Volume 11 — Missouri Appeal Reports

<p>Where a person, engaged in making repairs' on a railway track knew that a train was approaching but a short distance away, but nevertheless turned his back to it, stooped down and continued his work, and while in this position, was struck by the train and injured, it was held that he was guilty of such contributory negligence as would prevent a recovery, though the defendant was handling the car which caused the injury in a negligent manner and in violation of a city ordinance.</p>

<p>In an action on a promissory note by the second indorsee against the maker,, where it appears that the note was originally given and subsequently transferred to the first and second indorsee for value; that the maker had paid the same to a creditor of the payee under a judgment in a garnishment proceeding in which the transfer by the payee t.o the plaintiff’s indorser was attacked for fraud, of which proceeding the plaintiff had notice, but to which he was not made aparty, is no defence.</p>

<p>1. Where the plaintiff and others advance money to the defendant with which to purchase property, to be held by a proposed corporation, and the defendant purchases the property, taking the title in his own name, and receives the profits, and the project of forming the corporation is abandoned, the plaintiff may, in an action for money had and received to his use, recover back the sum thus paid.</p> <p>2. Where the plaintiff and others advance money to the defendant with which to purchase property in which each is to have an interest proportioned to the amount by him paid in, and the defendant purchases the property, taking the title in his own name as per agreement, but refuses to account to the others, the plaintiff may recover in an action for money had and received.</p> <p>3. In such cases it is not' necessary to make the other subscribers parties, in the absence of the formation of a partnership.</p> <p>i. Held, that the contract in this case was not sufficiently definite and explicit to exclude parol evidence to show its real character.</p>

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

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

Information of quo-warranto. That the word “ abolished ” is used in the body of the act instead of the word “ vacated ” is neither such a departure from the subject-matter of the title of the act, nor from its express language, as will affect its validity. — St. Louis v. Tiefel, 42 Mo. 578 ; The State v. Matthews, 44 Mo. 523; The State v. Miller, 45 Mo. 495; The State v. Saline County, 51 Mo. 350.

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

Louis Circuit Court, Thayer, J. If the suit is founded on a cause of action connected in any way with a contract, a counter-claim arising out of any other contract between the same parties, though sounding in damages, may be set up. — Transportation Co. v. Boggiano, 52 Mo. 294; McAdow v. Ross, 53 Mo. 199; Life Assn. v. Cravens, 60 Mo. 388. The plaintiff is liable in damages for a breach of the contract embodied in the charter.

<p>Where an indictment charges burglary and larceny in one count, and the accused is convicted of the larceny and acquitted of the burglary; upon a new trial upon the same indictment he Cannot be convicted of burglary.</p>

<p>Appeal from the St. Louis Criminal Court, Laughlin, J.</p>

<p>Appeal from the St. Louis Criminal Court, Laughlin, J.</p>

<p>There can be no conviction of a' misdemeanor, under the statute, for cutting timber from the land of another, in the absence of evidence from which a criminal intent may be fairly inferred.</p>

<p>Appeal from the St. Louis Criminal Court, Laughlin, J.</p>

<p>Appeal from the St. Louis Criminal Court, Burckhardt, J.</p> <p>The indictment, having-been found in the county, could not properly be tried in the city of St. Louis. — The State v. Lewis, 69 Mo. 92. The court erred, under the circumstances, in refusing to grant a change of venue. — The State v. Gerry, 69 Mo. 430; Freligh v. The State, 8 Mo. 606; The State v. Reed, 11 Mo. 379; The State v. Gamble, 46 Mo. 350. The provision of the statute prohibiting a change of venue from the St. Louis Criminal Court was abrogated and annulled by the new order of things under the Scheme and Charter, and under the constitution of 1875. — The State ex rel., v. Walsh, 69 Mo. 408. A plea of guilty regularly pleaded and regularly received by the court is equivalent to a conviction. —The People v. Goldstein, 32 Cal. 432; Shephard v. The People, 25 N. Y. 419. One convicted of murder in the second degree under an indictment for murder in the first degree found prior to 1875, cannot afterwards be tried for murder in the first degree. — The State v. Ross, 29 Mo. 39; The State v. Smith, 53 Mo. 139. The act of the legislature under which a special judge, was appointed to try this cause is unconstitutional. — Const. 1875, Art. IV., sects. 28, 53, 54. A general law does not, by implication, repeal a special law. —The State v. Pearcy, 44 Mo. 159; The State v. Failer, 49 Mo. 310; The State v. McDonald, 38 Mo. 529. The act of 1877 with reference to special judges does not apply to the St. Louis Criminal Court (Rev. Stats., sect. 1999; The State v. Daniels, 66 Mo. 192); and the order appointing Judge Burckhardt should have been set aside.— The State v. Houser, 28 Mo. 233. The affidavit for a continuance was in compliance with the statute, and set forth sufficient grounds, for a continuance which should have been granted.— Barnum v. Adams, 31 Mo. 332; 31 Mo. 147; The State v. Klinger, 43 Mo. 127. Certain jurors, having formed opinions as to the guilt or innocence of the accused, were incompetent.— The State v. Brown, 71 Mo. 454.</p> <p>Appellate courts will not reverse a question of fact presented and passed on in deciding an application for a change of venue. —The State v. Guy, 69 Mo. 431; The State v. Brown, 71 Mo. 454. The jurisdiction of the St. Louis Criminal Court to try this cause was not affected by the adoption of the Scheme and Charter. — The State v. Brown, 71 Mo. 454; The State ex rel. v. Laughlin, 73 Mo. 443. The mandate of the supreme court was properly obeyed, by the trial court, in again placing the defendant on trial under a plea of not guilty entered by direction of the court. —The State v. Stevens, 71 Mo. 535.</p>

<p>1. A discharge in bankruptcy operates as a discharge of all debts of the bankrupt which were duly scheduled.</p> <p>2. A new oral promise to pay a debt discharged in bankruptcy, is the only cause of action, and is barred in five years.</p>

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

<p>1. An appeal from a justice not taken within the time prescribed by the statute must be dismissed by the circuit court.</p> <p>2. In a proceeding of forcible entry and detainer before a justice, it is the duty of the appellant to cause the transcript and papers to be filed in the-circuit court.</p> <p>3. A voluntary appearance will not give the circuit court jurisdiction, if the transcript and papers are not filed in time.</p> <p>4. In such an action, an appeal taken in vacation cannot be returned after the return-day of the next term of the circuit court.</p> <p>5. In the absence of any showing of the facts, it will be presumed, on appeal, that the judgment is in accordance with the facts.</p>

Charles Circuit Court, Edwards, J. That a contract for street improvement embraces disconnected, streets or parts of streets, will not prevent a recovery on a special tax-bill issued therefor. — Neenan v. Smith, 60 Mo. 292. The process by which the city engineer reached the amount of the assessment of the cost need not appear upon the tax-bill. — Haegle v. Mallinkrodt, 3 Mo. App. 329; Cramer v. Allen, 3 Mo. App. 545.

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

<p>1. Two transactions, four years apart, for one of which no account was ever rendered, do not make out a case of mutual, open, and current account, or of reciprocal demands between the parties.</p> <p>2. The indorsement of a credit on an account by one party without the privity of the other will not take the demand out of the statute of limitations.</p>

Louis Circuit Court, Adams, J. A voluntary grantee can take nothing under the conveyance as against creditors of the grantor, in whom there is a resulting trust. — The State to use v. Jacob, 2 Mo. App. 183; Curtis v. Leavitt, 15 N. Y. 9. In order to set aside a fraudulent voluntary conveyance actual notice to the donee of the fraudulent intent need not be shown. — Fisher v. Lewis, 69 Mo. 629 ; Lackland v. Smith, 5 Mo. App. 153; Payne v. Stanton, 59 Mo. 158.

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

Louis Circuit Court, Adams, J. The agreed statement of facts containing all the evidence in this case (subject to any objections by either party), in no wise sustains the averments in defendant’s answer; there was an absolute failure of proof on its part, and hence the judgment of the court was erroneous. — Rev. Stats., sect. 3702; Beck v. Ferrara, 19 Mo. 30; Ensworth v. Barton, 60 Mo. 511; Hubbard v. Railroad Co., 63 Mo. 70.

<p>Application for mandamus.</p>

Louis Circuit Court, Boyle, J. Where the legal estate in lands is conveyed to a stranger without consideration there arises a trust for the owner. —Grove v. Falsome, Mo. 543; Story’s Eq. 383, 395, 1014; Hill on Trustees, 170; Hill on Trusts, 92. One who takes property with trust, with notice of the trust charge, is bound by the trust. —McLaurine v. Monroe, 30 Mo. 462; Truesdale v. Callaway, 6 Mo. 605; Thompson v. Reuve, 12 Mo. 157; Paul v. Chouteau, 14 Mo. 580.

<p>1. Mandamus will lie to compel a collector of revenue to give a tax-payer any credit upon his tax-bills to which'he is entitled.</p> <p>2. One who paid subdistrict school taxes for 1873, against real estate within the extended limits of the city of St. Louis as defined by the act of March 30, 1872, is entitled to have a credit of the sum thus paid made upon any subsequent tax-bill against the same property for school purposes, notwithstanding any changes that may have been made in the school districts.</p>

Louis Circuit Court, Thayer, J. “The execution of a power must be according to the substantial intention and purpose of the party cheating the power; not restraining or lessening it by a narrow or rigid construction, nor by a loose and extended interpretation dispensing with the substantial object which was meant to be.performed.” — Jackson v. Veeder, 11 Johns. 169 ; Aleyn v. Belchier, 1 Ld. Cas.

Louis Circuit Court, Wickham, J. The master may rely 'upon the judgment of the servant as to the safety of machinery where it is within the range of the servant’s peculiar skill. — Georgia R. Co. v. Kenney, 58 Ga. 485; Nolan v. Shickle, 69 Mo. 336; Hulett v. Railroad Co., 67 Mo. 239. The defendant had no notice of defects and was not negligently ignorant of them. —2 Thomp. on Neg. 1053, sect. 48.

<p>1. Mere inadequacy of price is not sufficient cause for setting aside a sale under a deed of trust.</p> <p>2. That a row of houses were not sold separately is not ground for setting aside such a sale, where it does not appear that the trustee was asked to so offer them.</p> <p>3. In the absence of anything in the pleadings or evidence to show that the plaintiff is willing to pay the defendant the amount properly chargeable against the property, and it does appear that the defendant is willing to convey to the plaintiff upon the payment of su.ch charges, the hill is-properly dismissed, on hearing.</p>

Louis Circuit Court, Wickham, J. A grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution. — Crawford v. Scovel, 20 Am. L. Rec., 61; Bensell v. Chancellor, 5 Whart. 371; Gibson v. Soper, 3 Gray, 279. “ Mental incapacity at the time of contracting is a good defence against a contract, whether that contract be evidenced by deed or parol.

Louis Circuit Court, Boyle, J. The ambiguity on the face of the sheriff’s deed is a patent ambiguity, and could not be removed by extrinsic evidence. — Campbell v. Johnson, 44 Mo. 247, 248 ; Ware v. Johnson, 66 Mo. 668 ; Andrews v. Todd, 50 N. H. 565. The deed from the sheriff under which respondent claims, is void for uncertainty.

<p>"Where one is enjoined from prosecuting his business, dispossessed of his property, and a receiver appointed to take charge, at the plaintiff’s instance, the compensation for the receiver’s services is taxable as costs against the plaintiff, the losing party.</p>

<p>Fees paid by a receiver to his attorney for professional service and advice in regard to the management of the property impounded, are part of the costs of administration, and are not taxable as costs in the litigation, against the losing party.</p>

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

<p>1. When an instalment of interest becomes due an action will lie for its recovery.</p> <p>2. Where one in possession of land under an agreement to purchase, gives his note for the purchase-money, interest payable annually, dies intestate and insolvent, and the owner enters into possession of the land, the probate court has jurisdiction of a demand against, the estate for interest which had matured at the intestate’s death. The claim for interest involves no question of specific performance of a contract concerning real estate.</p>

<p>1. A new promise to pay a debt discharged in bankruptcy must be a distinct, unequivocal promise to pay.</p> <p>2. Where the discharged debtor, upon presentment of the claim by the creditor’s collector, says: “Tell Harry [the creditor] to come down and I’ll pay him,” this is a promise sufficient to support an action.</p> <p>3. That the collector presented the note to the discharged debtor for payment in pursuance of a request from the creditor’s wife, instead of the creditor himself, is immaterial.</p> <p>4. A prior oral promise to pay a debt discharged in bankruptcy does not affect the creditor’s right to sue upon a second promise, made before the original debt is barred by the statute of limitations.</p>

Louis Circuit Court, Boyle, J. A judgment against the husband alone for the ante-nuptial debts of the wife is erroneous. —Minor’s Inst. 360, 388; Schouler’s Dom. Rel. 72; Gage v. Reed, 15 Johns. 403; Gray v. Thatcher, 4 Ala. 136; Platner v. Patchin, 19 Wis. 333; Angel v. Felton, 8 Johns. 149; Drue v. Thorn, Aleyn, 72; Richardson v. Hall, 5 Eng. Com. L. 14; Mitchison v. Hewson, 7 Term .Rep. 351.

<p>1. One sued as principal undertaker upon a contract alleged to have been made by him, may plead the statute of frauds.</p> <p>2. A memorandum which describes the land sold as a “lot on 18th St., 60 ft. -|-180, about 300 ft. s. of Hebert St.,” is not sufficient to satisfy the statute of frauds.</p>

<p>Appeal from the Circuit Court of St. Louis County, Edwards, J.</p>

Louis Circuit Court, Thayer, J. The general creditors of a married woman have no direct “ charge” or “ lien ” on her separate estate. ' Her debts are simple obligations, and bear the’same relation to her property as do the debts of a feme sole to her property. Her relation to her general creditors is that of an ordinary debtor to his creditors. The only distinction pertains to the remedy.

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

<p>Appeal from the St. Charles Circuit Court, Edwards, J.</p>

<p>The circuit court has no jurisdiction \o allow a demand against an estate, for professional services rendered after the death of the intestate, by an attorney, at the request of the administrator.</p>

<p>1. The holder of a check may maintain an action against the bank having funds of the drawer and failing to.pay upon presentment and demand.</p> <p>2. A bank has no lien upon, and cannot sequestrate, the deposit of a customer for the purpose of indemnifying the bank against a possible loss upon unmatured commercial paper of the customer discounted by the bank.</p> <p>3. A bank which, through mistake, pays a- check and places it upon the cancelling knife, is not thereby prevented from recovering upon it against the drawer.</p> <p>4. Where a bank, a drawee, for the purpose of indemnifying itself against possible loss on the drawer’s unmatured paper discounted by it, sequestrates the drawer’s deposit and refuses to pay his check, that the check-holder does not sue on the check until after the drawee has adjusted its claim, in bankruptcy, against the drawer, does not estop the holder from recovering on the check against the drawee.</p>

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

<p>A husband cannot deprive his wife of her dower by talcing a conveyance of land, purchased with his own money during coverture, to himself for life, with remainder to his child.</p>

<p>1. A sale of personalty, to be good against creditors of the vendor, must be accompanied by open and notorious change of possession, within a reasonable time.</p> <p>2. Where such a change of possession is not effected within a reasonable time, that the delivery is made before the process of the creditor is levied, will not validate the sale.</p> <p>3. Where goods sold to a salesman in the employ of the vendor remain in the vendor’s store, and in the course of trade this stock is replenished through purchases made by the vendor with money turned over to him by the vendee, as proceeds of sales of these goods, an attachment against the vendor may be levied on the new goods as well as on the original stock.</p> <p>4. In such a case, where there is evidence that purchases made to replenish the stock were made by the vendor in his own name and the goods charged against the vendee upon the vendor’s books, an attaching creditor of the vendor, when sued by the vendee for the value of these goods attached, is entitled to use in evidence such portions of the vendor’s books as relate to the purchase of the goods and to his dealings with the vendee.</p> <p>6. The testimony of a witness may be read from a bill of exceptions preserved at a former trial whenever, without any fault of the party desiring the testimony, the attendance of the witness cannot be had nor his deposition taken.</p>

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

Louis Circuit Court, Thayer, J. “ Where a judgment has been obtained by fraud, and more especially by the collusion of both parties, such judgment may, even in an inferior tribunal, be treated as a nullity.” — Shedden v. Patrick, 1 Macq. H. L. Cas. 535.

Louis Circuit Court, Adams, J. Sureties, indorsers, and guarantors are liable only according to the law of the place where their contract is made. — Whart. on Confl., sect. 439; Story on Confl. 823, sects. 278, 279; Aymar v. Sheldon, 12 Wend. 439.

<p>1. Warehouse-receipts made payable to bearer, not transferred by indorsement are not negotiable.</p> <p>2. “ Cotton-notes ” are warehouse-receipts, and the transfer of a cotton-note, without indorsement, conveys no greater rights than a transfer of the cotton would have given.</p> <p>3. A transfer of a cotton-note is effectual to pass title to the cotton represented by it.</p> <p>4. An innocent pledgee of a cotton-note takes a title superior’to the lien of a vendor who permits the note to pass into the hands of the vendee in such a way as to enable him to pledge it.</p>

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

<p>1. Requiring one to sleep on the insured premises is not a compliance with a warranty in a fire insurance policy that the assured will keep a watchman there at night.</p> <p>2. It is error to submit to the jury questions involving the construction, of a written instrument: such questions are exclusively for the court.</p> <p>3. A warranty is in the nature of a condition precedent in the contract, and no inquiry is allowed as to the materiality of the fact warranted.</p>

Louis Circuit Court, Lindley, J. The grantor is estopped from setting up that the recitals in her deed are false. — Union Savings Assn. v. Kehlor, 7 Mo. App. 158 ; Lensendeffer v. Smith, 66 Mo. 80. Equity will put the parties in statu quo. — Stumpf v. Stumpf, 6 Mo. App. 272. There can be no recoveiy in this case until the defendant has been made whole! — Schaefer v. Causey, 8 Mo. App. 142; Sims v. Gray, 66 Mo. 613; Huff v. Price, 50 Mo. 230; Shroyer v. Nichols, 55 Mo. 264.

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>Pierce’s knowledge of Stinde’s suit, and of the facts involved therein that were adjudicated upon by the circuit court, as learned from Gottschalk’s certificate after the final judgment, did not disqualify him from purchasing the land from defendants in that suit after the time for taking an appeal had elapsed. — Harrington v. McCollum, 73 Ill. 476; Taylor v. Boyd, 3 Ohio, 337; Bank v. Bank, 6 Pet. 16; Lovett v. Church, 12 Barb. 67, 83; Cott v. Powell, 41 Mo. 416, 419. The orignal suit of Stinde v. Behrens and wife was not pending after the expiration of the June term, because a writ of error is a new suit. — Ripley v. Moriss, 7 Ill. 381; Allen v. Mayor, 9 Ga. 286; Gregg v. Berthea, 6 Port. 9 ; McJilton v. Love, 13 Ill. 486, 494; Robinson v. Magarity, 28 Ill. 423, 426; Phelps v. Landon, 2 Day, 371; Iiailman v. Buckmaster, 8 Ill. 498; Jenkins v. Pepoon, 2 Johns. Cas. 312. The writ of error in this case, although sued out September 29, 1877, was not pending so as to notify purchasers, Until the defendants in error were brought into court by proper notice. A suit pending is not notice to a purchaser, so as to affect and bind his interest, until the writ is served, after petition filed. — Bailey v. McGinniss, 57 Mo. 362, 371; Herrington v. Herrington, 27 Mo. 560, 562; Metcalf v. Smith, 40 Mo. 572; Samuels v. Shelton, 48 Mo. 444. Purchasers, after a decree in chancery, and after writ of error issued and bond given, but before notice served of the issuance of the writ, are not pendente lite purchasers. — Taylor v. Boyd, 3 Ohio, 337 ; McCormick v. McLure, 6 Blackf. 466.</p> <p>One who purchases property pendente lite is bound by the judgment rendered against the person from whom he derives title. — O ’Reilly v. Nicholson, 45 Mo. 160; Real Estate Instn. v. Calonius, 63 Mo. 290. Parties having actual notice cannot invoke the benefit of statutory notice. — Sampson v. Oleyer, 22 Cal. 200. Actual notice need not be direct or formal. Any facts or circumstances which would put a prudent man on inquiry, are sufficient. —Bartlett v. Glasscock, 4 Mo. 62 ; Stephenson v. Smith, 7 Mo. App. 610-619; Mense v. McLean, 13 Mo. 29; Major v. Buckley, 51 Mo. 227; Fellows v. Wise, 55 Mo. 413. Notice is actual, when the purchaser knows of the existence of the adverse claim, or is conscious of having the means of knowledge, although he may not use them. — Speck v. Riggin, 40 Mo. 405; Vaughan v. Tracy, 22 Mo. 415 ; Rhodes v. Outcalt, 48 Mo. 367; Muldrow v. Robinson, 58 Mo. 331; Eck v. Hatcher, 58 Mo. 235; Comet v. Bertelsman, 61 Mo. 118.</p>

Louis Circuit Court, Thayer, J. The taxes which insurance and other companies are required by law to pay on shares of stock are not payable out of the assets of such companies after tliej’' have been ascertained to be insolvent and put into liquidation. — Lionberger v. Rowse, 43 Mo. 67 ; Bank v. The Commonwealth, 9 Wall. 353; Cummings v. Bank, 101 U. S. 157; Curran v. Arkansas, 15 How. 304; Barings v. Dabney, 19 Wall. 1; Gill v. Balis, 72 Mo. 429.

<p>1. An account qharged to a firm of which the deceased was a member and exhibited to the administrator, is a sufficient compliance with the statute, and sufficiently shows that the claim is against the estate for goods purchased by the firm of which the intestate was a member.</p> <p>2. In making the affidavits required by sections 195-197 of the Revised Statutes, a substantial compliance with the statute is sufficient without following its exact language.</p>

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

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

<p>1. The section of the statute exempting wages for the last thirty days is not repealed by the statute giving boarding-house keepers a lien upon the wages of their guests.</p> <p>2. The lien of a boarding-house keeper upon a guest’s wages cannot be enforced by garnishment.</p> <p>3. Where the boarding-house keeper fails to establish his lien, he is entitled to a general judgment for the debt shown to be due for board.</p>

<p>A decree of divorce cannot be reviewed on petition after the lapse of the term at which the decree was rendered, where the proceedings were regular and the court had jurisdiction of the parties.</p>

Louis Circuit Court, Adams, J. A sheriff is liable for damages resulting from the making- of a false return of process, similar to the one involved in this case. — Bolles v. Bowen, 45 N. H. 125 ; Davis v. Richmond, 35 Vt. 419; Waterhouse v. Gibson, 4 Me. 234; Tomlinson v. Long, 8 Jones L. 469; Wright v. Keith, 24 Me. 164; Albright v. Tapscott, 8 Jones L. 473.

Louis Circuit Court, Boyle, J. That such a sale as this was, and a deed embracing several distinct tracts of land in its recital, and that two or more separate lots were sold together for a gross sum, is void on its face, has been plainly held in— Walker v. Morse, 2 Dill. 256; Ryan v. Cook, 21 Iowa, 393; Ferguson v. Heath, 21 Iowa, 438; Harper v. Sexton, 22 Iowa, 442; Ashley v. Sexton, 24 Iowa, 320; Hall v. Dodge, 18 Kan. 277; Pettus v. Wallace, 29 Ark. 476; Smith v. Dow, 51…

Louis Circuit Court, Lindley, J. Where one party has completely performed his part of an agreement, the other party cannot plead the statute of frauds, if he has accepted and received the benefit of such performance. —McConnell v. Braynor, 63 Mo. 464; Sugget v. Cason, 26 Mo. 225; Self v. Cordell, 45 Mo. 346 ; Townsend v. Hawhins, 45 Mo. 288; Wright v. Tinsley, 30 Mo. 399; Guyton v. Guyton, 47 Mo. 47; Sutton v. Hayden, 62 Mo. 102; Rhodes v. Outcalt, 48 Mo. 367 ; Lee v. Howe,…

Louis Circuit Court, Lindley, J. The three deeds read together, and read in the proper light of the circumstances under which they were written, and of the subsequent conduct of the parties in regard to them, are to be construed as creating a “ family settlement,” in trust for the wife, with an unexercised power of revoking, retained in the hands of the husband. — 2 Pars, on Con. 503 ; Gammon v. Freeman, 31 Me. 243 ; Clark .v. Monroe, 14 Mass. 351; Gilliam v. Moore, 4 Leigh,…

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

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

cited: Wag. Stats., p. 72, sect. 8 ; p. 119, sect. 1; p. 81, sect. 67 ; p. 87, sect. 32 ; McCarty v. Frazer, 62 Mo. 263; Johnson v. Beasley, 65 Mo. 250; The State v. Douglass, 50 Mo. 593; Haeussler v. Scheitlin, 9 Mo. App. 303. A reversal of a judgment restores a party to all the rights he had before the judgment. — Gott v. Powell, 41 Mo. 417; Jones v. Hart, 60 Mo. 364 ; Freem. on Judg., sect. 482 ; Brown v. Troup, 33 Miss. 35.

<p>The purchaser before maturity of a negotiable promissory note, took the check of the indorser for the amount, after protest, under an agreement to sue the maker, and if successful to return the check to the indorser, and if not successful to cash the cheek in payment of the note. The holder had no notice of any equities between the maker and indorser until after this agreement. The maker set up the fraud of the indorser in obtaining the note and filed a cross-bill for equitable relief. Held, that the holder had a legal right to do what he agreed to do; that the check was not given nor accepted in payment of the note; and that, the indorser being a nonresident and not being a party to the action, the holder was entitled to recover on the note without any condition as to the disposition of the check.</p>

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

<p>1. In an action before a justice of the peace, the statement is sufficient if it notifies the defendant of what the suit is about and is so explicit as to bar another action for the same cause.</p> <p>2. An appeal from a justice of the peace is a complete waiver of any defects in the service of process.</p> <p>3. The appeal is a waiver of such defects though the defendant appeared before the justice for the sole purpose of moving to set aside the default, for defects in the service of process.</p>

Louis Circuit Court, Horner, J. A time may be limited upon a ticket, after which it is of no value; and where a ticket expires of a certain date, if a passenger refuse to pay the regular fare upon request, he may be ejected. — Boston v. Broctor, 1 Allen, 267 ; Ripley v. Railroad Co., 31 N. J. L. 388; Hill v. Railroad Co., 63 N. Y. 101; Sherman v. Railroad Co., 40 Iowa, 45 ; Lillis v. Railroad Co., 64 Mo. 464; Brown v. Railroad Co., 64 Mo. 536.

Louis Circuit Court, Adams, J. The unauthorized interference of a stranger, without the-knowledge or consent of the debtor, did not render the composition agreement void. — Babcodtc v. Dill, 43 Barb. 577. The court below erred in assuming that the defendant was responsible for the unknown and unauthorized promise made by Dickson to Levy & Bro. The promise-itself was a nullity. It was void. — Lawrence v. Clark, 36 N. Y. 128; Carroll v. Shields, 4 E. D. Smith, 466.

Louis Circuit Court, Horner, J. Parol proof was. properly admissible to show what was' actually in controversy between the parties before Justice Cunningham, and the grounds on which his judgment was rendered.

Louis Circuit Court, Thayer, J. One to whom property has been conveyed in payment of antecedent debts, is not a bona fide purchaser, and cannot hold the property as against the vendor.— Downs v. Belden, 46 Vt. 674; Miner v. Willoughby, 2 Minn. 225—239; Bomard v. Campbell, 58 N. Y. 73; McLeod v. Bank, 42 Miss. 99.

Louis Circuit Court, Thayer, J. The consideration for which the notes were given having been shown to be illegal, and thé relation that Alexander, the indorsee of the notes, sustained to the bank, raise the presumption that the bank had notice of the illegality of the consideration ; and it was not entitled to recover in the . absence of any proof that it did not in fact have such notice, and the burden of proof devolved upon the bank to establish this fact, which it did not…

<p>Appeal from the St. Louis Criminal Court, Laughlin, J.</p> <p>The State v. Kattlemann, 35 Mo. 105; The State v. Cofer, 68 Mo. 120; The State v. Simms, 71 Mo. 540; The State v. Bruffey, ante, p. 79; The State v. Craft, 72 Mo. 456.</p> <p>By consenting to a new-trial, the defendant waived his constitutional protection. — The People v. Maich, 6 Cal. 534; The People v. Otwell, 28 Cal. 456; The State v. Redman, 17 Iowa, 329; The State v. Knouse, 33 Iowa, 365.</p>

Louis Circuit Court, Adams, J. The petition does not state a cause of action. Regarding it as an action for false imprisonment, it does not allege want of reasonable or probable cause, and does not show that the arrest was unauthorized. — Burns v. Erben, 40 N. Y. 463; Taaffe v. Kyne, 9 Mo. App. 15; 111 Mass. 492; 2 Chitty’s Pl. 600 1 Larke v. Bande, 4 Mo. App. 186.

Charles Circuit Court, Edwards, J. The town of Kirk-wood had a right of appeal in this cause. —Kansas City v. Clark, 68 Mo. 588. The court erred in refusing the instruction asked by plain tiff, and in giving' the instructions given on own motion and one asked by defendant. — Casey v. The State, 6 Mo. 646; Isbell v. The State, 13 Mo. 86; Hays v. The State, 13 Mo. 246; The State v. Bryant, 14 Mo. 340; Schmidt v. The State, 14 Mo. 137.

Louis Circuit Court, Horner, J. The defendant and plaintiff were in privity of title and estate — were tenants in common. — 1 Washb. on Beal Prop. 564 [*416] ; Adams v. Frothingham, 3 Mass. 362. A privity of claim and right in the property establishes a fiduciary relation, and equity will grant relief against any fraud which is a breach of equitable duty belonging to that relation. —Flagg v. Mann, 2 Sumn. 544, 547 ; Chesterfield v. Janssen, 2 Ves. Sr.156.

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

Louis Circuit Court, Thayer, J. The trustor was entitled to redeem. — Rev. Stats., sect. 3298. And at such redemption the account between the purchaser and the trustor would be credited with the taxes and liens discharged.— Jones v. Savings Instn., 67 Mo. 109; Bell v. Mayor, 10 Paige, 49-73. The trustee used due diligence and was not guilty of any breach of trust. — Sherwood v. Saxton, 63 Mo. 78 ; Taylor v. Hite, 61 Mo. 142; 2 Story’s Eq. Jur., sect. 1268.

Louis County Circuit Court, Edwards, J. An indictment must put the parties upon guard as to the specific grounds upon which the charge is founded. — Bowe v. The State, 5 Mo. 364; Watson v. The State, 5 Mo. 497; The State v. Matterson, 6 Mo. 399; The State v. Jones, 20 Mo. 60. If not murder in the first _ degree, the crime was manslaughter. — The State v. Starr, 38 Mo. 277; The State v. Holm, 54 Mo. 165; The State v. Banstetter, 65 Mo. 154; The State v. Weiners, 66 Mo. 11.

Louis Circuit Court, Thayer, J. Farris had no interest in the partnership property at the time of the levy of the execution, of which fact the sheriff had due notice, and hence the levy was tortious.— Gillham v. Kerone, 45 Mo. 487; Rapp v. Vogel, 45 Mo. 529.

Louis Circuit Court, Boyle, J. The capital stock of a corporation is a trust-fund for the benefit of its creditors, and it must consist in money, or money’s worth, paid in at the time the stock is issued to shareholders, thereby enchancing the creditor’s security; or if the price be not paid, the purchaser’s indebtedness may be looked to for the like effect. — Chouteau v. Dean, 7 Mo. App. 210; Wight & Co. v. Steinkemeyer, 6 Mo.

<p>1. A stockholder is not estopped by his subscription to deny the lawful existence of a corporation prohibited by the state constitution.</p> <p>2. An association for the purpose of establishing colonies of persons of a particular religious belief, is not necessarily a religious corporation, and is not prohibited by the state constitution.</p> <p>3. An assessment upon stock authorized to be made by a board of managers, may, in the absence of a regulation as to the number necessary to constitute a quorum, be made by a majority of the board.</p>

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

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

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

<p>1. Real estate used as a cemetery is not properly assessed for taxes.</p> <p>2. The constitution of 1865 (art. XL, sect. 16) did not withdraw existing exemptions from taxation granted by the legislature.</p> <p>3. A general statute does not repeal a prior special statute or prior particular provisions of a statute, unless express reference is made thereto, or unless there is an irreconcilable inconsistency.</p> <p>4. An exemption from taxation contained in a charter, though granted subject to legislative power to amend or repeal, was not repealed by the-constitution of 1865.</p>

Charles Circuit Court, Edwards, J. The act of the road-master in this case, was the act -of a co-laborer' or fellow-servant of the respondent, and not as vice-principal or alter ego of the appellant. — Brickner v. Railroad Co., 2 Lans. 506; Harper v. Railroad Co., 47 Mo. 567 ; Brothers v. Carter, 52 Mo. 372; Marshall v. Schricker, 63 Mo. 308.