Volume 59 — Missouri Reports

I. Mrs. Rucker’s removal from this State did not of itself revoke her letters of administration. (Wagn. Stat., 72, § 8.) Whether she had in fact so removed as to justify a revocation, and the divesting of her rights and duties, could only be determined by the designated court in a direct proceeding for the purpose. (Wagn Stat., p. 75, § 35 ; p. 76, § 42.) II. Mrs. Rucker’s letters not being revoked, (Wagn.

JLppeal from Yernon Circuit Court. I. Respondent was not a passenger, nor is it averred that he entered the appellant’s cars under any contract with or by permission of appellant, nor that it was necessary for him to have gone on the train. Hence the petition is bad. (Lucas Adm’r vs. Taunton & N. R. R. Co., 6 Gray, 64, 66.) II. Appellant was under no obligation to give him signals of starting.

<p>1. Practice, Supreme court — Instructions, not preserved in record,etc. — Exceptions to the action of the lower court in giving or refusing instructions, will not be considered, when they are not preserved in the record.</p>

<p>1. Bill of exceptions — Filing of at subsequent term — Consent mud be of record. —A bill of exceptions cannot be filed at a period subsequent to the term at which judgment was rendered, except by consent of parties, and where the agreement is made a matter of record. (West vs. Fowler, 55 Mo., 300, affirmed.)</p>

cited Charter of Cass Court of Common Pleas (Sess. Acts 1867, p. 88, § 23); State Const., Art. VI., §§ 1, 21; Ross v. Murphy, 55 Mo., 372. I. The writ of error is not a statutory but a common law writ, and will only lie where the proceeding in the court below was according to the forms of the common law.

Plaintiffs in their petition pray to have the deed from Dejarnett to Elizabeth Dixon, and also the trust deed made by Elizabeth Dixon conveying the lands to secure the purchase money to Dejarnett set aside, on the ground of fraud. I. The sale made by Dejarnett to Elizabeth Dixon under the mortgage, was fraudulent, and the deed made by him to her should have been declared fraudulent and void, as a matter of fact. (Allen vs. Berry, 40 Mo., 282.) II.

<p> Error to Dent Circuit Court. </p> <p>I. A judgment or order of allowance of a demand against an estate, where there has been no notice to the administrator, and where notice has not been waived in open court, may be set aside at any time. (Bryan vs. Mundy, 14 Mo., 458.)</p> <p>II. Both the Probate and the Circuit Courts erred in permitting parol testimony to prove the action of the County Court when said demand was allowed ; the action of the court can be proved only by its records. (Milan vs. Pemberton, 12 Mo., 598.)</p> <p>III. An entry nunc pro tune can be made only by the court that tried the cause, or acted in relation to the matter •in dispute. (Saxton v. Smith, 50 Mo., 490.)</p> <p>I. A court may always at subsequent terms correct misprisions of its clerk, so as to conform the record to the truth, and enter judgments nunc pro tunc. (Turner, Ex’r, vs. Christy, 50 Mo., 145 ; Brewster vs. Dinwiddie, 25 Mo., 352 ; Stacker vs. Cooper, Ct. Ct., Id., 402; Gibson vs. Chouteau’s Heirs, 45 Mo., 171; Scruggs vs. Scruggs, 46 Mo., 271.)</p> <p>II. The Probate Court was virtually the same as the County Court; the jurisdiction was the same, and a change in the name of the tribunal would make no difference.</p>

<p>1. Deeds of trust — Sale at acourt house door,” what amounts to, in law. — The terms of a deed of trust requiring sale to be made ‘‘at the court bouse door of Jackson county,” are sufficiently complied with where the property is sold at the door of a building appropriated by special order of the County Court, for court- purposes, pending repairs in the court house proper.</p> <p>2. Land and land tides — Declarations touching, when competent, when not. — Declarations touching the title to latid, when in the nature of admissions, may be competent; but 'otherwise when u««ed to establish the title of the witness, or to impair the title of others who are not shown to be present or in complicity.</p> <p>S. Equity — Special issues — Verdict of jury, etc, — In equity proceedings, tlie verdict of a jury on special issues submitted to them, is not conclusive ill the Circuit Court.</p>

I. A charter can be amended by excluding part and adding new territory. (St. Louis vs. Russell, 9 Mo., 503; St. Louis vs. Allen, 13 Mo., 100 ; Dill. Mun. Cor., §§ 35, 124.) II. It is now admitted that the act of March, 1870, does not comprehend any part of the territory included in the act of 1859, but takes in territory lying south of the old corporate limits, and adjoining thereto. ■ But the act of 1870 does not repeal the 1st section of the act of 1859.

I. The court erred in admitting the record of the suit between John K. Cravens as plaintiff, and J. C. F. and Cornelia A. Maloney and Win. P. Allen as defendants in evidence, the appellants not being parties to that record, and because the same was otherwise incompetent as evidence.

<p>1. Mandamus — Petition for by treasurer of school sub-district against county collector — 'County cannot interplead. — In proceedings by mandamus on the. relation of the treasurer of a school sub-district against a county collector to pay over to relator a railroad -school tax, the county cannot interplead to be made a party. The provisions of the practice act, authorizing persons having an interest in a controversy to be made parties thereto, have no application to proceedings in mandamus.</p>

<p>I. Appeal dismissed</p>

I. Communications between the parties to, and concurrent with, transactions between them and which relate to such transactions and are calculated to explain the nature thereof we admissible in evidence as part of the res gestœ. (Eastman vs. Bennett, 6 Wis., 232; 1 Greenl. Ev., § 108, et seq.) II. Every circumstance calculated to aid in determining whether the intent to defraud existed, should have, been given to the jury. III.

<p>1. Judgment — Suit on transcript — Jurisdiction, want of, may be shown ¡ notwithstanding recitals of transcript. — In suit on transcript of a judgment, rendered in another State, defendant may show that the appearance of his attorney in the original suit was unauthorized and fraudulent, notwithstanding that the jurisdiction of the court over him appeared affirmatively from the record.</p> <p>Want of jurisdiction, it is now belli, muy be shown either as to the subject mat; ter or the person, or, in proceedings in rem, us to the thing, although thé record may recite facts necessary to give the court jurisdiction. (Marx vs. Fore, 51 Mo., 69.)</p>

I. If the affidavit and bond were not sufficient, appellant had a right to file others. (Wagn. Stat., 1872, p. 183, § 10; p. 190-1, 118; Jasper Co. vs. Cheuault, 38 Mo., 357, and cas. cit.) Even if the attachment had been dissolved, the suit should Still have proceeded. (Wagn. Stat., 1872. p. 191, § 19.) The defendant appeared generally — which waives any defect in the writ. (Bartlett vs. McDaniel, 3 Mo., 10; Barnett vs. Lynch.

<p> Appeal from, Jasper Circuit Court. </p> <p>cited in argument, State vs. Wilcoxen, 38 Mo., 370; State vs. Davidson, 3S Mo., 371.</p>

I. This action is not barred by the statute of limitations, as it is clearly within the saving of the statute. (Wagn. Stat., 920, § 24; Arnold vs. Scott, 2 Mo., 14; Harper vs. Pope, 9 Mo., 402, and opinion of Judge Naptonin ease relied upon by defendant; Taylor’s Adm’r vs. Newby, 13 Mo., 164, Í65.) I. Section 24 of the limitation law evidently refers to acts of the defendant, or those under whom he claims, and of which he had full knowledge.

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

•Appeal from Lawrence Circuit Court. I. Tlie bill must allege, peculiar circumstances to show that the injury is irreparable, such as the insolvency of defendant and the like. (Burgess vs. Kattleman, 41 Mo., 487; James vs. Dixon, 20 Mo., 79; Waterman' vs. Johnson, 49 Mo., 410; Jerome vs.'Ross, 7 Johns. Oh., 315; Ross vs. Rage, 6 Ohio, 167.) But the bill sets forth no facts. It simply states the conclusion of law. II.

<p>Appeal from, Ja&per Circuit Court„</p>

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

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

<p>1. County Collector — Distress warrant by State Auditor against — Copy of bond— Collector's settlement — Levy on sureties, eta. — In distress warrant by the State auditor against a county collector ; Held,</p> <p>1st. A copy of defendant’s bond certified by the auditor, is proper evidence. (R. C. 1855, ch. 62, gg 23, 34, p. 1339, g 5.)</p> <p>2d. A copy of his settlement taken from the collector’s settlement book, certified by the auditor, is competent to prove the settlement.</p> <p>3d. Where defendant is both collector and sheriff, the writ may. under the statute (R. O. 1855, p. 1542, g 3; Wagn. Stat., 1335, g 18) issue, to the sheriff of a county adjoining, without further proof that the sheriff of the proper county is “disqualified.”</p> <p>4th. The sheriff's return, that the proceeds of the sale of the collector’s property are not enough to satisfy the debt, sufficiently shows an exhaustion of his estate to authorize levy on that of his sureties.</p>

I. It must appear affirmatively from the testimony upon the trial de novo in- the Circuit Court on appeal from a justice, that the animals were killed'or injured in' the township wherein the justice resided before whom the suit was brought. Unless this be the case, the Circuit Court has no jurisdiction. (Wagn. Stat., ed. 1872, 1, 9, p. 810, § 3, clause 5.) II. Wagn.

I. If the medical services rendered were necessary to preserve life or health of respondent’s son, his liability is fixed. (St. Ferdinand Loretta Academy vs. Bobb, 52 Mo., 358, and cases cited ; Paul v. Hummel, 43 Mo., 122.) 'No actual knowledge or express authority is necessary in order to charge the defendant, he being under a natural and legal obligation to maintain and support his minor son.

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

I. The statutory method of re-establishing lost corners or interior lines is in conflict with the acts of Congress and the rules and regulations prescribed by the General Land Office. (Gen. Stat., ch. 27, §§ 24, 25, 32 ; Act of May 18,1796, Land Laws, Yol. 1, p. 50, §§ 1, 2; Act March 26,1804,1 Land Law, p. 104; Act Feb’y 11, 1805,1 Land Law, p. 119 ; Act April '29, 1816,1 Land Law, p. 278 ; Campbell vs. Clark, 8 Mo., 553 ; Colvin vs. Fell, 40 Ill., 418. II.

I. A party making a deed under duress can enter and avoid such deed against a bona fide purchaser. (Worcester vs. Eaton, 13 Mass, 371; Somes vs. Skinner, 16 Mass., 348 ; 11 Mass., 379 ; 2 Black. Com., p. 290; 3 Black Com., p. 173-5.) I. A contract procured by fraud, duress and violence is not absolutely void, but only voidable ; because the person upon whom the fraud and duress was practiced may ratify and affirm the contract. (1 Pars. Cont., 395 ; 1 Poth.

I. Instruction 10 is without precedent. It assumes that the evidence proves the defendant guilty of murder, requiring the jury to find the degree only.

<p>S. Note — Fraud as defense to. — Where a note is procured by fraud, that fact may be set up in defense.</p> <p>2. Note given on contingencies — Failure of. — Where a note is given on contingencies not therein expressed, the failure of such .contingencies cannot be set up as a defense.</p> <p>3. Note given to payee as escrow. — A note cannot be given to the payee as an escrow. The delivery must be to a third person.</p> <p>4. Note — Parol evidence as to. — Parol evidence is not admissible to vary the meaning of a note.</p>

<p>1. Practice, Supreme Court — Failure to assign errors, etc. — Where appellant neglects to file assignment of errors or statement and brief, appeal will be dismissed.</p>

I. The intent with which property is taken is always a question for the jury. (Thatch. Crim. Cas., 480, 484 ; State vs. Williams, 35 Mo., 229.) In this case whether the removal of the corn by respondent was a trespass or larceny, depends on the circumstances of the taking and intent with which it was done, and certainly from the evidence in this case, was a question for the jury to pass on. II.

I. The court erred in quashing the first count in the indictment, the offense being charged in the language of the statute (Wagn. Stat., 459, 460, § 41), and a statutory offense, it is not necessary to state the manner or means of the alleged conversion. (Whart. A.m. Crim. Law, 3d Ed., ch. 5, pp. 185-6; State vs. Mitchell, 6 Mo., 147; Spratt vs. State, 8 Mo., 247; State vs. Fulton, 19 Mo., 680; State vs. Cox, 29 Mo., 475.) II.

<p>1. Criminal law — Trial—Failure to arraign 'prisoner. — Trial cannot proceed against a prisoner for on offense for which he has not been arraigned, and of which he has not pleaded guilty.</p> <p>2. Criminal law — Appeal—Record must show presence of prisoner when, etc. — On appeal from the verdict against defendant in an indictment, unless it appear from the record that the prisoner was in court during the trial and at the rendition of the verdict, the cause will be reversed.</p> <p>S. Criminal law — Reversal of cause — Prisoner, if in penitentiary, remitted to county jail. — Where on reversal of a criminal cause, it appears that the prisoner is in the penitentiary by virtue of the sentence, an order will be made remitting him to the custody of the jailor of the proper county.</p>

•Appeal from Mercer Circuit- Court. E The description of the forty acre tract as described in the deed was no description of the lots in controversy. (Henry vs. Mitchell, 32 Mo., 512; Evans vs. Ashley, 8 Mo., 177.) I. Deeds and exceptions therein are construed most strongly against the grantor. (Nelson vs. Brodhack, 41 Mo., 596; Clemens vs. Rannells, 34 Mo., 579.) The authorities cited by defendant’s counsel are not in point.

dip peal from Sullivan Circuit Court. I. To set aside a prior voluntary conveyance, a subsequent creditor must prove fraud in fact. (Read vs. Livingston, 3 Johns. Ch., 501; 2 Sto.

<p> Appeal from Nodaway Circuit Court. </p> <p>I. Upon a settlement where the court finds that the personalty is insufficient to pay the indebtedness proven against the estate, no order of notice to the heirs is necessary to make a valid order of sale. (Administration Act, Art. Ill, § 47; Wagn. Stat., 100.; Valle vs. Fleming’s Heirs, 19 Mo., 454.)</p> <p>II After .an order of sale made upon petition and order of notice duly given, no further notice is necessary to make valid an order of sale of additional lands, where the land sold proves insufficient to. pay the debts mentioned in the administrator’s petition. (Frye vs. Kimball, 16 Mo., 21; Johnson vs. Overton, 17 Mo., 443 ; Sheldon vs. Wright, 1 Sells., 497.)</p> <p>I. By the terms of section-47, Art. III, ch. 2, (Wagn. Stat.) relating to administration, the same notice is required to the parties interested, before the court can order the sale of the lands of the decedent, to pay his debts, as is declared necessary under §§ 25 and 26. And sale without notice is void and the title worthless as against the respondents. (Valle vs. Fleming, 19 Mo., 454; Babbitt vs. Doe, 4 Ind., 335 ; Doe vs. Anderson, 5 Ind., 33; Doe vs. Brown, 8 Ind., 197; Guy vs. Pierson, 21 Ind., 18; Hawkins vs. Hawkins, 28 Ind., 66 ; Gilstrop vs. Moore, 26 Miss., 206 ; Hamilton vs. Lockhart, 41 Miss., 460 ; Campbell vs. Brown, 6 How., [Miss.] 230 ; Sherry vs. Denn, 8 Blackf., [Ind.] 542; Cooper vs. Sunderland, 3 la., [Clark,] 137; Thornton vs. Mulquinne, 12 Iowa, 549; Stark vs. Brown, 12 Wis., 572 ; Gibbs vs. Shaw, 17 Wis., 197 ; Bloom vs. Burdick, 1 Hill, 130; Schneider vs. McFarland, 2 Comst., 459 ; Corwin vs. Merritt, 3 Barb., 341; Sibley vs. Waffle, 16 N. Y., 180 ; Lessee of Adams vs. Jeffries, 12 Ohio, 253 ; Messinger vs. Kintner, 4 Binney, 97.)</p>

I. The County Court of Holt County, in the collection of the bond sued on, being the agent of the county, all the acts of such agent within the scope of its authority, express or implied, are binding on the county, and the purchase of the mortgaged lands by the county attorney, expressly authorized for that purpose, was binding on the county and court. (33 Mo. 361; 29 Mo., 71; 28 Mo., 589.) II.

Two questions are submitted upon the .record. I. Payment by one of several defendants extinguishes the judgment, whatever may be the intention of the parties to the transaction. It is not in their power to keep the judgment on foot for the benefit of the party paying. Albin could not obtain are-lease for himself without the release of all his co-defendants. It was not legally possible for him to be an assignee of a judgment in which he was defendant.

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

<p> Appeal from Holt Circuit Court. </p> <p>cited in argument State vs. Randolph, 22 Mo., 478, and contended that State vs. Bailey, 35 Mo., 168, did not apply.</p>

<p> Appeal from Holt Circuit Court. </p> <p>cited Wagn. Stat., 1013, § 3; Bankston vs. Parris 26 Mo., 175 ; Garvey vs. Fowler, 4 Sand., 665 ; Fagan vs. Davidson, 2 Duer., (N. T.) 153; Wilson vs. Dean, 10 Iowa, 432; 42 Barb., 299 ; Squier vs. Gould, 14 Wend., 159 ; Sedg. Dam., 575-578; Donnell vs. James, 13 Ala., (N. S.) 490; Fuller vs. Banker, 11 Mich., 204; Edward vs. Bittinger, 3 Strob., 373 ; Chitty Pl., Vol. 1, p. 396, et seq.,</p> <p>cited State to use of Rose, 19 Mo., 613; Hayden & Smith vs. Sample, 10 Mo., 217.</p>

<p>1. Injunction of sale under deed of trust — Former conveyance of land as a gift, effect of — Testimony as to conveyance, what competent under witness act.— Where injunction is brought to prevent sale of land under deed of trust, on the ground that the maker had already conveyed away a portion of the tract; held</p> <p>1st. That plaintiff need not show that a valuable consideration was paid for the laud, provided the deed was not made in fraud of the rights of others.</p> <p>2nd. That the grantee in the conveyance last mentioned being dead, and the conveyance, or knowledge thereof, being denied by the answer, under the statute (Wagn. Stat., 1372-8, § 1,) testimony of the grantor going to invalidate the deed would be inadmissible, but his testimony proving an admission, at the date of the deed of trust, by the grantee therein that the latter had notice of said conveyance would be competent. It was not intended by the statute to exclude one party, the other being dead, where the evidence related to transactions had with third persons, to which the deceased was no party, and of which he had no knowledge; or where the evidence referred to transactions which had taken place since the decease.</p>

I. The note and deed were virtually one transaction. II. The deed cannot be considered on demurrer. If it could, the want of seal cannot; but must be taken advantage of by answer. (Smith vs. Hart, 1 Mo., 274.) III. An inchoate right of dower does not require the wife’s joinder.

<p>1. Sheriff's sale — Parchase at — Outstanding tide, etc. — Defendant in ¡in exeeut jn and those acquiring possession under him cannot defeat the recovery of the purchaser at the sheriffs sale by setting up an outstanding title.</p> <p>2. Ejectment — Possession of judgment debtor transferred by execution sale— Common source of title admitted — Ejectment by one having neither tide nor possession, etc. — If a judgment debtor at date of sale under execution has a bare possession, and no other claim, his interest to that extent is transferred by the sale and the judgment is a lieu on that interest. And the purchaser may sue in ejectment against a defendant holding'merely by virtue of an after acquired possession; and where plaintiff and defendant both claim under a common source of title, plaintiff need not prove chain of title further back, as the title held by the common source is admitted. But where plaintiff has neither title nor possession at date of execution sale, he cannot oust even a trespasser.</p>

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

I. The court erred in refusing to permit the plaintiff to prove that the debt secured by the mortgage from Russell to Smith had been paid. The defendant in order to set up an equitable title as outstanding by a mortgage, has brought in a mortgage more than twenty years old, and without accounting for the absence of the note upon which it was founded. Plaintiff will certainly be permitted to show the payment of' this debt.

Appeal from Buchanan Common Pleas. I. The lots are not subject to the payment of respondent’s debts. (Sto. Eq., §§ 1068, 1072; Lead. Cas. Eq., vol. 2. part 2. pp. 334. 336, side p. 685, &c.; Hale vs. Coe, 49 Mo., 181; Gates vs. Hunter, 3 Mo., 511; Craig vs. Leslie, 3 Wheat., 578.)

<p> Jlppealfrom Buchanan Circuit Court. </p> <p>cited the following authorities: Thomas vs. Cook, 8 Barn. & Cr., 728; (Contra Green vs. Cresswell, 10 Ad. & El., 453) Cripp vs. Hartman, 10 Jur. N. S., 200 ; Chapin vs. Merrill. 4 Wend., 657; 5 Greenl, 304; Smith vs. Say ward, “ Thorp Val. Verb. Ag.” §§ 438 to 478; Lucas vs. Chamberlain, 8 B. Mon., 276; Holmes vs. Knight, 10 N. H., 175.</p> <p>I. "Where the promisor and promisee are about to unité in an instrument of writing, as sureties for a third person,-the promise to indemnify is not within the statute of frauds (12 N. Y., 462; 10 Barb., 512 ; 4 Hurls. & N. Eq., 738; 8 Barn. & 0., 15' Eng. O. L., 739 ; 22 Pick., 97; 1 Nelly’s Ga., 294; 8 B. _Mon., 378; 13 Id., 369; Thorp Val. Verb. Ag., p. 484, § 474; 23 Mo., 207); because, (a.) this was an original piromise. (See authorities above cited; 10 N. H., 175; Troop, §460; 20 Pick., 470; 4 Wend., 657; 22 Id., 101; 31 Wis., 312, 313 op.; 1 Pet. U. S., 500; 9 Gray, 77 ; 10 Johns., 243; 12 Mass., 300; Thorp Val. Verb. Ag., 485, § 476; 21 Mo., 373; 1 Bond U. S. C. O., 506.) (5.) Between these parties the .real transaction may be shown by parol. (10 Barb., 512 ; 12 N. Y., 467 ; 4 Hurls. & N., 739 ; 14 Ves., 169 ; 11 la., 317 ; 5 B. Mon.; 13 Id., and authorities above cited; 21 Mo., 573; 9 Mo., 125; 23 Mo., 140, 207 ; 18 Mo., 74; 20 Mo., 571; 35 Mo., 282.)</p> <p>The question must be determined by the agreement, ( Glenn vs. Lehnen, 54 Mo., 53) and hence the court will look at the situation and intention of parties. (Garner vs. Hudgins, 46 Mo., 399 ; 3 Pars. Cont., 5 ed., p. 20.) Respondent’s undertaking was that the suit should be duly prosecuted, and that the property in Wisner’s possession should be returned on order of court, aud all damages and costs against Wisner should be paid. Only on Wisner’s default could appellant •be banned. Wisner is originally liable and respondent only collaterally so. (White vs. Solomonsky, 30 Ind., 590 ; 2 Pars. Cont., 9 ; Easter vs. White, 12 Ohio St., 219.)</p> <p>If respondent’s contract was original it must be supported by an original consideration between the promisor and promisee, and be beneficial as to the former. (Furbish vs. Gardener, 98 Mass., 296 ; Brown Fr., 204-9.) A simple detriment to the promisee will not be enough. ,(2 Pars. Cont., 10; Nelson vs. Boynton, 3 Md., 396 ; Baker vs. Bucklin, 2 Hen., 45 ; Kingsley vs. Baleóme, 4 Barb., 131; Cook vs. Elliott, 34 Mo., 587; Garner vs. Hudgins, 46 Mo., 403 of opinion.)</p> <p>A promise to indemnify is within the statute. (Garner vs. Hudgins, supra; Green vs. Oresswell, 10 Ad. & EL, 453 ; Easter vs. White, supra)</p> <p>Here when thepromise was made, the bond was not signed by appellant. Kespondent nevér agreed to be bound unless the sureties signed, and was not^bound until then, unless contingently ; and this is not sufficient to take the case out of the statute. (Brown Fr., § 164; Suydam vs. Westfall, 4 Hill. 211; 7 Har. & J., Md., 391; Thorp Val. Verb. Ag., § 496.)</p> <p>Barry vs. Kansom, (12 N. Y., 462) is not an authority. The question whether prisoner was bound at the time of making the promise, was not discussed.</p>

<p> •Appeal from Caldwell Circuit Court. </p>

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

I. The case of Peak vs. Langhlin, (49 Mo., 162.) is a case directly in point and settles this ease. Lillibridge’s rights in this case were no more effected by Ross using his name without his knowledge or consent, than if his name had not been used at all in the partition suit. In either case the decree and sale under it were void as to him, and he could successfully attack them in any collateral proceeding.

I. No contribution can arise save where there is mutual and equal obligation- Gillespie and Miller were not jointly hound to pay the judgment wherein they were defendants, (Wagn. Stat. [Ed. 1872], 71, §3; Pickering vs. Mississippi Yal. Nat. Tel. Co,, 47 Mo., 457; Langford vs. .Sanger, 40 Mo., 160; House vs. Powell, 45 Mo., 381; Syme vs. Str. Indiana, 28 Mo., 335; Preem. Judg., 89, § 120; Jones vs. Puller, 38 Mo. 363; Biddle vs. Boyce, 13 Mo., 532; 1 Par.

I. The plaintiff admitted that the crossing was dangerous, and that its condition liad been known to liim for four weeks. And while ordinarily the presumption is, that in doing a particular act, the party doing it acted with due care, yet, where one attempts to do an act which he knows to be attended with risk and danger, be must show affirmatively that he conducted himself with prudence and discretion.

<p>1. Practice, civil — Specific performance — Suit for, how tried. — An action for specific performance of a contract for the conveyance of real estate and for such, order and decree as the court may direct is not a case for a jury unless on issues specially submitted. (Wagn. Stat., p. 1040, \ 12.)</p> <p>2. Specific performance — Damages in lieu of. — In suit for specific performance, damages may be adjudged in lieu thereof.</p>

I. A. sale of land to an innocent purchaser, under-an execution issued on a valid subsisting judgment, is not void nor voidable by reason of such judgment being satisfied by pay-meat in the State of Indiana, unless some notice of such satisfaction had been given to the sheriff or purchaser prior, to such sale, by entering the same of record, as required by statute, or recalling the execution from the sheriff.

<p> Error to Chariton Circuit Court. </p> <p>cited in argument, Drake Att., §§ 59, 67; Adams vs. Abernathy, 37 Ho., 195 ; 1 Wend., 43 ; Roosevelt vs. Kellogg, 20 Johns., 208; 8 Wend., 140 ; 4 Wend., 603.</p> <p>cited in argument, Green vs. Beckwitk, 38 Mo., 384; Exchange Bank vs. Cooper, 40 Mo., 169 ; Kingsland vs. Worsham, 15 Mo., 441; Ellington vs. Moore, 17 Mo., 424; Adams vs. Abernathy, 37 Mo., 196 ; 1 Am. Lead. Cas., [4 Ed.] 747-8, and notes; Bank, &e. vs. Balcom, 35 Conn., 351; St. Confl. L., § 47, [6 Ed.] ; Harvard College vs. Gore, 5 Pick.,'370.</p>

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

<p>1. Railroads — Killing of slock — Allegations as to negligence and failure to erect fences, etc. — In suit against a railroad company, tlie petition alleged that de.fendant’s cars “wrongfully and illegally, and against the will of plaintiff,” ran over his cattle, and that the same were killed, owing to defendant’s failure to erect and maintain good and substantial fences on the side of the road, “where the same passes through, along or adjoining enclosed or cultivated fields of plaintiff.” Petition held substantially good.</p> <p>2, Railroads — Damages—Instruction—Enclosed fields, etc. — In suit under g 43, Art. II, Railroad law, Wagn. Stat., 310, against a railroad for damages, in killing stock, an instruction, which does not leave to the jury the question as to whether the accident occurred at a point on the road where the same passed through enclosed or cultivated fields, is erroneous.</p> <p>3. Railroads — Damages—Killing of hull — Const. Slat. — In suit against a railroad, for killing stock, it is no defense that the animal was a bull and subject to the provisions of $ 5 of the act for restraint of certain animals therein named. (Schwarü v. Hanu. & St. Joe. R. R., 38 Mo., 207.)</p>

I; Trespass will not lie against a road overseer who is attempting to open a road under the order of the County Court'. (Butler vs. Barr, 18 Ho., 357.) Of course, if trespass would not lie against defendant for the acts complained of by plaintiff, an injunction would not lie to restrain him from doing the acts or threatening to do them. II.

<p> Appeal from Chariton Court of. Common Pleas. </p> <p>I. The evidence and finding of the court both showing two-ninths of the title to be outstanding, and the plaintiff insolvent, the contract should have been rescinded. When the legal title cannot be conveyed and the vendee must resort to a court of equity to establish his title, notwithstanding the conveyance of all the rights of the vendor the court will not compel him to pay the purchase money. (Hill, on Yend., [2 Ed.] p. 244; Bank, &c. vs. Hagner, 1 Pet., 455.) The vendee cannot be compelled to take a doubtful title; and a title is doubtful when other persons may fairly question it. (Hill. Yend., [2 Ed.] p. 210, § 3.)</p> <p>I. Before the court will grant the relief sought by appellant, it must conclusively appear that Mitchell willfully made false statements concerning the title to said property with intent to cheat and defraud McMullen ; that McMullen relying solely upon these representations, purchased said property, and was injured by reason of said representations being untrue. (Cooley vs. Rankin, 11 Mo., 643, 645, 646 ; Langdon vs. Green, 49 Mo., 363, 368, ei seq.; Exchange Bank vs. Russell, 50 Mo., 531, 535; Holland vs. Anderson, 38 Mo., 55 Bryan vs. Hitchcock, 43 Mo., 527 ; Corry vs. Key ser, 30 Ind., 214; Drake vs. Latham, 50 111., 270; Manny vs. Eaton, 3 Humph., 347; Slaughter vs. Green, 13 "Wall. [IL S.] 379; Meyer vs. Armidon, 45 N. Y., 169 ; 40 N. Y., 562; Taylor vs., Scoville, 54 Barb., 34.)</p> <p>II. Equity will not enjoin the collection of notes for price of land sold, after execution of deed, on account of failure of title, without eviction of purchaser, actual or constructive, by purchase of outstanding title, unless fraudulent practices in the sale of said property and fraudulent representations concerning the title to the property sold, are clearly proved to have been resorted to by the vendor and payee of said notes. (Abbott vs. Allen, 2 Johns. Ch., 522; Edington vs. Mix., 49 Mo., 134; Wheeler vs. Standley, 50 Mo., 509; Norman vs. Wells, 17 Wend., 160; Mitchell vs. Warner, 5 Conn., 497, 522 ; Hanson vs. Buckner, 4 Dana, [Ky.] 254; Upshaw vs. Debow, 7 Bush, 442; Potter vs. Taylor, 7 How., 133 ; blacker vs. Blake, 17 Ind., 97; Small vs. Reeve, 14 Ind., 164; Norman vs. Lee., 2 Black, [U. S.] 499; Sedg. Dam., 4 Ed., 150, 204; James vs. Hayes, 34 Ind., 272, 300 ; Kirtz vs. Carpenter, 5 Johns., 120; Beddoe vs. Wadsworth, 21 Wend., 120; St. John vs. Palmer, 5 Hill, 599; Meadows vs. Hopkins, 3 Porter, 181; Davis vs. Rowland, 2 J. J. Marsh, 27 ; Barton vs. Rector’s Adm’r, 7 Mo., 524.)</p> <p>III. None but the heirs, creditors, or distributees can object to an administrator purchasing property of "the estate being sold a't administrator’s sale, and then only by attacking the sale before confirmation by Probate Court, or by petition to redeem in a court of equity.</p>

<p>1. Partnership — Parol evidence as to, when inadmissible. — Although the general fact of the existence or non-existence of a partnership, or the names of the members and the like, may in some instances be shown by parol, notwithstanding existence of written articles of co-partnership, yet when the question involves a construction of the instrument, viz: whether It be a contract of partnership or one of agency merely, in sueli eases, the writing must be produced or shown to Be unobtainable before parol evidence is admissible.</p> <p>2. Partnership — Appropriation of firm assets to payment of individual debts. — It is well settled, that one member of a firm cannot, without the consent of his co-partners, appropriate the firm effects to the payment of his individual debts.</p>

<p> Appeal from DeKalb Circuit Court.' </p> <p>cited Turner vs. Chillicothe, &c. R. R. Co., 51 Mo., 501; Western Bank vs. Gilstrap, 45 Mo., 420; Mumford vs. Hawkins, 5 Denio, 355; Pulman vs. Mayor, &c., 54 Barb., [N. Y.,] 171; Salma vs. Mullen, 46 Ala., 411; Merrick vs. Burlington R. R. Co., 11 Ia., 411; Langdon vs. Castleton, 30. Vt., 76.</p>

<p>1. Conveyance to husband in trust for wife and children — Title of husband after wife's death —May sue child in ejectment. — Where land ia conveyed to the husband in trust for the wife aud her children, they will have the equitable title and the righj; to the rents and profits, and on the death of the wife the fee will vest in the children, but the statute of uses will not pass the legal title to the latter in that event. On the contrary, the father will retain the title in law and the right to supervise the interests of the estate during his life and that of the children. The courts distinguish between a trust given to a stranger to protect the wife frofrS'her husband, and a case where the husband is selected to guard her interests and that of the children.</p> <p>And the trustee may maintain ejectment even against the cestui que trust. Thus where such suit is brought against a tenant who had married his daughter, defendant cannot deny .plaintiff's title on the plea that, in making the contract of rent, he was ignorant'of the daughter’s interest.</p>

<p>1. Suit against heirs for debt of deceased — Judgment against each must be pro rata. — Where heh'3 are proceeded against, on account of assets which they have received from their ancestor, they are to be charged only with their pro rata share and one cannot be made liable for the whole.</p> <p>2. Administrator — Creditors mustsuebef'or e proceeding against real estate of heirs. —No creditor can be permitted to proceed against the real estate in the possession of the heirs, unless he has exhausted his remedy against the administrator, where it is shown that there were assets in his hands.</p> <p>3. Probate court — Special statute as to — Circuit Court has no jurisdiction, when. —Where, under a special statute, all proceedings against administrators in the county must be brought in the probate court thereof, originally and exclusively, the Circuit Court has no original jurisdiction of such actions.</p> <p>4. Administration — Claims, when barred — Conslr. Stat. — Where, the administrator lias given notice of the grant of his letters claims not presented within three years are outlawed. (Wagn. Stat., 102, $ 5.)</p> <p>5. Administration — Statute as to, supersedes common law. — The statute concerning administration, was intended to supersede the machinery of common law relating to the same subject. And, certainly, where creditors of an estate attempt to proceed otherwise than in the manner provided by the statute, some very strong and satisfactory excuse should be shown for failure to present the claim in the mode therein prescribed. (Titteringtou vs. Hookeij 58 Mo., 593.)</p>

I. Tbe devise of au estate witb power of disposal will pass a fee. (Noreum vs. D’CEnck, 17 Mo., 98; Ruby vs. Barnett, 12 Mo., 3.) The fact that authority to sell the real estate was given to Mrs. Branscom in connection with the other executor, did not impair her right to sell the same after the settlement of the estate and the discharge of the executors, the property being given to her as a personal trust, and for her own use and benefit.

I. A motion to quash an execution will only lie for irregularity in the execution, or in the proceedings under it, and not for irregularity in the judgment. (Gaston vs. White, 46 Ho., 486 ; see also, Ellis vs. Jones, 51 Ho., 180; Hardin vs. Lee, 51 Ho., 241; Allen vs. Sales, 56 Ho., 28; Cabell vs. Grubbs, 48 Ho., 353.) II. There was no final order or judgment in this proceeding from which an appeal could be taken.

I. Taking section 2 of the damage act as a whole, it is plain that it was designed, not to give a right of action, where none existed before, but to fix and limit the damages recoverable by the representative of a passenger from a common carrier, for injuries resulting in death, received either through the carrier or his servants.

<p>1. Batitcs — Gkecles—Forgery of — Payment by mistake — Notice of forgery money may be recovered back, when. — A bank having paid to a stranger a check drawn upon a sister bank, collects from the latter the amount of the check. The paper turns out to hare been forged, but at the time of payment, neither bank is aware of, or has reason to suspect the fact. The next day the paying bank ascertains the forgery, and on that day or the one succeeding, notifies the other bank of the fact. Sold, that the notification is given in a reasonable time and that the money may be recovered back.</p> <p>The general rule is that if in view of all the circumstances the party is not negligent in ascertaining or communicating notice of the fraud, he may so recover. And it seems that no other general limitation as to time of notice ean be adopted.</p> <p>The above ease is distinguishable from one in which the paper presented purports to be the note of the bank itself — where the bank may be remediless.</p>

Louis Criminal Court. I. The snatching of tlie chain with merely force enough to break it from the watch, and straighten the hook in the button hole, is not the violence intended by the statute. (1 Russ. Grim., pp. 67, 72, 871, note e.; Rose. Crim. Ev., [Ed. 1836] pp. 734, 740, 898; 2 Fost., 708 ; 2 East P. 0., 702; State vs. Johns, 5 Jones, N. O., 164; People vs. Hall, 6 Park. Or. Rep., 651; MeOlosky vs. People, 5 Park. Or. Rep., 307.) II.

I. The defendant is charged with an offense against the statute, and the facts alleged and proved against him are not within the statute. (Wagn. Stat., pp. 505, 506, §§41,42, 43.) II. The statutes having legislated on the whole subject must be taken as having repealed the common law. III. There was not one of the material ingredients of a nuisance shown to exist in this case, and the defendant should have been acquitted.

<p> dip peal from St. Louis Circuit Court. </p> <p>cited Carpenter vs. Turrell (100 Mass., 450).</p>

<p>1. Evidence — Statements of third pei'som. — The statements of third persons who do not sustain such relations to a party to a suit as to make such statements binding upon him, cannot he received in evidenee.X</p> <p>2. Wfimessas — Impeachment of by contradictory writterMaiements — Whole writing must be read — Depositions—Jury.—In impeaching thfe credit of a witness by proof of contradictory written statements, the writing, if in existence, must be shown to the witness; and if admitted to be his, the witness- cannot be asked if certain statements are contained in it, but the instrument itself must be read as evidence.; and where a part of it is read in the presence of the jury the opposing party is entitled to have the whole, read; and this rule applies where the writing is a deposition given by the witness.</p> <p>3. Action for money loaned — Sale—False representations. — In an action for money loaned, where defendant alleged a sale to him by plaintiff of the chose in action, from which the money was realized, it is competent for the plaintiff to show that the instrument purporting to sell the right, was obtained by false representations of its character and contents, showing that there never had been any sale.</p> <p>4. Instructions, erroneous — When not ground for reversal. — Instructions which taken alone might mislead.the jury, hut taken in connection with others work the appellant no substantial injury, are not ground for a reversal.</p>

Louis Circuit Court. I. Defendant never was the owner of these notes, and bad no right to transfer them. The addition to her name is mere surplusage. Even if she had qualified as executrix she still would have had no right or power to transfer the notes without proper action of the Probate Conrt. In sneh case the rights of creditors of deceased persons must be regarded.

<p> Appeal from Si. Louis Circuit Court. </p> <p>I. The acceptance in this case was conditional and to be determined on inspection. Something remained to be done. (Jones vs. Pearce, 25 Ark., 545 ; Hutton vs. Moore, 62 Ark., 382; Cunningham vs. Ashbrook, 20 Mo., 553 ; Bast vs. Walsh, 39 Mo., 198 ; Southw. Fr. & Cot. Pr. Co. vs. Stanard, 44 Mo., 83; Henning vs. Powell, 33 Mo., 468.)</p> <p>II. To take a case out of the statute of frauds, the delivery and acceptance must be shown by unequivocal acts. (Perry vs. Calvert, 22 Mo., 360; Lovelace vs. Stewart, 23 Mo., 385 ; Harvey vs. St. L. Butchers Ass’n, 39 Mo., 211; Bast vs. Walsh, supra; Johnson vs. Cuttle, 105 Mass., 449; Quintard vs. Bacon, 99 Mass., 185.)</p> <p>I. The evidence shows conclusively an inspection of six car loads by Edson, an acceptance of an order on defendant’s bailee for the eight loads, an actual delivery of six car loads at Kingsbury’s ware-house, and actual delivery of two car loads at Halliday’s ware-house, and a shipment and user by plaintiffs of the two car loads not inspected by Edson.</p> <p>II. The delivery by the vendor to the vendee, of an order on a depositary for the goods sold, is a deli very of the goods. (Sigerson vs. Harker, 15 Mo., 101; Glasgow vs. Nicholson, 25 Mo., 29 ; Caldwell vs. Garner, 31 Mo., 131; Williams vs. Evans, 39 Mo., 201; Sigerson vs. Kahmann, 39 Mo., 206.)</p>

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

Louis Circuit Court. I. The statutory exception, (Wagn. Stat., 919, § 16) applies, because during the defendant’s sojourn in Italy plaintiffs could not have had service and judgment against him here, that could be asserted in a foreign jurisdiction. (Johnson vs. Smith, 43 Mo., 499, 501.) Our statute, (Wagn.

Louis Circuit Court. The agreed case shows that the present counter-claim was not an issue, and the merits of it not disposed of in the' former suit, and hence the prior judgment is no bar. (2 Phil. Ev., 17, 18 [Cow. & Hill, notes 261] ; Id., 4; 2¥.

I. Defendant’s appearance for tlie purpose of taking a change of venue, did not cure defects in the service. Such an appearance was not a submission to tlie jurisdiction, nor was it a pleading to the merits, and the justice to whom tlie case was sent stood in the same position as the justice from whom-the case came. (Wagn. Stat., 826, § 39.) II.

<p>1. Equity — Sill to set aside trust deed made for wife of grantor — Trustee must be co-defendant. — In a proceeding to set aside a deed made by one since deceased to a trustee for the wife of the grantor, tire trustee must be joined as defendant, otherwise the legal title cannot be divested. (Siemers v. Kleeburg, 56 Mo., 196.)</p>

Charles Circuit Court. I. The deed of trust under which plaintiff claims, was executed and recorded several months prior .to tbe judgment under which the defendant purchased.

<p>I. Garnishee before justice must move to set aside default — Oonstr. Stat. — A garnishee, against whom judgment lias gone by delimit before a justice, must move to set the same aside within ten days thereafter, (Wagn. Stat., 846, 847, 1-, 2) as a condition precedent to his right of appeal.</p> <p>2. Garnishment — Interrogatories may be by parol. — Interrogatories on garnishment before a justice need not be in writing. (Wagn. Slat., 668, 669, (I 27.)</p> <p>8. Garnishee — Judgment by default against fixes liability — Subsequent proceedings relate to measure of damages. — Where a garnishee is summoned he stands in the attitude of a defendant, and judgment against him by default fixes his liability, although it may be for an uncertain amount, till evidence is adduoed on the subject. Proceedings subsequent to the default relate merely to the measure of damages.</p>

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

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

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

<p>X. Street improvements — Paving, etc. — Side walks — Cost of, how apportioned, etc. —In assessing the costs of guttering, etc., the cross walks and side walks adjoining a private lot, under the statute of 1867, (Sess. Acts X SO1?, \ 11, p. Í4) the owner should be charged in the proportion which the frontage of his lot bears to that of all the lots affected by the contract, and not that which it bears to those in the block.</p> <p>2. Special tax bill — Bill made out a few weeks before completion of work — Laic substantially complied with. — In suit on a special tax bill for street guttering, etc., where it appeared that the whole work under the contract was nearly finished at the time when the bill was issued, and was actually completed within a few weeks afterward,' and that the law was in other respects strictly pursued, held, that the law was substantially complied with, and that the property was chargeable with the assessment.</p>

Louis Circuit Court. I. Tlie deed does not purport to convey the interest of the minors, and is void on its face as a deed of the minors’ land. (Griswold vs. Bigelow, 6 Conn., 258 ; Lockwood vs. Sturdevant, 6 Conn., 373, 387; Strouse vs. Drennan, 41 Mo., 299 [motion for re-liearing] ; Yalle vs. Fleming, 19 Mo., 463, 4th and following sentences iu connection with, Wagn.

<p>1. Special tax bill — Erasure and substitution of name of owner by engineer — By his successor — Effect of on bill as matter of evidence. — The failure of the city engineer to insert in a special tax bill the name of the true owner does not vitiate the bill; but the rights of persons not made parties, (Sess. Acts 1871, p. 193,) and who are not privies, will not be affected by the judgment thereon. The city engineer may erase the wrong and insert the true name of owner in the bill, and may do so even after expiration of his term of office. But such correction by his successor, while it will not invalidate the bill, will render it no longer prima facie evidence of the facts therein named, either as against the original or the substituted party.</p>

<p>1. Forcible entry, etc. — Statute of lSJj-5 — Use of necessary force in, entering land etc. — Under the statute of 1845, (R. C. 1845, p. 513) the court erred in declarimr to he lawful the action of one — even the owner — who entered land “peaceably and used no more f oree than was necessary</p>

<p>Appeal from, Si. Louis Circuit Court.</p> <p>cited in argument Baiser vs. Lasch, 28 Wis., 268; Griifin vs. VanMeter, 53 Mo., 431; Orear vs. Clough, 52 Mo., 55 ; Tower vs. Moore, 52 Mo., 118.</p>

<p>1. Jury — Unchallenged juryman found in panel after swearing of jury — What action of court proper — Const. Slat. — Wliere, after a jury is sworn, but before any evidence has been taken, it transpires that in place of a juryman duly examined and selected, another has unauthorizedly taken his place without challenge or examination, the court should, on objection being made, discharge the latter and substitute the former juryman, and have the jury re-sworn.</p> <p>Section 3 of the Jury Act (Wagn, Stat., 797, ¡S 3) has no application to such case.</p>

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

<p>1. Practice, civil — Jury-Commissioner for St. Louis county — Failure to list jurymen. — The fact tlint one or more of the jurors who tried an indictment in the county of St. Louis, were not on the list furnished the marshal by tké jury-commissioner, where nothing appears to show collusion or improper motives in selecting the jury, or that any injury resulted from such selection, will not work a reversal of the cause.</p>

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

Louis Circuit Court. I. The doctrine as to staleness of claim does not apply to this case. The bill was filed in 1871. The sale was made in 1862. Some one or other of the plaintiffs had been endeavoring for several years to induce McCune to stand by the agreement made for redemption. It is not stale as to the minors and the feme covert. (Tyl.

<p>1. Insurance — Policy payable to married woman — Consideration—Admissions of maker — Joinder of interest in notes — Testimony of married woman as to.— “A.” obtained an interest in a firm by contributing thereto a tract of land bought of his co-partner, and gave certain notes secured by a policy of life insurance to a trustee for his co-partner’s wife, in consideration of her relinquishment of dower in the land. By its terms the policy was payable to A. in case he lived beyond a certain period, otherwise:to be paid to said trustee.</p> <p>In suit on said policy after death of A. held, 1st.’ A. might have set up the worthlessness of the land as a defense to the notes, but the insurance company could not defend against the policy on that ground. 2nd. Admissions from A. could not be received to invalidate the policy, there being no joint interest therein between himself and plaintiff, the said trustee. While A. lived he had the sole and absolute interest in the policy, and the interest of plaintiff was contingent on his dying before the date named in the policy, and took effect only after t.liat event. 3rd. Plaintiff’s wife being the real party in interest and the only one having a real and beneficial interest in the suit, as the statute (Wagn. Stat., 936, \ 18) gave her the insurance money absolutely, was entitled to testify. The witness act (Wagn. Slat., 1372, g 1) permits a married woman to testify, regardless of her interest, where she is the main and substantial party.</p>

Louis Circuit Court. The judgment is conclusive and binding, unless reversed or modified upon appeal, although it may be manifest that the judgment was erroneous, because the justice had jurisdiction of the “'subject matter” of mechanic’s liens. (Ereem. Judem., § 135; 33 111., 166; 1 Allen, 448; 12 Cal., 128; 3 Pet., 193 ; 19 Md., 375.) II. The mechanic has his election under the statute, and may proceed against the land alone.

I. The effect of the attachment in the suit of Adair county vs. Ownby was to attach all the property received by Ely. (Wagn. Stat., 185, § 23, clause 5; Id., p. 664, §4.) II. Ely could not have, received the Reed warrant in any other capacity than that of Receiver. Reed was garnisheed long before the appointment in the case of Reed vs. Ownby. And the suit of Reed v. Ownby was not dismissed till five days after the appointment.

Louis Circuit Court. I. From the time Bennett paid the purchase money, and as owner went into possession, which was open and notorious, until the time when Ridgeway’s tenant was sued in ejectment by… Held: that one holding by adverse possession, without record title, was subject to, and bound by, the registry laws as to any conveyances made by him. This brings Bennett within the exact language of the court. III.

<p>1. Limitations — Statute of — Possession for more than ten years. — One having the visible, actual, notorious, adverse and continued possession of lands under claim of title for more than ten years before suit brought, is protected by the statute of limitations.</p> <p>2. Spanish law — Deed not necessary to pass legal title — Identity of party making transfer may be shown by oral testimony. — Under the Spanish law the title to land might pass by parol assignment, without deed under seal. And where the assignment was executed by one “Jacob Sharadin,” it was held competent, by oral testimony, to establish his identity with one who obtained the confirmation of the tract described as “Jacob Sharadin, Jr.”</p> <p>8. Acts of Congress o/1812, 1816 and 1823, confirming titles to certain lands pass to confirmee legal and equitable title of XI. S. from their dates — Gibson vs. Chouteau — Statute of limitations. — The act of congress of June 13th, 1812,. confirming titles to lands in certain instances, where the same had been “inhabited and cultivated,” etc., prior to December, 20th, 1803, passed the title of the United States, both legal and equitable, to the grantee proprio vigore, from the date of the act. The certificates from the recorder of land titles were issued for the convenience of the claimants, and were prima facie evidence of title; but the emanation of the title itself did .not depend upon the dale of the certificate, or of the patent issuing thereon.</p> <p>And the same force and effect attached to the act of cotigress of April 29th, 1816, and February 21st, 1823. The act of congress of February 17th, 1815, for the relief of certain inhabitants of New Madrid, on which the decision in Gibson vs. Chouteau (13 Wai., 92) was based, was entirely prospective, a'nd contained no words of present grant. Hence that decision is not in conflict with the construction placed on the other acts named. And the rule laid down in Gibson vs. Chouteau, (50 Mo., 85) that the statute does not begin to run till the issue of patent, does not apply to titles derived under those acts.</p>

Louis Circuit Court. This case was formerly before this court. If defendant did remove tbe earth from about the pole,Matthews knowing the fact, and being aware of what he was doing, his own negligence was the immediate cause of his own misfortune. And the fact of defendant having removed the earth, was a circumstance too remote in the order of causation for plaintiff to recover.

<p>1. Equity — Divestiture of legal title — Substantial equity must be shown. — In order to divest the legal title to land out of a purchaser in good faith who lias made valuable improvements, plaintiff must show substantial equity.</p>

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

<p>1. Recorders of land — Confirmations prima fade correct. — Recommendations of United States Recorders of laud titles, confirmed by act of Congress, undoubtedly carry tlie title to land, and the purveys made in accordance with these confirmations ar oprima fade — not conclusively — correct.</p> <p>2. Practice, Suprreme Coart — Evidence introduced out of time. — An objection to evidence as being introduced out of time, will not be considered by the Supreme Court.</p>

I. Where land is sold at auction at 10 cents an acre, the fair value being 25 cents an acre, the sale is not invalid for inadequacy of consideration. (50 Ills., 455 ; Duncan vs. Saunders, 43 Mo., 297 ; Brown vs. Hann. & St. Jo. R. R., 48 Mo., 495 ; Cadwallader vs. West, 48 Mo., 483; 1 Strong Eq., 11th ed., sec. 244 note.)

Louis Circuit Court. I. The cause does not abate on account of the death of appellant after appeal taken, judgment having been in his favor below. a. When the plaintiff recovered judgment in the court below, the cause of action became merged in .the judgment. (Kimbrough v. Mitchell, 1 Head, 539; 2 Bouv. Inst., 149 ; see also 15 Conn., 524.) b. The death of the plaintiff after final judgment does not abate the suit; execution may issue. (Wil.

<p>1. Practice, ri.vil — Promissory note — Instruction calculating amount of verdict improper. — In suit on a promissory note, an instruction directing the jury, in case they find for plaintiff, what amount they shall allow, is improper, but will not for that reason warrant a reversal, when the sum is correctly calculated.</p> <p>2. Practice, civil — Instructions—Exceptions.—The Supreme Court will not review an instruction, the giving of which is not excepted to.</p>

<p>1. Land tides — Division fences — Boundaries, how settled,. — Parties will not be bound by an intervening fence as a boundary dividing their lands, where they claim only to the extent of their paper title, whatever that may be, and the , fence is suffered to remain simply as a matter of convenience.</p>

<p>1. County Court — Mandamus to compel topay over to petitioner money collected for railroad taxes — Memorandum on records of County Court. — It is tlie evident duty of a County Court, under the statute (Wagn. Stat. 305-6, $ 19) to issue • a certificate to the applicant therefor, who has paid a special tax levied and collected for railroad purposes. But this simple memorandum, viz: “Pd. before judg’t, Jan’y 37th,’67,” appearing in the columns of the tax books of a County, without any entry showing the amount paid, or on what lots, or by whom paid, is evidence too vague and indefinite to authorize mandamus compelling the Court to pay over a given sum to the petitioner for special taxes so levied and collected. And especially, where relator’s petition and reply show the existence of better evidence in the records of the County Court, a peremptory writ should be refused. •</p>

I. The answer converted this ease into an equitable proceeding, and it was error to give tbe case to a. jury. (Weil vs. Hume, 49 Mo., 158; Freeman vs. Wilkerson, 50 Mo. 554.) II. The burden was on tbe plaintiff to show tbe authority of tbe company to make the contract sued on. (Hesse vs. Mo. State Mut. Fire Ins.

<p> Appeal from, St. 'Louis Circioii Court. </p>

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

Louis Circuit Court. The covenants of the seventh clause are independent both of the covenants of the fourth and fifth; and the breach of the seventh could be compensated, for in damages, and in no way embarrassed plaintiff in fulfilling the conditions of the fourth or fifth clauses.

Louis Circuit Court. contended— among other points — that the court erred in its decree vesting the title of the land in plaintiff. Henderson vs. Dickey, (50 Mo., 257), did not overrule the principle adopted in Peyton vs. Dose, (él Mo., 262), that the court cannot, in the suit to set aside a deed, go further and clothe plaintiff with the title.

<p> Appeal from, Scott Circuit Court, </p>

<p>1. Malicious prosecution — Malice and want of probable cause must co-exist — Former may be inferred from latter, in what sense. — Malice and want’d' probable cause must co-exist in order to warrant an action for malicious prosecution, and malice may be inferred from want of probable cause. But by that statement is meant merely that malice may be inferred from the facts which go to establish want of probable cause, without direct and positive proof of malice. The latter, however, is not to be inferred absolutely, as a matter of law, merely from proof of the former, but only where the facts, showing want of probable cause, are of a character such as warrant the inference of malice.</p> <p>2. Probable cause question of mixed law and fact — When and how to be determined by the jury. — What is probable cause, is a mixed question of law and fact. Where the facts are undisputed, the court should declare their legal effect; but when disputed, the question is, under proper instructions, for the jury.</p> <p>8. Action for malicious prosecution — Instruction as to verdict of “innocent’ in the indictment. — In suit for malicious prosecution, the court may instruct the jury that a verdict for plaintiff, in the criminal proceeding against him, establishes his innocence of the charge; certainly where the jury are further told that the question for them to determine by their verdict, is not the guilt or innocence of plaintiff, but whether defendant acted maliciously and without probable cause in instituting the prosecution.</p> <p>4. Action for malicious prosecution — “Probable cause” — Advice of counsel — What facts must be communicated. — The advice of counsel to institute a criminal prosecution will not constitute a “probable cause” therefor, when the client resorts to such advice only as a cloak for his malice. He must consult counsel in good faith, and not only learn all the ascertainable facts, bearing upon the supposed offence, but communicate them, however immaterial he may deem them to be, to his legal adviser,</p> <p>5. Partnei-ship settlement — Drafts and notes paid over in — Partner paying, subsequently employed as collector of — Property unsold, share in retained by members — Fhnbezzlemeni of proceeds of collections. — Where, in the settlement of a partnership, all the losses and expenses of the business are adjusted, and a balance struck, and one receives from the other, as cash, certain drafts and notes, the partnership is none the less ended and the settlement none the less final because the party turning over the paper is to be responsible for his proportion of the debts uncollected thereon; and none the less so because he is subsequently employed in making the collections. He would have no continuing property, as partner, in the drafts and notes. Nor is the partnership continued by reason of the fact that certain specific property of the firm remained unsold, and under the settlement, each retains his proportionate share therein.</p> <p>Under such circumstances, the one employed as collector may be held criminally for embezzlement of proceeds of such drafts or notes converted to his own use.</p> <p>6. Partnership — Particular transaction between partners may be taken out of general law of partnership. — Partners may insulate or segregate any particular transactions from the general business of the firm, and thus take them out of the general law of partnership.</p> <p>Í. Malicious prosecution — Action of damages for — Probable cause — Advice of counsel need, not be to bring prosecution. — In an action of damages for criminal prosecution, defendant may show “probable cause” for the prosecution in the giving of an opinion by his counsel, that plaintiff was liable to such prosecution, without proving further that counsel had advised him to bring the prosecution.</p>

<p>1. Practice, civil — Agreed statement partially omitted in bill of exceptions — Presumption as to judgment below. — Where pare of an agreed statement on which the trial court based its finding is omitted from the bill of exceptions, the Supreme Court will presume that the judgment below was proper.</p>

Louis Circuit Court. I. The notary, it appears, delivered notice of protest for defendant, to Shields at his store, and that: It. Shields remonstrated, stating that Burgess had no place of business there. The notary failed to exercise proper diligence. (Gilchrist vs. Donnell, 53 Mo., 591; Sanderson vs. Reinstad tier, 31 Mo., 483; 1 Pet., 578, 582; 3 Hill, 520; 28 Vt., 316; 1 Pars. Notes, 489, Note Y., 490.) 1.

Louis Circuit Court. I. All parties agree that Gibson invested $25,000 of the moneys of the estate in the purchase of this property, and he has received credit for the same in his probate settlements. The claim is, that in dividing the houses among Gibson and David and Mary Gamble, and the apportionment of the price to be charged to each party, their four houses were rated too -high and Gibson’s too low.

I. This court bas jurisdiction. (State Const., Art. YI. § 3— Wagn. Stat., 53; Id., 685, § 2; 690, § 38; 9 Mo., 682; 12 Mo., 175; 36 Mo., 201; 8 Barb., 158.) II. The provisions of the statute regulating practice in criminal cases, and which specify the court and officers who may take bail, do not apply to this case. This is a proceeding under the statute concerning habeas corpus, and is governed by that statute. III.