Volume 62 — Missouri Reports

<p>1. Garnishment of one indebted to a partnership of which defendant in the attachment is a member — Power of court to compel partners to interplead. — In an action by attachment against an individual, a person is not liable to garnishment who is indebted to a co-partnership of which that individual is a member. And in such a proceeding the court has no power to compel the partners to come in and litigate their interests in the fund attached.</p> <p>2. Attachment — Jurisdiction— Order on non-residents to interplead. — In action of garnishment courts of this State have no authority to order non-residents to appear and interplead, and litigate their respective ■ rights to the fund attached.</p> <p>S. Attachment — Garnishment of debt to a firm of which defendant is a member, how distinguishable from levy in attachment or execution. — The garnishment in attachment of a debt owing to a firm of which defendant is a member, is distinguishable from the seizure on attachment or execution of the tangible property of a partnership, for the reason that in a sale under suoli seizure the property cannot be appropriated till all liens growing out of or related to the partnership are discharged, while in the case of garnishment the judgment against the garnishee, if acquiesced in, changes the right of property, and divests the co-partner’s title to the property attached — which cannot be done so long as the partnership accounts remain unseuled or its debts unpaid.</p> <p>4. Attachment — Garnishment—What defense garnishee may setup, etc. — Whatever defense the garnishee in attachment could set up against an action by the defendant for the debt in respect of which he is garnished, he may set up in bar of a judgment against him as garnishee.'</p> <p>5. Garnishment — Garnishee liable for what manner of debt — Gonstr. Slat. — Adjustment of accounts, etc. — The statute of garnishment (Wngu. Stat., 665, $ 7) contemplates, that in order to render one liable as a garnishee, the debt which he owes defendant shall be of such a character, that upon being served with process, he may pay the amount, without being compelled to await the determination of a chancery proceeding requiring an adjustment of accounts between parties and partnerships. (Lackland vs. Garesohe, 56 Mo., 267.)</p>

Louis Circuit Court. I. There is no presumption in law that Henry C. Morris died prior to June 8th, 1861, having been last seen March 1, 1861. (2 Grreenl. Ev. [Redf. Ed.] § 278.) II. The burden of proving that be died before June 8, 1861, was upon the plaintiff.

Louis Circuit Court. The failure of the respondent to comply with the assurance that the defect should be remedied, amounted to gross neglect on the part of respondent, which made it liable for any injury resulting therefrom. The platform was not so obviously and immediately dangerous that a man of common prudence wonld have refused to use it. Whether such was the fact was however a question which ought to have been submitted to the jury.

<p> Appeal from St. Louis Court of Appeals. </p>

<p> Error to Audrain Circuit Court. </p> <p>cited Gorman vs. Pac. R. R., 26 Mo., 441; Sloan vs. Pac. R. R. 61 Mo., 24; Sly vs. Penn. R. R. Co.. 65 Penn. St., 209; Campbell vs. Marietta & Oin. R. R., 23 Ohio St., 188-9; Tomlinson vs. Branch, 15 Wal., 465 ; Phil. & Wilm. R. R. vs. Maryland, 10 How., 376; State ex rel. vs. Greene Co., 54 Mo., 540.</p> <p>I. Plaintiff in error was subject to the rule of damages as fixed by its own charter. (Wagn. Stat, 310, § 43. et seq.; Bac. Abr., vol., 2, Title Corporation, p. 452: Beatty vs. Marine Ins. Co., 2 Johns., 109 ; Ruggles vs. Collier, 43 M.O., 375, and cases cited.)</p> <p>II. Plaintiff in error did not, and could not, by the conveyance mentioned in the record, acquire any of the corporate franchises of the North Mo. B. B. Co., so as to change or alter its duties or liabilities, as imposed and fixed by its own charter. (Bac. Abr., vol. 2, p. 439; Stewart vs. Jones, 40 Mo., 140; Ohio ex rel. vs. Sherman, 22 Ohio St., 428; Coe vs. Col. Piq. & Ind. B. B. Co., 10 Ohio St., 378; Atkinson vs. The M. & C. B. B. Co., 15 Ohio St., 33, et seq.; Campbell vs. M. & O. B. B. Co., 23 Ohio Stat., 168.)</p>

Louis Circuit Court. The rule exempting the master from damages for injury to the servant by reason of negligence of a fellow-servant, applies only to those who are strictly fellow-servants in the same department of service, and not where the departments are so far independent as to have no privity with each other. (4 Mete., 59.) The Rollback case, (43 Mo., 187) is inapplicable here.

<p> Appeal from. St. Louis Circuit Court. </p> <p>cited Ne'deck-er et al. vs. Cochran, Am. Law Reg., Nov. 1875, p. 697; Chapman vs. Rose, 56 N. Y., 137; Seybel vs. Nat. Currency Bk., 54 N. Y., 288; Bank vs. McCoy. 69 Penn. St., 204; Zimmerman vs. Rote, 75 Penn., 188; Woolfolk vs. Bank of America, 10 Basil, [Kv.] 517; Phelan vs. Moss, 67 Penn. St., [17 P. F. Smith], 59 ; Garrand vs. Haddan, 67 Penn. St. [17 P. F. Smith], 82 ; Trigg vs. Taylor, 27 Mo., 248 ; Young vs. Grote, 4 Bingh., 253; Bank of Commonwealth vs. Curry, 2 Dana, 142 ; Muskgrove vs. Eldred, 9 Wall. 544 ; Mich. Ins. Co. vs. Leavenworth, 30 Yt., 11; Nebeckor vs. Cutsinger, 48 Ind., 436; Rumbolt vs. Eddy, 34 Iowa. 440; Lake vs. Reed, 29 Iowa, 258 ; Swift vs. Tyson, 16 Pet., 1; Goodman vs. Symonds, 20 How., 452 ; Magee vs. Badger, 34 N. Y., 247: Dow’s Ex’rs vs. Spenuy’s Ex’rs, 29 Mo., 386 ; Bank of U. S. vs. Dunn, 6 Pet., 51;- Walton vs. Sutton, 1 Dun & East, Term R. 296; Churchill vs.- Suter, 4 Mass., 156 ; Houghton vs. Page, 1 N. H., 60; Coleman vs. Wise, 2 John., 165.</p> <p>cited Trigg vs. Taylor, 27 Mo., 245 ; Haseall vs. Cliampoin, 30 Mo., 136 ; Britton vs. Dierker, 46 Mo., 591; Hood vs. Steele, 6 Wall., 80; Wash. S. Bank vs. Ecky, 51 Mo., 273; 8 Mo., 335; Cheaton vs. Chambless, 6 Rand. 86; Carroll vs. Paul’s adm’r, 16 Mo., 241-2; Pine vs. St. Louis Schools, 30 Mo., 176; Anderson vs. Kinchelor, 30 Id., 525; Rose vs. Spies, 44 Id., 23.</p>

<p> Appeal from St. Louis Circuit CowrL </p> <p>cited Putnam vs. Sullivan, 4 Mass., 45 ; Zimmerman vs. Rote, 75 Penn. St., 188; Nebecker vs. Cochrane, 48 Ind., 436 ; Ritter vs. Sing-master, 73 Pa., 400 ; 7 Mo., 231; Redlich vs. Doll, 54 N. Y., 234; Rainbolt vs. Eddy, 34 Iowa, 440; Garrad vs. Hadden, 67 Penn. St., 82; 43 Vt., 375; 53 Mo., 516; 54 Mo., 77; Whittemore vs. Obear, 58 Mo., 286-287; Gardiner vs. Harback. 21 111., 130-31; Workman vs. Campbell, 57 Mo., 53-55; Speake vs. United States, 9 Cranch., 29; Smith vs. Crooker, 5 Mass., 540; Ball vs. Dnnsterville, 4 T. R. 313; Barrington vs. Bank of Washington, 14 Serg. & R., 405; Stahl vs. Berger et al., 10 Serg. & R., 170-73; Shirts vs. Overjohn, 60 Mo., 305 ; Woolfolk vs. Bank of America, 10 [Ky.] W. P. D. Bush, 504; Phelan vs. Moss, 67 Pa., [17 P. P. Smith], 59 ; Stedman et al., vs. Boone, 49 Ind. [15 Am. Law Reg. 91] ; Bank of Salina vs. Babcock, 21 Wend., 499 ; San-dusky vs. Scoville, 24 Wend. 115.</p>

<p>1, Railroad machine shops, assessments on — Construction of act of March ‘21th, 1S75. — The ¡let of March 27th, 1876, in relation to payment of assessments on branch railroads and machine shops (Sess. Acts 1875, p. 128) does not govern cases of money collected on assessments made prior to the passage of the act; (as, where assessment was made prior thereto on machine shops in the town of Moberly).</p> <p>2. Legislative acts should have prospective operation. — A prospective operation should always be given to legislative enactments, unless a different intent is clearly shown.</p>

Louis Circuit Cowrt. The general rule regarding alteration in a material part of a bill or note does not include the change of the name of the payee. (Trigg vs. Taylor, 27 Mo., 245; see also, Huntington vs. Einek, 3 Ohio St., 445; Broughton vs. West, 8 Ga., .248.) And the alteration being an immaterial one, and for a lawful purpose, and with no improper motive, appellant is entitled to recover.

Error io St. Louis Circuit Court. During the joiut lives of the husband and wife, the right of possession was in him alone; and during that period the wife has only a reversionary interest; and where he has the curtesy initiate by the birth of a child, his interest may be conveyed, or assigned, or sold under execution. And the statute of limitations does not begin to run against the wife till bis death.

ftp peal from St. Louis Circuit Court. I. The evidence did not prove the contract alleged in the petition. II. The alleged contract was not established by the kind of evidence, or with that satisfactory proof required by courts of equity in decreeing specific performance.

<p> Jljjpeal from St. Louis Circuit Court. </p> <p>cited Smith vs.Sterritt, 21 Mo., 260; Williams vs. Whitlock, 11 Mo., 552; McMurray vs. Taylor, 30 Mo., 263; Mudd vs. Bast, 31 Mo., 168; Sto. Part., §§ 328, 335, 311; Bryant vs. Hawkins, 17 Mo., 110; Powell vs. Charles, Adm’r, 31 Mo., 185; Boatman’s Sav. Inst. vs. Mead, Adm’r, 52 Mo., 513 ; Milliken vs. Boring, 37 Me., 110; Colly Part., §§ 118, 516 ; Harny vs. Cricket. 5 Maul. & Selw., 336, 311; Fox vs. Han burg, Cowp., 115 ; Pars. Part., 388, 390, 395, 396; 1 DeGex. M. & G., 512; Temple vs. Seaver, 11 Cush., 311; Mayson vs. Beazlev, 27 Miss.. 106 ; Morse vs. Bellows, 7 N. H.. 568 ; Gow. Part., 253; Johnson vs. Kellogg, 3 Cal., 313; Wood vs.. Bradick, I Taunt., 101; 5 T. R., 601; 7 Taunt., 157; 1 Ves., 36; 31 111., 62; 16 111., 311; Beering vs. Flanders, 19 N. H., 228; Gordon vs. Freeman, 11 111., 11; Kenney vs. Altvater, 77 Pa. St., 31; Am. Law. Reg., vol. 11, p. 758; Hickman vs. Kunkle, 27 Mo., 101; 3 Kent Com., § 13; Daly vs. Bates, II Johns., 511; Mann vs. Locke, 11 N. H., 216; Cody vs. Kyle,'17 Mo., 316 ; Richardson vs. Moies, 31 Mo., 130; McKay vs. Underwood, 17 Mo., 185.</p> <p>cited Gow. Part., 398 ; Pars. Part., 172, 198; Freeman vs. Bloomfield, 13 Mo., 391; 2 Dnrn. & E., 183; Russell vs. Grimes, 16 Mo., 113 ; Berrylnll vs. McKee, 1 Humph., 31; Rootes vs. Wellford, 1 Mumf., 215; Murray vs. Bogert, 11 Johns., 318; Halsted vs. Sclnnelzel, 17 Johns., 80 ; Westerlo vs. Eversión, 1 Wend., 532; Atwater vs. Fowler. 1 Hall [N. Y.] 180 ; Chadsev vs. Harrison, 11 111., 156; Davenport vs. Gear, 2 Seam., 195; Goldsborough vs. McWilliams, 2 Oranch C. O., 101; Haldeman vs. Haldeman, Kemps, 559; Pate vs. Williams, 5 Or. C. C., 151; Barry vs. Barry, 3 Or. C. C., 120; Barns vs. Nottingham, 60 111., 531; Lamalere vs. Caze, 1 Wash., C. C., 135.</p>

<p>1. Practice, civil — Motion for new trial — Error, what considered by Supreme Court. — Only those errors to which the attention of the lower court was called in the motion for new trial, will be reviewed by the Supreme Court.</p> <p>2. Administration — Granting of letters prima facie proof of death. — 111 suit by an administrator on a policy of life insurance taken out by deceased, where defendant admits plaintiff's appointment, but merely denies its legality', and the proof shows annual settlements made by him, it will be presumed that letters were granted. And the granting of the letters is prima facie evidence of the death of the intestate. But such presumption is of the weakest and most inconclusive character, and the very slightest evidence will be sufficient to overcome it.</p> <p>8. Pife insurance — Disappearance—Presumption as to fact and time of death.— Where, when last heard from, one was in contact with some specific peril, this circumstance may raise a presumption of death without regard to the duration of the absence. But other circumstances may create the same presumption, as where the circumstances of the disappearance are more consistent with the theory of death than that of a continuance of life, when considered witli reference to those influences and motives which ordinarily govern men ; in either of which cases the jury may infer death at any time, within the seven years, such as may seem to them most probable.</p> <p>4. Dife insurance — Disappearance 011 steamer — Case stated raising presumption of accidental drowning. — In suit on a life insurance policy, it appeared that the assured who was an unmarried man of about forty years of age, took passage on a lake steamer bound for Buffalo ; that on the voyage he seemed to be sick and despondent; that while the vessel was in Lake Huron, he was seen in the evening on the guard, and leaning out through a “ shutter ” in the bulwark of the boat, which opened upon the water; that on landing at Buffalo, ineffectual search was made for him, but in his stateroom were found^ his coat, hat and valise; that (he vessel stopped at way posts, but he was not seen to go ashore, and could not have landed unobserved. Held, that the testimony was amply sufficient 10 show that lie was brought in contact with a specific peril, and to raise the presumption of his death by drowning; and that such state of facts also raised the presumption that his death was the result of accident.</p>

<p> Appeal from, St. Louis Circuit Court. </p> <p>and cases cited; Doe vs. Robinson, 24 Miss., 688 ; Singleton vs. Scott, 11 la., 589 ; Howard vs. Thornton, 50 Mo., 292; Bates vs. Perry, 51 Mo., 449; Graham vs. King, 50 Mo., 23; Longworth vs. Butler, 8 111., 32, 44; Stine vs. Wilkson, 10 Mo., 94 ; Goode vs. .Comfort, 39 Mo., 328 : Wright vs. Wilson, 2 Yerg., 394; Wallace vs. Easton, 5 How. Pr,, 102, 103; Ana. Law Reg., vol. 2, [N. S.] pp. 724. 726, 729, §§ 31. 32, 36, and authorities cited ; Gibson’s Heirs vs. Jones, 5 Leigh, [Va.] 370; Norman vs. Hill, 2 Pat. & Heath, [Ya.] 676.</p>

Louis Circuit Court. The true construction of the Act of 1860 is, that it exempted the Southern Hotel property from taxes due and payable to the city and county of St. Louis, prior to December 1st, 1869. ' (R. C., 1855, p. 1329, §§ 18.' 19, 20; p. 1334, § 49 ; p. 1342, § 23; p. 1345. § 41) ; Act of March 3d. 1857 (Sess. Acts, 1857, p. 674); Revenue Act, March 30, 1872; Gottschalk’s Laws, p. 374; Sess.

<p> Error to St. Louis Circuit Court. </p> <p>The note was prescribed by the laws of Louisiana, and that prescription operated to extinguish or alter the obligation, so that an action on it will not lie in any place. (Baker vs. Stonebraker, 36 Mo., 338; Carson vs. Hunter, 46 Mo., 467; 1 Greenk, 45, § 39; Sto. Confl. of Laws, 6th ed., § 582; Civil Code La., Arts. 2126, 3420, 3422, 3494,3497, 3505 ; Brown vs. Union Ins. Co., 3 An. [La.], 183 ; Christian vs. Chaney. 5 Id., 219, 220; Livistoues vs. Morignv, 13 Id., 353; Brown vs. Shields, 13 Id., 57; Cowand vs. Pulley, 11 Id., 2; Sue. of Ferguson, 17 Id., 256 ; Sue. of Virgin, 18.Id., 44; Du-rand vs. Hume, 20 Id., 345; Billurgs vs. Hall, 7 Oak, 1; Win burn vs. Cochram, 9 Tex., 123 ; Le Roy vs. Crown. 2 Mason, 166 ; Townsend vs. Jennison, 9 How., 417; Ersk. Inst., 800 ; 2 Pars. Bills, 631; Mayor vs. Pyne, 3 Bing., 285 ; Williams vs. Jones, 13 East, 439; Dunford vs. Clark, 3 Louis, 201; Lortheth vs. Hogan, 1 An. [La.], 330; Sue. of Linderman, 3 Id., 714; Shields vs. Brundige, 4 La., 326 ; Blanchard vs. Russell, 13 Mass., 1; 4 Cow., 511; Le Roy vs. Crowe n-shield, 2 Mason, 166; 10 Barn. & Cr., 909 and foot note ; Partidas, preface & p. 369; Booke vs. Flood, 5 Martin [La.], 403, 404; 4 La., 327.)</p> <p>Article 3505 of the Civil Code of Louisiana, is notan absolute extinguishment of the debt, but is merely a statute of limitations. (Stewart vs. Leroy, 11 Wah, 244 ; Harper vs. Abbott, .6 Wal., 532; The Protector, 9 Wah, 687; Stewart vs. Kahn, 11 Wah, 494; S. C., 24 La. An., 31; Adger vs. Alston, 15 Wak, 555 ; see also C. O. La., Arts. 3424, 3426.)</p> <p>And to avail himself of the prescription, defendant must plead it. If he fails to do so, he is considered as having waived it, and the plaintiff will recover (Dunford vs. Clarke’s Est., 3 La., 204; Pereoux vs. Lacoste, 19 La. An., 266 ; Potli. Obk, p. 3, cli. 8, art. 1. § 676; Paillst Mann. De Droit Title, 20 de la prescription, p. 703, note 3 ; Duranton Traite des Obligations Tome 4, p. 92; Union Manuf. vs. Lebdale, 7 U. S., 108; Erwin vs. Lowry, 2 La. An., 314; Newman vs. Goza, Id., 642; Lacoste vs. Benton, 3 An., 220; Brown vs. Stone, 4 An., 235; Taylor vs. Ivor, 7 An., 272: Sto. Confl. L., pp. 576, 577, 579 ; 2 Pars. Contr. [6th Ed.], 590, and notes ; Lincoln vs. Battelle, 6 Wend., 475; Carlin vs. Page, 8 Yt., 147.)</p>

<p>1. Deed of trust — Bona fides of trustee — Duties required of. — The trustee at the trust sale should adopt all reasonable precautions to render the sale beneficial to the debtor. A bare compliance with the terms of-the deed is not sufficient. And if not conducted in all fairness and integrity, the sale will be set aside.</p> <p>2. Mortgages and deeds of trust — Sale at unusual hour, and at sacrifice — Equitable interference. — Where it appeared that the beneficiary in a deed of trust procured the property to be sold thereunder at eleven instead of twelve o’clock ; that only two bidders were present, and that being worth $8800, it brought but $5000; held, that, although the inadequacy of consideration paid was not itself so unconscionable as to authorize equitable interference, and even though it were not shown that at the usual hour of sale the property would have brought a greater sum, yet in view of all the circumstances, the sale should be set aside.</p> <p>3. Equity — Quit-claim, deed — Purchase without notice. — The grantee in a quitclaim deed cannot maintain that he is a purchaser without notice of equities affecting his grantor.</p>

Louis Circuit Court. I. The heirs and devisees bad a right to appear, and by showing a waste or misapplication, or improper and illegal charges and credits on the part of the administratrix in amount . equal to the claims proven up, prevent a sale of the real estate until the creditors had exhausted all legal remedies against the executor or administrator and his bondsmen. (Rorer Jud.

Jippeal from, St. Louis Circuit Court. I. The demurrer to the plea of limitations was improperly sustained. The amended petition set up a new cause of action founded upon a different section of the statnté from that on which the original petition was based, and requiring different evidence in its support. The charge, the evidence and the penalty were different in each.

<p>1. Practice, Supreme Court — Bill of exceptions — Beeital as to evidence — Rule VII. — It will be presumed that a bill of exceptions contains all the evidence without a recital therein to that effect. (See rules Supreme Court, rule VII, 48 Mo.)</p> <p>2 Practice, Supreme Court — Error apparent on face of record, consideration, of by — Withdrawal of demurrer — Failure to move in arrest. — The objection that the facts stated in a petition constitute no cause of action, will be entertained in the Supreme Court although there urged for the first time. And the withdrawal of a demurrer filed on the ground, and failure to move in arrest therefor, will not preclude such objection.</p> <p>For material error, apparent on the face of the record, the judgment of an inferior court will be reversed, although no exception was taken therein.</p> <p>3. Contract in restraint of trade — Illegality of. — A contract not to engage in a particular trade for a specified time, “in the city of St. Louis, or at any other place ” is divisible, and as to the restriction imposed in St. Louis, is not void as in restraint of trade.</p> <p>4. Sale of business — Claim of fraudulent representations. — A contract, for the sale of certain property and business, cannot be defeated on the ground of fraudulent representations by the vendee that a certain person shall not engage in the business with himself, where the bargain is consummated after such intention has been learned, and the bargain is unconditional, and the purchase price is paid.</p> <p>6. Good will — Babels and wrappers — Broteetion, what afforded. — The good will of a business, as embodied in labels and wrappers bearing the name of the eoneern, or other brands or marks, will be protected on principles analogous to those applied in cases of infringement of trade marks.</p> <p>6. Exclusive right to manufacture articles — Infringement on — Measure of damages. — Where defendant has infringed on plaintiff’s exclusive right to manufacture and sell certain articles, on a proper ease presented he will be entitled to all the profits made by defendant therefrom, regardless of the question whether plaintiff’s business has been interfered with, or his profit’s affected thereby.</p> <p>7. Good will— Violation of covenant of — Diversion of trade — Measure of damages — Evidence, what proper. — Where man action for violating a covenant not to manufacture a certain article, plaintiff merely charges that defendant has diverted plaintiff’s patronage to himself, and thereby injured or destroyed- the good will of plaintiff’s business, without alleging any claim to the profits made by defendant on articles, the exclusive right to manufacture which belonged to plaintiff, orto the profits-derived from the useof atrade mark, the exclusive right to which was in plaintiff, his measure of damages is not what defendant has gained, but what he has lost by the breach, whether defendant’s profits have been greater or less than that amount. And in ascertaining plaintiff’s losses, defendant’s profits may be given in evidence in connection with the diversion of customers from plaintiff to defendant, and the amount of plaintiff’s purchases and manufactures and sales, and any reduction in the price of articles sold in consequence of the unlawful competition.</p>

<p>1. St. Louis — Charter of 1870 — Two pears limitation applicable to special tax ■billsissued theretofore — Bffect of, upon. — Under the then charter of St. Lotiis, action on a special tax bill, issued in 186'9, would not be barred for five years. It was held that thelimitation of two years to suits cat special tax bills contained in the charter of 1870 (Sess. Acts, 1870, p. 481, \ IS), was applicable to tax bills issued theretofore, and that the owner of the bill issued in i860 had two years after the passage of the aet of 1870, and no more, within which to bring suit. After that time the tax bill ceased to be a lien, capable of enforcement on the property taxed. A special tax bill is not a ©barge in equity on the land assessed.</p> <p>2. Limitations — Former remedy map be shortened, when. — The time of enforcing a remedy may be shortened by an act of the legislature, provided the act does not operate to deprive the party of his remedy, and leaves him a reasonable time within which to sue.</p> <p>3. Special tax bills — Twoyears limitation not repealed by aet of 1871. — Section 7, of the Act of March 18th, 1871 (Sess. Acts 1871, p. 194), touching the collection of special tax bills in the eity of St. Louis, did not repeal the provision' of the act of 1870 (Adj. Sess. Aets, 1870, p. 481, $ 16), limiting actions on such bills to two years.</p>

Louis Circuit Court. I. By the constitution, Art. 4, § 1, the legislative power is vested solely in the.General Assembly, and the act of March 20th, 1873, is void, as being a delegation to the people of such legislative power.

<p> Appeal from St. Louis Court of Appeals. </p> <p>cited State vs. Klinger, 46 Mo., 224; State vs. Hays, 23 Mo., 287.</p> <p>cited Magu. Sfat., 1102, §§ 7,8 ; State vs. Klinger, 46 Mo., 224; State vs. Buckner, 25 Mo., 167,169, 170, 171; State vs. McCarron, 51 Mo., 27, 28; State vs. Holme, 51 Mo., 153, 166; Wagn. Stat., 800, § 21; Taylor vs. Pae. R. R. Co., 15 Cal., 323; State vs. Scroggins, 37 Cal., 677; Cooley vs. State, 38 Tex., 636; Gladdin vs. State, 13 Pla., 623.</p>

<p>1. Shelley’s case — Rule in, abolished in Missouri. — Since the enactment of the statute of wills in 3 825, ¡j 38, and that respecting conveyances In 1845, <3 7, the rule in Shelley’s case has no longer any existence in this State. Anda deed to “A.,” or in trust for “A,” for life, remainder over in fee simple to the heirs, creates simply a life estate in A.</p>

Louis Circuit Court. I. The court cannot, upon setting aside the report, entirely displace the referee by itself pronouncing the judgment which the referee should have given. (Walton vs. Walton, 17 Mo., 378; Bice vs. Benedict, 18 Mich., 76 ; Day vs. Hammond, 57 N. Y. App., 488 ; Griffin vs. Margmardt, 17 N. Y. App., 28 ; Milk vs. Moore, 39 111., 584; Patterson vs. Ackerson, 1st Edw. Ch., 102, and cases cited ; 2 Daniels Oh.

<p> Jippeal from St. Louis Circuit Court. </p> <p>cited Kirby vs. Johnson, 22 Mo., 354; Shi'ndley vs. Houston, 1 Conn., 261; Cunningham vs. Ashbrook, 20 Mo., 553 ; Jones et al. vs. Pearce, 25 Ark., 545 ; Hanson vs. Meyer, 6 East., 614; Cook vs. Hill. 5 Lansing [N. Y.], 243; Marsh vs. Rowe, 44 N. Y., 643; Cross vs. O’Donald,'51 N. Y., 211; Sto. Sales, §296; Cobb vs. Haskell, 14 Me., 303.</p> <p>cited Bass vs. Walsh, 39 Mo., 192 ; Blow vs. Spear, 43 Mo., 496 ; Cunningham vs. Ashbrook, 20 Mo., 556; 2 Kent Com., 500-2; 2 Green!. Ev., §§ 250, 251; S. W. F., etc.- Co. vs-. Stanard, 44 Mo., 71; U. 5. Stat. at Large, pp. 465, 466, § 12.</p>

<p>1. limitations — State statute no lar prior to issue of U. S. patent. — Under the decision of Gibson vs. Chouteau (13 Wal., 92) possession for theperiod named in the State statute of limitations is no bar until the legal title passes out of the United States. (McElhinney vs. Eicke, 61 Mo., 829.)</p> <p>Per Hough, J.</p> <p>2. Adverse possession-Right of simply an equity-Effect of, when so pleaded.-The right of adverse occupancy in such case was simply an equity, and if properly pleaded would bar a recovery.</p> <p>On Motion for Rehearing.</p> <p>3. Spanish and territorial law — Ante-nuptial contract — Spanish law of “arras” —Common law. — A conveyance of land in the territory of Louisiana, made in ISOS, by an American inhabitant, in contemplation of marriage, which deed in no wise conformed to the Spanish or civil law', and contained nothing in its terms to indicate a reference to the Spanish law of amis, would be held to be governed by the common law, or at least so much of it as had, by positive statutes, been introduced into the territory; and, accordingly, by the statute of descents and distributions, would not be held as conveying only one-tenth part of the donor’s property.</p> <p>4. New Madrid certificate — Read-right confirmation — Location of — Minutes of old hoard and recorder Bates — Place of record prima facie proof of location, etc., etc. — Suit involving the title to land obtained under a new Madrid certificate developed the facts that au original application, made in 1806, to the first board of commissioners, for a head or settlement right, merely bounded the land by natural objects, and it was shown to adjoin a confirmation proved to be for land which was in the district of New Madrid in 1804. The minutes of the old board and of recorder Bates showed that the head-right confirmation was in Cape Girardeau. But a subsequent deed made in 1808, conveying the same grant, was recorded in New Madrid, and by the law then in force it could only be recorded in the district where the land was situated ; and the deed itself recited that both parties resided in Cape Girardeau. The New Madrid certificate was issued for the same tract. The territorial sub-division into districts in 1804 and 1808 w-as not shown in evidence. Held, that prima facie the record of the deed in New Madrid districts showed that in 1808 the land was embraced therein, and this conclusion was greatly sirengiliened by tbe recital showing that while both parties resided in Cape Girardeau, they proceeded to New Madrid to procure its record ; that as the New Madrid certificate could not issue for land in Cape Girardeau, the minutes of the board and of the commissioner, locating the land in Cape Girardeau, should be held tobe a mistake, and that it devolved on the party so claiming to prove aliimde, that In point of fact the district of New Madrid did not in 1808 embrace the tract.</p>

<p>1. Equity-Conveyance — 'Undue Influence.-Fidueiary relatiom-Burden of proof. —In suit to set aside a conveyance on the ground of fraud and undue influence, where the evidence shows the existence of confidential relations as well as those of principal and agent between the grantor and grantee, the burden is upon the latter, and all claiming through him, except purchasers or encumbrancers for avaluable consideration without notice, to show that absolute fairness, adequacy and equity characterized the transaction.</p> <p>2. Equity — What estates vendible in execntion.-TSn&ei: the present statute (Wagn. Stat., 605, \ 16 ; see also Morgan v. Bouse, 53 Mo. 219) the owner of land, the legal title to which has been procured through fraud, etc., has an estate therein which is vendible in execution.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>cited Bn teller vs. Deatli & Trusdale, 15 Mo., 271; Stiel vs. Ackli, 3 5 Mo.. 291: Jones vs. Yeager, 2 Dillon, 64; Devitt vs. Pac. R. R. Co., 50 Mo., 302, and cas. cit.; Wright vs. N. R. C. R. R. Co., 25 N. Y., 566, 570; Hayden vs. S. M. Co., 29 Conn., 543; Callahan vs. Warne, et al., 40 Mo., 317; Foley vs. Alkire, 52 Mo., 317; Const. Mo., Art. I, § 17; Hale’s Com. Law, vol. 2. p. 138 ; Lord Coke’s First Inst., ch. 12, § 234, n. d.; Bank of Mo. vs. Anderson, 1 Mo., 234; Wagn. Stat., eh. 80, p. 800, §22; Hudson vs. St. L., K. C. & N. R. R. Co., 53 Mo., 525; C. & A. R. R. vs. Adler, 56 111., 344.</p> <p>cited Hudson vs. St. L., K. C. & N. R. R. Co., 53 Mo., 537 ; Sliearm. & Redf. Negl., 3d ed., pp. 125, 126, § 96; Patterson vs. Pittsburg & Oonnellsville R. R., 76 Pa., 393 ; Clark vs. Noxon, 7 Hurle & N. (Ex.),-937; Snow vs. R. R., 8 Allen, 441; Perry vs. Marsh. 25 Ala.. 668 ; Smith vs. City of St. Joseph, 45 Mo., 449 ; Norton vs. Ittner, 56 Mo., 353; Meyer vs. Chicago R. R., 59 Mo., 229 ; Huelsenkamp vs. Citizens R. R. Co., 34 Mo., 54; Kennedy vs. N. M. R. R. Co., 36 Mo., 364; Leddv vs. St. L. R. R. Co., 40 Mo., 519; McPheeters vs. Han. & St. Jo. R. R. Co., 45 Mo., 24; Kennedy vs. Pacific R. R. Co., 45 Mo., 258; Brown vs. Han. & St. jo. R. R. Co., 50 Mo., 466.</p>

<p>1. Equity — Bill to set aside deed on account of fraud — Equity of redemption, purchase of at execution sale__In proceedings to declare a conveyance a mortgage, and for permission to redeem, a purchaser of an equity of redemption, at execution sale, was held to occupy as substantial a footing as though he had purchased at a private sale.</p>

<p>1. Insurance policy — False swearing, what will avoid. — The false swearing, which will forfeit a claim on an insurance policy, must be either in the submission of preliminary proofs of loss, or in the examination to which, according to the terms of the policy, the assured may be subjected.</p> <p>2. Insurance — False swearing of assured — Discrepancy between “proof of loss" and amount sworn to at trial — Instructions—Presumptions, etc. — If there be a difference claimed under a policy of insurance and that sworn to by the as* sured himself on the trial, or established by the uncontradicted evidence in the cause, it is a question for the jury, whether, under all the circumstances, the discrepancy is the result of accident, or mistake, or fraudulent intent, of the assured. To forfeit his rights, the swearing must be not only false but fraudulent; and the discrepancy, although unexplained, will not raise the presumption that the latter is the case.</p> <p>And an instruction, that if the jury found a difference between the amount of loss sworn to in plaintiffs’ proof of loss and the amount of loss proven on trial, in the absence of explanatory evidence they should find for defendant, was held bad for the above reasons, and also because the court could not declare what amount had been proved at the trial, where the testimony was conflicting and because such instruction might warrant the jury in finding for defendant, if they ascertained the loss proven to be in fact less than that claimed in proof of loss.</p>

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

<p>1. Assessment for local benefits — Valid exercise of taxing power. — Assessments made for benefits conferred by local improvements are a valid exercise of the taxing power.</p> <p>Per Hough, J.</p> <p>2. Eminent domain — Right of owner to full compensation regardless of benefits.— Hough, Judge, expressed the opinion that where private property is taken for public use, the owner should receive its full value without regard to the benefits supposed to be conferred upon that portion of his property which is not taken.</p>

Louis Circuit Court. I. A corporation connected with an existing municipal corporation, and constituted for the purpose of carrying out some of the known objects of the municipality, is a corporation for municipal purposes, and thus within the exception of Art. Till, § 4 of the Constitution of I860. (State ex rel. Chouteau vs. Leffingwell, 54 Mo. 458-472; The People ex rel. South Park Commissioners vs. Salomon, 51 111., 37; Horton vs. Mobile School Commissioners, 43 Ala,.

<p>1. Practice, civil-Abatement of suits — Scire facias — Failure to bring in defendant —Affidavit—Diligence, what insufficient. — The statute concerning, the abatement and revival of suits (Wagn. Stat., 1049) is in the nature of a special statute of limitations, and after the period therein limited no writ of scire facias can issue. Were the law otherwise, an affidavit by counsel for plaintiff, that he heard the attorney for defendant suggest his death and ask permission to bring in his legal representative, and from a conversation with said representative he got the impression he had been brought in, was held an insufficient excuse for failure to take the steps on behalf of plaintiff required by the statute.</p> <p>2. Practice, civil — Abatement of suits — Suggestion of death — Exhibitions of demand against administrator. — The provision of the administration law, allowing two years within which to exhibit demands against an estate, does not render nugatory the requirement that the legal representatives of a deceased party must be brought in on or before the third term after the suggestion of/ hi3 death.</p>

Louis Circuit Court. I. The circuit court had acquired jurisdiction before the petition in bankruptcy was filed, and that jurisdiction was not divested by the subsequent proceedings in bankruptcy. (Matter of Chas. H. Wynne, Bankrupt, 4 Bank. Beg., 23 ; S. C., 9 Amer.

<p>3. Revenue — Tax deed — Rights of purchaser at, how determined — Gen. Stat. of 1865, tax sale wider — Recitals in tax deed — Mandamus.—Where land was assessed and taxed under the statute law of 1865, the rights of a purchaser thereof, at tax sale, must be determined by that law. And under the statute of 1865 (p. 12Í, $ 110), the collector was not required to give the purchaser any particular form of deed, or embody in it any particular recitals, and mandamus would not lie for that purpose; and if it did, such recitals would amount to nothing in the way of evidence.</p> <p>The collector’s deed must show the facts authorizing a sale, but it has not been decided that a failure of the deed to correctly recite all the facts will avoid the deed.</p>

<p> Ajypeal from St. Louis Circuit Court. </p> <p>cited Piper’s Estate. 15 Penn. St. R., 536 ; Scott & Rule vs. Governor of Mo., IMo., 493 ; 2 El. Comm., 512; Garber vs. Commonwealth, 7 Barr, 265 ; 2 Will. Ex., 1123, (3rd Am. ed.,) 1128 ; Miller vs. Donaldson, 1 Salk., 306.</p> <p>cited, Wagn. Stat., 1872, §54, p. 90; Wagn. Stat., 1872, §61, p. 91; Redf. on Wills, Yol. 2, p. 191, §12; Will, on Exrs., Yol. 2, marg. p. 128-9; Mason vs. Stone, 2 Cow., 807, 808; Wank-ford vs. Wankford, 1 Salk., 306; Stevens vs. Gaylord, 11 Mass., 266 ; Winship vs. Bass, 12 Mass., 207-210 ; Eaton vs. Walsh, 42 Mo., 275; Harmer vs. Steele, 4 Exch., 1.</p>

<p>1. Marital conveyances — Undue influence, what not. — Where' property is accumulated iu a great degree by the superior intelligence and active energies of the wife, and being thereto induced by his confidence in her, the husband makes to her a deed of his property, and it appears that the wife’s influence, although great, was salutary and wholesome, and not exerted for fraudulent or selfish considerations, the deed will not be set aside on the ground of “undue influence,” such as the law forbids. And it is im'material as touching the legal rights of the parties in such case, that the confidence of the husband may have been misplaced.</p> <p>2. Deeds — Consideration clause — Parol evidence varying and contradicting, when pi-oper. — The consideration clause in a deed is always open to explanation or contradiction ; certainly so, except as between the parties or their privies, where plaintiff seeks to set aside his own deed for lack of a consideration therein expressed to have been paid; and so'bases his action on his own fraud; and subject to the exception, that the consideration clause, for the purpose of giving effect, to the operative words of a deed, may be regarded as conclusive.</p> <p>3. Conveyance — Consideration expressed in deed — Impeachment of. — Where suit is brought by the maker to set aside a deed on the ground that no consideration whatever passed, and that the same was obtained by fraud and undue influence, plaintiff cannot insist, that the consideration, expressed in the deed, was unconscionable, and cannot be attacked by parol evidence.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>cited Redf. "Wills, p. 228 ; Hess’ Appeal, 48 Penn. St., 73 ; Harrison vs. Rowan, 3 Wash. Ot. Ct., 585; Harvey vs. Sullens, 46 Mo., 147; Harrel vs. Harrel, 1 DuYall [Ky.,] 203.</p> <p>cited Harvey vs. Heirs of Sullens, 56 Mo., 872.</p>

Louis Circuit Court. I. By legislative interpretation, Wagn. Stat., 840, § 5, art. Till, is the only provision under which churches may be incorporated. (Const. Mo., 1820, art. 13, § 5 ; Const. Mo. I860, art. 1. § 12; Wagn. Stat., 339-40, ch. 37.) II.

Jipjpeal from St. Louis Circuit Court; ■ . I. The defendant had a common interest with the United States Insurance Gompany in the questions involved in the ■ suit of Henning & Woodruff vs. The U. S. Ins.

<p>1. Acknowledgment — Certificate only prima facie evidence. — In a bill to set aside a conveyance, the certificate of the notary is only prima fade evidence Of its recitals and may be contradicted. (Wannell vs. Eem, 57 Mo., 478.)</p> <p>2. Separate estate of wife — Acknowledgment—Examination apart from husband. — Where in a conveyance of laud made in trust for the separate use and benefit of a married woman, she is authorized by any written order to direct a conveyance or mortgage, such instrument passes her title although her acknowledgment be not taken “separate and apart” from her husband.</p> <p>3. Practice, Supreme Court — Decree — Conflicting evidence. —The Supremo Court will be extremely .reluctant to disturb a decree on a point of eonflicting evidence.</p> <p>4. Equity — Bill to set aside mortgage of wife's separate estate — Endue influence by husband, etc. — Where, by the terms of a deed vesting a separate estate in the wife, the husband was made her trustee and specifically required to protect the estate against his debts, and it appeared that, being then indebted and embarrassed in his business, in conjunction with his creditors he endeavored to persuade his wife to sign a mortgage of said property for his relief; that after manifesting great unwillingness, and after repeated solicitations and pressure amounting almost to moral co-ercion, she was finally prevailed on to sign the deed. Held, that such proof would warrant a decree setting aside the mortgage.</p>

<p>Error to Louisiana Court of Common Pleas.</p> <p>cited Hnthsing vs. Maus, 36 Mo., 101; Wagn. Stat., 182, § 6; Ellis vs. Lamme, 42 Mo., 153.</p>

Louis Circuit Court. The ease at bar is one in which the county was acting in a private capacity and was liable to the extent to which a private corporation would be. (Lloyd vs. Mayor of N.Y.,5N. Y, 369; Eastman vs. Meredith, 36 N. H., 292: Bavley vs. Mayor of N. Y.. 3 Hill, 539; Mears vs. Com. of Wilmington, 9 Ired., 73 ; Iuhab. 4 Sch. Dis.

<p> tUppeal from St. Louis Circuit Cou/ri. </p> <p>cited Alexander vs. Harrison, 38 Mo., 258.</p> <p>cited Drake Attach., § 87 ; 8 Porter, 250; 18 Wend., 611; 7 Darb.. 656; Walser vs. Thies, 56 Mo., 89; Hall vs. Lnydam, 6 Barb.. 83; Hill. Torts, 431; Morris vs. Corson, 7 Cow., 281 ; 2 Green!. Ev., 454; 1 Hill. Torts, 428, § 16 ; Nicholson vs. Coghill, 43 B. & C., 21; Burhans vs. Sanford, 19 Wend., 417; Webb vs. Hill, 1 Moody & Malkin, 253 ; Williams vs. Taylor, 6 Bing., 183.</p>

<p>1. Marine insurance — Sinking of barge at port — Petition—Allegations as to cause of loss — Sufficiency of. — In an action on an insurance policy for loss of a barge with her cargo, the petition alleged an insurance against all loss “in said voyage by reason of the adventures and perils of said rivers, and all other perils,” etc., and then alleged that she sprung a leak and sunk at port. Held, that although the loss as stated did not come within the perils of the voyage specifically insured against, it may have been caused by one of the “other perils and that the general allegation following the special statement of loss, that tile damage arose from “one of the perils insured against” was sufficient on demurrer ; that whether such was the fact was a question for the jury on the evidence, or for the court on motion for non-suit.</p> <p>2. Insurance, marine — Sinking of boat at port — Unseaworthiness.—The sinking of a boat at port raises a violent presumption of unsea worthiness, and this is always a defense to suit for such loss.</p>

<p> Appeal from, St. Louis Circuit Court. </p> <p>cited Shearm. & Redf., Negl., 2 ed., cli. 6, p. 109 ; Mann vs. Oriental Mill Co., Am. Law Reg., Dec., 1875 ; Finney vs. Railway, 62 Barb., 218; Harper vs. Ind. R. R., 47 Mo., 567; Rollback vs. Pac. R. R., 43 Mo., 187; Brothers vs. Cartter, 52 Mo., 372.</p> <p>cited Brothers vs. Cartter, 52 Mo., 372 ; Gibson vs. Pac. R. R., 46 Mo., 163 ; Harper vs. Ind. R. R., 47 Mo., 567; McDermott vs. Pac. R. R., 30 Mo., 115; Rollback vs. Pac. R. R., 43 Mo., 187; Priestly vs. Fowler, 3 Mus. & W., 1; Farwell vs. B. & W. R. R., 4 Met., 49; Wigmore vs. Jay, 5 Exch., 345 ; Tenant vs. Webb, 18 C. B., 797; Wright vs. N. Y. Cent. R. B., 25 N. Y., 572 ; Warren vs. Erie R. R. Co., 39 N. Y., 470; Caldwell'vs. Brown, 53 Penn. St., 453.</p> <p>cited Gormley vs. Vulcan Iron Works, 61 Mo., 492; Lewis, Adm’r, vs. St. L. & 1. M. R. R., 59 Mo., 495 ; Harper vs. Ind. & St. L. R. B., 47 Mo., 567; Brothers vs. Cartter, 52 Mo., 372; Gibson vs. Pac. R. R., 46 Mo., 163.</p>

<p>1. Corporations — Qrant of powers must be strictly pursued. — Corporations have only such powers as are specially given by their charters, or are necessary to carry into effect some specified power; and the mode of procedure prescribed be tlie terms of the grant must be strictly pursued. Any other exei;eise of powers is ultra vires. ■</p> <p>2. National bank cannot take real estate security for contemporaneous loan — Injunction. — Under the Act of Congress (Rev. Stat. U. S., p.998 ; See \\ 5186, 5137) a national banking association has no power to take a deed of trust on real estate as security for a contemporaneous loan ; and it has no powers not conferred by congress. And injunction will lie to prevent a sale by the bank under the deed.</p>

<p> Error to St. Louis Circuit Court. </p> <p>cited Nordmanser vs. Hitchcock, 40 Mo., 182; Sto. Eq. PI., § 398; Wilson vs. Bodlev, 2Litt.. 55 ; Sharp vs. Pike, 5 B. Mon., 155; Meyer vs. Field, 37 Mo., 441; Corby vs. Dean. 44 Mo., 381; Ch. Pr. Act, art. 2, § 14; E. C. 1835, p. 509, Id., 1815, art. 2, § 23, p. 812; Ryan vs. Ryan, 9 Mo., 539 ; Nagel vs. Nagel, 12 Mo.’, 53.</p> <p>cited Enderkin vs. Fitch, 2 Ind., 90; Stoner vs. Stoner, 9 Ind., 505; Slason vs.'Wright, 14 Yt... 208; Kemp vs. Mack-well, 3 Atk., 811; Sto. Eq. PL, 5th ed., 375, § 399; 2 Barb. Ch. Pr., 127; Field vs. Schieffelin, 7 Johns. Chy., 252; Nordmanser vs. Hitchcock, 40 Mo., 178.</p>

Louis Circuit Court. cited Tale vs. Dedion, 29N.Y., 450-9 ; Willard vs..Eastham, 15 Gray, 335 ; and these cases are cited with strong approbation in the text of his opinion by Wagner, J., in Kimm vs. Weippert, 46 Mo., 543-4. cited Miller et al: vs. Brown, 47 Mo., 504 ; Meyers vs. Yan Wagoner, 56 Mo., 115; Kimm vs. Weippert, 46 Mo., 545 ; Claflin vs. Yan Wagoner, 32 Mo., 252 ; Lincoln vs. Rowe, 51 Mo., 571; McQnie vs. Peay, 58 Mo., 56 ; Coates vs. Robinson, 10 Mo., 757;…

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

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

<p> •Appeal from Si. Louis Circuit Court. </p> <p>cited Walker vs. St. Louis, 15 Mo., 563 ; Christy’s Adm’r vs. St. Louis, 20 Mo., 143 ; State vs. Powell, 44 Mo., 436 ; Hill. Tax., pp. 421-4, 449-51; Fellows vs. School. 39 Me., 559; Dow vs. Chicago, 11 Wall., 108 ; Miss. Co. vs. Jackson, 51 Mo., 23; Hill. Tax., 423, § 925.; Brown vs. Harris, 52 Mo., 307.</p> <p>cited Gen. Stat., 1865, ch. 13, §§ 26, 58 and 84; Falconer vs. Higgins, 2 McLean, 212; Cooley Const. Lim., 2d ed., 266; Goggins vs. Turnip-seed, 1 S. C., (N. S.) 180; Clafiin vs. McDonough, 33 Mo., 412; Smith vs. Redfield, 27 Me., 145; Preston vs. Boston, 12 Pick., 7, 14 and 15 ; Sumner vs. Dorchester, 4 Pick., 361; Joyner vs. School Dist,., 3 Cush., 567; Dakotah vs. Parker, 7 Minn., 278; Mayor of Balt. vs. Leffeuower, 4Gill., 425.</p>

Louis Circuit Court. The court erred in refusing to permit plaintiff to show, by proper documentary evidence, that since this action was instituted the title o£ the lot had been perfected by plaintiff. (Wash. R. P.. 3 ed., vol. 3, p. 276-7; Pierce vs. Hall, 41 Barb., 142-144; Id., 277, 278 ; Crowley vs. Wallace, 12 Mo., 143 ; 3 Cow., 75; Irvine vs. Irvine, 9 Wall., 617; Poole vs. Fleeger, 11 Pet., 185, 211; Shumate vs. Reavis,■ 49 Mo. 333, 336; Ware vs..

•Appeal from, St. Louis Circuit Court. I. The addition made by the court to the instruction in regard to the difference between the rule of evidence in civil and criminal cases, viz: “regard being had, however, to the serious nature of the charge in determining the preponderance or weight of evidence,” was erroneous. (Marshall vs. Thames Fire Ins. Co., 43 Mo. 586.) Besides the addition was a comment on the evidence. It negatived the rest of the instruction. II.

<p>1. Partition, judgment in, must not contravene will. — Where, by the terms of a will the estate is vested in the executors to be sold after the death of testator’s wife, and the proceeds to be divided among the children, a judgment in partition on the death of the testator, is improper. Partition cannot be made in contravention of a will.</p> <p>2. Sheriffs’ sales — Inadequacy of consideration — Irregularities, as to strangers, as to privies. — Inadequacy of price as a ground for setting aside a sheriff’s sale, after the rights of innocent third parties have intervened, is not favorably regarded by the courts. But as to parties affected with knowledge of the facts, Infirmities and irregularities connected with the sale, such as inadequacy of consideration, failure of the sheriff’s report to show sale during a session of die circuit court and the like, are considered in a different light, as ground for equitable relief.</p> <p>3. Sheriffs report of sale, exceptions to — Rule of St. Louis circuit court, to what does not apply. — Rule forty-four of the St. Louis circuit court, providing that, unless exceptions to a Sheriff’s report of sale are made within three days, the same shall stand confirmed, has no application to a case where irregularities are apparent on the face of the sheriff’s return.</p>

Application Jot Certiorari. The Supreme Court has jurisdiction to award a certiorari not only to inferior courts, but to persons invested by the legislature with power to decide on'the property or rights of the citizen, even in cases where they are authorized by statute finally to hear and determine, if the jurisdiction be not taken away by express words.

Louis Circuit Court. I. Warehouse receipts are negotiable by endorsement thereon. (Wagn. Stat., 220.) The holder of those receipts is the owner of the goods in law, and the warehouseman is liable always to deliver the goods to the holder of the warehouse receipt. II.

Louis Circuit Court. contended, among other things, that the lien law (see especially §§ 3, 7) had reference only to new buildings and improvements, and gives preference to the lien holder over all incumbrances which may attach subsequent to the commencement of such building or improvements. cited Holzhour vs. Meer, 59 Mo., 434; Wagn. Stat., ch. 88, Art. 3, § 1, Mechanics’Liens ; Graves vs. Pierce, 53 Mo., 429; 2 Kent Com., 343; Bush vs. Baxter, 3 Mo., 207; Am. Fire Ins.

ffljpjpeál from Carroll Circuit Court. I. There is no means of determining, by the settlements, whether the balance claimed is on account of cash collections, notes required to be taken for deferred payments or Carroll county railroad bonds, which he was authorized to take. I. The settlement shows the amount in the sheriff’s hands from that source, and it shows it to be in money. II. That settlement is a record and imports absolute verity.

The authority of the agent of a corporation may be implied from the adoption or recognition of acts by the corporation, (liiley vs. Forsee, 57 Mo., 390 ; Southgate vs. A. & P. R. R., 61 Mo., 89.)

I. The first count of the indictment covers the statutory offense and is therefore sufficient. (Wagn. Stat., 459, § 41.) It is not necessary to state more definitely the money embezzled. (Whart. Crim. L. [7 Ed.] § 1941; 2 Bisli. Grim. P., 325.) Nor is it necessary to state bow much belonging to the State and county, each, was embezzled. The substance of the offense is the embezzlement of public money. (Brown vs. State, 18 Ohio St., 506.) II.

<p>1. Sale of personal properly — Oats to be threshed and measured — Delivery— When title passed — Confusion of goods — Replevin.—Oats were purchased and paid for, which were then in stacks, but were to be threshed and measured by the vendor, and then and there delivered to the purchaser, who was to furnish sacks for them, and if he did not furnish enough sacks the balance were to be stored by the vendor. Held, that the title passed when the oats were threshed and measured, and the fact that the vendor mixed the oats, for which no sacks were provided, with his own oats, did not divest the title of the purchaser, but that he might have maintained replevin therefor.</p>

I. The judgment is irregular, and the motion in arrest should have been sustained. (Revis vs. Lamme & Bro., 2 Mo., ' 207; Rohrbough & Co. vs. Reed Bros., 57 Mo., 293.) I. The defendant could only have taken advantage of the error by plea in abatement. (Hawley vs. Blanton, 1 Mo., 49 ; Boise vs. Langham, 1 Mo., 572 ; Thompson vs. Elliot, 5 Mo., 118.)

The damages ean only be the value of the easement. I. The fact of the incumbrance being known to the purchaser will be no bar to his recovery upon ij. (Rawle Cov., 123, 124; Kellogg vs. Malin, 50 Mo., 500, and cases cited ; Beach vs. Miller, 51 Ills., 206, and cases cited.) II. The true rule of compensation in this case is the damage resulting to the estate in its market value from the incumbrance (this is such an incumbrance as the plaintiff or defendant can not remove).

<p>1. Practice, civil — Trials—Jury, province of — Supreme Court. — It is the province of the jury to determine the facts from the evidence, and of the Supreme Court to see that the instructions submitted the facts fairly to the jury.</p> <p>2. Practice, civil-Triah-Insiructions-Plaintijpi, condition-Contributvry negligence — In suit for damages sustained in stepping off a car, the plaintiff then suffering from a prior injury, an instruction to find for the plaintiff if the jury find that the conductor refused to stop the oar where asked, and that the plaintiff carefully, and without negligence, stepped off, is erroneous, because the plniniff’s condition at the time is ignored, and the contributory negligence is left to the jury to find as a matter of fact, without any explanation of what would, on the evidence, constitute such contributory negligence. And an instruction to the jury, that if satisfied the car was moving faster than usual when the plaintiff got off, and that plaintiff knew the risk and danger, and was not influenced by the remark of the conductor to jump, this was evidence of a want of care, was objectionable, in not referring to plaintiff’s wound, and in not directing the attention of the jury to facts, which, if satisfactorily proved, would, in the estimation of the court, constitute negligence ; but it simply declares certain facts evidence of negligence, when the facts did not of themselves constitute • negligence.</p>

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

L The final settlements of administrators and curators have the effect of judgments, and unless appealed from when made in the probate court, are at law conclusive upon the parties interested. (Jones vs. Brinker. .20 Mo., 88 ; State vs. Rowland, 23 Mo., 98; Mitchell vs. Williams, 27 Mo., 400; Pierce, adin’r, vs. Bates, 47 Mo., 390.) II.

Jlpjpeal from Gentry Circuit Court. I. The notice must set forth specifically and with precision the facts that, if true, would have changed the result. (Skt, - net’s case, Brightly Lead. Elec. Cas., 320, and note.) It is certainly insufficient, and the objection to any evidence was equivalents a motion to quash the notice. (Wilson vs. Lucas, 43 Mo., 292-3; Castello’s case, 28 Mo., 259.) It does not allege that he was eligible or qualified to bold the office he is contesting.

I. The admissions of Wicker were clearly inadmissible. Admissions of an agent, to bind the principal, must be within the scope of his employment, and must have been made as a part of the transaction itself.

I. The measure of damages could be no more than a jnst cofnpensation for continuance of incumbrance. (3 Cush., 206; 5 Wis., 22 ; 4 Kent, 476.) II. An easement apparent to grantee is not embraced in'a general covenant. (22 Wis., 628; 16 Ind., 142.) III. If plaintiff was entitled to ¡'ecover at all, the measure of damage would be only the consideration money and interest.

<p> Jljypeal from, Carroll Circuit Court. </p> <p>cited Pomeroy vs. Benton, 57 Mo., 531; Wannell vs. Kern, 57 Mo., 478; Brown vs. Worth, 21 Mo., 528; City Bk. of Columbus vs. Phillips, 22 Mo., 85; Stevens vs. Spears, 25 Mo., 386 ; Young vs. White, 18 Mo., 98; Sto. Eq. [5 ed.], § 523, and cases cited.</p> <p>I. Where there has been an accounting between the parties, and a bill or note given in settlement of the amount found due, in an action upon such bill or note the defendant cannot impeach the charges contained in the account thus settled. (Chit. Cont., 9 Am. ed., 670.) And such an adjustment is a bar to all discovery and relief, unless some matter is shown by which the account is in truth vitiated. (Sto. Eq. jur., 523 ; Drew vs. Power, 1 Schoales & Lefr., 192 ; Sto. Eq. Pl., 797-800; Taylor vs. Haylin, 2 Brown Ch. R., 311; Perkins vs. Hart’s Adm’r, 11 Wheat., 237; 1 Ves., 317; Sherburne vs. Inchiquin, 1 Brown Ch. R., 238; Fuller vs. Crittenden, 9 Conn., 406 ; Martin vs. Beckwith, 4 Wis., 219 ; Goodwin vs. U.. S. An. Life Ins. Co., 24 Conn., 591; 1 Sto. Eq. Jur., § 527; Draper vs. Owsley, 15 Mo., 516; Pomeroy vs. Benton, 57 Mo., 531: Stackpole vs. Arnold, 11 Mass., 32 ; Livingston vs. Dugan, 20 Mo., 102; Stephens vs. Spiers, 25 Mo., 386 , Dawson vs. Remnant, 6 Esp., 24; Knox vs. Whalley, 1 Esp., 160.)</p>

■ I. The two notes and the deed of trust are to be construed as one instrument, and all taken together form but one contract. (Brownlee vs. Arnold, 60 Mo., 79, and cases cited; Cornell vs. Todd, 2 Den., 123, and authorities cited.) II. The payer in the note, and he alone, had the right to determine whether the interest must be paid annually, or whether he would permit it to run as a part of the principal, bearing the same rate of interest. (2 Pars.

Petition for Mandamus. I. There is no authority for calling special elections at all,, and there is no ‘authority for' elections by the tax payers for any purpose. The constitution does not enforce itself. (St. Jo. & Denver City E. R. Co. vs. Buchanan County Court, 39 Mo., 488-89 ; Graves vs. Slaughter, 15 Pet., 496.) II.

I. The court should have ordered the distribution of the estate in 1871, at the very date from which it now charges interest on the executor by way of damages. The executor was not in default till the court ordered distribution. (Wagn. Stat., Ill, § 3.) II. But even if an order of distribution had been made, no right to impose eight per cent, interest, as damages for failure to comply therewith, would have followed. (Wagn. Stat., 112, § 10; Id., 109, 110, §§ 13, 14, 15.) III.

I. Mortgages are not governed by the same law as commercial paper, and the assignment of Smith’s note by Cowan could not vest the plaintiff with any higher rights or stronger equity, in the mortgage given by Smith, tlian Cowan himself had; and if in his hands the mortgage was canceled, or could not have been enforced, neither could plaintiff enforce it.

<p>1. Administration — Annual settlements — Final settlements — Division of estate— Compromise. — Oft appeal from a final settlement of an administrator mistakes in annual settlements can be corrected, and the fact, that the heirs compromised a suit as to the validity of the will on the belief that such annual statement was correct, cannot influence the action of the court. They might with other circumstances, have some weight to set aside the compromise.</p> <p>2. Administration — Final settlements — When tobe assailed. — Final settlements of administrators, curators, etc., must be seasonably and directly assailed in order to avoid their effect as judgments importing absolute verity.</p> <p>3. Administration-Final settlement-Estates of father and son. — In a suit on the final settlement of A’s estate, items allowed in the final settlement of the estate of B., father of A., by the same executor cannot be assailed, not being a matter before the court.</p> <p>4. Administration — Final settlement — Items questioned. — In a suit on the final settlement of an administrator concerning certain charges it was held:</p> <p>(a.) Where an administrator inventoried certain slaves, which were emancipated while in his hands, that lie was not chargeable therefor.</p> <p>(b.) Where the administrator under a power of attorney borrowed money for a trip for the deceased, that an itemized account of expenses, together with the balance in'his hands should be filed; otherwise the claim should be disallowed.</p> <p>(c.) Where the administrator in good faith and under advice of counsel took a trip to look after the estate, his claim should be allowed ; where sufficient testimony, explanatory of such claim is not offered, the claim should be disallowed.</p> <p>(d.) A claim for money paid as a penalty on taxes should be disallowed, when such penalty accrued by the administrator’s neglect.</p> <p>(e.) The time to obtain credit for worthless notes is at the final settlement, and the fact, that the administrator carried such notes on his annual settlements with no mention of their worthlessness, is not conclusive upon him, and the question, whether he exercised due diligence in collecting them, is a matter of fact to be determined by evidence.</p> <p>(f.) If when the administrator receives a note, the makers thereof are solvent, but afterwards become insolvent, the burden of proof is on him to prove, that with due diligence he could not have collected it; and in the absence of such proof, the claim should be disallowed.</p> <p>B. Administration — Final settlements — Notes—Money— Interest, when chargeable. — On notes in his hands bearing 10 and 6 per cent, interest, the administrator should be charged respectively such interest; on money in his hands legally accounted for, he should be charged such interest as he actually received when invested under the orders of the court; when such orders, if any, were departed from, then with such interest as he might have received if they had been complied with ; on money in his hands mot reported according to law, but used by him, he should be charged ten per cent, interest computed with annual rests; on notes properly returned as insolvent, he shall be credited with the principal and the same rate of interest with which he was charged thereon.</p>

I. No judgment could be rendered till tbe demurrer was disposed of. II. The petition below did not charge any knowledge on Lewis’ part of the fraudulent practices of tbe other defendants. (King vs. Hudson R.R.R. Co., 2 Kern. [N. Y.J.119; Frazer vs. Roberts, 32 Mo., 457 ; Saufer vs. Saufer, 40 Mo., 160 ; Knox vs. Smith, 4 [U. S.], 298.) III.

I. The acts of the State of Missouri, which prohibited railroal companies from transporting Texas cattle into the State, are repugnant to the U. S. Constitution, Art. 1, § 8. (Canfield vs. Curved, 4 Wash. C. C., 371; 2 Sto.

Jlppeal from, Linn County Common Pleas. I. The appellant was not a party to the suit to enforce the mechanic’s lien, and therefore was not bound by it. (Wagn. Stat., 910, § 9.) ’ II. The trust deed under which appellant claimed, was the prior lien. (Wagn. Stat., 908, § 2; Houck Liens, 1-144, ch. 6.) III. The lien of the mechanic as against the appellant only attached to the erection, the fence, and he could remove it from the premises. (Wagn.

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

I. If a dowress'is guilty of fraudulent practices in inducing the purchaser to take the estate under a belief that she waives her dower, she will be estopped from afterward claiming dower. (2 Serib.

Jlppeal from Gentry Circuit Cov/rt. I. The county court had no right to take such a mortgage for school moneys. It had no power to do any act in relation to the loaning of the school fund, except such as the laws of the State specifically gave it. (Ray Co. vs. Bentley, 49 Mo., 236; R. C., 1855, p. 1424, § 22 ; Id., p. 1425-6, § 30; Nor-cum vs. D’Oench, 17 Mo., 117.) II.

I. The sheriff’s deed is void on its face, inasmuch as it does not recite that executions had been issued on the judgments recited in the deed by the justice, and that they' had been returned nulla bona before the executions were issued by the clerk of the circuit court. (Wagn.

I. Town warrants are not negotiable. (Clark vs. City of Des Moines, 19 Iowa, 199.) II. A tax payer may maintain a bill in equity for relief against a fraudulent judgment. (Dill. Mun. Corp., 1st ed., §§ 734, 736.) III. The failure of the officers of the town to answer and defend, when the corporation was sued, was a fraud on the tax payers. I. The petition charged no fraud upon the defendant Cox, and no collusion on his part in obtaining the judgment.

I. The‘plaintiff could not defeat defendant’s right to have the cause removed into the circuit court of tlie United States by amending his petition so as to reduce the claim bplow the jurisdiction of a circuit court of the United States. (Kanouse vs. Martin, 15 How. [U. S.], 198; Ladd vs. Tudor, 3 Woodb. & Minot, 325: Koberfcs vs. Nelson, 8 Blackf,, 74; Hereford vs. EEtna Ins. Co., 42 Mo., 148.) II.

Jippeal from Buchanan Circuit Court. I. The judgment was more than ten .years old in October, 1871, and could only be'revived by a suit at law, and no execution could issue, (Wagn. Stat., 791, § 11) and being in the circuit court, it was to be treated as a judgment of that court.

Tlie sheriff’s deed was inadmissible, because there was no record introduced upon which to found it, and it was not .properly acknowledged. (Wagn. Stat., 612, § 56.) There being no proper record in Andrew county, the deed could not be evidence of title to this land, unless supported by the whole record.

Bv reason of plaintiff’s diligence and interpleader’s negligence, the former obtained priority of lien, and was entitled to be first satisfied out of the property attached. (Bruce vs. Yogel, 38 Mo., 100 ; Sto. Ecp, §421.) I: The deed was recorded in tbe county in wliich the mortgagor resided, and the removal of the property from the county to another did not destroy the lien of the mortgage. (Wagn.

I. There was a very sudden and great influx of business thrown upon the road for transportation far exceeding its capacity. This was a legal excuse for not shipping the hogs with promptness. (Balentine vs. North Mo. E. E. Co.; 40 Mo., 491; Wilbert vs. N. & E. E. E. Co., 12 N. Y., 245; Galena & Chicago Union. E. E. Co. vs. Eae, 18 111., 489 ; E. E. Co. vs. Eeeves, 10 Wail'., 176; Denny vs. N. Y. C. E. E. Co., 13 Gray, 481; Morrison vs. Davis, 20 Penn. St., 171; Clark vs. Pac.

<p>1. Evidence — Pleadings, fact admitted by. — When a factia admitted by the pleadings, evidence to prove it is properly excluded.</p> <p>2. Practice, civil — Trials—Instructions—Sow many to be given. — Where the instructions given, whether at the instance of the parties, or on the court’s own motion, substantially cover the case, all other instructions may well be refused.</p>

L The destruction of the record of the judgment did not destroy the judgment. If the proceedings to restore the record were void, then in 1862, when scire facias was issued to revive the judgments, said judgments were in the same situation as they were the following day after the burning of the records, and a scire facias may issue on a destroyed judgment. (Strain vs. Murphy, 49 Mo., 337.) II.

<p>1. Practice, civil — Pleadings—Demurrer—Amended petition — Motion — Final judgment. — An amended petition was substantially the same as a prior one to which a demurrer had been sustained, and a motion was made to strike it out, which it seems was sustained, when the court, the plaintiff declining to plead further, rendered judgment for the defendant on the demurrer theretofore sustained. Meld, that the court could not act on the prior petition as it had been superseded by the amended one, and that judgment had not been rendered on the motion.</p>

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

Plaintiff had no right to recover as the case stood on the pleadings, it being alleged that the sale to plaintiff was void. (Craft vs. Merrill, lé N. Y., 456; Durfee vs. Moran, 57 Mo., 374; Durette vs. Briggs, 47 Mo., 356.) II. The answer did not admit or show a good title in plaintiff. The appellant having failed .to filé a motion for a new trial, it is now too late to question the acts of the court. (Brady vs. Connelly, 52 Mo., 19.)

I. Neither the scire facias nor record sets up that the defendant failed to appear in said Supreme Court, or that said Supreme Court ordered him, or made an order, that he appear in the circuit court, or that the Supreme Court entered any forfeiture of the recognizance or certified the same to the circuit court. (Wagn. Stat., 1113, § 8 ; Id., 1115, §§ 18, 19, 23.) II. The recognizance does not set up any criminal charge. (1 Arch. Cr. L., 195; State vs. Gibbon, 23 La.

I. The fact, that defendant’s employee failed to ring the bell or sound the whistle on the train that killed'plaintiff’s cow, is not of itself sufficient to make the company liable. (Wagn. Stat., 310, § 38 ; Stoneman vs. A. & P. R. R. Co., 58 Mo., 503; Karle vs. Kansas City, St. Jo. & C. B. R. R., 55 Mo., 483 ; Ills. Cent.

I. A master is not liable to his servants for injuries to them produced by the negligence of a fellow servant, unless the master has been negligent in the appointment of such negligent agent, or in retaining such servant after notice of his incompetency. (Whart. Negl., § 224, and cases cited ; Shearm. &Eedf. Negl., § 86, and cases cited.) II. The onus of proof of such negligence, or want of care, is on the plaintiff. (McDermott vs. Pac.

I. The appellant, being a corporation, was entitled to file a copy of the contract certified by the president, and authenticated by the seal of said corporation, and the copy should have been received by the court with like effect as the original. (Wagn. Stat., 592, § 18.) II. The non-filing of the contract was not a ground of demurrer. (Wagn. Stat., 1014, § 6.) III.

<p>1. Unlawful detainer — Equitable title, voluntary sale of — Sheriff’s deed-EelaiionTenant, attornment by. — A., having an equitable title to land, sold the land to B., and subsequently, asB.’s agent, leased the land to C. Afterwards the land was attached as A.’s and was, on execution in that suit, sold by the sheriff. The purchaser demanded that C. attorn to him, but C. surrendered the property to D. as B.’s agent, who let the land to the defendant. Eeld, on suit by the purchaser against the tenant for unlawful detainer, that the doctrine of relation did not apply, and that neither C. nor the defendant could properly at-torn to the plaintiff. (Wagn. Stat., 880, $ 15.)*</p>

This was a continuing trust, and no lapse of time will bar the action. (27 Mo., 591; 39 Mo., 292; Johns. Ch.B., 190, 384, and cases cited.) I. The statute of limitations bars the action. (Johnson vs. Smith, 27 Mo., 591; Keeton vs. Keeton, 20 Mo., 530; Benton vs. Lindell, 10 Mo., 557; Smith vs. Bicords, 52 Mo., 581; Bicords vs. Watkins, 56 Mo., 553.) II.

<p>1. Conveyances— Title to one and money paid by another — Evidence necessary to set aside. — Land was conveyed to A. in consideration of a negro, winch had been the property of A., but was alleged to have been given by him to B. Held, that the evidence leaving the fact of the gift uncertain, the deed would not be set aside.</p>

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

<p> Appeal from, Chariton Court of Common Pleas. </p>

I. There was no evidence to show any connection between the negligent omission and the damages sustained by plaintiff. (Wagn. Stat., 310, § 58 ; Quincy, Alton & St. L. R. R. vs. Wellliorner, 2 Cent. L. J., 622; Stoneman vs. A. <fc P. R. R. Co., 58 Mo., 503; Karle v. K. C., St. J. & C. B. R. R. Co., 55 Mo., 483; Ills. Cent.

<p> Appeal from Clay Circuit Court. </p> <p>I. Nowhere on the record does it appear that the parties could not agree on the compensation to be made for the land taken. (Cunningham vs. Pac. R. R., 61 Mo., 33.) This being a question of jurisdiction, it can be raised even here for the first time.</p> <p>II. An infant cannot waive service of process by himself or guardian.</p> <p>III. The apportionment is so excessive as to call for thfe censure of this court.</p> <p>I. The facts are found by the commissioners, and like the verdict of a jury, when affirmed by the court sitting in the cause, will not be reviewed by this court, unless the court is satisfied that they erred in the premises on which they made their report. (Sr. L. & St. Jo. R. R. Co. vs. Richardson, 45 Mo., 466; IT Mo., 3T6 ; 43 Barb. [N. Y.], 169 ; 24 Mo., 552; 2 How., 25; 6 How. Pr., 46T; Abb. Dig. [Law of Corp.], 188.)</p> <p>II. The Court can only review the errors mentioned in the motion for a new trial. (Brady vs. Connelly, 52 Mo., 19.)</p>

<p> Appeal from Harrison Circuit Oov/rt, </p>

I. The city court had full and exclusive jurisdiction of the offense, and the circuit court could take no cognizance of it whatever, except upon appeal. (Sess-.

I. Where words of a similar import are employed in an indictment, it is not necessary to pursue the language of the statute literally. (25 Mo., 426; 48 Mo., 93; 15 Mo., 515.) II. Hunting on Sunday does not come within the exceptions of §ither a work of necessity or charity, and is therefore labor within the meaning of the statute.

The three causes attempted to be set up by the defendant, as a cause-for quashing the indictment, are not sufficient, for the reason that they do not distinctly specify the grounds of objection to the indictment. The specific defect must be pointed out. (Wagn. Stat., 1090, §24; State vs. Van Houten, 37 Mo., 357 ; State vs. Marshall, 47 Mo., 378.)

<p>1. Practice, criminal — Ti'ials—Instructions to be given, — Jn all criminal cases it is the duty of the court to instruct the jury as to the law ; if the instructions offered are objectionable, the court should proceed to give such as the law requires.</p>

I. The declarations of Ware to Francis and others were improperly admitted in evidence, because they were extorted by fear, and made under circumstances calculated to produce fright and terror in said Ware. (State vs. Brockman, 46 Mo., 566, and authorities cited.) II.