Volume 94 — Missouri Reports

Louis County Circuit Court. — Hon-W. W. Edwards, Judge; (1) Malice is the gist of this action; and, unless malice against plaintiff is proven, as- an independent fact; or, unless circumstances are established from which the jury are authorized to infer malice as a fact— malice specifically against plaintiff — there can be no-recovery.

<p>1. Discharge of Convict: commutation : pardon : statute. One whose death sentence was commuted to imprisonment for life by the Governor, while the act of 1865-6 (Laws, pp. 19-20 ; 2 W. S., p. 989, secs. 21, 22) was in force, is not entitled to his discharge by operation of law, and without a pardon, under Revised Statutes, section 6533 (amendatory of the act of 1865-6), but is only entitled to a recommendation for pardon, as provided by the act of 1865-6, where he has complied with its conditions.</p> <p>2. Pardon: constitution : conviction. The constitution authorizes the Governor, in certain cases, to grant reprieves, commutations, and pardons, after conviction. (Const., art. 5, sec. 8). After con- ■ viction means after a return of a verdict of guilty.</p> <p>3. -• conviction : commutation : sentence. One convicted of murder in the first degree, whose sentence is commuted by the Governor to imprisonment for life, is in the penitentiary by virtue of the sentence of the court. The commutation does not annul the sentence of the court, but is, pro tanto, an affirmance of it, with a modification.</p> <p>4. Discharge of Convict: three-fourths rule : revised statutes, section 6538. A conviot sentenced to the penitentiary for life is not entitled to his discharge under Revised Statutes, section 6533, as said section only relates to those who have served three-fourths of the time for which they were sentenced. Such a period cannot be affirmed of one sentenced for life.</p>

Louis Qourt of Appeals. (1) The judgment is in violation of the constitution of Missouri, and should be reversed on that account. Const. Mo. (1875) art. 2, sec. 20; Diclcey ¶. Tennison, 27 Mo. 373 ; Osborne t>. Hart, 24 Wis. 89 and 92; Sadler v. Langham, 34 Ala. 311 and 330; Taylor v. Porter, 4 Bill (N. Y.) 140 ; Ciarle v. White, 2 Swan (Tenn.) 548, 549 ; Freight ■ Co. ¶. Mayor, 4 Cold.

'Error to Ray Circuit Court. — Hon. Gr. W. Dunn,, Judge. ■ (1) The petition does not show that the defendant was ever furnished with “due proofs of the death of the said member, Taylor.” May on Insurance, sec. 460 - Sims v. Ins. Co., 47 Mo. 59. (2) The remedy, if any, is to compel the company to make the assessment. Rainsherger v. Union, 33 N. W. Rep. 626; Newman v. Covenant, 33 N. W. Rep. 562. (3) The beneficiary had no vested interest.

Louis City Qirbuit Qourt. — Hon. A. M„. Thayer, Judge. (1) The title to the note described in the petition was vested in plaintiff by virtue of Bevised Statutes, 1879, section 3296, and this title was never surrendered to or vested in her husband. (2) There is no evidence that plaintiff, directly or by implication, ever authorized her husband to hypothecate, exchange, or sell the note. Mead’s statements to that effect were incompetent.

— Hon. T. A. Gill, Judge. (1) Under the will of William A. Hopkins, deceased, Charles Gr. Hopkins had the power to sell and dispose of the lot of ground here in question ; but did not do so. ■Charles Gr. Hopkins claimed title to said lot from Sands W. Hopkins, his nephew, under deed bearing date September 11, 1879. Said Sands W. Hopkins did not attain his age of majority until November, 1879.

- — Hon. N. M. Gtvan Judge. (1) Error was committed in admitting in evidence the deeds to Baker, and from the latter to plaintiff, because they did not describe or' undertake to convey the lands in controversy.

— Hon. John Gr. Weak, Judge. (1) The court committed manifest error in admitting the depositions of plaintiff and others. This was a complete substitution of parol evidence for a conveyance of land by deed in writing. The evidence might have been competent on a bill in equity to reform the deed because of mistake, but was certainly not admissible' in ejectment. Jennings v. Brizeadine, 44 Mo. 332. It was not a case of latent ambiguity explainable by extrinsic evidence.

Louis City Circuit Court. — Hon. G-eo. W. Ltibke, Judge. (1) The defendant ought to have been allowed an equitable setoff against the interest of the relatrix in the judgment to the extent of the $1,242.98, which the relatrix owed to Ryan, the surviving partner, and for which the relatrix gave her receipt to him. The third ■and fourth instructions asked by defendant ought to have been given. Barnes v. MeMillins, 78 Mo. 271, and cases cited ; 1 Pomeroy’s Eq.

— How. M. G. McGregor, Judge. The action of the trial court, was proper. There was no proper information filed and nothing to amend. State v. Russell, 88 Mo. 648.

Louis CUty Circuit Court. — How. W. H. Horner, Judge. (1) The failure to pay the premium by the terms of the policy authorizes the forfeiture. Thompson v. Insurance Co., 104 U. S. 252, 260. (2) A paid-up policy would have required the payment of the interest due on the four notes, which was not tendered; otherwise defendant would have been required to.carry the risk for nothing. There was no surrender of the policy. Smith v. Ins. Co., 4 Bigelow’s Ins. Reports, 421.

— G-eoege N. BoijgtitoN, Esq., Special Judge. (1) The special judge had no power to order a grand jury to investigate the defendant. (2) The regular judge of the court would have had no authority to order ■a special grand jury- R. S., .sec. 1879. (3) The court erred in not setting aside the verdict, because of the participation of the deputy sheriff in the deliberations of the jury.

<p>Deed : DESCRIPTION. The case of Clamorgan v. The Baden & St. Louis Railway Company, 72 Mo. 139, followed and affirmed.</p>

— Hon. J. M. Davis, Judge. The court erred in permitting to be read, against objection, the alleged statements of Dr. Loomis at a former trial, from the bill of exceptions. Jaccard v. Anderson, 37 Mo. 94; Morris v. Hammerle, 40 Mo. 490; Donnell v. Byern, 80 Mo. 335; 1 Green!. Evid., sec. 503. The testimony of Loomis in former bill of exceptions was properly admitted in evidence on the last trial. Franldin v. Owner seU, 11 Mo. App. 314, and cases cited.

— Hon. Andrew Ellison, Judge. (1) The petition states facts sufficient to warrant the relief sought. Appellant may have a legal remedy, but, under the facts admitted by the demurrer, it is not an adequate remedy. The remedy at law must be complete. (2) The Yale mortgage was good. Bigman v. McCollum, 47 Mo. 372. But the respondent, Demeter, contends that, inasmuch as he furnished the money to obtain the legal title from the railroad company, he is entitled to subrogation.

Louis County Circuit Court. — Host. W. W. Edwards, Judge. (1) As Mrs. Fitzwilliam always retained possession of the lots, and there was no notice to Chamberlain that she held them as her own, there was no adverse , possession, and no title was acquired by limitation; the notice must be actual notice. Jackson % Benton, 1 Wend. 341; Swart v. Service, 21 Wend. 36; Butler v. Phelps, 17 Wend. 642; Taylor on Landlord and Tenant, sec. 86, note 5.

— Hon. E. J. Bkoaddus, Special Judge. Tlie plaintiff in error, on tlie death of her husband, became the owner in fee of the land in suit. SIcouten v. Wood, 57 Mo. 880. The defendants cannot claim to be innocent purchasers.

— Hon. W. P. Geiger, Judge. (1) The record shows, and it is virtually conceded by plaintiff, that, at the commencement of the suit for taxes against Marshall E. Palmer and A. M. Palmer, his wife, on August 16, 1879, said A. M. Palmer, as widow of Thomas W, Cecil, was the owner, absolutely, under the homestead law, of one undivided half part of the land in controversy, and that Marshall E. Palmer was the owner of the other undivided half part of the same.

— L. H. Waters, Esq., Special Juclge. (1) Instruction numbered one, asked by the plaintiff and refused by the court, should have been given. Railroad v. LindelVs Heirs, 39 Mo. 344; 1 Gfreenl. Evid., secs. 207, 208 ; Railroad v. Whitney, 27 N. W. Rep. 69, and cases cited.

Louis County Circuit Court. — Hon. W. W. Edwakds, Judge. (1) The office in question is a two-year office. Scheme and Charter, sec. 3; 2 R. S., p. 1562. The scheme became the organic law of the city and county, upon its adoption. Const. 1875, art. 9, sec. 20. It was adopted and went into effect on October 22, 1876. State r. Mason, 4 Mo. App. 377.

— Hon. W. F. Geiger, Judge. (1) The indictment and prosecution were not in the name of the state of Missouri. The indictment was not found and returned by a grand jury representing the state of Missouri, and for these reasons appellant’s objection to the testimony, and his motion in arrest, should have been sustained. Const, of Mo., art. . 6, sec. 88; State v. Cutter, 65 Mo. 503.

— Hon. F. M. Black, Judge. “ Where there are different causes' of' action united in the same petition, each cause must be separately and distinctly stated.” R. S., sec. 3512. This objection to the petition was sufficiently presented by the demurrer, which should have been sustained. Nor can legal and equitable causes be joined in the same count, but may be stated in separate counts.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. Defendants join in a pleading which, they call their joint and several demurrer. It is a joint pleading going to the merits, and should have been overruled, if the petition was good against either of them. Wilkerson v. Rust, 57 Ind. 172. The petition states a cause of action. Both defendants were directly liable to the consignee. Eedfield on Carriers, sec. 259.

The original judgment rendered by the probate court against Schmucker, as surety on the bond of Lange, was in strict accordance with'the statutes and was a valid judgment. R. S., sec. 49 ; Wioltham r>. Page, 49-Mo. 526 ; Brown v. Weatherby, 71 Mo. 152; Morehouse v. Ware, 78 Mo. 100. The answer admits that this was-a judgment regularly obtained. The cause was triable by a jury: R. S., sec. 3600. A court trying issues of fact sits as a jury and gives a general verdict.

— Hon. W. F. Geig-er, Judge. (1)In order to authorize a recovery in ejectment against an execution debtor, it is only necessary to show that at the time of the levy and sale the defendant, or execution debtor, was in possession of the land in suit and was in such possession at the bringing of the suit.

— Rots. T. A. GrILL, Judge. (1) Defendant’s objection to the introduction of any evidence, because the petition fails to state a cause of action, should have been sustained. There is noaverment in the petition that the plaintiff was exercising due care, ñor any facts stated from which such inference can be made. (2) Defendant’s instruction in the nature of a demurrer to the evidence should have been given.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The tax deed substantially conforms to the •statutory form, which is all that is required. Hobson v. Dutton, 9 Kan. 477; Knox «. Huideicaper, 21 Wis. 52 ; Austin t>. Holt, 32 Wis. 478. (2) Until the deed was made, the certificate was simply a chose in action, and as such might be transferred directly from husband to wife. Richardson v. Lourey, 67 Mo. 411. Even if treated as' real estate, the conveyance is legal.

— Hon. H. S. Kelley, Judge. (1) The court erred in overruling the defendants’ objection to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action. Nodaway county was, at the date of the alleged bond, under township organization. This fact is admitted by the pleadings. The constable’s bond should have been executed to the township trustee as obligee, and approved by the township board. R. S., sec. 7458.

— Hon. J. B. Gantt, Judge. No motion for a new trial was necessary. The error complained of appears on the face of the record. Bagby v. Emerson, 79 Mo. 139; Blag el r>. Murdoch, 65 Mo. 522; Parher v. Waugh, 34 Mo. 340; Bruce v. Vogel, 38 Mo: 100. The object of a motion for new trial is to call the attention of the trial court to errors committed during the progress of the trial, in order that the court may have a chance to correct such errors.

— Hon. Elijah Robinson, Judge. (1) The weight of evidence is that the gift was to appellant. (2) The court erred in permitting respondent, B. B. Broughton, to testify that he intended the one thousand dollars for his daughter, Lulu. 3 Wait’s Actions & Defenses, sec. 8, p. 496 ; Betts v. Francis, 1 Vroom (N. J. L.) 152; McKane v. Bonne, 1 Baily (S. C.) 113.

..Appeal from Greene Circuit Court. — Trial before Hon. M. Gt. McGtkeg-ok, Judge of the Fifteenth Judicial Circuit. (1) The deeds in evidence to S. EL Boyd, “as commissioner for Charlotte Coleman,” is simply a deed to S. El. Boyd, as trustee for Charlotte Coleman, a married woman, terminating at his or her death. Roberts v. Mosely, 51 Mo. 283. The land was owned by Charlotte Coleman, and after her death became liable for her debts.

Louis Court of Appeals. (1) Defendant was not injured by the court’s instruction on the subject of “notorious resistance,” etc., because there was no evidence to sustain that branch of the defence. Cluff v. Ins. Co., 13 Allen, 308 ; Harper's Adm'r t>. Ins. Co., 19 Mo. 506. (2) But all doubt that may have existed, as to the possible meaning of the testimony, has been removed by the finding of the jury under a proper instruction.

' Appeal from Cedar Circuit Court. — Hon. C. Cf. Burton, Judge. (1) The judgment rendered in tlie tax proceeding was void. The sale thereunder conveyed no title, (a) The assessor’s book for 1869 was not verified. This was essential. Unless verified, as required by law, it was .altogether invalid, “and all subsequent proceedings based thereon equally worthless.” State ex rel. Cook, 82 Mo. Í85; State ex rel. v. Schooley, 84 Mo. 447. (5) This was jurisdictional.

Charles Circuit Court. — Hon. W. W. Edwaeds, Judge. (1) There was no evidence tending to show that the injuries to the deceased were the result of negligence upon the part of the defendant. (2) Hence, the facts being undisputed, the case should have been taken from the jury. Powell t>. Railroad, 76 Mo. 82; Callahan v. Warne, 40 Mo. 136 ; Maher v. Railroad, 64 Mo. 267 ; Harlan v. Railroad, 64 Mo. 480; Buesching v. Gas Light Co., 73 Mo. 219; Nolan «.

Louis City Circioit Court. —Hon. Si-iepard Barclay, Judge. (1) The tax receipts offered in evidence on the part of plaintiff were improperly admitted by the trial court, as was also the evidence concerning plaintiff’s condition of servitude. Hinman v. Hare, 6' Cent. Rep. 48. (2) The record of the former judgment in ejectment where the same title was in controversy should have been admitted as evidence on the part of defendants and was improperly excluded by the trial court.

Mandamus. (1) This court has jurisdiction. The case involves constitutional questions. (2) The writ is addressed to the proper officer. (3) The relator is, by virtue of the laws of the state, entitled to collect this tax, and the machinery for its collection has been provided therefor. R. S., sec. 6318; 2 R. S., p. 1580, sec. 20; 2 R. S., p. 1594, sec. 23; 2 R. S., p. 1558, sec. 4; State ex rel. v. Kinney, 48 Mo. 373.

<p>Appeal from St. Louis City Circuit Court. — IIon. Geobge W. Lubke, Judge.</p> <p>(1) Notice to Hoffman or any director is notice to tlie bank. Gaston v. Banlc, 29 N. J. Eq. 98. Notice to tlie cashier is notice to the bank. Trenton Banking Co. v. Woodruff,\ 2 N. J. Eq. [1 Green.] 117; 3 N. Y. [3 Com.] 156 ; Bank v. Wulfekiller, 19 Kan. 60 ; Bank v. Thomas, 2 Mo. App. 367. (2) Where there is actual notice that Mrs. Douglass was the real'owner of the notes in question, this rémoves the transaction from the principles applied to negotiable paper. Cravens v. Gillilan, 63 Mo. 28; Bank v. Gay, 63 Mo. 33 ; Bank v. Dunn, 62 Mo. 79; Bank v. Davis, 2 Hill, 451; Chitty on Bills, secs. 198, 200 ; 47 Mo. 304 ; 64 Mo. 507; 22 Wis. 473 ; 37 Conn. 213 ; Wade on Notice, secs. 50, 70, 657. (3) Notice to the agent is notice to the principal. 6 Paige, 189 ; 2 Sngclen on Vendors, 532 ; 11 Wall. 366 ; 17 C. B. [N. S.] 466 ; 33 Vt. 252;' 43 N. H. 402; Bindley on Part. 294; 19 Iowa, 467 ; 3 Story, 600; 4 Wheat. 466. (4) Actual knowledge of a prior unregistered deed postpones the purchaser. 19 Wend. 33934 Conn. 501; 4Halst. 193; 8 B. Mon. 442 ; Perry on Trusts, sec. 221. (5) A mortgage wrongfully discharged or cancelled maybe enforced against subsequent purchasers with notice. 82 N. Y. 32 ; 43 Mo. 153. (6) If the lien cannot be restored a personal judgment may be rendered against the person who induced the wrongful- making of the release. 4 Abb. App. [N. Y.] 297 ; 2 Jones on Mort. 69. (7) There is no ratification without full knowledge. Angelí & AmesonCorp. 517; 32 Pa. St. 340. (8) When a recorded mortgage is discharged by other than the mortgagee all parties are bound to full inquiry as to his authority to ■discharge it. 5 N. Y. 301; 31 N. J. Eq. 536; 2 Jones on Mort. 58. (9) An unauthorized cancellation is' void, and the court will order it reinstated as against a subsequent purchaser with notice. Lynch v. Hancoclc, 14 ■S. C. 66, 85; 2 Jones on Mort. 59. (10) Purchasers pendente lite acquire no title. 11. Ves. 197; 2 V. & Beame, 105; Story’s Eq. Jur. 390; 5 Vroom, 150; 1 ■Johns. Ch. 574. (11) Notice that: Mrs. Douglass was the owner of the note is actual notice of all the facts which could have been learned from her by inquiry. 17 B. J. Ch. 121; 17 Vt. 329; 9 Ct. 286. (12) The bill may properly pray for a reinstatement of the mortgage, or a judgment against the wrongful releasor. 2 H. B. ■280 ; 9 Mod. 312; 8 Beav. 106.</p> <p>(1) This proceeding is purely in equity for the reinstatement and foreclosure of the mortgage claimed to be fraudulently released.. Biley v. McCord, 24 Mo. 268; Fithian v. Monies, 43 Mo. 518. (2) A proceeding for the foreclosure of a mortgage «under the statute of Missouri, is a proceeding at law and not in equity, and the jurisdiction is to be exercised, not according to the doctrines and practices of equity, but according to the practice and principles of law. Smith v. Finn, 77 Mo. 499; Carr v. Hollbroole, 1 Mo. 240 ; Mayer v. Campbell, 9 Mo. 280 ; Masón v. Bernard, 36 Mo. 384 ; Fithian v. Monies, 43 Mo. 502; Smith v. Rollins, 25 Mo. 408; Pomeroy v. Benton, 31 Mo. 417- (3) An entry of satisfaction by one not authorized is an absolute nullity and if the president of the bank had not authority the petition presents no case for equitable relief. Joerdens v. Sohrimpf, 77 Mo. 383 ; 9 Mo. App. 77. (4) The bank and other defendants are not affected by the limitations of the stipulation between plaintiff and her son of which they were not aware until after the acquirement of their respective interests. Hamilton v. Maries, 63 Mo. 167. (5) The acts of the Douglass Bagging Company, in lawful possession of these securities, were binding upon plaintiff. (6) Plaintiff had, as between herself and the bank, no claim until she had tendered the amount loaned by the bank. (7) Plaintiff must do equity before she can ask equity. (8) The authorizing, by plaintiff, of her son, Douglass, and her brother, McPherson, to act for her in connection with her interests in the Douglass Bagging Company, made them her agents, so that their agreements, in connection with the seventy-five thousand dollars loan, and their release of the “Ingraham mortgage,” became, inlaw, her act. (9) Plaintiff’s knowledge of the transactions, which led to, and were connected with, the release of the “In-graham mortgage,” at the time of their occurrence, without dissent or protest, and accepting the benefits thereby accruing, was a ratification of the acts. (10) Her indorsement of the note executed to her by the Douglass Bagging Company, and secured in the “Whalen mortgage,” and her demand for .the foreclosure of said mortgage is a ratification in law.</p> <p>(1) The entry of satisfaction of the mortgage was either authorized by the appellant in the first instance, ■or was approved and ratified by her afterwards, (a) No •other conclusion can be legitimately reached in view of the evidence in the cause. ' (5) This court, in equity causes, defers to the findings of trial courts on matters of fact. Chouteau v. Allen, 70 Mo. 336; Chapman r. Mcllwrath, 111 Mo. 43; Ilendriclts v. Woods, 78 Mo. 599; Royle v. Jones, 79 Mo. 406. (c) The finding by the court below was against the'appellant upon the merits of the controversy. (2) The petition states no ground of equitable relief against either the respondent, The Valley National Bank, or the respondent, Samuel E. Hoffman, (a) The proceeding is in equity to obtain a decree of foreclosure. The proceeding is not at law. The prayer of the petition is merely that of an ordinary bill in equity to foreclose. Riley v. McCord, 24 Mo. 265 ; Fithian r. Monies,' 43 Mo. 518. (5) The proceeding being in equity, the appellant seeks two results, to have the release of the mortgage vacated and the lien of the mortgage restored, and to obtain foreclosure of the mortgage as restored. But in these matters respondents, Hoffman and the bank, are shown to have no interest, (c) The appellant has a complete remedy at law. She may sell under' her deed of trust, buy in the property, and in ejectment to recover possession show, if it be the fact, that the release of the deed was made without her authority. Valle v. Iron Co., 27 Mo. 455; Chappell v. Allen,. 38 Mo. 213; Joerdens r. Schrimpf, 77 Mo. 383.</p>

Louis City Circuit Court. — Eton. George W. Lubke, Judge. (!) The instructions asked by defendant at the close-of the plaintiff’s case should have been given, for the-reasons following: (a) Possession of the premises by defendant was not proved or attempted to be proved. (b) The deed of trust from the Union Steam Mills Company to Wm. H. Maurice’s trustee, of July 19, 1882, was not effective to convey the premises sued for; they are not described in the deed.

Loiois City Circuit Court. (1) By the terms of RyanV deed to Gibbons, the vendor, Ryan, had and has a grantor’s lien on the real estate. conveyed by him to Gibbons (for the Butchers’ and Drovers’ Bank) for the unpaid or unsatisfied consideration named in the conveyance, to-wit, the covenant to discharge the judgment in favor of Christy, (a) There was not merely a covenant to pay these debts, but their payment was part of the consideration for the deed.

<p>1. Criminal Law: seduction of female under promise of marriage: PRIOR ACTS OF UNCHASTITY OF PROSECUTRIX. On the trial of an indictment, under Revised Statutes, section 1259, for seducing a female under promise of marriage, it is competent for the defendant to show that, prior to the time of the alleged seduction, the prosecutrix was guilty of acts of lewdness and unchastity with other men than the defendant. {Affirming The State v. Patterson, 88 Mo. 88.)</p> <p>2. Practice, Criminal: motion for new trial. The motion for new trial held to have been improperly overruled in this case, as the newly-discovered evidence of sexual intercourse with other men previous to the alleged seduction, which was the ground of the motion, was clearly admissible, and defendant was guilty of no laches, only becoming aware of such new evidence after trial.</p>

<p>1. Practice: evidence : opinion oe non-expert witness. A witness not testifying as an expert, but merely testifying as to matters with which the jury may well be supposed to be as conversant as himself, and as capable of drawing a-correct conclusion, should not be allowed to give am opinion.</p> <p>2. Eailroads : carrier of passengers : duty of conductor. The law imposes upon the conductor of arailroad train acting as the agent of the corporation, engaged in the carriage of passengers, the obligation of carrying the passenger safely to his point of destination, announcing the arrival of the train at the station, and giving reasonable opportunity to- the passengers to leave the cars. When this is done, the duty of the conductor ceases.</p> <p>8,--:--■ :--: presumption. When the servants of a corporation, engaged in the business of a common carrier, afford passengers a reasonable time to leave the cars after arrival at the end of their journey, they have the right, after the expiration of such reasonable period, to presume that all the passengers whose place of destination is then reached, have left the cars as is customary for passengers in like circumstances.</p> <p>4.--— :--:--:--. When such a reasonable time has thus elapsed it is no part of the duty of the servants of such corporation to make personal inspection of or to interrogate the remaining passengers to see whether they intend leaving the cars. The law imposes no such onerous duty upon a carrier of passengers, and if it should appear in evidence, in any given case, that passengers similarly situated as to age, sex, and so forth, as the party complaining, have safely left the cars prior to any injury or accident complained of, this would afford ground for legitimate inference by the jury that sufficient time had been granted to the passenger, who sues for the negligent injury, to have alighted in safety.</p> <p>5.---:--:--: FAMILY AS passengers. When a man becomes a passenger on a railroad car with his wife and little children, he is their guardian and protector, and has the supervision of their safety; and they, so far as the act of debarkation is concerned, are to be regarded, to all intents and purposes, as a unit, and the same rule which accords to the family group a reasonable time to debark, must, of necessity, include within it the right to take their baggage with them when leaving the car.</p> <p>6. -: negligence. The doctrine of comparative negligence has never been recognized in this state.</p> <p>7. —•- :--. When the concurring negligence of the plaintiff proximately contributes to the injury complained of, there can be no recovery, unléss such injury is also the direct result of the omission of the defendant, after becoming aware of the danger to which the plaintiff was exposed, to use the proper degree of care-to avoid injuring him.</p> <p>8. -■— : DAMAGES: injury TO MIN01Í. In an action for damages for an injury to plaintiff’s five-year old son, resulting in the loss of a leg and the toes of the other foot, where the testimony is to the effect that the boy’s services would be worth one hundred dollars per year from his tenth or twelfth year until he attained his majority, a verdict of forty-five hundred dollars is excessive.</p> <p>9. - — :--:--. There being no circumstances of aggravation, the law will confine the recovery to compensatory damages- and will not allow those which are punitive in their nature.</p>

■ — Hon. Elijah Robinson, Judge. (1)Plaintiff’s motion to strike out part of defendants’ answer skould have been sustained. R. S., secs. 3515, 3527, 3529, 3530; Kimmell v. Benna, 70 Mo. 52. (2) The court should not, over the objections of plaintiff, have submitted the issues made by the1 pleadings to a jury for determination. Freeman v. Wilkinson, 50 Mo. 554; G-reen & Meyer’s Mo. Prac., ch. 21, p. 79, sec. 133 ; Ledbetter n. Ledbetter, 88 Mo. 60; R: S., sec. 3606.

Louis County Circuit Court.— Hon. W. W. Edwards, Judge. (1) The court erred in giving instruction numbered three at defendant’s instance. (2) The court erred in giving instruction numbered two for defendant. (3) The witness, Scott, should have been allowed to testify as to-what orders defendant’s employes told him they had received from defendant with reference to the pipe.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. The following is the instruction asked by plaintiff and referred to in the opinion of the court: “The court is asked to decláre the law to be, that, upon the pleadings and evidence offered ip this case, the plaintiff is entitled to recover a strip of land now ip the possession of defendant, being a strip of ground commencing at a point on the east line of Third street twenty-two feet, more or less, north of the north line…

— Hoh. Robert S. Wilson, Judge. There was no issue made, and no evidence offered attacking the bona fldes of the sheriff’s deed, and the court erred in finding it fraudulent and void. The judgment should be responsive to the issues presented in the pleadings, and the court erred in finding on matters foreign to the record as made by the pleadings. Ross v. Ross, 81 Mo. 84; Dougherty v. Adlans, 81 Mo. 411; Bank v. Pointz, .60 Mo. 531; White v. Rush, 58 Mo. 105.

— Hon. E. L. Edwards, Judge. (T) Defendant’s demurrer to the evidence should have been sustained for at least* four different reasons..

— Hon. C. C. Bland, Judge. Such an error as the one appearing on the face of the indictment, viz., alleging that the offence was committed on a day subsequent to the finding of the indictment, is merely clerical, and this court will not reverse. State n>. Eaton, 75 Mo. 586; R. S., sec. 1821; State n. Burnett, 81 Mo. 119. It was not necessary to allege in the indictment that the knife with which the mortal wound was inflicted was a deadly weapon.

— Hon. Ben. E. Turner-, Judge. (1) The court should have sustained defendant’s motion and granted him a continuance. Rice v. Melendy, 36 Iowa, 166; Jarms r. Shaddock, 60 111. 378. (2) The court should not have allowed the prosecuting attorney to file counter-affidavits in the matter of defendant’s application for a continuance. State v. Scott, 44 Iowa, 93; Quincy Whig Co. v. Tiltson, 67 111. 351; Manning v. Jamison, 1 Cranch,- 66, 285; LinmTte v. Golding, 11 Ind. 285.

— Hon. W. F. Geiger, Judge., (1) The Newton circuit court alone Laving jurisdiction of the original suit mentioned in the petition, it could be transferred to the Greene circuit court only by virtue of, and in compliance with, section 3484 of Revised Statutes.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) There was a power conferred on Mrs. Wolff by the terms of her husband’s will. (2) Plaintiffs have not selected the proper forum in which to assert their rights under all the facts of the case as made. Allen v. Belchier, 1 Leading Cases in Eq. [4 Eng. Ed.] 377; Cale v. Mensing, 20 Mo. 461; Bowlin v. Firman, 28 Mo. 437 ; Porter v. Schofield, 55 Mo. 56 ; McQueen v. Farguhar, 11 Yesey, Jr., 467.

Louis City Circuit Court. — Hons. Shepard Barclay and Amos M. Thayer, Judges. (1) The obligation of the bond of A. S. Matson, principal, and Dozier and Fulkerson, securities, constituted a debt from and after the execution of the bond, and plaintiff, whose intestate discharged the same, can enforce the same remedies, in virtue thereof, as the ward •could. Note to Sexton r>. Wheaton, 1 American Leading Cases [5 Ed.] p. 45, Hare and Wallace’s notes.

— Hon. Tubnee A. G-ill, Judge. (1) Where a loss or injury happens j,n any way through the agency of man, it cannot be considered the act of God ; nor even if the act or negligence of man contributes to bring the property or goods under the operation of natural causes can the defendant be excused. To constitute a justifying or exculpatory excuse for the defendant, the “ aet of God,” or vis divina, must be the sole and immediate cause of the injury.

Louis City Circuit Court. — Hon. Amos M. Thayer, Judge. An adopted son is “the nearest and lawful” lieir of the adoptive mother. Reinders v. Koppelman, 68 Mo. 500; In re Clements, 78 Mo. 354; Sewell v. Roberts, 115 Mass. 262; R. S., secs. 599, 600, 601. (1) The intention of the testator expressed in his will and fairly drawn from it must govern, if not contrary to the rules of law. Austin v. Taylor, Ambler, 376; Laly v. James, 8 Wheaton, 495, 507.

— Hon. James D. ■ Eox, Judge. (1) The trustee in a deed of trust as the holder of the legal title is an indispensably necessary party to a suit, materially affecting such title. Story’s Eq. Plead.

Louis Court of Appeals. (1) The several instructions given for plaintiff were properly given. The first instruction was to the effect that if the jury found, from the evidence, certain facts existed, they constituted Miller agent of the Home Insurance Company (defendant), (a) The question whether certain facts would constitute one an agent is a question of law and was rightly controlled by the court.

Louis City Circuit Court. — Hon. A. M. Thayer, Judge. (1) The sales were separate. 16 Mo. App. 376. (2) For tlie redemption of each, piece of property sold, the seller was bound to pay the maximum bonus. 16 Mo. App. 376. (3) Lanham & Sutton, auctioneers, were respondents’ agents for making the sales, and their agency was sufficiently established. But if the sufficiency of proof of their agency be questioned, the fact is indubitably established by a subsequent ratification.

—Hon. A, J. Seay, Judge. (1) The city, as such, can only grade or improve streets by ordinance for that purpose. R. S., sec. 4940. (2) The city is not liable for any damage done in grading a street, unless there was a valid ordinance authorizing the work to be done. ' Saxton r>. St. Joseph, 60 Mo. 153; Saxton v. Beach, 50 Mo. 488; Brown v. Cape Girardeau, 90 Mo. 377; Worley v. Columbia, 88 Mo, 106, 111 ; Rowland v. Gallatin, 75 Mo. 134; Keating r>. Skiles, 72 Mo. 97.

.Error to Adair Circuit Court. — Hon. Andbew Ellison, Judge. (1) If tbe state bad a lien against plaintiff’s land on January 1, 1877, it was removed by payment of tbe tax on February 23, 1877. Blackwell on-Tax Titles [2 Ed.] 412 ; R. S. 1879, secs. 6835, 6843. Tax receipt was also presented after judgment and before sale, and so entered on tbe back-tax book. A sale for taxes for a year in wbicb it is shown tbe land was twice assessed and tbe tax once paid is invalid.

Louis City Circuit Court. — I-Ion. A. M. Thayer, Judge. (1) Where a case has been decided by the appellate court, and is again taken up by appeal or writ of error, only such questions will be noticed as were not determined in the previous decision. Whatever was passed upon in the former opinion will be deemed res adjudicata, and no longer open to dispute.

— Plots. N. M. Gtvan, Judge. (1) The court erred in admitting in evidence the second deed offered by plaintiff. Boothroyd v. Engles, 23 Mich. 19. (2) Plaintiff’s title is fatally defective in not showing a conveyance from Divers to Snelling. 1 Whar. Evid., sec. 90. Plaintiff should have shown that the deed was not recorded, and that he, therefore, could not produce the record of the deed, before being allowed to introduce oral proof as to same.

Louis Q-ity Circuit Court. — How. A. M. Thayee, Judge. (1) The liability of a stockholder to a corporation for unpaid stock only exists where the stockholder has subscribed for a certain number of shares of its capital stock of a certain par value, or where a person has purchased shares which have been subscribed for and has had the same transferred to him.

— Hon. H. S. Kelley, Judge., (1) The rule camat emptor does not apply in this case, (a) Where a vendor sells property having a latent defect, materially affecting its value, of which he is aware, or has notice, and of which he knows the vendee is ignorant, and buying upon the supposition that no such defect exists, yet sells the property to such vendee, for the full value of the same without such defect and without disclosing such defect to him, such vendor is guilty of…

— Hon. J. P. Strother, Judge. (1) It was error to permit the plaintiff to amend his petition, by striking out the allegation, “that, by the charter of the city of Sedalia, the said Faulhaber as mayor had power, with the consent of the other defendants as said board of aldermen, to remove from office, any person holding office created by charter or ordinance.” Such amendment changed entirely the cause of action.

— Hon. Geo. W. .Bunn, Judge. (1) The mortgage from Darnall to Beery contained the words, ‘‘grant,” bargain,’’and “sell,’’ which were ■covenants of further assurance. R. S., 1879, sec. 675.

Ellison, Judge. . -Hon. Andrew , (1) Tbe whole matter was submitted to a jury against the objectoin of plaintiff. (2) Defendant, Edwards, was incompetent as a witness for any purpose. 41 Mo. 514; 5.4 Mo. 121; 62 Mo. 432; 64 Mo. 168; 68 Mo. 72; 66 Mo. 429; 1 Wliart. Evid., sec. 469; 66 Pa. St.. 303; 39 Vt. 596; 4 Allen [Mass.] 206; 102 Mass. 533. (3) Sharp is not shown to have been the authorized agent' of the insurance company to make any settlement with defendant. Green!

— Hon. J. P. G-rubb, Judge. (1) The court erred in overruling defendant’s motion to make the petition more definite and certain. R. S., sec. 3529 ; Bliss on Code Pleading [2 Ed.] sec. 425; Railroad v. Kundson, 62 Mo. 569; Hay v. Short, 49 Mo. 141 ; Rothwell v. Morgan, 37 Mo. 107; Railroad v. Dean, 92 Ind. 459 ; Addison v. Railroad, 48 Mich. 155. (2) The court erred in overruling defendant’s objection to the introduction of any testimony.

<p>Appeal from St. Lotois City 'Circuit Court. — Hon. GL W. Lubke, Judge.</p> <p>(1) The plaintiff took no title by the deed of 1872, because it was not then a corporation. Hurt v. Saulsbury, 55 Mo. 310; Ferris v. Thaw, 72 Mo. 449; Richardson v. Pitts, 71 Mo. 128 ; Douthat v. Stinson, 63 Mo. 278; Grimes v. Harmon, 35 Ind. 198. (2) The plaintiff is not a charity. 2 Story’s Eq. Jur. (13 Ed.) 1156, et seq., note a; Thompson v. Shakespeare, 1 John. 612; 6 Jurist (N. S.) 118, 281 ; 2 Perry on Trusts, •secs. 710, 711. (3) Plaintiff’s bill should be dismissed, because it seeks to divert the property to other uses than those named.and expressly limited in the deed. Duke on Charitable Uses, 508; Bascom ®. Albertson, 34 N. Y. 588; Owens v. Missionary Society, 14 N. Y. 380; Leonard r>. Burr, 18 N. Y. 96; Phelps v. Pond, 23 N. Y. 69 ; Burkinson d. Bonsen, 23 N. Y. 298; Mullanphy v. Peterson, 1 Mo. 545; Academy of Visitation ®. Clemens, 50 Mo. 167; Goode v. McPherson, 51 Mo. 126. (4) The doctrine of cy pres does not obtain. Perry •on Trusts (3 Ed.) secs. 718, 726, 727 ; Owens ®. Missionary Society, 14 N. Y. 380 ; Downing v. Marshall, 23 N. Y. 382; Miller v. Chittenden, 2 la. 370. (5) Plaintiff having failed to build according to the conditions of the deed, the property reverted to the heirs as expressly stipulated in the deed. 1 Am. Law Review, 265 ; Moore v. Wingate, 53 Mo. 411; Willard v. Henry, 2' N. H. 120 ; Halley v. Brown, 14 Conn. 269; Bowen v. Bowen, 18 Conn. 535; Bennett v. Culver, 97 N. Y. 250; Clark v. Bergfield, 81 Mo. 503. (6) The second deed was not a waiver of thie conditions contained in the first deed. Ragsdale v. Railroad, 62 Miss. 480 ; 7 Am. Law Review, •616; Skinner v Dayton, 2 John. Ch. 526, 535; Beatty ®. Harkey, 2 S. & M. 563; Paschall v. Passmore, 15 Pa. St. 295, 307 ; Thompson v. Whipple, 5 R. I. 144; Burnett v. Passximpsic, 15 Yt. 762; Moore ®. Wingate, .53 Mo. 411; 4Kent’s Com. 125.</p> <p>(1) The deed of James H. Lnoas and wife passed' a* fee-simple title to the grantees, with condition subsequent, on non-performance of which said Lucas or his-heirs only, could defeat the title, and that only by entry. 2 Washb. Real Prop. (4 Ed.) chap. 14; Iron Co. v.. Erie, 41 Pa. St. 341; Williams v. Baleen, 22 Wend. 209 ; Palmer r>. Fortplain, 11N. Y. 389 ; Ludlow v. Railroad, 12 Barb. 440; 1 Smith’s Lead. Cas. (8 Am. Ed.) top-p. 130; Tinlcham v. Railroad, 53 Barb. 393; Rice v.. Railroad, 12 Allen, 141; Towne, v. Bowers, 81 Mo. 497;. Jones v. Railroad, 79 Mo. 96, 97. (2) Right of entry is not assignable; and grantee cannot make it; nor can the grantor or his heirs after assignment, for his right is-gone. 2 Washb. Real Prop. (4 Ed.) top p. 14;. Hooper v. Cummings, 45 Me. 359 ; Nicoll v. Railroad,. 12 Barb. 461; Norris v. Milner, 20 Gfa. 566; Fonda v:. Sage, 46-Barb. 122-3; Schulenberg v. Harriman, 21 Wall. 60, 62 ; Tenn. M. & F. Co. v. Scott, 14 Mo. 48-; 1 Smith’s Lead. Cas. (8 Am Ed., part 1), top p. 135;-. Gould v. Richards, 16 Gray, 326; Underhill v. Railroad, 20 Barb. 463. (3) Right of forfeiture may be waived. 2. Washb. Real Prop. (4 Ed.) top p. 19, sec. 19; Jacleson v. Crysler, 1 Johns. Ch. 126; Hubbard v.. Hubbard, 97 Mass. 192. The heirs of Lucas, by the deed of Engleman et al., expressly waived the condition' in the* deed of their father. A court of equity never lends its aid to enforce a forfeiture. Messersmith v. Messersmith, 22 Mo. 372; Livingston v. Tompleins, 4 Johns. Ch. 430 ; 2 Story’s Eq. 1319. (4) The heirs of James EL Lucas are estopped, by his deed and their own, from, disputing the corporate character of plaintiff.. In both deeds plaintiff is admitted to be -a corporation. Hamtrámele v. Banle, 2 Mo. 169 ; Biclcson v. Anderson, 9-Mo. 156, 157; Railroad v. McPherson,. 35- Mo. 13;. Burette v. Briggs, 47 Mo. 361; Ins. Co. v. Needles, 52 Mo. 17, 18 ; Ins. Co. v. Bowman, 60 Mo. 252, 253, 254 ; St. .Louis v. Shields, 62 Mo. 251, 252. (5) That where á party by contract had admitted corporate existence, Unul tiel corporation” cannot be heard. ' Stoutimore v. Ciarle, 70 Mo. 477, 478 ; Huntley v. Filbert, 73 Mo. 34; Studebalcer v. Montgomery, 74 Mo. 103; State v. Williams, 77 Mo. 468; Field on Corporations (2 Ed.) sec. 349. (6) If the estoppel is not valid the deed of Lucas placed the title in the Academy of Science, with a trust for the plaintiff’s share until fully incorporated. Arthur v. Weston, 22 Mo. 378, 382, 383; Boemen v. Whitney, 20 Me. 420. Especially would this be so, as plaintiff was incorporated by decree of the circuit court, and was a charity. Schmidt v. Hess, 60 Mo. 595; Smith v. Sheely, 12 Wall. 361; Chambers v. St. Louis, 29 Mo. 543 ; Academy of Visitation v. Clemens; 50 Mo. 167. (7) The two societies were charities. State ex rel. v. Academy of Science, 13 Mo. App. 213 ; Academy of Arts v. Harvard College, 12 Gray, 582; Const, of Mo., sec. 6, art. 10; Perry on Trusts (1 Ed.) secs. 687 and 700; Jaclcson v. Philips, 14 Allen, 556; Russell v. Allen, 107 U. S, 163. A court of equity will sustain a charity, notwithstanding any technical defect. Academy v. C lemens, 50 Mo. 167; Good, v. McPherson, 51 Mo. 126 ; County Court v. Griswold, 58 Mo. 200 ; Schmidt v. Hess, 60 Mo. 591; 2 Story’s Eq. (4Ed.) secs. 1169, 1181; Perry on Trusts, sec. 46, and cases cited, secs. 730, 732; Baptist Church v. Roberson, 71 Mo. 333. (8) The doctrine of “cy pres” applies and plaintiff is entitled to the relief asked for. The defendant, Academy of Science, admits by its answer the allegations of the bill, and asks the relief prayed for in the bill, and the heirs of Lucas also admit the facts by failure to deny them. R. S.j 1879, sec. 3545. The facts alleged in the bill require the decree prayed for and made by the court. The benefit goes to the two societies, but in a different way only. Academy of Visitation v. Clemens, 50 Mo. 167 ; Perry on Trusts (1 Ed.) secs. 727, 724; Boyle on Charities, 148, 174; Goode v. McPherson, 51 Mo. 126; Academy v. Harvard College, 12 Gray, 582 ; Story’s Eq. (4 Ed.) sec. 1169, and following, sec. 1181; Adams ’ Eq. (2 Am. Ed.) side p. 68 and following. Section 13, of article 1, of the constitution of 1865, has no application to this case, as neither plaintiff nor the Academy of Science are religious bodies, to which alone said section applies.</p>

— Hon. James B. Gantt, Judge. (1) The demurrer to plaintiff’s evidence should have-been sustained. It was alleged in the petition that the defect was in the original construction and there was no evidence to sustain the allegation. The evidence shows that if the hand-hold was insecure it had become so by nse and lapse of time.

Louis City Circuit Court. — Hon„ George W. Lubke, Judge. (T) The plaintiff should have been non-suited. 82 Mo. 150. The case as established falls within the rule that the owner is not responsible for the damages done •on or by the use of real estate when the relation of master and servant does not exist between him and the. person causing the injury.

— -Hon. W. P. Geigeb, Judge. (1) Tbe evidence in this case shows such performance of the parol contract on. the part of defendant, O’Callahan, as will take the case out of the operation of the statute of frauds, and constitute a complete equitable defence to the action. Bean r>.

— Hon. M. Gr. MoGIregoe, Judge. (1) The court erred in overruling the defendants’ objections to the record of alleged copies of the duplicates. The statute nowhere provides for recording copies of such instruments. R. S,, secs. 691, 702-3-4-5.

— Hon. H. S. Kelley, J udge. • (1) Appellant is a bona-fide innocent purchaser for value of the real estate sought to be redeemed, without any notice of any equity of respondent therein, and should hold the title thereto as against respondent in this action. The law is too well settled on this point to require citation of numerous authorities. Story’s Equity (7 Ed.) sec. 409 ; Digby v. Jones, 67 Mo. 104; Jones v. Savings Inst, 67 Mo. 109.

„ Appeal from Jackson Circuit Court. — Hon. J. H„ Slover, Judge. (1) The court should have sustained the motion to make Nancy J. Goff a party defendant. Held: in a number of cases, that the certificate may be impeached without showing fraud. All the cases, however, have been between the grantor and the immediate grantee. WanneTl v. Hem, 57 Mo. 478; Steffen v. Bauer, 70 Mo. 400 ; Beto v. Mayes, 79 Mo. 70-; Sharpe n. MePilce, 62 Mo. 300.

Louis City Circuit Court. — Hon. Geo. : W. Lubke, Judge. (1) The state of facts shown by the record constituted respondent a trustee of this money, which was a part of the county funds. A right of action existed in the county to have it restored to the county treasury ; and when appellant made good the amount by paying the same into the county treasury out of his individual means, he was subrogated to the rights of the'county in this regard.

— Ho®. J. B. GrANTT, Judge. (1) Tile court erred in excluding tlie evidence of Schenework as to statements made by defendant, E. Umfried. Fisher v. Lewis, 69 Mo. 629; Holmes v. Braidwood, 82 Mo. 610. (2) The court erred in excluding the letters written by defendant, A. Behrens.- Burgert v. Borchert, 59 Mo. • 80; Barrett «. Donnelly,, 38 * Mo. 482; State v. Schnider, 35 Mo. 533 ; Morey v. Staley, 54 Mo. 419.

— Host. A. M. Woodsow, Special Judge. (1) It must be borne in mind that the courts apply the strictest rules of construction -in ascertaining the rights of parties in proceeding under a statute delegating the power of eminent domain. Corporations take nothing as against the king, the state, or the public, by implication. City v. Railroad, 13 Mo. App. 530; Raitroad ®. Marion Co., 36 Mo. 303.

— -Hon. Joseph P. Grubb, Judge. (1) The suit was properly brought in the name of the state to the use of the 'collector of the city. R. S., secs. 6833, 6837; State ex rel. n. Shepherd, 74 Mo. 310 ; State ex rel. v. Van Avery, 75 Mo. 530.

Louis Qity Circuit Court. — How. W. II. Hobiteb, Judge. (1) Our statutory action of replevin was intended to effect a complete adjustment of tire rights of the parties thereto. Boutell v. Warne, 62 Mo. 354; Dougherty •». Cooper, 77 Mo. 534. (2) Drawing of a check ' does not transfer or assign to the holder either a legal or equitable claim to so much of the fund as is called for by the check. Bank v. Coats, 79 Mo. 168; Allen v. Bank, 85 Mo. 173.

Louis City Circuit Court. — Hon. W. H. Hoenee, Judge. . vl) The court erred in giving the instruction to the effect that the plaintiff was entitled to recover the full amount of his claim and interest. (2) The finding of the court was inconsistent with the instructions or declarations of law given at the instance of the defendant.

— Hon. J. H. Slover, Judge. (1) The first instruction given for plaintiff was erroneous. The city had the power to permit the defendant to make any use of the street, which was a public one, and to do all things necessary to enable it to make such use, and more especially if such use was a great public convenience.

Louis Court of Appeals. (1) The sale of the property in controversy, made to the defendant, under the order of the circuit court of Lafayette county, vested good title in the defendant. R. S. 1879, secs. 424-25-70 ; Taylor v. Carryl, 24 Pa. St. 259 ; 2 Smith’s Lead. Cas., part 2, pp. 973-4.

— Hon. Titeo. Brace, Judge. - (1) Mrs. Reilly being tbe wife of ber co-plaintiff was incompetent to testify. 1 Wharton’s Evid., sec. 130 ; Lucas v. Broolcs, 18 Wall. 452; Kelly v. Drew, 12 Allen, 109. (2) Defendant entrusted its switch engine for switching purposes in its yards to its yardmaster. (3) At the time of the injury switch engine No. 13 was not being run upon that business, or any other business of defendant, or under the direction or authority of the yardmaster.

— Hon. N. M. Givan, Judge. - (1) A demurrer to the evidence admits all facts which, the evidence introduced by the adverse party tends to prove, or of which there is any evidence, however slight, and all inferences which logically and reasonably can be drawn from the evidence. Buesching r>. Gaslight Co., 73 Mo. 220-31; Frióle ». Railroad, 75 Mo. 595, 601; Noeninger v. Vogt] 88 Mo. 589-92; Railroad v. Foster, 2 West. Rep. 299.

— Hois. T. A.. Gtile, Judge. (1) A conveyance made with intent to either hinder, delay, or defraud creditors, or a particular creditor, to one having notice of such intention, is void, irrespective-of the. solvency of the grantor or the value of the consideration. Nor is actual knowledge on the part of the-grantee necessary. Knowledge of facts sufficient to put a prudent man on inquiry is sufficient. R. S., sec. 3497; Bump on Fraud. Con. [3 Ed.] 300-1; Burgert ©..

Louis Court of Criminal Correction.— Hon. E. A. Noonan, Judge. (1) The mayor and assembly had no power to pass the part of the city ordinance under which the appellant is prosecuted. The city charter does not enumerate any such class as sewing-machine agents, and when the mayor and assembly undertook to make any such subclass they overstepped their powers. City v. Lauglilin, 49 Mo. 559. (2) The ordinance is repugnant to section 3, article 10, of the constitution.

— Hon. J. P. Strother, Judge. (1) The parol contract or promise relied upon must be alleged with certainty, and must be clearly proven as alleged, by convincing evidence, so that there is no ambiguity or doubt. Loose statements in casual conversation are not sufficient to prove the promise. Bitton v. Ship, 65 Mo. 297; Berry v. Hartzell, 91 Mo. 132; Ackerman v. Fisher, 57 Pa. St. 457.

Louis Court of Appeals.. (1) When a demand not yet due is presented (like the one at bar), it is the duty of the court, under section 205, to adjust the same — that is, to regulate, arrange, and put same in order, so that demand can be paid at once when allowed. (2) No judgment of allowance can be made on a demand when payment is tendered, and where both parties fail, under section 205, to agree to rebate, it is the duty of the court to rebate to a cash basis.

— Hon. John P. Ryland, Judge. • (1) The court erred in overruling the application of defendant for a continuance. On the state admitting that the absent witness, Shores, if present, would testify to the facts as set forth in the affidavit and forcing defendant to a trial against his consent, in accordance with section 1886, because that section is unconstitutional, being in conflict with section 22, article 2, of the state constitution. State v. Berkley, 92 Mo. 41.

- — Hon. Noah M.. GÍTVAN, Judge. Statement of tlie case, by Sherwood, J. On January 22, 1885, plaintiff brought ejectment for the east one-half of the northeast quarter of the-southeast quarter and' the southwest quarter of the southeast quarter of section 24, township 47, range 26* in Johnson county, Missouri. Petition in usual form,, alleging ouster on the twenty-fourth of the preceding October.

— Hon. E. L. Edwards, Judge. (1) The court erred in overruling the objections made by plaintiffs in error to the introduction of any evidence and in overruling their motion in arrest. R. S., sec. 2381; Bay v. Stobbs, 28 Mo. 35. (2) The court erred in admitting illegal evidence.

— Hon. Elijah Robinson, Judge. (1) The court erred in refusing the two instructions asked by the appellant, and in rendering judgment for the defendant; for, upon the special findings as shown by the judgment of the court, the appellant is entitled to a judgment for the admeasurement of dower in the lands described in the petition, unless she is barred by the statute of limitations.