Volume 77 — Missouri Reports

Louis Court of Appeals. 1. The duty of the commissioners, under the charter (art. 6, § 2), was to ascertain the actual value of the land taken, the damages done to the property, and for the payment of such values and damages to assess against the city the general benefits, and the balance against the owners of all property which should be specially benefited by the proposed improvement.

— Hon. Noah M. Givan, Judge. 1. The deed conveying the Sharp-Emery farm should have been held fraudulent, voluntary and void, 1st, Because no trust was created in Ridings at the time the land came to him, and any subsequent act of the parties could only be founded upon a new consideration, of which there was no allegation or proof. 1 Perry on Trusts, § 133; White v. Carpenter, 2 Paige 217; Rogers v. Murray, 3 Paige 390. 2nd, Granting that at the inception of the estate in…

— IIon. Noah M. G-ivan, Judge. This was a proceeding by garnishment against Laffoon,, who was summoned as debtor of Daniel Hibler, the defendant in the principal case. On the 19th day of July, 1878, Laffoon answered, and on the 23rd day of July, 1879, judgment was rendered against him upon his answer. On the following day a motion for new trial was filed, and subsequently sustained.

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

— Hon. E. J. Broaddus, Judge. Oil the 9th day of December, 1869, Michael L. McGuire, being then free from debt and contemplating marriage, took out a policy of insurance on his life, payable in twenty years, or sooner if he should sooner die, to himself, his executors, administrators or assigns. On the 20th day of February, 1870, he married and immediately thereafter delivered the policy to his wife, to be her exclusive property as she alleged.

Louis Court of Appeals¿ This action was brought by Westlake & Button, a corporation, to recover of the city of St. Louis the sum of $1,756.49, the aggregate of overcharges made by the city, as the plaintiff alleged, on water licenses issued to plaintiff.

<p> Appeal from Dade Circuit Court. </p>

<p>Appeal from Johnson Circuit Court. — Hon. W. S. Shirk, Judge.</p>

Louis Court of Appeals. January 13th, 1868, George Pomeroy filed his petition in the circuit court of St. Louis county stating that in 1858 he and the respondent Benton formed a partnership to conduct a wholesale drygoods business in the name of Pomeroy & Benton. They were to share equally the losses and profits.

Louis Court of Appeals. The construction of the ordinance put upon it by respondent makes it violate section 20 of the bill of rights, which forbids private property from being taken for private use, with or without consent of the owner; also, section 80, which forbids the taking of private property for public use without due process of law. Donovan v. Mayor, etc., 29 Miss. 247; Fisher v. McGirr, 1 Gray 1,14.

Louis Court of Appeals. This was an action of ejectment brought by Mrs. Virg__ia Christy Dean and her husband, to recover an undivided interest in United States survey 1,927. Mrs. Dean claimed by inheritance from Leon N. St. Cyr. Defendant claimed through a regular chain of conveyances from Tlyacynth St. Cyr, father of Leon. He also relied on the statute of limitations, he and his grantors having been in possession continuously since 1826.

— Hon. M. G. McGregor, Judge.' The prosecuting witness, who was defendant’s stepdaughter, testified that defendant had had connection with her twice, the first time when she was between thirteen and fourteen years of age, the second time a year later; and that on the first occasion she resisted but defendant forced her.

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

'Louis Court of Appeals; Defendant was prosecuted for selling oleaginous substances known as “ oleomargarine” or “ suine,” in violation of tbe act of March 24th, 1881.

<p>Criminal Law: instructions. An instruction over-stated the maximum fine and omitted to state the minimum term of imprisonment for defendant’s offense. The punishment assessed by the jury was within the limit prescribed by law both as to fine and imprisonment. Held, nevertheless, that for the error in the instruction the judgment of conviction must be reversed.</p>

— Hon. J. E. Byland, Judge. 1. By section 8 of. the act of 1881, apothecaries registered as provided by the act “ have the right to keep and sell, under such restrictions as are herein provided, all medicines * * of .recognized medical utility.” Whisky is admitted to be such a medicine. The act is a special grant to sell, not upon such terms as were prescribed by other statutes,- but on such as are prescribed by this act.

<p>1. Vendor’s Lien: waiver by taking other security. When a. mortgage or deed of trust is taken on the land conveyed for a part of the unpaid purchase money, the vendor’s lien for the remainder of such unpaid purchase money is thereby waived, unless it is ex.pressly stated in such mortgage or deed of trust that the lien is not waived.</p> <p>2. Promise of Third Person to pay Debt of Another. The simple acceptance, by suit or otherwise, by a third person of a promise made to pay a debt due such third person from another, will not operate to release such other person from liability to such third person on account of such debt. To extinguish the obligation of the original debtor, it must appear that the subsequent obligation was accepted in lieu of his; otherwise the second obligation will be regarded only as collateral and additional to the first.</p>

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

— Trial before Hon. A. Comingo, sitting as Special Judge. The plaintiff in an action, for trespass must have had the actual or constructive possession of the premises at the time of the injury complained of. 1 Addison on Torts? (Wood’s Ed.) § 442, pp. 446, 447, note 2 ; Moak’s Under-hill on Torts, 868, 869, 370 ; Gardner v. Heart, 1 Comst. 528; Cochran v. Whitesides, 34 Mo. 417; Brown v. Carter, 52 Mo. 46; More v. Perry, 61 Mo. 174.

<p>1. [Railroads: duty of respondent to run trains to savannah. Under the charter of the Missouri Yalley Railroad Company and its successor, the Kansas City, St. Joseph & Council Bluffs Railroad Company, and the acts amendatory thereof, the latter company is bound to maintain railroad connection between the cities of St. Joseph and Savannah and to run a train of cars daily between those points; but it is not bound to make Savannah a point on its main track or to run all its trains to the old depot at that place. In maintaining a switch from this depot to the depot on the new line located and established under and by authority of the amendatory act of 1871, and running a train of cars daily over this switch to the old depot, the company sufficiently complies with the law.</p> <p>2. Mandamus. Cases may arise where the applicant for relief has an undoubted legal right for which mandamus is the proper remedy, but where the court may, in the exercise of a wise judicial discretion, still refuse the relief.</p> <p>3. -. The peremptory writ of mandamus must conform strictly to the alternative writ. Overruling School District No. 1 v. Board of Education of Lamar, 73 Mo. 627, and O. V. & S. K. R. R. Co. v. Morgan Co. Ct., 53 Mo. 157.</p>

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

<p>Error to Dunklin Circuit Court. — Trial before C. L. Keaton, Esq., Sitting as Special Judge.</p>

Habeas Corpus. The order of the 18th of December setting aside the judgment regularly made on the 22nd of September previous, at another and different term, was void and of no effect after the term had elapsed at which final judgment was taken; the court possessed no further control or jurisdiction over the case; and the entire proceeding at the November term was coram non judice. Danforth v. Lowe, 58 Mo. 217.

— Hon. A. J. Seat, Judge. This is a proceeding instituted in the probate court of Gasconade county by Eredericka Hasenritter, widow of Chas. W. Hasenritter, by motion, against R. H. Hasenritter, executor of the last wrill of Chas. ~W., to require him to pay her the sum of $400 in lieu, of her dower in his personal estate, and a compensation in lieu of one year’s provisions.

— Hon. Noah M. Gtvan,, Judge. When any person in last sickness with a view to death, delivers any personal property to another, who accepts the same, with instructions that at or - after his death it shall be delivered to a third person, or be divided between third persons, in a specific proportion, it isa good gift mortis causa; and if the donor dies of that sickness without having revoked the gift, the donee is a trustee of the property for the uses indicated by the donor.

Louis Court of Appeals. 1. The object of an administrator’s bond is to protect those who are entitled to a share in the estate, either as creditors or distributees, from the wrongful or negligent acts of the principal. There can be no recovery on such bond unless the plaintiff can show an interest in the estate. Holmes v. Cock, 2 Barb. Ch. 429 ; Brandt on Suretyship, p. 640, § 502; Dawson v. Piper, 34 Me. 98; Williams on Executors, 536, note 1.

<p>1. Record of Deed: seal of officer. Where a record of a deed shows a scroll affixed to a notary’s certificate of acknowledgment, it will be admissible in evidence, though there is no recital either in the body of the certificate or in the testimonium clause thereof that the certificate is given under seal.</p> <p>2. Corporation Deed: form of signature : seal : acknowledgment. The granting clause of a deed, the record of which was offered in evidence, was as follows: “ Know all men by these presents, that, the W. K. Land Company, by S. H., President, and T. S. C., Secretary, * * has granted,” etc. The attestation clause and. signatures were as follows: “In witness whereof, we hereunto subscribe our names and affix our seals.” (Signed) “ S. H., President, (Scroll); T. ¡3.. C., Secretary, (Scroll); W. K. Land Company, (Scroll).” The certificate of acknowledgment stated that S. H., President, and T. S. C., Secretary,- “ acknowledged that they executed and delivered the same as their voluntary act and deed.” Held, that the deed was the deed of the corporation. The form of signature did not make it the individual deed of S. H. and T. S. 0.; and qne of the seals appearing on the record would be presumed to be the seal of the corporation.</p> <p>Hough, C. J., and Henry, J., dissented on the ground that the deed was not sealed with the common seal of the corporation and was not acknowledged to be the act of the corporation.</p> <p>3. Taxes: assessment as evidence of ownership. Where a statute provided that the tax-book should be received as evidence of all the facts stated therein, Held, that in a suit against II., grantee of J., to enforce the lien of certain taxes, the assessment of the property to J. would be evidence of the ownership of H.</p> <p>4. Practice: evidence. This court will not consider an objection to evidence not made at the trial.</p> <p>5. Taxes: action to recover : proper defendant : judgment against the land. In a proceeding by the City of Kansas, under its charter, to enforce against land a lien for taxes due thereon, all persons having an interest in the land at the commencement of the suit should be made defendants. If any one be made defendant, who has no interest, he must disclaim by answer. But whether he do so or not a judgment for the city would be an error of which he could not complain, since it would be against the land and not against him personally.</p> <p>>6. -: Kansas city. Under the charter of Kansas City of 1875, the city has a lien on land for interest accrued on delinquent taxes as well as for the taxes themselves.</p>

<p> Quo Warranto. </p>

<p>Indictments must be Signed. Under the present statute, (B. S. 1879, § 1798,) an indictment not signed by the prosecuting attorney, is a nullity.</p>

Louis Court of Appeals. The bond is void in so far as it attempts to authorize the plaintiff to bring this suit, because, by the terms of the act of 1833, plaintiff could only contract for the building of the school house and payment therefor. It was not in privity with sub-contractors or laborers; their payment or non-payment did not nor could not affect the plaintiff.

Louis Court of Appeals. - As against an innocent purchaser a tax is not a lien until after it is levied, and it is shown by the record in this case that said defendant acquired the property on February 6th, 1872, and that said taxes were not levied by the county court of St. Charles county until long, after said date. Heine v. Levee Commrs., 19 Wall. 659 ; Cooley on Tax., (1 Ed.) 305 ; Hilliard on Tax., 463, § 63; Ream v. Stone, 102 111. 359.

<p>Judgment for defendant affirmed for want of evidence to sustain the allegations of the plaintiff’s petition.</p>

<p>Error to Cole Circuit Court. — IIon. George W. Miller, Judge.</p>

<p>•1. Pleading Negligence. In an action founded upon negligence, it is not necessary for the plaintiff, in his petition, to set out the facts constituting the negligence. An allegation specifying the act, the doing of which caused the injury; and averring generally that "it was negligently and carelessly done, will suffice.</p> <p>2. -: practice. A general charge that the defendant “ negligently killed” plaintiff’s horse, if not objected to before trial, will be sufficient to let in proof of any act whatever on the part of the defendant which caused the killing or contributed thereto.</p>

<p>1. The Judgment below is manifestly right on the undisputed facts as they appear in evidence.</p> <p>2. Instructions. Although some one out of a number of instructions given may be faulty, yet where the conclusion reached by the jury is manifestly right and a different result could not have been reached without injustice, the verdict ought not, on this account, to be disturbed.</p> <p>3. ---. To determine whether a judgment should be reversed for error in an instruction, it should be read in connection with the other instructions given in the case.</p> <p>4. --. A judgment will not be reversed for error in an instruction given by the court of its own motion, when one given at the instance of appellant contains the same error.</p> <p>5. Principal and Surety. A surety cannot recover of his principal if he pays the debt with knowledge of facts which would discharge himself or his principal, or if, to shield himself against liability in another direction, he procures the surrender to himself of the obligation of his principal.</p> <p>6. Estoppel. There can be no defense on the ground of estoppel where the defendant has neither acted nor altered his situation on account of what was said by the other party, nor unless the estoppel was pleaded.</p> <p>7; Ratification must be pleaded.</p>

<p>1. Dogs. Under the statute, (R. S. 1879, § 6434,) it is lawful for any person to kill a dog which has killed or maimed a sheep or other domestic animal; it is not necessary that the dog should be upon the premises of the owner of such animal, nor in the act of killing, nor that he should have killed more than one such animal, nor that the owner of the dog should have had notice of the killing.</p> <p>2. Depositions. Under the statute, (R. S. 1879, 2 2157,1 to authorize the reading of the deposition of a witness residing in the county, it is not enough, to show that he has gone to a greater distance than forty miles from the place of trial, but it must also be shown that such absence is without the consent, connivance or collusion of the party offering his testimony.</p>

John T. Redd, Judge. The words in the return alleged to be false are immaterial. Even fraud without damage gives no right of action. No property was levied on or lien lost. Amendments in furtherance of justice are favored and relate back to the original return or matter amended. The court making the amendment had jurisdiction and the necessary parties before it, and if the words objected to in the return had any force, the amendment removed the obnoxious part.

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

<p>1. Bill of Exceptions. This court will not disregard a hill of exceptions as having been filed after the term, unless that fact appears affirmatively by the record.</p> <p>2. Inland Bill of Exchange: consideration: pleading. An instrument in this form: “ Building committee will pay G. W. T. the sum of $126.25 and charge to (signed) N. and L.,” is an inland bill of exchange, and as such, under the law merchant, imports a consideration without the words “value received.'’ In declaring upon such an instrument no consideration need be alleged.</p> <p>3. Bill of Exchange: acceptance : pleading. In an action against the drawer of a bill of exchange payable on demand, the petition alleged a conditional acceptance the effect of which was to postpone payment, but failed to allege that the drawer had had timely notice of the nature of the acceptance and had consented to it, or that the drawee had not kept the terms of his acceptance, or to make averments showing that as between the drawer and drawee the former had no right to draw the bill. The reply, however, did allege that after non-payment of the bill the drawer, with knowledge of the acceptance and non-payment, agreed to pay. Held, that for want of some one of the averments so omitted from the petition it should have been held bad on demurrer to the evidence; Held also, that the defect was not cured by the reply.</p>

<p>Practice, Criminal: newly discovered evidence. A judgment of conviction will be reversed where the trial court refuses to grant a new trial asked on the ground of newly discovered evidence which is relevant and important, and which could not have been discovered until after the trial.</p>

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

<p>Judgment, as res adjudicata. A stranger to a judgment cannot avail himself thereof by a plea of res adjudicata, nor as evidence upon the trial, in a suit between him and one of the parties thereto. Compare St, Louis Mut. L. Ins. Co. v. Cravens, 69 Mo. 72.</p> <p>Case adjudged. In an action to recover various sums as for money loaned by plaintiff to defendant, the answer alleged the loan of a larger amount by defendant to plaintiff, and that the moneys claimed by plaintiff were in fact payments by him upon the loan, leaving a balance still due and unpaid to the defendant, and that such had been found to be the fact in a suit brought by a third party against the plaintiff and his wife to compel plaintiff to pay such loan, for which the third party had become liable by note to defendant at plaintiff’s request and upon his agreement to pay the same, and that in this suit it had been adjudged that plaintiff should pay to defendant such unpaid balance. Held, that defendant, being a. stranger to the proceedings in which said judgment was given, could not use it either as a bar or as evidence upon the trial in such action.</p>

<p>1. Practice: pleading : evidence. A party will not be permitted on tbe trial to give evidence contradicting his pleadings; nor can be state one ground of defense and recover on a different one.</p> <p>2. Evidence: practice in supreme court. If illegal testimony be admitted, tbe effect of wbicb cannot be determined, tbe judgment must be reversed and tbe cause remanded for a new trial.</p> <p>3. Garnishment: pleading. A garnishee in bis answer to interrogatories, must state facts and not conclusions of law.</p> <p>4. --: contingent liability of garnishee. Where the answer of tbe garnishee shows that there is a contingency in wbicb be may have funds of the debtor in bis bands, it is error to discharge him before tbe contingency has been determined.</p>

<p>Parol evidence: its admissibility. In an action for money paid to the use of defendant, it appeared that plaintiff had been obliged to pay a note made by one B. and indorsed by plaintiff at B.’s request. Defendant’s name did not appear upon the note ; but parol evidence was admitted to show that in obtaining plaintiff’s indorsement B. was acting as defendant’s agent. Held, that there was no error in admitting this evidence.</p>

<p>Appeal from, Johnson Criminal Court. — Hon. J. E. Ryland, Judge.</p>

<p>1. Partition: parties. In a suit in the nature of an equitable partition between beneficiaries under a will providing that they should account for, and their respective shares in. the estate should be diminished by, the amount of their notes, or the notes of their husbands, held by the testator; Held, that the husbands were proper parties to the suit, for the purpose of ascertaining the extent of their indebtedness and determining the distributive interests of the' beneficiaries.</p> <p>2. Practice in Supreme Court: witnesses. The exclusion of a witness, upon a specific objection as to his competency, will not be considered by the Supreme Court, unless an exception be saved to 'the ruling of the trial court, and its attention be called to the matter in the motion for a new trial.</p> <p>S. Joint Debtors, Release of. Under the statute, (Gen. St. 1865, p. 398, \ 9,) a creditor might release one joint debtor without impairing his right to demand and collect the remaining indebtedness from the other debtor. Held, also, in the case at bar, that no intention to release had been shown.</p>

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

<p>1 Amendment. There is no substantial difference between the original and amended petitions in this case.</p> <p>2. Evidence : sworn statements in another suit. The sworn answers of a garnishee to interrogatories, are admissible in evidence against him in a suit by a stranger to the garnishment proceedings.</p> <p>8. Instructions are properly refused when there is no evidence on which to base them.</p> <p>4. Bailment: deposit with bank nor third party : rights op the latter. If bankers receive money from a customer on an express promise to pay it to a third party, the latter may maintain an action for it if not paid; and it will be no defense that the money was deposited in the customer’s name with his consent, or that he at the time promised to make a further deposit to cover his own indebtedness to the bank and failed to do so. •</p> <p>5. Instructions. The court again signifies its disapproval of the practice of asking numerous>and voluminous instructions.</p>

Louis Court of Appeals. No punishment for a common law offense can be imposed which is for life or indefinite or unlimited. Cooley’s Const. Lim., (3 Ed.) p. 328; Lone v. People, 5 Park. 364; State v. Lanforth, 3 Conn. 115; Oakley v. Aspinwall, 3 Comst. 568. The statute allows the pleading of conclusions of law, and is a special law applying only to a certain class of defendants and not uniformly to all. Wiggins v. Graham,, 51 Mo. 17; Pier v. Leinrichoffen, 52 Mo. 333.

— Hon. G-. Porter, Judge. If all tbe materials are furnished under one contract, or one request, one indivisible lien will be created, but wben under several contracts or requests, each separate contract becomes a separate lien. It was a question of fact, to be submitted under proper instructions, whether there was only one contract or whether each load was a separate contract.

<p>1. Railroad Track in Public Street: liability of company for damages. Where a municipality, being authorized by its charter, confers upon a railroad company the right to lay its track in a street, the right is to lay it on the grade of the street. If embankments are raised by the company to lay the track upon, above the grade, the company will be liable to property hoMers in damages for obstructing the access to their property.</p> <p>3. -: ■-: pleading. The petition in an action to recover such damages need not allege that the erection of the embankment was unnecessary.,</p>

<p>1. Death of one Party to a Contract: competency op another as a witness. Where one of two parties j ointly bound by a contract is dead, the adverse party is not thereby disqualified as a witness in an action upon the contract between himself and the survivor.</p> <p>2. -: --. In an action by the payee against a surety in a note, the surety pleaded and at the trial testified to facts constituting an estoppel against the plaintiff, with which, however, the principal had no connection. The principal was dead. Held, that this fact did not disqualify the plaintiff from testifying in his own behalf.</p> <p>3. Instructions. Where instructions are given which fairly present all the issues to the jury, and correctly declare the law, it is not error to refuse other instructions on the same subject.</p> <p>4. -. An instruction which is inconsistent with the defense made or submits a defense not made by the answer, is properly refused.</p>

— Hon. S. A. Richardson, Judge. Plaintiffs in error did all they could to acquire and retain a lien on the goods. By their superior diligence, they found and got them before Bailey, Wood & Co. They could not have sued in justice’s court, and thereby got-their writ in the hands of the constable that first took goods in his possession by virtue of writs first issued by justice.

<p>Appeal from Howell Circuit Court. — Hon. J. R. "Woodside, Judge.</p>

— Hon. John C. Anderson, Judge. Conceding that the code has no application to suits before justices of the peace, and that no affirmative relief can be sought in defenses of the character here set up, this case must still be reversed, for no affirmative relief was asked.

<p>Appeal from Linn Circuit Court. — Hon. G. X). Burgess Judge.</p>

<p>2Ttme pro tune Judgments: validity as against strangers; sureties in appeal bond. In order that a nuno pro tuno entry of judgment may bind a person who is not a party thereto (such as a surety in a supersedeas bond given on appeal from the j udgment as first entered), it must appear that he had notice of the judgment really rendered at the time his rights were acquired or his liability fixed thereunder, or that He had notice of the application to have the nuno pro tuno entry made and an opportunity to appeal therefrom.</p>

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

— ITon. W. T. Wood, Judge. Under the statute a failure to fence its road does not create an absolute liability against a railroad company. It is only where such failure to fence has occasioned or caused the damage. This fact is jurisdictional. It must be alleged in the complaint, and there must be some evidence tending to prove it. Gurry v. R’y Co., 48 Wis. 665; Lawrence v. R’y Co., 42 Wis. 322.

<p>Appeal from Cape Girardeau Circuit Court. — Hon. W. H. Bennett, Judge.</p>

<p>Equity Pleading: musts. In a suit to enforce a trust attaching to real estate, the petition alleged that defendants’ ancestor had purchased the land at a sale under a deed of trust executed by plaintiff under an agreement that the ancestor should rent the land, receive the rents, and after re-imbursing himself for his outlays, re-conve'y to plaintiff; and that the rents, together with certain payments made by plaintiff, had more than made good all the outlays; and the petition prayed for a decree for the land and for any excess of rents. The court, besides decreeing the title to plaintiff, took an account of the outlays of defendants’ ancestor and of the payments made by plaintiff, and the rents received by defendants, and gave judgment in plaintiff’s favor for the excess of the latter. Held, that this decree was within the scope of the pleadings.</p>

— Hon. Geo. W. Miller, ' Judge. When the demand accrues after the granting of letters, the statute commences to run from the time the demand accrues. Miller v. Woodward, 8 Mo. 169; Finney v. State, 9 Mo. 227 ; Chambers v. Smith, 23 Mo. 174; Burton v. Rutherford, 49. Mo. 255 ; Greenabaum v. Elliott, 60 Mo. 25. Now, by what rule is it to be classified ? Is it to be barred from the fifth class because it was not exhibited within one year from the grant of letters ?

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

<p>Error to Schuyler Circuit Court. — Hon. Andrew Ellison, Judge.</p> <p>cited Munday r. Clements, 58 Mo. 577; Norton v. Foster, 12 Kas. 49 ; New-berry v. Trowbridge, 13 Mich. 263.</p>

<p>1. Equity: cancellation of conveyance fob fraud. Where the evidence showed that the parties to a conveyance of land were brothers, that the grantor was a cripple, diseased in body, and of weak mind, and under the control of the grantee by whom his fears of a breach of promise suit and loss of property were operated upon, for which there was no foundation in fact; that there was no consideration paid and none to be paid, and that the conveyance was induced by the fears of the grantor and the promise of the grantee to re-convey the land ; Held, sufficient to warrant a decree setting aside and cancelling the conveyance.</p> <p>2. -: practice, civil: dismissal of'one of the counts in a petition. Where the first count in a petition seeks the cancellation of a deed on the ground of fraud and undue influence, and the second count, a settlement of a partnership in personal property, the plaintiff may properly be allowed to dismiss the latter, since it states a separate cause of action.</p>

<p>1. Married WOman’s Deed. A deed executed by a married woman without her liusbaud, is void.</p> <p>2. Landlord and Tenant: remainders. A lease for years by one who is tenant in fee as to one undivided half and tenant for life as to the other undivided half of the premises, is valid as against the remainderman entitled to the latter half during the life of the lessor.</p> <p>3. Adverse Possession: remainders. The possession of a life tenant cannot be adverse to the remainderman.</p> <p>4. -. Though a deed be void, possession taken and held under it will be adverse as against the grantor and those claiming under him.</p> <p>5. Limitations: coverture. The statute of limitations does not run against a married woman during coverture, if she was under coverture when her cause of action accrued.</p> <p>6. Ejectment: parties: danddord and tenant: damages. Tenants actually in possession, and not their landlord, are the necessary parties defendant to an action of ejectment. Under the statute, though, the landlord may, on his own motion, be joined as a defendant.</p> <p>Where tenants occupy separate parcels of land under a common landlord, they should be sued separately. If, however, they are sued jointly and there is judgment against them, the error will be • immaterial, if the judgment is for possession with nominal damages only; otherwise, if substantial damages are awarded.</p> <p>In such case also tnere can be no recovery of substantial damages against a landlord joined as co-defendant with his tenants.</p>

<p>Master and Servant: railroad : negligence. In an action against a railroad company to recover for the death of a locomotive engineer killed while on duty, through the negligence of the train dispatcher, the plaintiff failed to show that the train dispatcher and the engineer were not fellow servants. Held, that for this omission the plaintiff was properly non-suited.</p>

<p> Appeal from St. Louis Court of Appeals. </p> <p>cited Smith v. Bryan, 34 Ga. 61; Umbarger v. Watts, 25 Gratt. 167; Hancock v-JR. JR. Co., 3 Gratt. 328 ; Hutchinson v. Kellam, 3 Mnnf. 202; Skipwith v. Young, 5 Munf. 276; Hatch v. Allen, 27 Mo. 85.</p>

<p>Error to Cass Circuit Court. — Hon. Noah M. Givan,, Judge.</p>

<p>1. Scire Facias: mode of service. A scire facias, when issued to revive the lien of a judgment, should be served in the same manner as an ordinary summons.</p> <p>2. --: appearance waives defects. By appearing and pleading to a writ of scire facias, the defendant waives defects in service.</p> <p>3. -: jeofails. A scire facias, though informal, will be good after judgment upon it, if it contains enough to show what judgment is intended to be revived.</p>

<p>Appeal from Lafayette Circuit Court.' — Hon. ¥m. T. Wood, Judge.</p>

<p>1. Dedication to Public Use. Land marked “ Public Square ’’ on a plat duly executed and acknowledged bytbe proprietor, is thereby dedicated to public use.</p> <p>2. -. The facts in this case, Held, sufficient to justify a finding that a dedication had been made to public use.</p> <p>3. -: adverse possession. In the absence of a dedication, possession and user of land by the public under claim of right for a period short of the statutory period of limitation, will not vest title in the public.</p> <p>4. Ejectment. It is manifest error to give judgment for the plaintiff for the whole of the premises in controversy, when his own evidence shows that a part of the title is vested in others.</p>

<p>Deed, of Trust: power of sale : sheriff acting as trustee: death of grantor : recital. A deed of trust given to secure a note provided, among other things, (1) That in case of the absence, death, etc., of the trustee, the sheriff of the county should execute the power of sale conferred upon the trustee; (2) That any statement by “ the said trustee ” in the deed to be executed by him. in pursuance of a sale, as to the non-payment of the note, the advertisement, sale, etc., should be prima facie evidence of the fact. Held, (1) That the death of the grantor did not revoke the power of the sheriff to sell; (2) That when the contingency arose in which the sheriff was authorized to act, he became pro hac vice the trustee, and proper recitals in a deed executed by him were to be received as prima facie evidence.</p>

<p>Appeal from Hannibal Court of Common Fleas. — Hon. John T. Redd, Judge.</p>

<p>1. Pleading : petition, sufficiency afteb verdict. If the facts requisite to constitute a cause of action are necessarily inferable from the petition taken in its entirety, though informal in its parts, it is good after verdict.</p> <p>2. -: estoppel : recital in bond. A recital in a bond is a solemn admission by the obligor of the truth of the fact recited, and when, in an action against him, the bond is pleaded in haec verba, the effect is the same as if there was a formal plea of estoppel.</p> <p>3. -: answer, new matter. An answer averring conclusions of law from facts already stated in the petition, does not set up new matter, and does not require a reply.</p> <p>4. -: -: waiver. Although the answer sets up new matter and the plaintiff fails to reply, yet if the case is tried as if the new matter was in issue, this court will treat it as if a reply had been filed.</p> <p>5. Gruardian’s Bond: law of sister state. A bond given in a probate court of this State, in conformity with a law of another state, • by a guardian in this State of a ward resident here, in order to obtain possession of property of his ward located in the other state, is a valid bond, and an action may be maintained on it for property received in virtue of it.</p> <p>b. -:-. The validity of such a bond is not affected by the fact that it contains a condition not required by the law of this State.</p> <p>7. -: -. Such a bond is not essentially collateral or auxiliary to the ordinary guardian’s bond; the ward may resort to either, certainly to the former when the makers of the latter are insolvent so that resort thereto would be unavailing.</p> <p>A -: meaning of “account for.” A condition in such a bond to “account for” the money received in the other state is not satisfied by the guardian charging himself therewith in his settlements, nor by anything short of payment.</p>

<p>Judgments, as bes adjudicata. A party to an action who suffers judgment to go against him, cannot in a subsequent proceeding, either in equity or at law, cause such judgment to be reviewed by an allegation of the same facts which were adjudged insufficient, when set out in his answer, as a defense to the former action.</p>

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

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

— Hon. E. J. Broaddus, k Judge. Action commenced before a justice of the .peace on the following account: “ 1879, John McMonagle Ur. to S. W. Allen, To nine head of sheep, $25.” In the justice’s court there was no other statement of plaintiff’s cause of action.

<p>1. Railroads : lien for materials : service of notice. A party seeking to enforce a lien against a railroad for materials furnished in its construction, in the absence of all the officers of the company caused a notice of his claim to he served on a person who had desk-room in the office of the company, hut no connection with its affairs. Held, that this was not service upon the company, and did not, therefore, fulfill the requirements of section 3202, which makes the service of such notice upon the company an essential prerequisite to a lien.</p>

<p>1. St. Louis : “ common schools.” The Board of President and Directors of the St. Louis Public Schools has control over its school funds unaccompanied by any conditions as to the kind of schools which it shall maintain, or the character and nature of the studies which it shall prescribe or allow.</p> <p>In the legislation of this State, the phrase, “ common schools,” means schools open and public to all, rather than schools of any definite grade, and the term “ school,” by and of itself, does not imply a restriction to the rudiments of an education.</p> <p>2. 'Public Schools : limitation as to age of pupils. The first section of article 10 of the Constitution of 1875, requires instruction to be given gratuitously to all persons in the State between the ages of six and twenty years. The sixth section declares that the public school fund “shall be faithfully appropriated for establishing and - maintaining the free public schools '* * in this article provided for, and for no other uses or purposes whatever.” Held, that the two sections, construed together, require free public schools for all persons between the ages of six and twenty years, but prohibit gratuitous instruction from the public school fund to children under the age of six years.</p>

<p>1. Warranty of Chattels: obvious defect. Though a defect be obvious a vendor may warrant against it; especially where the nature and extent of the disorder is lurking, and may reasonably be supposed to he more within the knowledge of the vendor than the vendee. Thus, where the subject of a sale was a yoke of oxen, one of which had a sore on his neck, and the vendor gave the assurance that “ that don’t hurt him; it is almost well,” and the vendee took them on this assurance, without seeing them; Held, that this amounted to a warranty.</p> <p>2. -: breach • of WARRANTY. Where there is a breach of warranty, the vendee may return the property and rescind the contract within a reasonable time, or he may retain it and when sued for the purchase money plead a total or partial failure of consideration.</p> <p>3. -:-: 'recoupment. Notwithstanding a breach of warranty, if the property is not returned the vendor may maintain an action for the purchase money, but the vendee will be entitled to recoup the amount of the diminution in value.</p> <p>4. -:--: burden of proof. In an action on a contract of sale with warranty to recover the purchase money, the burden is not on the vendor to show fulfillment of the warranty, but on the vendee to show a breach if he alleges it.</p> <p>5. ---: --: fraud. To make out a breach of warranty, it is not necessary to show that the representations of the warrantor were fraudulent or that they actually deceived and misled the warrantee.</p> <p>6. Expert Testimony. Whether or not a sore on the neck of an ox renders him unfit for beef, is a proper question for expert testimony.</p> <p>7. Warranty. Where a vendor of oxen warranted them fit for either beef or work, unfitness for either, is a breach of the warranty, whether the vendee designed to use them for that purpose or not.</p>

<p>Appeal from Howell Circuit Court. — Hon. J. R. Woodside, • Judge.</p>

<p>Appeal from Vernon Circuit Court. — Hon. J. I). Parkinson, Judge.</p>

— Hon. W. E. Geiger, Judge. “Where plaintiff' in an action of covenant of seizin has had the use of the premises, and ceased to be accountable for the use, the rule of damages is the purchase money without interest. Flint v. Steadman, 36 Vt. 210; Collier v. Gamble, 10 Mo. 468 ; Dickson v. Desire, 23 Mo. 163; Prescott v. Trueman, 4 Mass. 627’; Wyman v. Ballard, 12 Mass. 304; Staats v. Ten By eh, 3 Cai. 111.

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

Louis Court of Appeals. This was an action of ejectment, commenced December 14th, 1875. The onster was alleged in the petition to-have occurred May 2nd, 1872. The answer was the statutory general denial.

<p>Appeal from Washington Circuit Court. — Hon. L. F. Dinning, Judge.</p>

— Hon. S. H. Woodson, Judge. The release was as follows : “ Know all men by these presents, that I, Charles Thompson, in consideration of the sum of $250 to me in hand paid by the Union Elevator Company, do hereby release and forever discharge the said elevator company, its successors and assigns, of and from all actions, causes of action, controversies, claims, damages and demands whatsoever for or by reason of an injury received by me by falling from the scaffolding in the…

— Hon. J. H. Parkinson, Judge. This was a suit by Henry J. Snider to recover damages for failure to deliver money alleged to have been placed in the care of the express company for transportation.

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

— Hon. Andrew Ellison, Judge. The judgment of foreclosure established the validity of the mortgage sued on, and to that extent was binding upon the defendants. Butterfield's Appeal, 78 Pa. St. 197; Lee v. Kingsbury, 13 Texas 70 ; Clark v. Boyreau, 14 Cal. 634.

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

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

<p>1. Dedication by acts in [pais: evidence. In a case where, without judicial proceeding, or compensation, or solemn form of conveyance, it is sought to establish in pais a divestiture of the citizen’s landed property in favor of the public, the proof ought to be so cogent, persuasive and full as to leave no reasonable doubt of the existence of the owner’s intent and consent; and the conduct and acts relied on to establish the intent should be inconsistent and irreconcilable with any construction except such consent; nor must there be declarations and acts by the owner inconsistent with the dedication.</p> <p>Tested by these rules, the evidence in this case fails to show a dedication.</p> <p>2. Practice. Even where there is some evidence which might justify the trial court in submitting the case to the jury, yet if the whole evidence taken together is such that if it had been submitted and the jury had found a verdict for plaintiff, it would have been the duty of the trial court to order a new trial, this court will not reverse for a refusal so to submit.</p> <p>3. Dedication: acceptance. To constitute a dedication of property to public use there must be an acceptance by the public. This may be evidenced by user for a long period, or by its official recognition by the constituted authorities. The user should be such as to indicate that the enjoyment by the public is exclusive and not subordinate or incidental to the convenience of the owner.</p> <p>4. Estoppel. It is not always essential to the creation of an estoppel that the person should be a party to the record. One who instigates and promotes litigation for his own benefit by employing counsel or binding himself for the costs and damages, will be bound by the litigation or procedure as much as the party to the record.</p> <p>Thus, where a city, at the request of certain citizens, instituted legal proceedings to condemn land for a street, the citizens agreeing to pay all damages that might be assessed, and afterward the city declined to pay the damages that were assessed, and in lieu thereof passed an ordinance declaring that the land sought to be condemned “ be abandoned by the city.” Held, that the citizens who instigated the proceedings were concluded from asserting a prior dedication of the same land for public use as a street.</p>

<p>1. Felonious Assault to Kill. The indictment in this case charging a felonious assault with intent to kill, punishable under section 29, page 449, Wagner’s Statutes; Held, to be good under that section.</p> <p>2. -. A person indicted under section 29, page 449, Wagner’s Statutes, for a felonious assault with intent to kill, could not be convicted and punished under section 32, page 449, Wagner’s Statutes. It was not until the Revised Statutes 1879, (section 1655,) that upon an indictment for a felonious assault, the defendant could be convicted of a lower offense.</p>

— Hon. L. F. Dinning, Judge. Indictment for. selling intoxicating liquor to a minor without the consent of his parent. Held bad upon demurrer. The State appealed.

<p>Giving away Liquor on Sunday. The giving away of intoxicating-liquor on Sunday, by a dramshop keeper, is not an indictable of. fense. The only penalty prescribed by law is forfeiture of his license and prohibition against obtaining another license for a term, of two years. Wag. Stat., p. 653, ?22; E. S. 1879, § 5456.</p>

Louis Court of Appeals. This was a suit against Jacob S. Merrill, the Bank of St. Louis, and the Metropolitan Bank of St. Louis, to compel them to bring certain bonds of the county of Dallas into court to be cancelled. The petition was as follows: 1.

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

— Hon. H. S., Kelley, J udge. This was a proceeding for assignment of dower to appellant, her right to which was denied solely upon the ground that a sale by the guardian of her husband under a special- act of the legislature, approved Eebruary 24th, 1855, entitled “An act for the relief of John R. 'Williams, of Andrew,” extinguished her right of dower..

<p>1. Back Taxes: collector’s certificate, as evidence. Upon the trial of an action for the recovery of back taxes, a tax-bill certified, to by the relator, as collector, was given in evidence, without objection. Held, that the judgment in his favor would not be set aside on the ground that there was no evidence that relator was the collector. Sherwood, J., dissenting.</p> <p>2. Motion for New Trial: evidence: instructions. This court will not inquire into the action of the trial court in excluding evidence or refusing instructions, unless complaint be made of such action in the motion for new trial.</p>

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

— Hon. Andrew Ellison, Judge. Tracy, Jr., had authority to continue the business, and bind the estate of the deceased. Pitkin v. Pitkin, 7 Conn. 307; Burwellv.Mandeville, 2How. 560; Edwards v. Thomas, 66 Mo. 468; Alexander v. Lewis, 47 Texas 481; Story Part., §§ 195, 196, 201. Judgment should have been rendered against the administrator, leviable out of the partnership estate. Asbury v. McIntosh, 20 Mo. 279. The authority to continue must be express.

Louis■ Court of Appeals. The adult heirs could do no act to assert or protect the title to their interest in the land, without giving the minor the benefit. In fact it may be said there was a duty imposed on them to do what was necessary to protect the common interest. Tisdale v. Tisdale, 2 Sneed 599; Van . Horne v. Fonda, 5 Johns. Ch. 407; Weaver v. Wille, 25 Pa. St. 272; Lloyd v. Lynch, 28 Pa. St. 423; Bothwell v. Dewees, ■ 2 Black 618.

— Hon. Andrew Ellison, Judge. If the money deposited in the Savings Bank, is the money of ^he State, there can be no question that plaintiff shoúld recover in this action, and is entitled to payment in full before all other creditors of said bank. Acts 1881, 35; R. S. 1879, § 184; 1 Kent 262; R. S. U. S., §§ 3466,5101; Bayne, v. U. S., 93 TJ. S. 642 ; Beaston v. Bank, 12 Pet. 134; U. 8. v. Fisher, 2 Cr. 358.

<p>1. Deed: certificate of acknowledgment. A certificate of acknowledgment of a deed, which shows that the acknowledgment was made by the grantor, but omits to name him, is not void for the omission.</p> <p>2. Swamp Lands, Conveyance of. Even if it he true that under the laws in relation to swamp lands, as they stood in 1860, the Governor and not the county commissioner, was the proper officer to execute deeds to such lands, yet when the commissioner executed a deed, if the county received the purchase money, the equitable title vested in the purchaser, and the curative act of 1868, (Acts 1868, p. 67,) passed the legal title to him.</p> <p>S. Estoppel, as betw.een Grantor and Grantee. The rule is well established that the grantee is not estopped to-deny the grantor’s title, but this rule is not applicable to a case in which the only title asserted by the grantee is the precise title he has acquired from the grantor, nor to a case in which both parties claim from a common source and the title is identical in that source.</p> <p>A county having received the purchase money for a tract of swamp land, caused a deed to be made to the purchaser by the county commissioner. On the same day the county made a loan of school funds, taking as security a mortgage on the land. Subsequently the county caused the mortgage to he foreclosed. The defendant in this case derived title through this foreclosure. Held, that, as against the heirs of the original purchaser, the defendant was estopped to deny the validity of the commissioner’s deed.</p> <p>4. Administrator’s Deed. In pursuance of an order of the probate court made February 10th, 1861, an administrator, in April, 1861, sold real estate, and immediately executed and delivered a conveyance,, and made out a report of sale; but the report was never presented to the court until July, Í862, at which time an order was made approving the sale as of the April term, 1861, and on the same day the administrator’s letters were revoked. Held, that while the proceedings were irregular, the irregularity was not such as to invalidate the deed.</p> <p>5. Sheriff’s Sale. A sale by the sheriff under a school mortgage made in vacation of the circuit court, is void, both in direct and collateral proceedings.</p> <p>6. Adverse Possession. Notwithstanding the paper title of opposing parties may be derived from a common grantor, either may assert against the other an independent title by possession.</p> <p>7. Mortgages. A sale under defective foreclosure proceedings, although it may not carry the legal title to the land, will operate as a transfer of the equitable title to the mortgage.</p>

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

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

— Hon. G-. Porter, Judge. The petition in this ease alleged, substantially, that one Hepler made two deeds of trust conveying certain lands to defendant, Wilson, to secure the payment of certain notes; that subsequently Hepler made a general warranty deed conveying to plaintiff, for the sum of $200, sixteen acres of the lands conveyed by his said deeds of trust; that thereafter Hepler and defendant, Barnes, made their joint deed of trust conveying the lands of Hepler already…

<p>1. Fraudulent Conveyances. A sale made -with, tlie intent either to hinder or to delay creditors, is fraudulent; it is not necessary that the intent be to hinder and delay.</p> <p>2. -: insolvency. Neither insolvency of the vendor, nor knowledge thereof by the purchaser, is a necessary ingredient in a fraudulent sale.</p> <p>3. -: vendee’s lack or caution : willful ignorance. Mere want of caution in dealing with a fraudulent vendor will not implicate the vendee in the fraud. But if he knows enough of the purposes of the vendor to put a prudent man on inquiry, it will be his duty to make reasonable inquiry, and if he fails of this, he will be charged with notice of the fraud.</p> <p>4. -. Upon the sale of a stock of goods to be paid for in land, the purchaser, at the instance of the vendor, conveyed the land to the minor children of the latter. Held, that this did not, of itself, invalidate the sale of the goods; but if the vendor was insolvent the land might be subjected to the payment of his debts.</p>

— Hon. T. H. B. Laurence, Judge. This was a suit for attorney’s fees.

JSJrrór to Chariton Circuit Court. — Hon. G. D. Burqess, Judge. This was an action to recover for the board, etc., of Mrs. Blue, a patient at the State Lunatic Asylum at Fulton.

<p>1. Fraudulent Conveyances. A preference among creditors will not be held invalid for fraud on the part of the debtor alone. It must appear that the preferred creditor participated in the fraud.</p> <p>2. -: instructions as to bona fiues. The bona fides of a transfer of personalty being in issue in this case, the court instructed the jury that in determining the question they should “ consider all the facts and circumstances detailed in evidence.” Held, that this was proper and sufficient, and the party alleging fraud was not entitled, under the conditions of this case, to instructions specifying in detail what facts or groups of facts were badges of fraud.</p> <p>3. -: mortgage. A debtor conveyed land to a trustee for the benefit of one of his creditors. Afterward the creditor consented •that the land should be exchanged for a portable saw mill, on condition that the title to the mill should be vested in him, but the defendant should have possession of it, operate it and out of its earnings pay the creditor’s demand. There was no agreement as to who should own the mill after the debt should be paid. The exchange was effected, a bill of sale for the mill taken in the name of the'creditor, and the mill placed in possession of the debtor. Held, that the transaction did not amount to a mortgage of the mill, so as to require the bill of sale to be recorded, in order to be valid against other creditors of the debtor tinder section 8, page 281, Wagner’s Statutes. Neither could it be regarded as a gift or sale by the debtor within the meaning of section 4, page 280, or section 10, page 281, Wagner’s Statutes.</p> <p>4. Resulting Trusts. The evidence essential to the creation of a resulting trust, must show the contract clearly and unequivocally, so as to leave no room for reasonable doubt.</p> <p>Such a trust will arise in favor of a third party when he furnishes the purchase money and the party in whom the title is placed is a mere volunteer.</p> <p>5. Fraudulent Conveyances. Only subsequent creditors can question the validity of a claim to personalty in the possession of a debtor by a third person, on the ground that the evidence of the latter’s title is not recorded.</p>

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

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

<p>Appeal from Buchanan Circuit Court. — IIon. J. P. Grubb, Judge.</p> <p>No actual change of domicile or inhabitancy. Hart v. Horn, 4 Ras. 282; Hairston v. Hairston, 27 Miss. 721; Maddox v. State, 32 Ind. Ill; Hindman’s Appeal, 85 Pa. St. 466. Conduct of business in Kansas City did not constitute a removal. Roberts’ Will, 8 Paige 446; Walker v. Walker, 1 Mo. App. 404; Re. Fitzgerald, 2 Caines 318; Crawford v. Wilson, 4 Barb. 504. Going out of state, county or town for a purpose and not talcing úp a permanent residence elsewhere, no removal. Sackett’s case, 1 Mass. 58; Abington v. Boston, 4 Mass. 312 ; Walker’s case, 4 Mass. 556; Granby v. Amherst, 7 Mass. 1; Lincoln v. Hapgood, 11 Mass. 350; Chariton Co. v. Moberly, 59 Mo. 238 ; Johnson v. Smith, 43 Mo. 501; Bartlett v. New York, 5 Sandf. 44; Carey’s Appeal, 75 Pa. St. 201.</p>