It is necessary in such a case for the plaintiff to prove that defendant was actuated by malice and without probable cause. 3. Where the circumstances are such as to constitute a reasonable cause, the motive which actuates the party making an arrest is immaterial. 4. The fact that defendant had the charge (of perjury) dismissed is not of itself sufficient to prove that he had not probable cause for instituting the prosecution.

CRIMINAL LAW-TRIAL-SWEARING JURY--PRESENCE OF DEFENDANT-WITNESS-SUBPOENA-RAPE KNOWLEDGE.-Lawrence v. Com. Court of Appeals of Virginia, 6 Rep. 285. Opinion by MONCURE, P.-In a criminal case, where the accused is attended by counsel, it will be presumed that irregularities did not occur in the proceedings, in the absence from the record of exceptions to such alleged irregularities. 2. It is not necessary that the form of the oath taken by the jury should be copied in the record; it is sufficient that it appears the jury were duly sworn. 3. It must appear on the record that the person tried for felony was personally present during the trial. The statement in the record, at the conclusion of the proceedings of any one day, that the prisoner was thereupon remanded to jail, shows that he was personally present during all the proceedings had in the case on that day. 4. It is not an objection to a witness for the prosecution that his name does not appear at the foot of the indictment, or that he had not been summoned, or that no notice was given the accused of an intention to examine him. 5. The offence of having carnal connection with a female under twelve years of age is entirely independent of her consent, or of any statement of hers in regard to her age or any belief on the part of the accused as to her age.


RAILROADS CONSEQUENTIAL DAMAGES SIONED BY CONSTRUCTION OF WORKS.-Struthers v. Dunkirk, W. & Pitts. R. R. Supreme Court of Pennsylvania, 9 Pitts L. J. 5. Opinion by PAXSON, J.—1. A common law action does not lie against a corporation for consequential injuries occasioned by the construction and operation of its works. 2. A railroad company may use a public street or highway for its roads when authorized by its charter to do so. "At the time the defendant's road was being constructed, the plaintiff had erected and nearly completed, at considerable expense, a handsome dwelling house on his said premises, and brought this action of trespass on the case to recover damages for the inconvenience and annoyance occasioned by the building and operating of the road immediately in front of his residence. The pleadings are not given, but we gather from the charge of the court that the annoyance caused by the passage of trains, the cinders and smoke, and the hindrance to the passage of carriages, were the chief matters of complaint. However considerable these annoyances may be they do not constitute a cause of action. There is no principle of law better settled in Pennyslvania than that a common law action does not lie against a corporation for consequential injuries occasioned by the construction and operating of its works: Monongahela Nav. Co. v. Coons, 6 W & S. 101; Henry v. Bridge Co. 8 W. & S. 85: N. Y. & E. R. R. Co. v. Young, 9 Casey, 175; O'Connor v. City of Pittsburgh, 6 Har. 187; Watson v. Pitt. & Conn. R. R., 1 Wright, 469; Cleveland & Pitt. R. R. Co. v. Speer, 6 P. F. Smith, 325; West Branch Canal Co v. Muelinor, 18 P. F. Smith, 357. It is equally clear that a railroad company may use a public street or highway for its road when authorized by its charter to do so. Phil. & Tren. R. R. Co., 6 Wharton, 25; Mifflin v. R. R. Co., 4 Har. 182; Mercer v. Pitts., F. W. & C. R. R. Co., 12Casey, 99; Com. v. Erie & N. R. R. Co. 3 Casey, 339. There is only one question remaining in the case, and that is, whether the court below should

have received evidence to show that the company might have located its road upon another route, and thus have avoided laying the track upon High street. We are clearly of opinion that the learned judge was right in excluding evidence of this character, and also in his answers to the points in which the same question was presented. The discretion of the company in the location of its road cannot be reviewed in this manner. The location was made in the exercise of an undoubted power. It was said in Parke's Appeal, 14 P. F. S. 137: 'Neither the court below nor this court has any right to interfere with the location made by the company on the score of preference, if any be felt. The only question is, whether it has or has not exceeded a discretion on the subject apparent on the face of the act of incorporation." See, also, N. Y. & E. R. R Co. v. Young, 9 Casey, 175, and Cleveland & Pitt. R. R. Co. v. Speer, supra.

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Associate Justices.

PRACTICE-JURISDICTION-SERVICE BY PUBLICATION.-Under the statute providing for service by publication, "In actions brought against non-residents, the action must have been fully "brought" before publication of the notice, and where, in an attachment proceeding, the petition was filed and attachment issued thereon after the publication of the original notice: Held, that the court did not acquire jurisdiction of the property attached. Opinion by ROTHROCK, C. J.-Billings v. Kothe.

CORPORATIONS-POWER TO CONTRACT DEBTS.--1. A corporation is estopped to set up as a defense to a debt which was authorized to be contracted by an amendment to its articles of incorporation, that the amendment was not recorded at the time the debt was contracted. 2. A private corporation which is authorized, by its articles of incorporation, to contract debts to a certain amount, can not escape the payment of a debt contracted for a valid and sufficient consideration, on the ground that its indebtedness exceeds the limits fixed. There is a distinction in this respect between private and municipal corporations. Opin. ion by ADAMS, J.-Humphery v. Patrons Mercantile Association.

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property must administer the assets according to law; and no off-sets of debts, due by the husband individually, can be allowed in an action by him as administrator to recover the property. Opinion by READE, J.— Holliday v. McMillan.

TENANCY IN COMMON-APPEAL-CONTRACT TO SELL-SPECIFIC PERFORMANCE.-One tenant in common can not sell the land of another, and it follows that he has no authority to make an admission the effect of which, if received in evidence against the other, will be to enlarge or vary the boundaries of a piece of land which they had previously sold, and thus in effect to sell land without authority in writing. This is an exception to the rule that one person jointly interested may bind another by his admissions. It is not the duty of a court of appeals to put its decision entirely on some small error of the court below, and thereupon send the case back, thus protracting litigation; but it should, if possible, pass on some vital question and arrest the litigation, or when that is not possible, it may explain what are the decisive questions in the cause, so the parties may direct their attention to them. Where a contract to sell and convey land was executed in 1841, the plaintiff who has only an equitable estate, and brought this action of ejectment before 1868, can, notwithstanding, file a supplemental complaint for specific performance in the present action, and the superior court, on proper proof, will direct a conveyance of the legal title by the party contracting to sell, and in the meantime enjoin all persons having, or claiming, the legal title in privity with him, from setting it up against the plaintiff. This is not opposed to the rule laid down in Gaither v. Gibson, 63 N. C. 93, but is the doctrine of that case applied where the equitable owner is the plaintiff. Opinion by RODMAN, J.Young v. Griffith.

VERDICT OF ACQUITTAL OBTAINED BY FRAUDMANDAMUS TO ANNUL VERDICT.-This was an application for a mandamus to amend the record to the end that a verdict of acquittal might be reviewed and annulled, and the defendant again put on trial based on the petition of the solicitor duly sworn to, in substance, as follows: That at October Term, 1874, of the Superior Court of Wake county, an indictment for conspiracy and cheating, by false pretenses, was pending against the defendant and Littlefield, on which a capias was issued but not executed at the commencement of April Term, 1875. The omission to execute it on defendant Swepson was by the direction of the solicitor. Littlefield could not be found. The state had retained counsel to aid the Solicitor. At some time during said term in the absence of the counsel so retained, the counsel for Swepson moved for a verdict of not guilty, on the ground, as he alleged, that the action had been compromised. The defendant had been arrested that day under an order made that day by the judge without the knowledge of the solicitor, but was not present in court. The motion was opposed by the solicitor, but the judge ordered a jury to be impanelled, and a verdict of not guilty to be entered, which was done. The state was not ready for trial, and its material witnesses were not present, and no witnesses for the state were examined. The appeal was asked for in behalf of the state, which was refused. The counsel for the state then proposed a statement of the facts above stated, and requested the judge to have the same made part of the record, which he also refused. Held: The jurisdiction of the supreme court is wholly appellate. It has no original jurisdiction to require a superior court to put an acquitted person again on trial, or to inquire whether or not the acquittal was procured by his fraud. The motion is refused. 2. Such a verdict of acquittal on an indictment for misdemeanor is a nullity, and the person acquitted by such means

may be tried again for the offense of which he was thus acquitted. 3. A solicitor may with, and perhaps without the consent of the judge, cause a defendant to be again arrested and put on trial on the old bill, or if not barred by the statute of limitations, send a new bill and proceed on it, disregarding the former verdict and judgment as nullities. In either case, the defendant may plead the former acquittal, to which the solicitor may reply that it was procured by the fraud of the defendant, and thus raise an issue of fact to be tried by a jury. This doctrine is limited to misdemeanors, and does not apply to capital cases and felonies. Opinion by RODMAN, J.-State v. Swepson.

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ASSUMPSIT-NOTE-VARIANCE ABSTRACT REQUIRED BY SUPREME COURT.-This was assumpsit by appellee against appellant. The declaration contained a special count on a promissory note and the common money counts. The issue was tried by the court. Appellee proved the execution of a promissory note to himself, and the court, over appellant's objection, adImitted it in evidence. Judgment was given in favor of plaintiff. The only objection raised is that the court erred in admitting the note in evidence, on the ground that there was a variance between the note given in evidence and that described in the first count. SCHOL. FIELD, C. J., says: "We fail to discern any valid objection to the admissibility of the evidence under the common money (2d) count. The execution of the note having been first proved, it was sufficient evidence to authorize a recovery under these counts without proof of a consideration. 33 Ill. 372; 52 Ill. 205. Nor does the fact that the promissory note is not the same that is described in the special count affect its admissibility as evidence under the common money counts. 16 Ill. 269; 19 Ill. 167; 26 Ill. 200." The court has this also to say in reference to the filing of abstract required by them: "This case ought to have been affirmed solely on the ground that appellant failed to comply with the rule of the court in regard to making abstract, but inasmuch as the record is very short and but a single point involving no controversy of fact is presented, we have thought the omission may have been the result of inadvertence and have, in consequence, considered the case upon its merits." Affirmed.-Boxberger v. Scott.

EVIDENCE-PASSAGE OF ORDINANCE - JOURNAL OF TOWN TRUSTEES.-This was a prosecution against the appellant for the violation of an alleged ordinance of the village of Auburn, prohibiting the sale of intoxicating liquors, resulting in his conviction. Upon this appeal the only question presented is whether the evidence shows that the ordinance under which ap. pellant was convicted was not legally adopted. Prima facie evidence was given of the passage of the ordinance. The journal of the proceedings of the board of trustees of the village was also in evidence, which showed that at a meeting of such board "on motion of A the following ordinance (the one in question) was unanimously adopted," and this is all the journal

shows of the manner in which the ordinance was passed. The point made is that the journal does not show that the yeas and nays were taken upon the passage of the ordinance and the entry thereof on the journal (as the statute reads); that it is an imperative requirement of the statute that the yeas and nays shall be called and entered on the journal, and that the same is essential to the validity of the ordinance, referring to Spangler v. Jacoby, 14 Ill. 297, where, in respect to a similar constitutional provision, it was held that such directions were mandatory. SHELDON, J. says: "The purpose of the requirement that the vote should be entered on the journal was that it might appear thereby whether the ordinance was passed by the majority required by the statute. It was admitted here at the trial that the board of trustees of the village was composed of six members. The journal shows that only one member was absent from the meeting when the ordinance unanimously passed, and hence it appears on the face of the journal that the ordinance passed with the concurrence of a majority of the members. This, we think, is the essential thing, and we are inclined to hold that the showing of the journal is sufficient in this regard, and hence that the journal itself does not rebut the prima facie proof made." Affirmed.-Barr v. Village of Auburn.

PROCESS-SERVICE OF SUMMONS-"PERSON OF THE FAMILY."-This was a suit to foreclose a mortgage. No appearance being entered at the term, to which the summons Was returnable, a decree passed against both defendants, John J. and Elizabeth Wells, and the property was sold by the master in chancery. At the succeeding term Elizabeth Wells, one of the defendants, entered a motion to set aside the sale, and to vacate the decree of foreclosure as to her, because she had never been served with process, and had not, therefore, appeared to defend the cause. The court overruled the motion and complainant appeals. The principal question in the case is whether the service was defective. The officer returned the summons, endorsed that he had served it by reading it to John J. Wells, "and delivered to him a true copy of the writ, and also by leaving with him, at her usual place of abode, a true copy of this writ, for Elizabeth Wells, his wife, he being over ten years old, and explaining the same to him." SCOTT, J., who delivered the opinion, says: "We find the return of service as to plaintiff in error was defective in not stating that the copy of the summons left for her was left with a person of the family' with defendant. Non constat, her husband may not have been living separate and apart from her, and only temporarily at 'her usual place of abode.' There having been no such service of the summons upon plaintiff in error as the statute requires, and there having been no appearance on her behalf, the decree of forceclosure against her upon default, was clearly erroneous." Reversed.- Wells v. Stumph.

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LIABILITY OF PARENT FOR NECESSARIES FURNISHED TO MINOR-SUBSEQUENT PROMISE.-This action was brought to recover a balance claimed to be due for clothing sold a minor son of defendant by the plaintiff. Judgment went for plaintiff in the lower court and defendant appeals. At the time the goods were purchesed the son was residing with his parents, and, so far as was shown he was furnished with clothing suitable to his condition in life; the ather did not consent to the purchaser nor did he have any knowledge concerning the transaction until the goods were brought home. CRAIG J. says: "Where the father has supplied his minor son with neccessaries or is ready to supply them, he cannot be bound by a contract which the son may make with a third party although the goods purchased may be regarded as neccessaries.

The plaintiff however contends that defendant became bound for the payment of the goods by what occurred subsequent to the purchase. After the goods were bought the son being allowed to retain them without objection, the defendant as the plaintiff testified promised to pay for the goods. From these facts we are inclined to hold the jury was justified in finding for plaintiff. Parsons on Contracts vol. 1 p. 301 says: "The authority of the infant to bind the father by contracts for necessities is inferred, both in England and this country from very slight evidence." In Hunt v. Thompson, 3 Scam. 179 it was held that an express promise or circumstance from which a promise by the father can be inferred is indispensably neccessary to bind the parent for neccessaties furnished his infant child by a third person."-Affirmed. Johnson v. . Smallwood.


January Term, 1878.

HON. E. G. RYAN, Chief Justice. ORSAMUS COLE,

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Associate Justices.



FIRE INSURANCE WATCHMAN.-In the written application for insurance of a mill against fire, the applicant, in answering the questions whether the mill was ever left alone, and whether there was a watchman in it during the night, said: "No regular watchman, but one or two hands sleep in the mill." By a stipulation in the same instrument, the applicant "warrants, covenants and agrees to and with " the insurer, that his statements therein are a full, true, and just exposition of all the facts and circumstances, condition, situation and value of the property," and are "offered as a basis of the insurance requested," and are "made a special warranty," etc. The policy stipulated that it should be avoided by any false representation by the assured of the condition, situation and occupancy of the property, or any omission to make known every fact material to the risk. Held, that in view of these stipulations, the answer above recited was an express warranty by the assured that one or two of his employees lodged in the mill each night; and was also a promissory and continuing undertaking, which bound him to a substantial compliance with its terms during the life of the policy. 2. After stating that the lubricating oil used in the mill was whale oil, the applicant, by the printed form of the application, was asked to agree, and did agree, that no lubricating oil should be used which was "mixed with or composed of petroleum, or any kind of earth or coal oils." Held, that this addition of an express promise as to the future use of oil, will not prevent the answer above recited touching a watchman, from being regarded as a promissory undertaking. [3 LYON, J., is of opinion that if the statement as to watchmen be regarded as merely a representation, and not a warranty, it was still promissory and continuing, and a failure to keep it good, material to the risk, would defeat a recovery on the policy.] 4. Where delivery of a policy is prevented by failure of the assured to pay the premium, the application for such policy and its delivery are regarded in law as contemporaneous acts; and warranties in the application, or representations therein material to the risk, must at least be true at the time of such delivery, or they will avoid the, policy. 5. The application was made December 3d, and, from delay of the applicant to pay the premium,

the policy was not delivered until December 28th; no employee of the assured lodged in the mill at night after December 25th; and the mill was destroyed by fire several weeks later. Held, that there can be no recovery on the policy. The mere fact that the assured did not see the policy before he paid the premium is immaterial. Opinion by LYON, J. TAYLOR, J., dissenting.-Blumer v. Phoenix Ins. Co.

PAYMENT OF PART OF CLAIM PENDING ACTION.— 1. Payment, pending an action, of part of the claim therein sued upon, does not deprive plaintiff of his right to recover the remainder. 2. Thus, in replevin by a town treasurer for a chattel levied upon by him to raise a tax, and taken from him by defendant, (where plaintiff had acquired possession of the chattel under the statute), payment of the tax and return of the chattel by plaintiff to defendant, did not preclude a recovery by plaintiff of damages for the detention, with costs of the action, although such damages were merely nominal. 3. The exclusion of a record offered in evidence to show the pendency of a former suit for the same cause between the same parties (alleged in the answer), cannot be reviewed in this court in the absence of anything in the bill of exceptions to show the contents of such record.-Opinion by COLE, J. Thomas v. Wiesman.

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LIFE INSURANCE - FORFEITURE WAIVER.-1. There is nothing in the charter or constitution of the defendant whieh renders inapplicable to it the doctrine of waiver applicable to other insurance companies, 2. Forfeitures are not favored in the law; and the benevolent object of the order for whose benefit the defendant company was organized, with the provisions of defendant's constitution and by-laws indicating a purpose to mitigate forfeitures, requires the court to lay hoid of any act showing an intention of defendant to waive the forfeiture in this case. 3. The right to payment of a certain sum by defendant as insurance on a life was forfeited in case the assured at his death had not paid all assessments; but, after his death, all assessments against him were paid for him in pursuance of authority granted and a request made during his lifetime, and were by his lodge (which was defendant's agent for that purpose) received and forwarded to defendant, and by it accepted and retained until after commencement of this suit, with knowledge of the death of the assured on the part of the lodge and the defendant at the times of such receipt and acceptance. Held, that the forfeiture was waived. Opinion by COLE, J. Erdmann v. Mutual Ins. Co.

PASSAGE OF LAWS-EVIDENCE-POWER OF MUNICIPALITIES TO ISSUE BONDS.-1. The publication of an act in the bound volumes of session laws of the year in which it purports to have been approved, verified by the secretary of state, creates a presumption that it became a law pursuant to the requirements of the constitution. 2. Where the journal of a branch of the legislature, published as required by the constitution, gives a list of the numbers and titles of numerous bills in immediate succession, followed by the words, "was read a third time," etc.: Held, that the word "was" is an obvious clerical error for "were," and the journal is evidence that all the bills named in such list were read a third time. 3. A statute will be so construed, if possible, as to reconcile it to the constitution. 4. Ch. 126 of 1869 (as amended by ch. 31 of 1871) provides that the proper officers of any county through which a certain railroad shall run, etc., may levy a tax and issue bonds of the county to aid in the construction of any portion of such road, and for the purchase of right of way and depot grounds, "upon such terms and conditions as shall be agreed upon" between such county and the railroad company (sec. 1); that when the company shall require aid from any county, it shall


make a written proposition, stating (among other things) "the terms, conditions and considerations" upon which the money or bonds of the county will be required to be paid and delivered to the company (sec. 2); and that all shares of the capital stock, or bonds or other securities given by the railroad company to any county, may be taken, held, sold, etc., by such county in the same manner and with like effect as can be done by individuals (sec. 7). Held, (1.) That, construing the statute together, it requires by its terms, some "consideration" moving from the railroad company to the municipality voting aid. (2.) That the power of granting aid by the issue of municipal bonds on such terms, conditions and considerations" as the municipality and the railroad company may agree upon, must be understood of lawful terms and considerations-such a power as may be exercised by a municipality within the limits of the constitution; and the act itself, and bonds issued under it by a municipality, to pay for stock subscribed in aid of a railroad, are held valid. [RYAN, C. J., acquiescing in the judgment on other grounds, dissents as to the last point, holding: 1. That municipalities in this state can take power to levy taxes in aid of railroads owned by private corporations, only by way of becoming stockholders therein. Whiting v. Railroad Co., 25 Wis. 167. 2. That a legislative grant of power for either of two purposes, at the election of the grantee, one purpose being lawful and the other unlawful, is void. At. torney-General v. Eau Claire, 37 Wis. 400. 3. That the act can not be construed as limiting the power of taxation conferred, to payment for a stock subscription, or as limiting it at all except by requiring some considera. tion from the company; and it is therefore void, and bonds issued under it, though in fact for stock subscriptions, invalid.] Opinion by COLE, J.-Bound v. Wisconsin Cent. R. R.

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EVIDENCE-CONTRACT WITH COUNTY CAN NOT BE SHOWN BY PAROL-NO RIGHT OF ACTION ARISES FROM VOID Contract of COUNTY COURT.-Plaintiff, under contract with county court, prepared a book for entry of satisfaction of judgments that had been rend. ered in circuit court of county, from 1841 to 1871, and entered therein satisfaction of all judgments that bad been paid and satisfied, as shown by executions and other evidence on file in office of circuit clerk. The book was received by county court, is now a record in circuit clerk's office, and the county court had paid part of contract price, but refused to pay balance of the claim presented against the county, in the county court thereof. Plaintiff appealed to circuit court. The records of the county court showed no such contract as alleged, and showed no order to do work sued for. Plaintiff offered parol evidence showing the contract between the county court and himself, which, against objection, was admitted, and judgment entered for plaintiff for amount of his claim, from which county appealed. Held (1.) That parol evidence, as to alleged contract with county court, was improperly admitted. A county court, like any other of record, can only speak by its records, and the statute (1 Wag. St. 419, sec. 5) expressly requires that such courts "keep just

and faithful records of their proceedings." The correct principle that parol evidence was inadmissible to prove a contract with the county court, was announced at an early day in this state. Medlin v. Platte Co., 8 Mo. 235; Milan v. Pemberton Co., 12 Mo. 598. It has been thought that the case of Boggs v. Caldwell Co. 28 Mo. 586, enunciates a different doctrine. But that case proceeded on ground that the formality of entering an order of record was unnecessary, when relating to "books in the office" of the clerk. Authority of that case has been doubted in Reppy v. Jefferson Co. 47 Mo. 66, and the only proper course to pursue is, in every instance, to let the record speak the only utterances of the court entitled to recognition. Dennison v. Co. of St. Louis., 33 Mo. 168. (2.) It does not help plaintiff's case that county court paid a portion of sum verbally agreed upon, nor that work thus agreed upon was afterwards finished. Wolcott v. Lawrence Co., 26 Mo. 272. (3.) The work bargained for was wholly unauthorized by law, so far as the county court was concerned. That court possesses no supervisory control over clerks of the circuit court. Their duties, in respect to the judgment docket, are prescribed by statute (1 W. S. 793, sec. 27) and satisfaction of judgments are to be entered at the instance, and paid for by the party interested. 1 Wag. St. sec. 24, 792-3, sec. 10, p. 623. As the work to be done was wholly unauthorized to be contracted for by the county court, no cause of action accrued to plaintiff therefor. Reversed and remanded. Opinion by SHERWOOD, C. J.-Maupin

v. Franklin Co.

PRACTICE-WHEN CAUSE IS REMANDED BY SUPREME COURT WITH SPECIFIC DIRECTONS NEW TRIAL ON MERITS CAN NOT BE HAD.-This case was here before (55 Mo. 264), and the judgment was reversed and the cause remanded, with directions to the trial court in its further proceedings, to take an account of rents and profits, etc., etc., and that plaintiff be restrained from taking possession until she should pay value of improvements and purchase-money, diminished by rents and profits. These directions were fully followed by court below, and judgment rendered accordingly. Held, under these directions plaintiff was not entitled to open the case and have a new trial. These views are sustained by the case of State ex rel Allen v. St. Louis Circuit Ct. 41 Mo. 574, and Knealy v. Macklin, decided October term, 1878, and not yet reported. Had the judgment been simply reversed and the cause remanded, a different phase of the case would have been presented. Affirmed. Opinion by SHERWOOD, C. J. -Shidyer v. Nickell.

PLEADING PETITION FOR DOUBLE DAMAGES UNDER 43D SECTION CONCERNING RAILROADS MUST STATE STATUTORY ESSENTIALS.-This was an action under the 43d section of the corporation act (1 Wag. St. p. 310) to recover double damages for killing stock, the property of plaintiff, by a train of cars running over defendant's road. Verdict against defendant for $100, and judgment for plaintiff for double that amount. A motion in arrest, on ground that petition did not state facts sufficient to constitute a cause of action. Held, (1.) That as petition did not allege that at the place where the cattle were killed, the road ran through" unenclosed prairie lands," and did not allege that the injury to the cattle was occasioned by the failure of the company to erect and maintain a fence, as required by the 43d section, the omission of these allegations was fatal. Cecil v. Pac. R. R. Co., 47 Mo. 247. (2.) Having sued under the 43d section, plaintiff must recover, if at all, under that section. He can not recover under the 5th section of the Damage Act, or on a cause of action at common law, on a petition based upon the 43d section. He must lie in the bed he makes for himself. Wood v. St. L., K. C. & N. R. W. Co.,

58 Mo. 109; Cary v. Same, 60 Mo. 209; and Edwards v. H. & St. Jo. R. R. Co., decided at last term. Reversed and remanded. Opinion by HENRY, J.-Luckie v. C. & A. R. R. Co.

HOMESTEAD EXEMPTION-DOES NOT EXTEND TO PROCEEDS OF SALE UNDER EXECUTION OR DEED OF TRUST.-C, holding a judgment against P, had execution levied upon an eighty acre tract of land, the property of P, upon which, with his family, he resided. Land was sold under the execution, and purchased by C, in February, 1876. P made a deed of trust on same land in favor of D & T, who, in January, 1876, had the land sold by trustee. D & T purchased at trustee's sale, and, after satisfying their debt, they owed a balance of $299 of the purchase money. Chad garnishment served upon D & T in order to subject this sum to payment of balance of his judgment. P interpleaded, claiming the money under the Homestead Act, and D & T answered, setting up foregoing facts, and alleging that C had no right to the money unless he relinquished his claim under the execution sale. When execution was levied P did not designate, under section 2 of the Homestead Act, the part to which the exemption should apply. Nor did the sheriff set the same apart as therein provided. Held, (1.) The homestead is a statutory right, a strictly legal right, and while the act should be liberally construed, yet equitable principles, other than those recognized by the act, can not be invoked by one claiming a homestead right. P having voluntarily conveyed land in which he had a homestead right, the money realized by the sale under that conveyance, can not be treated as land, much less as a homestead. It is "the dwelling house and land, rents, issues and profits "which are exempt, and nothing else. There is nothing in the act protectingthe proceeds of the sale of a homestead against creditors' demands, except as provided in secs. 9, 10 and 11, and the provisions for setting out homesteads by metes and bounds and to sever the same from other real estate, forbid the idea of a homestead exemption in anything but real estate. (2.) The garnishees D & T had no right to the money as against C, notwithstanding C bought the same land under his execution and claimed title to it. The $299 belonged to P, and C had the same right that any other judgment creditor would have on garnishment proceedings to recover the money from the garnishees. Affirmed. Opinion by HENRY, J.Casebolt v. Donaldson.

INJUNCTION-BOND-DAMAGES MUST BE ADJUDGED BEFORE ACTION CAN BE MAINTAINED AGAINST SURETIES. This was an action on a statutory injunctionbond. It appears from the petition that no damages were assessed on the dissolution of the injunction. Demurrer to petition sustained, and plaintiff appealed. Held, there can be no breach of the bond, until a failure or refusal to pay whatever sums of money shall have been adjudged against the plaintiff. While the bond is required to be for a sum sufficient to secure the amount or other matter to be enjoined, and all damages that may be occasioned by the injunction (Sec. 11, 2 Wag. Stat. 1030); yet the condition of the bond restricts this general language to a liability on the part of the sureties "to pay all sums of money, damages and costs that may be adjudged against the plaintiff." This view is strengthened by Sec. 14 of the act, which requires the court, on dissolution of injunction, to enter judgment against the obligors in the bond, according to the circumstances of the case. The "damages must be adjudged," and the non-payment of the amount adjudged forms the breach of the bond so far as damages are concerned. Kennedy's Admr. v. Hammond, 16 Mo. 341; Corder v. Martin, 17 Mo. 41. Affirmed. Opinion by HENRY, J.-Dorris v. Carter.

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