Volume 65 — Missouri Reports

<p>1. Crime: gaming device: statute construed. The statute (Wag. Stat. 503, 2 2 24—27) authorizing the seizure and destruction upon summary process of “any prohibited gaming table or gaming device kept or used within the County ” does not warrant the destruction of such property, unless it is kept or used for gaming purposes.</p> <p>2. Police Power: summary process : jurisdiction must appear. A Judge’s warrant for the destruction of property issued under a statute, which permits condemnation without affording the owner an opportunity for a hearing or trial, must show upon its face the existence of all the facts requisite to authorize its issue.</p> <p>3. Void Warrant:.protection of officer. Unless it appears on the face of such warrant that the property condemned was kept or used for gaming purposes, the warrant will be no protection to the officer' executing it.</p>

<p>Appeal from Jackson Circuit Court.—Samuel L. Sawyer, Judge.</p>

—J. II. Snow, Judge. 1. The question is one of intention. It is not alone sufficient that one of the parties intended to charge or that the other intended to pay; neither intent is sufficient, both are necessary and must have co-existed; there must have been a contact of intent.

On Motion for Rehearing. The case will be found reported and tbe facts stated in 64 Mo. 480.' I. The prevailing rule in this State is that the question of negligence is peculiarly for the jury, and when- there is any evidence, however slight, to sustain the verdict, this court cannot under the precedents interfere. There was such evidence here. Kennedy v. N. Mo.

<p>Suit to. quiet title: Possession: Claim oe title: Pleadins. In the statutory proceeding to quiet title to land, when the question of possession is raised by the pleadings, the defendant is entitled to have it tried, although the answer contains no affirmative claim of title in him, if it does not deny the allegation of the petition that he makes such claim.</p>

—W. F. Geiger, Judge. cited McKay*p>. The State, 12 Mo. 492; Wheeler v. The State, 14 Kelly’s Crim. Brae. § 49; 1 Greenl. JSo. §2Í8, note. Where a witness to a murder acts in such a manner as to unmistakably evince a design to encourage, incite, approve of, or in some-manner afford aid or comfort or consent to the act, he is-, as guilty as the principal.

<p>On motion for rehearing, the Court re-affirms the decision reported in 64 Mo. 430.</p>

<p>Appeal from Jasper Circuit Court.—Joseph Cravens, Judge.</p>

<p>Appeal from Franklin Circuit Court.—E. Q. Gale, Judge.</p>

—J. D. Parkinson, Judge. 1. The plaintiff might have ignored the statutory covenants, and declared upon the special covenants contained in the latter clauses of the deed, and had he done so, he would perhaps have been entitled to recover full damages without evidence of eviction or the purchase of a paramount title; but he chose to declare upon the compound covenants, alleging that the defendants were not seized o.f an indefeasible estate in fee simple.

<p>Appeal from Clinton Circuit Court.—Hon. Philander Lucas, Judge.</p>

<p>Appeal from St. Louis Circuit Court.—IIon. Geo. A. Madill, ■ Judge.</p>

—Hon. J. W. Henry. J uclge. I. The act of 1868 is unconstitutional. Under its provisions, a special school board, with jurisdiction over a fractional part of a fonner district, could incur a large indebtedness, and then, by pushing out their boundaries by a simple resolution, subject the property included within the extension to the payment of liabilities, which the owners had no part in creating, and forcing them into another and different jurisdiction.

—Hon. Samuel L. Sawyer, Judge. 1. The plaintiff was not entitled to judgment, for the reason that there was an outstanding deed of trust, and at the time of trial the debt was due. Myer v. Campbell, 12 Mo. 603 ; McCormick v. Fitzmorris, 39 Mo. 24; Johnson v. Houston, 47 Mo., 227; Harrington v. Fartner, 58 Mo. 478. 2. The sheriff’s deed to the Farmers’ Bank of Missouri and J. W. Reid should have been declared void by the Court.

—Hon. E. T.Wrigiit, Judge. The transcript of the record and proceedings in the Common Pleas Court was not filed in the circuit clerk’s office till the 26th day of March. That court did not in any manner become possessed of the case until that day. Wag. Stat. 120 § 8. Before that, the act of March 17th had become a law (Sess. Acts 1873 pp. 145 to 148); it repealed the former act and authorized trial de novo in the Circuit Court.

<p>Error to Saline Circuit Court.—Hon. Vm. T. Wood, Judge.</p>

Louis Circuit Court.—Hon. James K. Knight, Judge. This suit was brought in the year 1866. It is based on five promissory notes of defendant. The case was here before, and is reported in 47 Mo. 323, when a judgment for defendant was reversed. The only issue presented by the pleadings is, whether the notes were considered and included in an allowance made by the county court in favor of the defendant, in the year 1864, for $3,607.19 ; the defendant holding the affirmative.

Appealfrom St. Louis Circuit Court.-—-PIon. James K. Knight, Judge. As the pleader has not averred that the land was conveyed to Mrs. Ivory with covenant of warranty, the presumption must be, that it was conveyed without such covenant. Therefore, the existence of incumbrances, or a defect in title, constitutes no failure of consideration.

<p>1. State Treasury : appropriation : warrant : board op equalization. Members of the State Board of Equalization are not entitled to warrants on the treasury for services performed, when there are no funds appropriated to pay for such services.</p> <p>2. Mandamus. In mandamus no relief will be granted but that specifically prayed by the petitioner.</p>

—Hon. G-. II. Burioiardt, Judge. 1. The note, application and jiolicy form the contract between' the parties, and being drawn in conformity to the company’s charter, constitute a legal and binding contract. Opinion of Drummond, J., in Payson v. Withers, United States Circuit Court, District of Minnesota, June Term, 1873; American Ins. Co. v. Gallaher, 50 Ind. 209; Williams v. Albany City Ins. Co., 19 Mich. 451.

<p>Appeal from Lafayette Criminal Court. — Hon. ¥m. H. H. IIill, Judge.</p>

— Hon. F. P. Wright, Judge. 1. An agent to sell is not authorized to barter or dispose of his principal’s goods or property in any unusual manner. Benny v. Bhodes, 18 Mo. 147. 2. The board furnished to Moore, the agent, cannot be treated as a payment. He could receive nothing but money in payment, unless otherwise expressly directed, or that power might be deduced from the habits of the parties or the customs of the trade.

<p>Appeal from Carroll Circuit Court.—Hon. E. J. Broaddus, Judge.</p> <p>1. The title to the land in controversy vested in the State in fee at least as early as January 24, 1854. Harm. $• St. Joe. JR. JR. Co. v. Smith, 41 Mo. 310; S. C. 9 Wall. 95 ; Clarkson v. Buchanan, 53 Mo. 563 ; Campbell v. Wortman, 58-Mo. 258.</p> <p>2. Plaintiff relies on the Act of Congress of March 2,1855, entitled “ an act for the relief of purchasers and locators of swamp and overflowed lands,” and on the Act of March 3,1857, entitled, “ an act to confirm to the several states the swamp and overflowed lands selected under the act of September 28, 1850, and the act of March 2, 1849.” These acts were not intended to apply to and do not affect lands which have been ascertained, approved, and set apart as swamp lands, belonging to the states, and which had been according to law certified to the Governor as such, and patents ordered to issue. Congress would, clearly, have no power to pass such a law ; but we hold that this was not the intention of either act. It is a matter of history that there were large quantities of lands selected as swamp lands and reported to the departments at Washington, which were suspended, and up to the date of these acts had not been approved by the Secretary of the Interior. Many of them had been pre-empted and the preemptors had been allowed to enter them on claim and proof that they were not swamp lands, and great numbers of these cases were pending before the department at Washington. There were also many thousand acres reported to the department as swamp, which had never been approved or acted on, and the character of the lands remained unsettled and unascertained. We insist that these acts were intended and could only apply to these cases; that is, that lands which had been located and pre-empted or entered by individuals, and which, were claimed as swamp lands, should be patented to such individuals, with some provisoes applicable to cases where the counties and states had already sold and conveyed prior to the entry. This is explained by the fact that in many cases the county and State had sold lands, that had been selected by the agents of the State or county, before the lists had been approved by the proper departments at Washington or certified to the Governor of the State. And if on investigation by the proper authorities they should turn out not to -be swamp land, the Secretary of the Interior still had power to reject or disapprove such selection. To such lands these acts might well apply; and this- is the only construction that can be given to them consistenly with the rights of the States under the original grants. It is farther provided by the same acts that all other lands selected and claimed as swamp land by the several states should be confirmed to the states, and patents required to be issued therefor. These acts construed in this way may be regarded as a settlement of the conflicting claims which had arisen between the Federal Goverment and those claiming under it by entry of such lands and the State authorities. It is the general intention and scope of these acts to settle the controversy in regard to lands claimed as swamp land. It was a fair settlement, when accepted and acted upon by the states. A large quantity of lands were. thereby confirmed to the states, which were in an unsettled condition, claimed by the states and counties,. and the title of purchasers from the general government who had entered portions of them was confirmed and settled. There was no necessity for any act of Congress confirming the title of the states to lands that had been selected and approved, and patents ordered to issue. The original grant required these patents to issue. The act of March 3,1857, purports to be an act to confirm to the several states the swamp and overflowed lands which had been selected.</p> <p>No doubt if the State had reconveyed her title to the general government on the request of the Commissioner of. the General Land Office with the consent of the counties, and before they had been sold to individuals, these acts would have operated to confix-m the title of the purchasers from the general government.</p> <p>The plaintiff’s patent is a nullity. Carman v. Johnson, 20 Mo. 108 ; Allison v. Hunter, 9 Mo. 741; Archer v. Bacon, 12 Mo. 149; Jackson v. Lawton, 10 John. 22 ; Jackson v. Hart, 12 John. 76.</p> <p>1. In actions of ejectment the junior patent will prevail over the elder whenever the latter for any reason, is void; or whenever it was fox-bidden by any law, or was issued contrary to ox- in violation of law; ox- whenever the laxxd was withdrawn from sale, or otherwise appropriated by Congressional grant or coxifirmation. Stoddard v. Chamtren, 2 Howard 284; Bagnell v. Broderick, 13 Petex-s 436 ; Sarpy v. Bapin, 7 Mo. 503; Wright v. Rutgen, 14 Mo. 585.</p> <p>2. Plaintiff’s title is expressly protected and confirmed by the acts of Congress of March 2, 1855, and March 3, 1857. See 10 H. S. Stat. at lax-ge 634; 11 lb. 251; R. R. Co. v. Fremont County, 9 "Wall. 89 ; Thompson v. Frince, 67 Ills. 283 ; R. R. Co. Smith, 9 Wall. 95.</p> <p>3. The State of Missouri is estopped from calling in question the validity or constitutionality of said acts of Congress by its virtual ratification and eonfix-mation, and by its acceptance of the indemnity provided for said State by said acts of Congress for the loss .of said lands. See Sess. Acts Mo. 1868 p. 72 § 25. It cannot be allowed to ratify in part, or accept the indemnity, for one particular tract and refuse it as to another. Jarrett v. Morton, 44 Mo. 275. The validity of these acts, if ratified at all, are ratified as to all the swamp lands thus entered by said purchasers. Even if said acts were invalid, by reason of the title having passed from the government by the original swamp land grant, yet if the State of Missouri by legislative enactment validated said acts and accepted the indemnity offered by Congress, then the State thereafter was estopped from calling in question the validity of such acts, or of issuing patents therefor, and in either event, its patents so issued would be void and pass no title. The patent issued by the State on the 12th of February, 1869, subsequent to such ratification, is illegal, null and void.</p> <p>4. The donation of these lands by the State to the counties did not make them the absolute property of the counties. The counties only held them in trust for benefit of school fund, and for the purposes of these lands the counties are merely political subdivisions of the State, and held them as such, and the State by its said donations had not parted with its control of same. State ex rel Robins v. New Madrid County, 51 Mo. 82.</p>

Mirror to Pike Circuit Court—-IIon. A. H. Buckner, Judge.' Equity will not require a purchaser, holding title bond for good and sufficient conveyance, to accept and pay for a defective or doubtful title. Sackett v. Williamson, 31 Mo. 54; Wellmans Adm’r v. Dismukes, 42 Mo. 101; Dietrich v. Franz, 47 Mo. 85.

—- IIon. D. Q. Gale, Judge. These special statutory instruments are in no sense direct unqualified promises to pay. That the manner in which they are to be drawn (see W. S. of 1872, p. 415 § 31), the fund out of which, and the order in which they are to be paid, are all expressly and specially regulated by statute, see W. S. 1872, page 410 § 8, page 411 §§ 9 and 10.

I. The necessary elements of the crime denounced by section 9, page 468 Wag.

<p>1. Taxation: power op legislature to grant exemption prom. In the absence of constitutional restriction the legislature has power to grant exemption from taxation; hut such exemption must be clear and unambiguous, or it will not he allowed.</p> <p>2. Corporation: taxation: exemption op stock exempts corporate property prom. A railroad company whose stock is by law exempt from taxation, can not he taxed on property owned and used by it in the operation of its railway and necessary for that purpose. The stock is but the representative of the property.</p> <p>3. Railroad Charter constitutes a Contract. A charter granted by the legislature and accepted by a railroad corporation, constitutes a contract between the State and the corporation, the obligation of which can not be impaired by a State constitution subsequently adopted.</p> <p>4. Taxation: legislative exemption prom : effect op subsequent CONSTITUTIONAL PROHIBITION AGAINST EXEMPTIONS. The charter of a railroad company exempting the stock of the company from taxation, is not repealed by a constitutional provision adopted after acceptance o^ the charter, declaring that “ no property shall be exempt from taxation, except,” &c.</p> <p>5. See. 16 Art. 11 Constitution of 1865 construed. Sec. 16 Art. 11 of the constitution of 1865 was not designed to withdraw existing ■ exemptions from taxation. It was intended to operate prospectively only.</p> <p>6. Scope of general corporation and railroad laws of 1855. The general purpose of the general corporation and railroad laws of 1855 (R. S. 1855 ch. 34 p. 369 and ch. 39 p. 404) and of the general corporation law of 1845 was to confer certain powers and privileges and impose certain duties and liabilities in the absence of any stipulations or provisions inconsistent with those, contained in special charters subsequently granted. Where such inconsistencies occur in subsequent legislation, it must he understood that previous restrictions were intended to he removed.</p> <p>7. Taxation : exemption from : power of legislature to withdraw, construction of statute. Sec. 7 of the corporation law (R. S. 1855 p. 371) declares that “the charter of every corporation. that shall hereafter he granted by the legislature shall he subject to alteration, suspension and repeal, in the discretion of the legislature.” Sec. 56 of the railroad law (R. S. 1855 p. 438) declares that “ the legislature may at any time alter or amend this act; but such alteration or amendment, shall not impair the rights of companies previously organized.” Sec. 57 (lb.) declares that in future “ all railroad companies shall have all the privileges contained in this act.” In 1857 the legislature chartered the Alexandria & Bloomfield railroad company bjr a special act, which exempted the stock of the company from taxation for a term of years. Held, that the right of amendment reserved to the legislature was that contained in section 56 only, and that the exemption could not be withdrawn after the company had organized.</p>

JError to Gass Circuit Court.—ITon. F. P. Wright, Judge. I. In order to exclude dower in real estate conveyed to copartners, by their respective names, it must have been .acquired with ' partnership funds, strictly as partnership property, and must have been held exclusively for partnership uses ; or, it must have been acquired by the partners under an agreement, or with an express understanding that it should be held and sold for the benefit of the partnership and as…

—ITon. Gilchrist Porter, Judge. 1. It is misconduct on the part of a jury, in arriving at a verdict in a case of felony, to agree among themselves-that each juror shall secretly ballot a number, representing the number of years that he thinks the accused should be confined in the penitentiary, and that the twelve numbers thus secretly balloted shall be added together, and the sum thereof shall be divided by twelve, and that the whole numbers in the quotient thus obtained…

—Hon. Geo. W. Miller, Judge. 1. Mrs. Clark having failed to remove the incumbrance as stipulated, equity will enforce a specific performance of the contract. 1 Sto. Eq., § 30; 2 lb. Tit., Specific Performance. 2. Pratt has a vendor’s lien on the mill property to secure the payment of the purchase money with interest. Pratt v. Clark, 57 Mo. 189. 3.

<p>Appeal from Jackson Circuit Court.—Hon. Sam’l L. Sawyer, Judge.</p>

A'p'pcal from Crawford Circuit Court.—Hon. V. B. Hill, Judge. The defendant should have heen permitted to prove that the ox killed was trespassing in the field of Conger at the time he was driven or ran upon the track of defendant’s road. See 1st Redfield on Railways, Sec. 3, page 486. Ells v. Facific R. R. Co., 55 Mo., and authorities cited.

1. Venditioni exponas was the proper writ to preserve the lien created by the levy of i'aefi.fa. Porter v. Mariner, 50 Mo. 364; Lackey v. Lubke, 36 Mo. 115; Ilerm. on Ex. 26, 331. 2. It is not necessary that the venditioni exponas be issued at the return term of the fi. fa. Smith v. Spencer, 3 Ired. 256 ; Taylor v. Loe, 13 Ilow. 287. 3. The vendi. was kept alive until a term of the Jackson Circuit Court was held by the act of March 23, 1863, and especially the 3rd section.

Gilchrist Porter, Judge. I. The defendant ought not to have been allowed to prove that he had bought plaintiff's title at sheriff’s sale. That defense ought to have been specially pleaded. Northrwp v. Miss. Valley Ins. Co., 47 Mo. 443; Kishaddon v. Jones, [last term, not reported,] 2nd Wag. Stat. 1015, 812.

<p>Appeal from Dade Circuit Court.—ITon. John D. Parkinson, Judge.</p> <p>cited Kraft v. Hurtz, 11 Mo. 109; Webb v. Tweedie, 80 lb. 488; Clark v. Smith, 39 lb. 498; Ilausberger v. P. B. B. Co., 43 lb. 196; Beattie v. Weakley, 60 lb. 72; Gist v. Boring, 60 lb. 487.</p> <p>cited Moak’s Vansantvoord’s PI. 832, 847; Bail Boad Co. v. Lindsay, 4 "Wall. 660; Turner v. Moore, 61 Mo. 601; Nashv. Towne, 5 Wall. 689 ; Zeigler v. Wells, 28 Cal. 263 ; Union India Bubber Co. v. Tomlinson, 1 Smith’s Com. PI. R. 383; Birch v: Benton, 26 Mo. 153 ; Hoyt v. Beed, 16 Mo. 294; Henshaw v. Liberty Ins. Co., 9 Mo. 333 ; Beardslee v. Steinmesch, 38 Mo. 168; Beach v. Curie, 15 Mo. 105 ; Erfort v. Consalui, 47 Mo. 208; Beeves v. Larkin, 19 Mo. 192; Bell v. Scott, 3 Mo. 212 ; Dowd v. Winters, 20 Mo. 361; Clements v. Maloney, 55 Mo. 360; Wells v. Sharp, 57 Mo. 56; Ely v. Porter, 58 Mo. 158 ; McClurg v. Howard, 45 Mo. 365 ; Block v. Dorman, 51 Mo. 31; Whitaker v. Bice, 9 Minn. 13 ; Smith v. Anthony, 5 Mo. 504; Ashley v. Glasgow, 7 Mo. 320 ; Hill v. St. Louis, 20 Mo. 584; Brewer v. Dinwiddle, 25 Mo. 351 ; Harbor v. Pacific B. B. Co., 32 Mo. 423; Downing v. Still, Adm’r., 43 Mo. 309.</p>

I. Plaintiffs paid the money after the notes were due without compulsion, and upon full knowledge of the alleged -breach of waranty, when the consideration for their promise had wholly failed. This was a voluntary payment. Can a party recover back money paid under such circumstances ? Volenti non fit injuria.

Avpeal from Lafayette County Circuit Court.—Hon. Wm. T. Wood, Judge. Tingley v. Cowgill, 48 Mo. 291; Fugate v. Pierce, 49 Mo. 441; Moore v. Moore, '51 Mo. 118. Harmony in tlie domestic relation of marriage does not require that tbe husband be prevented from testifying in favor of Ms wife.

The plaintiffs claim that by a literal interpretation of the phraseology, “ but in no case shall any stockholder be individually liable in any amount over or above the amount of the stock owned by him,” an'individual liability is imposed on defendant, without reference to his having paid up his stock, of an amount equal to the amount of his stock; that this amendment abolished the double liability only as to any unpaid balance on the stock.

—-Hon. J. B. Woodside, Judge. The indictment is unquestionably good. The time and place of the assault is specifically set out at the beginning of the indictment, as having been committed at the county of Douglas and State of Missouri on the 16th day of May, 1874, and the cutting and killing are sufficiently set out in the use of the words “ then and there,” referring, as they necessarily do, to the time and place of the assault.

I. The indictment is wholly insufficient, contradictory, repugnant and indefinite. 1st. It does not sufficiently charge when the act of… Held: were then and there each of them deadly weapons and which said pistols they the said John Steeley and William Steeley did then and there unlawfully, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, shoot off and discharge at, upon and against the body of the said Harvey Sitton, and did…

<p>Frror to St. Francois Circuit Court.—Hon. Louis E. Dinning, Judge.</p>

<p>1. Bill of Exceptions: practice. Hobart v. Long, Admr. {ante id. 223) affirmed.</p> <p>2. Failure to file exhibits : practice. Failure to file the note sued on can not be assigned for error in the Supreme Court, unless the objection was made in the court below.</p>

—Hon. T. M. Rice, Judge. This was an action to recover damages for personal injuries sustained by plaintiff while engaged in the service of defendant as brakeman.

Jno. L. Morrison, Judge. The giving of the second instruction was an entire departure from the case made by the petition. The petition was founded upon the statute requiring a fence, and, therefore, any other character of proof or instructions were illegal. 60 Mo. 212, Cary v. St. L., K. C. N. R: R. Co. ; 31 Mo. 399, Quick o. Han. $ St. Jo. R. R.; 31 Mo. 407, Miles v. Han. cf St. Jo.

—Hon. Jonas J. Clark; Judge. 1. The petition does not allege that the respondent was evicted by title paramount, or that he surrendered or offered to surrender possession of the premises to appellant. Without one or the other of these facts existed he has no right to recover the purchase money. • Tompkins v. Hyatt, 28 N. Y. 1; Moore v. Smedburgh, 8 Paige 600; Bruce v. Tilson, 25 N. Y. 198.

<p>Appeal from Livingston Circuit Court.—Hon. Samuel A. Richardson, Judge.</p>

<p>Ejectment: railroad grant: swamp land grant: evidence op title. As against a plaintiff claiming title to land under the railroad grant of Congress to the State of Missouri (10 U. S. Stats. 8) it is a sufficient defense in ejectment, if it is shown that the land was swamp and overflowed land within the meaning of the act of Congress granting such lands to the several States (IT. S. E. S. p. 456 2? 2479-2481), whether the proper steps have been taken to perfect the defendant’s title or not. Swamp lands are excepted from the operation of the railroad grant.</p>

-—-ITon. W. E. Geiger, Judge. as to the admissibility of the evidence to establish the general good character of respondent for truth and veracity, cited among others, Goldsmith v. Bicard, 27 Ala. 142; Lander v. Reaver, 32 Vt. 114. on the same point cited among others, BLuan v. Berry, 8 Caines 120; Townsend v. Graves, 3, Paige 455.

—Hon. E. P. Wright, Judge. Defendant’s motion to dismiss the suit referred to in the opinion of the court, assigned the following grounds, viz : 1st. That plaintiff’s charter expired by limitation on… Held: the first of which was in 1869. By the charter'the directors were to hold only during the “ ensuing year” after their election. They had therefore no power to hold over'. St. Louis v. Russell, 9 Mo. 507; Blair v. Perpetual Ins.

jjjrror t0 Grawford Circuit Court.—Hon. Elijah ' Perry, Judge. An administrator’s deed is made by tbe statute prima facie evidence of the facts therein stated. ~W. S., page 98, See. 37; Moore v. Wingate, 53 Mo. 398. Then by this deed we ascertain that all the proceedings were regular, and were approved by the court, and that Scott acted as administrator de facto, although he might not be such de jure, and that the probate court recognized him in that capacity. .

<p>Appeal from Ozark Circuit Court.—Hon. J. B. Woodside, Judge.</p> <p>The court erred in excluding tbe deed from tbe sheriff to Sherwood and Julian. There was no bouse at tbe county seat when the judgment was rendered. The county court had ordered the sheriff to select a suitable place for holding the courts, until buildings could be erected at the county seat. The sheriff swore that, in obedience to this order, he selected the place, and reported the same to the county court, and the judgment was rendered at that pla,ce. The record also shows that the court, at which the judgment was rendered, had been regularly adjourned from the county seat to the place where it was rendered. The court having passed on the matters in issue, when the judgment was rendered, the same cannot be attacked collaterally. Kane v.. McCown, 55 Mo. 181; Bouldin v. Ewart, 63 Mo. 330. The county court having ordered the sheriff'to provide a place for holding court, it will be presumed that that court properly exercised the authority conferred by law, see Gen. Stat. 224, § 36. None but the most cogent reasons should induce this court to depart from that conservative principle, which the most eminent jurists have eyer observed, when the jurisdiction of tribunals possessed of every appearance of authority and clothed with every semblance and insignia of power, is collaterally called in question. State v. Douglass, 50 Mo. 593. When a want of jurisdiction actually exists in a domestic tribunal of general jurisdiction, and is not apparent upon the z’eeord, the appropriate mode of ascertaining it is by writ of en-or, and, until it is so ascertained, the judgment imports absolute verity. Granger v. Clark, 22 Me. 128. See also, Gal-inn v. Fage, 18 Wall. 350; Hahn v. Kelly, 34 Cal. 392; Huxley v. Harrold, 62 Mo. 516; Hunter v. Ferguson, 13 Nans. 462.</p> <p>The judgment recited in the deed offered in evidence by appellants, was rendered at a place unknown to the law, and different from that fixed by law, viz: “ Both the circuit and county courts in the several counties izz this State shall be held at the county seat of each respective county.” Laws 1866, p. 83, § 1.</p>

Louis Court of Appeals. 1. Section 24 of Art. 6 of the 'constitution of 1865, and the acts passed to carry it into effect, (Wag. Stat. 631, § 29 et seq., Sess.

Ap>peal from Jackson Circuit Court. — Hon. Samuel L. Sawyer, Judge. I. The theory that defendant is precluded by his execution of the bond to plaintiff’ from denying the corporate existence of plaintiff is unsupported by the authorities. What is said in St. Louis v. Shields, 62 Mo. 247, on that subject, is a mere dictum. The authorities sustain the following propositions : 1.

Hon. T. M. Rice, Judge. Allen was improperly made a party, because, at tbe time of bis application, final judgment bad been rendered, Wag. Stat., p. 1034, § 3; and because be claimed that the title to tbe real estate was absolutely and exclusively vested in him, and, if so, bis interests could not have been prejudiced by the partition suit.

<p>Material Man: lien or. Under the mechanics’ lien law, a material man is not entitled to a lien for lumber furnished to a sub-contractor to be used in the construction of a building, unless it was actually so used.</p>

<p>1. Specific Performance: statute of frauds ; evidence. When acts of part performance and casual statements of a deceased person are the sole proof relied on to establish a contract with the deceased for the conveyance of land, in order to take the case out of the statute of frauds, and authorize a court to decree specific performance against the heirs, the acts and statements should be such as would be inconsistent with any other contract than the one alleged. The court should be well satisfied of the existence and character of the agreement, and will always look to the substantial justice of the case.</p> <p>2. Case Adjudged. Plaintiffs, the daughter and son-in-law, sued the other heirs of Mrs. R, deceased, upon the following contract alleged to have been entered into between her and plaintiffs: “That in consideration that plaintiffs would abandon their own home and move with their family into the house of said Mrs. R, and take charge of and support and maintain her during her life, and provide her a home, and take care of and properly keep such articles of personal property, horses, stock, &e., as she might desire, she would sell, transfer and convey saidland by a good and sufficient deed in fee” to her said daughter, the plaintiff. The facts, as shown by the evidence were, that about seven years before the death of Mrs. R., plaintiffs, at her request, left their own farm and went to live with her on her farm which adjoined theirs, and was more fertile and had a better house on it. They continued to live together amicably till her death. During the whole time she paid the taxes, and supplied herself with dry goods and some groceries. She also made three successive wills, each of which contained dispositions ■ of the farm. Plaintiff's were present when they were made, but raised no objections, asserted no contract for the land, and never demanded a deed. They made some inconsiderable improvements, but on the whole the house and farm were allowed to deteriorate, There was also evidence of statements made by deceased to wit- . nesses to the effect that she had given, or that she intended to give the farm to plaintiffs. Two of the wills devised it to her daughter, the plaintiff, absolutely; the last also devised it to her, but subject to the payment of considerable legacies. There was no direct proof of the contract sued on. Held, that it was not established.</p> <p>3. Witness. When one of the parties to a contract is dead, the other is no more competent as a witness to prove acts of part performance under the contract than to prove the contract itself.</p>

—IIon. Y. B. Hill, Judge. I. The fact that Kelly was not a resident of Texas county did not render him ineligible as a candidate for the office of prosecuting attorney for that county. II. Held: even in England, that the votes cast for an ineligible candidate were void, unless the electors knew, not only the disqualifying facts, but also the legal effect of the existence of those facts. State v. Vail, 53 Mo. 116; Queen v. Mayor of Tewkesbury, 3 Q. B. 629; People ¶.

<p>Appeal from Mississippi Circuit Court.—Hon. David L. Hawkins, Judge.</p> <p>J. L. Smith, Attorney General, for the State, cited M-ft M. Ins. Go. v. Curran, 45 Mo. 142; Goff v. Mulholland, 33 Mo. 203 ; Miller v. Whitson, 40 Mo. 97; Dear v. State, 14 Mo. 348; Jaeeard v. Dar,is, 43 Mo. 535 ; Phillips v. Phillips, .46 Mo. 607.</p>

—Hon. T. M. Rice, Judge. The points relied on by the defendant to defeat a specific performance, are as follows : 1 a. The lapse of five years and nine months from the execution of the title bond to the tender of the purchase money. See Eastman v. Palmer, 46 N. H. 479 ; Pry, on Sp.

Louis Circuit Court. The case was tried, at special term, before Hon. Chester H. Krum, one of the judges. We deny tlie right of respondent to treat the cause in this court, to wbicb it has been brought by appellant alone, on exceptions, few and distinct, and which were taken only by appellant, as if respondent had taken that appeal and had properly preserved exceptions.

— Hon. W. E. G-eiger, J udge. 1. The court erred in admitting in evidence the dying declaration of deceased to prove facts distinct from and prior to the homicide. “ That some two or three weeks before the homicide, he, deceased, and Draper (defendant) had trouble about the trunk, and that they quarreled, and Draper then abused deceased and threatened deceased.” Dying declarations must be restricted to the act of killing and the circumstances immediately attending the act,…

—Hon. George W. Dunn, Judge. This is a suit for partition of land among the heirs of Beujamin Gragg, who died in June 1871, seized and possessed of a tract of 164 acres, embracing the land in question. At that time, and for many years prior thereto, he and his wife, Nancy, one of the defendants in the present case, with their children, were living upon said land, using and occupying it as a homestead.

—Hon. George ~W. Miller, Judge. The State of Arkansas possesses exclusive sovereignty and jurisdiction within its own territory, over all persons resident therein. Story on Con. of Laws, 7th Ed., § 18; Minor v. Cardwell, 37 Mo. 350.

Apipeal from St. Louis Court of Appeals. In order to constitute murder in the second degree, under our statutes, there must at least be an intent to kill, inferable from all the facts and circumstances in the case. State v. Foster, 61 Mo. 549; State v. Hudson, 59 Mo. 135 ; State v. Underwood, 57 Mo. 40.

—The case was tried before Samuel G-. 'Williams, Esq., sitting as Special Judge. I. The constitution, Sec. 25 Art. 6, requiring that circuit judges shall be elected by the qualified voters of each circuit, the act of May 19, .1877, acts of 1877, page 357 in so far as it authorizes the election of a special judge by the members of the bar is unconstitutional. Winchester v. Ayres, 4 Greene (Iowa) 104; Van Slyke v. Trempealeau Co. Farmers Mut. Fire Ins.

<p>Appeal from Jasper Circuit Court.—Hon. Josepii Cravens, Judge.</p>

<p>l. Practice, Civil: trial: instructions. After the iury retired to “ ^ consider of their verdict, the judge, who presided at the trial, called the jury into the court room, a little after dark in the evening, and in the absence of the parties and their attorneys, all other parties being excluded from the court room except the deputjr sheriff, gave to the jury additional instructions: Held, that such conduct on the part of the court was a sufficient ground for reversing its judgment.</p> <p>Principle. The court should, in its conduct, be careful to prevent suspicion from attaching to its proceedings.</p> <p>2. Bill of Exceptions: refusal of judge to sign : signing by bystanders. Where, upon the refusal of the judge to sign the bill of exceptions, it was signed by three bystanders, and the court permitted the bill so signed, to be filed, it was held that the statements contained therein must be assumed to be true, notwithstanding the judge’s certificate that it was untrue.</p> <p>S. -: affidavits. Affidavits in support of or in opposition to the bill of exceptions, are not required, unless the court refuse to permit it to be filed.</p>

Louis Circuit Court. The ease was tried at special term, before IIon. James J. Bindley, one of the judges.

<p>Frror to Henry Circuit Court.—Hon. Poster P. Wright, Judge.</p> <p>Wiggins v. Hammond, 1 Mo. 121; Clarkson v. Creely, 40 Mo. 114; Old-ham v. Henderson, 4 Mo. 295; Baker v. Stonebraker, 36 Mo. .338; Bernecker v. MiUer, 44 Mo. 102; Joliffe v. Collins, 21 Mo. 338.</p>

Louis Circuit Court. The case was tried at special term before PIon. James K. Knight, one of the judges. The statute under which the suit is brought is as follows: Seo. 1.

<p>1. Criminal Practice: bill of exceptions : evidence. The Supreme Court will not inquire, whether the verdict in a criminal case is against the evidence, unless the whole of the evidence is preserved in the bill .of exceptions. It is not sufficient that its substance is stated.</p> <p>2. •-: NEWLY DISCOVERED EVIDENCE: MOTION FOR NEW TRIAL. A motion for a new trial in criminal cases, on the ground of newly discovered evidence, should be supported by affidavit, and should show what the evidence is, that it is material, and what efforts had been made to discover it in time.</p> <p>3. -: murder: instructions. On appeal from a conviction of murder in the second degree, the Supreme Court will not inquire, whether instructions given to the jury by the trial court, on the subject of murder in the first degree, are correct.</p>

—Hon. William T. Wood, Judge. I. The county of Saline could not become the purchaser of the land at the sale by the sheriff under the mortgage, and hence said sale was a mere nullity and the rights of the parties were not altered thereby. It was the same as if no sale had been made. Bay County v. Bently, 49 Mo. 236. II.

<p>Judgment: administbatob’s inventory. Where the grounds upon which a probate court acted in overruling a motion to compel an administrator to make an inventory of real estate, do not appear in the record or in a bill of exceptions, the presumption is in favor of the correctness of the judgment, which will, therefore, bo affirmed by the Supreme Court.</p>

<p>Record: criminal practice. When the record in a criminal case shows neither indictment, arraignment, trial nor verdict, the judgment of conviction will be reversed.</p>

<p>1. Revocation of Will. A testator, intending to revoke a will, caused it to be burned. He had already prepared and signed a second will making materially different dispositions of the property. At the time of the burning the second will was not attested, and the testator understood that until attested, it would not be complete. It was subsequently attested, and after the death of the testator was offered for probate, but was rejected by the probate court. In an action to establish the first will, Held that the burning operated a complete revocation, and this result was not changed by the fact that the second will never took effect.</p> <p>2. Res Judicata: probate court. The probate court, when it is not otherwise provided by law, has exclusive original jurisdiction in all cases relativo to the probate of last wills and testaments and its judgment, rejecting or probating a will, cannot be attacked, collaterally.</p>

<p> Appeal from Dunklin Circuit Court. </p> <p>TIon. R. P. Owen, Judge.</p> <p>cited Wag. Stat. 1091 §§ 28, 29, 30; Paige v. People, 3 Abb., N. Y. Ct. App. L. 439 and cases there cited.</p>

<p>Appeal from Greene Circuit Court.—Hon. W. E. Geiger, Judge.</p>

—IIon. Poster P. Wright, Judge. None of the facts necessary to bring the. cause of action within the 43d section are pleaded. It is' simply stated that the cattle “ strayed upon the track where the road was unfeneed,” not where the road passed-through, along or adjoining inclosed or cultivated fields or uninclosed prairie lands; not where the company was required to fence, but simply where it was unfeneed.

—-Hon. H. P. White, Judge. The jury should have been permitted to pass upon the guilt or innocence of the accused, from the case made by all the facts and circumstances, without the intervention of the court singling out the bare fact of possession of the lost goods, which was two months and fifteen days, as appears from the evidence, after they were lost or taken. Fackler v. Chapman, 20 Mo. 253 ; State v. Hundley, 46 Mo. 421; State v. Smith, 53 Mo. 271; Wag.

—PIon. PL Q-. Wilson, Judge. The statute referred to, in the opinion of the court, is as follows : Sec. 67.

<p>1. Arbitration: The courts are disposed to regard tribunals of arbitration with favor, as being of the parties’ own selection, preventing litigation in court and avoiding expense and delay.</p> <p>2. --: W1IAT IS NOT MISBEHAVIOR IN THE ARBITRATORS. Upon the hearing of a case before arbitrators certain items of account were referred to in the argument a,nd brief of the attorney for one of the parties, which, upon examination after the case was submitted, the arbitrators were unable to find in the books offered in evidence, which were numerous, disorderly and difficult to be deciphered. Without the knowledge and in the absence of the other party and his attorney, the arbitrators requested the first named attorney to point them to the places in the books, where the items referred to by him were to he found, which he did, without comment or explanation. Held that this was not misbehavior on the part of the arbitrators, and did not authorize the setting aside of their award</p>

<p>Appeal from Buchanan Circuit Court.—Hon. J. P. Grubb, Judge.</p>

Joseph Cravens, Judge. The application for a continuance shows no diligence on the part of the defendant toward procuring the attendance of the absent witnesses, and was properly overruled. The application for a change of venue presented a question of fact to the court below, which it found against defendant, which finding is conclusive.

—Hon. Q-eorge W. Miller, Judge. This suit was instituted by the appellant to recover of the respondent, Daniel B. Ells, his proportionate part of certain taxes paid by the appellant, which were assessed against them and one C. C. Ells, jointly, as the owners of certain real estate.

—ITon. J. N. Wood,side, Judge. The court should have instructed the jury to take all the statements and declarations of the defendant together, and give them such weight as they were entitled to. Bower v. State, 5 Mo. 364.

Vernon Circuit Court.—-Hon. John jD. Parkinson, Judge. In settling with collectors the county court acts as a fiscal agent. Its proceedings are not judicial, and have none of the effects of judgments. Phelps County v. Bishop, 46 Mo. 68; Peppy v. Jefferson County, 47 Mo. 66'; Owens v. Andrew County, 49 Mo. 372; State ex rel. Morgan County v. Butman 63 Mo. 210.

Foster P. Wriuht, Judge. 1st. No interest can be charged upon money given to a child by way of advancement, and if land advanced to a child be brought into hotchpot, it must be brought in at its value at the time the advancement was made, and this inflexible rule must be applied, although the land had increased to twenty times its original value. Grattan v. Grattan, 18 111. 167; Osgood, v. Breed’s heirs, 17 Mass. 356; Hall v. Davis 3 Rick. 450. 2nd.

—Hon. Samuel L. Sawyer, Judge. I. If the verdict were supported by any testimony whatever the amount is too great. The sheriff levied on the tables to satisfy an execution for $517.41 (judgment and costs) and the verdict should not have been greater than, this sum. Dilworth v. McKelvey, 30 Mo. 149; Gillham v. Kerone, 45 Mo. 487. II. But the verdict of the jury is wholly unsupported by the evidence—is against the testimony of every .witness who testified on that point.

—Iíon. D. L. Hawkins, Judge. It has been frequently held by this court that all inferior tribunals, not proceeding according to the course of the common law, must pursue their authority strictly, and that their jurisdiction must appear upon the face of their proceedings, or all of their acts will be held coram non judiee.

Louis Court of Appeals. Under the issues presented, we submit: 1st. That if there had been an alteration of the return after it came to the clerk’s office, yet the appellants in the discharge of their duty, could not hear evidence as to any alteration; and if the paper appeared to be a return, and the figures 292 were plainly and legibly written on the face of the poll-book, as the vote of Frost at the precinct, appellants had no discretion but to count the return as it…

—Hon. G-. Porter, Judge. The note should not have been admitted in evidence, because it is altogether a different instrument from that described in the indictment, and purporting to create altogether a different pecuniary liability from that named in the indictment. The liability named in the indictment was sixty dollars in sixty days, against Abraham Turner and James C. Orr.

Appeal ■from Andrew Circuit Court—IIon. H. S. Nelly, Judge. Where a party has sworn contrary ways at different times, it must be expressly ehax’ged and shown in such case which was the false oath and on which occasion he swore willfully, falsely and corruptly. Wharton’s Pree. (Perjury) 577, 578, 926.

<p>Motion for Uew Trial. The Supreme Court will notice no errors not appearing in the record proper, unless the motion for new trial is incorporated in the bill of exceptions. Mere reference in the bill to a prior page of the transcript, where it is set out in full, will not answer.</p>

<p>1. Teopardy: discharge of jury for failure to agree : criminal practice. The discharge, by the Court, without defendant’s consent, of a jury to whom a criminal case has been submitted, and who have failed to agree on a verdict, does not operate an acquittal or entitle him to a discharge. He has not been put in jeopardy within the meaning of the constitution, so as to bar a second trial for the same offense.</p> <p>2. A Writ of Error does not lie on behalf of the State in any criminal case (construing Wag. Stat. 1114 §§ 13, 14, 1, 2; and overruling State v. Newkirk, 49 Mo. 472 and State v. Peck, 51 Mo. 111.)</p>

<p>Error to Wayne Circuit Court.—Hon. R. P. Owen, Judge.</p> <p>cited State v. Waters, April term, 1877, of this court; State v. Gilbert, 13 Vt. 647 ; State v. Creight, 1 Brev. (S. C.) 169; State v. England, 19 Mo. 386; State v. Freeman, 21 Mo. 481; Kirk v: the State, 6 Mo. 469 ; State v. Hamilton, 7 Mo. 301; Rose v.„ State, Minor, (Ala.) 28; 1 Bishop Crim. Prac. 2 Ed. §§ 478, 481, 662.</p>

<p>1. Contract: agency. A city is not liable for work done upon a street by a contractor in excess of the amount fixed by his contract, though the extra work is ordered by the supervisor appointed by the city to superintend the execution of the contract.</p> <p>2. Case Adjudged. A contract for street work required macadam to be laid twenty-four feet wide, eight inches thick at the center and gradually less to the outer limit on either side, where it should be four inches thick, and to be measured and spread upon the street as the city committee might direct; payment to be made at an agreed price per cubic foot. Held, 1st, that the intent of the contract was to have macadam spread to the average depth of six inches ; 2d, that an instruction to the jury that, in order to ascertain the amount spread, they should multiply the length, breadth and average depth as fixed by the contract in feet, and divide by twenty-seven, laid down a correct rule of measurement; and evidence having been offered to show that under the direction of a supervisor appointed by the committe to superintend the work, the macadam had been spread to a greater average depth than six inches. Held,, 3d, that the contractor could not recover for the excess.</p>

<p>Appeal from Barton Circuit Court.—Hón. John D. Parkinson, Judge.</p>

<p>Appeal from Macon Circuit Court.—Hon. John W. Henry, Judge.</p>

—Hon. E. J. Broaddus, Judge. 4 The third instruction given at the instance of defendant is misleading. The jury are told they must find the existence of three facts in favor of the appellant, viz: that respondent took the cow and shipped her and converted her to his own use, or they must find for respondent.

—Hon. Samuel L. Sawyer, Judge. It is true that it is the duty of the master to be careful in the selection of his servants, and to provide safe and suitable machinery; but the proposition is undeniable that the master will be exempt from responsibility in all cases where the risks were apparent, and were voluntarily assumed by a person capable of understanding and appreciating them.

<p>Error to Gape Girardeau Circuit Court.—Hon. D. L. Hawkins, Judge.</p> <p>cited Wag. Stat. 792, § 18; Willburn v. Hall, 17 Mo. 471; Walter v. Tabor, 21 Mo. 75; Toler on Execution, pp. 266, 447; Rorer on Judicial Sales, §§ 580, 581.</p> <p>cited Slagel v. Murdock, 52 Mo. 521; S. C. 51 Mo. 175 : Wag. Stat. 1069 § 45, 1070 § 50; Parker v. Han. § St. Jo. E. E. 44 Mo. 415; Wag. Stat. 1068 § 37, 601 §1; Bain v. Chrisman, 27 Mo. 293.</p>

<p>Appeal from DeKalb Circuit Court.-—Hon. Jos. P. Grubb, Judge.</p>

<p>Administrator de bonis non: pleading. In a suit by an administrator de bonis non, the petition showed that the estate had, prior to his appointment, been under the charge of two administrators, and that the letters of one of them had been revoked, but it failed to show that the letters of the other had been revoked, or his administration had been otherwise brought to a close. Held, that this omission rendered the petition fatally defective. For aught that appeared, the estate was still under the charge of the former administrator, and plaintiff as administrator de bonis non, had no right to recover.</p>

<p>Appeal from Washington Circuit Court—ITon. John B. Robinson, Judge.</p> <p>cited 3 Green. Ev. § 148; 1 Whart. Am. Crim. Law (6 ed.) p. 41; 2 Green. Ev. § 374; 1 Russ. Crim. (5 ed.) 7; State v. Klinger, 46 Mo. 224; Wag. Stat. 1046, § 47; Chouquette v. Barada, 28 Mo. 499; Sawyer v. Ilan. $ St. Jo R. R. Co. 37 Mo. 263; State v. Cross, 27 Mo. 334.</p> <p>cited State v. Mitchell, 64 Mo. 191; State v. Mathews, 20 Mo. 55 ; State v. Stonum, 62 Mo. 596 ; State y. -Hudson, 59 Mo. 135.</p>

—Hon. John W. Henry, Judge. There was no evidence of any demand or any assertion of title on the part of Macon county. The respondent was in possession under his deed from appellant, and time was gradually and surely building him up a title; and if he had remained in possession, Macon county might never have asserted her title, even if she had one, which is most emphatically denied, and in this way he might have acquired a perfect title. cited Rawle on Goo. Tit.

<p>Appeal from Cass Circuit Court.—Hon. Foster P. Wright, Judge.</p>

—ITon. Jos. P. Grubb, Judge. Tbe motion to vacate the judgment was the proper proceeding and should have been sustained, and the record thereby cured of its falsity. Wag. Stat. vol. 2, p. 1062 § 26, p. 1034 § 6, p. 1037 § 23; 2 Tidds Practice, 1191,1136.

<p>Appeal from St. Louis Court of Appeals. The case will be found reported in 2 Mo. App. Rep. 565.</p>

—IIon. R. A. JDeBolt, Judge. This is a proceeding to enjoin the delivery of certain bonds of Sullivan county, held in escrow by McCullough, one of the defendants, and to be delivered by him to the St. Joseph and Iowa Railroad Company, or its successor, the Burlington and Southwestern Company, upon compliance by the company with the terms of a subscription made by the county court.

.-—-Hon. E. Y. Wilson, Judge. The buildings, though physically disconnected and each on a separate block of ground, were erected at the same time, by one and the same owner, and both designed and essentially necessary for the accomplishment of a common end, to wit: the production of steel rails; neither building would be of any use without the other.

<p>Crime: shooting at a person, indictment foe. An indictment for shooting at a person is good, if it charges the offense in the language of the statute (Wag. Stat. 449, § 29). It need not allege an assault.</p>

<p>Appeal from, Linn Court of Common Pleas. Hon. Thomas Whitaker, Judge.</p> <p>cited 2 GreenleafEv. §§ 254, 256; ITenschen v. O’Bannon, 56 Mo. 289; Otto v. Bent, 48 Mo. 23: Bad v. St. Louis Transfer Co., 45 Mo. 562.</p> <p>cited Clements v. Maloney, 55 Mo. 358; Sears v. Wall, 49 Mo. 359 ; Budd v. Hoffheimer, 52 Mo. 297 ; Beam v. Watkins, 27 Mo. 518.</p>

-—IIon. Poster P. Wright, Judge. 1st. The judgment was rendered against a married woman and was, therefore, irregular and void. St. Louis v. Bernoudy, 43 Mo. 552; Higgins v. Peltzer,4S Mo. 152; Caldwell v. Stephens, 57 Mo. 589; Werneck v. Wood, 58 Mo. 352 ; Hunt v. Thompson, 61 Mo. 148. 2nd. Buell judgment being irregular and void as to one of the defendants, is irregular and void as to all, and might even be disregarded -by the plaintiff.

—-Hon. Geo. ~W. Miller, Judge. 1. The petition does nofr charge that defendant negligently or wilfully omitted to discharge any official duty respecting the sale of the land which resulted in any injury or inconvenience to plaintiff, for which compensatory damages are recoverable. Tarwater v. Han. ft St. Jo. JR. JR., 42 Mo. 193; JPike v. Megoun, 44 Mo. 491. 2.

<p>Appeal from Greene Circuit Court.—IIon. W. F. Geiger, Judge.</p> <p>The instructions given at the request of the plaintiff, to which reference is made in the opinion of the- court, are as follows:</p> <p>No. 1. That the payment or satisfaction of a note is that act which entitles the payors to a delivery of the note, and requires the assent of the legal holders of the note to the act to render it a payment or satisfaction of the note.</p> <p>No. 2. That in this-case the plaintiff has never surrendered,. nor has the defendant, Robberson, done any act to entitle him to have possession of the note.</p> <p>No. 3. That the several notes given by the co-defendants of Robberson to John J. Culbertson, though for same amount, yet' not payable to the hank by name, nor to its cashier in his official capacity, were not accepted by the bank as payment, nor in discharge or satisfaction of the note sued on, nor does that fact entitle Robberson, or either of the defendants, to claim said notes, or either of them, as payment of the note sued on. •</p> <p>I. The renewal of a note in bank is a cancellation and payment of the former note, and is so regarded by the commercial world. 2 Pars. Bills and Notes 203-4; and is such an extension of credit as to release sureties not consenting thereto. Edwards on Bills and Notes 355 ; Bangs v. Mosher, 23 Barb. 478; Frisbie v. Lamed, 21 Wend. 450 ; La Farge v. Herter, 4 Barb. 346.</p> <p>II. If for a good or sufficient consideration the creditor gives time or forbearance to the principal debtor, the surety is discharged. 1 Pars. Bills and Notes 238; Gahn v. Niemcowiez, 11 Wend. 312; Rathbone v. Warren, 10 Johns. 587 ; Clippinger v. Cress, 2 Watts 45; Globe Mid. Ins. Co. v. Carson, 31 Mo. 218; Rucker v. Robinson, 38 Mo. 154; Me Cune v. Belt, 38 Mo. 281.</p> <p>III. The receipt of interest, in advance, after maturity of a note, is a sufficient consideration, and is prima facie evidence of a valid agreement to extend the time of payment. 2 Pars. Bills and Notes 241; Crosby v. Wyatt, 10 N. H. 318. Hosea v. Rowley, 57 Mo. 357, is not in conflict with this view. We do not contend that it is conclusive, but only prima facie evidence of extension, and may of course be rebutted.</p> <p>IV. There were four renewals of the note sued on, for three months each—for the same sum of money—interest paid in advance on each. It was “ conditionally paid,” as marked on the books of the bank.</p> <p>V. The contract of suretyship imports entire good faith and confidence between the parties in regard to the whole transaction. Any concealment of material facts, or any undue advantage taken of the surety by the creditor, either by surprise or by withholding proper information, will invalidate the contract. And upon the same ground ' the creditor is, in all subsequent transactions with the debtor, bound to equal good faith to the surety. And if any stipulations are made between the creditor and debtor which are not communicated to the surety, and are prejudicial to his interests, they will operate to discharge him. 1 Story Eq. Jur., §§ 824, 325, 326; 1 Parsons on Bills and Notes 236.</p> <p>VI. If there be a failure on the part of the principal, and the surety or guarantor is looked to for payment, he should have reasonable notice of such facts, and, if from want of such notice, he is placed in a position where he cannot save himself by reason of the insolvency of the principal occuring after maturity of the note, he will be discharged. Edwards on Bills and Notes 243; 2 Parsons on Notes and Bills 141-2 ; Parsons Mercantile Law 70, and Notes; Oxford Bank v. Haynes, 8 Pick. 423; Bickford v. Gibbs, 8 Cush. 154; Babcock v. Bryant, 12 Pick.-133.</p> <p>1. There was no satisfaction or payment of the note sued upon, nor any enlargement or extension of time for the payment of the same.</p> <p>2. Plaintiff never surrendered said note, nor has defendant, Robberson, or either of his co-defendants done any act to entitle him or them to the possession of said note.</p> <p>3. The several notes given by the co-defendants of Robberson to Culberson, though for the same amount, yet not payable to the bank by name, nor to its cashier in his official capacity, were not accepted as payment, discharge or satisfaction of the note sued on, nor does that fact entitle said Robberson, or either of said defendants, to claim said notes or either of them, as payment of the note sued on.</p> <p>4. The note sued on is joint and several, and the parties are all principals. There is no law requiring notice and. protest to fix the liability of joint makers of a note.</p> <p>5. The receipt of interest on a claim in advance, is not a sufficient consideration for an extension of time of payment.</p> <p>6. It is tbe business of the surety to see that the principal pays. If he does not, the surety may pay and take measures for his indemnity.</p> <p>7. The plaintiff was not precluded at any time after the note sued on became due from commencing suit upon it. Authorities relied on by respondent: Oxford Bank v. Lewis, 8 Pick. 458 ; Blackstone Bank v. Hill, 10 Pick. 129; Freem,an Bank v. Hollins, 13 Maine 202; McLemore v. Howell, 12 Wheat. 554 : Wilson v. Hoot, 11 Met. 287.</p>

Montgomery Circuit Court.—Hon. Gf. Porter, Judge. At tbe request of defendant the court gave the following instruction: 3.

—Hon. R. P. Owen, J udge. 1st. Without attempting to controvert the doctrine that to make declarations admissable as res gestee, they must be contemporaneous with the main fact, yet it is equally true that to be contemporaneous they need not be precisely concurrent in point of time. . If they tend to illustrate the character of the act, and are made at a time so recent as to reasonably preclude the idea of deliberate design, they are admissible, (Starkie’s Ev.

-—Hon. J. D. Parkinson Judge. 1. The damages in a suit on an attachment bond are always unliquidated; and, if the ordinary rule is to govern, the statute would be rendered nugatory. 2. The petition fails to allege that the bond, or a certified copy thereof is filed, and does not allege any excuse for failing so to do, and no testimony can be introduced under it. Bothwell v. Morgan, ST Mo. 107. 3.

<p>Error to Lafayette Circuit Court.—Hon. Vm. T. Wood, Judge.</p> <p>This was a proceeding by information in the nature of a quo warranto brought by the prosecuting attorney of Lafayette county at the relation of several school districts in that county for the purpose of testing the question whether the Board of Education of Mayview school district right fully exercised jurisdiction over certain territory described in the information. It appeared by the return to the writ that the town of Mayview was situated in district 6, T. 49, R. 26; that two of the complaining districts were situated in another township ; that by proceedings taken in supposed conformity to section 1, Wag. Stat. p. 1262, the town and the remainder of section 6, together with portions of the complaining districts had been organized and established as a single school district. To this return there was a demurrer on the ground that it failed to show that the territory taken from the complaining districts was attached to the town of Mayview for school purposes, when the election was held and the other steps were taken which resulted in the alleged organization. The demurrer was overruled and there was judgment for the respondent. The other facts are stated in the opinion of the court.</p> <p>It has been decided by this court that a city, town or village with its additions may organize under this law, or that for the purposes of organization all the territory of the district outside of the limits of such city &c. may be considered as territory attached thereto for school purposes, and that in either case the voters of such city &c. alone or with the territory so attached, can adopt such law. State v. Searl, 50 Mo. 268; State v. Heiser, 60 Mo. 540. But these decisions do not hold that this law will authorize the annexation of territory lying outside of such district and in a different township without the consent of the districts to be affected. Smith v. Township Board, 58 Mo. 297; State v. Heath, 56 Mo. 231.</p> <p>cited State v. Appleton City §c., 53 Mo. 127; Indept. School Dist. v. Supervisors, 25 Iowa 305 ; Fort Dodge School v. Dist. Township $c., 15 Iowa 434.</p>

<p>Practice: bill op exceptions. This court ■will not examino into errors alleged to have occurred during the progress of the trial, where there is no bill of exceptions in the transcript; and it will not regard, as a bill of exceptions, what purports to be such and appears to be signed by the judge, but which does not appear even to have been filed; and the térm “filed,” as here used, signifies more than a mere indorsement to that effect, and denotes, more especially, an entry made by the clerk upon the record, announcing and evidencing the fact that the bill has been allowed.</p>

<p>Aiding Escape of Prisoner: sufficiency of indictment. An indictment for conveying into a jail instruments to aid the escape of a prisoner confined for felony need not set out the particular felony with which the prisoner was charged.</p>

—Hon. R. P. Owen, Judge. The instruction referred to in the opinion of the court as the first instruction given, is as follows : If the jury find from the evidence that the plaintiffs are husband and wife and father and mother of deceased, James R. Noons, and that James R. Noons was a child nine years of age, incapable of understanding the dangerous character of the turn-table in question, and if they find that said turn-table was used and operated by defendant in connection…

Jackson Circuit Court—IIon. Samuel L. Sawyer, Judge. This was a suit to enforce a mechanic’s lien brought by R. ~W. Hilliker and Joel F. Kinney, as partners doing business under the name and style of Hilliker & Kinney, against Francisco, Switzer & Jeffers and the First National Bank of Kansas City.

<p>Appeal from Bates Circuit Court—IIon. Foster P. Wright, Judge.</p> <p>cited Jennings v. State, 9 Mo. 852; State v. Magrath, 19 Mo. 679; State v. Bailey, 21 Mo. 484; State v. Bohannon, lb. 490; State v. Thompson, 30 Mo. 470.</p>

H. S. Kelly, Judge. The non-user of an easement (a public road) will authorize the holder of the legal title to take possession of such-easement far short of ten years. The easement is only to the use of the public so long as the public choose to use and enjoy it, and when the public cease to use it, and fail to keep it up as a road, the easement, by operation of law, reverts to the owner of the fee, and the public ought not to be permitted to prosecute him for fencing it up.

-—-Hon. George W. Miller, Judge. I. The court erred in admitting in evidence the transcript of the record of the supreme court of Cattaraugus county, New York.

—Hon. Geo. ~W. Miller, Judge. It will be seen by an examination of the charter that the city has no authority to do the act complained of by' respondent. The trespass alleged to have been committed is ultra vires, and the city is not liable. A corporation organized and created for municipal government solely differs from a quasi private corporation created and organized for profit. Dillon Munic. Corp., 2d Ed., §§ 9,10.

—Iíon. 'Jos. P. Grubb, Judge. 1. If the petition in this case states a cause of action, however imperfectly or defectively, the judgment of the court below must be reversed. McClurg v. Phillips, 49 Mo. 315 ; Morgan v. Bouse, 53 Mo. 219. 2. The facts alleged in the petition, as alleged, constitute a good cause of action. St. Louis to the use of Carrol v. ITardy, 35 Mo. 261; City of St. Joseph v. Anthony, 30 Mo. 537.

<p>Practice: bill op exceptions : Where no exception is saved, in the bill of exceptions, to the overruling of a motion to set aside a non-suit, the omission is not cured by a general exception when the motion in arrest is overruled.</p>

—IIon. G-. Porter, Judge. cited, in addition to tbe authorities quoted by the court, Leiois v. Great Western B. B. Co., 5 Hurl. & Norm. 865; Express Co. v. Caldwell, 21 Wall. 264. 1. The petition in this case is based on an alleged breach of defendant’s public duty as a common carrier — sounds in tort, for negligence, against which defendant can not contract. Such being the case, the alleged special contract was irrelevant and was properly stricken out of the answer.

• Petition for mandamus to compel Hon. John Wickham, one of the judges of the St. Louis circuit court, to sign a hill of exceptions. The writ of mandamus will lie to compel the performance of a judicial act. State v. Wilson, 49 Mo. 146 ; Gastello v. St. Louis Gir. Gt., 28 Mo. 259 ; and to compel a judge to sign a bill of exceptions. State v. Hall, 3 Cold. (Tenn.) 255. The respondent is not required to appear in person, and the return is not required to be under oath.

<p>JError to Cole Circuit Court.—Hon. Geo. W. Miller, Judge.</p>

Louis Court of Appeals. 1. Sec. 20, p. 1089, Wag. Stat. ”V ol. 2, is mandatory and not merely directory. The separate indictment then, against tlie defendant, being thus directly contrary to the plain and imperative provisions of the statute, is clearly invalid and will not support a judgment. And where a judgment is irregularly obtained against the provisions of a statute or the rules of a court, a party is entitled to have it set aside without showing any merits.

insisted that plaintiff was entitled to a judgment against the petitioners for the opening, or else, if it was thought the county should pay the damages, then that he should have a warrant on the county treasury, citing Wilson v. Berkstresser, 45.Mo. 283; Platte Co. Ct. v. McFarland, 12 Mo. 166; State o. Pombauer, 44 Mo. 590; State v. Knight, 46 Mo. 83; State v. Watson, 9 Kan. 668; Broom’s Leg. Max. 909; 12 Wheat. 69'; 1 Chitty PI. (15 Am.

—Hon. P. H. Edwards, Judge. This was a proceeding under section 54, page 192 Wag. Stat, by motion against the sureties in a forthcoming bond given by the defendant in an attachment suit. The attachment suit was brought to recover rent, and the writ was levied on a part of the crop grown on the premises during the year for which the rent accrued. Defendant was personally served and subsequently appeared to the action, which resulted in a general judgment against him.

—Hon. W. II. II. Hill, Judge. 1. The indictment charged that the defendant * * * did feloniously steal, take and carry away from the possession of one Mary Kreihn, one hunting case gold watch. It is simply an indictment in the usual form for grand larceny. 1 Wag. Stat. 456, Sec. 25. The instruction was founded on Sec. 45, p. 460, Wag. Stat., and was erroneous. Kelley’s Crim. Prac. 343.

<p>Error to Macon Circuit Court.—Hon. John ~W. Henry, Judge.</p>

<p>Road Overseer: taxation : township organization. Under the Township Organization law (Acts 1873, p. 105, art. 9; p. 107, art. 11), a road overseer has no authority to incur a debt in keeping the highways in repair, beyond the amount of the fund derived from the taxes levied by the township board; and if his expenditures exceed that amount, he cannot recover the excess from the township.</p>

—Hon. Wm. T. Wood, Judge. Plaintiff’s third instruction is correct and should have been given. Greenleaf’s Ev. Yol. 2, Sec. 126, 127,128; Lockwood v. Thorne, 11 N. Y. 170; Leahy v. Dug dale’s, Admr. 27 Mo. 487; ib. 34 Mo 99; ib. 41 Mo. 517. The evidence does not support the allegation of an account stated. Gape Girardeau $ State Line R. R. Co. v. Kimmel, 58 Mo. 84; Greenleaf’s Ev.

—Hon. G. Porter, Judge. The proposition that a deed may be good as between the parties in the matter of description and yet insufficient to notify a third person who knows its contents, is a monstrous absurdity. If the description in a deed be so indefinite or uncertain as not to identify the land with reasonable certainty, the deed is not good for any purpose.

<p>Error to Stoddard Circuit Court.—Hon. R. P. Owen, Judge.</p>

—Hon. Foster P. Wright, Judge. ' • I. The devise to Hiram Stephens and hi's family, transmitted the legal title in the land to said Stephens. The attempted devise is void for uncertainty. Arthur v. Weston, 22 Mo. 378. Bequests to a “family” have often been held void. Harland v. Trigg, 1 Brown, Chanc. Cases, 142; Doe v. Joinville, 3. East 172. For stronger reasons a devise should be held void, if attended with the same degree of uncertainty. 2.

Jos. P. Grubb, Judge. This was a suit to enjoin defendants from removing a frame building.

<p>'Error to Gape Girardeau Court of Common Pleas. — IIon. II. G. Wilson, Judge.</p> <p>cited Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Met. 412; O’Kelly v. O’Kelly, 8 Met. 439; 1 Sliep. 57; 2 Black. Com. 307; 4 Miner 27, § 52; 2 Wash. Real Prop. 602 to 618.</p> <p>cited Gaines v. Stiles, 14 Pet. 322; Goodrich v. Walker, 1 Johns. Cas. 250; 4 Comyn’s Dig., p. 158; Shed v. Shed, 3 N. II. 432.</p>

<p>Promissory Note. One who writes his name on the back of a note of which he is neither the payee nor endorsee, before it is delivered¡ is, in the absence of extrinsic evidence, to be-troatcd as a maker.</p>