Volume 79 — Missouri Reports

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

<p>1. Corporation: stock: payment. Payment of shares in a corporation may be made otherwise than in money.</p> <p>2. -: STOCK PAID UP TN ADVERTISING : PUBLIC POLICY. It ÍS 110t ultra vires a corporation organized for the purpose of carrying out a. public enterprise, e. g. the building of a bridge over the Mississippi Biver, to contract with the proprietor of a newspaper to have published therein statistical articles and communications favoring the project, and showing the value of the enterprise as an investment; neither is such a contract contrary to public policy.</p> <p>3. The Consideration of a written agreement may be shown by parol.</p> <p>4. Full Paid Stock: consideration: newspaper articles. Certain shares of the stock of a corporation organized to construct a bridge over the Mississippi Biver were issued to the proprietor of a newspaper published in the city where the bridge was to be built. The consideration therefor, was the publication of articles and communications in the newspaper favoring the enterprise and pointing out its need and value to the community, and its standing as an investment. It was not contended that the consideration was inadequate. Held, that the stock was fully paid.</p>

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

<p>Appeal from Lewis Circuit Court. — TIon. John 0. Anderson, Judge.</p>

<p>Railroads: double damages for ikjury to chops: pleading. A complaint in an action under the 43rd section of the Railroad Law, to recover double damages for injury to crops, alleged that “ at a point on defendant’s railroad where defendant had failed to erect and maintain lawful fences on the sides of its road as required by said 43rd section, where the same passed through, along or adjoining inclosed or cultivated fields or uninclosed lands, and by reason of said failure,” certain hogs broke into and destroyed plaintiff’s corn. Held, (1) That this complaint negatived the possibility of the hogs having entered at the crossing of a public highway: (2) That in actions for damages to crops there is no necessity for negativing this possibility.</p>

<p>1. Dedication: public use: donor must be absolute owner. No one but tlie absolute owner can dedicate land to public use so as to pass the fee. A dedication of land upon which there is a deed of trust is subject to be avoided by a sale under the deed.</p> <p>2. -: user: estoppel in pais. A dedication of land to public use may take place by user and assent without a deed. But to constitute such an estoppel in pais the intent of the owner to make the dedication in this way must be clearly shown.</p> <p>3. -: MORTGAGE ON RECORD : NO ESTOPPEL OE MORTGAGEE. The owner of land subject to a mortgage dedicated a piece of it to the public use for a street. The mortgagee knew of the dedication and made no dissent; his mortgage being all the time on record. Two years later the land was sold under the mortgage; Held, that the dedication' did not bind the purchaser, the acts of the mortgagee not amounting to an estoppel in pais.</p>

— Hon. II. S. Kelley, Judge. Respondents are the widow and minor child of P. G. Morgan, who, his wife joining, mortgaged eighty acres of land to secure a note of $500. He afterward conveyed by a general warranty deed for the expressed consideration of $1,000 one parcel of said land of forty acres to his son, who conveyed to appellant under an agreement that appellant should pay his pró rata of the mortgage. The other forty acre tract was, upon the death of P. Gr.

<p>1. Administration: discovery of assets. The proceeding to discover assets of the estate of a decedent provided by sections 7, 8,9, 10 and 11, page 85, Wagner’s Statutes, is available not only in cases where the assets are concealed or embezzled, but also where they are openly held under a claim of title. In the latter case the court must try the right of property between the administrator and the claimant.</p> <p>2. -: widow’s allowance. If the widow of the deceased be the claimant, she should in no event be required to surrender to the administrator the property she is entitled under sections 33, 35 and 36, page 88, Wagner Statutes, to keep as her absolute property.</p>

<p>Appeal from Pike Circuit Court. — Hon. Gilchrist Porter, Judge.</p>

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

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

<p>1. Account Stated: evidence. In an action upon an account stated, if necessary, evidence of earlier transactions as a foundation for the settlement and in explanation thereof, is admissible; but an inquiry into the merits or demerits of the prior transactions, as ground of recovery or defense, is inadmissible.</p> <p>2. Practice in Supreme Court: exceptions. It is not only necessary to object to the exclusion of proffered evidence, but except to the ruling of the court, in order to be entitled to have such ruling passed upon by the Supreme Court.</p> <p>3. Account Stated.: evidence. Upon proof of a settlement a promise by the debtor to pay the balance found due will be implied.</p>

<p>1 Usury. A holder of stock in a building, loan and savings association upon which, nothing had been paid, obtained from the association a loan of money equal in amount to his stock, executing in return his note whereby he agreed to pay, monthly, interest on the full amount of the loan, at the rate of ten per cent ner annum, and also an installment of $1 upon each share of his stock. From time to time he made these payments, and also, according to the usages of the association, received from the association partial payments on account of the loan, but not in the aggregate more than five-eighths of the full amount. The association, however, at all times, had the whole of the money ready for him. His payments went into the common fund, in which, by the constitution of the association, every stockholder was entitled to share ratably when the association came to be wound up. Held, that he had not paid usurious interest.</p> <p>2. Estoppel. Information known to the party receiving it to be nothing more than an opinion or estimate, if honestly given, will not support an estoppel.</p> <p>3. Equity: to bestbain enfobcement of secubity, fob uncertainty. Equity will sometimes restrain the enforcement of a security until the amount of the indebtedness it covers is ascertained ; but this rule does not apply where the uncertainty as to amount is a thing inherent in the nature of the transaction and was in the contemplation of the parties at the time the indebtedness was created, as in the case of a note and deed of trust given to secure a loan on the usual plan from a building association.</p> <p>4. Damages on Injunction: attorneys’ fees. Upon the dissolution of an injunction in this case the defendant was allowed, as damages,, ¥100 for his attorneys’ fees. Held, not exorbitant.</p>

<p>1. Joinder of Actions. A joint action will not lie, to recover the purchase price of goods, against the purchaser and one who has received them from the purchaser and converted them to his own use.</p> <p>2. Trover: conversion : when maintainable. Trover or conversion cannot be maintained where the plaintiff has neither the right of property in, nor the right of possession to, the chattels alleged to have been converted.</p> <p>3. Execution against Personal Property for Purchase Money. Under the act of 1874, (Laws 1874, p. 118,) the right of the vendor of personal property to levy on it for the purchase price, confers no lien on it so as to bind it in the hands of a transferee, but simply prevents the purchaser from claiming it as exempt.</p> <p>4. Amending Petition: changing form of action. P averred in his petition that H had purchased goods of him, on the false representation that he was solvent; that subsequently H sold the goods to R, who received and paid for them knowing that H. had not paid P and that H was insolvent; that P had demanded the goods of R who refused to deliver them to him, but instead wrongfully converted them to his own use. On the trial, P filed an amended petition alleging that R knowing that H was insolvent and indebted to P for the goods, fraudulently colluded with H to cheat and defraud P; that in pursuance thereof R pretended to purchase the goods from H, by reason whereof P has been damaged, etc. Held, that the amendment should not have been permitted, because it changed the cause of action from trover and conversion to an action of fraud and deceit.</p>

<p>Error to Montgomery Circuit Court. — Hon. Gr. Porter, Judge.</p>

<p>1. Judicial Notice: incorporation oj? town. When it is shown that a town or city has availed itself of the general law authorizing towns and cities to become incorporated, the courts will take judicial notice of the rights and powers conferred thereby. But the fact that a particular town or city has availed itself of the privileges of such law and become incorporated, must be proved. The courts will not take judicial notice of it. See The State v. Says, 78 Mo. 600.</p> <p>2. Eminent Domain. The existence of a power to take property for public use, may be controverted at any stage of the proceedings</p> <p>3. Railroads : street crossings. The statute imposes no duty on railroad companies to construct and maintain crossings where public streets cross their tracks.</p>

— How. ¥m. T. Wood? J udge. Plaintiffs were the beneficiaries and the trustee m a deed of trust purporting to convey an undivided one-half interest in a parcel of land, and in this action sought to enjoin the sale thereof under a prior deed of trust securing an indebtedness which they alleged to have been pai One of the plaintiffs testified that when he gave the deed to the recorder for record, the latter remarked that there was no trustee named in it, and the plaintiff said…

<p>Bankruptcy: noít-proyable debt : surety in appeal bond. Pending an appeal the defendant was adjudged a bankrupt; the judgment appealed from was affirmed and the surety satisfied the same, and sued the defendant for the money thus paid. Held, that the claim was not a contingent demand whose value could be ascertained, and was not provable under the act, and was not released by the discharge in bankruptcy.*</p>

<p>1. Forcible Entry and Detainer: judgment upon appeal bond. In an action of forcible entry and detainer, a summary judgment cannot be rendered against the surety on the appeal bond, as in ordinary cases of appeal from justices of the peace.</p> <p>2 Appeals. The fact that only one of two plaintiffs has appealed, cannot of itself be ground for dismissal; the failure to appeal by a party unnecessarily joined as plaintiff, is not a bar to the prosecution of an appeal by the other plaintiff.</p> <p>3. Husband and Wife: pasties plaintiff. The possession by the wife of land to which she has the legal title is the possession of the husband; and she is not a necessary party to an action for injury to the possession.</p>

<p>Appeal from Vernon Circuit Court. — TIon. C. G-. Burton, Judge.</p>

— Trial before TIon. Noaii M. Givan, Judge of tbe Seventh Judicial Circuit.

<p>Error to Johnson Circuit Court. — Hon. Noai-i M. Givan, Judge.</p>

<p>1 Administration: fraudulent settlement. The willful omission of an executor to charge himself with assets which come to his hands, or the taking credit for what, in no view of the case, he is entitled to, is sufficient misconduct to vitiate his settlements, as fraudulent, to the extent of such omission or false credit.</p> <p>2. -: -: limitations. Within five years after the plaintiffs attained their ma j ority they brought suit to set aside defendant’s final settlement as administrator for fraud. In that action there was a non-suit. Within one year thereafter this suit was brought. More than ten years had elapsed since the final settlement. Held, that this suit was not barred by the statute of limitations.</p> <p>3. - : RELEASES OF LEGATEES PROCURED BY FRAUD. Acquittances and releases of an executor by residuary legatees acknowledging full payment of their legacies, Held, upon the evidence, to have been procured by fraudulent representations and concealments, and to be, consequently, invalid.</p>

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

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

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

<p>Appeal from Franklin Circuit Court. — IIon. A. J. Seay, J udge.</p>

<p>Appeal from Moberly Court of Common Pleas. — TIon. G-. H. Burckhartt, Judge.</p>

<p>Error to Cole Circuit Court. — IIon. G. W. Burckiiartt, Judge.</p>

<p>Practice in Supreme Court: appeal : bill of exceptions. This court acquires no jurisdiction over a case by appeal unless taken at the term when final judgment is rendered; at such term, also, the bill of exceptions must be filed unless carried over by consent of both parties and of the court, entered of record.</p>

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

<p>1. Practice in Supreme Court: bill or exceptions. A bill of exceptions filed at the next term after the overruling of motions for new trial and in arrest and the perfecting of the appeal, under an order extending the time for the filing thereof made without consent of the parties, will not be considered by this court.</p> <p>2. A Petition upon a Penal Bond, which was held good after verdict.</p>

<p>1. Railroads: double damages fob killing cattle : pleading. Under the statute, (R. S. 1879, § 809,) a railroad company is not liable to the owner of stock killed or injured, unless it get upon the track at a place where the company is by law required to fence; and no statement of the cause of action is good which, does not contain such an averment, expressly or impliedly.</p> <p>2. Practice in Supreme Court. Where the petition shows no cause of action, a judgment for the plaintiff will be reversed, although no exception was taken in the court below.</p>

<p>Justices’ Courts: change cot venue : judgment. A judgment entered by a justice of the peace after a change of venue has been applied for, in due form, on the ground of prejudice on his part, is erroneous, but cannot be treated as a nullity in a collateral proceeding. Herryford v. ¿Etna Ins. Co., 43 Mo. 148; Beery v. Railroad Co., 64 Mo. 533, distinguished.</p>

<p>Error to Eouisiana Common Pleas Court. — IIon. G. Porter, Judge.</p>

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

<p>1. Railroads: negligence : pleading. A statement held to set forth a good cause of action for the negligent killing of plaintiff's steer by a railroad company.</p> <p>2. -: -: killing stock. If the agents of a railroad company in charge of a train run its engines or cars upon or over live stock, and such collision could be avoided by the exercise of reasonable care and vigilance on their part, the company will be liable to the owner for the resulting damages.</p> <p>3. Instructions which announce mere abstract propositions of law, or single out and comment upon particular facts, are properly refused.</p> <p>4. -: -: killing stock. If live stock is or could be seen approaching-a public road-crossing before it gets on a railroad track, the company may be guilty of negligence in case of a collision, although such stock be not seen on the track in time to avoid the injury. Wallace v. Railroad Co., 74 Mo. 594, explained and distinguished.</p>

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

<p>A Mortgage of Personal Property not yet in esse, the production of which is in the contemplation of the parties, will impose a lien in equity thereon when produced. Following Wright v. Bircher, 72 Mo. 179.</p>

<p>1. Master and Servant: parent and child. Valuable services, which would, as between strangers, raise an implied promise to pay for them, when performed fora person in loco parentis, will not of themselves have that effect; and this whether they are performed wholly during minority or partly after majority.</p> <p>2. •-: evidence. In an action against the estate of a deceased person for services performed for him during his lifetime, Held, that his will making provision for the plaintiff was properly admitted in evidence as corroborative of the claim made in defense that the position of plaintiff was that of a member of the family of the deceased, and as bearing upon the supposed undertaking to pay wages for his services.</p>

<p>1. Justice’s Courts : jurisdiction : suits against counties. Before the Bevision of 1879 every justice of the peace had jurisdiction of suits against his own county.</p> <p>2. -: county court : jurisdiction : suits against counties. Statutory authority conferred on the county court to audit and settle all demands against the county, Held not to he repugnant to the jurisdiction of a justice of the peace over a suit against the county.</p> <p>3. -: jurisdiction : suits against counties. The statutory requirement that suits before a justice of the peace shall be brought in a township in which the defendant resides, or in adjoining township, Held, not to be repugnant to the jurisdiction of a justice of the peace over a suit against the county.</p> <p>4. -: -: -. The statute, (B. S. 1879, § 1184,) providing that necessary expense incurred by the probate court for furniture, etc., shall he paid by the county, Held, to authorize its procurement by the probate judge without first getting an order from the county court; and upon the refusal of the county court to pay for it, to warrant the probate judge in doing so, and entitle him to recover from the county the price thereof, if it be reasonable and if the furniture was necessary.</p>

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

<p>1. Recitals. Parties and privies are alike bound by the recitals in a deed.</p> <p>2. -: -corporation. A person claiming under a deed which recites a mortgage in favor of a party bearing a corporate name, cannot Mspute the corporate existence of the mortgagee.</p>

<p>Error to Johnson Criminal Court. — Hon. John E. Ryland, Judge.</p>

<p>Appeal from Clay Circuit Court. — Hon. George W. Dunn, Judge.</p>

<p>Bank Cheeks. A bank check drawn for a part only of the drawer’s deposit does not operate either at law or in equity as an assignment of the deposit pro tanto or confer any lien upon it. See Merchants’ National Bank v. Coates, ante, p. 168.</p>

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

<p>1. Civil Jurisdiction not Acquired by use of Criminal Process: practice. The criminal process of the State cannot be used to take a person from one county to another, so as to subject him to civil process in the latter county.</p> <p>Where it is so used the facts may be set forth by an answer in the nature of a plea to the jurisdiction, and will constitute a good defense.</p> <p>3. Practice. A defense to the merits may now be united in the same answer with a plea to the jurisdiction; but the court ought to settle the question of jurisdiction before nermitting a trial on the merits.</p>

<p>1. Conditions: pleading : evidence. Upon a plea of compliance with a condition precedent, evidence will not be admitted to show that the condition was waived.</p> <p>2. -: warranty ; agency : waiver. Plaintiffs sold defendants machinery, warranting its work, and stipulating that if it failed to operate well defendants should notify plaintiffs and their local agent in writing, so as to give opportunity to correct the defect. Held, that this stipulation constituted a condition precedent, that compliance with it was necessary in order to hold plaintiffs on their warranty, that an agreement by a sub-agent of plaintiffs to give the requisite notice did not relieve defendants from its binding force, , and that notice given by the sub-agent to the agent (but not to the principal) did not amount to a compliance.</p>

<p>Appeal from, Gass Circuit Court. — Hon. Noah M. Givan, Judge.</p>

<p>Error to Cape Girardeau Circuit Court. — Host. 1). L. Hawkins, Judge.</p>

<p>1. Torts: pleading. "Where goods have been taken and applied to the use of the captor without the consent of the owner, the wrong done is a tort, and the remedy is by an appropriate action for the tort. The owner cannot waive the tort and sue as upon a contract of sale.</p> <p>2. Case Adjudged: justice’s couet. In a suit begun before a justice of the peace the plaintiff stated his cause of action in the form of an account, thus:</p> <p>The IC. C., St. J., etc., R. R. Co. to P. S., Dr.</p> <p>To 102 ties at 50c................................................................$51 00</p> <p>To 440 feet of lumber at $20 per M....................................... 8 80</p> <p>$59 80</p> <p>The evidence offered by plaintiff showed a taking of the ties and lumber without the knowledge or consent of plaintiff and a conversion of them to defendant’s use. Held, that it did not support the complaint. Compare Allen v. McMonagle, 77 Mo. 478.</p>

<p>1. Pleading: demurrer. Where the, answer consists of a genera^ denial and special pleas, and the latter do not in terms admit facts sufficient to entitle plaintiff to judgment, a demurrer to the whole will not lie. The proper method of testing the sufficiency of the special pleas is to demur to them only.or move to strike them out.</p> <p>2. The Capital of a Private Bank, where Taxable. While it is ordinarily true, both at common law and under our statutes, that personal property follows the situs of the owner, and is taxable in the county of his residence, this rule does not apply to the business capital of a private bank. The effect of our statute is to make this taxable in the county where the business is carried on.</p> <p>3. United States Bonds. The capital of a private bank invested in United States bonds, is not taxable by state authority.</p>

<p>Partnership Mote for Individual Debt. The plaintiffs at St. Louis sent a reaper to C. K. & Co., (a firm) at Sullivan, Missouri. C. K. & Co. afterward reported by letter that they had sold the reaper to K., a member of their firm, and sent the note of the firm for the price. It turned out that K. had made the transaction and written the letter wholly without the knowledge of the other members of the firm, and had alone gotten the benefit, but it also appeared that they habitually left the management of the business lo K., and permitted him whenever he wanted goods to take them and charge them to himself. Held, that by their conduct they had brought themselves within the rule that where one of two innocent persons must suffer by the act of a third party he shall suffer who has been the cause or occasion of the confidence or credit reposed in such third party, and that they were liable on the note.</p>

<p>1. Carriers : contracts for exemption from: liability : negligence. A contract by which a common carrier undertakes to relieve himself of all liability for damages occasioned by any delay in transportation and to impose them upon the shipper, will be effectual to protect the carrier only against the consequences of delays not caused by his own negligence.</p> <p>2. --: DUTY AS TO PROVIDING FACILITIES FOR TRANSPORTATION. It is the duty of a common carrier to provide sufficient facilities and means of transportation for all freight which it should reasonably expect will be offered, but it is not bound to provide in advance for extraordinary occasions, nor for an unusual influx of business which is not reasonably to be expected.</p> <p>3. -: -. If a common carrier receive property for transportation without any agreement to the contrary, he thereby undertakes to carry and deliver it within a reasonable time, regardless of any extraordinary or unexpected pressure of business upon him.</p>

<p>1. Justice’s Courts: statements. A statement filed in a justice’s court, to be sufficient, must advise the defendant of the nature of the claim and be sufficiently specific to be a bar to another action. It must state facts and not merely conclusions of law. Hence, a statement in these words: “Plaintiff states that defendant is indebted to him in the sum of $50 lawful currency, for which he asks judgment,” is insufficient.</p> <p>2. ‘Witnesses. Where a part of a transaction with a firm was had with one of the, partners who was dead at the-time of the trial; Held, that the opposite party was not a competent witness as to what passed between him and the deceased.</p> <p>S. Agent must follow Instructions. Where an agent disregards specific instructions, he does so at his peril, and if he adopts his own course with reference to his principal’s business and loss ensues thereby, he will be liable though he may have used reasonable dili■gence.</p>

— IIon. Vm. T. Wood, Judge. The facts, as shown in evidence, were substantially as follows: In 1864 ¥m. E. Combs owned about 1,840 acres-of land in Pettis and Morgan counties, and was largely indebted to various persons, much of the land having been-bought on credit.

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

<p>1. Execution: LIABILITY of sheriff for failing to enforce bid. A sheriff who fails to collect the amount of a bid made at execution sale, is prima facie liable to the execution debtor as for a neglect of duty. If the bidder was irresponsible, it devolves upon him to show it.</p> <p>2. -: --: limitation. Three years, and not ten, is the statutory period of limitation against the liability of a sheriff for failure to. collect money due on execution sale, and the time runs from the day of sale.</p> <p>3. Statute of Limitations: pleading. In order to avail himself of the bar of the statute of limitations appearing on the face of the petition, the defendant must demur specially. A general demurrer will not do.</p>

<p>Appeal from Ozark Circuit Court. — IIon. J. R. Woodside, Judge.</p>

<p>Municipal Corporation: nuisance. Power conferred upon a municipal corporation to abate nuisances, is conferred for the public good, and not for any private corporate advantage, and for failure of its officers properly to exercise the power, the municipality is not liable.</p>

<p>1. Liability of Officer Executing Replevin: or plaintiff assisting him. Whatever may be the law as to the right of an officer to break and enter a dwelling house by force in order to execute a writ of replevin, if he enter and make search upon the invitation of the owner of the house he will not be liable in damages unless he do unnecessary injury in the search; and if he search property found in the house belonging to a stranger to the writ, upon the invitation of the latter and under a bona fide impression that it is the property of the defendant, the same rule of liability will apply. If the plaintiff in the writ accompany and assist the officer, the same rules will apply to bam also.</p> <p>2. -. If an officer, in the execution of a writ of replevin, injure the property of a stranger to the writ, but without willfulness or malice, he will be liable for actual damages only.</p>

<p>1. Justice’s Courts: amendment on appeal. A complaint filed before a justice of the peace for the killing of live stock showed upon its face that it was intended io be drawn under the 43rd section of the Eailroad Law, but failed to make some averments essential under that section. On appeal the circuit court permitted the omission to be supplied by amendment. Held, that this was warranted by section 3060, Eevised Statutes 1879.</p> <p>2. Lawful Fences. A post and plank fence four and one-half feet high is a lawful fence within the meaning of the 43rd section of the Eailroad Law.</p>

<p>1. Impeachment of Witnesses. Where impeaching evidence consists of a letter which the witness admits having written, it may be offered in evidence without examining him as to its contents.</p> <p>2. Competency of Juror, who has formed an Opinion. The rule laid down in Stale v. Walton, 74 Mo. 270, re-affirmed.</p> <p>3. Precedents. In framing instructions on well settled points, it is best to adhere to precedents long and well established; it is always hazardous to travel out of the beaten path.</p>

<p>Suit to set aside Conveyance for Fraud. A creditor cannot maintain a bill in equity to set aside a conveyance of his debtor as fraudulent, until his demand has been reduced to judgment: and this means a judgment in this State, not a judgment of a sister state.</p>

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

<p>Appeal from a Justice, when Triable. When an appeal from a. judgment of a justice of the peace is not taken on the same day that it was rendered, and no notice of such appeal is given, it cannot be tried at the first term of the appellate court unless by the consent of both parties, or unless the appellee shall enter his appearance on or before the second day of such term.</p>

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

<p>Appeal from Clay Circuit Court. — Hon. George W. Bunn, , Judge.</p>

<p>Appeal from Franklin Circuit Court. — TIon. John ~W\ Booth, Special Judge.</p>

<p>Ineompetency of Fellow-servant. To enable a servant to recover of his master for injuries sustained through the instrumentality of a fellow-servant, it is not sufficient to show that the fellow-servant was incompetent and that the master was guilty of negligence in employing him. It must also appear that the fellow-servant was guilty of some act of negligence or unskillfulness directly contributing to the injury.</p>

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

<p>Appeal from Buchanan Circuit Court. — IIon. J. P. G-rubb,, Judge.</p>

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

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

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

<p>Appeal from Buchanan Circuit Court.- — Hon. J. P. Grubb, J udge.</p>

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

<p>1. Evidence of Title to Personal Property. As against a claimant of personal property recorded conveyances of the property passing between other parties, coupled with possession held by one of them, are not alone evidence of title. To make them evidence it should be shown that the makers of the conveyances had title; or if the claimant has done things which amount to a recognition of title in them, they may be shown.</p> <p>2. Limitation against Mortgagee of Personal Property. As against a mortgagee of personal property left in the hands of the mortgageor at the making of the mortgage, the statute of limitations does not run until he has demanded and been refused possession.</p>

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

<p>Appeal from Jackson Special Law and Equity Court. — Hon. R. E. Cowan, Judge.</p> <p>The plaintiffs Ayres, Kinsey, Thomas & Smith were co-partners doing business under the firm name of the Citizens’ Bank.</p>

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

<p>Custodia Legisreplevin. Property held under judicial process cannot be taken under other judicial process. Hence, where property levied upon as belonging to A has been replevied by B under claim of title, it cannot be again taken under execution against A while the action of replevin is pending and undetermined.</p>

<p>Railroads: killing live stock: pleading. In an action against a. railroad company for killing plaintiff’s hogs, founded on the 43rd section of the Railroad Law, the petition failed to state that the hogs came upon defendant’s track at a point where defendant was-required by law to fence. Held, that it was for this reason fatally defective.</p>

<p>1. Decisions of Church Judicatories: constitutional law. It is'the established doctrine that in matters purely ecclesiastical, not affecting property rights, the decisions of the proper church judicatories made in good faith, are conclusive upon civil tribunals. The provision of the constitution, (§ 10. art. 11,) that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character” in no manner alters this rule. It means only that for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy.</p> <p>2.--: case adjudged : libel. The plaintiff, a member of the’ Presbyterian Church, was tried by a session of the church in his absence and without notice to him, upon a charge preferred by the pastor, who was a member of the session, that plaintiff had made-false and defamatory statements concerning the pastor, and he was excommunicated by resolution of the session. Held, that unless the charge was false and the members of the session maliciously, falsely ór colorably made the proceedings against plaintiff a pretense for covering an intended scandal, they had not laid themselves open to an action for libel.</p> <p>3. -: -: publication of libel. The clerk of the session en- ' tered the resolution of excommunication and a preamble accompanying it upon the minute book of the session, exhibited them to members of the session for their signature, and sent plaintiff a written copy, and the pastor read both preamble and resolution to the congregation in church. Held, that these acts did not of themselves amount to a publication of a libel, or furnish a foundation for an action against either clerk or pastor.</p>

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

— IIon. S. H. Woodson, Judge. There was evidence tending to show that prior to 1844 Turkey creek was a living stream flowing in a northerly direction through the extreme western part of what is now Kansas City, and finally emptying into the Missouri River; that in that year there came what is spoken of as the flood of 1844, when the ground in that vicinity was submerged, and Turkey creek changed its channel, and has ever since that time emptied into the Kansas River, a…

<p>1. Amendments, tests of. Two of the tests by which to determine whether a second petition is an amendment or the substitution of a new cause of action are: (1) That the same evidence will sup- . port both' petitions; (2) That the same measure of damages will apply to both. If both of these fail the new pleading is not an amendment.</p> <p>Thus, where the first petition was in trover for certain goods; and the second charged that defendant had maliciously sued out a writ of attachment and caused the goods to be seized and sold at a sacrifice ; Held, that the second stated a new and distinct cause of action, and was not an amendment.</p> <p>2. -: waiver. If the defendant pleads to the second petition, and tries the case on the issues thus joined, he thereby waives his right to raise the question of departure.</p> <p>3. Agent’s Declarations, etc., as Evidence against Principal. The acts and declarations of an agent are binding on his principal only when made at the time of the occurrence to which they relate, and while engaged in the performance of his office as such. They are then admitted as verbal acts and part of the res gestae.</p> <p>4. Admissions. Conversations had between parties to the record after suit begun, are receivable in evidence as admissions.</p> <p>5. Malicious Attachment: evidence. In an action for maliciously attaching and causing the sacrifice of plaintiff’s goods; Held, that evidence that defendant endeavored to -find out plaintiff’s whoreabouts with a view of informing him of the attachment so as to prevent a sacrifice of the goods, was not competent.</p> <p>6. -: probable cause is a mixed question of law and fact. When the facts are admitted the court should declare their legal effect, but when they are disputed the question is for the determination of the jury under proper instructions.</p> <p>7. Instructions. It is not safe in a series of instructions to trust largely to the continuity in reasoning and the logical analysis of “ the panel of twelve.” They are liable to be misled by the assertion of apparently distinct propositions in separate instructions, which might to the professional mind be cognate and harmonious. The relation of one instruction to another ought to be so near that their connection and meaning would be obvious.</p> <p>8. Agent’s Uncommunicated Knowledge: tort. Uncommunicated knowledge of an agent cannot be imputed to his principal for the purpose of fastening upon the latter a liability in tort, unless it appear that by the exercise of that diligence which a prudent and careful person ordinarily exercises under like circumstances, the principal might have obtained the information by timely inquiry of the agent.</p> <p>9. Domicil. A mere residence of a temporary nature with no present purpose of an established abode, is not sufficient to constitute a person a resident of this State; but if one leaves his home in another state and brings his household goods into this State, and takes lodging here with an intent then formed of making his home in this State, without a present intention of removing therefrom, this would constitute him a resident from the time he moved into the State.</p> <p>10. Malicious Attachment: advice of counsel will not protect an attaching 'creditor from suit for malicious attachment if the creditor discloses to the counsel only the facts relating to the creation and existence of his claim; he should also disclose all he knows touching the grounds alleged for attachment.</p> <p>11. -. Neither will it avail the creditor to show that the suit was brought in good faith to recover what he believed he was entitled to under the law; he must also show that he believed in the exist" ence of the facts alleged in his affidavit as grounds of attachment.</p>

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

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

<p>1. Practice: demurrer : bill of exceptions. When a demurrer to a petition is sustained, the plaintiff should have an opportunity to amend.. If he elects to stand on his petition final judgment should be entered for the defendant; and then, hut not till then, an appeal may he taken. No bill of exceptions is necessary in such case.</p> <p>2. Obligation to Deliver Goods to Bearer. An obligation to deliver goods to bearer need not specify the place of delivery. When the time arrives, if demand is made and refused, the promisor is in default, unless the demand is for delivery at an unreasonable place. If he has not been thus put in default, he may deliver to the promisee in person at any place which is reasonably convenient, and if the latter refuses or neglects to appoint a place, or purposely avoids receiving notice of a place, the forme^may appoint any place, with a reasonable regard to the interests of the other, and there make delivery.</p> <p>On demurrer to a petition on such an obligation, it will not be assumed that the plaintiff did not make proper demand.</p> <p>•3. -. A written promise “ to pay to the hearer the sum of 20,000 feet of good salable lumber for value received of him,” is a promissory note, possession of which is prima facie evidence of title.</p> <p>4. Promissory Note: pleading. A petition on a promissory note is defective if it fails to allege that the note has matured, and that the plaintiff is the owner or holder of it, or if it is payable to bearer that he is the bearer.</p>

<p>Absconding Husband : wife’s right to claim exemptions : domicil : attachment. A married man, apprehending arrest for crime, flee! from this State, leaving his wife behind. Shortly afterward she sold some of the household goods of the family, and taking the rest with her went to the house of her father-in-law in Kansas, where her husband soon joined her, and where they remained together till he was arrested and brought back to Missouri during the same year. She returned with him. In the meantime a creditor had attached certain goods of a household character belonging to him. There was no direct evidence that either husband or wife intended to make —ansas their home. Held, that the husband had absconded within the meaning of section 2348, Revised Statutes; that under that section his wife had the right to claim the attached property as exempt; that by leaving Missouri and going to Kansas, under the circumstances, she had not given up her domicil in Missouri, and so had not forfeited this right; and that the right was not barred by the mere fact that the attachment was based on an affidavit which alleged that her husband was about to move from the I State with intent to change his domicil.</p>

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

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

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

<p>Landlord and Tenant. A lease contained a clause authorizing the lessee to revoke it at any time by giving three months’ written notice. Held, that this did not prevent the parties from subsequently making a contract of revocation without such notice, and if one was made and consummated by the acceptance of a new tenant, an answer alleging the fact set up a good defense to an action on the-lease for rent accrued after the revocation.</p>

<p>Bill of Exceptions. To authorize the filing of a bill of exceptions at a term subsequent to that at which the trial is had, requires the assent of both the parties and of the court entered of record at the term of trial and judgment.</p>

— Hon. George W. Dunn, v Judge. This was a-suit commenced before a justice of the peace in Kearney township, Clay county, to recover damages for killing a cow. Sammons was issued, directed to the constable of Shoal township, in Clinton county, and was served on the defendant’s station agent at Cameron, in that county.

<p>Appeal from Johnson Circuit Court. — IIon. Noah M. G-ivan, Judge.</p>

<p>Antecedent Threats as Evidence. In an action for malicious destruction of personal property, declarations or threats of a general character made by the defendant in advance of the act charged and pointing to its commission, are competent evidence, and this without reference to their nearness or remoteness in point of time.</p>

<p>.Error to Jackson Circuit Court. — Hon. S. H. Woodson, Judge.</p>

<p>Criminal Law: “information.” The term “information,” as used in section 12, article 2 of the constitution of 1875, is to be understood in its common law sense, i. e., a criminal charge exhibited by the attorney general or other proper officer. The affidavit of a private individual is not an information, and will not, therefore, support a prosecution for crime.</p>

<p>Error to Jackson Special Laxo and Equity Coxirt. — TIon. R. E. Cowan, Judge.</p>

<p>1. Fraudulent Conveyances: change of possession. See tne doctrine stated post, p. 524.</p> <p>2. Admissions of Counsel. Where counsel at the trial admit as a fact a matter controverted in the pleadings, it is no error to refuse an instruction which assumes that that matter is still an open ques« tion.</p> <p>3 Res Judicata: verdict: attachment. A verdict and judgment upon a question of fact on the trial of a plea in abatement in attachment are conclusive of the same question upon a trial on the merits.</p>

<p>1. Fraudulent Conveyances: change of possession. To make a sale of personal property valid as against creditors of the vendor, the vendee must, within a reasonable time (regard being had to the situation of the property) take actual, open, notorious and unequivocal possession, and the change of possession must be continued. The mere marking of the property will be of no avail if there is no change of possession.</p> <p>2. -: -. When it appears from the undisputed facts that there is no such change of possession, the court should, as matter of law, declare the sale fraudulent.</p>

<p>Railroads: killing cattle: complaint: amendment. In an action against a railroad company for double damages for killing cattle, a complaint which fails to show that the injury occurred at a point on the road where: there .-should have been fences, but were none, or that it was occasioned by the failure to fence, is defective, but under the present statute, (R. S. 1879, § 3060,) may be amended after appeal to the circuit court.</p>

<p>1. Service of Process: officer’s return. The statute allows process to he served hy leaving a copy at the “ usual place of abode ” of the defendant. R. S., 2 3489. An officer returned that he had left the copy at the “ last usual place of abode ” of the defendant. Held, that this did not show a valid service.</p> <p>2. -: - : CANNOT BE AIDED BY EXTRINSIC EVIDENCE: ADMINISTRATION. In a proceeding in the probate court to classify a judgment, for the purpose of fixing the date of exhibition of the demand, the plaintiff offered in evidence the officer’s return upon the summons in the suit, and this being imperfect, he also offered extrinsic evidence in aid of the imperfections, in order to show that at the date given a valid service had in fact been made. Held, that this last evidence was not admissible.</p> <p>3. -: - : APPEARANCE OF ADMINISTRATOR: CLASSIFICATION OF judgments. Where an officer’s return upon a summons issued against an administrator failed to show a legal service, but the administrator nevertheless appeared to the action, and judgment went against him; Held, that by his appearance he waived the defect in the service so as to confer upon the court jurisdiction to render the judgment; but if (as in this case) the appearance was made more than one year after, the grant of letters to the administrator, the waiver did not, for the purpose of notice under the Administration Law, relate back so as to become operative from the date of the attempted service of the writ and let the demand into the fifth class.</p> <p>4. Administration : exhibition of demands. The bringing of a suit and service of summons within the first year after the grant of letters of administration, is a good exhibition of the demand, so as to entitle the judgment to be placed in the fifth class, but if the demand is founded upon a note, a copy of the note must be served with the summons.</p> <p>5. : . The fact that an administrator knew that he was sued or even that he saw a copy of the petition, is not to be considered in classifying a judgment against him.</p> <p>6. : : burden of proof. When a demand against the estate of a decedent is presented to the probate court for allowance after the lapse of the first year from the grant of letters, it will not be admitted into the fifth class unless the claimant proves affirmatively that he exhibited it to the administrator within the first year after publication of the notice of the granting of the letters.</p>

<p>Error to Adair Circuit Court. — IIon. Andrew Ellison, 3 udge.</p>

— Hon. S. A. Richardson, Judge. This suit was brought by Cosby Burén in Cctoher, 1865, against the defendants Eliza Bnren and Mary Berry to divest title out of defendants and vest it in plaintiff, and a judgment was rendered for plaintiff in 1866.

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

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

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

<p>1. Practice: what questions may be raised on appeal. In an action to recover the contract price of land, no question was made in the trial court as to the plaintiff’s title. Held, that none could be raised in this court. A case cannot be tried on one theory below and on an entirely different one here.</p> <p>2. Statute of Frauds: recovery op purchase price : destruction op improvements. Where a vendee of improved real estate takes possession under a contract for title, pays a small part of the purchase money and keeps possession until the improvements are destroyed by fire, he cannot resist an action for the balance of the purchase money with tender of a deed on the ground that he did not sign the contract.</p> <p>3. -: -: husband and wipe. In such a case the fact that the vendor is a married woman will be no bar to the enforcement of the contract; and this on the ground that though the contract was not originally enforceable against her, yet as she has voluntarily performed her part of it, there is no reason for exonerating the vendee.</p> <p>4. -: -: affirmance by married woman. Where a woman under coverture at the time of making an agreement with respect to her land afterward becomes discovert and, then affirms the contract by suing on it, she may maintain the action.</p>

<p>1. Railroads: lien eor materials. Where a part only of a railroad lies within this State, the lien for materials given by sections 3200 to 3216, Revised Statutes, is to he enforced against the whole of that part, and not against a section or portion of it only.</p> <p>2. -: -: pleading. Where it appeared from a petition to enforce a lien for materials against a railroad that the company was incorporated under the laws of another state, and its name indicated that its road ran between points outside of this State, and the petition further showed that the materials were furnished for the construction of that part of said road located in Jackson county, Missouri, and the prayer was for the enforcement of the lien against that part of the road ; Held, that the petition was not bad on demurrer, as seeking the enforcement of a lien against a part of a road in this State; the court would not assume that the company had any road in Missouri outside of Jackson county.</p>

<p>1. Replevin: general issue : evidence. In an action of replevin the defendant may show under the general issue that the goods in controversy are the property of a third person held by defendant as sheriff under a writ of attachment, and that the plaintiff’s claim is merely colorable.</p> <p>2. -: JUDGMENT FOB DEFENDANT FOB VALUE OF GOODS. In an action of replevin, if the plaintiff has obtained possession of the goods, the defendant must, in his answer, claim them and demand a return thereof; otherwise the court cannot, upon a finding in his favor, give judgment against the plaintiff for their value. R. S. 1879, § 8854.</p> <p>8. Practice: amendment of pleadings. On the trial of this case leave was given to amend the answer by inserting an averment conceded by the defendant to he material, but the amendment was not made on the spot, the trial proceeding on the understanding that it should be made afterward. It was not made, however, and on motion in arrest the plaintiff again urged the insufficiency of the answer and defendant then offered to make the amendment, but the trial court ruled that it was unnecessary, and refused to permit it to he made. Held, that the omitted averment was material and the amendment ought to have heen made, and this court would in furtherance of justice treat the case as if it had been made</p>

<p>Appeal from Cedar Circuit Court. — IIon. «J. D. Parkinson, Judge.</p>

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

<p>Appeal from Adair Circuit Court. — IIon. Andrew Ellison, Judge.</p>

— Hon. John T. Redd, Judge This was a suit brought by John Hendricks and Wm. P. Hendricks against James F. Woods and Wm. C. Smith, to enjoin the sale of certain land under a deed of trust given by the plaintiffs to secure a note for $530. Woods was trustee and Smith beneficiary in the deed of trust.

<p>1. Bigamy: pleading. An indictment for bigamy drawn in the language of the statute is sufficient.</p> <p>2. -: evidence. On a trial for bigamy, the State, to prove the first marriage, gave evidence that defendant and the woman lived together and held themselves out to the world as man and wife for years ; that they had a family of children living with them as their children ; that she had signed and acknowledged deeds as his wife; and that after the bigamous marriage she had sued for a divorce, he had answered and the court had granted her a divorce. Held, that this evidence was all competent.</p> <p>3. Parol Evidence is admissible to show that a paper offered as a certified copy of a decree is a forgery.</p> <p>4. Reasonable Doubt. In every criminal case the defendant is entitled to an instruction as to reasonable doubt; and it is error for the court to refuse it, no matter how clear the evidence may seem against him.</p>

<p>1. Municipal Corporation: execution of corporate powers pleading. When a complaint against a municipal corporation relates to an act which can only he lawfully done under an ordinance of the corporation, an averment in the petition that the act was done by the corporation implies that it was done in pursuance of an ordinance.</p> <p>2. -: -. Under the statute concerning Towns, (Wag. Stat., p. 1313, ?? 2, 7,) ihe power to open, grade and improve streets is conferred on the town hoard of trustees, and this power is to be exercised by ordinance and not otherwise. To hold a town liable therefore for the consequences of a change of grade, it is necessary to show that the grade was originally established by ordinance and the change was authorized by ordinance.</p> <p>3. -: proof of ordinance. Parol evidence is not admissible to show the existence of a town ordinance: the journal of proceedings of the board of trustees should he produced.</p> <p>4. -: liability for negligent work. Where the plaintiff claimed damages from a municipal corporation for flooding his cellar by negligently grading a street and building a culvert too small to carry off the water, and it did not appear but that the grading was done and the culvert built in accordance with an ordinance of the city; Held, that the plaintiff showed no right of recovery.</p> <p>5. -: change of grade : surface water. A city, in changing the grade of a street, is not bound to provide ditches or other conduits for the surface water flowing along the street, so as to prevent it from running into the cellar of an abutting proprietor. Especially is this the case when the water can find its way into the cellar only through a pipe laid into the street hy the proprietor without leave.</p> <p>6. Damages, Proximate and Eemote. The trial court instructed the jury that if they should find for the plaintiff they should allow him such damages as they found from the evidence were “the immediate and natural consequence of the neglect of defendant.” Held, error, because it left it to the jury to distinguish between proximate and remote damages.</p>

<p>Appeal from Andreio Circuit Court. — PIon. H. S. Eelley, Judge.</p>

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

<p>Appeal from Jackson Circuit Court. — Hon. E. M. Black, Judge.</p>

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

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

<p>1. Pleading: defect of parties. Where a defect of parties defendant is apparent on the face of the petition, (as where the suit is against heirs when it should be against the administrator,) advantage must be taken of it by demurrer. It will be deemed waived if defendants answer, even though they insist on the defect in their answer.</p> <p>2. Covenants : action against i-ieies. Where a breach of covenant occurs after the covenantor has died and his estate has been fully administered, the covenantee is not driven to a new administration and a suit against the administrator de bonis non, but may maintain an action against the heirs direct, and they will be liable to the extent of assets descended.</p> <p>8. Married Woman: judgment against: her remedy. This court will not reverse a judgment against a defendant on the ground that she is a married woman, when that fact appears only by the caption of the petition. The caption is mere descriptio personae. If she is in fact a married woman, she has her remedy by writ of error coram nobis.</p> <p>4. Covenants against Incumbrances : dower ; damages. An outstanding dower interest-existing at the date of a conveyance, constitutes a breach of a covenant “ to defend and warrant against all persons, claims, liens, titles and incumbrances.” The breach occurs as soon as the covenant is made; but until there is an actual loss or eviction, or its equivalent, the damages recoverable are only nominal. The covenant runs with the land, and where possession is given, enures to the benefit of a subsequent grantee.</p> <p>5- -:-• The liability of a covenantor to indemnify against a claim for dower must he determined by the law in force at the time the covenant was made. If no dower existed then, subsequent legislation creating it could not make him liable. But if there was a dower right, which only became consummate after a change in the law as to the mode of assignment, and it is assigned according to the new law, the covenantor is liable.</p> <p>¡6. -: -: dower act of 1825. By the act of 1825 it was provided that no widow should be entitled to dower until all her husband’s just debts were paid. While this was in force, a husband sold land with warranty but without his wife’s relinquishment of dower. It subsequently passed through the hands of several successive purchasers, each of whom covenanted against incumbrances. After the death of the husband his widow sued the last purchaser for dower and obtained judgment. He paid the judgment and fell back upon his grantor, who in turn paid and fell back upon the heirs of the first -purchaser. They defended upon the ground that their ancestor’s grantor (the husband of the doweress) had died insolvent, that the payment of any sum for dower would create a liability on the grantor’s covenant, which, by reason of the insolvency of his estate, they would be unable to enforce, and, therefore, under the act of 1825, above mentioned, the widow was not entitled to dower. No suit had been brought against the husband’s estate to establish a debt on account of this covenant. Held, that the defense was untenable. It. S. 1825, p. 332, § 1. .</p> <p>Y. -: eviction. To entitle the plaintiff to recover on a covenant against incumbrances, it is not necessary to show actual eviction. If the incumbrance (such as a dower right) has been established by legal proceedings, and he has paid the judgment, that is sufficient.</p> <p>8. -: judgment inter alios as evidence. Where a widow obtained judgment for her dower interest in land, and defendant paid the judgment and then sued and obtained judgment against his immediate grantor for the amount so paid, and the latter paid this judgment and in turn sued the heirs of his grantor on their ancestor’s covenant; Held, that the record of the judgment in favor of the widow, though res inter alios acta ior other purposes, was admissible for the purpose of showing the eviction.</p> <p>9. -: measure of damages: dower. The damages recoverable on a breach of covenant against incumbrances, are what the covenantee has paid to extinguish the incumbrance, if he has paid a rea/sonable and fair price, without reference to the value of the land or the purchase money. Hence, where the incumbrance was a dower right, and the plaintiff had paid it off, and the defendant, who had purchased from the husband of the doweress, showed that while he held the land there was no increase in. its value; Held, that the plaintiff was nevertheless not limited in his recovery to one-third of what defendant had paid for the land.</p> <p>10. -: liability of heirs on covenant of ancestor. Heirs are liable on the covenant of their ancestor only to the extent of assets received, and each for his pro rata share. Though there is no joint liability, they may be sued jointly. The judgment should ascertain and declare the liability of each separately.</p> <p>11. Married. Women: liability to action. Where the liability of a married woman arises on an obligation existing against her prior to coverture, she and her husband are properly joined as defendants in the action, and judgment should go against both.</p> <p>12. Dower. The age and health of a doweress are not to be taken into consideration in determining the annual value of her dower interest.</p> <p>13. Covenant: eviction : judgment fob. doweb. A judgment assessing the annual value of plaintiff’s dower in land and requiring the defendant to pay the same from year to year, together with payment as required, constitute such eviction as amounts to a breach of a covenant against incumbrances.</p>