Volume 86 — Missouri Reports

— Hon. Gr. W. Dunn, Judge. (1) Mandamus is an appropriate remedy to compel the respondent to comply with the law and with the ■charter of the Kansas City, Gralveston & Lake Superior Railroad Company, in relation to public highways, under which the respondent’s railroad was constructed. State !t>. Northeastern Ry. Co., 9 Rich. (S. C.) 247; The People ex rel., etc., v. Troy & Boston Ry. Co., 37 How. Pr. 427; High’s Ex.

- Appeal from Lewis Circuit Court. — Hon. Ben. E. Turner, Judge. . ' (1) There is no evidence that defendant took the •cattle or ever had them in his possession. To constitute larceny there must be an actual taking and an actual transportation. 2 Bouvier’s Law Die., Title, “Lar-' ceny;” 2 Whar. Orim.

— Hon. W. F.. G-eio-er, Judge. (1) If this action is under the dower law the circuit-court of Greene county had no jurisdiction of the case. See section 4, page 58, local laws of the state of Missouri, 1855, published in 1865, giving the probate court of Greene county the exclusive original jurisdiction in probate of wills and assignment of deeds. (2) This being an action of ejectment the cause could not be revived in, name of administrator of Aletha J. Roberts.

John T. Redd, Judge. (1) The plaintiff could not recover on an implied promise to pay for the services rendered. The services being rendered by plaintiff, while in the employment, the law implies that the services were rendered under the contract of employment, unless the contrary be shown. Ross v. Hardin, 79 N. Y. 85; Wood on M. & S.3 sec. 90 ; Stansbury •». United btates, 1 Ct. of Cl., 123 ; Smith on Master and Servant (3 Eng. Ed.) 130; Guthrie v. Merrill, 4 Kan. 187.

— Hon. H. P» White, Judge. The indictment, omitting the formal part, is as follows : “ Feloniously did forge, counterfeit and falsely make a certain false, forged and counterfeit check, purporting to be made by Plankington, Armour & Co., a fictitious firm, and the said check purporting to be drawn on the Bank of Kansas City, a banking corporation duly organized according to the laws of the state of Missouri, which said false, forged and counterfeit check is of the tenor…

Louis Court of Appeals. (1) This action, based on the second and fourth, counts of the information, is maintainable, notwithstanding the conviction and subsequent acquittal on the first, third and fifth counts. 2 Grreenl. Ev., sec. 449 ; Reed r. Taylor, 4 Taunt. 616; E This v. Abrahams, 10 Jurist, 593; Sharper. Johnston, 76 Mo. 660.

— Hon. Benjamin E. Tubneb, Judge. (1) In making an objection to the introduction of evidence, specific giour of objection must be assigned. Primm v. Paboteau, 56 Mo. 412. (2) Parol evidence is admissible for the purpose of explaining ambiguities in the wording of a written instrument. State v. Linthicum, 68 Mo. 66; Franklin Av. Ger. Sav. Ass'n v. Town of Poscow, 75 Mo. 412 ; Carpenter v. Jamison, Id. 295; People d. Brennan, 30 Mich. 463.

Prohibition, (1) The questions which Henry Ames refused to answer before the referee were irrelevant and immaterial to the purpose for which the law permitted the examination to be ordered, and Henry Ames had a legal right to refuse to answer them. (2) The statute in question in. this case must be subjected to a strict construction. Its means and end cannot be expanded or added to by favorable implication or presumption.

— Hon. W. P. G-eigee, Judge. (1) A.n estate by the curtesy, or a marital estate for joint lives, will support a homestead. Thompson on Homesteads (1 Ed.) 174. (2) When a homestead is-abandoned judgment liens attach. Thompson on Homesteads (1 Ed.) sec. 263, et seq. Sale is abandonment. Ibid. (3) A man may not have two homesteads at once. Thompson on Homesteads (1 Ed.) sec. 579; BberhartV Appeal, 39 Pa. St. 509.

— Hon. John P. Strother, Judge. (1) The petition is fatally defective. It does not allege, that this alleged defect in the construction of the brake-hold or hand-wheel, was known to the defendant, or could have been known by it, by the exercise of ordinary care and diligence, or by the exercise of any care or diligence.

<p>Appeal from Jaolcson Criminal Court. — Hon. H. P* White, Judge.</p>

Louis Court of Appeals. (1) The statute, regarding new trials, does not apply to a new trial which is granted for error of the trial court in giving instructions to the jury, and where such error has induced an erroneous verdict, such new trial is not counted. Boyer v. Smith, 16 Mo. 351. The facts in this case are different from those in State ex rel. Wright v. Adams, 76 Mo. 606.

— Hon. W. P. Geiger, Judge. . (1) The rule that a trustee may not purchase the trust property “ does uot apply to mere naked or dry trustees, who practically have uo interest iu or power over the estate as trustees, to preserve contingent remainders.

— J. B. Thomas* Esq., Special Judge. (1) ‘ The deed of trust gave a lien upon all the personal property in the hotel, and upon all thereafter purchased and placed therein, and the lien is valid as to such after-acquired property. Wright v. Bircher, 72 Mo. 179 ; Frank v. Playter, 73 Mo. 672 ; Rutherford v. Stewart, 79 Mo. 216. And this is true, even although the mortgagee has not taken possession of the property. Jones on Chattel Mortgages, sec. 170.

— James R, Shields, Esq., Special Judge. (1) It was error to make the decree against the-defendant corporation, without the service of summons,, or its appearance to the action. The corporation could not be brought into court by suing its stockholders. Angelí & Ames on Corp., secs. 40, 46,100, 591; Gerard B. Allen Co. v. Frumet, etc., 73 Mo. 62.

— How. E. L. Edwaeds, Judge. (1) A conveyance made by a minor may be avoided in various ways; among others, by bringing an action of ejectment for the recovery of the land at any time within the period of the statute of limitations. Cole v. Pennoyer, 14 111. 158 ; Chadburn v. Radcliff, 80 Me. 354; 1 Am. Lead. Cases (4 Ed.) 256, and cases cited ; Schouler Lorn. Rel. 585 ; Tyler on Infancy and Coverture, 67; Reeves’ Dom. Rel. 372, and note.

— Hon. W. H. ■ Sherman, Judge. (1) The court erred in overruling defendant’s demurrer to the case made by plaintiff’s evidence: (a) Because there was no evidence that the engineer saw the cows in time to avoid injuring them by stopping the train. Tarnall v. By. Co., 75 Mo. 583; Frióle v. By. Co., 75 Mo. 608 ; Zimmerman v. By. Co., 71 Mo. 484.

<p>1. Criminal Law: larceny : evidence. • Defendant and his confederates inveigled the owner of horses into a sale stable, in St. Louis, where another confederate acted in the role of a buyer, and still another as a friend of all parties, in consummating a trade, and while his confederates were endeavoring to trick the owner of the horses into believing that he had traded them for certain mules, which the owner refused to do, the defendant took the horses and went off with them against the will and remonstrance of owner. Held, that defendant was properly convicted of grand larceny.</p> <p>3. Practice: remarks ok counsel : new trial. It is no ground for new trial that counsel in argument to the jury misrepresented the facts in evidence. It is for the jury, in such case, to apply the correction.</p> <p>S. -:-. Neither language of invective-, by counsel, when called forth by the character of the crime, which the evidence tends to disclose, nor urgent appeals to the talers of the facts to do their duty, will justify the Supreme Court in reversing a judgment.</p>

Louis Qourt of Appeals. (1) The record, as it appears before this court, shows that the motion for new trial was filed in time. Though the bill shows no motion for new trial, the court will examine all “ errors of record” in contradistinction to those of “exception.” State v. Marshall, 36 Mo. 400 ; O’Connor «, Koch, 56 Mo. 253. (2) The record shows that the appeal from the court of appeals to this court, was taken in time. Johnson v. Hodges, 65 Mo. 590.

— Hoist J. T. Redd, Judge. (1) The defendant corporation had no authority to issue the notes sued on. Such act on its part was ultra Hires. Laws of Mo. 1863-4, 20; McCullough v. Moss, 5 Den. 569. (2) Only the directors of the defendant could make the notes, if they could be made at all. •Godfrey stood in a fiduciary relation to each company .and this totally disqualified him from acting for either. He could not deal with himself.

— Hon. T. A. Gill, Judge. (1) The failure to recite in the deed that the property was exposed to sale by the collector, “for the payment of taxes, interest and costs due and unpaid upon said real property,” is absolutely fatal to the efficacy of the deed, because it is only in such cases that the city collector had any authority whatever for selling the property at all.

Louis Court of Appeals. (1) The petition in this case does not set np or con* tain facts sufficient to constitute a cause of action. This is a private action for a public nuisance, and there is no allegation or averment that the plaintiff had ever sustained any injury therefrom that was not common to the public at large, or which was not participated in by the public as well as himself.

— Hon. James M. Davis, Judge. (1) The defendants acquired title to the eleven acres either under the ten years’ or the two years’ limitation law. If their adverse possession began after the date of the judgment, in 1875, it being military bounty land, the defendants acquired title under the two years’ limitation law. If it is held to commence with the possession of their ancestor, say in 1867, then-they have acquired title under the ten years’ limitation law.

— Hon. James M. Davis, Judge. (1) The indictment charges the defendant with a felony, if he is charged with any offence, and under the instructions of the court he was found guilty of a misdemeanor, which cannot be legally done. 1 Bishop’s O. L., secs. 814, 823; State n. Hilderbrand, 5 Mo. 548; People v. Adams, 17 N. W. Rep. 226.

<p>The judgment of the circuit court, reversing that of the probate-court, for errors committed by the latter court in the admission of evidence, affirmed.</p>

— Hon. T. A. G-ill, Judge. (1) Allen’s letter of November 19, 1879, did not authorize the execution of a contract of sale. Rowan (1) The action is upon a contract, and the question of the authority of an agent to sign the same is one of ' evidence and not of pleading. Stein v. Repy, 46 -Mo. 606.

&emdash;Hon. M. Gf. McGbeg-ok, Judge. (1) The court erred in sustaining the demurrers and in overruling the motions for a new trial. 2 Blackstone, 243 ; 1 Chitty’s Pleading,' 52; Barber v. Hod, 1 Saunders, 136 ; Walker v. EUis, 2 Munford, 88; Bufner v. McConnell, 14 111. 169 ; Baker v. Hunt, 40 111. 264; Morse v. Aldrich, 19 Pickering, 452 ; Hall v. Martin, 46. N. H. 337; Metcalf v. Smith, 40 Mo. 576.

Louis Court of Appeals. (1) “The liabilities of a common carrier do not apply to those who let horses and carriages for hire.” Cooley on Torts, 638. (2) “A common carrier is one who regularly undertakes, for hire, to carry goods and passengers between different places, for such as may offer.” Cooley on Torts, 638. (3) The defendant’s contract to loan his carriages was a gratuitous bailment, and subject only to such liability as the law prescribes for that kind of a contract.

— Hon. A. J, Seat, Judge. (1) The third instruction given by the court foi plaintiff was erroneous. There was no evidence tending .to show that said arm of the river or slough simply filled from the bottom without forming accretions on eithei ■side.

— I-Ion. James B. Gantt, Judge. The court gave the following instructions on behalf of the plaintiff: “ 1. The record in this cause shows that the posses- ’ sion of the property was in Mudd at the time the proceedings were instituted, and cannot be contradicted.” “2.

.Appeal from Clay Circuit Court. — Row. Gr. W. Dunn, Judge. (1) Tlie objection to the introduction of any evidence under the first count should have been sustained. The plaintiff and the train men were fellow servants, and the plaintiff could not recover for the negligence of his fellow servants. Rollback v. Pacific Ry. Co., 43 Mo-187; McGowan v. St. Louis, etc., Railroad, 61 Mo. 528; Blessing v. St. Louis, K. C., etc., Railroad, 77 Mo. '410.

<p>Practice in Supreme Court. The Supreme Court will only review the record proper in a cause, where it fails to appear that any exceptions were taken to tlie action of the trial court' in overruling the motions for new trial and in arrest of judgment.</p>

Louis Court of Appeals. A return is essential to tlie creation of anv riaNt based on an execution against a stockholder. Courts will not dispense with any statutory formality, even when ■they deem it unimportant. Bright v. Boyd, 1 Story C. O. 486; Townsend v. Tallant, 33 Cal. 45; Bree v. Bree, 51 111. 367; Abernathy v. Dennis, 49 Mo. 468; MerriU ■v. Walker, 24 Me. 240; 8 hr oyer v. Nickoll, 55 Mo. 500; Turner v. By.

Mandamus. (1) The certificate filed by the relator iu the respondent’s office, and the petition (the truth of which stands admitted), allege that due notice was given of the pro-proposed increase of stock. In the absence of proof to the contrary, the presumption is that the law was complied with in this respect. O houteau Insurance Co. Holmes, 8 Allen, 217; Cone v. Cullen, 13 Pa. St. 133? Leavitt v. Mining Co., 4 Am. & Eng. Corp. Cases, 234, 237.

— ITon. Elijah Robinson, Judge. (1) Tlie record proper does not show that any orders were- made by the court, between the first and second, trials, and fails to show that the indictment was signed by the prosecuting attorney. (2) The court erred in procuring a panel of forty qualified jurors on the sixth oí March, when the trial was set for the tenth of March. The-whole forty may have pre-judged the case between these dates.

— Hon. Gf. ,D. Burgess, Judge. (1) Injunction will lie to prevent cloud on title. Mechanics Bank n. The City of Kansas, 73 Mo. 556-9, and authorities cited; Harrison v. Utterback, 57 Mo, 519, and authorities; Yogler v. Montgomery, 54 Mo. 579.

— Hon. Gr. D. Bubgess, Judge. (1) The court below should have permitted appellants, Ellingwood and Bailey, to file the amended answer. R. S., 1879, sec. 3567, p. 610 ; Wellman r>. Dismukes, 42 Mo. 101.

J. P. Stbother, Judge. (1) It was error to admit in evidence the deed of Sheriff Murray, acting as trustee, without proof of the-absence from the state of Powell and Shackleford, trustees, which absence was necessary to give the sheriff power to act, and the recitals in the sheriff’s deed are not evidence of that fact. The deed from Bunn to Coe was improperly admitted. It was void for want of description. (2) The lien dated from the commencement of the work.

— Hon. Theodore Brace, Judge. (1) In sustaining tlie motion to dismiss the suit, because of the alleged failure to state a cause of action, the court erred, and the court also erred in overruling the motion for new trial and the motion in arrest of judgment. In such, a case the only resort is a demurrer (R. S., sec. 3515), on decision of which the plaintiff may amend, of course. R. S., sec. 3518.

— Hon. Andrew Ellison, Judge. The following is the instruction mentioned in tha opinion of the court. “8.

— Hon. Gt. D. Burgess, Judge. (1) The dangers to be apprehended from repairing .cars on tracks used for making up trains, were open and obvious. They were as patent to Renfro as to Best, conjsequently all such hazards were assumed by the former. Cagney v. Ry. Co., 69 Mo. 416; Smith v. Ry. Co., 69 Mo. 32.

— How. James M-Davis, Judge. (1) Tbe court erred in giving several of the state’s-instructions, {a) The first and second instructions do-not properly define the different degrees of murder, there was no evidence tending to show that Baugh was present, assisting Anderson in killing Rea.

— Hon. F. M. Black, Judge. The defendant in the attachment suit having been personally served, the judgment and execution against him were general. 1 W. S. pp. 188, 189, secs. 36, 40.

— Hour. A. J. Seay, Judge. (1) The facts set up in defendant’s answer are supported by the evidence and entitle him to equitable relief.

— Hon. T. A. Gill Judge. Plaintiffs were merchants residing and doing business in Kansas City. H. B. Slaughter, a grain dealer, residing and doing business there, contracted for two car loads of wheat screenings with H. C. Groodell, of Winthrop (or East Atchison), Mo.

— Hon. S. A, Richardson, Judge. This was'an action to recover damages for injuries •sustained by plaintiff ’ s wagon by reason of a collision with one of defendant’s trains at a private crossing located on the land of another.

— Hon. A. J. Seat, Judge. (1) The conveyance to Grothouse was neither more nor less than a deed stipulating and providing for the release of each member of the firm from further liability, and was fraudulent and void against all the creditors not assenting thereto. Brown v. 'Knox, 6 Mo. 302; Bradley v. Ames, 50 Mo. 387. If the plaintiffs had proved up their claims under the deed and accepted pro rata payment of the same, they would have been estopped to dispute the release.

— Hon. M. G. Mc-Gregor, Judge. (1) The court had no jurisdiction of the person of the defendant. The summons was not served upon the chief officer, mayor, or “chairman of the board of trustees,” as he was termed by chapter 41, page 240, General Statutes, 1865. “ Process must be served on the mayor or other head officer.” Tidd’s Prac. 121 ; McQueen v. Mfg, Co., 16 Johns. 6.

— Hon. J. B; Oannt,. Judge, (1) The lower court erred in overruling defendant’s challenge of the grand jury. 4 Crim. Law Mag. 171 State v. Bleekly, 18 Mo. 428; State v. Welsh, 33 Mo. 33 ; State v. Cornell, 49 Mo. 282; State v. Brown, 64 Mo. 368. (2) The evidence on the question of the prejudice of the inhabitants of the county showed defendant was entitled to a chahge of venue. 5 Crim. Law Mag. 797 State v. Wash, 7 la. 347.

.Appeal from Hannibal Court of Common Pleas. — Hon. John T. Redd, Judge. (1) The Hannibal Meat Company, Limited, is an association created under and recognized by the laws of Pennsylvania.; lacks none, but has all the attributes and characteristics of a corporation. It has: (a) A distinctive associate name, by which it may contract.

— How. Joseph P. Grubb, Judge. (1) Section 7084, Revised Statutes, authorized respondent to issue the renewal funding bonds in question. The law of 1877 can be enforced without the necessity of employing a repeal of section 23 of respondent’s charter.

— Hon. Andrew Ellison, Judge. (1) The court erred in denying a jury; the issue was one at law. Henderson v. Dicltey, 50 Mo. 161; Crowe v. Peters, 63 Mo. 429. So the court erred in subsequently withdrawing the issues and discharging the jury. (2) The court erred as to defendant, Wells, in receiving the testimony of D. A. Patton.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) Taxpayers have the right to bring this action and sue out an injunction. Mathis v. Inhabitants, 62 Mo. 504; Nemmeier v. M. & M. JR,. R., 52 Mo. 81; Roach v. St. Louis Public Schools, 77 Mo. 485. (2) The city of St. Louis has no right to close up wells, without due process of law. Const, of Mo., secs. 21, 22, 30, art. 2. There is a special property and franchise in wells, protected by the constitution.

— Hon. Jos. P. Grubb, Judge. (1) The court erred in giving plaintiff’s first instruction. The fact that the company has been guilty of negligence, followed by an injury, does not make it liable, unless the injury was occasioned by that negligence. Harlan v. By. Co., 65 Mo. 25. It affirmatively declared that plaintiff was entitled to “a reasonable time to pass-from his seat in the car to the station platform.” This-was not warranted by the law or the facts. Imhoff r. By.

— Hon. James M. Davis, Judge. (1) As tire law stood wben tbe husband died the widow took an estate in fee-simple to the extent of a homestead, and on her death it went to her heirs, lineal and collateral. Slcouton v. Wood, 57 Mo. 380 ; Qragg v. Qragg, 65 Mo. 346; Brown v. Brown, 68 Mo. 338. (2) It was an estate created by the statute and beyond the power of the husband to dispose of by will.

— Hon. William H. Shekman, Judge. (1) The court erred in giving plaintiff’s third in:Struction. It is a commentary on portions of the evi-' Hence. Rose 'o. Spies, 44 Mo. 26; Head v. Hargrave, 105 U. S. 45. (2) Plaintiff’s third instruction was also -erroneous. Under it there was no need of any proof of the value of any service. (3) Plaintiff’s ninth instruction was not warranted by the evidence.

— Hon. H. S. Kelley, Special Judge. (1) The original assessment of the cost of the work on the whole block was void and so were the original tax bills based on the assessment. Kemper v. King, 11 Mo. App. 584; Keenan v. Smith, 50 Mo. 525; Weber ». Schergens, 59 Mo. 389. A void tax bill cannot be amended. (2) Mistakes as to form in tax bills of the character of those in suit can be corrected only by the officer who issued the bill.

Louis Court of Appeals. (1) The demurrer at the close of plaintiff’s case should have been sustained, because the plaintiff on her evidence was not entitled to recover. Maher v. Pacific Railroad, 64 Mo. 269, and authorities there cited ; Harlan v. St. C., K. C. & N. Ry. Co., 64 Mo. 480, and authorities there cited; Hallihan v. E. & St. Jo. Ry. Co.y 71 Mo. 113, and authorities there cited ; Lenix v. Mo. Pac. Ry.

Louis Court of Appeals. (1) • The general laws of 1865, section 11, page 328, and 1879, section 736, of the corporations act were not intended to affect the special and private act of February *9,1859 (Laws, p. 74), creating the Excelsior Insurance Company, or to apply to this corporation, its stockholders, for the following reasons : (a) The principle is, that a general statute treating the subject in a general manner, .and not expressly contradictory to the special act,…

— Hon. W. F. Gteiger, Judge. (1) It was proper for the court below to determine the rights of the defendants among themselves. R. S., 1879, sec. 3673. (2) The deed to Mrs. Hooper in evidence creates a life estate in her, with a contingent remainder to those of her children surviving her. Johnson ©. Waters, 17 Mo. 587; Fhnison v. Whittlesey, 55 Mo. 254. (3) The remainder in defendant, L. E. Hooper, is contingent on an event, to-wit, his mother’s dying before him.

Appeals from St. Louis Court of Appeals. 'Cl) The action, if it ever existed, was included in the transfer to the Mound City Company. (2) The action is brought under a champertous agreement and plaintiff cannot recover. Arden v. Patterson, 5 John.

WMle it was averred in the statement that the animal was killed in Egypt township, Carroll county, Missouri, such, fact was not proved. In the absence of such proof, no venue was shown and no jurisdiction was acquired by the court. State v. Metzger, 26 Mo. 65 ; Hansberger v. Railroad, 43 Mo. 196; Iba v. Railroad, 45 Mo. 469 ; Haggard v. Railroad, 63 Mo. 302; Barnett v. Railroad, 68 Mo. 56.

Loicis Court of Appeals. (1) The objection to the second and the remaining counts in the petition was well taken. Not one of said counts states a cause of action against the city of St. Louis in favor of the St. Louis G-as Light Company. Take the second count as an illustration. Its subject-matter is the service rendered by the plaintiff to the defendant in repairing, lighting, cleaning, and extinguishing certain public lamps in December, 1875.

— Hon. R. P. Owen, Judge. (1) If plaintiff has any interest at all in the land, it is the interest of Peter M. Spence, derived through the patent, which was an undivided one-third. R. S., U. S., sec. 2291. Hence plaintiff and defendant were tenants in common. 4 Kent’s Com., side pp. 366, 367. To maintain this action plaintiff was compelled to show, on the trial, actual ouster, or that the defendant did some act amounting to a total denial of his right as such co-tenant.

— Hon. E. L. Edwards, Judge. (1) The plaintiff had no right to maintain this suit. (а) There was no authority to appoint a receiver in the-case of Huegel n. Wallendorf. General powers in this respect in equity are limited by the statute. High on-Receivers, sec. 23; Fellows v. Hermans, 1 Abb. Pr. (N. S.) 1; Newman n. Hammond, 46 Ind. 119. Cox was-not appointed for the purposes named in sections 3660 and 3661, Revised Statutes.

— Hon. W. F. Geiger, Judge. Upon tlie evidence plaintiff was not entitled to recover in this cause. At the time of alleged trespass plaintiff was not in possession of the premises. John C. Crenshaw was at that time owner of said premises, was entitled to possession of same, and Majors, now his tenant, was in actual possession of same, and in actual possession still at time of commencement of this suit.

<p>Criminal Law: murder: practice; instructions. On a trial for murder, the court should not instruct for a grade of homicide not shown by the evidence.</p>

Louis Court of Appeals. (1) It is the settled law of this state that an adverse possession of ten years will not only bar a recovery by the owner, but will confer his title upon the adverse possessor. Merchants’ Bank v. Evans, 51 Mo. 335; Shepley v. Cowen, 52 Mo. 559 ; Barry v. Otto, 56 Mo. 177; Ridgeway v. Holliday, 59 Mo. 444.

W. F. G-eigee, Judge. (1) There was a delivery of the scales to the vendee. 1 Pars, on Cont. (6 Ed.) bottom page 638, side page, 603; 2 Kent’s Com. (4 Ed.) top pages 498, 499, side pages 499, 500, 544-5 ; Williams v. Gray, 39Mo., side page 201, and authorities cited; Comstock v. Affoelter, 50 Mo. 411; State to use' of Gates v. Fitzpatrick, 64 Mo. 185.

— Hon. E. L. Edwards, Judge. (1) Section 2835, Revised Statutes, is in violation of article four, section fifty-three, subdivision seventeen, of the constitution of Missouri, which provides that the general assembly shall not pass any local or special law regulating the jurisdiction of justices of the peace. “A special law is one referring to a selected class.”' Earle n. Board of Education, 55 Cal. 489; State ex rel. v. Wilcox, 45 Mo. 465; State v. Hermann, 75 Mo. 340;…

Louis Cozirt of Appeals. (1) Under the Missouri law, the homestead is an exemption from attachment and execution when used as a home. R. S., secs. 2691, 451.

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

Mandamus. The following is the return to the alternative writ of mandamus in this case: “The said respondent comes now, and for return to the alternative writ of mandamus herein admits the institution of the suit by A. J. P. G-aresche against the president, directors and faculty of St. Yincent’s College, and the recovery by said plaintiff of the verdict and judgment on June 9, 1877, the taking of an appeal by the defendant to this court, the reversal of said judgment, the…

— Hon. Theodobe BbacE, Judge. (1) The claimants having been misled by the action of the Ralls probate court in classing the judgment of the St. Louis circuit court, on personal appearance of administrator, their claim was not, under those circumstances, barred against the estate for want of presentment of original note within the two years.

Louis Gourt of Appeals. The following were the instructions given for the plaintiff: “1.

Louis Court of Appeals. (1) Appellant bases Ms claim to relief upon the fact that the estate conveyed by Mrs. Boyce was her separate property, in respect to which she was competent to contract as a feme sole. Her warranty of title bound hex estate and could be enforced in equity against it, and inasmuch as the heirs have received from her so much more than the two lots, they can be compelled to answer.

— Hon. C. C. Brand, Judge. (1) The plaintiff could not recover as assignee of his ■father’s cause of action. Causes of action sounding in. tort are not assignable. R. S., sec. 3462 ; Wallen v. Ry., 74 Mo. 521. The same principle applies alike in trover and replevin. Parmlee v. Loomis, 24 Mich. 243; Hisler v. Carr, 34 Cal. 641; Dame v. Dame, 43 N. H. 37 j Pace «, Pierce, 49 Mo. 393 ; Crocker v. Mann, 3 Mo. 472.

— Hon. M. Gr. McGrREGOB, Judge. The answer of defendant Teel admitting plaintiff’s ownership of property in controversy, and setting up art equitable defence, converted the case wholly into an equitable proceeding, and the case was tried upon that the ory in the court below. Hodges v. Black, 76 Mo. 537. The judgment of the 'court below, in favor of the plaintiff for the south half of lot fifty-seven, was entirely unsupported by the evidence.

Louis Qoilrt of Appeals. (1) Wlien a person lias money of another in his hands and purchases real estate with it and takes the deed in his own name, a resulting trust arises in favor of the one who advances the money in whole or in part.

— Hon. G-. D. Burgess, Judge. (1) The plaintiff, Jno. A. Bell, being a party jointly and equally interested with, his wife (R. S., 1879, sec. 2121), in the judgment, was, by the marital relation, disqualified from being a witness. This was undoubtedly true at common law. Best on Ev. (Chamberlayne’s Ed.) 131, note b, 4; 2 Kent’s Com. 179; 1 Greenleaf’s Ev., sec. 334; 3 Bacon’s Ab. Evidence A. 1; Paul v. Leavitt, 53 Mo. 595 ; Eaerle v. Kreihn, 65 Mr. 205.

— Hon. John C. 'Howell, Judge. (1) It is not averred in the statement in what township the animal was killed. Nor does it appear in what township P. Ewing was justice of the peace. These defects are jurisdictional and it was error to permit any evidence to be introduced in the case. State v. Metzger, 26 Mo. 65; Hansberger v. By., 43 Mo. 200 ; Iba v., By. 45 Mo.475 ; Haggard v. By., 63 Mo. 383.

— How. J. R. Wood-side, Judge. The indictment iu this case, omitting the formal part, is as follows “In and upon one Leonard Allen feloniously, on purpose, and of his malice aforethought, did make an assault, and did then and there, on purpose, and of his malice aforethought, feloniously shoot him, the said Leonard Allen, in and upon the back of him, the said Leonard Allen, with a certain pistol, loaded with powder and leaden balls, which hé, the said Price Jones, then and…

<p>Railroads : double damage act, constitutionality oe. The former decisions of this court, upholding the constitutionality of the double damage act, as regards both the constitution of this state and of the United States, sustained.</p>

— Hon. N. M. Gtvan,. Judge. (1) It is essential to the validity of a sale on execution. of premises containing a homestead, to set out the homestead before the sale. 2 Wag. Stat., chap. 68, p. 697 ; Perkins v.' Quigley, 62 Mo. 498 ; Vogler v. Montgomery, 54 Mo. 577; Thompson on 'Homesteads, secs. 639, 640. (2) The life estate of the plaintiff would support her homestead claim. 1 Am. Law Reg. (N. S.) 652 ; State ex rel. v. Dixeling, 66 Mo. 375.

— Hon. Andrew Ellison,1 Judge. (1) The master does not warrant to Ms servants absolutely the sufficiency or safety of the implements furnished' for their work, but only for the exercise of reasonable care in that respect; and' where an injury results to an employe from a defect in the implement furnished, knowledge of the defect must be brought home ■■to the employer, or proof that he omitted the exercise of proper care to discover it.

— Hon. T. A. Gill,. Judge; (1) It is not necessary that the acknowledgement of indebtedness, to be sufficient to take a debt out of the-operation of the statute of limitations, should contain a promise to pay the debt. It is only necessary that the .indebtedness be acknowledged, and that the acknowledgment be not accompanied by a promise or condition unfulfilled, or anything calculated to rebut a presumption that the party is willing to pay the debt.

— Hon. G-. D. Burgess, Judge. (1) The circuit court erred in sustaining defendant’s motion to strike out portions of plaintiff’s replication.

— Hon. S. H. Wood-son, Judge. A receiver of a railroad, appointed pendente lite by a court of chancery, upon a bill by or on behalf of bondholders for the foreclosure of a railway mortgage, is not authorized to appropriate the property and assets of the corporation and its earnings to payment of contract debts of the company, incurred previous to his appointment ; nor are such debts binding upon the receiver or a charge upon the assets in his hands.

— Hon. Andrew Ellison, Judge. (1) No judgment or decree of dispossession having been given at the time of filing of the answer, no right of action for the recovery of the value of the improvments had accrued to Shortridge. R. S., sec. 2259. (2) This proceeding, if maintainable, entirely abrogates all the provisions of the occupying claimants’ law. R. S., secs. 2259, 2266.

— Hon. P. M. Black, Judge. (1) The deed from Elizabeth S. Mettie to Neamie J. Talley conveyed a separate estate in fee to her, and that part of the habendum which attempted to limit a remainder to her husband, William W. Talley, on her death is void. 2 Glreenleaf’s Cruise, p. 651, secs. 75, 76 ; 2 Blackstone’s Com. 298; Goodlittle ■». Gibbs, 2 B. & C. 707; German v. Orchard, 1 Salk. 346; Boddington v. Robinson, L. R. 10 Excheq. 270 ; 4 Kent’s Com.

Louis Qourt of Appeals. (1) The demand of plaintiff on the basis on which the notice was given was void, for it was a claim originating after the death of the claimant by his having paid a judg- . ment rendered against the estate of deceased. Trustees, >etc., -». McElhinny, 61 Mo. 542.

— Host. G-. W., Duke, Judge. The court erred in sustaining the motion to dismiss the case. Admitting that the justice had no jurisdiction over the person of defendant, he had jurisdiction of the subject matter, and when defendant appealed the case to the circuit court it waived the' proper service of summons, and the circuit court got jurisdiction for all purposes, and should have pro-' ceeded to try and determine the case on its merits, de novo.

— Hon. John L. Thomas, Judge. (1) The cause of action alleged in each count of the petition is for damages, neither having any connection with or relation to the alleged causes of action stated in ■either of the other counts.