Volume 61 — Missouri Reports

I. Plaintiff cannot recover under § 2 of the Damage Act, because, by the terms of that act, recovery can only be had from the corporation “ in whose employ ” the servant shall be at the time when the injury is committed. II. The Atl. &Pac. R. R. is not a “ corporation of another State” — as meant by the act of March 1870 — but of the United States.

I. One partner cannot maintain an action at law again stiffs co-partner for money paid on account of the indebtedness of the firm. (Bond vs. Bemis, 55 Mo., 524; Scott, Adm’r, vs. Caruth, 50 Mo., 120; Finney vs. Turner, 10 Mo., 208; Murry vs. Bogert, 14 Johns., 318; McKnight vs. Mc-Gu tell en, 27 Mo., 436.) A joint debt cannot be set off against an individual debt. (Finney vs. Turner, 10 Mo., 208; Lamb vs. Brolaski, 38 Mo., 51; Pool vs. Delaney, -11 Mo., 570.) II.

I. The law impairs no provision of the contract. The word “rates” in § 12 of the Act of 1849 (Sess. Acts 1849, p. 219,) gives only the right to charge proportionate amounts. The word “toll ” 1ms the samé meaning. (N. E. Express Co. vs. Me. C. R. R. Co., 57 Me., 188.) This contract confers no right upon the company with which this law comes in conflict. 1.

Jljypeal from Jackson County Circuit Court. I. Tlie record of the justice was a nullity, because it failed to show affirmatively, upon its face, that an attempt to agree upon the damages done, was made before the appointment of the appraisers. This is a condition precedent to the authority of the justice to make the appointment, and to the authority of the appraisers to act. It is a jurisdictional fact. (1 R. C. 1855, 421, § 22; 1 Wagn.

<p>1. Judgment for costs — Appeal.—A judgment for costs is not n final one from which appeal will lie.</p>

Jlppeal from Henry County Circuit Court. I. Instruction No. 6 for plaintiff states an abstract proposition of law not sufficiently connected with the testimony. (Devitt vs. Pac. R. R., 50 Mo., 3J)2.) Dor does it permit the jury to determine bow far plaintiff’s negligence contributed to the damage.

Agypeal from, Franklin Circuit Court. I. The property sold to Manpin & King was not embraced in the writs of venditioni exponas. and hence they got no title. (Maupin vs. Emmons, 47 Mo., 305; Means vs. LaVergne, 50 Mo., 343 ; Bates vs. Miller, 48 Mo. 409.) II. The defendants having shown no legal or equitable title in themselves, were Hot in a situation to question the prima facie title of plaintiff, nor to go into an investigation of the alleged frauds of Hammock and others.

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

<p>1. Railroads — Suit before justice for burning plaintiff’s property — Service om agent, what insujieient — Oonstr. Stat. — Motion to dismiss, what sufficiently specific. — In suit against a railroad company before a justice of the peace, for setting fire to plaintiff’s property, the constable’s return, showing that lie served the writ by reading it to the agent, etc., is not sufficient. The service of process, as provided for in $ 9, Art. I, of tiie statute affecting justices, (Wagn. Stat., 810, \ 9) is authorized in suits for killing stock. But in the cuse supposed it should be made conformably to the statute relating to corporations (Wagn. Stat., 294,- g 26), by service on the chief officer, or by leaving a copy with the agent, etc. And if made as above stated, by reading the writ to the agent, the court will be bound, ou general demurrer, or any motion which will bring to its attention the defect in the service, to dismiss the suit, unless the return is amended in accordance with the facts showing due service. And the court cannot refuse to act upon the motion or pleading, on the ground that they fail to specify wherein the return is'defeetive.</p> <p>2. Practice, civil — General demurrer. — A general demurrer may be proper. (Morgan vs. Bouse, 58 Mo., 219.)</p>

<p>1. Street grading — &ereise of care and skill in, by city — Measure of responsibility. — It is the settled law of this State that if municipal corporations, acting under authority conferred by the legislature to make and repair or to grade, level and improve streets, exercise reasonable care and skill in the performance of the work, they are not answerable to the adjoining owner for consequential damage to his premises. But if the injury can be shown to be the result of the negligence or unskilfulness of the city or its employees in performing the work, an action will lie, and the party injured will be entitled to damages.</p>

fljpjpeal from Cole Circuit Court. I. The act of March 10th, 1871, made no provision for assessing the railroad property -for that year, nor did it repeal the provisions of the city charter of .Jefferson City, by which it, had the right to assess the property. (Carondelet vs. Pi cot, 38 Mo., 125 ; State ex rel. vs. Severance, 55 Mo., 378.) I. Objections for misjoinder cannot be raised after a trial upon the merits, and by a motion in arrest.

I. The second bond not Laving been given in pursuance of the statute law, (§§ 36, 37, Art. I, Administration) did not supersede the first, but was merely cumulative. (Haskell vs. Farrar 56, Mo., 497; State to use, etc. vs. Fields, 53 Mo., 474; State to use, etc. vs. Drury, 35 Mo., 281.) II. The estate of Moore should not be deprived of the indemnity given it by the mortgage, because Hale’s administrator chose to sue upon the second bond instead of the first.

<p>1. Trespass — County road — New location of — Cutting down hedge on rented land. Exemplary damages. — After a road had been regularly surveyed and opened by the county, and used and apparently acquiesced in for fifteen years, the notion obtaining that the survey was wrong, at the instance of those interested, a new one was made correcting the old, and the road overseerloeated the road correspondingly and closed that originally made, and out down a hedge of hois d’arc bordering it. The owner of the hedge had let the land enclosed by ' it on a share of the crop grown by his tenants. Held, that he had his action for trespass against the overseer, and those employed by him, for trespass, and on proper evidence, showing annoyance and harassment by the defendant, might recover exemplary damages.</p>

I. Plaintiff sues on a demand accruing since' the death of his intestate. The notes, according to the answer, were all due before his death. In such case it is well settled that the' latter cannot be set off against the former. (Chit. Oontr., 849 ; 2 Will. Ex’s, 1700Woodward vs. Thornton, 8 Mo., 161; White vs. Henly, 54 Mo., 592.) 1.

This suit was for specific performance of a written contract for the exchange of lands, plaintiff claiming that in pursuance of its terms he had offered to give defendant title by sufficient deed, which contract defendant repudiated, etc. The case of Burnam v. Banks, referred to by the court is evidently that reported in 45 Mo., 349.

<p> Appeal from Lafayette Circuit Court. </p> <p>cited 15 Mo., 78; 55 Mo., 545; 4 Green Iowa, 530; 33 111., 518; 25 Ala., 534.</p> <p>cited 3 Mo., 49 ; 43 Mo., 389 ; 32 Mo., 423; 20 Mo., 584; 7 Mo., 161; Wagn. Stilt., 1034, §§ 6, 19-20 ; 50 Mo., 403 ; id. 504.</p>

<p> .fijxfje.al from Newton Circuit Court. </p> <p>The petition is good at common law. (Hewitt vs. Harvey, 16 Mo., 37L; Low vs. Harrison, 8 Mo., 351; Waltham vs. Warner 26 Mo., 115 ; Garner vs. Hann. & St. Jo. R. R., 31 Mo., 240; Comings vs. Ilann. & Cent. Mo. R. R. Co., 48 Mo., 516 ; Montague vs. Papin, 1 Mo., 757 ; Schmidt vs. JDinsmore, 42 Mo., 226 ; Gran vs. St. Louis, IL. C. & N. R. R., 54 Mo., 240; Henderson vs. Hickey, 50 Mo. 164; Northcraft vs. Martin, 28 Mo., 470.)</p> <p>The allegations in the petition of plaintiff’s ownership of real estate, are not sufficient to show its ownership of the trees, saw logs, etc. There is no averment that the timber was ever standing on plaintiff’s land.</p>

The indictment pursues the language of the statute in every particular, and is good. (Wagn. Stat., 1090, § 27 ; Id. 504, § 35; State vs. Stubblefield, 32 Mo., 563.) The offense committed was indictable under the law, as it existed at the time the same was preferred. Wagn. Stat., 516. § 30. was re-enacted February 21,1871. (Vide Acts 1871, P- 34.) The offense, as appears from the indictment, was committed June 9th, 1872.

Jlppeal from Pettis County Circuit Court. I. In suit on- note for purchase price of land, failure of title in vendor is a proper defense. (Luckett vs. Williamson 31 Mo., 54; Pierce vs. Chouteau, 13 Mo., 526 ; 18 Mo., 369 ; 20 Mo., 433; 21 Mo., 415.) II. The word “ property” is a broad term, but is qualified by the testator. He tells particularly of what it consists, and enumerates as in an inventory every species of personal property but not real estate.

I. The services were rendered for the South Pacific road, and 1. the petition failing to allege a consideration for the pretended promise of appellant to pay therefor, no proof can supply the defect. 2. Such promise should have consideration, (Cook vs. Elliot, 34 Mo., 586; Thorp Val. Verb. From., pp. 83-4, § 11) unless in writing, signed by appellant, would not be binding, (Wagn. Stat., 656, § 5) and it must have been made to appellant. (Page vs. Becker, 31 Mo., 466.) 3.

[. The testimony goes to show a tenancy in common between plaintiffs and defendant, which would continue till an ouster; and till then no right of action accrued. As to what constitutes ouster between tenants in common, instruction No. o for defendant correctly declared the law, and is sustained by Paul vs. Lepeyre (47 Mo., 557). Defendant took Hendricks’ deed with record notice that Hendricks held under Alton Long, and he took nothing but Long’s life estate.

I. The act establishing the Probate and Common Pleas Court, recognizes two distinct jurisdictions in tlie court, governed by different modes of procedure, and having different terms; and section 16 refers to the Common Pleas department. II. Moreover, under section 16, the Circuit Court is made to “.possess the same general powers over this,” (the Probate,) “that it now does over the County Court.” And certainly, in the latter case it can try de novo.

I. The term, “lottery ticket,” as used in the statute, means a ticket, the value of which is uncertain, and to be determined by a drawing to take place in the future. The term, as used in the petition, has reference to a ticket which entitled the holder to a definitely ascertained amount — known to the defendants at the time of the contract.

<p>1. State vs. Itoehm, ante p. 82, affirmed.</p>

A subsequent purchaser of the legal title to lands with actual notice of a subsisting vendor’s lien thereon, without doubt takes no greater title to the land than his vendee badBnt the evidence of the notice must be clear and undoubted, amounting in effect to evidence, that knowing of the prior incumbrance the vendee took the conveyance with the intent to defraud the owner of the lien. (Ad. Doc. Eq., 164; Sto. Eq.

I. The statnte authorized Brainard, as special constable, to take and approve the instrument sned on, and the sureties are liable thereon. (Wagn. Stat., 815. § 20; Gen. Stat., 1865, § 20, p. 702; R. C. 1855, § 20, p. 933.) II.

I. The moment the money was deposited in the bank, it was the property of the bank, who then became the debtor of the firm to the amount so deposited, payable on demand, and the $1,614.26 was one of the accounts due the firm. (Chapman vs. White, 3 Seld., [6 N. Y.] 412; Maine Bk. vs. Fulton Bk., 2 Wall., 252; Cote vs. II. S. Bk., 3 Cr. C. Ot.

<p> Error to Miller County Circuit Court. </p>

I. On being divorced from her husband for his fault or misconduct, defendant, Lucretia Thompson, was entitled to an immediate assignment of dower. The natural death of her husband is not necessary under our statute. (Wagn. Stat., 538. § 1; Id., 511, § 11; Dnvol vs. Howland, 11 Mass., 219; Young vs. Gregory, 16 Me., 175; Harding vs. Alden, 9 Greenl., 110 ; Rev. Stat.

I. The warrants were payable from a particular fund, and payment was refused for want of an appropriation. Here, a special .tax is required to pay a special class of debts. Hence, mandamus will lie without a prior judgment. (Dil. Mnn. Corn.. § 686-88; Maddox vs. Graham, 2 Mete. [Ey], 56; State ex rel. vs. Bollinger, 48 Mo., 475 ; Insane Hospital vs. Higgins, 15 111., 185 ; Graham vs. Maysville, 6 Am. Law Reg., 589 ; Comm, ex rel. vs. Pittsburg, 34 Penn. St., 496.) II.

Jlppeal from Lafayette County Circuit Court. I. The note is described in the mortgage according' to its legal effect, and is declared upon in the petition according to its terms. The description in the mortgage was proper (Bvles Bills, [4th Am. Ed.] pp. 65, 66; Muldrow vs. Caldwell, 7 Mo., 563 ; Rambo vs. Metz, 5 Stroub., 108; IJeywood vs. Wright, 14 N. IT., 73); and if the note had been pleaded according to its legal effect and meaning, that would have been sufficient.

Mandamus to St. Louis Criminal Court. I. The judgment entered was neither in form or in fact a nolle prosequi, but one “ setting aside ” the indictment. (See 2 Bonv. L. D., 231; 6 Mod., 261; 2 Mass., 172.) And nolle prosequi being ordered, it was the power and duty of the court to amend the record, so as to conform to the facts. (Priest vs. McMaster, 52 Mo., 60; State vs. Clark, 18 Mo., 434; 45 Mo., 571.) II.

<p> Appeal from Jasper Common Pleas Court. </p> <p>cited Cochrane vs. -Whitesides, 34 Mo., 417.</p>

<p>Schools — Sub-district merged in city for school purposes — Liability of city board for salary owing by sub-district board. — Where, under the statute (Wagn.Stat., ed. 1872, p. 1267, $ 17) a township sub-district becomes merged in ah adjoining town or cityfor school purposes, and the board of education of the municipality iakes possession and control of the school property of the annexed sub-district, the municipal board will thereby assume an obligation previously incurred'by sub-district board for a teacher’s salary. To have that effect no direct promise or agreement of the municipal board is necessary.</p> <p>2. Corporations — Merger—Liability of subsisting for debts of defunct corporation. — Where one corporation goes entirely out of existence by being annexed to or merged in another, if no arrangements are made respecting the property and liabilities of the corporation that ceases to exist, the subsisting corporation will be entitled to all the property, and answerable for all the liabilities.</p>

I. Plaintiff’s equity is beyond dispute. The right of the pre-emption was regularly and legally transferred to him. II. The defendant’s only claim to the right to purchase ■from the company was void; 1st. because the judgment on which it was based was void; 2d. becauseTitterington’s preemption right was not subject to sale, even on a valid execution. III.

Ajypeal from Bates County Cvronit Court. I. The mutual debts and credits existing between defendant and said bankrupts, were proper subjects of set-off. (Bump Bankr., 3d ed. p. 70). And their character was not changed by defendants applying to the register to have them adjusted. II. The doctrine of election is not applied to creditors. (2 Sto. Eq. Jur., 10 ed., p. 334, § 10’92.) III.

Appeal, from Pettis Circuit Court. This action being brought more than ten years after the record of Collet’s deed, is barred by the statute. (Wagn. Stat., 915, § 1; Hunter vs. Hunter, 50 Mo., Mo.) The present statute was intended to embrace all actions whether legal or equitable, and superseded the rules of common law and equity.

I. Defendant Hailey had no notice as to Lawton’s possession, for he never took possession. And the record of the deed to Lawton afforded no notice of infirmities in theinstmment. If it showed anything it showed an unexecuted consideration. II. Plaintiff has no equity. The houses which Lawton was to erect should have been completed within a reasonable time. It is now too late to comply with that agreement.

Jlpjpealfrom Bates County Circuit Court. In Missouri, the “ Commons” were by laws of tlie United States secured to the towns and villages which had a legal existence when the United States acquired said territory. But where the land was unsettled at the date of that change, and was afterwards surveyed and sold according to legal subdivisions, the “ Commons,” as the word was originally, (see 1 Terr.

I. Defendant’s statements as to the title were mere opinions, not statements on which plaintiff had reason to rely. And defendant made no attempt to prevent his examining the records. They were easily accessible, and the failure to examine them was his own negligence.

<p>1. Practice, civil — Suit on note and debt — Judgment rendered on sixth day of term — Setting aside for irregularity — Miscalculation of amount. — In suit where the petition contains two counts, one on a promissory note and one for money loaned, and it does not appear whether judgment is rendered on the first or the second, the rendition thereof on the sixth day of the term, that day not being the last one, is not such irregularity as will authorize setting it aside. Nor would a mistake in computing the amount of the judgment be such an irregularity.</p> <p>2. Attachment — Plea in abatement decided for defendant, what judgment may be rendered after — Residence of defendant, how shown. — Where land is attached by a non-resident of the county, and the plea in abatement is decided for defendant, the case stands as though commenced by summons alone; and it appearing from the sheriffs return that process was served on a member of defendant’s family at his residence in another county, the court has no further jurisdiction. In such case his residence cannot be proved by parol testimony.</p>

I. Defendant purchased at the sheriff’s sale without notice either actual or constructive, of any claims of the partnership, and is an innocent purchaser, and will hold against the firm or its creditors. (Pars. Part., 377 ; Perry Trusts, § 218, and note; Buchan vs. Snmner, 2 Barb. Chy., 198 ; Tillinghast vs. Champlin, 4. R. I., 209, and eases cited.) II.

<p>1. Legislature — Resolution voting extra pay to clerks for night work, of what force. — A resolution of one of tlie houses of the legislature, granting extra pay to clerks for night work, is in violation of the statute 'relating to the compensation of the legislature, (Wagn. Stat., 903, §4; 904, g 6) and not binding on the State officers.</p> <p>1st. The law knows no fraction of days in such cases, and the additional pay, although the work was done at night, was an increase of pel' diem compensation forbidden by those provisions.</p> <p>2d. The statute could not be modified, changed or done away with by the separate action of either branch of the General Assembly.</p>

I. The court erred in ordering the sheriff to summon a jury from the bystanders, not of the regular panel. (Sess. Acts, 1874, p. 96; State vs. Holmes, 54 Mo., 153.) The present case differs from State vs. Pitts, (58 Mo., 556) in this: In that case tlie regular panel of jurors bad been exhausted. In this ease the court, by verbal order, directed the sheriff to summon a jury not of the regular panel.

<p> Appeal from Cooper Circuit Court. </p> <p>cited, Wolfe ys. Marshall, 52 Mo., 167; 46 Mo., 200 ; 2 Den., 26 ; 13 Abb. Pr., 300.</p> <p>cited, Wagn. Stat., 414-15, §§ 28-33; St. Louis vs. Gorman, 29 Mo., 593 ; Cedar Co. vs. Johnson, 50 Mo., 225 ; State vs. St. Louis Co. Ct., 34 Mo., 546; Barton Co. vs. Walser, 47 Mo., 189; Wash. Co. vs. Parlin, 5 Gil., 232; Kell}' vs. Sulan, 9 Mees. & W., 54; 2 Sm. Lead Cas., 542; Reppy vs. Jefferson Co., 47 Mo., 66; Reardon vs. St. Louis Co., 36 Mo., 555 ; St. Louis vs. Alexander, 23 Mo., 488 ; Wolcott ys. Lawrence Co., 26 Mo., 275; Stein ys. Franklin Co., 48 Mo., 167; In re Saline Co. Subscription, 45 Mo.,.52; Cheeley ys. Wiggs, 32 Mo., 398 ; State ys. Clark Co. Ct., 41 Mo., 44; State vs. Cooper Co. Ct., 17 Mo., 507; 1 Sto. Eq., §§ 133-4; Ray Co. ys. Bentley, 49 Mo., 236 ; Parker ys. State, 7 Mo., 194; Marion Co. vs. Moffett, 15 Mo., 605; United States vs. Kirkpatrick, 9 Wheat., —; United States vs. Van Zant, 11 Wheat., 184 ; 44 Mo., 479 ; Boggs vs. Caldwell, 28 Mo., 588; Marion Co. vs. Phillips, 45 Mo., 75; Owens ys. Anderson, 49 Mo., 378.</p>

<p> Appeal from Moniteau Oirouit Cov/rt. </p> <p>cited Woodson vs. Skinner, 22 Mo., 13; Simms vs. State Ins. Co. of Hannibal, 47 Mo., 54; Sedgw. Moas. Dam., pp. 419, 441; Jennison vs. Gray, 29 Iowa, 537.</p>

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

A lease unfairly obtaiiied from a party in possession of the land will not prevent him from contesting the title of the lessee. (Tayl. Land!. & Ten., § 705.) A tenant may acquire and set up a title consistent with that admitted by the demise, as, if he purchased the premises at a tax-sale made during his term. (See Tayl.

<p>1. Practice, civil — Failure to ask instructions — Review of case above, how affected by. — A case may be reviewed on exceptions saved notwithstanding no instructions were asked in the court below.</p> <p>2. Forcible entry and detainer — Defense of homestead entry. — In suit by a landlord fora forcible entry and detainer, a certificate of homestead entry granted to the tenant, cannot be interposed as a defense, because 1st. the title to the property cannot be tried in such proceeding, and 2d. the title so set up would be antagonistic to that of the landlord. Where, however, the tenant procures the title of his landlord either by direct conveyance or through the operation of law, as by tax sale, it may be set up as a defense.</p> <p>3. Husband and wife — Rent of wife’s land — Release of by husband. — The husband has no power, by parol, to release a tenant from payment of rent on the wife’s land.</p> <p>4. Forcible entry and detainer — Jurisdiction of justice as to damages. — In actions of forcible entry and detainer the jurisdiction of the justice, in the maiter of damages, is not limited to three hundred dollars.</p> <p>6. Forcible entry and detainer — Description of property, what sufficient. — In an action of forcible entry and detainer brought in the county of Morgan, the property in dispute was described in the complaint as “South of Osage River,” whereas the county was north of it. But enough was recited elsewhere in the complaint to identify the property with land shown to'be situated in Morgan county. Held, that the words describing it as “South of Osage River” might be rejected as surplusage, and that the description was sufficient for the purposes of that action. Great strictness and accuracy of description is not essential in these complaints.</p> <p>6. Bill of exception — Recital of as to evidence preserved. — Under rule V, of the Rules of the Supreme Court, (48 Mo.) the bill of exceptions need not recite that all the evidence is preserved therein.</p> <p>1, Forcible entry and detainer — Written demand. — In suit for unlawful entry and detainer, no previous written demand for possession of the premises is necessary.</p>

<p>1. Justices' court — Judgment without proper service — Appeal to circuit court— Setting aside of judgment, when proper. — Where a transcript from a justice’s court shows judgment rendered against two or more defendants without sufficient service, the judgment may be dismissed by the circuit court on motion as to those who appeal, but as to parties not appealing such action is improper.</p> <p>2. Texas taMe act, jxirisdiction of justice under. — Justices of the peace have jurisdiction of actions for damages received by reason of the introduction of Texas cattle into this State. (Wagn. Stat., 251.)</p>

Testimony that Bainbridge was president and Phillips cashier of the “Farmers’ and Drovers’ Bank,” is not evidence that the Bank was a corporation. (Welland Canal Co. vs. Hathaway, 8 Wend., 484-5-6 ; Hallowav vs. Memphis, El-Paso and Pac.

I. The Auditor being the general accountant of the State, and responsible tor the maimer in which its funds are disbursed, is not concluded by the certificate of the Governor, from going behind his indorsement of a claim, and passing independently upon its allowance. (Wagu. Stat., 1333, § 10; id., 1334. § 13; State vs. Hinkson, 7 Mo., 353 ; Morgan vs. Buffington, 21 Mo., 549 ; State ex rel. vs. Thompson, 41 Mo., 13; State ex rel. vs. McMurtry, 37 Mo., 176.) II.

<p>1. Measure of Damages — Jury should he given rule as to — Whatnot too remote— Care, exercise of, by party claiming. — In suit for balance claimed as due for construction of a stable, an instruction authorizing the jury to set-olf “ any damages ” which they might find that defendant had sustained, by reason of its defective construction, is improper. The court should lay down the rule As to the measure of damage which they might allow.</p> <p>In such ease injuries sustained by wetting of hay, and having to remove horses and buggies, and resulting from failure to put on a good roof, are not damages too remote to be taken into consideration, but cannot be recovered if the de- , fendant knew of the defect, and failed to protect himself when lie might have done so at a trilling expense,.and by reasonable exertions.</p> <p>2. Building — Defective construction— Waiver of, how shown. — In order to constitute a waiver of claim by the owner against the builder for defects in the construction of a house, not only the subsequent use of the structure, but knowledge of and acquiescence in the defect must be made to appear.</p> <p>3. Contract for building house— General compliance, except as to some particulars— Measure of damages in case of fair contract price, and no claim for special damages. — In suit for the contract price of a house completed in general conformity with the agreement, but defectively executed in some particulars, where the contract price is a fair valuation for the work, and defendant does not claim recoupment for any special consequential damages, the correct rule is to allow him the difference between the value of the work agreed to be done and that actually done.</p> <p>4. Building contract — Non-compliqnce with as to plan or material — Measure of damages. — Where a building lias been completed, but differs in plan of construction or materials employed from that which the builder contracted to erect, and this is the only element of damage, and there has been no waiver, the true rule for estimating the damage is, to ascertain'what it will cost to make the building conform to the contract. And the same principle of compensation applies, whether the work has been fully completed and the suit is for the contract price, or is only partially performed, and the action is for the value of the labor and materials. And the statement of the rule will vary accordingly as the work to be done may be worth more or less than the contract price.</p> <p>Cases may arise where the deviation from the terms of the contract would be so gross and reprehensible, that the builder should not be permitted to recover anything for his work.</p>

I. The indictment is insufficient, and no testimony could be introduced under it, and defendant could not be convicted •upon it. II. The bouse burned was, quoad the indictment, the house of the defendant, and it was not arson if lie burned it. The language of our statute, “the house of another,” is the language of the common law definition of arson, viz: “ the willful aud malicious burning of the house of another.” (4 Blackst. Com., 220; Whart. Am. Crim. Law, § 165S ; Bisli.

<p> Error to Cooper County Circuit Court. </p> <p>cited Dil. Mnn. Oorp., § 55, and note I, and cases therein referred to ; Id., §§ 58 & 60, and notes ; St. Lonis vs. Poster, 52 Mo., 513 ; Buggies vs. Collier, 43 Mo., 352 ; Sliehan vs. Gleason, 46 Mo., 100; 36 Mo., 546.</p>

<p>1. Land — Purchase of, under inducement from onehaving prior claim — ‘When does and when does not work es loppel — Sill in equity for title — Interest— Writs of possession — Agency.—A. purchased land at execution sale which the debtor in the execution held under a bond for title from B., but for which he had not paid. 0. with the consent of A. and under an agreement with him to pay the sheriff the amount bid by A. at the execution sale, paid the purchase money to B. and obtained the legal title, but failed and refused to pay the sheriff, and judgment was obtained against A. for the amount of his bid. Held, that. A. on payment of the amount paid by C. to B. was entitled to a decree vesting the legal title in him.</p>

<p>1. Contract — Street grading, subscription to pay for — Consideration, what sufficient. — Certain sums were subscribed to induce a contractor to complete the grading of a street in Kansas City, begun under u contract with the city ; and. in consideration of that agreement the contractor made a settlement with the citv for the work then done, and entered into engagements for its completion, which arrangements and expenditures he was not obliged, under his contract with the city, to make, and which were necessarily productive of loss and injury, in case of non-payment of the subscription. Held, that the consideration was amply sufficient to support an action for the amounts pledged.</p>

<p> Error to Moniteau County Court of Common Pleas. </p>

<p>1. Wilts, sail contesting — Evidence—Rebuttal—Additional testimony in corroboration inadmissible, when. — In suit contesting the validity of a will, after, defendants have made out their prima facie ease in favor of the will, and plaintiffs have introduced their testimony contra, and the proofs have been offered by defendants in rebuttal, plaintiffs shouldnot be permitted to afterwards bring in additional testimony in corroboration of that already oifered; and this rule should be enforced especially when the testimony is in the nature of opinions based upon observation, or those of experts on hypothetical eases, as, where the sanity of the testator is in issue.</p> <p>2. Evidence, introduction of, discretion of court as to. — The introduction of testimony out of its order is, as a general rule, a matter resting largely in the discretion of the court.</p> <p>3. Wills — Endue influence of wife. — The mere fact that a will is changed to gratify the wishes of the wife, is not proof of undue influence on her part.</p> <p>.4. Wills — Division of property under — Decay of faculties — Proof as to. — Where testator having children by two marriages, by his will left the greater portion of his property to those by his last wife, reciting that advancements equal to the</p> <p>: difference had been made to the older set, and suit was brought to set aside the will on the ground of mental incapacity, proof that five years before he had made another will, distributing Ms property equally among all his children, without evidence that no such advancements had been made, was held not sufficient to lay the foundation for an inference that between the dates of the wills his faculties had been failing.</p> <p>S. Wills — Sanity .of testator, medical speculations as to. — Where the mental condition of a testator is thoroughly established aliunde, medical speculations feinting thereto are entitled to but little weight.</p>

I. The court-below erred in overruling the application for a continuance. T-liis court will interfere with the action of the court below .in overruling applications for continuance when the discretion of the lower court has been exercised unjustly and unsoundly. Such is the present case. (State vs. Klinger, 43 Mo., 127 ; see also, 6 Gill & Johns.. 269 ; 6 Vt., 496 ; 3 Wliart. Cr.

I. Instruction number six given for plaintiff, was erroneous. The answer set up an equitable defense based on fraud. And the instruction declared that, if defendant did not interpose this defense within ten years after the commission of the fraud, the defense would not avail.

<p> Error to Osage County Circuit Court. </p>

<p>I. Contract, work received by Stale after expiration of — Estoppel.—Where certain book binding, commenced under contract with the State, was not completed till after the contract had expired, but the whole work was received by the State without objection, the State was held liable for the price of the whole work.</p>

I. Section 7, of the act of 1853, (Sess. Acts 1853, p. 127; see also, R. C. 1855, p. 412, § 7) allowing the directors to forfeit stock for non-payment of subscriptions, being omitted from the revision of 1865, was repealed. (Wagn. Stat., 896, § 2.) And as the forfeiture was declared in 1870, it had no force. Even were the law valid and subsisting, the proceedings necessary to forfeiture were not adopted.

<p> Error to Franklin County Circuit Court. </p> <p>cited Gibson v. Chouteau, 13 Wal., 92, and Langdon vs. Haws, 21 Wal., 521.</p>

<p> Jtppeal from Jasper County Court of Common Pleas. </p> <p>cited "Wagu. Stat., 1216, § 19; Callaway Co. vs. Nollev, 31 Mo., 397 ; Ray Co. vs. Bentley, 29 Mo., 236; Cedar Co. vs. John- • son, 50 Mo., 227; 13 Wall., 301; Wagn. Stat., 887, § 1; St. Charles vs Powell, 22 Mo., 525; Wagn. Stat., 108, §§ 5, 6; Id., 887, §§ 3,1 and 5 ; Id., 1010, § 23; Id., 1246, § 19.</p> <p>relied on . Cedar County vs. Johnson, 50.Mo., 225.</p>

<p>1. Newton Go. Common Pleas Court- — Attachment suit. — Section 12 of the act establishing the common pleas court of Newton county (Adj. Sess. Acts 1872, p. 297) gave it jurisdiction of suits by attachment.</p> <p>2. Practice, civil — Evidence, weight of. — In a civil action at law this court will not determine the weight of evidence.»</p> <p>3. Change of venue — Consentía, need not be inwriting. — The consent of parties to a change of venue need not be in writing and under seal.</p>

The contract was made on Sunday in violation of the statute, and is illegal and void. (Wagn. Stat.. 504, § 32 ; Barnard vs. Lapping, 32 Mo., 341; Peitz vs. Long, 40 Mo., 532; 1 Pars. Oont., 458 ; 24 N. Y., 353 ; Myers vs. Meinath, 3 Am. Rep.. 368, and notes ; Hill vs. AVilkee, 5 Am.

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

Plaintiff acquired title to all alluvion, whether formed by accretion or avulsion, if permitted to cement to plaintiff’s islands. (3 Wash. Real Prop., 59; Ang. Wat. Cours., 60; Trustees, &c. vs. Dickerson, 9 Cush., 454; 5 Pet., 467 ; Ang. Wat. Cours., 54.) The second instruction asked by the defendant should have been refused. Aichough the Missouri River is, by act of congress, declared a ‘common highway,” and in fact navigable, it is not in law a navigable stream.

I. It is the making of “such second deed,” etc., having previously made another, which is outstanding and in force, and' omitting to recite such'former in such subsequent deed, etc., £;with intent to defraud,” that is dénounced in and prohibited by the statute.

I. Defendant bought the mill and dam long after the same was erected, and defendant did not heighten it, nor. is there any proof that plaintiff gave defendant notice of the injury with a special request to remove said dam before the bringing of this suit. (Ang. Wat. Cours., § 408; 1 Hill. Torts, 621, §26.) II. -The court erred in refusing defendant’s instruction numbered four. (6 Mo., 228).

<p> Appeal from Bates Circuit Court. </p> <p>cited, Morris Replev., 77; Gray vs. Parker, 38 Mo., 160; Pilkiugton vs. Trigg. 28 Mo., 95 ; Cross vs. Hulets, 53 Mo., 397; Kaufman vs. Schilling, 58 Mo., 218.</p> <p>cited, Kaufman vs. Schilling, 58 Mo., 218; Henderson vs. Lauck, 21 Penn. St., 359; Young vs. Miles, 20 "Wis., 646 ; Kimberly vs. Patehin, 19 N. Y., 330; Inglebright vs. Hammond, 19 Ohio, 346 ; Ryder vs. Hathaway, 21 Pick., 304-5 ; Eldred vs. The Oconto Co., 33 Wis., 141; Gardner vs. Dutch, 9 Mass., 407.</p>

I. The widow had dower in the lot under section 5, Wagn. Stat.. p. 589, amounting to one-lialf. The defendants stand in the same relation to plaintiffs in this action as Mary J. Browning would, if she were defendant, for they went into possession under her deed, and made improvements on the lot II. But the absolute title was transferred to Mary Browning by the order of the probate court, pursuant to § 15, p. 113, Wagn. Stat.

<p> Appeal from Osage County Cireuit Court. </p> <p>cited Wagn. Stat., 1097. §§ 15, 16, 17, 19, 21, 22 and 23 ; Fanny vs. State, 6 Mo., 122 ; Lewin vs. Dille,17 .Mo., 61; ITuthsing vs. Mans, 36 Mo., 101; State vs. Worrel, 25 Mo., 205.</p> <p>cited State vs. Pitts, 58 Mo., 556</p>

<p> Appeal from Jásper County Circuit Court. </p> <p>cited Lunsford vs. Mine La Motte, 54 Mo., 426.</p>

<p> Error to Lawrence County Circuit Court. </p>

<p> Appeal from Jackson Oouniy Circuit Court. </p> <p>cited in argument, Hedden vs. Overton, 4 Bibb., 406 ; Griffin vs. Sheffield, 38 Miss., 361; Jones vs. Martin, 16 Cal., 165 ; Snead vs. Ward, 5 Dana., •187; Smith vs. Dill, 13 Cal., 510; Switzer vs. Knapp, 10 la., 72 ; Hasting vs. Vaughn, 5 Cal., 313 ; Fort vs. Burch, 6 Barb., 60; Ang. & Am. Oorp., § 217, p. 202,4 ed., eh. 7; Savings Bank vs. Davis, 8 Conn., 191; Hatch vs. Barr, 1 Ohio, 390; Marrow vs. Brock, 12 111., 273.</p>

<p>1. Practice, civil — Motion, in arrest — Time of filing. — A motion in arrest filed after the final adjournment of the term at which the judgment is rendered, is too late. ■></p>

<p>1. Criminal law — Self-defense—Stabbing assailant hi self-defense, when justifiable — Instructions as to, what improper. — Where one has reason to apprehend immediate danger that a felony will be committed upon him, he may use whatever force and violence are necessary to protect himself, even though in the fray he wound his assailant with a deadly weapon. And it is not necessary to ■ his justificaiion that a felony was in fact about to be committed. As to whether he was, under the circumstances, justified in employing the weapon, and the measure of violence used, is a question to be passed on by tho jury or the court of review. But an instruction telling the jury that it was felony for one person to strike another with a stick of a designated length and thickness, if the blow was given, or attempted to be given, in such a manner as to inflict great bodily injury, was held improper, and offering a dangerous immunity to assaults under the plea of self-defense.</p> <p>2. Instructions should apply to the proof. — An instruction abstractly correct, but inapplicable to the case, is improper.</p>

<p>I. Bailment — Sale of property in possession of bailee — Change of possession, what necessary. — Where one has delivered a chattel, with authority conferred on the bailee to sell it and credit the amount on a debt owing by himself to the bailee, the bailor may afterward and before such sale is effected, sell the same chattel to a third party and vest in him a good title.. And the sale will convey an immediate and valid title, notwithstanding that, at the time, the possession is in the bailee, and that no formal delivery is made by him to the purchaser. In the sale of personal property, it is not necessary that the vendor should be in possession at the time. And the possession of his agent or bailee after the sale, is the possession of the. purchaser.</p>

<p> Appeal from Dade County Circuit Court. </p>

<p>1. Promissory note, given to compound felony — Allegation in suit on note before justice of the peace. — A note given for the purpose of preventing a criminal proseeution is against public policy and void. And in a suit before a justice, no pleadings being required, it is unnecessary to allege that the crime had been committed, and that the payee at the time of taking the note for such consideration knew of the fact of its commission. It is sufficient if these facts appear upon trial.</p>

The county of Bates, for a valuable consideration admitted by her to have been paid, undertook to convey the property by a proper description to Leonard Dodge, through whom plaintiffs claim. Though in a court of law the description was defective, yet in a court of equity, which deems as done that which the party agreed to do; the grantee had title to the land intended to be described, and as against Bates county, was entitled to have the mistake corrected.

<p> Appeal from Greene County Circuit Court. </p> <p>Tiie right to change of venue and its requirements are purely statutory, and defendant has complied in all respects with them. (See Wagn. Stat., 1356, §§ 1, 2 and 3.)</p> <p>This case is not that of ex parte Cox. (10 Mo.. 713.) In case of an ordinary verdict, the evidence is in the breast of the court, and on change of venue, it must all be re-heard. But that taken before the referee is in writing, and alike open and accessible in any court, and may be passed on as easily by one court as by another.</p> <p>This reference was not by consent, but involved the examination of a long account. The statute (Wage. Stat., 1011, § 18) makes such'reference for the information of the court only. And this does not preclude either party from, other rights conferred by the statute.</p> <p>The application for change of venue, after finding and report of referee, was properly overruled. See Ex parte Cox, (10 Mo., 712) in which case the learned judge says: “There can be no doubt, however, that it never was contemplated that the progress of a suit could be interrupted at any period by such applications.”</p>

I I. Yancy, having after judgment conveyed to Mrs. Dixon, had no longer any interest in the sale of the land, and Mrs. Dixon being no party to the record, and having acquired whatever claim she had after judgment, and subject to the lien thereof, neither she nor Yancy had any right to move to set aside the sale. (Hicks & Hammond vs. Perry, 7 Mo., 846.) II. Section 30, p. 608, Wagn.

<p>1. First National Bank of Jefferson City vs. Holliday, State Auditor, ante p. 229, affirmed.</p>

<p>I. Limitations — Absence from the State — Change of residence by family. — Where one departs from the State, leaving a residence therein, and afterwards his family abandon that dwelling place and remove to the house of a relative in another county, he will be held to have no usual place of abode within the State, where service may be had upon him, and under a proper construction of § 16, Art. II, of the Limitation law, the statute will cease to run in his favor.</p>

<p>1. Promissory notes — Agreement as to interest — When, payment of not annual— Parol evidence to vary terms of note. — Where a note by its terms was made payable in a given number of years, ‘‘with interest from date at the rate of ' eight per cent, per annum,” held</p> <p>1st. On the face of the instrument the interest was payable not annually, but at maturity of the note ;</p> <p>2d. The words used in reference to this point, were plain and capable of legal construction, and such being the case, parol evidence to contradict that construction would be improper.</p> <p>3d. Where the note was secured by a mortgage, authorizing sale of the mortgaged property in default of payment of the note and interest as they became due, a sale of tlie property before maturity of tire note, for non-payment of interest, would be void, at least as a foreclosure of the maker’s right to redeem on payment of the debt and interest when they matured.</p> <p>2. Written Contracts — Intention gathered from instrument. — A written instrument should be construed according to the intention of the parties; but when it is capable of interpretation, the intention will be gathered from its terms.</p>

In this case no notice of acceptance was neeessaiw. The contract was complete at the time defendants signed it.- It was absolute'oil it,s face. It created an original liability on their part. There is a distinction between a mere offer to guaranty, and an absolute guaranty, and this distinction is recognized in all the cases decided by this court.

<p>1. •Constitution — Actof March, 1875 — CasesiaTcen by appeal out of their districts. —Under the late constitution of this State (Art. IV, $ 5) causes cun he docketed and heard only at the session of the Supreme court held in tire district wherein they originated. And the act of March 27th, 1S75 (Sess. Acts 1875, p. 106) in so far as it authorizes cases to be taken out of their respective districts, is invalid.</p>

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

<p> Appeal from Jasper County Circuit Court. </p>

I. The verdict did not find on the issue of the case, lmt found $1.50 for horses and $25 for damages : the issue was, did the property belong to Mills? It should have been treated as a nullity. II. The amount of property involved was beyond the jurisdiction of a justice of the peace, and the motion in arrest ought to have been sustained for want of jurisdiction. (Wagn. Stat., 807-8, §§ 2, 3 ; Butler vs. I'vie, 30 Mo., 478.) I. The statute (Wagn.

I. In presenting a judgment for allowance against an estate. the same notice to the administrator is required as in the presentation of other demands, and if it be not given or waived, the allowance is illegal and void. (Bryan vs. Mvmdy, II Mo.. 459 ; see also, Brooks vs. Duckworth, 59 Mo., 50.) II.

<p> Error to Osage County Circuit Court. </p> <p>Tbe period of limitation against demands can only avail the administrator when he has given the notice in the manner and with the time prescribed by law. (Wagn. Stat., 86, §19; Bryan vs. Mundy, Adm’r, 1Y Mo., 556; Wiggins vs. Green, Adm’r, 9 Mo., 264; 13 Mo., 125; Emmerson vs. Thompson, 16 Mass., 434; McLinn vs. McNamari, 2 Dev. & Bat., 85; Pendelton vs. Phelps, 4 Day., 4Y6.)</p> <p>I. The notice states the facts of the granting of letters, their date, and to whom granted, and requires parties to procure allowance of their demands. This is sufficient. (Merchants’ Bank vs. Ward’s Adm’r, 45 Mo., 310; see also, 1 Gall., 41; Y Cr., 506; Greenabaum vs. Elliot, 60 Mo., 25.)</p> <p>The notice need not state the law or their rights.</p> <p>The notice is right, and the difficulty arises out of a disregard or a confounding of the words “exhibit” and “present,” as used in the statute. The exhibition must be within the two years, (Wagn. Stat., 102, § 2.) and the presentation within three years. (Id., § 6.)</p>

<p>1. Statute of frauds — Memorandmn.—Letter addressed to a third party. — Under a proper construction of the statute of frauds (Wagn. Stat., 656, g 5) a writing signed by the party sought to be charged, although in the form of a letter addressed to a third party, is a sufficient “memorandum,” if explicit enough as to the terms of the contract.</p>

I. The refusal of the court, at the return of the order of publication, to make the order of sale, left the notice thereby given functus officio, and the order at the November term following, to sell at private sale of any kind, and the sale thereunder at the same term, were absolutely void.

<p>1. Statute of frauds — Promise to pay one’s own debt, etc. — Where a debtor by the direction of his creditor agrees to pay the amount to a third person to whom the creditor is owing a like sum, the promise is a direct undertaking of the debtor to pay his own debt, and need not be in writing.</p>

<p>1. Common Pleas court — Clerical mistake in judgment — Relief in Equity. — Where a Common pleas court, invested by the statute with general jurisdiction concurrent with that of the circuit courts of this State errs in calculating the amount of a judgment, equity will grant relief at a subsequent term. (Wilson vs. Boughton, 50 Mo., 17.)</p>

I. The plaintiffs intended to, and did, at the time of these suits, abandon their mortgage, and they ought now to be allowed to renew their lieu. A mortgage may be discharged or waived by the acts of the parties. (2 Hill. Morfc., 513.) If the mortgagee sell the property on execution or attachtachment he waives his lien.

<p>1. Bills and notes — Transfer of negotiable paper without indorsement, effect of. —A note negotiable by indorsement, but not indorsed in fact, and transferred simply by delivery, is open to equitable defences in like manner with non-negotiable paper.</p> <p>2. Note by infant — Disaffirmance—Liability of sureties. — Where an infant gives his note for land purchased, and at his majority disaffirms the contract, the sureties on Ins note will not be liable.</p>

<p> Error to Cole Circuit Court. </p> <p>I. The petition in this case discloses the fact that the property was the homestead, and that the widow was interested in it; hence she was bound to pay the taxes. (Whalley vs. Whalley, 50 Mo., 577 ; 57 Mo., 135 ; Elliott vs. Lemon, Cent. Law Jour., vol. 2, p. 227; Wilcox vs. Smith, 26 Barb., 326 ; 45 Barb., 188-9.)</p> <p>II. If, as charged, it was defendant’s duty to pay the taxes, it was the defendant’s debt, and plaintiff could not, by paying them, make defendant her debtor. (2 Greenl. Ev., §§ 107, 113 ; Pars. Cent., ed. 1864, 499, 470.)</p> <p>III. The petition does not sufficiently set forth compliance by the collector with statutory requirements. (Brookfield vs. Carter, 55 Mo., 310.)</p>

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

Barton County Circuit Court. An appeal from the judgment of the circuit court upon the plea in abatement will lie in this cause, as no appeal was prayed for nor allowed till after the trial upon the merits. The cases cited by the respondent on this point are not applicable to the state of facts as presented by the record in this cause. There was in this case a final judgment. (Wagn. Stat., 1051, § 1; 1059, § 9.) An appeal will not lie from a judgment on a plea in abatement.

A note given by a debtor for a pre-existing debt is no payment, unless the creditor expressly agrees to take it as payment, and to run the risk of its being paid. “ Nothing is considered as an. actual payment which is not in truth such.” (McDonald vs. Hulse, 16 Mo., 508; See also, Hil. Mortg., 4th ed., p. 476.) There is in this case but one point, and that is, was the note given by Clary to French paid off and discharged by that given to Cowles?

<p> Jippcal from Lawrence County Circuit Court. </p>

<p>1. Equity — Relief, how effected by ihe statute of limitations. — Mere lapse of time, short of ihe period fixed by the statute of limitations, will not bar a claim to equitable relief where the right is clear, and there are no countervailing circumstances. I11 doubtful cases, long or unreasonable delay may sometimes turn the scales.</p> <p>2. Equity — Bill to set aside sale under mortgage foreclosure by a sheriff en masse —Averments, what necessary on part of plaintiff. — Suit was brought by the mortgagor to set aside a sale of the mortgaged property, made by the sheriff, under a foreclosure, on the ground that the property was sold in bulk instead of separate parcels, and thereby realized an inadequate price. The suit was brought nine years alter the sale, and plaintiff stated, that he had no knowledge of the sale in time to move to set it aside. No further facts explanatory of the time of bringing suit appeared. Held as follows :</p> <p>1st. The petition was not demurrable on the ground of staleness of the claim. ■ Tiie suit was brought within the period covered by the statute of limitations, and that statute applies to actions in equity as well as law.</p> <p>2d. The burden devolved on defendant to justify the sale in the manner adopted. Hence, it was unnecessary for plaintiff to aver that he did not desire or direct the sale of the property in mass.</p> <p>3d. Being made by the sheriff under a fieri facias, (Wagn. Stat., 965, § 10) the sale was governed by the statute touching such sales, (Wagn. Stat., 608, § 30) and lienee, defendant could not maintain that that officer was merely trustee under the mortgage, and subjected to no other measure of responsibility for the maimer of sale and the amount realized.</p> <p>4th. Plaintiff was not required to allege fraud, nor,</p> <p>5th. That the different parcels of land were fitted for separate use, or that any one proposed to buy any separate parcel of it.</p> <p>6th. The petition might embrace a claim for rents and profits of the property, without being multifarious, and also, a claim for damages, by waste, to the freehold, as an incident to the main relief sought.</p> <p>Pee Sheewood, Judge.</p> <p>3. Laches — Demurrer—Limitations, statute of — Bill in equity. — The laches of plaintiff was apparent on the face of the petition (see statement in head note 2), and that pleading was faulty in not negativing or excusing the same; but it was not fatally defective for that reason and the specific objection not being pointed out by demurer, could not afterward be heard. The doctrine of laches in suits in equity is unaffected by the statute of limitations ; certainly within the period it prescribes.</p>

<p>1. Mechanic's lien — Filing of petition — Institution of action. — Where, in suit, on mechanic’s lien, the petition is filed within ninety days after the filing of ihe lien, the action is commenced within the meaning of the statute (Wagn. Sint., 911, $ 16) and the lienor is not barred, although the writ is issued subsequent to that period.</p>

<p>1. Justices' courts — Suit for money paid on written orders — Statement, what should be shown by. — In suit before a justice for sums paid on written orders addressed to plaintiff by defendant, on which orders sundry bills of goods are sold to different parties, if plaintiff file a statement setting out separately the several orders, that is sufficient. He 13 not required to insert in his statement an itemized account of tile goods so delivered.</p>

Jljyjyeal from Franklin County Circuit Court. I. The holders of the bill exercised due diligence. It was' an inland bill of exchange, possessing every quality of negotiability ; and all the diligence required of the holder was the ' due presentment, demand and protest. Stille knew of its dishonor; Jackson & Company were his factors and agents, and the case stands exactly as if Grube had drawn on him and he had accepted and dishonored the bill..

<p>1. Indictment — Numbering of counts — Election of Prosecutor — Verdict—Error.— Au indictment contained twenty-one counts, which were not numbered at the time of its filing, and for convenience sake they were numbered in couples, so that the seventh and eighth were marked “4th,” and on the counts so marked the prosecuting attorney elected to proceed. But the court, disregarding this mark, designated them on the margin of the indictment as “4th” and “6th,” and instructed the jury that they could find against the prisoners only on those counts. However, it appeared that the designation by the court was clear and unmistakable, and was understood by the jury, and that their verdict was founded upon the counts so designated. Held, that the case showed no error.</p>

Louis Circuit Gourt. I. Plaintiff should have moved for a special venire for country jurors. Failing to do this, he must be held to have waived it. (Rose vs. St. Charles, 49 Mo., 509.) II. All exceptions to the jury were likewise waived by his course in proceeding with the trial. If he intended to stand by his exceptions, he should have taken a non-suit with leave, etc. In an action against an incorporated city, the inhabitants are not competent jurors.

Uppeal from St. Louis Circuit Court. Plaintiff was bound, in order to make out bis case, to show that the locus in quo was a highway, and 2nd, that the abutting land was defendant’s property. Although the tax bill proved the facts prima facie, plaintiff was bound to put in all his evidence relating thereto, together in chief, and could not introduce it piece-meal. If not introduced in mak- , ing out his case, it is lost to him, except by grace of the court.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. This was not a suit on a special contract. The petition was not founded on the contract at all. (Marsh vs. Richards, 29 Mo., 99.) The special agreement was merely inducement. (Bovd vs. Camp. 31 Mo., 163.)</p> <p>II. Supposing the materials were not furnished in accordance with the contract, defendant, having accepted and used them, is liable for their actual value. (2 Pars. Oontr., Part. II., § 5 ; Teats vs. Ballentine, 56 Mo., 530.)</p> <p>The decisions of our Supreme Court conclusively show that if a suit is brought on a special contract, and no quantum meruit count stated in the petition, and no variance of the contract or its terms shown to have been agreed upon between plain'tiff and defendant, and plaintiff fails to show a strict compliance with the terms of the contract, or a legal excuse for its non-perfertuance, that in such case the plaintiff is not entitled to recover. (Helm vs. Wilson, 4 Mo., 41; Lee vs. Ash-brook, 14 Mo., 37S; Downey vs. Burke, 23 Mo., 228: Lowe vs. Sinklear. 27 Mo., 309; Marsh vs. Richards, 29 Mo.. 99; Creamer vs. Bates, 49 Mo., 523; Teats vs. Ballentine, 56 Mo., 530; Cutter vs. Powell, 2 Smith Lead. Cas., p. 44: Morford vs. Martin & Ambrose, 6 Mon., 609; S. C., 3 J. J. Marsh, 89 ; Taft vs. Inhab. of Montague, 14 Mass., 282 ; Gregory vs. Mack, 3 Hill, [N. T.] 380.) ‘ ■</p>

<p>1. Damages — Injuries resulting from orders of superintendent-Such officer not fellow servant. — Where injuries to servants or laborers happen through the negligence or misconduct of a fellow-servant, no action therefor will lie against tlie master, unless the fellow-servant is'not possessed of ordinary shill and capacity in the business entrusted to him, and unless his employment is attributable to the want of ordinary care on the part of the master. But where the injury results from the orders of a superintendent appointed by tire company, and having entire supervision and control over the work, and power to employ, direct and discharge the laborers, the rule does not apply. Such superintendent is not a fellow-servant but the agent of the company, and his acts are the acts of his principal. And this is true, although the superintendent engages in the same work with the laborer.</p>

Louis County Circuit Court. The petition simply alleges, as a breach of the bond, that Bolhofner suffered and permitted liens to be filed, without averring that plaintiff was obliged to pay, or did in fact pay a dollar on account of liens. In declaring on a penal bond, plaintiff must assign breaches specifically, showing particularly in what manner the covenant has been broken. (Steph. Plead., 337; Langford vs. Saaggr, 40 Mo., 160.)

•Appeal from St. Louis Circuit Court. I. The statement filed by plaintiff and claimed to be a lien constituted no mechanic’s lien upon the premises in question, because they are four distinct and separate houses divided from each other by fences, and erected upon separate lots of ground. (Dallas Lumber & Manf. Co. vs.Was. ~W. Manf.

<p>1. Partnership — Transfer of interest in, amounts to mortgage, when — Subsequent powers of mortgagor in firm. — By the conditions of an agreement a member transferred his interest in a firm as a collateral security for the payment of a debt; but the transfer contemplated a continuance of his interest and authority in the firm. Held, that the instrument was merely a mortgage and did not effect a dissolution of the partnership; that he could agree to a dissolution and to an appraisement and inventory to ascertain his final interest; that his co-partners might take the stock at the value so ascertained, they being liable as trustees for the proceeds, and responsible for any fraud or unfairness in the arrangement as in an ordinary sale for payment of debts.</p> <p>2. Partnership — Sale of assets by court of equity. — When partners cannot agree, a court of equity on proper application will order a sale of the property in order to ascertain its value.</p> <p>3. Costs — Discretion of court in reference. — Where in suit on account defendant denied plaintiff’s right to recover and claimed a judgment for a certain sum in his own behalf, and the cause was referred and judgment given for plaintiff, the court was held to have no discretion to charge a portion of the costs to plaintiff. Section 18 of the chapter on costs (Wagn. Stat., 344) has no application to such case.</p>

Louis Circuit Court. I. The plaintiff’s lien attached at the time when the buildings were commenced by him, and no subsequent conveyance by the defendant could divest plaintiff of his lieh. Held: that where, under the provisions of the mechanic’s lien law of that State, a lien is filed for work done and materials furnished for a number of adjoining buildings all owned by the same person, as against the owner, they can all be treated as a single building.

Louis Cit'cuit Court. I. The defendants must use proper care in order to see that the floors are of sufficient strength to support any machine, 'which it was necessary to move over or upon them. (Cooper vs. Hamilton Manuf. Co., 14 Allen, 193; Devitt vs. Pac. R. R.. 50 Mo., 302; Coombs vs. New Bodf.

<p>1. Township organization law — County Clerk's fees for duplicate tax bills under —Liability of State for. — Wherein counties having adopted the township organization law, the county clerk makes out duplicate tax bilis or vouchers for the use of the township collector, the State cannot be held for any proportion of the fees specified in ¡S 246 of tire general revenue law; (Wagn. Slat. 1872, pp. 1213, 1214) for services so rendered. (See township organization law, Sess. Acts 1873, pp. 118, 119, \\ 11, 16, 17, and compare same with Ibid., pp. 122-3. I 1.)</p>

<p> Error to St. Louis Circuit Court. </p> <p>The conductor was the agent chosen by defendant to manage-and control the work, and plaintiff was acting in a subordinate capacity. He, therefore, bad a right to rely on his representation. If lie did, lie is entitled to recover; and, whether he did or not, was a question for the jury.</p> <p>Plaintiff knew of the condition of the rope, and took the risk. (Devitt vs. Pac. R. R., 50 Mo., 305.)</p> <p>Nothing shows negligence on the part of the company in the employment of servants.</p> <p>See generally, Gibson vs. Pacific R. R., 46 Mo., 169.</p>

Louis County Circuit Court. I. There was a legal obligation on the part of the Atlas Life Insurance Company, to fulfill its contract for the term of five years — that is, to employ and keep the appellant in their employment for that period of time. This is the legal implication of .the contract, although not expressed. II. Neither inability or insolvency constitute a legal excuse for the non-performance of a contract.

Jlppeal from St. Louis Circuit Court. After the final settlement, the power of the court over the administrator’s accounts ceases. (Collins vs. Stephenson, 12 Mo.. 178, 182.) Hence the action of the court in entertaining a claim by Mrs. Huekstep, and makingan allowance therefor, was ‘•'coram non judice and the validity of its proceedings may be questioned in a collateral proceeding.

<p>1. Guardian — Final settlement by, without notice, has what effect. — May be attached,, how. — In suit against the sureties on a guardian’s bond, defendants may attack a settlement by him, admitting a certain amount to be in default, the settlement being made without the notice and filing of an exhibit of accounts between himself and his ward, required by the estate in case of final settlement. (Wugn. Stat., 68, § 48.) Such statement lias only the force and effect of an annual settlement. It is for that reason not a judgment, and is subject to examination aud correction in such a suit.</p>

<p>1. Fees of sheriff for committing to jail, when authorized, when not. — The statute allowing sheriffs a fee of one dollar “for committing any person to jail,” (Wagn. Stat., 626, § 14) does nor contemplate cases where the prisoner is arrested under a capias, and for default of bail is committed by the sheriff to the county jail to await examination. The words quoted relate to the execution by the sheriff of an order or warrant of commitment made or issued by some officer exercising judicial functions.</p>

<p> Appeal from, St. Louis Court of Appeals. </p> <p>cited State vs. Bryant, 55 Mo., 79; State vs. Wyatt, 50 Mo., 310 ; State vs. Ostrander, 30 Mo., 17-20 ; State vs. Smith, 53 Mo., 271; Sloan’s Case, 47 Mo., 604; State vs. Dunn, 18 Mo., 224 ; State vs. Haves, 23 Mo., 324; State vs. Holme, 54 Mo., 161; State vs. Underwood, 57 Mo., 49 ; State Const., Art. I, § 18 ; Id., Art. YI, § 26; Lemon vs. State, 6 Am. Eep., 293; 5th Amend, to U. S. Const.</p> <p>cited in argument, State vs. Jones, 20 Mo., 59 ; State vs. Dunn, 18 Mo., 421; State vs. Holme, 54 Mo., 153 ; State vs. Hays, 23 Mo., 287 ; State vs. Stan1, 38 Mo., 270 ; Green vs. State, 13 Mo., 383 ; State vs. Byrne, 24 Mo., 151.</p> <p>cited in addition, Wagn. Stat., 420, § 15; Id.; 1090-91, § 27; State vs. England, 19 Mo., 308; Greeson vs. State, o How., [Miss.] 33; Williams vs. State, 30 Tex., 404; MeBean vs. State, 3 Heisk. [Tenn.] 20 ; Dntell vs. State, 4 Greene, [Iowa] 125 ; 65 N. Car., 463 ; Wise vs. State, 2 Kans., 419 ; Woodsides vs. State, 2 How., [Miss.] 33 ; State vs. Hudson, 59 Mo., 138 ; State vs. Schoenwald, 31 Mo., 147.</p>

<p> Error to St. Louis Circuit Court. </p> <p>cited Crockett vs. Morrison, 11 Mo. 3 ; Dale vs. Eaivre, 43 Mo., 556 ; Fugate vs. Pierce, 49 Mo.. 441; Bledsoe vs. Simmons, 53 Mo., 305 : McDonald vs. Schneider, 27 Mo., 405.</p>

vifpeal from Si. Louis Circuit Court. I. This being a suit upon an instrument of writing under seal, plaintiff had ten years within which to bring his action. (Martin vs. Knapp, 45 Mo., 48.) II.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. The tender was not made to the holder of the notes (Cripples.) although he was known to the plaintiff and known to be the holder, and his residence andplace of business were known. Plaintiff’s agent, Keely, was informed that Krum & Patrick were not authorized to receive payment of the notes, and that they were not in their hands for collection. (See Berthold vs. Reybnrn, 37 Mo., 580; Smith vs. Keels, 15 Rich. [S. C.], 318.)</p> <p>Plaintiff failed to secure the benefit of his tender, if any, by not paying the money into court. (Daughdrill vs. Sweeney, 41 Ala., 310.)</p> <p>In this case by the very terms of the deed of trust, the trustee, in case of default in the payment of either of the notes, was authorized to sell. There is therefore no question touching his authority to advertise the property for sale. (Reddick vs. Gressman,49 Mo., 382.)</p> <p>Certainly, he incurred an expense (cost of advertising) and he was entitled to compensation for what he had done. But the debtor, at no time, offered to pay the costs and charges of the trustee.</p> <p>The tender took away the power to sell under the deed of trust for the non-payment of these notes as fully as payment would have done.</p> <p>By the terms of the deed of trust, the trustee was authorized after a sale, to apply the proceeds upon the principal note, bnt this only for the purpose of distributing the fund ; tiie principal note did not mature for any other purpose. (Morgan vs. Martien, 82 Mo., 488; Mason vs. Barnard, 36 Mo., 3S4.)</p>

Louis Circuit Court. I. The proceedings in the circuit court are in the nature of an appeal from the probate court and atrial de novo ; hence the issue and the final judgment must be the same. (Wagn. Stat., 1368, § 29; Harris vs. ILavs, 53 Mo., 94.) Therefore in the probate court the whole will must -be probated, though there are objectionable clauses in it. (Dayton’s Surrogate, p. 58 ; Redf.

<p> Appeal from St. Louis Circuit Cov/rt. </p>

<p>1. Evidence — Deed—Consideration—Proof to show other than that named — What required. — To show that the consideration for a deed was other than that named in it, the evidence must be of the most clear and satisfactory character.</p> <p>2. Husband and wife — Agency—Estoppel.—An unauthorized arrangement by her husband in reference thereto, will not estop the wife from asserting a claim.</p> <p>3. Agency of husband for wife — Proof\ what requisite. — To establish an agency of the husband on behalf of the wife, the evidence must be cogent and strong and more satisfactory than would be required between persons occupying different positions.</p>

<p> Appeal from St. Louis Circuit Court </p> <p>cited Von Phul vs. Penn, 31 Mo., 333 ; Rutherford vs. Ullman, 42 Mo., 218.</p>

<p> Error to St. Louis Circuit Court. </p> <p>cited in argument Debaun vs. Atchison, 14 Mo., 543; Smith’s Merc. Law, 170; 1 Pars. Contr., 39-40 & 440 ; Rice vs. Groffman, 56 Mo., 434; Hazard vs. Treadwell, 1 Str., 506; Todd vs. Robinson, 1 Ryan & M., 217; Gilman vs. Robinson, Id. 226; Dyer vs. Pearson, 3 B. & 0., 38 ; Cruzan vs. Smith, 41 Ind., 28S.</p>

Louis Circuit Court. When one enters the service of the city as a fireman, he he does so with full knowledge that in the discharge of his duties he will be compelled to move rapidly over the streets, and assume risks flowing therefrom. The deceased had full knowledge of the condition of the streets, or ample opportunity to acquire that knowledge.

Jiff&al from, St. Louis Circuit Court. I. . This is an absolute bequest to John Reel. He can do as he pleases with the money. The expressions of the purposes of the gift are merely descriptive of the motive of the testator. (Redf. Wills, 712, 713,. and notes.) II. The word “minister” is always applied to a Protestant minister, never to a Catholic priest. The peculiar function of a Catholic priest is to say mass.