Volume 1 — Missouri Appeal Reports

<p>Appellate courts will not consider any papers filed in the trial court after a writ of error has been issued, and after the bill of exceptions has been made up and the trial court adjourned for the term.</p>

<p>Error to Lincoln Circuit Court.</p> <p>cited: Wag. Stat. 445, sec. 1; State v. Jones, 20 Mo. 58; Old Const., sec. 26; Art. 6, New Const., sec. 38; State v. Loper, 19 Mo. 254; State v. Manafield, 41 Mo. 470.</p>

<p>Appeal from Lincoln Circuit Court.</p> <p>cited: Mo. Const., Art. 6, sec. 26 ; State v. Lopez, 19 Mo. 255 ; Clements v. State, 4 W. Ya. 755; Wag. Stat. 800, sec. 24, p. 1102, secs. 7, 8; State v. Klinger, 46 Mo. 224; State v. Buckner, 25 Mo. 168; State v. McCarron, 51 Mo. 27; State v. Holme, 54 Mo. 153.</p> <p>cited: State v. Hayes, 23 Mo. 287; State v. Klinger, 46 Mo. 224; Wag. Stat. 1090, sec. 27.</p>

<p>Appeal from the St. Louis Court of Criminal Correction..</p> <p>cited: State v. Parlcard,, 26 Mo. 340; State v. Marshall, —Mo. —; State v. Spenlove, Riley (S. C.), 269; Peck v. State, 7 Humph. 78;-Gibbons v. Ogden, 9 Wheat. 1; State v. Scott & North, 27 Mo. 473; State Freight Tax, 15 Wall. 232; Potter’sDwar. on Stat. 245, and cases there cited.</p>

<p>Error to the St. Louis Court of Criminal Correction.</p>

<p>3. The statutory provision that, “ when two or more persons are charged with having committed an offense jointly, all concerned shall be included in one indictment,” has no application to separate prosecutions not charging joint criminality.</p> <p>22. Where it is made to appear that the verdict, as recorded, is different in form from the original handed in by the jury, it will be presumed that the alteration was made by direction of the court, with, the consent of the jury. Such consent need not be entered on the record.</p> <p>8. When the only count in an indictment charges robbery in the first degree, it is not necessary for the verdict to specify the degree of the crime committed, unless the jury find it to be inferior to that charged in the indictment.</p>

<p>An indictment contained two counts, charging different statutory offenses. The jury found the defendant guilty under one count only, and assessed a punishment inapplicable to that count, but which might have been applicable to the other. Held, a ground for reversal, with directions to the court below to proceed as required by the statute in such cases.</p>

<p>Appeal from the St. Louis Criminal Court.</p> <p>cited : State v. Shields, .13 Mo. 236 ; Day v. State, 13 Mo. 422 ; State v. White, 35 Mo. 500; Deer v. State, 14 Mo. 348 ; State v. Boswell, 2 Dev. 209; McComb v. State of Ohio, 8 Ohio St. 643; Bos. on Cr. Ev. sec. 716; 1 Ph. on Ev., sec. 762 ; Evans ,v. Smith, 5 Mon. 363; Peck v. State, 2 Humph. 78; Miller v. The People, 39 111. 459 ; State v. Merrell, 2 Dev. 269 ; State v. Dominique, 30 Mo. 585 ; McMillen v. State, 13 Mo. 30; McDaniels v. State, 8 Smed. & M. 401; People v. Greene, 1 Park. (N. Y.) Cr. 11; People v. Knickerbocker, 1 Park. (N. Y.) Cr. 302 ; Hill v. Commonwealth, 2 Gratt. (Ya.) 594; Smith v. State, 9 Humph. 9; Montgomery v. State, 11 Stan. (O.) 424; State v. Mansfield, 41 Mo. 470; State v. Bird, 1 Mo. 585 ; Davis v. State, 2 Humph. 439 ; State v. Jones, 2 Bay (S. C.), 520 ; Keither v. State, 10 Smed. & M. 192; Cochran v. State, 7 Humph. 544; State v. Connell, 49 Mo. 282 ; State v. Sims, Dudley (Ga.), 213; State v. Sartor, 2 Strobh. (S. C.) 60; United States v. Duval, Gilp. 356 ; State v. Hammond, 5 Strobh. (S. C.) 91; State v. Packwood, 26 Mo. 340; Copeland v. State, 7 Humph. 479; State v. Cruise, 16 Mo. 391; Gray-son v. Commonwealth, 7 Gratt. (Va.) 613; State v. Lyon, 12 Conn. 487 ; State v. Fisher, 2 Nott & M. (S. C.) 261; State v. Prescott, 7 N. H. 287 ; Berry v. State of Georgia, 10 Ga. 511; 3 Whart. Cr. Law, secs. 3157-3160; State v: Hascall, 6 N. H. 353; Yoe v. People, 49 111. 410; Witebnm v. State, 11 Ga. 615 ; Fuller v. Scott, Whart. Dig. 355 ; McLean v. State, 8 Mo. 153 ; Weber v. State, 22 Mo. 321; McKinney v. The People, 2 Gilm. (111.) 541; Gib•bons v. The People, 23 111. 518; Bolls v. State of Mississippi, 13 Smed. & M. 398 ; Hale v. State, 4 How. (Miss.) 187; Commonwealth v. Wormly, 8 Gratt. (Va.) 712; McLain v. State, 10 Yerg. 241; Perkins v. Knight, 3 N. H. 474; McCann v. State, 9 Smed. & M. 465 ; Kirk v. State of Ohio, 14 Ohio, 511; Jumpertz v. The People, 21 111. 409.</p> <p>cited: 1 Greenl. on Ey., sec. 158; Smith v. State, 9 Humph. 9; 2 Stark, on Ey. 460; State v. Shields, 13 Mo. 236; Deer v. State, 14 Mo. 348; Norris v. State, 16 Ala. 776; State v. Cushing, 29 Mo. 215 ; Fisher v. People, 23 111. 283; Hobbs v. People, .31 111. 385 ; State v. Felter, 25 Iowa, 67; Stevens v. State, 31 Ind. 485; McFarland’s Case, 8 Abb. Pr. (U. S.) 69; Harris’ Case, 22 Am. Jour. Insanity, 334; Commonwealth v. Haskell, 2 Brews. (Pa.) 491; Smith v. Commonwealth, 1 Duv. (Ky.) 224; State v. Pike, 49 N. H. 399 ; Ray’s Med. Jur., sec. 44; Hines v. State, 8 Humph. 597 ; Berry v. State, 10 Ga. 511; 1 Park. (N. Y.) Cr. 256.</p> <p>cited : People v. Sanchez, 4 Park. (N. Y.) Cr. 555, 556 ; State v. •Klinger, 46 Mo. 220; People v. Thurston, 2 Park. (N. Y.) ,Cr. 49 ; State v. Holme, 54 Mo. 164; State v. Hundley, 46 Mo. 417 ; State v. Connell, 49 Mo. 282; State v. Cook, 58 Mo. 545; State v. Floyd, 15 Mo. 349 ; State v. Smith, 31 Mo. 566 ; Beale v. Cullum, 31 Mo. 258 ; State v. Dunn, 18 Mo. 419 ; State v. Crawford, 34 Mo. 200; State v. Smith, 53 Mo. 267.</p>

<p>1. Testimony being properly introduced tending to show that a written contract, absolute on its face, is in fact a mortgage, it is erroneous to instruct the jury to disregard such oral testimony as may tend to vary the terms of the written contract.</p> <p>2. The interest of a mortgagor of personal property in the hands of the mort•gagee is not subject to seizure under execution against the mortgagor.</p>

<p>Error to the St. Louis Circuit Court.</p> <p>cited: Edw. on Bills (2d ed.), 633, 674; Price v. McClare, 6 Duer (N. Y.), 544; Bank of Columbia v. Lawrence, 1 Pet. 578 ; Stephenson v. Primrose, 8 Port. (Ala.) 155; Granite Bank v. ' Ayers, 16 Peck (Teiin.), 392 ; Commercial Bank v. Strong, 28 Yt. 316.</p>

<p>When part of an answer is stricken out, and enough remains to constitute a substantial defense, the plaintiff cannot have judgment for want of an answer, because the defendant fails to file a new pleading.</p>

<p>Appear from St. Louis Circuit Court.</p> <p>cited: 1 Greenl. onEv., ¡sec. 577 ; Pinto v. Santos, 5 Taun. 447 ; Stephens v. Bab■cock, 3 B. & Ad. 354; Whitman v. Eelton, 28 Mo. 603; Bigelow v. Davis, 16 Barb. (N. Y.) 561; Armstrong v. ■Smith, 3 Blackf. (Ind.) 251; Indap v. Dyott, 3 Blackf. (Ind.) 324; Benton v. Craig, 2 Mo. 189 ; Burton v. Collin, ■3 Mo. 315 ; Cockrill v. Kirkpatrick, 9 Mq. 697; Beardslee ■v. Boyd, 37 Mo. 180.</p> <p>cited : Pope v. Askew, 1 Ired. (N. C.) 16; Doe, ex dem. Mudd, v. Suckermore, 5 Ad. & E. 705.</p>

<p>1. Courts of justice -will not sit to determine wagers, or to compel parties to pay their bets.</p> <p>2. What is usually called “ an option contract” is a wager.</p>

<p>By an act of the General Assembly, approved January 16, 1833, the trustees of the town of New Franklin were authorized to raise, by lottery, $18,000, for the construction of a railroad from the bank of the Missouri river to. the town of New Franklin. By act of February 26, 1835, they were-further empowered to contract with any person to have the lottery drawn in any part of the United States, on such terms as they should consider most advantageous. By act of February 8, 1839, the power previously given to raise money for a railroad was withdrawn; the trustees were, authorized to apply the funds raised to a macadamized road, and the Governor, on certain preliminary conditions, might, by proclamation,, authorize the raising by lottery of a sum sufficient to complete the work, not exceeding $15,000. On November 17, 1840, proclamation was issued, by the Governor to that effect. On June 1, 1842, the trustees made an agreement with Walter Gregory, whereby they sold to him “the said lottery and all right to control the same,” and appointed him “the sole> manager and conductor of said lottery or lotteries, for the benefit of the town of New Franklin, under the provisions,” etc. Gregory assumed all the risk and expense of the undertaking, and agreed to pay the trustee^ $15,000, in semi-annual installments of $250 each, beginning with January 1, 1843. A proviso was added whereby $1,100 previously paid to the trustees by other parties should be considered as payments made by Gregory on his said purchase. On April 11, 1849, the board of trustees - entered on its minutes a memorandum of an agreement that, in considera-, tion of $500 paid by Gregory, in addition to the $1,100 acknowledged by the contract of June 1, 1842, he was released from all further payments under said contract until July 15, 1851 — the semi-annual installments of $250 then to commence, and to continue until the further sum of $13,400 should be fully paid, making, in all, $15,000. This memorandum purports to be signed and sealed by the trustees, but is not executed by Gregory. By act of December 6, 1855, “ all contracts made by the said trustees for the purpose of raising the amount of money authorized to be raised ” by the several acts above recited, “for the purpose of constructing a rail or macadamized road,” etc., were declared to be legal, and the same might be carried out according to the true intent of the parties thereto. No part of the money raised by the lottery was ever applied to the making of a road of any kind. By an information in the nature of quo warranto, on the relation of the Attorney General, filed in the St. Louis Circuit Court, on the-day of-, 1875, the defendants, as assignees of Gregory,' were required to show their authority for selling lottery tickets in Missouri. Judgment of ouster was rendered in the Circuit Court. It was held that the Circuit Court had jurisdiction, of the controversy.</p> <p>Held (Bakewell, J., dissenting), that the judgment of ouster was proper, and must be affirmed.</p> <p>Per Gantt, P. J. — 1. At any time prior to 1865 it was competent for the Legislature to either legalize or forbid the selling of lottery tickets, unless, by a contract with some person or persons, the power of prohibition was so far withdrawn. A right to sell, so vested by contract, could not be interfered with by general penal statutes against lotteries, or by any other instrumentality of the State governments.</p> <p>2. The contract of June 1, 1842, must, in the light of its repeated sanctions by 'the Supreme Court, be considered unimpeachable. But, that contract having expired in 1870, by completion of the period which it covered, no' one could have, under the acts of 1833 and 1835. and the contract of 1842, a right to sell lottery tickets in Missouri.</p> <p>S. The contract of April 11, 1849, under which it is claimed that the privileges conferred on Gregory were extended in point of time, being wholly without consideration as to the trustees of New Franklin; being, in fact, a surrender of rights held under the former contract without compensation derived, or corresponding advantage of any sort; and being, not in fur-' therance of the objects contemplated by the act of 1833, but manifestly in hindrance of them, was null and void. The act of December 6, 1855, gives it no support.</p> <p>4. Although a seal, or a scroll by way of seal, imports a consideration, no presumption arises of a consideration different from that which is ascertained by the instrument itself; and if the declared consideration be illegal or worthless, while, in some cases, another may be proved, yet there is no legal presumption of the existence of such other consideration.</p> <p>5. Qucere, whether persons acting in a representative capactity can, by affixing a scroll to their signatures, shut the door.upon an inquiry by their principals into the reasons for their action.</p> <p>6. Even if the memorandum of April 11, 1849, were a binding contract, its operation would only be to extend the time within which Gregory was to make his payments, and to diminish, by loss of interest, the price of his purchase. It could not be understood as enlarging the privileges previously acquired by him, or. that any such enlargement should be in precise proportion to his own failure of performance of the original contract.</p> <p>7. Ever since 1870,"when the last payment was due under the contract of June 1, 1842, the defendants have been without the protection of any contract to justify their selling lottery tickets in violation of the general law. Hence, the judgment of ouster was proper, and ought to be affirmed.</p> <p>Per Lewis, J. — 1. The contract of April 11, 1849, cannot be treated as a nullity in this proceeding. The State, by act of December 6, 1855, declared it to be legal, and gave her assent to its being carried out according to the intent of the parties.</p> <p>2. The proceeding by information in the nature of quo warranto was a part of the common law, and so introduced into Missouri. The statute of Anne, and the corresponding statute of this State, in authorizing a private relator, did not take away the right of the government to appear by its law officer as relator, in a common law court of original jurisdiction.</p> <p>8. A municipal charter is a delegation of the State’s sovereignty for local purposes, and is, in general, not judicially forfeitable, like a private franchise-But when to such a grant is added a special franchise, independent of the local government and operative beyond its limits, the latter is liable to forfeiture for non-user, misuser, or breach of condition. The lottery privilege granted to the corporation of New Eranklin was such a franchise, and is shown to have been forfeited in every mode possible for the case.</p> <p>4. The defendants and Gregory, their assignor, took the franchise subject to all the conditions, including the liability to forfeiture for certain causes. A judgment of forfeiture against them for such cause would not impair the obligation of their contract, but would simply enforce its terms.</p> <p>5. The authority given the trustees to contract on such terms as they should “ consider most advantageous,” did not imply a right to create terms which would be in derogation of law.</p> <p>6. The judgment of ouster was proper, for forfeiture of the franchise by failure of the conditions upon which it was granted.</p> <p>JPer Bakewell, J., dissenting. — 1. The contract of April 11, 1849, whether legal or not upon general considerations, was validated hy the act of December 6, 1855.</p> <p>33. Consideration is not of the essence of a contract, though necessary to support one. A contract under seal needs no consideration, and is binding between the parties, not only without a consideration, but even when, as in this case, one is set out and appears tobe no consideration at all, because already past.</p> <p>3. A contract or agreement is where a promise is made on one side and assented - to on the other.</p> <p>-4. The general laws of 1836 and 1842, prohibiting lotteries, were inoperative as to the Missouri lottery, that being expressly authorized by the same power which uttered the prohibition. The prohibitory act of 1845 cannot be set up against the contract of 1849, because the latter was ratified and validated by the act of December 6, 1855. This ratification and validation did not constitute a law retrospective in its operation, within the meaning of the Constitution.</p> <p>®. The lottery franchise could not be forfeited by any act of the trustees of New Franklin, after they had sold it to another. A judgment of forfeiture would impair the obligation of their contract of sale, which was made by authority from the State, and ratified by the same power.</p> <p>'6. The contract of 1849 having been in full force before the constitutional prohibition of 1865 against lotteries, no subsequent constitutional ordinance, or law, or decision of any court could impair its validity, and it is valid now.</p> <p>7. Gregory and his assigns could not control the application hy the trustees of the funds raised from the lottery, and, therefore, cannot be held responsible for any misappropriation of them after the transfer. The defendants cannot be deprived of their franchise because of such misappropriation; since that would be to assume that the Legislature gave to the trustees a right to make a sale which would be revocable at the legislative will.</p> <p>8. Courts of justice cannot undertake to annul any legislation, within the constitutional authority of the General Assembly, for apparent rashness or improvidence in the enactment.</p> <p>'9. The Circuit Court had j urisdiction of this proceeding. It was never intended by the statute to limit the common law jurisdiction of the Circuit Court over ex-officio informations in the nature of quo wan'anto.</p> <p>10. The judgment of ouster was improperly rendered, and ought to be reversed.</p>

<p>Appeal from the St. Louis Court of Criminal Correction.</p> <p>cited: Wag. Stat. 1330, sec. •5; State v. Marshall, 47 Mo. 378; State v. Bird, 1 Mo. •585 ; State v. Packwood, 26 Mo. 340; State v. Daye, 15. Mo. 263 ; State v. Cruise, 16 Mo. 391; State v. Mansfield,-•41 Mo. 470 ; State v. Connell, 49 Mo. 282.</p>

<p>Appeal from St. Louis Criminal Court.</p> <p>cited : Wills on .Cir.. Ev. 84; 2 Hale’s P. C. 290 ; 1 Stark, on Ev. 511; 1 Greenl. on Ev. 17, seo. 13 ; 1 Park. (N. Y.) Cr. 609 ; Ruloff v. People, 18 N. Y. 179; Tyner v. State, 5 Humph. 383 Mose v. State, 36 Ala. 231; Jenkins v. State, 41 Miss. 583 Pitts v. State, 43 Miss. 480; 15 Wend. 155; 17 HI. 428 ;• 4 Minn. 375 ; 32 Miss. 433 ; 33 Miss. 352.</p> <p>cited r People v. Bagley, 16 Wend. 53; Bergen v. People, 17 111. 429 ; 1 Bishop’s Cr. Pr., secs. 499, 501, inclusive, and note-2 to last section; State v. Cowan, 7Ired. (N. C.) 344, 345;, Burrill on Cir. Ev. 497, 498 ; State v. Lamb, 28 Mo. 230— 232; Birdsong v. State, 1 Green Cr. Rep. 733.</p>

<p>Appeal from St. Louis Criminal Court.</p> <p>cited: Campbell v. Hood, ■6 Mo. 211; Price v. Evans, 49 Mo. 396 ; Watts v. Douglass, 10Mo. 676 ; State v. Burnside, 37 Mo. 343 ; Hart v. Leavenworth, 9 Mo. 629 ; Clemans v. Laveille, 4 Mo. 80 ; Scott v. Brockway, 7 Mo. 61.</p>

<p>Moneys received by an executor, proceeds of a sale of realty under a power in. the will, whether the power was duly executed or not, are assets, and the* sureties are liable for their misappropriation.</p>

<p>Appeal from the St. Louis Circuit Court.</p> <p>cited : Beach v. Eaymond,, 1 E. D. Smith (N. Y.), 406 ; 2 E. D. Smith (N. Y.), 496 Mills v. Fox, 4 E. D. Smith (N. Y.), 220; 3 Stew. (Ala.) 344; Moore v. Penn, 5 Ala. 135 ; Agee v. Midlock, 25-Ala. 281; Beldu v. Muker, 47 N. Y. 307; Bank of Virginia v. Warren, 7 Hill, 91; Hoyt v. Thompson, 1 Seld. 320 ; Walker v. Mauro, 18 Mo. 564; Bank of Commerce v.. Bogy, 44 Mo. 13; Blinn v. Pierce, 20 Vt. 25; Edwards v. Daly, 14 La. An. 384; Eodick v. Gandall, 15 Eng. Law &• Eq. 221; Mandeville v. Welsh, 5 Wheat. 277.</p> <p>cited: Ford v. Angelrodt, 37 Mo. 56, 57.</p>

<p>1. The building insured was described as a “two-story frame dwelling-house, on west side of King’s Highway, near present terminus of Lindell avenue, St. Louis, Mo.” After insurance and before destruction it was moved 200 feet north. The same description was as applicable after as before its removal. Held, that the effect of the removal upon the risk was not a, question of law, but of fact, there being no condition or covenant in the policy that the building should remain where it was.</p> <p>2. A effected insurance with B, and shortly afterwards caused a memorandum to be made in writing on tbe policy, with the consent of B, that the loss, if any, was to be paid to O. Held, that 0 was not the assignee of the policy, but was the party to whom the loss, if any, was payable.</p> <p>3. If this memorandum was made as collateral security to C, for a debt owing him by A, payment of the debt will, without more, enable A to recover to his own use any loss on the policy.</p> <p>4. During the time when the debt to 0 continued unpaid, A sold to D the property insured, informed B thereof, and caused a memorandum to he made on B’s policy register, stating the value of the policy and that it was transferred to D. Held, that this memorandum, made by B, operated as an assignment of the policy to D.</p> <p>5. The debt to 0 was paid by D, after which the property was destroyed by fire. Held, that D was entitled to recover the loss.</p>

<p>1. Where an applicant for life insurance had an ordinary cold at the time of his application, which was known to the local agent of the company and its medical examiner, and which did not cause his death, their knowledge was the knowledge of the company, and the company is estopped to set this up as a defense, and the policy is binding, though the existence of the cold made the risk greater than an ordinary one.</p> <p>2. Notice to the local agent of the company, for the purpose of placing insurance, is notice to the company.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Hyde v. State, 7 Wend. 354; Spaun v. Jennings, 1 Hill (S. C.) Ch. 324 Hudson v. Wallace, 1 Kich. Eq. 23; Morton v. Hatch, 54 Mo. 412.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Brady v. Connelly, '52 Mo. 19, 20; Curtis v. Curtis, 54 Mo. 351, 352; Carver ■et al. v. Thornhill, 53 Mo. 283, 285, 286; Musgrave et al. 'v. Ausmus et al., 51 Mo. 561, 568 ; Saxton et al. v. Allen, •49 Mo. 417, 418; Develin v. Clark, 31 Mo. 22, 24; Byles 'on Bills (Sharswood’s ed.), 187, 189, noth 1; Develin v. Clark, 31 Mo. 22, 23; Hamilton v. Marks et al., 52 Mo. 78, •80, 81; Parvin v. Noyes, 39 Me. 384, 386; Munroe v. Cooper, 5 Pick. (Mass.) 412,'413, 414; Hunt v. Sandford, •6 Yerg. (Tenn.) 387, 392, 393; Story on Prom. Notes '(7th ed.), secs. 186, 196 ; State ex rel. v. Saline County Court, 45 Mo. 242, 249; Henderson v. Bondurant, 39 Mo. 869, 373, 374; Smith v. Lac County, 11 Wall. 139, 147; Grued v. Stevens, 43 Yt. 125, 128, 129; Roberts v. Hall, 37 Conn. 205, 1212 ; Harris v. Hays, 53 Mo. 90, 96 ; Clements v. Maloney, 55-Mo. 352, 358,-359 ; -Sears v. Wall et al., 49 Mo. 359, 360 ; Hurp v. Salisbury, 55 Mo. 310, 313, 314; Bailey v. Smith, 14 Ohio (n. s.), 396 ; Story on Prom. Notes (7th ed.), sec. 183; Martin et al. v. Smylee, 55 Mo. 577, 578 ; Bauer v. Franklin County, 51 Mo. 205, 206.</p> <p>cited: Horton v. Boyne, 52 Mo. 531; Greer v. Yosti, 56 Mo. 307 ; Bennet v. Torliua, 56 Mo. 309; Corby v. Butler, 55 Mo. 398 ; Merrick v. Phillips, 58 Mo. 436 ; Story Eq. Jur., sec. 199 (,11th ed.) ; Holland v. Anderson, 38 Mo. 55.</p>

<p>Appeal from the St. Louis Circuit Court.</p> <p>cited: 2 Kent’s Com. 226, 453 ; 1 Story on Con. 78; 1 Pars, on Con. 383, 385 ; 1 Coll, on Lunacy, 375, 385, 403; Chitty on Con. 79, 187 ; State v. Hundley, 46 Mo. 414 ; State v. Baird, 47 Mo. 301; Dutcher '■v. Hill, 29 Mo. 271; Eaton v. Perry, 29 Mo. 271.</p> <p>cited: Whittlesey’s Pr., ■■sec. 61, p. 208; Wag. Stat., ch. 74, p. 711.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 917, 918, secs. 9, 10 ; Reyburn v. Casey, 29 Mo. 129 ; Moorman v. Sharp, 35 Mo. 283.</p> <p>cited: Carr’s Admr. v. Hurlbut’s Admr., 41 Mo. 264; Chambers v. Ruby, 47 Mo. 99; Wag. Stat. 917, 918, secs. 9, 10.</p>

<p>In a suit before a justice of tbe peace, not founded on account, nor on tbe ' instrument of writing filed with the justice, a statement of facts constituting the cause of action such as will inform defendant of the nature of the claim, and specific enough to bar another action for the same cause,, must be filed with the justice before summons is issued.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: i Bradford’s Surr., appendix, 503; Gen. Stat. (1865) 663, sec. 1.</p>

<p>A and B, owning adjoining farms, procured a surveyor to ascertain and mark, out the true line between them. It was thus found that A had been occupying eleven acres belonging to B; but it was agreed that the fencing should not be moved until after the harvesting of the crops, A paying rent to B for part of the eleven acres, and B taking immediate possession of the residue. A moved part of the division fence to the new line, and soon, afterwards sold his farm to plaintiff, delivering possession. B moved the remainder of the division fence to the new line, whereupon plaintiff sued him for forcible entry and detainer. Held, that the plaintiff could not. recover. 1. The limit of A’s possession, as owner, being established at. the agreed line, his vendee could not, by mere volition, extend it to the old line of occupancy, so as to make B a trespasser. 2. It was error to instruct the jury that the defendant’s possession required the plaintiff’s assent for-its lawful continuance.</p>

<p>Plaintiff built a house, on his own lot, in such a manner as to cause the formation of a pond on defendant’s lot adjoining, from which the water soaked through and injured plaintiff’s building. Held, that plaintiff had no right of action.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited.: Chitty on Con. (7th Am. ed.) 15, 18, 53, 54 ; 22 Am. Jur. 16, 20 ; 1 Pars, on Con. 389, note to; Exchange Bank v. Cookman, 1 W. Ya. 69, 77.</p> <p>cited: Wag. Stat. 270,sec. 34 ; Arms v. Ashley, 4Pick. (Mass.) 71 ;Thompson v. Blanchard, 3N. Y. 337 ; Davenport v. Mason, 15 Mass.; Patchin v. Swift, 21 Yt. 297; Cummings v. Dennett, 26 Me. 399 ; Beven v. Burbanks, 16 Me. 160 ; Block v. Elliott, 1 Mo. 277; Halsa v. Halsa, 8 Mo. 307; 2 Kent. 465; 1 Pars, on Notes, 175, sec. 1; Marks v. Bank of Missouri, 8 Mo. 319 ; Wilson v. Sergeant, 12 Ala. 7.70; Lawrence v. Eox, 20 N. Y. 268; Rogers etal. v. Gosnell, 58 Mo. 591. Mjmrs v. Lowell, 44 Mo. 328 ; Rogers v. Gosnell, 51 Mo. 466 ; Berly v. Taylor, 5 Hill, 576.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Wolf v. American Ex. Co., 43 Mo. 421; Bos. &Pul. 582 ; 2 Bed., L. B. (5th ed.) 202, sec. 6; Comstock v. Affoelter, 50 Mo. ■411; Davis v. Peck, 8 Tenn. 330; Arbuckle v. Thompson, ■37 Penn. 170; Sanford v. Housatonic E. W., 11 Cush. •(Mass.) 155; Green v. Clark, 13 Barb. 62; 2 Eedf. on Ey., sec. 10 ; Coombs v. Bristol & Exeter Ey. Co., 3 H. & N. 4; Davenport N. Bank v. Homeyer, 45 Mo. 145; Bostwick v. Baltimore & Ohio E. E. Co., 55 Barb. 137; Long ■v. New York Central E. E. Co., 50 N. J. 76; 1 Pars. Mer. Law, 137, and notes ; Odell v. Boston & Maine Ey. Co., 109 Mass. 50 ; Bryant v. Nix, 4 M. & W. 788 ; Grove v. Brien, £ How. 438; Gibson v. Stevens, 8 How. 398 ; Holbrook v. Wright, 24 Wend. 169 ; Dows v. Green (Smith, J.), 24 N. Y. 645 ; Blossom v. Champion, 37 Barb. 563.</p> <p>cited: Ang. on •Car., sec. 511, p. 476; sec. 499, p. 468; Griffith v. Ingelow, 6 Serg. & R. 437 ; Ball entine v. North Missouri R. R. Co., 40 Mo. 505 ; 2 Greenl., sec. 256 ; Darwin v. Potter, -5 Den. (N. Y.) 306-308 ; Pendle v. Rench, 4 McLean, 259.</p>

<p>1. An appellate court must set aside a judgment where there is no evidence whatever to support it.</p> <p>2. In an instruction containing the words “unless each member of tfye jury believe,” etc., and setting forth what facts must be found in order to a verdict for the plaintiff, it is not erroneous for the court to strike out the words “ each member of.”</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: Pendleton v. Perkins, 49 Mo. 565 ; Wag. Stat. 1012; Henderson v. Dickey, 50 Mo. 165 ; Almett v. Leper, 48 Mo. 321; Murry et al. v. Freeman et al., 44 Mo. 521; Turner v. Adams, 46 Mo. 99 ; McDowell v. Cochran, 11 111. 31; Postlewaite v. Howes, 3 Clarke (Iowa), 366 ; Hadden v. Spades, 20 Johns. 554 ; Bigelow v. Congregational Society, 11 Yt. 283 ; Williams v. Hubbard, Watkins’ Ch. 28; Kippen v. Glancy, 2 Blackf. (Ind.) 336 ; Scott v. McMillan, 1 Litt. (Ky-) 302 ; Farrar v. Haselden, 9 Rich. (S. C.) Eq. 331; Greenway v. Thomas, 14 111. 272; Pope v. Solomon, 36 Ga. 341.</p> <p>cited: Gen. Stat. 1865, ch. 165, sec. 2 ; Doanv. Holly, 25 Mo. 357 — 359 ; Pendleton v. Perkins and City of St. Louis, 49 Mo. 565; Heller v. Stremmel, 52 Mo. 309.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: Thompson v. Wood, 1 Hilt. (N. Y.) 97; Goodman v. Pocock, 15 Q. B. 576 ; Smith’s M. & S., 73 Law Lib., note g, p. 90,. (95) ; Best on Ev., 64 Law Lib., p. 190 (293) ; Best on Ev., 64 Law Lib., p. 193 (299) ; Pond v. Wyman, 15 Mo. 183, 184; 2 Greenl. on Ev. (4th ed.), sec. 261; Ream v. Watkins, 27 Mo. 518 ; Springdale Association v. Smith, 32' 111. 259.</p> <p>cited: Banister v. Henn, 45 Mo. 567 ; Shacklett v. North Missouri Coal and Mining-Co., 50 Mo. 410.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Helm v. Wilson,, 4 Mo. 41; Downey v. Burke, 23 Mo. 228 ; Marsh v. Richards, 29 Mo. 99 ; Stout v. Tribune Co. 52 Mo. 347; Sheffield v. Balmer, 52 Mo. 477; Franz v. Hildebrand, 45 Mo. 121; Camp v. Heelan, 43 Mo. 591; Taylor «.'Beck, 13 111. 376; Wag. Stat. 504, secs. 32, 35 ; State v. Adams, 20 Mo. 214 ; Smith v. Wilcox, 24 N. Y. 353 ; Fennel v. Ridler, 5 B. & C. 406 ; Bernard v. Luepping, 32 Mo. 341; Peltz v. Long, 40 Mo. 532; Bloom v. Richards, 2 Ohio St. 387.</p> <p>cited: 52 Mo. 474 ; 1 Wag. Stat. 504, secs. 32, 35.</p>

<p>1. "Where the aggregate of damages claimed in a petition was $1,200, and part of the claim, stated at $300, was excluded by an instruction, a verdict for $1,200 cannot be sustained.</p> <p>2. It is erroneous to give an additional instruction to the jury after argument and submission of the cause, unless it appear that the party complaining could not have been prejudiced thereby, or that it was necessary in order to rectify some omission or oversight.</p> <p>3. The relation of father is not essential to the position of next friend of an infant plaintiff.</p> <p>4. It is too late to object, in this court, that the jury were sent out of the courtroom to hear the arguments of counsel, when it does not appear that any unfairness resulted, or that any objection was offered at the time.</p>

<p>Plaintiffs exchanged certain personal property, for land, with the understanding that, for the difference in value het.ween the personalty and the land, they were to receive notes, secured by chattel mortgage upon - the personalty exchanged. The value of the land and of the personalty was agreod upon,notes were executed for the difference and secured upon the chattels, and a deed of the land, with warranty, executed and delivered to plaintiffs. It afterwards appeared that taxes to a considerable amount were a lien on the lands at the time of the transfer. Held, that plaintiffs, as against creditors of the persons giving the chattel mortgage, were not entitled to an equita^ ble lien upon the goods for the difference between the amount of the notes and the sum for which it is alleged they should have been made had the fact of the unpaid taxes been known to plaintiffs when the transaction was consummated.</p>

<p>Error to St. Louis Circuit Court. ■</p> <p>cited: Higgins-v. Peltzer, 49 Mo. 152 ; Wernecke et al. v. Wood, 48 Mo. 352; Fultmin v. Monks, 43 Mo. 502; Coon v. Brook, 21 Barb. 546; Griffith v. Clark, 18 Md. 457; Howard v.. Clark et al. 43 Mo. 344; State v. Shacldett, 37 Mo. 280; Duncan v. Spear, 11 Wend. 34; Duncan v. Snear, 16 Wend-562, 571. ...</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: St. Louis Fire & Marine Ins. Co. v. Boeclder, 19 Mo. 135.</p> <p>cited : Reid v. Piedmont & Arlington Life Ins. Co., 58 Mo. 421; Roussin v. St, Louis Perpetual Ins. Co., 15 Mo. 244; Hannibal & St. Jo. R. R. Co. v. Moore, 37 Mo. 338 ; Knipper v. Bechtner, 32 Mo. 255 ; Gillett v. Matthews, 45 Mo. 307 ; Clarke v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Hannibal & St. Jo. R. R. Co., 37 Mo. 240; Fitzgerald v. Hayward, 50 Mo. 516 ; Hayward v. National Ins. Co., 52 Mo. 181-196; Pelkington v. .National Ins. Co., 55 Mo. 172 ; Horwitz v. Equitable Ins. Co., 40 Mo. 557 ; Franklin v. Atlantic Ins. Co., 42 Mo. 460; Combs v. Hannibal Ins. Co., 43 Mo. 151; Merchants and Manufacturers’ Ins. Co. v. Curran, 45 Mo. 142; Sims v. State. Ins. Co. of Hannibal, 47 Mo. 54; Northrup v. Mississippi Yalley Ins. Co., 47 Mo. 435 ; Froehlich v. Atlas Life Ins, Co., 406 ;'Hayward v. National Ins. Co., 52 Mo. 181 (195-6) ; Bonnell v. U. S. Express Co., 45 Mo. 422 ; Kelly v. U., S. Express Co., 45 Mo. 428; Banister v. Henn, 45 Mo. 567 ; Shackley v. North Missouri C. & M. Co., 50 Mo. 410; Calhoun v. Crawford, 50 Mo. 458.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited Widow Berny Donville v. Sun Mutual Ins. Co. of N. Y., 12 La. An. 259 ; 1 Pars, on Mar. Ins. 318, et seq. ; Edwards v. St. Louis Perpetual Ins. Co., 7 Mo. 382 ; New York Ins. Co. v. Roberts, 4 Duer (N. Y.), 141; E. Carver Co. v. Manufacturing Ins. Co., 6 Gray (Mass.), 214; Hartshorn v. S. & L. D. Ins. Co., 15 Gray (Mass.), —; Orient Ins. Co. v. Wright, 23 How. 401; Bank of United States v. Corcoran, 2 Pet. 121; 3 Kent’s Com. (6th ed.) 259, note d.</p> <p>cited: Pilkington v. National Bank Ins. Co., 55 Mo. 172 ; Hayward v. National Ins. Co., 52 Mo. 181; 1 Pars, on Mar. Ins., 590 ; 1 Pars, on Mar. Ins. 318, 319, 321. See Kennebec Co. v. Ins. Co., 6 Gray (Mass.), 204; Currier v. Ins. Co., 53 N. H. 538 ; Jones v. Ins. Co., 55 Mo. 342.</p>

<p>A negotiable note executed by A, B, and C, in favor of D, and by him indorsed for value to the plaintiff before maturity, having been protested for nonpayment, A went to the office of plaintiff and declared his readiness to pay his share of the note. The party in charge of the office stated his willingness to receive whatever A might pay, and refer the matter to plaintiff. A thereupon left a check for one-fourth of the note, or thereabouts, with instructions that it was only to be used in case of its being accepted as a satisfaction of A’s liability. B did very much the same thing. Plaintiff credited their checks on the note, and sued A and B for the residue. The Circuit Court gave plaintiff judgment for the unpaid balance. Held, that this was correct.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Empire Tr. Co; v. Boggiano, 52 Mo. 296 ; McAllister v. Reed, 8 Wend. 109 ; King v. Paddock, 18 Johns. 141; Wag. Stat. 1016, sec. 13; Floyd v. Willey, 1 Mo. 430, 643; Johnson v. Steader, 3 Mo. 359; Wag. Stat. 1014, sec. 6'; Gordon Bruner, 49 Mo. 573; Adams v. Campbell, 10 Mo. 724;: Hay v. Short, 49 Mo. 139 ; Dickson v. Hall, 14 Pick. (Mass.) 217; Goodyear v. Day, 1 Blatchf. 565; Curtis’ Law Pat. (4th ed.) 655, sec. 496.</p> <p>cited: Tarwater v. Hannibal & St. Jo. B. B. Co., 42 Mo. 193; Empire Tr. Co. vBoggiano, 52 Mo. 294.</p>

<p>Appeal from St. Louis Circuit Court</p> <p>cited: Western Ins. Co. v. Cupper, 32 Penn. ■St. 355; 1 Pars, on Mar. Ins. 321-323; 1 Ph. on Ins. 79-85, sec. 133; Carvers. Manufacturing Ins. Co., 6 Gray •(Mass.), 214; Harman «.Kingston, 3 Camp. N. P. 150; 2 Pars, on Con. 336-369 ; Hartshorn «. Ins. Co., 38 Mo. 238 ; Donville «. Sun Ins. Co., 12 La. An. 260.; Protection Ins. Co. v. Wilson, 6 Ohio, 553; City Bank «. Cutter, 4 Pick. (Mass.) 414; Loring «. Gurney, 5 Pick. (Mass.) 16; Bliven «. New England Screw Co., 23 How. 42; 1 Duer. on Ins. 195, 196-200 ; Long-«. Allen, 2 Park. (N. Y.) Hr. 797 ; Newman «. Cazalet, 2 Park. (N.Y.) Cr. 900 ; Strong -«. New York Fire Ins. Co., 11 Johns. 323 ; Depan «. Ocean Ins. Co., 5 Cow. 63 ; 1 Parks on Ins. 47, 48-101; Gregory ■«. Christio, 1 Park. (N.Y.) Cr. 104; Farquharson «.Hunter, 1 Park. (N. Y.) Cr. 105; Ongio «. Jennings, 1 Camp. N. P. 505 ; Tierney «. Etherington, 1 Burr. 348 ; Noble «. Kennoway, Doug. 510 ; Salvador v. Hopkins, 3 Burr. 1707 ; 1 Urquhart v. Barnard, 1 Taun. 450; Constable v. Noble, 2 Taun. 403; Morgan v. Atkyns, 3 Camp. N. P. 200; .Lethuther’s Case, 2 Salk. 443; Bond «. Gonsales, 2 Salk. 445 ; Warwick «. Scott, 4 Camp. N. P. 62; Kingston «. Knobbs, 1 Camp. N. P. 508; Gracie «. Marine Ins. Co., 8 Uranch. 75; - Ins. Co. «. Catlett, 12 Wheat. 386 ; Uoggshell «. American Ins. Co., 3 Wend. 283 ; Bramhall «. ¡Sun Ins. Co., 104 Mass. 510; Caldwell «. St. Louis Perpetual Ins. Co., 1 La. An. 85; Dows «. Howard Ins. Co., .5 Robt. (N. Y.) 473.</p> <p>cited : Ang. on Car. 187; Arnold on Ins. 178,179 ; Abb. on Ship. 448,449 ; 23 Mo. 553.</p>

<p>Error to St. Louis Circuit Court.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Moriss v. Martin, 25 Mo. •360 ; Pattison v. Blanchard, 6 Barb. 537 ; Case v. Brush, 2 Cai. (N. Y.) 293; Niven v. Spike man, 12 Johns. 401; Murray v. Bogert, 14 Johns. 318 ; Halstead v. Schmelzeh, 17 Johns. 80; Westerly v. Evertson, 1 Wend. 432; Atwater v. Eowler, 1 Hall (N. Y.), 180 ; Gridley v. Dole, 4 Comst. (N. Y.) 486; Hissrick v. McPherson, 20 Mo. 310; Ang. on Car., secs. 495, 503, and note; 1 Greenl. on Ev., secs. 27-171, 204, 205; Eves v. Miller, 19 Barb. 196.</p> <p>cited: Pars, on Part-271, and cases cited.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: Wilde v. Haycrolt, 2 Duv. (Ky.) 309; Michigan State Bank v. Peck, 28 Vt. 200; Rapelye v. Bailey, 5 Conn. 438; Hotchkiss v. Barnes, 34 Conn. 27 ; Grant v. Redsdale, 2 Har. & J. (Md.) 186 ; 2 Kent’s Com. (12th ed.) 557 ; 2 Pars, on Con. (5th ed.) 14; Central Savings Bank v. Shine, 48 Mo. 456, 467; Boehm v. Murphy, 46 Mo. 57.</p> <p>cited : Thompson v. Botts, 8 Mo. 710; Merritt v. Given, 34 Mo. 98; Moffat v. Conklin, 35 Mo. 455 ; Crole v. Thomas, 17 Mo. 329 ; Belt v. Goode, 31 Mo. 128 ; Medlin v. Brooks, 9 Mo. 106; Otto v. Bent, 48 Mo. 23; Williams v. Van Meter, 8 Mo. 339; Pond v. Wyman, 15 Mo. 175; Rogers v. McCune, 19 Mo. 557 ; State v. King, 44 Mo. 238; State v. Wissmark, 36 Mo. 592 ; Rankin v. Childs, 9 Mo. 673 ; Smith v. Anthony, 5 Mo. 504; Central Savings Bank v. Shine, 48 Mo. 461; Patterson v. Camden, 25 Mo. 13; St. Louis Gaslight Co. v. St. Louis, 46 Mo.'121.</p>

<p>1. After bond given by tbe defendant, under “An act concerning the duties of. sheriff and marshal,” etc., approved March 3,1855, the notice of plaintiff’s claim cannot be objected to for insufficiency.</p> <p>2. Testimony to show that a purchaser of personal property had ample means' to make the purchase may be wholly unnecessary in the absence of any attempt to show the contrary. But its admission cannot prejudice the. rights of the opposite party, and will not be error.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 1372, sec. 1; Stanton v. Ryan, 41 Mo. 510.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Washington Mutual Ins. Co. v. St. Mary’s Seminary, 52 Mo. 491; 2' Pars, on Notes & Bills, 565 ; Hunt v. Adams, 6 Mass. 519 ; Bowers v. Jewell, 2 N. H. 543 ; 12 Am. Law Beg. 627..</p> <p>cited : Woey v. Michael,, 33 Mo. 398 ; Owings v. Arnot, 33 Mo. 406; Presburg v.. Michael, 33 Mo. 524.</p>

<p>The functions of this court, under the Constitution, are mainly those of an appellate tribunal, and it will discourage the presentation to it of petitions asking for a remedial writ in cases which may involve the trial of an issue of fact.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Patch v. Phoenix Life Ins. Co., 44 Yt. 481; Pitt v. Berkshire Life' Ins. Co., 100 Mass. 500; Bliss on Ins. (2d ed.) 284-298, secs. 182-188 ; Baker v. Union Mutual Life Ins. Co., 43 N. Y. 283; Abb. Pr. 142.</p> <p>cited: Metcalf on •Con. 221; Gee v. Cheshire County M- Ins. Co., 14 Am. Law Rep. 706; Manhattan Life Ins. Co. v. Warrick, Ins. L. J., Oct. 1871; s. c., Gratt (Ya.), 614; St. Louis Mutual Life Ins. Co. v. Grigsby, 18 Bush (Ky.), 310; Dutcher v. Brooklyn Life Ins. Co., 4 Big. 665 ; Ohde v. North Western Life Ins. Co., Ins. L. J., Sept. 1873, p. 702; Story Eq. Jur. 1314, 1316; Froelich v. Atlas Life Ins. Co., 47 Mo. 406 ; Robert v. Ins. Co., 2 Disney (Ohio), 100; McMaster v. Ins. Co., 3 Ins. L. J. 273, N. Y. Ct. App.</p> <p>cited: May ■on Ins. 182; Waterfall v. Hudson, 2 Duer (N. Y.), 495; Pelly v. Royal Express Assn., 1 Burr. 341; Bayless v. Ringer, 7 Carr, 691; Hake v. Eddy, 15 Wend. 80 ; 2 Pars, ■on Con. 147; Paffy v. Greenwold, 2 Per. & Dav. 365; Hollins v. Palmer, 2 Bing. n. c. 466; Watkins v. Morgan,. 6 Carr, 661; Grigsby v. St. Louis Mutual Life Ins. Co., ■C. L. J., Feb. 19, 1875, p. 123 ; McAlister v. New England Mutual Ins. Co., 101 Mass. 560; Mutual Benefit Life Ins. Co. v. French, 2 Bin. S. C. 321; Pars, on Con. 141, et seq., .and authorities cited, 143 ; 3 Abb. Dig. 99.</p>

<p>Under a contract for building, the payments to be made in installments, ascertain parts of the work are finished, if the structure, while in progress, be destroyed by inevitable accident, the builder is entitled to be paid such installments- as are fully earned; but he has no claim for a proportional, part of the next installment, partially earned.</p>

<p>1. Though, in the absence of notice of the grant of letters, the special statute does not bar a claim against an estate, the general limitation law is a balr independently of notice.</p> <p>2. The grant of letters is a notorious act, and the administrator is liable to be sued from that date. Where suit has been commenced and the defendant dies, and the action survives,'if the suit be not recommenced against the executor or administrator within one year from the grant of letters, and the claim is then barred by the general statute of limitation, it is forever barred.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Filley v. Fassett, 44 Mo. 168; Taylor?;. Carpenter, 2 Sandf. (N. Y.) Ch. 617; s. e., Am. T.-M. Cas. 14, 82; Stone v. Colan, Am. T.-M. Cas. 115 ; Browne on Trade-Marks, 94, secs. 32, 35, 52, 66, 144; Howe v. Howe Machine Co., 50 Barb.; s. c., Am. T.-M. Cas. 421, 427; Croft v. Lay, 7 Beav. 89 ; s. c., Am; T.-M. Cas. 649, 651; Upton on Trade-Marks, 22, 23 ; Browne on Trade-Marks, secs. 39, 40, 41', 516, 395; Stonebreaker v. Stonebreaker, 33 Md. 252, 267 ; Beard v. Downs, 6 Ind. 200; Coats v. Holbrook, Am. T.-M. Cas. 30, and following; Bradley?;. Norton, Am. T.-M-. Cas. 338.</p> <p>cited: Bury v. Bedford; 10 Jur. (n. s.) 503; Hall v. Barrams, 10 Jur. (n. s.) 57 ; McAndrew v. Bassett, 10 Jur. (n. s.) 493; Wellington v. Fox, 3 Myl. & Cr. 338 ; 1 Story on Eq. (5th ed.), sec. 679 ; Alger v. Thacher, 19 Pick. (Mass.) 53; 17 Barb. (N. Y.) 608 ; Filley v. Fassett,-44 Mo. 168 ; Singleton v. Bolton, 3 Doug. 293; Bloss v. Bloomer, 23 Barb. 604; Faber v, Faber, 49 Barb, 357 ; Croft v. Day, 7 Beav. 66.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Gillinswaters v. Gillinswaters, 28 Mo. 61Twyman v. Twyman, 27 Mo. 383; Messenger v. Messenger, 56 Mo. 329 ; Hoffman v. Hoffman, 43 Mo. 547 ; Kempff v. Kempff, 34 Mo. 211; Bowers v. Bowers, 19 Mo.,352; Harper v. Harper, 29 Mo. 301; Hooper v. Hooper, 19 Mo. 355; Doyle v. Doyle, 26 Mo. 545; Cheatham v. Cheatham, 10 Mo. 296 ; Anderson v. Bank of State of Missouri, 1 Mo. 244 ; Kenly v. Kenly, 2 How. (Miss.) 751; Fulton v. Fulton, 7 Geo. (Miss.) 154; Holmes v. Holmes, Walk. (Miss.) 474; Walker v. Walker, 11 Geo. (Miss.) 154; Wag. Stat., sec. 2, p. 533 ; Wag. Stat., sec. 8, p..535 ; Wag. Stat., sec. 9, p. 535 ; Bill of Bights and Const., Art. 17, Wag. Stat. 36 ; Practice Act, Wag. Stat. 1040; Stat. of Miss., sec. 6, 1824.</p> <p>cited: Hooper v. Hooper, 19 Mo. 256; May v. May, 62 Penn. 206; Boss v. Boss, 9 Ark. 507; Baily v. Baily, 97 Mass. 375; Briggs v. Briggs, 20 Mich. 34; 1 Bishop- on Mar. & Div. 55, 813; 2 Bishop on Mar. & Div. 657, 658; Brown v. Brown, 1 P. & D. 46 ; Bowers v. Bowers, 19 Mo. 351; Camp v. Camp, 18 Texas, 528; Malione v. Mahone, 15 Cal.; Bobbins v. Bobbins, 100 Mass. 150.</p>

<p>.1. In an action on a bond, executed in an injunction suit in the Circuit Court of the United States, conditioned to pay all damages or costs that may be occasioned by the injunction, the word “ damages ” will be taken to include reasonable counsel fees actually paid.</p> <p>2. Such a bond must be interpreted, as any,other contract, by the rules determined by the Supreme Court of Missouri; although a different interpretation may have been applied in cases by the Supreme Court of the United States. The rulings of the former are not merely authoritative; they are binding law in this State.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Chouteau et al. v. O. D. Filley, 50 Mo. 174 (begin on p. 177) ; State of Missouri v. Bank of Missouri, 45 Mo. 538; Pars, on Notes & Bills, 91; Story on Ag. (8th ed.) 185, sec. 147 ; Wood v. Good-ridge,'6 Cush. (Mass.) 117 ; Story on Ag. (8th ed.) 256, sec. 210; Back v. Ayman, 3 Hill (N. Y.), 262; Stiner v¿ Taylor, 3 Hill (N. Y.), 279.</p> <p>cited: IPars. on Notes & Bills, 108, 142.</p>

<p>Upon appeal from a justice of the peace to the Circuit Court, where notice of the appeal must be given to the appellee, an acknowledgment of notice to take depositions in the cause, with waiver of dedimus by the appellee, will not suffice as a waiver of notice of the appeal. (Gantt P. J., dissenting.)</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Bloebaum v. Slattiry’s Admr., 56 Mo. 183; Dilworth v. McKelvey, 30 Mo. 149.</p> <p>cited: State, to use, ■v. Platte et al., 52 Mo. 466.</p>

<p>Appeal from St. Louis Circuit Court. ■</p>

<p>1. The registered owner is not necessarily the sole legal owner of a vessel. To-make the register evidence of property, it must be shown that it was made with the assent of the party sought to be affected by it.</p> <p>2. The mere fact of part ownership of a boat does not make the part owners.copartners.</p> <p>3. The master of a boat, in ordering supplies, is the agent, not of the owner of the boat, as such, but of those who have control of the vessel and the right to receive her freight; and mere ownership of a vessel, without any right to the profit or usufruct, will not of itself make one liable for supplies furnished to her.</p> <p>4. One who has loaned money to a boat, and has a claim, to some extent, upon her earnings for repayment, does not, by these facts, become liable for supplies furnished to her, when these facts are known only to the owners, and himself.</p>

<p>-A. furnace not fastened down, but set upon a stand of briclc-work, and which could be carried out without disturbing the ceiling, walls, or floor of the house, even though a fixture as between vendor and vendee, is not a fixture within the meaning of the mechanics’ lien law.</p>

<p>Appeal from St. Louis Circuit Court.'</p> <p>cited: Hoifman v. Western Mutual Ins. Co., 1 La. An. 216.</p> <p>cited : Marion v. Ins. Co., 35 Mo. 148 ; Wells v. Halpin, 59 Mo. 93.</p>

<p>1. An assignment of a chose in action to a creditor, expressed to be to secure the indebtedness due, and interest up to a future date, is not an extension of time which will release the sureties of the debtor.</p> <p>2. Sureties will not be released unless the alleged extension of time is made by a binding agreement between the debtor and creditor, based on a consideration sufficient to support a contract.</p>

<p>Where children of an intestate, who have received advancements, refuse to-come into hotchpot, they are to bo disregarded in making an order of distribution of the estate descended.</p>

<p>Tn a suit for breach of warranty of soundness, in the sale of a horse, it must be shown that the disease existed at the date of the sale.</p>

<p>Appeal,from St. Louis Circuit Court,</p>

<p>By a policy of insurance, dated March. 5, 1870, on. the life of Joachim Gaterman, he was to pay $70 on the day of its issue, and a like sum annually for ten years; in consideration whereof the insurance company agreed to pay to him, should he be alive in 1896, or, if he were then dead, to his son, $1,000. It was provided that a failure to pay any of the annual premiums should avoid the policy. The assured died on March 11, 1873, the premium due on March 5, 1873, being unpaid. It was tendered on the 7th of March, but the assured being then notoriously moribund, it was refused. Held, that the forfeiture was beyond remedy.</p>

<p>It is essential to the idea of a trade-mark, by which any particular manufae* tured article is designated, that the mark should be annexed to, or stamped, printed, carved, or engraved upon, the article as the same is offered for sale; and, if the article has not been thus distinguished, its manufacturer cannot be said to have appropriated any .particular trademark.</p>

<p>A, and B his wife, and A as trustee of B, were parties named as grantors in a deed of trust conveying certain property belonging to A, and also certain property belonging to the trust estate of B, to secure the payment of a note for money borrowed by A from O. This deed was executed by “A, trustee of B,” and also by B, and was acknowledged by A and wife as •their act and deed, and also by B herself in such manner as not only to refer to her trust estate, but to the lot in which she had only a contingent right'of dower. Held, 1. That A is estopped to say that the manner of setting his band and seal to this instrument was intended to give it an operation less broad than its purport. 2. That, after delivering this instrument to O, as his deed, duly acknowledged and certified as such, and receiving C’s money therefor, it would be inequitable to permit him to suggest any want of formality in its execution.</p>

<p>1. Plaintiff took out afire policy, in the offi.ce of defendant, on a dwelling-house. One of the conditions of insurance was that, if the house should become vacant and unoccupied, the policy should be void. The house was occupied when insured, but subsequently became vacant, and while vacant was burned. Held, that the underwriter was discharged.</p> <p>2. The Court of Appeals cannot order to be certified up, for its inspection, an original paper used as evidence in the court below.</p>

<p>1. The deceased husband of plaintiff -was a member of tbe Shamrock Benevolent Association, and died in 1873, leaving a will by which he bequeathed his personal property and his benefits from the association to his sister. The benefits of the association were, by its constitution, devoted to the-widow of a deceased member, or to his other legal representative in the order named. Held, that the right of the widow thereunder was superior-to that of the legatee of the deceased member.</p> <p>2. In such a case, adultery by the widow will create no forfeiture.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 2 Wag. Stat. 1046, sec. 45; Carroll v. Corn, 1 Mo. 161; 2 Greenl. on Ev., secs. 155, 161, 162; Story on Bills, sec. 451; 2 Pars, ■on Notes & Bills, 119;' Sohe v. Palmer, 28 Mo. 539, last par. on 542; Story on Ag. (8th .ed.), secs. 99, 78, and ■cases cited; Story on Ag., sec. 87; Beach v. Vandewater, 1 Sandf. (N. Y.) 265; Paley on Ag. 278; Sweeting v. Pearce, 9 C. B. (n. s.) 537; Graham v. United States Savings Assn., 46 Mo. 186 ; Filley v. Gilman, 2 N. Y. (Sup. Ct.) 339; Hunt v. Chapin, 6-Lans. (N. Y.) 139; Davidson v. .Stanley, 2 Man. & G. 721; Hawtayne v. Bourne, 7 M. & W. 595 : Hoggus v. Snaith, 1 Taun. 347; Fenn v. Harrison, 3 T. R. 757 ; Chouteau v. Filley, 50 Mo. 174.</p> <p>cited: 2 Greenl. on Ev., sec. 65 ; Story on Ag., sec. 86,</p>

<p>1. When articles of personal property are left by their owner in the hands of another, or subject to his control, with instructions as to their disposition, although the latter may decline the trust altogether, yet, if he accepts it, he will be responsible for a loss of the property caused or negligently permitted by him.</p> <p>2. No other error appearing, a judgment will not be reversed because an incompetent witness was permitted to testify to a fact which was also proved by a competent witness.</p> <p>3. A party at whose instance an objectionable instruction was given cannot complain of its supposed inconsistency with a proper instruction given for the adverse party.</p>

<p>It is not error to instruct a jury directly upon the legal effect of facts which are admitted, or which are so clearly proved, without countervailing testimony, as to be beyond dispute.</p>

<p>Error to St. Louis Circuit Court...</p> <p>cited: Jackway ■v. Barrett, 38 Vt. 326 ; Goenew v. Schroeder, 8 Minn. 387.</p>

<p>The rule by which personal property, when lost or stolen, may be reclaimed' by the owner, under all circumstances, does not apply to negotiable securities. Upon grounds of public policy a bona fide purchaser of negotiable paper, for value, without notice, becomes the owner of the same, notwithstanding any defect in the title of the person from whom he acquired it. '</p>

<p>1. In the absence of proof to the contrary, the laws of another State will be presumed to be the same as our own.</p> <p>2. The record of an imperfectly acknowledged chattel mortgage imparts'ne notice.</p> <p>•3. The purchaser of a chattel from a mortgagor in possession will hold against a mortgage not sufficiently acknowledged, though it be copied and indexed in the office of the recorder of deeds, and though the purchaser have actual knowledge of its existence.</p> <p>■4. The value of a chattel in dispute'being admitted by the pleadings, nothing appears to warrant an interference with the discretion of the trial court in refusing to allow an amendment in that particular at the close of plaintiff’s case.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited; Curtiss v. Miller, 17 Barb. 477, 479, 480; Sheppard v. Spaulding, 4 Mete. 416; Taylor’s L. & T.,'sec. 518; Vin. Abr., ■title Surrender (A 2), sec. 7; Com. Dig., title Surrender •(L) ; Shep. Touch. 300, 301; 3 Washb. on Beal Prop. (3d ed.) 474; Bain v. Clarlt, 10 Johns. 424; Sperry v. Miller, 4 Seld. (N. Y.) 336 ; Meyer v. Lowell, 44 Mo. 328 ; Lawrence v. Fox, 20 N. Y. 268 ; Page v. Becher, 31 Mo. •466 ; Manning et al. v. Frazer’s Admr., 27 Mo. 420.</p> <p>cited: Taylor’s L. & T. (2d ed. 1852), secs. 372, 373, 516; O’Fallon v. Nicholson, 56 Mo. 240; Blossom v. Van Court, 34 Mo. 394; 5 Taun. 518; 1 Greenl. on Ev. (2d ed.) 55, 522, 523, 528, 531; 2 Ph. onEv. (4 Am. ed.) •34, 35, note 268, p. 37 ; Arnold v. Arnold, 17 Pick. (Mass.) 8, 9, 13; Harvey v. Richards, 2 Gall. 229 ; Burr v. Bigler, 16 Abb. (N. Y.) Pr. 183; Davis w. Talcott, 12 N. Y. 188; Morgan v. Plumb, 9 Wend. 293 ; Colburn v. Woodworth, 31 Barb. 381; Green v. Clark, 5 Den. (N. Y.) 505; Bank of Missouri v. Benoist et al., 10 Mo. 524 ; Felton v. Dickinson, 10 Mass. 290; Arnold v. Lyman, 17 Mass. 404; Meyer v. Lowell, 44 Mo. 330 ; Flanigan v. Hutchinson, 47 Mo. 239 ; Rev. Stat. 1845, p. 927, sec. 1; Session Acts 1865, p. 112, secs. 1, 2, p. 954, sec. 4 ; Session Acts 1867, p. 157, sec. 3 ; State v. Clerk of Jefferson County, 41 Mo. 588 ; City of St. Joseph v. Hannibal & St. Jo. R. R. Co., 39 Mo. 477 ; State v. Dalle, 48 Mo. 282 ; Egyptian Lever Co. v. Hardin, 27 Mo-497 ; Northern Liberties v. St. John’s Church, 1 How. 10 y St. Louis Building and Savings Assn. v. Lightner, 42 Mo-425 ; Wag. Stat. 1159 ; City of Carondelet v. Picot, 38 Mo-130 ; Taylor’s L. & T. (6th ed.), sec. 398 ; Mayor and Council v. Cashman, 10 Johns. .96, 97; Oswald v. Gilbert, 11 Johns. 443; Wilkinson v. Libbey, 1 Allen (Mass.), 375;. Port v. Kearney, 2 N. Y. 396; Shepardson v. Elmore, 19' Wis. 428 ; Bleeker v. Ballou, 3 Wend. 263, 266; Astor v. Miller, 2 Paige (N. Y.) Ch. 68, 70, 74; Palmer v. Warren Ins. Co., 1 Story, 364; Webb v. Perpetual Ins. Co., 14-Mo. 3.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: ■ 1 Pars, on Con. ■(.5th ed.) 475 ; 2 Woodb. & M. 359 ; 1 Pars, on Con. (5th ed.) 494; Erwin v. Bank of Kentucky, 5 La. 4; Fitzgerald v. Hayward, 50 Mo. 516.</p> <p>cited: Serugham v.. Wood, 15 Wend. 546 ; Blanchard v. Blackstone, 102 Mass. 347; Yerplanck v. Sterry, 12 Johns. 546 ; Baldwin v. Chouteau Ins. Co., 56 Mo. 153; Sedg. on Dam. (6th ed.) 75,. et seq.; 3 Pars, on Con. (5th ed.) 184, note y; Fitzgerald! v. Hayward, 50 Mo. 517; Myers v. N. Y. & R. Co.,. 2 Curt. 38; Hughs v. Hood, 2 Curt. 352; Waters v-Tower, 20 Eng. Law '&’Eq. 410; Sedg. on Dam. (6th ed.) 79.</p>

<p>1. Where a false statement as to the value of land, which excludes the possibility of honest error in judgment, is relied upon by a contracting party, and is the proximate cause of the transaction .which'results in damage to , plaintiff, plaintiff is entitled to recover.</p> <p>2. A false statement as to the value or quality of land may be fraudulent in , law, though made in good faith.</p> <p>3. Where the question is as to real estate, and the facts are peculiarly within the knowledge of defendant, and plaintiff relied on his statements, the negligence of plaintiff in making inquiry will not excuse the defendant.</p> <p>4. Where counsel are sent out of the court-room to argue the cause to the jury out of the presence of the judge before whom the cause was tried, if improper remarks are made to the jury on either side, calculated to prejudice the jury, a new trial should be granted, on the application of the party aggrieved, unless it clearly appears that no evil result was produced by these remarks.</p> <p>6. The fact that the party aggrieved consented to argue the cause out of the presence of the court, when requested so to do by the judge trying the ‘ cause, does not constitute a waiver of his right to have the argument of the cause conducted In the presence of the court.</p> <p>.6. It is error for a judge to absent himself during the closing argument of the cause before the jury.</p>

<p>A pardon for one oifense is no ground for discharge from indictment for a separate and distinct oifense, committed at another time, in another county.</p>

<p>A conveyance made with the intent, in good faith, of paying one or more creditors, though its natural and necessary effect be to hinder and delay other creditors, is not, therefore, void in Missouri.</p>

<p>Appeal from St. Louis Circuit Court.</p>

<p>1. A judgment in a proceeding for unlawful detainer may be assigned.</p> <p>2. M. obtained judgment against K., which judgment he assigned to L.; theassignee sued the sureties on the appeal bond; one of the sureties offered to offset, in this suit, a judgment against the assignor of the bond sued on, owned by him. Held, that the suit on the appeal bond was for unliquidated damages, and a set-off was not admissible.</p> <p>3. On motion for rehearing, this court will not notice an informality in the judgment which does not affect the substantial rights of the parties.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Cabanué v. Walker, 51 Mo. 286 ; Holliday v. Jones, 59 Mo. 482 ;-v. Pacific R. R. Co., 45 Mo. 237 ; Miller v. O’Brien, 9 Bank. Reg. 26.</p> <p>cited : Bradley v. Holloway, 28 Mo. 150; St. Louis & C. R. R. Co, ■v. Castello, 30 Mo. 124; Hathaway v. Brown, 18 Minn. •414; Story on Sales, secs. 232-239 ; Baker v. Block, 30 Mo. 225 : Beck v. Pollard, 55 Mo. 26.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 2 Wag. Stat. 1022, sec. 51; Rathwell v. Morgan, 37 Mo. 107; Dyer’sAdmr. v. Murdock, 38 Mo. 224; Campbell v. Wolf, 33 Mo. 460 ; Can v. Waldron, 44 Mo. 395 ; Whrendorff v. Whitaker, 1 Mo. 206 ; Tate et al. v. Evans, 7 Mo. 420 ; Swearingin v. Knox, 10 Mo. 31; Pope v. Kisley, 23 Mo. 185 ; Lane v. Palmer, 28 Mo. 539 ; Shultze v. Baily, 40 Mo. 69 ; Kelley v. Fenee, 57 Mo. 490 ; Kline v. Keyes, 17 Mo. 326.</p> <p>cited: Wag. Stat. 1036, sec. 19, p. 1034, secs. 3, 5, p. 1021, sec. 48; 1052, secs. 4, 5 ; Cushman v. Anderson, 26 Mo. 67 ; Robinson v. Lawson, 26 Mo. 69.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 1034, sec. 2; State v. Ambs, 20 Mo. 214; Fowler v. Sculley, 72’ Penn. 456 ; Lyon v. Strong, 6 Vt. 219 ; Finney v. Turner, 10 Mo. 205 ; Mete. on.Con. 254, et seq.; Downing v. Ringer, 7 Mo. 585 ; 2 Kent’s Com. 466.</p> <p>cited: Fritch v.-Iieisler, et al., 40 Mo. 556 ; Kaufman v. Hamm, 30 Mo. 388 ; Wetzell v. Waters, 18 Mo. 396 ; Camfax v. Chapman, 7 Mo. 175; Page v. Freeman, 19 Mo. 421; McNeely v.. Hunton, 30 Mo. 332; Perrin v. Clafiin, 11 Mo. 13; Allred v. Bray, 41 Mo. 484; McManus v. Lee, 43 Mo. 206 ; Belkin; v. Hill et al., 53 Mo. 492 ; Goff v. Mulkolland, 33 Mo. 203 Miller v. Whitson, 40 Mo. 97; Smith v. Mathews, 6 Mo. 600; Boggs v. Lynch, 22 Mo. 563; Coldwell v. Dixon, 29' Mo. 227.</p>

<p>Upon a judgment rendered by a justice, and appeal to tbe Circuit Court, not-taken on the day when judgment was given, it is essential that notice of' tbe appeal be given before the second term thereafter. If appellant fail, to do this, the judgment must be affirmed.</p>

<p>A justice of the peace in St. Charles county has not jurisdiction of a suit to recover a horse alleged to be worth $75, and $50 for the detention of it.</p>

<p>A person domiciled in Missouri may spend the greater part of a year, or series of years, at another place without thereby forfeiting his domicile. He does hot forfeit his domicile without an intention, definitely formed, to abandon his original domicile andtahe up another; and until this intention appears, either directly or by some act inconsistent with the retention of the old domicile, the presumption of the continuance of it is not overcome.</p>

<p>Where the devisee under the -will sued the executor for the recovery of rents-of the estate, by him collected, the estate being unsettled and .possibly in. an insolvent condition, held, that there could be no recovery.</p>

<p>In the absence of fraud or collusion, payment, or a clerical error in the entry, a judgment against the principal, where the surety has been a party defendant and has filed an answer, will be conclusive against such surety, though the suit was dismissed as to him before the trial.'</p>

<p>.A mortgagee of personal property, having brought an action of replevin against a second mortgagee who was in possession, the defendant brought into court the money due on the first mortgage and tendered it to the plaintiff. He did not plead his second mortgage, hut relied on his possession and this tender. The plaintiff replied that since the commencement of the suit he had sold the property, under his first mortgage, to a third person. Held, 1. That the first mortgagee (plaintiff) was justified in replevying the property. 2. Upon the payment or tender of the debt, to secure which the mortgage was given, he was compellable to give up the property. 3. If before such tender he had, under the terms of the mortgage, sold the property, he will he excused for refusing the tender and failing to give up the property, but the burden of showing that he has so sold it lies on him, and, in the absence of all evidence on this subject, the court must presume that no such sale was made.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Clark v. Kitchen, 52 'Mo. 316 ; Burt v. Dewey, 40 N. Y. 283; Curtis v. Groat, 6 .Johns. 168 ; Osterhout v. Roberts, 8 Cow. 43 ; Sanderson v. -Coldwell, 2 Aik. (Vt.)203; Jones v. McNeil, 2 Bailey (S. -C.), 466 ; Sharp v. Gray, 5 B. Mon. (Ky.) 4; Greenl. onEv. (2d ed.) 225 ; Stark v. Kenan, Exr., 11 Ala. 818 ; Pars, on •Con. (2d. ed.) 644; Breed v. Hurd, 6 Pick. (Mass.) 356; Hike v. Clark, 55 Mo. 105 ; Campbell et al. v. Johnson, 44 Mo. 247 ; Speck v. Riggins, 40 Mo. 405 ; Shephard v. Hamp•ton, 3 Wheat. 200; Logan v. Small, 43 Mo. 254.</p> <p>cited: 1 Wag. Stat. .-■347, sec. 34; Routhel v. Dezetter, 43 Mo. 145; Clark v. Moody, 17 Mass. 248; Bank of Missouri v. Benoist, 10 .Mo. 521; Carters. Feland, 17 Mo. 383.</p>

<p>Appeal from St. Louis Criminal Court.</p> <p>cited: 4 Bla. Com. 323; 1 Bishop on Cr. Proc. 731, 956; Lazer’s Case, 16 Howell’s St. Tr. 94, 100; Bex v. Waite, 1 Leach, 28; 1 Greenl. on Ev. 102; Grant v. Thompson, 4 Conn. 203 ; Kinnie v. Kinnie, 9 Conn. 102 ; McLean v. The State, 16 Ala. 680; United States v. Sharp, 1 Pet. C. Ct. 118 ; State v. Mix, 15 Mo. 153 ; State v. Mary, 5 Mo. 81; Horldns v. The State, 11 Ga. 96 ; State v. Klinger, 43 Mo. 133 ; Commonwealth v. Eddy, 7 Gray (Mass.), 583.</p>

<p>An appeal cannot be taken from a judgment sentencing the defendant to death, where the sentence has been executed.</p>

<p>To an action by the payee against the maker of a promissory note, the defendant pleaded that the plaintiff had made to him a note for the same amount, conditioned for the conveyance of a particular tract of land, which conveyance had never been made. Plaintiff replied that a misdescription existed as to this tract of land; that the tract of land intended was another, for which he had made and tendered a deed which defendant refused to receive. The cause was tried by the court sitting as a jury which found for the plaintiff. No instructions were asked on either side. No error appears, and the judgment is affirmed.</p>

<p>1. An award of arbitrators will not be set aside merely because it is against the law and the evidence.</p> <p>:2. The fact that the verdict is totally unsupported by evidence is not, of itself, evidence of partiality which will warrant the setting aside an award of arbitrators.</p> <p>•3. It is not error for the trial court to look into the question as to whether there is evidence to support the award of arbitrators.</p>

<p>Appeal from St. Louis Circuit Court. .</p> <p>cited: Rickey v. Dameron, 48 Mo. 61; Kuntz v. Temple, 48 Mo. 71; Chitty on Bills, 227 ; Story on Prom. Notes, secs. 121, 133, 467, n 3, 474, n 2; Herring v. Woodhull, 29 HI, 92; Schmidt v.. 'Schmaelter, 45 Mo. 502 ; Yane v.-Richardson, 36 Mo. 130; Cook v. Renick, 19 111. 598 ; Ivory v. Bank of Missouri, 36 Mo. 475 ; Turk v. Stahl, 53 Mo. 437 ; Deitz v. Corwin, 35 Mo. 376 ; Merchants’. Bank v. Easley, 44 Mo. 186 ; Stagg v. Linnerfelser, 59 Mo-. 336 ; Tenny v. Prince, 4 Pick. (Mass.) ■385; Champion et al. v. Griffith, 13 Ohio, 228; Robinson v. Abell et al., 17 Ohio, 36; Seymour v. Mackey, 15 Ohio .’St. 515; Union Bank v. Willis, 8 Mete. (Mass.) 504; Powell et al. v. Thomas, 7 Mo. 441; Albridge v. Turner, 1 ’Gill & J. (Md.) 427 ; Story on Prom. Notes, secs. 458, ■460; Rucker et al. v. Robinson et al., 38 Mo. 154; McCune v. Belt, 38 Mo. 282; Doyle v. Doyle, 97 Mass. :208; Newsam v. Finch, 25 Barb. 175; German Savings Bank v. Helmrick et al., 57 Mo. 100; Hosea v. Rowley, 57 Mo. 357 ; Hotchkiss v. Mosher, 48 N. Y. 478 ; Hanney ■y. Pell, 3 E. D. Smith (N. Y.), 432; Edw. on Ref. 152; Lewis v. Harvey, 18 Mo. 74 ; Baker v. Black, 30 Mo. 225 ; Beidman v. Gray, 35 Mo. 282; Deitz v. Corwin, 35 Mo. 376 ; Buckner v. Liebig et al., 38 Mo. 188 ; Bunce v. Beck, 43 Mo. 266; Western Benevolent Assn. v. Wolff, 45 Mo. 104; Napper v. Blank, 54 Mo. 131; Moies v. Bird, 11 Mass. 436 ; Otto v. Bent, 48 Mo. 23.</p> <p>cited : Henery v. Marsberry, 57 Mo. 399; Miller v. ■Mellier, 59 Mo. 388; Weller v. Ranson, 34 Mo. 362 ; Ferguson v. Turner, 7 Mo. 497; Globe Ins. Co. v. Carson, 31 Mo. 218; Headlee v. Jones, 43 Mo. 235 ; Nichols v. Douglas, 8 Mo. 49 ; Ford v. Beard, 31 Mo. 459 ; Driskell v. Matur, 31 Mo. 325 ; Hawkins v. Redenham, 13 Mo. 125; Hose v. Rowley, 57 Mo. 357.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 1 Pars, on Mar. Ins. 45; 2 Pars, on Mar. Ins. 442 ; Ph. on Ins., sec. 412; 2 Pars, on Con. 442; Wise v. St. Louis Ins. Co., 23 Mo. 84; De Forrest v. Fulton Ins. Co., 1 Hall (N. Y.), 84-135 ; Walters v. Monarch Life Ins. Co., 34 Eng. Law & Eq. 116 ; Kearney v. Sunderland Ins. Co., 6 Eng. Law & Eq. 312; Farrow v. Commercial Ins. Co., 18 Pick. (Mass.) 53; ■Griffin v. Pugh, 44 Mo. 328 ; Meigs v. Lowell, 10 Mo. 538 ; Day v. Patterson, 18 Ind. 114 ; Bird v. Lewis, 7 Ind. 615; •Cloud v. Norman, 18 Ind. 44; Marchington v. Vernon, 1 B. & P. 101; Hall v. Marston, 7 Mass. 575; Sargeant v. Morris, 3 B. & A. 276; Euan r. Gardner, 1 Wash. 145; Maryland Ins. Co. v. Graham, 4 Har. & J. (Md.) 62; -Skurver v. Stocks, 4 B. & A. 437 ; Felton v. Dickinson, 10 Mass, 287.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Moffatt v. Conklin, 35 Mo. 453 ; Camp v. Huían, 43 Mo. 591; Wag. Stat. 1040, sec. 11; 3 Kent’s Com. (10th ed.) 27; Freemans. Bloomfield, 43 Mo. 391.</p>

<p>1. A donatio mortis causa, consummated by delivery, conveys to the donee the legal title to the money or property given, for the purposes indicated by the donor; and such legal title will be enforced by courts of justice.</p> <p>2. If such money or property passes into the hands of a donee, charged with a trust, and he promises the beneficiary to perform the trust, performance of ' such promise may be compelled by suit at law.' If no such promise be made, performance of the trust may be enforced in equity.</p>

<p>1. An action for personal trespass "is properly brought against both husband and wife, when committed by the wife.</p> <p>2. Where it is proved that the defendant intentionally threw vitriol upon the plaintiff, a verdict of $1,000 will not be considered excessive, however little the plaintiff may have been injured thereby. It is a case for punitive damages.</p>

<p>Appeal from St. Louis Criminal Court.</p> <p>cited: 1 Story on Con.,, sec. 891; Pike v. Megouin, 44 Mo. 491, 499.</p> <p>cited : Fowler v. Pierce, 2: Cal. 172; People v. Hatch, 19 111. 283.</p>

<p>1. Under an act of the General Assembly, approved March 13,1867, entitled “An act to enable the city of St. Louis to procure a supply of •wholesome water,” the board of commissioners thereby created was authorized to require the exclusive use by consumers of a particular kind of hydrant, which the board considered best adapted to promote convenience oi supply with the least possible waste. Such a requisition was a reasonable exercise of the discretion committed to the board in its control of the water-works, and should not be interfered with by the courts.</p> <p>'2. Immaterial issues properly refused by the court.</p> <p>;3. In a mandamus proceeding, where the only issue raised is one as to the extent of authority conferred by law on an official body, neither party has a right to demand a jury.</p> <p>4. Where the fact's admitted by a failure to reply cannot, if true, entitle the-adverse party to the relief sought, no judgment can be entered for want of" a reply.</p> <p>5. The right of the board of water commissioners to make proper regulations concerning the use of water cannot be affected by any considerations-with reference to the restraint of trade.</p>

<p>1. A return of the marshal, in proceedings before the land commisioner, that he “executed the writ by having had personal service on the following named defendants,” naming them, is insufficient.</p> <p>2. It should appear on the face of the proceeding that the land commissioner examined the jurors and found them disinterested and qualified according to law.</p> <p>3. In proceedings to open a street, a jury cannot arbitrarily select a portion of a street, or of the city, as a taxing district, and assess benefits against it, unless, perhaps, in the case of abutters. Such action is unconstitutional.</p> <p>4. After a rehearing is had, an appeal may be taken without a motion for a new trial haying intervened.</p>

<p>Error to Lincoln Circuit Court.</p> <p>cited: State v. Grace, 26 Mo. 87; State v. Drury, 36 Mo. 281; Frost v. Winston, 32 Mo. 189.</p>

<p>A sued B in the St. Louis Circuit Court. He became nonsuit with leave, etc., and the general term set aside the non-suit. B appealed to the Supreme Court, hut failed to give the bond required by section 2, p. 17, Acts of 1869. Held, that the Circuit Court had no power to grant an appeal without the appellant giving such bond.</p>

<p>1. A person not in actual possession -when the trespass was committed cannot maintain an action for trespass on real .estate.</p> <p>2. It is error to instruct a jury as to exemplary damages where there is no evidence of malice or oppression.</p> <p>3. In an action by a married woman and her husband for trespass to realty, an answer filed by the trustee of the separate estate of the plaintiff, in another proceeding for possession of the same premises, is not competent evidence for plaintiff.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 1 Pars, on Bills (ed.. 1865), 258, 278; 2 Pars, on Bills, 42, 43, 44; Bayley on Bills (ed. 1836), 104, and note 12; Goodman v. Simonds, 20 Haw. 343; Tuntal v. Barandon, 8 Taun. 100, affirming-Collins v. Martin, 1 Bos. & Pul. 648; Fox on Con., 122 ;- -2 Saunders on PI. (ed. 1837) 670, 672, 673; 1 Stephen’s-N. P. 332, side page 333 ; Bay v. Coddington, 5 Johns. Ch. 54; Morrison v.' McCartney, 30 Mo. 183; Lester r.. Guión, 8 Bush (Ky.), 357; Pacific Law Rep., March 5,, 1872 ; Peacock v. Rhodes, Dougl. (Mich.) 611, 633; Cook v. Jadis, 5 B. & Ad. 909.</p>

<p>1. Mandamus is not the proper remedy for the correction of a judicial error.</p> <p>'2. An alternative writ of mandamus, to compel a trial court to enter final judgment in accordance with the mandate of an appellate court, will not be granted where the record does not disclose what the mandate of the appellate court was.</p>

<p>1. A demurrer to an answer will be sustained where the answer shows a defense which is void under the statute of frauds.</p> <p>2. Partial or total payment of the consideration is not such a performance as will take a contract out of the operation of the statute of frauds.</p> <p>3. It is proper to treat a defendant liable simply for goods sold and delivered, though it appears in evidence that there was a condition of defeasance to the sale of which he did not avail himself.</p>

<p>1. Affidavits in support of a motion to set aside a verdict on the ground of surprise will be disregarded when it appears that the party filing the affidavits anticipated the very evidence by which he alleges he was sur-, prised.</p> <p>2. "When appeals are taken for delay only, damages may be given in actions ex delicto in form, on affirming judgments.</p> <p>^3. When a jury is examined on voire dire, the mode of examination is referred almost exclusively to the discretion of the trial court.</p> <p>4. An officer serving a civil process has no right to enter a private house forcibly, against the will of the owner or occupant, and, when presenting himself at such house, it is his duty to answer fully and civilly any question as to the character in which he acts, especially if he wears no badge, and to refuse to answer such questions may make him liable to be treated as a trespasser.</p> <p>5. The principal constable is liable for the acts of his deputy done under color of 'his authority.</p> <p>6. It is the duty of the judge of the nisi prius court to preside when counsel address the jury upon the evidence admitted; and whenever, in the absence of the judge, any impropriety or irregularity is committed by the party in whose favor the verdict is rendered, such verdict should be set aside.</p> <p>7. It is error to allow counsel to read to the jury, in the closing address, anything except the record, the evidence, and the instructions given in the course of the trial, or to refer to, and comment upon, an instruction offered r by the other party and refused.</p> <p>8. When the court, at the close of the testimony, proposes to counsel that they and the jury go to another room to argue the cause, the omission of a party'to dissent from such proposal will not prejudice him.</p> <p>9. When error appears in a record, and there is a possibility that the appellant has been prejudiced by it, the appellate court will reverse the judgment.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 641-657, cli. 61; High on Rem. 184, sec. 241; State v. Bombaur, 44 Mo. 590.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 215, sec. ,7, p. 216, secs. 10, 11, 12, 15; Bangor Bank v. Hook, 5 •Greenl. (Me.) 176; Wood v. Watson, 53 Me. 300; Clark ■v. Schneider, 17 Mo. 295; Farrell v. Fritchle, 30 Mo. 190; Puckett v. Redman, 3 Miss. (2 How.) 688.</p> <p>cited: Bangor Bank v. Hook, 5 Greenl. (Me.) 174; Warren v. Coombs, 20 Me. 139; Bayley on Bills (2d Am. ed.), 387; Page, Bacon & ■Co. v. Warren et al., 4 Cal. 395 ; Kearner i>. Kennedy et al., •4 Har. & J. (Md.) 240; Johnson v. Frank, 16 Ark. 199 ; Phipps et al. v. Addison et al., 7 Blackf. (Ind.) 375; •Crawford v. Walcott, 11 Ohio, 145 ; Kendricks v. Lomax, 3 Comp. & J.; Bowers et al. v. Stoddard, 10 Mete. .(Mass.) 375.</p>

<p>1. It is not competent to show a parol modification of a written contract after its terms have been broken, and without any consideration to support the alleged new agreement.</p> <p>2. Time is not necessarily of the essence of a contract; and, where goods are to be delivered at a certain date, and are received and retained after the date fixed by the agreement for their delivery, it will be held such an interpretation of the contract, by the act of the party interested, as to work a waiver of the delay.</p>

<p>"W. K. IT. made an application for life insurance, directed and forwarded to defendant at Hartford, by their agent at St. Joseph. The policy was made out, in accordance with the application, “to take effect when countersigned by the agent at St. Joseph,” and was mailed to the agent, to be ' countersigned and delivered. W. K. N. died the day before the policy ar. ved at St. Joseph. Held, that there was no completed contract of insurance.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Smith v. Powell, 14 Law Rep. 90 ; Reny v. Martin, 4 Johns. 597 ; Durant v. Bocant, Beas. 201; Burt v. Powell, 28 Cal. 632 ; Hoover v. Reilly, 2 Abb. (U. S.) 471; Nelson et al. v. Davis, 40 Ind. 366 ; 44 Ind. 395 ; 46 Ind. 427 ; 49 Ind. 434 ; Wood v. Price, 46 HI. 439 ; 9 Ala. 662 ; 15 Ala. 149 ; 25 Ala. 694; 27 Ala. 296; 29 Ala. 233; 14 HI. 286 ; 18 111. 492 ; 53 111. 456 ; Sims v. Lyle, 4 Wash. 320 ; Winter-mute v. Snyder, 2 Green (N. J.) Ch. 490; Broadwell v. Dame, 6 111. 600 ; Adams’ Eq. 189,191; 1 Story Eq. Jur., secs. 113-, 121, 127, 151; Lyons v. Richmond, 2 Johns. Ch. 51, 60; Yin. Abr. tit. ch. N, Com. Dig. 3 F. 8 ; Hunt v. Rousmaniers, 1 Pet. 1; Murray v. Shotwell, 1 Johns. Ch. 512 ; Stores v. Baker, 1 Johns. Ch. 166 ; Arthur v. Arthur,. 10 Barb. 9 ; Hall v. Reed, 2 Barb. 500 ;' Gilbert v. Gilbert, 9 Barb.; McElderry v- Shipley, 2 Mo. 25; Leavitt v. Palmer, 3 N. Y. 19; Stoddard v. Hart, 23 N. Y. 556; Gamer v. Bird, 57 Barb. 277; Thompson Scale Mfg. Co. v. Osgood, 26 Conn. 16 ; Morris v. Labarra, 58 Me. 26; Champlin v. Lay tin, 18 Wend.' 407 ; Harney v. Charles, 45 Mo. 157 ; Bingham v. Bingham, 1 Yes. 126 ; Lansdowne v. Lansdowne, Mos. 364; McAninch v. Longhlin, 13 Penn. 371; Wysche v. Green, 11 Geo. (Miss.) 159 ; Smith v. Jordan, 13 Minn. 271; Lymans. United Ins. Co., 17 Johns. 372 ; Wemple s. Stewart, 22 Barb. 154 ; Glass s. Hurlburt, 102 Mass. 24; Stone s. Godfrey, 18 Jur. 162; Phibbs s. Cooper, Law Rep. H. L. 149 ; McCurdy s. Brithill, 5 Mon. ■232; Lawrence s. Baubien, 2 Bailey (S. C.), 623; Daniel s. Mitchell, 1 Story, 172; Towns s. Smith, 1 Woodb. & M. 115 ; Carpenters. Providence Ins. Co., 5 How. 185 ; Higbie s. Hopkins, 1 Wash. 230; Union Bank, of Georgetown, s. Geary, 5 Pet. 69 ; Hughes s. Blake, 1 Mas. 514; 3 Gill. & J. (Md.) 425; 1 Paige (N. C.) Ch. 239; 2 Gill. & J. (Md.) 208; 3 Wend. 532; 2 Johns. Ch. 92; 9 Cranch, 153 ; 3 Bland (Md.), 567 ; Winch s. Winchester, 1 Y. & B. 378; Rich s. Jackson, 4 Bro. C. C. 515; Mavbank s. Brook, 1 Bro. C. C. 84; Irnham s. Child, 1 Bro. C. C. 92; Lord Portmore s. Morris, 2 Bro. C. C. 219; Hares. Sherwood, 3 Bro. C. C. 168; Jordon s. Sawkins, 3 Bro. C. C. 388 ; Costlake s. Till, 1 Russ. 376; Baxter s. Connelly, 1 j. & W. 580; Bozen s. Farlow, 1 Meriv. 459 ; Pars, on Part. 262, and note s; Shackle s. Baker, 14 Yes. 468; Story on Part. 170.</p> <p>cited: 1 Story Eq. Jur., secs. 152, 153, 156, Í59; Story Eq. Jur., secs. 115, 116, 164, b, sec. 138, e; Bispham’s Eq., sec. 190, note 4; Leitensdorfer s. Delphy, Í5 Mo. 161; Tesson s. Atlantic Ins. Co., 40 Mo. 33 ; Hook v. Craighead, 32 Mo. 405 ; Hunt s. Ronsmaniere’s Admr., 1 Pet. 13 ; Smiths. Jordan, 13 Minn. 271; Lyman s. United Ins. Co., 17 Johns. 372; Gillespie s. Moon, 2 Johns. Ch. •595; Wemple v. Stewart, 22 Barb. 158; Keith v. Globe Ins. Co., 52 HI. 518; Sewing Machine Co. v. Langworthy, 18 Wis. 444; McCurdy v. Breathitt, 5 Mon. 234; Court~ney v. Falley, 1 Heisk. (Tenn.) 715; Henkle v. Boyal Assurance Co., 1 Yes. 317; Townsend v. Stangroom, 6 Yes. 331; Shelbourne v. Inchequin, 1 Bro. C. C. 340; 'Coles v. Paige, 10 Paige (N. Y.) Ch. 534; Lawrence ■v. Barbein, 2 Bailey (S. C.), 651; Bradford v. Union Bank, 13 How. 66 ; Sugden on Yend. (7thed.) 146,159 ; Andrews ■v. Essex Fire & Marine Ins. Co., 6 Mas. 6; Adams’ Eq. 171; Keisselbrock v. Livingston, 4 Johns. Ch. 144 ; Wood-bury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517; Longhurst v. Star Ins. Co., 19 Iowa, 364 ; Jordan v. Stevens, •51 Me. 78; Freeman v. Curtis, 51 Me. 140; Botsford v. McLean, 45 Barb. 478; Burdet v. Simms, 3 J. J. Mar. •(Ky.) 190; Young v. Coleman, 43 Mo. 179 ; Delaware Ins. Co. v. Hogan, 2 Wash. 4; Ledyard v. Hartford Ins. ■Co., 24 Wis. 496 ; White v. Williams, 48 Barb. 222 ; Wil•■son v. Strayhorn, 26 Ark. 28 ; Adams v. Stevens, 49 Me. •362; Brown v. Lampkear, 35 Yt. 252; 1 Story Eq. Jur., ¡sec. 138, Jc; Farrar v. Patton, 20 Mo. 84; Dickerson v. ‘Chrisman, 28 Mo. 140; Townsend v. Hawkins, 45 Mo. 289 ; 1 Story Eq. Jur., see. 1522, a; Strongs. Stewart, 4 .Johns. Ch. 167 ; Babcock v. Wyman, 19 How. 299 ; Wilson ■'u. Drumrite, 21 Mo. 329; Tibeau v. Tibeau, 22 Mo. 81.</p>