Volume 78 — Missouri Reports

Mrror to Livingston Circuit Court. — Hon. E. J. Broaddus, Judge. Tbe notice of presentment and protest was sufficient. It was not necessary that tlie notice sh.ou.ld be in writing. Story on Bills of Exchange, (3 Ed.) p. 367, § 300 ; 2 Daniel Negotiable Inst., (2 Ed.) p. 30, § 972 ; Glasgow v. Pratte, 8 Mo. 336; Linvillev. Welch, 29 Mo. 203.

JError to Gasconade Circuit Court. — Hon. A. J. Seay, Judge. This was a suit by attachment upon an account for services rendered by the plaintiff, as attorney at law, and expenditures made by him in connection with such services.

<p>1. Wills: proof of execution. The evidence offered in support of a paper propounded as a will showed that it was written in a language not understood by the supposed testatrix; that the witnesses attested not at her request, but at the request of one of the legatees; and that she neither said nor did anything, nor was anything said ■ or done in her presence, which indicated that she knew she was making a will. Held, that the execution of the paper as a will was not proven.</p> <p>2. -: -: witnesses. A legatee whose interest as such in the establishment of a will still continues, will not be allowed to testify to its due execution, notwithstanding he may not have signed as an attesting witness. The statute only disqualifies him in express terms in the case in which he has so signed, but it would defeat the manifest policy of the statute to allow him to testify when he has not so signed.</p>

<p>1. Receiver: his liability foe touts. An action may be maintained against the receiver of a corporation for a tort committed by the corporation before his appointment. The judgment, if for the plaintiff, will be against him in his capacity as receiver, and is leviable out of the assets in his hands.</p> <p>2. Railroads: benefits to be allowed on assessment of damages foe bight of way. The benefits for which a railroad company are entitled to be allowed in estimating the damages sustained by a land owner by reason of the appropriation of his land for the road, are such as the land derives from the location of the road through it, and are not enjoyed by other lands in the same neighborhood.</p> <p>3. -: condemnation of eight of way : mistake. In an. action against a railroad company for unlawfully occupying the plaintiff’s land, proof that the land was omitted by mistake from the report of the commissioners in a proceeding to condemn a right of way across this and other lands, and that the road was built over the land in controversy with the knowledge and approbation of plaintiff, is not equivalent to proof that the land was included in the condemnation.</p> <p>4. Estoppel. Whether or not a party is estopped by laches and acquiescence, is a question for the triers of the fact.</p> <p>5. Statute of Limitations. This action was brought May 16th, 1877,. to recover damages for a trespass which the evidence showed was completed in the year 1872, but at what time of the year did not appear. Held, that in the face of a finding by the trial court that the action was not barred by the five-year limitation act, this court would not presume that the trespass was completed prior to May 16th, 1872.</p> <p>6. Accord and. Satisfaction. On tbe trial of an action against a railroad company for unlawfully occupying plaintiff’s land, the plaintiff testified that before the company entered upon the land it gave plaintiff an agreement in’writing to settle for it, but this agreement was not admitted or pleaded by the defendant as a defense, nor was it produced or offered to be produced at the trial. Held, that for the purpose of basing upon it a defense of accord and satisfaction, it was not before the court.</p>

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

<p>Weight of Evidence. Where the evidence upon all the issues made by the pleadings is conflicting, and there is no such preponderance against the finding of the jury, as to warrant the conclusion that it was the result of either passion or prejudice, the Supreme Court will not interfere.</p>

<p>■Contract for City Work : need not be in whiting : pabol evidence. An ordinance of the city provided that no one should have power to create any liability on account of the Board of Bark Commissioners except with the express authority of the board. By resolution of the board, a committee consisting of the president and two ■other persons were authorized to contract for certain work, “and to report.” In an action on a written contract for the work signed by the president alone for the board; Held, that there being no law or ordinance requiring the contract to be in writing, parol evidence was admissible to show that the other members of the committee assented to the making df the contract. Held also, that as it did not appear that the contract was to be reported for approval or rejection by the board, failure of the committee to report it did not affect the rights of the contractor.</p>

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

— Hon. Gr. D. Burgess, Judge. Notice of unfitness of an employe may be shown either by evidence tending to prove actual knowledge on the part of the employer of incompetency; or it may be shown that such unfitness was so general and patent, that not to take notice of it would be in itself evidence that the employer, if ignorant thereof, had not exercised due diligence in keeping himself advised as to the competency of his servant; but there was no such evidence in this case.

<p>1. Descents and Distributions : gkand-nephews. Under the statute of Descents and Distributions, (E. S. 1879, § 2161,) the children of the deceased nephews and nieces of an intestate, are not cut off from sharing in his estate.</p> <p>2. -: -. Under the statute of Descents and Distributions, (R. S. 1879, § 2165,) where nephews and nieces of an intestate inherit from him, together with his grand-nephews and grand-nieces, and there are none nearer of kin, the former will take in their own right, per capita, and the latter by representation, or per stirpes.</p>

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

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

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

<p>Manslaughter in the Fourth Degree. Under the statute, (E. S. 1879, § 1250,) the shooting of a human being unintentionally, but through negligence in handling a fire-arm such as to indicate carelessness or recklessness incompatible with a proper regard for human life, is manslaughter in the fourth degree.</p>

<p>Appeal from Pike Circuit Court* — IIon. G-. Porter, Judge.</p>

<p>1. Husband and Wife: dedication to public use. The dedication to public use of the wife’s land by the husband will not be effectual, even as to his curtesy, unless she join in the conveyance and ac. knowledge the same in the manner provided by law.</p> <p>2. -: -: estoppel in pais. Where the husband alone files a plat of his wife’s land, their joint conveyances thereafter of lots designated on such plat will create no estoppel in pais against her, in favor of the public, to assert title to land designated on the plat as a street.</p>

<p>1. Dedication to Public Use. The plat in evidence in this case examined and Held to amount to a dedication of certain parcels of land to public use.</p> <p>% ‘Ifjectment: foe public street. A city invested by law with the title in fee and the right and control over all public streets, may maintain ejectment for land dedicated for a street.</p>

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

<p>Special Tax Bill: suit against record owner: sale passes title op true owner. Where the statute under which a special tax bill was issued required the suit for its enforcement to be brought against “the owner ” of the land to be charged; Held, that in the absence of any knowledge or notice to the contrary, the holder of' the bill had the rightto assume that the person in whom the records showed the title to be vested, was the true owner, and to sue accordingly; and that a sale under execution upon a judgment against the record, owner passed the title as against the grantee in an unrecorded deed from him, provided the purchaser had no notice of the unrecorded deed.</p>

Louis Court of Appeals. Section 2 of the special act of 1875, referred to in the opinion, provides: “All constables now in office in the county of St. Louis, shall hold their respective offices until the general election to be holden in the year 1878, and until their successors are duly elected and. qualified.” Section 8 of article 14 of the constitution of 1875, provides: “Nor shall the term of any office be extended for a longer period than that for which such officer was…

<p>1. Administration: liability or delinquent administrator. Where no final settlement has ever been made, an administrator de bonis non may maintain an action against a former administrator, who has failed to comply with an order of distribution, to recover the amount due the distributees.</p> <p>2. Instructions. In the absence of evidence in the record showing that counsel were surprised, this court will not consider declarations of law offered after the announcement of the decision of the trial court.</p>

<p>Appeal from Johnson Criminal Court. — Hon. Vk. H. H. Hill, Judge.</p>

<p>Appeal from Greene Circuit Court. — Hon. ~W. F. Geiger,, J udge.</p>

<p>Appeal from Morgan Circuit Court. — IIon. E. L. Edwards, Judge.</p>

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

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

<p>1. IT on-trading Partnerships: power oe members to execute notes. Ordinarily, partners in a non-trading firm have no implied power to bind each other by commercial paper executed in the name of the firm. To make such paper binding, it must be shown either that the making of it was consented to in advance or subsequently ratified by the other partners, or else that from the constitution and particular purposes of the firm the power is necessary or usually exercised.</p> <p>This rule applied to a firm engaged in the insurance, real estate and collecting business.</p> <p>Hickman v. Kunkle, 27 Mo. 401, overruled.</p> <p>Per Henry, J. One member of a co-partnership, not a trading or mercantile co-partnership, may bind the firm by a note executed in the name of the firm, for articles or labor necessary in the business of the firm. Prima facie sucha notéis not binding on the firm. In order to enforce it against them the holder must show that the consideration was articles or labor necessary in the business of the firm or that it was executed with the consent of the other members.</p> <p>2. --: LIABILITY OF FIRM FOR NOTES MADE BY A MEMBER. A note given in the name of a firm but not for a debt or by authority of the firm, will never be enforced against the firm at the instance of a person receiving it under circumstances calculated to provoke inquiry as to the authority of the partner executing it to bind his co-partners.</p> <p>3. Per Hough, C. J. The note sued on in this case is not binding upon the other members of the firm (a non-trading firm) because executed in direct violation of the articles of co-partnership.</p>

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

<p>Absence of Governor: eight of lieutenant-governor to act. Temporary absence of the Governor from the State, in the discharge of duties imposed upon him by law, does not of itself authorize the Lieutenant-Governor to assume the functions and receive the salary of the Governor’s office during his absence. See People v. Parker, 3 Neb. 409; s. c., 19 Am. Rep. 634.</p>

<p>1. Constitutional Law: local laws changing the rules on evidence: special tax bill. The prohibition in the constitution against the general assembly passing any special or local law “changing the rules of evidence in any judicial proceeding,” relates only to proceedings pending when the change is made. A city charter which makes special tax bills prima fade evidence of liability is not in conflict with this section, -so far as respects bills issued after the enactment of the charter.</p> <p>2. -: local assessments : due process. Local assessments for sewers and other public improvements may be made without violating the constitutional provision that no person shall be deprived of life, liberty or property without due process of law.</p> <p>3. Sewer Ordinances in St. Louis. There is nothing in section 22,. article 6 of the charter of the city of St. Louis which makes it necessary that a sewer district shall be established by ordinance before the Board of Public Improvements can recommend or the Municipal Assembly can pass an ordinance for the construction of a sewer in such district. Hence, where the board recommended the passage of an ordinance for the construction of a sewer while the ordinance for the establishment of the district it was intended to drain was pending, and the two ordinances were passed and approved on the same day; Held, that the former ordinance was valid.</p> <p>4. -. Nor does said section make it the duty of the Board of Public Improvements in recommending the construction of a sewer to state specifically the reason for the recommendation. A declaration that it is made “ in accordance with the provisions of the charter,” is sufficient.</p> <p>5. -: district sewers. The requirement of said section that' every district sewer shall connect with a public sewer or some natural course of drainage, is sufficiently complied with if connection is made with another district sewer already constructed, of sufficient capacity and itself connecting with a public sewer.</p> <p>6. Municipal Corporations: power to im:pose penalties : special tax bill, Municipal corporations have power to prescribe reasonable penalties for neglect or refusal to discharge any duty imposed upon a citizen by ordinance. On this principle a charter provision is held valid which allows the holder of a special tax bill fifteen per cent per annum if payment be not made within six months after demand.</p> <p>7. Appeals from St.'Louis Court of Appeals. In a case in which an appeal lies from the St. Louis court of appeals only because constitutional questions are involved, this court will consider those questions only.</p>

— Hon. Geo. W. Dunn, Judge. . The plaintiff, Mary Eobinson, testified that she was thirty-five years of age, that she resided with her father in Cameron, Clinton county, Missouri, and had resided with her father at that place for eight years; that her father’s residence was on the opposite side of the street from defendant’s residence; that she had known defendant and his family during the time she had resided with her father; witness and her father’s family had been…

<p>St. Louis County: taxes: sheriff as ex-officio collector. ' The sheriff of St. Louis county is in virtue of his office required to collect the revenue, hut, when he does so, he does not act as sheriff. In a suit brought by him in his capacity of collector, and to his use as such, it was held that the process was properly served by him, as sheriff, and that, under an execution issued upon the judgment in his favor as collector, he properly sold the land and made the deed as sheriff; that, as sheriff, he was not a party to the suit for taxes, and that, as collector, his interest therein was not such as to disqualify him from acting in his capacity as sheriff.</p>

<p>1, Fraud.: joint action for relief. Where parties haying distinct interests have been made the victims of a fraud, the fact that the fraud was contrived against them all and the same means were used to deceive them all, will not entitle them to maintain a joint action for relief, unless it was through a joint transaction that the fraud was accomplished.</p> <p>2. -: remedy, at law and not in equity. The petition in this case examined and held to state a case for relief by an action at law for deceit, and not in equity.</p>

<p>Error to Livingston Circuit Court. — ITon. E. J. Broaddus, Judge.</p>

<p>Appeal from Matte Circuit Court. — IIon. Silas Woodson, Special Judge.</p>

<p>Appeal from St. Louis Court of Appeals. — Reported in 9 Mo. App. 219.</p>

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

<p>Error to St. Louis Court of Appeals. — Reported in 6 Mo. App. 328.</p>

<p>1. Practice: special judge: waives. An objection made for the first time in the appellate court that the attorney, agreed upon by the parties to act as judge in the trial of the cause, did not before doing so take the requisite oath, will be disregarded.</p> <p>2. An Equitable Defense to a Common Law Action will not have the effect of changing such action into a suit in equity.</p> <p>3. A Bill of Exceptions may be signed and filed as well after as before the allowance of the appeal, following State v. Dodson, 72 Mo. 283, and overruling Slate v. Musich, 7 Mo. App. 597.</p> <p>4. A Bill of Exceptions, presented and filed in vacation, requires the consent of both parties and the concurrence of the court expressed on the record; a mere stipulation between the parties will not answer.</p> <p>5. The Filing of a Bill of Exceptions, if in term time, must be proven by the record, if in vacation, by the indorsement thereon of the filing of such bill by the clerk.</p>

<p>Schools : misconduct of teacher : remedy against him. Under the present law the board of directors of a public school district have no power to discharge a teacher for cruel treatment and profane and abusive language used toward pupils. The law gives the county-school commissioner power to revoke his certificate for “ incompetency or immorality proven,” and when this is done he is disqualified from further teaching in the public schools of that county. Such treatment and language used toward pupils fall within the definition of “ incompetency or immorality;” and the remedy is through action by the commissioner. Hough, C. J., and Henry. J., dissented.</p>

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

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

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

<p>1. Non-survival of Action for Personal Injuries. An action for injuries to the person does not survive as against the executor of the wrong-doer.</p> <p>2. Inn-keepers: action for injury to guest. The obligation resting upon an inn-keeper to keep his guest safe, is one imposed by law and not growing out of contract, and for violation of it the action is an action on the case for the injury sustained, and not an action for breach of contract.</p>

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

<p>1. Deadly Weapons: pleading, criminal. Where an indictment charges that accused shot at another with a gun or pistol loaded with powder and leaden balls, or stabbed him with a knife or dagger, it is not necessary that it shall allege that the weapon was a deadly weapon. Such instruments are recognized by the statute as deadly. It is only when other instruments are used that it is nec" essary to allege their deadly character.</p> <p>2. Assault to Kill: evidence. Upon a trial for assault to kill, evidence of all the circumstances connected directly with the assault, showing its character, is competent.</p> <p>S. -:--. power to make arrests. Upon a trial for assault to kill, it appeared that the person assaulted at the time had another under arrest. Held, that it was wholly immaterial whether he was an officer authorized to make arrests or not.</p> <p>4. Prosecuting Attorney’s Remarks. Certain remarks of the prosecuting attorney complained of as being unsupported by the evidence; Held, not open to this objection.</p> <p>5. Right of Accused to be Present in Court. The accused has the right to he present when his motion for new trial is heard. To refuse his counsel’s request to have him brought into court for that purpose, is error requiring reversal of a judgment of conviction. Sherwood and Norton, JJ., dissented.</p>

<p>1. Temporary Judge: change of venue: in civil cases. Under the act of 1877 in relation to temporary judges (Acts 1877, p. 217; E. S. 1879,22 U06 to 1113,) if an affidavit of prejudice was filed against the regular j udge in a civil case, and the parties failed to agree upon ■ a substitute, the j udge might either order an election of a temporary judge for the trial of the case by the members of the bar present, as provided by that act, or grant a change of venue to another cir, cuit, as provided by Wagner’s Statutes, page 1355, sections 1, 2, 3, 4.</p> <p>2. -. The above act of 1877 authorizing election of temporary judges in civil cases was constitutional.</p> <p>3. .-. If a temporary judge elected under that act was disqualified by prejudice, the act provided for holding another election. There was no right to a change of venue.</p> <p>4. Counter-claim. Nothing can be pleaded as a statutory counter* claim that does not constitute a demand against the plaintiff.</p> <p>§. Negotiable Paper: transfer after maturity: counter-claim: offset. ms State, when a negotiable note is indorsed or transferred aiter maturity, the right of offset or counter-claim on an independent contract does not follow it in the hands of the assignee. We adhere to the English rule that only such equities follow it as arise out of or inhere in it, and that the assignee .takes it divested of all rights and claims arising out of independent transactions. See Cutler v. Cook, 77 Mo. 388.</p> <p>6. Equity Jurisdiction of Cross-demands: general rules: insolvency : non-residence. The jurisdiction of equity to afford relief in behalf Of a cross-demand in a proper case, is of ancient .origin. It existed prior to any statute of set-off; and still exists independent of any such statutes. But courts of equity are often enabled by them, on the well-known principle of following the law, to afford more efficient relief and in a greater variety of cases than before the statute.</p> <p>The relief given depended upon the circumstances of each case, sometimes there would be a decree that the demand of the defendant be applied to the payment and discharge of the demand sued on ; sometimes a decree restraining the plaintiff from prosecuting his demand till the defendant had established or failed to establish his cross-demand in a court of law. The moving principle was not so much the inconvenience and circuity of two actions, as the injustice of compelling the defendant to pay the demand against him and take the chances of insolvency of the plaintiff or the plaintiff’s ■ assignor. In cases where it was ascertained that the plaintiff was only a nominal owner or assignee without value, the court would decree an offset; but in all such cases there had to be some fact, such as insolvency or non-residence, showing imminent danger of the defendant being compelled to pay without receiving credit for his cross-demand.</p> <p>7. --: unliquidated oross-demands. Whether this j urisdiction may be exercised in favor of cross-demands at law arising ex contractu, or of equitable cross-demands, such as the right to a prospective balance in an unsettled partnership, is discussed but not decided. But in no case will it be exercised in favor of an unliquidated cross-demand ex delicto in its nature. Compare Reppy v. Reppy, 46 Mo. 571.</p> <p>8. Statutory Counter-claim: “action arising on contract.” In . determining what may be considered as “ an action arising on contract,” within the meaning of the second subdivision of section 3522, Revised Statutes 1879, a rather liberal construction has been employed by the courts. All independent express contracts, whether liquidated or unliquidated, are the subject of counter-claim under this subdivision, as a matter of course; and it has been held that in all that class of cases in which a tort has been suffered and the law permits the sufferer to waive the tort and sue upon an implied contract, if he indicates in his plea that he is proceeding on the implied assumpsit, his action will be sustained under this subdivision as an action arising on contract.</p> <p>9. Case Adjudged. The cross-demand asserted in the present case' being one for fraud and deceit practiced in making and executing a contract of sale, rather than for breach of the contract; Held, that it could not be entertained, the plaintiff’s action being upon a promissory note having no connection with the contract of sale.</p> <p>10. Practice: exceptions. Where the bill of exceptions shows that the appellant declined further to appear or participate in the trial, this court cannot consider objections which purport to have been subsequently taken at the trial.</p> <p>11. Promissory Motes: damages in lieu oe protest charges. The damages allowed by statute in lieu of charges for protest, etc., are to be computed on the principal sum specified in the note, not on the principal and interest.</p>

— Hon. G. H. Btjrckhartt, Judge. On belialf of tbe State, it was testified that defendant, having both hands in his sack-coat pockets, stepped out of a drug store and walked rapidly toward the deceased, who was walking very slowly, holding a tobacco stick in his left hand and his right in his pantaloons pocket. When they reached each other and had stopped, deceased was leaning on the tobacco stick and had his right hand in his pantaloons pocket.

<p>Appeal from Shelby Circuit Court. — Hon. John T. Eedd, Judge.</p>

<p>1. Malicious Prosecution: damages. In an action for malicious prosecution, the jury, if they find for the plaintiff, may, but they are not bound to allow him counsel fees paid in defending against the prosecution.</p> <p>2. This Court will not reverse a judgment because the jury appear to have disregarded evidence. They may have discredited it.</p> <p>8. leading Questions. It is no error for the trial court to rule out a question which suggests the answer desired, or calls for the opinion of the witness where the jury should form one themselves from the facts.</p> <p>4. Malicious Prosecution: evidence oe character. In an action for malicious prosecution, evidence of the general bad reputation of the plaintiff is admissible, in mitigation of damages, if not to aid in making out the defense of probable cause.</p>

Mandamus. This was ail original proceeding in this court to -compel the respondent, who was collector of the revenue in the city of St. Louis, to issue to the relator a license to keep a dramshop in said city. An ordinance of the city enacted in 1881, had imposed a license fee of $60.

<p>1. Arson: indictment. An indictment for an attempt to commit arson may properly combine in one count what the defendant did, himself, and that which he solicited another to do in making the same attempt.</p> <p>2. -: -. An indictment for an attempt to commit arson is not bad because it alleges that the defendant is the owner of the house; arson being defined by statute to be the burning of any dwelling house in which there is at the time some human being.</p> <p>3. Jurors : haying an opinion. A juror said before the trial, that, if defendant was guilty, he ought to be sent up for a year or so. Held, not to be an expression of opinion as to defendant’s guilt, and standing alone, no ground of challenge for cause: but the attending circumstances, the tone and spirit in which it was said, etc., might make it ground.</p> <p>4,' Verdict: oath op oestcer in charge oe jury. Although the sheriff was not sworn to keep the jury in some private room and to hold none but the authorized communications with them, as required by the statute, (R. S. 1879, § 1910,) until one and a half hours after their retirement; Held, that their verdict was not vitiated thereby, as it also appeared that they retired to “ the jury room,”- and that he was sworn before holding any communication with them and before their verdict was rendered, and that it could not have been affected by any outside influence occasioned by the failure to take the oath.</p> <p>6. Soliciting Another to Commit Crime. The soliciting of another to commit crime is an act toward its commission, although the person solicited does not yield to nor act upon the solicitation.</p> <p>6. , Attempt to Commit Crime: locus penitentiae. Defendant having made preparations for burning a building, left his supposed accomplice at the building, saying he would go and get some matches, but did not return, and an hour or so afterward was arrested; Held, that his failure to return was not proof that he had abandoned his purpose. Anywhere between the conception of the intent and the overt act toward its commission there is room for penitence, and the law in its beneficence extends the hand of forgiveness. But when the evil intent is supplemented by -the requisite act toward its commission, the offense is complete.</p> <p>7. Judicial Notice : coal-oil. It is not necessary to aver in an indictment nor to prove at the trial, that coal-oil is inflammable.</p> <p>8. -: evidence: admissions. An affidavit by defendant for a continuance in a criminal case is competent evidence against him of his admissions therein contained, but the State by using the same for such purpose does not concede the truth of the whole affidavit.</p>

<p>Appeal from Cole Circuit Court. — Hon. E. L. Edwards, Judge.</p>

John L. Thomas, Judge. Indictment of Edward Thomas, for the murder of Nicholas Joos. Held: I saw Joos and Thomas come into the saloon and drink together, but did not see how the difficulty commenced.. I was twenty steps off. I saw them clinch and roll down the hill together. At last Ed. got on top, and at the foot of the hill, took hold of Joos’ chin-whiskers and struck him two or three times with his boot.

<p>1 Statute of Frauds : verbal agreement : wholly executed on one side. By an instrument of writing C. leased of AY. a storehouse in the town of Trenton, for a term of three years, from November 2nd, 1874. In December, 1876, while C. wa^in possession of tlie premises it was verbally agreed between the parties that AY. should fit up the basement of the house for a carpet room, and that C. in consideration of this improvement, should pay AY. $100, and continue the lease of the store for two years after the expiration of the written lease. AY. made the improvement agreed upon and C. entered into the possession of the new room and paid the $100. Held, that the verbal agreement constituted a valid lease of the property for a period of two years from November 2nd, 1877: that it was not void under the Statute of Frauds, for want of a writing, because it was wholly executed by AV. in the completion of the improvement agreed upon. The fact that thefe remained on AY.’s part the duty to perftiit C. to enjoy the premises for the period of two years does not bring the agreement within the statute.</p> <p>2. -: -: to be executed vitiiin oxe year. A verbal agreement, made in December, 1S76, for a lease of property, during tlie month, of November, 1877, is to be executed within one year, and hence is not void under the Statute of Frauds.</p>

<p> Petition for Habeas Corpus. </p>

<p>1. Courts: judge a party to the record. Where the circuit court consists of two judges sitting separately, (as in Jackson county,) if both happen to be parties to the record of a cause, it is not error for the one before whom the cause comes in the ordinary course to refuse to send it to the other for trial.</p> <p>2. -. A judge who is a party to the record cannot sit in the case even by consent of parties. The statute which authorizes a judge ‘fcwho is interested in any suit ” to try it, if the parties consent, has no application to such a case. B. S., § 1041.</p> <p>3. Eminent Domain: public use. It sufficiently appears from the record ijj the present case that there was a judicial determination that the use for which defendant’s land was taken was really a public use.</p>

<p>Appeal from Cole Circuit Court. — Host. E. L. Edwards, Judge.</p>

— Trial before Jonas-J. Clark, Esq., sitting as Special Judge. On the 4th day of February, 1880, the grand jury of Livingston county returned an indictment against defendant, Charging him with the larceny of a mare, th'e property of one Edward A. Evans, on the 20th day of April, 1879. On the 28th day of September, 1881, defendant was tried And found guilty on this indictment, but on the 8th of the following October he was awarded a new trial.

— Host. R. P. Owen, Judge. Tliere was testimony that on the evening of the 4th day of November, 1880, the deceased with James and Henry Layton drove up to the drug store of P. G. Wilson in Bloomfield, where were assembled about eight or ten persons; that deceased and James Layton dismounted and went into the store, when deceased hollowed “ Hurrah for Garfield,” and some one hollowed “ Hurrah for Hancock;” that deceased then said “ I am a Garfield man, but I don’t want this…

<p>Statute of Frauds: incomplete memorandum op contract : parol evidence. A. memorandum offered in evidence was as follows:</p> <p>“ Messrs. Parlin & Orendorfp :</p> <p>Gentlemen : Please execute the following order for plows, cultp vators, * etc., to be delivered on hoard cars in Chilli' cothe, Missouri, marked for J. F. Lash</p> <p>quantity. old ground plows, iron-beam. price.</p> <p>2. No. 6. 14-inch cut, medium steel landside.................... $22 00</p> <p>3. No 7. Extra. 16-inch cut, medium steel landside, three-</p> <p>horse............................................................................ 22 00</p> <p>(and other items of plows in detail.)</p> <p>CULTIVATORS.</p> <p>50. Iron-beam, Parlin’s patent, with shields......................... 14 50</p> <p>19. Wood-beam, Parlin’s patent, with shields..................... 13 50</p> <p>For which I agree to give you- my notes payable with exchange, or by express, prepaid, at above list, for plows — less forty-five per cent, and payable all January 1st, 1879, with ten per cent interest. Cultivators, less net per cent, and payable January 1st, 1879, wdth ten per cent interest.</p> <p>Parlin & Oeendorff,</p> <p>Pet Taylor.”</p> <p>Held., that though not a complete and perfect contract, this was a sufficient memorandum of a contract between J- F. Lash and Parlin & OrendorfF, so as to be admissible in evidence in an action by the former against the latter; and that parol evidence was admissible to explain and apply it to the contract actually existing between the parties.</p> <p>When a written memorandum of a contract does not purport to be a complete expression of the entire contract or part of it only is reduced to writing, the matter thus omitted may be supplied by parol evidence.</p>

<p>Appeal from Johnson Circuit Court. — Hon. Noah M. Givan. Juclge.</p>

<p>1. Practice in the Supreme Court: equity. Even in equity cases, the Supreme Court deems the conclusions of the trial court upon issues of fact entitled to consideration where such court and a jury, with the witnesses before them, have successively reached the same conclusions.</p> <p>Case adjudged. In a suit to cancel a deed of trust as voluntary and fraudulent, questions were submitted to a jury whether the note secured by such deed of trust was voluntary or not, and whether it was given for money loaned or not, and the jury found for the defendants, and the court subsequently, upon the same and additional evidence, adopted the findings of the jury and dismissed the bill; there was positivé testimony that the payee in such note had money at the time, and made the loan: Held, that the judgment would not be reversed because of testimony of neighbors of the payee that they did not know he had money, and that his conduct, upon such supposition, was strange and unusual.</p>

<p>Specific Performance: statute of frauds. A promise to give land,” wh.eth.er written or verbal, will not be enforced upon the mere proof thereof; bnt where the promisee, induced by and relying upon such promise, has entered into possession and made improvements, has incurred obligations and expended money for and on account of such land, and has thereby changed his condition in life, equity will compel performance of the promise which, in such case, is regarded as no longer voluntary, but as founded on a' valuable consideration, and, although verbal, as not within the statute of frauds.</p>

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

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

— I-Ion. R. P. Owen, Judge. The instructions following were asked and given on behalf of the State : 1. If the jury believe from the evidence that, on or about the 11th day of March, 1880, at the county of Stoddard and State of.

<p>Appeal from Johnson Circuit Court. — IIon. Noai-i M. Givan, Judge.</p> <p>cited Elliott v. Persoll, 1 Peters 828; Pours v. Zachariah, 11 Cal. 281; Merritt v. Yates, 71 111. 636; Ellwood v. Klock, 13 Barb. 50; Watson v. Bailey, 1 Binn. 470; Jourdan v. Jourdan, 9 Berg. & Rawl. 268, 275; Ennor v. Thompson, 46 111.214; O’Eerrall v. Simplott, 4 Green (Iowa) 162; Stanton v. Button, 7 Conn. 527; Pendleton v. Button, 3 Conn. 406; Hayden v. Wescott, 11 Conn. 129; Mariner v. Saunders, 5 Gill. (111.) 113 ; Moore v. Tisdale, 5 B. Mon. (Ky.) 352; Woods v. Polhemus, 8 Ind. 60 ; Chauvin v. Wagner, 18 Mo. 531; Silliman v. Cummins, 13 Ohio 116; Martin v. Dwelz, 6 *Wend. 9; Carr v. Williams, 10 Oliio 305; Looney v. Adamson, 48 Tex. 619 ; Jackson v. Ingraham, 4 John. 163; Williams v. Soutter, 55 111. 130 ; Willis v. Qattman, 53 Miss. 721; Abbott’s Trial Ev., 174, § 15.</p>

<p>1. Fraud. Fraud may be inferred; but this does not mean that it may be assumed. It can only be legitimately inferred from some tangible, responsible fact in proof. It is a deduction which an intelligent mind may honestly make from the incidents and circumstances surrounding the case, and which appear to be inconsistent with good faith and rectitude on the part of the actor. If, however, his conduct and the transaction under consideration reasonably consist as well with integrity and fair dealing, the law rather refers the act to the better motive. I</p> <p>2. -; intervention of bona FIDE purchasbr. If a fraudulent grantee of the equity of redemption of land covered by a bona fide mortgage buy at the mortgage sale, he will acquire a title free of taint.</p> <p>3. -: -: notice. It is a general rule of equity that a purchaser with notice may protect himself by buying the title of a bona fide purchaser without notice.</p> <p>4. Vendor and Vendee; purchase of adverse title. A. vendee may buy up a title antagonistic to that of his vendor, and set it up to defeat that of his vendor or his vendor’s representatives.</p> <p>5. Case Adjudged. The principal purpose of this suit was to have one of the defendants declared a trustee for plaintiff of certain land lying beyond the limits of this State. The land was subject to a mortgage, the bona fides of which was not questioned. Before the trial, without any collusion on the part of this defendant and without any effort on the part of the plaintiff to prevent it, the mortgage was foreclosed, the mortgagee becoming the purchaser. This defendant then died and the suit was revived against her executor. Held, that plaintiff was not entitled to have him declared a trustee.</p> <p>6. Practice: judgment. In an action by a judgment creditor against the debtor and a third party to enforce a trust against the latter as a means of obtaining payment of the judgment, it is no error to refuse the plaintiff a new money judgment against the debtor.</p>

<p>Appeal from Knox Circuit Court. — Hon. John C. Anderson, Judge.</p>

<p>Reasonable Doubt: instructions. The court instructed the jury that before they convicted defendant they ought to be satisfied of his guilt beyond a reasonable doubt. Held, that it was not for the defendant to complain that the court failed to add that such doubt ought to be a substantial doubt touching his guilt and not a mere possibility of his innocence. If defendant desired this addition to the instruction he should have asked for it.</p>

<p>Appeal from Bates Circuit Court. — IIon. E. P. Wright, Judge.</p>

<p>Error to Cole Circuit Court. — Hon. E. L. Edwards, Judge.</p>

<p>1. Corporation: assignment for benefit of creditors. An assignment of all the assets of an insolvent corporation for the benefit of creditors, if made by the board of directors without the consent of the stockholders, is ultra vires and void, but only as against the stockholders. A creditor of the corporation cannot make the objection.</p> <p>2. -: -: certificate of acknowledgment. To an assignment for the benefit of creditors executed by a corporation was appended a notary’s certificate that M. C., president, and A. M., cashier, of the corporation, “acknowledged that they executed and delivered the same as their voluntary act and deed, for the uses and purposes therein contained.” Held, that this was a sufficient certificate that the corporation acknowledged the instrument. Hough, C. J., and Henry, J., dissented.</p> <p>3. Assignment: what it passes. A deed of assignment which makes no reference to a schedule of assets accompanying it, will not be limited in its operation to the assets embraced in the schedule, but will pass any which come within its terms.</p> <p>4. - — : liability op stockholders may be assigned. An insolvent corporation may include in an assignment for the benefit of its creditors the liability of its stockholders for unpaid stock for which no call lias been made.</p>

<p>Priorities between Partnership and Individual Creditors. A. creditor of one partner only, as to the separate property of such partner, has no priority over a partnership creditor, where there are no firm assets and the other partners are insolvent.</p>

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

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

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

<p>Breach, of Covenant against Incumbrances: damages. An inchoate right of dower existing at the date of a deed containing a covenant against incumbrances, and the demand of dower after it becomes consummate, will constitute a breach of such covenant: and the covenantee may by purchase thereafter extinguish the dowei and recover a reasonable price paid therefor as damages for such breach.</p>

<p>Deed of Trust on Personalty: void as against creditors. A deed of trust to secure a debt described the property as “ all and singular the farming implements and tools and live dairy cattle now on the grantor’s farm, together with all their increase or substitutes therefor during the lien of this deed, to the value at any time of $4,000,” and again as “ a constant and continuous stock of farming implements, tools and live dairy cattle and their increase, of a valuation of at least $4,000.” It also stipulated that the grantor should at all times keep on his farm property of the kind described, “worth on peremptory sale under the provisions hereof at least $4,000,” or, as stated in another place, “ at any time in value equal'to an appraisement of $4,000.” No method was provided for having an appraisement made, and it did not appear but what the implements, tools and cattle on the farm exceeded $4,000 in value. Held, that as against other creditors of the grantor the deed was void, (1) Because by the use of the word “substitutes” it impliedly gave the grantor authority to sell and dispose of the cattle in the ordinary course of business; (2) Because of indefinitenoss in the description o the property.</p>

<p>Error to Bates Circuit Court. — Hon. E. P. Wright, Judge.</p>

<p>Appeal from Linn Circuit Court.— Trial before Carlos Boardman, Esq., sitting as Special Judge.</p>

<p>Railroads: fences : killing stock : trespass of stock. Under section $00, Revised Statutes 1879, the obligation of a railroad company to fence its road, is not postponed until the completion of the road and the running of cars thereon for the carriage of freight and passengers for hire. Although one of the objects of the statute be the security of passengers and employes in transit, its primary object is to prevent the killing of stock and their trespasses upon adjoining fields: and when the necessity for such protection to the owners of land and stock begins, then the obligation to fence attaches; and the company will be liable for the damages caused by its failure to fence, after a reasonable time for the erection of fences has elapsed.</p> <p>2. -: -: -: -. The liability of a railroad company for failure to erect fences on the sides of its road under the statute, cannot be defeated by its contract with another person to erect such fences.</p>

<p>Appeal from Osage Circuit Court. — Hon. A. J. Seay, Judge,</p> <p>JEdwin Silver for appellant.</p> <p>L. C. Krauthojf for respondent.</p>

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

<p>1. Pleading : reply : estoppel. When the ease has been tried as if a reply was on file and the evidence has been closed, the fact that there is no reply will not be taken as an admission of the new matter in the answer.</p> <p>2. Partnership: note of individual, or firm : evidence. In an action on a note given in the name of a firm, one of the partners pleaded that the note was given by his co-partner for individual purposes and in' fraud of the firm, and in support of his plea gave evidence showing that this note was given in lieu of a former individual note of the co-partner. Against his objection the plaintiff was then allowed to show the real consideration of this latter note. Held, no error.</p> <p>3. -: -. Money was borrowed on the credit of a firm and used for the purposes of the firm, but the individual note of one of the partners was given for it, and by mistake of the lender was accepted. Afterward, when the mistake was discovered, the lender demanded and received from that partner the note of the firm in lieu of his own note. Held, that this was not the giving of a partnership note for an individual debt, and that the latter note was binding on the firm.</p>

<p>1. Criminal Law: evidence of defendant’s good character. In a criminal prosecution evidence of the good character of the defendant is always admissible; but the law limits the inquiry to his general character as to the trait in issue; a witness will not be allowed to express his individual opinion.</p> <p>2. An Instruction objected to as leaving it to the jury to determine what were the material allegations in the indictment; Held, not properly open to that objection.</p> <p>3. Criminal Law: presumption of guilt arising from flight. Flight from a charge of crime raises a presumption of guilt; but this presumption may be modified or overthrown by evidence showing that the flight was occasioned by other causes than consciousness of guilt, and when there is such evidence the jury should be directed to consider it and determine how far it tends to rebut the presumption.</p> <p>i. -: REASONABLE PROVOCATION : HEAT OF PASSION. The insulting' conduct proven in this case was not such as to constitute .reasonable provocation, so that the defendant could not have been in a heat of passion when he committed the assault.</p>

<p>1. Declarations of an Agent made one hour after the occurrence to which they related; Held, no part of the res gestae, and not admissible in evidence against his principal.</p> <p>2, Master and Servant: injuries ebom patent dangers. If a servant knows of the danger in prosecuting his master’s work, or if it is so patent that an ordinarily observant man would have seen it, and without any assurance from the master he continues at work, he cannot hold the master liable if injury result to him therefrom. Compare Flynn u. IC. 0., St. Jo. & G. S. S. S. Go., ante, p. 195.</p>

<p>!• Wills. In construing a will, the testator’s intention governs, and that construction should be given which prevents a failure of the gift.</p> <p>2. -. A devise to a class, though as tenants in common, will not lapse by the death of one of the devisees before the testator, but the survivors take the whole.*</p>

<p>1. Negligence: pleading. A petition in an action against a railroad company for personal injuries received in falling from a freight car, stated that the hand-hold on the car “ was not safe and sufficient, and by reason of said defectiveness and insufficiency said hand-hold broke.” Held, that this amounted to an averment that there was a weakness in the fastenings of the hand-hold, in consequence of which it broke, and was a sufficiently specific statement of the negligence intended to he charged.</p> <p>2. Instructions. It is not error to refuse one correct instruction if another to the same purport is given.</p> <p>S. - Where one instruction is given correctly applying a principle to the facts of the case, it is not error to refuse another laying down the principle in a general form.</p> <p>4. Fellow-servant. A car inspector is not a fellow-servant of the hrakeman.</p> <p>5. Instructions. It is not error to refuse an instruction which with- • draws an issue of fact from the jury when there is evidence bearing upon the issue.</p> <p>6 Instructions, unobjectionable as propositions of law, are properly refused, if there is no evidence of the facts upon which they are predicated.</p>

<p>Appeal from Chariton Circuit Court. — Hon. Geo. W. Htjnn, Judge.</p>

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

<p>Liability for false Representations. A is res^qa^il^.^cgj.^^-conp sequences of false representations made by him to B. andjipori which C acted to his loss, where it appears tha?^ínñen&e(f that they should be communicated to C, and acted upoijniy ninrih the manner which occasioned the loss.*</p>

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

<p>Hornblower v. Crandall, ante, p. 581; Watson v. Crandall,' ante, p. 588, and Baker’s Adm’r v. Crandall¡ ante, p. 584, followed and affirmed.</p>

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

<p>1. Indictments. Indictments are required to conclude “ against the peace and dignity of the State.” Const., art.,, 6, § 38. But the addition of the words “of Missouri,” will not be grounded objection.</p> <p>2. -. An indictment found before section 1798, Revised Statutes 1879, became the law, was not indorsed “A true bill,” nor signed by the foreman of the grand jury, but no cbjection was made on these grounds till the case reached this court. JETeld, that the defect was cured.</p> <p>3. Embezzlement by Public Officers: school funds: statute, construction of. Section 41 of article 3, chapter 43, Wagner’s Statutes, (p. 459,) providing for the punishment of public officers embezzling public funds, was applicable as well to officials whose offices were created after that section became law as to those already existing. It included in its operation the “ Township Trustee ” provided for by the Township Organization Law of 1873, (Acts 1873, p. 100 ;) and under it that officer was liable for school funds misappropriated.</p> <p>4. Construction, of Statutes. In the construction of statutes the intention of the legislature is to be ascertained from the language used, and not from general inferences to be drawn from the nature of 'the objects dealt with.</p> <p>5. Criminal Law: twice in jeopardy. After a jury had been empanelled in a criminal case and before any evidence had been submittod, the defendant interposed an objection to the sufficiency of the indictment. The objection was sustained, the indictment quashed and the jury discharged. The defendant having been afterward tried upon another indictment found for the same offense; Held, that he had not been twice put in jeopardy.</p> <p>6. Pleading, Criminal: township organization. An indictment against a township officer must aver that the county has adopted township organization. This is a thing of which the courts will not take judicial cognizance, and proof of it will not be received without a proper averment.</p> <p>7. -:--: embezzlement by publio opficer. An indictment against a township trustee charged that he had embezzled “ public moneys belonging to the school fund of North township,” in Dade county. Strictly speaking the moneys belonged to the sub-districts of North township, rather than the township itself. Held, however, that this did not invalidate the indictment. It was sufficient to allege that the funds embezzled were “ public moneys,” and the amplification in the charge did not vitiate or limit the proof.</p> <p>8. Practice, Criminal: officer in charge of jury. In the absence of evidence that either the officer in charge of the jury or any one else had any communication with the jury, the verdict should not be set aside because the officer did not take the special oath required by section 1910, Revised Statutes 1879.</p> <p>9.--: verdict. Failure of the jury to find on all the counts of the indictment does not vitiate the verdict. It operates an acquittal as to the omitted counts.</p>

<p>Appeal from Chariton Circuit Court. — Hon. G-. 1). Burgess, Judge.</p>

<p>Appeal from Cole Circuit Court. — Hon. E. L. Edwards, Judge.</p>

<p>1. Fraudulent Conveyance. Land conveyed by an insolvent withont valuable consideration, and acquired from the grantee with knowledge of that fact, will be subject in the hands of the purchaser to the demands of the creditors of'the insolvent; and, if he exchanges for other land, the latter becomes also subject to their demands.</p> <p>2. Statute Laws of Sister States: common law. Judicial notice will not be taken of the statutes of a sister state; and it will not be presumed that the common law is in force in the state of Louisiana.</p> <p>3. Husband and Wife: wipe’s property. In the absence of evidence that property in the name of a married woman acquired during coverture has been paid for by her separate means, the presumption of law is that it was paid for with those of the husband; and in such case it is not within the protection of the statute, (R. S. 1879, § 3295,) securing to the wife the moneys arising from the sale thereof.</p> <p>4. --■. The promise of a husband to repay his wife the proceeds of land which belonged to her, hut not as her separate estate, and which has been disposed of and used by him with her consent, is without sufficient consideration to make her his creditor.</p>

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

<p>Error to Morgan Circuit Court. — Hon. E. L. Edwards, Judge.</p>

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

<p>1. Double Damage Act: killing stock : pleading. In an action under the statute against a railroad company for double damages for killing stock, the complaint need not specifically allege that the injury was occasioned by the faillure to fence or to maintain cattle-guards, or that the injury was not within the limits of an incorporated city or town. It is sufficient if these facts maybe inferred from the allegations of the complaint.</p> <p>2. Jurisdiction: justice’s court: appeal. Jurisdiction of a justice is a question of fact, which cannot be examined on appeal when the record does not show a proper filing of the bill of exceptions.</p> <p>3. Bill of Exceptions: evidence op piling. The file mark of the clerk indorsed on the bill and copied into the record, is the only proper evidence of the filing of the bill of exceptions in vacation.</p>

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

<p>Error to Howard Circuit Court. — Hon. GL "W". Burcki-iartt, Judge.</p>

<p>1. Action, against Corporation: irregular summons : amendment. In an action against a corporation the writ commanded the officer to summon “the proper officer of” the corporation to appear. Pending a motion to quash on the ground that the writ did not require the corporation hut only its officer to appear, the court granted leave to amend by striking out the words here quoted. Held, that this was proper; and although it did not certainly appear that the amendment had actually been made, this court would treat it as if it had been.</p> <p>2. Foreign Insurance Companies: service of process on them : “ state agent.” In an action against a foreign insurance company the sheriff returned that he had served the summons on II. P., “state agent” of the company. Held, that the words “state agent” sufficiently designated II. P. as the person appointed by the company under section 6013, Revised Statutes 1879, for the purpose of receiving service of process in actions against the company.</p> <p>3. -: to be sued, where. Suits against foreign insurance companies are not required to be brought in the county in which the agent appointed under section 6013, Revised Statutes 1879, to receive service of process, resides. They may he brought in any county in the State; and if the agent lives in another county, the writ is to be directed to the sheriff of the latter county.</p>

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

<p>Appeal from Jackson Special Law and Fquity Court. — Hon. JR. E. Cowan, Judge.</p>

<p>Frror to Buchanan Circuit Court. — Hon. Joseph P. Grubb, Judge.</p>

<p>Appeal from Howard Circuit Court. — Hon. Gf. H. Burokhartt, Judge.</p> <p>Stricken erom the Docket.</p>

— TIon. J. D. Parkinson, Judge. The testimony of Nathaniel Bray on behalf of plaintiff was as follows : . I did know of the suit of Bank against Eerguson and Stephens. I was employed by Stephens to defend the case. My impression is I examined the papers before the court convened; I know I did early in the re turn term of the suit. McAfee and Phelps and I examined the papers at that time; they represented Eerguson and Stephens.