Volume 81 — Missouri Reports

<p>Office, Trial of Eight to: mandamus: quowabeanto. The right to an office cannot be determined in a proceeding by mandamus to compel the payment of salary to a person claiming such offioe, or in a proceeding to compel the performance of official duty alleged to be obligatory, by reason of the official character of the claimant. In such cases he who has the better prima fade right must be recognized until, by contesting the election, or by proceedings in quo warranto, the rights of the parties are finally determined.</p> <p>2. Contested Elections: trial oh: constitution. The authority which city councils may have possessed to hear and determine a contested election for city officers, was abrogated by section 9, article 8 of the constitution, which provides that “the trial and determination of contested elections of all public officers, whether State, judicial, municipal or local, except governor and lieutenant-governor, shall bo by the courts of law or one or more of the judges thereof.”</p>

Louis Court of Appeals. There was not, within the meaning of the mortgage, an unreasonable depreciation in the value of the property mortgaged. The terms of the mortgage are unambiguous, and. not capable of the construction given it by the court of appeals, and the recourse of the latter court to parol evidence to explain it, was in violation of the rule of law, that in no case can extraneous evidence cause a contract to be construed into what its language does not import.

—TIon.Noah M. Givan, Judge. The deeds from Cockrell to Tapscott, although absolute in form, were in their nature mortgages to secure antecedent indebtedness. ' Oneille v. Capelle, 62 Mo. 202 ; lb., 235 ; Burrill on Assg., (Ed. 1877) § 4, p. 8, and authorities there cited. Mortgagees under mortgages, given simply to secure the payment of antecedent debts, are not bona fide purchasers for a valuable consideration.

<p>Contract: construction: custom. Where contractors undertook to do the masonry of a building according to plans and specifications for the same, for the sum of $2 in addition to the price of rock per perch, and the evidence showed a custom prevailing, in ascertaining how muehVmasonry had been completed so as to pay the demand of a mason for laying rock in a wall, to count corners twice, each corner constituting a part of two intersecting walls, also all openings for doors and windows as if they were solid matter; Held, the contractors were entitled, under their contract, to a measurement in accordance with said custom.</p>

—Hon. E. J. Broaddus, Judge. The statement upon wbicb the cause of action was tried below, was fatally defective under sections 809 or 2124 of tbe statute, or at common law.

—ITon. Noah M. Givan, Judge. The judgment should be corrected in accordance with what the docket and minutes show. The language is unequivocal, and is absolutely controlling. What may be in the breast of the court, even in regard to the matter, cannot avail, inasmuch as the motion to correct the entry was made after the close of the term at which the cause was continued.

—Hon. Noah M. Qivan, Judge. Tbe proceedings by attachment were void because the affidavit did not show on its face the specified requirements of the statute. It was made by one Conklin, and did not purport to be on behalf of the plaintiff. Wiley v. Aultman, 58 Wis. 560; McCabe v. Sumner, 40 Wis. 386; Crane v. Willey, 14 Wis. 658; Miller v. Railroad Go., 17 N. W. Rep. 188; Manley v. Staley, 10 Kas. 88; Pool v. Webster, 8 Mot.

—Hon. W. E. Geiger, Judge. This court will not reverse a judgment because it is against the evidence, unless there is a total absence of evidence, or it fails so completely to support the verdict that the necessary inference is, that the jury aetedfrom prejudice or partiality. State v. Mustek, 71 Mo. 401; State v. Warner, 74 Mo. 83. The court properly instructed the jury as to the offense charged in the indictment. 1 Wag. Stat., § 32, p. 449.

—Hon. J. M. Davis, Judge. The court erred in rendering judgment against appellants for the full amount of the bond—$3,000—the amount due upon the deed of trust at the date of sale being only $500, with some interest. The true measure of damages was the amount plaintiff would have been compelled to pay to extinguish the incumbrance. Prescott v. Freeman, 3 Am. Dec. 246; Funk v. Voneida, 14 Am. Dec. 617; Kellogg v. Martin, 62 Mo 429.

—IIon. E. J. Broaddus, Judge. There was no consideration for the note in suit. The judgment of the court is against the law and the evidence, and. should be reversed.

Clair Circuit Court. The third assignment of the demurrer, that the account is not sufficiently explicit, is not an objection well taken by demurrer. The defendant should, by motion, have pointed out wherein the account is not sufficiently definite and certain. R. S. 1879, § 3529; State ex rel. v. Sherman, 42 Mo. 210 ; Bliss on Code Plead., § 425. There is a positive averment that a change of venue was taken from St. Clair to Henry county.

—S. P. Huston, Esq., Special Judge. Appellant was appointed administrator of ¥m. II. Elliott on January 23rd, 1878, and made Ms first annual settlement February 18th, 1879, and the second February 12th, 1880, being the regular February term in each of said years. Respondents filed their petition in the office of the judge of the probate court, on April 15th, 1880, in vacation.

<p>1. Criminal Law: indictment. An indictment which charges an offense in the language of the statute creating it, is sufficient.</p> <p>2. Practice, Criminal, evidence: demurrer. In a prosecution under Revised Statutes 1879, section 5472, it devolves upon the State to show that the quantity of liquor sold is less than one gallon, and where it fails to do so, a demurrer should be sustained at the close of the evidence for the State; but, if the defendant, in his own testimony, supplies this defect, he will not be entitled to a reversal for the error of the court in refusing his demurrer to the evidence.</p> <p>3. -: druggist: physician. Under Revised Statutes 1879, section 5474, a druggist who is, also, a regularly registered physician, cannot furnish the prescription upon which he makes a sale of intoxicating liquor.</p>

—IIon. J. P. Strotiier, Judge, The court erred in giving the fourth instruction for defendant. The burden of proof was on plaintiff to show that his property was destroyed by reason of the fire, but the defendant was bound to assume the burden of proof that the act of firing was prudent.

—Hon. J. D. Foster, Judge. There was no evidence to show that Sada Ross was of unsound mind, or that defendant was guilty of any fraud or exercised any undue influence over her at the time of the execution of the deed. The evidence offered by plaintiffs to show that the deed was intended as a mortgage, was inadmissible, because there was no allegation in the petition to authorize it.

Louis Court of Appeals. . The petition states a cause of action. Wagner’s'Statutes, section 43, page 777, refers generally to all violations of the act. State v. Matthews, 44 Mo. 523; State v. Stewart, 47 Mo. 382.

Frror to Henry Circuit Court.—Hon. E. P. Wright, Judge. - The court erred in refusing to grant a change of venue upon plaintiff’s application. It was filed on the first day of the first term at which the cause could he tried, and was refused upon the sole ground that the court was of opinion that it did not make out a prima facie case. The affidavit was sufficient and made out a prima fade case. Corpenny v. Sedalia, 57 Mo. 88; Frddgh v. State, 8 Mo. 606.

—Hon. W. E. Geiger, Judge. It was not necessary that the indictment state how the defendants became county court judges, nor that they had authority to grant dramshop license. 2 Chitty Grim. Law, top pp. 181,254,255; 2 Wharton Prec. Ind. and Pleas, forms 994, 905, 906. It was only necessary to charge that the act was unlawfully done.

—Hon. W. E. Geiger, Judge. The indictment was signed “ S. H. Boyd, Circuit Attorney.” Defendant contends that the clerical mistake, “ circuit attorney,” for “ prosecuting attorney,” invalidates the indictment. It was not a defect which tended to the prejudice of the substantial rights of the defendant, and the objection was properly disregarded. R. S. 1879, § 1821. The prosecuting attorney’s signature, without his official title, would have been sufficient. 1 Bishop .Crirn.

Louis Court of Appeals. The legal proposition to be discussed on this record is, that the circuit court and court of appeals misconstrued and misunderstood the legal effect of the subrogation clause of the policy, so-called, to the injury of the appellant.

—IIon. J. D. Parkinson, Judge. The information states no cause of action. It does not allege that defendant entered the inclosure without leave of the owner thereof, and that is the very essence of the offense. The terms willfully and maliciously used in the information, apply to a different clause and different offense, and cannot be construed to supply by implication the allegation left out of this information. Moreover, watermelons are not included in the act.

—Hon. Noah M. G-ivan, Judge Tbe record, as we conceive, presents but one point in tbe case, to-wit: Can one tenant in common of personal property maintain an action of replevin against bis eg-. owner, upon the sole ground that the latter borrowed thé property from him ?

—Hon. 0. G. Burton, Judge. Tlic court erred in admitting evidence of other offenses committed by defendant. The judgment should also be reversed on account of improper remarks made by the prosecuting attorney. The money was sufficiently described as “ $500 of the lawful money of the United States of the value of $500.” R. S. 1879, § 1817; State v. Moore, 66 Mo. 372.

—IIon. J. B. Gantt, J udge. The appellee, Illeaver Clymer, being a stranger to the proceedings in the suit, was not entitled to appear and file his motion to quash the execution. The law authorizing a party to file a motion to quash an execution in open court, does not apply to a stranger to the record. Mske v. Lamoroux, 48 Mo. 523. The court erred in admitting the testimony of Hallam and Collins.

—Hon. M. G. McGregor, Judge. The fee to the streets in the city of Joplin, is in the town. Respondent cannot maintain ejectment against defendant for that portion of the streets occupied by its road; yet the lower court has rendered judgment and ousted the defendant from the streets and alleys.

—Hon. R. E. Cowan, Judge. There ivas no acceptance or use of respondents’ work, within any reasonable impoi't of those words. Respondents were not acting in the interest of the board of trade. They were acting for Mr. Alexander. But even if the acceptance and use, mentioned in the first declaration, constitute one element of ratification, its indispensable accompaniment, full knowledge of all the material facts, is wholly wanting.

—Non. Noah M. Gtvan, Judge. .The court erred in refusing the declarations of law asked by the defendants. The marriage of Eliza Childress to Payne was illegal and void, and rendered her liable to prosecution for bigamy. R. S., §§ 1533, 1534. The marriage of plaintiffs being void, their living and cohabiting with each other was adulterous. R. S., § 2204. Adultery is the main offense which causes the forfeiture of dower.

—Hon. J. M. Davis, Judge. There can bo no seduction, unless the promise of marriage was made at the time, or the existing promise then uiged as the woman’s protection. Wilson v. State, 58 Ga. 328; L'spy v. Jones, 1 Ala. 454. There was no corroboration of the prosecuting witness. The court erred in excluding testimony offered to show that the prosecuting witness had had illicit intercourse with others than defendant before the promise of marriage.

Clair Circuit Court.—Hon. C. Q-. Burton, Judge. The bond of defendant substantially complied with all the requirements of the statute. Gary v. State, 4 Tex. L. Jour. 487. The new bond should have been filed. R. S. 1879, § 8058; Matthews v. Glass, 22 Mo. 160; State v. Richards, 77 Ind. 101. An appeal bond on an appeal from a justice, not taken in time, is void. Moore v. Damon, 4 Mo. App. 111. When a court has no jurisdiction, no judgment for costs can be recovered.

—Hon. R. E. Cowan, J udge. Plaintiff was the only minor child and only representative of the deceased at the time of her death. He labored under no disabilities whatever,' but was at the death of his mother vested instanter with an indefeasible right of action, and nothing can defeat this right but the restriction imposed upon it by section 2125, to-wit, one year. Shepard v. Railroad Co., 3 Mo. App. 550; McNamara v. Slavens, 76 Mo. 331.

—Hon. J. P. Strother, Judge. The tax deed offered in evidence sufficiently conforms to the requirements of the statute. 2 Wag. Stat., p. 1205, § 217. It is no objection that the judgment for the sale of the land was rendered at an adjourned term of the county court. The statute provides for this. 2 Wag. Stat, p. 1196, § 183. This case is governed by section 184, 2 Wagner's Statutes, 1196, and not by section 188.

—IIon. J. B. Gantt, Judge. The court erred in overruling defendant’s application for a continuance. The witness, Peerey, had been duly subpoenaed, but was injured and taken sick but a few days before the trial, and could not attend, and the application being made at tbe term at which the indictment was found, the court ought to have given the defendant the benefit of the personal presence of the witness before the jury.

—Hon. S. H. Woodson, Judge. The court erred in overruling the demurrer. The second count of the answer is insufficient, for the following reasons : 1. Because it does not allege that the note was ever paid, but does state in substance, that it was not. 2. The deed of separation, upon which this defense was based, was absolutely void as to all parties and for all purposes, because contrary to public policy.

—11 on. 0. G-. Burton, Judge. The rule is well settled that the deed of a minor passes the estate, subject, however, to be divested by avoiding the conveyance on the infant attaining his majority. Baker v. Bennett, 54 Mo. 82, and cases there cited.

—Hon. Jno. C. Howell, Judge. There was a clear failure of proof in this action. The evidence showed that fences and gates had been erected, and that the gate through which the animals got upon defendant’s track was closed and securely fastened by plaintiff himself, between sundown and dark on the evening preceding the night of the accident. Harrington v. Railroad Co., 71 Mo. 386; Fitterling v. Railroad Co., 79 Mo. 504.

Louis Court of Appeals. The testimony of the State’s witnesses who saw the killing was, substantially, that deceased, Miller, and several women, all of them negroes, and among them defendant, were drinking at the saloon of one Flynn, on Seventh and Wash streets, in St. Louis, in the afternoon of the 15th of July, 1882. After they had drunk, the deceased and one of the women went up the alley to the latter’s room, and after remaining a short time, came back to the saloon.

—IIon. Andrew Ellison, J udge. The deed from the Central Coal & Mining Company to Tompkins, did not convey the title of the company. It had no corporate seal. Corporations, in such cases, can only act and speak by their common seal. Angelí & Ames on Corp., (8 Ed.) § 216; Sanford v. Tramlett, 42 Mo. 388. The statute requires the corporate seal.

—Hon. E. L. Edwards, Judge. The separate answer of John Kiso expressly admits that under the contract of lease he and Hermann Kiso entered into possession of the leased premises, except as afterward stated, did the work and labor and paid for the rent for fifteen months, as alleged in the petition. The lessees having so ratified and acquiesced in the possession given, cannot now complain of its insufficiency. Crommelin v. Theiss, 31 Ala. 412; Cram v. Dieser, 2 Sandf.

Louis Court of Appeals. 1. It is no concern of the creditor to which member of the family, husband, or wife, the homestead belongs. Thompson on Homesteads, § 224; Hixon v. George, 18 Kas. 253; Monroe v. May, 9 Kas. 466. 2. The Atchison property was the homestead of Rudolph Behrens, his wife and four minor children, and was totally exempt from all process, and could not even be conveyed by him alone nor incumbered, and no creditor could reach it or touch it.

Louis Court of Appeals. If the title to the draft and its proceeds was in plaintiffs, then the petition shows defendant took the draft which was payable to the legal heirs of Ingram Eenn, collected it and has the proceeds in his possession, and refuses to deliver upon demand. “Any wrongful act which negatives or is inconsistent with the owner’s rights, is per se a conversion.” And it makes no difference whether the actor is conscious of the wrong he is committing or not.

—IIon. E. L. Edwards, Judge.. The property was subject to a mechanic’s lien. It will bo noticed that this building was erected for the express purpose of being used as a mill for crushing and separating metallic ores, and to receive this identical machinery which was necessary for the completion of the building for that purpose. Without this the building would be useless for the objects for which it was intended.

—Hon. E. J. Broaddus, Judge, The reply simply denies all the material allegations of the answer, and is a nullity. The allegations of the answer, therefore, stand admitted, and judgment should be for defendants on the pleadings. R. S. 1879, § 3525 ; Edmonson v. Phillips, 73 Mo. 57.

—Hon. S. H. Woodson^ Judge. Eor the years 1868 and 1869, the property belonged to the Kansas City & Cameron Railroad Company; its stock was personal property, (Sess. Acts 1857, p. 162, § 21,) and the stock alone was subject to assessment. R. S. 1855, p. 1331, §§ 30, 31, 32; Gen. St. 1865, p. 103, §§ 27, 28, 29. As against this defendant who acquired the property in February, 1870, the property could not be assessed in 1874 for the taxes of 1868 and 1869.

<p>Appeal from Livingston Circuit Court.—Hon. E. J. Broaddus, Judge.</p> <p>William A. Wood and Ramey § Brown for appellants, cited Wagner v. Phillips, 51 Mo. 117; Mitchell v. Jones, 50 Mo. 438; Shed v. Railroad Go., 67 Mo. 487; 1 Coke on Lit., 39a; R. S. 1879, § 3672; Taylor v. Runyan, 3 Clark 474; Ereeman on Judg., § 52; Wheeler v. Scott, 3 Wis. 362; R. S., §§ 990, 1002, 2335, 5595; Nesbit v. Neil, 67 Mo. 275; Reed v. Austin, 9 Mo. 713; Weston v. Clark, 37 Mo. 568; Burette v. Briggs, 47 Mo. 356; Ben v. Morse, 7 Halst. 337; Gamble v. St. Louis, 12 Mo. 618; Harrington v. Utterback, 57 Mo. 519; Clark v. Ins. Co., 52 Mo. 272; Bank v. Hvans, 51 Mo. 335; Vogler v. Montgomery, 54 Mo. 577.</p> <p>The petition does not state facts sufficient to constitute a cause of action. There is nothing in the petition showing that plaintiff was in possession at the commencement of the suit, and no facts are stated from which possession can be inferred. Clark v. Ins. Co., 52 Mo. 272; Keane v. Kyne, 66 Mo. 216. It is averred in the petition that the execution under which defendants claim, was issued on a mere memorandum on the judgment docket, and that no judgment was ever rendered or entered on the records of the court. If such is the ease, the deed to defendants is a nullity, and would cast no cloud upon title, and plaintiff being out of possession, should have resorted to ejectment. Clark v. Ins. Co., 52 Mo. 272. If the petition is sufficient, still plaintiff cannot recover, because, (a) It is shown by the evidence that plaintiff' was not in possession at the commencement of the suit, and, (b) There is no reasonable pretense that defendants perpetrated any iraud upon any one, or that the sale was not perfectly fair, open and regular. The deed to plaintiff was defective, because all of the trustees were not present at the sale, and her right to the land depends on the validity of the sale. 1 Perry on Trusts, § 411; Berger v. Buff, 4 Johns. Oh. 367 ; White v. Watkins, 23 Mo. 42-3 ; Hill on Trustees, p. 305; Powell v. Tuttle, 3 Comst. 397; Smith v. Wildman, 37 Conn. 384. The plaintiff’s ease rests solely upon the inadequacy of the price defendants paid for the land, but such inadequacy is not, of itself, a distinct principle of relief in equity. Hammond v. Scott, 12 Mo. 9; Meir v. Zelle, 31 Mo. 331; II. # St. J. B. B. Co. v. Brown, 43 Mo. 294; Parker v. Bailroad Co., 44 Mó. 415 ; Wagner v. Phillips, 51 Mo. 117; McPike v. Aullman, 53 Mo. 551; Burfee v. Stewart, 59 Mo. 491; Burfee v. Moran, 57 Mo. 374; Brwin v. Parham, 12 How. (H. S.) 197.</p>

Louis Court of Appeals. The deed from Mrs. Miller and Mead was duly executed, and conveyed the title, both legal and equitable, to the premises in controversy. Lincoln v. Rowe, 51 Mo. 574; Siemers v. Kleeburg, 56 Mo. 197. The deed from Mrs. Miller and Mead to Kerr was duly acknowledged. The certificate of acknowledgment is not affected by the “ relinquishment of dower ” contained in it. Chauvin v. Wagner, 18 Mo. 531; DeLassus v. Poston, 19 Mo. 425.

—Hon. Noah M. G-ivan, Judge. The petition in this case is a supplementary hill filed hy the assignees, by subrogation of the plaintiffs, against the heirs of the original defendants, to bring in and sell the interest of a party who should have been a party to the original action. A supplementary bill must be filed in the original cause, and may be filed at any time, either before or after a final decree. Story’s Eq. Plead., p. 338.

Louis Court of Appeals. It was incumbent on plaintiff’ to establish, by affirmative proof, that the defendant was guilty of negligence or want of care and diligence. Schultz v. Railroad Co., 36 Mo. 32; Nolens v. Sickel, 3 Mo. App. 300, 308; Ward v. Andrews, 3 Mo. App. 275 ; Boland v. Railroad Co., 36 Mo. 84; Harlan v. Railroad Co., 65 Mo. 22; Thompson on Carriers of Passengers, 195; Hutchinson on Carriers, 616, 618; Hammock v. White, 11 O. B. (N. S.) 594.

—Hon. ¥m. T. Wood, Judge. A suit may be brought to foreclose a mortgage, although the debt secured thereby is barred by the statute of limitations; after the lapse of ten years there is a presumption of payment only, but this presumption may be repelled by proof of non-payment. Chouteau v. Burlando, 20 Mo. 482. A note may be barred by limitation and yet the mortgage securing it may be enforced against the land. Cape Girardeau v. Marbison, 58 Mo. 90.

—Hon. E. J. Broaddus, Judge. The motion to substitute C. II. and L. Bull should have, been sustained, and the action of the court in that regard was manifest error. Defendant did not make out a case of adverse possession. Lynde v. Williams, 68 Mo. 360 ; Brown v. King, 5 Met. 173; Musick v. Barney, 49 Mo. 464; Turner v. Hall, 60 Mo. 271; Norfleet v. Hutchins, 68 Mo. 597; Harrison v. Caehelin, 35 Mo. 79; 23 Mo. 117; 27 Mo. 26.

Louis Court of Appeals. The paper offered in eviden'ee, and which is the basis of plaintiff’s claim of title to the property in question, is not a warehouse receipt within the meaning of our statute on the subject. R. S., §§ 558, 559; State v. Miller, 45 Mo. 499 ; Farmer v. Gregory, 78 Ky. 475 ; Byles on Bills, p. 95; Nat. B’k v. Gay, 63 Mo. 33. The paper on its face conveyed to plaintiff’ clear notice of its ad interim function. Van Schoonhaven v. Curly, 86 N. Y. 187.

—Host. M. G-. McG-regor, Judge. Tbe court committed error in striking out tbe defense that plaintiff’s remedy was restricted to an action on tbe indemnifying bond. State to use, etc., v. Leutzinger, 41 Mo. 500; Goldsoll v. Watson, 30 Mo. 122; Broadley v. Holloway, 28 Mo. 150. Tbe court erred, also, in sustaining the objections to defendant’s testimony, and in directing tbe j ury to find for plaintiff.

—Hon. S. P. Huston, Special Judge. The court erred in admitting in evidence the deed of John S. G-. Burt from William W. Gitt; said deed was not the act and deed of Joseph Jay by Gitt, as attorney in fact, but it is the deed of Gitt. Story on Agency, (5 Ed.) 148, and note; Fndsley v. Strode, 50 Mo. 508; Bobb v. Barnum, 59 Mo. 394.

Louis Court of Appeals. No negligence on the part of the defendant was proven; certainly not the kind of negligence declared on in the petition, and hence the instruction for nonsuit should- have been given. Buffington v. Railroad Co., 64 Mo. 216 ; Waldhier v. Railroad Co., 71 Mo. 516; Price v. Railroad Co., 72 Mo. 420. There was negligence on the part of deceased contributing directly to the accident, which precludes recovery by plaintiff.

—Hon. E. L. Edwards, Judge. The judgment of the justice being one of nonsuit, there should have been a motion filed to set the same aside, and without such motion the appeal was a nullity. R. S., 3041. The instruction given for plaintiff is not a proper one in a replevin suit, where the only question at issue is the right to the possession of the chattel. 2 Wharton Ev., § 1331; Grartside v. Nixon, 43 Mo. 139.

—Hon. G-. H. Burckhartt, Judge. The justice had no jurisdiction of the subject matter of this action. It required for its determination, the question of what title Yaney conveyed to Patterson in selling him the land on which the taxes were paid. Nancy’s only liability was upon the covenants in his deed. It is not an action of debt, and the only remedy is an action on Yancy’s covenants. The motion to dismiss for this reason should have been sustained by the circuit court.

—Hon. Joseph Cravens, J udge. The tax bill was cleai’ly void for uncertainty in the description. City of Jefferson v. Whipple, 71 Mo. 519. And the trustee’s deed upon which the court seems to have predicated its finding, could only tend to worse confusion. The deed calls for twenty-five acres, while the petition calls for twenty-seven.

—Hon. J. R. Woodside, Judge, There was no repugnancy in the charge that the striking and wounding were in the breast, and the mortal wound so given was in and through the body. The breast is a part of the body. The indictment neéd not state upon what part of the body the wound was given, nor describe the wound. State v. Edmundson, 64 Mo. 398; State v. Sanders, 76 Mo. 35.

—Hon. J. M. I)avis, Judge. 1. It cannot be contendea that a promissory note can purport to be signed by J. J. Lawson by any name except J. J. Lawson. 1 Whar. Crim. Law, (Ed. 1874) § 842 a; Bouvier’s Law Die.,Title “Purport.” 2. Private corporations must be pleaded. 2 Whar. Crim. Law, (Ed. 1874) §§ 1458, 1488, Revised Statutes, section 1915, 1821, do not aid the State. Where no one could be defrauded, there can be no intent to defraud. 3 G-reenlf.

—IIon. E. J. Broaddus, Judge. (1) A court of equity has power to correct mistakes in deeds and mortgages. Bresheban v. Brice, 57 Mo. 442; Rayburn v. Deaver, 8 Mo. 104. And in the exercise of this jurisdiction it is not restricted to the parties to the deed, but may include purchasers with notice. Burnside v. Wayman, 49 Mo. 356; Young v. Coleman, 43 Mo. 179. (2) Notice is actual or constructive.

—IIon. Elijah Robinson, Judge. In chancery cases this court will review the evidence upon which the finding and judgment of the trial court was made, and reverse, affizin or modify the same according to equity. Mingo v. Michardson, 53 Mo. 385 ; Moore v. Wingate, 53 Mo. 398; Freeman v. WUJcerson, 50 Mo. 554, The evidence fails to show that any trust was ever created, or that the hank ever agreed to accept the money and pay the Dyson note.

—Hon. Geo. W. Dunn, Judge. This suit is a proceeding by bill in equity, praying that the title to certain lots, conveyed to defendant by a sheriff’s deed, and, also, by a trustee’s deed, be vested in plaintiff, and that defendant be required to account for rents received by him thereon. It was error, therefore, in the court to enter up a common law judgment for $537.23, and award against defendant a general execution.

—Hon. J. B. Gantt, J udge. The indictment is for selling intoxicating liquor on Sunday, as a dramshop keeper. It devolved upon the State to show that defendant had a license as a dramsho]} keeper, and failing to show this, the conviction was erroneous. There is no evidence that the defendant authorized her clerk to sell liquor on Sunday, or that she sanctioned the same in any way.

Genevieve Circuit Court—Hon. J. D. Eox, Judge. It is not pointed out wherein the section of the statute conflicts with any provision of the State constitution, nor can anything be found in the constitution prohibiting the legislature from enacting such a law.

—ITon. W. E. Geiger, Judge. The plaintiff, Martha Hayes, being married ought to have joined her husband with her at the institution of the suit. R. S. 1879, § 3468. A judgment in her favor would have been a nullity. Consequently she had no valid action against defendant, and the justice could not so amend as to give her one. McDowell v. Morgan, 33 Mo. 555.

—Hon. L. E. Dinning, Judge. The court erred in refusing to instruct the jury, at the close of plaintiffs’ case, that plaintiffs could not recover on the pleadings and evidence. Plaintiffs’ evidence showed that Mrs. Plummer, when she rendered the alleged service for appellant, was the wife of Chris. Kleisner, and she earned no wages by her separate labor, as contemplated by section —, of an act in regard to married women, passed in 1875. Sess. Acts 1875, p. 61, § —.

—IIon. G-. W. Dunn, Judge. The evidence is, that the sheep in question were separated from the other sheep of the vendor at the time of the sale, after which they were left with him. In the absence of any pretense of bad faith, and where full value is paid, this is a sufficient delivery. The court erred in holding appellant bound by the value of the sheep, as set out in his petition and affidavit.

Appeal'from Livingston Circuit Court.—Hon. J. M. Davis, Judge. The evidence offered on behalf of the plaintiff, being undisputed that the approach of the engine and car could have been known by the deceased in time to have enabled him to step aside and avert the inj ury, the demurrer to the evidence should have been sustained. Zimmerman v. Railroad Co., 71 Mo. 476; Henze v. Railroad Co., 71 Mo. 636; Railroad Co. v. Elliott, 28 Ohio St. 340; 14 Am.

—IIon. G. ~W. Dunn, Judge. Seiler had an equitable interest in the land in controversy, to which the lien of the judgment against him attached, and which was subject to levy and sale under execution. E. S. 1879, §§ 2354, 2356, 2730, 2336; also lb., § 2767 ; Bevy v. Thompson, 4 How. 17; Aniuerthe v. Mathiot, Q S. & R. 397; Russell’s Appeal, 15 Pa.

Louis Court of Appeals. When A. S, Robards, the defendant in the judgments, died, the lien therefor could not be enforced by execution ; they could only be enforced in the manner provided for in the… Held: 58 Mo. 213. A court of equity will not interpose to restore rights lost by laches, nor grant equitable relief where the party has an adequate remedy at law, or where such, a remedy has been lost by negligence or delay.

—Hon. J. B. Gantt, Judge. In a somewhat similar case to this, it was held that the indictment was not sufficient. State v. Holden, 48 Mo. 94; State v. Keel, 54 Mo. 184; State v. Hamilton, 65 Mo. 669. The indictment only alleges in the language of the pleader the substance and effect of defendant’s testimony. Defendant’s language, in whole or in part, should have been set out, so that the court might determine its effect.

—Hon. E.L. Edwards, Judge. The record entry of the New York court of March 24th, 1863, was not a nunc pro tune judgment, hut an independent judgment. Walters v. Sykes, 22 Wend. 566; Townsend v. Wesson, 4 Duer 342; 9 Barb. 504; 65 Mo. 618. The questions decisive of this case were decided when this case was here before, and should not be re-opened. Overall v. Ellis, 38 Mo. 209; Boone v. Shackleford, 66 Mo. 497; Chambers v. Smith, 30 Mo. 156.

Louis Court of Appeals. Lange' Allard takes nothing by the deed. 2 Snead (Tenn.) 404; Butler v. Rutledge, 2 Cold. (Tenn.) 4; Allen v. Allen, 47 Mich. 74. On a deed to husband and wife, they take per entirety, and the survivor takes the whole. Wash-burn Real Prop., (4 Ed.) vol. 1, p. 672, § 425; Rogers v. Grider, Dana (Ky.) 242; Taul v. Campbell, 7 Yerg. 319; Ketehum v. Walworth, 5 Wis. 95; Gibson v. Zimm,erman, 12 Mo. 388; Hall v. Stephens, 66 Mo.-.

—Hon. R. E. Cowan, Judge. The defendant was entitled to have given the eighth instruction asked by it. Maschek v. Railroad Co., 71 Mo. 276; Levitt v. Railroad Co., 50 Mo. 305; Morris v. Platt, 32 Conn. 82. Only ordinary care was demanded of the driver of the car.

—IIon. R. P. Owen, Judge. This cause should be reversed, because of the refusal of the court to separate the funds which arose from the taxation of the lands, depots, workshops and other buildings, from such other funds as arose from the taxation of the road-bed, rolling-stock and movable property. Laws 1875, p. 129; Laws 1877, p. 365 ; R. S. 1879, § 6880 ; Law§ 1883, p. 155.

<p>Justices of the Peace: extension of terms of office: statute. The effect of section 2807, Revised Statutes, 1879, in reference to the election and terms of office of justices of the peace, was to supersede and repeal all prior statutes authorizing directly, or by implication, any elections of such officers prior to the general election in November, 1882, and any election so held in contravention of said section, was unauthorized and void. Following and affirming State ex rel. Attorney General v. Ranson, 73 Mo. 78.</p>

<p>1. Contract: evidence. That a contract was to be subsequently reduced to writing, is not proof that there was no final agreement between the parties.</p> <p>2. -:-: presumption. When the agreement was to be reduced to writing, and there is no sufficient evidence from which its exact terms can be determined, it will be inferred that the understanding of the parties was, that there was no contract until the terms were reduced to writing.</p> <p>3. Practice, Civil: declarations op daw. The giving of an ambiguous declaration of law, in a trial before the court, is not necessarily ground for a reversal.</p> <p>4. , ' : -. In a trial before the court, parties should ash for declarations of law from which it can he determined what the court held as to the law, and what it found as to the facts.*</p>

—Hon. J. B. Gantt, Judge. The court erred in overruling the demurrer to the evidence. There was nothing in plaintiff’s evidence to show that defendant Johnson was present at the time of the arrest, or in any wise participated in it, or even knew of it until after it was made. The court erred in its instructions to the jury on the part of plaintiff, and in refusing instructions asked by defendant.

—Iíon. E. J. Broaddus, Judge. The sureties having accepted defendant’s proposal, and having purchased new contracts to the land, became the owners of the wheat. Growing wheat is a part of the freehold, and passes along with the land on which it is sown. Mcllvaine v. Harris, 20 Mo. 458; Pratte v. Coffman, 27 Mo. 424; Steele v. Farber, 37 Mo. 72; Tripp v. Hasceig, 4 Am. R. 388; Baird v. Brown, 28 La. An. 842.

—Hon. J. C. Howell, Judge. It does not appear from this record that the justice before whom the suit was brought, had any jurisdiction of the cause. If he had not jurisdiction none was conferred upon the circuit court by the appeal and trial de novo there.

—H,on. G-. X>. Burgess, Judge. The terms of the deed create in form a valid condition subsequent. It declares a forfeiture and reverter. Gilbert v. Peteler, 38 N. Y. 168 ; Lowe v. Hyde, 39 Wis. 345; Hayden v. Sloughter, 5 Pick. 531; 2 Washburn on Real Prop., p. 3. The condition was not impossible at the time it was created. The impossibility to discharge a condition must be a physical one. 1 Swift, 93; 1 Hilliard on Real Prop., 309, note.

Francois Circuit Court.—IIon. W. N. Nalle, Judge. It is obvious that the legislature never meant to enumerate all the weapons that might be regarded as deadly. A hatchet, an ax, a scythe and many other instruments might be used so as to become far more dangerous and deadly than a dagger or slung-shot, and it would be a question of fact for the jury as to whether a certain instrument used in a particular manner was a deadly weapon.

—Hon. S. H. Woodson, Judge, (1) The action of plaintiff was not maintainable on a foreign judgment in attachment. Freeman on Judg., § 436. (2) The cause of action, whatever it may have originally been, was merged in the judgment obtained in Kansas. That judgment thenceforward became the cause of action as against Payne, and in favor of O’Shea. Freeman on Judg., (3 Ed.) §§ 215, 216, 217.

—Hon. J. R. Woodside, Judge. The statute of limitations does not run against the State in a suit for the collection of back taxes. State ex rel. v. JBEeman, 70 Mo. 441; City of Jefferson v. Whipple, 71 Mo. 519.

—Hon. ¥m. T. Wood, Judge. The burden of proof was. on plaintiff to show, that the killing of the bogs was caused by failure to give the signals, or that it was negligence to permit wheat to be scattered on the track and that such negligence was the proximate cause of the damage. Neither was shown and defendant’s instruction that the verdict should be for defendant on the first count should have been given.

(1) A justice of the peace has authority to appoint a special deputy under section 2862, Revised Statutes 1879, to execute a writ of attachment. A writ of attachment is “process” authorized by article 3, chapter 44, Revised Statutes 1879, section 2849. Drake on Attachments, § 186; Benton v. Wilkinson, 18 Ver. 186. (2) The service of garnishment in this case was sufficient to give the justice jurisdiction to proceed to hear and determine the issues and render judgment.

—How. G-. Pouter, Judge. Tbe court committed error in permitting the defendants in error to read the chattel mortgage in evidence. 1st. Because the description of the debt attempted to be secured by the mortgage was too vague and indefinite. Rood v. Welch, 28 Conn. 157, and authorities cited. 2d. Because the description of the property attempted to be transferred by the mortgage is so vague, indefinite and uncertain as to render the instrument void.

—Hon. S. H. Woodson, Judge. (1) To the extent, in the manner, under the circumstances pointed out in his obligation, the security is bound, and no further. Farrar v. Christy, 24 Mo. 474; State ex rel. v. Sandusky, 46 Mo. 877; Wyman v. Robinson, 73 Me. 384, and cases cited; Railroad Co. v. Higjins, 58 111. 133; Miller v. Stuart, 9 Wheat. 702; Sims v. Harris, 8 B. Mon. 55; Brown v. Burrows, 2 Blatch. 340.

—Hon. Vi. H. Sherman, Judge. The court erred in failing to render judgment of non prosequi, in defendant’s favor and against plaintiffs, when so requested, after the jury were sworn to try the cause, and after the petition and answer were read to the jury. R. S., §§ 3677, 3678; Ennis v. Hogan, 47 Mo. 515.

—Hon. Elijah Robinson, Judge. Respondent proposed to exchange hay. Appellant did not assent. The essentials of a contract are: 1st, Parties; 2nd, Consideration; 3rd, Assent of parties; 4th, The subject matter. Without these four essentials there can be no contract. 1 Parsons on Cont., (5 Ed.) p. 8.

Louis Court of Appeals. (1) The circuit court, without proof, assumed author-! ity to falsify the account of defendant, and struck from it certain credits the effect of which was to change or increase the balance in his hands. The settlement made by the administrator January 31st, 1879, was not a final settlement, and it required proof to justify the court in striking out the items in question, other than the account itself.

—Hon. E. M. Black, Judge. Only two questions are involved in this ease. 1st, What kind of an estate did Jane and T. P. Thompson take under the will ? 2nd, Was the assignment to appellant, Buck, procured by such means that it should be set aside in equity ? We think that the decision of the circuit court in construing the will was correct. R. S. 1865, p. 231, § 45.

<p>Appeal from Johnson Circuit Court.—Hon. Noah M. Gtvan, Judge.</p> <p>Money paid or property delivered under a mistake of law, cannot be recovered. Bishop Oont., § 144; United States Bank v. Daniels, 12 Pet. 32; Shotwell v. Murry, 1 Johns. Ch. 512; Clark v. Dutcher, 9 Oow. 674; Mowatt v. Wright, 1 Wend. 355; McCarter v. Teller, 8 Wend. 267; Pinkham v. Gear, 3 N. H. 163; Claffin v. McDonough, 33 Mo. 412 ; Hendricks v. Wright, 50 Mo. 311; Mutual Savings Inst. v. Enslin, 46 Mo. 200; Daily v. Jessup, 72 Mo. 144. Money paid under a mistake of facts can be recovered, but the facts mistaken must be material, such as would have given rise to a legal obligation. And not such as only affect the motives or policy of the party paying. Bishop on Cont., § 249, bottom p. 84; 1 Parsons on Cont., (6 Ed.) side p. 466, bottom 489, and cases cited; JEtting v. Scott, 2 Johns. 157. Money paid after investigation upon a claim set up in good faith, but which turns out to be unfounded, cannot be recovered. McArthur v. Luce, 43 Mich. 435 ; Mowatt v. Wright, supra; Bisbie v. Lemlie, 2 East 470 ; Kerr on Fraud and Mistake, 403, 404. If there is no evidence to support the verdict, it cannot stand. Beference by counsel in closing argument to facts outside the record, will work a reversal of judgment.</p> <p>(1) To preclude a party from recovering a payment made under a mistake as to his liability, it must appear that it was made with a full knowledge of all the facts, and under circumstances repelling all presumption of fraud or imposition. 2 Kent’s Com.,-(10 Ed.) p. 682, side p. 491; 1 Parsons’ Cont., (5 Ed.) p. 466, side p. 466; Watcher v. Watcher, 47 Pa. St. 496; Siliman v. Wing, 7 Hill 159. (2) Payments made by a party under a mistake as to his liability, can be recovered where the circumstances are such that it would be inequitable or uneonscientious for defendant to retain it. Kelly v. Solari, 9 Mees. & ~Wels. 54; 2 Smith’s Leading Cases, p. 543; Broom’s Leg. Max., 177, •237; 3 B. Mon. 513; Bize v. Dickenson, 1 T. B. 285; Columbus Ins. Co. v. Walsh, 18 Mo. 229; Griffin v. Townsley, 69 Mo. 13; Foster v. Kirby, 31 Mo. 496. (3) One who is injured by his mistake of fact, does not lose his remedy, because he mistook the law also. Mistake of both law and fact is a ground for recovery. 3 Parsons on Cont., (5 Ed.) p. 399, side p. 399; King v. Doolittle, 1 Head (Tenn.) 77 ; Jeffs v.York, 10 Cush. 392; Broion v. Sawyer, 1 Aik. (Vt.) 130; Lodge v. Boone, 3 H. &• J. (Md.) 218. (4) Payments procured by false representations or conduct, may always be recovered by tbe party paying. 2 Parsons on Cont., (5 Ed.) pp. 785,786; Magoffin v. Muldron, 12 Mo. 512; Gibson v. Stephens, 3 McLean C. C. 551; Hinsdale v. White, 34 Yt. 558; Reynolds v. Rochester, 4 Ind. 43.</p>

Louis Court of Appeals, The transcript shows that at the close of the evidence defendant asked an instruction, which was refused by the court, and that the defendant at the time duly excepted, but the instruction does not appear in the record, the clerk certifying that it is either lost or mislaid. The appellant is entitled to a review of the case upon a correct record. The trial court erred in denying defendant’s proper challenges of jurors for cause.

—Hon. M.. G-. McGregor, Judge. The lower court erred in overruling defendant’s motion to strike out from plaintiff’s amended petition the allegations as to a contract for building a jail. Otis v. Bank, 35 Mo. 128; 1 R. S. 1879, § 3529; Kinney v. Miller, 25 Mo. 576; Payton v. Bose, 41 Mo. 267; Gamer v. Railroad Co., 34 Mo. 235. The lower court also erred in sustaining plaintiff’s demurrer to defendant’s plea of the statute of limitations.

Error io Jackson Special Law and Equity Court.—Hon. R. E. Cowan, Judge. The two counts in the petition state separate and distinct causes of action. But conceding that the two counts state but one cause of action, the court erred in compelling the plaintiff to elect on which count he would proceed, and in striking out the other. Bliss on Code Plead., §§ 118, 119,120, 295, and authorities cited; Brinkman v. Hunter, 73 Mo. 172. The second count stated a good cause of action.

—Hon. G-. W. Dunn, Judge. The judgment should be reversed, because, 1st, The word cattle was not used in the statute in its broadest sense and cannot properly be construed as including horses, mules and swine. 2nd, The words “ or other animals,” as employed in the statute, do not enlarge the signification so as to make the statute include swine or any animals other than horses, cattle and mules which are therein specifically enumerated.

—IIon. Noah M. Givan, Judge. The court in refusing to submit to the jury the second issue, as requested by appellants, ignored the question of appellants’ notice of the insanity of respondent. In cases of simple contracts, it has always been held that wnere one has contracted in good faith, without notice of lunacy, equity will not rescind the contract on that ground. Lancaster Co. Bank v. Moore, 78 Pa.

—IIon. W. E. G-eigker, Judge. The creditor should have given the administrators twenty days' notice of his intention to ask for an order for the- sale of the real estate. The petition for the order of sale is also fatally defective in not averring positively that the personal estate was insufficient to pay the debts of the estate.

Louis Court of Appeals. Plaintiff sues on tlie promise of defendants, made at the time he indorsed the note, that they would hold him harmless. The promise or agreement of defendants furnished no defense to the plaintiff when he was required, as indorser of the note, to pay it; but it constituted a good cause of action in a separate suit against defendants.

—•Hon. Theodore Brace, Judge. The trial court erred in refusing the instruction asked by the defendant. To hold that the excepted tract of ten aero? is limited on the north by the north line of section 22, is to destroy the metes and bounds, and to cut the subject matter in halves, by a line not in the minds of the parties, and the location of which may have been unknown.

—IIoh.J. JEL Nicholson, . Judge. The refusal of the court below to sustain defendant’s motions to suppress the depositions of Samuel Erazior, and their admission for plaintiff are manifest errors for which alone the cause should be reversed.

<p>Motion for Mew Trial: exceptions: practice in í>upre.ue court. Where a party fails to except to the action of the court in overruling his motion for new trial, he will be held to have acquiesced therein, and the Supreme Court will not consider matters called to the attention of the trial court by such motion, but will affirm the judgment if it be supported by the pleadings.</p>

—Hon. J. M. Davis, Judge. It appears from the evidence that respondent took possession of the land by mistake. lie does not say that ho claimed to that line, but that he claimed that to bo the true one. “ If any one by mistake inclose the land of another and claim it as his own, his actual possession will work a disseizin, but if ignorant of the boundary line he makes a mistake in laying his fence, making no claim, however, to the land to the fence, but only to the true line…

—IIon. Elijah Robinson, Judge. (1) Tlie court erred in overruling defendant’s motion for a new trial, based upon the ground that no list of the names of forty persons, out of which the jury was to be selected, had been served upon defendant. R. S. 1879, §§ 1903,1904. While a list of forty names was served upon defendant, it contained the names of but thirty-nine persons. There was no such man as R. L. Dinsmore on the list.

—Hon. C. Roabdman, Spe^ cial Judge, The copy of the patent from the United States to Christian Purth alias Porth, should not have been admitted in evidence. It was not attested or certified as required by law, in order to render it admissible in evidence. 1 R. S. 1879, §§ 2285, 2286; Paiterson v.Winn, 5 Pet. (U. S.) 238. The deed from Christian Purth or Porth to Frazier should have been excluded.

—Hon. Joseph Cravens, Judge. The court committed error in permitting, against defendant’s objection, the copy of the deposition of Corn to be read in evidence. The original had not been returned or filed in the cause, and secondary evidence of its contents was inadmissible. Minche v. Skinner, 41 Mo. 92; Finney v. St. Charles College, 15 Mo. 2G6; R. S., § 2157.

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

—Hon. E. P. Wright, Judge. The executor should be charged with compound interest, because, by the will, he was appointed testamentary guardian of Agnes and Julius, which appointment he accepted, and continued to act in that capacity until they arrived at their majority. Hinckley’s Testamentary Law, § 385, and cases cited; Reeves’ Horn. Rel., 467, note; White v. Parker, 8 Barb. 48.