Volume 80 — Missouri Reports

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

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

<p>Appeal from, Dallas Circuit Court. — Hon. R. W. Fyan, Judge.</p>

<p>Equity; void deed no cloud on title : change op venue. In an action against several defendants, originating in Hickory county, some of the defendants applied for a change of venue, and the court ordered a change, as to them, to Pettis county. The court in Pettis county afterward rendered judgment against one of the defendants who had not joined in the application for the change,' and who never appeared to the action and was served only by publication ; and his land was sold to satisfy the judgment. In a suit brought by this party to set aside the sheriff’s deed, these facts, among others, appearing in the petition; Held, that the petition was bad on demurrer; that the court in Pettis county obtained no jurisdiction of this party; that the judgment was, therefore, a nullity as against him,'and the deed was void, and so there was nothing upon which a court of equity could act.</p> <p>Sherwood, J., agreed that no title passed by the sheriff’s deed, . but held that it was a cloud upon the plaintiff’s title, which ought to be removed by a suitable decree.</p>

<p>1. Administrator’s Sale: error in deed : equity fob title. Where a purchaser of land at administrator’s sale pays the purchase money, and the same is applied in discharge of the debts of the decedent, but the land is not correctly described in the administrator’s deed, an assignee of the purchaser will he entitled to a decree in equity correcting the error and divesting the legal title to the land out of the heirs of the decedent and vesting it in him.</p> <p>2. Jury Trial. Where an answer in ejectment combined a legal with an equitable defense, Held, that it was error to refuse a jury trial upon the issues at law. But where the parties after such refusal submitted the case for trial to a counselor of the court, stipulating that his finding should be entered as the finding of the court; Held,, that this waived the right to have a jury.</p> <p>3. Justices of the Peace. A justice of the peace has no authority to do an official act beyond the limits of his own county. An application for a change of venue sworn to before a justice outside of his county is, therefore, not verified by affidavit.</p>

<p>Administration: final settlement set aside foe fbaud. If an administrator fails to account for interest collected on loans of money of the estate, and conceals from the court and the heirs the fact that he has collected such interest, the latter -will he entitled to have his final settlement set aside and an account taken.</p>

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

<p>Larceny: evidence of prisoner’s possession op burglars’ tools. On a trial for larceny from a dwelling-house, it appeared that defendant was arrested in the vicinity of the locus delicti immediately after the commission of the larceny, under suspicious circumstances tending to connect him with the crime. It also appeared that divers rooms, closets and drawers in the house were ransacked; but there was no evidence that burglars’ tools had been used to effect the entry or to open inner doors or drawers. Held, that evidence that the defendant, when arrested, had such tools in his possession was nevertheless admissible.</p>

<p>1. Deed of Trust: satisfaction bt stranger: subrogation. Where a land owner, to save his land, pays a note secured hy a deed of trust escecuted hy a former owner, and upon which he is not legally liable, the debt is not thereby extinguished; he is subrogated to the rights of the holder as against the maker.</p> <p>2. -. The holder of a secured note may sue on the note without enforcing his security.</p>

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

<p>1. Justices’ Courts: change of venue: judgment. A judgment entered by a justice of the peace after a change of venue has been applied for, in due form, is erroneous, but cannot be treated as a nullity in a collateral proceeding.</p> <p>2. Execution : Replevin of property levied on : second execution. An execution was levied on personal property of the defendant sufficient to satisfy it. Before sale the property was taken out of the hands of the officer by replevin at 1he suit of a person who claimed it by purchase from the defendant after the levy. Thereupon a second execution was issued and a levy and sale were made thereunder. In an action against the officer making them; Held, that such a purchaser could not maintain replevin, that the property therefore remained in custodia legis and operated sub modo as a satisfaction of the first execution, and that the issuing of the second and the levy and sale under it were therefore unlawful, and the officer was liable accordingly.</p>

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

— HoN. H. P. White, Judge. The instructions given to the jury were as follows: 1.

<p>1. The State Lunatic Asylum: pay patients : county patients. It is not essential to the validity of an order of the county court making a pay patient in the State Lunatic Asylum a county patient, that there should be an express finding that the patient has not sufficient estate to support him; this will he presumed. An order that a patient already in the asylum “ became a county patient at the lunatic asylum from this date,” without more, will hind the county for his support there.</p> <p>2. -; inquest of lunacy. The validity of such an order cannot be affected by proof of irregularities in the inquest of lunacy which . took place before he was sent to the asylum.</p> <p>3. -: insane poor criminals. A citizen of Cole county, confined in the State, Asylum as a county patient of that county, escaped and went to Moniteau county, and there committed a homicide, for which he was tried and acquitted on the ground of insanity, and in accordance with the statute was remanded by the circuit court to the custody of the sheriff, to be held at the expense of the proper county until the county court should cause him to he removed to the asylum. Held, that under the statute, (K. S. 1879, 4153, 4145, 4143,) this man remained the county patient of Cole county; that Cole county was the “proper county” to pay the expenses of his confinement, and that it was the duty of the county court of that county to cause him to be removed to the asylum.</p>

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

<p>Railroads: fences. A railroad company is not liable for injuries to stock occasioned by defects in a fence which, when erected, was sufficient, unless it knew of such defects, or might have known if it had used due care in maintaining such fence.</p>

<p>Instructions. Where there is no evidence upon which to base an instruction, it is properly refused.</p>

<p>1. Practice in the Supreme Court. Where the bill of exceptions preserves neither the motion for a new trial, nor that in arrest of judgment, the Supreme Court cannot take notice of the errors, if any, in the progress of the trial.</p> <p>2. An Indictment for obtaining money under false pretenses which set out such pretenses, negatived their truth and further alleged “all of which the defendant then and there well knew,” Held, after verdict, not to be obnoxious to the objection that the scienter was not sufficiently averred.</p> <p>3. An Indictment for obtaining money under false pretenses which alleged that defendant had falsely stated that he was about to ship, and had shipped, certain goods, and that upon the faith of the coming thereof he obtained the money in question, Held, not obnoxious to the objection that it set out the representation of a future event merely.</p>

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

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

<p>1. Homicide: evidence. On a trial for murder the State gave evidence that the defendant attempted to cut the deceased (his wife) with a knife during the night preceding the day of the homicide, and further showed, against the objection of defendant, that on the morning of the homicide the deceased exhibited a cut in her dress to a witness, and that the cut had the appearance of having been made with a knife. Held, that there was no error in admitting this latter evidence.</p> <p>2. Witness 2 evidence of conviction. When parol evidence is objected to, the record must be produced to prove the conviction of a witness. Another witness will not be allowed to testify that he saw the first in the penitentiary as a convict. This is true equally whether the testimony is offered to affect his competency or his credibility.</p> <p>3. Prisoner’s Absence from Motion for New Trial. Unless it appears from the record affirmatively that the prisoner was denied the right or privilege of being present when his motion for new trial was argued and determined, his absence will be no ground for reversal.</p>

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

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

<p> Original Mandamus. </p>

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

<p>1. Married Woman’s Personal Property. Irrespective of statute, courts of law as well as equity now recognize the doctrine that personalty may be the absolute prooerty of the wife under certain conditions.</p> <p>2. -: evidence. The separate title of the wife to personalty may be established by words, acts and conduct as well as by writing; and where the proof of her ownership is clear, the fact that her husband is indebted does not affect her right.</p> <p>3. -: wife’s possession and control. Long and uninterrupted control over personal property by the wife with the husband’s acquiescence is presumptive evidence of her ownership against the creditors of her husband, where such property has not been mingled with his nor used by him so as to create a credit based upon his apparent ownership.</p> <p>4. -: the act of 1875. The married woman’s act of 1875, (now 2 3296, R.. S. 1879,) in nowise interfered with the right of married women to acquire, or the manner in which they might acquire a separate estate in personalty by gift or purchase, as it previously existed. The act was designed to enlarge the operation of the right, to simplify the proof of the existence of the estate, and to afford protection especially against the effects of the husband’s reducing the property to possession, by providing that no such reduction should be effectual, unless evidenced by writing signed by her.</p> <p>5. -: purchases by married woman. The purchases of a married woman protected by that act are those made with her separate money or means, and those only.</p> <p>6. -: gifts to her:' mixed purchase and gift : conversion. The act jirotects gifts as well as purchases; and where a married woman, by her pleading claimed property by virtue both of gift and purchase, and there was evidence tending to show that she acquired it in consideration partly of love and affection and partly of money paid; Held, that it was error so to instruct the jury as to permit a verdict for her only in case they found the money paid was her separate means. She might fail to show this, and consequently so far as the acquisition was a purchase it might be without the pale of the act, and yet so far as it was a gift, be protected; and the possible difficulty of ascertaining the exact extent of her interest would not warrant the court in withholding the question from the jury. Held, also, that where a married woman had such an undivided interest, if a person claiming through her husband appropriated the property to his exclusive use and denied her right altogether, that was in law a conversion, and entitled lier to maintain an action against him, as in trover, for damages, to recover her interest.</p>

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

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

<p>1. Reviewable Errors. Where no exception to the action of the court in overruling a motion for new trial is saved in the bill of ex. ceptions,.this court is limited to an examination of such errors as may appear in the record proper.</p> <p>2. Railroads : killing live stock : sufficiency of complaint. In an action against a railroad company to recover for the killing of plaintiff’s mare, the complaint alleged that the killing occurred where the railroad “ was not fenced, and where there was no crossing on said railroad , * * that defendant had failed and neglected to maintain good and sufficient fences on the side of its road where said mare got on the track and was killed; and that by reason of the killing of said mare and by virtue of the 809th section of the Revised Statutes,” judgment for double damages was prayed. Held, that these allegations and the reference to the statute sufficiently implied that it was defendant’s duty to erect and maintain fences at the place, and that the mare got on the track in consequence of defendant’s failure to do this, and that the complaint was good after verdict.</p> <p>8. Pleading Legal Conclusions. An issue raised on the statement of a legal conclusion which presents the real point in controversy, will be regarded as sufficient after verdict.</p>

— Hon. F. P. Wright, Judge. Plaintiff deraigned title through a deed from Joel Wisely to his daughter, Martha Hensley, and her husband, George B. Hensley, executed June 8th, 1857; a bond for a deed dated August 17th, 1858, not acknowledged, from George B. Hensley, alone, to Thomas H. Starnes, conditioned upon payment of a note by Starnes for $150 due one year after said date and given for part of the purchase money; and a deed to plaintiff from Starnes’ administrator.

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

<p>Appeal from, Lewis Circuit Court. — HoN. John C. Anderson, Judge.</p>

— Hon. M. G. McGregor, Judge. There was no testimony introduced showing that the offense was committed in the county of Jasper or in the State of Missouri. The court is referred to a uniform line of decisions of this court.

<p>1. Intermarriage between Whites and Negroes: constitutional law. The act making intermarriage between white persons and negroes a felony, (E. S., § 1540,) is no violation of the 14th amendment of the Constitution of the United States.</p> <p>Neither is that clause of the act which provides that the jury trying a party accused of such a marriage, may determine the proportion of negro blood in either party to the marriage from the appearance of such person, a violation of that clause of section 53, article 4 of the constitution of Missouri, which provides that “ the general assembly shall not pass any local or special law regulating the practice or jurisdiction of or changing the rules of evidence in any judicial proceeding.”</p> <p>2. -: -. “The privileges and immunities of citizens of the United States” protected by the 14th amendment, are such as are secured to them by the Constitution of the United States and laws enacted in pursuance thereof, and the right of unrestricted marriage is not among these.</p>

<p>1. Purchase with Notice: agency. He who takes with notice of an equity, takes subject to the equity. Notice is not necessarily positive information brought directly home, but any fact that would put an ordinarily prudent man on inquiry, and a party will be as much bound by notice given to his agent as if it was given to himself personally ; and the fact that the agent may be unable to read and write will be immaterial.</p> <p>2- Married Woman: mistake in her deed cannot be reformed. As against a married woman a court of equity has no power to compel specific performance, to reform a deed, or to do anything else which will divest title to land out of her. Hence, where there were two deeds of trust executed by husband and wife, and both intended to cover the same land, but by mistake the earlier deed described a different tract, and because the holder of the later deed had notice of the mistake the court decreed that the first deed should be reformed and enforced as a first lien against the true' land; Held, that this decree was correct so far as it related to the husband’s interest, but erroneous so far as it related to the wife’s, and as to her interest the second deed must remain the first lien.</p>

<p>1. Public Porter: action on his bond. A person whose baggage has been lost through the negligence of a public porter licensed by the city as such, may maintain an action on a bond given by him to the city pursuant to charter and'ordinance for the faithful performance of the requirements of the ordinance and the safe delivery of all articles entrusted to his care.</p> <p>2. Agent’s Declarations and Verbal Acts. The declarations of an agent are admissible as evidence against his principal only when made while transacting the business of the principal and as a part of the transaction which is the subject of inquiry. .Hence, where the baggage-master of a railroad company, while away from the baggage-ro'om of the CQmpany and engaged in the transaction of his private business on his own premises, gave directions to a stranger with reference to the delivery of baggage; Held, that they were not binding on the company.</p>

<p>Appeal from Jasper Circuit Court. — HoN. M. G. McGregor, Judge.</p>

<p>1. Tax Deed: advekse possession. A tax deed made under the Back Tax Act of 1877 is of no validity as against one who has ac quired title to the land by possession and is in the actual occupation thereof, unless he is made a defendant in the tax suit.</p> <p>2. -: ejectment. Such a deed passes only the title of the defendant in the tax suit, and unless supplemented by evidence that he had some title will not authorize a recovery in ejectment.</p> <p>3. : tax books. The books in the collector’s office are not records within the rule in Vance v. Corrigan, 78 Mo. 94, so that if the name of the defendant in the tax suit appears on those books as owning the land, he is to be regarded as the record owner.</p>

<p>1. Landlord and Tenant: cse aito occupation. It is well settled law in this State that an action for use and occupation does not lie unless the relation of landlord and tenant, either express or implied, exists between the parties.</p> <p>2. Deed: consideeation clause : pabol evidence. Where the grantor in a deed cont.nued, after its execution and delivery, to use a part of the premises conveyed; Held, that parol evidence was admissible to show that this was part of the bargain; its effect was not to contradict the deed, but to explain the consideration clause, which is allowable.</p> <p>S. Implied promises. The law never raises a promise where the evidence shows the parties intended none.</p> <p>4. Deed: consideration clause : parol evidence. It is true that a reservation of an interest in real estate can only he made by deed; hut if the parties agree that the grantor may continue to use the premises and he does so, this may he shown by parol in bar of an action for use and occupation.</p> <p>5. Practice: the becobd. This court will not reverse a judgment for refusal of the trial court to admit evidence, if it cannot determine from the record whether the evidence is material or not. See Bank of Pleasant Hill v. Wills, 79 Mo. 275.</p>

<p>1. Railroads: killing stock: justice’s jubisbiction. In determining whether the justice of the peace, before whom a suit under the 43rd section of the Railroad Law has been brought, is of the township where the cattle were killed, this court is not confined to the plaintiff’s statement of his cause of action, but may look as well to the justice’s transcript.</p> <p>2. -: -: pleading. A complaint under the 43rd section of the Railroad Law omitted to aver that the cattle injured came upon the track at a point where it was not fenced, but did state that the injury was occasioned “ solely on account of the defendant’s failure to maintain fences.” Held, that this averment excluded every other implication than the one that the cattle came upon the track where it was not fenced, and sufficiently supplied the omission.</p> <p>3. Practice: bill op exceptions : instkuctioks. Where the petition sets forth a legal cause of action, and the evidence is not preserved in the bill of exceptions, but it is stated that the plaintiff introduced evidence tending to prove the allegations of the petition, and that defendant introduced no evidence, this court will presume that the evidence justified the trial court in refusing to take the' case from the jury. And where, in such a case, an instruction appears in the record which authorizes the jury to find for the plaintiff without requiring them to find some fact legally essential to recovery, this will not be reversible error. When testimony is undisputed, an instruction may properly assume its truth.</p>

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

<p>1. Transportation Contract: party plaintiff. Suit on a transportation contract is properly brought in the name of the consignor, whether he be the owner of the property or not.</p> <p>2. Negligence: evidence. In an action grounded on negligence, and alleging specific acts of negligence, evidence of other acts is inadmissible.</p> <p>3. Transportation Contract: action: negligence: evidence. In an action for a negligent breach of a contract to transport cattle, the petition alleged as acts of negligence on- the part of the railroad company, defendant: (1) That it had had the cattle loaded into an . unsafe car, so that they had to be taken out and loaded into another: (2) That the loading into this car had been negligently done. By the contract the plaintiff had expressly agreed to load and unload at his own risk. At the trial he gave evidence that the car into which the cattle were transferred was not provided with proper bedding. Held, that this evidence was incompetent, because : (1) If bedding the cattle was embraced in the term “ loading,” the plaintiff had assumed the risk of this; (2) If it was not, then the negligence shown did not fall within the allegations of the petition.</p>

<p>1. Druggist Selling Liquor: indictment not multifap.ious. An indictment in one count charged the defendant, a druggist, wiih urr lawfully selling intoxicating liquor in a quantity less than one gallon, to-wit: one gill of whisky for five cents, one gill of brandy for five cents, one gill of wine for five cents, one gill of gin for five cents, and also with allowing the liquor to be drunk on the premises. Held, not multifarious.</p> <p>2. -. An indictment under the act of 1877, (Sess. Acts 1877, p. 342, § 1,) against a druggist for unlawfully selling intoxicating liquor, is bad unless it expressly avers that it was not sold for medicinal purposes.</p> <p>3/ -: drinking on the peemises. The fact that liquor sold by a druggist is drunk by the purchaser on the premises, dóes not render \ the druggist liable to the penalties of .this act, unless it is shown that the drinking was done with his knowledge and consent.</p>

— Hon. Andrew Ellison, Judge. The demurrer to tire evidence should have been sustained. Burrows v. Erie B’y Go., 63 N. Y. 556; Bonney on Ely Carriers, p. 132-. Plaintiff’s third instruction as to the measure of damages is erroneous. Thompson on Car. of Pass., § 23, p. 5*70. The instructions taken as a whole are more liberal for defendant than authorized by law.

— Horn John T. Redd, Judge. Tbe list of taxable property is sufficient. R. S. of Ill. 1874, p. 870, § 78. Tbe assessment baying been made, tbe judgment rendered and tbe warrant being in tbe hands of tbe collector,- it was bis duty to execute it. He could not constitute himself a court of correction. Tbe laws of Illinois provide a remedy for tbe assessed. Feisenthal v. Johnson, 104 Ill. 21.

— Hon. W. C. Samuel, Special Judge. There being no statement of the cause of action in the record, it cannot he determined whether the justice had jurisdiction originally, or whether the circuit court acquired it on appeal. Thomason v. Lailway Co., 74 Mo. 560.

<p>Practice in the Supreme Court: bill of exceptions. This court will not review a case, the record of which contains no bill of exceptions preserving the evidence and motions.</p>

— Hon. S. H. Woodson, Judge. There was mistake on the part of respondent only in paying the taxes, and none on the part of appellant in receiving them. If appellant should re-pay the taxes, it cannot be placed in statu quo as to the taxes against the lots, and the judgment should be reversed. Jiska v. Ringold Co., 57 Iowa 630; Laws of Mo. 1875, § 27, p. 226; U. 8.

— Hon. J. L. Thomas Judge. The term “ cattle ” is generic and includes the statutory term “ neat cattle.” R. S., § 1307. A steer belongs to the class “ neat cattle,” and courts will take judicial notice of that fact. State Vo HambUton, 22 Mo! 452. It would have been sufficient to use the word “ steer,” without any other designation. State v„ Lange, 22 Tex. 591; State v. Abbott, 20 Vt. 537.

— Hon. E. J. Broaddus, Judge. The sale of the land under execution for costs, and the sheriff's deed read in evidence by defendant, is regular on its face and contains all the necessary recitals required by the statute, and it conveyed to defendant the legal title, and is' prior in date to that of plaintiff’. R. S. 1879, § 2892; Hunter v. Miller, 36 Mo. 147; Chouteau v. Nuckolls, 20 Mo. 442; Mellwrath v. Hollander, 73 Mo. 110, 111.

— Hon. G. I). Burgess, Judge. The verdict was against the weight of evidence, as the proof shows that the offense was only a trespass. Mrs. S. A. Duncan, for the State, testified that she was the owner of the mare, and that defendant came to the house, shot-off’ his revolver, made some threats, then went to the lot, got the mare and tied her up. Mrs. S. A. Duncan and family knew he had the mare, but said nothing to him about taking her.

it. Appeal from Hannibal Court of Common Pleas.-Hon. Theo. Brace, Judge. The pleadings forming the issue in garnishment are a part of the record. Union v. Dillon, 75 Mo. 380; Brake on Attachment, (1 Ed.) § 658 a. The instruction asked by appellant properly declared tbe law to be that tbe defendant could have tbe depositor impleaded as a party. R. S. 1879, § 254; Wimer v. Pritchett, 16 Mo. 252; Cohen v. St. Louis, etc., 11 Mo. 374. The deposit account in tbe name of “¶.

— Hon. H. S. Kelley, Judge. Nodaway county had not the right to sell the lands of appellants and make title thereto during the progress of the civil war, when appellants were residents within the confederate lines before and all the time during the war. JDe Jarnette v. De Giverville, 56 Mo. 451, dissenting opinion of Judge Napton; McMerty v. Morrison, 62 Mo. 140; Douth-itt v. Stinson, 68 Mo. 268; Martin v. Paxson, 66 Mo. 260. The sale was without notice and was void.

— Hon. M. G. McGregor, Judge. The finding and judgment of the court are unsupported by the law or the evidence. Baylan v. Victory, 40 Mo. 244; Madison, etc., Co. v. Colona, 86 Mo. 446. The materials not having been furnished under one contract, the lien was lost as to that furnished more than six months before commencement of lien proceedings.

— Hon. M. G. McGregor, Judge. No instruction having been asked or given, there is nothing for this court to review. Easley v. Elliott, 43 Mo. 289; Wilson v. Byles, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322. Attorney’s fees are properly allowable by way of damages upon the dissolution of an injunction. Hann. $ St. J. B. B. Co. v. Shipley, 1 Mo. App. 254; State Treasurer v. Bledsmire, 56 Mo. 226; Uhrig v. City of St. Louis, 47 Mo. 528.

— Hon. Geo. W. Dunn, Judge. The writ of attachment was void for want of an attachment bond. The action should have been brought against the owner of the property. The title to the goods had passed to Ayler, and the railroad company was his agent. Rickey v. Zappenfeldt, 64 Mo. 277; Comstock v. Affel-ter, 50 Mo. 411; Erwin v. Arthur, 61 Mo. 386; Magruder v. Gags, 33 Md. 344; Krudler v. Ellison, 47 N. Y. 36.

— Hon. F. M. Black Judge. Fraud, to have the effect to vitiate the assignment must exist at the time the assignment is made. Shep. Touch., 67 ; Bump Fraud. Conveyances, (3 Ed.) p. 359, and cases cited.

— Hon. J. H. Nicholson, Judge. Appellant’s refused instructions should have been given. Cecil v. Railroad Co., 47 Mo. 246, and eases cited; Luclde v. Railroad Co., 67 Mo. 245, and eases cited ;*' Shearman & Redfield on Neg., § 462; Nance v. Railroad Co* 79 Mo. 196.

— Hon. R. E. Cowan, Judge. The instructions for defendant were based upon issues outside of the pleadings. They should have been based upon the pleadings. Waldhier v. Railroad Go., 11 Mo. 514. The instructions given at the instance of the court did not tell the jury what an assignment was, and those given at the instance of the defendant were still more indefinite, and should not have been given. Gilson v. Railroad Co., 76 Mo. 282.

— Hon. Elijah Robinson, Judge. Plaintiff, respondent here, sued defendant for money collected on a note made payable to the order of plaintiff, and signed by one William IT. Woolwine as maker, wbicb money so collected plaintiff' averred had not been paid over to him. Defendant answered, setting up 1st, A general denial; 2nd, A special plea of res adjudicata.

— Host. H. S. Kelley, Judge. There was no such deliyery as would excuse the plaintiffs from furnishing the number of hogs sold at the time they were to be weighed, and the instructions of the court upon that point were erroneous. Williams v. Evans, 89 Mo. 202; Means v. Williamson, 87 Me. 556; Howdlett v. Toll-man, 14 Me. 400. As a general rule the seller is bound to deliver the exact quantity contracted for. If more or less is tendered, the buyer may refuse to accept any.

— Hon. Andrew Ellison, Judge. The bitters sold were “ medicated hitters containing alcohol,” and druggists were prohibited from selling them by section 1, page 166, Laws 1879.

— Hon. J. L. Morrison, Special Judge. Only such judgments and orders as are shown to have actually been made, can be supplied by nunc pro tunc entries. Fockman v. Meatt, 49 Mo. 348; Saxton v. Smith, 50 Mo. 490 ; Dunn v. Raily, 58 Mo. 136; Jones v. Dart, 60 Mo. 365 ; Wooldridge v. Quinn, 70 Mo. 371; Filhin v. Rhodes, 76 Mo. 645. If the court failed to make the order at the April term, 1871, it could not be made as of that date on the 27th of December, 1877.

— Hon. H. S. Kelley, Judge. The following were the declarations of law given at plaintiff’s instance and referred to in the opinion : 1. If it appear to the court sitting as a jury, from the evidence, that on or about the 20th day of June, 1878, Asher Goslin, on behalf of himself as president of the Northwest Missouri Normal School and his co-defendants, T. 0.

<p>Entry Kune Pro Tune : when made. The case of Ecmsbrmgh et al. v. Fudge et al., ante, p. 307, affirmed.</p>

— HoN. J. B. Gantt, Judge. The court erred in dismissing complainant’s bill. The evidence clearly shows the trade was fully consummated when Mitchell, the agent of Hayes, delivered the deed to Stoddart. But, if the trade was conditional, and Mitchell exceeded his authority in delivering the deed, Hayes ratified the act.

Louis Court of Appeals. The petition fails to state a cause of action. Harrison v. Railroad-Co., 74 Mo. 369; Gantrel v. JEgerton, 2 Com. Held: 63 Ill. 221; Beoria, etc., v. Champ, 75 Ill. 530; Burl v. Railroad Co., 72 Mo. 172; Shearman & Redfield on Neg., §. 49; Railroad Co. v. Smith, 46 Mich. 510; • Callahan v. Warne, 40 Mo. 13.6; Hestonville Bass R. R. Co. v. Connell, 88 Pa.

<p>1. Evidence: attachment writ : defects in. In a suit by attaching creditors to set aside a fraudulent mortgage, the writ of attachment sued out pendente lite in term time without order of court, and although not made returnable to any court, term or day, is admissible in evidence to show that plaintiffs were attaching creditors in the attachment suit; the latter suit having been commenced with personal service with which defendants were served.</p> <p>2. Lost Deposition: certified copy from supreme court. On the re-trial of a cause which had been reversed and remanded by the Supreme Court, a certified copy of a deposition made from the transcript of the record in the latter court, was properly admitted in evidence, it being shown that the original was lost, and also that it had been correctly copied and forwarded to the Supreme Court in the transcript, to which it belonged.</p>

— Hon. Theo. Brace, Judge. Tbe court, after bearing all of tbe testimony on botb sides, bad no right to direct a verdict for defendant. Woods v. Atlantic, 50 Mo. 112 ; Kelly v. Hannibal, 70 Mo. 604 Tbe trial court only bas tbe right to set aside tbe verdict and grant a new trial, and bas no right to dictate tbe verdict of tbe jury in advance. Lockwood v. Atlantic, 47 Mo. 50. Tbe case is distinguishable from that of Henze v. Railroad Co., 71 Mo. 636.

Appeal,from, Livingston Circuit Court, — Hon. E. J. Broaddus, Judge. The evidence shows conclusively that the property in dispute was that of plaintiff, Elizabeth Alexander, when the constable* seized it. Admitting that the property became the husband’s by right of marriage, yet he has the right, when not in fraud of creditors, to make a gift of any personal property to the wife. Richardson v. Lowry, 67 Mo. 417.

— Hon. Andrew Ellison, Judge. The petition does not allege that the assault was committed in a wanton, malicious, rude and aggravated manner, or dictated by á deliberate intention to vex, degrade and insult plaintiff. Green v. Craig, 47 Mo. 90. And there was no evidence that the assault was committed in such manner and with such intention, and the court should not •have instructed for exemplary damages, plaintiff' only being entitled to actual damages.

E..J. Broabdus, Judge. The law of this case was decided in appellant’s favor when the case was here before, (68 Mo. 242,) and it is now res adjudicata. Wells on Les Adjudicata, §§ 513, 617; Phe-lan v. San Francisco, 20 Cal. 45 ; Thompson v. Dill, 34 Ala. 534; Hawley v. Smith, 45 Ind. 183. The facts as developed on the re-trial, do not take the case out of the doctrine of res adjudicata.

— Hon. W. E. Geiser, Judge. Defendant was a simple debtor to Holman and could not be guilty of embezzlement, Be having the title to Holman’s money. Welch v. People, 17 Ill. 341; Stinson v. People, 43 Ill 397; Comm. v. Stearnes, 2 Mete. 347; Comm. v. Libby, 11 Mete. 64; People v. Howe, 2 N. Y. Sup. Ot. (N. S.) 383. The contract was founded upon an immoral transaction, hence there was no valid agency and no embezzlement.

— Hon. H. S. Kelley, Judge. The widow being the bead of the family, the domicile of the minor children must follow hers, and if she sell and convey the homestead and abandon it, the- children are bound. Howe v. Adams, 28 Vt. 545 ; Wright v. Dunning, 46 Ill. 271; Danton v. Woodbury, 24 Iowa 74; Orman v. Orman, 26 Iowa 861; Tadlock v. JEJccles, 20 Tex. 792; Brewer v. Wall, 28 Tex. 589; Thompson on Home., § 570.

<p>Appeal from Macon Circuit Court. — Hon. Andrew Ellison, Judge.</p> <p>The petition is fatally defective in having ho ad damnum clause. R. S. 1879, §§ 3511, 3512; Devean v. Skidmore, 19 Am. Law Reg. 784; Brownson v. Wallace, 4 Biatch. 465; Bumpass v.Webb, 3 Ala. 109. Plaintiff’s third instruction was erroneous. Bliss on Pleach, § 305; Dyer v. Morris, 4 Mo. 214; Gurry v. Collins, 37 Mo. 324; Bammell v. Otis, 60 Mo. 365; Hall v. Adkins, 59 Mo. 144. Plaintiff’’s fourth instruction was also misleading and improper. Berry v. Bryden, 7 Mo. 324: Birch v. Benton, 26 Mo. 153.</p> <p>There is no misjoinder of causes in the 'petition. It states hut a single cause of action. Bennington v. Meeks, 46 Mo. 217; Balsón v. See, 54 Mo. 291. If there was an improper joinder of several causes of action in the same count, the remedy was by motion to elect. Mulholland v. Bapp, 50 Mo. 42. A petition is not fatally defective because inartis-tieally drawn. State v. Carroll, 68 Mo. 156. All slanderous words uttered in the same conversation .are admissible in evidence. Bennington v. Meeks, 46 Mo. 217.' The petition sufficiently alleges that plaintiff’ was damaged. Bowie v. Kansas City, 51 Mo. 454; Yeates v. Beed,' 32 Am. Dec. 42.</p>

— Hon. G. H. Burckhartt, Judge. There were five different causes of action stated in the petition, and the verdict being only on one was bad.

Louis Court of Appeals. Tbe action was properly brought in the name of the appellants, as tax-payers of the city of St. Louis. Matthis v. Cameron, 62 Mo. 504; State v. Saline Go., 51 Mo. 350; Newmeyer v. Railroad Go., 51 Mo. 81.

— Hon. R. E. Cowan, Judge. The covenant against incumbrances was broken when plaintiffs executed the deed. Williamson v. Hall, 62 Mo. 405; Kellogg v. Malin, 50 Mo. 496. The dower interest outstanding when plaintiffs executed the deed, in the widow, of their grantor, was an incumbrance. Darrett v. Leper, 58 Mo. 551.

— Hon. G. D. Burgess, Judge. This was an action instituted before ajustice of the peace for the conversion of twelve sheep and their increase, and also for the conversion of twelve fleeces of wool. The trial in the circuit court resulted in a verdict and judgment for the defendant.

— Hon. ¡3. H. Woodson, Judge. The circuit court had jurisdiction of the suit to enforce the lien of the special tax bill, although the latter was for a less sum than $50. Cranston v. Union Trust Co., 75 Mo. 29; Hunt v. Hopkins, 66 Mo. 98; Smith v. Clark Co., 54 Mo. 58 ; Fickle v. Bailroad Co., 54 Mo. 225. Tbe circuit court bad no jurisdiction to enforce tbe special tax bill.

<p>Appeal from Franklin, Circuit Court. — Hon. A. J. Seay, Judge,</p> <p>Thai; a judgment obtained by fraud can be annulled, is an elementary rule of equity. Mayberry v. McClurg, 51 Mo. 256 ; Sweet v. Maupin, 65 Mo. 65; Ereeman on Judg., §§ 486, 489, 491; Glyce v. Anderson, 49 Mo. 37; Strong v. Wilkson, 14 Mo. 116; Thomasson v. Brown, 43 Ind. 203; 3 Redfield on "Wills, (3 Ed.) § 232; Wood v. Lee, 5 T. B. Mon. (Ky.) 50; Clark v. Shelton, 16 Ark. 474. The notice published by respondent of bis intention to make final settlement of Reicbard’s estate, was in law no notice, it having been published in the English language on the English side in a newspaper, -one side of which was printed in English and the other in German. R. S. 1879, §§ 1035, 238 ; Graham v. King, 50 Mo. 22; Hallett v. Reighters, 13 How. J?. 43 ; Boyland v. Boyland, 18 Ill. 552; Brownsfteld v. Dyer, 7 Bush (Ky.) 505; Gray v. Larimore, 2 Abb. (N. S.) 542. A final settlement is a judgment, and when rendered without notice is void. Murry v. Roberts, 48 Mo. 307; Rooch v. Barnes, 33 Mo. 319 ; Brashears v. Hieklin, 54 Mo. 102. The bar of the statute of limitations does not apply. Martin v. Knapp, 45 Mo. 48; Keeton v. Keeton, 20 Mo. 530; Foe v. Domec, 54 Mo. 119.</p> <p>The publication of the notice of final settlement was legal and sufficient. Graham v. King, 50 Mo. 23, is inapplicable. The finding of the probate court on the sufficiency of the publication of the notice is conclusive. Raley v. Guinn, 76 Mo. 263. The final settlement can be set aside only for fraud alleged and proved, and no fraud was proved. Lewis v. Williams. 54 Mo. 200; Sheets v. Kirtley, 62 Mo. 418-The remedy of appellant against respondent for failure to sell the real estate for payment of debts, was by action on the latter’s bond. R. S., § 290; Woodworth v. Woodworth, 70 Mo, 601; Cohen v. Adkins, 73 Mo. 163, Plaintiff’s action is barred by tbe statute of limitations. Rogers v. Brown, 61 Mo. 187; Mitchell v. Williams, 27 Mo. 399.</p>

<p>Appeal from Hannibal Court of Common Pleas. — HoN. Theo. Brace, Judge.</p> <p>Defendant’s refused instruction should have been given. Story on Sales, § 313, note 2; Little v. Page, 44 Mo. 412; S. W. F. $ C. P. $ Co. v. Stannard, 44 Mo. II; Griffin v. Pugh, 44 Mo. 326; Parmlee v. Catherwood, 86 Mo. 479; Boutwdl v. Warne, 62 Mo. 350; 2 Benjamin on Sales, pp. 986, 989; Pice vv Groffman, 56 Mo, 484,</p> <p>Defendant’s refused instruction number five, was but a repetition of number one given at bis instance, and was properly refused'. Palmer v. Railroad Co., 76 Mo. 217; Anthony v. Bartholow, 69 Mo. 186; State v. Miller, 67 Mo. 604; State v. King, 44 Mo. 238; Pond v. Wyman, 15 Mo. 175; Brotone v. Fire Ins. Co., 68 Mo. 133. Defendant’s said instruction was also erroneous in tbat it assumed tbat tbe conditions or terms of tbe alleged sale were not evidenced by writing executed, acknowledged and recorded by the vendee, Price, also tbat Lee was a bona fide purchaser without notice. Peck v. Ritchey, 66 Mo. 114; Wash. Mut., etc., v. St. Mary’s Seminary, 52 Mo. 480.</p>

<p>Railroads: complaint : keviewable ekroes. The case of Jackson v. Si. Louis, Iron Mountain & Southern R’y Co., ante, p. 147, affirmed.</p>

Louis Court of Appeals. Tbe foreclosure sale baying been made during tbe term of tbe county court, and not during that of tbe circuit court, was an irregular one. R. S. 1855, p. 1425, § 30 ; lb., p. 1090, § 13; lb., p. 746, § 45. Tbe sale being irregular, did not work a foreclosure of Bailey’s equity of redemption, but operated as an equitable assignment of tbe mortgage, and transferred to Gordon all tbe county’s rights.

— Hon. E. L. Edwards, Judge. A nonsuit could not be taken in a case once tried upon ' its merits — an appeal case. McKnight v. Taylor, 1 Mo. 282, and cases cited; R. S., § 3556. . No notice of appeal was given until within three days of the second term after it was taken, and the appellee had the right to have the judgment of the justice affirmed or the appeal dismissed. R. S., § 3057. Failure to give notice of the appeal amounts to a failure to prosecute. Wag.

Prohibition. The judgment of the court of.appeals was not superseded by the appeal. It was actually and fully executed before any appeal was taken. High Extra. Rem., § 766; Smith v. Allen, 2 E. D. Smith 259; Sherrill v. Campbell, 21 Wend. 287. An appeal accompanied by a bond operates a supersedeas only in the case in which it is pending. Welch v. Cook, 7 How. Pr. 287; Wilkes v. Henry, 4 Sandf. Ch. 395.

<p>D’Arcy Nagel for plaintiff' in error, cited 2 Parsons on Contracts, (6 Ed.) p. 499; Wescott v. Fargo, 61 N. Y. 543; Building Asso’n, v. Platt, 5 Duer (N. Y.) 675 ; Scher-merhorn v. Conner, 41 Mich. 374; Torrey v. Bank, 9 Paige 650; Michond v. Girod, 4 How. (U. S.) 556; 1 "White & Tudor L. C., pt. 1, 251; Cumberland, etc., v. Parish, 42 Ind.; Thornton v. Irwin, 43 Mo. 157; Hunter v. Hunter, 50 Mo. 445 ; Beeson v. Beeson, 9 Barr 279 ; Whetstone v. Shaw, 70 Mo. 575; Bliss Code Plead., p. 6.</p> <p>The bank was not bound by the contract to prosecute the sureties on Bernecker’s bond before resorting to Moll, because the contract does not say so, and the court will not enlarge the terms of the contract. It did not constitute the bank Moll’s agent or trustee for any purpose. Also cited Landrum v. Bank, 63 Mo. 48; Morman v. Talbut, 35 Mo. 392; Marshall v. Means, 12 Q-a. 61; Began v. Walker, 1 Wis. 631; Dickman v. Burgess, 20 Ill. 266 : Hoyt v. Coughlctn, 41 Ill. 131.</p>

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

<p>Appeal from Butler Circuit Court. — Hon. R. P. Owen, Judge.</p>

Habeas Corpus. This was a proceeding for criminal contempt, based on Revised Statutes, sections 1055,1056, and the court exceeded the limit of punishment in imposing a fine of $500. Phillips v.Welch, 11 Nev. 187; Howard v. Durand, 36 G-a. 346. The court exceeded its jurisdiction in committing petitioner until he paid $150 costs and expenses to the plaintiff; this was imprisonment for debt. 39 Mo. 286; 18 Mo. 484.

— Hon. Elijah Robinson, Judge. Plaintiff’s fourth instruction was erroneous in assuming the dam caused the overflow, and in directing the jury to assess damages for injury to the land itself, and also to its rental value.

Louis Court of Appeals, Tbe respondents, by pleading the contract between Maguire and St. Louis county, and setting it up as the' foundation of their right to recover herein, have in effect made themselves parties to it, and it is to be construed, for the purposes of this action, as if they had in effect executed it and bound themselves by its terms and provisions, which preclude them from maintaining this action.

— Hon. H. S. Kelley, Judge. The court exceeded its jurisdiction in allowing alimony to the wife when the decree for the divorce was in favor of the husband. E. S. 1879, §§ 2179, 2180, 2182, 2183; 1 Bishop on Marriage and Divorce, (6 Ed.) § 573; Nucross v. Rogers, 30 Vt. 588; Thorn v. Kuthan, 51 Vt. 520; Gildhall v. Raymond, 1 Strange 647; Williams v. Rrince, 3 Stro. 490 • 2 Bishop Marriage and Divorce, § 376Duval v. Duval, 13 Mass. 264; Dean v. Richmond, 5 Pick. 461.

Louis Court of Appeals. Plaintiff’s petition states substantially that she is the widow of Charles S. Rannells, deceased, and that during their marriage he was seized of certain real estate in the city of St. Louis, and the owner thereof in fee simple; that said real estate was conveyed to defendant’s grantor in October, 1867, by the guardian of Charles S. Rannells, the said Rannells being in March, 1866, declared to be a person of unsound mind; that plaintiff never…

— HoN. G. H. Burckhartt, Judge. A municipal corporation cannot, by simple order or resolution, placed upon the minute book of the clerk, do what its charter expressly says must be done by ordinance. 1 Billon Munic. Corp., p. 173, § 55 ; lb., 362, § 246; lb., 364, § 249 ; Saxton v. Beach, 50 Mo. 488; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316. The defendant could fix the salary of plaintiff by ordinance only.

— HoN. E. L. Edwards, Judge. There are mainly two points presented in this ease for adjudication in this court. 1st, Can a conveyance of a bare possibility or an expectancy be upheld and enforced in equity. 2nd, If such a contract can be upheld and enforced in equity, are there any circumstances of fraud surrounding this transaction of a character to vitiate the contract. In equity contracts relating to expectancies, have long been upheld.

— Hon. H. S. Kelley, Judge. A motion for a new trial was unnecessary in this, case-O'Connor v. Koch, 56 Mo. 253; Bowie v. Kansas City, 51 Mo. 454; Funkhouser v. Mallen, 62 Mo. 555; Butler v. Lato-son,- 72 Mo. 227. Although the right to appeal is given by statute, yet a review by certiorari also lies.

— Hon. E. L. Edwards, Judge. Affirmed. While an alien may take by descent from a citizen under Revised Statutes, section 825, an alien cannot take by descent from an alien, and thus create a perpetuity in aliens who owe no allegiance here. 2 Blackstone Com., 249, 274; 2 Kent, 53; R. S., § 5564; Gfreema v. Greema, 14 Mo. 526; Farrer v. Dean, 24 Mo. 16 ; Wacker v. Wacker, 26 Mo. 426; State v. Killian, 51 Mo. 80; Sullivan v. Burnett, 105 U. S. 334.

— HoN. James R. Shields, Special Judge, The verdict is against the evidence. To maintain the indictment, the prosecutrix must prove an attempt at penetration, or prove a struggle with the prisoner, showing from his acts or expressions that his intent was to have connection with her. 1 Arch. Crim. Pr., 1012. The verdict was contrary to the law, as declared by the court. The instructions should have been read to the jury by the court. R. S., § 1908.

— Hon. Geo. W. Dunn, Judge. The motion for a new trial should have been sustained. The objection to the non-joinder of Eield was taken at the proper time and in the proper manner. Little v. Harrington, 71 Mo. 390 ; Seip v. Tilghman, 28 Kas. 289.

<p>1. Condemnation of Property for Street Purposes: charter : jury. A jury of six men, freeholders of the City of Kansas, as provided for in the charter of said city, is a competent jury to try an appeal from the mayor to the circuit court, in a proceeding under the charter to condemn private property for the purposes of street extension.</p> <p>2. Condemnation Proceedings: evidence. On the trial of said appeal, the defendant offered evidence to show that the fact that the real estate sought to he condemned was located, and had been located for many years, in the line of the street proposed to be extended, and between the east and west parts of said street already opened, diminished its value, which evidence the court excluded; Held, error.</p> <p>3. -: -: instructions. The city charter provided, in reference to proceedings to condemn property for street purposes, that “parties interested may submit proof to the jury, and the latter shall examine, personally, the property to be taken and assessed Held, that an instruction was erroneous which told the jury that in assessing the value of the property, they might wholly disregard the evidence offered, and make their finding from their own observation alone.</p> <p>4. Appeal: agreed case. The appeals in this proceeding Held, to be properly in the Supreme Court, under rule 20 thereof, relating to agreed cases.</p>

No notice of the appeal having been given, and the appel-lee not having entered his appearance on or before the second day of the first term of the circuit court, (R. S., § 3056,) the case should have been continued as a matter of course. It could not be legally tried without defendant’s consent, and the judgment must be reversed. Blake v. Downey, 51 Mo. 437; Nay v. Railroad Co., 51 Mo. 575 ; Chrismer v. Railroad Co., 54 Mo. 152; Transier v. Railroad Co., 54 Mo. 189.

— Hon. Noah M. Givan, Judge. Tbe note and deed of trust were fraudulent and void. because given for a sum largely in excess of tire amount actually clue from Hoi well to respondent, and for the purpose of hindering and delaying creditors. Kerr on Fraud, 196, note, 192,195 ; Bump on Fraud.

Louis Court of Appeals. A guardian of an insane person has power to continue tbe business of bis ward, if sucb continuance is essential for tbe preservation and protection of the estate of tbe insane person. 1 Wag. Stat., § 40, p.'716; lb., § 19, p. 714; Reed v. Wilson, 18 Mo. 28.

— Hon. R. P. Owen, Judge. Plaintiff’s statement does not state a cause of action. Bates v. Railroad Co., 74 Mo. 60, and cases cited; Asher v. Railroad Co., 79 Mo. 432. The instruction given on behalf of plaintiff* was erroneous. Mumpower v. Railroad Co., 59 Mo. 245. Defendant’s demurrer to the evidence should have been sustained. Davis v. Railroad Co., 65 Mo. 441. The statement is sufficient. Jackson v. Railroad Co., ante, p. 147.

Louis Court of Appeals. A publication affecting one in his office or trade, if false, is libelous per se, and special damages need not be alleged or proved. Kimball v. Fennander, 21 Wis. 834 ; Pollard r. Lyon, 91 U. S. 226 : Weiss v. Whitman, 28 Mich 366; Butler v. Homes, 7 Cal. 87; Wilson v. Fitch, 41 Cal. 386; White v. Nichols, 3 How. (U. S.) 285 ; Orr v. Scofield,.56 Me. 487.

— Hon. S. A. Richardson, Judge. This was an appeal from a justice of the peace in Gentry county, to the circuit court. The amount of plaintiff’s claim was $85.

— Hon. S. H. WoodsoN, Judge. Plaintiff’s first instruction should not have been given, there being no evidence in the case that the notes of Case and Balis were taken as security. The second -instruction is absolutely without evidence to support it. There is nothing in the record to show tha^ Morse ever made any representations as to the pecuniary circumstances of Case or Balis. Plaintiff’s third instruction is erroneous for several reasons.

— Hon. E. J. Broaddus, Judge. Every prima facie case is founded on a presumption of law made by the court, and never on inference made by the jury as a deduction from other facts. Best on Ev., (Cham-berlayne’s Ed.) § 304; Stephen’s Ev., (May’s Ed.) 36 ; State v. Kelly, 73 Mo. 608; Garvin v. Williams, 44 Mo. 465 ; 50 Mo. 206.

— HoN. Wm. H. Sherman, Judge. The plaintiff cannot maintain this suit upon tbe contract set out in tbe petition, in bis representative capacity as administrator of Moss, and any defense can be made by defendant which could be made against Mosman, were he suing as an individual. Harney v. Dutoher, 15 Mo. 89, and cases there cited. The administrator cannot charge the estate with any indebtedness. Taylor v. Wyatt, 26 Conn. 184; Tlalloeh v. Smith, 16 Reporter 778.

— Hon. Andrew Ellison, Judge. The demurrer to the second count of defendant’s answer, was improperly sustained by tlie court. The facts set up in said count were sufficient to authorize the interference of a court of equity. A trustee should adopt all reasonable means to render the sale beneficial to the debtor. Stoffel v. Schrodey, 62 Mo, 147; Goode v. Comfort, 39 Mo. 318.

— Hon. G. H. Burckhartt, Judge. The court erred in overruling the demurrer and the motion in arrest, it being admitted that the possession of the mules was at no time in defendant in Randolph county. The grand jury had no right to inquire into the offense charged. Const, of Mo., art. 2, § 22 ; R. S. 1879, §§ 1689, 1968; State v. Burns, 48 Mo. 438; State v. Meyer, 64 Mo. 190 ; 15 Ind. 378 ; Kx parte Slater, 72 Mo. 102; 1 Bishop Crim. Proe., §§ 49, 50-; 4 Bl.

— Hon. G. D. Burgess, Judge. The statement does not set out facts sufficient to constitute a cause of action, and will not support the judgment. Lowland v. Railroad Co., 73 Mo. 619 ; Schulte v. Railroad Co., 76 Mo. 820. The modification by the court of defendant’s third instruction, was wrong. 'Clardy v. Railroad Co., 73 Mo. 576. The justice had no jurisdiction.

— HoN. H. S. Kelley, Judge. Revised Statutes, section 5438, as amended by Laws of 1883, page 87, means that, a dramshop petition shall be signed by two-thirds of the assessed tax-paying citizens of the city.

Mandamus. The application of the act of 1883 to this case, would not make it retrospective in its operation. Criminal costs are to be taxed and paid under the law in force when the bill is certified and as of that date. State ex rel. Brown v. Holladay, 70 Mo. 137; Lucas Bank v. King, 73 Mo. 590. The act of the legislature of March 8th, 1883, amending Eevised Statutes 1879, section 2093, should not be construed retrospectively. Cooley’s Const.

Noah M. Givan, Judge. Tbe court committed error in refusing to declare tbe law as asked by plaintiff. Plaintiff’s instructions one and four ask the court to order tbe jury to find for tbe plaintiff for tbe full amount of all the notes, without any proof of the false representations, and without a statement of demand, notice and failure to pay, or any proof that defendants are in any way held as indorsers on the Sellers’ notes.

— Hon. J. P. Strother, Judge. The plaintiff’s statement was insufficient. It does not directly, or by implication, state tbat the alleged failure to fence in any wise occasioned the injury sued for. Hudgens v. H. £ St. J. P. R. Co., 79 Mo. 418; King v. C., R. 1. § P. R. R. Co., 79 Mo. 328; Luckie v. Railroad Co., 67 Mo. 245; Cunningham v. Railroad Co., 70 Mo. 202; Bates v. Railroad Co., 74 Mo. 60.

Louis Court of Appeals. The action of tlie trial court in overruling tlie plaintiffs’ challenges of the jurors Small and Hewlett for cause, was not erroneous. They were not disqualified as jurors under the statute of the State. Their answers to the questions asked them, were not such as to show that it would be impossible for them to try the case impartially. R. S., p. 469, §§ 2795, 2796; Fckert v. St. Louis Transfer Go., 2 Mo.

— HoN. James L. Fox, Judge. The justice had jurisdiction of the subject matter of the suit. R. S. 1879, § 2835. And the action of the defendant in subpoenaing witnesses and in filing a motion to rule the plaintiff to give security for costs, constituted such an appearance in the cause, as to give jurisdiction of his person.

— HoN. J. R. Woodside, Judge. It has been held by this court that to establish 'an es-toppel in pais, there must be, 1st, An admission inconsistent with the evidence proposed to he given, or the claim offered to be set up ; 2nd, Action by the other party upon such admission; 3rd, An injury to bim by allowing bis admission to be disproved. Taylor v. Zepp, 14 Mo. 482; Spur-lock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63.

— HoN. J. D. Foster, Judge. No information signed by the prosecuting attorney having been filed against the defendant, the judgment should be reversed. State v. Huddleston, 75 Mo. 667; State v. Sebecca, 76 Mo. 55. TJnder the constitution, article 2, section 12, it was necessary that the information should be one sufficient at common law. Ex parte Slater, 72 Mo. 102; State ex rel. v. Leffingwell, 54 Mo. 458, 471; Ex parte Be-thurum, 66 Mo. 545; Cooley Const.

— Hon. D. L. Hawkins, Judge. The evidence shows that appellants took the mortgage in good faith, for the purpose of securing a just debt. The law declared by.this court in Wangler v. Franklin, 70 Mo. 659, and Robbins v. Phillips, 68 Mo. 100, was radically changed by act of the legislature of April 2nd, 1877. R. S., § 2507.

—Hon. C. Boardman, Special Judge. Reversed. As the plaintiff (respondent here) sues upon an account and seeks to recover as upon a quantum meruit, for his legal services rendered in the suits mentioned in his petition, the court erred in permitting respondent to introduce evidence tending to show a special contract fixing his compensation for said services in the two suits against the sheriffs of Linn county, for the following reasons: 1.

— Hon. R. E. Cowan, Judge. Ten days only are allowed for a resident of tbe county to appeal from a justice of tbe peace. 2 Wag. Stat.; 847. Tbe service was on tbe railroad’s chief officer, at his office in Jackson county, and was sufficient. 1 Wag. Stat., p. 294, §§ 26, 28; Slavens v. Railroad Co., 51 Mo. 308; Dixon v. Railroad Co., 31 Mo. 409; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Laws 1873, p. 58; R. S. 1879, § 2521.

— Trial before Hon. II. S. Kelley, Judge of the Twenty-ninth Judicial Circuit. The petition does not state facts sufficient to constitute a cause of action. Lowland v. Railroad Co., 76 Mo. 619; Railroad Co. v. Bishop), 29 Ind. 202; Railroad Go. v. Robinson, 35 Ind. 380 ; Cunningham v. Railroad Co., 70 Mo. 202; Field v. Railroad Co., 76 Mo. 614;' Gautlet v. Fgerton, L. R., 2 C. P. 371.

— Hon. Noah M. Givan, Judge. i The court erred in admitting the notes as evidence, unless sections 205, 206, Revised Statutes, gave a right of action. If right of action at time of presentation was given by these sections, or either of them, such right existed when letters were granted, and was barred by special limitation of two years. R. S., § 189. ' There is no exception mentioned in this special statute of limitations that admits these demands.

— Hon. E. P. Wright, Judge. We suppose the demurrer was sustained on the ground that plaintiff might have, in the former suit, set up the same matters herein sued for and recovered for them, and that having failed to do so, he is now estopped from suing in this action. This position is not correct. Under the practice before the code he could not have set it up or recovered for the same in that action. Neither could he under the earlier cases in this State under the code.

— HoN. G-. H. Burckhartt, Judge. This suit is on a bond given by Burk to - James May and James Doolin, and it can be maintained as a personal action between these parties, and all that part of the petition about being administrators’ acts may be treated as surplus-age. Thomas v. Relfe, 9 Mo. 877. The question of the right of plaintiffs to maintain this action was not raised in the lower court, and it is too late to raise it in this court.

— Hon. J. E. Ryland, Judge. Tbe discretion given the trial court by section 23 of article 2 of the constitution, to discharge a jury in a criminal cause “ if the jury * * fail to render a verdict,” is a legal discretion, and must amount to a legal necessity, and the record should show that the circumstances under which the jury is discharged, are such as from which it appears impossible that a verdict can be had in a reasonable time, and without forcing a conclusion by…