Volume 82 — Missouri Reports

_Appeal from Johnson Circuit Court. — Hon. A. W. Rogers, Special Judge. The decision of the court is in conflict with the case of Swartz v. Chappell, 19 Mo. 304. The court should have ■sustained plaintiffs’ motion to strike out parts of the answer. This court cannot assume that the refusal of the court to sustain the motion to strike out was harmless •error.

— Hon. Andrew Ellison, Judge. The trial court erred in excluding part of the deposi_ tion of William B. Boyd offered by plaixitiff. Stoiy oxx Sales, § 400; Ober v. Carson, 62 Mo. 209. The contract coxistitxited Harper the agent of plaintiff to sell the goods furnished under it.

— IIon. ¥m. H. Sherman, Judge. Plaintiffs read in evidence a deed containing covenants of general wai’ranty, executed March 29th, 1865, by Uriah Griffith and wife to Hardin Riddle and Mary Riddle conveying the land described in the petition. This deed was duly recorded April 8th, 1865.

— IIon. J. B. Gantt, Judge. The complaint did not meet tlie statutory requirement in failing to contain a demand for relief. R. S., § 3511. It is required that each cause of action must be separately stated, with the relief sought for each cause in such manner that they may be intelligibly distinguished. R. S., § 3512 ; Childs v. State Bank, 17 Mo. 213; Mooney v. Kennett, 19 Mo. 551; Simille v. Harrison, 30 Mo. 228; McCoy ¶. Yager, 34 Mo. 134.

— IIon. Theodore Rrace, Judge. 1. The petition does not state facts sufficient to constitute a cause of action. Waldluer v. Railroad Co., 71 Mo. 514. 2. The court erred in giving instruction number four, in behalf of plaintiffs, because it made defendant liable, even though guilty of no negligence, in the origin of the fire, or its efforts to extinguish it. 3.

Error t > Cooper Circuit Court. — IIon. E. L. Edwards, Judge. The indictment properly charges the offense prohibited by the statute. The statute, (R. S. 1879, § 1581), forbids the sale of any fermented or distilled liquor and the indictment charges the sale of intoxicating liquor, to-wit: whisky, brandy, wine, beer, lager-beer, ale and gin. Courts will take judicial notice that whisky and brandy are distilled liquors and wine, beer and ale fermented liquors.

— IIon. Elijah Robinson, Judge. Tliis case falls within the doctrine announced in Peters v. Linenschmidt, 58 Mo. 464, and the trial court, therefore, erred in refusing the two instructions asked by defendant. The case of Hughes v. Cordon, 7 Mo. 297, is not an authority for plaintiff, for the notes involved in that suit being for $20 each, were within the exclusive original jurisdiction of the justice.

<p>St. Louis Criminal Court: janitor or, right to appoint. Under section 10 of the scheme for the separation of the city of St. Louis from St, Louis county, (R. S., pp. 1565,1566,) and the ordinance of the city passed thereunder, the commissioner of the public buildings of said city, and not the St. Louis criminal court, has the right to appoint a janitor for said court.</p>

— Hon. Elijah Robinson, J udge. (1) The homestead act vested this peculiar interest, immediately upon the death of the parent, in the minor children, as well as in the widow. Wag. Stat., p. 698 § 5. The mother and widow could not alienate the children’s interest. It could not be seized even for the debts of those children. Eunton v. Woodbury, 24 la. 74; Moore v. Euning, 29 111. 130.

Louis Court of Appeals. (1) The exclusion by the referee of the annual settlements made by tlie guardian was erroneous. While such settlements stand they are prima facie, and as such entitled to he introduced in evidence. (2) Under the facts and circumstances of this case, until the guardian’s final settlement was passed upon by the probate court there was no breach of the bond sued upon.

A. J. Seay, Judge. Unless the defendant corporation is a non-resident of Osage county the appeal was not made in time, for more than ten days had elapsed after the refusal of the justice to set aside the default. R. S., § 3041. The place of residence of a corporation is deemed to be the place where its principal office is located, or where its principal opei’ations are carried on. Thorn v. Railroad Co., 2 Dutch. 121; Con-roe v. Ins. Go., 10 How. Pr. 403; Jenkins v. Cal.

— Hon. R. P. Owen, Judge. (1) The testimony of the witness Crawford that Nash left the country as soon as the shooting was over, and that he did not see him about after that, was improper and wrong. No act or declaration of one co-defendant, after the common enterprise is ended, can be given in evidence against his alleged co-conspirators. Wharton’s Crim. Ev.,, § 699; People v. Stanley, 47 Cal. 112; State v. Duncan, 64-Mo. 262.

— Hon. G-. W. Dunn, Judge. The statement did not show that the land was of the character required to be fenced by Revised Statutes 1879, section 809 ; nor that the animal was killed in consequence of the want of a fence, therefore the defendant’s instruction should have been given, and the motions for a new trial and in arrest of judgment sustained. Hudgens v. Railroad Co., 79 Mo. 418; Cunningham v. Railroad Co., 70 Mo. 202, and cases cited.

— Hon. Q-. W. Dunn, Judge. The contract set out in the answer did not make the-parties partners. Musser v. Brink, 68 Mo. 242; Donnell v. Mar she, 67 Mo. 170 ; WhitehiU v. Shickle, 43 Mo. 537. But even if the contract made them partners, yet the demand pleaded as a counter-claim is one that could be recovered in an action at law. Byrd v. Fox, 8 Mo.. 574. One item unadjusted between partners, can be settled in an action at law.

— Hon. J. M. Davis, Judge. The circuit court erred in excluding Ott as a witness for defendant. State v. Slaughter, 70 Mo. 484; State v. Booker, 71 Mo. 631; State v. Grant, 79 Mo. 113 ; 1 Black. Com., p. 90. The preponderance of judicial authority has always been in favor of the competency of one co-defendant to testify for another. State v. Allen, 10 Ohio St. 287 ; 1 Bishop Grim. Proc., § 511; State v. Roberts, 15 Mo. 29.

— Hon. W. H. Sherman, Judge. The omission to lay the venue of the offense in the indictment is cured by the statute of jeofails. It provides that “ no indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected; * * for want of a proper or perfect venue; nor for want of any venue at all.” R. S. 1879, § 1821.

— Hon. Geo. W. Dunn, Judge There was no collision proved between the train and the animal. This, of itself, should have nonsuited plaintiff. Lafferty v. Railroad Co., 44 Mo. 291; Hughes v. Railroad Co., 66 Mo. 325; Seibert v. Railroad Co., 72 Mo. 565. There was no evidence that the engineer could have stopped the train with safety after discovering the dangerous situation of the animal. If he could not, his failure to stop the tram was a prudent and not a negligent act.

— Hon. E. L. Edwards, Judge. The first and great rule in the exposition of wills is, that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. Smith v. Bell, 6 Pet. 68; Pray v. Belt, 1 Pet. 670 ; O’Hara on Wills, p. 29; Turner v. Timberlake, 53 Mo. 871; Gaines v. Fend'er, 57 Mo. 342; Carr v. Dingo, 58 Mo. 400 ; Smith v. Hutchinson, 61 Mo. 83; Allison v. Chaney, 63 Mo. 279.

<p>Appeal from Moberly Court of Common Pleas. — Hon. G-. H. Burckhartt, Judge</p> <p>The court below erred in permitting plaintiff to amend his complaint. Hansberger v. Railroad Co., 43 Mo. 196; Haggard v. Railroad Co., 63 Mo. 302; Webb v. Tweedle, 30 Mo. 488; Dillard v. Railroad Co., 58 Mo. 69; Madkins v. Trice, 65 Mo. 656 ; Huff v. Shepard, 58 Mo. 242. Norean the amendment be j ustified on the theory that it was authorized by Revised Statutes, section 3060. This section does-not change the law as it stood when the decisions cited, supra, were made. Transier v. Railroad Co., 54 Mo. 189; Gilmore v. Dawson, 64 Mo. 310. The plaintiff’s evidence did not show that the animals were killed at a place where it was defendant’s duty to fence, and the demurrer to the evidence should, therefore, have been sustained. Mum-power v. Railroad Co., 59 Mo. 245; Gary v. Railroad Co., 60 Mo. 209; Holman v. Railroad Co., 62 Mo. 408; Crews v. Daekland, 67 Mo. 6j9.</p>

— IIon. Noah M. Gtvan, Judge. The court erred in admitting the statements of Hall to plaintiff at the time of tbe negotiations between them for the assignment of the lease. They were hearsay. 1leed v. Pelletier, 28 Mo. 173 ; O’Neil v. Crain, 67 Mo. 250. The first instruction given on behalf of plaintiff was wrong. It submitted to the jury a question of law. Plaintiff’s second instruction was wrong.

— Non. E. L. Edwards, Judge. 1. By the terms of the contract of sale the cattle were to be weighed on defendant’s scales, and this was an affirmation on the part of the defendant that the weight of said cattle, as given, was correct. The weighing was as material a part of the contract of sale as paying for them. Smithers v. Bireher, 2 Mo. App. 511; 1 Parsons on Contracts, (6 Ed.) top p. 579. 2.

<p>1. Condemnation of Private Property for Public use': dedication. When private property is condemned or dedicated for one public use, it cannot be appropriated to another and different use, or be appropriated to private use.</p> <p>2 -: title : diepekent use. The fee simple title is not acquired by proceedings condemning private property for public use, and if such property is to be used for a purpose other than that for which it was condemned, the original owner must first be compensated for such additional different use.</p> <p>3. -: -: -. Where the city of St. Louis condemned private property for use as a whdrf, it cannot lease it unconditionally for a term of years to be used in the prosecution of private business and for private gain.</p> <p>4. -: construction• Laws authorizing the taking of private property for public use, should be strictly construed and closely scrutinized.</p>

— IIon. George W. Dunn, Judge. The original statement was a common law action; the amended statement was under the damage act. “ It is evident that the whole cause of action was here changed. Instead of a common law action it was based on a statutory provision, clothed with new incidents and requiring different proofs.” Mansberger v. Iiailroacl Go., 48 Mo. 199. The lower court did not err in permitting the amendment.

— Hon. R. P. Owen, Judge. The indictment is defective in its attempt to locate the alleged mortal wound. The averment is not only inconsistent, but is an impossible statement. 1 Bishop C. P., (3 Ed.) §§ 486, 488; 2 Bishop, §§ 522, 525; 1 Greenleaf Ev., 65; Comm. v. De Jardín, 126 Mass. 46 ; State v. Curran, 18 Mo. 320. It was error to admit the testimony of the witness Lance, as to the attack made by defendant on him.

— Hon. Geo. W. Dunn, Judge. The mere fact that a passenger train was run through the outskirts of a town, at a point where even the streets were 900 feet apart, aud where, so far as the evidence shows, there were neither houses nor people, is not, of itself, negligence, or evidence from which negligence may be inferred. Aside from statutory or municipal regulation, no rate of speedds negligent per se.

— IIon. John T. Redd, Judge. (1) The Missouri statute of survivorship of actions, and the damage act of Missouri were imported from New York. Nagel v. Murdock, 75 Mo. 666. (2) The widow’s cause of action is not for a personal tort. Quinn v. Moore, 15 N. Y. 432. It will survive her and she can assign the claim. Byxbie v.Wood, 24 N.' Y. 606. The action appeals to no common law right, and rests upon no common law principle. Whitford v. Panama, 23 N. Y. 465.

Louis Court of Appeals. 1. The rule of construction applicable to this petition is, that its averments are to be taken most strongly against the plaintiffs, and, in matters of doubt, they are to be resolved in favor of the defendant. 2. The petition does not aver that the parties causing the injury to the plaintiffs were the servants of the defendant, but, on the contrary, that they were acting for themselves, and that the defendant was not their superior. 3.

— Hon. Elijah Robinson, Judge. The court should have sustained the motion to dissolve the injunction. Mortland v. Holton, 44 Mo. 58. Where several join in a bill, if either is not entitled to relief, the bill must be dismissed as to all. Jones v. Quinnipiack JB’k, 29 Conn. 25; Hudson v. Madison, 12 Sun. 416; High on.Injunc., § 1613. Allowance of demurrer to the whole bill puts an end to injunction obtained. No suit was maintainable on the second count of the petition.

— Hon. Noah M. Givan, Judge. The statement in this case cannot beheld sufficient un•der the most liberal practice. Pads v. Railroad Co., 65 Mo. 44 ; Johnson v. Railroad Go., 76 Mo. 558. Nor is there any allegation from which it may be inferred, that the alleged killings were occasioned iu any wise by the failure to fence. Johnson v. Railroad Co., supra,; Sloan v. Railroad Co., 74 Mo. 47; Nance v. Railroad Co., 79 Mo. 196; Pryden v. Smith, 79 Mo. 525.

— Hon. M. G-. Mc-Gtregor, Judge. Appellants have a fee simple title to the land in controversy. 1st, Under the statute of limitations; 2nd, Under sheriff’s deed for taxes, dated March 29th, 1879. The certified copy of the report of the Secretary to the Register of Lands of Missouri, and the patent from the State to Jasper county was not a sufficient showing of legal title in the county to entitle it to recover.

— Hon. J. R. Wood side, Judge. The administrator’s sale was void. No petition for’ •order of sale was ever presented to the probate court. Gen. St. 1865. p. 497, § 10; p. 498, § 22; Jarvis v. Russiek, 12 Mo. 63; Bompart v. Lucas, 21 Mo. 598 ; Pryor v. Downey, 50 Cal. 388. Nor was any notice of the contemplated order of sale ever given. Patee v. Mowry, 59 Mo. 161, 194; 7 South.

— Hon. H. S. Kelley, J udge. The assessment for 1873 was not verified as required by law. Wag. Stat., § 61, chap. 118. It is nowhere provided that the assessment may be divided into two books, nor that a certificate attached to one book shall sufficiently authenticate some other book. Onebook,tlie land assessment ■one, must be treated as not certified to. Newell v. Smith, 38 Wis. 39. For 1874 no assessment whatever of lands was made or returned.

Louis Court of Appeals. The infant defendants were improperly made parties to the partition proceedings, and there should have been no decree affecting their rights to the land. Stevens v. En-tires, 13 N. J. L. 271; Culver v. Culver, 2 Root 278; Zeigler v. Grum, 6 Watts 106; Brown v. Brown, 8 N. H. 93. It was error to enter a decree upon the stipulation filed.

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

<p>Bill of Exceptions. An entry of the record proper showing the filing, or leave of court to file, a bill of exceptions, is necessary to make it a part of the record.</p>

— Hon. J. C. Howell, Judge. The court erred in failing to instruct the jury that plaintiff' could not recover on the first count, as there was no evidence connecting the failure to give the statutory signals with the injury. Holman v. Railroad Co., 62 Mo. 562; Wallace v. Railroad Co., 74 Mo. 597; Braxton v. Railroad Co., 77 Mo. 455.

<p>Appeal from Buchanan Circuit Court.- — Hon. J. P. Grubb, Judge.</p> <p>The petition stated a good cause of action. Logan v. Phillips, 18 Mo. 22 ; Larrabee v. Van Alstyne, 1 John. 307 ; R. S. §§ 2201, 2202, 2203; 2 Scribner on Dower, pp. 252, 383, 400; Selleck v. Selleck, 8 Conn. 79 ; Self v. Cordell, 45 Mo. 345; 18 Amer. Law Reg. 202. The personal property in possession of the defendant at the time of the marriage under the uniform and well settled rule of law operated as an absolute gift to the husband of all chattels personal belonging to the wife and, also, of her chattels real, and dioses in action if reduced into possession during coverture. Tiffany & Bullard on Trusts, p. 665 ; Woodford v. Stephens, 51 Mo. 443 ; Salleev. Arnold, 32 Mo. 532; Walker v. Walker, 25 Mo. 375 ; Terry v. Wilson, 63 Mo. 493. The marriage took place in 1873, and our statute of 1875 relating to property of married women cannot apply.</p> <p>Under the facts stated in the first count of the petition the plaintiffs'could not maintain ejectment against the defendant. “ Before dower is assigned, the widow has such a possessory right in the mansion house as will defeat an action of ejectment.” Jones v. Manly, 58 Mo. 559; Miller v. Tolley, 48 Mo. 503; R. S. § 2205; Baker v. St. Louis, 75 Mo. 671. The first count did not state facts sufficient to constitute a cause of action. Clancy on Rights, pp. 205, 219 ; Bacon’s Ahridg., Title, Jointure and Dower; Maguire v. Biggin, 44 Mo. 515; Waller v. Mardees, 29 Mo. 25 ; Couch v. Stratton, 4 Yes. 391; Tenny v. Tenny, 3 Atk. 8; R. S. § 2510; Devorse v. Snyder, 60 Mo. 235. There is no aveiunent in the petition which attempts to state that defendant had lost her rights to the property brought to the husband’s house after the marriage. There being no estate or interest in the defendant - as a dowress, no consideration moved from her to "Walker to support the contract. There was no complete valid parol agreement entered into. Johnson v. Johnson, 23 Mo. 561. The estate of "Walker, after his death, could only be bound by an agreement which was made and completed by "Walker in his lifetime, and which was valid and binding on him. Sinarr v. Masters, 35 Mo. 349 ; Stagg v. Linnenfelser, 59 Mo. 341; Gape Girardeau Co. v. Harbison, 58 Mo. 94; Bittenhouse v. Ammerman, 64 Mo. 200. The allegations in the petition as to the estoppel are insufficient. Bigelow on Estoppel, p. 437; Bates v. Berry, 51 Mo. 453; Com. v. Moltz, 10 Barr. 527. Plaintiffs cannot recover upon a theory adverse to that upon which the petition proceeds. Stix v. Mathews, 75 Mo. 96; Bray v. Seligman, 75 Mo. 31; Mastín BP v. Hammerslough, 72 Mo. 274; Smith v. Culligan,74 Mo. 387 ; MeKnight v. Bright, 2 Mo. 110 ; Clement v. Yeates, 69 Mo. 625 ; Cox v. JEJsteb, 68 Mo. 110.</p>

— IIon. Wm. T. Wood, Judge. argued that the finding of the referee was erroneous. It is the settled practice in the .Supreme Court of this State that it will not interfere with the judgment of the court below, unless the evidence is preserved. Bonnot r. Party, 59 Mo. 98; Routsonz v. Railroad Co., 45 Mo. 237. Since the year 1840 no finding of facts can he embraced in the judgments of inferior courts, and if embodied therein, cannot be regarded by this court on appeal.

— Hon. Harry Lander, Special Judge. The proceeding was in its nature'a criminal one. R. S. 1879, §§ 488,489; 2 Hawkins P. C., p. 212; Peoplev. Smith, 3 Caines 221; In re Lavies, 9 Rep. 765; D. &¡ O. B. B. Co. v. Wheeling, 13 Gratt. 40. Being a proceeding of a public and criminal character, the costs should not have been taxed against appellants. Turner v. Com. 2 Met. 619; Bobinson’s Case, 19 Wall. 510; In re Paschal, 10 Wall. 491.

— Hon. Elijah Robinson, Judge. The memorandum offered by plaintiffs should have been excluded. There was a fatal variance between the contract counted on and that shown by the memorandum. The latter was insufficient under the statute of frauds; its omissions cannot be supplied by parol testimony. Benjamin on Sales, (2 Ed.) § 254, p. 215 ; 1 Greenleaf Ev., § 268; 2 Whart. Ev., § 871; Browne Stat.

Louis Court of Appeals. The statute under which this suit was instituted, and by virtue of the provisions of which the judgment was rendered is in conflict with the constitutions of Missouri and of the United States. (1) The powers of the legislature in this State are expressly limited by the constitution of 1875. Const., aid. 4, § 1.

— Hon. R. E. Cowan, Judge. Plaintiffs’ instructions were erroneous in that they ’ignored the question of the delivery of the goods to the purchasers. The goods had been sold on time and deliv ered to the consignee, the transitus was ended prior to the commencement of the suit, and the vendor’s right was then gone, and they should not have recovered. Sawyer v. Joslin, 20 Yt. 172; Conners v. Transportation Co., 6 Am.

— Hon. G. H. Bukckhartt, Judge. To entitle plaintiff' to a judgment for double damages under section 809, he must both allege in his petition and prove that the point at which his animal came on to the railroad or right of way, was not within the, corporate limits of any town or city. In this case there being no such Allegation in the petition, and no proof of this fact, plaintiff was not entitled to recover.

— Hon. Theodore Brace, Judge. The court erred in requiring plaintiff' to elect. When irrelevant or redundant matter is inserted in a pleading, the remedy is to strike out the same by motion, or where the allegations are indefinite and uncertain, the court may require the pleading to be made definite and certain. O'1 Con-nor v. Koch, 56 Mo. 253 ; R. S. 1879, §§ 3529, 3530.

Ap>peal from Buchanan Circuit Court. — Hon. W. TI. Sherman, Judge. The court below erred in permitting any evidence on.' the part of defendant as to the number of plaintiff’s children and the amount of property owned by him, there being nothing in the issues making such evidence relevant or competent. As the defendant sought specific performance of the contract set up in his answer, the burden of proof was on him to make out his case.

— Hon. W. H. Sherman, Judge. The first count of plaintiff’s petition, is a declaration upon a special contract; there is no claim or pretense of a. right of recovery upon & quantum, meruit, and the trial court, erred in its refusal of defendant’s seventh instruction,, ■which sought to confine the case to the contract alleged in the petition. Kyerman v. Mt. 8. C. Ass’n, 61 Mo. 491; Clements v. Yeates, 69 Mo. 625.

— ITon. J. P. Strother, J udge. Reasonable diligence is a mixed question of law and fact, and the jury, in order to pass upon the same properly, should have all the facts and circumstances of the case before them. It was, therefore, error to exclude the evidence sought to be elicited from the defendant and his deputy. The court erred in refusing to give defendants’ instructions. R. S. 1879, § 2338 ; Kirkland v. Ferguson, 13 Mo. 166.

Louis Court of Appeals. The Supreme Court has jurisdiction of this appeal. 'The recovery of the rent for January was set up as a bar to the whole action, and the answer was insufficient for that ■reason. The claim of the plaintiff being for upwards of $4,000, and the defense interposed not being good in law, how can the jurisdiction of this court be questioned? Clearly, it will be necessary to go outside of the record to •do this.

Louis Court of Appeals. The question whether the relation whieh • exists in a given case is that of master and servant, or of an independent contractor, does not depend upon whether the employer retains the power of terminating the work, or of directing it to he carried on at this or that place (if the place where it is carried on be indifferent) but depends upon the question whether such employer retains control, by the terms of the contract, over the mode and manner of…

— IIon. A. J. Seay, Judge. The tax deed is void, and utterly insufficient to convey that part of the northwest quarter of northeast quarter, section fifteen, township forty-two, range one east, which lies north of the Union road, and west of the Atlantic & Pacific R. R., for the following reasons: 1.

Louis Court of Appeals. It was error to permit the proof of the custom of stockmen to ride on tbe top of the cars. Such custom was not alleged in the petition, nor brought home to the knowledge of the deceased.

Louis Court of Appeals. This case comes before this court as a non-jury or ■equity case. The court below passed upon the facts as a court, and not as a jury, and the question is whether the finding was á right finding. The finding of the trial court was not only against the evidence, but was against the weight of the evidence. The question is not how the respondent originally received, but how he afterwards held the stock.

— J. W. Jenkins, Esq., Special Judge. The ordinance was illegal and void. Dillon on Mun. Corp., § 55, note 1; Ibid §§ 251, 298, 302 ; Jefferson City v. Courtmeyer, 9 Mo. 692; Com. v. Turner, 1 Cush 493. The ordinance was not published as the charter required and tvas, therefore, inoperative at the time the prosecutions complained of were had against plaintiff. Acts 1874, § 37; Dillon on Mun.

— PIon. John W. Henry, Judge. Neither party having shown a paper or other legal title to the land, and the defendant being admitted to have the prior possession, the right is presumptively with him. Prior possession is evidence of the better right as against a party not showing title, or a right to the possession. Crockett v. Morrison, 11 Mo. 3 ; Dale v. Faivre, 43 Mo. 556; Dledsoe v. Sims, 58 Mo. 305 ; Norfleet v. Russell, 64 Mo. 176.

— Hon. Theodore Brace, Judge. The section of the charter authorizing this proceeding; must be strictly construed. Cooley on Tax., p. 209, note-1; Wood on Nuis., 770, § 738. And as the claim involved-under this section was created by a summary proceeding on the part of respondent, the strictest proof will be required to make out a cause of action. Weimer v. Bunbury, 30-Mich. 201; Kansas v. Campbell, 62 Mo. 585.

— IIox. Elijah Robinson, Judge. Even if otherwise correct, the facts of this case did not warrant the instruction given for plaintiff. Glenn v. Lehman, 54 Mo. 45. The instruction is erroneous under any state of facts, and virtually annuls the statute of frauds; for, an unscrupulous creditor and Ms debtor, can avail themselves of such an interpretation of the statute as to render it wholly inoperative as a defense to the one ■whom they seek to victimize.

— IIon. E. L. Edwards, Judge. Defendant’s' refused instruction numbered 2 should, have'been given. Roberts v. Connelly, 14 Ala. 239; Boyd v. Bird, 8 Blackf. (Ind.) 113; Hill v. Wilson, 8 Ibid 123. The court also ferred in refusing defendants instruction, to-the effect that if plaintiff’s daughter was over eighteen years at the time of the alleged seduction, he was not entitled to recover, unless the relation of master and servant, existed between them.

Louis Court of Appeals. 1. The assessment of damages must, in all eases where the injunction is dissolved on final hearing, follow the decree ; and this, whether the injunction was originally granted on motion before hearing, or on interlocutory decree after ]i caring the testimony, (a) This appears from the fact that ■& jury trial is allowed. R. S. 1879, § 2712.

— IIon. Geo. W. Dunn, Judge. As between the partners themselves, the test of partnership is liability for losses, i. e. liability of eacli to lose whatever money or property be bas in tbe business as well as to answer over out of bis private estate upon tbe obligations of tbe concern. Tbe power of partners to manage and dispose of tbe firm property, and to wind up its affairs, are incident to tbis liability.

Louis Court of Appeals. The damages complained of by plaintiff are not within the protection of section 16, article, 1 of the constitution of 1865, which provided “ that no private property ought to be taken or applied to public use without just compensation.” It is not sufficient to sustain the judgment below to show that the property of the plaintiff was damaged for public use.

— Hon. Joseph Cravens,. Judge. The recital in the second deed made by Rickerson to Tieman, dated March 6th, 1861, that a sale previously made by him to Tieman was null and void, did not cancel the first deed, nor was it such a recital of record as to constitute notice of the unrecorded deed of Tieman to Rickerson of November 16th, I860. Roberts v. Grace, 16 Minn. 126; 2 Am. Lead. Cases in Eq., pp. 144, 161; Seely v. Holland, 1 Swan 396.

— Host. ~W. H. Sherman, Judge. The act in question is constitutional. State ex reí. v.Herman, 75 Mo. 340; Kilgore v. Magee, 85 Pa. 411. The-constitution is not a grant of powers to the legislature, but its province is to bind and restrain the power which the legislature possesses, independent of the limitations in it. Cooley on Const. Lim., (4 Ed.) p. 107; C. $ St. L. R. R. Co. v. Warrington, 92 111. 157; Richards v. Raymond, 92 111. 612..

— IIon. J. P. Strotiifr, Judge. (1) The suit was prematurely brought. To have entitled plaintiff to recover, it was necessary for her to show that at the time of the commencement of the suit, defendants were in possession and that plaintiff had the right to the possession. R. S. 1879, § 2247. This was dearly neg.atived by the stipulation in the contract.

— Hon. S. H. Woodson, Judge. (1) The claim of respondent that the title to the south half of the acre did not pass to Mary Frederick by the sale upon the execution is untenable, even if we concede that the father’s name was not “John” but simply Henry Frederick, and that the deed of the five acres from Joseph Henry was to the respondent by the name of “ John H. Frederick.” The judgment was against the two upon a promissory note executed by them jointly, and was a lien upon…

<p>1. Corporation: existence de jure, how determined. Whether or not a corporation exists de jure, cannot be determined in a collateral proceeding, if it appear to be acting under color of law and recognized by the State as such. The question of its being must be raised by the State itself on a quo warranto or other direct proceeding; and this is the case, although the act incorporating it or authorizing its incorporation is violative of the constitution of the State.</p> <p>2. Constitution: religious corporation. Under section 8, article 2 of the present constitution, there can he no incorporation in this State of a church for a religious or other purpose, except such as may be created under a general law for the sole purpose of holding title to such real estate as may be prescribed by law for a church edifice, parsonage and cemetery.</p> <p>3. Church Organization: incorporation. A church organization for religious purposes, continues after the incorporation of the religious body for the purpose for which such incorporation is authorized by the constitution.</p> <p>4. Church: will : incorporation. A testator willed certain real and personal estate to the Catholic Church at the city of Lexington. Subsequently and after the taking effect of the will, the plaintiff was incorporated under the same name as that of the church organization, which name it seems to have adopted with reference to the provisions of the will. Held, the plaintiff, by its incorporation, did not acquire any of the property rights of the Catholic Church organization at the city of Lexington. Whether or not the church at Lexington, as distinguished from the corporation of that name, can receive and hold the property bequeathed and devised to it, can be determined only in a suit instituted by that church.</p>

— Hon. Theodore Brace, Judge. The action being for double damages, the plaintiff’s instruction improperly placed the plaintiff’s right to recover on the fact that the fence was out of repair at the time of the injury. The defendant offered in its instructions to submit the question of its negligence, in failing to maintain the fence, to the jury. The giving of plaintiff’s instruction and the refusal of defendant’s second one was error.

— Hon. W. H. Sherman, Judge. The demurrer to plaintiff’s evidence should have been sustained. The master is not chargeable for defects in machinery causing injury to the servant, unless negligence or fault can be imputed to the master. Wood on Master and Servant, §§ 344, 382 ; Roberts & Wallace’s Liability of Employers, (2 Ed.) 113, 169; Scott v. London Loch Co., 34 L. J. Ex. 220; Schultz v. Railroad Co., 64 Mo. 32.

— Hon. George W. Dunn, Judge (1) The second instruction asked by the defendant •should have been given. The place where the animal got through or over the fence, was the. one to inquire about, not other places. Nance v. Railroad Co., 79 Mo. 196. (2) The third instruction asked by defendant should have been given. It was not shown that defendant knew or ought to have known that dirt had washed against the fence, so as to allow the animal to get over.

— Hon. F. M. Black, Judge. The petition states no cause of action against appellant, for it charges appellant with an act that it was not .and is not capable of committing. Rowland v. City of Gallatin, 75 Mo. 136; Dillon on Munic. Corp. (3 Ed) §§ 89, 561, 565 ; Fanny v. Rochester, 35 Barb. 177; Field v. Fes .Moines, 39 la. 575 ; Mitchell v. City of Rockland, 52 Me. 118.

— Hon. S. A. Richardson, Judge. Plaintiff ought not to recover for the reason that the-record shows that plaintiff’s intestate had full notice of the Dyer incumbrance on the land Dyer traded to him, and that, he depended upon Dyer removing s'ame. Both parties having equal knowledge of the condition of title, there was no fraud. See Kerr on Fraud and Mistake, p. 288.

— Hon. Gr. H. Burck-HARTT, Judge. The court should not have permitted the defendants to file their answer nine days after the case was set for trial. Squires v. Bird, 23 Mo. 472. The court also committed error in refusing to allow the- change of venue. Corpenny v. Sedalia, 57 Mo. 91. The merits on the facts were with the plaintiff. The judgment was not against the evidence, but in accordance with it.

— IIon. Silas Wooivson, Special Judge. The petition does not state a cause of action. Egerman v. Hardy, 8 Mo. App. 313; Neenan v. Smith, 50 Mo. 530; City, etc., v. Clemens, 49 Mo. 554; Weber v. Schergens, 59' Mo. 393. The notices given by the city engineer did not, comply with the ordinances of the city, and the contract was thereby vitiated. Brady v. City, 20 N. Y. 812; Riley v. Oppenheimer, 55 Mo. 375.

— ITon. Theodore Brace, Judge. The court erred in refusing the instruction asked by the defendant. The point at which the hogs sued for entered upon the defendant’s railroad was not one at which the defendant was required to, and could not lawfully, construct a fence under section 809, Revised Statutes, being within the limits of the town plat of the town of Stouts-ville. The action should have been brought under section 2124, Revised Statutes.

— Host. J. D. Foster, Judge. The consideration set forth in the written contract having failed, respondent was precluded from showing any other, there being no words in the contract indicating any other consideration. 1 Parsons on Cont., (6 Ed.) top p. 429; Emery v. Chase, 5 Greenlf. (Me.) 232; Howes v. Barker, 3 John. (N. T.) 506; Schemerhorn v.Vanderheyden, 1 John. (N. T.) 138 ; Veacock v. McCall, Gilpin (U. S.) 329 Cutter v. Reynolds, 8 B. Mon.

— Hon. Turner A. G-ill,, Judge. The motion to dismiss should have been sustained. Wildbahn v. Mobidoux, 11 Mo. 659 ; and the motion was the proper way to raise the point. Uann. v. St. J. M. B. Co. v. Kundson, 62 Mo. 569 ; Beake v. Bell, 65 Mo. 584. The objection to all the evidence, because the petition does not state facts sufficient to constitute a cause of action, should have been sustained. Pershing v. Canfield, 70. Mo. 140.

.Appeal from Mississippi Circuit Court. — Hon. J. D. Foster, Judge. (1) The writ of mandamus did not lie in this case, be■eause it was an ordinary claim for which no judgment had been rendered and for which if petitioner had a right, he had other legal and adequate remedies. When the county ■court refused to pay, an appeal was the proper remedy. R. S. §§ 1210, 1216; Mansfield v. Fuller, 50 Mo. 838; Ward v. County Court, 50 Mo. 401.

— Hon. J. D. Poster, J Edge. The indictment was sufficient. It was not necessary to aver the appointment and qualification of defendant as road-overseer. 2 Bishop Grim. Proc., (3 Ed.) § 822; State v. Tate, 5 Blackf. 73; State v. Marsh, 6 Blackf. 346; Dormar v. State, 31 Ark. 49 ; 2 Chitty Crim. Law, top pp. 181, 254, 255 ; 2 Wharton Prec. Ind. and Pleas, forms 904, 905, 906. The indictment described the road and charged that it was in defendant’s district.

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

— Hon. F. M. Black,, Judge. The court should not have admitted evidence in support of the answer, as parol evidence is inadmissible to show that the contract was different from that expressed in the writing, if the writing is not ambiguous and was understood by and expressed the intention of the parties-at the time it was executed. McConnell v. Brayner, 63 Mo-464 ; Frissell v. Mayer, 13 Mo.

— Hon. Andrew Ellison, Judge. (1) The lower court erred in admitting as evidence the copy of Morrison’s will, and in holding the same sufficient to convey or dispose of the land in question. (2)'The court also erred in admitting in evidence the deed of Henry Clay to Beckett. A foreign executor as such cannot convey lands in Missouri. Cabanne v. Skinker, 56 Mo. 367; McCarty v. Mali, 13 Mo. 480.

— IIon. Joseph Cravens, Judge. (1) The sureties are not responsible for a default of the executor made prior to the date of the bond. ■ (2) The suit and judgment in 1878 are a bar to the present action. R. S. § 581. (3) The settlement made by James, May 29th, 1876, is conclusive that he did not have in his hands $2,-523.95 as per order of the court. (4) The court had no power to make the order directing the administrator to pay to respondent $2,523.94.

— Hon. E. M. Black,, Judge. Instruction number two given for the interpleader,, Curtiss, is in direct conflict with numbers one and four, given for the plaintiffs in the attachment. If one, knowing-that a debtor is selling his property to hinder, delay or avoid the payment of his debts, buys it, and pays the full, value for it, such sales will be adjudged fraudulent. Shelley v. Boothe, 73 Mo. 74 ; Bump on Eraud.

<p>Error to Lawrence Circuit Court. — How. M. G. McGregor,. Judge.</p>

— IIon. Geo. W. Dunn, Judge. The purchasers were bound when the property was struck off to them. R. S., §§ 2384, 2385. And after the sheriff had received their money they were entitled to a deed. If Maret was liable for the taxes, plaintiff has an effective remedy at law for damages, and relief cannot be-granted. Holden v. Vaughan, 64 Mo. 588. Notice must be given the plaintiff in execution, because a vacation of the-sale destroys his right to the money realized therefrom.

— Hon. F. M. Black, Judge. In case of doubt as to the quantity conveyed by a deed, words of doubtful import are to be construed most favorably to the grantee. Winslow v. Fatten, 34 Me. 25 ; Clemens v. Bannells, 34 Mo. 584; Nelson v. Brodback, 44 Mo. 596. The rule is, that a line simply from one point to another, must be straight and must run in the shortest and most direct way. Washburn on Real Prop., § 43, side p. 632.

<p>Appeal from Knox. Circuit Court. — Hon. B. E. Turner, Judge.</p> <p>There must be proof of defilement of the wife, or of having enticed her away to sustain the action. ■ Mere solicitations are not sufficient, Gilchrist v. Bale, 8 Watts 355 ; Bigelow’s Lead. Cases on Torts, p. 328 ; Hutchinson v. Peck, 5 John. 196; Modisett v. McPike, 74 Mo. 636. There was-no cause of action to compromise, hence there was no consideration for the note. Wade v. Simeon, 2 C. B. 548; Sav. B’k v. Concord, 15 N. H. 119; Long v. Towle, 42 Mo. 545,</p> <p>The plaintiff assumes that because the pleadings do not show that defendant’s wife was debauched or enticed away he had no right of action against plaintiff, and hence the compromise note taken in settlement was without consideration and void. This is manifest error. “A husband has the right to sue, for damages, all persons who seek to entice her away with malice or improper motives.” Schouler’s Domestic Relations, p. 57, and cases cited. Also,, for the “ loss of the wife’s affections.” Cooley on. Torts, 224; Hoard v. Peck, 56 Barb. 202; Heermance v. James, 47 Barb. 120.' The latter case is right in point. There was no crina, con. and no enticing away. Neither does it follow that if defendant had no right of action the note is without a sufficient consideration. The controversy between the paz-ties was a sufficient consideration to support the promise. “ The preventiozi of litigation is not only a sufficient but a highly favored consideration.” 1 Parsons on Cont., (6 Ed.) § 4, p. 438; O’Keeson v. Barclay, 2 Pa. (Pen-rose & Watts) 531. This last case was a suit on a note given in settlement of a slazzder suit, in which the petition stated no cause of action whatever, but the note was held valid. And bozzds issued under azi unconstitutional statute az*e void, but bonds issued in payment thereof, made uzider a valid statute, are good. Admit, for argument’s sake, that plaintiff’s defense to defendant’s demand for damages was ever so good, yet if he compromised and settled with defendant with a full knowledge of all the facts, in the absence of any fraud, then he is bound by the settlement. Draper v. Ordsley, 15 Mo. 613; Livingston v. Dugan, 20 Mo. 102; Adams v. Sage, 28 N. Y. 103; Stover v. Mitchell, 45 111. 214; Steel v. White, 2 Paige’s Ch. 478.</p>

— Hon. Geo. W. Dunn,. Judge. (1) The statement does not state facts sufficient, to constitute a cause of action. Luckie v. Railroad Co., 67 Mo. 245 ; Sloan v. Railroad Co., 74 Mo. 48; Bates v. Railroad Co., 74 Mo. 60; Johnson v. Railroad Co., 76 Mo. 558. (2) The statute required the fence, so far as this case is concerned, for the benefit of King, the adjoining owner.

— Hon. E. L. Edwards, Judge. The plaintiffs could not maintain their action against the former executor and his securities; they should have proceeded against the administrator in charge of the estate. R. S., §§ 48,49; State v. Hunter, 15 Mo. 388; Scott v. Crews, 72 Mo. 261. When an administrator resigns, it is his duty to pay over all funds of the estate in his hands to his successor; the former has no authority to make distribution after his office ceases.

Louis Court of Appeals. (1) Appellants are beneficiaries tinder the will of their .grandfather and take by purchase and not by inheritance, .and consequently they are the proper parties to bring this action and can maintain the same. Upwell v. Halsey, 1 P. Williams 651; Wright v. Miller, 8 N. Y. 9; Smith v. Dell, >6 Pet. 68; Peake v. Johnson, 6 Mo. App. 589.

<p>Appeal from Jasper Circuit Court. — PIon. M. G. McGregor, Judge.</p> <p>Evidence of other like attempts was admissible to show the intent with which the act was done. Wharton Grim. Ev., (8 Ed.) § 31, et seq.; 3 Greenleaf Ev., (14 Ed.) § 15. Such evidence has been admitted in like cases. Comm. v. Coe., 115 Mass. 481; 1 Gen. Law Jour. 481; Comm. v. Stone, 4 Met. 43; Bainbridge v. State, 30 Ohio St. 264; Gassenheimer v. State, 52 Ala. 313. The clerk had a special property in the money. Larceny could have been committed ■of it in his hands, and so could the offense charged. 1 Wharton Grim. Law, (8 Ed.) §§ 932a, 938; Comm. v. Butts, 124 Mass. 449 ; State v. Nelson, 11 Nev. 334.</p>

— Hon. Gr. H. Burckhartt, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. The laws of this State do not fix a rate for which saw-logs shall be carried over railroads in this State. If respondents desired to show that saw-logs belonged to, and were to be included among heavy fourth-class articles, they should have so alleged, and thus afforded appellant an opportunity to deny it and put them to the-proof.

— IIon. A. J. SeayJudge. The words charged are not actionable, and the words proved are not only not the same in substance, but are not even equivalent, and do not convey the same ideas. The first instruction for plaintiff was erroneous in the use of the words “in substance,” or “ substantially.” Attebury v. Powell, 29 Mo. 427.

— Hon. J. D. Foster,. Judge. (1) The appellant had the better paper title. (2) The appellant had also a good title under the statute of limitations, for the testimony that Snow had been in actual, continued, open, notorious, hostile and adverse possession of the premises under a warranty deed from Hill for about twenty-three years before the institution of this suit, and possession of any part of the tract was possession of the whole.

<p>Error to Cass Circuit Court. — Trial before Hon. E. M. Black, J udge of tbe Twenty-fourth J udicial Circuit.</p> <p>■ No one can, by paying a part of the consideration and purchase price of real estate, become a joint tenant in the ownership thereof or of a right therein, to any definite or defined extent, without having furnished and paid some aliquot part of the purchase price, with the distinct understanding or agreement that for the money so furnished and paid, some aliquot part, or proportion, or some defined interest or estate should thereby be acquired by the person so furnishing such money. Bresnehan v. Sheehan, 125 Mass. 11, 18; McGowan v. McGowan, 14 Gray 119, 121, and authorities; Buck v. Warren, 14 Gray 122; Snow v. Paine, 114 Mass. 520, 526 ; Olcott v. Bynum, 17 Wall. 44, 59; Cuttle v. Tuttle, 19 N. J. Eq. 561, 562 ; Baker v. Vining, 30 Me. 121. The conveyance to Thomas McKean was without consideration, and he being insolvent at the time, it is fraudulent and void. R. S., § 2497; Woodson v. Pool, 19 Mo. 340 ; Potter v. McDowell, 31 Mo. 62; Powley v. Vogel, 42 Mo. 291. The answer of Thomas and Thompson Mc-Kean did not tender any issue, as it denied only the material allegations of the petition. Long v. Long, 79 Mo. 644. Eliza McKean having failed to- testify in her own behalf, when all the alleged facts on which she predicated her ■claim were peculiarly within her personal knowledge, the •evidence must be construed strongly against her. Baldwin ■v.Whitcomb, 71 Mo. 651; Mabery v. McClurg, 74 Mo. 575.</p> <p>Defendant, Eliza McKean, furnished $840 of the money with which the land in controversy was bought, and her husband furnished the balance. He having received the 4840 from'¡her, with an agreement at the time of doing so, ■that he would invest it for her, the fact that he advanced a part of the purchase money for said land, and took the title ■thereto in his own name, does not deprive her of her equitable interest therein. She was entitled to her proportionate part of the property thus purchased, and paid for, with Rer money. Thompson v. Beño, 12 Mo. 157; Sloan v. Torry, 78 Mo. 623; Bumgartner v. Guessfeld, 38 Mo. 41, and citations ; Thorp v. Thorp, 3 Met. (Ky.) 272 ; Lyon v. Akin, 78 N. C. 258; Bhea v. Tucker, 56 Ala. 450; Botsford v. Burr, 2 Johns. Ch. 405; Tibbetts v. Tilton, 31 N. H. (11 Foster) .282, 283, and citations; Hall v. Young, 37 N. H. 147,148, .and citations; Sheldon v. Sheldon, 3 "Wis. 703, 704; 2.Bish-op’s Law of Married "Women, §§ 125, 126.</p>

— Hon. Turner A. Gill* Judge. When a contract for service, although for a term, is determinable by either party when they become dissatisfied, it may be ended by either at any time whether there be cause for dissatisfaction or not. Under such a contract a party is not bound to assign a cause for terminating the. contract.

— Hon. G. D. Burgess,, Judge. The court erred in permitting Willis H. Johnson’s deposition to be read against appellants while the witness was-then present in the room. R. S. 1879, § 2157. The court erred in. permitting a part of Willis H. Johnson’s deposition to be read; plaintiff should have read the whole of it. Hill v. Sturgeon, 28 Mo. 323; Kritzer v. Smith, 21 Mo. 296. The decree of the court was not supported by the evidence..

— Hon. Gr. D. Burgess, Judge. The court erred in saying to the jury that if tbe Huiskamps had knowledge of Braidwood’s intent to defraud the conveyance was fraudulent. It was admitted that interpleaders were in good faith creditors. In such case a mere knowledge of a fraudulent intent on the part of the grantor does not avoid the conveyance. The grantee must participate in the fraud. This is the modern and now well settled rule.

<p>Appeal from Jackson Circuit Court. — Hon. E. M. Black, Judge.</p> <p>(1) No statutory dedication is claimed, nor was there a common law dedication. As to what constitutes a common law ’dedication, see Brinde v. Collier, 56 Mo. 160; 2 Greenleaf on Ev., (13 Ed.) p. 591, § 662. (2) There was no acceptance; but the intention, more or less clearly expressed in deed to Holmes, was revoked. As to right to revoke, see 8 Minn. 494; 31 Cal. 589; 1 R. I. 519. (3) The evidence of revocation consists of the deed without reservation from Holmes to defendants, (as in Minnesota case cited,) also the unconditional warranty deed from Marty to defendants of twelve and a half feet in width of the land in dispute, given at a time when he and defendants owned the whole of the land through which Marty after-wards platted such street. Also payment of taxes, both by Holmes and subsequently by defendants to present time. As to effect of payment of taxes, see Brinde v. Collier, 56 Mo. 166.</p> <p>(1) There was a complete and entire dedication of the land for the street. The vital principle of dedication is the intention to dedicate, and when this is unequivocally manifested the dedication, so far as the owner of the soil is con■cerned, has been made. Angelí on Highways, (2 Ed.) ch. 3, § 142, p. 146; 2 Greenleaf Ev., (13 Ed.) § 662, p. 591; JBrinck v. Collier, 56 Mo. 160; Missouri Institute, etc., v. Howe, 27 Mo. 211; Becker v. St. Charles, 37 Mo. 14. A dedication may be made to take effect in the future. Jersey City v. Morris Canal Co., 1 Beasley (12 N. J. Ch.) 547. No immediate acceptance by the public was necessary. Rose v. City •of St. Charles, 49 Mo. 510; Taylor v. City of St. Louis, 14 Mo. 20. Selectmen, etc., v. Bummer, Spencer (N. J.) 106; Jersey City v. Morris Canal Co., supra. No grantee is necessary in a deed of dedication. Jersey City v. Morris Canal Co., supra; Cincinnati, etc., v. White, 6 Pet. 431. Both Holmes and Marty, by accepting the deeds containing the dedication, assented to such dedication, and they and their grantees are bound by it. Jersey City v. Morris Canal Co., supra. (2) There has been no revocation of the dedication. Jersey City v. Morris Canal Co., supra; Selectmen v. Bummer, supra.</p>

— Hon. Andrew Ellison, Judge. On the trial of the cause the court gave, among others, the following instructions which are complained of by ap-' pellant: 6.

— Hon. S. H. ■’Woodson, Judge. (1) The evidence excluded by tbe court was both relevant and competent. It tended to rebut any inference of fraud as alleged that could possibly be made from other facts given in evidence. (2) A court of equity will not relieve against the stipulations or covenants contained in a contract except on the ground of fraud or mistake in consequence of which such stipulations or covenants are entered into.

Louis Court of Appeals. Advice, persuasion or entreaty does not constitute undue influence, and will not vitiate a gift made freely and from conviction of its propriety, though, such gift might never have been made but for such advice, persuasion or entreaty. Howe v. Howe, 99 Mass. 99 ; Children’s Aid Soc. v. Loveridge, 70 N. T. 394; Breck v. Breck, 66 N. T. 144;. Zimmerman v. Zimmerman, 23 Pa.

Louis Court of Appeals. (1) On this record Zeitinger & Zoppi could not maintain ejectment or trespass; then how can a purchaser under :.a deed of trust do so for the breach of a contract made by the grantors in said deed of trust subsequent to such deed ■of trust, but long prior to a forfeiture thereof ?

— Hon. Wm. T. Wood, Judge. The note from which this suit originated was for the sum of $1,250, payable to Cyrus Newkirk and signed in their individual capacities by the trustees of the Methodist Episcopal Church at Sedalia, and by plaintiff, then pastor of the church. Afterwards Newkirk recovered judgment on the note against plaintiff, and sold land of the latter under execution thereon, and bought it in for a small sum at the execution sale.

<p>'Execution. A second execution should not he quashed merely because it is not entitled an “ alias execution.”</p>

— Hon. J. P. Strother, Judge. (1) The court erred in admitting and excluding testimony. It was competent to prove by Tucker the value of the stable, and that the same and the damage for being kept out of possession of the lot sold to defendants, was not included in or settled in the note. A note is only prima facie a settlement of prior, dealings, and the contrary may be shown in action between the original parties to it.

— Hon. G. D. Burgess, Judge. It is contended that the taking was in Iowa and not in Mercer county, Missouri, and that the evidence, therefore, is not sufficient to convict, the court having no jurisdiction of the offense.

— Hon. J. H. Foster,, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. 2 Wag. Stat., p. 1214 c; Well-shear v. Kelley, 69 Mo. 343. (2) The assessor of Scott county had no authority or power, at the time of the alleged assessment of said lands, to-wit: for the years 1872, 1873,1874, 1875 and 1876, to assess the same, and the assessment is, therefore, wholly void. Allen v. Armstrong, 16 la. 508; Abbott v. IAndenbower, 42 Mo. 162.

— Hon. G. H. Burckhartt, Judge. (1) The court below erred in permitting plaintiff’ to -amend his complaint. The fact that the injury sued for .happened in Sugar Creek township, or an adjoining township, was required to appear from the justice’s proceedings, and in its absence there was no jurisdiction.

— IIon. W. IT. Sherman, Judge. (1) Tbe court erred in permitting defendant to testify tbat Mansfield, wbo was dead, gave her the lot, because Mansfield, one of the contracting parties, being dead, the other party could not testify, and because the declarations of Mansfield were not proper testimony to prove title in himself or defendant, or in disparagement of his title. 1 Greenleaf’s Ev., §§ 109,110. (2) The court erred in refusing to give plaintiff’s instructions as asked.