Volume 64 — Missouri Reports

<p> Appeal from Pettis County Circuit Court. </p> <p>Bollinger vs. Chouteau, 20 Mo. 89 Coleman vs. McAnulty, 16 Mo. 178.</p> <p>Coleman vs. McAnulty, 16 Mo. 178 ; 19 Mo. 157 ; 1 Mo. 214 ; 39 Mo. 500 ; 46 Mo. 271 ; Wagn. Stat., 1872, 1034-5, §§3,6, 7, 17 ; 20 Mo. 84 ; 43 Mo. 309 ; Duncan vs. Matney, 29 Mo. 369-76 ; Harrison vs. Cachelin, 36 Mo. 79-84.</p>

A. bill of exceptions in this case, it appears, was signed and filed but in vacation and without consent of respondent. Blankenship vs. North Mo. R. R. Co., 48 Mo. 376 ; Ellis vs. Andrews, 25 Mo. 327 ; Wilcoxson vs. McBride, 23 Mo. 404; Diepenbrock vs. Shaw, 21 Mo. 122; Sutter vs. Street, 21 Mo. 157 ; State vs.. McO’Blenis, 21 Mo. 272.

I. The law creates a separate fund to be raised by taxation upon the township (and not upon the district), for the support of colored schools. It is a township charge, and the funds of the district cannot be legally used for its support. (See Sess. Acts of 1874, p. 163, § 73 ; also p. 168, § 90.) I. The only fund .on which relator’s'warrant could be drawn was the teachers’ fund (Act 1874, p. 154, §§ 28 and 29).

<p> Appeal from, Clinton Circuit Court. </p> <p>State ex rel. Neal vs. Salem Co. Court, 48 Mo. 390 ; State ex rel. L. & St.-L. R. R. vs. Salem Co. Court, 45 Mo. 242; Sto. Ag. §§ 165-199, 200, 307.</p>

<p> Appeal from Johnson Circuit Court. </p> <p>Zallee vs. The Laclede Mut. Fire & Marine Ins. Co., 44 Mo. 531; Garred vs. Doniphan, 10 Mo. 161; Curry vs. Lackoy, 35 Mo. 889.</p>

I. The first count setting up a counter-claim in the answer is fatally defective in not averring an offer to return the property on discovery of the fraud. (1 Chit. Cont. [5 éd.], p. 658 ; Stearns vs. McCulloch, 18 Mo. 411; Johnson vs. Meyer’s Ex’r, 34 Mo. 255.) It is also defective in that it does not allege that tbe disease was not perceptible on tbe sheep. (Stewart vs. Dugan, 4 Mo. 245 ; Benj. Sales, 457.) II.

<p>1. Equity — Action to set aside conveyance for duress — Allegations, sufficiency of. —In suit in equity to set aside a deed of plaintiff for alleged threats made to him to prosecute his brother for adultery, unless the conveyance were made, where it is not alleged that his brother was innocent of the crime, or that such prosecution would be unlawful, no foundation is laid for the relief sought. Nor will it be afforded, although it is alleged that such declarations are coupled with threats to stir up a mob and hang his brother, where plaintiff does not lay the foundation for separate relief by alleging plaintiff’s belief that his failure to execute the deed would result in the carrying out of the latter threats.</p> <p>2. Contracts — Moral duress — Belief in equity. — Where contracts are made in consequence of fraudulent advantage taken of the affections or sensibilities of a party, or under the influence of threats or apprehensions — although not amounting to legal duress, equity will grant relief.</p>

<p>1. Practice, civil — Instructions—Evidence—An instruction not based on evidence is properly refused — Carriers—Mandatory—Declarations—What constitute— Measure of damages — Negligence—Interest.</p> <p>1st. A carrier who transports property gratuitously is liable for injuries thereto only in cases of gross negligence, but a declaration by him that he will “charge little if anything” does not constitute him a mandatory so as to bring him within that rule, even though his statement be coupled with an unexpressed intention to transport without hire.</p> <p>2d. In the absence of an agreement a promise to pay a reasonable sum for freightage arises by implication.</p> <p>3d. In ease of loss or destruction the carrier is bound for the value of the property at the time of contemplated delivery, less freightage, if unpaid. But in the absence of proof as to amount of freightage, no deduction should be made therefor.</p> <p>4th. Interest may be charged In case of gross negligence. In tiie absence of negligence, interest may be withheld.</p>

A constable empowered or deputized by a justice of the peace has only power to serve and return any process issued under article 1, Wagn. Stat. 812.-(See p. 815, § 20.) A special constable has the legal power to execute an execution as well as any other process issued from a justice’s court. (Wagn. Stat. 815, § 20 ; Jones vs. Hopper, 9 Mo. 178.)

<p> Appeal from. St. Clair Circuit Court. </p> <p>State ex rel. Case vs. Searl, 50 Mo. 268 ; Sess. Acts 1867, p. 165; Adj. Sess. Acts 1868, pp. 163, 164; Adj. Sess. Acts 1870, pp. 127-134 ; Adj. Sess. Acts 1874, pp. 192, 193 ; Gen. Stat. 1865, cb. 47.</p>

<p> Petition for Habeas Corpus. </p> <p>Mason vs. Woerner, 18 Mo. 566; 1 J. J. Marsh. [Ky.] 205, 206 ; People vs. White, 24 Wend. 520, 539, 540, 541 ; People ex rel. Kearney vs. Carter, 29 Barb. 208; Perkins, Treas., vs. Corbin, 45 Ala. 103 ; Craig vs. State of Mo., 4 Pet. 431 ; Buel’s Case decided by Judge Treat in Eastern District of Missouri; Garland’s case, 4 Wall. 333 ; Cummin’s case, 4 Wall. 277; Murphy and Glover Test Oath cases, 41 Mo. 339 ; State vs. Steptoe, 61 Mo. 411 ; Jones, Ex parte, 27 Ark. 349 ; Perry vs. State, 41 Tex. 488 ; Hurd Hab. Corp. 331 ; Ex parte Strahl, 16 Iowa, 369 ; The People vs. Bradley, 40 Ill. 390 ; State ex rel. Henderson, vs. County Court of Boone Co., 50 Mo. 317 ; 27 Me. 114.</p> <p>State vs. Douglass, 50 Mo. 593 ; People ex rel. vs. Burgess, 24 Ill. 184; State vs. Carroll, 6 Am. Law. Rep. 754; Harbaughvs. Winson, 38 Mo. 327; State ex rel. Craig vs. Dougherty, 45 Mo. 294.</p>

<p> Appeal from Jackson Go. Special Law and Equity Court. </p> <p>Wagn. Stat. 1061, §§ 20, 22 ; Adams vs. Hickman, 43 Mo. 168 ; Eidemiller vs. Kump, 61 Mo. 340 ; 24 Iowa, 150; Castlio vs. Bishop. 5L Mo. 162; Kelly vs. Hogan, 16 Mo. 215 ; McAdams vs. McHenry, 22 Mo. 413 ; Stacker vs. Cooper Ct. Ct., 25 Mo. 401 ; Doan vs. Holly, 27 Mo. 256.</p> <p>Campbell vs. Gaston, 29 Mo. 345; Bailey vs. Clayton, 20 Penn. St. 297 : Lamb vs. Nelson, 34 Mo. 502; Florez vs. Uhrig’s Adm’r, 35 Mo. 520 ; Farmers and Mechanics Nat. Bank of Buffalo vs. Dealing, 2 Cent. Law. Jour., 755 ; Farmers and Traders Bank vs. Harrison, 57 Mo. 506 ; Crocker vs. First National Bank, 3 Am. Law Times, 350 ; S. C., 3 Cent. Law Jour. 527; Kribben vs. Eckelcamp, 34 Mo. 480-482 ; Bosbyshell vs. Summers, 40 Mo. 172 ; Boernstein vs. Heinrich, 24 Mo. 26 ; Ridgley vs. Steamboat Reindeer, 27 Mo. 444; Field vs. Matson, 8 Mo. 686; Kerby vs. Chad well, 10 Mo. 393 ; 59 Mo. 522; Wagn. Stat. 1036, § 19 ; Id. 1034, § 5 ; Downing vs. Still, 43 Mo. 309 ; Doan vs. Holly, 27 Mo. 256.</p>

<p> Appeal ftom Greene Circuit Court. </p> <p>State vs. Ware, 61 Mo. 232; State vs. Buckner, 25 Mo. 167 ; State vs. Cross, 27 Mo. 332 ; State vs. Schoenwald, 31 Mo. 147.; State vs. Browning, 36 Mo. 397 ; State vs. Mathews, 20 Mo. 55 ; State vs. Barnes, 59 Mo. 154; State vs. Ott, 49 Mo. 326.</p> <p>State vs. Underwood, 57 Mo. 40 ; State vs. Brown, 63 Mo. 439.</p>

<p>1. Justice of peace — Judgment—'Motion to set anide computation of time. — In computing the ten days’ time within which a motion to set aside a default before a justice of the peace may be made (Wagn. Stat., 847, \ 2), the first day after* the rendition of the judgment should be excluded and the last included. Thus the judgment being rendered Oct. 28th, motion filed Nov. 7th was held to be in time.</p>

<p>1. Practice, civil — Contract—Omission of seal. — Prayer for reformation — Demurrer —An instrument in the form of a bond is good as a contract and constitutes a good cause of action at common law although without seal. And no necessity existing for its reformntion to make it such, the fact that the plaintiff’s petition prays for reformntion of the instrument, so as to make it a specialty, will not warrant a demurrer.</p> <p>2. Practice, civil — Prayer for relief not a distinct cause of action. — A prayer for relief does not constitute a distinct cause of action, but only seeks a particular remedy and is not demurrable.</p>

It has uniformly been held by the Supreme Court that this statute does not apply to such places as depot grounds, and that railroad companies are not required to fence at such places. (Lloyd vs. Pac. R. R. Co., 49 Mo. 200; Morris vs. St. L., K. C. & N. R. R. Co., 58 Mo. 81 ; Stonemanvs. Atl. & Pac.

Appeal f) om Green Circuit Court. I. In Owen vs. Switzer, (51 Mo. 322) the deed purported to be the individual act of Louisa T. Campbell, aud the court held it was her individual deed and conveyed her individual estate. Here the deed purports to be the act of the executrix of the estate of John P. Campbell — and hence it should have effect as the deed of an executrix, and should eonvey such estate as the executrix could, under the will, convey.

Quo Warranto. 1. The relator insists that there existed no vacancy on the 5th of March. 1875, in said office, and as the governor could order an election only in case of a vacancy, the election of defendant was a nullity.

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

<p>1. Indictment — Same offence charged in different counts — Prosecutor not compelled to elect, when. — Where the several counts of an indictment refer to the same transaction and are intended to charge only a single offense, but are differently framed in order to meet the evidence as it may be developed at the trial, as where the accusation is lor stealing sundry caddies of tobacco from a certain railroad depot, and also for receiving the same, knowing them to have been stolen from the depot, the prosecutor should not be compelled to elect on which count he will proceed.</p> <p>2. Common Pleas Court of Sugarlree township, Randolph county — Jurisdiction over offense committed befare its establishment. — A Common Pleas Court, •having been established for the township of Sugartree in the county of Randolph, in lieu of the circuit court of the county, “with exclusive original jurisdiction in all criminal actions,” was authorized to try an offense committed before the act creating it took effect, where the circuit court had not theretofore acquired special jurisdiction of the case, by proceedings instituted therein.</p> <p>3. Indictment — Receipt—Hearsay, when. — On indictment charging tbe stealing of property from a railroad company, a paper given by the consignee acknowledging the receipt of money in payment of the goods, is not competent to prove the loss of the goods. It is hearsay.</p> <p>4. Instructions, multiplicity of — Giving of others by court in lieu of. — Where instructions are very numerous, the court may properly refuse them all, and piesent the case to the jury in a few clear and pointed ones of its own.</p>

Sullivan County Circuit Court. It is a well established principle of the common law, that the master is not liable to an employee for an injury produced by the negligence of a co-employee employed generally in the same business, provided the master has not been guilty of negligence in employing sueh negligent servant, or in retaining such servant after notice of his incompetency.

<p>1. Indictment — Change of venae — Testimony—Action of lower cowrt — Review of —Where, in a criminal case, on an application for change of venue on the ground of prejudice against the prisoner, testimony is offered pro and con (See Sess. ActslS^p. 109) the Supreme Court will not interfere with the action of the trial court in overruling the motion.</p> <p>2. Practice, Supreme Court — Evidence—Instruction—Rill of exceptions. — Evidence and instructions not incorporated in bill of exceptions will not be reviewed by Supreme Court.</p>

<p> Error to Glay Circuit Court. </p> <p>Urquhart vs. Smith, 5 Kas. 447 ; Wilson vs. Boughton, 50 Mo. 17; Watson vs. Field, 10 Mo. 100 : Ashley vs. Gleason, 7 Mo. 32 ; Hill vs. City of St. Louis, 20 Mo., 584 ; Smith vs. Best, 42 Mo. 185 ; Boon vs. Miller’s Ex’r, 16 Mo. 457 ; Hendrickson, Adm’r, vs. St. Louis, &c.,34 Mo. 188 ; Freem. Judgm., 210, 227 ; 1 Sto. Eq., § 166.</p>

<p> Petition for Mandamus. </p>

<p> Error to St. Clair Circuit Court. </p> <p>Stanton vs. Ryan, 41 Mo. 510 ; State ex rel. Towns!) end, Adm’r, vs. Meagher, 44 Mo. 356 ; Johnson vs. Quarles, 46 Mo. 423 ; Looker vs. Davis, 47 Mo. 140 ; Byrne vs. McDonald, 1 Allen, 295 ; Hubbard vs. Chapin, 2 Allen, 328 ; Granger vs. Bassett, 98 Mass. 458 ; Manuf. Bank vs. Schofield, 39 Yt. 590.</p>

<p>1. Probate and Common Pleas Court of Greene County — Circuit court has only appellate power over. — Where a cause is appealed from the Probate and Common Plea3 Court of Greene County to the circuit court of the same county, and no exceptions are taken or saved in the former court, the latter cannot review or revise anything but error patent of record. It has no jurisdiction to try the case anew’. (McCraw vs. Hubble, 61 Mo. 107.)</p>

<p> Error to Howard Circuit Cutirt. </p> <p>State vs. Henly, 30 Mo. 509 ; Wagn. Stat. pp. 454, 455, §§ 10-17 ; Bish. Crim. Law 5 Ed. Vol. 2, §§ 90, 92, 99 ; Kell. Crim. L. & P., § 559; State vs. Jones, 61 Mo. 232 ; Wagn. Stat. 513, § 9 ; 455, § 19 ; 1108, § 4 ; Kell. Prac. § 421.</p> <p>State vs. Henly, 30 Mo. 509 ; Hale, 560 ; 2 East P. C. Ch. 15, § 15, 514 ; Rex vs. Eurinal, Bush, Ky. 445 ; 2 Arch. Cr. PL & Pr., p. 329 ; Bish. Crim. Law, 5 Ed. Vol. 2, § 116; Jones vs. State, 11 N. H. 270 ; Com. vs. Brown, 3 Rawle, 207 ; State vs. Ayer, 3 Erost, 301; Rose. Crim. Ev. (4 Am. Ed.) 364, 366; In re Tweed, 60 N. Y., 445, and authorities there cited.</p>

Jlppeal from Randolph Circuit Court. Plaintiff sued to recover damages occasioned his lots, which abut on Moulton street, in Moberly, by reason o£ the building and construction of the railroad bed and track on the street in front of his lots, and the throwing up of an embankment in front thereof.

<p>1. Dower — Devise—Denunciation of, must be filed, when. — Under the statute relating to dower (Wagn. Slat. 541, \ 10) where land is devised to the wife by the will, she cannothold her dower unless her renunciation of the devise be filed within one year after probate.</p>

<p>1. Dower — Devise in lieu of — Renunciation of devise must be filed, when. — The term “pass” as used in § 16 of the Dower Aet (Wagn. Stat. p. 541) means “devise,” and under the statute law of Missouri, (see \\ 15, 16) after duo notice of her devise, the renunciation thereof by the widow, in order to avail in holding her dower, must be filed within twelve months from proof of the will and not later. (See Price V3. Wood, 43 Mo. 247; Ewing vs. Ewing, 44 Mo 23; Dougherty vs. Barnes, ante, p. 159.)</p>

<p> Jlppeal from Jasper County Common Pleas Court. </p>

<p>1. Street openings — Damages, assessment of by commissioner — Appeal from to circuit court — Title of plaintiff- Evidence to defeat. — Where the report of a board of commissioners to assess damages and benefits for the opening of a street, finds that A. is owner of the land condemned, and the report is approved by the town board of trustees; and from the assessment of damages and the report he appeals to the circuit court, the municipality cannot on the trial in that court introduce evidence to prove that A. was not the owner.</p>

<p>1, Bond — Surety—Signature of on faith of that of cosurety which proves to be forged. — A surety upon a bond will not be discharged from liability by the fact that the name of a co-surety, on the faith of which his signature has been procured, was a forgery, nor by the fact that the surety whose name was forged gave him no information of the fact, where the condition upon which the surety signed is unknown to the officer to whom the bond is given, at the time he accepts the same. (State to use, etc. vs. Potter, 63 Mo. 212.)</p>

<p> Appeal from Cooper County Circuit Court. </p> <p>Stanton vs. Ryan, 41 Mo. 510 ; Johnson vs. Quarles, 46, Mo. 423 ; Poe vs. Domic, 54 Mo. 119 ; Kellogg vs. Malin, 62 Mo. 429 ; Maupin vs. Triplett, 5 Mo. 422.</p>

<p> Petition for Mandamus. </p>

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

<p>Evidence — Certificate of acknowledgment of clerk of circuit court — Record copy — Private seal — Omission of. — Where, its appears from a record copy thereof, the body of a certificate of acknowledgment made by the clerk of a circuit court contains the statement that, there beiugno seal of the court, the private seal of the clerk is affixed, the presumption arises that the seal was attached thereto, although no written scroll or seal is copied on the record.</p> <p>2. Deeds — Covenant of future assurance — After-acquired title. — Where it distinctly appears on the face of a deed that, the intent of the grantor is to convoy a fee simple estate, and the instrument contains covenants of future assurance of title, it will convey such as the grantor may afterwards acquire.</p> <p>3. Ambiguity, latent will not render deed inadmissible. — The omission' in a deed • to designate the county in which land lies will not render the deed inadmissible.</p> <p>4. Deed — Acknowledgment—Date of — Subsequent to that of record — Effect of.— Although the acknowledgment of a deed bear date subsequent to that, of the record, notice will nevertheless be imparted from the date of the aeknowledgmen t.</p> <p>5. Action — Deed—Suit on subsequent to date of. — Plaintiff cannot recover on a deed executed after the commencement of his suit.</p> <p>G. Land titles — Possession defeated by prior possession with claim after. — Where plaintiff rests his claim on naked possession, a prior possession in defendant, where thefee is claimed in connection with ir, will be sufficient to defeat him.</p>

I. -The county court is one of limited jurisdiction, and anything done outside or in excess of the delegated authority is coram non judice and void. (Jefferson Co. vs. Cowan, 54 Mo. 234 ; Schell vs. Leland, 45 Mo. 289; Smith vs. Howarth, 53 Mo. 88 ; Miller vs. Seare, 2 Wm.

Jackson County Circuit Court. It is not made the constable’s duty by law to inquire into third persons’ rights accruing from legal proceedings, wherein such persons are not parties. (See Armstrong vs. Langdon, 57 Mo. 353.) The defendant from whom goods are taken is the constable’s principal, after the goods are ordered to be returned on dismissal of the action.

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

<p> Error to Perry Circuit Court. </p> <p>Wagn. Stat., 445; State vs. Foster, 61 Mo. 549; State vs. Hudson, 59 Mo. 135; State vs. Joeckel, 44 Mo. 234 ; State vs. Saunders, 53 Mo. 234.)</p> <p>State vs* Shoultz, 25 Mo.' 128, Instruction No. 11, p. 153; State vs. Hays, 23 Mo. 287 ; State vs. Nueslein, 25 Mo. Ill; State vs. Joeckel, 44 Mo. 234 ; State vs. Holme, 54 Mo. 153.</p>

<p> Appeal from Jasper Court of Common Pleas. </p> <p>Cahn vs. Dutton, 60 Mo. 297; Mammon vs. Hartman, 51 Mo. 168 ; Seymour vs. Farrell, 51 Mo. 95 ; Kuntz vs. Temple, 48 Mo. 77 ; Western Boatmen’s Benevolent Ass’n^vs. George O. Wolff, 45 Mo. 104 ; Sanderson vs. Reinstadler, 81 Mo. 483 ; Gilchrist vs. Downell, 53 Mo. 591; Edw. Bills & Notes, 219; State vs. Vaughn, 36 Mo. 95 ; Gerhardt vs. Boatmen’s Savings Institution, 38 Mo. 62 ; Downzelot vs. Rawlings, 58 Mo. 75; Gerhke vs. Jod, 59 Mo. 522; Moore vs. State Bank, 6 Mo. 379; Edw. Bills & Notes, 229, 273 ; Hayward vs. National Insurance Co., 52 Mo. 181 ; Mechanic’s Bank vs. Shaumburg, 38 Mo. 228 ; Sto. Agency, § 140.</p> <p>Powell vs. Thomas, 7 Mo. 440, down to the present time ;■ Lewis vs. Harvey, 18 Mo. 74 ; Schneider vs. Sehiffman, 20 Mo. 571 ; Seymour vs. Farrell, 51 Mo. 95; Western B. B. Ass’n vs. Wolff, 45 Mo. 105 ; Mammon vs. Hartman, 51 Mo. 108; Kuntz vs. Temple et al., 48 Mo. 71 ; Cahn vs. Dutton, 60 Mo. 296 ; Hardin vs. Phelps, 51 Mo. 332 ; Emmerson vs. Sturgeon, 18 Mo. 170 ; Boland vs. Mo. R. R. Co., 36 Mo. 484; Callahan vs. Warne, 40 Mo. 131.</p>

«Appeal from Maries County Circuit Court. Signed as it was there could be no personal liability nor judgment de honis propriis on the note. The intent to bind only the assets of the estate is plain on the face of the instrument. In the case'of Bank of Troy vs. Tapping, 9 Wend. 278 ; 13 Wend. 557, it was held that the executor is not liable unless it be shown that he had assets.

<p>1. Fraudulent representation — Action for — What scienter necessary to be shown —Testimony as to intent maybe rejected, when. — In order to sustain an action, based on deceit or fraudulent misrepresentations, it must be shown that the party making them believed or lmd good reason to believe at the time, that they were false, or intended to convey the impression that he had actual knowledge of their truth, whereas he was aware in fact that he had no such knowledge, and it must appear that the other party relied upon them and was deceived by them to his injury.</p> <p>In such suit where the fraudulent intent of the party is sufficiently made to appear from the facts in the case, his testimony that he had no such intent is properly excluded.</p>

Petition for Habeas Corpus. I. The sentence of Jilz by the Court of Criminal Correction was valid, because: ' 1st. It was1 in conformity with the general law of the State prescribing the punishment for criminal abortion. (Wagn. Stat., 450, §34.) 2nd. The 32nd section of the Act of 1869 (Session.Laws of 1869, p. 199), affixing a different and milder penalty for the same offense, when committed in St. Louis County, is unconstitutional and void. (Am.

Louis Circuit Court. The evidence is conclusive, 1st, that the line was located at Lindell’s west fence and lived up to from 1824 to 1845; 2nd, that Lindells were put in possession in 1852 and down possibly to 1855 ; 3rd, that in 1856 Lindell’s people were out of possession, and Lucas’ people in possession, and the Lindells commenced suit for whole, vacant space ; sued McLaughlin on the south, and Hannegan on the north side Washington Ave., they being adverse occupants.

<p>1. Damages — Railroads—Defeats in machinery and track-Allegata and probata.— Where mi action for diimuges «gainst ¡t railroad is grounded on an alleged defect ill construction of the engine, plnintiff ciinnot recover for an injury resulting from n defect in the track.</p>

I. The evidence objected to by the plaintiff, offered by defendant to prove that there was no consideration, was illegal and incompetent. (13 Mo. 151; 1 Greenl. Ev. §§ 24, 25 and 26.) II. The covenant against incumbrances runs with the land. III. The fact that the plaintiff had made no contract with defendant about the land will not release defendant from liability on his covenants. (Rawle Cov., [3d. ed.] pp. 69, 70, and note 1, p. 462 ; Byrnes vs. Rich, 5 Gray, 518.) IV.

<p> Jljopeal from Randolph County Circuit Court. </p> <p>Cary vs. St. Louis, K. C. & N. R’y Co., 60 Mo. 209; Biglow vs. N Mo. R. R. Co., 48 Mo. 510 ; Grorman vs. P. R. R. Co., 26 Mo. 441; Wood vs. St. L., K. C. & N. E’y Co., 58 Mo. 109.</p> <p>The language of the petition, in charging defendant’s liability, “ negligence, unskillfulness and misconduct” on the part of the defendant’s engineers, officers, servants, agents, and employees ; and the fact that the court rendered judgment in the case in favor of the plaintiff for exactly the amount found by the jury in their verdict for plaintiff, all show the character of the action, and that it was tried by the court as one, founded not upon the provisions of the 43 d section of the statute before referred to, but' as founded on the “damage act.”</p>

To authorize judgment at the return term in such case, it is necessary that each defendant be personally served toy delivering to him a copy of the writ and account, at least, if not indeed, of petition, writ and account. (Wagn. Stat. 1053, § 10.) One of the firm was served in time with a copy of the account, the other two were duly served with summons, and all made default.

<p>1. Criminal law — Keeping of bawdy house — Entry by city register of Sedalia — Proceeding under statute against same defendant for same offense — Evidence, how far character of house shown by that of inmates. — In a criminal proceeding in Pettis County under tliesratute (Wagn. Scat., 502, (j 19). an entry in the records of the city register of the city of Sedalia, that defendant had been found guilty of keeping a bawdy house, where the record further showed that defendant had pleaded ‘‘not guilty,” and had appealed from the judgment, and there was no evidence in the State trial that the appeal’ had not been determined, was held inadmissible against the accused, and its introduction on error not cured by an instruction that if'an appeal were still pending the facts shown by the record would not authorize a conviction ; and the error will authorize a reversal of the cause. Contrawise, where co-defendants of the accused were shown by the entry to have been arrested by tile recorder as inmates of the same house, and to have been convicted, and to have failed to appeal from liis judgment, the entry would be admissible for the purpose of showing the character .of the house kept by defendant.</p>

I. The court erred in receiving in evidence the statements of Brown and Flynn, not made in the presence of defendant, and made some time after the crime was committed. Those statements were a narrative of past events and not made in the furtherance of any criminal enterprise. They were not a part of the res gestee. (State vs. Ross, 29 Mo. 32, see p. 50, 1 Greenl. Ev., §§ 233, 111; Ladd vs. Couzins, 35 Mo. 513-516 ; 1 Phil. Ev.. [4 Am.

<p>1. Railroads — Damages —Contributory negligence — Evidence—Non-suit.—In suit against a railroad under jS 2 of the damage act (Wagn. Stnt. 619-20) it appeared that the employee was run over by an express train passing at the usual hour — about seven in the evening; that the night, was moonlight, but at the site of the accident, owing to a cut and curve in the rood, deceased could not liave been seen on the track more than two hundred and fifty yards; and there was no proof that the engineer saw him at all, or that lie might with proper care have seen him ; and on the other hand it was shown that deceased, for fourteen years, had lived in a house standing on the company’s right óf way, and presumably knew of the time of the passage of the train, and might have seen it coming in time to get. off the track. Held, that plaintiff made out no case for a jury, and should have been non-suited.</p> <p>It is the duty of the court, when there is no evidence of negligence on the part of the company, or there is uncontradicted evidence of negligence on the part of tlie persons killed or injured contributing directly to the result, so to instruct the jury.</p> <p>2. Negligence — Rate of railroad speed: — No rate of speed in a railroad train is negligence per se, except where the law of the State, or of a municipal corporation authorized to do so, prescribes a limit.</p> <p>3. Damages — Railroad—Care of company after discovering danger — What requisite. — To make a railroad company liable where the party injured lias also been negligent, it should appear that the proximate cause of the injury was defendant’s omission, after becoming aware of plaintiff’s danger, to use a proper degree of care to avoid injuring him. If, on discovering him upon the track, it was impossible, with safety to the train and those on board, to stop the train in time to prevent the casualty, the company cannot be held, unless guilty of negligence beforehand which creates the impossibility.</p>

<p>1. Instructions — Refusal of, no error, when. — The refusal of instructions substantially incorporated in others which are given is not error.</p> <p>2. Instructions — Evidence, conflict of — Jury.—Questions of conflicting testimony are properly left to the jury under appropriate instructions.</p> <p>3. Contract — Part fulfilment — Measure of damages. — Where by the terms of the contract for the sale of certain saw logs ; they were to be “ received and paid for when as much as 50,000 feet wore ready,” if they received less than that number they would be liable on the quwrdum meruit for what they got, taking the contract price as their value, if the agreement had been carried out and making proper allowance for the difference between that and the value of the logs as furnished.</p> <p>4. Sale — Title passes without transfer of possession, when. — A sale without delivery or possession taken by the vendee passes the title, if the property is of' such a nature and so situated that his possession would be impracticable or inconvenient. So where the article though bought in general terms from a large number of the same description, is afterwards selected and set apart with the assent of the parties as the thing purchased.</p>

<p>1. Indictment — Acquital of burglary and conviction of larceny — Measure of larceny, — Oil an indictment charging defendant in ilie sume count ivith burglary and larceny, he may be acquitted of the former and convicted of the latter. (See Wngn. Stat. 455 ,456, § 19; State vs. Alexander, 56 Mo. 181.) But ill such case the degree of larceny or whether the offense be larceny, or merely a misdemeanor, must be determined by the value of the propeity taken.</p> <p>2. Practice, criminal — Evidence—Verdict—Supreme Court will not disturb, when. — In a criminal proceeding where the evidence is not preserved further than a general statement that it “tended to show” that the crime charged was committed, the verdict of the trial court will not be disturbed above, as against the evidence.</p> <p>3. Larceny — Indictment—Variance in name of owner, no ground of reversal, when. — In the trial of an indictment for stealing the property of B. O. Stevens, proof that it was the property C. J. Stevens, will not under the statute of Missouri (YVagn. Stat. 1089, \ 22), be ground for setting aside a verdict unless the court trying the cause shall find tiiat the variance was in fact “ material to the merits of the case, and prejudicial to the defense of the defendant.”</p>

Mechanic’s Bank vs. Wright, 53 Mo. 153; Foster vs. Wallace, 2 Mo. 231 ; and contended that the reasoning in the case of Picot vs. Signia.go, 22 Mo. 587, following the case of Spriggs vs. The Bank of Mount Pleasant, 10 Pet. 257, was founded upon a sealed instrument. Sprigg vs. Mt. Pleasant Bank, 10 Pet. 257 ; Id. 14 Pet. 201 ; Picot vs. Signiago, 22 Mo. 587. ’ -

<p>PqnUy — Action to set aside deed of intestate for fraud and subject properly to sale — Parties to suit, who are and who are, not proper — Bill—A llegations showing equity — Demurrer.</p> <p>1. In proceedings by the creditor of an estate to subject to the payment of his debts, land alleged to have been conveyed away by the intestate in fraud of his creditors, neither the administrator nor the other creditors, nor the fraudulent grantees of the land who have parted wit.li their interest are proper parties. But the grantees who llave not so conveyed and who claim ihe property must be joined. And where a grantee is a married woman her husband should be made party. (Wag». Star. 1001. \ 8.)</p> <p>2. In such suit the petition alleging that judgment has been obtained on plaintiff’s demand against the estate, that the judgment is unpaid and the estate wholly insolvent, is not demurrable as showing a legal remedy. On the other hand the proceeding begun by him is plaintiff’s only remedy.</p>

I. The State senate wa3 the proper board of equalization for 1876, instead of the governor and other State officers under the new Constitution. (Wagn. Stat. 1160, § 9; § 1, Schedule to the new Constitution. Dwar. Stat. 568.) H. The Constitution does not execute itself prqpno vigore. Legislative action is necessary to have that effect. (St. Jo. & Denver City R. R. Co. vs. Buchanan Co., 39 Mo. 485 ; Groves vs. Slaughter, 15 Pet. 449 ; Cool. Const.

<p> Error to Pettis County Circuit Court. </p> <p>Iba vs. the Hannibal and St. Joseph R. R. Co., 45 Mo. 469 ; Burt vs. Warne, 31 Mo. 296 ; Coughlin vs. Lyons, 21 Mo.-538 ; House vs. Duncan, 50 Mo. 453; Beattie vs. Hill, 60 Mo. 72.</p> <p>Donohoe vs. Chappell, 4 Mo. 34 ; 1 Mo. 545 ; 31 Mo. 296 ; 46 Mo. 221.</p>

I. Under the will of Philip W. Thompson, dec’d, the plaintiff did not take the land in fee, and could not convey to the defendant a good title to the same. (Harbison vs. Swan, 5S Mo. 147 ; Farrar vs. Christy, 24 Mo. 467 ; Overton vs. Davy’s Ex’r, 20 Mo. 273.) Wells vs. Wells, 10 Mo. 193, properly understood, does not maintain the contrary. II.

<p>1. Practice, Supreme Court — Bill of exceptions — Exceptions to actions of court, etc. not incorporated in — Record proper only, will be reviewed. — On trial of an indictment where no exceptions to the admission or rejection of evidence, or the giving or refusing of instructions, or the action of the court in overruling motions are preserved in the bill of exceptions, the Supreme Court can review nothing but the record proper, i. e.% the indictment, and the subsequent pleading including verdict and judgment.</p>

<p>1. Murder in first and second degrees — Facts necessary to constitute — Deliberation, premeditation and malice — Proof and presumptions as to. — Under our statute he who uses a deadly weapon with fatal effect and with a manifest deadly purpose having sufficient time — be it long or short — to deliberate and fully form the purpose of killing, and without sufficient reasonable cause to apprehend immediate personal violence, or other sufficient cause or extenuation, is guilty of murder in the first degree. To that end deliberation, premeditation and malice, are not to be presumed but must be proved. The proof, however, need not be direct but may be shown by circumstantial evidence such as the above, and deduced by the jury from all the facts in the case.</p> <p>In murder in the second degree, deliberation and premeditation need not be shown, but only malice. And from the simple act of killing, the law will presume malice.</p> <p>2. Practice, criminal — Homicide—Different grades — For what defendant may be tried under indictment — Question of grade when for jury — Instructions—Should be confined how — What will warrant reversal. — Under an indictment for murder in the first degree defendant may be convicted of either murder in the first or in the second degree, or in any of the degrees of manslaughter of which the evidence may show him to be guilty. And where from the evidence the question of the grade is doubtful, the court may properly leave it to the jury to determine, under instructions defining the different grades to which the proof may apply.</p> <p>In such indictment if the evidence shows murder in the first degree and no other the court may confine its instructions to that grade and refuse to instruct as to any other. And an instruction as to other grades, in the absence of evi- , deuce applying thereto, will warrant a reversal.</p> <p>3. Instructions — Refusal of not error, when. — The refusal of instructions substantially incorporated in those given is not error.</p>

<p>1. Mechanic's lien — Notice—Account not sworn to, effect of. — Where notice of a mechanic's lien, served on defendants, stares the amount of the account, and describes the property to be charged, and the account is attached and specifies the materials, and when furnished, and the notice and account are filed with the clerk of the circuit court, the law is sufficiently complied with, although the account is not sworn to.</p> <p>2. Mechanic's lien — Joint original contractors — Joinder of in suit. — In suit by a sub-contractor on a mechanic’s lien, where there are two original joint contractors, it is not‘necessary that plaintiffs should join both as defendants.</p> <p>3. Mechanic's lien, suit on — Service, how may be made. — Service of notice of suit in the circuit court on a mechanic’s lien, made by a constable, is sufficient,; and, semble, that such service may be made by any competent witness or any officer authorized to serve writs.</p> <p>4. Instructions, pleadings, etc. — Instructions should not be given on issues not made by the pleadings.</p> <p>5. Mechanic's lien suit — Failure of petition to state when work was done, etc.— Dates set forth in account attached — Gonstr. Stat. — Under the present statute (Wagn. Stat. 1020, \ 38), where, in suit on a mechanic’s lien, plaintiff files, attached to his petition, an itemized account showing when the work was done or the material was furnished, which account is referred to in the petition as a part of it. the silence of the petition on these points is not a fatal defect.</p> <p>6. Mechanic's lien — General judgment against owner. — In a mechanic’s lien suit a general judgment against the owner is a fatal defect.</p>

<p>1* ^\fe livturance — Refusal to pay annual premium — Action against company for breach of contract-intercourse of Slates, prohibition of by proclamation, of Aitgust 16¿A, 1861 — Damages, measure of how determined — Married women — Statute of limitation.' — Where the life of a citizen of Virginia was insured ilia Connecticut company, and, after receiving the annual premium for a number of yeai'3, in May, 1861, the company refused to take a furtherpnymenfc i hereof, it was held, that, upon the death of the assured, an action would lie on behalf of the beneficiary against the company, for dissolving its contract by such refusal; that non-intercourse between the States could not be pleaded as justifying the non-payment, inasmuch as the prohibition of such intercourse did not date till August 16th, 1861, when President Lincoln issued his proclamation, pursuant to the Act of Congress of July 13th ; and that the measure of damages would be the value of the policy at the date of its dissolution — which value might be determined by the opinion of actuaries — with interest on the amount at six percent.</p> <p>In such case, where the agent of the company and the beneficiary resided within the limits covered by the proclamation when the,cause of action accrued, the period of the war would not curtail the running of the statute.</p> <p>•But if the beneficiary were a married woman when it accrued, the statute would not run during her coverture.</p>

<p> Error to Cole County Circuit Court </p> <p>Jennings vs. Brizadin, 44 Mo. 332 ; Newsom vs. Prior, 7 Wheat. 10 ; Henry vs. Thompson, 6 Cow. 178 ; Seaman vs. Hogeboom, 21 Barb. 398.</p>

<p> Jippeal from. Jackson County Circuit Court. </p> <p>Wallace Pratt <$• Frank B. Huff, for Defendants in Error, cited: Wagner vs. Jacoby, 26 Mo. 532 ; Elaherty, Adm’r, vs. Taylor, 35 Mo. 447 ; 15 Johns. N. Y. 229 ; 16N. Y. Court of Appeals, 548 ; 16 Johns. N. Y., 121-136 ; 12 Wis, 544 ; 1 Wend., 487 ; 10 Eng. Com. Law (3 Barn. & Ores.), 235 ; 8 Wend. 492; 13 Wend. 644; 15 Wend. 557 ; 2 Cow. & Hill's Notes (Ed. 1839), 842, and cases cited; 15 Johns. N. Y. 432; 16 N. Y. 548; Rice vs. King, 7 Johns. 20 ; McKnight vs. Dunlap, 4 Barb. (N. Y.), 36.</p>

<p>1. Criminal law — Felony—Acquittal of, how shown — Acquittal of co-defendant — Vroof of improper, when. — Proof of acquittal of a felony must be shown by the records and cannot be proved by parol testimony. And the acquittal of a co-defendant cannot be introduced in any shape for the benefit of one charged with commission of a felony</p> <p>2. Criminal law — Evidence of guilt — Hypothesis if innocent. — To establish the guilt of tiie prisoner the evidence ninsi not only be consistent with a hypothesis of his guilt but inconsistent with that of his innocence.</p> <p>3. Evidence — Jury—Ealsus in uno, etc. — When the jury believe that a witness has knowingly testified falsely to any material fact in the trial, they are at liberty to reject his entire testimony.</p> <p>4. Instructions, — Refusal of proper, when. — Instructions which are argumentative or misleading, or the substance of which is embodied in others, are properly refused.</p>

contended that this case at bar was not within the reasoning of the court in Wickersham vs. Woodbeek, 57 Mo. 59. Wickersham vs. Woodbeek, 57 Mo. 59.

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

<p> Appeal from Jasper County Circuit Court. </p> <p>Pond vs. Kimball, 101 Mass. 105 ; Guptel vs. McFee et al., 9 Kan. 30 ; Cent. L. J. No. 17, April 23,1875, 264 ; Wagn. Stat. 603, § 9.</p> <p>Stewart vs. Brown, 37 N. Y. 350 ; Knapp vs. Bartlett, 23 Wis. 88 ; Gilman vs. Williams, 7 Wis. 287 ; Kiskaddon vs. Jones, 63 Mo. 190.</p>

<p>1. Indictment — Murder—New trial — Prejudice of juror, what sufficient to warrant — Where it appeared, on a motion for a new trial on an indictment for murder, that one of the jury had formed such a prejudice against the accused that he could not be an impartial juror, the prisoner would be entitled to a retrial, although the juror had formed no opinion as to his guilt or innocence, and his prejudice was formed merely upon rumor, and not upon evidence at the trial. In such case the grant of a new trial does not turn on the question of the competency or iucompetency of the juror’alone, but on the question whether the prisoner will have an impartial trial.</p> <p>2. Murder — Threats, etc., mxde by deceased and not communicated to pi'Uoner.— On an indictment for. murder, proof of threats made by deceased against the prisoner, or wrongs done or slanders uttered, touching the family of the prisoner, knowledge whereof is not shown to have been communicated to the latter, is incompetent.</p>

<p> Appeal from, Dade County Circuit Court. </p> <p>1 Wkart. Am. Cr. Law, §§ 378, 379, 380, 614 ; State vs. Shiflett, 20 Mo. 415.</p> <p>Austin vs. State, 10 Mo. 591; State vs. Eierline, 19 Mo. 380 ; State vs. Small, 31 Mo. 197.</p>

<p>3. Practice, criminal — Indictment—Pleas in abatement— What insufficient. — -Y]eas in abatement to an indictment on tbe grounds that one of the grand jurors returning tbe same was not a freeholder or householder of the county ; that he was not selected as a grand juror by the county court, and that defendant was not present when that jury was sworn so as to challenge said juror or the array, are bad on demurrer.</p> <p>2. Indictment for murder — Exclamation after killing that deceased had a knife not res gestee. — On an indictment for murder, the testimony that witness heard a little girl, after the killing, exclaim “ Mr. L. (meaning the deceased) had a knife in his hand,” was held inadmissible. Such exclamation is no part of the res gestee.</p> <p>3. Homicide, trial of — Jury—Proof that they were onsite of casualty — Effect of— Proof of the fact that on trial of an indictment for homicide, the jury were on the ground where the killinir took place, where it did not appear that they were looking at the ground with a uew to understanding how the deed was done, nor that they said anything about it or conversed among themselves about the ground, and there was no question as to the locality of the homicide, or that the witness testifying thereto was in a position to see wlmt he related, will not authorize a new trial.</p> <p>4. Evidence — Falsus inww, etc. — An instruction which tells a jury that they may disregard the testimony of a witness who has testified falsely in any particular, without describing such testimony as. wilfully or intentionally false, is improper; but the giving of such instruction will not operate a reversal, where it does not appear to have wrought injury to the appellant.</p> <p>6. Criminal law — Murder—Self defense — Doctrine of, when may be invoked.— When defendant, in an indictment for homicide, brings on or voluntarily enters into a difficulty which results in the death of his antagonist, however high the passion of defendant or however imminent the danger to him may have become during the difficulty or conflict, the plea of self defense cannot be invoked.</p> <p>6. Criminal law — Provocation and danger not sufficient to reduce murder to lower mode of crime. — No provocation short of personal violence, nor any peril not * apparent and imminent, will be sufficient to reduce the crime of murder to a lower order of homicide.</p> <p>7. Homicide — Threats to kill prisoner — Presumption of continuance of purpose, etc. — The fact that the deceased threatened to kill the prisoner, or to do him great bodily harm, does not raise the presumption of law that the purpose continued down to the time of the killing, and that deceased was presentar, the time for the purpose of carrying out .-itch threat.</p> <p>8. Indictment — Homicide—Want of provocation — Burden of proof. — Tn an indictment for murder, the burden of proof is not upon the State to show that the prisoner killed the deceased without any justifiable or legal excuse or extenuating circumstances.</p>

<p> Error to Osage County Circuit Court. </p> <p>Hide vs. Curling, 10 Mo. 359 ; Gibson vs. Chouteau’s heirs, 45 Mo. 171 ; Morrison, Adm’r, vs. Dassman, 3 Cal. 255 ; Moody vs. Grant, 41 Miss. 565 ; West vs. Galloway, 33 Ala. 306 ; Davis vs. Ballard, 7 Mon. 604 ; Bondurant vs. Thompson, 15 Ala. 202 ; Kitchen vs. Moye, 17 Ala. 143; Comm. vs. Lester, 17 Serg. & R. 164; 17 Mo. 541 ; 48 Cal. 323 ; Cool. Const. Lim. 525, 526 ; 26 Ala. 155 ; 1 Stark. Or. P. 262 ; 1 Oh. Cr. Law, 723 ; 1 Arch. Or. Pr. & E., 186 ; 10 Yerg. 542 ; 23 Wend. 47.</p> <p>Const.: Art. n, § 23 ; State vs. Clark, 18 Mo. 432 ; Whart. Crim Law, §§ 580-586 ; State vs. Matrassoy, 47 Mo. 295 ; Wagn. Stat. 422, § 30.</p>

Jipjieal from, McDonald Goivnty Circuit Court. It is not necessary in an indictment for murder to charge in what county the deceased died, or when he died The words of the indictment are susceptible of no other construction than that Martin died in the county of McDonald, and on the day before alleged in said indictment, to-wit: the 3rd day of February, 1373. (State vs. Harvey, 67 N. O. 467 State vs. Ryan, 13 Minn. 370.) Chit. Cr. Law, 737 ; 2 Hale, 179 ; Cro. Eliz. 738.

<p> Error to Hannibal Court of Common Pleas. </p> <p>Wagn. Stat. 504, § 80 ; Vaughn vs. State, 4 Mo. 580; State vs. Ross, 25 Mo. 426 ; Com. vs./ Welch, 1 Gray, 324-7 ; State vs. Coulter, 46 Mo. 564 ; State vs. Swadley, 15 Mo. 515.</p> <p>State vs. Bankhead, 25 Mo. 558 ; State vs. Mitchell, 25 Mo. 420; State vs. Hopper, 27 Mo. 599 ; State vs. Edwards, 32 Mo. 549 ; State vs. Stubblefield, 32 Mo. 563; State vs. Jasper, 4 Dev. [N. C.] 323 ; Whart. Prec. £2 Ed.] § 861; Bell vs. Graham, 1 Nott & McC. [S. O.] 278.</p>

<p> Appeal from Si. Louis County Circuit Court. </p> <p>Kimm vs. Weipperfc, 46 Mo. 532 ; White-sides vs. Cannon, 2 3 Mo. 457; Olaflin vs. Yan Wagoner, 32 Mo. 252 ; Gahn vs. Niemcewicz’s Ex’r, 11 Wend. 312.</p> <p>Gahn vs. Niemcewicz’s Ex’r, 3 Paige, 614 ; John vs. Reardon, 11 Md. 468; Vartie vs. Underwood, 18 Barb. 561; Fitch vs. Cotheal, 2 Sandf. 29; Ten Eyck vs. Holmes, 3 Sandf. 428 ; Wright vs. Austin, 56 Barb. 13 ; Loomer vs. Wheeler, 3 Sandf. 135.</p>

<p>1. Indictment — Instruction to convict of .murder or acquit. — Where the evidence is of a character to authorize it, the court may properly give an instruction that the jury must either convict the prisoner of» murder in the first degree, or acquit him.</p> <p>2. Practice,criminal — Murder—Intent, continuance of, for what length of time necessary. — If homicide is committed, not in ihe heat of passion or with lawful provocation, and the prisoner deliberately and with malice aforethought intend the killing for any length of time beforehand, no matter how short, he is guilty of murder in the first degree.</p> <p>8. Instruction commenting on evidence. — An instruction singling out a portion of testimony and commenting thereon is improper.</p> <p>4. Murder — Uncorroborated testimony of accomplice, how to be received by juries* —The testimony of those abetting and encouraging murder in relation theieto, when uncorroborated by that of others not implicated, although admissible, should be received with great caution by the jury; and they should not convict on such testimony alone, unless satisfied of its truth.</p> <p>5. Instruction — Evidence—Refusal of. — An instruction not based upon evidence is properly refused.</p> <p>6. Witness — Recalling of, for purpose of impeachment. — A party after cross-examining a witness of the other side may by permission of court recall and question him for the purpose.of impeaching him, and afterward introduce other testimony to that end. lie does not by sorecalling him make the witness his own.</p> <p>7. Witness called for particular purpose — Cross-examination of. — Semble, that a witness examined on any point may be cross-examined by the other side touching all matters pertaining1 to the case.</p> <p>8. Jury — Competency of juror. — The fact that he is father-in-law of the prosecuting attorney does not render a juror incompetent..</p>

<p>1, Murder — Indictment—Failure to allege in wkatpart of the body wound was given — Jeofails, statute of. — An indictment for murder which alleges that the prisoner * * * “did strike, penetrate and wound him, the said E., in and about divers places of the body,” etc., is not, under the statute of jeofails (Wagn. St at.., 1090, 1091, § 2 7 and clause declaring an indictment not invalid “ for want of the averment of any matter not necessary to be proved”) fatally defective for failing to state in what part of the body the wound was inflicted ; since it is not necessary to prove that fact as alleged, if stated.</p>

<p>1. Administrator — Sale of property by to satisfy purchase price contracted for by decedent — Petition—Appraisement—J0a,de probate court, jurisdiction of— Sait to divest title — Joinder of parties, etc.' — Where hind purchased bui. nob paid for by the intestate in his lifetime, is sold by the administrator for the payment of the purchase price, and there is due notice and report thereof, the sale may be legally made under the statute (Wagn. St,at. 98, 91, \\ 2, 3), without a petition therefor, or an appraisement of the property. And where such sale was made under the orders of the probate court of Dade county, that tribunal, under the Sess. Acts of 1844-5, p. *71, bad jurisdiction to make such orders. And in suit by the purchttserof the land at the administrator’s sale, to direst the title out of an adverse purchaser, the heirs of the intestate are not aecessary'parties.</p>

<p>1. limitations, statute of — Bond—Partpayment of by administrator of one of joint makers, effect of. — Part payment upon a bond made by the administrator of one of the joint makers within the statutory period will prevent the running of the statute of limitations in favor of the remainder.</p>

<p>1. Railroads — Damages to stock — Failure to erect fences and cattle guards at stations — Negligence,—From motives of public policy the failure of a railroad to fence its track at a station, will not render it liable for the killing of stock at that point, except on proof of acuml negligence. And the same rule will obtain touching failure to construct cuttle guards at such locality, where it appears that the access of the public to the station would thereby be interfered with.</p>

<p> Appeal from Jasper County Court of Common Pleas. </p> <p>K. C., St. Jo. & C. B. R. R. vs. Nelson, 62 Mo. 585; State to use vs. Lingo, 26 Mo. 500 ; High Leg. Rem., 437, 606, 676; State ex rel. vs. Stewart, 82 Mo. 381-382; State vs. Tail, 53 Mo. 107 ; State ex rel. vs. Lawrence, 389 ; Dil. Corp. Ed. 72, § 772 ; People vs. Serugham, 20 Barb. 302.</p>

<p> Jdjppeal from Sjpec/al Law and, Equity Coxirt of Jackson County. </p> <p>Neenan vs. Smith, 60 Mo. 292 ; First National Bank vs. Arnoldia, 63 Mo. 229 ; Sess. Acts 1871-2, 408, § 25.</p> <p>commented at lengih on game act and decisions.</p>

<p> Appeal from St. Louis Circuit Court. </p> <p>Norton vs. Ittner, 56 Mo. 351; Turner vs. Loler, 34 Mo. 461; Kinman vs. Cannefax, 34 Mo. 147; Meyer vs. Pac. R. R., 40 Mo. 151 ; First Nat. Bank of Warsaw vs. Currie, 44 Mo. 91; S. C., 45 Mo. 157; Wyatt vs. Citizen’s R. R. Co., 55 Mo. 490 ; R. R. Co. vs. Stout, 17 Wall. 657 ; Conroy vs. Yulcan Iron Works, 62 Mo. 35.)</p> <p>Devitt vs. Pac. R. R., 50 Mo. 302; Barton vs. I. M. R. R., 52 Mo. 258 ; Evans vs. A. & P. R. R. Co., 62 Mo. 59 ; Smith vs. UnionR. R., 61 Mo. 591; Owens vs. Han. & St. Joe. R. R. Co., 58 Mo. 393; Stoneman vs. A. & P. R. R., 58 Mo. 503 ; Karle vs. K. C. & St. Jo. R. R., 55 Mo. 483 ; Norton vs. Ittner, 56 Mo. 351.</p>

<p> Appeal from Franklin County Circuit Court. </p> <p>Sharpe vs. Johnstone, 59 Mo. 575; Larch vs. Blackburn, 4 Carr. & Payne, 297 ; Ilat vs. Wilkes, 3 Bam. & Ala. 304 ; 1 Wood & Mack, 505 ; S. C., 7 Taunt. 497.</p> <p>Callahan vs. Cafferata, 39 Mo. 136; Casperson vs. Sproule, 39 Mo. 39 ; Miller vs. Brown, 3 Mo. 127, 131 ; 17 Wend. 496 ; 21 Wend. 407 ; 30 Conn. 121; Freidenheit vs. Edmonson, 36 Mo. 227 ; Wells vs. Sanger, 21 Mo. 354 ; Woodson vs. Scott, 20 Mo. 272; Eallenstein vs. Booth, 13 Mo. 427 ; Buckley vs. Knapp, 48 Mo. 152 ; 48 Mo. 164; Wa.gn. Stat. 462, § 55 ; 506, § 46 ; 456, § 25; Davis vs. Commonwealth, 17 Grat. 617: U. S. vs. Gideon, 1 Minn. 296 ; Hill vs. State, 43 Ala. 338 ; Woolf vs. Chalker, 31 Conn. 121; Brow vs. Carpenter, 26 Vt. 640 ; Loomis vs. Terry, 17 Wend. 496; Mackwell vs. Palmerston, 21 Wend. 407; Hill vs. Palm, 38 Mo. 13 ; Sapping-ton vs. Watson, 50 Mo. 83 ; Wagn. Stat. 496, § 27</p>

<p>1. Railroads — Injuries to child — Platform—Trespass—Contributory negligence — 'Liability of company, measure of. — In c*uit against, a railroad conqiany for injuries to a child, it appeared that; at a station where the accident, occurred, by direction of his father the boy was in the habit of driving stock from the track before the arrival of trains, and would then seat himself on the platform of the station, and was accustomed to get on freight trains on their arrival, and ride to the switch ; that the platform had been built by tlie company for the accommodation of passengers and persons having business with the road, and that the lad had been frequently told to keep off the platform; that while standing there he was struck and injured by a timber projecting from a freight car: Held, that the direction was under the circumstances merely admonitory and not imperative in such sense as to make him, by reason of the order, a trespasser; that his having no right or business there did not constitute him a trespasser, and his being there was notsuch negligence as in law to contribute directly to his injury; that even supposing the child were a trespasser, the liability of the company 10 him for injuries would not be restricted to those which were wanton, but would embrace all such as resulted from want of ordinary care.</p> <p>2. Railroads — Risks in running past stations, etc. — Caution required. — The cnre and caution required of railroad companies in running their trains are commensurate with the danger to persons and property incident to that mode of conveyance; and in running through towns and cities and over public crossings, or in the vicinity of railroad stations, they must exercise care and caution commensurate with the risks of accidents at such places.</p>

I. An action cannot be maintained upon an implied contract, when there is an express contract subsisting between the parties in relation to the subject matter of the action, the express contract between the parties being entirely different in its terms from ■ the contract implied by law. (Ang.

<p>1. Contracts — Consideration-moving to third, person, etc. — It is now the settled law in this State and elsewhere, thru a promise made to one, for a valuable consideration, moving* from him to another who agrees to pay a sum of money to a third person,.will support an action by (lie latter*</p> <p>2. Vendor and purchaser — Dependent and independent covenants — Consideration moving to third party, — Where A. covenanted to convey to B. by deed of warranty a tract of land, in consideration that B. should assume a mortgage on the land and give his note for a balance due from A. to C., and B. permits the property to.be sold under the mortgage to a third party, it is not necessary, in order to entitle O. to recover on his note against B., to deliver to the latter a deed to the land from A. The payment by B. of the mortgage note and discharge thereby of the liens were a condition precedent to his tight to the deed.</p>

<p> Appeal, from Schuyler County Circuit Court. </p> <p>Pro-volt vs. 0., R. I. & P. R. R., 57 Mo. 256 ; MoAulay vs. W. & R. R. 33 Yt. 311 ; State vs. Rodman, 43 Mo. 260 ; Torrey vs. Camden & Atlantic R. R. Co., 3 C. E. Greene 293 ; Green-laugh vs. Manchester & Birmingham R’y Co., 3 Myl. etc, 785 ; Hentz vs. Long Island & O. R. R., 13 Barb. 648 ; Erie etc. vs. Delaware etc., 6 C. E. Greene, 283 ; Goodwin vs. Cincinnati etc., 15 Ohio St. 168; High Inj. §§ 387, 397 ; Commissioners of Highways vs. Dunham, 43 Ills. 86 ; Harness vs. Chesapeake & Ohio , Canal Co. 1 Md., 248 ; Ross vs. Elizabethtown & Somerville R. R.- Co., 1 Green. 422 ; Browning vs. Camden & Woodbury R. R. 3 Green. 4 ; and commented on Richards vs. Des Moines Yalley R. R-, 18 Iowa 259; Stewart vs. Raymond R. R., 5 S. & M. 568 ; Bowers vs. Bears, 12 Wis. 213.</p> <p>Waither vs. Warner, 25 Mo. 277 ; 1 Redf. Ra.ilw. 238, § 3 and notes 4, '5 ; Id. 238, § 6, and note 8 ; High Inj. §§ 392, 393 and note 1; §§ 396, 399-401 ; Williams vs. N. Y. Cent. R. R., 16 N. Y. lll(referred to in Till. & Sherm. N. Y. Pr. Yol. 1, 695,) Henry vs. Dubuque & P- R. R. 10 Iowa, 54j); Horton vs. Hoyt, 11 Iowa, 496 ; High Inj. note 1, § 392 ; and commented on Anderson vs. City of St. Louis. 47 Mo. 479 ; Provolt vs. O., R. I. & P. R. R., 57 Mo. 256.</p>

<p>1. Justice of the peace — Constable, suit against for fees — Form, of action.— Under section 24 (Wagn. Scat.. 845), a justice of the peace may proceed in his own name ngaiflst a constable and his sureties, for fees collected by such constable, and not paid over as required by law; and under \ 26 it is clearly open to such a claimant to proceed in that, way, or institute a suit in amove formal manner upon the constable’s bond; and if the latter course is taken the action must be in the name of the Stale. #</p> <p>2. Appeal without merit — Damages.—Where an appeal is without merit, judgment; will be affirmed with ten per cent, damages.</p>

•Appeal from, Jackson County .Circuit Court. I. There was absolutely no evidence showing that the relation of passenger and carrier existed between the plaintiff and defendant. The testimony of the plaintiff himself shows that he was nota passenger. It shows that he intended to practice a deliberate fraud upon the defendant from the time he entered the baggage car at Kansas City.

<p>I, Bills and notes — Negotiability—Indorsement—Assignor, liability. — An instrument in the following form is not a negotiable instrument. “ $100. Neosho, Mo., Aug. 29, ISM,---after date--promise to pay to the order of-----dollars for value received, negotiable and payable, without defalcation or discount, with ten per cent, interest thereon from maturity, till paid; and if said interest shall remain unpaid for the time of one year from the maturity of this note, then the same to become as principal, and to bear‘the same rate of interest as principal, and to be compounded annually; and we do each and severally waive, any and all exemptions under and by virtue of any execution, exemption, homestead or stay laws of the State of Missouri, or that of any other State; and we do each further promise and agree to pay a reasonable attorney’s fee for the bringing suit, in collection of this note, if suit thereon be brought or collection thereof be enforced after tile same shall become due, payable at the Newton County Bank of Samstag & Stein.” (See First Natl. Bank of Trenton vs. Gay. 63 Mo.</p> <p>And tlie indorsement by the payee simply makes him liable as assignor to p;iy after the exercise of due diligence by the holder, and failure to collect from the maker after suit, or in ease of the insolvency or non-residence of the maker, so that a suit would have been unavailing.</p>

This is an action of ejectment, brought by some twenty plaintiffs who are either heirs or grantees of heirs of Richard Caulk, deceased, to recover forty acres of land in Franklin county. On the trial, the plaintiffs showed title to the premises in themselves. The defendant having pleaded the statute of limitations as a bar to the action, showed possession for more than the period of limitations.

<p>1 Railroads — Damages—Contributory negligence. — A stranger, in stepping out from behind a train of curs standing upon it side track of a railroad, to cross another track seven feet removed, was run over by a “pony” engine and killed. The engineer failed to ring the bell, but the locomotive could have been heard, while moving, at a distance of from one to two hundred yards. -The engineer did not see the deceased, bur, had he done so. could not have stopped the engine soon enough to prevent the accident; whereas the other might have both seen and heard the engine in time. Held, that although the failure to ring the bell was negligence in law, yet since the casualty was directly caused by the negligence of the deceased, and, after lie stepped from behind the train, could not have been prevented by tile engineer, the company was not liable.</p>

<p> Appeal from the Special Law and Equity Court of Jackson County. </p> <p>Devitt vs. Pacific R. R., 50 Mo. 302 ; Barton vs. Iron Mountain R. R., 52 Mo. 258 ; Evans vs. A. & P. R. R. Co., 62 Mo. 59 ; Smith vs. Union R. R., 61 Mo. 591; Maher vs. Pacific R. R., ante p. 267 ; Boland vs. Missouri R. R. Co., 36 Mo. 491; Vinton vs. Schwab, 32 Vt. 612; Callahan vs. Warne, 40 Mo. 136; 1 Gfreenl. Ev. §§ 44, 48 ; Smith vs. Hann. & St. Joe. R. R. Co., 37 Mo. 292 ; Norton vs. Ittner, 56 Mo. 352 ; Owens vs. Hann. & St. Joe. R. R., 58 Mo. 393 ; Isabel vs. Hann. & St. Joe. R. R., 60 Mo. 482 ; Shearm. & Redf. Neg. ,§§25,36, pp. 27, 40 ; Karle vs. K. C. etc. R. R. Co., 55 Mo. 484 ; Artz vs. Chicago, R. I. & P. R. R., 34 Iowa, 160 ; Havens vs. Erie R. W., 41 N. Y. 296; Ernst vs. Hudson River R. R. Co., 39 N. Y., 61; 35 lb. 9; Wilcox vs. Rome, W. & O. R. R. Co. 39 N. Y. 358 ; Baxter vs. Troy & Boston R. R. Co., 41 N. Y. 502 ; Nicholson vs. Erie R. W. Co., 41 N. Y. 525 ; Gonzales vs. New York & Harlem R. R. Co., 38 N. Y. 440 ; Wilds vs. Hudson River R. R. Co., 29 N. Y. 315 ; 24 lb. 430 ; Gorton vs. Erie R. R. Co., 45 N. Y. 660 ; Morris & Essex R. R. Co. vs. Haslan, 4 Yroom (N. J.) 149 ; Runyan vs. Central R. R. Co., 1 Dutch. (N. J.) 558 ; Chicago & Alton R. R. Co. vs. Eears, 53 111. 115 ; Lafayette & Ind. R. R. Co. vs. Huffman, 28 Ind. 287; Pittsburg & Ft. Wayne R. R. Co. vs. Yining, 27 Ind. 513 ; Toledo & Wabash R. R. Co. vs. Goddard, 25 Ind. 185; Steves vs. Oswego & Syracuse R. R. Co., 18 N. Y. 422 ; Sheffield vs. Rochester & S. R. R. Co., 21 Barb. 399; Brooks vs. Buffalo & N. F. R. R. Co., 25 lb. 600 ; Chicago, R. I. & P. R. R. Co. vs. Still, 19 111. 499; O. C. & C. R. R. Co. vs. Terry, 8 Ohio St. 570 ; Evansville & C. R. R. Co. vs. Hiatt," 17 Ind. 102 ; Illinois Central R. R. Co. vs. Buckner, 28 111. 303 ; North Penn. R. R. Co. vs. Heilmann, 49 Penn. St. 60 ; Harlem R. R. Co. vs. Coyle, 5 P. F. Smith, 396 ; Chicago & A. R. R. Co. vs. Gretzner, 46 111. 74; Shearm. & Redf. Negl. §§ 25,488 ; Finlayson vs. C., B. & Q. R. R. Co., 1 Dill., C. C. Rep. 579; R. R. Co. vs. Skinner, 19 Penn. St. Rep. 298; Phila. & Reading R. R. Co. vs. Hummell, 44 Penn. St. 375 ; R. R. Co. vs. Norton, 24 Penn. St. 465 ; Ft. W. & C. R. R. Co. vs. Evans, 53 Penn. St. 250; Fleytas vs. Pontchartrain R. R. Co., 18 La. 339 ; Jeffersonville, Madison, etc., R. R. Co. vs. Goldsmith, 47 Ind. 43 ; Maynard vs. Boston & M. R. R. Co., 115 Mass. 458 ; Munger vs. Tonawanda R. R. Co., 4 Comst. [N. Y.] 357 ; Vandergrift vs. Rediker, 2 Zab. 185 ; Cin., D. & H. R. R. Co. vs. Waterson, 2 Ohio St. 424 ; Tower vs. Wore. R. R. Co., 2 R. 1.404; Louisville R. R. Co. vs. Ballard, 2 Mete. (Ky.) 177; Gillis vs. Penn. R. R. Co., 59 Penn. St. 122; Ilott vs. Wilkes, 3 B. & Aid. 304; Hounsell vs. Smith, 7 C. B. (N. S.) 731; Binks vs. South Yorkshire R. R. Co.. 3 B. & S. 244 ; Phila. & Read. R. R Co. vs. Spearen, 47 Penn. St. 300.</p> <p>Allen vs. Willard, 57 Penn. St 374-380 ; Greenleaf vs. 1)1. Cent. R. R. 29 Iowa, 48 ; Wagn. Stat. 310, § 43 ; Owens vs. Hann. & St. Joe. R. R., 58 .Mo. 386 ; Stoneman vs. A. & P. R. R. Ib. 503 ; Tabor vs. Mo. Valley R. R., 46 Mo. 353 ; Girard Passenger Illy. Co. vs. Middleton, Law & Eq. Rep. [1877] 504; Clayards vs. Dethick, 64 Eng. O. L. 437 ; Thompson vs. North Mo. R. R.. 51 Mo. 190 ; Lloyd vs. Hann. & St. Joe. R. R. 53 Mo. 509 ; Brown vs. Hann. & St. Joe. R. R., 50 Mo. 466; Smith vs. Union It. R. Co., 61 Mo. 588 ; Radley vs. The Directors of the London & N. W. Rly., Law & Eq. Rep. [1877] 467 ; Baltimore & Ohio R. R. Co. vs. Mulligan [Md., 1877J, Ib. p. 433 ; Huelsenkamp vs. Citizens’ R. R. 37 Mo. 537 ; Tabor vs. Mo. Valley R. R. Co.,-46 Mo. 356 ; Brown vs. Hann. & St. Joe. R. R., 50 Mo. 466 ; Whalen vs. St. L., K. C. & N. R. R. Co., 60 Mo. 323 ; Isabel vs. Hann. & St. Joe. R. R. Co., 60 Mo. 475 ; Ernst vs. Hudson River R. R. Co., 35 N. Y. 26 ; Kennayde vs. Pacific R. R. Co., 45 Mo. 262 ; Burham vs. St. L. & I. M...R. E. Co., 56 Mo. 338 ; Brown vs. N. Y. C. R. R., 32 N. Y. 601.</p>

<p>1. Land and land titles — Quarter section corners, liovi determined. — In extenor sqft.ions having less than the full number of acres, where the quarter section corners cannot be found, the deficiency will not be divided between the quarter sections as contemplated by the statute, but must fall on the quarter directly oil the township or range line. In such case the regulations of the United States Land Department must prevail over the statutes of the State. Knight vs. Elliott, Bl Mo. 311.</p>

<p>1. Mayor — Marshal—Appointment of officer — Commission of — Evidence of what. — Where a city ordinance authorizes the appointment <?f an officer by the mayor and marshal, his commission, signed by the mayor, is presumptive evidence of the concurrence of the marshal in his appointment.</p> <p>2, Municipality — Police officer — Removal of by Mayor — Claim for subsequent salary— Vested rights — Contract, etc. — In suit by a policeman against the City of Kansas, for suspending and dismissing him from employment, and for the remainder of his salary thereafter unpaid, it appeared that, by its charter, the common council had power by ordinance (not to appoint but) to provide for the appointment of police officers; that the mayor was authorized to suspend, and, with the consent of the common council, to remove any officer, etc. On receipt of a communication from the .mayor suspending an officer, tile only action required of the council was to file the same. The records of the council showed that plaintiff was nominated as police officer by the mayor and confirmed by the city council; that a message was afterward received from him suspending plaintiff from his office on the police force, and recommending his removal therefrom for the unnecessary shooting of A. B. On the message was endorsed “received and action of the mayor confirmed.” , “ D. 6., Clerk.”</p> <p>Sekl, that the rhanifest intent of the mayor was to permanently remove the officer, and that the approval of the city council, through its clerk, had reference to such purpose and not merely to a suspension from office; but even were the plaintiff only suspended from office, that he was not entitled — as against the city — to recover a salary during the period for which he was suspended, since plaintiff had no vested right in his office; nor had he had any contract with the city for his position, and if he had, the city had a right to sever it for misconduct.</p>

<p> Appeal from Bates County Circuit Court. </p> <p>Lippold vs. Heed, 58 Mo. 213 ; Thomas vs. Irwin, 43 Mo. 162 ; McDonald vs. Hulse, 16 Mo. 502 ; Brengle vs. Bushey, 40 Md. 141 ; Bla.ckburn vs. Jackson. 26 Mo. 308 ; Williams vs. Boyce, 11 Mo. 537 ; Spears vs. Ledergerber, 56 Mo. 465 ; Walden vs. Bolton, 55 Mo. 405.</p> <p>Burge Suret. 206 ; 3 Den. 512 ; Small vs. Smith, 38 Mo. 478 ; Benedict vs. Smith, 10 Paige, 126.</p>

<p>1. Trust, acceptance of how established — Trustee—Title as against cestui que trust —■Purchase of another's title at judicial sale — Notice—Record—Possess") on^ etc.Where under a deed to a trustee for a married woman, his duty was simply to permit her to have the use and occupation of the land, his knowledge of the execution of the deed and his procurement of a copy for his own use, although he never exercised any control, was held, in the absence of any disclaimer, after the lapse of six years, to amount to an acceptance. And in síich a ense he cannot acquire title as against his cestui que trust even by purchase at a judicial sale under a title superior to that conveyed to him ns a trustee, and his grantee, under the sale with notice, actual or constructive, of the rights of the beneficiary and of her heirs, takes no better title. Held, also, that in ejectment by the grantee against the heirs, record of the trust deed imparted to him notice in law, and the facts that he was son-in-law of the trustee and knew that the heirs were in possession} and took the land under a quit-claim deed and Cor an inadequate consideration, and that the position of his grantor, as trustee, was a matter of public notoriety, were circumstances sufficient to warrant a finding of actual knowledge of defendant’s title. And in such suit plaintiff cannot a track their title on the ground of fraud in the conveyance made to the trustees for their benefit.</p>

I. Contracts made prior to, or contemporaneously with, the entering of judgments are allowed in evidence for the purpose of enjoining, annulling, or con.troling these same judgments. In other words, contracts relating to controversies shall be enforced notwithstanding it is a part of the contract that a judgment shall be suffered. (Hil.

<p>1. Land — Title claimed under administration sale — Proof as io order of sede, what necessary. — In ejectment for land, the title to which defendantclnims under nn administration sale, the failure of the record of the probate court to show an order authorizing the sale, is at law a fatal defect, and incapable of being supplied by proof aliúnde, whether it be notice, report or approval of sale, or administrator’s deed. Such order has the same relation to administration sale as a judgment does to an execution sale. But where it appears that the land was sold above its appraised value and the proceeds were applied to the relief of other lands of plaintiff, evidence of these facts will create a clear equity ^ in favor of defendant.</p> <p>2. Equitable estoppel. — Where they stand silently by for years, while the occupant is making valuable and lasting improvements on the property, and redeeming it from the lieu of the ancestor’s debts, his heirs will be estopped from afterward asserting their claim.</p>

<p>1. Practice, civily agreed facts, how treated on appeal. — Facts agreed upon in a case are, on appeal, to be treated as though found by a jury in a special verdict.</p> <p>% Mortgage — Judgment—Pendente Hie — Sales under mortgage and execution Rights acquired under — Record—Notice.—A mortgage upon land executed after issue but before service of a petition in ejectment, does not subject the holder thereunder to the liabilities of a purchaser pendente lite ; and a sale under such mortgage will hold as against a sale under execution on a judgment, obtained in such suit, although the mortgage was recorded after judgment, provided only that the record was prior to the date of.the execution. Where, however, the purchaser under the mortgage was also attorney for the plaintiff in the judgment, and the judgment was rendered with his assent and approval, he and any purchaser under the mortgage, with knowledge of the facts, would be estopped from asserting his title as against one holding under the execution sale.</p>

<p>1. Practice, civil — Corporation, appearance of to suit. — The appearance of a corporation to a suit is an admission of its corporate existence and dispenses with the necessity of establishing that fact by evidence.</p> <p>2. Practice, civil — Bill of exceptions — Instructions, loss of. — The statement contained in a bill of exceptions that the instructions were not copied therein because they had been taken away by the jurors or lawyers and not returned, will not warrant a reversal in the absence of any proof that they were not before the court on hearing of motion for new trial or proof of any efforts to supply their loss.</p> <p>3. Damages — Railroad—Failure to fence■ — Point of accident, etc. — When stock get upon the track of a R. R. Co. in consequence of the failure of the corporation to fence its track as required by statute (Wagn. Stat. § 43, 310), the road is liable, regardless of the question at what point on the track the stock was killed.</p> <p>4. Instructions — Refusal of. — Instructions substantially embodied in others given may be properly refused.</p>

<p>1. State Entomologist — Act for annual payment to, of §3,000, unconstitutional.— The net of March 23rd, 1870, whereby §8,000 was appropriated annually to the State Entomologist, in so far ns it contemplated payment of the annuity for more than two years after the date of the act and without a biennial appropriation, became void on the adoption of the present constitution. (See 20, 24, art. iv, and g 19, art. X.) These provisions are self-executing without ancillary legislation, and refer not merely to prospective appropriations, but to those existing at the adoption of the constitution.</p> <p>The fact that schedule 6 of the constitution keeps the entomologist in office, does not affect his right to draw salary under the act.</p>

<p>1. Bailment — Hire of horse* — Receipt in full of demands, what items embraced in — Payment of price of hire — Waiver of damages. — In action for the value of a horse hired by defendant and alleged to have been killed by his overdriving him, where it appeared that after the death of the horse, plaintiff presented to defendant an account containing among other items one for the hire of the horse, but no claim of damages for his loss, which account defendant paid, taking a receipt “in full of all demands;” held that snoh receipt would not bar a recovery. Evidence aliunde may be introduced showing that the damage for loss of the horse was not embraced in the settlement. And a charge by plaintiff for hire of the horse is no waiver of a claim for damages, nor is payment of such charge a settlement of that claim. A bailee may be chargeable both with the hire of the thing bailed, and its value if lost by his negligence.</p>

<p>1. Warranty. — On a statement filed with a justice that defendant, represented a mare to be sound when she was not sound, whereby plaintiff was damaged etc., held, that there was no charge of warranty, or fraud, or deceit, and that proof relating to such issues would be improper,</p> <p>2. Bale — Implied warranty. — In the sale of a horse there is no implied warranty of soundness.</p> <p>3. Warranty — Representation will not amount to, unless. — A representation of soundness or other quality is not necessarily a warranty. To have that effect it must be so intended and understood, and not be the expression of a mere matter of opinion.</p> <p>4. Warranty — What representation not. — The representation that she is “a good mare” is nota warranty of the soundness of the animal.</p>

<p>' 1. United States Courts, removal of causes to — Sower of State Courts after.— Where proper application is mude by defendant for the removal of a cause from the State to the United States Court, the former can proceed no further with tlie cause, and a non-suit cannot be taken therein by plaintiff.</p>

<p>1. Railroads — Damages—Stock pass — Ejection of wife. — In an action of damages against a railroad company, by A. and his wife, for ejecting the latter from a train, it appeared that A. made a special contract with defendant for the transportation of stock, which contract provided that none but the owner or persons in charge of the stock should be entitled to a return pass. A. applied to the agent of the road for a pass for his wife, slating that site was the owner of a part of the stock; whereas, site neither owned nor had charge of any of the stock. On this statement the agent issued the pass, saying at the time that he had no authority to issue one to a lady, and doubted if the conductor would recognize it. The pass was given “on account of stock account surrendered,” and bore endorsed on the back an acceptance by the wife, subject to its conditions and with the expressed stipulation, that the company should not be liable for any injury to her person or property. The wife, being in company with her husband, offered her pass, which the conductor refused to recognize, and, on her declining to pay the required fare, handed her, without, any violence or incivility, from the train ; whereupon the fare was paid and plaintiffs re-entered the train and proceeded upon their journey. Held, that the procurement of the pass from the agent, by misrepresentations, was a fraud upon the company which vitiated the contract;’that it was obviously the intention of A. to pay the fare, if necessary to enable bis wife to ride, and in view of this fact and the conduct, of the conductor, plaintiff liad no ground for punitive damages, such as might be given in case of a real expulsion.</p>

<p>X. Railroads — Dam,ages—Interest not allowable, when — Failure to ring bell, ave1)'menta of petition as to. — 1st. In suit against a railroad for damages for the killing of stock in consequence of the negligence of tliecompany, plaintiff’s interest on the amount of damages from the date of the accident is improperly allowed. 2d. In such suit defendant cannot beheld for negligence in failing to ring its bell as required by statute, unless such negligence is in some manner made to appear in the petition, either by stating the facts which under the statute create the liability, or by some appropriate reference to the statute itself.</p>

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

<p>1. Ejectment — Proof required where parties look to common source of title. — Iu ejectment, wliei-e plaintiff and defendant claim from a common source of tille, it is sufficient for plaintiff, in the first instance, to deduce his title therefrom, 'without going further. To that extent, the rule, that he must recover on the strength of his own title, is departed from.</p> <p>2. Practice, Supreme Court — Assessment of damages — Verdict—Judgment—Remittitur. — Where judgment is rendered for damages not assessed in the verdict, the assessment will not require a reversal if the amount thereof is remitted by respondent, but semble, that in case of affirmance, respondent should pay the costs of the appeal.</p>

<p>1. Judgment — Jurisdiction, want of, how shovm. — Jurisdiction must be shown by the whole record, and where it appears from it that the court had no jurisdiction, either over the person or subject matter, the judgment rendered is void. But from the simple judgment entry the conclusion cannot be drawn that the court had no jurisdiction.</p> <p>2. Jurisdiction over person mid subject mailer. — Jurisdiction over the subject matter cannot be conferred by consent, but jurisdiction over the person may.</p> <p>8. Dower — Suit io enforce, where brought. — Suit to enforce claim for dower can be brought only in the county where the land is situated.</p> <p>4-,t Judgment against estate of deceased person. — A judgment cannot be enforced by execution against the estate of a deceased person, but must be classified, like other demands, against the estate.</p>

<p>1. Damages — Action by widow under §3 of the Damage Act for hilling of husband — Petition—Reference to statute— Section three of the Damage Act (Wagn. Stat. 520) merely causes a right of action to survive where the deceased, had he lived, might have had his action for injuries at common law. And in suit by the widow, for the death of her husband, where the petition states facts which bring the ease within the provisions, of that act, no reference to the act is necessary.</p> <p>2. Damages — Self defense, right of, when cannot be invoiced. — The right of self defense, which justifies homicide, does not imply the right of attack. And the plea cannot avail in any case where the difficulty was induced by the act of the accused, in order to afford him an opportunity to wreak his malice.</p> <p>3. Evidence-Fahms in uno-hstruction, etc. — A jury may disregard the testimony of any witness whom they believe to have wilfully sworn falsely concerning any material fact in issue. But an instruction to that effect should not he given except where some witness has given false testimony; and on that point the trial court is best qualified to pass.</p> <p>4. Evidence of marriage, what sufficient. — The testimony of a widow that the deceased was her husband, and that they had lived'together seventeen years, was held amply sufficient to establish the fact of their marriage.</p> <p>5. Civil action for homicide — Danger of bodily harm — Opinion of witness. — In an action of damages for homicide, the question asked of defendant, whether he apprehended that deceased would inflict on him any great bodily harm, was held properly excluded. His opinion on that subject was of no importance and was not legitimate evidence. (Wagn. Stat. 446, ¡¡ 4.)</p>

<p>1. Corporations — Service of process on — Absence of chief officer, recital as to.— The return of service of process on a corporation under the statute (Wagn. Scat. 294, || 26, 21), made by leaving a copy at a business office of the company, with the person having charge thereof, in order to be valid must recite that the chief officer is absent from, or cannot be found in, the county, and not merely and generally that he is absent. The proper inference from the latter recital is that he was absent from his office.</p>

<p>1. War power — Payment of rent to Provost Marshal in late war — Military seizure of private property — Powers of Congress — Act of March 3rd, 1863 — U. S. Constitution, 5th amendment — Limitations, statute of. — Where defendants, being sued on the covenants of their lease, pleaded that they had paid the rent reserved to the provost marshal of the district of Missouri, under and by virtue of the order of the military commander of that district; that the payment was omitted to be made to the plaintiff, and was in fact made for and on account of the plaintiff for the public use, as a necessary means of carrying on the military operations of the government of the United States in the State of Missouri, against the insurgents in said State, who were then seeking to overthrow said government, in said State; that said payment was made by virtue and under color of authority derived from and exercised under the President of the United States, and the act of Congress of March 3rd, 1S63, and the two years limitation therein contained was pleaded in bar of plaintiffs action. Held, that the plea is insufficient on demurrer — and this, for divers reasons;</p> <p>1st, It does not set forth the order on which defendant’s rely, and thus tendera traversible issue.</p> <p>2nd, The plea sets forth no impending necessity for the acts pleaded; which urgent necessity, admitting of no delay, is all that, even in time of flagrant war, will justify military seizure of private property.</p> <p>3rd, Even if there had been such urgent necessity it could only have existed for just so much money, regardless of the ownership, and calling the money plaintiff's did not make it so, nor change that ownership.</p> <p>4th, However the law may be in respect of the caption, during war, of personal property or of debts due the enemy, Congress does not possess the power to confiscate debts due from one citizen to another, and the act in question, in so far as concerns the case at bar, is clearly uneonstitütional, in that it deprives the citizen of his property by giving sanction to a mere military order issued for that purpose; that this could not be done any more than Congress could prospectively authorize such seizure. Because under the 5 th amendment of the Constitution of the TT. S > Congress is inhibited from depriving the citizen of “life, liberty or property without due process of law,” and from taking .“private property for public use without just compensation.”</p> <p>6th, That the phrase “due process of law,” or its legal equivalent “law of the land” does not mean a law enacted for thepurpose of working the wrong; but the general law — law in its regular course of administration through the courts of justice; a law which hears before it condemns; proceeds upon inquiry and renders judgment only after trial. The act under consideration, possesses no attributes of this description, and is, for that reason, violative of the constitution.</p> <p>6th, The act being thus unconstitutional, the statutory bar which contains, is unworthy consideration. Besides, the right of the plaintiff, under the terms of the lease, accrued in the year 1862. Our statute of limitations then gave, and still gives, ten years in which to bring suit for breach 'of the covenants in a lease, and Congress cannot, by a subsequently enacted law, deprive the plaintiff of the right which had thus accrued to him under our own statutes, nor overturn those statutes, nor interfere with the jurisdiction of our State courts — and the powers of Congress were not enlarged in consequence of the civil war to which the act refers.</p> <p>7th, Granting that the act of Congress is in all respects valid, it can have no applicability to this case, since it appears that the defendants paid their own money, and not that of the plaintiff, to the provost marshal.</p>

<p> Appeal from ¿he Special Law and Equity Court of Jade-son County. </p> <p>Sedg. Dam. [4th ed.] 592 ; State to use of Liecher vs. Miller, 48 Mo. 251; Wagn. Stat. 844, § 19, et seq.</p>

<p>1. Execution sale, motion to set aside on grou/nd of fraud — Review of evidence— ii Equity side” of court — Practice—Abolition of old distinction in forms; but retention of mailer of substance in pleadings. — On motion to set aside an execution sale, on the ground of fraud ; Held, 1st, that this court would not review the evidence, this being a law case, notwithstanding the allegation of fraud. 2d, That the only way to reach the “ equity side ” of the court, is not by motóos, but by appropriate procedure; the distinctive characteristic of the two systems, Law and Equity, still remaining as well pronounced as before. Semble, that mere inadequacy of price, insufficient ground for selling aside sale.</p>

<p>1. Murder, indictment for — Shackles on prisoner — Power of court in criminal trials — Rights of prisoner — Previous assault by. — As a general rule, a prisoner is entitled, as a matter of right, to be freed from his shackles when brought into the court room for trial, but this rule is not of universal application. The court has the power to take all necessary steps to have the trial a quiet and safe one, even to binding the prisoner with fetters. But there must be some good and sufficient reasons for pursuing such extraordinary course, else the judgment of conviction will be reversed; and the fitct that the prisoner had made, in the court room, an assault upon a person, will not justify his being shackled, three months thereafter, when put upon his trial.</p> <p>2. Sanity of prisoner — Letters of., when admissible in evidence — Secondary evidence. — When the sanity of the prisoner is involved, a letter written by him, prior to the commission of the alleged offense, is admissible in evidence to throw light on the condition of his intellect at the time of the act charged. And on its being satisfactorily established that such letter was destroyed, secondary evidence of its contents ought to be admitted.</p> <p>3. Instruction eiTOneous respecting murder in-first degree, but harmless. — Where theJower court gave, for the State, an erroneous instruction respecting the constituent elements of murder in the first degree, as ruled in State vs. Foster (61 Mo. 548) and State vs. Lane (64 Mo. 319), but where the evidence showed that, if defendant was sane, the killing was done with malice prepense and aforethought, and when the instructions for the defendant were very favorable, held, the error was not reversible error.</p> <p>4. Concluding arguments by circuit attorney — Improper remarks by circuit attorney — Distinction between civil cases and those involving life and liberty. — The trial court should not permit the circuit attorney to indulge in a line of remark calculated to induce the jury to (do that very common thing) shirk responsibility, by throwing it on the higher courts. (Lloyd v. H. & St. Jo. R. R. Co. (53 Mo. 514), distinguished from the case at bar.</p>

<p>1. Action on official bond — Variance between allegations and proof — Title of officer — Legislative acts, construction of. — Where the petition in suit on an official bond charged that the principal was elected by the voters of Kaw Township, gave bond as “ Marshal of the Kansas City Court of Common Pleas," the bond was given by defendants for the faithful performance of the principal of his duties as “Marshal of Kaw Township;" that this was the only bond ever given by thi3 officer, who thereupon proceeded to discharge the duties of marshal of that court in the discharge of which the breach occurred. But it also appeared that the legislature had, prior to the election in question, by divers “public acts,” used the terms “ Marshal of the Kansas City Court of Common Pleas ” and “ Marshal of Kaw Township," interchangeably, in designating the officer who was to execute the process of that court, and that the legislature also, prior to said election, had provided “ that all official papers, acts and duties of the Marshal of the Kansas City Court of Common Pleas which * * * shall be executed under the name and style of “Marshal of Kaw Township, * * * shall be legal * * * as if done under the name of the “Marshal of the Kansas City Court of Common Pleas." Held, that there was no variance between the allegata and ihoprobala, since either method of designation would be equally effective in designating the ministerial officer of that courti</p> <p>2. Instrument, construction of — Intention of parties — Attendant circumstances, — , That the intention of the parties in signing an instrument is, if possible, to be adopted; which intention is to be gathered, if necessary, from the light of surrounding circumstances, and that construction is to prevail, which will make the instrument efficacious, instead of the opposite. ’</p>

<p>1. Certificate of deposit, interest on, after due — Judgment of affirmance with damages. — Where a certificate of deposit by iis terms matures six months after date, and is to bear six per cent, interest from date, it will continue to bear the same rate of interest until paid. And where a bank brings up a plain case like this, the judgment will be affirmed with ten per cent, damages.</p>

<p>1. MU of exceptions — Record proper. — Where the bill is stricken out on motion, nothing remains for examination but the record proper, and if no error be discovered therein, the judgment will be affirmed.</p> <p>2. Petition, two counts in, finding on but one — IV'o motion in arrest, because no bill of exceptions — Attention of lower court not called to error. — Where the petition contained two independent counts, but the finding for tiie defendant was only on the first, held, thnt this was not a general finding, and even if it were, the judgment should not be reversed, since there being no bill of exceptions, this court cannot know whether the attention of the lower court was called to the matter by appropriate motion.</p>