Volume 75 — Missouri Reports

Louis Court of Appeals. This was a proceeding by motion under the statute by Fisher, claiming as a judgment creditor of the Memphis, Carthage & Northwestern Railroad Company, an insolvent corporation, for execution against Joseph Seligman, an alleged stockholder of-the corporation. The circuit court ordered execution to issue, and from this judgment Seligman appealed to the St. Louis court of appeals, which reversed the judgment and remanded the cause.

<p>Appeal from Madison Circuit Court. — Hon. Wm. M. Nalle, Judge.</p>

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

— IIon. Joseph Cravens, Judge. Bray filed a motion in the Jasper circuit court, at the September term, 1875, asking for the issuance of an execution in his favor for the sum of $2,000 and interest thereon against Seligman, alleging as the grounds of his motion : The recovery by him 'in said court at the November term of a judgment for said sum against the Memphis, Carthage & Northwestern Railroad Company, the issuance of an execution on said judgment returnable to the March…

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

— Hon. G. II. Burckhaett, Judge. The facts will be found stated in the opinion in volume 63 Mo. Rep. 203. 1. Under the laws of Louisiana, the Montagues, father and son, had complete control of the contract and might rescind or abandon it at. their own arbitrary volition, at anytime before the plaintiff consented to it. Whatever would be a good defense for the sons against a suit by the father, is equally good, against this action by plaintiff. La.

— The case was tried before John F. Lawder, Esq., sitting as Special Judge. The omission of the township and range was a mistake of the scrivener; and upon, the evidence it is clear that as between Oldham and the county the mortgage was a good equitable mortgage upon the land in township 44, range 32, and as against them the court should have ordered a reformation. McQuie v. Peay, 58 Mo. 56; Davis v. Clay, 2 Mo. 161;.

<p>1. Selling Liquor on Sunday. The statute against selling liquor on Sunday, (Wag. Stat., p. 504, § 35,) prohibits the sale of “any fermented or distilled liquor.” An indictment charged defendant with selling “ fermented and distilled liquor.” Held, that this was no defect. The object of the statute is to prevent the sale of liquor on Sunday, whether the liquor be fermented or distilled or a mixture of both.</p> <p>2. Criminal Statutes : disjunctive : conjunctive. When a statute uses the disjunctive in enumerating offenses, it is competent in an indictment to aver their commission conjunctively.</p> <p>3. Pleading, Criminal: subplusage in indictment. An indictment will not be held defective, if, after striking out the objectionable and immaterial portions as surplusage, enough still remains to constitute a valid and substantial indictment.</p>

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

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

— Hon. Andrew Ellison, Judge. The 160 acres was not Baker’s homestead in 1873, when plaintiff- took his note. It did not become his homestead till 1876. He cannot, therefore, claim it as exempt from plaintiff’s debt. Wag. Stat., pp. 697, 698, §§ 1,7; Ereeman Executions, § 241; Herman Executions, 125 ; 1 Am. L. R., (N. S.) 649, 650, 651, note 1; Thompson Homesteads, §§ 240, 244,246. His intention to make it his home in the future coupled with improvements will not avail him.

<p>Set-off. A debt due to a defendant as guardian cannot be set off against a demand due by him individually.</p>

<p>Error to Monroe Circuit Court. — Hon. John T. Redd, Judge.</p>

— Hon. G. W. Miller, Judge. Mrs. Evaline U. McCoy, claiming title to a house and lot in Versailles, Morgan county, let the same to defendant John B. Eelsay, who immediately went into possession. Shortly thereafter John Sims, then administrator of the estate of John C. McCoy, the deceased husband of Mrs. E. IT. McCoy, offered the same premises for sale as part of the estate of the deceased, and Eelsay became the purchaser ; and afterward refused to pay rent for the premises.

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

<p>1. Infancy: parent and child : contract of hiring: measure of damages. If a minor son hire himself out without the knowledge of his father, the father may either adopt the contract and claim whatever is due under it, or he may repudiate it and claim the value of his son’s services. In the latter event, if it appears that . the employer has permitted the son to use apart of his time for his own purposes, the measure of recovery will be the value of his entire time, less the v-lue of the privilege so accorded to him.</p> <p>2. -: -: -. If a father hire out his minor son for an indefinite period, the employer may discharge the son at-any time without notice to the father</p> <p>3. -: -: evidence. In an action by a father'to recover wages due his minor son, statements made by the son are not admissible as evidence against the father.</p>

<p>Vendor’s Lien, Waived by Taking Independent Security. Where the vendor of land conveys the title and takes as security for the purchase money the obligations of a third party, in the absence of any agreement to the contrary, he will be deemed to have waived his vendor’s lien, and it does not matter that the securities so taken are worthless.</p>

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

.Appeal from Henry Circuit Court. — Hon. E. P. Wright,Judge. This was a proceeding by Ann E. Clark and John O. ■Clark, her husband, to establish a demand against the estate of H. J. Edwards, deceased. Mrs. Clark was the only ■child of H. J. and Elizabeth Edwards. Early in the year 1858, Mrs. Edwards conveyed a tract of land which she had .inherited from her father to one McBride, who shortly -thereafter conveyed to Edwards.

<p>1. Attorneys at Law: partnership. Attorneys undertaking jointly the defense of a suit at law, become, as to that case, special or limited partners. In the absence of agreement to the contrary, they will be entitled to share equally in the compensation, and it does not matter that one may do more of the work than the other. This will not entitle him to charge as for extra services. Nor will he have any remedy against the other, by dissolution of the partnership or otherwise, for failure to perform his full duty.</p> <p>2. Instructions which wholly ignore an essential issue in the case are properly refused.</p> <p>3. Attorneys at Law: joint contract eor services : abandonment. If attorneys, by joint contract, undertake the defense of a case, mere neglect on the part of .one of them to perform services, will not amount to an abandonment of the contract, but refusal might, under proper circumstances.</p> <p>4. -: -: parol evidence. In an action by one attorney against another to recover one-half of the fee received by the latter for both under a written contract to render leg£l services, one of the defenses relied on was that defendant had employed, and paid a part of the fee to, other attorneys whose assistance he had obtained, with the consent of plaintiff and their client. Held, that this did not vary or alter the terms of the principal contract, and parol evidence of it was admissible.</p> <p>5. -: -. In such an action, the fact that the plaintiff is at the same time suing the client for his half of the fee, cannot affect his right of recovery.</p> <p>6. -: -. In such an action, it will be no defense to show that the attorneys could not have compelled payment of the fee if the client had chosen to resist, or that by an arrangement with the client, the defendant may have to refund it; or that the plaintiff did not render the services he ought to have rendered, or pay his portion of the incidental expenses.</p> <p>■J. Abandonment of Contract: a question of law. What constitutes abandonment of a contract is a matter of law, and the court should instruct the jury as to the effect of the facts they may find, bearing upon the question, and not leave it to them to say, without such instruction, whether a contract has been abandoned or not.</p>

JError to Jackson Special Law and Fquity Court. — r-HoN. R. E. Cowan, Judge. Even if the first four notes were non-negotiable under the laws of Indiana, the petition alleged and the evidence is. that the makers were non-residents of this State, and the defendants as assignees thereof, were liable. R. S. 1879,, § 665.

' Appeal from Jackson Circuit' Court. — Hon. S. H. Woodson, Judge. O’Sullivan had no power to appoint a sub-agent at the ■expense of the plaintiffs. Story on Agency, (6 Ed.) § 387, and note; lb., §§ 13, 14, 16; 2 Kent Com., (12 Ed.) side p. 633, sub-div. 9, and note; Paddock v. Colby, 18 Yt. 485; 'Solly v. Bathbone, 2 Maulé & Selw. 299, et seq; Warner v. ■ Martin, 11 How. 209 ;. Cronkite v. Wells, 32 N. Y. 247.

<p>Sheriff’s Deed: recitals. A sheriff’s deed executed in pursuance of a power conferred'by a mortgage to the county,' will be void if it fails to recite that a certified copy of the order of the county court requiring the sheriff to foreclose was delivered to him and that the sale was made in pursuance of the order; but if these are facts, the purchaser may obtain a new deed properly reciting them.</p>

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

<p>Horse-racing in Public Road: indictment : evidence. An indictment for running a horse-race in a public road, will be supported by proof that defendant procured another to ride his horse in the race. R. S. 1879, § 1531.</p>

<p>1 Partnership: release of co-debtor. A creditor of a firm may release one member of the firm without discharging the others.</p> <p>2. Temporary Judge. When a temporary judge, selected by the. parties, by their consent has tried a cause without being sworn, neither of them will afterward be heard to urge this as an objection to the validity of the judgment.</p>

<p>Tort : WILLFULLY CAUSING HORSES TO BREAK AWAY: DAMAGE BY COLLISION. Defendant finding a team of horses hitched to a post in the street in front of his premises, willfully and intentionally threw a stream of water from a hose upon them, whereby they were frightened and breaking away ran down the street and collided with plaintiff’s team. Held, that plaintiff was entitled to recover oí defendant the damage caused by the collision.</p>

<p>A suit will not lie to set aside or correct errors in a judgment obtained without fraud, or to procure a re-taxation of costs.</p>

— Hon. F. P. Wright, Judge. If it was the understanding between plaintiff, and defendant that they were both signing merely for the accommodation of Connor, then they are equally liable, and plaintiff having paid the. whole amount, defendant is liable to him for one-half. Warner v. Price, 3 Wend. 397; Norton v. Coons, 2 Seld. 33; Barry v. Ransom, 12 N. T. 462; Craythorne v. Swinburne, 14 Ves. 159; Griffith v. Reed, 21 Wend. 501. The evidence shows this was the understanding.

— Hon. G. H. Burckhartt, Judge. Brown and Smith, executors, could not sue Gregory & Brown, partners, on a note made by the firm to the executors. Hill v. McPherson, 15 Mo. 204 ; Coll, on Part., § 642, and note. The assignment by Brown of his interest in the note to Smith was nugatory. Being at the time co-administrator he could not, as such officer, divest himself of his interest in said note to his co-administrator without at the same time surrendering said office.

— Hon. William T. Wood, Judge. This was a suit by Matthew Ryan to enjoin Gilliam & Doak from enforcing- a deed of trust given by him to secure a note for $4,500. The facts were briefly these: Gilliam & Doak, who were bankers, held a note for $1,000 made by James B. Ryan, a brother of plaintiff, and. Edward Langan, and also a note for $2,012 made by James B. Ryan and Langan, and purporting also to be signed by plaintiff.

<p>Municipal Corporation: trespass by city ofeicep.. If a city officer takes earth from private property and uses it in improving a street of the city without any provision in the charter or elsewhere authorizing such a proceeding, it "is a trespass, for which the officer will be individually liable, but not the city.</p>

— -Hon. L. E. Dinning, Judge. This was au action to recover damages for killing plaintiff’s mare.

<p>1. Railroad : negligence : contributory negligence. It is well settled that it is such negligence for one to attempt to cross .or get upon a railway track at a public crossing or elsewhere, without looking .and listening for an approaching train, as precludes a recovery for an injury sustained by him from a passing train or locomotive, whether the company’s negligence also contributed directly to produce the injury or not; but there is this qualification to this rule: If the negligence of the company, which contributed directly to cause the injury, occurred after the party injured was, or by the exercise of proper care might have been, discovered on the track by the company’s trainmen in time to stop the train and avert the calamity, the company is liable, however gross the negligence of the injured party may have been in placing himself in danger.</p> <p>2. -:-: unlawful speed. The mere fact that a train is run through a city, at a greater rate of speed than is allowed by ordinance, will not authorize a party injured to recover. There must be evidence connecting the violation of the ordinance with the injury, as a cause. •. ■ The same is true as to failure to comply with the law requiring the bell to be rung..</p> <p>3. -: -: contributory negligence. It is not sufficient to exonerate a party from a charge of contributory negligence in attempting to cross a railway track in the face of an approaching locomotive, to show that he might reasonably have supposed that if the locomotive ran at its usual and lawful rate of speed for that place he could cross without harm. He lias no more right to presume that the men in charge of the locomotive will obey the requirements of the law than they have, that he will obey the instinct of self-preservation and not unnecessarily thrust himself into danger.</p>

<p>Meat-shop License; uniformity of taxation. A license fee imposed upon tlie keepers of moat-slióps is aiax, and must be uniform within the territorial limits of the authority imposing it. Const. 1875, art. 10, § 3. A city ordinance; therefore, which requires a license fee of $100 in one part of the city and $25 in the rest, is void.</p>

<p> Prohibition. </p>

— Hon. S. A. Richardson, Judge. This was an action begun before a justice of the peace.

— Hon. G-. II. Buroko hartt, Judge. 'The indictment is defective in this, that it does not allege and negative the pretense, and does not allege that Williams believed the pretense to be true and by reason thereof signed the note. R. S. 1879, § 1335; State v. Evers, 49 Mo. 542; State v. Bonnell, 46 Mo. 395 ; State v. Saunders, 63 Mo. 482. The offense aimed at by section 1561 is the obtaining of money or “ property ” by false pretenses. State v. Fancher, 71 Mo. 460.

- — Hon. W. F. Geiger, Judge. This was an action on a promissory note. The defendants, who had signed as joint makers with Job Newton, denied liability on the ground that the note bad been .altered without their knowledge or consent.

<p>1. Bailroad: passenger alighting prom moving train : negligence. In an action by a passenger against a railroad company to recover for injuries sustained in alighting from a train as it was in the act of moving out from plaintiff’s station;</p> <p>Held, that if the- train was not stopped at the station a sufficient length of time to enable plaintiff, by the use of reasonable expedition, to get off before it was again started, and it was started while plaintiff was in the act of alighting, the company was liable. Or if insufficient time was allowed, but before plaintiff attempted to alight the train was started, and he then jumped from the train while its motion was still so slight as to be almost imperceptible and was injured, it was for the jury to determine from the age and physical condition of plaintiff and the attendant circumstances, whether his act constituted negligence. In such case the negligence of the company’s servants in prematurely starting the train would support a recovery if the act of the passenger in jumping from the train should not be found by the jury to amount to concurring negligence.</p> <p>Held, further, that if the train was stopped a sufficient length of time to enable plaintiff to conveniently alight, and without any fault of the company’s servants, he failed to do so, and the conductor, not knowing and having no reason to suspect that plaintiff was in the act of alighting, caused the train to start while he was so alighting, then the company would not be liable.</p> <p>Held, further, that it is not the duty of the conductor, in all cases, after allowing a sufficient time for passengers to get off, regard being bad to their age, sex, physical condition and surroundings, to pass •along the train and examine the platforms of each coach, to see whether there are any persons attempting to get off, before starting his train; but if he has reason to believe that any passenger, who has reached his destination, has not alighted, and though dilatory, may be in the act of alighting, and he starts his train without ex" amination or inquiry, and sufch passenger is in the act of alighting ■when the train is started and is thereby injured, the company will • be liable; but when the conductor, after allowing sufficient time for passengers to alight, starts the train before the passenger is in the ■ act of getting off, and after the train is in motion the passenger, who has been dilatory, jumps from the train and is injured, he cannot recover.</p> <p>2. -: contributory negligenoe. Where concurring negligence-of the plaintiff proximately contributes to produce the injury complained of, there can be no recovery, unless the injury is also the direct result of the omission of defendant, after becoming aware of the danger to wh ich the plaintiff is exposed, to use proper care to avoid injuring him.</p>

— Hon. E. P. Wright, Judge. This was an action begun before a justice of the peace.

<p>Appeal from Bates Circuit Court. — Hon. E. P. Wright, Judge.</p> <p>The evidence of the county clerk shows that he levied the regular township tax in April, as was his duty under the law, and that after he received the order from the township board, June 7th, he made another and additional levy in- this township which was unauthorized, and could not be legally made.' See Township Organization, Acts 1873, page 118, sections 16, 17,18, in which the clerk’s powers and duties are defined; so that it appears, his duty had been performed and his authority exhausted, when, as in his evidence he says, he had done all required by these sections in the time prescribed by law. So he had no power afterward, on his own motion, or by any order of the township board, to make an additional levy. The ■county court, by the law in force, (Acts 1873, § 15, p. 118,) alone could fix the township tax, and this the court had done before.</p> <p>No instructions or declarations of law were asked or given in this case, and no questions of law were raised or determined by the court below, and there is nothing for this court to review.. 47 Mo.1322; 43 Mo. 289; 46 Mo. 36. The only thing possibly shown by the record here, if anything at all is shown, is that there was a mere irregularity in the assessment and levy made by-the township board. This would not prevent the enforcement of the tax. 47 Mo. 393; 48 Mo. 282.</p>

<p>Bank Officer’s Bond: additional employment : sureties’ liability. The fact that the bookkeeper of a bank performs the duties of teller also, will not relieve the ‘sureties in his bond given for the faithful performance of his duties as bookkeeper, from liability for errors committed by him in that capacity, unless the errors were in some way connected with some improper act on his part as teller, or were superinduced by his employment as such.</p>

— Hon. H. S. Kelley, Judge. When West assumed and charged himself with the balance due from Mrs. Neely, he only did what the law required of him. Allen v. McCullough, 2 Heisk. 174; s. c., .5 Am. Rep. 27; Tyler on Inf. and Cov., §§ 216, 217, 218; .2 Williams Executors, (4 Am.Ed.) pp. 1529,1561; Schouler Dom. Rol., 105. Nor did his liability expire with his life. 1 Parsons Contracts, (5 Ed.) 844; Tyler Inf. and Cov., §'• 219; Burton v. Burton, 5 Harr. (Del.) 441.

— Hon. John. T. Redd, Judge. This was a suit brought by the city of Hannibal in the name of the State to recover city taxes assessed against the property of defendant within the city. Defendant by its answer set up among other things a contract made on the 3rd day of December, 1868, between itself and the city.

Court. — The case was tried before-William Walker, Esq., sitting as Temporary Judge. This was an action against the City of Kansas and John Halpin to recover damages for crushing in and destroying plaintiffs’ house. Halpin was a contractor with the city for the grading of the sidewalks in Fifth street, and plaintiffs owned premises abutting on that street. The grade of the street, as established by the city ordinance, was about on a level with the top of plaintiffs’ house.

— Hon. ~W. E. Geiser, J udge. ' The note sued on was clearly a charge and lien on the separate property of the defendant Harriet Smith.

Apjucd from Barton Circuit Court. — Hon. C. G. Burton, J udge. This was an indictment for the killing of J. D. McElwrath. The evidence showed the following state of facts: Deceased was city marshal of Greenfield, Dade county, and deputy constable of Center township in which Greenfield is situated. On the 20th day of June, 1881, deceased, with others, went into the country to arrest horse thieves.

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

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

<p>Error to Johnson Circuit Court. — Hon. N. M. Gtvan, Judge.</p>

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

<p>1. Criminal Law: venue. No principle is better settled than that in a criminal case the venue must be proved as laid in the indictment. The proof may be either direct or indirect, but it must be one or the other, and the record must show it, or this court will reverse.</p> <p>2. Rape: evidence. In a prosecution for rape, the prosecuting witness was asked by defendant’s counsel what her object was in going to Scott’s station, (where the rape was alleged to have been committed,) but the court refused to permit her to answer. Held, error.</p>

<p>1. Ejectment: plaintiff’s title. In ejectment it is error for the court to leave it to the jury to determine whether the plaintiff is the owner of the premises, without instructing them as to the legal effect of the deeds read in evidence.</p> <p>2. -: -. If plaintiff’s paper title be insufficient he can only recover either upon the ground of continued adverse possession for ten years prior to defendant’s entry, or upon proof of prior possession under clainr of right.</p> <p>See also The State v. McGinniss, 74 Mo. 245; The Stale v. McGrath, 73 Mo. 38!.</p>

Louis Court of Appeals. The estate of Louisa Kleiboldt was a life estate, with power of appointment; the contingent remainder to her heirs could only unite with her life estate, so as to give her the fee, by virtue of the rule in Shelley’s ease, which does not exist in Missouri. 2 Wag. Stat., § 6, p. 1351; 2 Wash. Real Prop., (4 Ed.) pp. 598, 599, top ; Pendleton v. Bell, 32 Mo. 10,0.

Louis Court of Appeal's... The judgment in the former puit is conclusive that in May, 1872, the right-of possession was in Miller, and that it continued in him till at least after judgment, because our •statute of ejectment provides that if the plaintiff’s right ■of possession expires before judgment, it may be pleaded, and he shall only have judgment for costs and damages to that time.

— Hon. ¥m. T. Wood} Judge Before the contract between appellants and Ed. J. Brown had been executed, and while -the title to the land in controversy was still in appellants, the defendant Barrett became their vendee, instead of Brown. By his trade with Brown, he took his place in the contract with the appellants — became the holder of the forged note, and undertook to pay all the purchase money for the land.

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

Louis Court of Appeals. This was a suit brought against Collins as administrator of Mrs. Sarah L. Coleman (formerly Baker) to subject to the payment of several promissory notes executed by her during coverture, a tract of land conveyed to her before marriage by a conveyance, which contained the fol- - lowing habendum clause: “ To have and to hold the above described lots of land, and each and every of them, with all the tenements, hereditaments and appurtenances thereunto…

<p>Appeal from ,Adair Circuit Court. — TIon. J. ' ~W. Henry, Judge.</p>

— Hon. Andrew Ellison, Judge. The claim of Mrs. McPheeters to the property, and its proceeds, if sold, was superior to that of the creditors of Joseph H. It was purchased with her money, and the creditors of her husband had no claim, legal or equitable, to it, or to property in which it might be invested. Joseph H. McPheeters had no interest in the property by virtue of the deed of trust to Jno. T. Redd, except a contingent one.

<p>1. Negligence ; pleading. In an action for negligence the petition need not specify the particular act complained of. If it does, no ^ other can be proved. But a general averment of negligence will be sufficient.</p> <p>2. -: evidence : railroad. Under a general averment that the defendant, a railroad company, negligently killed plaintiff’s animal, evidence was received that the killing took place at a public crossing, and that neither the whistle was sounded nor the bell rung on the locomotive which did the damage, as it approached the crossing. Held, no error.</p>

<p>1. Burglary: instructions. Where the evidence given in a prosecution for burglary made it impossible for the jury not to conclude , that the window through which defendant effected an entrance was an outside window; Held, that it was not essential for the trial court specially to instruct the jury that they could not convict un- „ less they found this fact.</p> <p>2. Larceny. Stealing in a dwelling house is made grand larceny by statute, irrespective of the value of the property stolen. R. S. J 879, ? 1309, See State v. Brown, post) p'317.</p> <p>3. Burglary and Larceny: ¿verdict. A verdict in a prosecution for burglary and larceny declared defendants “ guilty in manner and form as charged in the indictment,” and assessed the punishment, but failed to say of which offense the defendants were found guilty. Held, that it was nevertheless good.</p> <p>4. Larceny. Recent possession of the property stolen, unless satisfactoria explained, is prima facie evidence of guilt.</p> <p>5. Practice, Criminal: instructions. On the trial of a criminal case, the court gave an instruction for defendant which was erroneous and in conflict with a correct instruction given for the State. The error was in favor of the defendant. Held, that it afforded no ground for reversal.</p> <p>6. :-: -. In a criminal case it is a matter of discretion with the trial court whether to permit the jury to take the instructions with them to the jury room or not.</p> <p>7. -: ---: witness. • The contumacy of a witness in persisting in answering a question after the court has ruled it out, furnishes no ground for reversal when the court has expressly instructed the jury to disregard the answer.</p>

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

<p>1. Husband, and Wife: trusts. When a husband purchases real estate with his own money and causes the conveyance to be made to his wife, there is no presumption of a resulting trust, but prima faeie this is a provision for the wife.</p> <p>2. -: -: evidence. Evidence of declarations and of acts of the wife is competent to show that the intention of the parties was that the wife should hold for the husband; and the finding of the jury as to the fact is conclusive.*</p>

Louis Court of Appeals. The obligation oí the indorser of a promissory note is in the nature of that of a surety for the performance of the act of the promissor. Chitty on Bills, (13 Am. Ed. No. 411) 463; Clarke v. Devlin, 3 Bos. & P. 363; Wallace v. McConnell, 13 Pet. 136 ; Blair v. Bank, 11 Humph. 84; 2 Daniel Negot. Iustr., p. 292, § 1303; Edwards on Bills, 293; Byles on Bills, 189, *192; Smith v. Sheldon, 35 Mich. 42; s. c., 24 Am.

— Hon. M. G. McGregor, Judge. This was an indictment for stealing from the dwelling house of one Gather property alleged to be of the value of $15. The second instruction given on the part of the State was to the effect that if the jury believed that defendant took, stole and carried away of the property mentioned in the indictment of any value whatever, in the dwelling of said Cather, and belonging to said Cather, they should find the defendant guilty of grand larceny.

<p>Corporations: malicious prosecution. A corporation is liable to an action for malicious prosecution instituted by its authority. Gillelt v. Mo. Valley R. R. Co., 55 Mo. 315, overruled.</p>

— Hon. W. E. £tEIger, J udge. The certificate of acknowledgment to the sheriff's deed was as follows: I, B. Appleby, clerk of the circuit court in and for Bade county, do hereby certify that on the 2nd of November, 1866, Samuel E. Shaw, sheriff of Bade county, appeared in open court at the October term, 1866, -and acknowledged the execution of the foregoing deed, which was duly entered of record in book 4, on page 221. . ‘ Witness, B. Appleby, Clerk, Etc. The instruction…

<p>Murder. Instructions are erroneous, which authorize the jury to convict of murder in the first degree without requiring them to find both malice and deliberation; and the error is not cured by the giving of an instruction which correctly defines the offense.</p>

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

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

Louis Court of Appeals. This was a proceeding by way of information in the nature of a quo warranto, filed by the State through the •circuit attorney, at the March term, 1881, of the St. Louis court of appeals. The information charged that the defendant had usurped the office of notary public within and for the city of St. Louis, and prayed judgment of ouster.

<p>1. Pleading, Criminal. An indictment in two counts will be good if each count contains a criminal charge sufficiently alleged, though the counts be repugnant to each other.</p> <p>% -: election. The fact that the several counts of an indictment are repugnant to each other, is no ground for compelling the State to elect between them.</p> <p>3. Practice in Supreme Court: instructions. Where fhe evidence adduced upon the trial is not preserved in the bill of exceptions, this court will assume that it warranted the instructions given, if such evidence could legitimately have been given under the indictment.</p> <p>4. Criminal Law: breaking jail. Evidence that one accused of a crime has broken or attempted to break jail, is admissible, as tending to prove guilt. On the other hand evidence on the part of the accused explanatory of such attempt and tending to show that it was not prompted by a 'consciousness of guilt but by other considerations consistent with innocence, is equally admissible.</p> <p>5. Practice. Error committed in withdrawing evidence from the jury is not cured by giving an instruction which permits them, in "making up their verdict, to consider the facts which the excluded evidence tended to prove.</p> <p>6. -. Remarks of the prosecuting attorney; Held, not to call for a reversal.</p>

Mandamus. Mandamus is the proper remedy.^ Tapping on Mand., *12; Moses on Mand., *19; Rex v. Barker, 3 Burr. 1267; Rex v. Windham, Cowp.… Held: under provisions in constitutions similar to that in the constitution of Missouri of 1875,'to be void if its •subject is in the words employed in its title to express it, hidden in covert concealment or left to be groped for through doubts and difficulties; through obscurities and uncei’tainties, and with misgivings and perplexities.

<p>1. County Clerks: their liability to account for fees. The act of March, 1868, requiring the clerks of courts to render accounts and to pay into the county treasury all the emoluments of their offices beyond the allowances prescribed by the act, applied to the clerks of the county courts. Sess. Acts 1868 p. 54.</p> <p>2. -: -: judgment binding on sureties. Where a county clerk and the sureties in his official bond, being sued by the county for a surplus of fees alleged to be withheld from the treasury, defended on the ground that he had made and the county court had approved a statement and settlement of his accounts, and that by such settlement it appeared there was no surplus; Held, that a judgment of the circuit court setting aside such settlement as having been obtained by fraud was admissible in evidence, and was binding upon the clerk and his sureties alike.</p> <p>£. -Limitations: non-suit. The statute which provides that a party who suffers a non-suit in an action commenced within the time prescribed by the statute of limitations, shall have the right to commence a new action within one year, applies as well to voluntary as to'involuntary non-suits. E. S. 1879, ? 8239.</p> <p>4. Official Bonds. An official bond is binding upon all who sign it though it is not in the form prescribed by statute.</p> <p>,5. Practice: harmless error in admitting evidence. Where undisputed evidence fixed the amount of recovery at a sum greater than that for which plaintiff obtained judgment, Held, that error committed in admitting evidence of a further amount was no ground for reversal. .</p> <p>,6. Public Officers: settlement of accounts: aurisdiction. Failure of an officer to comply with a law requiring him to settle his accounts with the county court, will give the circuit court jurisdiction in an action brought on his official bond, to investigate his accounts .and make the settlement.</p>

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

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

— Hon. E. J. Broaddus, J udge. This was an action of ejectment for a tract of military bounty land in Carroll county. Plaintiff showed a patent from the United States to Wm.

<p>1. Sheriff’s Deed. Under School Mortgage. A sheriff’s deed executed in pursuance of a power conferred by a mortgage to the county, will be held void if it fails to recite sufficient authority for making the sale, and it does not otherwise appear that there was such authority.</p> <p>2. Mortgage: bight op redemption. In a suit to redeem land sold . under a mortgage, the defendant relied, for a defense, on the fact that he had from time to time since his purchase made improvements in good faith and with the knowledge of the mortgageor and without objection on his part. It was shown, however, that the improvements were but usual and customary repairs, not exceeding the rents in value, and that there was no material change in the value of the property. Defendant was the purchaser at the mortgage sale, and there had been no loss of evidence preventing a full presentation of the case. Held, that there was nothing to defeat plaintiff’s right of redemption.</p>

<p>1. Insurance Companies can not make Assignments. An insurance company can not,even with the consent of the stockholders,, make a valid voluntary assignment of its property, and thus withdraw itself and its property from the control of the Insurance Department of the State, after it has violated the laws made for the regulation of insurance companies. Such an assignment would be in fraud of those law's. Before suit is brought by the Superintendent of the Insurance Department, under the statute, an insurance company whose capital stock.is impaired may make itself sound ; but while it attempts to do business upon an unsound basis, it is acting in fraud of the law; and while it fails to repair the deficiency, the interests of the policy-holders and the public are, by the law, intrusted to the court of equity under provisions created for the case, and the jurisdiction of the court cannot be ousted' at the will of the offender. The State is a party to the proceeding, and a full exposure of frauds, if any exist, is essential to the purpose* of State in enacting the law.</p> <p>:2. -. The legal results of fraud upon the law cannot be indirectly avoided. Though the law relates only to “insurance companies doing business in this State,” a company, having violated and acted in fraud of the law while doing business in this State, cannot avoid its penalties by making an assignment, or by ceasing to take new risks, or by' any other subterfuge resorted to for the purpose óf ■ evading the provisions of the statute for exposure and punishment.*</p>

Louis Court of Appeals. The old rule as laid down in State v. Loss, 29 Mo. 32,. and State v. Smith, 53 Mo. 139, has been changed by the constitution of 1875. Art. 2, § 23. Now, when judgment m a criminal case is arrested for error at law, the trial is to be-regarded as a mis-trial, and when remanded the whole ease ' is to be tried anew. State v. Simms, 71 Mo. 538. So it is-held elsewhere.

<p>1. Instructions. No issues should be submitted by the instructions but such as are made by the pleadings.</p> <p>2. Presumption of Settlement of Demands. Where it was conceded by the pleadings that the consideration of a note given upon a settlement between the plaintiff’s intestate and defendant, was services rendered by the intestate; Held, that this rebutted the presumption which would otherwise have arisen that the settlement embraced all the demands between the parties.</p> <p>3. Witness : party to contract, other party being dead. Where an administrator is a party to an action upon a contract made by his intestate, the adverse party will be admitted to testify in his own favor as to matters which have occurred since the appointment of the administrator. Qualifying Bing v. Jamison, 66 Mo. 424, and Wood v. Matthews, 73 Mo. 482.</p>

Louis Court of Appeals. Plaintiff was not entitled to recover because, at the time he received the injury, he was using the street only as a play ground. Stinson v. Gardiner, 42 Me. 248; Blodgett v Boston, 8 Allen 237; 2 Dillon Munic. Corp., (3 Ed.) §§ 1000,1001,1002. The obligation esting upon the city is filled if the streets are reasonably safe for travel — not for play or for any other purpose, but solely for travel.

<p>Appeal from Henry Circuit Court. — IIon. James'B. Gantt,, Judge.</p>

Glair Circuit Court. — Hon. J. D. Parkinson, Judge. The plaintiff’ was a corporation organized under chapter 68, General Statutes 1865, “Of Savings Banks and Fund Companies.” This action was brought against the Board of Education of the Town of Roscoe on several bonds and coupons.

<p>Appeal from Clay Circuit Court. — Hon. Geo. ~W. Dunn,. Judge-. - t</p> <p>cited.1 Huth v. Carondelet Marine P’y Go., 56 Mo. 203; Olney v.. Matón, 66 Mo. 563.</p> <p>cited Koehring.v. Mu-emminghoff, 61 Mo. 407; Mechanics’ Bank v. Valley Packing■ Go., 70 Mo. 643 ; Griswold v. Seligman, 72 Mo. Ill; Pearson• v. 'Carson, 69 Mo. 550; Uenshaw v. Dutton, 59 Mo. 139.</p>

— Hon. James B. Gantt, Judge. The action of the court below in overruling the two motions for continuance, (vide Rec. pp. 13 and 17,) and compelling appellant to trial on .the day after arraignment and before a reasonable time had elapsed for the return of process for certain witnesses within the jurisdiction of the court, is a literal application of the statute of continuances (§ 1886), but is subversive of the guaranty contained in section 22 of article 2 of the…

<p>1. Conversion. One who innocently obtains the property of another' from a third party, may when informed of the right of the true owner, lawfully return it to the person from whom he obtained it, provided he does this before demand made or suit brought; but if he asserts any title in himself, or if he returns it after demand made,, he will be guilty of conversion.</p> <p>2. -: verdict. The verdict in an action for conversion was: “ We, the jury, find a judgment for plaintiff for the sum of $90.”' Held, informal, but sufficient in substance.</p>

<p>1. Corporation: corporate name. A family name not conjoined with a Christian name is not “the name of a person” within the meaning of the statute which makes the word “ company ” or “corporation ” an essential part of the name of every corporation assuming the name of a person or firm. B. S. 1879, g 762. Hence, the name “Mallinckrodl Chemical Works” does not come within, the statutory requirement.</p> <p>2. -.' The object of the statute is to prevent corporations from conducting business in the names of firms and individuals, thereby misleading the public into the belief that they are dealing with individuals and are entitled to the protection offered by their personal liability.</p>

<p>Appeal from Clinton Circuit Court. — IIon. George W. Dunn, Judge.</p>

— Hon.. G-. Porter, . Judge.. The following is the instruction- referred to in the= opinion : “ The record of the deed from Robert C. Mansfield to J. P. Clark, given in evidence by defendant as part, of his chain of title, being a quit-claim deed, defendant was bound to take notice of any defect in the title he was-getting, and he only took such title as Mansfield had at the time.

<p>Error to Vernon Circuit Court. — Hon. J. D. Parkinson, Judge.</p> <p>cited Gluck v. Eiebold, 1 Mo. App. 265; Pearson v. Lovejoy, 35 How. Pr. 195; 3 Mo. 122; 50 Mo. 404.</p> <p>cited McCabe v. Lecompte, 15 Mo. 78; Henderson v. Henderson, 55 Mo. 545.</p>

<p>.Deed of Trust: trustee’s sale. When enough has been realized from the’ sale of a portion of the property covered bya deed of trust to pay the debt, the trustee’s power is at an end, and any further sale is a nullity.</p>

<p>.Appeal from Clinton Circuit Court. — Hon. G. W. Dunn, Judge.</p>

— Hon. Wm. T. Wood, Judge. This was an action of' ejectment between adjoining proprietors brought to determine the right to a strip of land on their common boundary line. A prior action between the same parties for the same land had been terminated by a compromise and the entry of the following oi’der: “Now, at this day, come the parties by their respective attorneys, and the jury herein re-assembles and the trial of the cause is proceeded with.

— Hon. ¥m. T. Wood, Judge. The certificate of indebtedness was payable out of the general expense fund of the county. It was an acknowledgment of general indebtedness by the county to Hixon. The school fund notes and judgment thereon were not due the county from Hixon in its own right. They were due the comity simply as trustee. Ray Co. v. Bentley, 49 Mo. 242. In a suit against a defendant, a debt held by defendant as trustee, cannot be used as a set-off.

<p>Appeal from Pettis Circuit Court. — Hon. William T. Wood, Judge.</p>

<p>Pleading: new matter. In an action on a bond given by an agent for the faithful performance of his duties the petition alleged,, as breaches of the bond, that the agent had failed to account truly as to the subject matter of his agency. At the trial evidence was-offered by defendants tending to show that a full adjustment of all matters relating to the agency had been had and the agent had paid a portion of the balance found against him in money and had given his note for the remainder. Held, that this evidence tended to show that there had been no breach ; that the facts, therefore, did not constitute new matter within the meaning of the code, and so might be given in evidence without being specially pleaded.</p> <p>Wife as a Witness for her Husband. In order to render a married woman competent as a witness, under the, statute, when her husband is a party, it must appear that the matter to which she is called to testify, was a business transaction which was had and conducted by her as the agent of her husband. The fact of her agency must be shown by some witness other than herself.</p>

<p>.Error to Johnson Circuit Court. — Hon. N. M. Gxvan, Judge.</p>

<p> Appeal from Moberly Court of Common Pleas. </p>

<p>Appeal from Buchanan Circuit Court. — IIon. W. H. Sherman, Judge.</p>

<p>1. Special Judge: proceedings for his election. Under the statute in relation to the election of a special judge in cases where the regular judge is disqualified to sit, (and in certain other cases,) from the time that the disqualification is ascertained all the judicial powers of the regular judge cease so far as that case is concerned. The statute imposes upon the clerk the duty of holding the election, and the judge has no power to make any order in respect thereto. Hence, where the person elected was known to the judge to have been of .counsel in the case, and for this reason h'e set aside the election and caused a new one to be held; Held, that this was error.</p> <p>:2. -: -. It is for the parties to a cause, and not the judge, to object to a person elected special judge on the ground of disqualification ; and when the objection is made it must he to the clerk. The duty of holding a new election rests upon him.</p> <p>:3. -: practice. Where a case tried before a special judge, on account of disqualification of the regular judge, is remanded for a new trial, if the regular judge has been succeeded in office by one who is not disqualified," the new trial will be had before him as if no special judge had ever been elected.</p>

— ITon. J. C. Anderson, Judge. This was a proceeding by mandamus against Benjamin E. Bourn, Ellis Sparks and Riley Gale, justices of the county court of Scotland county, to compel them to issue the relator a warrant on the county revenue fund for $17.50 •due relator for labor performed by him as road overseer .and for sign-boards and materials furnished to his district. 'The-county court had allowed the claim and ordered the •clerk to issue to relator a script on his…

<p>1. Railroads: stopping and starting of passenger trains. The rules laid down in Siraus v. R. R. Co., ante, p. 185, affirmed.</p> <p>2. Instructions offered by the parties but amended by the court before being given, are to he considered as if given by the court of its-own motion, and the fact that counsel read them to the jury will not operate a waiver of exceptions duly taken to the action of the court.</p> <p>8. Contributory Negligence. Instructions so drawn as to put-upon the plaintiff the onus of showing that he was not guilty of contributory negligence are properly refused.</p> <p>4. —-: defendant’s liability. The negligent acts of a defendant which will subject him to liability notwithstanding the contributory negligence of the plaintiff are such as are committed after he becomes aware of the danger to which plaintiff has exposed himself.</p> <p>5. -: boarding moving train. It is not necessarily negligence to attempt to get on a train which has started from a station. The' rate of speed and -whether the train was stopped a sufficient length of time to enable passengers to get on, are circumstances to be con-sidered in deciding the question.</p> <p>’6.---: -. The fact that the conductor of a railroad train about to leave a station is induced by the conduct and conversation of'a person on the station platform to believe, that he does not intend to take passage on the train, will not relieve the company from liability for injuries received by sncli person in consequence of the-train being started without giving him time to get on, if the conductor actually sees him attempting to get on when he gives the order to start.</p> <p>7 Railroads: duty to stop at stations. Railroad trains are bound to stop at stations a reasonable length of time to enable passengers to get on.</p>

— Hon. William T. Wood, Judge. Tbis.was an action on an administrator’s bond. The petition as originally drawn was in the name of John G. Longdon as plaintiff. By leave of court the petition was amended by substituting as plaintiff “the State of Missouri upon the relation and to the use of John G. Long-don.” The petition as amended alleged in substance the execution of a bond in the usual form by the defendant Thomas G. Shelby, as administrator of Wm.

— Hon: E. J. Broadpus, J ndge. The settlement was a benefit to Chinn by discharging his debt to plaintiffs; and a contemporaneous benefit to a third person, based on the promise of another, is a valid consideration for the promise of that other. Cress v. Blodgett, 64 Mo. 449; Rogers v. Oosnell, 51 Mo. 466.

— Hon. G. D. Burgess, Judge. This was an action upon an account, the items of which were as follows: To boarding and taking care of and furnishing room to one-Fleming during injuries . . $25 00 To damage of beds and bed-clothing . . 20 00 To washing for said Fleming . . . ■ 4 50 To beer for said Fleming.....-50 To board of nurse for said Fleming . . . 3 50 Total........$58 50 At the trial the plaintiff introduced evidence tending to prove that Fleming, while in the employ of…

— TIon. E. J. Broaddus, Judge. This was a suit to recover an over-charge upon a contract alleged to have been made with defendant for transportation' of corn from Hill’s Landing, Missouri, to New Orleans, Louisiana.

— The case was tried before E. L. Kins, Esq., sitting as Special Judge.

— Hon. G. D. Burgess, Judge. This was an action of ejectment for a lot in the town of Trenton, brought by Peery, Austin and Tindall against Hall and Rice. The answer consisted of a general denial and a plea of equitable estoppel. The land had been twice sold, first under a deed of trust and afterward under an execution issued upon a judgment in a suit to enforce a mechanic’s lien. Plaintiff's derived title under the former sale ; defendants under the latter.

— Hon. S. H. Woodson, ■ . Judge. The petition filed in the trial court alleged the recovery in that court of a certain judgment by the relator against the City of Kansas, the issuance of an execution .•and the return by the sheriff1 of nulla bona thereon ; that the defendants were the mayor and common council of that city, empowered by its charter to provide by ordinance for the levying and collection of all taxes for city purposes;' and prayed that defendants might be…

Louis Court of Appeals. Plaintiff’s evidence tended to prove that on the 9th day of October, 1876, defendant swore out an information against him in the court of criminal correction in St. Louis county, charging him with grand larceny m stealing certain paints; that he was thereon arrested and committed to the jail of that county; that on the 19th day of October •he was tried upon said charge and was acquitted; that defendant had agreed with plaintiff' to paint for him the…

<p>Bailroad: killing live stock : action fob. double damages : pleading. In an action against a railroad company to recover double damages for tbe killing of live stock, tbe statement filed with tbe justice of tbe peace alleged that tbe animals “strayed upon the track of said railroad on or near a farm crossing, at a point in the line of said railroad where said railroad was not fenced and where tbe crossing and cattle-guards were not made as tbe law requires; and that defendant so carelessly and negligently ran and managed its cars and locomotive that they ran against and over ” the animals, killing them. Held, that, as tbe case was begun before a justice of tbe peace, these allegations were sufficient to support a recovery.</p>

Mandamus. This was a proceeding by mandamus against the Hon. N. M. Givan, judge of the circuit court of Cass county, to compel him to re-instate the case of Atkison v. Dixon •on the docket of his court, and to proceed therein as previously commanded by this court. The facts appear in the opinion.

<p>1. Judgment for plaintiff reversed because the evidence wholly fails to establish material allegations of the petition.</p> <p>2. Railroad: liability fok killing of cattle at depot. A railroad company is not responsible for cattle attracted to a depot by hay loaded on its cars and killed there by a train, provided the cars are not allowed to stand on the track an unreasonable length of time. It would be otherwise if they were attracted by hay scattered on the track in loading, and left there.</p>

<p>1. Druggist: selling liquor without license. The act of 1877 ' in relation to the sale of intoxicating liquor mákes it a misdemeanor for a druggist, without taking out a license as a dram-shop keeper, .either (l)to sell or give away (except for medicinal purposes) intoxicating liquors in any quantity less than one gallon, or (2) to permit 'intoxicating liquor, no matter for what purpose or m what quantity sold, to be drunk on the premises where sold.</p> <p>'2. -: -: principal and agent. A druggist will he held criminally liable for the act of his clerk committed in his absence in selling liquor in violation of law, unless he shows that the sale was made without his assent.</p>

<p>1. Cairo & Fulton Railroad Lands: congressionalgrant: forfeiture. The act of Congress of February 9th, 1853, granted certain lands to the States of Arkansas and Missouri for the purpose of aiding in the construction of the Cairo & Fulton Railroad, subject to the condition that the lands should revert to the United States if the road should not be completed within ten years. 10 Stat. at. Large 155. The road not having been completed, on the 28th of. June, 1866, Congress passed an act declaring that the act of 1853 “ with all the provisions therein made, he, and the same is hereby revived and extended for the term of ten years from the passage of this act, and all the lands therein granted, which reverted to the United States under the provisions of said act, he and the same are hereby restored to the same custody, control and condition, and made subject to the uses and trusts in all respects as they were before and at the time such reversion took place,” (14 Stat. at Large 338); Held, that the act of 1866 was not such a legislative declaration of forfeiture as would divest the State of the title granted by the act of 1853. It was rather the intention to waive the right of forfeiture accruing under that act.</p> <p>2. -r : limitations. Where an act of Congress operates a grant inpraesenti, (as did the above act of 1853,) the statute of limitations-begins to run in favor of an occupant and against one claiming under the act, from the date of the former’s entry.</p> <p>3. -: -,. The running of the statute of limitations as against one claiming under the above act of 1853 was not suspénded by the enactment of section 7, page 746, General Statutes, Missouri, 1865.</p>

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

<p>Appeal from Hannibal Court of Common Pleas. — IIon. Theodore Brace, Judge.</p>

<p>Appeal from Platte Circuit Court. — IIon. G. W. Dunn,. J udge.</p>

<p> Appeal from St. Louis Court of Appeals. </p> <p>Tlie child was about two years of age at the time of •the injury.</p>

— Hon. Gr. L>. Burgess, Judge. The action is to recover damages for making and maintaining a ditch which injuriously affected the plaintiff’s land. The evidence is, that defendant did not make the ditch, and, hence, t'here need be no discussion of its liability for the making of it, and thereby committing a trespass or creating a nuisance..

<p>Error to St. Francois Circuit Court. — Hon. J. B. Robinson, Judge.</p>

<p>1. Homestead. The right of homestead ceases to exist when the occupant, with a view to acquiring a residence elséwhere and with no fixed purpose of returning, ceases to occupy the premises as a residence. Intention to return, in order to preserve the right, must be formed at the time of removal.; in. order to restore it when once lost, must be executed by actual resumption of occupancy.</p> <p>2. -: case adjudged. S. having lost his wife broke up housekeeping, moved his household goods, leased.his farm and went elsewhere to live. Several years afterward he re-married and within three weeks died. At the time of his death he was preparing to return to his former home, but had not done so, the tenant being still in possession. Held, that his widow was not entitled to homestead.</p>

<p>■Contract: disaffirmance for fraud. The right to disaffirm a contract for fraud, must be exercised promptly, and the disaffirmance must he in loto.</p>

— Hon. ‘Noah M. Givan, Judge. Granting that the whole of the Texas cattle law was unconstitutional and void; that the justice had no jurisdiction of the subject matter of the suit on account of the amount involved; that all the process and proceedings had and made by him were void; and that he, the constable, and all concerned therein were trespassers, and still the bond was not void.

<p>Judgment affirmed for reasons given by the St. Louis court of appeals.See 11 Mo. App. 538.</p>

<p>1. Bigamy : jurisdiction. An indictment for bigamy, when the unlawful marriage was contracted in this State, is cognizable only in the courts of the county where it was contracted, not where the parties may have afterward cohabited.</p> <p>2. Criminal Law: apprehension op offender, as ground of jurisdiction. Where the apprehension of an offender is made a ground of jurisdiction, the apprehension must have occurred prior to the finding of the indictment and must be alleged in the indictment.</p>

In an action attacking a fraudulent conveyance of land, section 3219, Revised Statutes 1879, applies. Hunter v. Hunter, 50 Mo. 445; Rogers v. Brown, 61 Mo. 190; Bobb v. Woodward, 50 Mo. 103. The statute of limitations in favor of a fraudulent grantee only commences to run from date of possession under fraudulent grant. Walker v. Bacon, 32 Mo. 144; Bobb v. Woodward, 50 Mo. 95. These cases are not overruled by Rogers v. Brown.

<p>1. Instructions as to Negligence. In an action grounded upon negligence, the better practice is for the court, by appropriate instructions applicable to the facts in evidence in the case, to tell the jury whether these facts, if they find them to exist, do or do not constitute negligence. An instruction is erroneous which leaves the whole question of negligence to the jury without any qualification whatever.</p> <p>• 2. Plaintiff’s Contributory Negligenee: defendant’s negligence-. ' When the plaintiff is guilty of contributory negligence, the defendant will be liable only for such negligence on his part as occurred after he became aware of plaintiff’s exposed condition. See Swigert v. Rami. & St. Jo. R. R. Co., ante, p. 475.</p> <p>3. - Railroads : pedestrians on the track. The servants of a railroad company operating its trains in the country at night have a right to assume that the track is clear, and are under no obligations to provide for the safety of persons who may be on it. Even if they know the track is used as a foot-path, this will not exonerate any one so using it from the duty of taking proper care to avoid injury.</p> <p>4. The Evidence in this case shows the plaintiff’s husband, for the killing of whom this action was brought,-to have been guilty of gross negligence directly contributing to his death and forbidding plaintiff’s recovery.</p>

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

Louis Court of Appeals. The train m question consisted of ten cars pushed by a locomotive, which also drew a caboose after it. Three of the cars were loaded with stone. The rest were empty. The train came from the east. The accompanying diagram shows the scene of the injury.

— Hon. George W. Dunn, Judge. The deed made and' signed by Gittings as sheriff', but acknowledged by Long, is a nullity. Held: used and enjoyed said property under the titles aforesaid, and under no othér title; and plaintiff' never did attack said titles till the 28th day of February, 1878, and only by his replication to defendant’s answer.

<p>Appeal from Mississippi Circuit Court. — Hon. L>. L. Hawkins, Judge.</p>

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

— Hon. E. L. Edwards, Judge. The petition did not state facts sufficient to constitute a cause of action. It was nowhere alleged that defendant owned or,in any manner controlled the turn-table, or that it had any right or authority to control it. A mere allegation that defendant used and operated said turn-table is not sufficient.

<p>Error to Oregon Circuit Court. — Hon. J. R. ■ Woodside, Judge.</p>

.Appeal from Laelede Circuit Court. — Hon. R. W. Fyan, J udge. This was an action upon the statute to recover double damages for the killing of certain hogs belongingto plaintiff.

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

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

— Hon. Andrew Ellison, Judge. This was a suit against Harlan as indorser of a negotiable promissory note. The note was made in April, 1871, by Wm. T. Porter, payable one day after date to the ordef of Harlan. Porter died in June, 1871. In August, 1871, plaintiff received the note from defendant in part payment for a stock of goods, defendant indorsing it with knowl1 edge of Porter’s death.

<p>1. Married Woman Signing a Mote, Without Separate Estate: burden op proof. The signature of a married woman to a note already issued, adds nothing to the note, does not change the legal liability of the parties already boiind, and, therefore, does not constitute an alteration, of which one of them, may take advantage when the signature has been obtained without his consent — unless the married woman has a separate estate ; and the burden of proving that she has such separate estate rests upon the person asserting that the signature constitutes an alteration.</p> <p>Ü. Consideration, what is a Sufficient: surety : release by extension of time. A consideration may be good in law though it be. of no value to the party to whom it moves. If it be a damage or 'inconvenience to the other party, that will be sufficient. Thus, where the holder of a promissory note agreed with the maker to extend the time of payment provided he would get A. (a married woman) to sign the note; Held, that the procurement of A.’s signature (though for want of a separate estate it was of no legal effect), was a sufficient consideration for the extension, and that a surety, without whose consent the signature had been obtained, was thereby discharged.</p>

<p>Appeal from Linn Court of Common Pleas. — Hon. Thomas Whitaker, Judge.</p>

'Appeal from. Buchanan Circuit Court. — IIon. Jos. P. Grubb, Judge. Beattie and Weakley, during their ownership of the judgment, invoked the aid of the sheriff in its collection by putting an execution in his hands; but this was immediately recalled as soon as the judgment became the property of Buck.