Volume 68 — Missouri Reports

— Hon. Geo. W. Dunn, Judge. It is insisted that the proceedings in the probate court by the appellant for the sale of the land, instituted by her, was an adjudication in law, and the final order so made as aforesaid was in the nature and had the force and effect of a judgment. It was in a court having competent jurisdiction with all the parties interested and all the facts and subject matter before it.

— This ease was tried before B. F. Garrison, Esq., Temporary Judge. Suit to foreclose a mortgage given by defendant, Funk, to secure an unpaid balance of purchase money due plaintiff. Defendant Meyers, held another mortgage on the same land which he claimed was entitled to priority. The facts are fully stated in the opinion. 1. A deed and purcliase-money mortgage given at the same time must be construed together as one contract.

<p>1. Return of Indictment into Court. The failure of the record to show in express terms that the indictment was returned into open court by the grand jury, will not warrant the reversal of a judgment of conviction upon an indictment for murder. An endorsement upon the indictment as follows: “ A true bill, H. A. S., foreman. Piled October 7th, 1875. D. N. L.; Clerk,” is sufficient evidence that the indictment was duly found and returned.</p> <p>2. Absence of Prisoner during trial. The fact that the prosecuting attorney began his closing argument to the jury while the defendant was temporarily absent from the court room, will not warrant the reversal of a judgment of conviction in the absence of evidence that (he defendant was prejudiced thereby, or that any substantial portion of the argument was made before his return.</p> <p>8. A plea of not guilty waives the necessity of a formal arraignment.</p> <p>4. Evidence of Reputation. A witness who is well acquainted with a person whose character is in question, and lives in his neighborhood, will be allowed to testify to his general reputation although he may never have heard it discussed or questioned. ' Frequently the highest evidence which can be offered of character is of this negative kind.</p> <p>5. Rejection of such Evidence: ground for reversal, when. Where the court rej ects the testimony of two witnesses as to character, but afterwards admits the testimony of two others on the same point, it is ground for reversal. Sherwood, O. J., dissenting on last point.</p>

— Hon. Andrew Ellison, Judge. The judgment is a general liability against the county, and payable out of the common fund of said county, and it was the duty of the county court to direct its clerk to issue a warrant on the county treasurer for its payment. Wag. Stat., sec. 28, p. 414, lb., sec. 31, p. 415.

<p>Criminal Law: evidence : practice. On the trial of a criminal case a witness for the prosecution testified that he had been induced to leave the State, and had received money for that purpose. The evidence failed to connect the defendant with the transaction. But the judge and the prosecuting attorney instituted an inquiry for the purpose of showing by the witness that the parties implicated were certain officers of the law. The defendant having interposed frequent objections to the prosecution of this inquiry, the judge remarked in the presence of the jury: “ I am asking for this testimony. This case seems to have been born in sin and brought forth in iniquity. That is the reason I asked those questions. If the officers of this court, and of this city, of these United States, are to get before the grand jury evidence without preferring preliminary charges in the preliminary courts, and then buy off witnesses without any preliminary examination, I will see that they are brought to justice, and that, too, speedily, without any preliminary charges. If the defendant is not connected with it, it can be withdrawn from the jury by instruction.” But the evidence was not so withdrawn ; Held, that the conduct of the court was error, requiring the reversal of the judgment, and would have been error even if the evidence had been withdrawn.</p>

— Hon. William T. Wood, Judge. 1. The double-damage law is either compensatory or, punitive. It was intended to be the remedy by which a person should be compensated for damage to his stock, or, it may be regarded as a fine imposed or penalty inflicted upon the corporation for failure to feuce the road. Or, again, it may be considered as both compensatory and punitive. Gorman v. Pacific R. R., 26 Mo. 450 ; Trice v. TIann. ft St. Jo.

— TIon. S. A. Richardson, Judge. Indictment for sending a threatening letter. The statute makes it a felony to send a letter “threatening therein to accuse any person of any crime or felony whatever.” The letter was as follows : “W. B. Piper — Dear Sir: To make things satisfactory between you and me there are some old matters that must be settled, as we cannot get along as we should.

— Hon. E. J. Broaddus, Judge. 1. Horton being dead, plaintiff, who was his grantee, was not competent to testify to the execution of the deed, nor to explain the erasures and interLineations. Poe v. Domic, 54 Mo. 119 ; Johnson v. Quarles, 46 Mo. 423. 2. This action was brought to recover the southeast quarter of section 15, 55 north, 23 west, on the 28th day of February, 1872, almost three years after defendant went into possession.

— Iíon. G. H. Burck-HARTT, Judge. This was a suit for partition of a tract of land in Boone county, belonging to the estate of William Cochran, deceased. Defendant was widow of deceased, and the premises in question had been their homestead. Being found not to be susceptible of partition in kind, the property was sold by order of the court, bringing $7,900.

— Hon. E. J. Broaddus, Judge. 1. Each township in counties having adoped township organization, has the power to purchase and hold such personal property as may be necessary to the exercise of its corporate and administrative powers and no other. This is a limited power, a prescribed power, and the indictment must show that the property alleged to have been stolen was property which the township could hold and' own.

<p>Fence-rails, when part of the Freehold: sale: trespass: treble-damages. A person in possession of land under a contract of purchase,by the terms of which it is provided that a failure to pay at the time agreed upon shall work a complete forfeiture of his interest, has no right, after default made, to sell the fence-rails used to inclose the premises. The fence constitutes part of the freehold, and the fact that the rails may at the time be accidentally or temporarily detached from it, does not change their nature. A sale under such circumstances carries no title, and if the purchaser removes them, he becomes liable as a trespasser, but not necessarily in treble-damages.</p>

— ITon. S. A. Richardson, Judge. Indictment, under Wag. Stat., sec. 16, p. 455.

<p>1. Deed: signature in wrong name: certificate of acknowledgment. An instrument which purports in the body of it to be the deed of Henry Trigler, and which has appended to it a certificate of a justice of the peace, in due form of law, that Henry Trigler had acknowledged it to be his act and deed, is admissible in evidence as the deed of Henry Trigler, notwithstanding it is signed “Henry Trigtt;” but if the certificate is defective, it will not cure, the defect in the deed, and the deed will not be admissible.</p> <p>2. Statute of Limitations. Exclusive, peaceable and uninterrupted possession of a tract of land under color of title for a period of forty-five years, is sufficient to sustain an action of ejectment., Merchants’ Bank v. Evans, 51 Mo. 335.</p> <p>3. -: possession under a mistake of lines. Possession by adjoining proprietors of land up to what they both erroneously suppose to be the true dividing line between them, with no intention on the part of either to claim beyond the true line, will not work a disseizin in favor of either of any land so erroneously occupied by him. Tamm v. Kellogg, 49 Mo. 118.</p> <p>4. Instructions. If the only error in an instruction is that it requires one of the parties to prove more than he ought to be required to prove in order to make out his case, the adverse party cannot complain.</p> <p>5. Evidence of Unauthorized Survey. A witness will not be allowed to testify how another person, who was neither a county surveyor nor a deputy county surveyor, nor acting under the authority of the United States, nor by consent of the parties to the suit, had made a survey of the premises in controversy, nor what the results were. Under Wag. Stat., sec. 11, p. 1308, the survey itself, if offered in evidence, would be inadmissible. But the witness will be permitted to testify to everything that he may know about corners, lines and monuments from having been present and assisted in making the survey.</p>

<p>Appeal from St. Clair Circuit Court. — Hon. John D. Parkinson, Judge.</p>

<p>Error to Mississippi Circuit Court. — This case was tried before J. D. Poster, Esq., sitting as Temporary Judge.</p>

<p>Larceny. There can be no conviction of larceny without proof of the value of the property stolen; and unless the record shows that there was such proof, the Supreme Court will set aside a conviction although the error was not pointed out by counsel.</p>

<p>Appeal from Scotland Circuit Court. — Hon. John O. Anderson, Judge.</p>

<p>.Conditional Sale: bona fide purchaser without notice: laches: waiver. A conditional vendor .of personal property entitled by bis contract to retake the property in case of condition broken, loses bis right as against one who purchases from the conditional vendee bona fide and without notice of the condition, if the vendor is guilty of laches in asserting his right, or if his conduct has been such as to waive performance of the condition.</p>

<p>Appeal from Lawrence Circuit Court. — Hon. Jos. Cravens, Judge.</p>

<p>Practice. The Supreme Court will not review the rulings of the trial court on the admissibility of evidence, unless the attention of the latter court has been called to the supposed error by the motion for new trial. It is not sufficient that exceptions were duly taken at the trial.</p>

Petition for Mandamus. The respondent was judge of the Rallscircuit court. The first bill of exceptions was found, the second time, after these proceedings were instituted. The other facts appear in the opinion.

<p>Appeal from Caldwell Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

<p>Municipal Corporation cannot delegate its Legislative Powers: wharves. It is well settled that the legislative powers of a municipal corporation cannot be delegated. They are in the nature of public trusts conferred upon the legislative assembly of the corporation for the public benefit, and cannot be vicariously exercised. Hence, a city authorized by its charter to erect, repair and regulate public wharves, and to fix the rate of wharfage thereat, cannot lease its wharf, or farm out its revenues, or empower any one else to fix the rates of wharfage; and a contract whereby the city undertakes to do these things is void.</p>

— Hon. D. L. Hawkins, Judge. The indictment upon which defendant was tried, consisted of two counts. The first charged a rape upon a female under the age of twelve years; the second, an assault to commit a rape upon the same female. Roth related to the same act. The jury returned a verdict, finding the defendant guilty as charged in the first count, but silent as to the second.

— The case was tried before G. W. Crow, Esq., sitting as Temporary Judge. On the 13th day of October, 1874, defendant, as local agent in Jasper county, Missouri, of the National Insurance Company, of Philadelphia, Pennsylvania, issued to the plaintiffs a policy of insurance • in-that company, for which they paid him a premium of $37.50. Defendant immediately sent the money to the company in the regular course of business.

— IIon. R. P. Owen, Judge. Indictment for an assault with intent to kill. The evidence, on the part of the State, tended to prove that defendant went to a store at Coldwater, in Wayne county, to buy coal oil; that as he entered thfe door, one Wakefield, who was already there, cálled out from the opposite side of the store, “ There is Cal.

— Hon. Foster P. Wright, Judge. The only statement in the policy as to ownership was the word “ his ” before the description of the property insured. This taken in connection with the condition as to the statement of the interest of the insured imports an absolute and entire ownership. Clay F. and M. Ins. Co. v. Huron Salt and Lumber Co., 31 Mich. 346; s. c., 14 Am. Law Reg. (N. S. ) 460 ; and this amounts to a misrepresentation, which avoids the policy, Catron v. Tenn. Ins.

<p>1. Insurance: effect of proofs of loss as evidence when offered by the company. When an insurance company, being sued upon a ■ policy, defends upon the ground that the plaintiff fraudulently overvalued the property destroyed for the purpose of obtaining the insurance money, and, as a basis of proof, offers in evidence the sworn proofs of loss furnished by plaintiff, that does not make them evidence of the loss in favor of plaintiff. They are only evidence of the fact that they were made and delivered to the company. The principle, that when declarations of a party are introduced in evidence by his adversary, they are to be considered by the jury, as well for the party making as for the party offering them, has no application.</p> <p>2. Instructions. Where the ground upon which a case is defended is fully, fairly and distinctly presented to the jury by several instructions, the fact that another instruction ignores some of the evidence bearing upon the point is not ground for reversing the judgment-</p>

— IIon. E. J. Broaddus, Judge. This was au indictment for obtaining goods by false pretenses.

— Hon. E. J. Broaddus, Judge. argued that the circuit court erred in holding that the judgment of the probate court could be collaterally impeached by awarding to the widow what'had been adjudged to the heirs, citing State v. Todd, 57 Mo. 217 ; Lewis v. Williams, 54 Mo. 200 ; Brent v. Grace, 30 Mo.253 ; Mitchell v. Williams, 27 Mo. 399; Bicot v. Bates, 47 Mo. 390; Acock v. Acock, 57 Mo. 154; Dilworth v Rice, 48 Mo. 124; Henderson v. Henderson, 55 Mo. 535 ; Freeland v.…

— TIon. IT. P. White, Judge. Even if the city could successfully defend an action brought to enforce collection of this certificate on the ground that it was issued without authority, it does not follow that it is not an instrument calculated on its face to deceive any one to whom it might be offered. Our statute is very comprehensive, and includes every instrument or writing whereby a pecuniary obligation purports to be created.

— Hon. Wm. H. H. Hill, At the August term, 1875, of the Cass county probate and criminal court, the defendant was indicted for grand larceny. On his application the venue of the cause was changed to the criminal court .of the sixth judicial circuit and the county of Johnson, within andfor Johnson county.

<p>Widow’s Allowance of Personalty cannot be taken out of Proceeds of Real Estate. If a widow postpones her application for .the allowance of personalty out of her deceased husband’s estate, to which she is entitled under Wag. Stat., sec. 35, p. 88, until after the administrator has used the personalty in payment of debts, she loses her right, and her loss will not be made good to her out of the proceeds of real estate subsequently sold to pay the remainder of the debts.</p>

<p>A Bill of Exceptions, filed after the term, will not be considered, unless it appears by an entry of record that the opposing party consented to the filing. An entry showing merely that he was present when the court gave the appellant leave to file it out of time, is not sufficient ; nor will the defect he cured by an entry subsequently made by the clerk in vacation reciting that consent was given.</p>

<p>1. Forcible Entry and Detainer: parties dependant : agent. A writ of restitution in an action of forcible entry and detainer, will not necessarily be unavailing because the persons who were living upon the land at the institution of the suit were not made defendants. If they were the servants of the person who was made defendant, they can be dispossessed under the writ; and the fact that the defendant does not live in the county where the land lies does not alter the case.</p> <p>2. Upon an examination of the testimony offered by the plaintiff to prove that he was in possession at the time of the forcible entry complained of, the court is of opinion that it is ample to sustain the verdict, which was rendered in favor of the plaintiff.</p>

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

<p>1. Mistaken Possession, when Adverse. If one takes possession of the land of another, believing and claiming it to be his own, his possession, is adverse. It is only where he occupies by mistake and with no intention of claiming any thing which does not belong to him, that it is not adverse. See Uoux v. Baiteen, ante, p. 84.</p> <p>2. • Adverse Possession: pkoposal to buy conflicting claim. A proposal from one in the possession of land to buy out the holder of the true title, does not necessarily amount to a recognition of this title, or an acknowledgment that the possession is not adverse.</p>

— Hon. E. J. Broaddus, Judge. Tbis was an action of ejectment for a parcel of land described in the petition, as follows: That part of the southwest quarter of section 13, township 57, range 28, situated and lying within the following boundaries in the town of Hamilton, as described on the plat of said town : beginning on the north line of the right of way of the Hannibal & St. Joseph Railroad where the same is intersected by Burrows street, thence north along said street…

— ITon. ¥m. IT. H. ITill, Judge. The appellant, who was the former clerk of the county court of Layfayette county, was indicted at the June term, 1875, of the criminal court, for fraud in office. The indictment contained three counts, the second of which was abandoned at the trial.

<p>Appeal from Scotland Circuit Court. — IIon. John C. Anderson, Judge.</p>

— IIon. W. F. Geiser, Judsre. ? This was a suit upon two promissory notes executed, by W. J. Teed, in the name of W. J. Teed & Co. Plaintiff sought to charge defendant, McCann, as a member of that firm. Teed swore that he was a member. McCann swore that he was not.

<p>Appeal from Polk Circuit Court. — Hon. R. W. Pyan, Judge.</p>

<p>Appeal from Lafayette Circuit Court. — Hon. ¥m. T. Wood, Judgé.</p>

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

<p>Perjury: false return to town assessor. An indictment for perj ury charged the defendant with making a false affidavit to a return of his taxable personal property to a town assessor. There was no averment that the town was vested with the power to appoint an assessor and levy taxes, or that defendant was a resident of the town, or that there was any ordinance or law requiring defendant to make the affidavit. Held, that for want of these averments the indictment was insufficient. They ought to have been made in order to enable the court to determine whether the town could require the assessment of defendant’s personalty, and whether it could require him to make the affidavit.</p>

Louis Court of Appeals. This was an indictment for stealing a rosewood coffin of the value of $35, the property of one Merkel.

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

— Hon. E. J. Broaddus, Judge. Plaintiffs brought this suit as administrators of John B. Leeper, deceased, upon a note executed by defendant in favor of said Leeper, the consideration of which was a title bond by which Leeper bound himself to make a deed to defendant for certain real estate when the note should become due, provided it was then paid.

— Hok. E. J. Broaddus, Judge. This was an action instituted February 19th, 1875, against Graves andHeidel, to recover possession of a stock of goods alleged in the petition to be detained by them. The answer denied the allegations of the petition, and averred that the goods were the property of Lavina A. Heidel,'wife of defendant Iieidel, and that he alone was in possession as her agent and business manager.

Error■ to Perry Circuit Court. — Hon. Louis F. Dinning, Judge. This is an action of ejectment brought by Mary Caho and Henry Caho, her husband, to recover a tract of land in Perry county. The land originally belonged to Mrs. Caho, but in February, 1871, she and her husband conveyed it to defendant, Endress. At the time of making this conveyance she lacked a few days of being twenty-one years of age.

<p>1. Upon an examination, of the evidence, the court affirms the judgment of the court below, holding that the weight of evidence is against the appellant.</p> <p>2. Laches. The testator of defendants having bought certain land in his own name at a sale made by order of the county court on the 23rd day of April, 1873, to satisfy a school mortgage, on the 20th day of September, 1873, sold it at an advance, and, on the 2nd day of January, 1874, died. The county court knew of the purchase by the deceased soon after it was made. On the 18th day of June, 1874, the county brought this suit to recover.of defendants the profits made by deceased on the re-sale, claiming that he was acting as agent of the county. Held, that if the county ever had a cause of action it had been guilty of such laches as made it doubtful if this suit could be maintained.</p> <p>Hough., J., dissented, holding that there was no laches.</p>

<p>Sureties on Collector’s Bond: effect of legislation extending time foe settlement. A change in the law by which the time for the annual settlements of county collectors is fixed a month later than that provided in the former law, and additional time is allowed in which to pay after settlement, operates to release the sureties on a collector’s bond executed before the change. The effect of such a change is to postpone the State’s right of action against the collector; and the rule that an extension of time given to the principal releases the surety, applies as well between the State and an individual, as between individuals.</p>

<p>Partnership: landlord and tenant feeding cattle on shares. An agreement between landlord and tenant, as a part of the consideration for the lease of a farm, that the landlord shall furnish stock enough to eat the hay, oats and corn raised on the demised premises, the tenant to feed the stock, and, upon sale being made, the landlord to be repaid his purchase money first out of the proceeds, and the remainder to be equally divided between the parties, does not constitute them partners in respect of stock bought and fed under the agreement.</p>

<p>Appeal from Phelps Circuit Court. — Hqn. Y. B. Hill, Judge.</p>

— IIon. V. B. Hill, Judge. This suit was brought by Frost as administrator of the . individual estate of Frank Deegan, deceased, upon a bond executed by Creusbauer, as principal, and the other defendants as sureties. Creusbauer and Deegan had been partners in business, and Creusbauer administered upon the partnership estate, and as administrator 'gave the bond sued on.

— Hon. W. E. Geiger, Judge. This was a suit to recover of the defendants $46, the amount of a note executed by one JBollman in favor of plaintiff. The petition' alleged that Bollman, to secure the note, had given plaintiff a second mortgage on 40,000 bricks, and had afterwards sold the bricks to the defendants at $8 per thousand, with the express understanding that defendants should pay plaintiff’s note, and that they had failed to pay it.

— Hon. J. B. Robinson. Judge. This was indictment charging the defendant witli having unlawfully and directly sold intoxicating liquors in less quantities than one gallon, to-wit: one pint of whisky, without having taken out a license as a dramshop keeper, and without having any legal authority to make such sale, against the provision of the statute, &c. To this indictment a demurrer was interposed, alleging as grounds of objection that it was founded on section 1, page 46,…

<p>Fraudulent Conveyances : change op possession. A merchant tailor having sold his stock of goods to a journeyman employed in his shop, absented himself from the county for a few days, during which time the goods were attached as his property. The purchaser was left in possession, but no notice was given of the sale, and no one knew of it hut the parties and the attorney who drew the bill of sale. The same sign remained up over the door of the shop, and the same business advertisement was continued in the local paper. Held, that there was no such open, visible and unequivocal change of possession as would apprise the community, or those accustomed to deal with the vendor, that the goods had changed hands, .and that the sale was, therefore, void under the statute relating to fraudulent conveyances. (Following Wright v. MeCormiak, 67 Mo. 426, and other cases.)</p>

— Hon. E. J. Broaddus, Judge. This is an indictment charging the defendant with shooting at one George Gartin, in a case and under circumstances which would have constituted manslaughter if death had ensued. Defendant was convicted and appealed to this court.

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

— Hon. John T. Redd, Judge. The following are the instructions referred to in the opinion of the court, as. having been given by the court below on its own motion: 1.

<p>Appeal from Livingston Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

— Hon. J. P. Grubb, Judge. The question of the jurisdiction of the court over the subject matter may be raised at any stage of the proceedings. Hannibal, §c., R. R. Co. v. Mahoney, 42 Mo. 467 ; State v. Lawrence, 45 Mo. 543. The jurisdiction vested in probate courts is exclusive. Dodson, Admr., v.- Scruggs, Admr., 47 Mo. 285; Cones v. Ward, Admr., 47 Mo. 289; Titterington, Admr., v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 271.

— Hon. A. J. Seay, Judge. Indictment for forgery. The indictment was in the following words : State oe Missouri, 1 County of Franklin, j In the circuit court of said county of Franklin, November term, 1875: The grand jurors of the State of Missouri, now here in court duly empanneled, charged and sworn to inquire within and' for the county of Franklin aforesaid, upon their oath do present that William R. Bibb, late of the county of Franklin aforesaid, at and in the county of…

Louis Circuit Court. — Hon. Jas. K. Knight, J udge. The first instance in which the office of receiver is alluded to in the legislation of this State is found in the practice act of 1849, which abolishes the distinction between actions at law and suits in equity. By article 10 of that act it is provided: “Sec. 1.

— Hon. F. P. Wrisht, Judge. The authority of Ridgely, the agent, was that of a broker. A broker has no authority as such virtute officii to receive payment for goods sold by him; and if payment is made to him by the purchaser, it is at his own risk. Story on Agency, § 109; Dunlap’s Paley on Agency, § 270; Higgins v. Moore, 34 N. Y. 417.

— Hon. Joseph Cravens, Judge. Indictment quashed for insufficient averments. State appeals. .The indictment was found under Wag. Stat., sec. 35, p. 458, for embezzling money of a co-partnership; and the names of the individual partners is immaterial. Wag.

<p>Appeal from Howell Circuit Court. — Hon. J. R. Woodside, Judge.</p> <p>Indictment for murder. The facts are stated in the opinion.</p>

— Hon. H. G. Wilson, Judge. cited Lewis v. Moffett, 11 111. 398; Marsh’s Appeal, 69 Pa. St., 30; Bradford v. Kimberly, 3 Johns. Ch. 431, and Story on Partnership, § 182. It is well settled that one partner is not entitled, as against the other partners or the firm, to any compensation, commission or reward for his skill, labor or services employed in the partnership business, unless there be an express agrément to that effect.

— Hon. G. W. Miller, Judge. Indictment for murder in the first degree for the killing of one Barbara Citawatca, the defendant’s step-daughter.

Louis Court of Appeals. Proceeding by certiorari to bring up the record of the board of equalization of the city of St. Louis.

<p>Appeal from Greene Circuit Court. — Hon. W. E. G-eiger, ' Judge.</p>

— Hon. E. J. Broaddus? Judge. The plaintiff asked the following iristructions, which were given by the court: 1.

<p>Husband and Wife: land, entry of: resulting trust. Where a husband has entered land in his own name with money belonging to his wife’s separate estate, because of a regulation of the land office, it is his duty, although, he may be in embarrassed circumstances, to convey such land to a trustee for her benefit.</p>

— Hon. ¥m. T. YVFod, Judge. The following instructions were given for plaintiff: 1.

— Hon. G. D. Burgess, Judge. This action was brought against Williams, the occupant, and afterwards Erskine, his landlord, was, by agreement,… Held: possession of the lands in dispute as the tenant of W. S. Donahoe, from that time up to about 1864, and then turned said possession over to Reams, and that Reams kept and held said possession up to February 10th, •1866, and then transferred the same to Hamilton DeGraw, then the jury are instructed that the sheriff’s deed to…

— Hon. John T. Redd, Judge. 1. James Clark’s declarations 'should have been excluded, because made in reference to his title and not his possession. Darrett v. Donnelly, 38 Mo. 492; McBride v. Thompson, 8 Ala. 650 ; Maus v. Sturtevant, 23 Ala. (N. S.) 664. 2. The letter and proofs in the pre-emption proceeding should have been admitted for the purpose of showing the character of Clark’s possession ; they would have shown that the land was not subject to pre-emption.

— Hon. ¥m. T. Wood, Judge. This action was brought before a justice of the peace by the plaintiff, to recover of defendant one-sixth of the costs of a judgment, obtained against plaintiff and defendant and five others, one of whom was insolvent; which costs the plaintiff alleged he was compelled to pay, and did pay by a sale of his property under execution. On appeal to the circuit court judgment was rendered for the defendant.

— Hon. V. B. Hill, Judge. This was a suit in equity to correct a misdescription in and to foreclose a deed of trust. The suit was brought by Nulsen, Mersman and Seay, against E. M. Wishon, Dodd & Brown and Creusbauer, the latter being but a nominal defendant.

<p>1. Homestead: wife living apart from her husband. Whilst a marriage de jure exists, the husband is the head of a family, although composed only of his wife, who has left him; and although living apa^rt from him at the time of his death, the wife is, under the homestead act of 1865, (Gen. Stat. 1865, p. 449,) where there are no minor children, entitled to the homestead.</p> <p>2- -. Where a dwelling house and appurtenances were situated on an eighty acre tract in which the occupant had only a life estate, Held, that under the homestead act of 1865, upon his death, the right of homestead in his widow would attach to the remaining part of the farm which was owned by him in fee simple, and that she would be entitled to receive, in fee, a portion not exceeding 160 acres in quantity, nor $1,500 in value.</p> <p>3. -: head of a family. Where the owner of a farm rented the same, and occupied but one room in the house, upon an agreed division between himself and his tenant of the profits and expenses, for the purpose of securing to himself the services and attention of the tenant and his family, Held, that this did not make the tenant the head of the family, nor deprive the owner of the control over the house previously exercised by him.</p> <p>4. -: jurisdiction of probate court. The probate court having jurisdiction of the estate of a deceased housekeeper, or head of a family, has authority, under the statute, (1 Wag. Stat., § 5, p. 698,) to make the necessary order on an administrator to surrender to the party entitled, the possession of a homestead.</p>

— Hon. ~W. F. Geiger, Judge. The instructions asked by plaintiff and refused, and referred to in the opinion, are as follows: 1. In considering the damages (if any) accruing to the defendant from the opening of said street, the jury will not take into consideration any 'consequential damage, but must consider only the direct and immediate damage to said lot. 2.

<p>■Change of Venue: jurisdiction. Plaintiff brought suit in the circuit court of Phelps county for damages sustaiued by the obstruction of a water-course. On the application of defendant, the suit was removed to the circuit court' of Dent county. After the filing of the transcript in the latter court, an order was there made returning the transcript to the first court. In that court defendant appeared and filed a motion to strike out' a part of plaintiff’s replication, which was sfistained. Thereafter, on plaintiff’s motion, the cause was removed to the circuit court of Crawford county, where, after the filing of the transcript, and on motion of defendant, the suit was dismissed for want of jurisdiction; Held, error.</p>

— Hon. E. J. Broaddus, . J udge. 1. To constitute adverse possession, two facts must concur: 1st, There must be an entry, under color of right, claiming title hostile to the true owner and the world. 2nd, That entry must be followed by possession, and appropriation of the premises to use, publicly and notoriously, so that other claimants may take notice, and others may he cognizant of the fact. Dixon v. Cook, 47 Miss. 220, 226-; Turner v. Hall, 60 Mo. 271. 2.

Joseph Cravens, Judge. In this indictment a different and distinct felony of the same grade is charged in each count. The first count charges that Arnol Stultz shot in the back and killed deceased with a pistol, and that defendant and Carver were present, aiding and assisting him in the killing. The second count charges that defendant stabbed and cut in the breast and killed dece.ased.with a knife, and that Stultz and Carver were present aiding him in the killing.

— Hon. F. P. Wright, Judge. The facts of this case will be found in a ‘former report in 60 Mo. 581. The following are the instructions given and refused on the second trial. On the part of plaintiff the court gave the following instructions: 1.

— Hon. Joseph Cravens, Judge. The deed from M. M. James, referred to in ihe opinion, was elated February 28th, 1874, and was executed in pursuance of an order of court upon him, as acting administrator of Alexander Orchard, to make a deed to the defendant, as assignee of William T. Orchard, under his purchase at the administration sale made by Clisby Robinson, the former administrator, who died in 1861. His successor, M. M. James, was appointed October 3rd, 1873.

<p>Error to Lawrence Circuit Court. — Hon. Joseph Cravens, Judge.</p>

— Hon. G-. Porter, Judge. Petition filed May 5th, 1875, for goods sold and delivered by plaintiff to defendant, George Beardsley. On the same day an attachment was issued and levied upon a stock of general merchandise, the property of defendant, Beardsley.

<p>1. The Word “ Release,” following the words 11 grant, bargain and sell,” in a deed, Held, not to restrict the meaning of these words so as to destroy the covenants which by statute they import.</p> <p>2. Deeds. The consideration clause in a deed is always open to explanation.</p>

— Hon. Joseph Cravens, Judge. Defendant was arrested and committed to jail upon a charge of horse stealing on the 8th day of August, 1877. The other facts appear in the opinion of the court.

— Hon. Joseph Cravens, Judge. Action by Frederick Hisaw against P. B. Sigler and A. Gann, as makers of a promissory note. Pending the suit Frederick Hisaw died, and the cause was revived and continued in the name of-William Hisaw, his administrator.

<p>1. Administrator: title to property. The doctrine of the common law that an administrator takes the property of the intestate in absolute ownership does not prevail in this State; and the power of the personal representative of the deceased to dispose of the assets is limited and regulated by statute.</p> <p>2, Administration: “ creditor of ti-ie estate.” Wagner’s Statute, section 40, page 89, authorizing the executor or administrator of any estate to assign any note or bond of the estate to any creditor, legatee or distributee, in discharge of an amount of his claim equal to the amount of such note or bond, does not permitan administrator to assign a note belonging to the estate under his charge, to a person who is jointly liable with the estate upon a note to a third person. The joint obligor is not a creditor of the estate, though he may become such by paying off the note.</p>

. — Hon. Wm. T. Wood, Judge. Wagner’s Statutes, sec. 42, p. 1251, provides that * * “ on the forfeiture of such, (county treasurer’s) bond, it shall be the duty of the county clerk to collect the same for the use of the schools in the various townships.

<p>1. Equity will Believe against Fraudulent Judgment. A court oí equity will relieve against a judgment obtained against a defendant by a fraudulent combination between his co-defendants and the plaintiff; but this jurisdiction is rarely and reluctantly exercised. The case ought to be a very plain one to authorize interference.</p> <p>2. Disqualification of Convict as Witness. A person who has been convicted of obtaining money under false pretenses, and has been sentenced to the penitentiary, is not a competent witness; and the fact that his sentence has been suspended by an appeal and order of supersedeas does not remove or suspend the disqualification.</p> <p>3. Agreement before trial to Belease one Defendant, no fraud on his Co-defendants. The fact that before the trial of a cause an agreement was made between the plaintiff and one of the defendants that the latter should be released on paying a very small part of the demand, does not, of itself, render a judgment subsequently obtained against all the defendants fraudulent as respects one of them who was not aware of the agreement.</p>

<p>Taxation of Railroad Property. Under the act of 1875, providing for the assessment of railroad property and the collection of taxes thereon, (Acts 1875, p. 120,) railroad companies were liable to pay taxes for the year 1876, on their property owned -August 1st, 1876, at the same rates as were levied on all other property in the State owned August 1st, 1876, for the year 1877. They could not be assessed at the rates imposed upon other property for taxes of 1876.</p>

<p>1. Witness: death oe one op two adverse parties. Where the ■contract sued on was made on the one side by two persons, one of whom has since died, that fact does not disqualify the adverse party from testifying in the case.</p> <p>2. Practice. An objection to evidence comes too late when made for the first time in the Supreme Court.</p> <p>3. Instructions upon a theory of the case not presented by the pleadings, are properly refused.</p>

<p>1. Petition: amendment. The original petition stated that the defendant, by its agents and servants, recklessly, carelessly and negligently caused one of its trains to strike, wound and kill one Moody. The amended petition, filed after the statutory time, charged that by the negligence and unskillfulness of the defendant’s employees while running said train, the said Moody was struck and killed; Held, that the amendment set up no new cause of action.</p> <p>2 Evidence: “train rules.” Certain “train rules” made by the defendant and another company, regarding a track used by them jointly, but 200 miles distant from the place where the injury occurred, Held; irrelevant and inadmissible.</p> <p>3. Crossing Railroad Track: contributory negligence. Moody, the postmaster at Webster station on defendant’s road, was in the habit of carrying the mail to one of its mail trains which stopped at the station at about 8:40 p. m. His office was near the station but across the track. Hearing a train approach at about the time the mail train usually passed, he picked up his mail bags and started to cross the track to the platform. The train was then 1200 feet distant, but running at great speed. Relying upon its stopping, he continued on bis way, and was struck by the locomotive and killed. The testimony was conflicting as to whether the bell was rung or the whistle sounded. The train was a freight train, which, on account of the mail train being behind time, had been ordered to go on without stopping, and passed Webster station at the very time the mail train would have passed had it been on time; Held, that Moody was guilty of contributory negligence, and his representative could not recover.</p>

— Hon. GL II. Burckhardt, Judge. Action on a promissory note for $1,200, brought by the respondent against the appellants. The case was tried, at the August term, 1874. Neither party requiring a jury, the cause was submitted to the court which rendered a verdict for the respondent for the amount of the note and interest.

<p>1. Pleading: damages. A petition which seeks to hold defendants liable for-failure to proceed with diligence to collect anote, is fatally defective if it fails to allege that plaintiff was damaged by the failure.</p> <p>2. Pleading: conversion. If the cause of action relied on is the conversion of plaintiff’s property to defendant’-svuse, that fact should be directly alleged in the petition. It is not sufficient to allege it inferentially, or to state facts which constitute the evidence of conversion.</p> <p>3. Conversion- The facts alleged in the petition in this case, Held, not to constitute a conversion.</p>

Louis Circuit Court. This was a suit for the partition of certain real estate in the city of St. Louis.

Louis Court of Appeals. This was a suit on a contract of re-insurance against loss by fire, brought by the plaintiffs, Gantt and Strong, as trustees for Hening & Pearce, surviving partners of the firm of Hening & Woodruff. The facts are as follows : On the 9th day of June, 1864, Hening & Woodruff sustained a loss by fire of 700 bales of cotton, valued .at $280,000, on the steamer Progress, on a voyage between the mouth- of Red river and the mouth of the Ohio.

— Hon. R. E. Cowan, Judge. That the ordinances of a municipal corporation cannot be attacked for an error of judgment, or an apparently unwise exercise of discretion, is true. But, however broad may be the powers of legislation granted to a corporation, however varied the subjects they may affect, or however large the discretion intrusted to it, its ordinances must submit to the test of reasonableness.

<p>Constitution of 1865, Double Liability of Stockholders. Under section 6 of the constitution of 1865, as amended, a stockholder in a corporation can not be made liable to a creditor when his stock is fully paid up. Schricker v. Ridings, 65 Mo. 208 followed.</p>

<p>1. Executions: money in custodia legis. Money in the hands of a sheriff collected on execution is in custodia legis, and is not subject to levy on a subsequent execution against the plaintiff in the first.</p> <p>2. -: attachment — sale : proceeds in hands op sheriff. Personal property of W. was seized under an attachment, and being of a perishable nature, was sold by the sheriff and the proceeds deposited in a bank on his general account. The attachment was after-wards dissolved and an execution issued for the amount of tne debt, which was delivered to the sheriff with directions to levy the same on the money in his hands; Held, that the money so held by the sheriff could not be the seized on execution.</p> <p>3. Res Adjudieata. Plaintiffs having, in the court below, filed a motion for an order to compel the sheriff to levy on certain moneys, the court refused the order. They then, on their own motion, became parties to a garnishment proceeding, involving the same moneys, in which the judgment went against them. Held, in a suit on the bond of the sheriff for failing to make the levy that the rights of the parties were res adjudieata.</p>

— Hon. G-. H. Burckhartt, Judge. 1. Instruction four is a literal copy of the sixth instruction in State o. Jennings, 18 Mo. 442. That ease and the one at bar are dissimilar, and as that instruction is an innovation of the common law, the ruling ought not to be extended. In every killing which is not excusable or justifiable homicide, this instruction may with equal propriety he given, and if its latitude be not circumscribed, then by the phrase “other felony” in Wag.

Appeal from Butler Circuit Court. Suit on administrator’sbond — the caption of the petition being as follows : “ The State of Missouri to use of Richard O. Edwards, plaintiff, v. George T. Bartlett, Green L. Poplin, Benj. E. Turner, defendants.”

— Hon. H. L. Kelley, Judge. A will or devise is a disposition of property to take effect after tbe death of the maker. Burrell’s Law Die., vol. 2, p. 622; Bouvier’s Inst., vol. 2, p. 431; Bouvier’s Law Die. The instrument in question is a will and not a deed.

<p>Appeal from Jackson Criminal Court. — Hon. H. P. White, J udge.</p>

<p>Appeal from Cass Common Pleas Court. — Hon. J. H. Page, Judge.</p>

— Hon. R. W. Eyan, Judge. Mrs. Nelson’s conduct amounted to negligence per se, directly contributing to tbe injuries complained of; hence the court should have so declared, by directing that plaintiff be non-suited. Flemming o. W. P. R. R. Co., 49 Cal. 253; Richmond, v. 8. V. R. R. Co., 18 Cal. 351; Gray o. Winter, 34 Cal. 153; Kline v. G. P. R. R. Co., 37 Cal. 400; Needham o. 8. F. $ 8.

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

— Hon. Saml. L. Sawyer, Judge. This was a suit to recover the amount due upon two ■assessments on a stock-note given by Nehemiah Holmes, ■deceased, to the plaintiff company. It appeared at the trial that the assessments were ordered at special meetings of the board of directors, that a quorum of the board was present at each meeting and that Holmes, in his life-time, had paid a portion of the first assessment, bufnopart of the •other.

— ITon. Joseph Cravens, Judge. The court gave the usual instruction as to reasonable doubt, and added that “ a captious doubt, or mere possibility of innocence, is not to be regarded as a reasonable doubt.”

<p>Error to Johnson Circuit Court. — Hon. E. P. Wright, Judge.</p>

— Hon. G. Porter, Judge. This was a suit brought by Robert O. Barnum, as guardian and curator of his minor children, Eannie O. and Lucy D. Barnum, against Charles Bobb and Martha E. Bobb, his wife, and A. H. White, the object of which was to enjoin White from delivering to Mrs. Bobb a deed for certain lauds in the petition mentioned, sold by him under a deed of trust, and to have a certain note for $2,600, secured by a second deed of trust, decreed to be a first lien upon…

<p>Appeal from Jackson Special Law and Equity Court. — Hon. R. E. Cowan, Judge.</p>

1. Plaintiffs’ eighth instruction ought to have been given. Hickman v. Griffin, 6 Mo. 37. 2. Defendant’s first instruction is not the law.

— Hon. H. P. White, Judge. Prosecution for a violation of an ordinance of the City of Kansas entitled “ An ordinance to protect dramshop keepers,” approved July 17th, 1875, apd passed under authority of the act of 1875, page 206, section 17, giving-power to the city “ to restrain; 'regulate and prohibit the selling or giving away of any intoxicating or malt liquors by any persons within the city, other than those duly licensed ; to forbid and punish,-, the selling or giving…

— Hon. E. P. Wright, Judge. Real estate is not assets. State v. Price, 17 Mo. 431; State v. Modrell, 15 Mo. 421; State v. Collier, 15 Mo. 293; Kellogg v. ' Wilson, 7 Cent. Law Jour. 277. The breaches alleged in the bond are a failure to sell real estate, and to make annual settlements, by neither of which was the plaintiff injured. There is, therefore, no cause of action. Williams on Executors, 1507,1509 ; Polk v. Farrar, 12 Mo. 356; Saulsbury v. Alexatider, 50 Mo.. 142.

<p>Error to Jackson Circuit CoijfaL — Hon. Sam’l L. Sawyer, Judge.</p>

- — Hon. G. D. Burgess, Judge. 1. The note and deed of trust were executed contemporaneously, and were dependent on each other; the deed of trust providing that the notes could be declared due for a failure to pay the annual interest. ' This contract governed and controlled the time for the payment of the notes. 2.