Volume 89 — Missouri Reports

(1) The suit was in rem and no res was found in Jackson county, and, therefore, the court acquired no jurisdiction of the defendants. Service alone on the garnishee was not sufficient to confer jurisdiction. Nornelle v. Porter, 62 Mo. 309. (2) A garnishee is to be placed in no worse condition than if sued by his creditors, so that if Tusten et at. could not have sued the garnishee in Jackson county, then the insurance company could not be held liable as a garnishee.

— How. Bew. E. Tubweb, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. (2) Injunction is not the remedy. If there is an office and the directors wrongfully claim to exercise its duties, neither injunction nor mandamos is the remedy. Hunter v. Chandler, 45 Mo. 452. Plaintiff says the “taxis illegal” and should be restrained, and proposes to beg the question “of title to office.” State ex rel. Jaclcson v. Auditor, 36 Mo. 70.

— Hon. A. J. Seay, Judge. The defendant’s demurrer to the evidence should have been sustained. (1) The plaintiff’s mare was in his pasture, which did not adjoin the defendant’s railroad. As he was not an adjoining proprietor, it was incumbent on him to show that the fence around this pasture over which his mare escaped, was defective and not a lawful one.

— Hok. P. M. Black, Judge. (1) Relator adopted the proper remedy in the case, and the record of the mayor’s court alone can be looked .to as a warrant for its proceedings, and, therefore, the court erred in permitting the extract from the proceedings of the council meetings to be considered as a part of the record. State ex rel. Oreeley x>. St. Louis, 67 Mo. 113; Laws 1875, p. 249, sec. 8; Railroad n. Board of Equalization, 64 Mo. 249 ; McQuoid v. Clancy, 1 Western Rep. 433.

Louis Court of Appeals. (1) This section of the ordinance was originally enacted as ordinance number 5735, approved January 23, 1866, and was repealed by the general assembly by an .act approved February 6, 1866, which last act was itself repealed February 27, 1869, but was re-enacted in the revision of the ordinances March 31, 1871, in its jxresent form, but up to this time no attempt has ever been made to enforce it.

— J. M. Patterson, Esq., Special Judge. The law under which the indictment was drafted was repealed by act of the legislature. There is no bill of exceptions and the court will only examine the record proper. No error appearing in the record the judgment should be affirmed.^

— IIon. Ben. E Turner, Judge. It is conceded that for any acts of nonfeasance or breach of duty by the bank officer toward the corporation, the right of action goes to the assignee by the deed of assignment, and although a creditor may have been injured, his injury is common to all the creditors; but it is insisted that for positive acts of intentional fraud and misfeasance, such as stated in the' petition, and by and through which an individual has sustained injury, the…

— Hon. A. J» Beat, Judge. Neither the probate court nor the circuit court had authority to pass upon the merits of the case after the motion for change of venue was presented. R. S., sec. 3730 ; Stale n. Lack, 58 Mo. 502 ; Gale v. Miche, 47 Mo. 328; R. S., sec. 3729; Corpenny v. City of Sedalia, 57 Mo. 88.

— Hoh. Noah M,. G-ivah, Judge. (1) Private property cannot be taken for public nse 'without just compensation. In so taking it the power must be strictly pursued. Sec. 21, art. 2, Constitution of Mo. ;.Leslie v. City of St. Louis, 47 Mo. 477; Sahaffner v. City of St. Louis, 31 Mo. 272; Whitely v. Platte Co., 73 Mo. 30. (2) The establishment of a road is an entirety, and if void as to one, it is so as to all. Brush v. Detroit, 32 Mich. 43.

Louis Court of Appeals. (1) These proceedings, being in innitum, no presumptions of jurisdiction are made. Every fact necessary to jurisdiction must affirmatively appear. The circuit court (in such proceedings as these) is regarded as a court of special and limited jurisdiction. The petition must hence disclose all the facts which the city charter or public law renders necessary as preliminary to this proceeding. ' Railroad r. Campbell, 62' Mo. 585 ; Cole v. Cole, 8 Mo.

— Hon. J. D. Poster, Judge. (1) The conveyance to William D. Waldrup by DeWitt C. Phillips in trust for the benefit of his wife, Jennie Phillips, and the heirs of her body born in wedlock with him, makes Jennie Phillips tenant in tail special, equitable estates being governed by the same rules as legal estates. 1 Walsh, on Real Prop. [3 Ed.] p. 90, sec. 33; Perry on Trusts [2 Ed. ] secs. 357, 377, 382, 383. (2) Dower and curtesy are incidents of estates tail. 1 Wash.

— Ron. Ben. V. Alton, Judge. ■ (1) The answer is insufficient. Arthur ®. Brooks, 14 Barb. 533 ; Pry v. Railroad Co., 73 Mo. 123; Long v. Long, 79 Mo. 648; Wright n. Butler, 64 Mo. 165. The court erred in submitting the case to the jury. (2) The court erred in sustaining a demurrer to the evidence. Plaintiff had made aprima facie case which was not rebutted, and for this purpose it was sufficient to prove-prior possession either in themselves or grantor.

Louis Court of Appeals. (1) Our Supreme Court Lave continuously asserted the doctrine, since the passage of onr present statute of ■limitations, February 22, 1847, that where there was no ■seizin or right of possession, the statute did not run.

— Hon. John P. Strother, Judge. The petition in this case alleged the bridge in question to be a toll bridge. (1) The petition is sufficient and shows a complete •cause of hetion. R. S., 1879, art. 9, chap. 145, sec. 688. (2) The value of the bridge as assessed was purely local and ought to have been and was apportioned to Clay .and Jackson counties alone. (3) The bridge is a toll •one within the meaning of the statute. R. S., sec. 6901.

— Hon. Ben. Y. Alton, Judge. (1) The court acquired no jurisdiction over the subject matter, and any judgment rendered by it against the garnishee was void. The statute required the sheriff to declare to the garnishee that he attached the money, chattels, etc., in its hands. R. S., sec. 419. The sheriff did not do so and having failed, the court was without authority to proceed. Aforvell 0. Porter, 62 Mo. 309. Garnishment is in the nature of a proceeding in rem.

— Hon. C. 0. Bland, Judge. (1) The court erred in overruling defendant’s motion to require plaintiff to make Ms petition more specific- and certain. Defendant liad a right, when .properly asked for, to have the occurrence of the negligence confined within reasonable bounds. It was easy for plaintiff' to have stated this. It was all important to defendant-to have it done. AUerby n. Powell, 29 Mo. 429; State-v. Sherman, 42 'Mo. 210.

— Hon. C. C. Bland, Judge. (1) There is no competent evidence that respondent had succeeded to all the rights of Robert Brock, James R. Duncan’s assignee, by assignment in writing as provided by the contract... (2) There is nothing in the evidence to show that the appellant assumed any of the obligations or responsibilities of the Atlantic & Pacific Railroad Company, or was substituted legally, or in fact for that corporation in the contract.

— Hon. R. P. Owen,. Judge. (1) (a) The judgment is void on the face of the record because the service of the summons does not conform to the requirements of the law and the appearance of appellant to the merits could not cure this defect. It should have been served on the.nearest station agent'. R. S., sec. 2521; Haley v. Railroad, 80 Mo. 112; Horvel v. Porter, 62 Mo. 309.

— H. H. Bedpoed, Esq., Special Judge. (1) There was no evidence whatever upon which the court could have legally found a judgment for the plaintiff. 'Wade Railroad,, 78 Mo. 362 ; Matson v. Railroad, 80 Mo. 229 ; Barnett v. Railroad, 63 Mo. 65; Thompson n. Railroad, 74 Mo. 560; Morris v. Railroad, 79 Mo. 367 ; Hitterling r>. Railroad, 79 Mo. 504; Nance ¶. Railroad, 79 Mo. 196.

— Hon. Andrew Ellison, Judge. (1) The proof was conclusive and uncontradicted that plaintiffs were holders of the note by indorsement before due for full value, and without notice of any infirmities, and unless the note was a forgery, the plaintiff ought to have recovered. (2) The stipulation of the articles of partnership read in evidence should have been excluded. It could not affect third parties without notice.

— Hon. G. D. Burgess, Judge. (1) The indictment is insufficient. Its allegations are inconsistent and repugnant. “If the indictment •sets out that the instrument ‘was signed’ by the person whose name it alleges to have been forged, it is repugnant and bad; because if it was signed by such person it was not signed by defendant.” 2 Bish. Or. Proc., sec. 371. (2) The court erred in permitting defendant to be cross-examined as to matters not testified to by him in chief.

— Hon. R. P. Owen, Judge. (1) The statute requires that reasonable notice of a motion to quash an execution shall be given. R. S., sec. 2405. And -the statute does not limit the defendant to a petition verified by affidavit. He may have his motion in open court. Heuring v. Williams, 65 Mo. 447. But notice is not dispensed with. R. S., secs. 3505, 3506, 3507. (2) The circuit court of Butler county had no jurisdiction.

— Hon. J. D.. Poster, Judge. (1) The conveyance to plaintiff in error was not-fraudulent because the transaction was between'relatives. Actual frauduleut intent must be proved by evidence-tending to show its existence and from which it legitimately results as a conclusion of fact drawn by a court or jury without the aid of any legal presumptions. 2 Pomeroy’s Equity, sec. 971-2; 1 Story’s Eq. Jur., sec. 190; Bump on Fraud. Convey. 42 ; Brielcner v. Stein, 48 Mo. 407.

<p>Jurisdiction.: void judgment : equitable relief. Where a courl has no jurisdiction all proceedings in the'cause are void ab initio. The judgment and execution thereon are void, and the defendant could maintain suit against the officer selling his property undei the execution as a trespasser, and the title of the purchaser at ths execution sale would be valueless. The remedy at law is ample and adequate in such case and equity will not interpose to enjoin the enfor^ifment of the judgment.</p>

— Hon. J. P. GrRUBB, Judge. (1) In an action for injury by railroads to stock, under the statute, the defence of contributory negligence is a good one. Trow v. Railroad, 24 Yt. 487; Marsh r>. Royilroad, 14 Barb. 364 ; Mentges ¶. Railroad, 1 Hilton, 425. (2) An owner of cattle who puts them where they are exposed to obvious danger assumes the risk. Railroad 'o. Methuen, 21 Ohio St. 586; Smith ?>.

— Hon. J. D. Poster. Judge. (I) Tbe court erred iu refusing to permit plaintiff ’ s witnesses, Cross and Ellis, on cross-examination, to ex- ■ press their opinion as to whether the gravel road at the place where the accident occurred, was covered artificially a sufficient width to afford a convenient and safe track for passage of wagons and teams. Sess.

— Hon. Tneo. Brace, Judge. (1) ' The right to a mandamus to compel the appointment of an administrator de bonis non will not be questioned if the facts warrant a second administration. State ex rel. Adamson x. Lafayette Co., 41 Mo. 221; State ex rel. Hoplcins v. Buchanan Co., 41 Mo. 254; State ex rel. Metcalf x. Qaresche, 65 Mo. 480 ; Kansas ■City x,. Eilanders, 71 Mo. 281; Garth x. Caldwell, 72 Mo. 622; State ex rel. Wright x. Adams, 76 Mo. 606.

— Hon. J. D. Foster, Judge. (1) The territory proposed .to be organized liad •already been organized under acts of February 27, 1851, and December 18, 1863 (Laws 1851, p. 19 ; Laws 1863, p. 213), as ‘‘ Wolf Island Educational Society,” and could not be organized under Revised Statutes, section 7022, which provides for tbe organization of unorganized territory.

— Hon. N. M. Givan, Judge. When any one holds property subject to a lien incumbrance, trust or charge, and a sale is made to a third party, a bona-fide purchaser, without notice, and the lien, thus divested, if the title is again acquired by the party in whose hands it was charged, the lien again vests. 2 Pom. Eq. Jur., p. 212, sec. 754 ; 1 Story’s Eq. Jur., p. 439, sec. 412; 2 Ponbl.

— lion. Noah M. Sty ah, Judge. The motion to set aside the verdict should have been sustained. The juror, W. B. Reed, was incompetent. The defendant was entitled to an impartial jury. Const. Bill of Rights, sec. 22; R. S., sec. 1897; Slater. Burnside, 37 Mo. 343, 347; State v. Wyatt, 60 Mo. 309 ; State v. Taylor, 64 Mo. 358, 361; State v. Busiclc, 19 Ohio, 198State v. Brown, 15 Kansas, 400 ; Baldwin ».

Jos. P. Grubb, Judge. (1) The execution recites the decree as of date of October 1, 1881, whereas the decree itself was not rendered until January 26, 1882. The execution also .commanded the sheriff to make any balance not paid by the lands out of the goods, chattels and real estate of Thomas N. Morrow, whilst there is nothing in the decree ordering anything to be collected from Thomas N. Morrow.

— Hon. Ben. Y. Alton, Judge. (1) Neither the justice of the peace, nor the circuit court, had any jurisdiction over the subject matter of the case. The record fails to show that the animal was killed in the township where the suit was brought. It was not averred in plaintiff’s petition, and the record nowhere discloses it. This if fatal tó plaintiff’s case.

— Hon. J. D. Poster, Judge. (1) In all trials at law the parties are entitled to have declarations of law applicable to the case. The submission of the case to the court sitting as a jury ■ in nowise takes away the statutory right. In no other way can it be ascertained upon what theory of law the court determined the cause. Cunningham v. Snow; 82 Mo. 587, 593; Davis v. Scripps, 2 Mo. 187.

— Hon. R. P. Owen, Judge. (1) Tlie matters necessary to constitute the relator’s right and the defendant’s duty and obligation, must be distinctly charged, since the courts will not infer fault or dereliction on the part of the said defendant. An alternative writ which fails to state these facts, is fatally defective. High. Ext. Leg.

— Hon. E. L. Edwards,, Judge. (1)- A partnership cannot be implied, as a matter-of law, from a business relation, if the parties thereto-have not made or intended to make a partnership contract, and if they have done nothing to estop them from, denying the existence of a partnership. Beecher Bush, 45 Mich. 188 ; Roth. v. Kirchoff, 12 Mo. App.-599.

Louis Court of Appeals. (1) The circuit court erred in admitting in evidence the sheriff’s deed to John H. Bobb, based upon the sale of the property levied upon under the execution in the case-of Lewis n. Bobb, because plaintiff is estopped by the decree in partition in the case of Belle n. Bobb from asserting any right, title, or interest, as against the title vested in Cora B. Taylor, to the land in controversy by the final decree in partition.

Louis Court of Appeals. (1) The court erred in permitting Dr. Chase, a dental surgeon, to testify against defendants’ objections to information derived by him when treating the plaintiff for injuries complained of in this case. R. S., sec. 4017-Oartsicle ®. Ins. Co., 76 Mo. 446. (2) The circuit court erred in refusing to instruct the jury that there could be '-no recovery against the city of St. Louis. 2 R. S., p. 1527, secs. 1, 3, 5, 13, 15, 16.

— Trial before Hon. J. B. Gantt, Judge of twenty-second judicial circuit of Missouri. (1) The judgment on the note was properly rendered against both husband and wife. Chitty’s Pleading [4 Am. Ed.J Mar. 48; Obermayer r>. Qreenleaf, 42 Mo. 304; Sehoüler Dom. Rel. —. (2) The judgment being properly rendered against Mrs. Howard the only question presented by the record here is whether the property of Mrs. Howard can be taken in execution to satisfy the .same.

— Hon. James M. Davis, Judge. (1) The Carroll court had no jurisdiction. The petition for change of venue was not sworn to by the plaintiff, in whose favor the change was granted. Lenin n. Dille, 17 Mo. 84 ; Huthsing n. Maus, 36 Mo. 101; NorneTl n. Porter, 62 Mo. 312; Ewing n. BrooJcs, 69 Mo. 49 ; Fields n. Malony, 78 Mo. 175.

— Hon. Theo. Brace, Judge. (1) The court should have sustained defendant’s demurrer to the evidence, and failing to do this erred in refusing to sustain defendant’s motion for a new trial on the ground that the verdict is against the evidence and contrary to law.

Mandamus. (1) The act of the General Assembly of Missouri under consideration is general, and is not local or special legislation, and, therefore, not within the inhibition of section 53, article 4, of the constitution of Missouri, declaring that “the General Assembly shall not pass any local or special law regulating the affairs of counties or cities — incorporating cities, towns or villages — or changig their charters, or creating corporations, or amending, reviewing,…

— Hon. B. E. Turner, Judge. (1) The verdict of the jury was against the evidence. (2) Instructions numbers one, two, three, four and five should have been given as offered by appellant. (3) Instruction number ten, given by the court of its own motion, and number twelve, given for defendant, were not in accord with the law applicable to the evidence. (4) The note executed by Kincheloe to Green, and read in evidence by defendant, was incompetent.

— Hon. James B. Gantt, Judge. (1) The defendant was entitled to a special venire. He made timely application for it, accompanied with his affidavit. R. S., secs. 2802, 8894; Samuels v. State, 3 Mo. .68; State v. Jones, 61 Mo. 232; Fulweiler v. St. Louis, 6h Mo. 479.

— Hon. M. G. McGregor, Judge. The indictment, which is drawn under section 1298, Revised Statutes, is sufficient. It charges that the burglary was committed in a depot building of the Missouri Pacific Railroad Company in Jasper county. The ownership of the property burglarized, as well as that of the property stolen, are correctly pleaded. Com. v. Williams, 2 Cush. 582; State v. Scripture, 42 N. H. 485; People v. MeOloslcey, 5 Parker’s Or. 0. 57; State v. Rand, 38 N. II. 216.

Louis Court of Appeals. The defendant, Sadie Hayes, was indicted at the October term, 1883, of the criminal court of the city of St. Louis, for murder in the first degree for shooting and killing Pelatiah M. Jenks, a sergeant of police of the-city of St. Louis. Upon trial in the lower court she-was found gnilty of murder in the first degree, and the judgment was affirmed on appeal to the St. Louis court of appeals.

Louis Qourt of Appeals. (1) There was no fraud in this transaction on the part of Spelman or Collins, nor was any fraud contemplated by anybody at the time the transactions took place. Fraud has since been concocted. to defeat Collins from recovering the interest on his estate, which he bought and paid full value for. (a) Every presumption, both of law and of fact, is in favor of the fairness of the transaction, and of the decree of this court rendered on the evidence.

— Hon. H. P. White, Judge. (1) The criminal court of Jackson county had no jurisdiction. The money which the defendant is convicted of obtaining was not received in Missouri. Com. v. Van Tayl, 1 Met. (Ky.) 1; Slate v. House, 55 la. 466; People v. Sully, 5 Parker’s Grim.

Louis Court of Appeals. (1) This case is not governed by Miltenberger v. Morrison, 39 Mo. 71, relied upon by respondent. The-agreement made by Mr. Carter as to the bidding in of the property at the trustee’s sale, having been acted upon by appellant to his detriment before the day of. sale, and by Carter at and after the sale, is not within the-statute of frauds. Baker v. Halligan, 75 Mo. 435; Gillespie v. Stone, 70 Mo. 505.

Louis Circuit Cotort. — Hon. A. M. Thayer, Judge. (1) The board of police commissioners is an administrative one and cannot remain continually in session. During the periods intervening between the sessions, it must have a mouth-piece to issue such orders as are-necessary to carry out the policy of the board.. This duty, under the police acts of 1861 and 1863, falls to the-president of the board. It is inherent in his office.

Theodore Brace, Judge. (1) The grant of administration pendente lite is in the nature of a decree in rem. Freeman on Judgments, [1 Ed.] p. 507, sec. 608. And, therefore, the judgment of final settlement of such administration is in the nature of a decree in rem. Fénix v. Fénix, 80 Mo. 27; Forth v. Priest, 81 Mo. 561; Grignon v. Astor, 2 How. [U. S.] 319. And, therefore, notice to the world is essential to jurisdiction over the subject matter.

— Hon. J. M. Davis, Judge. (1) Tbe defendants having been acquitted of murder in tbe first degree in tbis case, on a former trial, tbe conviction for murder in tbe first degree at tbe last trial was wrong, unless there is some provision in tbe constitution changing tbe law on that subject. State t>. Aoss, 29 Mo. 32.

— Hon. F. M. Black, Judge. (1) The motion to strike out should have been sustained. Plaintiff was not entitled to ground any part of his right to recover upon a claim for loss of profits in his millinery business resulting from the inability of his wife to attend to the same on account of her injuries. The petition alleges a contract of carriage between defendant and Mary J. Blair.

Louis Court of Appeals. (1) There should have been no recovery in this case, for the following reasons: (a) The declaration is upon a contract, in which there is no privity shown between the plaintiffs and the defendant. Railroad n. Railroad, 30 Am.

Louis Court of Appeals. (1) The testimony of a witness on a former trial, if dead, may be given in evidence, bnt it must be done by one who heard the testimony, and who will on his-oath, undertake to repeat it in such detail as the practice of the courts may require. 1 Phillips’ Evid. [4 Am. Ed.] p. 395, n. 115, with a number of cases cited. (2) [a] The husband was never seize d of an estate of inheritance in the lot.

— Hon. Gf. H. Bukcioiabtt, Judge. (1) A contract that is to be put into writing and signed by all the parties thereto, and which, it is understood by the parties, is not to be deemed complete until' signed by all the parties, is not binding on any, until signed by all. Bishop on Contracts, sec. 171; Methudy v. Ross, 10 Mo. App. 101, affirmed in 81 Mo. 481 ; Bads■ t). Qarondetet, 43 Mo. 113 ; Butler v. Smith, 35 Miss.-457; Addison on Contracts [3 Am.

Louis Court of Appeals. The petition is in the following words : “Plaintiff states that plaintiff is a body corporate, mcorporated under the laws of the state of Missouri, as a banking institution, and haying had its place of business, at the dates hereinafter named, in the city of St Louis, state of Missouri.

— -Trial before Hon. Gr. I). Burgess, Judge of the Eleventh Judicial Circuit. (1) The law demanded that all the power and influence the executor possessed,by virtue of his trust, be used for the advantage of his estate, and not for his own private gain or emolument. No other rule would be safe. Perry on Trusts, 533. And he can make no profit, either directly or indirectly, from his position or office.

— Hon. F. M„ Black Jutjo-e. (1) The court erred in setting aside the release. The right of action for the injuries received was Mrs. Blair’s separate property. Being her separate property she had the jus disponendi the same as though she were sole, and hence it was unnecessary for her husband to join in the release. He is obliged to be joined in a suit simply to conform to the requirements of the statute.

— Hon. John W. Emerson, Special Judge. (1) The circuit court erred in overruling defendant’s motion to strike out of plaintiffs’ reply the averments to the effect: That defendant made to plaintiffs certain representations as to the character of rock to be excavated, relying on which plaintiffs made said contract. That said representations were untrue in this, that the rock requiring excavation was flint and not limestone rock, as represented.

Louis City Circuit Court. — Hon. Amos M. Thayer,-Judge. - - , Under the various provisions prior to the adoption of the charter, the board had the right to draw the wári rant in the form as it appears in the record. Section 21, of article 4, of the charter, providing that no claim shall be audited against the' city, unless it- is in proper and fully itemized form,' does not require more fully itemized vouchers than the circumstances of the case permit.

Cross-Appeals from St. Louis Court of Appeals. (1) It is an inflexible rule of equity pleadings that tbe equitable title upon which .plaintiff claims must be set out with certainty, and recovery must be had on the title so set out. Story’s Eq. Pis., secs. 241, 258; Ibid. 27, 28; Crockett 'o. Lee, 7 Wheat. 527; Railroad v. Stewart, 4 O. É.- Green, 71; Jones v. Louderman, 37 Mo. 290.

— Hon. E. L. Edwards, Judge. (t) The first point in this case is, whether or not the house referred to is a dwelling house. There is no internal communication between the sleeping apartments above, and the ice-house below. The owner of the ice-house does not live in the rooms above. The entrance to the ice-house is upon the outside of the same, and is in no way connected with' the dwelling house. Wharton’s Criminal Law [8 Ed.] 783; 1 Bishop on Criminal Law, 165 to 180.

<p>1. Voluntary Conveyance : subsequent creditors. A voluntary deed from a husband to a trustee in trust for the grantor’s wife, no . badge of fraud being connected with its execution, and the husband noc being indebted at the time, and not contemplating becoming indebtedin the future, will pass the title out of the husband I to the trustee for the use of the wife, and is valid as against subsequent creditors of the husband.</p> <p>2. -:-: lost deed : notice. Although the deed had been lost and had never been recorded, it is valid as to all affected with notice of its execution. And where the husband told a subsequent creditor, at the time of contracting a debt, that he owned no * property, this was sufficient to put the creditor upon inquiry.</p> <p>8. Deposition. A paper in this case purporting tobe a deposition excluded from the consideration of the Supreme Court.</p>

^ross-Appeals from, St. Louis Court of Appeals. (1) Under the law and facts, the court below properly restrained the defendant corporation from trading-in boat stores with outsiders and from purchasing and selling grain. These transactions were and are beyond the power of the corporation; they are not authorized by the express terms of the charter, and they were not necessary for the legitimate business of the corporation.

— Hon. Noah M (1) Tlie tax deed should have been admitted in. evidence. (2) Appellant was not estopped, by anything he had don'e, from claiming title under the tax deed. Smith’s Lead. Cas. [6 Am. Ed.] 712-13 ; Blight's Lessee v. Rochester, 7 Wheat. 585 ; Link •». Dorfer, 42 Wis. 392 ; Coulter v. Waddingham, 43 Mo. 269 ; Page v. Hill, 11 Mo. 149. (3) It was not proper for the court to try R. A. Atkison’s title to the lot, on his petition.

Louis Court of Appeals. (1) A surety is not liable for a breach which has occurred prior to the execution of the bond. The authorities cited by respondent on this branch of the case do not support him. (2) The sureties on a bond cannot be held liable for a conversion, if the funds converted were never in the hands of the principal after they signed the bond.

— Hon. Theodore Brace, Judge. The bill does not seek to restrain an improper use of the side track after the same shall be moved northward, but its theory is, that because an improper use of the side track has heretofore been made, that, therefore, the removal of the side track northward would constitute a nuisance. If the side track is authorized .by law, it is a legal structure and not a ifuisance.

Louis Court of Appeals. (1) The money must be awarded to Roemheld, because he is the holder of the principal note of nine thousand dollars. His title to the note has never been assailed in any action, and this is a condition precedent for the interference of a court of equity.

Cross-Appeals from St Louis Court of Appeals. • (1) The court below erred in. disallowing tbe credits on account of U. S. income tax paid. The law clearly made it the duty of Mrs. Ames, as administratrix, to make returns of the amount of income as she clid and to pay the tax thereon. 5 Inter Rev. Rec. p. 75. (2) Ths administratrix did not charge double commissions on the item of $29,815.08.

— Hon. Gr. D. Burgess, Judge.' Appeal from, Putnam Circuit Court. — Hon. Andrew Ellison, Judge. (1) The power of taxation, is one of the attributes ot ■sovereignty, which under o-ur system of government is absolutely necessary for the maintenance of the general welfare and its surrender is beyond the legislative power. ■The contrary doctrine rests alone on bad precedents, founded upon ideas inimical to our institutions, and •ought not to be followed.

Hon. Hamilton G-. Wilson, Judge. • (1) The trial court erred in admitting in evidence the certified copy of the paper purporting to be a deed from Joseph Andrews and wife to David Bryant, dated February 3, 1819. The acknowledgment is not certified under the seal- of a court, and there is nothing to show that it was certified by any officer. (2) The court also erred in admitting in evidence the letters of administration from the county court of Jefferson county to Chas.

— Hon. James M. Dayis, Judge. This is a proceeding under Revised Statutes, sections seventy-five to seventy-eight, commenced in the probate court of Carroll county, by the executor of the ■estate of Sarah D. Wetherholt, deceased, against Thomas C. Brown, to recover possession of certain notes in his possession.

Tuesten A. ..... “till, Judge. (1) The indorsee for value, before maturity, of a negotiable note secured by deed of trust, takes the Becurity by the same title as that by which he holds the note. Logan v. Smith, 62 Mo. 459 ; Goodfellow v. Stillwell, 73 Mo. 19; Carpenter v. Longan, 16 Wall. 273 ; 1 Daniel on Neg. Instr. [3 Ed.] sec. 834.

— Hon. Ben. E. Turnee, Judge. (1) There is no merit in defendant’s objection that the names of all the material witnesses were not endorsed on the indictment. The statute which requires this to be done expressly provides that other witnesses than those whose names are endorsed, may be subpoenaed and testify in the cause. Sec. 1802, R. S.; State v. Roy, 83 Mo. 268; State v. Griffin, 3 West. Rep. 820 ; s. c., 87 Mo.. ' 608.

<p>Appeal from, Jasper Qireuit Qourt. — Hon. M. G. Mc-Gregor, Judge.</p>

— Hon. Gteoeg-e W. Dunn, Judge. (1) The state under the statute (R. S., sec. 808), in •a qui tarn action of this character is not a proper party plaintiff. State ex rel.

— Hon. J. M, Davis, Judge, (1) There is a total failure of proof of the legal establishment of the public road mentioned, by any competent authority. Cunningham v. Railroad, 61 Mo. 33 ; Railroad v. Nelson, 62 Mo. 585 ; Ellis v. Pacific, 51 Mo. 200 ; McQuoid v. Lamb, 19 Mo.

— Hon. Chas. Gr. Burton, Judge. The application for a continuance was properly overruled. The evidence of the absent witnesses was irrelevant and immaterial.

— Hon. W. F. Ctfugee, Judge. (1) Befendant ’s failure for two terms to make any ■defence was punishable negligence, and the court should have granted the judgment prayed for by appellant. The provisions of the statute are mandatory. R. S., sec. 3675 ; Edwards v. Watkins, 17 Mo. 273. (2) The-court should have allowed an examination of the jury as to their relationship to defendant. A corporation is its stockholders and officers.

— Hon, 0. 0. Bland3 Tudge. The statute does not require both the whistle to be sounded aud the bell rung. It is sufficient if either is done, and for aught that appears in the counts in the petition one or the other may have been done. Van Mote v. Railroad, 70 Mo. 641; Turner v. Railroad, 78 Mo. 680.

— Hon. J. R. Woodside, Judge. (1) The defendant having fled from justice, the prosecution was not barred. Section 1706, Revised Statutes ; State n. Washburn, 48 Mo. 240. (2) It is not necessary to suspend the statute of limitations, that a defendant should leave and remain away from the state.

<p>Appeal from Holt Circuit Courts — Ron. H. S. Kelley, Judge.</p>

John W. Emerson, Special Judge. (1) The petition in this case does not allege that, up to the filing of the report of the sheriff in the partition suit, that the court made an order of distribution of the proceeds of said sale, as is required by section 3381 of the Revised Statutes of Missouri of 1879. Without this order of distribution these sureties, defendants herein, are not liable on this bond. The court alone Can make the order of distribution.

— Hon. Silas Woodson, Judge. (1) The issue of character raised by the testimony-introduced by the defendant, was as to defendant’s character for truth and honesty, up to and before the' time the offence charged in the indictment was claimed to have'been committed, and the court should not have permitted the prosecution to inquire as to defendant ’ a moral character, and to bring that inquiry down to the time of the trial, and, thereby, prove habits of drinking too much, and…

Louis Court of Appeals. (1) Where a homicide is committed with an instrument not recognized by the statute as a“ deadly weapon” its deadly character must be alleged in the indictment. State v. Hoffman, 78 Mo. 257.

<p>i. Practice : evidence. Where there is a total lack of evidence to support an issue it is error to submit it to the jury, and the Supreme Court will, in such case, reverse the judgment.</p> <p>3.--: MODIFICATION OF JUDGMENT BY APPELLATE COURT. The Supreme Court, on appeal, may reverse or affirm the judgment of the trial court, or give such judgment as it thinks the trial court should have given. R. S., sec. 3776. It may reverse a judgment as to one of two appellants and affirm it as to the other.</p>

<p>Appeal from Moberly Court of Common Pleas. — Hone. ■ " Gr. EL Burokhartt, Judge.</p> <p>(1) The court erred in sustaining the demurrer to plaintiff’s evidence. Wood r. Bummer, 3 Mason, 308 ; Gratz v. Redd, 4 B. Mon. 178; Panic v. St. John, 25 Ala. 620; Calhoun v. King, 5 Ala. 523; Foreman v. Bigelow, 7 C. L. J. 430 ; Boynton v. Hatch, 47 N. Y. 225; Hamland v. Chace, 39 Barb.- 283 ; TaTlmadge v. Iron Co., 4 Barb. 382-387; Sawyer v. Hoag, 17 Wall. 610; Slcrainlca n. Allen, 7 Mo. App. 434; s. o., 76 Mo. 384 ; Bridge Co. v. McCluney, 8 Mo. App. 496; Crawford v. Rohrer, 9 Am. Corp. Cases, 410; s. c., 59 Md. 599 ; Rieve v. Morrison, 7 Am. Corp. Cases, 415 ; s. c., 54 Md. 429; Osgood v. King, 42 Iowa, 482. (2)' The statute of limitations did not apply. The fraud upon' one hand did not become complete until the defendants had placed their stock in the hands of innocent purchasers, as paid up stock ; while upon the other hand as to the stock which had been issued as paid up stock and which had not been, in fact, paid for they would still be treated as holders. 43 Mo. 452 ; 50 Mo. 55 ; 52 Mo. 557. (3) Defendants cannot avail themselves In this suit of the.fallure, of. the corporation to comply with the provisions of sections 926 and 957, Revised Statutes, 1879. Kinealy v. Railroad, 69 Mo. 658; Martindale $. Railroad,■ 60 Mo. 508.</p> <p>(1) Section 940, of Revised Statutes, bars plaintiff’s right of action against Bell. (2) No right of action against respondent, Bell, can exist until the appellant shows that he has been injured, and to show this he must first show that he has resorted to all the means arising under his contract with the Jackson Coal and Mining Company to realize his debt, and that these means have been insufiicient. (3) There can be no fraud perpetrated upon one who does not rely upon the fraudulent representations and make an investment or do some act upon the faith of those representations. (4) If the appellant had the right, as a subsequent creditor, to resort to defendant, Bell, for the satisfaction of his debt, ‘instead of going first to the then holders of the capital stock, it could only be upon the grounds, (a) that Bell sold and transferred his interest in the company to an insolvent man ; (&) or when the company -was insolvent; -or (c) that the stock was transferred to an innocent purchaser for full value, as and for paid up stock. (5) The stock was not issued as paid up stock by defendant, Bell, or during his connection with the company. f6) Stockholders of a company are liable only for claims on contracts existing at the date of the alleged wrong, and not liable to subsequent creditors. In re State Ins. Co., 14 Fed. Rep. 28 ; Kenton Furnace Co. 'o. McAlpin, 5 Id. 743. (7) “Whatever fairly puts a party upon inquiry in such a case is sufficient notice in equity where the means of knowledge is at hand.” Angle v. Ins. Co., 2 Otto, 342and cases. (8) “Unless prohibited by statute, an agreement between the incorporators of the company and the directors, by which the former convey to the company property needed for the purpose of its operations and receive payment therefor in full-paid shares of the stock of the company, is, in the absence of fraud, binding upon the parties, and such stock is full-paid stock. Phelan v. Hagood, 5 Dil. 45, and authorities therein cited ; Frshine v. Peclc, 13 Mo. App. 280 ;■ Thompson on Liab. of Stockholders, sec. 215; Graham v. Railroad, 12 Otto, 148.</p> <p>(1) The incorporators paid for their interest in the company as they agreed to do, and creditors who became such long after the arrangement between the original incorporators cannot disturb that arrangement at this late day. Phelan v. Hazard, 5 Dil. 45 ; Erslcinev. Peelt, 13 Mo. App. 280; Thompson Liability of Stockholders, sec. 134 ; 76 Mo. 384; Kenton Eurnace Co. v. McAlpin, 5 Fed. Rep. 743; 13 Fed. Rep. 152, 161; 14; Fed. Rep. 28; Coitv. Gold Amalgamating Co., 14 Fed. Rep. 12; Graham v. Railroad, 12 Otto, 148. Cases are numerous in which such transactions as that of Hardin and the Jackson Coal and Mining Company have come before the courts, and, in the absence of proof of fraud, have been sustained. 5 Dill. 45 and cases there cited on this point; Banlc v. Traer, 17 Cent. L. J. 152. (2) The court below did right in sustaining the demurrer to plaintiff’s evidence. He showed no evidence of fraud, and fraud will not be presumed. 14 Fed. Rep. 19 ; Rumbolds v. Parr, 51 Mo. 592 ; Henderson v. Henderson, 55 Mo. 555; Ames v. Gilmore, 59 Mo. 543. The act of the corporators was legitimate and is not a subject of inquiry now. Oglesby v. Atlrill, 15 Otto, 605. The plaintiff should show that he was prejudiced by an intended wrongful act before he can recover. Easz v. Spaunhorst, 67 Mo. 264. (3) Benj.' Hardin' transferred his interest in the mines long before the plaintiff loaned his money. And there is not the least evidence that it was not done honestly and without any intention to defeat any creditor of the company. There were no creditors at that time. Miller v. Great Republic Ins. Co., 50 Mo. 55. The transfer should be shown to have been made to an insolvent and with a view of exonerating himself from a then present liability before plaintiff can maintain his action. Ib.; Provident Sav. Inst. v. Horton, 52 Mo. 557. Hardin could have been held liable for the debts of the company contracted while he was a stockholder if the creditors could show that his' :stock was not paid for. Mediaren «. Franciscas, 43 Mo. 452 ;■ particular attention is called to pp. 465, 466, •and 468 of the last cited authority; Ohilds ». Coffin, 17 Mass. 64. Appellant had notice of whom he was dealing with. Angle v. Ins. Co., 2 Otto, 342. (4) The demurrer should have been sustained. The company had failed to comply with sections 926, 927 and 957 of Revised Statutes, 1879. The suit was not brought within two years after Hardin ceased to be a stockholder. R. S., 1879, sec. 940 ; 2 Dill. 99.</p> <p>The fraud is charged to have been committed in 1874. In 1880 Priest became a creditor. It is a principle of the common law that a fraud could only be •avoided by him who had a prior interest in the estate affected by the fraud, and not by him who subsequently to the fraud acquired an interest in the estate. Upton «. Bassett, Cro. Eliz. 445, and recognized in 3 Co. 83a ; 20 Johns. [N. Y.] 668; Prosser v. Edmunds, 1 Y. & 'C. 481 [Exch. Rep.]; Graham, ». Railroad,, 12 Otto, 154 ; Ogden v. Rolla, 13 Abb. Pr. 300 ; 15 Abb. Pr. 59.</p>

— Hon. E. J. Broaddus, Judge (1) The'1 case made on the answer, counter-claim, and reply, is to be regarded as though it was an original proceeding, wherein .the defendant was plaintiff and the plaintiffs defendants, and- the rights of the parties on this appeal are likewise to be determined accordingly. In support of these views generally, if support be needed, we refer the court to the following authorities : Hodges v. Blade, 8 Mo.

— Hon. E. L. Edwards, Judge. . • ■ - A private banker is not included within the provisions of Revised Statutes, 1879, section 1350. Section 27, article 12, of the constitution, only applies to.officers of incorporated banks.

Certiorari. (1) In this proceeding this court will pass upon the question whether the property is liable, either at all, or in the manner assessed. State ex rel. LatJirop r. Dow-ling, BO Mo. 137. (2) The intent of section 22, of article 5, of the charter of St. Louis (2 R. S., 1602), is, that lands not laid off into lots and blocks shall be assessed at their value for agricultural purposes. (3) .

Appeal f'rom OarroTl Circuit Court. — -lion. James M. Davis, Judge. (1) As the charge was specific and complete the defendant could be tried on no other ; only on section 1262, Revised Statutes; section 22, of Bill of Rights, accords-the right “to demand the nature and cause of the accusation.” (2) As the oifence was complete under section-1262, it was error to instruct the jury under another section; but otherwise if good under such other section.

— Hon. J. R. Wood-side, Judge. (1) The court erred in admitting the sheriff’s deed read by plaintiff, (a) The description of the premisea in dispute is different in the deed from the description ■stated in the petition. Stephen on PL, secs. 75, 190 : 1 G-reenlf. Evid. [13 Ed.] secs. 53, 64 ; R. S., sec. 2245 ; Blakely v. Saunders, 9 Mo. 472 ; Deickman v. Me■Cormick, 24 Mo. 596. Defendant did not ask to amend; he must abide the consequences.

<p>Appeal from Jackson Circuit Court. — Hon. T. A. G-ill, Judge.</p> <p>The second instruction given by the court instructs the jury that they are not bound by the testimony of the witnesses in regard to the value of the land proposed to be taken, or the actual damage done. This is not the' law. City of Kansas v. Hill, 80 Mo. 523 ; Washburn v. Railroad, 59 Wis. 364.</p> <p>' (1) The first instruction complained of is almost a literal copy of section 3, article 7, of the charter of the City of Kansas (Laws 1875, p. 196). and is correct. (2) The second instruction as given is entirely proper, Sec. 3, art. 7, Laws 1875, p. 196 ; Anthony v. Stinson, 4 Kans. 212 ; Patterson v. Boston, 20 Pick. 159 ; Ottawa Gas Go. v. Graham, 28 111. 73 ; Head v. Hargrave, 14 Cent. Law Jour. 388; Murdock v. Summer, 22 Seel. 158 ; Estate of Borband, 19 Cent. Law Jour. 379 : Post v. Spies, 44 Mo.. 20 ; Brehm v. Railroad, 34 Barb. 256 ; Rogers on Expert Test., sec. 37.</p>

— How. E. M. Black, Judge. (1) The objection by defendant to the introduction of any evidence under the petition, based upon the ground that said petition did not state facts sufficient to constitute a cause of action, should have been sustained, and the refusal of the court to so hold was error. P lynn v. Railroad, 78 Mo. 195; McMiTlon v. Railroad, 20 Barb. 449; Bpelman v. Pisher Iron Co., 56 Barb. 151; Buzzell ¶. Laconia Man.

— Hon. James B. Gantt, Judge. (1) The evidence of the difficulty between McCaw and James Forsythe in the morning should not have been admitted. That difficulty had nothing to do with the one which afterward took place in the potato patch. (2) Instruction number six Is erroneous because it left ¡the jury to determine what was a lawful manner, to determine questions-of law.

— non. Chas. Cf. Burton, Judge. (1) The evidence fails to show that the transaction ‘■betwéén Catharine and William Sharp was fraudulent. Vide Rumbolds v. Parr, 51 Mo. 592. (2) The court erred in admitting improper evidence over defendants’ objections. (3) There was no evidence tending to show that the sixteen hundred dollar note ever went into the Webb City property.

<p>Special Tax Bill: assignment : practice. A special tax bill issued by virtue of the provisions of article 9, of the charter of the City of Kansas (Laws 1875, p. 256) is assignable, and suit thereon may be brought in the name of the city to the use of the assignee.</p>