Volume 66 — Missouri Reports

Appeal from St. Louis Court of Appeals. 1. The circuit court erred in omitting to charge the jury as to murder in the second degree. Wag. Stat. 1106, § 80; Hardy v. State, 7 Mo. 609; State v. Matthews, 20 Mo. 55'; State v. Byrne, 24 Mo. 155; State v. Schoenwald, 31 Mo. 147; State v. Bryant, 55 Mo. 75; 12 Ga. 142; Foster v. People 50 N. Y. 601; Com. v. York, 9 Met. 94, 115; Gardiner v. People, 6 Park. Cr. Rep. 190; 16 N. Y. 61; Lead. Grim. Gas. (2 Ed.) 332; 2 Black.

<p>1. Attachment: motion to set aside judgment and quash exe* cution. A motion to set aside a judgment and to quash the execution for irregularity in the judgment, must, in attachment cases, be filed within two years after the rendition of the judgment; or it will be unavailing.</p> <p>2. Bill of Exceptions: record. An entry of record is necessary to authenticate a bill of exceptions, and to show that it has been filed.</p>

P. H. Edwards, Judge. Suit was not commenced within twelve months next after the loss occurred, as required by the policy and the charter, Sess. acts.-1872, p. 238 § 13; Wag. Stat., Vol. 2 § 1, p. 1006; Heim v. Home Mut. Fire and Marine Ins. Co., 42 Mo. 38; Angelí on Eire and Life Ins., par. 14.

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

— IIon. W. E. Geiger, Judge. The notice was not void, because it notified the respondent that the contest would be heard at a court to be bolden at a time when no court was or could be held. Held: in fact, and under the law, beginning on the first Monday in February. Of this there can be no question now, although respondent was not bound to know but the time for its holding had been changed.

<p>Waiver of Vendor’s Lien. Defendant having sold a tract of land to one P., on the same day bought another tract of plaintiff. Por the purchase money of the latter tract plaintiff received defendant’s two notes, together with the proceeds of defendants sale to P., which consisted in part of cash and in part of notes executed by P. Defendant conveyed his land to P., and received from plaintiff a title bond for the land bought of him. A year afterward defendant, at the instance and by the advice of plaintiff, by the payment of $100 obtained from P., a mortgage on the land he had sold P. securing the payment of P.’s notes. Defendant’s notes were paid, P. failed to pay his, and plaintiff foreclosed the mortgage, realizing a part of the debt only. In a suit to subject the land sold by plaintiff to defendant to the payment of the unpaid balance; Reid that by advising and accepting the mortgage from P. plaintiff had waived any vendor’s lien he might have had upon this land.</p>

Louis Court of Appeals. Respondents sued for damages sustained by them, by reason 'of the breach of a contract for the conveyance by appellants of one-fourth interest in certain property, which was to be recovered in proceedings to be instituted for appellants, and in their name by respondents as attorneys at law, in proper courts.

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

- — -Hon. G-. Porter, Judge. This was an action on a policy of insurance on the life of John T. Anderson, deceased, payable to the plaintiff on the death of Anderson. Held: under special circumstances, sufficient to support the contract, there is no decision to be found, in which the mere relation of uncle and nephew has been held sufficient, without other interest in the life of the assured.

R. P. Owen, Judge. The certificate of the Auditor is no evidence of the action of the of'Board Equalization, and was not intended by the act to serve such a purpose. Sess. Laws 1871, page 56.; Washington County v. St. Louis I. M. JR. JR. Co., 58 Mo. 378; The act in relation to taxation of railroads, approved March 15, 1875, is a legislative construction of the act of 1871, to the effect above stated. Sess. Acts 1875, p. 122, §11. . 1.

<p>1. Evidence, Parol: records. Parol evidence, in order to overcome record evidence, should be of the most unquestionable and conclusive character.</p> <p>2. Purchase with Notice: trustee: estopped. Defendants’ grantor entered a tract of government land, and took from the receiver of the local land office a receipt for the purchase money, describing the land. 1 By a mistake of the officer the records of the General Land Office at Washington were made to show an entry of a different tract, and a patent was issued accordingly. The records of the local office were afterwards destroyed by fire. Without taking actual possession defendants’ grantor claimed to be the 'owner of the tract designated in the receipt. Nevertheless, for a period of seventeen years he permitted the other tract to be assessed to him for taxation, and during-a part of the time at ieast, paid the taxes on it. The tract described in the receipt never was assessed to him. ■ Plaintiff knew that defendants’ grantor had intended to enter that, tract, and that ho claimed title to it. Finding, however, that the government records showed it to be vacant and subject to entry, plaintiff purchased and obtained a patent for it in his own name. Neither the defendants nor their grantor ever took any step to have the mistake corrected until after the issue of the patent to plaintiff; Held. 1st, That those facts were not sufficient to put plaintiff on inquiry, or to affect him with notice of a title in defendants, or to constitute him a trustee for them ; 2d, That defendants had acquiesced in the entry as made, and were estopped to claim title to the other tract. 0</p> <p>Napton and ’Norton, J J., Dissenting.</p> <p>Held, that the question which tract defendants’ grantor had in fact entered, was a judicial question : that the decision of the land officers of the government and the issuing to him of the patent for the other tract was not conclusive on him or his grantees, and that plaintiff took the title as trustee for them.</p>

H. S. Kelly, Judge. Defendant, a druggist, was indicted for manslaughter in the fourth degree, in carelessly and negligently filling a prescription.

R. E. Cowan, Judge. 1. The tax hill is no part of the petition, and the court in determining the sufficiency of the petition, must look alone to the petition. It should purport to give the contents of the tax-hill, hut this it does not do. Sess. Acts of 1872, Sec. 25, pp. 408, 413. 2. Circuit courts have no original jurisdiction to try cases'cognizable before justices of the peace; except where, provision is made for concurrent jurisdiction.

— Hon. T. M. Rice, Judge. Plaintiffs recovered judgments against the defendant, the Osage Valley & Southern Kansas Railroad Company, for the aggregate sum of $8,384. Executions were issued and the Atlantic & Pacific Railroad Company was garnished as debtor to the defendant. The cases were afterward consolidated, and tried as one case.

<p>Deed of Trust, powers of grantor in. One who gives a deed of trust upon land cannot afterwards make any agreement concerning the same to the prejudice of the title conveyed by the deed. A subsequent contract with a stranger permitting him to inelose and use part of the land, is void as against a purchaser at a sale under the deed of trust.</p>

— Hon. V. jB1. Geiger, Judge. * This was a suit for the price of building materials alleged to have been sold, shipped and delivered by plaintiffs to defendant. The 5th, 6th, 10th, 12th and 14th instructions given by the circuit court, at the instance of plaintiffs, and which this court, in the opinion, declares should have been refused, are as follows: 5.

— IIon. W. F. Geiser, Judge. 1.. The record does not show whether, or not, achango of venue was ordei'ed, as required by Sac. 7, p. 1356, Yol. 2, Wag. Stat., or, as permitted by Sec. 4, p. 1005, Yol. 2, Wag. Stat. It does show that the Greene circuit court exercised a jurisdiction which alone belonged to the circuit court of Dade county. Wag-. Stat, Yol. 2, p. 1005, See. 3.

— ITon. Joseph Cravens, Judge. The affidavit is manifestly no part of the record herein and ought not to meet with any consideration on the part of the court.

<p>Appeal from McDonald Circuit Court. — Hon. J oseph Cravens, Judge.</p>

— Hon. E. P. Wright, Judge. In this suit plaintiff claimed the possession of specific personal property. Henry M. Malone was, originally, the owner, and in possession of the property.

Petition for Habeas Corpus. The petitioner, Houston, was indicted for stealing personal property of the value of ten dollars. He pleaded guilty, and was sentenced to two years imprisonment in the penitentiary. The other facts appear in the opinion of the court. 1. The change m the law defining petit larceny enured to Houston’s benefit. Section 6, p.^95, Wag.

— Hon. G. H. Burckhardt, ' Judge. 1. The court erred in excluding the testimony of Mrs. White. Croiotherv. Gibson, 19 Mo. 365 ; Harriman v. Stowe, 57 Mo. 93. 2. In overruling defendant’s objection to instructions 5 and 10, given to the jury at the instance of-the State. State v. Underwood, 57 Mo. 40; Russell oh Crimes, Yol. 1? §§ 527, 528, 529. 3. In refusing to give instructions 2, 3, 4, 5 and 6, as prayed by defendant. Warton’s Am. Crim. Law, §§ 974, 985, 986. 4.

— Hon. Henry S. Kelley, Judge. The defendant was indicted at the November term, 1873, of the Nodaway circuit court, for murder in the first degree in the killing of one Jacob Norrick. In December following, defendant made an application for bail to Hon. Henry S. Kelley, Judge of the court. A trial was had upon this application, and evidence was introduced by the defendant for the purpose of removing the prima facie presumption of guilt raised by the indictment.

— Hon. R. W. Eyan, Judge. At the trial defendant offered to prove by a witness that one Hayhurst, who was on friendly terms with Humphreys, in the November before Humphreys’ death, came to the witness and told him that Humphreys said to him, Hayhurst, that if Dick did not quit talking about him, he, Humphreys, would bring grief, sorrow and desolation on the “ hill.” Defendant offered to prove that the Dick referred to was defendant, and that the hill referred to was the home…

— Hon. G-. I). Burgess, Judge. A false pretense is defined to be a representation of some fact or circumstance calculated to mislead, which is not true. 2 Bish. Crim Law. (5th Ed.,) See. 415. So there need be only one false pretense, and although several be set out in the indictment, yet if any of them are proved, being such as amount in law to a false pretense, the indictment is sustained. 2 Bish. Crim; Law, sec. 418.

<p>Appeal from St. Francois Circuit Court. — ITon. Louis E. Binning, Judge.</p> <p>1. Tbe indictment is insufficient. State v. Mitchell, 25 Mo. 420; State v. Ball, 27 Mo. 324; State v. Byron, 20 Mo. 210; State v. Fulton, 19 Mo. 680; State v. Boss, 25 Mo.' 426; Spratt v. State, 8 Mo. 247.</p> <p>2. The verdict is not supported by the evidence, and tbe judgment should be reversed for this reason. State v. Fritchler, 54 Mo. 424.</p> <p>3. The proposal of Mrs. Jaeger to have the matter hushed up, should not have been given in evidence ; 1st, because it was mere hearsay; 2nd, because a wife’s declarations are inadmissible against her husband, on the same grounds of domestic policy, which make her testimony against him inadmissible. Roscoe Crim. Ev., (Am. Ed:,) 113; 1 Phil, on Ev., 96; Burgen v. Tribble, 2 Dana 383; Smith v. Scudcler, 11 Serg. & R. 325 ; Park v. Hopkins, 2 Bailey 408 ; Comm. v. Briggs, 5 Pick. 429.</p> <p>1. The indictment is certainly good. Wag. Stat., p. 449, § 32 ; p. 448, § 23.</p> <p>2. The evidence as to Mrs. Jaeger’s proposal could not be excluded because of the rule in reference to compromises, as the rule does not apply to criminal prosecution — only to_ civil ones. It was not héarsay, as the wife herself being inadmissible as a witness, there could be no other mode of proving the conversation. If it was irrelevant, it did the defendant no harm. And, again, the conversation between the wife of defendant and the mother of the child, was brought out by defendant himself, and the plaintiff was pursuing a legitimate cross-examination when he elicited the matters of which defendant now complains. Even if the evidence was incompetent, still this court will not reverse therefor, as the evidence proved nothing, and could not have produced a different verdict. Clark v. People, 31 111. 479.</p> <p>3. This court will not interfere with verdicts in criminal cases, unless the evidence is so strong against the -verdict as to show that it is manifestly ■ wrong and unjust. State v. Connell, 49 Mo. 282.</p> <p>t. To disturb the verdict for want of evidence the failure must be so great as to leave tbe necessary inference that tbe jury acted from prejudice or partiality. State 'v. Cook, 58 Mo. 546</p> <p>The evidence on the re-examination in chief as to the conversation between the mother of the injured party and wife of defendant, as to a proposition to compromise, made by the latter to the former, was elicited in explanation of a question asked by defendant, as to whether the mother of the girl did, or did not, propose to compromise the alleged offense for the sum of one thousand dollars, and was a part of the conversation in which the thousand dollars was mentioned, and was.first drawn out by defendant’s counsel, and under the circumstances could not prejudice the rights of the defendant, but it was necessary that such conversation in relation to the alleged offer of compromise should be fully detailed to the jury in order that they might fully understand the issues.</p>

— Hon. E. J. Broadus, Judge. I. . The first instruction, given at the instance of the State, is erroneous, for the following reasons : 1. Because it ignores the question of malice. This ¿s an essential element in the crime of murder in the second degree, and while it may be inferred from other facts proved in the case, still it is an issue that must be passed upon by the jury. State v. Joeckel, 44 Mo. 234; State v. Philips et al., 24 Mo. 485. 2.

— ■ The case was tried before A. W. Rogers, Esq., sitting as Special Judge. 1. The act of the General Assembly of the State of Missouri, (Sess. Acts 1875, p. 42,) creating the criminal court of the Sixth Judicial Circuit, and the county of Johnson, is claimed to be unconstitutional and void, for the reason that it is not an inferior tribunal within the meaning of Sec. 1, Art. 6, of the Constitution of Missouri of 1865, under which said act was passed.

— Hon. W. E. Geiger, Judge Indictment for a Felonious Assault. It appeared from the evidence adduced at the trial, that on the 14th day of March, A. D. 1873, one George W. Davis and the appellant were both in the town of Billings, a small town in the northwestern portion of Christian couuty, attending the preliminary examination of certain parties charged with an assault upon Davis.

Louis Court of Appeals„ Plaintiff’s own testimony showed that he was never in possession of the land for a moment.

H. S. Kelly Judge. The following instructions were given by the court: 1.

Louis Court p/ Appeals. Ejectment, brought by plaintiff' as devisee under the will of Mrs. Long. Defendant was tenant in possession and had leased the premises in controversy from one Bushile, executor of Mrs. Long. The -lease was made under the order of the probate court of St. Louis county. An executor, as such, cannot maintain or defend in • ejectment. Burclyne v. Mackey’s ex’r, 7 Mo. 374.

<p>Appeal: final judgment. An appeal from an order setting aside a final judgment is premature. It-should not be taken until another final judgment has been entered in the cause.</p>

Louis Court of Appeals. This was a suit for an injection brought by the Atlantic & Pacific Railroad Company against the city of St. Louis, its mayor, city engineer and other officers, agents and servants, to restrain them from tearing up or otherwise interfering with a railroad track which had been laid down by the plaintiff’ company in Poplar street and on the Levee in that city.

— Hon. .George W. Miller, Judge. ' 1. Brand was not a trustee, having never accepted the trust either by signing the deed, or by assent, oral or written, nor by any act indicating such acceptance, nor does it appear that he had any notice whatever of his appointment. Hill on Trustees, edition of 1854, top pages 303, 304, 306; 2 Am. Law Reg. (N. S.,) pp, 651, 652, 653, 706, 713. A fair construction of the statute sustains the same view. Rev. Code 1855, p. 1554.

Petition for Habeas Corpus. 1. A delivery to the prisoner, or to the Warden, or to any one for the prisoner, is sufficient. Commonwealth v. Holloway, 44 Penn. Stat. 218 ; In- the matter of De Puy, 3 Benedict’s IJ. S. Bist. Ct. 307. 2. Being in possession of the grantee, it is presumed . to have been duly delivered at the time it bears date. Billings v. Stark, 15 Ela. 297. 3.

— Hon. Louis E. Dinning, Judge.' The object of this proceeding was to procure tbe enforcement and satisfaction of a decree of tbe circuit court of Madison county, wbicb is set out in full in tbe opinion in tbis ease. Plaintiffs presented tbis decree to tbe probate court and had it allowed for the full amount of $789.59, against the estate of II. F. Kenyon, deceased. The allowance in favor of Madison county against said estate, referred to in the opinion, was for $250.

<p>Forcible Entry and Detainer. A complaint in an action for forcible entry and detainer before a justice of the peace, not verified by affidavit, is insufficient and does not give the justice jurisdiction to try the case.</p>

— Hon. G-eorge W. Miller, Judge. 1. The privilege granted to the^ youth of this State by the statute, in obedience to the command of the constition, (Art. 9, Sec. 1,) to receive instruction in our public schools, is a legal right, as mush as any vested right in property. Ward v. Elood, 48 Cal. 36. 2. The law may be said to confer upon the school board general powers.

— IIon. Samuel L. Sawyer, Judge. This was a suit'brought by Chapman as administrator of Samuel W, Nutter, deceased, against Lizzie A. Callahan, a sister of the deceased, and James M. Callahan, her husband, to enforce a vendor’s lien against a tract of land in Lafayette county. The case was taken by change of venue from Lafayette to Jackson county.

Louis Court of Appeals. This was an action for the value of goods sold and delivered by respondents to appellant. The goods were delivered in pursuance of a verbal contract, by which payment therefor was to be made in certain real estate in the city of St. Louis, at a specific valuation, to be conveyed to respondents by appellant. A proper deed of the real estate had been executed and tendered to respondents, but was by them refused.

— Hos. Samuel L. Sawyer, Judge. In July, 1868, one Samuel W. Nutter, being then largely indebted to several parties, for an expressed consideration of $17,000, conveyed all his property, personal and real, including a tract of six hundred acres of land, to his sister, Lizzie A. Nutter, who afterwards intermarried with James M. Callahan. The deed was recorded about the day of its date.

<p>Appeal from Macon Court of Common Pleas. — IIon. Wil-' liam A. G-uyselman, Judge.</p>

Louis Court of Appeals. 1.' The creation of tlie town of New Eranklin was tbe creation-of a public corporation, called the town of New Eranklin, but the Legislature authorized the town of New Eranklin (which was an agency of the State) to make a contract with an individual, and so soon as that contract is made, there is a franchise, which the State, through its agent, has made, and which it cannot interfere with.

Jos. P. Grubb, Judge. This was an action for damages sustained by respond-dent in consequence of the alleged unlawful and wrongful shooting of him by the appellant, whereby the amputation of his left leg was rendered necessary, and other injuries were suffered by him.

— Hon. W. ~W. Edwards, Judge. 1. Eraud is never presumed; it must be proved by him who asserts it. 1 Story’s Eq., See. 190. There is no particle of evidence of either actual or constructive fraud 2. A manifest distinction to be traced through all the cases between executory contracts and those which have been executed.

<p>Autrefois acquit: larceny op money, national bank notes: evidence. A plea of autrefois acquit to an indictment for stealing a national bank note, is sustained by proof of an acquittal upon an indictment for stealing money accompanied by evidence that both indictments were for the same act.</p> <p>Under Sec. 31, p. 1091, Wag. Stat., evidence of the theft of the note was admissible in support of the indictment for stealing money, (overruling State v. Kroeger, 47 Mo. 530).</p>

— Hour. John W. Henry, Judge. The homestead act was passed March 20th 1866. 1. Jacob Diveling could not claim the land as his homestead, nor can his widow, as against the relator’s demand. Wag. Stat., p. 698, § 7; 1 Am. Law Reg. (N. S.) 648, 649, note; Shindlerv. Civens, 63 Mo. 394; Lincoln v. Lowe, 64 Mo. 138; Farra v. Quigly, 57 Mo. 284. The entry is noted on the plat book of entries; but no patent was ever issued, and Diveling never had any title of record.

Francois'Circuit Court. — IIon. Louis F. Dinning, Judge. . The court below committed error in directing the jury orally, that they could disregard the evidence which had been admitted without objection, in relation to defendant’s character; also in giving the third instruction for defendant.

<p> Petition for Mandamus. </p> <p>A payment made on a illegal demand cannot be after-wards applied to a legal demand. Treadwell v. Moore, 34 Me. 115. Respondent’s return does not allege that the $5,000 paid January 1st, 1877, was paid on the appropriation of April 6th, 1877, but says that by reason of that payment he will rebate from the appropriation of April 6th. The Legislature on April 6th, 1877, set apart $7,500, then in the treasury, or to be in it, for the Normal School. That appropriation certainly did not appropriate out of money that had been paid out three months before. An appropriation is the setting apart of a specific amount for a specific purpose.</p> <p>The appropriation act of -Anril, 1877, was made for the fiscal year of 1877, commencing 1st January and ending December 31st, 1877, and hence it relates back to January 1st, 1877, and although the warrant for the $5,000 was drawn in January for the first six months of the year on the proper requisition and demand of the officers of said Normal District, it must go as a credit on said appropriation, and the relator, inasmuch as he got the money and used it for said Normal School, is estopped from gainsaying the transaction on the ground of irregularity, or otherwise,</p>

Frror to St. Louis Court of Appeals. The case is reported in 2 Mo. App., 432. Ejectment to recover several lots in the city of St. Louis. The opinion states the case. 1. There was a marriage between Wilson and Sarah Ann Adams in 1824, unless the evidence proves a marriage between Wilson and Jane Collins in 1819. If the latter marriage is proved, then the former is “ deemed null in law,” but under the statute the issue is nevertheless legitimate.

Louis Court of Appeals. The decision of that court is reported in 2 Mo. Aud. 584. At the trial a witness for the defendant testified that after the death of Peter Lindell, witness and Ring had a conversation, in which witness told Ring that Peter Lin-dell had said that Ring owed him $20,000.

— IIon. George W. Miller, Judge. Action for damages for breach of an implied covenant for quiet enjoyment of a mining right granted by an instrument under seal. At the trial plaintiffs were forced to take a non-suit. Hence, this appeal. 1. Implied covenants for peaceable and quiet enjoyment arose from the instrument or lease.

Jos. P. Grubb, Judge. 1. The will did not confer upon Oolhoun a mere power of sale, but vested in him'a title in trust, personal and discretionary, and which could not be exercised by the administrator, such as purchasing lots and erecting houses on them. Conklin v. Egerton,t21 Wend. 430; Northrop v. Wright, 24 Wend. 223; Judsonv. Gibbons, 5 Wend. 224; Denne v. Judge, 11 East 288; 2 Williams on Executors 815; 2 Jarman on Wills 144; State v. Boon, 44 Mo. 260. 2.

— IIon. Geo. W. Bunn, Judge.. 1. The construction and plain meaning of Sec. 24, Art. 6, logically and grammatically demand that the words “ over that sum,” be held ■ to refer to the previously mentioned sum of $2,500, for the simple reason that there is no other sum mentioned. ■ The direction to pay the surplus over that sum entirely excludes the idea that the court has power to direct the payment of a surplus over a less sum, and forbids the court to allow the clerk to-…

Louis Court of Appeals, The decision of that court is reported in 2 Mo. App. 174. 1. The statute of limitations pleaded by appellant bars the right of respondents to a judgment in bhis case. Letters testamentary were granted December 10th, 1868. Publication of notice to creditors of the grant of these letters was made December 17th, 1868. The note sued on, by its terms, became due March, 1870. This suit was begun April, 1872, more than two years after the note became due.

<p>Appeal from Holt Circuit Court. — Hon. Henry S. Kelley, J udge.</p>

<p>Error to Louisiana Court of Common Pleas. — Hon. G-ilchrist Porter, Judge.</p>

Louis Court of Appeals. The principal defense relied on was that Drew had endorsed the note sued on in the name of the Dock Company for the accommodation of T. P. Morse & Co., without the knowledge or consent of the company. ' Among the declarations of law prayed by the plaintiff and refused by the court, were the following: 6.

<p>J. On appeal from the Probate and Common Pleas Court of Greene County, the circuit court can try a case only as an appellate court, upon errors assigned, and not de novo, (foUovnng MeCmw v. Hubble, 61 Mo. 107).</p> <p>2. Effect of Delay in Raising Jurisdictional Question: statute of limitations. When the defendant has neglected to raise the question whether the trial court had jurisdiction, until a late stage of a prolonged litigation, in the progress of which a judgment against him has been affirmed in the Supreme Court, that court will decline, on a second appeal, to examine the question, if the result of a ruling adverse to the jurisdiction would be to enable the defendant to interpose the statute of limitations as a bar against plaintiff's demand in a new action.</p>

— Hon. R. E. Cowan, Judge. This is an injunction to compel the cancellation of certain bonds of Cass county.

<p>1. Executor’s Final Settlement Conclusive on his Sureties. An order of the prohate court made upon a final settlement, ascertaining a balance to be due from an executor and directing him to pay it over, is conclusive against his sureties in an action on his bond, (following, State v. Holt, 27 Mo. 340; State v. Rucker, 59 Mo. 17.) ' .</p> <p>2. Liability of Executor Administering on Heal Estate. Although the general principle is that the realty descends to the heir, and the executor has nothing to do with it, except in case of deficiency of assets; yet, when, as matter of fact, he assumes control of • it and collects the rents, or when the will gives him authority to sell, and he exercises the authority, he is liable on his bond as executor, if he fails to account for the rents or for the proceeds of sales.</p>

Louis Court of Appeals. 1. When by mistake, the written agreement contains less than the parties intended, or contains more; or where it simply varies from their intent, by expressing something different in substance from the truth of the intent — in all such cases, if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract, so as to make it conformable to the precise intent of the parties. 1 Story Eq. Jur., § 152.

— IIon-. Foster P. Wright, Judge. 1. The injury complained of was not committed in a wanton, rude or aggravated manner, indicating oppression, malice or a desire to injure, and therefore the damages should have been compensatory only. JtSngle v. Jones, 51 Mo. 316; Franz v. Hilterbrand, 45 Mo. 121; Green v. Craig, 47 Mo. 90 ; Milw. $ St. Paul R. R. v. Arms, 1 Otto (IT.

Petition for Habeas Corpus. ought not to be construed as applying to sentences previously passed, as such construction would make it obnoxious to the inhibition of the constitution against ex post facto and retrospective laws, citing Costin v. Corporation of Washington, 2 Cranch C. C. 254; U. S. v. Hall, 6 Cranch 171; Colder v. Bull, 3 Dali. 386; Cooley Const. Dim. 272, 370; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483. 2.

<p>Distribution of Partnership Assets. A partner sold his interest in the firm to his co-partner, who agreed to pay the firm debts. The firm was at the time insolvent. After the sale the continuing partner gave a deed of trust on all the assets of the late firm to secure the payment of an individual indebtedness of bis own, which accrued prior to the dissolution. In a contest between a creditor of the firm and the individual creditor, Held, that the right of the former to be paid out of the firm assets in preference to tbe latter was not impaired by the dissolution, and as against him the deed of trust was a nullity.</p>

— Hon. D. L. Hawkins, Judge. argued that the indictment sufficiently averred the materiality of the facts sworn to, citing State v. Marshall, 47 Mo. 378; State v. Holden, 48 Mo. 93.

— Hon. Henry S. Kelley, Judge. _ 1. Tbe decree cannot be sustained upon tbe evidence. Plaintiff in bis form of action affirms tbe contract, seeks its specific performance, and bas failed to clearly make it out. Tbe evidence is clear and positive that tbe contract was as tbe defendants plead it, and tbe petition should bave been dismissed. {Paris v. Haley, 61 Mo. 453.) 2. Tbe court erred in the law of the case.

— Hon. William A. G-uyselman, Judge. The statute does not apply to injuries done at points where it would be improper, or is illegal for the railroad company to maintain fences. Indianapolis P. P. Co. v. Parker, 29 Iud. 471; Same v. Kinney, 8 Ind. 402; Same v. Oestel, 20 Ind. 231; Great Western P. P. Co. v. Morthland, 30 111. 457; Bennett v. Chicago Py. Co., 19 Wis'. 145; Davis v. Burlington P. P. Co., 26 Iowa 549; Packard v. III. Cent.

— Hon. John T. Redd, Judge. The 5th section of the damage act is as follows: When any animal or animals shall be killed or injured by the cars, locomotive or other carriages used on any railroad in this State, the owner of such animal or animals may recover the value thereof in an action against the company or corporation running such railroad, without any proof of negligence, unskillfulness or misconduct on the part of the officers, servants or agents of such company; but…

— Hon. Samuel A. Richardson, Judge Action to set aside the will of Joseph Cables, deceased.

— Hon. Thomas Whitaker, Judge At the time of the ejection from defendant’s train complained of in this action, a rule in force on defendant’s road prohibited the carrying of passengers on extra freight trains.

<p>Appeal from St. Louis Circuit Court. The case was tried before Hon. James K. Knight, one of the judges.</p>

Louis Court of Appeals. Plaintiffs and defendants engaged in the purchase and sale of whisky on joint account. Defendants did the buying. A settlement was made and the profits were divided on the basis of eighty cents per gallon as the cost of the whisky. Its actual cost to defendants was but seventy cents per gallon. This suit was brought to open the settlement and have the account re-stated.

— Hon. Gilchrist Porter, Judge. A petition was filed, in the county court of Audrain county, asking for an order approving a sale of real estate for the payment of debts made by an administrator, and directing his successor, one of the appellants, to make a deed to the purchaser, the respondent, and setting forth the facts, stated in the opinion of the court.

— Hon. R. P. Owen, Judge. The answer was framed on the theory that the administrator’s deed was void, because the sale was reported and approved by the probate court at the same term at which it was made, according to the former rulings of this court. urged that there was no prayer for auy relief whatever, while a prayer for some relief, general or special, must be stated, and is an essential part of the answer, citing Rutherford v. Williams, 42 Mo. 23 ; Peyton v. Rose, 41…

<p>1. _ A Judgment in personam against a married woman, is a nullity ; and this is true though she is sued as member of a mercantile firm.</p> <p>2. Practice: new parties. An objection to the action of the trial court admitting a new party to a suit comes too late, if made for the first time when the case has reached the Supreme Court.</p> <p>3. A Judgment against a Married Woman: under the statute OP AMENDMENTS AND jeopails (Wag. Stat., pp. 1034, 1036, 1037, % 6, 19, 20), a judgment at law against several defendants, one of whom appears by the record to be a married woman, may, in furtherance of justice, be amended by the court which rendered it, at a subsequent term, by'striking out the name of the married woman and permitting the judgment to stand as against the others.</p> <p>Pee Hough, J., Dissenting.</p> <p>4. Such a judgment is a mistake of law, and is erroneous, and can only be corrected on appeal or by writ of error; it is hot an irregular judgment within the meaning of the statute authorizing judgments to be set aside by the court in-which they were rendered for irregularity.</p>

Jos. P. Grubb, Judge. ■ 1. As the obligation was payable in merchandise, to be taken during the year, plaintiff could not recover without a demand on defendant and a refusal to pay according to the terms of the obligation. Labeaume v. Hill, 1 Mo. 42; Weil v. Tyler, 38 Mo. 545. 2. Plaintiff could not recover without first demanding payment, because the obligation was not a promissory note. Story, Prom.

— Hon. John T. Redd, Judge. 1. The agreement to pay compound interest is predicated upon a forbearauce to sue upon a valid claim, which is always a sufficient consideration to support a promise. Chitty on Cont., (11th Am. Ed.) Yol. 1, pp. 35, 36 ; Stewart v. Petree, 14 Am. Rep. 332. 2.

— Hon. Henry P. White, Judge. 1. A defendant, when charged with a capital offense, must be furnished with a copy of the indictment; he is not bound to look beyond the certified copy, and when this states no offense, the indictment should be quashed, or a correct copy furnished. 2 Wag. Stat, p. 1095, Sec. 2. 2.

— Hon. Thomas Whitaker, Judge. 1. The defendant cannot avail bimself in this cause of the defense that the mortgage given to Ewing was a valid one constituting a prior lien ' on the attached property; if he can, the mortgage and judgment of foreclosure cannot so inure to his benefit as to bring him within the line of decisions cited by his counsel, making him liable only for nominal damages.

<p>Bill of Exceptions. A bill of exceptions must be filed, in order to constitute a part of the record; and this must appear by an entry in the record proper; neither the indorsement of the clerk on the bill of exceptions, “ filed,” with day and date, nor the statement, by the judge that it is signed, sealed and made part of the record, nor both, will suffice, (following Fulkerson v. Houts, 55 Mo. 301, and other</p>

■ Appeal from Nodaway Circuit Court. — Hon. Henry S. Kelly. Judge. 1. The sheriff was clothed with ample power to sell the land at the time of the sale at which Jones purchased; a valid execution had issued upon a regular judgment. ■Buchanan v. Tracy, 45 Mo. 437. 2.

<p>Appeal from Johnson Circuit Court. — Hon. E. P. Wright, Judge.</p>

<p>Final Judgment. A judgment for costs with, an order of execution, hut without other disposition of the case, is not a final judgment, and no writ of error lies from it, (following Boggess v. Cox, 48 Mo. 278).</p>

— Hon. R. P. Owen, Judge. 1. This is a direct action between the parties to the deed of trust for the possession and determination of title to the very property claimed to be conveyed thereby, before the property had been demanded or had gone out of the defendant’s possession. It was competent to prove payment of the debt, and consequent extinguishment of the power to sell.

— Hon. Jos. P. Grubb, Judge. 1. The defendant, under its charter and ordinances, had no constitutional power under the same ordinance to provide one mode of taxation for merchants and an entirely different one for express companies, when the power to “ license, tax, &c.,” is contained in the same section. 2. Defendant had no power to license plaintiff’s business and tax it for revenue purposes, especially in the same ordinance.

<p>Appeal from Marion Circuit Court. — Hon. John T. Redd, Judge.</p>

Henry P. White, Judge. 1. Defendant could not waive the legal number of jurors in the manner shown by the record. Berry v. State, 10 Ga. 524; Terry v. Buffington, 11 Ga. 337; King v. Woolf, 1 Chitty 401; State v. Mansfield, 41 Mo. 470; State v. Klinger, 46 Mo. 224; Brownlee v. Hewitt, 1 Mo. Appeal Rep. 360. 1. The defendant- consented to a panel of 24 men, and 9 challenges, and thereby waived his privilege of striking off the statutory number.