Volume 83 — Missouri Reports

— Hon. S. H. Woodson, Judge. (1) The instructions given for plaintiff, even if abstractly correct, ignore the actual issues presented by the pleadings, while those asked for by defendants present the real and only issues of the case and embrace the substantia] merits of the controversy.

- Hon. Silas Woodson, Special Judge. (1) The plaintiff, by its charter, was authorized to take the note shed on. (2) Plaintiff’s third instruction should have been given. Porter v. Hodenpuyl, 9 Mich. 11; Bank v. Whitman, 66 Ill. 331; Hinds v. Ingram, 31 Ill. 400; Rindskoff v. Doman, 28 O. St. 416; Long v. Disner, 71 Mo. 452.

J. D. Foster, Judge. The defendant may, in his answer, state “any new matter constituting a defense.” R. S. sec. 3521. And judgments may be given for or against one or more of several plaintiffs, * * *' and may determine the ultimate rights of ’the parties cm each side as between themselves, and may grant to the defendant any affirmative relief to which he may be entitled. R. S. sec. 3673. The new matter Should not have been stricken out of def end-ant’s answer. .

— Hon. N. M. Givan, Judge. (1) That part of the answer setting up title acquired from Embree’s heirs was inconsistent with the admission that Carnahan purchased of plaintiff, as administrator of Embree, so the motion to strike out should have prevailed. R. S., § 3523; Atterbury v. Powell, 29 Mo. 429: Nelson v. Brodhack, 44 Mo. 596.

— Hon. A. J, Seat, Judge. (1) The petition did not state a cause of action. The statute, Gr. S. 1865, p. 366, did not authorize the association to enter into the contracts with Pcehler which are declared on in the' petition. Field on Corp., sec. 54. (2) The by-laws of the association providing that in case-of non-payment of dues for four months, the delinquent shares should be forfeited, were oppressive and unreasonable and therefore void.

— Hon. Elijah Robinson, Judge. The alleged contract was within the statute of frauds and defendant’s objections to the proof thereof by parol should have been sustained. Horsey v. Graham, L. R. 5 C. P. 13; Mather v. Scoles, 35 Ind. 2 ; 2 Wharton Ev., sec. 863; Martin v. Wharton, 38 Ala. 637; see also Browne St. Pr. secs. 230, note 5,263-6-7-8, 511; Bryan v. Jamison, 7 Mo. side p. 106 top 158; see Hook v. Turner, 22 Mo. 335.

— Hon. R. W. Fyan, Judge. (1) No objection was made in the lower court to the petition, either by demurrer, answer or otherwise. (2) The final settlement was fraudulent and should be set aside. In his settlement with Bigger, Leslie was acting for his own interest and not for Ms ward, a course inconsistent with his duties. White v. Parker, 8 Barb. 48; Williams on Executors, p. 449; Reeves Dom.

— Hon. S. H. Woodsow, Judge. The record shows, in brief, a suit instituted; bond and affidavit in attachment filed; property of defendant seized by the proper officer, under writ of attachment, and in custodia legis ; plea in abatement filed by defendant ; issue upon plea in abatement submitted to court; twelve days thereafter defendant’s death suggested. The question arises, what was the duty of the justice in the premises % The remedy by attachment is purely statutory.

Louis Court of Appeals. (1) It is the duty of the court to construe a contract; to declare its meaning and effect to the jury. San Antonio v. Lewis, 9 Tex. 69 ; Goddard v. Foster, 17 Wall. 142; Smith v. Faulkner, 12 Gray 251; Thomas v. Thomas, 15 B. Monroe 178; Whittelsy v. Kellogg, 28 Mo. 404. (2) It is the duty of the court to construe an ambiguous contract in the light of the surrounding circumstances. M. & M. R. Co. v. Jurey, 111 U. S. 592; Barreda v. Silsbee, 21 How.

— Hon. S. H. Woodson, Judge. (1) The averments in the answer do not state any contract, agreement or covenant, nor any good consideration for either. Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Mastin v. Halley, 61 Mo. 196; Pier v. Heinrichoffer, 52 Mo. 833 ; Bayse v. Ambrose, 32 Mo. 484. (2) The court erred in refusing the declarations of law asked by plaintiff and giving the 4th one asked by the defendants.

— Hon. N. M. Givan, Judge. (1) The acceptance of the check by the cashier discharged Zoll, the drawer. The bank became the principal and only debtor. It extended the time of payment and operated likewise to discharge Zoll’s sureties, and declaration No. 3, requested by defendants, should have been given. Williams v. Jenson, 75 Mo. 681; Taylor v. Newman, 77 Mo., loc. cit. 264, 265; 2 Dan. Neg. Inst., §§ 1601, 1610.

— Hon. J. D. Foster, Judge. (1) A judgment rendered on a motion to quash, an execution is a final one, and an appeal will lie from it. (2) The judgment was not responsive to the issues made and was void. Ross v. Ross, 81 Mo. 84. (3) The action of the court making the amendment to the judgment was wrong. Freeman on Execution, sec. 75. (4) The motion to quash should have been sustained. Freeman on Executions, secs. 20, 73 and 75; Freeman on Judgments, sec. 117.

— Hon. Theodore Brace, Judge. Plaintiff was only entitled to have the judgment of the justice affirmed in case the appellant failed to give the required notice of the appeal at least ten days before the second term. Eev. Stat., § 3057. The statute does not make a failure to give notice ten days before the first term cause for an affirmance.

— Hon. M. J. McGregor, Judge. The finding and judgment of the trial court are wholly unsupported by the evidence. Mrs. Gray never consented to the provision of the deed.. • Nor is there any estoppel in the case against her — an estoppel in pais must be specially pleaded. Guinn v. Simes, 61 Mo. 339.

— Hon. Geo. H. Burckhartt, Judge. Under the pleadings and the evidence, plaintiff was not entitled to recover. It was not liable as a common carrier, for the transit was ended and the goods were safely stored before the fire.- Angelí on Carriers, sec. 304; Story on Bailments (9th Ed.), secs. 448 and 538; Thomas v. R. R., 10 Met. 472; Noway, &c. v. R. R., 1 Gray 263; Rice v. Hart, 118 Mass. 208; Holtzclaw v. Duff, 27 Mo. 394; Cramer v. Express Co., 56 Mo. 524.

Mandamus. (1) The first ground of demurrer -which questions, the power of all educational institutions created under, R. S., Art. X, p. 178, to issue diplomas, or to confer degrees] upon their graduates, is not well taken. The act ofj March 3,1874 (Laws, page 23) is still in force. R. S. sec. 3160 must yield to R. S. sec. 3161 (Powers v. Barney, 5 Blatch. 203), or they must nullify each other. State ex rel v. Heidorn, 74 Mo. 410.

— Hon. V. B. Hill, Judge The action of the circuit court in excluding from evidence the tax receipt and other testimony offered was such as to preclude a recovery by plaintiff. The action of the court cut the plaintiff’s case up by the root, and the only thing left for it to do was to take a non-suit. Yankee v. Thompson, 51 Mo. 241; Hageman v. Moreland, 33 Mo. 86; Koeger v. Hays, 57 Mo. 87.

<p>1. Pleading: passenger rooms at railway crossings: statute. In an action before a justice of the peace against a railroad, founded on R. S., sec. 797 as amended by the act of the General Assembly approved March 25, 1881, for the failure to erect passenger waiting rooms at railroad crossings, the statement is fatally defective which omits to aver that the intersecting railroads were both carriers of passengers.</p> <p>2. Constitution: police power. The requirement by the legislature of the erection of such passenger waiting rooms at railroad crossings is a x>roper exercise of police power of the state.</p>

Louis Court of Appeals. (1) It is submitted respondents were not entitled on the evidence to recover -upon tbeir pleadings. The petition avers and seeks to enforce the specific performance of a written contract between them and appellant, whereas none was proven, or shown to have an existence.

— Hon. D. L. Hawkins, Judge. (1) Irrespective of the question as to whether the one or the other of the two lines spoken of is the correct line between lots 4 and 5, the judgment should have been for the defendant under the statute of limitations. Majors n. Rice, 57 Mo. 384; Hamilton v. West, 63 Mo. 93; Walbrunn v. Ballew, 68 Mo. 164; Cole v. Parker, 70 Mo. 372.

— Hon. Theo. Brace, Judge. (1) The letter of Poster Ray in evidence is the only new matter pleaded. By it respondents’ case must abide. They cannot sustain the defence by. evidence alien to the issue. Kuhn v. Weil, 73 Mo. 213; Clement v. Yeates, 69 Mo. 623; Weil v. Posten, 77 Mo. 284. (2) The answer set forth -an absolute independent written agreement and defendants could not graft a verbal one on it. Henning v. United States, etc., 47 Mo. 425; Stix v. Matthews, 75 Mo. 96.

— Hon. G. W. Dunn, Judge. '(1) The statement is fatally defective. It does not show that the animal came upon the defendant’s track at a point other than at public crossing, or within the switch limits of a station or an incorporated town. Davis v. M., K. & T. Ry., 65 Mo. 441; Rowland v. St. L., I. M. & S. Ry., 78 Mo. 619 ; Sullivan v. Hannibal & St. J. Ry., 72 Mo. 195; Asher v. H. & St. J. Ry., 79 Mo. 432; Hudgens v. H. & St. J. Ry., 79 Mo. 418.

— Hon. G. H. Bubokhabtt, Judge. (1) There was evidence sufficient to go to the jury upon the question of the want of testamentary capacity of the testator. Benoist v. Murrin, 58 Mo. 307; Young v. Ridenbaugh, 67 Mo. 574; 1 Redfield Wills, 520-1. (2) If the testimony of Mrs. Jackson be true (and that was a question for the jury to determine), the testator was influenced in making the will, as to her, by a delusion. Benoist v. Murrin, 58 Mo. 307.

<p>i. Mote, Action on: pleading. In an action on a note against the maker and endorsers,an allegation that on the day it became due the note was duly presented to the maker and that payment was refused is a sufficient averment of a demand and a refusal.</p> <p>•2. Appeal. Nothing but the record proper can, in the absence oí a bill of exceptions, be reviewed on appeal.*</p>

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

G. D. Burgess, Judge. The appeal should not be dismissed. The statutory requirement that an affidavit for an appeal should be filed at the term at which the appeal is taken may be waived by the respondent. Jacobs v. Morange, 1 Daly 523, 527. The statute governing the filing of bills of exceptions requires them to be filed at the term at which the same are taken “and not after! R. S., sec. 3636. But parties can, by consent, extend the time beyond the term.

<p>1. Practice: instructions : exceptions. "Where a case at law is tried before the court sitting as a jury, and no instructions are asked or given and no exceptions saved, there is no error reviewable in the Supreme Court and the judgment of the circuit court should be affirmed, unless, perhaps, there should be no evidence at all to support the verdict.</p> <p>2. -: evidence : exceptions. To enable the appellant to avail a himself of the errors of the trial court in admitting or rejecting evidence, the bill of exceptions must show that he excepted to the action of the court in admitting or rejecting the evidence at the time.</p>

<p>Appeal from Dunklin Circuit Court. — Hon. H. H. Bed-ford, Special Judge.</p>

<p>Bill of Exceptions, Requisites of. There must he an entry of record to make a bill of exceptions a part of the record in term time, and where leave is granted, with consent of parties, to file a bill in vacation, there must be some certificate on the bill itself, signed by the clerk, indicating the fact and date of filing, or some entry made by the clerk in the records of the court to that effect-.</p>

— Hon. E. L. Edwards, Judge. (1) The statements alleged to have been made to different witnesses by the members of the firm of Hayes, Eager & Co. were not communicated to defendant in error, if at all, until after he made the contract with Smith to do the work for which the suit was brought, and were, therefore, inadmissible in evidence. Smith’s Leading Cases (5 Amer. Ed., Hare & Wallace’s notes) pp. 981, 982; Freeman v. Broomfield, 43 Mo. 391.

— Hon. T. A. Gill, Judge. First. The relation of respondent Harrison to the Missouri Valley Bank was, throughout the entire period of thirteen months, which covered the transaction in question, never anything but that of creditor to debtor. The fact that Harrison deposited his money in the Missouri Valley Bank, with the view of loaning the same through that bank on real estate in Kansas City, does not in the least change the nature of the deposit. Second.

— Hon. Elijah Robinson, Judge. (1) Under a contract the liability of the defendant is conditional upon a sale by him which rests entirely within his discretion. Until that event happens the promise of defendant is inoperative and cannot be enforced. 1 Whar. Con., 784; Nelson v. VanBonhorst, 29 Pa. St. 352; Barry v. White, 59 Pa. St. 173. Conditional contracts are to be construed like all other contracts. 2 Parson on Con. (7 Ed.) 526; 1 Whar. Con. 740, 741.

— Hon. W. T. Wood, Judge. The deed from Charles Lewis and wife to Sally G-. Lewis was a valid one as to the parties thereto and so far as Henry B. Lewis was concerned, even though void as to the existing creditors of the latter. Henderson v. Henderson, 13 Mo. 151; McLaughlin v. McLaughlin, 16 Mo. 249; Reid v. Mullins, 48 Mo. 344; Hall v. Callahan, 66 Mo. 323. The deed of trust from Sally Gr.

— Hon. J. P. Strother, Judge. It is well established, by a line of decisions almost uniform, that a subscription, such as is here in question, is enforcible at common law on the ground that it constituted a continuing offer or promise, although made before incorporation, to subscribe to the capital of the company when incorporated, and which, when accepted by the company after incorporation or organization, becomes a valid subscription, and'enforcible as such.

Louis Court of Appeals. (1) The verdict was excessive. In such case the judgment will be reversed. Benson v. Railroad Co., 78 Mo. 504; Marshall v. Railroad Co., 78 Mo. 610. (2) It was error to admit John Merrill as a party plaintiff during the progress of the trial. He was a necessary party (R. S. § 3468) and could have been brought in by an amendment of the petition. R. S. § 3568.

— Hon. John E. Ryland, Judge. Appellant was indicted for murder in the first degree for killing one Thomas Powell, and upon trial was convicted of murder in the second degree. The court gave, among others, the following instruction for the state: 7.

— Hon. Theo. Brace, Judge. This action was brought against the city of Hannibal to recover damages in the sum of five thousand dollars for the death of one Barthold Weber by reason of the alleged negligence of the defendant in not properly protecting an excavation made in the limits of one of its streets.

— Hon. Tueneb A. Gill, Judge. The pergonal judgment rendered against Mary J. Odell and her husband, David O. Odell, was an absolute nullity and constituted no defence to appellant’s cause of action against David C. Odell. A personal judgment cannot be rendered in this state against a married woman by a justice of the peace. A judgment against several defendants is an entirety and is good as to all or bad as to all. If it is void as to part it is void as to all.

Genevieve Circuit Court. — Hon. J. D. Fox, Judge. It is no ground for objection that the names of the material witnesses for the State were not indorsed on the indictment. The only way in which such failure could affect the State was that no continuance could be granted it, except upon the affidavit of the prosecuting attorney. R. S. 1879 § 1802; State v. Nugent, 71 Mo. 136 ; State v. Patterson, 73 Mo. 695.

— Hon. George W. Dunn, Judge. (1) The first instruction given for the plaintiff was-wrong in that it did not confine the jury in its finding to the facts alleged in the petition to constitute unskilfulness in the construction of the bridge. Price v. R. R., 72 Mo. 416; Waldhier v. R. R., 71 Mo. 514; Edens v. R. R., 72 Mo. 212. (2) The second instruction given for plaintiff was erroneous. He was permitted by it to recover whether defendant was in fault or not.

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

Louis Court of Appeals. The court of appeals erred in holding that the case, after it was sent back to the circuit court, was not open for a retrial and that the action of that court in referring the issues arising on the seventh exception to Judge Holmes was error. The proceeding was a statutory one, -or one at law, and after the reversal by the Supreme Court was open for a re-trial.

— Hon. Theo. Brace, Judge., (1) The information is insufficient in form because-verified only by the oath of a private citizen and not by the oath of the prosecuting attorney. Con. of Mo., art.. 2, § 12; State v. Kelm, 79 Mo. 515; R. S., 1879, §§ 1762, 1764, 2025. (2) The information is defective in substance.

— Hon. V. B. Hill, Judge. (1) The tract against which the lien is sought to be enforced being over one acre in extent, the judgment is contrary to law and cannot stand. Engleman v. Graves, 46 Mo. 348; Williams v. Porter, 51 Mo. 441; Wright v. Beardsley, 69 Mo. 548; Hanson v. Sheehan, 78 Mo. 668. (2) The defendant pleaded payment in the answer and no reply was filed, and the judgment is erroneous for that reason. R. S., secs. 3524, 3525, 3545.

— Hon. Noah M. Givan, Judge. The order and judgment of the county court, finding that defendant had complied with the law as to obtaining the necessary signers to his petition and granting him a license, was not collaterally assailable, and defendant could not be convicted while acting under such order.

— Hon. E. L. Edwards, Judge. The motion to strike out part of defendant’s answer, should have been overruled by the court.

— Hon. P. P.. Wright, Judge. The delivery was complete so soon as the grantor lost the control, and the grantee had the control, or it was in the possession of his agent. The possession of the agent is the possession of the principal. 2 Greenleaf, Ev. 297; 4 Kent (11th Ed.) side page 454; Scrugham v. Wood, 15 Wend. 545; Verplank v. Sterry, 12 John. 536 ; Ruggles v. Lawson, 13 John. 285; Carter v. Mills, 30 Mo. 432; Yarnell v. Yarnell, 6 Mo. 326.

<p>Appeal from Jackson Circuit Court. — Hon. Turner A. Gill, Judge.</p>

Louis Court of Appeals. The contract sued on as alleged in the petition is a contract of a feme sole and it must be construed and its force and effect declared according to the laws of the state where it was made. Sureties, endorsers and guarantors are liable only according to the law of the place where their contract is made. Wharton’s Conflict of Laws, sec. 439 ; Story’s Conflict of Laws, secs. 278, 279; Aymar v. Sheldon, 12 Wend. 439.

Louis Court of Appeals. (1) Creamer’s agreement to “.sell to any purchaser and at any price plaintiff might direct,” is an agreement to sell to plaintiff, if he so direct. (2) It being an agreement to sell, it ran with the land, and Noonan purchasing with full knowledge of that agreement, cannot thus defraud Miller, but stands in Creamer’s shoes, and must carry out his agreement. Story’s Eg. Jur. (11th Ed.) secs. 395, 396 ; Pomeroy’s Eg. Jur., sec. 1404.

— Hon. Andrew Ellison, Judge. (1) Respondent’s 4th and 8th instructions put the case to the jury on a wrong theory. Respondent in going on to the sidewalk as he did was guilty of such contributory negligence as to preclude a recovery, and the court should have so instructed. The injury was directly due to his own negligence. 1 Thompson on Negligence, p. 169 ; 2 Ibid., pp. 1104 and 1129 ; City of Erie v. Magill, 2 Amer. Corp. Cases, 3; Goshen v. Smith, 92 Pa.

— Hon. G. D. Bubgess, Judge. (1) This indictment was drawn under sec. 29, Gr. S. 780 (R. S. 1879, sec. 1262). The offence described is a felony and no person can be proceeded against therefor but by indictment, and this is not an indictment. Con. 1865, art. 1, sec. 24; Con. 1875, art. 2, sec. 12. The word indictment as used in section 12 has a well defined meaning. Ex parte Slater, 72 Mo. 102 ; Cox ¶. The State, 8 Tex. App. 254 ; Allen n. State, 13 Tex. App. 28.

— Hon. W. H. Sherman, Judge. The transaction between Richey and Burnes was not-an absolute sale but depended on Stumpff’s exchanging his house and lot for the mining stock. Where a sale depends on condition no title passes until the condition has been performed. Ridgeway v. Kennedy, 52 Mo. 24; Barrow v. Coles, 3 Camp. 92; Rogers v. Whitehouse, 71 Me. 222; Benjamin on Sales (4 Amer. Ed.) secs. 366, 392, 425.

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

.Appeal from Jackson Circuit Court. — Hon. P. M. Black, Judge. The assignment laws of the state of Kansas ought not to be given extra-territorial force. It is only out of considerations of comity that foreign assignments will be . respected here. Where the rights of creditors have intervened as by attachment they should be entitled to priority as against the foreign assignee.

— Hon. Chas. G. Burton, Judge. Under the statute, this action could only be brought before a justice of the peace of the township in which the injuries sued for happened, or some adjoining township. Rev. Stat., § 2839.

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

— Hon. G. D. Burgess, Judge. (1) The plaintiff is entitled to be subrogated to the rights of the holder of the mortgage note. He paid the money as administrator under mistake of fact and is entitled to the relief asked. 1 Story Eg. Jur. (8th Ed.) sec. 90. (2) It was the duty of the administrator, if the assets were sufficient, to pay off the mortgage debt. Creed v. Myer, 64 Ill. 495.

— Hon. Gr. H. Burckhartt, Judge. (1) The award rendered by the arbitrators was invalid because the arbitrators were never sworn. The arbitrators, having failed to require the witness to testify under oath, and the necessity of an oath not having been waived by the defendant, the award is a nullity, and no action can be maintained' upon it. Wolfe v. Hyatt, 76 Mo. 156 ; Bridgman v. Bridgman, 23 Mo. 272.

Francois Circuit Court. — Hon. J. H. Nicholson, Judge. The defendant’s demurrer to the evidence should have been sustained. The facts of this case bring it within the rule announced in Braxton v. R. R., 77 Mo. 455.

— Hon. N. M. Givan, Judge. The statement filed with the justice and upon which this case was tried in the circuit court charges the killing and injury to cattle at one time and the killing of five hogs at different times upon which there was a general verdict and judgment.

— Hon. Elijah-Robinson, Judge. (1) It was a fatal error to unite school and building' purposes in one levy, as they are wholly separate and distinct under both the constitution and statutes of Missouri. (2) By the method of distribution provided in R. S., sec. 6880, the tax in question when collected became' a part of the public school fund and could not be issued for building purposes or for paying off existing indebtedness.

— Hon. N. M. Givan, Judge. (1) The release not being a satisfaction in full of the judgment did not destroy the power to issue execution and sell the property of the judgment debtor, for the reason that a sale under a satisfied judgment is void •only for lack of power to issue execution thereon. McClure v. Logan, 59 Mo. 234; Durette v. Briggs, 47 Mo. 361.

— Hon. F. M.. Black, Judge. Notice to a person as an agent to bind one as principal must be to the agent in fact of the one for whom notice is intended, and it must be given while agency exists, and not, as was done in this case, Hayward v. National Insuranc Company, 52 Mo. 181; Golson v. Ebert, 52 Mo. 260; Haven v. Brown, 7 Greenleaf 421; Hubbard v. Elmer, 7 Wendell 446; Rev. Stat., sec. 3190. Agency must be proven, which was not done-in this case.

— Hon. P. M. Black, Judge. Appellants had judgment against Smith, assignee, and respondent Smith, assignee, had judgment against appellants. Independent of any^ statute, these judgments, under general law, should have been set-off. The court erred in overruling the motion of Carl and John Spengler to set-off these judgments.

— Hon. Nelson Cobb, Special Judge. The surviving partner was not entitled at common law to compensation for winding up the partnership estate. Story on Partnership, secs. 182 and 331; Collyer on Part., (Perkins Ed.) sec. 183; Parsons on Part., pp. 229, 230; Paine v. Thatcher, 25 Wend. 452; Brown v. McFarland, 41 Pa. St. 129; Johnson v. Harthouse, 52 N. Y. 173. Nor is there any statutory provision changing the common law rule. Benny v. Turner, 2 Mo.

<p>1. Judgment, when not subject to Collateral Attack. Where the court has jurisdiction of the parties and the subject matter of a suit, its judgment and process thereunder, however erroneous or irregular, cannot be questioned in collateral proceedings so as to defeat titles acquired thereby.</p> <p>2. Administration : final settlements : judgments. The final settlements of guardians, curators, administrators and executors have the force and effect of general judgments and are entitled to the same immunities.</p> <p>S. -: PROBATE JURISDICTION: statute. Under General Statutes, 1865, p. 556, § 7, county courts had exclusive original probate jurisdiction in the settlement and allowance of accounts of guardians and curators, and appeals from such courts to the circuit courts lay from final settlements (G. S., p. 473, § 50). On appeal from the county court to the circuit court from a final settlement, and a change of venue from the latter to the circuit court of another county the last named court acquired jurisdiction.</p> <p>4. Probate Courts, Powers of. Before the enactment of Revised Statutes, sec. 2611, probate courts had the inherent power on final settlements to order the amounts found due wards to be paid over to them, and to enforce their judgments by execution or other appropriate process.</p>

— Hon. E. L. Edwards, Judge. (1) There is no motion for a new trial preserved in the bill of exceptions in this case ; and under the repeated rulings of this court, it is absolutely precluded from examining the questions raised by the plaintiff in error. Botchford v. Cramer, 65 Mo. 48; Thacker v. Tracy, 8 App. Rep. 315; Bevin v. Powell, 11 App. Rep. 216-220; Home Savings Bank v. Traube, 6 App.

Louis Court of Appeals. (1) Conceding there has been an escheat of the personalty, still the heirs are not barred by limitation because (a) some of them are married women, and (b) included in the payment to the state is the sum of $800 net, rents collected by the administrator after Bomino’s death and following the land belonged to the heirs; (c) the statute required a special notice to be given if no known heirs existed, required the court to make the order of payment only…

— Hon. J. B. Gantt, Judge. The granting or refusing the change of venne was a matter strictly in the discretion of the trial court, and the whole question is submitted to that court. State v. O’Rourke, 55 Mo. 440 ; State v. Whitton, 68 Mo. 91; State v. Guy, 69 Mo. 431. The record fails to show that defendant saved his exceptions to the action of the court in overruling his objections to the qualifications of certain jurors and this court will not review the point.

— Hon. R. W. Evan, Judge. Plaintiff erroneously united in Ms petition separate and distinct alleged penalties or causes of action when each should have been separately stated in a distinct count. R. S. sec. 3512 ; Graves v. Pierce, 53 Mo. 423; Mulholland v. Rapp, 50 Mo. 42; Stewart v. Balderston, 10 Kas. 131; Hannibal &c. v. Bowling, 53 Mo. 311. The verdict is a general one and therefore erroneous; there should have been a special finding on each count.

<p>Corporation: stockholder. One who surrenders to a corporation stock issued to him as “full paid” but for which he has paid nothing, and which stock the corporation issues for value to bona fide subscribers, is not liable as a stockholder to one who becomes a creditor of the corporation long subsequent to such surrender.*</p>

— Hon. Wm. H. Sheeman, Judge. (1) Tfie court below committed error by sustaining tlie demurrer to tfie evidence. (2) Wfien stock is killed on a railroad .track along inclosed or cultivated fields, and tfie road is not fenced as required by law, tfie company will be liable, regardless of tfie question of negligence. Nall v. R. R. Co., 59 Mo. 112; Fickle v. R. R. Co., 54 Mo. 219; Walther v. R. R. Co., 55 Mo. 271; Lantz v. R. R. Co., 54 Mo. 228.

Louis Court of Appeals. (1) A mere oral delivery, by the receiver without an order of court, previously obtained, or without the sanction of the court afterwards granted, did not give title to the note and deed of trust to Almstedt, but the same is the property of Jecko & Hospes, and in contemplation of law is still in the custody of the court.

— Hon. R. P. Owen, Judge. The costs in this case are properly recoverable of the heirs of Wylie P. Sugg. They were the only defendants in the proceedings by the creditors to set aside the fraudulent deed, and the court decreed that plaintiffs should recover their costs; which meant only those costs that are taxable under the statute, and it is only the taxable costs for which execution was issued.

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

Francois Circuit Court. — Hon. Jas. D. Fox, Judge. The defendant was indicted at the May term, 1881, of the circuit court of St. Francois county, for selling and giving away intoxicating liquors on Sunday as • a dram-shop keeper.

— Hon. Elijah Robinson, Judge. (1) The first instruction given for plaintiff is erroneous. If a settlement was liad on the 25th. of February, 1870, and it was then found and agreed that Geo. T. Bast owed Alexander $2200, it was an account stated, and the amount was due and owing at that time, the law immediately implied a promise to pay it and Alexander had then a right of action for that amount, and the statute of limitations began to run from that time.

— Hon. T. A. Gtill, Judge. (1) It has been repeatedly held in this state that a municipal corporation is not liable for damages resulting from a change in the grade of its streets, unless the work was done negligently or unskilfully. Schattner v. Kansas City, 53 Mo. 162; Wegman v. Jefferson City, 61 Mo. 55. There is no such allegation in the petition and it states no cause of action unless the action is authorized by sec. 21 of art. 2 of the constitution of 1875.

<p>1. Constitution: JUSTICES or peace: jurisdiction: railroads. The statute (R. S., seo. 2835) giving to justices of the peace jurisdiction in actions against railroads for killing the animals therein named without regard to their value, is not a special law and is constitutional.</p> <p>2. Railroads : cattle guards : farm crossing's. The statute (R. S. sec. 809) does not require railroads to construct cattle guards at farm crossings.</p>

— Hon. Theo. Brace, Judge. Respondent was authorized to compromise township indebtedness. Laws 1875, p. 23, §§ 1 to 10; Laws 1877, p. 12, § 11. This is a power conferred to do a certain thing; the means necessary to accomplish the work, if not specifically laid down in the act, are necessarily implied. Unless the mode is given the courts use their discretion. Aull v. City of Lexington, 18 Mo. 401; Page v. St. Louis, 20 Mo. 136.

— Hon. P. M. Black, Judge. The second count in the petition did not state a cause of action. It does not show even inferentially that the horse got upon the track by reason of a failure to fence or that the defendant was under any obligation to fence at the point where it was injured. Johnson v. R. R., 76 Mo. 553 ; Field v. R. R., 76 Mo. 614. The petition states a good cause of action under R. S., sec. 2124. Kennayde v. R. R., 45 Mo. 225.

— Hon. Ben. E. Turner, Judge. It is a general rule that domicile in any state is necessary and required to entitle a person to homestead rights therein. Alston v. Ulman, 39 Tex. 157; Jordan v. Godman, 19 Tex. 257; Thompson on Homestead, 391. The mere fact that Prindeville purchased the land and recorded his deed in the year 1866, does not of itself' give him a right of homestead in said land. He must have occupied it prior to the contraction of the debt.

— Hon. F. M. Black, Judge. (1) The evidence shews that Mrs. Ford indorsed' the note in suit and delivered it to her agent, F. H. Benson, and the Supreme Court will not disturb this finding. Royal v. Jones, 78 Mo. 403; McCullough v. McCullough, 31 Mo. 226; Siebert v. True, 8 Kan. 52. (2) The note-was the property of Mrs. Ford and she had the right to-transfer it •, besides her husband consented to its transfer and for that reason it was valid.

— Hon. John C. Anderson, Judge. Appellant cannot be convicted on this indictment because (1) the building alleged to have been burglarized was within the curtilage of a dwelling house and no such crime is charged. Koster v. People, 8 Mich. 431; Byrnes v. People, 37 Mich. 515; Beckford v. People, 39 Mich. 209; Gibson v. State, 54 Md. 447; Thralls v. State, 21 Ohio St. 233; Conner v. State, 14 Mo. 561; State v. O'Brien, 74 Mo. 549.

— Hon. Geo. W. Dunn, Judge. Respondent’s remedy was by appeal, R. S., secs. 1216, 1217, and not by mandamus. Williams x. Judge of Cooper Court of Common Pleas, 27 Mo. 225; Blecker v. St. Louis Law Com’r, 30 Mo. Ill. And the court .having passed judicially on the account cannot be-required to render a further or different judgment. State ex rel.

Francois Circuit Court. — Hon. J. D. Fox, Judge. (1) The judgment of the court below is erroneous upon its face. Plaintiff was only entitled to have the case tried at the first term or continued at the cost of the appellant. R. S., § 3056. He was only entitled to-an affirmance for failure to give the required notice at least ten days before the second term.

— Hon. G. D. Burgess, Judge. Appellant’s demurrer to the evidence should have been sustained because (1) there was no proof of negligence as charged in the respondent’s petition. Yarnall v. R. R., 75 Mo. 575; Moore v. R. R., 4 Am. & Eng. Ry. cases, 569; Morrissey v. R. R. Co., 126 Mass. 377. (2) Because of the palpable contributory negligence on the part of the respondents. Beliefontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Moore v. Metropolitan Ry. Co., 2 Mackey (Dist.

— A. W. Mullins, Esq., Special Judge. Respondents ought not to have recovered either upon their own case, or upon the whole case as made. (1) Because of tlieir contributory negligence in permitting their child to go upon and play about, unguarded and uncautioned, the appellant’s track, over which they knew trains, both extra and regular, were accustomed to pass, and might be expected at any moment. Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Moore v. Metropolitan Ry.

— Hon. P. M. Black, Judge. (1) Private property cannot be taken for public use without the owner’s consent or without its being first condemned on proper legal proceedings. Hildreth v. Lowell, 11 Gray 345; Delphi v. Evans, 36 Ind. 90; City v. Armstrong, 56 Mo. 298; Soulard v. St. Louis, 36 Mo. 546.

— - Hon. R. E. Cowan, Judge. (1) Defendants’ plea to the jurisdiction should not have been stricken out, and plaintiff’s demurrer thereto was improperly sustained. Plaintiff alleged in his petition, as a material allegation, that defendants were nonresidents of the state.

Appealfrom Carroll Circuit Court. — Hon. J. M. Davis, Judge. (1) The contract being lawful, and under it the common law liability of defendant being limited, the burden -of proof was upon plaintiff to establish negligence on the part of defendant.

— Hon. J. P. Strother, Judge. (1) If there was a mistake on the part of W. R. Kemp or the officers of land office whereby Kemp entered land in section 25 instead of section 24, it should have been corrected by the secretary of the interior under the laws of the United States. U. S. R. S., secs. 2369, 2370 et seq.; and the state court had no jurisdiction to grant the relief asked in the case.

— Hon. M. G. McGregor, Judge. (1) The court sh.ou.ld have sustained the motion to quash the indictment because not returned into court by the grand jury. R. S. sec. 1797. (2) The testimony of the witness, Stevens, should have been withdrawn on application therefor, it having been given on misinformation, or if once admitted should have been held to be the testimony of said witness. R. S. sec. 1886. (3) The court erred in refusing instructions as asked by defendant.

James P. Grubb, Judge. (1) Parol partition of land followed by possession of the respective portions assigned to each is valid. Hazen v. Barnett, 50 Mo. 507. (2) Possession of real estate is evidence of the title of the possessor to all who know of the possession. Shumate v. Reavis, 49 Mo. 336 ; Maupin v. Emmons, 47 Mo. 306; Vaughn v. Tracy, 22 Mo. 417, and 25 Mo. 318.

- — Hon. W. H. Sherman, Judge. (1) The demurrer to the evidence should have been sustained. Brice v. Railroad Co., 72 Mo. 414; Pierce on Railroads, p. 317, note 2 ; Burrows v. Railway Co., 63 N. Y. 558; Boss n. Railway Co., 59 Mo. 37 is not good law and is unsupported by reason or authority ; the cases cited therein do not support it.

— Hon. G. H. Burckhartt, Judge. When this suit was brought, April 19th, 1876, also the date of service upon E. E. Dunnaway, agent at Es-till depot, the railroad was in the hands of a receiver. The plaintiff had his option to proceed by action either against the receiver in his official capacity, leave of court that appointed the receiver being first obtained, or, under our statute, against the railroad company itself as such.

— Hon. John O. Anderson, Judge. (1) Appellants were entitled to judgment on the note against Olías. L. Oreen. His answer only alleges that the note was assigned without consideration. The assignment being in writing imported a consideration. Abbott’s Trial Ev. 4. The burden was on him to show that there was no consideration and he offered no proof. 'This judgment is an entirety and for this error the whole case must be reversed. Ins. Co. v. Clover, 36 Mo. 393.

— Hon. Samuel L. Sawyer, Judge. (1) The court below properly held: .that the stock subscribed by the county in 1853 (to-wit: $75,000) “was to-be held, owned… Held: .that the stock subscribed by the county in 1853 (to-wit: $75,000) “was to-be held, owned and treated as county property.” (2) The court below improperly held: that the stock subscribed by the county in 1860 (to-wit: $200,000) was held by the-county in trust and should be treated as the property of the taxpayer.

<p>Appeal from Johnson Circuit Court. — Hon. N. M. . Givan, Judge.</p> <p>(1) The declarations of Geo. W. Harrison, grantor, in disparagement of the title of his grantee, A. B. Harrison, were improperly admitted in evidence. Abbott’s Trial Ev. 740 ; Boyd v. Jones, 60 Mo. 454; McLaughlin v. McLaughlin, 16 Mo. 242; Cuyler v. McCartney, 40 N. Y. 165; Heinrich v. Porter, 47 Mo. 293. So the notice, motion and action of the court on the same in the case of John Snell v. G. W. Harrison and S. E. Wells, also were improperly admitted in evidence against the heirs of A. B. Harrison and Brunetta Harrison. The verdict was for the parties complaining of these errors, and they may be reviewed, although not called to the court’s attention in the motion for new trial. (2) The finding of the court was against the weight of evidence, and for the wrong party according to the evidence. H the evidence so admitted erroneously against objection of defendants had been excluded, there would be none to support the finding and decree of the court. The court erred in sustaining plaintiff’s motion to disregard the finding of the jury and in rendering its decree contrary to the verdict of the jury, and in entering a final decree for plaintiffs without a new trial. Cochran v. Moss, 10 Mo. 416. The submission of issues to a jury in chancery is regulated by statute in this state. E. S. 1879, secs. 3601, 3630, 3631, 3632, 3633. Juries are supposed to be the best tribunals to try questions of fact. Fletcher v. Drath, 68 Mo. 126. On questions of fraud in fact the verdict of a jury should not be disturbed unless the facts are entirely irreconcilable with the hypothesis of honesty and good faith. Page v. Dixon, 59 Mo. 43. The granting of a new trial was the practice in chancery in the absence of a statute. Baker v. Scudder, 56 Mo. 275; Franklin v. Greene, 2 Allen 519; Griffith v. Griffith, 9 Paige 315; Clerk, etc., v. First Sos., 45 N. H. 331; Peebles v. Peebles, 63 N. C. 656; Carter v. Campbell, Gilmer (Ya.) 159 ; 2 Daniels’ Chan. Prac., p. 115; Adams’ Equity, side p. 376. In proportion to the duty of a judge in directing an issue is the obligation to be governed by the verdict. Clem v. Durham, 14 Ind. 263; 3 Greenl. on Ev. (3 Ed.) sec. 266. The decree was clearly void, as it included a general judgment for costs against all the defendants, one of whom (Brunetta Harrison) was a married woman. St. Louis v. Bernoudy, 43 Mo. 552; Wernecke v. Wood, 58 Mo. 352; Corrigan v. Bell, 73 Mo. 33; St. Jo. F. and M. Ins. Co. v. Hauck, 71 Mo. 465.</p> <p>(1) The chancellor is in no manner concluded or bound by the merely advisory verdict of the jury. On the contrary it is his plain duty, sitting in the forum of conscience, to disregard any opinion, verdict or influence that would shelter or shield a fraud, whether covert or palpable. Burt v. Rynex, 48 Mo. 309. The first jury could uot agree. The second did. The judge had heard the evidence twice, and in his opinion it was such that in conscience the finding of the jury ought not to be .adopted. He knew and saw and heard the witnesses. The inclination and rule of this court is not to reverse the finding of the chancellor unless it is clearly manifest he has overridden the evidence. Sharpe v. McPike, 62 Mo. 300; Hodges v. Blade, 76 Mo. 537; Boyle v. Jones, 78 Mo. 403. As applicable to the facts of this case see following: Potter v. McDowell, 31 Mo. 62 ; Wilson v. Forsyth, 24 Barb. 105; Jackson v. Mather, 7 Cow. 301; King v. Moon, 42 Mo. 551. (2) If there was any virtue in any of the objections to the evidence no such error is preserved in the record, for it was not called to the attention of the trial court in the motion for a new trial. Lancaster v. W. L. Ins. Co., 62 Mo. 121; Anthony v. Ry. Co., 76 Mo. 18.</p>

— Hon. W. H. Sherman, Judge. The first instruction on behalf of plaintiff is erroneous. If the gate blew open for want of a proper fastening and the cattle entered because the gate was blown open, plaintiff could recover. If it was opened by third parties, the want of a proper fastening was not the proximate cause of the injury, and defendant was not liable.

— Hon. E. L. Edwards, Judge. (1) The court ought not to have permitted the testimony of the witness, John Wunderlich, as to the reasons which induced him to raise the value of the stock sued for from $100 to $135 or $145, to go before the jury.

— Hon. E. L. Edwards, Judge. (1) The defendant could only be held liable upon proof either that the defendant knew of the defect in the fence, or that a period had elapsed, in which, by the exercise of reasonable diligence, it could have had knowledge thereof, and that it had failed to repair the defect. Clardy v. Railroad Co., 73 Mo. 576; Case v. Railroad Co., 75 Mo. 668; Walthers v. Railroad Co., 78 Mo. 617. What is such reasonable time must depend on circumstances.

Louis Court of Appeals. (1) The lien attached when the rate was fixed by the proper authorities, and related back to the initial day of the assessment, and the extension of the tax was a mere mathematical calculation and could not affect the lien already created, although such extension was not made by the county clerk as required by law.

— Hon. Ben. E. Tubneb, Judge. Under all tlie circumstances the court should have instructed the jury to return a verdict for defendant.

Err or to Moniteau Circuit Court. — Hon. E. L. Edwards, Judge. (1) Whether or not the erasure was made before-the execution of the will should have been passed on by the court and a special finding made. (2) The instrument offered in evidence was executed by Mrs. Smith as, and for her will, and it is her will, either as-originally written, or it is her will as it appears after the erasure, and the court ought to have so found.

<p>Criminal Practice : appeals and writs of error by state, when, lie. Appeals by or writs of error in behalf of the state do not lie in criminal cases, except, as provided by statute, where the indictment is quashed or adjudged insufficient on demurrer or where the judgment thereon is arrested.</p>

— Hon. Jos. Cravens, Judge. (1) The general doctrine is that neither the court nor jury may determine the genuineness of a signature by comparing it with other handwriting of a party. Moore v. United States, 1 Otto 273; Baker v. Harnes, 6 Wharton (Pa.) 284; Lodge v. Pipher, 11 Serg. and Rawle 333; People v. Spooner, 1 Dennis 340; Wilson v. Kirkland, 5 Hill 182; Rogers v. Ritter, 12 Wallace 321 ; State v. Scott, 45 Mo. 304; State v. Clinton, 67 Mo. 380.

— Hon. M. G. McGregor, Judge. (1) The exclusion by instruction numbered seven of part of the testimony of Rice from the consideration of the jury was palpable error. Previous threats, whether communicated or not, were relevant. State v. Alexander, 66 Mo. 161; State v. Evans, 65 Mo. 583; State v. Cooper, 71 Mo. 441. (2) The testimony offered to show the hostility of the witness, Isaac Grimes, to the defendant was improperly excluded. 1 GreenL Ev., § 450.

— Hon. J. M. Davis, Judge. (1) The petition states facts sufficient to constitute a cause of action for a specific performance of the agreement alleged or for compensation in damages. £ £ Although a contract may be void, under statute of frauds, yet, if the conduct of the party setting up the invalidity has been such as to raise an equity outside of and independent of the contract and nothing else will be adequate satisfaction of such equity, a court of equity will sustain…