Volume 85 — Missouri Reports

Louis Court of Appeals. (1) Tlie non-suit was right, because the promise of Barker was not made for the benefit of Fitzg raid. He .never bad seen nor heard of these notes until long after ..Barker’s deed had been delivered. Nothing was owned ■or held by Fitzgerald at the delivery of Barker’s deed, to which the latter’s promise could possibly attach in his favor. In cases like this the action accrues only to the person for whose benefit the promise was made.

—Hon. N. M. 'Gí-ivan, Judge. (1) The instruction given for plaintiff was wrong. Tiemon v'. Molliter, 71 Mo. 513 ; Phelps v. MeNeeley, 66 Mo. 554; Tenney v. Johnson, 43 N. H. 144; Fersonv. Monroe, 21 N. H. 462. (2) Plaintiff’s instruction should have been refused and defendants’ first one given.

Louis Court of Appeals. Plaintiff’s charter exempts its property to the extent of $50,000 from taxation, ‘ ‘ as long as said property is used only for purposes of education.” The fact that plaintiff leases one room in the building for a saloon and another for a store, destroys the claim to exemption, and the result is not changed by the further fact that-the rents are applied to the support of the institution.

Louis Court of Appeals. (1) The bill of lading was not delivered to the bank by the distilling company, or anyone authorized by it to deliver the same as security for the payment of the drafts, or otherwise; and hence the bank got no title for any purpose as against Bollman & O’Hara. If Blumb had no authority to endorse the bill of lading, surely he had none to deliver without endorsement.

Mandamus. (1) The state auditor should be compelled to draw his warrant as asked by relator. Laws of 1868, p. 92; Laws of 1881, pp. 189,190.

Louis Court of Appeals. (1) On the trial of this cause defendant was entitled' to a panel of thirty-four competent and qualified jurors, from which to select the trial jury, or from which to make his peremptory challenges. R. S., sec. 1903; State n. Waters, 62 Mo. 196 ; State n. Danis, 66 Mo. 684 ; State n. MeQarron, 51 Mo. 27.

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

—Hon. J. M. Davis., Judge. The court erred iu overruling defendant’s application for continuance. State v. Woods, 68 Mo. 444, et seq. The state had no right to admit what the absent witnesses-would swear to, if present. State v. Hlclcman, 75 Mo. 416; Chambers v. Smith, 80 Mo. 156. Instruction number seven, given for the state, was erroneous in telling the jury they might disregard the whole of the testimony of any witness who had sworn falsely.

—Hon. Theo. Brace, Judge. (1) The court erred in' excluding the certified copy of the plat in identification of the lines of the out-lots mentioned in the deeds. On this plat the north and south lines dividing lots two, three and four on the west, and lots five, six and seven on the east, also separated therein the abbreviation “qr.” on the west from the abbreviation “sec. twenty” on the east thereof, thus showing the lot lines coincident with lines of sectional division.

<p> Prohibition. </p>

Louis Court of Appeals. (1) Every question of doubt should be resolved in favor of the validity of the statute (51 Mo. 82), because the power of the legislature is absolute, except when restrained by the federal or state constitution. 34 Barb. 138; Cooley’s Const. Lira. 173. (2) The state legislature has power over all subjects on which its legislation is not prohibited. 15 N. Y. 303 ; 27 Barb. 593; 4 Mich. 244 ; 5 Mich. 257; 24 N. Y. 497, 504; 2 Park, Cr. R. 490 ; 15 La.

Louis Court of Appeals. (1) The court erred in permitting, against the objection of defendant, the introduction of any evidence under the allegations of the petition, as it only contains a general charge of negligence, and under the rule adopted by our Supreme Court and the court of appeals, is fatally defective. Waldhier v. The Phan. & St. Joe Ii. P. Co., 71 Mo. 514; Leduke v. St. Loiois & Iron Mountain P. P. Co., 4 Mo. App. 485.

—Hon. R. P. Owen, Judge. (1) Defendant’s instruction, numbered one, at the close of the whole case, in the nature of a demurrer to the evidence, should have been given. “In the absence of any negligence, unskilfulness, or mismanagement in the construction of any embankment for the bed of a railroad over land, through which there was no natural channel for the passage of water, the injuries done by said embankment by causing the water to overflow the land of the adjoining…

—Hon. Gr. H. Burckhartt, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, and tlie motion in arrest ©f judgment sliould have been sustained, (a) It is not alleged in the petition that the act done was contrary to the provisions of any statute of the state. R. S., sec. 3550.

<p>Appeal from Livingston Circuit Court.—Host. Jas. M. Davis, Judge.</p> <p>(1) The relation between Walker, the foreman, and. the plaintiff was that of fellow servants. Daubert v. Piclcett, 4 Mo. App. 590; Hamilton v. Iron Mi. Co., 4 Mo. App. 564; Hofnagle v. Ry., 55 N. Y. 608; Crispin v. Babbitt, 81 N. Y. 520; Harwell v. R. R., 4 Met. 49; Rains v. R. R., 71 Mo. 164; Lee v. Detroit, etc., 62 Mo. 416; Cagney.v. Ry., 69 Mo. 416; McDermott v. Ry., 71 Mo. 516; Cooley on Torts, 541, 562; Wood’s-Master and Servant, 898, et seq. (2) Where the plaintiff seeks to recover on the ground that the defendant failed to exercise reasonable care in employing or in negligently retaining in its employ an incompetent servant when it knew, or by the exercise of ordinary care might have known, of such incompetency, it must b& shown that such incompetency was the direct and immediate cause of the injury. Both the default of the servant and the want of ordinary care of the master in employing or retaining him must concur. Wright v. R. R., 25 N. Y. 562; Culhane v. R. R., 60 N. Y. 137; Hayes v. Ry., 3 Cush. 270; Laning v. Ry., 49 N. Y. 529 ; Ship v. Ry., 24 L. & E. 396; s. o. 9 Exch. 223. Applying the foregoing principles to the case at bar the plaintiff is not entitled to recover. (3) But even if Walker did order a blow which was improper and negligent, still his negligence was not the direct and immediate cause of plaintiff’s injury. Reed held the hammer and was striking the wedge and he alone could regulate the force of the blow, and if there was any negligence which was the proximate cause of the injury to plaintiff, it was that of Reed who was plaintiff’s fellow servant and competent and skilful. 1 Wharton on Negligence, .secs. 134, 147; Cooley on Torts, 79, 80. (4) The plaintiff cannot recover because he knew and had the same means of knowlege that the defendant did of the incompetency of his fellow servant, and with such knowledge continued to work with him. Davis v. Detroit, etc., Railroad Co., 20 Mich. 105 ; Indianapolis & Cin. Railroad Co. v. Love, 10 Ind. 556 ; Laning v. N. Y. Cent. Railroad Co., 49 N. Y. 521, 534 ; Skip v. Eastern Railroad Co., 24 L. & E. 396; Thayer v. St. L., Alton, etc., Railroad Co., 22 Ind. 29 ; Wood on M. & S., 804 and 805, sec. 422 ; 2 Thompson on Neg. 1008, sec. 15, and 101A-1017, secs. 19, 20 and 22. And see: Dale v. St. L., etc., Railroad Co., 63 Mo. 455; Devitt v. Pacific Railroad Co., 50 Mo. 802.</p> <p>(1) A servant in entering upon an employment assumes its ordinary risks, but the negligence of the master is not one of the ordinary risks. It is the duty of the latter to exercise ordinary care, to employ and retain none but competent and careful fellow servants. If he fail to perform such duty, it is the master’’ s negligence. The master cannot delegate this duty so as to escape responsibility. His delegate, in that respect, is the master—'acts in place of the master, and is aptly termed ,a vice principal. Harper v. Indianapolis Railroad Go., 44 Mo. 488; Harper v. Indianapolis Railroad Go., 47 Mo. 567; Moss v. Pac. Railroad Go., 49 Mo. 167; Marshall r>. Schriclcer, 63 Mo. 308; Baulec v. Railroad Go., 59 N. Y. 359. (2) The evidence very clearly tended to prove that Walker was an unsafe man for his position and that Richards, defendant’s vice-principal had notice of it for weeks before the injury but still retained him in the service. (3) The appellant urges that Reed mistook the degree of force intended by the words of Walker, “give it hell;” that Walker intended it as a very mild admonition, a sort of Ingersoll hell; but that Reed, being orthodox, understood it to mean an old ■fashioned fire and brimstone affair, and acted accordingly. This argument comes from the intimate knowledge of theology possessed by the learned gentleman representing the appellant, but as addressed to the ordinary affairs of life, it is not very convincing. We ^understand it to be an expression used to call forth the utmost effort. (4) The instructions given on both sides presented the case to the jury with exceptional fairness to the defendant, in fact more liberally than the decisions of this court warrant. Porter v. Railroad, 71 Mo. 73. The tenth instruction asked by defendant was properly refused. This instruction ignores the suddenness of the order, and the circumstances in which plaintiff was placed, the order of his boss, and required him to resolve his line of action in a moment, and act in •a single instant of time, and declares as matter of law that failure was negligence which precluded a recovery. Brown r>. Railroad Go., 32 N. Y. 597; Beiseigel v. Railroad Go., 34 N. Y. 622; Gayner v. Railroad Go., 100 Mass. 208; Railroad Go. v. Stone, 17 Wall. 663 ; Flynn v. Railroad Go., 78 Mo. 195. (5) The motion for a new -trial was not well taken on the ground of newly discovered evidence. A new trial is never granted where the alleged new facts are to be proven by witnesses who testified at the trial. Goo7c v. Railroad, 56 Mo. 380.</p>

—Hon. N. M. Givan,. Judge. (1) Plaintiffs’ first instruction is erroneous. It did not correspond with the issues joined. Iron Mt. Bank v. Dickson, 62 Mo. 70; Capital Bank v. Armstrong, 62' Mo. 59 ; Bruce v. Sims, 34 Mo. 246. The second instruction for plaintiffs was erroneous in stating that the burden of proof shifted to defendant when the jury were convinced by a preponderance of evidence of a certain state-of facts.

Error■ to Moniteau Circuit Court.—Hon. E. L. Edwards, Judge. (1) The court erred in permitting the plaintiffs to introduce any evidence in favor of the devisee, Tucker. The petition should have been first surrendered setting forth his interest. Story’s Eg. PI. (8 Ed.) secs. 379, 354; R. S., sec. 3667.

—Hon. N. M. Givan,. Judge. (1) The court erred in dismissing the appeal, and rendering judgment against defendant for costs. R. S., sec. 3039. The affidavit for appeal, filed by defendant, contains every requirement of the statute, and was within ten days after judgment. R. S., sec. 3044. The-motion to dismiss only urged that no affidavit for appeal had been filed. No reason, not specified in the motion, shall be urged in its support.

—Hon. A. J. Seat, Judge. The verdict was not sustained by the evidence. It is well settled that plaintiffs must show title in themselves before they can question defendant’s possession. “In ejectment plaintiff must stand on his own title. If he has none he cannot recover against party holding pos•session.” Large v. Fisher, 49 Mo. 307; Foster et al. v. Evans, 5 Mo. 39.

—Hon. J. L. Thomas, Judge. The court below erred in allowing plaintiff to introduce evidence tending to prove that Mrs. Arnold knew the contents of the deed of trust in controversy, by means other than information furnished by the officer taking the acknowledgment.

—Hon. J. E. Ryland, Judge. (1) Tlie court erred in refusing to grant defendant’s application for a change of venue. It abused its discretion. (2) Tlie court erred in sustaining tlie demurrer to defendant’s plea in abatement. Tlie grand jury must be considered as a whole. The status of any one member fixes the status of the whole grand jury. If any one of them be open to exception, he vitiates the whole grand jury.

The court below sustained the demurrer on the ■authority of Gillett v. Mo. Valley R. R. Co., 55 Mo. 315, which was then recognized as' authority in this state. That case was overruled by this court in the case of Boogher r>. The Life Association of America, 75 Mo. 319, in accordance with which authority and the cases there cited, this case should be reversed and remanded.

<p>1. Criminal Law : practice : instructions. Upon appeal from a conviction of murder in the second degree an error in an instruction for murder in the first degree is immaterial, and such instruction will not be reviewed by the Supreme Court.</p> <p>■8.--: instructions. It is not error to refuse an instruction embodied in others given.</p>

—Hon. N. M. Gtvan» Judge. (1) The court erred in admitting the confessions of defendant, Reed. It does not appear that they were voluntarily made. Those made to witness, Wirt, were induced by promises and by means of intimidation employed by the witness. State r>. Brockman, 46 Mo. 566, 569; State ©. Simon, 50 Mo. 370, 372 ; State v. Hagan, 54 Mo. 195; State v. Jones, 54 Mo. 478; State v. Carlisle, 57 Mo. 102; Wharton on Crim.

—Hon. N. M. Givan, Judge. (1) The court erred in admitting in evidence the record in the case of Baum & Company v. Reeves Brothers. The rule is well settled that when a partnership is dissolved and a new partnership formed, the debts of the old firm may, by consent of all parties—the creditors, the old firm and the new—be transferred to the new firm and the old firm discharged.

—Hon. W. H. Sherman, Judge. (1) An appeal lies from the judgment of the court in this case. R. S., sec. 3258 ; Ex parte Skaggs, 19 Mo. 339. (2) Mandamus is the proper remedy to compel the ■county clerk to discharge his duty in extending the estimate of school taxes on the property within the district. State ex rel. v. Byers, 67 Mo. 706; State ex rel. v. Heath, 56 Mo. 231.

—Hon. Jno. P* Strother, Judge. (1) The statute relating to amendments cannot be construed so as to- authorize a judgment against a party not brought into court by a summons as required by law. (2) The court erred in overruling the defendant’s demurrer to the evidence at the close of the case.

Louis Court of Appeals. (1) The date of the emancipation of an infant, as-fixed by law, is purely arbitrary. There was no proof in this case of the duration of the period of infancy in the-state of Texas.

—Hon. Andrew Ellison, Judge. (1) Tlie word owner, means the person, or persons in whom the fee is vested, and also those who have an •equitable title or ownership. But such interests, whether legal or equitable, must appear of record at the time the suit is commenced.

Louis Court of Appeals. (1) The court erred in excluding the record of the suit ■of Bartholow, Lewis & Company, against the plaintiffs on the check in controversy. (2) The third instruction given for defendant was erroneous. Dickinson v. Coates, 79 Mo. 256.

—Hon. Jos. Cravens, Judge. (1) The court erred in submitting to the jury the questions whether the company had used the best engine and machinery and the best appliances to prevent the escape of fire, and had employed skilful .and competent servants. Buffington v. R. R., 64 Mo. .246; Waldhier n. R. R., 71 Mo. 514; Edens v. R. R., 72 Mo. 212; Car son v. Cummings, 69 Mo. 325.

—Hon. G. D. Bukgess, Judge. (1) The objection to admission of evidence comes too late in the motion for,a new trial. State v. Blan, 69 Mo. 317 ; State v. Williams, 77 Mo. 310 ; State v. Burnett, 81 Mo. 119. (2) The seventh instruction given for the state, has been sanctioned in the following cases: State v. Linney, 52 Mo. 40 ; State v. Underwood, 57 Mo. 40; State v. Brown, 64 Mo. 367. (3) The ninth instruction correctly defines manslaughter in the third degree.

—How. N. M. Gtvan, Judge. (1) The indictment is insufficient. It does not follow the language of the statute.

<p>1. Practice : bill op exceptions : piling of. Leave given to present a bill of exceptions to the judge on or before a given date in vacation, which by agreement of parties is entered of record, clearly gives the right to file the bill within the given time.</p> <p>g. -: dismissal OP appeal. Where the record fails to show that an appeal was allowed, the cause will be stricken from the docket, of the supreme court.</p>

—Hon. A. J. Seay, Judge. Respondents’ evidence showing that Wildfong was a general agent of appellant was irrelevant, because there was no evidence that the goods sold by respondents were purchased in the name of appellant or for him, or that they were received by or for him, or that in dealing with respondents Wildfong acted as agent.

<p>1. Practice in Supreme Court: evidence : immaterial error. Although the testimony .of the surviving party to a cause of action was impropery admitted in evidence, yet the Supreme Court will not, for that reason, reverse the judgment where the matters of such testimony were testified to by other witnesses and were not contradicted.</p> <p>2. Nota Past Due : title. The transferee of a note past due takes only the title of his transferrer.</p> <p>3. Judgment, Assignee of: note. The assignee of a judgment of allowance m the probate court rendered on a note has the better-title and, hence, the legal right to enforce payment as against one to -whom the note was transferred after the rendition of the judg-ment.</p>

<p>Appeal from Mississippi Circuit Court.—Hon. J. D. Foster, Judge.</p> <p>The plaintiff was entitled to recover. Ladere Griffith, 25 N. Y. 364; Blossom v. Griffin, 13 N. Y. 569 ; Wade v W heeler, 47 N. Y. 658; Michigan Railroad n. Sclmrz, 7 Mich. 515 ; Merriam «. Railroad, 24 Conn. 354; Ackley n. Staelin, 56 Mo. 558. A new trial should have been granted because of newly discovered evidence. State r. Ray,.53 Mo. 345.</p> <p>The plaintiff was not entitled to recover. Condon v. Railroad, 21 N. W. Reporter, 321. Nor was the plaintiff entitled to a new trial on the ground of newly discovered evidence. State. v. Ray, 53 Mo. 345; Cook v. Railroad, 55 Mo. 380.</p>

—Hon. G. W. Bunn, Judge. (1) The deed from Jasper N. Akers, one of defendants, to Hugh Akers will not be sustained to secure the payment of debt due said Hugh Akers from said Jasper N. Akers, for the sum of three hundred dollars, because said Hugh Akers was amply secured by a deed of trust upon the homestead of said Jasper N. Akers, which was afterwards sold for the sum of eight hundred dollars and said debt paid and lien released.

—Hon. Theo. Brace, Judge. (1) The court committed error in refusing either to submit to the jury, or itself to try the first, second and third issues, or either of them, as made by the pleadings. The first issue is certainly a material one. The defendant does not claim, and the deed itself negatives the idea that the conveyance was made as a gratuity. Courts of equity will not permit one to accept a conveyance for a consideration, and afterwards set it up as a gift.

<p>1. Equity Practice. If in a suit in. equity the complainant fails to make a case on the evidence, the chancellor may at once and without hearing any evidence, on defendant’s behalf dismiss the bill.</p> <p>2. Semble that a demurrer to the evidence can be interposed to the plaintiff’s evidence in an equity case as well as in an action at law.</p> <p>8. The Demurrer to the evidence in this, action, which was one to set aside a deed for being in fraud of creditors, held, improperly sustained, because under the pleadings and the evidence, the defendant should have been required to furnish some proof of the honesty and good faith of the conveyance to him.</p>

—Hon Gf. W. Dunn,,. Judge. (1) The lower court erred in refusing to strike out the specifications of negligence in the petition, numbered, two, three, four, five and six. (2) The court erred in striking out part of defendant’s answer. (3) The court erred in admitting the testimony of W. R. Woodward that, under an observance of rule thirty-six, a passenger train going west would lose, in aproaching Minnaville, about two or three minutes. Telfer v. Railroad, 30 N..

—How. N. M. G-ivaw, Judge. (1) The court erred in instructing the jury that upon the evidence plaintiffs could not recover. It is held to be error so to instruct where there is a scintilla of testimony. There was testimony tending to establish a want of probable cause, as well as a bad and malicious motive, in suing out and prosecuting the attachment. Alexander v. Harrison, 38 Mo. 266 ; Poutsong v. Pi. P., 45 Mo. 236; Hays ®.

—Hon. W. F. Geiger; Judge. (1) Eespondent in this case seeks to recover under a tax deed executed by a United States collector of infernal revenue. Sales of real estate for non-payment of ;axes are ex parte and summary proceedings, and it must appear that the proceedings of law preparatory to and authorizing such sales have been punctiliously complied with. If these fail the power to sell is not created. If any one of them fails it is as void as if all failed.

<p> Appeal from fit. Louis Court of Appeals. </p> <p>(1) The court erred in excluding the testimony of the physician. The statute should not be construed as a prohibition upon the admission of such testimony under all circumstances. The statute does not create a privilege in favor of the physician; it was intended to secure the patient from disclosures by the physician., B. B. ®. Martin, 41 Mich. 667; Scripps ». Foster, 41 Mich. 742 $ Staunton ». Barker, 19 Hun (N. Y.) 55. (2) The evidence made out a case of negligence. It was the duty, of defendant to furnish proper and safe machinery, and he is bound to know of-its defects. Barter ®. B. B.,. 71 Mo. 66 ; Beber v. Tower, 11 Mo. App. 199 ; Dowling ®. Allen, 74 Mo. 14. It was not the duty of Groll to inspect or know of the defects. Cases supra. (3) All inferences which may be drawn from the facts shown are to be construed in favor of plaintiff. Mauerman ®. Siemerts, 71 Mo. 101; BuescMng ®. St. Louis Gas Light Company, 73 Mo. 219.</p> <p>(1) There is absolutely nothing in the testimony to fasten any liability upon the defendant for the injuries sustained by Groll, and especially is this so in view of the recitals in the petition concerning the manner in which the injury occurred. (2) The' court committed no-error in excluding the testimony of the attending physician. R. S., sec. 4017; Gartsider. Insurance Companyr76 Mo. 416; Linz v. Insurance Company, 8 Mo. App. 383.</p>

(1) The court erred in admitting as evidence statements of Gray. There was no evidence, whatever, of any conspiracy or combination between Gray and the defendant to commit the offence charged. Until the fact of the conspiracy was established, the statements of Gray were not competent evidence against the defendant, and should have been excluded. State v. Ross, 29 Mo. 32; State 'o. Duncan, 64 Mo. 266; State v.- Hickman, 75 Mo. 416.

<p>1. Back Taxes : statute : jurisdiction : judgment. In an action to collect back taxes, under the act of 1877, the circuit court does not exercise its jurisdiction in a special or summary manner, and its judgments therein are entitled to the same presumptions as attend, its ordinary judgments.</p> <p>2. --—:--:--:--. In such a suit a single judgment. against several distinct lots is erroneous ; but the objection does not go to the jurisdiction.</p> <p>8.--: ejectment : judgment. In an ejectment suit, the fact that in a back tax suit, a single judgment was rendered against distinct lots, cannot be shown by parol for the purpose of impeaching such judgment.</p> <p>4. --: irregularities : sheriff’s deed. Mere irregularities in the suit, which led to a sale under execution, do not invalidate tire sheriff’s deed.</p> <p>5. --: imperfect description : evidence. An imperfect description of land contained in the tax bill, judgment, execution and sheriff’s deed, may, if the ambiguity is latent and suscex>tible of oral explanation, be made certain by extrinsic evidence ; and it is sufficient if the description is such that the land can be located by one acquainted with the plats and surveys.</p> <p>6. Ejectment: purchaser at tax sale : defence. In an action of' ejectment by a purchaser at a tax sale, the fact that the sheriff sold two lots together cannot be set up as a defence.</p> <p>7. -: judgment : landlord and tenant. A judgment in ejectment is properly rendered against both the landlord and tenant in. possession.*</p>

(1) Mandamus is not the proper remedy in this case, even if the City of Kansas has the right to require appellant to pave its street as claimed by it. State ex rel. v. McAuliffe, 48 Mo. 113; Mansfield ®. Fuller, 50 Mo. 338; State, etc., v. Bank, -76 Mo. 370; State, etc., ®. By., 43 N. J. 505; State ex rel. v. Newark, 6 Yroom396 ; State ex rel., etc., ®. Township of Union, 8 Yroom 84; Queen ®. Hull, etc., By., 6 Q. B. 70; State ex rel.

—Host. W. T. Wood, Judge. (1) The action was one at law and the court erred in ordering Hurt to be brought in as a co-defendant. 2 J ones on Mortgages, 889 ; McNair v. Picotte, 33 Mo. 57; Wright v. Cornelius, 10 Mo. 174; Wolff v. Schaeffer, 4 Mo. App.. 367; C., 74 Mo. 154. Although our courts of law and equity are blended, the distinction between law and equity proceedings exists as much as ever in this state. Myers v. Field, 37 Mo. 434; Pauly ».

—Hon. L. F; Binning-, Judge. (1) The evidence offered by plaintiff was insufficient to make out a confirmation under the act of congress of July 4, 1836, because the act itself was not put in evidence, and the act is the confirmation, and is the only evidence of title from the United States. (2) Even if the act had been offered in evidence, there was not-made a case such as would give it operation to confirm the land in controversy.

Louis Court of Appeals, (1) Mandamus is not the proper remedy to correct an error, if error there was in this cause. The court below acted judicially in all matters pending before it, and it is not in the power of this court to review that action by mandamus. Railroad n. LaeJcland, 25 Mo. 527; High on Extraordinary Remedies, secs. 156, 176, 177.

Louis Court of Appeals. This case grew out of' and is an incident to the next preceding one, and was. argued and submitted in connection with it.

—Hon. John P„ Strother, Judge. (1) The court erred iu excluding the sheriff’s amended deed dated May 3, 1807, from B. H. Hawpe, sheriff, to Wm. H. Trigg, and the deed from Trigg to defendant, Wade. The first sheriff’s deed being defective, it was the duty of the sheriff to make an amended one. Thornton v.' McKimmon, 48 Mo. 219. The omission of the word “door” in the amended deed was simply a clerical error and was immaterial.

—Hon, E. L. Eewabds* ' Judge. (1) Injunction is not a proper remedy in this case. It is a well settled rule that an injunction will not be granted where there is a full and adequate remedy at law. High on Injunction, section 30. The plaintiff had his remedy at law. MilWcen v. Shapleigh, 36 Mo. 596; Wilson ¶.

—Hon. Jos. P. G-rtjkb, Judge. (1) Those portions of the .will in question which ■seek to enjoin a trust upon Mrs. Corby, by which parts of the testator’s estate were to be disposed of to advance the cause of religion and promote the cause of charity, in mich a manner as to meet the views of the testator secretly ■communicated at some time by said' testator to Mrs. Corby, were void, because such parts.were not reduced to writing and duly attested by the subscribing witnesses,…

Louis Court of Appeals. (1) There was no partnership between DeBar, Chontean and Mrs. Wakefield. In this state a mere division of profits does not constitute a partnership. McCauley v. Cleveland, 21 Mo. 439; Gwinn v: Looker, 24 Mo. 292; Johnson v. Hoffman, 53 Mo. 505; Campbell v. Dent, 54 Mo. 325; Donnell v. Harshe, 67 Mo. 173; Musser v. Brink, 68 Mo. 249. (2) Even if the partnership existed the leasehold was not partnership property.

<p>1. Practice in the Supreme Court: weight op evidence. Where in an action at law, the evidence will justify a finding either way’ ' the Supreme Court will not pass upon its weight.</p> <p>2. Practice : instructions. It is not error to refuse instructions asked where the principles embodied in them are embraced in others given.</p> <p>8.--: -. An instruction asked is properly refused when there is no evidence upon which to base it.</p>

—Hon. Gr. W. Dunn, Judge. (1) The defendant was the head of a family and entitled to the land as a homestead. Brown v. Brown, 68 Mo. 388. And she took the premises in fee on the death of her husband. 68 Mo. 388, and 57 Mo. 380. (2) There was no abandonment of the homestead. The latter must be Yoluntary. Moss v. Warner, 10 Cal. 296. Mere removal does not raise a presumption of abandonment. Ives v. Mills, 37 111. 75; Kitchen v. Borgevin, 21 111. 40 ; ■20 Tex. 96.

Louis Court of Appeal. The following were the instructions given by the trial •court for the plaintiff : “ 1. If the testimony shows that the cars composing the train which caused the death of plaintiff5 s husband belong to the defendant, and also shows that such train was, at the time of the accident, under the care and control of the defendant’s agents and employes, then the •defendant’s liability to this action has been established.

—Hon. W. H„. Si-ierman, Judge. (1) The description of the property in the chattel mortgage is sufficient. Jones v. Richardson, 10 Metcalf (Mass.) 481; Hardin v. Coburn, 12 Metcalf (Mass.) 333; Jones on Chattel Mortgage, sec. 65. (2)- A mortgagee of personal property, after default, is regarded ás the absolute owner. 4 Kent 138; Williams v. Rover, 7 Mo. 556 ; Robertson v. Campbell, 8 Mo. 365; Id. 615.

—Hon. Gf. W. Dunn,.. Judge. (1) The action of the court in striking out of plaintiff ’ s instruction the words £ £ with interest on such sum at six per cent, per annum from the time of such conversion” was error. The law allows interest where property is converted. Sutherland on Damages, 174; State, etc., v. Smith, 31 Mo. 566; Wallcer v. Borland, 21 Mo. 289. (2) The trial court should have set aside the verdict, Nicholson v. Couch, 72 Mo. 209 ; Faughman r>.

—Hon. E. L. Edwards., Judge. (1) This proceeding was instituted under the provisions of article six, chapter twenty-one, Revised Statutes, pages 160, 161, 162, and 163. In proceedings to condemn land for railroad purposes an allegation in the petition that the “parties could not agree upon the proper compensation to be paid for land proposed to be taken” isa sufficient averment of the fact of disagreement to put the adverse party upon the defence to the merits.

Appealfrom Bates Circuit Court.—Hon. Jas. B. Gantt, Judge. (1) The defendant had a good equitable title to the-land in ’ question. (2) And plaintiff having purchased with notice of the facts, the court should, as against him,, have decreed specific performance of the contract. Hays v. Hall, 4 Porter 374; Deniston v. Hoagland, 67 111. 268; Be Wolf v. Pratt, 42 111. 211; Patterson v. Copeland, 52' How. Pr. 460.

Francois Circuit Court.—Hon. J. D. Pox, Judge. (1) If Paherty had no authority to empower McMullin to receive the money, the latter’s act in receiving it was unauthorized. Blair v. Ins. Go., 10 Mo. 566 ; Brandt on Sur. and G-uar., secs. 483, 484; Staten. - McDonough, 9 Mo. App. 63.

—Hon. N. M. GI-ivan, Judge. (1) The household furniture and provisions for one year’s support, or a reasonable allowance in lieu thereof, ■allowed the widow by the statute (R. S., sections 105 and 106), is her absolute property. Bryant .v. MeCune, 49 Mo. 546. (2) The right of the widow to four hundred dollars’ worth of personal property is absolute; vests ■immediately on the death of her husband and is a part of her dower.

—Hon. John D. Postee, Judge. (1) There is nothing to show, or tending to show, any fraud in obtaining the order of sale or in any of the proceedings relating to the sale of the land, nor is there a pretense that Edwards, the purchaser, was. guilty or cognizant of any fraud in the matter. (2) The judgment of the county court in the matter of selling the estate is conclusive. Gr. S.,1865, 234. And the proceedings show a strict compliance with the statute.

<p>Constitution: st. loots court op appeals : transfer op causes to supreme COURT. The general assembly was authorized, by virtue of the amendment to the constitution of 1884, concerning the judicial department, to transfer to the Supreme Court from the St. Louis court of appeals all causes pending in the latter court on January 1, 1885, and which were subject to final review in the Supreme Court.</p>

Appeal.from Osage Oireuit Court.—Hon. A. J. Seat, Judge. Plaintiffs’ petition in substance charges: That plaintiffs, Prances and Alvin Williams, are husband and wife; that prior to March 1,1879, defendant, Samuel Tutt, by repeated misrepresentations that Prances A. Williams (then Prances A. Cavenaugh) was about to be indicted or prosecuted for permitting a man to remain on her place without paying his board, in and by representing to her, said Prances, that under certain…

<p>1. Roads, Construction of: road and canal fund. A contractor for the construction of public roads could be paid under Revised Statutes, 1855, only out of the road and canal fund.</p> <p>2. County Warrant: special fund. One who accepts a warrant on a special fund, cannot look to another for its payment.</p>

—Hon. P. M, Black, Judge. (1) The circuit court had no jurisdiction of the amount 'involved in this cause. Acts 1873, 253 and 255; Hunt v. Hopkins, 66 Mo. 98; Stamps v. Bridwell, 57 Mo. 22; Williams v. Payne, 80 Mo. 409. (2) The circuit court erred in refusing to sustain defendant’s demurrer to the evidence; the ordinance should have specified the materials to be used in the construction of the street, in making fills and embankments.

—Hon. G. D. Bub- . gess, Judge. (1) It is the duty of the school board to make all needful rules for the government of the pupils (E. S., ■sec. 7045); but if it fails to do so, the teacher has the right, and must, of necessity, make such rules. Darien-Tioffer v. State, 35 Am. Eep. 216, 219. (2) The rule of the teacher against profane swearing and fighting by pupils, either at school or on their way home, was reasonable and proper.

Appealfrom Jackson Circuit Court.—Hon. F. M. Black, Judge. Th© place, and only place foq a tax sale, under the charter of Kansas City, is at the collector’s office. Laws 1875, p. 232, sec. 45. The form prescribed requires that a tax deed shall affirmatively show, that the property therein conveyed was sold at public sale at the collector’s office. Laws 1875, p. 237, sec. 64.

Louis Qourt of Appeals. (1) The motion of respondent is an attempt to state a bill in chancery to set aside a sheriff’s sale, bnt the necessary and essential charges of a bill in equity are not made. Nor could the court obtain jurisdiction of a party not in court without summons and on mere notice. (2) It is only claimed by defendant that the sale is voidable.

<p>Appeal from Buchanan Circuit Court.—How. W. H. Sherman, Judge.</p>

<p>Practice: parties : judgment.—The Supreme Court may reverse a judgment as to some of the appellants, and affirm it as to others.. R. S., secs. 3570, 3582, 3583.</p>

—Hon. W. E. Geigeb, Judge, (1) Proof of demand at the place stated in the note is essential as between endorsee suing and endorser sued. 1 Danl. Neg. Ins., 478; Parsons on Notes and Bills, 431; Glasgow v. Pratt, 8 Mo.' 336 ; Faulkner v. Faulkner, 73 Mo. 327 ; Sebree «. Doer, 9 Wheat. 558. Mere knowledge is not notice. 7 Danl. Neg. Ins. 29. (2).

—Hoít. N. M. Givast, Judge (1) A payment, to be the foundation of a claim for contribution, must be compulsory, that is, there must be a fixed and positive obligation to pay. Pitt v. Purssord, 8 Mees. & W. 530; Dams v. Humphreys, 6 Mees. & W. 153; Lucus v. Jeff son Ins. Co., 6 Cow. 635 ; 2 Wait’s Action and Def. 289 ; Frith v. Sprague, 14 Mass. 455.

—Hon. Theodore Brace, Judge. The judgment of the court below is erroneous upon its face. Even if it can be presumed that the plaintiff entered his appearance on or before the second day of the first term after the taking of the appeal (although there is nothing showing this fact), this only entitled him to have the case tried at such term, or to have it continued at the cost of the appellant. R. S., sec. 3056.

—Hon. S. A. Richardson, Judge. (1) The tax deed divested title out of the respondent’s ancestor. 2 W. S. Title Revenue, secs. 195, 217, 219 and 241; 12 U. S. Rev. Stat. at Large, 640; I)e Feville v. Smalls, 98 U..S. 517; Keely v. Sanders, 99 U. S. 441. (2) The tax deed is valid; it complies in substance with the requirements of the statute (sec. 217, supra), which prescribós the form of the deed is merely directory. Sedg. on Stat. and Const.

—Hon. Elijah Robinson, Judge. (1) The ordinance regulating the rate of speed of defendant’s engines and trains, and imposing a penalty for running at a greater rate than that prescribed by ordinance did not make a violation of such ordinance-negligence. The penalty was the only consequence which the law imposed. Brown ¶. Railroad, 22 N. Y. 191, and authorities cited.

Louis County Circuit Court.—Hoar. W. W. Edwards, Judge. The defendant was jointly charged with several others, in the circuit court of St. Louis county, with robbery in the first degree, upon the following indictment : “The grand jurors of the state of Missouri now here in’court duly empaneled, sworn, and charged to inquire withip and for the body of the county of St. Louis, and state of Missouri, upon their oaths, present and charge that Win.

—Hon. W. H„ Sherman, Judge. (1) The statute under which the indictment was found applies to public waters only, and not to private waters. R. S., sec. 1625. (2) If the language of the statute is broad enough to include within its prohibition the bayou in question, it takes or damages private property without any compensation therefor; it deprives a person of property without due process of law, and is, therefore, unconstitutional and void.

—Hon. M. G. Mc-Gregor, Judge. (1) The sale being a conditional one, the title did not vest in the vendee, and a bona fide purchaser is not protected. Sumner v. Cottey, 71 Mo. 121; Wangler v. ■Franiclin, 70 Mo. 659; Ridgeway v. Kennedy, 52 Mo. 24; Parmlee v. Catherwood, 36 Mo. 479 ; Little v. Page, 44 Mo. 412. (2) The plaintiff was guilty of no neglect or . laches which would bar his recovery. Powell v. Bardlee, 9 G. and J. (Md.) 220; Farlow v. Ellis, 15 Gray 229'.

—P. M. Mansfield* Esq., Special Judge. (1) The court had no jurisdiction to order the election of a special judge. (2) The record should show the facts necessary to authorize the election of a special judge under the statute. State v. St. Louis, 1 Mo. App. 503; McCoy v. Zane, 65 Mo. 11; Smith n. Haworth, 53 Mo. 88; Schell v. Leland, 45 Mo. 289 ; Wood v. Boots, 60-Mo. 546; Kansas r. Campbell, 62 Mo. 585 ; Ellis v. By., 51 Mo. 200.

Louis Court of Appeals. (1) The location of the sixteenth section within the range of the common field lots of the Grand Prairie is void. Glasgow •». Lindell Heirs, 50 Mo. 60, and Glasgow v. Bakera 72 Mo. 441; Page v. Scheibel, 11 Mo. 187; Glasgow v. Hortiz, 1 Black, 595.

— Hon. P. P. Wright, Judge. (1) Tlie statute under which, the exemption from the taxation is claimed is unconstitutional and void. Life Association v. Board of Assessors, 49 Mo. 512 ; Weeks v. Milwaukee, 10 Wis. 242. (2) The adoption of the constitution of 1865, article 11, section 16, rendered the •statute in question void. Ramsay v. Hoeger, 6 Chicago Legal News, 318; Hills v. Chicago, 60 111. 86.

-—Hon. N. M. GfivAN, Judge. (1) The court erred in permitting the plaintiff to read in evidence the policies of insurance issued to her' on the property in controversy; being in the nature of her declaration of ownership, were inadmissible.

—Hon. James M. Davis, Judge. (1) The court erred in overruling defendant’s demurrer to plaintiff’s evidence. Kestler, the foreman, was a fellow servant of the plaintiff, and the defendant was not liable for an injury occurring through his negligence, or on account of a failure on his part to keep his .alleged promise to protect plaintiff from injury. Harper v. Railroad, 47 Mo. 576 ; McGowan v. St. L. & 1. M. Ry.

—Hon. Jos. P. G-rubb, Judge. The instructions given for plaintiff were as follows: “1. Held: but the defendant was shown to have been .guilty of negligence in placing him in charge of the train when, from an investigation had a short time before, he wa,s found, by the defendant itself, to be unfit for the position of conductor, and was suspended for two weeks ■on account of such unfitness.

—Hon. R. P. Owen, Judge. (1) The complaint fails to state a cause of action, and defendant’s objection to the introduction of any evidence under same should have been sustained. (2) Defendant’s demurrer to the evidence at the close of plaintiff’s evidence, and also at the close of the whole ■case, ought to have been sustained. Powell n. M. P. By., 76 Mo. 80; Lenex «. M. P. By., 76 Mo. 86; Moody, P. By. Co., 68 Mo. 472 ; Kelly v. II. & St. J. By.

—Hon. Gf. H. BurckhaEtt, Judge. (1) The only jurisdiction the probate court had in this matter being conferred by statute, its powers are limited within the confines of the statute which gave it jurisdiction. R. S., sec. 1187; Schell v. Leland, 45 Mo. 289. (2) The probate court, under the statute, could set aside an inquisition only during the term in which it was had, and when so set aside it is the duty of the court to impanel a new jury to inquire into the facts.

<p>Error to Barton Circuit Court.—Hon. J. D. Parkinson,. Judge. '</p>

Louis City.—Hon. A. M. Thayer, Judge. (1) The jurisdiction of the courts to control by mandamus the action of a public officer is limited to cases •where the officer refuses to perform a specific act, the performance of which is enjoined on him by the law governing his office. If the matter is one resting in the discretion of the officer, or if there is no provision of law directing the execution of the particular act, the writ must be refused.

Loiois Court of Appeals. (1) The court erred in granting the order to examine Dr. Staples on interrogatories. (2) The court erred in refusing to order the plaintiff, under the peculiar circumstances of this case, to submit herself to an examination by competent and fit physicians and surgeons.

<p>Appeal from Jasper Circuit Court'—Hois. Jos. Cravens, Judge.</p>

Louis Court of Appeals. (1) The judgment, as to George Westenhoff, is against the evidence and the admissions of the pleadings. The pleadings admit, and.the evidence shows, that he was not in possession of the premises, but was living with Ms mother as a member of her family. Being irregular as to one of the defendants, the judgment should be set aside as to both. Mutual Life Insurance Co. v. Clover, 36 Mo. 392.

This case was submitted to the Chariton county circuit court on an agreed statement of facts, and upon that statement judgment was rendered in favor of respondent, from which plaintiff appealed. This agreed statement shows that in the general election of 1876, plaintiff was elected assessor of Chariton county, for which place he duly qualified and entered on the discharge of its duties.

—Hon. Charles G. Burton, Judge. The defendant was indicted for murder in the first degree, and on trial was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for the term of fifteen years. The court instructed the jury as follows: • “1. The court instructs the jury that the defendant is presumed to be innocent of the offence charged.

<p>Appeal from Schuyler Circuit Court.—Hon. Andrew Ellison, Judge.</p> <p>There was a sufficient delivery of the deed to the ■children of the plaintiff. Lumber v. Anderson, 13 Mo. ' App. 434; Mayor v. Hill, 13 Mo. 250; Gorman v. Stanton, 5 Mo. App. 585; Hale v. Lincoln, 62 111. 24; Palmer v. Palmer, 18 C. L. J. 78; Long v. Joplin Mining Ho., 68 Mo. 432; Cecil v. Beaver, 28 la. 241; Adams v. Adams, 21 Wall. 185; McPherson v. Heather stone, 87 Wis. 641; Master son v. Cheek, 23 111. 76; Hevoise v. .Snyder, 60 Mo. 240; Huey v. Huey, 60 Mo. 694; Gould r. Hay, 94 U. S. 412; Burke v. Adams, 80 Mo. 504.</p> <p>(1) The making and recording of the deed to appellants, by respondent and her husband, in 1849, only .raises a prima facie presumption of delivery, and this presumption is rebutted by the countervailing facts and ■circumstances in the case. Yóunge z. Gilbeau, 3 Wallace, 636; Parmleez. Simpson, 5 Wallace, 81; Knolls z. Barnhart, 71 N. Y. '474; Hawkes z. Pike, 105 Mass. 560; Jackson z. Phipps, 12 Johnson, 418; Yarnallz. Yarnall, 6 Mo. 175 ; Martindale on Conveyancing,- sec. 212; Maynard z. Maynard, 10 Mass. 455; Creed z. Lancaster Bk., 1. Ohio 9, 10; Cummings z. Bramhall, 120 Mass. 564; Shortliff z. Francis, 118 Mass. 154. (2) The evidence' abundantly shows that there was no delivery of the deed in controversy either prior or since the death of Geo. Tobin, respondent’s husband, and under the facts in the case, the evidence failing to show a delivery to a third party for the use of appellants, there could be none after the death of one of the grantors. Huey z Huey, 65 Mo.' 689 ; Martindale Con. sec. 211. (3) And the presumption that deeds by parents to minor children, or deeds generally to idiots, lunatics and married women, and assignments for the benefit of creditors, from their beneficial character, are accepted by the grantees when found executed and recorded, as in this case, is only prima facie, and may be overthrown by countervailing circumstances. Hawkes z. Pike, 105 Mass. 560; Yarnall z. Yarnall, 6 Mo. 175; Tomkins z. Wheeler, 16 Peters, side p. 119 ; Martindale ■on Conveyancing, sec. 214; Burke z. Adams, 80 Mo. 504; Maynard z. Maynard, 10 Mass. 455 ; Creed z. Lancaster Bk., 1 Ohio, 9, 10; Cummings z. Bramhall, 120 Mass. 564; Shortliff z. Francis, 118 Mass. 154. (4) There must have been a mutual concurrence of action at some time or other, between grantors and grantees, on the faith of a deed before a delivery can be said to have taken place.' And in the case at bar the evidence shows conclusively that the grantees had no knowledge of the existence of the deed in controversy, until the institution of this suit, thirty-three years after the execution of the deed. Gould z. Day, 94 U. S: 405 ; Jackson z. Clezeland, 15 Mich. 94; Brackett z. Barney, 28 N. Y. 333 ; BurJce v. Adams, 80 Mo. 504. (5) The deed in controversy having always been held by grantors, and its existence never made known to grantees, or any one else, and never delivered to any one for their use,' or declared by grantors to be intended as a present operative conveyance cannot, under the circumstances of this case, operate as a transmission of title. Fisher v. Fall, 41 N. Y. 416; (Jammings v. Bramhall, 120 Mass. 564; Bhortliff v. Francis, 118 Mass. 154; Maynard v. Maynard, 10 Mass. 455.</p>

—Hon. J. P. Strother, Judge. The proceeding from the presentation of the will in the probate court, till final judgment declaring it was not her will in the circuit court, was one proceeding. Morse and Burriss bought pendente lite. They bought subject to the result of the suit and as it resulted in establishing there was no will, they holding under the will took nothing. Dickey v. Malechi, 6 Mo. 177; Benoist 'o. Murrin, 48 Mo. 48 ; Tapley's Ad/rntr v. IfcPike, 50 Mo. 589.

—Hon. H. P. White, Judge, It is alleged the instrument stolen was a deed. There can be no deed without a grantee, and there is no sufficient description of the instrument. State v. Kroeger, 47 Mo. 530 ; State v. Fay, 65 Mo. 490 ; State v. Page, 19 Mo. 213 ; 3 Wash, on Real Prop. (3 Ed.) 236; 1 Bouvier, 387. The value of the property affected is alleged to be two hundred dollars, and the value of the deed should have been charged to be the same.

W. P. Geiger, Judge. (1) The ordinance of the city of Springfield, when accepted by the appellant, became a contract, binding upon the municipality. Mühan v. Sharp, 27 N. Y. 620 ; City of Quincy n. Bull, 106 111. 337; 1 Potter on Corporations, secs. 376, 395; Bailey n. Mayor, 3 Hill, 530; Lloyd n. Mayor, 5 N. Y. 375; Indianapolis n. Gas Company, 66 Ind. 406; Burlington n. Burlington Street By.

<p>Conveyance : fraud : evidence. The allegations of the petition in this case to the effect that the conveyance by defendant to his wife-was in fraud of creditors, held, unsupported by the evidence.</p>

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