Volume 69 — Missouri Reports

<p>Appeal from Osage Circuit Court — Hon. A. J. Seay, Judge.</p>

<p>City Attorney: powehs cannot be delegated, when. The charter of the City of Kansas provided that “a warrant shall issue in.favor of the city * for a violation of any ordinance * * when any person- shall make oath or affirmation that such a violation has been committed, or upon information by the city attorney.” Neither the charter nor any ordinance of the city authorized the appointment of a deputy city attorney; Held, 1st, that the power • thus provided for must be exercised by the city attorney in person, and could not be delegated to a deputy; 2nd, that a complaint made by a deputy could not afterwards be adopted by the city attorney as his own.</p>

<p>1. Ejectment: improvements: when and where recoverable. An action under Wag. Stat., section 21, page 561, by a defendant in an ejectment suit against whom a judgment for possession has been rendered, to recover compensation for improvements made in good faith on the land prior to the action of ejectment, must be brought in the court in which such judgment was rendered, and before eviction from the premises.</p> <p>2. Judgment: form. The statute does not authorize an absolute judgment for a pecuniary recovery in favor of the occupying claimant.</p>

<p>Ordinance: repeal : condition. A city having power, under its charter, to pass ordinances, may likewise repeal them on such conditions as are reasonable and just. The repeal of an ordinance to suppress gaming, except as to offenses committed and forfeitures incurred previous thereto ; Held, valid.</p>

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

<p>Appeal from, Jackson Circuit Court. — Hon. S. H. Woodson, Judge.</p>

— Hon. R. P. Owen, Judge. Plaintiff sold to defendant a farm and took a note in part payment. .The latter afterwards exchanged the farm for another, and moved on to it with his family. Plaintiff obtained a judgment on the note and issued an execution thereon. The sheriff- made á return setting off- the farm as a homestead, whereupon plaintiff- filed a motion to quash the return. Motion overruled. Plaintiff appeals.

<p>Administrator’s Sale: report of'sale: insufficient deed : purchaser’s equity for a deed. In an action of ejectment it appeared by the records of the probate court that a sale of several parcels of land had been made by an administrator in obedience to an order of the court, and had been approved by the court. It appeared, also, that the purchase money had been paid in full, and the purchaser had been put in possession of the tract in controversy by the administrator, but the deed, which he received, did not in terms describe the land. It did, however, use the description employed in the report of sale, which, after enumerating several tracts by their numbers, stated that they contained in the aggregate 353 74-100 acres. It was shown by parol evidence that all the lands of the decedent amounted to exactly 353 74-100 acres, including the tract in controversy, and that they constituted a farm, the dwelling house and orchard of which were on this tract. Defendants claiming under this sale; Held, that, as bona fide purchasers, they had rights which a court of equity would enforce; that, although for want of explicitness in the description, the administrator’s deed might not convey the legal title, yet the same degree of particularity is not required in a report of sale as in a deed, and since it sufficiently appeared that the tract in controversy was in point of fact sold and paid for, as against the plaintiffs, who were heirs of the decedent, defendants were entitled to the land; and accordingly there was a decree vesting the title in them.</p>

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

<p>Error to Gass Common. Pleas Court. — Hon. J. IT. Page, Judge.</p>

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

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

— Hon. R. E. Cowan, Judge. -This was a suit by Brooks, the public administrator of Cass county, in charge of the estate of James R. Cline, deceased. The petition was in two counts..

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

<p>Error to Jackson Circuit Court. — Hon. S. II. Woodson. Judge.</p> <p>The decree was admissible as the admission of Maloney and wife. Corwin v. Walton 18 Mo..71; Ellis v. Jame-son, 17 Me. 235; Cragin v. Carleton, 21 Me. 492; Witmer v.‘ Schlatter, 2 Rawle (Pa.) 362. It was also admissible to show its legal consequences, and establish a missing link in the chain of plaintiff’s title, viz.: the fact that Maloney purchased the land in question with his own money, and placed the title in his wife, Cornelia, for the purpose of defrauding his creditors. Jones v. Talbot, 9 Mo. 121; Archer v. Bacon, 12 Mo. 156; Walsh v. Agnew, 12 Mo. 526; Cravens v. Jamison, 59 Mo. 69; Barr v. Gratz, 4 Wheaton 213; Jackson v. Woods, 3 Wend. 34; Den ex dem. Sharp v. Hamilton, 7 Halstead (12 N. J. Law) 109 ; Turpin v. Bran-non, 3 McCord (S. 0. Law) 267.</p> <p>The recital of the decree rendered in the case of Cravens v. Jamison, was improperly admitted in evidence; 1st, because the plaintiff, who offered it in evidence, was a stranger to it; judgments and decrees are admissible only as estoppels, and as the plaintiff' would not be estopped by it, for want of mutuality, so. it cannot use it in its own behalf. Sarkie on Ev., (9 Ed.) 287 et seq; 316 et seq. Both the litigants must be concluded, or the proceedings cannot be set up as conclusive upon either. 1 G-reenl. on Ev., (12 Ed.) § 524; Hurst v. McNeil, 1 Wash. C. C. 70 ; Baring v. Fanning, 1 Paine 549; Cravens v. Jamison, 59 Mo. 73. 2nd, it was inadmissible on the theory of its being an admission. Boatmans’ Savings Institution v. Holland, 38 Mo. 49; Cromwell v. Sac County, 94 U. S. 356.</p>

<p>Duty of. City to build Sidewalks: damages : evidence. It is the duty of a city, whenever the public convenience or necessities require it, to put the sidewalks of its streets in a reasonably safe condition, and if, instead of performing this duty, it permits the proprietors of adjoining property to construct sidewalks of their own in the street, it will he liable for all damages resulting from their unsafe condition. The passage of ordinances reciting that the common council deem it necessary that a particular sidewalk shall be constructed, and providing for its construction, amounts to an admission by the city that the public necessities require it.</p>

<p>Error to Jackson Circuit Court. — Hon. S. H. Woodson, Judge.</p>

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

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

— Hon. Louis E. Dinninu, . Judge. This was a suit to set aside a partition sale and a sheriff’s deed made thereunder, as having been fraudulently-procured by defendant. The suit .was instituted in April, 1874. The sale took place in May, 1866. At that time the plaintiff, Albert Henrioid, was fourteen years of age, and the other plaintiffs, his brothers and sister, were respectively sixteen, eighteen, nineteen and twenty-oneyears of age.

— Hok. Saml. L. Sawyer, Judge. The city had ample power by its charter to define what should be deemed a nuisance, and to abate and remove the same. Laws 1870, p. 333; and it is liable for a failure to exercise this power. Wood on Nuisances, § 744. If this wall had been standing in the street and had fallen so as to kill one who was in the street, and one just outside of it, could there be a recovery in one case and not in the other ? Certainly not.

<p>1. Change of Venue to Pettis Criminal Court. Under the act establishing the criminal court of the sixth judicial circuit and Johnson county, it was not necessary that an order awarding a change of venue in a criminal case to any county over which that court had jurisdiction should designate it as the court to which the case should go. As soon as the change was awarded, it became the duty of the clerk to certify the case to that court, without special directions to that effect.</p> <p>2. Continuance. The court holds that under the circumstances detailed in the opinion, the trial court did not abuse its discretion in refusing a continuance asked for by the accused, on the ground of the absence of a witness.</p> <p>3. Limiting the Argument. The trial court has a discretionary power, in a criminal case, to limit counsel for the accused in argument to the jury, and to require him to close when his time has expired, and this court will not interfere with this discretion unless it is abused.</p> <p>4. Murder. The court instructed the jury that if defendants had time to think, and did intend to kill deceased, for a moment, then the killing was a willful, deliberate and premeditated killing. Held, error. There may be an unlawful intentional killing which is not murder in the first degree. Hence, whether such a killing is deliberate and premeditated or not, is a question for the jury, and cannot be determined as matter of law by the court.</p> <p>5. Correction of Errors by Trial Court, on the spot, Encouraged. The counsel for the accused, while addressing the jury and endeavoring to show them that his clients should not be convicted of a higher crime than murder in the second degree, was interrupted by the judge with the declaration that the instructions would not warrant a verdict of murder in the second degree; that under the instructions it was murder in the first degree or nothing. After the jury had retired to consider of their verdict, the judge, at their request, had them recalled, and, in open court and in the presence of the accused and their counsel and of the State’s attorney, gave them correct instructions in relation to murder in the second degree, and the accused were found guilty of that offense. Held, that no error had been committed. The accused could not have been prejudiced, and this court is inclined to encourage trial courts to correct errors committed in the progress of the trial rather than to force them to persist in them after they are discovered.</p>

— Hon. John C. Anderson, Judge. Courts of equity will protect the weak minded and unsuspecting from the frauds of those who are their superior and would dupe them into a false belief, and on the question of fraud or imposition, weakness of mind is an element of great importance. Willard’s Eq., 202, 203, 204 ; Cadwallader v. West, 48 Mo. 483; Freeland v. Fldridge, 19 Mo. 325.

<p>Fraud: reputation for insolvency may be shown, when. In support of a charge that defendant knew that certain notes were worthless when he induced plaintiff to'accept them in payment for property, it is competent to show that the maker of the notes was, at the time, reputed, in the community where he and the defendant lived, to be wholly insolvent.</p>

<p>Extending City Limits: exempting new territory erom taxation : constitutional law. The 3rd section of the act of March 11th, 1873, extending the limits of Kansas City, (Acts 1873, p. 282,) declared that no subdivision of land in the annexed territory containing over five acres should be subject to city taxation. Held, that this did not violate those provisions of the constitution which prohibit the exemption of private property from taxation, and require all to be taxed in proportion to its value. The Legislature had a right to grant the extension on such terms as it thought proper. Held, also, that if this section were unconstitutional, the whole act would be, as immunity from city taxation for such tracts was the only condition on which they were annexed ; so that whether section 3 was constitutional or not, such tracts were not liable to city taxation.</p>

— Hon. Sam’l L. Sawyer, Judge. 1. The possession of the defendant was not adverse to the plaintiff’s grantor. He held subordinate to the State, under the act of January 23rd, 1829, and cannot claim the statutory bar. 2 Terr. Laws of Mo., 194; 1 Washb.

<p>Presumptions as to date of Indorsements. The general rule is that an indorsement of payment on a promissory note is presumed to have been made at the time the indorsement bears date; but this presumption ceases if there be any thing in the indorsement indicative of alteration.</p>

Glair Circuit Court. — Hon. J. D. Parkinson, Judge. The defendants filed a motion to quash the indictment for the reason that it failed to aver the act in which the lewdness and lascivious behavior consisted, or the nature or character of the same, or the time, manner or place of commission of the open and notorious acts of-indecency, and because there were two separate and distinct offenses charged in the same count in the indictment.

<p>Appeal from Schuyler Circuit Court. — Hon. J. W. Henry, Judge.</p>

<p>Appeal from Putnam Circuit Court. — Hon. Gr. D. Burgess, Judge.</p>

<p>Error to Shelby Circuit Court. — Hon’. John T. Redd, Judge.</p>

<p>Bonds : sureties, their liabilitibs therbon. In a suit upon an executor’s bond, it is no defense to a surety that he signed the bond upon the parol promise of the executor to procure additional sureties, and furnish the sureties with an indemnity bond. . (Following State to use, See., v. Potter,63 Mo. 212, and Brown v. Baker, 64 Mo. 167.)</p>

<p>Appeal jrom Barton Circuit Court. — Hon. J. D. Parkinson, Judge.</p>

<p>Appeal from Ray Circuit Court. — Hon. Geo. W. Bunn, Judge.</p> <p>. 1. The court erred in giving respondent’s instruction number 2. Gurno v. St. Louis, 12 Mo. 418; Alexander v. Milwaukee, 16 Wis. 247, 256; Green v. Reading, 9 Watts 382; O’ Conner v. Pittsburgh, 18 Pa. St. 187 ; Smith v. Washington, 20 How. (H. S.) 135; Taylor v. St. Louis, 14 Mo. 20; Hoffman v. St. Louis, 15 Mo. 651; Murtaugh v. St. Louis, 44 Mo. 480; Barry v, St. Louis, 17 Mo. 121; Clark v. H. $■ St. J. R. R. Co., 36 Mo. 218; Hillsdorf 'o. St. Louis, 45 Mo. 98 ; Bailey v. New York, 3 Iiill 539 ; Murphy v. Chicago, 29 111. 279; 2 Dillon on Munic. Corp., (2 Ed.) § 553; Greenv. Portland, 32 Me. 431; Roll v. Augusta, 34 Ga. 326; Tate v. M., K. $ T. R. R. Co., 64 Mo. 149.</p> <p>2. The court erred in giving respondent’s instruction number three. Lackland v. N. M. R. R. Co., 34 Mo. 259; Porter v. Same, 33 Mo. 138.</p> <p>3. The court refused instruction number five asked by appellant. Mayor v. Randolph, 4 Watts & Serg. 516; Wilson v. Mayor-, 1 Denio 597; 2 Dillon Munic. Corp., (2 Ed.) §§ 797, 798, 799; Turner v. Dartmouth, 13 Allen 291; Dickinson v. Worcester, 7 Allen 19 ; Gannon v. Hargadon, 10 Allen 106; Flagg v. Worcester, 13 Gray 601; Franklin v. Fisk, 13 Allen 211.</p> <p>• 4. The court refused instruction number eleven asked by appellant. Lackland o. R. R. Co., 31 Mo. 180; 33 Mo. 138; Hinchman v. Paterson Horse Ry. Co., 17 N. J. (2 C. E. Green) 75, 83; Barry v. St. Louis, 17 Mo. 121.</p> <p>1. Respondent’s right to sue cannot be successfully controverted. He owned the soil to the middle of the street, subject only to the easement of the public as a highway. The charter of the city of Lexington gives the city no power to authorize such an obstruction, as the evidence shows the railroad placed in the street in question. Lack-land v. N. M. R. R, Co.. 31 Mo. 180; Bridge Co. v. Schaubacherj 57 Mo. 582. Hence the city cannot plead in bar, the ordinance passed by the council granting the right of way to the company.</p> <p>2. It is the duty of the city, expressly made so by her charter, to keep her streets free from obstruction; and she has no power, unless authorized by statute, to divest herself of this doty by ordinance; and no statute giving-such authority is in existence. Currier v. Lowell, 16 Pick. 170; Willard v. Newbury, 22 Vt. 458; Batty v. JDuxbury, 24 Vt. 155; Philadelphia v. Weller, 1 Leg. Gaz. Rep. 400 ; Watson v. Tripp, 15 Am. Law Reg. 282; Charter of the City of Lexington, p. 9, art. 4, § 9. This section is imperative and not discretionary. Dillon Munic. Corp., (1 Ed.) 110, § 62; Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449 ; Weet v. Brockport, 16 N. Y. 161, note; Bowie v. Kansas City, 51 Mo. 454; Williams v. Tripp, 16 Am. Law. Leg. (U. S.) 613.</p> <p>3. The plaintiff* may look to the city for damages, or he may look to the railroad company; and if he elects to-sue the city, she has recourse upon the railroad company for the damages she may have to pay. Dillon Munic. Corp., (1 Ed.) 766, § 796 ; Philadelphia v. Weller, 1 Leg. Gaz. Rep. 400.</p> <p>4. The city, in granting the right of way to the railroad company, was not engaged in the performance of a duty imposed by law; and if she had refused to grant the right of way, there is no law by which the railroad company could enforce it. Hence the city occupies the position of a private corporation engaged in a private enterprise for her own benetit, and is liable for the damage done to respondent’s property by reason of the total, obstruction of the street in front thereof. Bailey v. Mayor, 3 Hill 531; Hannon v. County of St. Louis, 62 Mo. 313.</p> <p>5. The grant of the right of way to a railroad company over a public street, will not authorize the placing of any obstruction in the street such as will render it useless as a street. Lackland o. N. M. R. R. Co., 31 Mo. 181; Fletcher v. The A. § S. R. R. Co., 25 Wend. 462; Porter v. N. M. R. R. Go., 33 Mo. 128; 1 Redfield on Railways, 540, 542.</p> <p>6. The city, by its council, having authorized a railroad to lay its track in a street, it is her duty to direct and control the work so undertaken, and a failure to do so is such culpable negligence as will make her liable. City Charter, art. 4, § 9, sub-division 29, p. 12; Shearman & Redfield on Negligence, § 147, p. 184, § 149; Wendell v. Troy, 39 Barb. 329, affirmed in 4 Keyes 261; Hutson v. Mayor, 9 N. T. 163 ; Cong’reve v. Morgan, 5 Duer 495.</p> <p>7. The fact of the city having granted the right of way to the railroad company does not exempt the city from liability for damage done by the company in the prosecution of its work. The property of citizens must be protected. The following authorities are decisive of this ease: Stack v. East St. Louis, 5 Cent. Law Jour. 385; City of Pekin v. Brereton, 67 111. 477; Nevins v. City of Peoria, 41 111. 502; City of Aurora v. Gillett, 56 111. 132; City of Aurora v. Reed, 57 111. 29; City of Dixon v. Baker, 65 111. 518; City of Alton v. Hope, 68 111. 167.</p>

— Hon. J. W. Henry, Judge. On the 12th day of April, 1866, plaintiff purchased of one Binford a dwelling house at the pricé of $2,500, which he paid, partly in cash and partly by his note bearing ten per cent interest, which was subsequently paid. The deed, however, was made directly to defendant, who agreed verbally with plaintiff to repay him the price paid, with interest thereon at the rate of seven and three-tenths per cent, per annum.

— Hon. S. A. Richardson, , Judge. In the original petitiou the plaintiff is designated as “ Thomas J. Flint at the relation and to the use of George W. Lumpkin;” in the amended petition, as “George ~W. Lumpkin.”' In the latter Thomas J. Flint is made co-defendant with the defendants named in the original petition.

<p>A ease where a Deed was Presumed. A deed from Juan Arenton to Jonathan Hillebran was the only link wanting to complete a chain of title from a concession by the Spanish Lieutenant-Governor, A. D. 1780, to the passage of the legal title from the United States in 1874. Hillebran was the brother-in-law of John Herrington, of whose name Arenton was probably a perversion, and procured a de.ed dated May 24th, 1800, from Eobideaux, under which Arenton acquired title. At the execution of this deed Arenton was not present, although his presence was therein recited ; and, contrary to the Spanish custom, his name was not signed thereto. Hillebran’s name was signed to the deed, and he at once went into pos. session of the land thereunder. In 1808 he presented a claim to the land before the board of commissioners, in his own name as assignee of Eobideaux; in 1811 he presented the claim in the name of John Herrington, as such assignee. In the first case the claim was confirmed to the legal representatives of Eobideaux; and in the latter ■ 1 to the legal representatives of Dorian, the original grantee. Actual possession was the main basis for the grant and confirmation under the Spanish law and the law of the United States. Three days after the latter confirmation, Hillebran conveyed the land in his own name. From the year 1800 until his death in 1864, Herrington lived in the immediate vicinity of the land, except for a period of seven or eight years, and was never heard to make any claim to the land ■ whatsoever. Hillebran, and those claiming under him, bad been in possession for nearly seventy-five years; Held, that the deed to Arenton was a mistake, or else Arenton had conveyed to Hillebran and that, although the facts were singular and difficult to be explained, for the purpose and upon the principle of quieting the possession, the court sitting as a jury, was authorized to presume, and should have presumed, such a conveyance.</p>

— ITon. John B. Robinson, Judge. The instructions asked by defendants, and refused, are as follows: 1.

<p>1. Criminal Law: self defense. The plea of self defense is not available by one who, himself, brings on an affray, or who prepares himself for an encounter in -which he intends to wreak his malice.</p> <p>2. Evidence: defendant in his own behalf : instructions. Where a prisoner testifies on a trial in his own behalf, the jury may be properly instructed to consider this fact in determining the credit to be given to his testimony.</p> <p>3. Continuance: requisites of affidavit. A defendant who has on his own application obtained a continuance from one term to another, must state in his affidavit for a further continuance, the names of his witnesses and the facts which they are expected to prove. Wag. Stat., gg 6, 8, pp. 1039, 1040. An application which has been refused is not an “ application ” within the meaning of these sections.</p> <p>4. : discretion of trial court. The discretionary power of the circuit court to grant a continuance will only be reviewed where it is manifestly abused.</p>

<p>Strays. The rights of parties under the statute concerning strays, ( Wag. Stat., chap. 131, p. 1297,) are not affected by the fact that the owner had long been accustomed to allow his cattle to run at large in the neighborhood where they were taken up, or that the person finding them on his property knew who was their owner.</p>

— Hon. A. J. Seay, Judge. This was a suit instituted by the plaintiff, in right of his wife, and as administrator of the estate of Armin Kaempf, deceased, to recover $5,000 and interest from Elizabeth Kaempf, wife of the defendant, being money obtained by her from the Life Association of America on á policy issued on the life of Ferdinand Kaempf, deceased, for the use and benefit of the wife of said plaintiff, and his intestate, children of said Ferdinand Kaempf.

— Hon. L. F. Dinning, Judge. Section 1 of the statute concerning appeals from a justice of the peace to the circuit court, provides: “ Any person aggrieved by any judgment rendered by any justice of the peace, except a judgment by confession, may, in person or by agent, make his appeal therefrom, unless otherwise provided by law, to the circuit court of the same county where the judgment was rendered.” Section 2. “ But no appeal shall be taken from a judgment by default as…

<p>Railroads: killing stock : speed of tr¿un : negligence. The failure to stop or check a train, in order to avoid a collision with stock on the track, does not constitute negligence, where such stoppage or checking would endanger persons and property intrusted to the railroad for transportation. Aliter, where checking the speed of a train or stopping it would avoid the collision and could be done with safety to property and passengers.</p>

— Hon. S. H. Woodson, Judge. Action to recover damages for injuries to plaintiff’s horse and wagon. It appeared in evidence that the plaintiff’ had delivered a load of freight at the depot of the railroad company, and was in the act of driving out of the depot yard or grounds when a train belonging to the company, backing through the yard, ran over and maimed plaintiff’s horse and broke his wagon. There were several tracks running parallel with each other.

Louis Circuit Court. 1. The sale of the North Missouri Railroad under the second mortgage was illegal, for the following reasons : Humphreys and Yail, the trustees making the sale, were purchasers.

<p>Continuance. Under ordinary circumstances this court will not interfere with the exercise by the trial court of its discretion in refusing continuances. But in the present case, it appearing by the affidavit of.the officer, that after he had served two subpoenas on the witnesses needed for the defense, both at the same term of court, they had secreted themselves to avoid attachment, a conviction of murder was set aside, notwithstanding the record showed that the defendant had previously had a number of continuances. This result was the more readily reached because the court, upon examination of the evidence, was impressed with the belief that the jury had been influenced by political party feeling in finding their verdict.</p>

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

Greene Circuit Court. — Hon. W. E. Geiger, Judge. Action commenced in the Greene county circuit court on ninety interest coupons for $40 each, on bonds issued by R. P. Matthews and Ralph Walker, judges of said Greene county court, to the Hannibal & St. Joseph Railroad Company, to aid in building a railroad through Greene county.

Louis Court of Appeals. The charter of the city of St. Louis proposed by the board of freeholders and adopted by a vote of the people in accordance with the provisions of section 20, article 10, of the constitution of 1875, contained the following, among other provisions: Article 3, section 26.

<p>Evidence: the value of professional services may be shown by the testimony of a witness speaking from his own knowledge. He will not be confined to giving his opinion upon a hypothetical case, or upon facts detailed to the jury.</p>

— Hon. Louis E. Dinning, Judge. Tiedemann having obtained a judgment against the Board of Educatiou of the city of Cape Girardeau, caused an execution to be issued and levied on the school building and the land on which it was situate, together with the school furniture, belonging to the board. Thereupon the board applied for and obtained an injunction against a sale under the execution.

<p> Appeal from St. Louis (fourt of Appeals. </p>

<p>1. Indictment for Murder: several weapons: several defendants. It is no obj ection to an indictment for murder, that it charges the assault to have been made with several different weapons, nor, where it is against two persons, that the acts of each are not separately stated.</p> <p>2. -: essential allegations : jeofails. An indictment for murder need not describe the wounds inflicted; but it should allege an assault, and the nature thereof, a mortal wounding of the deceased and that he died of such wounds within a year and a day. It is not sufficient to allege that defendant “ did kill and murder the deceased by striking, hitting and mortally wounding him with sticks and clubs;” or that defendant “did shoot, kill and murder the deceased with loaded guns; ” or that defendant “ assaulted the deceased with sticks, clubs and loaded guns, and did kill and murder him, by striking him with clubs and shooting him with loaded guns.” Wag. Stat., Sec. 27, p.1090, does not cure such defects.</p> <p>3. • General Verdict: one good count. The rule is settled that where there are several counts charging the same offense, one good count will sustain a general verdict of guilty.</p> <p>4. The Accused can Waive Objections to Evidence:- practice in supreme court. A defendant in a criminal case can not object to evidence for the first time when the case has reached the appellate court. His objections are waived unless made at the trial. The rule in State v. Davis, 66 Mo. 684, concerning the incapacity of a prisoner to waive his legal rights relates only to proceedings’ prescribed by statute for his protection.</p>

— IIon. Sam’l L. Sawyer, J udge. 1. The instruction given by the court, of its own motion, is erroneous. It necessitates a 'finding of the fact that Cummings was at the time of his negotiations with plaintiffs the duly authorized agent of Mathews, Kingsbery & Co.; that tbey assented to the purchase by him at the time it was made, and that as the cattle were received by them they knew all the facts.

<p>1. Bill of Exceptions: change of venue. Exceptions to the action of the trial court in refusing to allow a change of venue, will not be noticed by the Supreme Court unless preserved by a bill of ex" ceptions taken at the term at which the change is refused.</p> <p>2. Instructions: harmless error. Defendant being indicted for stealing a mare, the court correctly instructed the jury, both on the theory that she was stolen in the county of the trial, and on the theory that she was stolen in another county and then imported into the county of trial. There was evidence that the theft was committed in the latter county. Held, that even if there was no evidence of larcenous taking in the other county, no error had been committed prejudicial to defendant.</p>

<p>Error to Daviess Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

<p>Contributory Negligence. If on the plaintiff’s evidence, in an action to recover damages for injuries alleged to have been sustained through the negligence of the defendant, it clearly appears that the plaintiff was himself guilty of carelessness or negligence, which contributed directly to produce the injury he complains of, he cannot recover, and the court should 'SO instruct the jury.</p>

<p>Municipal Liability for Damage by Wind. A city is not liable in damages for injuries inflicted upon a person by the fall of a market house caused by a wind storm of unprecedented force and violence.</p>

<p>1. Suit for Back Taxes: pleading. A petition in a suit by the collector to recover back taxes, under the act of April 12th, 1877, (Sess. Acts 1877, p. 884,) should expressly allege that the land had been returned delinquent, or had been forfeited to the State; but where it may be gathered from its allegations that such is the fact, the petition will be good after verdict.</p> <p>2. Judgment not Collaterally Assailable. The validity of a judgment rendered in such a suit cannot be attacked in a collateral proceeding for defect of the petition in that case in failing to allege that the land had been returned delinquent, or had been forfeited to the State, or in failing to allege that the county clerk, within the time provided by the act, had made out a back tax book and delivered it to the collector, and that the land was contained in this book, and remained unredeemed, or in failing to allege that the suit was against the owner of the land.</p> <p>3. -: jurisdiction of the circuit court. The circuit court has jurisdiction, under the act of 1877, to hear and determine suits for back taxes.</p> <p>4. -: JUDGMENT NOT COLLATERALLY ASSAILABLE: LIMITATIONS. The validity of a judgment rendered in such a suit cannot be attacked in a collateral proceeding by showing that it appeared upon the face of the petition in that case that a portion of the taxes sued for and embraced in the judgment, were barred by the statute of limitations, supposing that statute to be a good defense as against the State.</p> <p>5. -: PRESUMPTIONS IN FAVOR OF SHERIFF’S PROCEEDINGS. It Seems that the same presumptions exist in favor of the validity of the proceedings of a sheriff in enforcing an execution from the circuit court in a tax case, as in other cases.</p> <p>6. -: practice. Judgment may be rendered at the first term in a tax suit under the act of 1877.</p> <p>7. -: process. A notice of suit given in a tax case by publication examined and held to be good, at least when called in question collaterally.</p> <p>8. Back tax act, Constitutional. The act of 1877 to provide for collection of delinquent taxes, is not unconstitutional as being retrospective in its operation.</p> <p>9. Execution Sale for Taxes: ejectment. The fact that at a sale under execution in a tax case the sheriff failed to sell the land by its smallest legal subdivisions, is no defense to an action of ejectment brought by the purchaser to recover possession.</p>

<p>Error to Pettis Circuit Court. — Hon. "Wm. T. Wood, Judge.</p>

<p> Appeal from Atchison Circuit Court. </p> <p>Appeal from a judgment of forfeiture of a recognizance.</p>

— Hon. E. P. Wright, Judge. This was an action of ejectment brought by Thomas Adams against John H. Raigner.

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

<p>Adverse Possession: principad and surety. A sold a tract of land to B, from whom it passed by mesne conveyances to the defendant, who took possession. The sale to B was on credit, B giving his bond for the purchase money with plaintiff as surety. Plaintiff being compelled to pay the bond, took a conveyance of the land from A, and brought this suit to recover possession. Defendant relied on the statute of limitations, Held, that the possession of B, and of the defendant under him, was subordinate to the rights of A, and in the absence of evidence to show that it ever assumed a hostile character,the statute never commenced to run. Plaintiff was, therefore, entitled to recover; but upon refunding to the plaintiff the amount of the purchase money, defendant could retain the land.</p>

— Hon. Geo. W. Dunn, Judge. At the November term of the county court of Clinton county, Stephenson filed his objections to the rendition of judgment by said court against a certain lot owned by him alleged to be situate within the corporate limits of the town of Cameron, in said county, for taxes assessed against said lot by the corporate authorities of said town, alleging that said lot was not within the corporate limits of said town, and that said taxes were illegally…

Louis Court of Appeals. Suit by Eliza Hanley, widow of Wm. Hanley, deceased, on a policy of insurance in tbe defendant company for $10,000, insuring the life of said Wm. Hanley for the term of fifty-two years. The policy was issued February 1st, 1870, and deceased died November 17th, 1872. Deceased was secretary of the defendant company during this time.

— Hon. H. S. Kelley, Judge. At the trial the plaintiffs introduced testimony tending to prove the following points and facts: 1. That plaintiffs worked themselves on the first seven miles of their contract, up to the 1st day of November, 1873, when they abandoned it. 2. That the remaining five miles of said contract was sub-let to other parties, who worked on that portion from time to time, until they abandoned their work in April or May, 1874. 3.

<p>(Tender: special tax bill, redemption from sale under: deed of trust, distribution of proceeds of sale under. On a bill of interpleader filed by a trustee to determine the disposition of a fund arising from a sale of land under a deed of trust in favor of one A, the following state of facts appeared: After the execution of the deed of trust, suit was brought and judgment was obtained against the land upon a special tax bill, the lien of which ante-dated th§ deed of trust. There was a sale under the judgment and B became the purchaser; A was not made party to this suit. Pending th ese proceedings, a second deed of trust was executed; and finally a j udgment was obtained forthe enforcement of a mechanic’s lien against the land and its improvements. By the act under which the special tax bill was' issued, any one interested in land, if he claimed under a party defendant in a suit on such a bill, by a title which accrued before suit brought, and was not himself made party to the suit, had a right to redeem from a purchaser at a sale under a judgment on the bill. Before the sale under the deed of trust A offered to redeem the land, and tendered to B the amount due, but the tender was refused. Held, first, that the tender did not divest B’s title. He still held subject to A’s right to redeem, a right which could be enforced by petition in equity. Second, That B was entitled to no part of the fund. What remained after satisfying the first deed of trust and the junior incumbrances, should go to the original owners of the land.</p>

<p>X. Competency of Juror. A person who, upon examination on the voir dire, declares that, he would not convict one accused of murder upon circumstantial evidence, or that he would have scruples in doing so, is not competent to sit as a juror upon a trial for murder.</p> <p>2. The Venue of a Homicide maybe establishd, like any other fact, by proof of facts and circumstances tending to show where it occurred. Express testimony is not necessary.</p> <p>•3. Witness. A person is not disqualified as a witness because, before he is called the prosecuting attorney has promised to dismiss an indictment then pending against him, after he shall have given his testimony.</p> <p>4. Verdict: INTOXICATING LIQUOK IN THE JURY BOOM: CONTEMPT. It ÍS improper, and should be held a contempt of court for any officer to furnish the jurors, engaged in the trial of a cause, with intoxicating liquor Butin the absence of proof of intoxication or other improper conduct on their part, the fact that such liquor has been furnished to them, and used by them, is no ground for setting aside a verdict.</p>

<p>•The City of St. Louis not a County: collector: marshal. The city of St. Louis, as constituted by the scheme of separation, is a city proper, and not a county; and the provisions of law which were in force before its adoption, requiring the election of a county collector and county marshal for the county of St. Louis, are not applicable to the city.</p>

<p>Appeal from Jackson Circuit Court. — Hon. S. II. Woodson., Judge. . . .</p>

— Hon. R. E. Cowan, Judge. 1. Appellant’s duty did not require it to adopt the guard or fender. Its duty was measured by reasonable care, wbicli is such care as reasonably prudent men use under like circumstances. Stack v. Patterson, 6 Phila. (Pa.) 225; Railroad Co. v. Elliott, 1 Cold. (Tenn.) 612; Railroad Co. v. Flanigan, 77 111. 865.

<p>Appeal from Stoddard Circuit Court. — Hon. R. P. Owen, Judge.</p>

<p>Trustee must be Present at his own Sale. When a sale is made under a deed of trust, it is the duty of the trustee to be present for the purpose of observing its progress, protecting the interests of the parties concerned, rejecting fraudulent bids, and if necessary, adjourning the sale; and he must be present during the whole sale. It is not sufficient that he is present at its opening and close, if he absents himself during its progress.</p>

— Hon. G. W. Miller, Judge. The plaintiff testified that he loaned the money to the defendants, they agreed to pay him one per cent, a month, and the note-was drawn that way — he scratched the word “ one ” out and by so doing he thought it would be an advantage to them.

<p>Appeal from Jefferson Circuit Court. — Hon. Louis E. Dinning, Judge.</p>

<p>1. Equity Pleading : fraudulent conveyance. When the plaintiff bases his claim to equitable relief against several defendants on one general right, the petition is not demurrable for multifariousness, although the defendants may have separate and distinct defenses. This principle applied to a case where plaintiff sought to have certain conveyances set aside as being in fraud of creditors.</p> <p>2. .Fraud. Upon examination of the evidence the court finds a deed in controversy in this case, to have been,executed in fraud of creditors.</p> <p>3. Constructive Fraud; secret reservation of use. The fact that the grantor in a deed, absolute on its face, by a secret contemporaneous instrument reserves to himself, for life, the use of the property conveyed, is evincive of legal, if not actual fraud.</p>

— .Hon. D. L. Hawkins, Judge. The court below erred in reforming the trustee’s deed from Hunter to Tinsley. It had no seal, and no words of conveyance; It was in fact a simple memorandum of the sale. As a contract to convey or a conveyance, it had no validity, and was not a proper instrument for reformation. 1. The mistake complained of was the result of pure carelessness, and against such mistakes equity affords no relief.

<p>Appeal from, Johnson Criminal Court. — Hon. S. P. Sparks, Judge, pro tem.</p>

<p>Appeal from Pike Circuit Court. — Hon. G. Porter, Judge.</p>

— Hon. G-. H. Burckhartt, Judge. For many purposes, personal property, by a fiction of law, is said to follow the person. But in regard to all proceedings in rem, such as administration and property taxation, which is essentially a proceeding in rem, this fiction must give way to the truth, and the real situs of personal chattels or dioses in possession is where they are actually located, and can be seen and handled notwithstanding their owner is a non-resident.

<p>Promissory Note: proof of execution : admissions. The execution of a note not in the handwriting of the party sought to be charged may be shown to have been authorized by him, by proof of his own admissions. But the proof should be such as to identify the note, as by its date, amount, name of payee and consideration; otherwise it should not be received.</p>

— ITon. R. E. Cowan, Judge. This was a suit by James Flanagan against the Oity of Kansas to recover the sum of $95.50 for services rendered by him as a policeman. The board of police commissioners, claiming the right to fix the pay of policemen, had fixed it at $75 per month. The common council of the city claiming the same power, afterwards, by ordinance, fixed it at $60 per month.

— Hon. H. S. Kelley, Judge. When there is no evidence of a clear and unequivocal intention to dedicate a highway to public use, there must be an acquiescence by the owner for twenty years in the free use of the highway to authorize the presumption of an intention to dedicate the land to that use. Missouri Institute v. How, 27 Mo. 211; 3 Kent Com., 451; State v. Culver, 65 Mo. 610; Angelí on Highways, 116.

jError to Jackson Special Ijaw and Equity Court. — Hon. R. E. Cowan, Judge. • The plaintiff' having been employed as a policeman by the board of police commissioners of the City of Kansas, and not having received his pay or a warrant on the city treasury for it, brought this suit against the city to recover the value of the services rendered. ' Plaintiff' worked for and was paid by the city.

<p>A Mortgage void in part only. A mortgage covering the fixtures and fumiture of a drug store and also the stock of drugs, will not be held void as to the fixtures and furniture, because as to the stock of drugs it is invalidated by the fact that the mortgageor, with the consent of the mortgagee, remained in possession and continued his usual business of selling the drugs. (Following Cafeto me, &e., v. Tasker, 31 Mo. 445; State to use, <&c., v. D’Oench,, 31 Mo. 453.)</p>

— Hon. H. S. Kelley, Judge. This was an action under the statute concerning damages, (Wag. Stat., p. 520,) sections 2 and 3 of which give the minor child a right of action for the killing of his parent.

— Hon. S. A. Richardson* Judge. 1. The taking of the note in suit did not extinguish the obligation of defendant Allen, to pay the $300 on his return from the shipment of the first lot of cattle, but only extended the time for its payment. Howard v. Jones, 33 Mo. 583; Appleton v. Kennon, 19 Mo. 637. 2.

<p>1. Practice : jury : challenge to the array. In the absence of evidence of bias or prejudice on the part of the sheriff, it is no ground for a challenge to the array, that after the court had quashed the return upon a former venire, because the officer who had executed it had not first taken the oath of impartiality required by statute, he had served a second venire by summoning as jurors the same persons who had been summoned before. Henry, J., and Sherwood, C. J., dissenting.</p> <p>2. Peremptory Challenges. In criminal cases the State must announce her peremptory challenges before the defendant can he compelled to make his. (Following Stale v. Steeley, 65 Mo. 218.)</p> <p>8. The Evidence in this case authorized an instruction in relation to murder in the first degree.</p> <p>4. Instructions not based on any evidence given in the case, are properly refused.</p> <p>5. Verdict. The fact that the officer having a jury in charge furnished, the jurors with cigars, is no ground for setting aside the verdict; neither is the fact that during a recess of the court a stranger was in the room where the jury was kept by the sheriff, it appearing that nothing whatever was said about the cause on trial.</p> <p>6. Improper Remarks by the Prosecuting Attorney, at the trial, will not authorize a reversal of the judgment, unless the attention of the trial court was called to them by the motion for new trial, especially where the record shows that as soon as they were uttered the court rebuked the attorney, and commanded him to keep within the record.</p>

— Hon. John T. Redd, Judge. A witness for the defendants testified : I am a member of the church or denomination of Christians known as “the Old School Baptist Church,” sometimes called the Ironside Baptist Church; as a religious denomination, the Old School Baptist Church is organized on the congregational plan, each congregation composed .of individual members, meeting by common consent, at the same place for religious worship; the congregations, or such of them as desire…

— IIon. GL H. Burokhartt, Judge. This section, so far as it seeks the enforcement of a penalty in the summary manner provided, is a palpable violation of the constitution of the United States and of this State: First, Because it deprives the accused of the right to a jury trial. Second, Because it deprives him of his property without due process of law.

<p>Practice : notice. A. motion to set. aside a judgment after third persons have acquired an interest in property sold under the execution, is properly denied, if such persons are not made parties or notified of the motion.</p>

<p>1. Constables in the City of St. Louis: the scheme and charter : general welfare clause. It is doubtful if the board of freeholders who framed the scheme and charter for the separation and government of the city and county of St. Louis, intended, by the general welfare clause of the charter, to confer upon the city the power to pass any ordinance that would conflict with and repeal so much of the act of March 24th, 1875, concerning constables, as relates to the city of St. Louis; but if they did, they transcended the powers given them by article 9 of the Constitution. Ordinance No. 10,744, providing for the election of constables in the city of St. Louis, being in conflict with this act, is, therefore, void, and persons elected under it are not entitled to All the office of constable.</p> <p>2. Constables are State, not municipal, officers.</p>

<p>Appeal from Johnson Criminal Court. — Hon. W. H. IT. Hill, J udge.</p>

— Hon. E. J. Seat, Judge. The law is well settled that unlawful detainer cannot be maintained against one who has had three years uninterrupted possession, nor by one who has not been in possession within three years. 1 Wag. Stat., § 27, p. 646; Bartlett v. Draper, 23 Mo. 407; Blount v. Winright, 7 Mo. 50 ; Hatfield v. Wallace, 7 Mo. 112; Biddle v. Ramsay, 52 Mo. 153; Wood v. Dalton, 26 Mo. 581; Miller v. Tillman, 61 Mo. 316; Beeler v. Cardwell, 29 Mo. 72.

<p>1. Cape Girardeau Court of Common Pleas: change of venue. The Cape Girardeau court of common pleas has power to order a case pending before it to be sent to the circuit court of another county for trial upon proof of prejudice on the part of the inhabitants of Cape Girardeau county.</p> <p>2. Board of Education: mechanic’s lien ; breach op builder’s bond. A board of education having contracted with a builder for the erection of a public school house, took from him a bond conditioned to secure the faithful performance of the contract. The builder having procured materials to be furnished and work to be done on the building, failed to pay for them, whereupon the laborers and material men brought their actions to enforce mechanics’ liens against the building, and obtained judgments, and the board paid the judgments. In an action on the bond; Held, that these facts constituted a breach of its conditions, and the board was entitled to recover the amounts so paid.</p> <p>3. -: CONTRACT •. HOW A SINGLE MEMBER MAY BIND THE BOARD. A single member of a board of education cannot alter a contract already made by the board, unless he is previously authorized, or his act is subsequently ratified by the board duly assembled as such. {Johnson v. School District, 67 Mo. 320.)</p>

<p>Costs. The expense of boarding a petit jury impaneled to try a murder case, cannot be taxed as costs against tbe county.</p>

<p>1. Power of sale in favor of Mother and Children, Defective Execution of. Several deeds to a woman “ and all her children she now has or ever will have,” authorized her to sell the land, provided the proceeds should be invested in other land or property to be secured to her and her children. Held, that this power of sale did not authorize her to execute a- mortgage to secure a loan of money made to enable her to pay the purchase money of a tract of land which had been conveyed to a trustee for her use alone.</p> <p>2. Defective Execution of Power of Sale: equitable doctrine as to effectuating conveyances. When a person acts for a valuable consideration, he is understood in equity to engage with the person with whom he is dealing to make the instrument as effectual as he has power to make it. Upon this principle, in a case where a person' having a life estate in lands and also a restricted power of sale oyer the fee, for the purpose of securing a loan of money executed a mortgage purporting to convey the fee, and referring in express terms to the power, but for want of compliance with the restrictions, the mortgage was not a good execution of the power; Held, that it was effectual to convey the life estate.</p> <p>3. Conveyance to Mother and Children. A conveyance to a woman “ and all her children she now has or ever will have,” vests a life estate in the mother with remainder to the children. Henry, J., dissenting.</p>

Louis Circuit Court. — The ease - was tried before Hon. James J. Bindley, one of the Judges. 1. The defendants, not having been made parties to the suit upon the mechanic’s lien, have a right now to attack the entire proceeding, for they are in nowise bound by the judgment. This is well settled. Hauser v. Hoffman, 32 Mo. 334; Schaeffer o. Lohman, 34 Mo. 68; Crandall v. Cooper, 62 Mo. 478. 2.

— IIon. John W. Henry,Judge. The second section of the damage act can have no application to this case, because the recovery for defective machinery, cars, &c., under that section, is confined exclusively to passengers. The language is : “And when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car,” &c., the owner shall forfeit and pay the sum of $5,000.

— Hon. John T. Eedd, Judge. In order to discharge the surety, an agreement to extend the time of payment must have been made by plaintiff with the principal debtor upon a sufficient consideration, one which would have estopped him from bringing his action against the debtor for a fixed and definite period of time beyond the day of payment named in the note. Under this rule defendant was not exonerated by the evidence in this case.

<p>Mechanic’s Lien: description op the land to be covered. The statement filed for the purpose of asserting a mechanic’s lien should so describe the land upon which the house is situated and the acre of ground intended to be covered by the lien, that they can be identified; otherwise no lien will be created.</p>

<p>Appeal from Audrain Circuit Court. — Hon. Q-. Porter, Judge.</p>

— Hon. G. H. Burckhartt, Judge. This was a suit brought by Shepherd Gum (by John H. Alsop, his guardian), Joseph W. Chilton and L. L. Kingsbury, against Obed Swearingen and R. II. & Jacob Fisher.

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

G. Porter, Judge. This was a suit on certificate of deposit for $400. The plaintiff was a married woman. Her husband did not join in the action. The facts, as developed at the trial, were as follows: Plaintiff being the owner of certain real estate sold it, and authorized her husband to collect the purchase price.

— Hon. G-. D. Burgess, Judge. This was an information against Craig, as treasurer of Sullivan County, to compel him to pay certain interest coupons of bonds issued by the county to the St. Joseph & Iowa R. R. Co. The information alleged that the relator had presented the coupons to the respondent at their maturity and demanded payment, but the respondent had refused payment, although he had in his hands more than sufficient funds collected by taxation for the purpose of…

<p>Appeal from Audrain Circuit Court. — Hon. G. Porter, Judge.</p>

— Hon. John T. Redd, J udge. This was an action brought by the city of Hannibal to recover of the county of Marion a share of the county taxes. The city is situate in the county of Marion. Her claim was based on the statute set out in the opinion. 1. The section of the charter in controversy'does not conflict with § 32 article 4 of the constitution of 1865 (Wag. Stat. p. 49).

<p>The State’s Bight of Appeal in Criminal Cases. Where a motion in arrest of judgment in a criminal case has been sustained, and the prisoner ordered discharged, on the ground that at the time of the commission of the offense the defendant was a slave, and as such not liable to punishment, the State cannot appeal. Her right of appeal.is limited to those cases, where, either on motion to quash, on demurrer or on motion in arrest of judgment, the indictment has been adjudged to b.e insufficient either in form or substance.</p>

<p>Appeal from Lafayette Circuit Court. — Hon. Wm. T. Wood, Judge.</p>

Louis Court of Appeals. This was a suit against Maria Anna Ihm and Jacob Ihm, her husband, to charge the separate estate of said Maria with the payment of a. sum of money alleged to be due from her to plaintiff for the rent of certain premises held by her of plaintiff, under a written lease.

<p>Appeal from Cole Circuit Court. — Hon. G. "W". Miller, Judge. ■ ■</p>

<p>Attachment of Growing Crop for Rent. The growing crop of a tenant is subject to attachment by the landlord for rent due. (Rub-bard v. Moss, 65 Mo. 647.)</p>

<p>Appeal from Audrain Circuit Court. — Hon. G-. Porter, Judge.</p>

<p>eal from Lewis Circuit Court. — Hon. John C. Anderson, Judge.</p>

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

— Hon. G. Porter, J udge. In December, 1869, the plaintiff and defendant entered into a written contract for the sale.of a tract of land, by the terms of which defendant agreed to make payment within two years after trains should begin to run on the Chicago & Alton Railroad, and plaintiff was then to execute a good and sufficient deed in fee simple to the land. Defendant took immediate possession. Trains began to run in August, 1871.

<p>Appeal from Franklin Circuit Court-. — Hon. A. J. Seay, • Judge.</p>

— Hon. Q-. Porter, J udge. The note was payable to the order of Garrard, and was never indorsed by him. cited 1 Daniel’s Bills and Notes, 494; Russell v. Swan, 16 Mass. 314; Blakely v. Grant, 6 Mass. 886; Boeka v. Nuella, 28 Mo. 280; Yaneman v. Stanchfield, 8 Minn. 518; Perkins v. Parker, 8 Mass. 117, 118; Prescott v. Hall, 17 Johns. 274; 1 Parsons Con., 357; Smith v. Sterritt, 24 Mo. 260; 2 Black.

.Louis Court of Appeals. The transfer of the assets of the Keokuk Packet Company to the defendant company in exchange for 1,520 shares of stock in the latter, was void, and can be successfully impeached in this suit. 1. The Keokuk Packet Company was an Illinois corporation and in case of consolidation, was bound to observe the requirements of the Illinois statute. This was Dot done when the consolidation took place with the Keokuk Northern Line Packet Company.

<p>Evidence. In an action against a railroad company to recover damages for the destruction of property caused by fire alleged to have been set by sparks escaping from one of the company’s engines, the evidence on the part of the plaintiff failed to identify with certainty the particular engine which emitted the sparks. Evidence was offered on the part of the company to show that all its engines were, on the day of the fire, provided with the most approved apparatus to prevent the escape of fire, and that the apparatus was in good condition, but the evidence was rejected on the ground that it ought to be limited to the particular engine which did the damage. Held, error.</p>

<p>Error to Cole Circuit Court. — Hon. G. W. Miller, Judge.</p>

Louis Court of Appeals. The petition stated that on or about July 1st, 1872, plaintiff sold and .delivered to John W. Layne & Co., 94 head of cattle, for which said Layne & Co. executed and delivered to plaintiff the following draft: “ $8,598.40. “ Malta Bend, July 2nd, 1872. “ Live days after date, pay to the order of Charles Clements $3,598.40, for 94 head of cattle, and charge the same to account of ' “John W. Layne & Co. “To Messrs.

<p>Appeal from Lafayette Criminal Court. — Hon. Wm. H. H. Hill, Judge.</p>

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

<p>1. Execution Sale Pending Bankruptcy Proceedings. A sale of tlie property of a bankrupt under execution -upon a judgment rendered and levy made prior to the adjudication of bankruptcy, is valid-</p> <p>2. Former Judgment: relation of assignee in bankruptcy to secured creditor. The judgment in a suit brought by an assignee in bankruptcy to set aside as fraudulent a deed made by the bankrupt, is not binding upon a creditor of the bankrupt who had reduced his demand to judgment and had thus acquired a lien prior to the adjudication of bankruptcy, and was not made a party to the assignee’s suit. Such a creditor having an interest hostile to the interests of the general creditors, the assignee co^ld not be considered to have represented him in the prosecution of the suit.</p> <p>3'. A Conveyance held Fraudulent. The conveyance in this case assailed for fraud was executed while the grantor was free from debt, but it was voluntary, and was one of several deeds of like character conveying all the grantor’s property to his children made when he was on the eve of engaging in a hazardous business enterprise, and, as the court found, to secure him a retreat in the event of probable pecuniary disaster; Held, that as against a subsequent creditor it was fraudulent and void.</p>

— Hon. George W. Dunn, J udge. 1. The petition, does not state facts sufficient to entitle the plaintiff to equitable relief. If the facts stated in the petition are true; the entry of the railroad company upon plaintiff’s land was a naked trespass, and ejectment would be the proper remedy. Walther v. Warner, 25 Mo. 277; Loans v. M., 1. &¡ N. B. B. Co., 64 Mo. 453; Walker v. C., B. I. $•. P. B. B. Co., 57 Mo. 275.

— ITon. John T. Redd, J udge. 1. Adjoiniug owners, appellants had created the avenue over their adjoining lands under.the belief that the avenue was likewise created over the land involved, and this was the moving consideration; they, with the public, had so enjoyed the avenue for seven years; the parties vending the land had, during said period, concurred and participated in said establishment and use of said avenue, knowingly and profitably availing themselves both of the…

Louis Court of Appeals. Plaintiffs’ petition alleged the incorporation of the North Missouri Railroad Company by special act, approved March 13th, 1850, for the purpose and with the power of constructing and operating a railroad from St. Louis to a p'oint in the northern boundary of the State; that, by an amendatory act, approved January 7th, 1853, said company was further empowered to extend and operate its road from St. Charles to St. Louis, provided all of said intended…

— Hon. Wm. T. Wood, Judge. Having paid the purchase money at the request of the vendee, and with the distinct and specific understanding and agreement that the lien should continue, the plaintiff' is entitled to the benefit of the vendor’s lien. Bartlett v. Glascock, 4 Mo. 62 ; Truesdell v. Callaway, 6 Mo. 605.