Volume 72 — Missouri Reports

This is a proceeding by writ of quo warranto issued on the relation of the attorney general. The information stated that the respondent, Collier, had usurped and intruded into and was unlawfully holding and executing the office of judge of probate in and for Callaway county, and that he had no right or authority to hold the office; that, at the regular election held in said county for county officers on Tuesday, the 5th day of November, 1878, Middleton Q-.

<p>1. Injunction, Immaterial Irregularity In. It is no objection to the validity of a decree for a perpetual injunction made upon a final hearing in the circuit court, that a temporary injunction has at the beginning of the case been issued by the clerk of the circuit court in pursuance of an order of the probate court, it appearing that the latter court had jurisdiction to grant temporary injunctions.</p> <p>2. Practice. This court cannot review the action of the trial court in striking out part of defendant’s answer, unless the record shows that objection was made and exceptions saved at the proper time, and there is something in the record to identify the part stricken out.</p> <p>3. Heirs of party to deed as Witnesses, other party being dead The children of the grantee in a deed, who by reason of their heir-ship become plaintiffs in a suit against the legal representatives of the grantor, are not disqualified by the fact that the grantor is dead, from testifying in relation to the execution of the deed. They are not original parties to the cause of action, and hence are not within the restrictions of section 4010, Revised Statutes, in relation to witnesses.</p> <p>4. Possession of Land, as Notice of Occupant’s Claim of Title. One who has knowledge of the fact that land is in the actual possession of another, is thereby put upon inquiry as to the rights of the occupant, and if he purchases, will be held to take with notice of those rights.</p> <p>5. Equity Jurisdiction: injunction: deed of trust. Equity will interfere by injunction in favor of one claiming title to land through an unrecorded deed, to prevent a sale under a deed of trust held by one who took it with notice of the plaintiff’s claim.</p>

— Hon. S. A. Richardson, Judge. Ejectment. Plaintiffs claimed through a sale under execution against Lewis Asher. The defendant, who was formerly the wife of said Lewis, but had obtained a divorce from him, claimed under the homestead act.

<p>1. Practice, Criminal: assistant to prosecuting attorney. It is not error to permit an attorney assisting the State’s attorney in the prosecution of a criminal case to make the opening statement to the jury. R. S., ? 1908.</p> <p>2. -: -. Certain remarks made by the prosecuting attorney in his closing address to the jury. Held, not to have been of such a character as to prejudice the defendant, or call for a reversal of the judgment.</p> <p>3. -: Conduct of jurors and bailiff in charge of jury. While it is improper for a juror in a criminal case to ask advice of the officer in charge of the jury in relation to the case, and equally improper for the officer to communicate such inquiry to the prosecuting attorney, yet if the officer made no response to the juror, and it is shown that the defendant was not in any way prejudiced, such inquiry of the officer and communication by him to the prosecuting attorney will furnish no ground for setting aside a conviction.</p> <p>4. -: evidence on threats. In .the absence of evidence of conspiracy between father and son, antecedent threats made by the son against the life of the defendant are not admissible in evidence on behalf of the defendant upon the trial of an indictment for an assault upon the father.</p> <p>5. Allocution of the judge in cases not capital. On a conviction of an offense not capital, the omission to enter of record the allocution, or formal address of the judge to the prisoner asking him if he has anything to say why sentence should not be pronounced against him, is not an error for which the judgment should be reversed.</p>

<p> Quo Warranto. </p>

<p>Appeal from Linn Circuit Court. — Hon. G-. t>. Burgess, Judge.</p>

<p>1. Practice, proof of guardianship. The answer denying the plaintiff’s right to sue as guardian, and no evidence having been offered of her appointment as such, so far as the record shows, the judgment in her favor is, for that reason, reversed.</p> <p>'¿. Railroad: free rider on freight train, to be- regarded as a passenger, when. It seems that a person riding on a freight train on which passengers are allowed to be carried, is to be regarded as a passenger, although' he may have boarded the train without the knowledge or permission of the conductor and paid no fare, if the conductor, after becoming aware of his presence, permits him to remain.</p> <p>3. Master Liable for Torts of Servant, when. It is well settled that to make the master liable for the tortious act of his servant, the act causing injury must have been in the line of the servant’s duty and within the scope of his employment. Upon this principle, where the conductor had exclusive control of a railroad train and of all persons on it, but a brakeman, nevertheless, without the knowledge of the conductor, assumed to direct a boy on the train to perform a certain service, and in the attempt to comply with the order the hoy was injured; Held, that the railroad company was not liable.</p> <p>4. -: EFFECT OF PLAINTIFF’S YOUTH ON THE RULE OF LIABILITY. The youth of a person injured on a railroad train may excuse him from concurring negligence, but it cannot supply the place of negligence on the part of the company, or extend the liability of the company for tortious acts of its servants.</p> <p>5. --: injuey to passenger on freight cae. If - a passenger on a freight train is injured while simply riding on a freight car by reason of an accident to the train, the company will be liable if the rule prohibiting passengers from riding elsewhere than in the caboose is not conspicuously posted as required by law; but it is otherwise if the injury is the result of an attempt on his part to perform an unauthorized service for the company.</p>

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

— Hon. Andrew Ellison, Judge. argued that an insane person’s contracts prior to office found are, like those of an infant, not void but voidable, and before he can recover, he must place the other party in statu quo, citing 2 Kent Com., (10 Ed.) pp. 606, 607; Jackson v. Gumaer, 2 Cow. 568; 28 Am. Rep. 610 ; Loomis v. Spencer, 2 Paige 153 ; Canfield v. Fairbanks, 63 Barb. 461; Lancaster Co. Bank v. Moore, 78 Pa.

<p>1. The Instructions given by the circuit court upon the last trial of this case being in conformity with the ruling of this court when the case was here before, (63 Mo. 33,) the judgment is affirmed.</p> <p>2. National Banks: dealings beyond tiieib corporate powers. The maker of a non-negotiable note discounted with a National bank cannot question the right of the bank to recover on it, on the ground that National banks have no right to deal in that kind of paper.</p>

<p>1. Compulsory Production of Telegraphic. Messages in Court: LIABILITY OF COMPANY’S AGENT TO PUNISHMENT FOE REFUSAL. Telegraphic messages in the possession of the officers of the company, are not privileged communications. No act of Congress puts them on the same footing with the mails; and no statute of the State or principle of law gives them any different standing from, that occupied by any communication made by one through another to a third party, with respect to the liability of the confidant to be called as a witness to produce it or testify to it. The agent of a telegraph company may, therefore, be compelled by proper process tp produce such messages before the grand jury; and no rule of the company can excuse him from liability to punishment for refusal so to do.</p> <p>2. -: CERTAINTY OF DESCRIPTION OF PAPERS REQUIRED IN SUBPCENA' duces tecum. A subpoena duces tecum to compel the production of telegraphic dispatches should give a reasonably accurate description of the papers wanted either by date, title, substance or the subject to which they relate. The following description is not sufficiently certain: Dispatches between Dr. J. O. Nidelet and A. B.Wakefield, and William Ladd and J. 0. Nidelet, and William Ladd and Dr. Nidelet, between Warren McOhesney and A. B. Wakefield, between Warren McOhesney and J. 0. Nidelet, between the latter and John S. Phelps, between A. B. Wakefield and John S. Phelps, between the latter and William Ladd, and between Geo. W. Anderson and A. B. Wakefield, sent or received by or between any or all of said parties within fifteen months last past.</p>

— Hon. R. E. Cowan, Judge. This was au action on certain special tax bills for work done on Bell street, Kansas City. The defense was that the street had not been brought up to the grade fixed by ordinance, and the evidence showed that the surface of the street was two and one-half feet lower than the grade established by ordinance No. 5205.

Habeas Corpus. argued that the constitution does not permit the finding of an indictment by a grand jury of any county other than that in which the offense is committed, and that section 1804, Revised Statutes, is, therefore, unconstitutional, citing 4 Black. Com., 303, 350; Wharton Crim. Law, 277, 279; 2 Hawk. PI. Or., 313, § 34; 1 Starkie Or. PL, (2 Ed.) 14; 1 Bish. Cr.

— Hon. E. 0. Brown, Judge. The facts are stated iu the opinions. Held: and in the absence of any such rule, it must be a matter depending upon the contract between the corporation and the stockholder, as to who is the owner of stock.

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

<p>1. Amendment. On the trial in the circuit court of a case appealed from the probate court plaintiff asked, but the court refused, leave to file an amended statement of his cause of action. The proposed amendment did not change the cause of action, but simply consisted of credits, whereby plaintiff’s demand would be reduced, but the plea of the statute of limitations would be avoided. The application was accompanied by plaintiff’s affidavit showing why he had failed to give these credits before. Held, that the application should have been granted. Amendments are favored in furtherance of justice.</p> <p>2. Statute of Limitations, Proof of Credits Avoiding. When the statute of limitations is relied on as a defense to a note the plaintiff should not be permitted to read in evidence credits indorsed on the note, without first proving when the indorsements were made. When it is shown that they were made at a time when it was against his interest to make them, or that they were made by or with the consent of the payor, they will be admissible, but not if they were made by the holder himself without the knowledge or consent of the payor, and there is no other proof that the payments were then made.</p> <p>3. Witness : one party to a contract eead. When the maker of a note is dead, the payee is not a competent witness, on his own behalf, to prove payments made by the deceased.</p> <p>4. Evidence. In an action to establish a claim consisting of many items, against the estate of a deceased person, evidence was offered in chief, to show that he was a man of careless business habits, slow to pay and loth to settle. Held, that it was properly excluded.</p>

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

<p>Partition : sale after expiration op order op sale is void. An order of sale in partition expires with the term at which the sale is required to he made, and if for want of bidders, no sale takes place at that term, a renewal of the order must be procured before any further steps can he taken. A sale at a subsequent term without such renewal is void.</p>

<p>1. Deed: description by reference to another deed. It is no objection to a deed that it does not describe the land conveyed, if it refers for description to the hook and page of a record where another deed is recorded which does describe it.</p> <p>2. -: description: call for “the hills” held to prevail over call for distance. A deed executed in 1810 described the southern boundary of the tract conveyed as “ twenty arpens in depth from east to west, that is to say from the river Gingras to the hills.” Actual measurement subsequently made showed that the distance from the river to the hills was twenty-five arpens. In 1807 the Board of United States Commissioners had confirmed to th e grantor in this deed all the land lying between the river and the land of one S., which lay in the hills. In several conveyances sub' sequent to 1810 both the grantor and the grantee, under whom respectively the parties to this suit claimed, recognized the southern boundary as it was described in the deed of that date, invariably calling for the hills as the western terminus of the line. Held, that although the call for “ the hills ” might otherwise have been too indefinite, yet, effect must be given to the studied repetition of that call in all the deeds, and it must prevail over the call for twenty arpens. The deed of 1810 was, therefore, construed as conveying all the land between the river and the land of S. in the hills.</p>

<p>Appeal from Andrew Circuit Court. — Hon. IT. S. Kelley, Judge.</p>

Quo Warranto. The writ charged that respondent, without any charter, act of incorporation or other legal authority, was. usurping and using the liberties, privileges, rights and franchises of a life insurance company ; that it was making and entering into contracts whereby, in consideration of a stipulated sum of money paid to it, it undertook to indemnify individuals against losses by death ; that it was insuring human lives for and in consideration of premiums paid to it;…

<p>Appeal from Montgomery Circuit Court. — Hon. G. Porter, Judge.</p> <p>The following diagram shows the crossing and its surroundings.</p> <p> </p>

<p>Appeal from Randolph Circuit Court. — Hon. G-. H. Burok-HARTT, Judge.</p>

— Hon. R. E. Cowan, Judge. In Rodney v. Wilson, there was no question but that there was a contract of indorsement, and the writing must control.

Louis Court of Appeals. 1. The conveyance or lien embodied in the quoted clause in the lease has no reference to the property in dispute, because it was not in existence at the time the lease was made, and the language of the clause is in prmsenti, not in futuro. 2.

— IIon. H. S. Kelley, Judge. This was a suit to enjoin and set aside a judgment and to grant a new trial. The plaintiffs, Dobbs, Stotts and Muse, as sureties for one Harlan, executed a note to the St. Joseph Eire & Marine Insurance Company, on which the company subsequently sued. The sureties defended, alleging that the company, without their knowledge or consent, for a valuable consideration had granted an extension of time to the principal.

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

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

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

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

— Hon. D. L. Hawkins, Judge. 1. Even if the surplus of $939.85 realized over and above the bid could be considered as realized from the sale under the mortgages, this amount is already appropriated to the payment of the real and bona fide debts of Joel Wilkinson, and in no sense can it be claimed that Nathan is indebted to him. 2.

<p>Practice. If the reply fails to deny allegations of the answer, which, if true-, are sufficient to defeat the action, defendant should avail himself of the omission in proper time. It will be too late after verdict and judgment.</p>

— Hon. A. J. Seay, Judge. 1. The parents of the minor were domiciled in St. Louis county; their home was the minor’s; by no act of hers could she have acquired a different one, for she was incapable by reason of her infancy, of exercising a discretion, and absence or removal by constraint would not have changed her legal status. Forbes v. Forbes, 18 Jur. 642 ; Story Conf. Laws, § 46.

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

<p>1. Practice in the Supreme Court: presumption in favor of action op trial courts. Where the bill of exceptions states that the court made its finding upon the evidence and after hearing argument, but no evidence is preserved, this court will not disturb the finding on the ground that it is unsupported by evidence. The presumption will be indulged that the evidence was sufficient.</p> <p>2. -: referee’s report. This court refuses to review the action of the trial court upon exceptions to the report of a referee, charging that the report did not contain all the evidence taken, and that the referee’s conclusions were not supported by the evidence.</p> <p>3. Referee’s Report. A second report made by a referee after the first has been disapproved and the case has been re-referred to him, cannot be treated as an amendment of the first.</p>

S. H. Woodson, Judge. After tbe jury bad been out several hours, they came tuto court and announced that they were unable to agree. 'The judge then spoke to them of the time that bad been ■consumed in the trial of the case, and discharged them until next morning, telling them : “ Gentlemen, come back to-morrow morning with a determination to compromise.” When they came into the box next morning, tbe court :again spoke to them of the great importance to the parties ■.and to…

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

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

<p>Appeal from Cape Girardeau Court of Common Pleas. — Hon. H. G-. Wilson, Judge.</p>

<p>Appeal from Andrew Circuit Court. — Hon. H. S. Kelley, Judge.</p>

— Hon. G. D. Burgess, Judge. This action was brought by Butler and Henry as administrator's of the estates of Mary Tillett, John M. Hall and Nathan Hall, all deceased, against James J. Lawson, administrator of the estate of Spence H. Gregory, deceased, Mildred L. Lawson and her husband, James J. Lawson, Emma Jennings and her husband, James T. Jennings, Robert Gudgel, Spence Gudgel, Julian Gudgel and Elizabeth Gregory, widow of Spence II. Gregory, deceased.

<p>Appeal from Randolph Circuit Court. — Hon. G. H. Burckhartt, Judge.</p>

<p> Appeal from St. Louis Court of Appeals. </p> <p>1. Hurck had a right to employ the capital in the support of the. beneficiary; because there was no other means of support. Robison v. Killey, 30 Beav. 520; Lowther v. Bentinck, 44 L- J. Ch. (N. S.) 197. Besides, the authority is given by the will, (a) In express terms : He is directed to pay such sums as he may deem necessary out of two-thirds of the “ proceeds ” of the estate, as well as from two-thirds of the income thereof. “ Proceeds ” means, primarily, money obtained from the sale of a particular object or estate. 2 Burrell Law Dict., 832; Belmont v. Ponvert, 3 Jones & Sp. (N. Y.) 208; s. c., 63 N. Y. 552; Dow u. Hope Ins. Co., 1 Hall 166; Dow v. Whetten, 8 Wend. 160;. Haven v. Gray, 12 Mass. 71. (b) By implication : The first, third, fourth and sixth clauses clearly show that the testator intended to permit the use of the corpus of the estate, if the income did not prove sufficient. Reinders v. Koppelmann, 68 Mo. 482.</p> <p>2. The amount to be allowed John W. Rice (not exceeding two-thirds of the estate), being left to the uncontrollable discretion of the trustee, the court will not interfere, there being no evidence of fraud. 2 Perry on Trusts, § 510; Hill on Trustees, s. p. 437, and cases cited; Hill on Trustees, s. p. 494; Nichols v. Eaton, 91 U. S. 724; In re Wilkes, 7 Eng.- L. & Eq. 84, 85.</p> <p>3. The trustee had .the legal right to advance his own moneys to John W. Rice, having no moneys of the trust estate in his hands, and he or his representative is entitled to be reimbursed from the trust estate. 2 Perry on Trusts, § 485; Iredell v. Langston, 1 Devereux Eq. 392; Balsh v. Hyham, 2 P. Williams 453.</p> <p>4. The cestui que trust cannot eompel the trustee to convey until the demands of the latter against the estate are satisfied. Jones v. Dawson, 19 Ala. 672; Marray v. De Rottenham, 6 Johns Ch. 52; Noyes v. Blakeman, 6. N. Y. 567 ; King v. Cushman, 41 111. 31; Robles v. Clarke, 25, Cal. 317; Morton v. Ado.ms, 1 Strobh. Eq. 62.</p> <p>5. The trustee is entitled to be allowed for advances to the same extent as the chancellor would have originally authorized, had he been applied to. Perry on Trusts, § 915 ; Williams v. Smith, 10 R. 1.280; In re 'Bostwick, 4 Johns. Oh. 100; Williamson v. Berry, 8 How. 555, 556 ; Otte v. Beeton, 55 Mo. 100.</p> <p>The word proceeds, as employd in the will, is synonymous with the other words employed, and means the product of the estate and nothing more. To uphold the interpretation contended for by defendants, we are driven to the absurd proposition that the testatrix intended that her trustee might turn over the whole two-thirds of the balance of the estate to John W. Rice; the object of appointing a trustee at all was to prevent John from having control of the property, or applying, as he saw fit, the principal to his own uses, and to carve out a support for him from the product of the two-thirds of the estate ; any other interpretation would defeat the whole object, purpose and intent of the will. By the will, if John marry and die, leaving issue him surviving, then the trustee should hold all the above balance of the testatrix’s estate in trust for such child or children. What becomes of this provision, if the balance (which is the share or shares, the use or product of which John was to have), might be entirely consumed, and capital and all divested by trustees for the wasteful extravagance of John? The construction contended for by defendants is, that as to two-thirds of the estate, John was the sole beneficiary ; the subsequent devisees are entirely lost sight of and defeated</p>

<p>Justice’s Courts: joinder oe several causes on action : jurisdiction. If one person have two causes of action against the same defendant, both cognizable before a justice of the peace, one because it is within the limit of a justice’s jurisdiction, and the other because it is of a class which justices may entertain without regard to amount, the two may be united in one complaint in a justice’s court, though the aggregate exceed the limit of his jurisdiction in cases where jurisdiction depends upon the amount involved.</p>

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

<p>Error to Nodaway Circuit Court. — Hon. H. S. Kelley, J udge.</p>

This is an action brought by Christian Koerner, as guardian of Francis L. Brebaugh, a minor, against Bolte and Perschbacher, sureties on the bond of Catherine, the mother and fi'rát guardian of said minor.

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

<p>Negotiable Paper: fbauí> as a defense : order of evidence. When the maker of a negotiable note proves that the instrument had its origin in fraud, or was fraudulently put in circulation, it is incumbent upon the holder, before he can recover, to prove that he received it bona fide, before maturity and for value. The proper order of proof in such cases is for the plaintiff, after defendant has offered his evidence of fraud, to meet it by evidence of bonafides on his part. He is not required, however, to prove that he had no knowledge of the specific facts which impeach its original validity; but may make general proof that he received it before due, bona fide and for value. It will then be for defendant to prove that plaintiff had actual notice of the specific facts; and if he fails in this plaintiff must recover.</p>

— The case was tried before J. B. Upton, Esq., sitting as Special Judge. Conviction of embezzlement of property of one Stoughton. The bill of exceptions was filed the day after the appeal was allowed. 1. The indictment contains no direct averment that defendant was the agent of Stoughton. 2. The petition for change of venue from the regular judge was insufficient, because not supported by the affidavits of two or more reputable persons.

<p>Appeal from Schuyler Circuit Court. — Hon. Andrew Ellison, Judge.</p>

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

' Error to Nodaway Circuit Court. — Hon. H. S-. Kelley, Judge. Plaintiff having contracted for the sale of his land to defendant, Davis, sent a deed properly executed and acknowledged to one Johnson with instructions to deliver the same to Davis, upon the execution by Davis of notes for the purchase money, with a deed of trust upon the land to secure the notes. Before receiving plaintiffs deed Davis sold the land to Shrigley.

<p>Appeal from Moniteau Circuit Court. — Hon. G. W. Miller, Judge.</p> <p>argued that parol evidence was inadmissible to identify the notes. Jennings v. Brizeadine, 44 Mo. 332: McAfferty v. Conover, 7 Ohio St. 99. The plaintiff is estopped. Bigelow on Estoppel, 484; Mardis v. Mardis, 13 La. 236 ; Jennison v. Hapgood, 10 Pick. 77; Rice v. Bunce, 49 Mo. 231; Chouteau v. Goddin, 39 Mo. 229; Garnhart v. Finney, 40 Mo. 449.</p> <p>argued that parol evidence was admissible to prove what indebtedness was intended to be secured. Aull v. Lee, 61 Mo. 160; Scott v. Bailey, 23 Mo. 140; 1 Wash. Real Prop., (2 Ed.) p. 505; Blackburn v. Tweedie, 60 Mo. 505; Carter v. Holman, 60 Mo. 498; McQuie v. Peay, 58 Mo. 56; Jackman v. Brown, 7 Cow. 13; Hall v. Tuft, 18 Pick. 455; Kimball v. Myers, 21 Mich. 276 ; s. c., 4 Am. Rep. 487; Foster v. Reynolds, 38 Mo. 553. The plaintiff is not estopped. Bigelow on'-Estoppel, p. 481; Bales v. Perry, 51 Mo. 449; Fitelgeorge v. Mut. House Bldg. Assn., 69 Mo. 52.</p>

<p>Appeal from, Andrew Circuit Court. — Hon. H. S. Kelley, Judge.</p> <p>Appellant not represented.</p>

<p>Appeal from Bates Circuit Court. — Hon. Jno. D. Parkinson, J udge.</p>

<p>Appeal from Andrew Circuit Court. — Hon. H. S. Kelley, Judge.</p>

<p>1. Probate of Will. Probate of a will can only be granted by the court. Proof may be taken by the clerk or a judge of the court, but subject to confirmation or rejection by the court. Unless there is a confirmation, appropriately evidenced by an order to that effect, the will is not probated.</p> <p>2. Specific Performance: equity: will. In an action to compel specific performance of a contract to convey land, it appeared that the land was part of an estate held by the defendant under a will, by the terms of which defendant was invested with absolute power of disposal over it, but was directed to divide the entire estate equally among the testator’s children, of whom plaintiff was one. The defense was that plaintiff had already received more than her share. Held, that evidence in support of this allegation should have been received, and if it was established, the decree prayed should only be granted upon condition, either that plaintiff refund the excess received, or that the excess remain a charge and lien on the land.</p>

Louis Court of Appeals. All contracts between guardian and ward, which are favorable to the guardian and injurious to the ward, are presumptively void. Garvin v. Williams, 44 Mo. 465 ; Yosti v. Laughran, 49 Mo. 594, Cadwallader v. West, 48 Mo. 483 ; Banken v. Patton, 65 Mo. 378; Perry on Trusts, § 195; Coles v. Trecothick, 9 Ves. 234 ; Taylor v. Taylor, 8 How. 199; Espey v. Lake, 10 Hare 260.

— Hon. G. Porter, Judge. The constable should have been permitted to amend his return “on or about the 19th day of June,” in accordance with the fact. It was error to dismiss for this irregularity. Webster v. Blount, 39 Mo. 500 ; Transier v. B. B., 54 Mo. 189; Phillebart v. Evans, 25 Mo. 324; Perryman v. Belfe, 8 Mo. 208; Beid v. Jordan, 56 Ga. 282. The service, ■ n the attorney was sufficient. Stafford v. Brown, 4 Paige 60.

— Hon. R. W. Eyann, Judge. This was a proceeding by mandamus to compel the county court of Dallas county to provide and set apart funds to pay certain coupons held by the relator. The coupons were for interest on bonds issued in payment of a subscription which had previously been made by the county court, on behalf of the county, to the capital stock of the Laclede & Eort Scott Railroad Company, without first submitting the question to the qualified voters of said county.

— Hon. John T. Redd, Judge. This was an action of ejectment. Plaintiff! offered in evidence an exemplified copy of a patent from the United States government, which was excluded, and plaintiff took a non-suit.

S. H. Woodson, Judge. Our statute cannot be so construed as to cast upon the defendant the burden of fencing the track owned by another company, while the company owning that track remains in the undisputed exercise of its authority and in the absolute possession of its own property, and that, too, without so .; much as an averment or the suggestion of a lease or contract giving defendant dominion over the property, other than the mere privilege of moving its cars upon the…

Louis Court of Appeals. — The case is reported in 5 Mo. App. 64. Defendant’s predecessor acquired absolute title to the premises in controversy by the license from Cay, the then owner. Yerbal permission from the owner to a railroad company to take land for railroad purposes followed by occupation by the company, constitutes complete and absolute dedication. 1 Wag. Stat., 326, § 1; Washburn on Easements, (3 Ed.) 185.

Louis Court of Appeals. We claim most confidently that the record discloses clearly, that the first note discounted by the Atlas Bank, was the note of Bowen alone, and was not indorsed by Honoré; that there was no loan to Honoré in fact, form or intention ; and that neither the Atlas Bank nor Mr. Doane, its agent, had any notice that Honoré was under any personal liability to pay the Swope notes; and the bank did not, in fact, pay the Swope notes,, but purchased them.

Louis Court of Appeals. This was a suit to restrain a sale of real, estate on the ground that the sale would east a cloud on plaintiffs’ title.

<p>Elections: county clerk’s duty in certifying returns. The clerk of the county court must certify to the Secretary of State, the vote in the several precincts, as it is certified to him by the judges and clerks of election. He has no right to refer to the poll books and tally sheets sent in by them, for the purpose of verifying or correcting their certificates. If they have made a mistake in casting up the votes, the error can only be corrected by the tribunal authorized to determine contested elections. Mayo v. Freeland, 10 Mo. 629.</p>

— Hon. G-. W. Miller, Judge. The plaintiff, Mills, interpleaded in an attachment suit, wherein Thompson had caused certain horses to be levied on as the property of Samuel and R. E. Maxwell. Mills claimed the horses by virtue of an alleged sale from Samuel Maxwell. On the other hand evidence was offered to prove that the sale was to R. E. Maxwell, and the jury so found. Plaintiff sued out a writ of error.

<p>Attachment: sheriff’s deed. If the affidavit for an attachment is not signed by the affiant, the court acquires no jurisdiction, and a sheriff’s deed based upon a judgment in the case is a nullity. Sherwood, C. J., and Norton, J., dissent.</p>

<p>1. Practice, Criminal: instructions. If a jury in a criminal case assess against the defendant a punishment authorized by law for the crime with which he is charged, it will be no ground for setting aside the verdict, that the court in its instructions under-stated the maximum punishment permitted, and authorized the jury to impose other punishments not permitted by law.</p> <p>2. -: reasonable doubt: evidence. An instruction defined a reasonable doubt to be “ a real, substantial and well founded doubt, and not a mere possibility that the defendant is innocent;” and added that “the testimony of one witness, if true, is sufficient to warrant a conviction.” Held, no error.</p> <p>3. -: instructions. This court will not'reverse a judgment for failure of the trial court to give an instruction which is substantially embraced in one that is given, or for failure to give an instruction calling the special attention of the jury to particular facts in evidence.</p> <p>4. -: evidence. This court refuses to set aside a verdict as being unwarranted by the evidence, although not entirely satisfied of its correctness.</p>

<p>Appeal fromVernon Circuit Court. — Hon. Jko. D. Parkinson., Judge.</p> <p>This was a proceeding by mandamus to compel respondent, Haynes, who was trustee and ex-officio treasurer of Walker township, Yernon county, to pay relator the amount of a certain warrant issued by the board of directors of said township. The alternative writ recited in substance that the township having no house or place where the citizens could assemble or the officers meet to transact business, the hoard of directors, in pursuance of orders or resolutions duly entered on its records, had purchased a site and erected thereon a building, which was then and since its completion had been in the possession, use and enjoyment of the officers and citizens of the township, and devoted to the ordinary purposes of such a public building; that relator’s warrant was for services rendered and moneys expended in the construction of said building; that the board had levied a tax to raise the funds to pay for said ground and building; that said tax had been collected, and the money was in the hands of respondent as treasurer of the township; that relator’s warrant had been presented to respondent, but he had refused payment.</p> <p>Respondent moved to quash this writ, on the follow-' ing grounds: 1. That the township had no power to purchase a site and erect a township hall; 2. That the writ did not show that the township had ever authorized the • board to buy the site or erect the building; 3. That the board had no power to buy the site or erect the building, or issue relator’s warrant in payment of the same. This motion was sustained, and relator appealed.</p>

<p>1. Municipal Ordinance: work on streets. A town charter authorized the town to require all male citizens between the ages of tw'enty-one and fifty to work on the streets. An ordinance -was passed by the council imposing this duty only upon those between twenty-one and forty-five. Held, that it was not void because it did not include those between forty-five and fifty.</p> <p>2. -: what constitutes. Where the powers conferred upon a. town are to be exercised by ordinances to be passed by the town council, an order or resolution adopted by the council and entered on its records, will be, in point of form, a valid exercise of a power.</p> <p>3. --: work on streets : delegation oe legislative power. A town charter authorized the town council to require the citizens to work on the streets in such manner as the council might prescribe by ordinance, not exceeding ten days in each year. Held, that it was not necessary for the ordinance to fix the precise number of days that each man should be required to work; this might be left to the overseer of streets, without infringing the rule against the delegation of legislative power.</p> <p>4. -;-: power to impose penalties. The power to require work to be done upon the streets as by ordinance the council may prescribe, implies the power of imposing penalties for a failure to work.</p> <p>5.--: re-enactment. If an ordinance be re-enacted, but not republished as required by charter, the original ordinance remains in force.</p> <p>6. Proof of Ordinances. Books which purport to contain the charter and ordinances of a town and are shown to be in the custody of the town clerk, will be received in evidence without further attestation.</p>

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

<p>Auditor of St. Louis County: schools. It was no part of the duty of the auditor of St. Louis county to collect the county and township school moneys. Acts 1874, pp. 162,167, §? 69, 86.</p> <p>The sureties in his official bond, therefore, could not be held responsible for school moneys collected by him and not accounted for.</p>

<p>Appeal from Schuyler Circuit Court. — Hon. Andrew Ellison, Judge.</p>

Louis Court of Appeals. Taking into consideration the fact that the train was not in sight when plaintiff’ reached the platform, and that the engineer ran the train into the station at the rate of twelve or fifteen miles an hour, and at an unusual rate of speed, so fast that many of the witnesses, who had often seen it come in before, thought that it was not going to stop at the station, where a large crowd had gathered, and that another train was approaching plaintiff from…

— Hon. H. P. White,. Judge. This was a scire facias upon a recognizance. One Lewis was arrested and brought before a justice of the peace on a charge of being a fugitive from justice from the state of Iowa. His hearing was postponed and he gave the recognizance in question, with defendant, Swope, as his surety. He subsequently made default, and the recognizance was ■declared forfeited.

<p>St. Louis City Collector’s Commissions. An ordinance of the city of St. Louis provided that the city collector should receive for his services two and one-half per cent on all moneys collected, until the amount collected should reach §300,000 ; three per cent on an additional §100,000, and five per cent on all other sums collected in ■each fiscal year, over said amounts. There having been two successive incumbents of the office of city collector during one fiscal year; Held, that in determining the rate at which the commissions of the latter incumbent were to be computed, the collections made by his predecessor should be taken into account.</p>

<p>Appeal from Cole Circuit Court. — ITon. G-. W. Miller, Judge.</p> <p>1. The warrant was a complete protection to the constable. Broom’s Legal Maxims, 95, 100; Buck o. Colbath, 8 Wall.'334; Freeman v. Howe, 24 How. 450; Patten v. Weightman, 51 Mo. 432; Milburn v. Gilman, 11 Mo. 65; Mayor, etc., v. Opel, 49 Mo. 190; Miller v. Brown, 3 Mo. 127; Hickman v. Griffin, 6 Mo. 37; Burton v. Sweaney, 4 Mo. 1; 2 Waterman on Trespass, p. 217, § 808; lb., p. 214; Savacool v. Boughton, 5 Wend. 170; Humes v. Taber, 1 R. I. 464; Owens v. Starr, 2 Litt. (Ky.) 231.</p> <p>2. The damages were excessive. The value of the machine was only $50, according to the petition. There was no evidence that any damage was done to plaintiff’s property, but the testimony was that everything was done in a quiet and orderly manner; that Scruggs told plaintiff what he had come for, and the plaintiff gave him permission to go into his house and get the machine, and told his wife to give it to him; and that Scruggs took the machine and left.</p> <p>1. The affidavit for appeal did not comply with the statute. It was not made by the appellant or his agent. R. 8., § 3712 ; Clelland v. Shaw, 51 Mo. 440.</p> <p>2. The warrant was no protection to the officer, because it was not founded on a proper affidavit, (R. S., §§ 2000, 2001,) and because it did not authorize him to search, plaintiff’s house. Turner v. Franklin, 29 Mo. 285.</p>

<p>1. Negligence: pleading: failure of proof: variance: railroad. Where the petition alleges a specific act of negligence as the ground of plaintiff’s action, there can be no recovery for any other act. Thus where the specific negligence alleged was the failure of a railroad company to stop its train at plaintiff’s station long enough for him to alight; Held, that he could not" recover upon proof that the injuries for which he sued were sustained by reason of the company’s failure to keep the platform lighted. Waldhier v. The Hannibal & St. Joseph R. R. Co., 71 Mo. 514.</p> <p>But, per Norton, J., dissenting: In order to avail himself of this principle, the defendant must pursue one of three courses at the trial: 1st, Object to the introduction of evidence when offered;" or, 2nd, Ask an instruction excluding it from the consideration of the jury; or, 3rd, File an affidavit stating that he is surprised by its introduction, and wherein.</p> <p>2. Evidence ; instruction. The fact that evidence irrelevant to the issue as made by the pleadings is admitted without objection, does not authorize the court to instruct the jury that they may find a verdict upon that evidence.</p> <p>3. Railroad: negligence : passenger alighting from moving train. Whether a railroad company which fails to bring its train to a full stop at a station, shall be held liable in damages for injuries sustained by a passenger in attempting to get off, depends upon whether under all the circumstances it was prudent for him to make the attempt.</p> <p>4. Negligence: contributory negligence. Though the plaintiff was guilty of negligence contributing to his injury, yet the defendant will be liable if, after becoming aware of plaintiff’s danger, he could have prevented the injury by the use of ordinary care, skill and caution, and failed to do so. An instruction to this effect should not, however, be given in a case where the injury occurred simultaneously with the appearance of the danger.</p>

<p>1. Insurance: suit by receiver of an insurance company in his own name. Section 32 of the insurance law, (Wag. Stat., p. 774,) confers upon the courts, in proceedings instituted against an insurance company under that law by the Superintendent of the Insurance Department, power to appoint agents or receivers to take possession of the property of the company and to make such orders and decrees as may be needful to suspend, restrain or prohibit the further continuance of the business of the company, or for the dissolution of the company and the winding up of its affairs. Held, that the general power of making all needful orders for winding up the affairs of the company thus conferred included the power to make an order authorizing and directing a receiver appointed in such a proceeding to bring suit in his own name for the assets of the company; and that a suit so brought under such an order could be maintained.</p> <p>2. -: fraudulent attempt of directors to release stockholders. The board of directors of an insurance company knowing that their company had just been reported by an official examiner to the Superintendent of the Insurance Department as being in an unsound condition, and that that officer would probably institute legal proceedings to have the company wound up, passed a resolution to the effect that all stockholders who would pay five per cent on their stock, (on which ninety per cent was unpaid,) and would surrender their stock certificates to the company, should have the privilege of retiring from the company, and withdrawing their stock notes. If all the stockholders had acted on this resolution, the company would have had the means of paying about one-half its ascertained liabilities, and no more, with no provision for its outstanding policies. Held,, that the resolution was a fraud in law, if not in fact, upon the creditors of the company, and was no protection, as against them, to those stockholders who had availed themselves of its provisions.</p> <p>3. Corporation: directors cannot reduce capital stock. The board of directors of a corporation have no power to diminish the capital stock of the corporation unless authorized by a vote of the stockholders.</p> <p>4. -: withdrawal oe stock. An attempt on the part of a portion of the stockholders of a corporation to withdraw from the corporation before all its debts are paid, by cancelling their stock, will be none the less void because enough remain to meet the claims of creditors.</p>

— Hon. Geo. W. Miller, Judge. 1. The city was never legally organized into a school district under the school law of 1865, because, when a vote was taken on the adoption of the law, and making said city one school district, in 1866, and the same was voted down, all power to adopt said law in said city was exhausted, and it could not afterward be adopted, even if the law had been fully complied with in every other particular. 2.

Louis Court of Appeals. This was an action of ejectment. Plaintiffs sued on behalf of the public schools, claiming the land in dispute as part of school section 16, township 47 north, range 7 east, of the 5th principal meridian, under the act of Congress of March 6th, 1820, admitting the State into the Union.

Louis Court of Appeals. This was an action brought by Mary J. Eerris against Charlie Thaw, John W. Luke, William B. Ryder and others on the following note: $4,000. St. Louis, October 3rd, 1870. Twelve months after date I promise to pay to the order of John W. Luke, Treasurer, $4,000 without defalcation or discount, for value received, negotiable and payable at the Third National Bank of St. Louis, with ten per cent interest from date payable semi-annually.

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

— Hon. J. D. Parkinson, Judge. Defendants were convicted on the following count of the indictment: The grand jurors aforesaid, upon their oaths aforesaid, do further find and present that Prank Craft and Box Mitchell late of said Dade county, on, etc., at, etc., unlawfully, willfully and feloniously did attempt to feloniously steal, take and carry away the sum of $150, the money and property of one C. Owing, with the intent feloniously to convert the same to their own use,…

— Hon. Jos. P. Grubb, Judge. 1. Respondent having given the note and mortgage to the appellant, is estopped from denying the existence of appellant as a corporation. Angelí & Ames on Corp., (9 Ed.) § 635. 2. Respondent has had the benefit of the money paid by his securities, and now seeks by this defense to destroy the value of said certificate, which they received of him as their indemnity.

<p>Appeal from Andrew Circuit Court. — Hon. H. S. Kelley, Judge.</p> <p>cited Com. v. Ellis, 11 Mass. 464; Stowelv. Flagg, 11 Mass. 364; Swett v. Poor, 11 Mass. 553; Knox v. Chaloner, 42 Me. 150; Jlenwick v. Morris, 3 Hill 621; People v. Cunningham, 1 Denio 536; Chalker v. Dickinson, 1 Conn. 382.</p>

<p>Error to Audrain Circuit Court. — Hon. G. Porter, Judge.</p> <p>1. The contract between McHenry and Baker was in the nature of a mortgage and not a conditional sale. Wilson v. Drumrite, 21 Mo. 325; Conway v. Alexander, 7 Cranch 218; Turner v. Kerr, 44 Mo. 429; Thompson v. Davenport, 1 Wash. (Ya.) 127; Desloge v. Ranger, 7 Mo. 327 ; Sharkey v. Sharkey, 47 Mo. 5'43; Brant v. Robertson, 16 Mo. 129; Tibeau v. Tibeau, 22 Mo. 77; O’Neill v. Capelle, 62 Mo. 202; Copeland v. Yoakum, 38 Mo. 349; Flagg v. Mann, 2 Sumner 533.</p> <p>2. Plaintiff in error being a second mortgagee, all the rights of redemption in McHenry accrued to him. Wash, on Real Prop., (3 Ed.) p. 518, § 10.</p> <p>3. Plaintiff in error having brought this action to redeem in a court of equity, and defendant in error, in disregard or contempt of the action, having sold the lands pending the action, plaintiff in error has a right to compensation. Wilson v. Drumrite, 21 Mo. 325.</p> <p>1. The clause in the deed from Jackson to McHenry, by which the latter assumed and agreed to pay plaintiff's mortgage debt, was a mere covenant to indemnify the grantor, Jackson. Jackson was not himself bound.for the debt. Douglass alone was bound for it. The covenant was not made for the benefit of plaintiff', and there is no such privity between him and Jackson as would make the covenant inure to his benefit. Tweddell v. Tweddell, 2 Pro. C. C. 101; Woods v. Tluntingford, 3 Ves. 130; Tichenor v. Dodd, 4 N. J. Eq. 45; Klapworth v. Dressier, 13 N. J. Eq. 62; Crowell v. The Hospital, 27 N. J. Eq. 650; Van Horn v. Powers, 26 N. J. Eq. 257 ; Bull v. Titsworth, 29 N. J. Eq. 73 ; Kearney v. Tanner, 17 Sand. R. 94; Campbell v. Shrum, 3 Watts 60; Girard Ins. Co. v. Stewart, 5 W. N. C. 87; Samuel v. Peyton, 36 Leg. Int. 96; Pike v. Brown, 7 Cush. 133; Branman v. Dowse, 12 Cush. 228; Pettee v. Pennard, 120 Mass. 522; Townsend v. Ward, 27 Conn. 614; Trotter v. Hughes, 12 N. Y. 77; King v. Whitely, 10 Paige 465; Vrooman v. Turner, 69 N. Y. 282; s. c., 25 Am. Rep. 195 ; Miller v. Whipple, 1 Gray 31; Turnas v. Durgin, 119 Mass. 500.</p> <p>The contract between defendant and McHenry was not in writing and was within the statute of frauds and could not be enforced, even by McHenry, unless it operated as a fraud upon him. Medsker v. Swaney, 45 Mo. 273; much ess could it be enforced by plaintiff. If the verbal con.ract was good, it was rescinded by the written contract afterward made. Price v. Mo Gown, 10 N. Y. 465. The written contract fixed the amount to be paid and the day of its payment. Time was of the essence of the contract and was not waived. Melton v. Smith, 65 Mo. 315. The matter between Mcllenry and defendant was arranged to the satisfaction of both, and if plaintiff has any remedy it is upon the covenant against McHenry personally.</p>

JError to Jackson Circuit Court. — IIon. Samuel L. Sawyer, Judge. This was an action of ejectment.

— Hon. John W. Henry, J udge. 1. The bond should not have been admitted in evidence. State to use of, etc., v. Johnson, 55 Mo. 80, 82. 2. Defendants’ seveuth instruction should have been given. 2 Dillon Munic. Corp., § 384; 2 Greenleaf Ev., § 107 and note 1; lb., § 108; lb., § 114; Norton v. Coons, 3 Denio 134; Beardsley v. Boot, 11 Johns. 464; Terry v. Milwaukee, 15 Wis. 490; State v. Supervisors of Sheboygan, 29 Wis. 79, 82.

Mandamus. The requirement of the proviso to the act of 1877 that the township aid act of 1868 shall have been decided to be a constitutional act by the courts of final jurisdiction having cognizance of the question, before any township bond shall be redeemed, is fully met by the decisions of the Supreme Court of the United States. Cass Co. v. Johnston, 95 U. S. 360 ; Douglass v. Pike Co., 101 U. S. 677.

— Hon. Gr. W. Miller, Judge. 1. Plaintiff is estopped by his conduct and presence at the sale.' He directed how the sale should be made, procured an auctioneer to cry it and after it was done received payment for the auctioneer’s services from the agent of the holder of the note aud paid it to the auctioneer. Here was a clear consent on the part of the plaintiff that some one else should execute the trust than the trustee named.

Mandamus. Mandamus against the judge and the prosecuting attorney of the eighteenth judicial circuit to compel them to .certify to the State Auditor for payment by the State, a bill of fees alleged to be due seventy-five witnesses summoned on the part of the defendant, but not examined in •the criminal case of the State against Gibson.

<p>Railroad Flooding Adjoining Lands by Construction of its Road: surface water : water course. A railroad company whose road was built upon a right of way granted to the company by the proprietor for that purpose, so constructed its road bed and ditches as to collect and discharge water upon adjacent lands of the latter. In an action against the company to recover for the damages thus sustained, the evidence was conflicting as to whether the water was that of a running stream or natural water course, or whether it was simply surface water. The trial court, after instructing the jury as-to what constitutes surface water and what a stream or water course, further instructed them in substance, as follows: 1. That if the water was surface water the company was not liable, provided its road bed and ditches were constructed with reasonable care and skill with reference to the use of the same for railroad purposes. The company was not bound to make ditches to protect plaintiff’s land from injury from surface water. 2. But if the water was that of a stream or natural water course, and it was diverted from its natural channel, the company was liable; provided, however, that plaintiff could not recover for damages which he might have averted at comparatively small cost. The company was bound to make sufficient ditches and passages to conduct the water away and prevent it from injuring plaintiff; but if it did not do so, it was the duty of plaintiff to use all reasonable means to avert and avoid injury by the construction of ditches and levees himself within a reasonable time, if the same could be done at a reasonable amount of labor and expense. On appeal by the company from a verdict and judgment for plaintiff; Held, that the company had no right to-complain of these instructions. But see Shane v. K. C., St. Joseph & Council Bluffs B. B. Co., 71 Mo. 237; McCormick v. same, 70 Mo. 359.</p>

— Hon. R. W. Eyann, Judge. The indictment was as follows: The grand jurors for the State of Missouri, summoned from the body of Dallas county, empanelled, charged and sworn, upon their oaths present that William Hatfield, late of the county aforesaid, on the 17th day of October, 1878, at the said county of Dallas, State aforesaid, did, in and upon a certain woman, viz: one C. D., unlawfully, violently, forcibly, willfully and feloniously, make an assault, and her, the said…

Louis Court of Appeals. By the law merchant, one who promises another, either in writing or by parol, that he will accept certain bills of exchange, and thereby induces him to advance money therebn, in reliance upon the promise, will be held to make good his promise. Scudder v. Union National Bank, 91 U. S. 406; Townsley v. Sumrall, 2 Pet. 176; Boyce v. Edwards, 4 Pet. 111. The Missouri statute does not control the case.

<p> Appeal from St. Louis Court of Appeals. </p> <p>The value of the ice-honse as a building on the premises, is the measure of damages. Raymond v. Ewing, 26-111. 329; North Presbt. Church v. Jeone, 32 111. 214; Croskeyv. NorthW. M. Co., 48 111. 481; Dingledine v. Hershman, 53 111. 280 ; Howeit v. Selby, 54 111. 151; Whiitenack v. Noe, 11 N. J. Eq. (3 Stockton) 321; Neioark L. $ C. Go. v. Morrison, 13 N. J. Eq. (2 Beasley) 133; Whitehead v. First M. P. Church,' 2 McCarter (15 N. J. Eq.) 135 ; Smith v. Phelps, 63 Mo. 585 ; Russell 0. Defrance, 39 Mo. 506, 512; Phillips on Mechanic's Liens, 344; Taber v. Jenny, 1 Sprague 315;. Hilborne v. Browne, 12 Me. 162; Priestley v. Johnson, 67 Mo. 632 ; Soulard v. St. Louis, 36 Mo. 546.</p> <p>The mechanic’s lien is a statutory right of modern origin and peculiar to this country. It was intended to develop a new country by encouraging the erection of buildings and protecting those whose labor and materials were put into them. If the erection of buildings is to be fostered, and the claims of those whose labor and materials are incorporated in them, are to be secured, it follows that the' building once erected must be maintained, and any construction of law which pre-supposes the destruction of the building contravenes the spirit of the statute.</p> <p>The statute should be fairly construed so as to advance the remedy. Oster v. Rabenea.u, 46 Mo. 595 ; Putnam v. Ross, 46 Mo. 337; Buchanan v. Smith, 43 Miss. 90. Is it to be supposed that the law-makers intended, in a case like the present, to limit the lienor’s recovery under a statute designed to protect him, to a pittance not exceeding ' on an average ten per cent of the value of the building which he erects ?</p> <p>Defendant is a wrongdoer. He should not be permitted to profit by his own wrong, as he will if-he gets this building at what it is worth as old lumber. Rice v.Hollenbeck, 19 Barb. 664; Walther v. Wetmore, 1 E. D. Smith (N. Y.) 7. Cases such as Dame v. Dame, 38 N. H. 431; Osgood v. Howard, 6 Me. 452 ; Russell v. Richards, 10 Me. 429; Tapley v. Smith, 18 Me. 12; Smith v. Benson, 1 Hill 176, are very numerous, in which it is held that if the owner of land resists the removal of a building, which another has the right to remove, he will be liable in trover for the value of it. How that value is to be estimated, does not appear in express terms ; but as the party in the wrong is liable for the value of the building, the inference is •that it is the value of the building standing, on the ground, and not simply the value of the materials in it. If the latter were the view, it would be so stated, inasmuch as a building and the materials in it are two very distinct things.</p> <p>A building consists of the materials which enter into it and of the labor which incorporates them in the structure. The labor generally represents the greater portion of the cost. To arrive at the value of a building, therefore, both the labor and the materials must be estimated. Where the owner is to be compensated for a building, both the labor and the materials must be paid for. To pay for the one and exclude the other is not compensation, but a denial of it.</p> <p>The court having found that there was no malice or willfulness on respondent’s part in the refusal to let the appellant remove the materials, the allowance of damages can be on the theory of compensation only. Franz v. Hitterbrand, 45 Mo. 121; Walker v. Borland, 21 Mo. 289, 293; Robison v. Rupert, 23 Pa. St. 524; Perkins o. Hackleman, 26 Miss. 41, The damages are not measured by the benefit .derived by the respondent for the alleged conversion — it may have been worthless to him, (as was the fact,) in which case the appellant would find his recovery to be nothing, if that criterion was to govern — neither by the cost of the building, for its value may have appreciated or depreciated since it was put up. If appellant got any title whatever to anything by his purchase at sheriff’s sale, it was the right, (Wag. Stat., § 3, p. 906,) where the execution debtor has no longer any interest in the land, “ to have such building, erection or improvement sold under execution, and the purchaser thereof may remove the same within a reasonable time thereafter.” He, therefore, is not entitled to the actual value of the building as it stands, for the simple reason that he is not entitled to the building as it stands. The true measure is the market value of the materials, subject to statutory restriction of removal within a reasonable time — not what the first cost had been — nor what they were worth subject to different conditions, but what was the market value of the materials with the obligation or incumbrance of removal as the statute required. Waters v. Stevenson, 13 Nev. 157; Sedgwick Meas. Dam., 472, 488 ; 2 Greenleaf Ev., § 253; Delegal v. Naylor, 7 Bing. 460; State to use, etc., v. Smith, 31 Mo. 566 ; Conard v. Pacific Ins. Co., 6 Pet. 268; Spencer v. Vance, 57 Mo. 430; Powell v. McAshan, 28 Mo. 70; Goodman v. II. $ St. Jo. R. R. Co., 15 Mo. 33 : Ombony v. Jones, 19 N. Y. 234; Myers v. Burns, 33 Barb. 401; King v. Wilcomb, 7 Barb. 263; Dubois v. Kelly, 10 Barb. 496 ; Field on Damages, § 734.</p>

— Hon. Q. D. Burgess, Judge. This was an action of trespass to recover treble damages for mining and taking coal from under plaintiffs land. The facts were as follows: On the 27th day of February, 1871, the plaintiff executed an instrument leasing and conveying all the coal under his land to the North Missouri Coal and Mining Company, for a-period of twenty years. This instrument is set out in full in the opinion.

— Hon. E. J. Broaddus, Judge. The admissibility of the deeds and records from Young to Morrison and from Morrison to Clay, must be determined by the rules of the common law as modified by statute. (1) Deeds are not admissible solely by reason of their ancient date. Crispen v. Hannavan, 50 Mo. 418; Green leaf Ev., (6 Ed.) § 142; Starkie Ev., (7 Am. Ed.) pp. 66, 67.

<p>1. Administrator’s Annual Settlements, not Conclusive. The annual settlements of an administrator are not conclusive on creditors, but may be reviewed and corrected at their instance on final settlement.</p> <p>2. Administration: application op proceeds op sale of lands. The proceeds of the sale of lands of a decedent, cannot be used to make good a deficiency in the widow’s allowance, nor to reimburse the administrator for improvements put upon the land, nor for any other purpose than the payment of debts. See Drowry v. Bauer, 68 Mo. 155.</p> <p>8.--: nunc pro tunc orders. If there is a discrepancy between the judgment of the probate court allowing a demand against the estate of a decedent and the entries made by the clerk on the back of the demand and in the book of abstracts of allowances; the latter may, by a nunc pro tunc order, be made to conform to the judgment.</p>

<p>1. Eminent Domain. The right of eminent domain resides in the State, and may be enforced, not only in behalf of the State, but of any artificial person clothed with a franchise, the enjoyment of which promotes a public use. The basis of the enforcement is the necessity for the public use of the property the taking of which is sought.</p> <p>2. -: ABANDONMENT OF PROCEEDINGS : DAMAGES. If proceedings are instituted to condemn for public use the property of an individual, and after the value of the property is ascertained by inquest, the proceedings are abandoned because the price assessed is unsatisfactory, the corporation instituting such proceedings will be answerable to the owner for all damages occasioned by them.</p> <p>3. -:-: remedy op joint owners. Where property, against which proceedings to condemn for public use have been instituted and afterward abandoned, belonged to A & B, co-tenants, who in resisting the proceedings employed different counsel, who severally attended to the management of the case; Held, that it was error to permit them to sue jointly to recover damages for counsel fees.</p> <p>4. -: -: damages. In an action to recover damages for the institution of proceedings to condemn private property for public use, money need not have been actually paid out to entitle plaintiff to recover; but if a debt has been created by reason of such proceedings, a damage has been incurred for which an action will lie.*</p>

— Hon. Jos. P. ’Grubb, Judge. The declaration of law given by the court on the subject of adverse possession was as follows: If the court-should find from the evidence that at any time during the period in which the defendant claims to have acquired title-to the lots in controversy by adverse.possession, his possession was discontinued, and no vestige of adverse occupancy remained upon the lots, of a character calculated to-give notice to the true owner of an adverse claim,…

<p>Appeal from Monroe Circuit Court. — Hon. John T. Redd, J udge.</p> <p>cited Lafferty v. Hannibal § St. Joseph R. R. Co., 44 Mo. 292; Hughes v. Hannibal § St. Joseph R. R. Go., 66 Mo. 326 ; Indianapolis, etc., R. R. Co. v. McBrown, 46 Ind. 229; Ohio, etc., Ry. Co. v. Cole, 41 Ind. 331; Louisville, etc., Ry. Co. v. Smith, 58 Ind. 576; B. S> P. Ry. Co. v. Thomas, 60 Ind. 107; 1 Thompson on Neg., (1 Ed.) p'. 531, § 28 ; A., T. § S. F. R. R. Co.v. Jones, 20 Kas. 529.</p>

— Hon. H. G-. Wilson, Judge. There was no appearance on the part of the defendant in the court below, except for the special purpose of objecting to the jurisdiction. An amendment of a judgment, by correcting the name of a defendant, may be made at any time. Parry v. Woodson, 33 Mo. 347; Bergen v. Bolton, 10 Mo. 658 ; Hanly v. Dewees, 1 Mo. 16 ; Gibson v. Chouteau, 45 Mo. 171.

— Hon. R. P. Owen, Judge. This was an action of ejectment brought by plaintiffs as heirs at law of Samuel C. Snider, deceased. Defendant, by way of equitable defense, alleged in his answer that the land in controversy had been sold by the administrator of the said Samuel 0.

<p>Appeal from Jasper Court of Common Pleas. — Hon. E. 0. Brown, Judge.</p>

— Hon. R. W. Etann, Judge. (a) If it is intended to make the alleged seduction of the plaintiff by the defendant’s son, the gravamen of the action, the suit cannot be maintained. A woman cannot sue for damages for her own seduction. Dicey on Parties, p. 349 ; Hilliard on Torts, p. 512 ; Hamilton v. Lomax, 26 Barb. 615; Woodward v. Anderson, 9 Bush (Ky.) 624; Paul v. Frazier, 3 Mass. 71.

— Hon. H. G. Wilson, Judge. If tlie supposed, contract was made to the sureties jointly, it was necessary for all to join in the suit; one alone could not sue. Welles v Gaty, 9 Mo. 565 ; Robbins v. Ayres, 10 Mo. 538; Clark v. Cable, 21 Mo. 223; Dewey v. Carey, 60 Mo. 224.

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

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

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

— Hon. Joseph Cravens, Judge. The county is liable on the warrant, and it makes no difference that it is drawn on the internal improvement fund. She destroyed that fund by using it for her own benefit. There is no money of the fund to pay the warrant; the county got the benefit of both the jail and the fund, and she should now respond.

— Hon. John T. Redd, Judge. 1. Tbe bond was intended to secure tbe plaintiff in tbe faithful performance of the duties of the office of cashier so long as Hunt-should hold that office. Sparks v. Farmers Bank, 9 Am. L. Reg. (N. S.) 365; Treasurers v. Lang, 2 Bailey (S. C.) 430; Daly v. Commonwealth, 75 Pa.

<p>Appeal from, DeKalb Circuit Court. — Hon. Joseph P. Q-rubb, Judge.</p>

— Hon. Noah M. Givan, Judge. The court erred in admitting the evidence objected to by the defendant. The petition contains an averment of genera] damages only, and no averment of loss of time or expenditure of money in travel or board by plaintiff. 1 Chitty Plead., (13 Am.

— Hon. E. J. Broaddus, Judge. The defendant was indicted for obstructing a public road.

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

— IIon. Jos. P. Grubb, Judge. 1. The testator charged his wife with the payment of his debts and committed to her care and charge the rearing, as she thought proper, of their six infant children. It is not reasonable to conclude that he would impose these important charges upon her without providing any fund or means except a life estate in his property. The imposition of these charges raises a power to sell.

— Hon. John T. Redd,. Judge. This was an action of replevin commenced originally' against Caldwell and one Parsons on the 7th day of December, 1871, to recover several ricks of cordwood, one hundred shocks of corn in the field, thirty shocks of fodder and six acres of corn on the stalk, all alleged by the petition to be upon land occupied by and in the possession of Parsons. Parsons did not answer, and plaintiff subsequently dismissed as to him.

— Hon. Noah M. Givan, Judge. The property attached sold for $542.75. 1. The language of the mortgage necessarily implies that Vogler had the right to retain possession and continue the sale of goods in the ordinary course of his business as a merchant, and apply the proceeds to his own use until the maturity of the note. What else can it mean ?

<p>1. Contract: acceptance, no waiver without knowledge. Mere acceptance of, and payment for a bridge built under contract, does not waive any defect in the work, of which the acceptor is at the time ignorant. There must be both knowledge and acquiescence to constitute waiver; and it devolves upon the contractor to show such knowledge.</p> <p>2. Parol Evidence: county court records. In an action on a bond given by a contractor for the construction of a county bridge, parol evidence of a conversation between the contractor and the justices of the county court is admissible for the purpose of showing that an order of record for the issuing of a warrant in payment for the bridge was not intended as a waiver of the county’s right to enforce the bond in case defects should afterward appear in the bridge. The rule that the county court can speak only by its record, does not apply to such a case.</p>

— Hon. John T. Redd, Judge. The note was payable on demand. In such case the statute of limitations begins to run as soon as the note is made without any demand. Easton v. McAllister, 1 Mo. 662 ; Hill v. Henry, 17 Ohio 9 ; Little v. Blunt, 9 Pick. 488; Waters v. Earl of Thanet, 2 Q. B. 757; Palmer v. Palmer, 36 Mich. 487; Haggin v. Williamson, 5 T. B. Mon. 8; Darnall v. Magruder, 1 Harr. & Gill 439 ; Rabsuhl v. Lack, 35 Mo. 316.

<p>Change in Public Corporation: liability op new bob debts op former corporation : judgment. If a public corporation be abolished by law, and in its stead several new corporations be created, but no provision be made for the payment of existing debts, each of the new corporations becomes liable for all of them; and a judgment against the original corporation is binding upon the new ones.</p>

— Hon. Jos. P. Grubb, Judge. Plaintiff' cannot be charged with a want of attention and care, in failing to discover the active fraud of defendants. He was bound to answer and put in every defense arising naturally out of the facts and circumstances attending the purchase of the goods. But he was not bound to suspect that the defendants, his wholesale dealers, were perpetrating a fraud on him.

<p>Appeal from Phelps Circuit Court. — Hon. V. B. Hill, Judge.</p> <p>cited Welch v. Seymour, 28 Conn. 887; Curling v. Chalklen, 3 Maulé & Sel. 502; Dedham Bank v. Chickering, 3 Pick. 335 j t Chelmsford Co. v. Demurest, 7 Gray 1; Arlington v. Merrieke, 2 Saunders 404; Liverpool Water Works v. Atkinson, 6 East 505; Has-sell v. Long, 2 M. & S. 369 ; Wardens, St. Saviour v. Bostick, 2 New Rep. 175; Peppin v. Cooper, 2 B. & Aid. 431; Hibson v. Julian, 30 Eng. Law & Eq. 326; Bigeloio v. Bridge, 8 Mass. 275; People v. Jansen, 7 Johns. 332; Moss v. State, 10 Mo. 338; Commissioners v. Greenwood, 1 Dessau 452; Harris v. Babbitt, 4 Dill. 190; Cuthbert v. Huggin, 21 Ala. 349 ; Wagner v. Horn, 2 Harr. (Del.) 190 ; Lover v. Twombly, 42 N. H.. 59 ; County of Wapello v. Brigham, 10 Iowa 36; Mayor of Hahway v. Crowell, 40 N. J. L. 207; s. c., 29 Am. 224; 7 Reporter 87.</p>

— Hon. G-. D. Burgess, Judge. Linn county never authorized the contract to be made. There was no previous order of record appointing Board-man. Dennison v. St. Louis Co., 33 Mo. 168 ; Maupin v. Franklin Co., 67 Mo. 327. The subsequent order cannot help out this defect. Johnson v. School District, 67 Mo. 319. The county court had no power to make the contract.

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

— IIon. Noah M. G-ivan, Judge. This suit was brought by Steers, as administrator de bonis non of John I). Carmack, deceased, against Taylor, who was tbe former administrator, on his bond. Taylor’s letters were issued in October, 1872, and were revoked in January, 1876.

<p>1. Arraignment. This case is reversed because the record fails to show that the prisoner was arraigned.</p> <p>3. Affray: evidence. It is no objection to the admissibility of evidence offered in support of an indictment for an affray, that it shows that the trouble commenced in a private house, where it further shows that the combatants passed out of the house and continued the fight without cessation in a public street.</p>

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

Louis Court of Appeals. This was ail action brought by Silas W. Miller and Margaret J. Miller, his wife, against Jacob W. Simonds, to have a deed executed by the said Margaret in favor of defendant, before her intermarriage with said Silas, set aside. Defendant was the father and had been the guardian of said Margaret.