Volume 10 — Missouri Appeal Reports

<p>Application for prohibition.</p>

Louis Circuit Court, Adams, J. The judgment on the attachment proceedings was void, because the property of appellants was attached to satisfy a debt of $1,056.65, and such attachment did not authorize a judgment for $5,322.38. — Drake on Attach., sect. 5; Freeman v. Thompson, 53 Mo. 196 ; Cooper v. Reynolds, 10 Wall. 308 ; Voorhees v. Bank, 10 Pet. 449; Williams v. Stewart, 3 Wis. 773 ; Beach v. Abbott, 6 Yt. 586 ; Porter v. Partee, 7 Humph. 168.

<p>Application for habeas corpus.</p>

<p>Application for prohibition.</p>

<p>Appeal from the St. Louis Circuit Court, Adams, J.</p> <p>cited: Spaulding v. Suss, 4 Mo. App. 542; Qreenbaum v. Elliott, 60 Mo. 25.</p> <p>cited: North v. Walker, 66 Mo. 453; Pheiffer v. Suss, 5 Mo. App. 590; Williamson v. Anthony, 47 Mo. 299.</p>

<p>J. Appeal from the St. Louis Circuit Court, Wickham,</p> <p>cited : Preston v. Van Gordon, 31 Iowa, 250.</p> <p>cited : McLaren v. Sheble, 45 Mo. 130 ; The State ex red. v. Heman, 70 Mo. 441; Pinstein v. Gay, 45 Mo. 62.</p>

Louis Circuit Court, Boyle, J. The use of the word “ Oakes” wrongs the appellants and is a fraud upon the public, and its use should be enjoined.— Fetridge v. Wells, 13 How. Pr. 387, 389,394; Leather Cloth Co. v. American Leather Cloth Go., 11 H. L. Cas. 544, 546; Upton on Trade-Marks, 26-53 ; Oarmichael v. Latimer, 11 R. I. 407-410; Little v. Page, 44 Mo. 412 ; Griffin v. Pugh, 44 Mo. 326.

Louis Circuit Court, Bindley, J. A land-owner who lias reason to know that dangerous agencies on his premises are attractive to children, is bound to use reasonable diligence to protect them against the danger; and if, as a result of his failure to exercise such care, a child, although trespassing at the time, suffers injury without being guilty of contributory negligence, the child or its representatives may maintain an action against him to recover damages. — Stout v.…

Louis Circuit Court, Thayer, J. The action for dower was strictly a proceeding in rem, the sole inquiry being as to the widow’s rights in the res.

<p>Where one loans money and takes a note therefor upon the maker’s promise of M.’s indorsement thereon, M.’s subsequent indorsement, without any knowledge of the facts or the promise, is without consideration.</p>

Louis Circuit Court, Thayer, J. The deed of trust from John R. Coleman to James M. Carpenter, trustee, is void in law, because it is a conveyance to the grantor’s use and intended to hinder, delay, or defraud creditors. —Bigelows. Stringer, 40 Mo. 195 ; Doyle v. Smith, 1 Cald. 15 ; Smith v. Ely, 10 Nat. Bank. Reg. 553 ; Woodv. Lowrey, 17 Wend. 492 ; Davisr. Ransom, 18 111. 396 ; Reiser v. Peticolas, 50 Texas, 638 ; 1Mob-ley v. Leets (Sup. Ct.

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>cited : Fullwood v. Bush field, 14 Pa. St. 90 ; Man v. Wells, 7 How. 272; Halliburton v. Carter, 55 Mo. 435; Monroe v. Upton, 50 N. Y. 593; Wolfv. Stix, 99 U, S. 1.</p> <p>cited : Halliburton v. Carter, 55 Mo. 435; Woodward v. Herbert, 24 Me. 358; Maguire v. Riggin, 82 U. S. 549 ; United States v. Rob Roy, 1 Woods, 42; Haggerty v. Morrison, 59 Mo. 324.</p>

<p>1. An administrator’s bond is not discharged by taking a new bond unless the latter is taken for cause specified in the statute, and the statute must be strictly complied with.</p> <p>2. Section 39 of article 2 of the general administration law does not apply to public administrators, and in ordering a public administrator to give a new bond, the court acts under the provisions of the statute relating to public administrators.</p> <p>3. A new bond given by a public administrator being merely cumulative, the sureties on the old bond are not thereby discharged.</p>

<p>1. That a contract was to be subsequently reduced to writing is not proof that there was no final agreement between the parties.</p> <p>2. When the agreement was to be reduced to writing, and there is no sufficient evidence from which its exact terms can be determined, it will be inferred that the understanding of the parties was that there was no contract until the terms were reduced to writing.</p> <p>3. The giving of an ambiguous declaration of law in a trial before the court is not necessarily ground for a reversal.</p> <p>4. In a trial before the court parties should ask declarations of law from which it can be determined what the court held as to the law,’ and what it found as to the facts.</p>

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

Louis Criminal Court, Laughlin, J. Language not warranted by the evidence and calculated to prejudice the jury should not be used by the prosecuting attorney in his argument. — The State v. Lee, 66 Mo. 165 ; The State v. Begonia, 69 Mo. 485. An unlawful intent is necessary to constitute murder in the first degree. — The States. Phillips, 24 Mo. 475 ; The States. Hicks, 27 Mo. 588. The question of intent is an issue for the jury. — The State v. Stewart, 29 Mo. 419.

Louis Circuit Court, Lindley, J. The infant defendants were not proper parties to the action. They were not in possession, nor were they entitled to the possession of any part of the land until the •death of the life tenant. — Stevens v. Endres, 1 Green L. .271; Quiver v. Quiver, 2 Eoot, 278; Zeigler v. Gunn, 6 Watts, 106 ; Brown v. Brown, 8 N. H. 93. It was error to enter a decree upon the agreement filed.

Louis Circuit Court, Wickham, J. A creditor cannot set aside a conveyance made by his debtor, until he has obtained judgment and exhausted the usual means of enforcing collection at law. ■— Wiggins v. Strong, 2 Johns. Ch. 144 ; Martin v. Michael, 28 Mo. 95 ; Merry v. Fremon, 44 Mo. 518 ; Turner v. Adams, 46 Mo. 95 ; Alnutt v. Leper, 48 Mo. 819 ; Pendleton v. Perkins, 49 Mo. 565 ; Kent v. Curtis, 4 Mo.

Louis Circuit Court, Lindley, J. The responsibility for the delivery of the baggage rested upon every road over which the baggage passed under the contract. — Thornton Check v. Railroad Co., 2 Disney, 237; Railroad Co. v. 8pratt, 2 Duv. 4 ; Cobb v. Abbott, 14 Pick. 289 ; Hart v. Railroad Co., 8 N. Y. 37; Carter v. Peck, 4 Sneed, 203.; Wilson v. Railroad Co., 21 G-ratt. 654.

Louis Circuit Court, Adams, J. It was the duty of the defendant, either as common carrier or as forwarder, to give notice to the consignor or consignee of the nondelivery of the merchandise to the next carrier, and of the whereabouts of the merchandise. Its failure so to do subjected it to liability for the damages resulting therefrom. —• Louisville R. Co. v. Campbell, 7 Heisk. 261; Conkey v. Railway Co., 31 Wis. 619-637 ; Williams v. Holland, .22 How.

<p>1. A stockholder owns only a right or share in the proceeds or profits of the stock, proportioned to the amount of his contribution, together with the , ultimate right to receive hack his contribution, or so much thereof as may remain upon a dissolution of the corporation, which right he may transfer to a third person without impairing any right of a creditor of the corporation.</p> <p>2. That the stockholder sells his stock for more than its value is no ground for attacking the sale at the instance of a receiver of the corporation.</p> <p>3. A stockholder who has paid his stock in full may, in the absence of fraud, return his stock to the corporation and receive therefor a cash consideration.</p> <p>4. Where, pending proceedings to' wind up an insurance company, of which the stockholders have notice, this company, in consideration of a transfer of all its assets, is reinsured by another company, which contracts to pay the shareholders of the reinsured company their stock in full, provided said stock he exchanged for an equal amount of stock in the reinsuring company; and a stockholder makes this exchange of' stock and the reinsured company is afterwards adjudged insolvent, these facts do not show a cause of action against the stockholder at the suit of the receiver of the reinsured company.</p>

Louis Circuit Court, Thayer, J. Original policy-holders of the De Soto, Atlas, Missouri, and St. Louis Mutual, can claim the benefit of a deposit made by the Columbia, only by ratifying the transfer made by their companies to the Columbia, which ratification operates as a novation of the contract of insurance, and makes those who so ratify policyholders of the Columbia. — In re Times Life, etc., Go., 5 Ch. App. 396 ; Spencer’s Gase, 6 Ch. App. 371; Miller’s Gase, 3 Reporter,…

Louis Circuit Court, Thayer, J. Even though the report is not privileged, it may be shown in mitigation that the report, although not correct, was an honest one, and intended to be a fair account of the transaction. — Towns, on Sian. & L. (3rd ed.), sect. 403; Smith v. Scott, 2 Car. & Kir. 580 ; East v. Chapman, Moo. & M. 46 ; Donnelly v. Swain, 2 Phila. Rep. 93 (cited in Towns, on Sian. & L., sect. 409, note 4) ; Huson v. Dale, 19 Mich. 17, 34, 35.

Louis Circuit Court, Boyle, J. Whenever a limited partnership becomes insolvent, or is in contemplation-of insolvency, its property becomes a trust-fund for equal and ratable distribution, among all the creditors ; and any creditor may file a bill in equity in behalf of himself and the other creditors, aud may have a receiver appointed to protect the trust-fund, and may have the members of the firm restrained, by injunction, from intermeddling with the fund. — Innes v.…

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

<p>1. One who keeps horses and carriages for hire is not a common carrier, but is bound only to that degree of care which a prudent man, having due regard for his social obligations, would bestow upon such an undertaking.</p> <p>2. One who undertakes to convey another in a carriage from one point to another, whether for reward or gratuitously, is bound to exert the measure of care and skill appropriate to the employment.</p> <p>3. Where the driver of a carriage kept for hire, acting within the scope of his . employment willingly permits another to ride in the carriage, in the absence of fraud or collusion, the owner of the carriage is liable for an injury received by such person, while so riding, where such injury is occasioned by the driver’s negligence.</p> <p>4. Where the injury is to one other than a fellow-servant, if the injury is caused by the negligence of a servant, the master is liable though he is guilty of no personal negligence.</p> <p>5. One who, from an impulse of fear produced by the wrongful act of another, in attempting to escape danger acts without good judgment — this cannot be imputed to him as such contributory negligence as will preclude a recovery for such wrongful act of the other.</p> <p>6. There are no degrees of negligence where the subject of the bailment is human life; but any culpable negligence is, in such case, “gross.”</p> <p>7. Where one undertakes, though gratuitously, to do a thing requiring care and skill, an omission to bestow that care and skill is culpable negligence.</p> <p>8. It is error to single out and comment upon certain facts, to the exclusion of others, in instructing a jury.</p>

Louis Circuit Court, Thayer, J. In order to confer power on a partner to bind his co-partner by a bill or note, “the partnership must be in a trade or concern to which, the issuing or transfer of bills is necessary or usual, for otherwise a co-partner will not be liable for the act of his partner, unless he gave express authority.”— Chitty on Bills (13th Am. ed.), *46; Story on Part.

Louis County, Edwards, J. It is error to admit in evidence & conveyance in which the description of the property is so indefinite and uncertain as to render it void. — Vasques v. Richardson, .19 Mo. 96; Bell v. Dawson, 32 Mo. 79 ; Holme v. Strautman, 35 Mo. 293 ; Hardy v. Mathews, 38 Mo. 121; Campbell v. Johnson, 44 Mo. 247.

<p>1. Bringing suit in assumpsit before notice of facts warranting a rescission, is not conclusive of an election to affirm, except where the rights of innocent third parties' have intervened; and attaching creditors do not come within this exception.</p> <p>2. Where an instruction is offered, and is modified and changed hy the court and then given, the instruction asked is refused, and the record should show that fact: the appellate court will not regard marginal statements that such change or modification was made by interlineation.</p> <p>3. If the defendant desires to save the point raised by his demurrer to evidence, he must stand upon his demurrer; hy proceeding further with the case and submitting it to a jury, he waives the point.</p> <p>4. An assignee of property converted and of the right of action therefor, may maintain an action for the property and for damages, in his own name.</p> <p>5. Where parties have gone to trial on issues clearly made by the instructions, and there is no claim of surprise, the appellate courts will not look into the paper issues, if the petition will support the judgment.</p>

<p>1. Upon exceptions to an administrator’s final settlement the burden is upon the administrator to show that an inventoried debt due the estate is nohcollectable. '</p> <p>2. When it appears that the administrator, at the time of his appointment, owed the estate, that at no time thereafter would his property have paid 'his debts, but that he had knowledge of his own affairs, which, if possessed oy another, would probably have enabled such other to have’ collected the debt, he is, on final settlement, properly not allowed to return the cl,aim against himself as non-collectable.</p>

Louis Circuit Court, Boyle, J. That the guest fails to lock his door will not •relieve the inn-keeper from liability.— Coyle’s Case, 8 Cow. 32 ; Burgess v. Clements, 4 Mau. & Sel. 316; Classen v. Leopold, 2 Sweeny, 705 : Hulett v. Swift, 33 N. Y. 573; Cashed v. Wright, 6 El. & Bl. — ; FilipwosTci v. Merriweather, 2 Fost. & Fin. 285; Mitchells. Woods, 16 L. T. (n. s.) 676 ; Oppenheim v. White Lion, L. R. 6 C. P. 515 ; Buddenburgh v. Benner, 1 Hilt. 84.

<p>Mandamus will not lie to compel the judge of a trial court to grant a change of venue.</p>

Louis Circuit Court, Boyle, J. The effect of the words “ more or less ” used in a contract is to permit only a slight variation from the specific amount named. — {dross v. Elgin, 2 Barn. & Adol. 110 ; Patlersonv. Judd, 27 Mo. 567 ; Iron Go. v. Parsons, 5 Gray, 591; Oabot v. Windsor, 1 Allen, 546 ; Blaneyv. Rice, 2 Pick. 64, 550 ; McConnell v. Murphy, 21 U. S. 609.

<p>Appeal from the St. Louis Circuit Court, Adams, J.</p> <p>The right to follow the proceeds of sales made by a broker depends upon the power of identification. — Mills v. Post, 7 Mo. App. 519 ; Chase v. Alexander, 6 Mo. App. 509.</p> <p>for the respondents : That an indebtedness may be liable to garnishment, it must be shown to be due as a money demand, unaffected by liens, prior encumbrances, or conditions of contract. — Weil v. Tyler, 43 Mo. 581; 38 Mo. 545 ; Scales v. Hotel Co., 37 Mo. 520.</p>

<p>1. A motion for a new trial filed out of time, and without leave of court, will not carry the case over.</p> <p>2. When a motion for a new trial is permitted to be filed nunc pro tunc and then overruled, the appellate court will presume that it was overruled as filed out of time, and will not examine the ease on its merits.</p>

Louis Circuit Court, Adams, J. The court erred in excluding the evidence. The evidence clearly showed that plaintiff’s injury was directly caused by the conductor not being at his post to stop the car for plaintiff, leaving her to get off the car while in motion, in direct violation of the ordinance.

<p>1. Until the heirs receive the personal property of a decedent as proceeds of administration, the legal title thereto is in the administrator.</p> <p>2. An administrator is not liable for a failure to obey an order to pay an allowed demand in favor of one who was dead at the time of the order, where the demand had gone to his residuary legatees, upon the estate of one of whom no administration was had, but whose heirs had assigned their interest to the plaintiff, the administrator of the other legatee.</p>

<p>1. Where the jurisdictional facts sufficiently appear, the complaint in replevin before a justice of the peace is not necessarily bad because of departures in immaterial particulars from the precise words of the statute.</p> <p>2. In such a case the venue need not appear in the body of the complaint if it appears in the margin.</p> <p>3. It is immaterial in such a case that the statement is not signed otherwise than by the signature to the affidavit thereto.</p> <p>4. The letters “ J. P.” following the signature of one before whom an oath is subscribed, is sufficient to show his authority to administer oaths.</p>

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

<p>A hospital-building is not excluded from the benefits of a statute exempting-from taxation property used for “purposes purely charitable” merely because certain patients pay for what they receive, when tbe profits derived therefrom are applied exclusively to the charitable purposes of the institution.</p>

<p>Appeal from the St. Louis Circuit Court, Boyle, J.</p> <p>Whether the petition be regarded as stating causes of action for deceit, or causes of action for money had. and received (regarding as surplusage any averments of fraud), the plaintiff was entitled to a verdict, as the evidence stood at the end of plaintiff’s case. —House v. Lowell, 45 Mo. 383 ; Pickering v. Transportation Go., 47 Mo. 457 ; Williams v. Fisher, 50 Mo. 198; Ahern v. Gollins, 39 Mo. 145; Biddle v. Runney, 52 Mo. 153; Elfrank v. Seiler, 54 Mo. 134; Pomeroy v. Benton, 57 Mo. 531, 555; Bailey v. Houston, 58 Mo. 361; Gimbell v. Piquers, 62 Mo. 243 ; Mead v. Brown, 65 Mo. 552.</p> <p>A party cannot declare on one cause of action and obtain judgment on another and different cause of action. — Robinson v. Rice,' 2OMo. 229 ; Pensenneau v. Pensenneau, 22 Mo. 27; Harris y. Railroad Go., 37 Mo. 309; Jones v. Loudermann, 39 Mo. 289; Browning v. Walburn, 45 Mo. 457. “A party cannot set up one cause of action in his petition, and on the trial prove another and different one.”— Dougherty v. Matthews, 35 Mo. 520.</p>

<p>Appeal to the St. Louis Circuit Court, Adams, J.</p> <p>The appellant, under the facts of this case, was entitled to pay himself in full before any liability arose to account for insurance-money to his bailor. — Dalgleish v. Buchanan, 16 Scot. Ct. of Sess. Cas. (n. s.) 302; Waters v. Monarch Ins. Oo., 5 El. & Bl. 870; Home Ins. Oo. v. Warehouse Oo., 93 U. S. 527 ; Stillwell v. Staples, 19 N Y. 401; London H. Oo. v. Glyn, 1 El. & El. 652; JRietenbach v. Johnson, 10 Ins. L. J. 15.</p> <p>The carpets oi the respondent, under the terms of the policies, were held in trust for him by appellant, at the date of the fire, and were covered and insured by said policies. —Home Ins. Oo. v. Warehouse Oo., 93 U. S. 543 ; Hugh v. Insurance Oo., 36 Md. 398. And having included the carpets in his proofs of loss, and having been paid therefor, he is liable for the amount so received. — Stilwell v. Staples, 19 N. Y. 406 ; Watkins v. Huryand, 1 Port. 25; Siters v. Morritz, 13 Pa. St. 218. Appellant, under the policies, cannot satisfy his own loss first out of the insurance-money. He must pro rata with respondent. — Waters v. Insurance Oo., 5 El. & Bl. 879 ; London B. Go. v. Glyn, 1 El. & El. 652 ; De Forest v. Insurance Go., 1 Hall, 136.</p>

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

The deed of trust under which plaintiff claims is void under the first section of the chapter on Fraudulent Conveyances. — Eev. Stats., sect. 2496. This is settled by the following Missouri cases : Walter v. Wimer, 24 Mo. 63; Stanley v. JBunce, 27 Mr. 269 ; Billingsley v. Bunce, 28 Mo. 547; Oator v. Qollins, 2 Mo. App. 234; The State v. Tasker, 31 Mo. 445 ; Lodge v. Samuels, 50 Mo. 204 ; Brooks v. Wimer, 20 Mo. 503 ; White v. Graves, 68 Mo. 218.

<p>Application for mandamus.</p>

<p>1. Where a married woman substantially describes the contents of a deed to the officer taking her acknowledgment, he need not state its contents to her.</p> <p>2. In an action by a married woman to avoid her deed for insufficient acknowledgment, the burden is upon her to disprove, by clear and conclusive evidence, the prima facie case made by the certificate of acknowledgment.</p> <p>3. The law imposes upon an officer before whom the acknowledgment is taken no duty of explaining to a married woman the condition of her title, unless by special covenant made a part of the deed.</p> <p>4. Bad grammar will not vitiate a deed, properly executed.</p> <p>5. A married woman’s capacity to convey, and the effect of her act is tested by the law in force when she executes the deed, and not by that in existence when she acquired the property.</p>

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

Louis Circuit Court, Boyle, J. Where a written contract, not tinder seal, is executed by an agent, it is not necessary in order to bind the principal that it should be executed in the name and as the act of the principal: it will be sufficient if from the whole instrument it can be gathered from the terms thereof that the party describes himself and acts as agent, and intends thereby to bind the principal and not himself. — Klosterman v. Loos, 58 Mo. 293; Ferris v. Thaw, 5…

<p>1. A widowed mother has the same control over, and owes the same obligation to, her minor child as the father would have and owe if alive.</p> <p>2. Where a widowed mother places her minor child with another for support, and thereafter becomes insane, her estate will be liable for necessaries. furnished the child during its minority.</p> <p>3. An account sued on which states the items separately is sufficiently itemized, though the exact dates are not set opposite each item, where, from the nature of the case, the dates are given as near as may be.</p> <p>4. A general denial, under the Code, puts in issue the incorporation of the plaintiff, where the incorporation is not by public act and where the suit is not upon a contract made with the plaintiff under the name by which it sues. See Bank v. Williamson, 61 Mo. 259.</p> <p>5. Where it appears that no question was made in the trial as to the plaintiff’s incorporation and the motion for a new trial does not suggest failure of proof thereof, that the bill of exceptions does not preserve proof of such incorporation will not necessitate a reversal.</p> <p>6. An objection that a corporation organized for charitable purposes cannot take pay for services rendered, is untenable, and is also inconsistent with a denial of its incorporation.</p>

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>cited: 1 Thomp. on Neg. 409 ; Sweeney v. Railroad Go., 12 Allen, 368 ; Batch v. Smith, 7 Hurl. & N. 741.</p> <p>cited : McDonald v. Railroad Go., 26 Iowa, 145 ; Allender v. Railroad Go., 43 Iowa, 276 ; Gaynor v. Railroad Go., 100 Mass. 215; Hulbert v. Railroad Go., 40 N. Y. 146.</p>

Louis Circuit Court, Ti-iayer, J. The judgment as to George Westenhoff is against the evidence and the admissions of the pleadings. The pleadings admit and the evidence shows that he was not in possession of the premises, but was living with his mother as a member of her family. Being irregular as to one of the defendants, the judgment should be set aside as to both. — Covington, etc., Ins. Co. v. Clover, 36 Mo. 392.

<p>1. Where a judgment debtor’s property is suoh that it cannot be taken on execution, the judgment creditor, after having exhausted his legal remedies, is entitled to equitable relief.</p> <p>2. Where a judgment debtor has fraudulently conveyed his personal property, and the judgment creditor levies upon it, and, an indemnifying bond being demanded, is unable to give it, that he has no lien upon the property will not prevent him from recovering in a suit to set aside the fraudulent conveyance and subject the property to the satisfaction of the execution.</p>

<p>A sale of property under a deed of trust for less than its value and the insanity of the owner of the equity of redemption at the date of the sale will not warrant a court of equity in setting aside the sale.</p>

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

<p>1. A trustee in a deed of trust in the nature of a mortgage has an insurable interest in the mortgaged property distinct from that of the mortgageor.</p> <p>2. A conveyance by the mortgageor in no way affects the trustee’s right to insure his interest.</p> <p>3. Where the trustee insures his interest in mortgaged property, and the policy stipulates that he shall, in case of a loss, assign to the insurer an interest in the deed of trust equal to the amount of loss paid, provided such assignment shall in no way prejudice the beneficiary’s claim in the trust to recover the full amount of his loan and proper charges, the trustee cannot recover for a loss until he shall have performed his agreement to assign.</p> <p>4. In such a case the subrogation clause is material, and there can be no recovery against the insurer for a loss until this condition precedent is fulfilled, even though the mortgaged property is not worth the amount of the debt secured, less the amount the insured is liable to pay.</p> <p>5. The insurance in this case is held to be of the interest of the trustee and not of the mortgageor.</p>

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>Suspension and insolvency of a company is no breach of its contracts. — Ex parte Tondeau, L. R. 5 Eq. 160; 2 Lindley on Part. 1314; Clark v. Middleton, 19 Mo. 53; Starling v. Mercantile Ins. Co., 32 Pa. St. 175; Swanscot v. Read, 4 Fost. 428; Hunley v. Belcher, 30 Barb. 580; New England v. Butler, 34 Me. 451; Howe v. Folger, 1 Sandf. 177. Under the English Winding-up Acts the date of the decree, or the date of presentation of the claim after the decree, is the time for valuing such claims. — Law Journal Stats. (1862, 1864) 207, sect. 158; 2 Lindley on Part. 1304, 1307, 1314; Graig’s Gase, In re Albert Ins. Go., L. R. 9 Eq. 706, 720. And it is the settled law of this State that these statutes regulating insurance companies are police regulations, and not an infraction of the rule of the Constitution.— Price v. Insurance Go., 3 Mo. App. 267; The State v. Matthews, 44 Mo. 523 ; The State v. King, 44 Mo. 283.</p> <p>The creditors claimiug unearned premiums were practically without insurance after June 15th, as the company was resting under the disability of an injunction which prevented it from transacting business of any kind, the company having, by an infraction of the State insurance law, incurred forfeiture of its charter and could not make or discharge contracts. — In re Albert Life Ins. Go., 5 Big. 673 ; Smith v. Insurance Go., 2 Coop. Ch. 727. The final decree of dissolution of February 14, 1878, simply establishes the fact that on June 15th the company had committed acts which workjjl a forfeiture of its charter. It was simply a legal adjudication of such forfeiture, and, therefore, related back to said date.— Attorney-General v. Insurance Go., 9 Ins. L. J. 849. The assignment to Priest of June 11th was a confession of insolvency and of its failure to comply with the insurance laws of the State, and was a surrender of its rights. —Moore v. Whitcomb, 48 Mo. 543. The contracts in law and in equity were, therefore, broken on and prior to June 15, 1877, and the policy-holder had a claim for damages for the breach of his contract on that day. —Attorney-General v. Insurance Go., 9 Ins. L. J. 849; Robertson v. Davenport, 27 Ala. 574.</p>

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>The premises in dispute in this case were not an “ unpaved” portion of the wharf, and therefore could not be leased by the city to the defendant. — Cooley’s Const. Lim. 57; Smith on Stat. & Const. Constr., sects. 478, 481; King v. Inhabitants, 10 Barn. & Cress. 520 ; Walker v. Harris, 20 Wend. 555 ; Martin v. Hunter’s Lessee, 1 Wheat. 326 ; Gannon v. Nexo Orleans, 20 Wall. 577 ; Packet Go. v. St. Louis, Reporter (June 23,1880), 803 ; Schultz v. Railroad Go., 36 Mo. 13. Whether the premises in dispute were a paved or unpaved portion of the wharf, the lease of the city to the defendant and the defendant’s proposed occupation of the premises are illegal: First, because it is a diversion of the use in the property condemned, and a violation of the trust assumed by the city ; secondly, it is placing an additional burden upon the property, the fee thereof being in the plaintiff, not contemplated in the condemnation proceedings; thirdly, it being an additional burden, if the proposed warehouse is considered for public use, it is taking and damaging the plaintiff’s property without compensation, contrary to the common law and section 21, Artele II.', of the Constitution of Missouri; if considered for private use, it is in violation of section 20, Article II., of the Constitution of Missouri: fourthly, it is a violation of the city’s implied contract made with the plaintiff, when it paid to the city the $2,350, as benefits to its property, that the city would hold the property strictly in accordance with the purposes expressed, and by which the company would be benefited, and that they would not be changed, so that those benefits would be destroyed; fifthly, the defendant’s erection is for private use, and is a nuisance; sixthly, on all these questions the plaintiff, by reason of being adjoining and adjacent to this portion of the wharf, as well as the owner in fee of the premises, may invoke the power of a court of equity, and there obtain protection by injunction from the threatened wrong. —Cooley’s Const. Lim. 53, 57, 394, 524, 529, 557 ; Gwrx'ier v. Railroad G.o., 11 Ohio (n. s.), 231; Miami Goal Go. v. Wighton, 19 Ohio (n. s.), 560; Allen v. Jones, 47 Ind. 442 ; Dyckxnan v. Mayor, 5 N. Y. 439 ; WaterWorks Go. v. Burkhai'dt, 41 Ind. 364; Gilbex't v. Turn-piles Co., 3 Johns. Cas. 107 ; Railroad Co. v. Campbell, 62 Mo. 588 ; Cunningham v. Railroad Co., 61 Mo. 33 ; Ellis v. Railroad Co, 51 Mo. 203; Railroad Co. v. Canal Commissioners, 21 Pa. St. 22 ; The Commonwealth v. Railroad Go., 24 Pa^St. 159 ; Chenango Bridge Co. v. Binghampton Co., 27 N. Y. 93; Bradley v. Railroad Co., 21 Conn. 306; Baltimore v. Railroad Co., 21 Md. 50; Rlinois R. Co. v. St. Louis, 2 Dill. 70 ; Leslie v. City of St. Louis, 47 Mo. 477 ; The State v. Noyes, 47 Me. 207 ; Hannibal v. Railroad Co., 49 Mo. 481; Allen v. Jones, 48 Ind. 442; Barclay v. Howell’s Lessee, 6 Pet. 31; The Stale v. Laveraclc, 34 N. J. L. 202 ; The Commonwealth v. Rushe, 14 Pa. St. 186 ; Warren v. Lyons, 22 Iowa, 357 ; Board of Education v. Edson; 18 Ohio St. 225 ; Newell v. The People, 7 N. Y. 97. The defendant is limited in its charter to the five hundred feet frontage on the river. As it has already acquired, and now occupies the five hundred feet, it cannot occupy the premises in question, which would make its river frontage eight hundred feet. — Defendant’s Charter, sect. 3; Beaty v. Lessee of Knowler, 4 Pet.- 29 ; Agar v. Canal Go., Cooper’s Cas. 79.</p> <p>The Legislature having empowered the city to make this lease, thereby determined what use of this condemned property was most beneficial to the public. — Cooley’s Const. Lim. (2d ed.) 521, 553; Muse v. Railroad Co., 21 111. 522 ; West v. Bancroft, 32 Yt. 367 ; Kelsy v. King, 32 Barb. 410; Ohio R. Co. v. Applegate, 8 Dana, 289. The erection, under the sanction of the city, of an elevator to be used for handling grain at the wharf, and at all time under the direction and control of the city authorities, is such a use of the wharf property as does not fall without the scope of the dedication, and such a structure would not, therefore, be a public nuisance. — Rlinois R. Co. v. Elevator Co., 2 Dill. 70 ; Hinchman v. Railroad Co., 2 C. E. Green, 75. “ What the law authorizes cannot be a nuisance, such as to give a common-law right of action.” — Transportation Co. v. Chicago, 99 U. S. 635. Whatever right the State may have to prevent the erection of an elevator or other structure erected on the wharf without legal authority, it is only in Virtue of special and individual injuries, that private persons can ask for equitable relief. — Railroad Co. v. Ward, 2 Black, 485; Wheeling Bridge Case, 13 How. 518; JELigbee v. Railroad Co., 4 C. E. Green, 276. The power of the public over highways is not confined to the sole purpose of travel.— Moses v. Railroad Co., 21 111. 522 ; West v. Bancroft, 32 Vt. 370. When private property is devoted to public use it is subject to public regulation. — Munn v. Rlinois, 94 IT. S. 130.</p>

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

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

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

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

Louis Circuit Court, Wickham, J. That the evidence clearly showed that the plaintiff was not the legál holder of these notes, but that he held them under a ehampertous contract, and -was, therefore, not entitled to-sue or recover. — Rev. Stats., sect. 3462; Duke v. Harper, 66 Mo. 51; Arden v. Patterson, 5 Johns.

Louis Circuit Court, Lindley, J. The admitted facts establish a case of money paid, by mistake of facts, as alleged in the petition, for the recovery of which an action lies. — 4 Wait’s Act. & Def. 469; Harris v. Board, 3 Mo.

<p>1. The city of St. Louia may lawfully imprison the defendant for non-payment. of a fine assessed against him for violation of an ordinance prohibiting-the sale of lottery tickets.</p> <p>2. It is immaterial whether the action upon which the fineia assessed is in form a civil or a criminal proceeding.</p> <p>3. The validity of an ordinance is not affected by the existence of a State law upon the same subject not inconsistent with it.</p> <p>4. Defendants are not entitled to trial by jury in trials for petty offences cognizable in the police courts.</p> <p>5. The authority conferred on the city of St. Louis to establish municipal courts authorized it to establish the First District Police Court.</p> <p>6. The power to provide for a clerk and to define his duties is necessarily incidental to the power to establish a court.</p> <p>7. The clerk of the police court may issue executions upon the judgments of his court.</p>

Louis Circuit Court, Thayer, J. Legal and equitable causes of action may be stated in separate counts, and must be tried separately. —Henderson v. Dickey, 50 Mo. 161; Jones v. Moore, 42 Mo. 419 ; Crowe v. Peters, 63 Mo. 435.

<p>1. In an action on an open account, a justice lias no power, in the absence of the plaintiff, to render a judgment in his favor upon the defendant’s testimony.</p> <p>2. Where a justice, having rendered a void judgment, upon due notice to both; parties, resets the cause for trial, an appeal is properly taken from the-second judgment.</p> <p>8. Where a judgment is rendered by a justice on April 14th, an appeal taken on May 4th, is taken in time.</p>

Louis Circuit Court, Lineley, J. A publication* affecting one in his office or trade, if false, is libellous per se, and special damages need not be alleged or proved. — Pollard v. Lyon, 91 U. S. 225; Butler v. Homes, 7 Cal. 87 ; Weiss v. Whitleman, 28 Mich. 366 ; White v. Nichols, 3 How. (U. S.) 285.

<p>1. During the joint lives of husband and wife, the former is entitled to the rents and profits of the freehold estates of which the wife was seized at the time of her marriage.</p> <p>2. The Married Woman’s Act of 1875, does not affect the husband’s right to the proceeds of the wife’s realty.</p> <p>3. To charge him as her trustee in the collection of the rents of her realty, a clear intention on his part to collect and hold them as her trustee must he shown.</p>

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>The motion to set aside the sale is, in a restricted sense, addressed' to the discretion of the trial court, but that discretion is reviewable by an appellate court. —Parker v. Railroad Go., 44 Mo. 415 ; The State ex rel. v. Taney, 61 Mo. 397 ; Kelly v. Hunt, 61 Mo. 463.</p> <p>The finding of the trial judge stands as the verdict of a jury, and cannot be reviewed on appeal. — Beck v. Pollard, 55 Mo. 26. The statute providing that the sheriff shall divide the property is merely directory. — Rector v. Hart, 8 Mo. 448.</p>

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

<p>Where the charter of a mutual benefit association provides for the .payment, to the member’s family, or appointee, of a certain sum upon the member's-death, and that “in ease no direction is made by a brother, the same' shall be paid to the person or persons entitled thereto;” upon the death of a member, without having named a beneficiary, the benefits are payable to the wife and children, and not to the administrator, of the deceasedi member.</p>

Louis Circuit Court, Thayer, J. The juror was disqualified by reason of his prejudice.. The disqualifications enumerated by the statute are not exhaustive of the catalogue. —Lyles v. The State, 41 Texas, 162 ; Lester v. The State, 2 Texas Ct. App. 432 ; The State v. West, 69 Mo. 401; The State v. Taylor, 64 Mo. 358 ; Insurance Go. v. Schueller, 60111. 465; Brittain v. Alien, 2 Dev. 120; Freeman v. The People, 4 Denio, 9.

<p>One who is liable on a promissory note cannot, after paying the note, recover the sum so paid from one who has indorsed it for his accommodation.</p>

<p>The written report of the chief of police of St. Louis, on which offenders arrested without process are tried, is not void because the chief’s ñaméis signed thereto by another, if done on his authority.</p>

Louis Circuit Court, Boyle, J. Unpaid balances due upon contracts of subscription, by stockholders, are, on principle, a proper subject-matter of assignment, at law. — Palmer v. Merrill, 6 Cush. 286; Schultz v. Christman, 6 Mo. App. 341; McKee v. Judd, 12 N. Y. 622 ; Foy v. Railroad, Co., 24 Barb. 382 ; Sibbald’s Estate, 18 Pa. St. 249 ; Jordan v'. Gellen, 44 N. H. 424; Bracket v. Blake, 7 Mete. 335 ; Stillwell v. Craig, 58 Mo. 31; Oglesby v. Insurance Co., 22 How. 380.

Louis Circuit Court, Thayer, J. The Statute of Limitations confers a title as absolute as if by deed. — Biddle v. Mellon, 13 Mo. 335. Allard’s title being barred by the statute, the defendants could not invoke it. — McDonald v. Schneider, 27 Mo. 405; Totten v. James, 55 Mo. 494. A certificate of membership must be in conformity with the statute. — McDowell v.. Little, 33 Mo. 526 ; Steffen v. Bauer, 70 Mo. 399.

<p>1. In an action on a mechanic’s lien, an allegation that the items of the account were furnished “between the 6th and 17th of September, 1872, on which last day the account accrued,” will, after verdict, be taken as stating that the last item was furnished on the 17th.</p> <p>2. If it can be gathered from the petition, though not explicitly stated, that the dwellings against which the lien was filed constituted one building, erected under one contract, this will be sufficient after verdict.</p> <p>3. The doctrine of aider by verdict applies to the case where that which ought to be explicitly stated is not so stated, but may be gathered from other allegations from which it is implied.</p> <p>4. An intention to waive a mechanic’s lien is not shown by proof that a security not inconsistent with the lien has been taken.</p>

<p>Appeal from the St. Louis Circuit Court, Wickham, J.</p> <p>‘The bill sued on is a negotiable instrument, notwithstanding the provision contained in it for payment “ with exchange •on New York or St. Louis.” —Dan. Neg. Inst., sect. 54 ; Smith v. Kendall, 9 Mich. 241; Johnson v. Frisbee, 15 Mich. 286 ; Bulloch v. Taylor, 39 Mich. 137; Myer v. .Jffust, 40 Mich. 517 ; Sperry v. Horr, 32 Iowa, 184 ; Leggett v. Jones, 10 Wis. 34; Qrutacap V. Woulluise, 2 McLean, -581; Pricey. Teal, 4 McLean, 201 ; Bradley v. Lili, 4Biss.-473 (declining to follow Lowe v. Bliss, 24 111. 168) ; Pollard v. Berries, 3 Bos. & Pul. 335.</p> <p>The instrument sued on, containing as it does the words “with exchange on New York or St. Louis,” is not for a sum certain, is therefore not a negotiable instrument, and the assignee thereof has no greater lights against the drawer than his assignor, who, it is admitted, could not have recovered against the drawers in this case. — Banker. Gay, 63 Mo. 35 ; Guelberth v. Watson, 8 Mo. 663 ; Parwell v. Kennett, 7 Mo. 595 ; Samstag v. Conley, 64 Mo. 476; Lowe v. Bliss, 24 111, 168 ; Read v. McNulty, 12 Rich. L. 445 ; Bank v. Nevokirk, 2 Miles, 442 ; Farquahar v. Insurance Go., 18 Alb. L. J. 330; Jones v. Radatz, 11 Cent. L. J. 512; Johnson v. Speer, 23 Alb. L. J. 13; 84 Pa. St. 407; 1 Pars, on Notes & Bills, 227; Dan. Neg. Inst., sect. 163 ; Chouteau v. Allen, 70 Mo. 339.</p>

Louis Circuit Court, Lindley, J. A traveller approaching a railroad track is bound to use his eyes and ears, so far as there is an opportunity, and when by the use of these senses danger may be avoided, notwithstanding the neglect of the railroad servant to give signals, the omission of the plaintiff to use his senses to avoid danger is concurring negligence, entitling defendant to anon-suit.— Gorton v. Raihoay Go., 45 N. Y. 662 ; Fletcher v. Railroad Go., 64 Mo. -484;…

Louis Circuit Court, Wickham, J. The transfer of partnership assets by one partner, without the consent of his co-partner to pay a private or individual debt, or for the benefit of his individual creditors, is a fraud upon his co-partner and the firm creditors ; and the co-partnership creditors can protect themselves in an action at law, by attachment of the property under a process of garnishment. — Johnson v. Hersey, 10 Reporter, 401; Rogers v. Batchelor, 12 Pet. 221;…

<p>Mandamus will not lie to compel a trial judge to permit the filing of a pleading in a cause pending before him; though it is claimed that the relator can in no other way assert an alleged constitutional right.</p>

Louis Circuit Court, Adams, J. In eases of constructive trust, .or, when a person claiming in his own right is, by operation of law, turned into a trustee, courts of equity always have applied the Statute of Limitations. — Smith v. Riccords, 52 Mo. 581 ; s. c. 56 Mo. 553; Murray v. Coster, 20 Johns. 576 ; Hawley v. Cramer, 4 Cow. 717; Kane v. Bloodgood, 7 ‘Johns. 114. “ The next error is the exclusion by the court of evidence that the case was begun by Mr. Glover, and now…

<p>Error to the St. Louis Circuit Court, Adams, J. -</p>

<p>1. Successive accommodation indorsers of negotiable paper are not co-sureties, as between themselves, in the absence of an understanding between them to that effect before or at the time of the indorsements.</p> <p>2. A subsequent understanding, in the absence of a new consideration, will not support an action for contribution by a prior against a subsequent indorser.</p>

<p>Appeal from the St. Louis Circuit Court, Lind ley, J.</p>

<p>Error to the St. Louis Circuit Court, Wickham, J.</p>