. (Boggess ts. Cox, 48 Mo., 2V8.)</p> <p>2. Notary Public — Certificate—Failure to mention seal — Copy of certificate, etc. —A notary’s certificate is not rendered invalid by reason of the mere fact that it purports to be executed under his “hand and official signature,” and that his notarial seal is not mentioned therein, where the seal is attached to the certificate. And in sucli case, a copy taken from the recorder need not have the impress of the original seal; that may be indicated by a scrawl.</p>

<p> Error to Morgan Circuit Court. </p> <p>cited Duval vs. Laclede Co., 21 Mo., 396.</p>

<p> Jippe.cH from, Randolph Circuit Court. </p>

<p> Error lo Jackson Circuit Court. </p>

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

I. The application for the change of venue was in strict compliance with statute, and the court had no discretionary power in the premises, but was legally bound to grant the prayer of appellants for the change of venue. (Freleigh vs. State, 8 Mo., 606; Wagn. Stat., p. 1355, Ch. 142, §§ 2,J5.) II. The rule of the Circuit Court is an abortive effort by the court below to legislate, and is not sanctioned by reason or law. (See Wagn.

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

<p>1. Practice, civil — Instructions.—Instructions which are not based upon facts in the case, and are calculated to mislead, although correct as abstract propositions of law, should be refused.</p>

<p>1. Practice, civil — Instructions.—An instruction not based on evidence should be refused.</p> <p>2. Ünder Wagn. Stat., § 43, p. 310, a railroad company is not responsible for stock killed by the cars, etc., when such killing takes place at a point on their road where it is not fenced and when it does not pass through or along inclosed or cultivated fields, or uninclosed prairie lands, unless actual negligence be proven.</p>

I. The deed of trust expressly states, that out of proceeds of sale the trustee should pay debts and costs, and the remainder, if any, should be paid to the plaintiff, “ after. paying all amounts expended as aforesaid, for taxes and assessments and other purposes.” Now there.is no evidence, nor is it contended by the defendant, that they ever paid any taxes or assessments, and we claim that unless the taxes were paid by the beneficiaries in said deed of trust, before the…

<p>1. Practice, civil — Instructions—Commenting on testimony, — An iustruetion,eom-menting upon particular portions of testimony, to the exclusion of others, although correct pro tanto, is calculated to mislead the jury, and should be refused.</p>

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

<p> Appeal from Jackson Oirouit Oourt. </p>

<p>1. Railroads — Ail. & Pac. R. R.— Taxation — Act of Dec. 35, 1853, a contract.— The twelfth section of the act of Deo. 23th, 1832, and its acceptance by the Pacific Railroad, were a contract between the State'and that company binding tile state, and for two years after its completion exempted that road from taxation, no dividend being declared in the meantime ; and the same principle governs as to taxation of what is denominated as the South west Branch Railroad. (See decision in Pacific R. R. Co.v. Maguire, Wall.TJ. S. Sup. Ct. R.)</p>

<p>1. Judgment reversed. See South Pac. R. R. v. Laclede Co., ante p. 147. •</p>

<p>cited in argument, Wagn. Sfcat., 601; Crittenden vs. Leitensdorfer, 35 Mo., 239. ' .</p>

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

<p>1. Judgment — Fraud and irregularity. — A party seeking to set aside a judgment for fraud or irregularity must take the burden of proof, of establishing liis charges.</p> <p>2. Practice, civil — Motion for new trial — Points not embraced in, disregarded in Supreme Court. — Points not embodied in a motion for a new trial will be disregarded in the Supreme Court.</p>

<p> Error to Howard Circuit Court. </p> <p>cited Bassett vs. St. Joseph, 53 Mo., 290.</p>

<p>1. Attachment — Order of publication — Variance—What not material — When order may be published. — The fact that the published order in an attachment suit purported to have been made by the order of the clerk instead of that of the court as stated in the original order, will not vitiate a sale of land under it'in a collateral proceeding. And a publication ordered by the clerk in vacation after the lapse of two*terms from the date of process, and without any hew affidavit would be good. (Kane vs. MeCown, 65 Mo., 181.) ■</p> <p>2. Attachment — Order of publication — Filing papers — -Presumption as to. — The issuance of an order of publication raises the presumption that the petition and other papers in the case had been filed theretofore, without any indorsement thereon of the date of filing'.</p> <p>3. Attachment — Jurisdiction—Publication.—Where in an attachment suit the required affidavit and bond have been filed, and an attachment regularly issued, and land seized and levied on by virtue of the attachment, the court thereby acquires jurisdiction of the ease as to the property attached, and a</p> <p>. judgment rendered in such cause against the property attached will not be void, although no sufficient publication has been made. (Freeman vs. Thompson, 58 Mo., 183 ; Holland vs. Adair, 55 Mo., 40.)</p>

Error from Greene Circuit Court. I. No doubt if plaintiff sent his mules into an insurrec-tionary district from the Slate of Missouri, the government of the United States would have had the right and authority whilst they wore in transit, to have seized and confiscated them under the act of July 13th, 186.1. Eut this right is given alone to the government for revenue purposes, and not to individuals in their private capacity and for their own private gain.

<p> Error lo Bar Ion Circuit Court. </p>

<p> •Appealfrom, Howard Circuit Court. </p> <p>I. The court will not estop a widow in her claim for dower by proceedings at law, unless it is manifest that the question in relation to her rights was properly adjudicated. (52 Mo., p. 93.) ~ '</p> <p>■ I. The matter of the widow’s dower estate was distinctly in issue, and was actually passed on in the former suit, and the question is res judicata. (Freem. Judgm., § 216, el seq.)</p> <p>LI. One object of the proceeding was to have the value of the land determined so that it might be charged against Leonard Grady, his widow and heirs, as an advancement. The determination of the value of the land for this purpose necessarily required the court to take into consideration the dower estate of Charlotte Grad v.</p>

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

Boone Circuit Court. I. The suit was properly brought in the name of the State. (State vs. Saline Comity, 51 Mo., 350.) II. The defendants are proper parties defendants. (State vs. Sanderson, 51 Mo., 203.) III. The bonds were issued by the County Court of Phelps, without the assent of the qualified voters of the county, and void.

<p>1. Mortgage — Equity of redemption — Purchase of., by mortgagee. — A. and B. jointly bought an equity of redemption in a tract of wild land, upon which, A. had a mortgage or a deed of (rust. Subsequently A. foreclosed his mortgage and requested B. to join him in the sale under the trust, but B. refused. A. bought at a price greatly below the sum secured to him by the deed of trust. Years after A. died, his administrator sold the land to a stranger who put im-proveniente on it worth $5,000. died also, and his heirs or representatives asked to be considered as tenants in common with these purchasers, on payment of one-half of A.’s bid, not one-half of his debt; held, that there was no equity in the bill, without an offer to pay one-half of A.’s debt; held further that the refusal of B. to join in the purchase at the trustee’s sale — the death of B. and of A. — the sale by A.’s administrator — the purchase by a stranger, and a large investment of money in improvements, would be strong, if not conclusive evidence of an abandonment of the co-tenancy by B., and estop him and his heirs after a long lapse of time.</p>

<p> Error to Oole Circuit Court. </p> <p>cited in argument; Skinner vs. Purnell, (52 Mo., 96).</p>

<p>1. Judgment — Transcript of — Suit upon — Original writ — Mode of service, etc. —In suit brought in this State, on a judgment-given in the State of Virginia, the transcript is not rendered inadmissible by reason of the fact that the original writ of summons as shownthereon,was not under seal; and where service of that writ purported to have been made upon the wife of the defend»» t, at his residence, he not being found at his usual place of abode, etc., (he transcript is not inadmissible under a fair construction of the laws of Virginia on account of its failure to show that she was a free white person, norwas it objectionable, as failing to show, that the writ was served at defendant’s usual place of abode, or that service was made ill the officer’s bailiwick. It cannot be presumed against tile judgment of a court of general .jurisdiction, that service was made by an officer of the court outside of the county. At least, such cannot be presumed to be the case in a collateral proceeding.</p> <p>2. Evidence— Volume of laws — Certificate of Secretary of State, etc. — The certifi-care of the Secretary of State of Virginia, attesting a certain volume of the laws of that commonwealth, stated the title of the book to be “The Code of Virginia,” etc., “ published pursuant to law.” * * Certificate held to show sufficiently that the volume was published by the authority of the State of Virginia.</p>

I. The judgment if conclusive — as undoubtedly it was — in Indiana, was conclusive everywhere else in this country. (2 Bisli. Mar. & Div., p. 706.) ' II. The divorce puts an end to all rights depending on the marriage and not actually vested as dower in the wife. (Hob-son vs.- Butler, 17 Mo., 87; Chenowith vs. Chenowith, 14 Ind., 2.) I. The Indiana divorce is a foreign judgment, and is subject to the law regulating foreign judgments. (Bouv. Law Die. Yol.

I. The additional words “and did procure it to be forged” do not .occur in the second count. If these words do render the second count bad on demurrer, or on motion to quash, still as the second count, is not obnoxious to that objection, the motion should have been overruled. (State vs. Rector, 11 Mo., 28; State vs. Wilson, 15 Mo., 503; State vs. Woodward, 21 Mo., 265.) II. But the words objected to do not vitiate the first count. They all charge but one offense.

<p> Jlppcal from Franklin Circuit Court. </p>

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

I. In this case the letters were written and the declarations made long after the materials had been purchased and used. Schmidt was no longer the owner’s agent, and his letters were inadmissible for' any purpose. (Morrison vs. Hancock, 40 Mo., 561.) I. Contractors declarations are admissible against the owner, as to the materials which have been received or the amount which may remain due. (Dickerson College vs. Church, 1 Watts & Serg., p. 462.) II.

I. Tlie instrument sued on is a good equitable mortgage, created a valid lieu on the land in question, and .can be enforced against the mortgagor and all subsequent purchasers having notice of its existence or contents. (McClurg vs. Phillips, 49 Mo., 315; Gill vs. Clark, 54 Mo., 415.) An equitable mortgage is a writing whereby the lands in question are “affected in equity.” (Wagn. Stat., 277, § 24.) II.

I. It is contended for the plaintiff in error, that the settlement made by the guardian in September, 1860, was a judgment and a lien on the guardian’s land, and as such should have been taken notice of in the petition for the sale of tbe land; (Wagn. Stat., § 11, p. 95) and should have been paid without regard to the order of allowance. (Kerr’s Adm’r vs. Wimer, 40 Mo., 544.) II.

I. Respondents had an adequate remedy at law and therefore were not entitled to relief in equity. The city was bound to pay for the lot under the agreement. Is not an action to recover the price with interest, an adequate remedy; or, if the agreement be void, as there was no written contract of sale, is not an action to recover for damages the entire yalue of the property, an adequate remedy ?

<p>1. Justices' courts — Formal judgment unnecessary in. — In trials in justices’ courts a verdict will be held as a judgment, and the entry of a formal judgment is not required.</p>

I. The court committed error in allowing the entry made by Miller in the record of the proceedings of the county Board of Equalization, after the institution of this suit, and more than eight months after that board had adjourned sine die, and the record of their proceedings had been written out and signed as the true record of all their proceedings. The clerk had no authority to make the entry.

I. There are no averments in the petition .of fraud, mistake, surprise or inadequacy of price in making the contract as expressed in the deed, or in the execution of the same. And these are the only cases in which parol evidence is admissible in equity against the contract specified in the deed. (Stephens vs. Cooper, 1 Johns. Ch., 428; Wells.vs. Kice, 1 .Hill, 602; 6 Ilill, 220; Watkins vs. Sockett, 6 Hav. J., 444; 1 Sandf.

There was a substantial compliance with the statute as to the printed notice, and that was sufficient. (Sedg. Stat. and Const. Law, 373, et seq.; 30 Mo., 537; 14 Barb., 259.) I. Inn-keepers are insurers of the property of their guests, and are liable for all loss not caused by the act of God or the common enemy, or the fault of the owner of the property.

<p>1. Practice, Bup'emc Court — Appeal from Caldwell Common Pleas, etc. — Appeal does not; lie directly to the Supreme Court from the Court of Common Pleas of Caldwell county. (Smith v. Guerant, 55 Mo., 584, affirmed.)</p>

<p>1. Tax deed — Failure of deed lo recite manner of notice, effect of. — A tax deed which merely recites that “due notice” was given of the sale, without reciting the manner of the notice, is absolutely void and will pass no title.</p> <p>2. Deed,quit-claim — Purchase money — Note for,procured by fraud — Defenses.— IVhere one is induced, by fraudulent representations, to acc,ept a quit-claim deed of certain land, such fraud will constitute a good defense to a suit on a promissory note given for the purchase money.</p> <p>3. Practice, ciiiil — Non-production of evidence caused by an intimation from the court. — It is no sufficient reason for the non-introduction of testimony, that in the progress of the trial the court gave an intimation to the party in default, that the ultimate decision might be in his favor.</p>

<p>1. Statute of frauds — Parol contract for rescission of sale of lands. — A parol contract for the purchase of lands is within the express provisions of the statute of frauds ; and where there are no facts connected with the purchase which create any resulting trust or equitable right of redemption, a proceeding in equity-will not lie for its rescission.</p>

I. Corruption is neither an element in, nor a constituent part of the offense created by the act of March 20th, 1872. (Adj. Sess. Acts, 1872, p. 59.) Therefore it is not necessary to allege in the indictment that it was done corruptly. (Bish. Stat. Cr., § 371.) Where a statute forbids the doing of an act under a penalty, the person doing such act is indictable without the addition of corrupt motives. (Wliart. Pr.

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

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

I. The Chicago & Southwestern Railway Company entered on the land in controversy, and made costly,valuable and permanent improvements thereon with the full knowledge of respondent who made no complaint until the commencement of this suit.

. Appeal from, Clinton Circuit Court. I. The conditions in the agreement were conditions subsequent and not conditions precedent. Respondent cannot now, after be has permitted the company to expend large sums of money thereon, recover the land with the improvements, because the company failed to fully perform the conditions of the contract.

<p>]. See ante p, 26o.</p>

<p>1. Railroads — Inaction of owner of land not held as acquiescence, when. — Mere silence and inaction, for the time being, on the part of a land owner, when informed that a railroad company afe constructing their track over liia property, will not be construed into acquiescence so as to estop him from his action • of ejectment.</p> <p>2. Railroad company — Occupation of land without authority — Ejectment.—Where a railroad company builds its road over land to which they have acquired no requisite title by condemnation, or conveyance or license, ejectment will lie.</p>

fljopeal from DeKalb Circuit Court. The service-of summons in tire case of Meek vs. Hewitt is sufficient to sustain the judgment when attacked collaterally.

<p>1. State vs. Yh)gevt<mte p. 243. affirmed.</p>

<p>1. Evidence — Banks, accounts of, how proved — Testimony of clerks and bookkeepers, etc. — Where the testimony of the cleiks and book-keepers of a ban]!; showed that the books were accurately kept, and that by the universal custom in the bank, entries were made and the books written up each day, from the checks of the customer or the tickets of the teller, and that the books were then balanced to verify their accuracy, held, that the books may be used in evidence to prove the accounts of the bank with its depositors.</p>

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

<p>1. State vs. Pinger, ante p. 243.</p>

<p> Appeal from B itshanan Girouit Court. </p>

<p> jError to Ray County Common Pleas. </p>

I. The lease filed with the justice was sufficient foundation for the cause of action. (Gillihan vs. Wren, 44 Mo., 277.) I. The individual names of the different parties should have been set out. (Revis vs. Lamme, 2 Mo., 207.)

<p> Jippeal from De Kalb Circuit Court. </p>

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

<p>1. Railroads — Contractors—Teamsters, etc. — Construction of Statute. — The statute making railroads amenable to laborers for work dojie under the employment of contractors (Wngn. Stat., 302, \ 10), does not include persons who furnish wagons and drivers, to haul or deliver material in the construction of rhe road. (See on this subject Sess. Acts 18*73, p. 61.)</p>

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

<p> Error to Linn Oommon Pleas. </p>

I. Tlie laws of congress prescribing the mode of surveying and sub-dividing fractional sections, are only applicable to tlie original surveying and sub-dividing of such sections by the government, and have no bearing on subsequent surveys made for the purpose of ascertaining where the lines were originally run ; and are therefore not in conflict with the statute of Missouri, regulating such subsequent surveys.

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

<p>1. Divisionfences — Removal of — Oonstr. Stat. — A division fence, within themean-ing of the act of 1869 (Wagn. Stat., 633), is one erected on the boundary'line between adjoining proprietors ; and not one erected by one of them on his own land although near and parallel to the boundary line; and a fence of the latter description may be removed by the owner, after giving six months notice. (Wagn. Stat., 707, % 87.)</p>

I. This appeal should be dismissed. It being a proceeding in equity, no appeal will lie from a voluntary non-suit, taken upon the refusal of the inferior court to strike out an answer as insufficient. (Schulter’s, Adm’r, vs. Bockwinkle’s, Adm’r, 19 Mo., 647 ; Dnmey vs. Schoeffler, 20 Mo., 323 ; Louisiana & Middleton P. R. Co. vs. Mitchell, 20 Mo.., 432; Kirby, vs. Bruns, 45 Mo., 234; Grill vs. Clark, 54 Mo., 415.)

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

I. Tbe cases of Humphreys vs. Lundy, (31 Mo.,320,) and Sub-lett vs.Nelson, (38 Mo,, 487,) refer to domestic judgments, rendered before j ustices within this State, and which may be revived by scire facias, which is said not to be a civil action. II. A foreign judgment does not stand upon the same ground as domestic judgments. It caiinot be revived in this State by scire facias. No execution can issue upon it here.

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

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

I. Eelators must show the extent to which they were actually damaged by the alleged neglect of the constable. (Bennett, adm’x, vs. Vineyard, 34 Mo., 216 ; Eel. Treat., 417.) II. The question as to whether the officer did return the same within the time limited, was put directly in issue by the pleadings; and the officer’s return on the execution showed that it was properly returned within the time.

App tal from Buchanan Circuit Court. I. Tbe value of the property released by the constable was the measure of damages; and tins matter should have been inquired into, and the damages assessed in the usual way, even if the court below was correct in sustaining the motion for judgment, notwithstanding the answer. .

<p> Appeal from Buchanan Circuit Court. </p> <p>I. The facts in this case bring it fully within the rule which exonerates sureties. (Rucker vs. Robinson, 38 Mo., 158; Smarr vs. Schnitter, 38 Mo., 481.)</p> <p>I. Mere forbearance, given to the maker of a note, will not .release the surety from his liability. To discharge the surety it is necessary that the creditor should have made some valid agreement with the principal debtor, by which the creditor’s right to enforce his contract is suspended, and his hands tied for a definite period. (Reynolds vs. Wait, 5 Wend., 501.) Such an agreement must have a valid consideration to support it. (Ford vs. Beard, 31 Mo., 459; Rucker vs. Robinson, 38 Mo.. 154.)</p> <p>II. The payment of interest in advance, or the payment of usurious interest, is not a sufficient consideration to support such an agreement and give it validity. (Marks vs. Bank of Mo., 8 Mo., 316 ; Wiley vs. flight, 39 Mo., 130.)</p>

<p>1. Agent of deceased person may testify as to transactions subsequent to the death. —A transaction had by the agent of a deceased person, since the death of his principal, may be shown in evidence, but in such case the agent himself must testify.</p> <p>2. Administrator — Admissions touching estate, when incompetent. — An administrator may testify touching transactions regarding the estate of the deceased which occurred before the granting of his letters ; but his admissions after he becomes administrator, affecting as they do the interests of the estate, cannot be proved.</p>

I. The judgment of partition, etc. in the Circuit Court, rendered March1 29th, 1870, in the case of Andrew J. Rupe vs. Susan E. Malott, was absolutely null and void, and no title could be acquired under it; 1st — because there had been a previous judgment of partition in said cause, and commissioners appointed to divide the land, rendered March 17, 1869, and it had not been vacated or set aside when the second judgment was rendered ; there cannot he two judgments in same…

I.The cases which seem to decide that a sale made under a satisfied judgment is absolutely void will not be found to sustain this position. In few of them was the question before the court for determination, and, in these, knowledge of the satisfaction was shown to have been acquired by the purchaser before purchase. (See Swan vs. Saddlemire, 8 Wend., 676 ; Lewis vs. Palmer, 6 Wend., 676: Wood vs. Colvin, 2 Hill, 566 ; State vs, Salyers, 19 Ind., 432.) The case of Durettevs.

<p>1. Homestead — Estate of widow a fee simple — Law as to inheritance of — Statute of sister States — Construction of. — It is a well settled practice to construe foreign laws, as the courts of the country where they originated have construed them, and where such laws, whether of a foreign country or of a sister State, are adopted here and made a part of our code, the presumption is that they are adopted with the construction already given by the foreign courts or sister State, where they had their origin. Hence, as the homestead law is a literal copy of a Vermont statute and the 5th section (Wagn. Stat., 698,) has been construed by the Supreme Court of Vermont, Held, in accordance with such Vermont decision, that under said section 1, where the husband dies, seized of a fee in the homestead, the wife has not merely a life estate, but a fee simple absolute therein, and on her death it goes to her heirs " lineal or collateral, to the exclusion of the husband’s heirs.</p> <p>The court inclined to the opinion that where there were minor children of the husband by a former marriage, and the widow died before their majority, the title would go to them until they came of age, and then to the heirs of the deceased husband.</p>

I. Where a line is established between adjacent landowners and recognized and acquiesced in by them as the true boundary line, and the possession up to that line has been open, notorious and adverse, accompanied^ with valuable improvements, with an intention of claiming title up to the line so established, for more than 10 years, they are bound by that line and will not be disturbed.

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

I. The special statute of limitations contained in the administration law controls in this case. (Montelius vs. Sarpy, 11 Mo., 242; Wagn. Stat., 920, § 26.) II. As no notice of grant of letters testamentary was given, the administration bar in the special statute of limitations does not run. (See authorities cited above, also Wiggins vs. Lawson’s Admr., 9 Mo., 262; Hawkins vs. Eedmoncl, 13 Mo., 125; Bryan vs. Mnndy, 17 Mo., 556; Clark vs. Collins, 31 Mo., 260.) III.

<p>1. Promissory note — Agreement for extension — Surety, how affected by, etc. — An agreement between the principal and payee of a promissory note,made at or after maturity, for an extension, in order to discharge a surety thereon, must be a valid and binding agreement which would deprive the payee of the power to sue until after the period of extension; but a mere indulgence, without any consideration passing, would have no such effect.</p> <p>2. Promissory notes — Suretyship—Agreement for usurious interest, etc. — Generally, where the holder makes with the principal maker a binding contract which varies the terms of a note, without the consent of the surety, the holder knowing of the suretyship, the latter is discharged. But this rule does not cover the ease of an agreement without any consideration for the payment of interest at more than ten per cent, where payment was made to depend simply on the personal honor of the maker of the paper.</p> <p>S. Ostiriovs interest on ?iotes — Contract, void, ho-w far — Schools—Construed statute. — A contract for usurious interest on a note does not render the note void in loto, but only as to interest upon the amount actually loaned, the legal interest being recoverable for the use of the common schools. (Wagu. Slat. VS3, l 5.)</p>

I. It is said that “whenever property lias been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court and under its control, for the time being ; and no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises.

<p>1. Practice, Supreme Oowrt — Failure to assign error, etc. — Where appellant fails to file assignment of errors, statement or brief, as required by law, the appeal will be dismissed.</p>

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

<p> Appeal from JYodaway Circuit Oourt. </p>

Ji-ppealfrom Linn Circuit Court. I. Tbe deed was last traced to the North Kingston post office, the 20tb of May, 1872, at which place no search or inquiry has ever bee» made. Where the original is traced to a particular place of custody, search and inquiry at that place or custody will not be dispensed with; and the custodian or person making tbe seareh mustbecalled.

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

Buchanan Circuit Court. I. A judgment obtained by franc! is void, and it is snffi-eient in the answer to allege that it was so obtained without setting forth the particulars. (See Montgomery vs. Tipton, 1 Mo., 446; Edgell vs. Sigorson, 20 Mo., 4-94; Marx vs. Fore, 51 Mo., 69; Rutherford vs. Williams, 42 Mo., 19 ; Callahan vs. Griswold, 9 Mo., 784 ; State vs. Little, 1 N. EL, 257.) .

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

<p>1. Schools — Selection of site for sub-district school house. — The directors of a school sub-district have no power of their own mere will or discretion to select a site for a school, but the selection must be made at a meeting of the voters called for that purpose. (Wagn, Stafc., Ed. 1872, p. 1244, \ 12.)</p>

<p>Error to Buchanan Circuit Court;</p> <p>cited in argument, Waffle vs. N. Y. O. E. E., 58 Barb., 422; Goodale vs. Tuttle, 29 N. Y., 459 ; Martin vs. Eiddle, 26 Penn. St., 415 ; I. 0. E. E. Co. vs. Grabell, 50 111., 242; Driver vs. Western Union E. E. Go., 32 Wis., 569; Sess. Acts, 1855-6, p. 406 ; Local Laws, 1855, p. 234; Brown vs. Caynga & Susquehanna E. E. Co., 2 Kern., 491 ; Hooker vs. New Haven and New Hamilton Canal, 14 Conn., 146; Baughton vs. Carter, 18 Johns., 404; Bradley vs. N. Y. & N. H. E. E. Co., 21 Conn., 293.</p> <p>I. Damages assessed for the right of way do not include compensation for injuries sucli as are stated in the petition. (Wagn. Stat., p. 326, § 1, Art. Y., Corp. Law.)</p> <p>II. Plaintiff is entitled to recover if be has been injured by the wrongful act of the respondent, although it may not have been committed maliciously.</p> <p>cited in argument, Imler vs. City of Springfield, 55 Mo., 119; Jones vs. Hannovan, 55 Mo., 462; 2 Allen, 357; 10 Allen, 591; 23; How., 514; 6 Barr., 383; 13 Gray, 194; Clark vs. Han. & St. Jo. R. R., 36 Mo., 223; 13 Allen, 293 ; Ang. Wat. Cours., §§ 138, 139 and 108a. —b.; 8 Gray, 409; Homer vs. Dartmouth, 13 Allen, 291-293 ; 1 Den. 597.</p>

I. The court committed error in admitting in evidence the copy of the deed from Burr ill to Hobly. This deed was made in 1819 and recorded the same year, but was not acknowledged in accordance with the laws of this State. In order to make sncli a copy admissible, it was necessary that plaintiff prove the loss or destruction of tbe original, together with law of place where made. (Barton vs. Murrain, 27Mo., 235.) II.

<p>1. Mamed woman — Deed of — Liability on covenant — Subsequent promise.— Where a husband and wife convey the estate of the latter, under the statute of Missouri, (Wagn. Stat., p. 273, § 2) she cannot be held in an action on her covenant, therein contained, against incumbrances. And a subsequent promise to pay the indebtedness guaranteed by said covenant, is void for want of consideration.</p> <p>2. Mamed woman — Separate estate — Payment of taxes on — Claim for in equity —Assignment of. — Payment of taxes on the separate estate of a married woman, at her instance, and perhaps even with her assent, will constitute a claim in equity against her estate, and such a claim may be assigned.</p> <p>3. Corporation — Cessation of business — Right to sue. — The cessation of active business on the part of a corporation, does not imply a dissolution of the company, so as to deprive it of the right to bring suit.</p>

- I. Plaintiff’s first instruction ought to have been given, and defendant’s second instruction ought to have been refused. (McDonald vs. Muscatine Nat. Bk., 27 Iowa, 319 ; Douglas vs. Matting, 29 Iowa, 498; Taylor vs. Atchinson, 54111., 196 ; Putnam vs. Sullivan, 4 Mass., 45; Comm. vs. Sankey, 22 Penn. St., 390; Phelan vs. Moss, 67 Penn. St., 59 ; Chapman vs. Rose, 9 Alb.

<p>1. Practice, civil — Failure to save exceptions, etc. — In a civil law case where no exceptions are saved to any ruling of court, and no point of law is brought up by instructions, motion in arrest, or for new trial, or by bill of exceptions, the judgment of the court below will be affirmed.</p>

I. The oath is one prescribed by statnte, and if the substance of the statute is not followed, no perjury can be as? signed of the oath. (2 Bisli. Crim. Law, 982; Ashburn vs. The State, 16 Ga., 246.) While it is admitted that the oath need not be set out in hsec verba, it must be set out in substance.

I. In Russell vs. Crimes, (46 Mo., 410,) suit bad been brought for settlement of partnership accounts; referees had reported the amount due the firm, and division had been made of the assets between the partners; being a complete settlement by a court of competent jurisdiction. Taking the amended answer of defendant to be true, they hold a demand against the partnership firm, which can be adjusted only by a suit in chancery for a settlement between the partners.

Louis Circuit Court. I. The confirmation to Louis Labeaume of 1810, “is vaiid against the United States,” sec. 4 of ^.ct of March 3, 1807, U. S. Stat'. at Large, vol. 2, p. 441. It was a confirmation on actual inhabitation and cultivation on the 1st October, 1800, by Labeaume, U. S. Stat. vol. 2, pp. 324 and 440; and for the specific tract of land described in Soulard’s survey of 1799 for Labeaume, on which the confirmation was made. (U. S. Stat.

Appeal f rom, Louisiana Court of Common Pleas. I. The instructions put the case to the jury on the theory that-Kem had the right to rely solely upon Brolaski’g representations, whether other means of information were at ids disposal or not ’; and that it was only necessary for the jury to believe that he did so rely, to entitle him to a verdict. This is not the law.

<p> Error lo Louisiana Court of Common Pleas. </p>

<p> Error to Louisiana Court of Common Pleas. </p> <p>cited in argument, Walther vs. Warner, 25 Mo., 277; Evans vs. Iiaefner, 29 Mo., 141.</p>

I. The deed of trust was but a mortgage, with possession remaining in the mortgagor; and until condition broken the rights of trustee or cestuis que trust were equitable only, to be protected by the equitable powers of the court, where only was he or they by virtue of the conveyance entitled to possession of the property. (T Mo., 329; 8 Mo., 365,615 ; 36 Mo., 322; ’49 Mo., 395, et seq.; 1 Mo., 418.) II.

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

I. As to interest, the corporation is controlled by its charter and not by the general law of usury of the State. (IJ. S. Bank vs. Owen, 2 Pet., 527; Assignee of Darby vs. Boatmens’ Savings Bank of St. Louis, not yet reported; State Bank vs. Ooquilard, 6 Ind., 332; Eyan vs. Yaland-ingliam, 7 Ind., 416.) II. The charter of respondent gave to it no power to loan at a higher rate than ten per cent., and so any contract for a loan at a higher rate would be void.

<p> Appeal from Cape Girardeau Court of Common Pleas. </p>

<p>I. Partition fences — Adjoining prop'ietors — Right of contribution. — Under our statute, (Wagn. Stat., 633, (j 1) where the owner of land puts up a sufficient fence on his line, and the adjoining proprietor afterwards uses it as a part of his own inclosure, the builder of the fence is entitled to recover from the adjoining proprietor half of the value of the fence; and if the builder sells his laud before he has recovered such contribution, the right of recovery passes to his grantee.</p>

<p> Error to Montgomery Circuit Court. </p> <p>cited : Yogler vs. Montgomery, 54 Mo., 577; Clark vs. Cov. Mut. Ins. Co., 52 Mo., 276.</p> <p>cited : Drake vs. Jones, 27 Mo., 428.</p> <p>cited: Knlm vs. McNeil, 47 Mo., 889 ; Drake vs. Jones, 27 Mo., 428.</p>

I. The 6th instruction was manifestly erroneous, because it told the jury that respondent was entitled to his mechanic’s lien, if they found any sum due to him for appellants. This made his rig-lit to enforcement of his claim for a lien depend only upon the fact that appellants were indebted to him and excluded all the statutory requirements as essential to a lien. (Mead vs. Brotherton, 30 Mo., 201; 51 Mo., 441.) II. All the issues were not found.

<p>1. Sheriff's sales — Notice—Time of sale — Innocent purchaser. — Sent estate sold on execution, must be sold at the time and place announced in the notice given for such sale, and the sale cannot be postponed to another day by order of court, without a new notice ; and when a sale is so postponed, the purchaser is not protected by his good faith, if the want of notice or defect of notice appears on the face of the sheriff’s deed.</p>

Louis Circuit Court. I. A partner who improperly uses the money of the firm (and money raised by using the name of the firm, is money of the firm as much as any other) shall pay interest on the misused money and account for any profits derived from its use. (G-lossington vs. Waters, 1 Sim. and St., 124; Stoughton vs. Lynch, 1 Johns. Ch., 467; Long vs.-Majestre, 1 Johns.

Louis Circuit Court. I. Seizin in law of an estate of inheritance by the husband entitles the wife to dower. (1 Scrib. Held: that the grantor in a deed conveying a fee simple absolute, acknowledging the.receipt of the consideration, is not estopped from showing a different consideration than that mentioned in the deed ; and it is difficult to see why the same privilege does not extend to the grantee.

I. The term property as used in §§ 11 and 12, of tlie chapter on executions does not include debts and wages, and the constable was not required to have Ladd’s debt to Conklin appraised, as in appraisement of working animals. (§§ 11 and 12, p. 604 ; Gregory vs. Evans, 19 Mo., 261.) Debts and wages are not subject to execution except by process of garnishment. (§ 16, p. 605 ; § 2, p. 606, Wagn. Stat.) Mahan vs. Scruggs, 29 Mo., 282, is not in point.

<p>1. Practice, civil — Pleading—Plaintiff's character as executor, sufficiency of allegations of. — When in a petition plaintiffs styled themselves the executors of A., stated that the note sued on was made to their testator, averred his death, and brought into courtand made profert of the letters of administration: held, that although there was no direct averment of plaintiffs’ appointment as executors, yet that fact was necessarily inferrable from the other facts stated, and the petition was not so defective as to be demurrable on that account.</p>

<p> Error to Scott Circuit Court. </p> <p>cited, M’Clav vs. Freeman, 48 Flo., 234; Howard vs. Thorn-tou, 50 Mo., 291; Lenox vs. Clark, 52 Mo., 117 ; Fithian vs. Monks, 43 Mo., 502; Durosett vs. Hale, 38 Mo., 346; Jan-ney vs. Spedden, Id., 395; Harris vs. Grodner, 42 Id., 159.</p> <p>I. The judgment cannot be collaterally assailed. (Freeman vs. Thompson, 53 Mo., 190.)</p> <p>II. A judgment and its recitals must be treated as correct until reversed. (Bernecker vs. Miller, 44 Mo., 102.)</p> <p>III. The record of a judgment in partition which recites that all the parties named had been duly notified of the suit, is conclusive. (Latrielle vs. Dorleque, 35 Mo., 233.)</p> <p>And where the record shows a finding of the court, the fact cannot be collaterally attacked. (Kane vs. McCown, 55 Mo., 20 ; Cooper vs. Bejmolds, 10 Wall., 321; Freeman Judg., § 130, et seq.) *</p> <p>IV. The purchaser at sheriff’s sale looks to the judgment, levy and sheriff’s deed. All other questions'are between the parties to the judgment and the sheriff. (Lenox vs. Clark, 52 Mo., 115.)</p>

I. The issue of ownership was not before tlie court and it should not have passed upon it in its judgment. II.

<p> •Appealfrom Scotland Circuit Court. </p>

<p>1. Public highway — Title to land. — Tlie owner of land joining on a public highway, street or alley, owns the fee to the center thereof, subject to an easement in the public.</p> <p>a. Damages — Condemnation of land. — Where a statute authorizing the condemnation of land requires the commissioners to “assess the damages which the owner of the. land may sustain by reason of such appropriation,” the assessment is not confined to the land actually taken. There maybe consequential damages which result by reason of the appropriation, which are fairly comprehended within the scope of the law.</p> <p>3. Condemnation of land — Damages—Consequential — Measure of. — When nothing but compensatory damages are allowed, the recovery must be confined to the actual damages sustained; and where the damages consisted in depriving the owner of the use of other lands on which were erections and improvements necessary for the use of the lands remaining, which erections and improvements could be moved to said remaining land, and be then as valuable and useful as before, the measure of damages would be the expense of such removal, and the value of the time lost while it was being effected.</p>

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

<p>1» Justices* courts — Appeal-—Notice—Appearance,—Where an appeal is taken from a justice of the peace on a day subsequent to that of the judgment, the appellant will not be excused for failure to notify the appellee by reason of irregular entries tnade by the clerk at the return term of the Circuit Court, - when no appearance is entered by the appellee, and no reoord entry is made to that effect.</p> <p>2. Judgment — Appeal—Error of counsel. — A judgment cannot be reversed because an attorney in reading the word “ defendant ” in the minutes, mistakenly understood it to be intended for “plaintiff.”</p>

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

<p>1. Demurrer sustained, effect of — Suit still pending. — When a demurrer to a petition is sustained with leave given to amend, the suit is still pending until other and final action. Either party may take depositions without waiting for further pleading.</p> <p>2. Taking depositions — State of pleading. — The taking of depositions, under the statute, has no necessary reference to the state of the pleadings at the time of the taking. It is a provision against contingencies, for the possible condition of the cause at the time of trial. It is not essential that the notary be acquainted with the issues, or that there be in fact any issues; provided, only, that the cause lias been regularly instituted and is not finally disposed of.</p> <p>3. Witness — What no ground for refusal to testify. — It is no ground for a witness’ refusal to testify, that .his testimony is sought for the purpose of making a civil case against him. Every man’s knowledge of facts which may be material to the administration of justice Í3, subject to certain exceptions of personal privilege, the property of the law.</p> <p>4. Witness — Notary Public may enforce attendance of. — If a suit be pending, a notary public may enforce the attendance of witnesses to give their depositions, and may compel them by imprisonment to answer any questions not violative of personal privilege. But the officer cannot exercise such powers if no suit be pending; and this fact may be inquired into in a proceeding upon habeas corpus.</p>