Volume 70 — Missouri Reports

— HoN. Geo. W. Dunn, Judge. 1865, provided as follows : “Dues from private corporations shall be secured by such means as may bo prescribed by law, but in all cases each stockholder shall be individually liable, over and above the stock by him or her owned, and any amount unpaid thereon, in a further sum at least equal in amount'to such stock.” The Liberty Female College Association was organized on the 15th day of January, 1868, under chap. 70, of the General Statutes'of…

— Hon. S. A. Richardson, Judge. 1. Where the attorney covenants in the name of -the principals, attests it in their names, signs their names and affixes their seals, it is not his deed, but that of his principals. Martin v. Almond, 25 Mo. 313 ; Shuetze v. Bailey, 40 Mo. 69; Wilburn v. Larkin, 3 Blackf. 55; Leming v. Bullitt, 1 Blackf. 24; 1 Am. Lead. Oases, 428. 2. The description in the power of attorney is sufficient.

<p>Life Insurance: suicide : sake or insane. It was provided in a policy of life insurance that in case of the death of the insured “ by his own act or intention, whether sane or insane,” the company should only be liable for the net value of the policy at that time. Held, that this provision embraced an intentional self-destruction by an insane man, provided the latter, at the time of causing his own death, was conscious of the physical nature and consequences of his act, and intended to destroy his life, though he was not conscious of the moral guilt or criminality of the act.</p>

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

— Hon. R. E. CowaN, Judge. Appellant was not liable to his tenants, or to any one coming in under them, for the condition of the premises, or for their being tenantable or safe for use for the purpose for which they were apparently intended or leased'. Davis v. Smith, 15 Mo. 468; Vai v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 573; Taylor Land. & Ten. (4 Ed.) § 327; Cleves v. Willoughby, 7 Iiill (N. Y.) 83. 2.

<p> Error to St. Louis Court of Appeals. </p>

<p>Appeal from Buchanan Circuit Court. — Hon. Jos. T. Gbubb, Judge.</p>

A. J. Seay, Judge. Action, for assignment of dower and damages for the deforcement thereof by the defendant. The facts are in the opinion. Before the widow can be entitled to dower, the husband, or some other person to his use, must have been seized, either in fact or in law, of an estate of inheritance in the land during the coverture. Wag.

— Hon. John C. Anderson, Judge. Suit under the gaming act to recover money won from the plaintiff at a game of “poker” in which he and the defendants, Agnew, Kelley, Werner and Philips were engaged.

Hamilton G. Wilson, Judge. 1. The reasons for the common law rule that one action in ejectment is no bar to another action upon the same cause of action, have ceased to exist, and the rule should cease also. The ancient fiction of the confession of lease, entry and-ouster, is wholly ignored by our statutes, and may be said to be positively forbidden.

Louis Court of Appeals. 1. The contract of 1846 was not a valid contract, as construed in and by the decree, and the appellant is not estopued to deny its validity. It was ultra vires the city as construed. Expressio unius cst cxclusio altcrius. Si. Louis v. Russell, 9 Mo. 503; Blair v. Perpetual Insurance Go., 10 Mo. 560; Haggles v. Collier, 43 Mo. 853; Matthews v. Skinker, 62 Mo. 329; H. § St. Jo.

— Hon. H. S. Kelley, Judge. cited Facey v. Fuller, 13 Mich. 527. argued that the statute does not require the justice’s docket to show that proof was heard. 2 Wag. Stat., § 15, 831; 1 Greenleaf Ev., (8 Ed.) p. 25, § 19. The omission does not affect the judgment. 2 Wag. Stat., § 15, p. 839; Freeman on Judging 47, § 53; Fish v. Fmerson, 44 N. Y. 377; Barrett v. Garragan, 16 Iowa 44. It will be presumed that evidence was heard. Freeman on Judgm., p. 533, § 524.

<p>Legislative Power over County Revenues: criminal costs. The Legislature having the same control over the revenues of the counties as it has over those of the State, may require costs in criminal : cases, which, at the time they accrued, were by law payable out of the State treasury to be paid by the counties. Hence, the State has not, since the 1st day of November, 1879, been liable for the board of a prisoner in the county jail for a term prior to that date,' the bill of which was not certified by the judge and prosecuting attorney until after that date, the revised statutes, which then took effect, having transferred that liability from the State to the several counties. $ 5608.</p>

<p>Statute of Limitations: acknowledgment Of debt. No acknowledgment of a debt, which is not made to some person, will interrupt the running of the statute of limitations. So held of an acknowledgment contained in a writing which, after the death of the debtor, was found among his papers, signed by him and purporting to be his will, but never attested.'</p>

— Hon. Thomas Whittaker, Judge. Plaintiff failed to show either title, or that defendant entered under him; yet asks the court to require the defendant to'pay him for an indefeasible title, and that, too, without even a tender of a paper warranty or deed. The agreement on defendant’s part to pay, and on plaintiff’s part to convey by deed, are mutual; and without tender of a deed plaintiff cannot recover. Dietrich v. Franz, 47 Mo. 85.

— Hon. Jos. P. Grubb Judge. 1. The damages alleged in the first action, sued for by the respondent, having a reversionary interest only, being of a permanent character, should have been recovered in that action. Wood on Nuisances, § 856. The respondent could sue for no other damages in either action than the permanent injury to the freehold while the possessoxy right was in Gault as tenant. Wood on Nuisances, §§ 825, 841.

This was an action against Louis F. Cottey as administrator de bonis non of the partnership estate of the late firm of Johnson Y. Strode & Son, on a note executed by said firm and one Gardner.

Louis Court of Appeals. 1. The power conferred by the act is the police power of the State. It is invoked for the preservation of public morals. It is of the same nature as the power to suppress nuisances, preserve health, prevent fires and enforcement of quarantine laws. The safety of society is the paramount law, Public exigency may require summary destruction, and the police power is of necessity despotic in its character, commensurate to the sovereignty of the State.

1. The testatrix .having advanced two-thirds of the purchase money with the distinct understanding between all the parties that the land should be charged with a lien to secure the payment of the same, the plaintiff’ is entitled to the benefit of a vendor’s lien, and it ought to be enforced in his favor. Warren v. Fenn, 28 Barb. 334. 2. The rule that a vendor’s lieu can only be enforced by the vendor, has several well defined exceptions.

Appeal .from Lafayette Circuit Court. — Hon. Wm. T. Wood, Judge.' This is a suit brought by Andrew Donnan against the Intelligencer Printing & Publishing Company, Wm. G. Musgrovc and John R. Reavis, to foreclose a deed of trust upon an interest in certain printing presses and other articles constituting the furniture and equipment of a printing office. Defendant, Musgrove, was originally the owner of all the property.

— Hon. G. Porter, Judge. J. No fraud in the procurement of the title bond is alleged in the reply, and there is no evidence to sustain such allegation, if made, and hence the first and fourth instructions given for plaintiff are erroneous. Moffatt v. Conklin, 35 Mo. 453. The law will not presume fraud. 1 Greenl. Ev., § 80. 2.

<p>Appeal from Justice’s Court: waiver op notice. In order to constitute a waiver of the notice required by law to be given when an appeal is taken from a judgment of a justice of the peace, a notice to take depositions served upon the appellant after the case is in the appellate court, should appear to have been given by the appellee or his attorney. If this does not appear, and the depositions' taken in pursuance of the notice have not been filed in court, it will, not operate a waiver.</p>

<p>Contract for Mutual services: .measure op damages. A party to a contract for mutual services cannot recover on the contract both the value of his services and damages for failure of the other party to render the services stipulated to be rendered on his side. If he ■ recovers the money value of his own services that is all he is entitled to.</p>

<p>Promissory Note: waiver of notice of dishonor of a promissory note cannot be shown by parol evidence. (Rodney v. Wilson, 67 Mo. 123.)</p>

<p>Appeal from Mercer Circuit Court. — Hon. G. N. Burgess, Judge.</p>

— Hon. Jos. P. Gbubb, Judge. 1. The devise to Mrs. Register was in. lieu of dower, as the will did not otherwise provide. Wag. Stat., § 16, p. 541. The will vested in her a life estate until she availed herself of the provisions of the 16th section and renounced the devise in her favor. This could only be done by an election in writing.

— Hon. Jos. P. Grubb, Judge. Under the leave given, the defendant reserved the choice 'of pleading by a time fixed or answering at a different time. Had he answered to the merits, after filing his plea in abatement, or first plead in abatement and then in bar in the same plea, such answer would have waived his matter in abatement.

<p>Appeal from Dent Circuit Court. — Hon. V. B. Hill, Judge.</p>

<p>Railroad: damage to cattle : action under 43rd section. In an action against a railroad company, for injury to cattle, brought before a justice of the peace under section 43 of the railroad law, (Wag. Stat., 310,) the statement must show that the injury was occasioned by the failure of the company to erect and maintain good and substantial fences along the sides of it's road. Luckie v. C. & A. R. R. Co., 67 Mo. 245.</p>

— Hon, A. J. Seay, Judge. In 1873 plaintiff leased .of defendant a farm stocked with milch cows, agreeing to keep the cows in good condition for one year, to ship the milk from them and the calves which they might bear to market, and to divide the proceeds of all sales equally with defendant.

<p>Acknowledgment of Partnership Instrument. A certificate of acknowledgment of an instrument executed in the name of a firm, should show Toy which member of the firm the signature was made and acknowledged. If the signing and acknowledgment purport "to have been done by the firm and in the firm name, the instrument will not be entitled to record.</p>

— Hon. W. E. Geiger,. Judge. 1. The allowance of the Putnam claim did not create any 'lien on the real estate. And the recitations in the judgment of allowance give no validity to the proceedings, because the probate court has no jurisdiction to enforce vendor’s lien. Prewitt v. Jewell, 9 Mo. 723 ; Local Acts of 1855, p. 58, 34. 2. The allowance of the claim was an action in personam, and should have been paid in common with all other fifth class demands.

<p>1. Husband and Wife : wife's personalty : invested in land in husband’s name. Land bought by. a husband in his own name with his wife’s money, but without any agreement that the purchase shall be for her sole and separate use, or that the title shall be taken in her name will not be treated in equity as her property.</p> <p>2 -: -: -. Money acquired by a married woman during coverture by her own frugality and industry, with the consent of her husband, is her own property, and if it is intrusted by her to him for investment, and is by him invested in land in his own name, the land will be treated in equity as hers. But the rule is otherwise where money so invested came to a married woman during coverture by inheritance. Being a chose in possession, it became the husband’ subsolute property by reason of his marital right, even though he received it from her in the capacity of her agent.</p>

— Hon. G. Porter, Judge. 1. The mortgage from Armstrong to Weber was not fraudulent on its face. There was nothing in it giving Armstrong the right to remain in possession of the goods and sell them for his own benefit; and the power to sell must have been given to Armstrong in the mortgage itself, before the court could, as a matter of law, declare it fraudulent.

<p>1. Instructions not predicated on any evidence in the case, are properly refused.</p> <p>2. Indemnifying Bond to Sheriff: valid though not in statutory form, A "bond given to the sheriff by a plaintiff' in .execution conditioned to indemnify a claimant of property taken -under the execution against damages by reason of the seizure, is a valid bond, though it lacks the condition for the indemnification of the sheriff called for by section 28, page 607, Wagner’s-Statutes; and the claimant may maintain an action on such bond.</p>

<p>A Sheriff’s Return upon a writ of summons showing that he has executed the writ by leaving a copy of the writ and petition “at the usual place of abode, when in the city of Cape Girardeau, of the within named defendant, with a person of the family over the age of fifteen years,” is bad, and a judgment by default rendered on such return is a nullity.</p>

— Hon. F. P. Wright, Judge. When Hazleton delivered the written instrument to the township board, in the body of which was written, “ We, Perry R. Hazleton, principal, &c., sureties, jointly and severally agree to pay,” &c., and commenced to perform the duties of constable, this was a sufficient signing of the instrument without it being subscribed by him. 3 Parsons on Contr., (5 Ed.) 5, 8; Bishop on Contr., p. 58, § 167 ; Coddington v. Goddard, 16 Gray 436, 444.

— Hon. Jos. P. Grubb, Judge. 1. The stipulation between the city and appellant as to the location of appellant’s machine shops is a condition subsequent, of which no one can avail himself except the city. Holden v. Joy, 17 Wall. 250; Kennett v. Plummer, 28 Mo. 145; Cooper v. Roberts, 18 How. 181; 4 Kent’s Com., 127 to 130 (7 Ed.) 2. The ordinance was signed by the mayor.

This was an action brought to recover fees claimed to have been earned in the prosecution of a suit by injunction, instituted for the purpose of protecting and securing the rights-of the county of Livingston as a stockholder in the Chillicothe & Brunswick Railroad Company.

— HoN. E. J. Broaddus, Judge. The plaintiff in Ms .petition claimed damages for two fires, one alleged to have occurred on the 1st day of February and the other on the 3rd day of February. 1. There being no fact shown, independent of the mere escape of fire, from which negligence may be found, the loss in damnum alsque injuria. Turnpike Go. v. Railroad Co., 54 Pa. St. 345 ; Railroad Go., v. Hendrickson, 80 Pa.

<p>1. Negligence of Railroad Company: escape op sparks. If sparks escaping from a railroad locomotive kindle a fire upon the company’s right on way. and the fire extends to and destroys adjoining property, the loss is prima facie the result of the company's negligence. The liability incurred will not be avoided by showing that the spread of the fire was caused by the wind, or that there was no considerable accumulation of combustible material on the right of way. '</p> <p>2. Instructions. It is error to submit to the jury an issue of fact, concerning which no allegation is made in the pleadings and no evidence is offered at the trial.</p> <p>6. Escapo of Spar.kc: failure of company’s servants to extinguish fire. The employees of a railroad company do not, by reason merely of their employment, owe any duty to the proprietors of lands adjoining the company’s right of way to extinguish a fire found on the fight of way.' If they omit to do so, and the fire extends to adjoining property and does injury, the company is not liable unless the fire originated through its negligence.</p>

— Hon. Jos. F. Grubb, Judge. 1. The court below erred in permitting the plaintiffs to introduce the records of the probate court to show that it was not in session on the 18th day of September, 1863.

— Hon. Jos. P. Grubb, Judge. The only restriction imposed by statute upon the power of the. stockholder to make transfers, is that all previous calls thereon shall have been paid in full. Wag. Stat., § 16, p. 292. The only power given to private corporations to make by-laws is: “ To make by-laws not inconsistent with existing law, for the management cf its property, the regulation of its affairs and for the transfer of its stock.” Wag. Stat., § 1, p. 289.

<p>Appeal from Buchanan Circuit Court. — HoN. Jos. P. Grubb, Judge.</p>

Louis Court of Appeals. Merritt, Ronaldson & Co., on the 9th day of October, 1874, sued Brock, Rogers & Co., by attachment, and caused the writ to be levied on certain merchandise.

— Hon. D. L. Hawkins, Judge. This is a suit commenced in the circuit court of Mississippi county on December 16th, 1871, by Charles P. Chouteau, praying judgment upon certain alleged bonds and coupons of the Cairo & Fulton Railroad Company of Missouri, claimed to be owned by the plaintiff, and for foreclosure'of a certain deed of -trust alleged to have been executed by said company to secure said bonds and coupons, and covering lands in the counties of Stoddard, Scott,…

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

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

<p>Error to Chariton Circuit Court. — Hon. G. D. Burgess, Judge.</p>

<p>Mistaken Possession, when Adverse. Where the owner of a tract of land takes into his inclosure adjoining land which does not belong to him, the possession of the latter will be deemed adverse to the true owner if it is held under the belief that the land lies within the bounds of his own tract, and without any purpose of surrendering, it to the true owner when the true line shall he ascertained. (Following Walbrunn v. Ballen, 68 Mo. 164.)</p>

<p>L Notice. After examining the evidence in detail, the court concludes that the plaintiff -and his grantor both had notice of the defendant’s title before they purchased the land in controversy in this case.</p> <p>2. Defective Conveyance of Equitable Interest: execution. A conveyance by the owner of an equitable interest in land of his title, though defective for want of a sufficient description of the property, is not a nullity, but will pass, the grantor’s interest; and a sale under an execution issued upon a judgment, subsequently obtained against him, will be of no effect.</p>

<p>1. Administration: judgment: limitations. No judgment is too old to be allowed against the estate of a decedent until the time has elapsed since its rendition, which the law designates as the period when presumption of payment may be indulged. E. S. 1879, ? 3251.</p> <p>2-: PRESENTATION of demands : notice. In presenting a judgment for allowance against the estate of a decedent, the same notice is required as in the presentation of other demands.</p>

— Hon. Wm. S. Shirk, Judge. Action by Henry Steffen and Mary, bis wife, against John P. Bauer and Wm. Page to set aside a deed of trust on land, the title to which was vested in said Mary. Page was trustee and Bauer beneficiary in the deed of trust.

<p>Action: equity : pasties. Plaintiff borrowed of C upon his note and mortgage, $5,000, of which sum it was agreed that plaintiff should receive $2,500, and the other $2,500 should be held to pay off an existing mortgage upon plaintiff's land when it should become due. The money was, by agreement, placed with the defendant bank, by whom $2,500 was paid to plaintiff, and the remainder was placed to the credit of one M, who converted it to his own use. The $2,500 mortgage coming due, C, to protect himself, bought it in and held it as a charge against the plaintiff and his land, and to indemnify himself, obtained further security from M. In an action against the bank, plaintiff obtained judgment for the money placed to the credit of M, with interest Held, that this was error, as plaintiff was in no event entitled to have this money ; Held, further, that in order to a complete adjustment of all the equities, C and M should be made parties to the suit.</p>

<p> Appeal from Webster Circuit Court. </p> <p>1. The variance was fatal. State v. Fay, 65 Mo. 490; State v. English, 67 Mo. 136; 19 Mo. 239 ; State v. Curran, 18 Mo. 320; State v. Havely, 21 Mo. 498; State v. Blankenship, 21 Mo. 504; Russ. & Ry. 351; 10 East 83; 5 Taunt. 14; 1 Baldw. 83; 2 Crom. & M, 189; 6 Price 2; 1 Chit. 659; 13 E. C. L. 194; 3 Chit. Pr. 231, 232; 4 T. R. 611; 3 B. & P. 559; 1 Stark. 47 ; 2 Stark. 29 ; 3 Camp. 29; 6 M. & S. 45; 2 N. II. 557; 7 S. & R. 479 ; 3 Caines 219 ; 1 Wash. C. C. 285; 4 Cow. 148. 2. Section 25, Wag. Stat., 1090, does not affect the theory of the defense in this ease, as that section refers to the wrong name or the party indicted and not to the party assaulted. In indictments the names of third persons must be correctly stated. Rose. Cr. Ev. R. 78; 18 E. C. L. 149; 10 East 83 n.; Ban. Ab. h. t.; Dane’s Ab. b. t.; 1 Yin. Ab. 7 ; 15 Yin. Ab. 466; .2 Phil. Ev. 2, n. b.</p> <p>1. The circuit court having found the variance to be immaterial and not prejudicial, the defendant was not entitled to an acquittal.. State v. Barker, 64 Mo. 282. 2. As the issue on which the testimony of Copening was offered, was one exclusively for the trial court, it necessarily follows that its competency or relevancy was also for that court. The language of the statute precludes a review of the ruling of the trial court as regards the' question of variance, and on the same principle it is precluded from reviewing the correctness of the ruling of that court in admitting evidence on this issue.</p>

— HoN. H. P. White, Judge. 1. The court erred in conducting the examination on the voir dire. The judge should never act as attorney for the State. State v. Davis, 66 Mo. 684; Archb. Crim, Prac. & Plead., (8 Ed.) 540, note a. 2. The testimony of witness Overbeck should not have been excluded. 3. The conviction of manslaughter upon an indictment for murder was erroneous. The indictment should inform the defendant of the nature and cause of the accusation against him. Const.

<p>1. Award: Defendant’s cattle were fed by plaintiffs, under an agreement that the fodder should be paid for at the end of the season at the customary price paid in the neighborhood, and defendant being unable to agree with plaintiffs what was the customary price, joined with them in submitting the question to arbitrators, who fixed the price. Held, that their determination was binding.</p> <p>2. Verdict. The verdict in this case, Meld; not liable to the objection of vagueness or uncertainty.</p>

— Hon. W. S. Shirk, Judge. If plaintiff has any equitable right to this land, he got it by the mortgage from Worley, and he could not acquire any greater or other equity than Worley would be entitled to, standing as he does as assignee of Worley. And it cannot be assumed that Worley could, in equity, force Rogers to convey by another deed of correct description, after the note was due, without tendering payment of the note or purchase money agreed to be paid.

— Hon. Geo. W. Dunn, Judge. Indictment for resisting arrest by a constable. During the argument of the case to the jury the prosecuting attorney made use of this remark: Malice may bud and bloom in a man’s heart almost in a moment, or in a short time. The other facts appear in the opinion. Defendant was convicted and appealed. 1.

<p>Estoppel: vortgage. A promise by a mortgagee made to a purchaser from the mortgageor to release his mortgage, with leave to the purchaser to make improvements, on the faith of which improvements have been made, do not operate an estoppel against the mortgagee, so as to prevent him from asserting a title derived through another and different mortgage.</p>

Louis Court of Appeals. 1. It appears, from the petition, that judgment was regularly obtained against this property, and that it was regularly sold for the taxes of 1868, and that the taxes sued for are the same for which the property was sold or forfeited to the State under the law in force at that time.

<p>Appeal from Bates Circuit Court. — Hon. E. P. Weight, Judge.</p>

<p>Appeal from Franklin Circuit Court. — HoN. A. J. Seat, Judge.</p>

— HoN. J. C. Anderson, Judge. Scire-facias on a recognizance by Horn, as principal, and Cherry, as surety.

<p>Appeal from, Stoddard Circuit Court — Hon. R. P. Owen, Judge.</p> <p>cited State r. Addcock, 65 Mo. 590; State v. Watson, 65 Mo. 115; State v. Newberry, 43 Mo. 429</p>

— Hon. E. O. Brown, Judge. The form of the proceeding adopted in this cause may be quasi criminal, but as any fine which may be collected goes into the county school fund (Const. Art. 11 § 12) the form is immaterial, and as the cause of action, if it may be so called, exists by reason of the commission of a crime, it is hard to understand how tbe form of procedure could be different.

— Hon. Geo. W. Dunn, Judge. To prove the corporate organization and existence of the Missouri City Savings Bank, a certificate was offered in evidence signed by Robert G. Gilmer, President, and Hugh J. Robertson, Secretary, dated April 24, 1869.

The case was tried before N. B. Giddings, Esq., sitting as Special Judge. 1. The instruction in relation to manslaughter in the second degree should not have been given. State v. Alexander, 66 Mo. 148; State v. Phillips, 24 Mo. 490; State v. Sloan, 47 Mo. 615; State v. Lane, 64 Mo. 324. 2. The indictment is uncertain, meaningless and absurd. 2 Bishop Crim. Proc., 552; 1 Wharton Prec. Indict. & Pleas, 115.

—Hon. Geo. W. Dunn. Judge. Section 6 says “ within which marriages are, by law declared to be incestuous and void.”' The statute in relation to marriages declares that marriages within certain degrees are absolutely void, but nowhere are any marriages declared incestuous and void. Other marriages, as between parties where either has a former husband or wife, are void under the law, but none are declared incestuous. Wag. Stat., §§ 2, 8, p. 929.

— Hon. E. O. Brown, judge. The plaintiff was entitled to recover the amount due, whether he established his lien or not. The law iis so settled in the case of mechanics’ liens, and there is no reason to distinguish the two eases. Patrick v. Abeles, 27 Mo. 184; Mulloy v. Lawrence, 31 Mo. 583. Our statute fixes the effect of atender. It also fixes the nature of the tender to be made.

<p>1. Competency of Jurors who have formed an Opinion. Several of the jurors, being examined on the voir dire, stated that they had formed and expressed opinions, which would require evidence to remove. They also stated that they knew nothing of the facts, and had not talked with any witness in the case; that their opinions were based upon what they had heard from others, and were not of such a character as would affect them in rendering a verdict that they would be governed by the law and the evidence, and thought they could decide the case according to the law and the evidence. Held, that under section 13, page 1103, Wag. Stat., they were competent to sit upon the trial of the case.</p> <p>2. Practice, Criminal: sentence upon general verdict. A general verdict of guilty upon an indictment in several counts, all relating to the same transaction, but charging different degrees of the same offense, will sustain a sentence for the highest degree charged, especially in a case where all the evidence shows that the offense could only have been of that degree, and the instructions relate only to that degree.</p>

<p>Deed of Trust: place of sale : Removal of court house. After the execution of a deed of trust, by the terms of which the trustee was authorized to sell at the court house in the City of Kansas, the court house was, by law, removed to and established at a different place in the same city. Held, that the trustee must sell at the new place and not at the old.</p>

<p>Joint Contract: pasty to suit: discharge of obligation. One of two obligees in a joint contract cannot sue upon the contract alone. Payment in full by the obligor to one of the joint obligees, discharges the obligation.</p>

-Host. John W. Henry, Judge. 1. The evidence is utterly insufficient to sustain the judgment. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73. 2. The agreement, if any was made, was not in writing, and was, therefore, void under the statute of frauds. There is no evidence of part performance in the case. Stone took possession immediately after the sale, and has remained in ever since.

Hamilton G. Wilson, Judge. 1. Mrs. Garaghty is not a proper party defendant. There being in the deed to her no words of exclusion of marital interests, it was an individual estate, over which the husband claimed rights. Bauer v. Bauer, 40 Mo. 62;. Tillman v. Tillman, 50 Mo. 41; Paul v. Leavitt, 53 Mo. 598; Valle v. Obenhause, 62 Mo. 85. As the only tenant in possession he was the proper party to be sued. Adams on Ejectment, Waterman’s notes, p. 889, § 327; p. 24; p. 233.

— Hon. John D. Parkinson, Judge. I. After the court bad permitted Hardy and Lindsey to testify, it certainly erred in refusing to allow defendant to provo their testimony false. This refusal cannot be justified by saying that it was immaterial where Robertson was; he was an alleged accomplice and co-conspirator Besides, the witnesses swore that they knew Robertson better than Earnest, and if they were mistaken as to one, they were likely to be mistaken as to the other.

Louis Court of Appeals. The third, fourth and fifth instructions given'for the defendant, are as follows : 3.

<p>1. Parol Evidence: Record entry. Parol evidence is admissible to explain whether an ambiguous marginal entry upon the record of a judgment is an assignment or a satisfaction.</p> <p>2. Principal and Agent: assignment of judgment. An assignment of a judgment made on the margin of the record by an agent, in his own name, but by authority of the principal, is good to pass the equitable title at least.</p> <p>3. Assignment of Judgment: execution. Irregularity or invalidity in the assignment of a judgment will not impair the title of a purchaser at a sale under execution issued on the order of the assignee.</p> <p>4. -: national banks. A National bank has power to assign a judgment in its own favor.</p>

— Hon. F. P. Wright Judge. 1. Plaintiff Fulkerson is entitled to have his judgments set-off against the judgment against him. Wag. Stat., §§ 3, 4, p. 837; Waterman on Set-off, 365, 395; Simson v. Hart, 14 John. 63; Miller v. Richardson, 1 Mo. 310 ; Thorndike v. De Wolf, 6 Pick. 120 ; Drake on Attachment, 572; Field v. Oliver, 43 Mo. 200; Story Eq. Jur.,§ 1437a; Austin v. Feland, 8 Mo. 309; Kent v. Rogers, 24 Mo. 306 ; Waterman on Set-off, 235, 242, 250, 334, 385, 396, 365. 2.

— Hon. G. Porter, Judge. 1. It was the duty of the State to call as witnesses all who were eye-witnesses of the homicide. Mrs. Railey was, therefore properly a witness for the State, and-the State had no right to offer evidence to impeach her testimony. State v. Wingo, 66 Mo. 182 ; State v. Foster, 61 Mo. 558; Comm. v. Drum, 58 Pa. St. 9; Maher v. People, 10 Mich. 225; State v. Underwood, 57 Mo. 40; 1 Wharton Am. Crim. Law, (6 Ed.) § 592; Roscoe’s Crim. Ev., (6 Am.

— Hon. V. B. Hill, Judge. This was a suit upon an account for goods furnished by plaintiffs to defendant. Defendant filed a counterclaim.

<p>Appeal from St. Louis Court of Appeals. The case is reported in 7 Mo. App. Rep. 468.</p>

Louis Court of Appeals. If the sentence condemned by Judge Hayden be read in connection with the entire charge, it will be found to be unobjectionable under the testimony, and not open to criticism.

— Hon. J. B. Robinson, Judge. This was an action upon the statute to recover double damages for the killing of a heifer. The statement filed with the justice, omitting the style of the case, was as follows: “ Before, Daniel Woolford, justice of the peace for Iron township, St. Francois county, Missouri.

— Hon S. A. Richardson, Judge. The offense charged in the indictment is a felony. 1 Wag. Stat., p. 516, § 33; State v. Joiner, 19 Mo. 224; Johnston v. State, 7 Mo. 183; State v. Green, 66 Mo. 647; and should, therefore, have been alleged to have been committed feloniously. Kelley’s Crim. Law and Prac., p. 97, § 188; State v. Davis, 29 Mo. 396; State v. Murdock, 9 Mo. 730; State v. Feaster, 25 Mo. 324; State v. Deffenbacher, 51 Mo. 26; State v. Green, 66 Mo. 647; 4 Black.

<p>1. Interest: remittitur. Error in an instruction authorizing the allowance of excessive interest will be cured by a remittitur of the excess.</p> <p>2. Instructions. It is no error to refuse an instruction when the principle it announces is fully and clearly declared in one that is given.</p> <p>3. Dissolved Partnership: remedy of late partners. Where a partnership has been dissolved and the partners have accounted with each other as to everything except one item, one may maintain an action at law against the other for his share of that item.</p> <p>4. -:-: practice. Even if a proceeding in equity for an accounting were the plaintiff’s proper remedy, yet if the case was tried in the lower court by both parties on the theory that an action at law was the proper remedy, it is too late to raise an objection on that score for the first time when the case has reached the Supreme Court.</p>

Louis Court of Appeals. 1. The evidence does not show any persuasion or undue influence, nor any circumstances of imposition or fraud on the part of the donee to induce the gift; but on the contrary clearly and sufficiently explains and rebuts any prima facie presumption of fraud, imposition or undue Influence arising from the .mere fact of the relation of spiritual adviser. In such cases the authorities sustain the gift.

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

— Hon. J. R. Woodside, Judge. This was a suit brought by Seth B. Woodworth and Mary C. Chapin, (formerly Woodworth,) as heirs at law of Stephen R. Woodworth, deceased, against Ellen Wood-worth, D. E. Durham and Wm. Monks. The suit was brought against Ellen Woodworth as executrix of Seth P. Woodworth, and against Durham and Monks as sureties in a bond given by Setb P. Woodworth in his life time as executor of said Stephen R. Woodworth.

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

<p>Appeal from Pettis Circuit Court. — Hon. Wm. T. Wood, Judge.</p> <p>cited in argument Kelly v. Home Ins. Co., 2 Cent. Law Jour. 478; Ellington v. Moore, 17 Mo. 424; Poor v. Humboldt Ins. Co., 125 Mass. 274; s. c., 7 Ins. Law Jour. 874; Hartford Ins. Co. v. Smith, 3 Col. 422; s. c., 7 Ins. Law Jour. 140; American Ins. Co. v. Padfield, 78 Ill. 167; s. c., 4 Ins. Law Jour. 893; Chamberlain v. Ins. Co., 55 N. H. 249; Hill v. Equitable Fire Ins. Co., (N. H. Sup. Ct. 1877,) 6 Ins. Law Jour. 314; Harrington v. Fitchburg Mut. Fire Ins. Co., 124 Mass. 126; s. e., 6 Ins. Law Jour. 618 ; Livingston v. Stickles, 7 Hill 255 ; Catlin v. Springfield Ins. Co., 1 Sumn. 434; Breasted v. Farmers’ L. T. Co., 4 Seld. 305; Ins Co. v. Slaughter, 12 Wall. 404; Rann v. Home Ins. Co., 59 N. Y. 387; Reynolds v. Com. Ins. Co., 47 N. Y. 597; Hynds v. Schen. Ins. Co., 11 N. Y. 554; Commercial Ins. Co. v. Robinson, 64 Ill. 265.</p>

-Hon. W. E. Geiger, Judge. This was a suit upon a note made by defendant Paris with defendants Holland and Bigbee as sureties. The note was given in settlement of a demand which bad been allowed against the estate of John Young deceased, of which Paris had been administrator.

<p>1. Bill of Exceptions; judicial notice. This court cannot consider a bill of exceptions filed after the lapse of the term at which the motion for new trial was disposed of, unless the record shows that the filing was with consent of the adverse party. To determine whether it was filed after the term, judicial notice may be taken of the times fixed by statute for holding court.</p> <p>2. Larceny; embezzlement. Section 15, page 514, Wag. Stat., expressly authorizes a person indicted for larceny to he convicted of embezzlement. This statute was overlooked in State v. Stone, 68 Mo. 101, which case is, for that reason, overruled.</p>

<p>Error to Daviess Circuit Court. — Hon. S. A. Richardson, Judge.</p>

<p>1. Justice’s Docket, &c.: evidence. The identity of the docket and official papers of a justice of the peace may be established by the testimony of any competent witness. It is not necessary to call the justice.</p> <p>2. Constitutional Law: amendment of statutes. Section 34 of article 4 of the constitution of 1875, does not require that when some of the sections of an act are to be amended, the entire act shall be set forth in the amendatory act, but only that those sections as amended shall be set forth in full.</p> <p>The act of April 17th, 1877, amending the statute of 1865, in relation to the concurrent jurisdiction of circuit courts and justices of the peace in misdemeanor cases, conforms to this requirement. (Acts 1877, p. 281.)</p> <p>3. -: subject of act : title of act. The above act of 1877 is not obnoxious to section 28 of article 4 of the constitution. It contains but one subject, and that is clearly expressed in the title.</p> <p>4. Justice’s Docket Entries: evidence. The statute authorizing a certified transcript of justices’ judgments to be received in evidence does not provide the only method of proving such judgments. The original entry on the justice’s docket maybe used.</p>

— Hon. S. H. Woodson, Judge. The defendant’s land consisted of several parcels, all of which were connected together so as to form one tract, but some of which were not touched by the plaintiff’s road.

<p>1. Practice: instructions ; evidence. Under the present system of practice it would be improper to instruct the jury that admissions made by the accused are regarded as the very weakest character of testimony, and should be received with the greatest caution. It is not for the court to instruct the jury as to the weight or sufficiency of evidence.</p> <p>2. Practice, Criminal: temporary absence op prisoner during trial. The fact that one of the defendants in a criminal case was absent from the court room for a few minutes while the prosecuting attorney was making the closing argument for the State, will not vitiate the verdict.</p> <p>3. -: temporary absence op juror. The absence of a juror from the box for a few minutes during a temporary suspension of proceedings in a criminal case, will not vitiate the verdict.</p>

— Hon. H. P. White, Judge. I. If a road was established at all, it must have been done-by the county court, and under the statute in force at the time. R. S. 1855, p. 1390, § 15. The action of the court should appear of record. R. S. 1855, p. 536, § 23; Medlin v. Platte Co., 8 Mo. 235 ; Milan v. Pemberton, 12 Mo. 599. There being no proof that any such record had been made and lost, parol evidence of the existence of the road was inadmissible.

<p>Error to Jackson Circuit Court.—Hon. S. H. Woodson, Judge.</p> <p>cited in argument Tyler v. Parr, 52 Mo. 249 ; Bell v. Kaiser, 50 Mo. 150 ; Woods v. Stephens, 46 Mo. 555.</p>

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

<p>Bill of Exchange: erasure op restrictive indorsement without drawer’s knowledge : parol evidence. A drew upon B a bill of exchange for the amount of a debt due him from B. The bill was made payable to the order of C, who indorsed it: “ Pay to D or order for collection for account of C.” B received the bill, erased the indorsement, and procured the discount of thebill at the plaintiff bank. A afterwards received from B the proceeds of the discount. The bill not being paid, the plaintiff sued A, alleging that in procuring the discount B was acting as the agent of A. Held, 1st, That this could not be shown by parol evidence; 2nd, That the restrictive indorsement by 0 destroyed the negotiability of thebill, and operated as a mere authority to D to receive the proceeds for the use of A, 3rd, That the erasure of the indorsement, without the assent of A, destroyed the validity of the bill as to A, and plaintiff was bound to know that such was the effect when he discounted it.</p>

—Hon. F. P. Wright, Judge. Thirty days is the time fixed by statute within which the obligee in a bond, bill or note must proceed to enforce his demand against the principal obligor when so required by the surety. R. S., §§ 3896, 3897.

<p>1. Bond Substituted for lost Bond: burden of proof in action on. In an action on a bond given in lien of a bond which has been lost, with the understanding that the obligor shall not be held liable on the substituted bond unless the original cannot be found, the plaintiff cannot recover without proving that the original has not been found.</p> <p>2. Amendment of Pleadings. Under the circumstances disclosed in the record, the trial court committed no error in refusing permission to the defendant to file an amended answer during the trial.</p>

<p>Appeal from Andrew Circuit Court. The case was tried before N. B. Giddings, Esq., sitting as Special Judge.</p>

Louis Court of Appeals. 1. The entry, “ Loss, if any, made payable to F. Fuchs,” bound the company to pay Fuchs whatever loss Cabanne should suffer within the terms of the policy. Hale v. Fire Ins. Co., 6 Gray 169; Fogg v. Middlesex Ins. Co., 10 Cush. 337; Macomber v. Ins. Co., 8 Cush. 135. As Fuchs never, either by assignment or otherwise, parted with his right, he was the proper party to sue. 2.

—Hon. G. H, Burckhartt, Judge. Replevin for a portable mill and boiler. The facts were as follows: Bemis, Bro. & Co. having caused an attachment to be levied on the mill and boiler as the property of Hursh, Graham & Co., the plaintiff, Wangler, claiming title, asked and obtained leave of court to interplead in the litigation which ensued, in order that he might assert his title.

— Hon. R. E. Cowan, Judge. This was an action for damages clone to plaintiff’s crops by defendant’s cattle. Defendant did not deny the damage, but alleged that the fence inclosing plaintiff’s field was not a lawful fence, whereby the cattle broke in, The evidence tended to show that the fence consisted of posts and plank to the height of about four feet, over which were placed stakes with rails for riders, so as to raise the fence to the total height of five feet ten inches.

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

—Hon. J. T. Redd, Judge. The executions in question in this case all came into the hands of the constable prior to the 21st day of July, 1875.

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

<p>Appeal from Jackson Special Law and Equity Court.—Hon. R. E. Cowan, Judge.</p> <p>1. No authority in Lee is shown to make the contract. Wharton on Agency, §§ 127, 129,137, 459; Farnsworth v. Brunquest, 36 Wis. 202; Pole v. Leash, 33 L. J. Eq. 155; Burroughs v. R. R., 100 Mass. 26; Wait v. R. R., 5 Lansing (N. Y.) 475; Dean v. King, 22 Ohio St. 118. 2. A railroad company cannot be required, as a common carrier, to deliver goods at a point beyond or off its own line of road. People v. R. R. Co., 55 Ill. 95 ; Cobb v. R. R. Co., 38 Iowa 601.</p> <p>1. Railroad corporations have power implied in their general corporate powers to contract as common carriers for the transportation of goods beyond their own lines. R. R. Co. v. Pratt, 22 Wall. 123 ; Musehamp v. R. R. Co., 8 M. & W. 421; Weed v. R. R. Co., 19 Wend. 534; McCluer v. R. R. Co., 13 Gray 124; Nashua Lock Co. v. R. R. Co., 48 N. H. 339; Burtis v. R. R. Co., 24 N. Y. 269. The authorities are in conflict as to whether a contract to carry beyond the company’s line may, under certain circumstances, be implied. But in this case there is an express contract. 2. The authority of Lee was general and not special in respect to receiving and contracting for freight to be transported by defendant’s road, lie had general authority to act as defendant’s freight agent at Kansas City. The execution of the contract sued on by him, therefore, was an exercise of defendant’s ordinary corporate powers, and an act which was usual in the line of business in which he was employed, and that authority could not be limited by defendant’s rules and regulations not permitting him to make such contracts without special permission, because they were simply private orders or directions not known to the plaintiff. Wharton on Agency, § 121.</p>

<p>1. Trials : instructions ; promissory notes : indorser. Instructions should he predicated upon all the material evidence in the case.</p> <p>In a suit against an accommodation indorser of a promissory note, the defense set up was that the indorsement was obtained by means of a representation and promise to the indorser, by the plaintiff, that he was in possession of certain securities belonging to the maker of the note, with which to secure the note, and that, in case of the maker’s failure to pay the same, the securities should be turned over to the indorser for his indemnification; and that defendant had tendered to plaintiff the amount of the note, and demanded the securities, which had been refused. There was evidence that one of the securities had come to the possession of defendant as a member of a partnership, to secure a loan by the firm to the maker of the note, and that the other securities had come to his possession, as one of the assignees, under an assignment by the maker for the benefit of his creditors. Held, that as such possession of the securities would confer no right on the defendant to use them for his individual benefit in the payment of the note, instructions which directed the attention of the jury to the naked question, whether or not the securities had been received by the defendant, ignoring the capacity in which and the object for which he had received the same, were calculated to mislead, and were erroneous.</p> <p>2. -: evidence: indorser. Where it was part of the defense of an indorser of a note, that he was induced to make the indorsement by plaintiff’s promise to deliver certain securities for his indemnification, his testimony that he had never before indorsed the paper of the maker, and would not then have done so unless he had felt amply secured by the collaterals, was held to be competent as tending to prove the defense.</p>

Louis Court of Appeals. There was no consideration moving from plaintiff to defendant to support the promise; Luge v. Becker, 31 Mo. 466 ; Manny v. Frasier, 27 Mo. 419 ; and no privity of contract between them. The promise of Barker to assume and pay the deed of trust notes, which were outstanding as an incumbrance upon the property, was solely for the benefit of Thomas.