Volume 63 — Missouri Reports

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

Hewitt, by standing by and permitting the sale and receiving the surplus and allowing the sheriff to make his deed to plaintiff, is estopped from questioning plaintiff’s title, unless it appear that Plewitt was himself ignorant of the defect in the service. (19 Ill., 295; 9 Barr, 299; Stroble vs. Smith, 8 Watt, 280; Smith vs. Worden, 7 Penn. St., 424; Herm. Estop., 348, 349; Lange’s Appeal, 53 Penn. St., 383; Spragg vs. Shriver, 25 Penn.

<p>1. Bi-actice, Supreme Court — Weight of evidence. — In civil action at law the Supreme Court will not interfere on the ground of weight of evidence.</p> <p>2. Agency — Bank Cashier — Representations of — Surety on note — Mstoppe1,ete.— The general duties of the cashier of a bank are to collect notes, keep the funds arising from them and deliver up notes and other securities when paid, and in the absence of special authority he has no power to discharge the surety on a note; hence his representations to the surety that he is no longer looked to, will not bind the bank, nor will the bank be estopped from asserting its claim by reason of such assurance.</p>

<p>1. Promissory note — Unauthorised signature, ratification of — Consideration— One whose signature has been attached to a note without his authority may ratify the signature. And no new consideration is necessary to valídale the ratification. — (National Bank v. Gay,y>osip. 33 )</p> <p>2. Promissory note, execution of — Ratification—Evidence—Burden of proof.— Where the execution of a note is denied, the onus is on plaintiff to show its execution by defendant or his ratification of it with full knowledge of the fact. —(SeeNat’l Bank v. Gay, postp. 83.)</p> <p>3. Evidence — Instructions, giving of. — When the evidence on a point is conflicting, the law bearing on it should be declared by appropriate instructions. (Nixon vs. Palmer, 8 N. Y. 398.)</p>

The instrument sued on is not a promissory note, and was inadmissible under the pleadings. The stipulation for the payment of an attorney’s fee reduced it to an ordinary contract. (Ancil vs. Brooks, 51 Mo., 178; Comstock vs. Davis, 51 Mo., 569; Lowe vs. Bliss, 24 Ill. 168; Read vs. McNulty, 12 Rich. [Law] 445; Philadelplia Bank vs. Newkirk, 2 Miles, 442 ; Ayrey vs. Fearnsides, 4 M. & W., 168 ; Palmer vs. Fahnestock, 9 Upper Can.

<p>1. Municipalities — Restraint of animals — Ordinances touching — Penalties against owners, intended for what cases. — The town of Trenton passed an ordinance authorizing the seizure of hogs found running at large within the corporate limits, and requiring the owners, in order to redeem, to pay certain penalties and costs. Held, 1st, that the penalty could be enforced although the owner resided without the corporate boundaries ; 2d, that the legislature, as a sanitary or police regulation, could pass an act authorizing such a measure; 3rd, that tlie penalties of the ordinance were not intended to apply to cases where the escape of the stock was unavoidable, and the owner used requisite diligence in attempting to reclaim them.</p>

<p>1. Principal and surety — Extension of note with forged signatures of sureties taken on misrepresentations — Sureties to original paper not released. — It is settled law that if the creditor enters into a binding contract, the effect of which will be to give further time to the principal debtor, without the consent of the surety, the surety will be discharged. But where an original note, having the names of sureties attached, is surrendered, and a.second, having the same names is taken in extension of the debt, by reason of representations that the signatures of the sureties are genuine, the paj*ee may, on discovery that they are forged, repudiate the new contract, and hold the sureties on the original paper. •</p>

I. The deed from Krum as trustee is void. The sale was made in Chillicothe, and Krum, at the time of the sale, was in St. Louis. (Graham vs. King, 50 Mo. 24; Bales vs. Perry, 51 Id. 452.) II. Under the agreement of Hutchinson & Irelan, the purchase by the bank, at the sale under the Krum-Stagg deed of trust, would hare been voidable even if Krum had been present at the sale. III.

I. The agreed state of facts shows that the proceeds and money for which the suit is brought are neither the earnings nor choses in action of the wife, but property which on acquisition of it by the wife, became at once the property of the husband. In this case possession of wife is that of husband. (Tyl.

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

I. The fact that the other two notes were given to another person for his interest in some cattle ought not to exclude them from the jury. They were a part of the res gestee. IT. Held: that there is no presumption concerning alteration such as interlineation and erasures ; but that it is a question for the jury to determine under all the circumstances and evidence.

I. The condition named in the relinquishment should have been construed by the court as precedent and not subsequent. The relinquishment had no immediate operation, hut was dependent upon the fulfillment of the condition. Plaintiff did not part with his absolute title to the land, but only with tbe right of way, the fee remaining in him, subject to the easement conferred on the company. (Andrews vs. Lester, 32 Me. 394; Dale vs. Pa.

I. By tbe terms of the contract with Ann M. Webb, the Han. & St. Jo. R. R. Co. reserved the right to terminate it, to re-enter and re-sell for non-payment of the purchase money, or for a failure to pay the taxes assessed upon the land. In both particulars respondent was in default for the years 1869 to 1873, inclusive, a period of .five years.

<p> Appeal from Buchanan Circuit Court. </p> <p>Defendant is not here sued as a trustee, but for injuries sustained by reason of bis tortious agreement to release the bidders at the first sale. He bad authority to make that sale, but in the sale of the land, bis powers were ended, bis trust was closed, be bad no power to discharge the bidders, bis power to adjourn the sale (see Judge vs. Booge, 47 Mo. 550; Richard vs. Holmes, 18 How. 147 ; G-ardner vs. Armstrong, 31 Mo. 535 ; Dover vs. Kennerly, 38 Mo. 469; Bernard vs. Duncan, 38 Mo. 170,) gave him no such right. And when by the second sale eight hundred and six dollars were lost to the plaintiff, he bad bis cause of action against the trustee, and the suit was properly an action at law for damages. (Rutherford vs. Williams, 42 Mo. '32, 35, 36 ; 7 Johns. Ob. 14 ; 6 Ark. 612 ; 2 Sch. & Lef. 630 ; 4 Johns. Cb. 654 ; 2 Yes. Sr. 19 ; 1 Bald. U. S. Cir. Ct., 420, 421, 422-8 ; 11 Wheat. 250 ; 2 Wheat. 56 ; 9 Watts. 32 ; 10 Watts. 318 ; 17 Yes. 273 ; 2 Sto. Eq. § 794 ; 31 Mo. 535.) -</p> <p>Plaintiff may elect to pursue the trust property or to hold the trustee personally, as he has done. (Oliver vs. Pratt, 3 How. U. S. 333 ; Flagg vs. Mann, 3 Sumn. 486 ; Jarritt vs. Moreton, 44 Mo. 275.) Such being his right, the question of the validity of the second sale is immaterial, he has chosen to affirm the first sale, be cannot enforce his rights under it as against the purchasers, he was not a party to the contract of purchase ; (Paige vs. Becker, 31 Mo. 466 ; Gardner vs. Armstrong, Id. 535 ; Jones vs. Miller, 12 Mo. 408,) and defendant bartei’ed away his rights under the sale. But when the trustee released the purchasers, he in effect guaranteed that no loss should result to plaintiff, and against him plaintiff never lost his rights or his remedies. (Peacock vs. Nelson, 50 Mo. 256.)</p> <p>If the defendant wishes to rely on the statute of frauds as a defense he must plead it. (Gardner vs. Armstrong’, 31 Mo. 539-40.) But even in that shape defendant cannot set up the invalidity of his own acts as .a defense to this action for damages. (See 47 Mo. 84, and 51 Mo. 23 ; Clarkson vs. Creely, 40 Mo. 114 ; Henderson vs. Henderson, 13 Mo. 351; Hamiltoii vs. Scull, 25 Mo. 165 ; Fenton vs. Hamilton, 35 Mo. 409.)</p> <p>I. The mortgagor is not entitled to sue respondent as trustee for difference in bids of purchasers at the two sales, for he thereby affirms the last sale, and the act of his agent, the trustee, in making it, and the affirmation of the second sale is a repudiation of the first one. In other words he is estopped from objecting to the first sale and from claiming any damages arising therefrom.</p> <p>H. The petition does not show that the trustee could compel Albin and Weakley, the bidders at the first sale, to' pay their bids. There is no averment therein showing any written contract signed by them, by which they were bound to pay their bids. A memorandum signed by the trustee would not bind them. (Tull vs. David, 45 Mo. 445 ; Ennis vs. Waller, 3 Blackford, 472.)</p> <p>III. The petition shows the land to have been purchased by the cestui que trust, at the last sale. As a result, if the cestui que trust has been guilty of any fraud in connection with the sale of the mortgaged premises, or the trustee has been guilty of any unfair conduct therein, then the mortgagor will be permitted to redeem, and thjs remedy is necessarily exclusive of any other as there cannot properly be concurrent remedies in law and equity for the same wrong.</p> <p>IY. If the trustee had been guilty of any wrong or fraud in the execution of his duties under the trust, and the property by his act had passed into the hands of an innocent purchaser, then the trustee might be held accountable, in a court of equity, for the full value of the property on the sole ground that the trust property had passed out of the reach of the court.</p>

I. No right of action ever enures to a surety against his principal until the security debt is paid. (Powell vs. Smith, 8 Johns. 192; Wetherby vs. Mann, 11 Johns. 518; Arnold vs. Camp, 12 Johns. 409; Sheehy vs. Mandeville, 6 Cr. 264; Elmwood vs. Dudendorf, 4 Barb. § 398; Anslie vs. Wilson, 7 Cow. 662; Randall vs. Rich, 11 Mass. 498; see also Walker vs. McKay, 2 Met. [Ky.] 294; Lee vs. Griffin, 31 Miss. 632; Berthold Adm’r &c., vs. Berthold, 46 Mo. 557.) II.

<p> Error to Daviess Circuit Court. </p> <p>I. This is an action strictly in rem. (1 Chit. Plead., § 162; Coffey vs. Dudgeon, 38 Ind. 512; Allen vs. Fox, 51 N. Y. 562; Grace v. Mitchell, 13 Wis. 533; 1 Saund., 347b., note b.; Fletcher vs. Wilkins, 6 East., 283; Sharp vs. Whittenhall, 3 Hill, 576; 1 Bouv. Law Dict., 693; 3 Bouv. Inst., 131.) Hence, the court can only acquire jurisdiction over the res by seizure under a valid process. (Freem. Judgm., § 119; Cooper vs. Reynolds, 10 Wal., 308; Rowan vs. Lamb, 4 Greene [Iowa], 468.) But here the clerk had no authority to issue a valid order of delivery until after affidavit; without it, the order of delivery was void, and the court acquired no jurisdiction.</p> <p>II. The fact that the property was not present at the place of sale does not render the title acquired under such sale invalid. (Keave vs. Newell, 1 Mo. 754.)</p> <p>I. The sheriff must actually seize personal property, so, as to give possession at the sale, which was not done in this case. (Wagn. Stat., 611, § 50; Newman vs. Hook, 37 Mo. 207; Yelldell vs. Stemmons, 15 Mo. 443; Bac. Abr., vol. 3, p. 734; 3 Washb. C. C. R., p. 60.)</p> <p>The property must be present, or the sale will be void,, and the purchaser get no title. (Ror. Jud. Sales, 385, and cases cited.)</p>

<p> Appeal from Buchanan Circuit Court. </p> <p>cited: St. Louis University vs. McCune, 28 Mo. 482, and cases cited; Kincaid vs. Dormey, 47 Mo. 337; Knowlton vs. Smith, 36 Mo. 507; Tamm vs. Kellogg, 49 Mo. 123.</p> <p>cited: Tamm vs. Kellogg, 49 Mo. 123; Blair vs. Smith, 16 Mo. 278; Jackson vs. Ogden, 7 Johns. 242-5; Rockwell vs. Adams, 6 Wend. 467; 7 Cow. 761; 10 Wend. 104-109; Taylor vs. Zepp, 14 Mo. 482-90; Lindell vs. McLaughlin, 30 Mo. 33; Majors vs. Rice 57 Mo. 389.</p>

<p>1. Land titles — Description in deed — Sufficiency of. — Where land was described ill a conveyance as “block 52, in DelCalb Co.,” and was known by that description by the parties and by residents in the neighborhood, the description was held sufficient to pass the title.</p>

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

There was no proof of negligence in supplying insufficient or defective appliances, or of want of care and skill on the part of defendant’s engineers. The proof clearly showed the contrary; and the mere fact that engine No. 22 emitted sparks is not negligence per se. (40 Cal. 14; 18 Barb. 80; 8 Barb. 366; 4 Md. 242; 2 Am. R. R. Cas. 30; 14 N. Y. 218; 2 Strob. 356; Sherm. & Redf. Negl. § 332, p. 395.) An engine properly constructed must emit some sparks.

<p>1. Judgment — Ejectment—Interest on rents, etc. — Where judgment is rendered in ejectment, interest on the rents is not collectable.</p>

I. Plaintiff and the other beneficiaries had a common interest in the property and the judgments. Hence, neither had a right to speculate with the subject matter of the trust at the expense o£ the other beneficiaries. “Community of interest produces a community of duty.” Isaac Curd’s purchases, as set forth in the petition, were, therefore, for the benefit of all the beneficiaries under the deed of trust. (Keech vs, Sanford, 1 Lead. Cas.

I. Burnside is subrogated to all the rights of Bell in the premises. Bell, in a court of equity, after this debt had become due, could compeí Fetzner and his sureties to exonerate him from his liability by paying the debt, and could do so even though he, Bell, had paid no part of it. (1 Sto. Eq. §§ 327, 499 ; Wooldridge vs. Norris, Law Report, 6 Eq. 410 ; Champion vs. Brown» 6 John.

I. Plaintiff having been organized under Ch. 67 of the gene ral statutes, had the right to loan money on personal security. (See Gen. Stat. 1865, p. 345, § 1.) II. The act of 1869 does not prohibit insurance companies from loaning money on personal security. These companies have the right, when the statute does not prohibit it, to invest their idle capital in stocks, or to loan it on personal or other security.

Jlppeal from, Buchanan Circuit Court. * I. The testimony of Catharine Edwards contradicted the written contract, and was improper. (Greenl. Ev., 8th ed., §§ 275, Bunce vs. Beck, 48 Mo. 266 ; Murdock vs. Ganahl, 47 Mo. 137.) II.

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

For injuries to the wife, two causes of action accrue, one to the wife, for personal injuries and physical suffering that she has sustained, and the other to her husband, for expenses and loss of services incurred by reason of the injuries. In the former the husband is joined, as a nominal party only, if living. (Smith vs. City of St. Joseph, 55 Mo. 456.) On the death of the husband, the cause of action in favor of the wife survives to her.

cited; 42 Mo. 117; 1 Par. on Cont., 475; 24 N. Y. 40; 48 Mo. 201; 28 Mo. 322; 30 Mo. 118. contended among other points, that while township boards of education could only make contracts in writing for the employment of teachers, boards of education of cities, towns and villages might contract in .the same manner as other corporations, and that the action of the sub-committee was authorized by, and binding on the board.

I. A discharge in bankruptcy regularly granted is a bar to a demand like plaintiff’s in a State court. It can only be impeached in the United States Court, and within two years from its date. (§ 34 Bankr. Act, 1867; Bump Bankr. p. 53, note b.; Coney vs. Ripley, 4 Bank. Rep. 163; Ocean Nat.Bk. vs. Olcott, 46 N. Y. 12 ; Parker vs. Atwood, 52 N. H. 181; Oates vs. Parish, 47 Ala. 157.) II.

Plaintiffs are bound by tbe decree and have no right to pursue any other remedy. It amounts to and is an estoppel.

I. The petition must show how the plaintiff is guardian; if appointed by a court exercising probate jurisdiction, the name of the court, and the county in which it exercises its functions, should be stated. (Stanley ys. Chappell, 8 Cow. 235 ; State, &c., vs. Matson, 38 Mo. 489; Higgins vs. Hannibal & St. Joseph R. R. Co.,’36Mo. 418.) II. The- petition does not show that the alleged ward ié a minor.

Jlppealfrom Webster Circuit Court. Evidence of threats made by the deceased against the accused, although not proven to have been communicated to the prisoner before the killing, are admissible in all cases, where the acts of the deceased in -reference to the fatal meeting are of a doubtful character, or where evidence has been given making it a question for the jury whether the killing was done in self-defense or not.

Jlppeal from Linn Circuit Court. L The holder of a negotiable note, who bought for value, before maturity, and without notice, can recover it, although he took the same under circumstances that would have excited the suspicion of a prudent man. Nothing short of mala fides in the holder can defeat his recovery. (Goodman vs. Harvey, 4 Ad.& Ell. 470 ; Bank of Bengal vs. Fagan, 7 E. F. Moore, P. C. 61, 72; Raphael vs. Bank of Eng. 38 Eng. Law & Eq.

<p>1. Land, sale of — Action for deceit — What representations necessary lo sustain. — Although an unintentional misrepresentation in the sale of land may lay the foundation for an action to set aside the contract of sale, it will not sustain a suit at law for damage. To justify sucli»aetion, there must be fraud ■as distinguished from mistake. There need not, however, be absolute falsehood. If the party willfully asserts as facts within his own knowledge, and not as mere matters of opinion or general assertion, what in truth he knows nothing about, if the subject of assertion is material, the statement will be held equivalent to that of a known falsehood. But to justify the action it must appear that deceit was practiced, and for the purpose of putting the vendee off his guard, or that special confidence was reposed in the representations of the vendor, and that the contract was entered into on the strength of the statement. 'And the proof of the fraudulent representations must be clear. And if the buyer trust to representations not calculated to impose on men of ordinary prudence, or neglect means of information easily in his reach, he cannot recover.</p> <p>But the case is otherwise wliere the land, which is the subject of purchase, is at a distance, and the purchaser relies wholly upon the description given by the vendor.</p>

The following was the demand filed in the probate court: “The estate of Henry B. Bouton, deceased. To R. H. Hunt, Dr. To 2^} acres of land, at $250 per acre, $535.00 Interest 3 years, 96.30 Total am’t due, $631.30”

<p>1. Practice, civil — Allégala probata — Judgment baaed on evidence, but not pleadings — Execution—Levy—Exemption — Sheriff, action against. — In action against a sheriff for failure to make a levy, where judgment is given for defendant, on evidence showing that the property was exempt under the execution law, but such exemption is not set up as a defense by the pleadings, the cause wiil be reversed.</p> <p>2. Sheriff, action against — Failure to levy — Damages—Proof as to. — Before plaintiff in an action against a sheriff for failure to levy can recover, he must show that he has been damaged in consequence of defendant’s wrongful neglect to do his duty.</p>

<p> Appeal from Jackson Circuit Court. </p> <p>cited: Vooght vs. Winch, 2 Barn. & Aid. 662 ; Goddard’s case, 2 Coke, 4 ; Howard vs. Mitchell, 14 Mass. 241; Church vs. Leavenworth, 4 Day’s Oa. Ev. 277; Outram vs. Morewood, 3 East. 346 ; Cole vs. Blayton, 16 la. 10 ; Alexander vs. Taylor, 4 Den. 302 ; Thomas vs. Sterns, 33 Ala. 137 ; Coleman vs. McMurdo, 5 Rand. 51 ; Pico vs. Webster, 12 Cal. 140; Yorks vs. Steele, 50 Barb. 397.)</p> <p>cited: 1 Greenl. Ev., 12 ed., §§ 523, 531 ; Harvie vs. Turner, 46 Mo.,444; Lovejoy vs. Murray, 3 Wall. 1; Stoddard vs. Thompson, 31 Iowa, 80 ; Valentine vs. Mahoney, 37 Cal. 389 ; Dame vs. Wingate, .12 N. H. 296 ; Adams vs. Barnes, 17 Mass. 368 ; Isaacs vs., Clark, 12 Vt. 692 ; Young vs. Black, 7 Cr. 565 ; Reynolds vs. Stansberry, 20 Ohio, 344 ; Marsh vs. Pier, 4 Rawle, 273 ; Cist vs. Zeigler, 16 S. & R. 282 ; Man vs. Drexel, 2 Barr. 202.</p>

The mortgage deed of H. James to Sparlin Day and Stuart, conveyed to them an estate as mortgagees, coupled with a power. And the effect of their deed to Dustin was to convey the estate and also the power to him, subject only to the right of redemption ; and under that power Dustin had the legal right to convey the property itself without reference to the power, (as such power was coupled with an interest) to plaintiff.

I. If the debts of the covenantees were separate, the agreement, sued on, though joint in its terms, was joint or several. (1 Chit. Plead, pp. 10, 11 ; 1 Saund. 154, note 1 ; 8 Taunt. 247, 248; 2 Mass. 405; 6 Wend. 268 ; 4 Wend. 414; 19 John. 216 ; 13 East. 588 ; 1st Pars. 17 ; 51 Mo. 466 ; 17 Mo. 150 ; 19 Mo. 42 ; 1 Mon. 13 ; 4 Pick. 291; 2Dana, [Kv.] 460.) II. The .contract sued on was made with Robt.

<p>1. Practice, Supreme Court — Conflict of proof. — The Supreme Court iu civil actions at law will not review questions of conflicting evidence.</p> <p>2. Practice, Supreme Court — Instructions, conflict — Record.—Conflict of instructions with each other or with the record will work a reversal.</p>

<p>1. Bond of county collector — Suit on — Allegations—What sufficient, — In suit on the bond of a county collector for failure to pay over taxes collected by him, where the petition shows when his bond was filed, for what years the taxes collected were due, that they were collected while he was collector, and in his official capacity, and were not accounted for, and such collection and failure are specially assigned as constituting the breach complained of, the petition will not be held insufficient on demurrer for failure to state in terms for what period defendant was elected, -or his bond given, or whether the collec- . tions were made during his official term, or that he ever received any credit on account of such taxes.</p>

The bond here sued on was given by James M. Turley, as principal, with J. H. Potter and Bacon Montgomery, as sureties to the State, as guardian and curator of the minor heirs of one J. J. Turley, and was filed in the county court of Pettis county and approved. Afterward, the heirs having become residents of Johnson county, William E. Bothrick was appointed guardian and curator by the probate court of the latter county.

<p>1. Special tax bill — Work included in and not embraced in contract — Effect of on bill. — The fact that a special tax bill is made to include work done by one who has no contract therefor with the city, does not invalidate ihe whole bill and prevent all recovery thereon. (See Neenan vs. Smith, 60 Mo. 292).</p>

<p>Damages — Freezing of fruit trees on railroad — Delay and exposure— Witness— Testimony not an opinion, when. — Where fruit trees, shipped on a railroad, were frozen while en route, the freezing was held to he the act of God, for which the company was not liable, unless caused by unnecessary delay in transporting them, or their careless exposure to the cold, and the burden was held to be on the owner to show such careless exposure. And if frozen while remaining in the cars at the terminus of the route, instead of being placed in the warehouse, the company was not held reponsible on that account if the cars afforded a better shelter than the warehouse.</p> <p>In such an action testimony of a witness, that if shipped as promised, the trees “ would have gone through all right,” was held not objectionable as being a mere opinion of the witness.</p>

I. The instrument from the sheriff to Wilson, being without seal, was inoperative at law ; and it could convey no other than a legal title. Hence, its record imparted no notice.

I. The vendor held the legal title to the land in trust for the plaintiff. And Virgil O. Wood, having taken with knowledge of plaintiff’s right, held subject to the same trusts. (Gibson vs. Lair, 37 Mo. 188 ; Mechanics Bank vs. Seton, 1 Pet. 299; 2 Mad. Ch. 126 ; Cordova vs. Hood, 17 Wal. 1; Majors vs. Buckley, 51 Mo. 227; 1 Mad. Ch. 364.) IX.

<p>1. Practice, criminal — Oosts, taxation of — Section 4, p. 349, Wagn. Stat., relating to costs to be paid by the State in cases of acquittal, refers only to costs that have accrued at the trial, and which have not been previously adjudged against either party. (Compare Wagn. Stat. 2 18, p. 1104.)</p>

I. A defendant in an execution cannot set up a claim to property levied on under the 12th section “ Justice’s Court.” (Wagn. Stat, 842.) It applies in terms to other claimants. The trial of the right of property was therefore void, and the bond was without authority, voluntary and void. (Robarts vs. Samuels, IT Mo. 555 ; Wetzell vs. Waters, 18 Mo. 396.) H. Each partner, as the head of the family, cannot claim a part of the partnership property as exempt.

The amended statute requires a true description of the property, or so near as to identify the same. (Wagn. Stat. 909, § 5.) In Williams vs. Porter (51 Mo. 441), it was a legal impossibility to enforce the lien, because there was no “attempt to describe the acre of land intended to be covered by the lien.” No judgment could have been rendered, as no acre had been named to which the lien could attach. In Matlack vs. Lare (32 Mo. 262) there was the same difficulty.

I. The title to the land in dispute was passed by patent to Dr. Douthitt. The legal title being thus vested in him, the question is, whether it has passed out of him by grant or by operation of law in consequence of adverse occupancy. II.

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

Jlppeal from Randolph County Circuit Court. , • The statute being penal in its nature should be strictly construed. When the 5th clause was enacted there existed no liability for double damages, as the act imposing double damages was not passed until long after this clause, conferring this jurisdiction, was enacted, and clause 5 contemplated no such liability.

<p> Error to Vernon Circuit Court. </p> <p>cited ; Wagn. Stat. p. 1372, § 1; p. 216, § 15 ; Story-Prom. Notes, 6 ed. p. 30, § 26 ; p. 50, § 43; p. 51, § 44; Bayl. Bills, 5 ed. p. 22, § 6 ; Chit. Bills, 8 ed. ch. 5, pp. 158, 159, 180 ; Buller vs. Crips, 6 Mod. 29 ; Ryland vs. Brown, 2 Head [Tenn.], 270.</p> <p>cited: Looker vs. Davis, 47 Mo. 140 ; McGee vs. Larrimore, 50 Mo. 425 ; McClellan vs. Reynolds, 49 Mo. 312 ; 3 Kent Com. 11 ed. 92; 2 Whart. 233 ; Dyer vs. Covington, 19 Penn. 200 ; Raigauel vs. Ayliff, 16 Ark. 594 ; West vs. Foreman, 21 Ala. 400 ; Kinney vs. Lee, 10 Tex. 155.</p>

Louis Circuit Court. The proceedings in the Supreme Court prosecuted by the plaintiff to reverse the judgment rendered in the land court, did not constitute notice under the circumstances of this case. I. The bond taken was inadequate to indemnify the defendants against the injury of tying up their property. After final decree in favor of defendants, in an injunction suit, the restraining effect of the injunction is dissolved.

<p>1. Indictment — Failure to enter the plea — When too late. — The failure to arraign a prisoner and enter his plea before the jury is sworn, is a fatal omission, and an entry of the plea afterwards is too late.</p> <p>2. Rape, attempt to commit — Instruction as to accomplished crime improper, »/i«t.-rOn the trial of an indictment charging an attempt to commit rape, an instruction that there must be the utmost resistance, and that the same is overpowered, in order to constitute the act of rape, is properly refused, as not authorized by the issues presented.</p> <p>3. Rape; attempt to commit — What proof necessary to establish questions for jury. — An attempt to commit rape is fairly made out, if apparently the means employed are adapted to the end, and there is an apparent physical ability to complete the attempt on the part of the accused ; and <vhether such are the facts is for the jury to determine from the evidence.</p>

<p>1. Indictment — Judgment set aside on appeal for what defects. — On indictment for felony where the record fails to show that the accused was arraigned or pleaded, or was personally present during the progress of the trial, or at rendition of verdict, judgment against him will be set aside on appeal. (State vs. Montgomery, ante p. 296.)</p> <p>2. Indictment — Appeal—Failure to sign bill of exceptions. — On appeal in a criminal proceeding, where error is apparent on the face of the record, the cause will be reversed although the judge of the court below failed to sign the bill of exceptions.</p> <p>3. Indictment — Appeal—Prisoner sent from penitentiary to jailor, when. — Where judgment in a criminal cause is reversed, and the prisoner is, at the time, in the penitentiary in execution of his sentence, an order should be made delivering him to the jailor of the county from whence he came.</p>

Hansberger vs. Pac. R. R. 43 Mo. 196; Iba vs. H. & St. Joe. R. R. Co., 45 Mo. 470. The writ shows that the action was commenced in the township and county wherein the killing occurred. This is sufficient. It is not necessary that either the statement or transcript of the justice should do so. (Hansbergervs. Pac. R. R., 48 Mo. 196 ; Iba vs. Hann. & St. Joe. R. R. Co., 45 Mo. 469, particularly concluding portion of opinion on page 475.)

I. The act of the legislature was unconstitutional and void. At its date plaintiffs were owners of the property in controversy, subject to existing liens and the claims of creditors, to be enforced according to law. It purports, to authorize a sale, not in execution of any trust or power created by Augustus Cargile— for he created none — not with the consent of plaintiffs, and not by the process of law, for it, in direct terms, supplants the legal process.

I. The master is not liable in this case, unless the fellow servant, Clifford, by whose negligence the injury was occasioned, was not possessed of ordinary skill and capacity in the business entrusted to him, and the employment of such incompetent servant was attributable to the want of ordinary care on the part of the master. (Rohback vs. P. R. R. 43 Mo. 193, and cases cited.) II.

I. Tbe rule is well settled that a common carrier cannot stipulate for exemption from responsibility for the negligence of himself or servants. Such contracts are void. (Railroad Co. vs. Lockwood, 17 Wal. 357 ; Levering vs. Union Trans. & Ins. Co., 42 Mo. 89 ; Wolf vs. Adam’s Ex. Co., 43 Mo. 421; Ketehumvs. Am. Ex. Co., 52 Mo. 39Ó; Read vs. St, L., K. C. & N. Mo. R. R., 60 Mo. 199.) II.

<p>1. Indictment — Broker's license — Failure to obtain., application for. etc. — One dealing in bills of exchange etc., without obtaining the license required by the statute, (Wagn. Stat. p. 2H, § I) cannot shield himself from its penalties by showing that he made application for license and tendered the tax, as provided bylaw. See State vs. Jamison. (23 Mo. 330.)</p>

<p> Appeal from, Jaelcsoti Co. Special Law and Equity Court. </p>

<p> Error to Morgan Circuit Court. </p> <p>cited: Harley vs. McAuliff, 26 Mo. 525; Sweeney vs. Mines, 31 Mo. 240.</p> <p>cited : Vaughn vs. Locke, 27 Mo. 290; Harley vs. McAuliff, 26 Mo. 525, 528.</p>

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

<p>1. County treasurer — Settlement with county court — Warrants, credit for — Statute of limitations. — In his settlement with the county court a county treasurer is entitled to a credit for warrants received by him from the county collector, although not- paid to the collector for more than ten years from their date. Whether, as against the holder, the county might not setup the statute, quaere? But the collector, as agent of the county, and under the law, had the power to receive the warrants, although barre.d by time. And the treasurer was required to receive the warrants from the collector.</p>

<p> Appeal from Jefferson Circuit Court. </p> <p>cited: 'Picot vs. Biddle’s Adm’r, 35 Mo. 29.</p> <p>cited: Picot vs. Biddle’s Adm’r, 35 Mo. 29, and cases there cited; Baker vs. Runckle’s Exec’r, 41 Mo. 391.</p>

<p> Appeal from Jasper Court of Common Pleas. </p> <p>cited: The People ex rel. Phelps vs. Delaware Com. Pleas, 18 Wend. 558 ; Watson vs. Davis, 19 Wend. 371 ; Dauchy vs. Brown, 41 Barb. (N. Y.) 555; Barns vs. Holland, 3 Mo. 48 ; Marion vs. The State, 11 Mo. 578 ; Ex parte McGrade, 24 Mo. 125.</p> <p>cited: Miller vs. Richardson, 1 Mo. 310 ; Aster vs. Chambers, 1 Mo. 192; Ex parte Spencer, 61 Mo. 357 ; Silvey vs. Sumner, 51 Mo. 199 ; Dale vs. Copple, 53 Mo. 321; Paxton vs. Humber, 39 Mo. 521.</p>

<p>1. Supreme Court — Judgment—Failure of record to show. — Where the record fails to show a judgment in the court below, a writ 'of error will be dismissed.</p>

I. The original entry of judgment in this cause was a nullity. (Catichevs. Circuit Court, 1 Mo. 486: Caldwell vs. Stephens, 57 Mo. 589.) II. There was no entry on the judge’s docket, or other record evidence,-authorizing the judgment entered nunc pro time.

<p> •Appeal from, Polk County Circuit Court. </p> <p>cited: 1 Sto. Eq. Jur. § 323 ; 2 Id., §§ 1211, 1261,1265; 2 Washb. Real Prop. marg. pp. 209-13 ; Boardman vs. Elorey, 37 Mo. 559 ; Beal vs. Harmon, 38 Mo. 435; Woodlee vs. Burch, 43 Mo. 231; Thornton vs. Irwin, Id. 153 ; Grnmlv vs. Webb, 44 Mo. 444 ; Dohrroan vs. C'opelin, 47 Mo. 76 ; Chesley vs. Chesley, 49 Mo. 54Ó ; Hunter vs. Hunter, 50 Mo. 445 ; Mechaud vs. Girod, 4 How. [U. S.] 503 ; Wagn. Stat. p. 84, §§ 1, 2 ; p. 94, § 6; p. 98, § 32.</p> <p>cited : Barker vs. Barker, 14 Wis. 131-49; Wood vs. Hitchcock, 20 Wend. 48, 49 ; Bellows vs. Smith, 9 N. H. 285-87; Boring vs. Cook, 3 Pick. 48 ; 2 Pars. Cont. 155; 1 Sto. Eq. § 409 ; 35 Mo. 71; Wood vs. Jackson, 8 Wend. 36-7; Hildreth vs. Sands, 2 Johns. Ch. 36, 49, 50 ; Pepper vs. Garter, 11 Mo. 540; Rhodes vs. Outcalt, 48 Mo. 372-3. '</p>

Sfjjftal from. Pettis Circuit Court. Plaintiff was creditor of Allen Stewart, and grantee in the mortgage and holder of the notes attempted to be secured by it. And the controversy was between him and the purchasers under the subsequent deed of trust. I. A mortgage may be foreclosed by a proceeding under the statute, or by a bill in equity.

I. The circuit court erred in overruling the plea in abatement, and erred in refusing to bear evidence in support of the plea. (Wagn. Stat. 1087, § 4; Austin vs. State, 12 Mo. 394 ; State vs. Welch, 83 Mo. 33.) II. The evidence offered was not competent to prove that the Adams Express Co. was incorporated. The fact must have been proved by a certified copy of the articles of the'association from the office of the secretary of State. (Wagn.

<p>1. Damages, escape of fire from locomotive — Interest—Burning of trees — Measure of damages. — In an action of damages against a railroad company for the destruction of certain forest trees caused by the escape of fire from defendant’s locomotive; held, 1st, that interest on the amount of damages found was not authorized by the statute — either that touching interest or§ 7 of the damage act; 2nd, that the measure of damages was the difference between the value of the tree3 before and that after the fire.</p>

<p> Error to Si. Louis Circuit Court. </p> <p>cited: 2 Kent’s'Com. §§ 130, 131; Alexander vs. Warrance, 17 Mo. 229 ; Jackson vs. Johnson, 5 Cow. .74 ; R. C. 1855, p. 1223, § 7; p. 1218, § 7; Ellington vs. Moore, 17 Mo. 424.</p> <p>cited: Bernicker vs. Miller, 44 Mo. 102; Miller & wife vs. Bernicker, 46 Mo. 194 ; Sto. Eq. §§ 895, 896 ; 10 Mo. 100; 37 Mo*. 109.</p>

I. The notes are not alleged to be negotiable, and are really on their face non-negotiable, nor are such facts charged as will bind assignors of non-negotiable paper. II. Defendants are not alleged to be partners. There is a variance between the allegations and the'note, as to the'place of demand. The “Branch at Bedford of the Bank of the State of Indiana,” and the “Bank of Bedford, Lawrence county, Indiana,” are two very different places. No proper demand was made.

I. There were no underwritten limitations in the contract. They were in the body, and “ the legal presumption is, that stipulations limiting common law liabilities'contained in a receipt given an express company, were known by the party receiving it.” (Belgen vs. Dinsmore, 51 N. Y. 166.) And in this case he had his counsel with him. Hence it was not necessary for defendant to 'show it called plaintiff’s attention to the terms of the written contract. II.

cited Kennerly vs. Shepley, 15 Mo. 640 ; Keene vs. Barnes, 29 Mo. 337 ; 1 Greenl. Ev. p. 89 ; Laughlinvs. Stone, 5 Mo. 45. I. By analogy to State law regulating acknowledgments of sheriffs’ deeds, the marshal’s deed should have been acknowledged before the circuit court of the county in which the real estate was situated.

<p>X. Married woman — Separate estate — Question as to character of estate, how determined. — The separate estate of a married woman is one to which the marital rights of the husband do not attach, or from which they have been excluded. And the character of the estate will be determined by ascertaining whether the words employed in the grant manifested an unequivocal intent to exclude the power and marital rights of the husband.</p> <p>2. Married woman — Separate estate may he joint and for life only. — A separate estate may be held by a married woman for life only, and conjointly with her children.</p> <p>8. Mamed woman — Separate estate — Intent to charge, how shown. — The law implies from the execution of a note by a married woman, a purpose on her part to charge her separate estate, there being no indication of a contrary purpose on the face of the paper.</p>

<p> Jlppeal from Saline County Circuit Court. </p>

The deed of defendant Givens, for said lots, was not filed for nearly six months, after the rendition of said judgment in favor of plaintiffs, and for that length of time after the lien of said judgment had fastened upon said lots and real estate. Hence, the deed could not prevail as against the execution. (Farra vs. Quigley, 57 Mo. 284 ; West River Bank vs. Gale, 42 Vt. 27; Wagn.

•Appeal from Jackson Circuit Court. I. The judgment is erroneous as being for $542.33, when the damages claimed are only $500. This is an error on the face of the record, and will operate a reversal. (Carr vs. Edwards, 1 Mo. 137; Hayton vs. Hope, 3 Mo. 53 ; Maupin vs. Triplett, 5 Mo. 423 : West, Assignee of Malay, vs. Miles, 9 Mo. 168 ; Cox vs. The City of St. Louis, 11 Mo. 431; Beckwith, Adm’r of Smith, vs. Boyce, 12 Mo. 440 ; Pope vs. Salsman, 35 Mo. 382.) II.

JYewion Circuit Court. I. The indictment should have been quashed, because it does not negative the existence of authority in defendant to sell as a “dram-shop keeper.” (State vs. Brown, 8 Mo. 210; Neales vs. State, 10 Mo. 498 ; State vs. Haden, 15 Mo. 447; State vs. Hornbeck, Id. 478 ; State vs. Owen, Id. 506.) II. Under section 29, chap. 48, Wagn.

I. The assignment of part of a chose in action, without the consent of the debtor, is invalid and transfers to the assignee no interest in the debt. (Mandeville vs. Welsh, 5 Wheat. 277 ; Tripp vs. Brownell, 12 Cush. 381, 382 ; Soné vs. Fairfield, 13 Mo. 300.) II. Such assignment is equally invalid in law and in equity.

<p>1. Municipalities — Repair of streets, what necessary__Municipal corporations are only bound to keep such streets and parts of streets in repair as may be necessary for the use and convenience of the traveling public.</p> <p>2. Municipalities — Repairs of streets by — Requirements as to — Negligence—Jury. —In order to render a city liable for defects or obstructions on its streets, it must appear that under the particular circumstances of the case, it was its duty to have removed the obstruction or repaired the defect, and that the person com, plaining was at the time in the exercise of ordinary care; and the facts are for the jury under appropriate instructions.</p> <p>3. Streets — 111 repair — Accident—Contributory negligence. — Although a municipality may have failed to exercise proper care in the repair of its streets, and but for sucli negligence the injury would not have happened, yet the party complaining cannot recover, if he was aware of the defect, and failed to use ordinary care to avoid the accident. •</p>

<p>I. Damages — Railroads—Ejection of passenger — Conductor, duties of — Proof as to. — In suit for damages against a railroad company, caused by the action of its conductor in ejecting plaintiff from its ears, he need not allege nor prove that specific authority was conferred on the conductor by the company to perform such acts, where it appeared that to him was intrusted all authority which concerned the reception or rejection of passengers, and that he was acting in the scope — even though in abuse — of the general authority devolved on him by his position, courts will, without testimony, take cognizance of the duties of conductors as pointed out by the statute. (Wagn. Stat. 307, % 28.) Nor in such ease is the jury confined'in its assessment of damages to the actual loss sustained by plaintiff.</p>

The words of the obligations, include “ every indebtedness” of Stewart & Hartt, (in that particular business) to plaintiffs. The doctrine of ejusdem generis does not limit the full meaning of such phrase as above, when the debts are of one special class. (City of St. Louis vs. Laughlin, 49 Mo. 559 ; Littlefield vs. Winslow, 19 Me. 394; Poster vs.'Blount, 18 Ala. 689 ; Grumley vs. Webb, 44 Mo. 458.) cited in argument: Blair vs. Perpetual Ins. Co., 10 Mo. 566; 2 Pars.

<p>1. Equity — Action to set aside transfer for fraud — Allegations—Fiduciary relation — Undue influence. — Where a transfer is unreasonable, and is brought about by trick or misrepresentation, a court of equity will set it aside.</p> <p>In such suit allegations that defendant was a relative of the transferrer, and living with him, and that the latter was old and infirm, are not sufficient statements to make out a cose, even by way of inference, of confidential relations between the parties. Nor will the additional statement, that a different disposition had been made of the same property, previously, by will, when the testator was of sound mind, establish a case of undue influence.</p> <p>2. Practice, civil — Intimidation of witness — Action of court compelling party to leave court for. — The action of a court in compelling one of the parties to a suit, then on trial, to leave the court room, on the ground that a witness is intimidated by his looks and gestures, is error.</p> <p>8. Witness, sheriff not disqualified as, wheti. — Neither a sheriff nor his substitute can be disqualified as a witness by reason of his having summoned the jury-before whom he testifies.</p> <p>4. Evidence — Opinion of non-experts on the question of sanity. — Opinions of witnesses, although not experts, on the question of sanity, are allowed, when accompanied by some of the facts on which they are based, to go to the jury.</p> <p>5. Practice, civil — Counts at law and in equity included in one suit — Judgment in case of — Rule.—Where counts at law and in equity are included in the same petition, they require separate trials and separate judgments.</p> <p>6. Practice, civil — Equity—Decree—Allegata and probata — Statute, construction of. — When the evidence on which the case is tried and the decree is founded differs materially from that stated in the petition the cause will, under the statute, (Wagn. Stat. 1037, § 23) be reversed.</p>

<p> Appeal from Webster Circuit Court. </p> <p>cited: State vs. Alexander, 56 Mo. 131; State vs. Henley, 30 Mo. 511.</p>

<p>1. Title hand, tender and refusal of — Suit for recovery of purchase money— Equity. — The assignee of a title bond for conveyance of land, on payment of sundry instalments of purchase money, made tender of the final instalment and demanded a deed, then and there, of the obligor, who could not execute it that day, but tendered it the day following. But the obligee then refused to receive it — making 'no objection, however, on the score of defect in the obligor’s title — .and immediately sued for the purchase money paid. It appeared that plaintiff’s assignor, when the sale was made, took possession of the land, and had meanwhile felled most of the timber which constituted tire principal value of the estate. No attempt had been made, or could have been, under the circumstances, successful, to disaffirm or rescind the contract. Held, that there was no principle of law or justice to authorize plaintiff’s suit; that it was competent for defendant to show, that if there had been any claims or liens against the land, they had been satisfied and extinguished.</p>

<p>1. Practice, criminal — Murder—Testimony in chief offered in rebuttal — Admission of discretion of court as to. — Where it appeared from the testimony already offered that defendant in a trial for murder had threatened some days before hand to shoot the deceased, it was held that the court properly exercised its discretion in permitting the State, after the close of defendant’s case, to show that on the day of the homicide he had come armed to the town where the homicide occurred, especially where the defense is permitted to rebut such additional testimony.</p> <p>2. Homicide — Self-defense—What proof sufficient to show — What not. — Where one tried for murder is shown to have previously prepared himself, and selected the time and place and sought for a difficulty in order to wreak his malice, evidence merely showing previous threats by tbe deceased, should be disregarded. The doctrine of self-defense cannot be invoked in such state of facts. On the other hand, if defendant had reasonable cause to apprehend a design of the deceased to kill him, and that the danger was imminent — although such was not the fact — and defendant commits the homicide to prevent his own killing, his act is self-defense. And proof that deceased was of a rash, turbulent and violent disposition, and had threatened to kill him. and that these facts were known to the accused, are circumstances which should be considered in determining' the reasonableness of his apprehensions. ’</p> <p>3. Instructions — Refusal of — Evidence.—An instruction not based on the evidence is properly refused.</p> <p>4. Practice, civil — Murder—Motion for new trial — Presence of accused. — The absence of defendant convicted of murder, during motion for new trial, is no ground for reversal; such motion is no proceeding during the trial, such as is contemplated by the statute.</p>

<p>1. landlord and tenant— Use of property not contemplated by lease — Forfeiture, what ground for. — From the terms of a lease it appeared that the lessees, who were trustees of the order of Good Templars, were to use the premises for the Templars, and for a law and land office ; that one of them opened on the premises a justice’s court; and there was no proof that the land had been sub-let to him. It was held competent to show by parol that he had always paid rent as such trustee, and not otherwise, and it was held that his use of the property for a justice’s court was a prohibited use, and, during its continuance, a cause of forfeiture, not waived by the receipt of rent accrued after the original breach. And in such case it was immaterial that in fact the use of the property for the purpose permitted by the lease, and that adopted were not materially different. Whether there was sufficient reason for the limitation as to use, and whether it should be enforced, was a matter for the determination of the landlord.</p> <p>2. Unlawful detainee' — Judgment in, what proper. — In an action of unlawful detainer, a mere money judgment is erroneous. The judgment should be for possession of the property, and also for damages.</p>

<p>1. Justices’ courts — Non-payment of costs — Appeal, right of. — Whore a motion to set aside a judgment by default before a justice of the peace has been overruled, the party has a right of appeal, notwithstanding his non-payment of costs.</p> <p>2. Justices’ courts — Appeal—Dismissal—Judgment on bond. — Where an appeal from a justice of the peace is dismissed, the court has no authority to affirm the judgment of the justice and render judgment against the parties to the appeal bond.</p>

<p> Appeal from McDonald Circuit Court. </p> <p>cited: State to use Worth Co. vs. Patton, 42 Mo. 580.</p>

<p>1. Texas cattle, transportation of from one county to another — Statute governing same — Construction of. — Where Texas cattle are, during the prohibited season, brought by a railway company into one county in this State, and afterwards transported by an owner, having no connection with the road, into another county,such transportation would, under the statute, bea new and independent offense; and for disease communicated by the cattle while in the latter county, the company would not be liable.</p> <p>The statute in such cases ignores all question's as to the caution or negligence of one who has violated it. Nor is it material whether the damages were the direct or remote consequences of the illegal act, provided the facts bring the case within the provisions of the statute. (Surface vs. Hann. & St. Jo. R. R. Go., 60 Mo. 216, and Wilson vs. Kan. City, St. Jo. & Council Bluffs R. R. 60 Mo. 195, affirmed.)</p>

Jippealfrom St. Louis Circuit Court. I. If plaintiff “well knew of the condition of the defendant’s railroad track, and of the character and hazards of the service in which he was engaged,” he cannot recover. (Sherm. & Redf. Negl., 119, 120, § 94, and notes ; Devitt vs. Pac. R. R., 50 Mo. 302, and authorities cited.) II. The second instruction given plaintiff by the court should have been refused.

<p>1. Vendors and purchasers — Conveyances—Consideration—Parol testimony as to —Parties—Joinder—Fraud—Evidence.—Where two joint owners of a tract of land conveyed the same by a deed in tire usual form, wherein the tract was stated to contain a specified number of acres “more or Jess,” and a certain sum was specified as the consideration, but the parties made before the sale a parol contract, that if, upon survey, the tract should prove to contain a greater number chan that named, the vendee should pay a corresponding additional amount of purchase money, and one of the grantors onlyhaving received his share of the excess, the joint vendor brought suit for his proportion. It was held as follows : 1st, since the alleged defect was apparent on the face of the petition, defendant after failing to demur was not in a position to object as a matter of proof to the non-joinder of both vendors; 2d, the verbal agreement not being for the sale of land was not within the statute of frauds. The contract was executed and finished when the deed was made. The demand sued on urns merely one for money arising out of that contract. And in such case if plaintiff had performed his part of the contract, and defendant had taken possession of the land sold, the latter could not then take refuge under the statute; 3rd, parol testimony was proper showing that the true consideration differed in amount from that named in the instrument.</p>

I. The report of the commissioners appointed to assess the damages on plaintiff’s land is not valid and binding. Where an act requiring the exercise of judgment is to be performed by a board of commissioners, it must affirmatively appear that all of said commissioners, acted and exercised their judgment and influence in the premises. (Ex parte Rogers, 7 Cow. 530, note ; Wood vs. Phelps Co. Court, 28 Mo. 119.) II.

<p>1. Vendors and purchasers — Title bond, possession under — Refusal to pay purchase money — Offer to rescind. — A vendee of land, who ia put in possession and receives from the vendor a bond for a warranty deed to be given on the full payment of the purchase money, can, in case of the vendor’s inability t-o comply with his covenant, defend against the payment of the purchase money, and lie may have a judgment over- against the vendor for the purchase money paid. But to avail himself of such defense and recovery, he must first offer to restore possession and rescind the contract.</p>

<p> Appeal from, St. Louis Circuit Court. </p> <p>cited: Carroll vs. Hardy, 21 Mo. 66 ; Shields vs. Bogliolo, 7 Mo. 134; Johnson vs. Devlin, 34 Mo. 427. .</p> <p>cited.: Wagn. Stat. 342, § 2 ; Evans vs. Hays, 2 Mo. 184 ; Steamboat Osprey vs. Jenkins, 9 Mo. 645.</p>

<p> Error to Cooper Circuit Court. </p> <p>The indictment was. sufficient. (2 Bish. Crim. Law, §§ 178, 345 ; State vs. Herrick, 13 Wend. 90; Sibel vs DeGray, C. J. Couper, 683.)</p> <p>I. The judgment should have been arrested, the indictment is bad. (Comm. vs. Strain, 10 Mete. 521; State vs. Bonnell, 46 Mo. 395 ; Comm. vs. Abbey Goddard, 4 Allen, 312 ; Comm. vs. Lannan, 1 Allen, 590 ; State vs. Philbrick, 31 Me. 401; People vs. Gates, 13 Wend. 311; State vs. Green, 7 Wis. 676 ; Dillingham vs. State, 5 Ohio St. 280; Comm. vs. Drew, 19 Pick. 179 ; State vs. Johnson, 11 Ind., 481, 482.)</p>

<p>1. Principal and surety — Bond of married woman — Liability of surety. — A bond given by a married woman is void at law as to herself, but the sureties thereto are bound. Generally, the extent of the liability of the surety is measured by that of the principal; but in cases of infancy and coverture, the surety is in some sense a principal promisor.</p>

<p>1. Limitations, statute of — Suit brought after ten years and before determination of former suit for same cause of action. — Where suit is originally instituted on a note within ten years after the cause of action has accrued, and judgment obtained, which is afterwards set aside on motion of defendant, on account of defective service, and after the filing of the motion and prior to the decree, but more than ten years after the accrual of the cause of action, a new suit is commenced on the notes, under the statute (Wagn. Stat. 919, ¡S 19), the second action is not barred by limitation. It is immaterial that the last suit is brought before, instead of after, the first is set aside. Plaintiff may be considered, in such case, as having admitted that the motion is well founded, and abandoning all rights that might accrue to him under the judgment. The fact that such abandonment was voluntary on his part, will not preclude him from commencing a new action under the statute.</p>

I. In the absence of fraud, the deed of trust read in evidence conveyed the legal title to the property in controversy. II. A husband can bind himself in equity by borrowing money from his wife, and giving her his note for it. (Huber vs. Huber, 10 Ohio, 871; Manning vs. Style, 8 P. Williams, 837 ; Maraman’s Adm’r vs. Maraman, 4 Mete. [N. Y.] 84 ; Deming vs. Williams, 26 N. II. 226 ; Wood vs. Warden, 20 Ohio, 518 ; Doyle vs. McGuire, 38 Iowa, 410 ; see also, 2 Sto.

Jlpjpeal from Jackson Circuit Court0 I. The court erred in holding the burden of proof to be on these defendants for two reasons : First, plaintiffs allege that they are the only heirs of Augustus Cargile, and this is denied; and again, because by the pleadings it is admitted that the child was born of the said Augustus and Cynthia.

<p> FLppealfrom Henry Circuit Court. </p> <p>cited: Garnhart vs. Finney, 40 Mo. 449 ; Chouteau vs. Goddin, 39 Mo. 229 ; Skinner vs. Stouse, 4 Mo. 93 ; Rice vs. Bunce, 49 Mo. 231; Hunt-sucker vs. Clark, 12 Mo. 333 ; Higbley vs. Barron, 49 Mo. 103 ; Tibeau vs. Tibeau, 19 Mo. 78 ; Hayden vs. Stewart, 27 Mo. 286.</p>

<p>1. Court — Paper, filing of — What constitutes. — In legal contemplation the presentation and delivery of a paper to the court 'or officer and its receipt by the clerk and lodgment in his office, constitutes the filing, although the clerk’s indorsement is the highest legal evidence of that fact.</p> <p>2- Court — Paper, filing of — Proof as to, what sufficient. — Where it appeared that a report of sale by an administrator, although not with other probate papers, was found among the papers of a deceased clerk, that the court house had been destroyed, and that the records, files, etc., had been moved from thence and shifted from place to place, the proof was on appeal held sufficient to justify the trial court in finding that the instrument had been filed in court, and that the facts contained in the report were as therein recited.</p> <p>3. Administrator — Prohate court — Orders of — Conflict with report of sale— Case stated. — Where by an order of the probate court an administrator was directed to sell land on twelve months’ time, the deed not to be made but on complete payment of the purchase money, a report of sale by the administrator which recited that the sale was made Beb. 8th, 1860, was held not in conflict with t.he further order of court made at the May term, 1860, whereby the administrator was permitted to make to the then next term of court a report of the sale theretofore ordered. In such case the purpose of delaying the report was taken to be to enable the administrator to embrace in it not merely a statement of the sale, but of the payments of purchase money made in pursuance thereof. '</p>

<p>1. Practice, criminal-Sci. fa. — Bond not to leave conrt-Hemurrer-Hischarge of accused-Action of court, error, when. — In Sci. Fa. against thesureties on a recognizance conditioned for the appearance of the party indicted at the next term of court, and also that he should not depart from the court without leave, the sureties demurred to the Sci. Fa., and the court holding that the pleading went to the indictment also, and that it was well taken thereto, discharged the accused. Held, that supposing the demurrer to reach the indictment, and that the latter was fatally defective, yet as part of the condition of the bond was that defendant should not leave the court without leave, he would still be held on thnj clause, and the action of the court in discharging the accused was held to be error.</p> <p>2. Recognizance — Statutory—Common law. — There is no substantial difference between a common law a"nd a statutory recognizance.</p> <p>3. Indictment — Demurrer to, should be specific. — A demurrer to an indictment should distinctly specify the grounds relied upon.</p>

I. The application for the sale of said decedent’s lands must be by petition, setting forth whatever under the statutes is required to give the court jurisdiction of the particular case and subject matter thereof, which should be so set forth as to be good on demurrer. The application must show a true account of amounts due to and by the estate, a correct description of the real estate, and of the character and value of the personalty.

<p>1. Corporations — Constitution of 1865 — Double liability clause — Stockholder— Measure of liability. — Under the Constitution of 1865 and the statute (Wagn. Scat. 330, § 20) stockholders in corporations are not liable for the debts of the company in full, as in case of partnership, but only to an amount equal to their stock together with any unpaid s,ubscription.</p> <p>2. Corporations — Stockholders—Suit against not a lien. — The institution of suit against a stockholder for a corporate debt, does not operate as a lien upon his limited liability under the statute, so as to hold him therefor against a senior judgment add execution obtained on another action commenced later.</p>

<p> Appeal from Jackson-Circuit Court. </p> <p>cited in argument Wagn. Stat., 1058, § 3 ; 1347, §§ 1, 2.</p> <p>cited: State vs. Fenby, 18 Mo. 445-47 ; Funkhouser vs. How, 18 Mo. 47-49; Reid vs. Piedmont, 58 Mo. 421 ; Nordmanser vs. Hitchcock, 40 Mo. 181; Stout vs. Colver, 6 Mo. 254; Steigers vs. Darby, 8 Mo. 679; Jacob vs. McLean, 24 Mo. 40 ; Jones vs. St. Joe.'F. & M. Ins. Co., 55 Mo. 842; Brolaskivs. Putnam, 34 Mo. 459 ; Brainard vs. Van Kuran, 22 Iowa, 266 ; Meecher vs. Judy, 4 Mo. 361; Elliott vs. Leak, Id. 540; Green vs. Goodloe, 7 Mo. 25 ; Faber vs. Bruner, 13 Mo. 541; Campbell vs. Gaston, 29 Mo. 343.</p>

<p> Appeal from Jackson County Circuit Court. </p> <p>cited: U. S. vs. Kirkpatrick, 9 Wheat. 720; Leggett vs. Humphreys, 21 How. 75; Miller vs. Stewart, 9 Wheat. 681; Blair vs. Perpetual Ins. Co., 10 Mo. 565 ; Nolley vs. Callaway County, 11 Mo. 447 ; City of St. Louis vs. Sickles’ Exec’x, 52 Mo. 127.</p> <p>cited: U. S. vs. Linn, 15 Pet. 811 ; Warren vs. Lynch, 5 John, 247 ; Montville vs. Houghton, 7 Conn. 546 ; McClurg vs. Philips, 49 Mo. 315 ; 5 Johns. Ch. 224.</p>

I. All persons having a legal interest in the matter in controversy should have been made parties nlaintiffs. (Wagn. Stat. 1870, §§2,4, 6.) II. The plaintiffs, if entitled to recover at all, could only recover the difference between the contract nrice and the market value of the cattle in the market where they were to he delivered (in this case at the City of Jefferson). (Whitmore v. Coats, 14 Mo. 9 ; White vs. Salisbury, 38 Mo. 150 ; Koeltz vs. Bleckman, 46 Mo. 320.) III.

<p> Appeal from Phelps Circuit Court. </p> <p>cited: Chitt. Cont. 218; 1 Pars. Cont. 42 ; Greenl. Ev. § 68 ; State vs. Page., 19 Mo. 213, 219-20 ; People ex rel. Tweed vs. Liscomb, 60 N. Y. 559 ; U. S. vs. Magwire, Ap. 1876, p. 273.</p> <p>cited : State vs. Page, 19 Mo. 219 ; State vs. Roebm, 61 Mo. 83 ; Edward-son vs. Garnbardt, 56 Mo. 87; 49 Mo. 298 ; 51 Mo. 269 ; State vs. Marshall, 36 Mo. 400; Hayden vs. Tucker, 37 Mo. 225; Gregory vs. Regina, 15 Q. B. 974; Young vs. TbeKing, 3Q. B. 98 ; People vs. Gates, 13 Wend. 311; People ex rel. Tweed vs. Liscomb, 60 N. Y. 564, and autborities cited by district attorney.</p>

<p>1. Trespass — Parol license to occupy premises. — The recipient of a parol license to occupy premises cannot be charged asa trespasser^or tort feasor,</p> <p>2. Forcible entry and detainer — Possessio?i of premises in making repairs — Entrance in pursuance of orders^ obtained by force.- — Where one receives the key to ahouse in order that he may make repairs therein, ándate in possession and at work on the repairs in obedience to express directions, and using reasonable diligence to complete the work, when suit is brought against him for forcible entry and detainer, the action is premature and lie cannot be held. And it makes no difference that in effecting an entrance into the house, in obedience to such orders, he is compelled to overcome obstacles placed there by plaintiff himself.</p> <p>3. Practice^ civil — Instructions—Evidence.—Where the evidence tends to establish a certain state of facts it affords basis for an instruction.</p>

<p> Error to Cass Common Pleas Court. </p> <p>cited in argument: Lanham vs. Boggs, 1 Mo. 476 ; Murphy vs. Howard, 1 Hempst., 205 ; Ashuelot Bank vs. Pearson, 14 Gray, 521; Scott vs. Moone, 41 Vt. 205; St. Louis vs. Pox, 15 Mo. 71 ; Hansberger vs. Pac. R. R- Co., 43 Mo. 196 ; Schell vs. Leland, 45 Mo. 289 ; Mail Oo. vs. Flanders, 12 Wall., 130; Marsh vs. Haywood, 6 Humph. [Tenn.] 210 ; Freem. Judg., 120 ; Butler vs. Ivie, 30 Mo. 478; Long vs. Cockrell, Adm’r, 55 Mo. 93 ; Dieks vs. Hatch, 10 Iowa, 380 ; Moon vs. Ellis, 18 Mich. 77 ; Dodson vs. Scroggs, 47 Mo. 285; Cones vs. Ward. Ib. 289 ; Tuppery vs. Hertung, 46 Mo. 135 ; Stone vs. Corbett, 20 Mo. 350 ; Dilworth vs. McKelvy, 30 Mo. 149 ; Gilhana vs. Kerone, 45 Mo. 487 ; State ex rel. vs. Hays, 52 Mo. 578 ; Dillard vs. St. L., K. C- & N. R. R. Co., 58 Mo. 69; Mora vs. Kuzac, 21 La. An. 754.</p> <p>cited Bridle vs. Grau, 42 Mo. 359; Smith vs. Winston, 10 Mo. 299 ; Reed vs. Wilson, 13 Mo. 28 ; Hansard vs. Reed, 29 Mo. 472; White vs. Van Houten, 51 Mo. 577 ; Hohenthal vs. Watson, 28 Mo. 360; Berghoff vs. Heckwolf, 26 Mo. 513 ; Norris Repl. 190 ; Brown vs. Parker, 5 Blackf., 291; Gibbs vs. Bartlett, 2 Watts & Serg. 29 ; Waterman vs. Yea, 2 Wilson, 42; Perreau vs. Bevan, 5 Barnw. & Cress., 284; Roman vs. Stratton, 2 Bibb. 199; Calloway vs. Nifong, 1 Mo. 223 ; Ex parte Toney, 11 Mo. 661; Powell vs. Gott, 18 Mo. 458 ; Mc-Collum vs.'Lougan’s adm’r, 29 Mo. 451; Collier vs. Wheldon, 1 Mo. 1; Yates vs. Kimmel, 5 Mo. 87 ; Warne vs. Anderson, 7 Mo. 46 ; Magellan vs. Orme, 7 Mo. 4 ; Henslee vs. Cannefax, 49 Mo. 295 ; Ohio vs. Cowles, 5 Ohio, [N. S.] 87; Smith vs. St. Joseph, 45 Mo. 449 ; Tatum vs. Tatum, 19 Ark. 194 ; Parker vs. Palmer, 22 Ills. 498 ; Calderwood vs. Tevis, 23 Cal. 335; Webb vs. Stevens, 14 Mo. 480; Henry vs.Gibson, 55 Mo. 570.</p>

<p> Jlftpeal from Buchanan Circuit Court. </p> <p>cited: Hines vs. Ament, 48 Mo. 298 ; Lowenberg vs. Bernd, 47 Mo. 297 and cas. cit.; Dietrich vs. Murdock, 42 Mo. 279, 284, 285 ; Koenig vs. Mueller, 89 Mo. 165.</p>

The decision of the circuit court was correct in overruling the motion of the plaintiffs in error, asking to have the judgment by default set aside. The affidavit shows no meritorious defense. The affidavit does not show that the parties and their attorneys had exercised proper diligence, but on the contrary gives evidence of gross negligence on their part. . No diligence is shown in preparing for the defense, nor no sufficient excuse for the omission to do so.

<p>1. Crimes and punishments — Opening window without bursting or breaking, burglary in the second degree. — Under a proper construction of the statute (Wagn. Stat., 455, § 11), the entering of a dwelling hoitse by raising a window without breaking or bursting it constitutes burglary in the second degree.</p>