Volume 73 — Missouri Reports

<p>Final Judgment in Partition: petition for review. Under the present statute, where land is ordered to be sold for purposes of partition, there is no final judgment till the sheriff’s report of sale is filed and an order is entered approving the same and directing distribution of the proceeds. The order of partition and sale is not a final judgment. The three years allowed for filing a petition for review in certain cases, (R. S., § 36S4,) commence to run from the date of the order of distribution.</p>

— Hon. G. H. Burckhartt, Judge. Stillwell occupies the same relations to the security that he does to the note, of which the record shows he is .a bona fide purchaser, and his rights thereto can only be affected in the same way. Logan v. tímith, 62 Mo. 455; Updegraft v. Edwards, 45 Iowa 513; Mechanics Bldg. Asso. v. Ferguson, 29 La. Ann. 548; Duncan v. Louisville, 13 Bush (Ky.) 378; s. c., 26 Am. 201.

<p>1. Indictment for Obstructing Public Road: evidence. Upon the trial of an indictment for obstructing a public road established under the road law of 1868, (Sess. Acts, p. 149,) it is not necessary to show that the road was established in pursuance of a petition of twelve householders. That act authorizes the county court to establish a road without such petition. Besides, section 34 of the act of 1877, (Sess. Acts, p. 401.) dispenses with such proof.</p> <p>2. -: limitations. Prosecution for obstructing a public road is not barred by the lapse of two years from the commencement of the obstruction, if it continues down to the time of the indictment.</p> <p>3. -: evidence. It cannot be shown in defense of an indictment for obstructing a public road, that no notice of assessment of damages in the location of the road was given.</p>

<p>1. Pleading: amended petitions : waiver. Section 3540 of the Revised Statutes, provides that: “If a third petition * * be filed and adjudged insufficient * * the party filing such pleading shall pay treble costs, and no further petition shall be filed, but judgment shall be rendered.” Held, that this is mandatory. The court has no power to permit the filing of a subsequent petition. Nor will the defendant waive his rights by answering such petition if one be filed, especially if he first moves to have it stricken from the files and for judgment, and upon such motion being overruled saves an exception.</p> <p>2. Debts, Indivisible Without Consent of Debtor. A creditor cannot, without the consent of his debtor, make a valid assignment of a part of his claim.</p>

<p>1. False Pretenses. To constitute a criminal false pretense, a misrepresentation must relate to a past event or existing fact, not to something to he done in the future.</p> <p>2. Action for Malicious Prosecution. It is no defense to an action for malicious prosecution to show that the affidavit made by the prosecutor was insufficient in law to authorize the arrest and prose- . cution which followed.</p>

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

<p>Proceedings to open Public Eoad: essentials to theib validity. It was necessary to the validitj' of proceedings for the opening of a new road, taken under the township organization law of 1873, (Sess. Acts, p. 110, % 24, 25, 27,) that the record of the proceedings of the township board of directors should show that every essential prerequisite of the statute had been complied with, such as that the petition for the road had been made by twelve legal voters and householders of the township living within three miles of the road, and that a copy of the pétition had been posted in three of the most public places in the township before any steps was taken by the board. A record which showed only that the signers of the petition were citizens of the township, and that the petition had been posted “in three places along the line of the road,” was fatally defective.</p>

<p>Appeal from Clinton Circuit Court. — Hon. Geo. W. Dunn, J udge.</p>

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

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

<p>1. Exemptions from Execution. The head of a family may hold exempt the ?300 worth of property allowed by section 11 of the execution law, (Wag. Stat.,p. 604,) whether he is the owner of the property mentioned in the 1st and 2nd subdivisions of section 9 or not.</p> <p>2. Formal Defects in Pleading: practice. A petition in an action against a sheriff for an unlawful levy and sale, failed to state the value of the property taken. Held, that if this was a defect at all, it was of such a formal kind that it was too late co take advantage of it after trial.</p>

— Hon. Louis E. Dinning, Judge. 1. The intention of the testator, as collected from the entire will, must prevail. Williams on Ex., 925, note 1.

<p>1. Estoppel: ratification. A husband knowing that his wife had delivered an organ to the plaintiff in an execution against him in satisfaction of the execution, and had taken a receipt in full of his liability thereon, stood by and with seeming approval saw the constable make a return on the execution that it was fully satisfied. He had already, without the knowledge of the constable or the plaintiff in the execution, and without offering to return the receipt or to have the constable’s return canceled, instituted this suit to recover the organ. Hold, that he could not recover.</p> <p>2. Practice in Supreme Court. While this court will not reverse a judgment because it is against the weight of evidence, it will reverse when there is no evidence at all to support the judgment.</p>

<p>1. Wife, when not a Competent Witness. The wife is not a competent witness to prove what was said by another in conversation with her husband, nor to prove any act done by the other in connection with such conversation and which might be explained by the conversation.</p> <p>2. Depositions: practice. It is too late after the trial has commenced to object to depositions on the ground that they were taken without notice. That objection should be made before trial by motion to suppress.</p>

— Hon. S. A. Richardson, Judge. The indictment charged the defendant with selling intoxicating liquors to certain persons therein named, in less quantities than a gallon, “ without him, the said John T. Taylor, then and there having a dramshop keeper’s license in force authorizing him, the said John T. Taylor, to sell intoxicating liquors in less quantities than one gallon, contrary, etc., against,” etc. cited State v. Shiflett, 20 Mo. 415; State v. Batson, 81 Mo. 343; State…

— Hon. S. H. Woodson, Judge. 1. Neither Glass, nor any one claiming under him, were made defendants, and they have a right to redeem from the purchaser at sale under the judgment on the tax bill. Olmstead v. Tarsney, 69 Mo. 399; Farwell v. Murphy, 2 Wis. 533; 1 Hilliard on Mort., p. 390, 391, 392; Ileim v. Vogel, 69 Mo. 529; Knowles v. Bablin, 20 Iowa 101. 2. The fact that Fisher was made defendant will not defeat defendants’ rights.

— The case was tried before Geo. W. Carretón, Esq., sitting as Special Judge. This was a suit brought in the circuit court of New Madrid county by John Edmonson and Levina, his wife, against Murry Phillips, to have alien declared and enforced against certain real estate for the amount of a certain note.

— Hon. S. A. Richardson^ Judge. 1. The minority of plaintiffs Lula and Joel, and the appointment of a next friend by the Gentry circuit court, is alleged in the petition and denied in the answer, and there is no proof upon the subject. No authority, therefore, has been shown for the prosecution of this suit in their behalf. 2. The widow is estopped from claiming a homestead.

Louis Court of Appeals. This was an action against the city of St. Lonis and Gottlieb Eyerman to recover damages for injuries sustained by plaintiff in falling into an open sewer. Eyerman was constructing the sewer in Arsenal street, under a contract with the city. The evidence tended to show that he left the opening unguarded, and that plaintiff, passing at night, fell in and sustained the injuries complained of.

<p>Appeal from Jackson Special Law and Equity Court. — Hon. R. E. Cowan, Judge.</p> <p>cited Bump Fraudulent Conveyances, pp. 220, 221; Lana v. Stanfords, 10 Cal. 269; Sibly v. Hood, 3 Mo. 290; Murray v. Cason, 15 Mo. 378; Chase v. Walters, 28 Iowa 460; Lurkee v. Chambers, 57 Mo. 575 ; TJhler v. Maulfair, 23 Pa. St. 481, (overruling 13 Pa. St. 584;) State v. Laurie, 1 Mo. App. 371; Gates v. Labeaume, 19 Mo. 29; Worland v. Kimberlin, 6 B. Mon. (Ky.) 608, 609; Banjield v. Whipple, 14 Allen 13; 30 Conn. 15; Funk v. Staats, 24 III. 632; Kuykendall v. McDonald, 15 Mo. 416, 420; Ford v. Williams, 3 B. Mon. (Ky.) 550.</p> <p>cited Henderson v. Henderson, 55 Mo. 534; Ames v. Gilmore, 59 Mo. 537; Drury v. Cross, 7 "Wall. 299; Tompkins v. Wheeler, 16 Peters 106; Johnson v. Sullivan, 23 Mo. 474; State v. Benoist, 37 Mo. 500; Johnson v. Whitwell, 7 Pick. 71; Edrington v. Rogers, 15 Texas 188; Bunn v. Ahl, 29 Pa. St. 387; White v. Graves, 7 J. J. Marsh. 523.</p>

Quo Warranto. Section 2807 is a nullity, because : (1) It is not embraced in the title of the bill, and, therefore, violates section 28 of article 4 of the constitution of Missouri. Held: and also has the right to fix the powers, duties and duration in office of justices of the peace. Art. 6, § 37, Const. When they assume to act and do pass a statute in the premises, such statute will be maintained, unless it is in direct conflict with the constitution.

— Hon. Noah M. Gtvan, Judge. 1. Plaintiff having one count under the statute, and one‘count under the common law, and the verdict being general, without any finding of value, it will be presumed by the court to be for single damages only, and the court has no power to treble the damages. 2.

— Hon. Geo. W. Miller, Judge. Section 50 of the guardian act had the same effect as though the section of the administration law, inTegard to appeals, as it then stood, had been inserted in full, instead of enacting it by reference thereto. It was the mode of taking appeals under both laws, just as if the provision had been copied into both.

— Hon. E. J. Broaddus, Judge. 1. The “ proceeding ” in the circuit court under the statute to contest the validity of a will on the part of an heir at law against the devisee of real estate in such will, is a “ Us pendens ” as to all purchasers pendente lite. Garth v. Ward, 2 Atkyns 174; 2 Mad. Ch., (4 Am. Ed.) $26; S. C. Barn. 450; Hilliard on Vendors, (2 Ed.) 511; 3 Barnard. Ch., 450. 2.

— Hon. W. E. Geiser, Judge. 1. That the legal title to the “Selvidge tract” was in James D. Selvidge when he and his wife conveyed it to Matilda Cates, there can be no question.

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

— Hon. H. S. Kelley, Judge. 1. The evidence does not warrant the verdict for grand larceny. The only criminating evidénce against defendant was the mere possession of $5 worth of the stolen goods, seven or eight days after the theft.

— •Hon. John T. Redd, Judge. 1. Nothing was sold at the execution sale except the right, title and interest of Eby, and Eby at that time had only an equity of redemption. Nothing else was sold or could be sold. The land itself was not sold. Lewis v. Chapman, 59 Mo. 371; Broadwell v. Yantis, 10 Mo. 399; Lumley v. Robinson, 26 Mo. 364; Gaston v. White, 46 Mo. 486 ; McNair v. O’Fallon, 8 Mo. 188.

<p>Railroad. Fences. If a railroad company whose road runs through an inclosed field fails to fence the sides of its road as required by the ■ statute, (Acts 1875, pp 131, 132; R. S. 1879, ? 809,) the owner of the field may erect a fence along either side of the road, and will then be entitled under the statute to recover from the company the value of the fence so erected, without fencing the other side also. • .</p>

— Hon. T. H. B. Lawrence, Judge. 1. One who becomes party to a note after it has once been delivered and the consideration has passed between the original parties, incurs no liability unless there is some new consideration and a re-delivery of the note.

— Hon. Joseph Cravens, Judge. A fraudulent conveyance and a fraudulent disposition of property do not mean the same thing in the attachment law. How far proof of the one would establish the other would depend entirely on circumstances outside of the conveyance. Fraudulent disposition is something akin to fraudulent concealment or removal, ani is placed in the same category. The statute has very carefully classified the grounds of attachment.

— Hon. B. P. Owen, Judge. In 1855 James Atkins became guardian of the person and estate of Emma 0. Wight, a minor; and in 1873 died without having made final settlement, and leaving his wife, Augusta Atkins, executrix of his will.

<p>1. Landlord and Tenant: notice: computation op time. Section 3076, Revised Statutes 1879, requires the landlord to give the tenant ten days’ notice before instituting the proceedings for possession therein authorized. Held, that a notice given on the 18th will not support an action commenced under this statute on the 28th day of the same month.</p> <p>2. -: tendee op eent. Tender of all rent due and payment of costs will entitle a tenant to judgment in an action brought against him by his landlord for possession under section 3098, Revised Statutes 1879.</p> <p>3. -: estopped. A landlord was entitled by the terms of his lease to exact a forfeiture in case of default in payment of the rent for thirty days. When the rent became due the landlord demanded payment and the tenant said he would credit the amount on a note he held against the landlord, to which the landlord made no reply. Held,, that under these circumstances he could not, after a lapse of thirty days, insist upon a forfeiture. If he did not intend to agree to the tenant’s proposition, it was his duty to say so at the time.</p>

— Hon. S. H. Woodson, Judge. 1. Plaintiffs should have been compelled to elect upon which count they would proceed to trial. Clements v. Yeates, 69 Mo. 625 ; Ahern v. Collins, 89 Mo. 145; Ford v. Ma.ttice, 14 How. Pr. 91; Sturges v. Burton, 8 Ohio St. 215; Nash v. McCauley, 9 Abb. Pr. 159; Ferguson v. Gilbert, 16 Ohio St. 88, 91. 2.

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

— Hon. Q-. W. Miller, Judge. 1. In an action by a national bank, defendant cannot be allowed a counter claim for unlawful interest paid by Mm more than two years prior thereto. U. S. Rev. Stat., § 5198; National Bank v. Boylan, 2 Abb. New Cases 216 ; Iiigley v. National Bank, 26 Ohio St. 75 ; s. c., 20 Am. Rep. 759 ; Shinkle v. National Bank, 22 Ohio St. 516; Thompson’s National Bank Cases, 798, 824, 833.

— Hon. R. E. Cowan, Judge. This was an action for the.conversion of a frame building. The petition was as follows : On April 1st, 1875, plaintiffs were the owners and in possession of the frame building situated on the southwest corner of Fifth and Wyandotte streets, in Nansas City, Missouri, being then used by plaintiffs as a livery, sale and feed stable.

<p>Drror to Moniteau Circuit Court. — Hon. Geo. W. Miller, Judge.</p>

Louis Court of Appeals. 1. Even though Robison may have been solvent when the policies were first taken out, and may have so remained for several years, yet, as the annual premiums are the life, essence and consideration of the contract, and as he was insolvent when he made the last annual payment, which money was that of his creditors, and the said payment gave the right of recovery against the insurance companies, his creditors are in equity entitled to have the proceeds…

Louis' Court of Appeals. 1. Defendants were estopped from setting up the fact of a partial levy by reason of their answer itself, whereby it is admitted in terms that under their writ the sheriif did attach and seize upon the property described in the petition. Herman on Estoppel, § 343; Vandervoort v. Smith, 2 Caines 155 ;' Greenleaf Ev.', §§ 27, 205 ; 1 Phil. Ev., 454, note 129. 2.

Louis Court of Appeals. - Upon tbe testimony adduced for tbe plaintiff, & prima facie case of negligence on tbe part of defendant was made out.

<p>On the authority of The State v. Fancher, 71 Mo. 460, section 1561, Revised Statutes 1879, is held constitutional, and an indictment founded on it sufficient.</p>

<p>1. Practice: evidence. Where the evidence is conflicting, this court will not disturb the findings of the trial court on the ground that they are against the weight of evidence.</p> <p>2. Law of Sister State: evidence. What is the law of a sister state is a question of fact, to be proved like any other fact by appropriate evidence. In the absence of such evidence, it will be presumed that the common law is in force.</p> <p>3. Husband and Wife : tithe to -personal property. The act of March 25th, 1875, in relation to married women’s property, (E. S. 1879, $ 3296,) does not change the relative rights of husband and wife to personal property acquired in another state and brought by them, since the passage of that act, into this State.</p> <p>4. . Justice’s Court; pleading. The technical rules of pleading should not be enforced in suits before justices of the peace. A statement in trover which describes the property taken as “ certain household goods,” without anything more definite, is good, at least after verdict.</p> <p>5. Pleading : waiver. Where defendant is entitled byflaw to have a bill of items filed with the petition, he should insist upon his right in the trial court. If he goes to trial on the merits without insisting upon it, he will be deemed to have waived it. ’</p>

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

Louis Court of Appeals.' Walther did no other act by way of exhibiting plaintiff’s claim within the first year than to hand to the administrator an imperfect statement of plaintiff’s “commission” account against “A. Suss & Co.,” and a copy of another account, which is called the “ deposit” account, which was also made out against “A. Suss & Co.;” and these accounts were so handed to the administrator, simply and solely for the purpose of comparing them with the books of A.…

<p>1. Execution: NO lien' on personal property for purchase price thereof. The act of March 31st, 1874, (Sess. Acts, p. 118,) in relation to the right of the seller of personal property to subject the same to execution on a judgment for the purchase price thereof, does not confer a lien so as to bind the property in the hands of any person to whom it may be transferred. Its only effect is to prevent the purchaser from claiming the property as exempt from such an execution. (See R. S. 1879, § 2353.)</p> <p>2. Practice: production of evidence. One party may be permitted to read such portions of a deposition as he desires, and the other will then be entitled to read the remainder. But it will not be error if the court requires the whole to be read at once. .</p> <p>.3. Action on Indemnifying Bond : evidence. In an action on an indemnifying bond given to the sheriff by an execution creditor,, the latter offered to show that after the execution had been levied the defendant in the execution had secretly and without consent of the sheriff taken and sold part of the property levied on. Held, that the evidencte was not admissible, either as tending to disprove the plaintiff’s claim of title, or for the purpose of diminishing the amount of his recovery.</p>

— Hon. A. J. Seay, Judge. This was a suit brought by Jane Massey against Isaac N. Young, Thaddeus A. Lowe and Wm. Kelso.

.Appeal from Pettis Circuit Court. — Hon. ¥m. T. Wood, Judge. On the 23rd day of August, 1872, Daniel M. Botts filed his account in the probate court of Pettis county as curator of Margaret May, for final settlement. He asked credit, among other things, for a note of one McCormick, ■which he had held as curator and which he claimed to have turned over to his ward.

Louis Court of Appeals. This is an action brought by the owners of a mill and mill-site in Franklin county, to recover damages for the filling up of their mill race. The petition alleges that the plaintiffs were carrying on a profitable milling business, and that defendant, by its agents, destroyed the race which conveyed to their mill the necessary stream of water; and thus deprived the plaintiffs of the use and value of their mill, etc. The answer is a general denial.

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

<p>1. , Murder in the Second Degree. The court re-affirms the ruling in State v. Curtis, 70 Mo. 594, as to murder in the second degree.</p> <p>2. Evidence in Murder Cases. Evidence is not admissible upon a trial for murder to prove that defendant had once had a difficulty with a person other than the deceased, and had lain in wait to kill him.</p> <p>3. -: threats. When the evidence shows that at the time of the homicide the party slain made no attempt to execute a threat previously made, and did not seek the difficulty which resulted in his death, and that the accused was the aggressor, the threat will constitute no excuse or justification for the homicide ; but it is otherwise when, at the time of the killing, the deceased sought the difficulty, or did any act or said any thing which indicated a purpose on his part to execute the threat.</p> <p>4. Practice, Criminal: indictment : grand jury. It is no objection to an indictment that it was found by a grand jury summoned after the discharge of the regular panel. Acts 1874, p. 99, ? 7.</p> <p>5. -: -. The objection that the indictment is not indorsed a true bill, comes too late when made for the first time after verdict.</p>

<p>1: Recorded Title: notice of equities. A person purchasing land from one who appears hy a recorded deed to be the owner in fee, is not bound by equities existing in favor of a stranger to the deed, when the only notice of such equities is imparted by deeds not affecting the land in question, and he is not otherwise informed of them. He is not required to search the records or elsewhere to ascertain whether there are equitable rights which could be asserted against the title of the apparent owner.</p> <p>2. Ejectment: equity jurisdiction. One who holds-both the legal and equitable title can assert his rights in an action of ejectment. He will not, therefore, be permitted to resort to equity.</p>

— Hon. Andrew Ellison, Judge. 1. The filing of the town plat in Lewis county was inoperative, either as a statutory dedication or as a dedication by deed or grant, to vest the fee in Lewis county for… Held: that, in dedication to a particular use, whether by statute or grant or at common law, the public acquires no interest without an acceptance of the dedication and use of the property for the purpose designated.

<p>Error to Clinton Circuit Court. — Hon. George W. Dunn, Judge.</p>

<p>Estoppel. The plaintiff being familiar with the title to certain lots, was applied to by defendant for information as to the title of one S. thereto. He replied that it was good so far as he knew. Belying upon this information, defendant purchased of S. Plaintiff knew' that the inquiry was made with a view to purchase. At the time of giving the information he had a tax title to the lot, but did not know, or, at least, did not remember it. Held, that under these circumstances he was estopped to assert Ms title as against the defendant.</p>

Louis Court of Appeals. The principle is undisputed and fundamental, that directions in powers of sale must be strictly, literally and precisely pursued, and admit of no equivalent or stibstitution, however unessential they might otherwise have been. 2 Am. Law Reg., (N. S.) pp. 713, 714. And if the power has not been executed according to essential conditions, the sale-and deed will be held void both at law and in .equity. Eitelgeorge v. Mut. H. B. Asso., 69 Mo. 55.

<p>1. Dedication to Public Use: executors. An executor has no power to dedicate land of the estate to public use, unless there be some provision in the will or an order or decree of a court of competent jurisdiction authorizing it.-</p> <p>2. Dedication by Concurring acts of the Owner and the Public. The owner of a tract of land intending to give a strip off of it for part of a public street, set back his fence, and from that time forward for eighteen years the strip was open and used by the public as a highway. Held, that these facts constituted a dedication..</p> <p>3. -: by deed. A person claiming to own a tract of land undertook by agreement with the owner of the adjoining tract to establish a public street on the line between them, to be sixty feet wide, each to give a strip thirty feet in width. Subsequently the true owner of the first named tract conveyed the whole of the tract except the thirty foot strip, the deed calling for the street by name -as the boundary of the land conveyed. Held, that this amounted to a ratification of the first dedication, and was a valid dedication by deed. Subsequently the city caused the street to be graded to the full width of the sixty feet. Held, that this was an acceptance of the dedication.</p>

Howard, Circuit Court. — Hon. GL H. Burckhartt, Judge. 1. There,is no repugnancy between the clause in the will giving the residue of the estate to Margaret Shannié Page, and the subsequent one providing that upon her death, without issue, the estate should descend and go to . William and Nathan Haines. ’ Norris v. Beyea, 13 N. Y. • 273; Tyson v. Blake, 22 N. Y. 558. 2.

— Hon. Y. B. Hill, Judge. ■ This was a suit on a note, brought by J. D. Eaulkner and C. C. Bland, as executors of R. P. Eaulkner, deceased, against the same J. D. Eaulkner together with D. W. Eaulkner, H. M. Noel, Alex. Demuth and D. W. Malcolm. Before trial the suit was [dismissed as to the defendant J. D. Eaulkner. There was a judgment for plaintiff's. 1. The petition failed to state a cause of action in favor of the plaintiffs suing.

— Hon. E. P. Wright, Judge. The widow was not entitled to a homestead. The whole scope and aim of the homestead law seems to be to protect a homestead from creditors. It only provides for setting apart the homestead in one case, viz: When it becomes necessary to sell the real estate of the deceased for payment of debts.

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

— Hon. Samuel L. Sawyer, Judge. 1. The court erred in excluding the letter of Whitney to Taylor, dated March 24th, 1873. It tended to show that the letter of guaranty was the result of a previous arrangement between Whitney, Taylor and Shouse, and a circumstance tending to show that Shouse had previously agreed to sign the letter of guaranty in ease Taylor would give the thirty days’ credit. 2. Shouse was not entitled to notice.

Clair Circuit Court. — Hon. J. D. Parkinson, Judge. The misrepresentation as to the title avoids the insurance upon the house at least. Kibbe v. Ins. Co., 11 Gray 163;' Abbott v. Ins. Go., 3 Allen 213; 9 Allen 334. The plaintiff is not concluded by having adjusted the loss. The adjustment was madé in ignorance of the true state of the title; and plaintiff was not bound to take notice of the record which showed that the title was not in defendant. Maul v. Rider, 59 Pa.

— Hon. A. J. Seay, J udge. The burden of proof whether or not plaintiff had a right and the authority to transact business in this State rested upon the defendant. Hamtramck v. Bank, 2 Mo. 169 ; Starr v. Peck, 1 Hill 270; Howard v. Boorman, 17 Wis. 459; Mut. Ben. Ins. Co. v. Davis, 12 N. Y. 569. In an action by a foreign insurance company, non-compliance with statutes giving such company authority to transact business will not be presumed, but must be set up in defense.

— Hon. Jos. P. Grubb, Judge. This was a suit iu equity brought by plaintiffs against defendant, and under the following circumstances:- One Shotwell, the local agent of defendant at Warrensburg, solicited plaintiffs, who were merchants at that place, to take $2,500 insurance upon their stock of goods, to continue one year.

<p>Practice in the Supreme Court: quo warranto. This court will ordinarily decline original cognizance of contests between private parties over the title to office.</p>

Louis Court of Appeals. 1. The contract sued on is not limited to Bloody Island. Bloody Island comprises but a part of the Illinois shore opposite St. Louis. The contract binds the railroad company to give plaintiff all its ferriage for the whole length of the Illinois shore opposite St. Louis. The contract is valid unless some cause of invalidity is shown, and the burthen of showing this is on the railróad company. 2. The contract is not ultra vires.

Quo Warranto. As there could not be uniformity in the probate system without uniformity in the elections of the judges, the election and terms of the judges being a part of the scheme of organization, and an irregularity in this respect besides being a great public inconvenience, the design of the constitutional provision and of the legislature, was to provide for the election of all probate judges as their terms expired, one class to be elected at the general election in…

<p>Deed Acknowledged before a Party. The record of a deed acknowledged before a person named in the deed as party thereto, is not evidence against one who has no actual notice of the existence of the deed.</p>

<p>Appeal from Holt Circuit Court. — IIon. H. S. Kelley, Judge.</p>

<p>1. Practice, Criminal: grand jury. Objections to the constitution-of the grand jury come too late when made for the first time after verdict.</p> <p>2. -: sheriff. It is no ground of exception that the record does-not show that the sheriff' and his deputies took the oath prescribed by law before summoning the grand or petit jury.</p>

— Hon. J. B. Robinson, Judge. The compromise agreement having been executed and acted upon, was valid and binding upon respondent as collector. (1) The right to sue and be sued gives to a corporation the right to compromise claims. Dillon on Munic. Oorp., (2 Ed.) p. 488; Petersburg v. Mappin, 14 111. 193 ; Supervisors v. Bowen, 4 Lansing 24; Chenango o. Birdsatl, 4 Wend. 453.

Mandamus. A cardinal principle of our constitution is, that those who do not vote, whatever be the reason, shall be bound by and be deemed to acquiesce in the act of those who do. This principle is applied to the abolition of township organization, the changing of county seats, the reorganization, of counties, the calling of constitutional conventions, and, even more, to the amendment of the organic law of the State, the constitution itself.

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

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

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

Prohibition. The St. Louis criminal court has no jurisdiction of a charge of this nature. R. S. 1879, § 482. The power to license attorneys is specially limited to the superior courts, and this is by necessary implication exclusive of all other and inferior courts and courts of special and limited jurisdiction.

— Hon. H. S. Kelley, Judge. The other defendants alluded to in the opinion were Luman, the surviving partner, Jackson, who claimed some interest under Luman, the heirs of Warner, the deceased partner, and Ames, who was in possession of the property under an agreement with Luman, Jackson and the public administrator. cited Acts 1866, p. 84, §§ 1, 6; Acts 1870, p. 224, §§ 1, 2; Julian v. Ward, 69 Mo. 153 ; Dodson v. Scroggs, 47 Mo. 285; Cones v. Ward, 47 Mo. 289 ; Ensworth v.…

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

<p>Appeal from Ray Circuit Court. — Hon. George W. Dunn, Judge.</p> <p>cited Maher v. R. R.Co., 64 Mo. 267; Pryor v. R. R. Co., 69 Mo. 215; Brown v. R. R. Co., 33 Mo. 309; Ward v. Andrews, 3 Mo. App. 275.</p>

— Hon. Jno. C. Anderson, Judge. This was an action of ejectment brought by the widow and heirs of David E. Hand. Defendant claimed title through mesne conveyances from Hand’s administrator. The facts appeared to be as follows: David E. Hand bought the real estate in question, paying part of the purchase money in cash, and giving his notes secured by a -deed of trust on the property for the remainder. Shortly afterward he died, leaving the notes unpaid.

— Hon. Joseph Cravens, Judge. The parties intended one of two things, either that plaintiff' should assume the payment of the notes of Adam Reed to Amos and others, absolutely as of his own indebtedness, or that the Reeds thereby agreed to indemnify plaintiff against loss and damage in case he should be •compelled to pay these notes of Adam Reed to Amos and others; and the latter is the only fair construction to give the instrument, as there is no direct assumption and…

<p>Appeal from Bollinger Circuit Court. — Hon. J. B. Robinson, Judge.</p>

<p>Appeal from Bollinger Circuit Court. — Hon. J. B. Robinson, Judge.</p>

<p>1. Justices’ Courts : pleadings : certainty requisite in. The same completeness requisite to a petition in the circuit court has Dever been required in an action before a justice of the peace. It is sufficient if the statement in such an action advise the opposite party of the nature of the claim, and be sufficiently specific to be a bar to another action.</p> <p>But per Sherwood, C. J.: There is no substantial difference in the requirements of the statute between the statement filed before a justice of the peace and a petition in the circuit court. A party sued before a justice is as much entitled to be informed of the ground of recovery sought against him as if sued in the circuit court.</p> <p>2. Railroads: statutory duty to pence. Since the amendment of 1875 to the 43rd section of the railroad law, (Sess. Acts, p. 131,) the railroad companies have been bound to fence their roads wherever they pass through uninclosed lands, whether prairie or timber.</p> <p>3. -: justices’ courts : pleadings. The statement filed in this case, (an action under the 43rd section of the railroad law,) before a justice of the peace; Held, sufficient to advise the defendant for what he is sued, and, therefore, good.</p>

— Hon. J. B. Robinson, J udge. The petition was as follows: Plaintiff states that ■defendant is a corporation, duly organized, etc., and is the owner of that certain railroad which passes through the township of Lorance, in the county and State aforesaid, known as the St. Louis, Iron Mountain & Southern Railroad.

— Hon. Noah M. Givan, Judge. Bridgewater testified, on the part of the plaintiff, that defendant told him he held the note as security. Defendant offered to testify on his own behalf that what he told Bridgewater was, that at first he held the note as collateral security for the payment of the $200 note Mrs. Simpson owed him and some other little debts, but that when she was stopped by the constable he bought the note of her.

<p>Practice in the Supreme Court. Where there is no bill of exceptions, this court can consider only whether the petition states a cause of action, and whether the court below had jurisdiction. 1.</p> <p>-: costs. Where the recovery is in excess of that prayed for in the petition, so that a remittitur is entered by the respondent in order to correct the error, the costs of the appeal will be taxed against him. 2.</p>

— Hon. Jos. P. Grubb, Judge. Plaintiff did not pay the money until after the levy of the attachment, and notice thereof, and hence is not an innocent purchaser to be protected by the courts. Bishop v. Schneider, 46 Mo. 472; Bice v. Bunce, 49 Mo. 284; Paul v. Fulton, 25 Mo. 156 ; Aubuchon v. Bender, 44 Mo. 560; Nantz v. McPherson, 7 B. Mon. 597; Ligby v. Jones, 67 Mo. 104.

<p>Error to Washington Circuit Court. — Hon. Louis E. Dinning, Judge.</p>

— Hon. J. T. Redd, Judge. This was an action brought by Louthan and others, genera] creditors of one Biish, against Stillwell, a judgment creditor, to enjoin the enforcement of Stillwell’s judgment by execution, and to compel him to accept, in satisfaction of it, certain notes of Bush.

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

— Hon. ¥m. T. Wood, Judge. 1. The county was invested by law with the absolute ownership of and dominion over this land, and had power, through the county court, to sell, and to deal with it directly or by agent, as it saw fit. Wag. Stat., p. 875, §§ 41, 42; p. 441, § 9; p. 408, § 3. The power to sell also carried with it the right to make a deed through the president of its county court. Hann. $ St. Jo.

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

— Hon. Geo. D. Burgess, Judge. By the terms used in the assignment defendants affirmed and warranted to plaintiffs that the alleged invention had been duly patented, and that defendants were the owners thereof with respect to the territory specified. Curtis on Patents, (4 Ed.) §§ 167, 178, 182, 184; 1 Abb. U. S. Prac., (3 Ed.) 274; U. S. Rev. Stat., § 4898; 6 Cent. L. J., 53; Benjamin on Sales, (2 Am.

<p>Error to Franklin Circuit Court. — Hon. A. J. Seat, Judge.</p>

— Hon. Geo. W. Dunn, Judge. The admissions of Goodwin not being made at the time of the accident, so as to be of tbe res gestae, nor during the transaction of any business in the scope of his employment, were inadmissible. 2 Starkie Ev., 24 ; Story Agency, §§ 134 to 137; Va. § T. B. B. Co. v. Sayers, 26 Gratt. 328 ; 2 Thompson Neg., 1054, note 3 ; Bogers v. Mc-Cune, 19 Mo. 557; Brice v. Thornton, 10 Mo. 140; Agassiz v. London Tram.

— Hon. G. D. Burgess, Judge. This was a suit against Nathan Gillilan on a promissory note. The petition was in the ordinary form. The answer was a plea of non est factum.

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

— The case was tried before B. B. Price, Esq., sitting as Special Judge. This was a suit to enforce a vendor’s lien. The facts were as follows: The plaintiff, as administrator of one Griffith, the first husband of defendant, by order of the probate court of Howell county, in October, 1868, sold the land against which the lien was claimed in this case, tO' one May, who paid part of the purchase money in cash, and for the remainder executed his note at eight months.

Pettis Circuit Court. — Hon. W. T. Wood, Judge. The goods were selected and set apart, the prices agreed upon, a bill made out, and two of the articles delivered on Sunday. The remainder, it was agreed, were to be delivered the next day, which was done accordingly. The two articles delivered at the time were handed to a friend of defendants who was present, that he might show them to his wife who wanted such goods. cited Wag.

<p>1. Witness : COMPETENCY OP party to contract in issue, other party dead. Where the plaintiff in ejectment claimed under a deed from defendant to his son, since deceased, and defendant claimed under a verbal contract rescinding the deed, accompanied by possession ; Held, that the defendant was not a competent witness to prove the contract.</p> <p>2. Evidence: praud. Where it appeared that the defendant in ejectment had conveyed the land in controversy to his son under whom the plaintiff claimed, and the defendant gave evidence tending to show that his son had shortly afterward returned it to him ; and that he had ever since held it in open and notorious adverse possession; Held, that it was error to exclude evidence offered by the plaintiff to show that at the time of the conveyance to the son the defendant was insolvent, and that he made the deed in order to defraud his creditors, and that his debts had never been paid.</p> <p>3. Color of Title. Where the parties to a deed undertook by verbal contract to rescind the deed, and the grantor thereafter remained in the actual possession of a part of the land, claiming title under the rescission; Held, that he was in under color of title, and that his possession extended to ¡the whole tract described in the deed.</p> <p>4. Ejectment: adverse possession: evidence. Where the defendant in ejectment relies upon mere possession, his evidence must distinctly show the limits of his possession.</p> <p>5. Promissory Note to third Person, when not a Payment. A note given for the purchase money of land was, by direction of the vendor, made payable to a third person, but was retained by the vendor and never delivered to the payee. Held, that it did not operate as payment of the purchase money.</p>

Loiiis Court of Appeals. The instruction was erroneous because it assumed that the accused swore as to the purpose of Pate in paying the money, whereas he took no such oath, but simply stated that he (Wakefield) received no money from Pate for the purpose of paying it over to a member of the police board; and because the purpose or secret intention of the accused as to a future use of the money received from Pate was incapable of proof on the part of the State.

— Hon. S. H. Woodson, Judge. The well established doctrine is, that neither the legislature nor the courts have any power to vary or impair -charter rights. Lionberger v. Bowse, 43 Mo. 67, 82; Home of the Friendless v. Bouse, 8 Wall. 437; State Bank v. Knoop, 16 How. 369; Wilmington B. B. Co. v. Beid, 13 Wall. 266; Pacific B. B. Co. v. Maguire, 20 Wall. 36.

Mandamus. It was the duty of the court below to proceed to a final disposition of the case. State v. Newkirk, 49 Mo. 474; Overall v. Bilis, 38 Mo. 209. No appeal or writ of errpr lies to an order to strike a cause from the docket. The remedy is by mandamus. Astor v. Chambers, 1 Mo. 192; Branciscus v. Martin, 9 Mo. 196.

<p>1. Practice, Criminal: waiver. The objection that the record does not show that the indictment was ever presented to the trial court in the presence of the grand jury by their foreman, or that it was ever filed, comes too late when made for the first time in this court.</p> <p>2. -: pleading. “The Cole circuit court,” in the caption of an indictment, will be taken to mean the circuit court of Cole county.</p> <p>3. Assault to Rape: pleading, criminal. An indictment for an assault to commit a rape need not use the word “ rape.” If it uses the language employed by the statute to define the crime of rape, that will be as good. If other words not altering the sense are-added, they may be rejected as surplusage. Thus, where the indictment charged an assault upon a female under the age of twelve years, with intent “ feloniously to unlawfully and carnally know and abuse ” her; Held, that it was good.</p>

— Hon. T. H. B. Lawrence, Judge. The court erred in charging the administrator with interest. There was no evidence that he had used any money or failed to report any money in his hands, or that he had received any interest, or failed to make any loan ordered by the court, or that he was guilty of any departure from the orders of court, or any negligence or wrongdoing whatever. Williams v. Petticrew, 62 Mo. 461; Clyce v. Anderson, 49 Mo. 37; In re Davis, 62 Mo. 450.

— Hon. Wm. T. Wood, Judge. This was an action against a constable and the sureties in his official bond. The facts reiied on for recovery were as follows: The constable, having in his hands an execution against Nussberger, levied the same on a wagon and set of harness and a stock of family groceries which Nussberger then had in his grocery store. Nussberger was the head of a family and lived in rooms at a distance from his store.

— Hon. J. B. Eobinson, Judge. The company is not liable. It does not appear that it had knowledge of the fact that the fence was out of repair, and that a reasonable time elapsed after it became possessed of such knowledge, within which it might have repaired such fence. A railroad company is required to use only ordinary care to keep such fences in repair. Lemmon v. R. R. Co., 32 Iowa 151; 111. Cent.

— Hon-R. E. Cowan, Judge. Defendant stood in the position of trustee for plaintiff', and could legally pay the fund to no one but plaintiff' until he refused to receive it. Tompkins v. Wheeler, 16 Peters 119; Jackson v. Bodle, 20 John. 184; Rankin v. Lodor, 21 Ala. 380; Bank v. Uuth, 4 B. Mon. 437; Crosby v. Hillyer, 24 Wend. 284. Plaintiff’s assent will be presumed until he dissents. Rogers v. Gosnell, 58 Mo. 589 ; R. S. 1879, § 3463.

•Appeal from Greene Probate and Common Pleas. Court.. — Hon; T. H. B. Laurence, Judge. This was an appeal from the judgment of the lower court overruling exceptions filed by S. H. Julian, as administrator de bonis non of the estate of H. J. Lindenbower, deceased, to the closing settlement of James Abbott, the former administrator. Abbott asked credit for the said Lindenbower’s share of an uncollected note of one Henderson Jones in favor of Lindenbower and one Joel Abbott'.

R. P. Owen, Judge. This was an indictment for an affray found on the 15th •day of May, 1877.

Habeas Corpus. The petitioner’s’case comes within section 2650, Revised Statutes, and he is entitled to be discharged. In sentencing him to the penitentiary, when he was under the age of eighteen years, the court exceeded its jurisdiction both as to the place of imprisonment and the person whom it undertook to sentence.

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

Louis Court of Appeals. Defendant was indicted for murder in the first degree in killing his wife, Annie Banks. She had refused to live with him any longer, alleging cruel treatment, and had obtained employment as a domestic servant. He had insisted upon her returning to him, and, there was evidence tending to show, had threatened to kill her if she did not. There was also other evidence tending to identify defendant as the person who did the killing.

— Hon. S. H. Woodson, Judge. The uncertainty and indefiniteness of the instrument on its face, leaving out, among other things, any mention of a corresponding obligation on the part of the respondents to ship all, or any, of their lead by appellant’s road, show that it was intended, as respondents in their testimony state, as a memorandum of points to be included in a contract when Mr. Hayden should ascertain by what road he could best ship from Kansas City to St. Louis.

<p>1. Recent Possession of Stolen Property: presumption of guilt. The presumption of guilt growing out of the recent possession of stolen property is a presumption of law, and, in the absence of other rebutting evidence, must be met by proof on the part of the ' accused accounting for his possession in a manner consistent with his innocence, or it will become conclusive against him. It is not a mere presumption of fact, to be weighed with other evidence in the case.</p> <p>2. Practice: instructions. An objection that that part of the instructions in this case which made most strongly against defendant was in print, while the rest was in writing; Held, to be frivolous.</p> <p>3. ■ — -: ---. It is proper to instruct the jury that it is their province to pass upon the credibility of witnesses.</p>

— Hon. J. D. Parkinson* J udge. This was an action to recover for farm labor. The evidence tended to show that plaintiff commenced work for defendant in March, under an agreement that he should continue until the last of October or the first of November following, that he worked until the 28rd day of June, or just before harvest, and then quit, without cause or excuse; • and that defendant had been damaged by his quitting.

— Hon. R. P. Owen, Judge. This was an action originally instituted before a justice of the peace upon the following statement: “Plaintiff says that defendant is a corporation; that on the 18th day of January, 1877, in Ash Hill township, in Butler county, and where the said railroad was not fenced, and where there was no public crossing, defendant, by its agents and servants did, while running its locomotive on its said railroad, strike and kill twelve head of hogs, the…

<p>Statute of Limitations: debtor absconding into this state and concealing himsele here. If a debtor residing in another state secretly abandons his home and moves to this State and so conducts himself that his creditors, though they make pursuit and diligent inquiry, are unable to ascertain his whereabouts, he will be held to have absconded and concealed himself, within the meaning of section 3244, Revised Statutes 1879, so as to interrupt the running of the statute of limitations ; and it will not alter the case that he has resided at the same place in this State for many years, and without concealment so far as his neighbors here are concerned.</p>

— Hon. J. D. Parkinson, Judge. This was a proceeding by mandamus to compel the Board of Education of the town of Lamar, to refund to the inhabitants of School District No. 1, township 32, range 30, in Barton county, the amount due on* account of taxes collected in said district No. 1 and expended in the-erection of a school house in the territory under the control of the board.

<p>1. Criminal Law: confessions. When a confession has once been obtained by means of hope or fear, other confessions subsequently made are presumed to come from the same motive, and are inadmissible until it is shown that the original influence had ceased to operate before they were made.</p> <p>2. Larceny: burglary. Larceny committed in the commission of burglary is grand larceny irrespective of the value of the property stolen; but where the indictment alleges the value to have been $10, there can be no conviction of grand larceny, if the defendant is acquitted of the burglary.</p>

— Hon. Y. B. Hill, Judge. This was an action upon covenants in a deed. The petition contained two counts.

<p>The Probate and Common Pleas Court of Newton County; judge’s sadary. Upon a review of the constitutional provisions and the acts of the legislature affecting the court of probate and common pleas of Newton county, this court holds that the result of section 3 of the schedule to the constitution of 1875 and the act of April 9th, 1877, (Sess. Acts, p. Ill,) was to continue the probate jurisdiction of that court till the 1st day of January, 1879, and to extend the term of office of the judge to the same time, or two years beyond that for which he was elected; that the effect of section 5 of the schedule was to take away the common pleas jurisdiction of the court after the 1st day of January, 1877, but not to abolish the court itself; and that the judge, notwithstanding this curtailment of jurisdiction was entitled to draw salary during the years 1877 and 1878, at the same rate as before.</p>

— Hon. John 13. Nobinson, Judge. Defendant Crow, as public administrator of Perry county, upon his final settlement of the estate of Joseph Pratt, deceased, asked credit for the sum of $1,210.67, which he alleged had been stolen, at night, from the drawer of a bureau in his house in that county. Plaintiff, as his' successor in office, disputed the claim, and the probate court refused the credit.

Louis Court of Appeals. This was a suit brought by Silas Bent, as receiver of the St. Louis Mutual Life Insurance Company, an insolvent corporation, against Oliver A. Hart, formerly a stockholder therein.

— The case was tried before William Warner, Esq., sitting as Special Judge. Defendant offered no prizes for money; he simply said to each subscriber to the newspaper that he could have a gift — a voluntary offering. The price of the subscription remained unchanged. The subscribers received full value for their money, irrespective of the gift. This is no lottery. Governors v. Am. Art Union, 3 Seld. 228; s. c., 13 Barb. 577; People v. Am.

— Hon. Noah M. Givan, Judge. This was a proceeding begun in the county court of Cass county, for the opening of a private road. Plaintiff’s petition alleged, in substance, that he and defendant were the owners of adjoining tracts of land, that no public road •touched his land, and that’defendant’s land lay between him and a public road known as the Independence and Harrisonville road.

<p>Ferries. It is no infringement of an exclusive ferry privilege, for a person within the ferry limits, to transport his own property in his-own boat.</p>

— Hon. E. J. Broaddus,. Judge. This was an action on an administrator’s bond, begun in the probate court of Carroll county. The breach assigned was failure of the administrator to pay fifty per cent of a claim that had been allowed in favor of the plaintiff and against the estate of the intestate. There had been an order of the probate court to pay fifty per cent of all unsecured claims of the fifth class, allowed against the estate.

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

Louis Court of Appeals. The title to the highwines did not pass to plaintiffs by the delivery of the bill of lading. The bill was indorsed to Gregory & Stagg, not to plaintiffs; and plaintiffs paid no. money to the company as proceeds for the drafts, but simply took them for collection. This is shown by the -fact that when the drafts were returned unpaid, plaintiffs ■charged the amount of the drafts back to the company. Plaintiffs could only have gotten title by paying value.

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

— Hon. R. E. Cowan, Judge. The gist of the action of replevin is the wrongful detention, and this relates to the time of the commencement of the action. Brown v. Holmes, 13 Kas. 491; Gray v. Parker, 38 Mo. 165 ; Barksdale v. Appleberry, 23 Mo. 389. The omission to file the affidavit did not render it invalid as against plaintiff. Meech v. Patchin, 14 N. Y. 71; Manning v. Monaghan, 10 Bosworth 240; s. c., 28 N. Y. 589.

<p>Appeal from Cass Circuit Court. — Hon. Noah M. Givan, J udge.</p>

<p>Appeal from Bay Circuit Court. — Hon. Geo. W. Dunn, Judge.</p>

— Hon. G-. Porter, Judge. This was a suit to enforce against-the defendants a personal liability for having, as the petition alleged, wrongfully refused to pay plaintiffs a balance claimed to be due them on a contract for the erection of the Normal school-building at Kirksville. The contract was made by plaint- / ifts with the Board of Regents of the Missouri State Nor- i mal Schools, of which defendants were members.

— Hon. Louis E. Dinning, Judge. (1) The articles furnished and work done on the furnace, which was outside of the acre of land described in the lien, were separately itemized, so that they were distinctly picked out; and neither the court nor the trustee were misled. The plaintiff acted in good faith, supposing that all the buildings were on the acre desci’ibed.

— Hon. Jas. B. Gantt, Judge. The indictment should have been quashed, because the names of the material witnesses were not indorsed thereon when the same was found by the grand jury, as required by Revised Statutes 1879, section 1802, and because the same is multifai'ious, vague and uncertain.