Volume 12 — Missouri Appeal Reports

<p>Under the statute of 1864, an assessment for taxes must have been made in the name of the real or apparent owner; and an assessment made in the name of a former owner after the real owner had brought his title and ownership to the assessor’s notice, is void.</p>

<p>Appeal from the St. Lo\iis Court of Criminal Correction, Cady, J.</p> <p>The publication in this case, charged to be defamatory of F. J. Bowman, does not expressly, or in any other way, name or point out Bowman. In order to make such application, extrinsic facts must have been averred in issuable form by way of inducement. Such facts must be clearly and fairly averred ; the words “of and concerning” are not sufficient. — Clementv. Fisher, 7 Barn. & Cress. 459; Towns, on Libel, 561, sect. 316 ; s. c. 1 Man. & R. 281; Bishop’s Cr. Proc. (2d ed.), sects. 784, 785. And an averment of such extrinsic facts in the inuendo will not help the information. —Bundy v. Hart, 46 Mo. 460. An inuendo cannot extend the meaning of defamatory matter, unless by reference to matter of inducement. Th&inuendo must be supported by the inducement.— Towns, on Libel (3rd ed.), sect. 337 ; Bishop’s Cr. Proc., sect. 749, and note; Caldwell v. Raymond, 2 Abb. Pr. 193.</p>

Louis Circuit Court, Adams, J. A failure to affix a revenue stamp does not avoid a written contract, nor render it incompetent when offered in evidence in a state court. — Jacquin v. Warren, 40 111. 459 ; Latham v. Smith, 45 111. 29 ; Craig v. Dimock, 47 111. 308 ; Bunker v. Green, 48 111. 243; Express Co. v. Harris, 48 111. 248; Wilson v. McKenna, 52 111. 43 ; Carpenter v. Snelling, 97 Mass. 452 ; Griffin v. Ranney, 35 Conn. 239 ; Hunter v. Cobb, 1 Bush, 239 ; Whitehill v.…

Louis Circuit Court, Boyle, J. It will not be disputed that, as a general proposition, the trustee may charge the estate for all expenditures necessary for its preservation. — Atchison v. Robertson, 4 Rich. Eq. 45; 2 Perry on Tr., sect. 910; Hill on Tr., sect. 590 ; 2 White & Tudor Ld. Cas., pt. 1, pp. 551, 582 ; Montgomery v. Fveleigh, 1 McCord Ch. 269 ; Shirley v. Shattuck, 28 Miss. 27; Lewis on Tr., 22 Law Lib., sect. 453.

<p>Appeal from the St. Louis Circuit Court, Horner, J.</p> <p>The second count of the petition is fatally defective, because, within itself it does not state any cause of action. — Bliss on Code PL, sect. 121; Olarlcv. Iron Go., 9 Mo. App. 446. The court, under the evidence, should have instructed the jury to return a verdict for the defendant, as requested by the defendant. — 0 ’Donnell v. Railroad Go., 7 Mo. App. 190 ; Artz v. Railroad Go., 34 Iowa, 153 ; Henze v. Railroad Go., 71 Mo. 638 ; Harlan v. Railroad Go., 64 Mo. 480; Moody v. Railroad Go., 68 Mo. 472; Hurl v. Railroad Go., 72 Mo. 168; Rellv. Railroad Go., 72 Mo. 50 ; Thomp. onNeg. 1174,sect. 21. The court erred in giving plaintiff’s instructions. They were not based upon the cause of action, the specific allegation of negligence contained in plaintiff’s petition, but permitted the jury to search amongst all the circumstances and surroundings of the event, and return a verdict upon any negligence of any servant of defendant connected therewith. —Edens v. Railroad Go., 72 Mo. 212 ; Waldhire v. Railroad Go., 71 Mo. 514; Price v. Railroad Co., 72 Mo. 414; Buffington v. Railroad Co., 64 Mo. 246; Ledulee v. Railroad Co., 4 Mo.' App. 485. The ordinance of the city of St. Louis, No. 10,305, is unreasonable, and destructive of the defendant’s right of the use of its road at the place where the accident happened, and therefore violative of its charter, and not applicable to defendant upon that part of defendant’s road. — Yates v. Milwaukee, 10 Wall. 497 ; Austin v. Murray, 16 Pick. 126 ; Atlantic, etc., R. Co. v. St. Louis, 66 Mo. 228 ; Daniels v. Railroad Co., 62 Mo. 43 ; Dill, on Mun. Corp., sect. 326 ; Sess. Acts 1849, pp. 219-222 ; Sess. Acts 1851, pp. 268-273.</p> <p>The transcript, failing to show that the motion for a new trial was filed in the same term that verdict was rendered, this appeal must be dismissed. —Walsh v. St. Louis, 12 Cent. L. J. (App.) 74 ; The State to use v. Bank, 6 Mo. App. 582 ; Moran v. January, 52 Mo. 523. The instructions of plaintiff were right, and defendant’s instruction about the reasonableness of the ordinance was properly refused, as that question was not one that could be submitted to a jury. The ordinance being pleaded, was properly read in evidence, and this was the only objection to any evidence offered. — Zimmerman v. Railroad Co., 71 Mo. 484: Cooley’s Const. Lim. (3rd ed.) 200, 576 ; St. Louis v. Weber, 44 Mo. 547 ; Atlantic, etc., R. Co. v. St. Louis, 66 Mo. 228; Sess. Acts 1863-4, p. 478.'</p>

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

Louis Circuit Court, Adams, J. The petitioner claims payment of taxes out of the money in the hands of the superintendent of insurance, in charge of the Life Association of America, on two grounds : First, that section 6047 of the Revised Statutes of Missouri expressly provides for and requires such payment. — In re Receivership, 3 Abb. App. Dec. 239; Phillips v. Rowse, 49 Mo. 586.

Louis Circuit Court, Boyle, J. The acceptance of the notes by the heirs and distributees of Brand, in settlement of the liability of the sureties on the bond of Barth, discharged the sureties on the bond, and there could be no recovery thereafter on the bond. — Hunery v. MarTcsberry. 57 Mo. 399; The State v. Manning, 55 Mo. 142; Horen v. Rowley, 57 Mo. 357; Newcomb v. Blakely, 1 Mo. App. 289.

Louis Court of Criminal Correction, Cady, J. The information is, on its face, insufficient. The notary had no authority to administer such an oath. Notaries “can do nothing not expressly authorized, and under the circumstances which authorize it.” — Ex parte Kreiger, 7 Mo. App. 367 ; Ex parte Mallinkrodt, 20 Mo. 493; Ex parte Mumford, 67 Mo. 607.

<p>1. A deposition may be taken after suit is brought and before the issues are made up.</p> <p>2. If the questions asked have direct reference to the matters charged in the petition, the officer cannot assume that they are irrelevant to the issues to be framed.</p> <p>3. If the question is neither privileged, nor foreign to the subject-matter of the suit, nor evidently asked for a purpose not contemplated by the litigation, the officer may compel an answer.</p> <p>4. The word “conditionally,” in the statute concerning depositions, limits not the right to take, but the right to use them.</p>

Louis Circuit Court, Lindley, J. The deed from John-Ring to W. H. Sears, trustee of Cole Brothers, was an assignment. — Grow v. Beardsley, 68 Mo, 435. This deed of assignment gave a preference to Cole Brothers, and was, therefore, invalid so far as the preference was concerned.— Crow v. Beardsley, 68 Mo. 435.

<p>The gross ignorance, incompetence, and imbecility of the attorney of one accused of murder, by reason of which the prisoner is deprived of essential rights and advantages guaranteed to him by law, necessary to a proper defence, and inseparable from a fair trial, is sufficient ground for setting aside a conviction and granting a new trial.</p>

<p>Section 2835 of the Revised Statutes does not authorize an action before a justice of the peace on a bond with a collateral condition the penalty of which is in excess of the justice’s jurisdiction.</p>

<p>1. A demand upon the agent under the terms of the contract, is a demand upon the principal.</p> <p>2. A delay in bringing suit, caused by the representations of the defendant, cannot be imputed to the plaintiff as laches.</p> <p>3. A failure to file with the petition the contract sued on is not a sufficient ground for excluding it when offered as evidence on the trial.</p> <p>4. An assignee in bankruptcy, in the absence of proof that the assignor was insolvent when the premiums were paid, has no interest in the policy of i- insurance.</p> <p>5. Though the assignee in bankruptcy of the insured has an interest in the policy, this is no defence to an action for specific performance by the wife of the insured against the insurer, under the contract to issue a paid-up policy.</p>

Louis Circuit Court, Lindley, J. “Demands ascertained, or depending' upon mere computation, may be set-off.” — Waterman on Set-off, sect. 304. “Damages arising from the non-fulfilment of a contract to make the demand, and give the notice requisite to fix the liability of the indorser of a note, may be set-off in an action brought against the owner of tho note upon another note of which he is the maker.” — Waterman on Set-off, sect. 307 ; Bidwell v. Madison, 10 Minn. 13.

<p>In the absence of satisfactory proof of fraud or misrepresentation on the part of the insurer, the insured who is guilty of laches in having accepted and acted on the policy for years cannot have the policy changed to conform to his recollection of the terms of the contract.</p>

Louis Circuit Court, Thayer, J. Though a purchaser pay full value, yet if he have knowledge, or means of knowledge, of the fact that the vendor intends to defraud creditors, he is not a purchaser in good faith, and the sale is void against creditors.— The State to use v. Estel, 6 Mo. App. 9 ; The State to use v. JSTauert, 2 Mo. App. 295 ; Burgert v. Borchert, 59 Mo. 80; Balcer v. Bliss, 39 N. T. 74 ; Bump’s Fr. Conv.

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

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

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

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

<p>A judgment creditor of a corporation cannot, by proceeding under the statute by motion against a stockholder, deprive a creditor at large of the benefit of an action already instituted against the same stockholder.</p>

<p>'The proprietor of a theatre who advertises the price of reserved seats during a certain period, and that the sale of seats will begin at a given hour, is not bound to sell any chosen seat for the entire period to the person who first presents himself and tenders the price of it.</p>

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

Louis Circuit Court, Boyle, J. A general statute treating the subject in a general manner, and not expressly contradictory to the special act, shall not be considered as intended to aifect the more particular and positive provisions of it, unless it is absolutely necessary to give the general statute such a construction, in order that its words shall have any meaning at all. — The State ex rel. v. McDonald, 38 Mo. 529 ; The Stale v. Alexander, 23 Mo. 508 ; The State v. Macon…

<p>1. No question of the plaintiff’s capacity to sue is raised upon a record which neither shows an allegation nor a denial of the plaintiff’s minority, hut which does show the appointment of a next friend.</p> <p>2. A petition which describes the act which caused the injury, and alleges that it was negligently done, is sufficient.</p> <p>3. The ground of complaint being negligence, a petition containing a general allegation of negligence without particularly specifying the facts constituting it, is not fatally defective.</p> <p>4. If a party desires more explicit instructions than those given, he should ask for them; and want of explicitness is not ground for a reversal if the instructions are substantially correct.</p> <p>5. It is not necessary, in an action for damages for injuries received while on the street, to show a formal acceptance of the dedication of the ground to public use.</p> <p>6. If the street on which the accident occurred had been dedicated to public use as a street, and was in use as such at the time of the injury, the defendant’s right thereon is not exclusive.</p>

Louis Circuit Court, Adams, J. Under the circumstances and the law applicable thereto, the plaintiffs are entitled to an easement of a right of way over the strip of ground Avhich the defendants have appropriated to their OAvn use.— Wiggins v. McCleary, 49 N. Y. 346; Bmyles v. Hastings, 24 Barb. 44 (s. c. m court of appeals, 22 N. Y. 217); Bissell v. Railroad Co., 23 N. Y. 61; Fisher v. Beard, 32 Iowa, 346, 355 ; Bump v. Banner, 37 Md. 621.

Louis Circuit Court, Adams, J. After appeal with supersedeas, a judgment cannot be pleaded as res adjudicata, and has no effect, even as evidence, until the decision of the appeal. — Woodbury v. Bowman, 18 Cal. 634; Sherman v. Dilly, 3 Nev. 22; Banle v. Adams, 3 Woods C. Ct. 21; Stone v. Spillman, 16 Texas, 432; Atlsins v. Wyman, 45 Me. 399 ; Wells on Res Adjudicata, 363, sect. 441; The State v. France, 72 Mo. 41.

Louis Circuit Court, Adams, J. The judgment of the circuit court, affirmed by the court of appeals and subsequently affirmed in the supreme court of the state, between the plaintiff and defendant, principal in the bond sued on in this case, is conclusive on the defendant, unless he can show fraud, collusion, clerical error, or payment. —■ Stoop v. Witter, 1 Mo.

Louis Court of Criminal Correction, Cady, J. The barrels of oil were for shipment and use out of the state, and the inspection law does not apply to such cases. — The State v. Waters, 5 Mo. App. 578. The barrels were, in law, never branded, because their contents were never inspected as the law requires, and the inspector is expressly forbidden by the statute to brand a barrel unless he has first inspected its contents and ascertained the fire test of the oil in that barrel.

<p>Appeal from the St. Louis Court of Criminal Correction, Cady, J.</p>

<p>1. A sale under a judgment in a proceeding to collect back taxes is a judicial sale.</p> <p>2. The policy of the law is opposed to setting aside judicial sales of real estate.</p> <p>3. The purchaser at a tax-sale need look only to the judgment, execution, levy, and sheriff’s deed.</p> <p>4. Inadequacy of consideration is not sufficient ground for setting aside such a sale, where the owner was a party to, and had legal notice of, the proceeding.</p> <p>6. An execution which directs a sale of the real estate, or so much thereof as will satisfy the judgment, is in accordance with the statute.</p> <p>6. A tax-sale made in accordance with the judgment and execution will not he set aside because the sheriff, in the absence of the defendants and without objection, sells lot after lot until all are sold, though the first three lots sold for enough to pay the taxes upon the entire tract.</p> <p>7. At a tax-sale under a judgment against several lots against each of which its own taxes are a separate lien, the collector is not bound to direct the sheriff to stop the sale as soon as he has in his hands enough money to pay all the taxes due upon the series of lots.</p>

<p>1. Insurance against damages caused by the perils of navigation will not cover losses which involve no damage to the insured goods, but which result from the fluctuations of prices.</p> <p>2. In an action on a policy of marine insurance, an allegation in the petition that the iron insured was sunk in the river is not a statement of such facts as, in law, entitle the plaintiff to abandon as for a total loss.</p> <p>3. If there is no authorized abandonment by the insured, and the insurer causes the goods to be delivered at their destination, there can be no recovery for the delay which caused the goods to arrive at their destination at a time when the price of the goods had declined.</p>

Louis Circuit Court, Ti-iayer, J. An agreement for a division of profits does not constitute a partnership. — McCauley v. Able, 21 Mo. 439 ; Gwinn v. Booker, 24 Mo. 292 ; Campbell v. Dent, 54 Mo. 325. The property, though bought for the partnership, was held by the partners as tenants in common. — McDermott v. Lawrence, 7 Serg. & R. 442 ; Frink v. Branch, 16 Conn. 270 ; Webb v. Leggitt, 6 Mo. App. 347; Coles v. Coles, 15 Johns. 160.

<p>1. The words “past-due interest” used in a contract, mean interest which has. matured and which is collectable on demand.</p> <p>2. Evidence of a custom among brokers of one place is inadmissible as against the defendant, a resident of another place, when unaccompanied by an offer to show that the latter knew of the custom and contracted with, reference to it.</p>

Louis Circuit Court, Boyle, J. “ If a person undertakes to do an act or discharge a duty, by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct, on the faith that the act or duty will be duly and properly performed, shall not suffer loss or injury by reason of his negligence.” — Whart. on Neg., sect. 438; 1 Story on Bail., sect. 167; Chitty on Con. 415; Pierson…

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

Louis Circuit Court, Adams, J. A principal who knowingly receives the fruits of an unauthorized act of his agent, ratifies the act, and assumes the burdens which attach to it. —Watson v. Bigelow, 47 Mo. 413; Norton v. Bull, 43 Mo. 113.

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

Louis Circuit Court, Adams, J. Advice, persuasion, or entreaty does not constitute undue influence, and will not vitiate a gift made freely and from conviction of its propriety, though such gift might never have been made but for such advice, persuasion, or entreaty. — Howev.

<p>The sureties on aguardian’s bond are not liable in an action for loss occasioned by the guardian’s act in loaning money on insufficient real estate security until the amount of the loss shall have been ascertained by a foreclosure • of the mortgage.</p>

<p>1. A demand may be proved against an estate before it is due. The word “justly due,” as used in the statute, refer to the validity of the claim, not to the time of its payment.</p> <p>2. An unmatured note bearing interest, will, if they fail to agree to a rebate of interest, be allowed against the estate with interest, but with an order that it be not paid until its maturity. '</p>

<p>Appeal from the St. Louis Criminal Court, Laugi-ilin, J.</p>

<p>X. An action will lie for libel of letters patent.</p> <p>2. A plea that the libel is only a repetition of the words of another is no defence to an action for libel.</p> <p>3. That the publication charged as libellous sets forth that the statement was made upon information, is immaterial.</p> <p>4. In an action for libel of letters patent, falsehood, malice, and injury to the plainliif must be alleged and proved.</p> <p>5. A petition which states that the defendant sent to the plaintiff’s customers a circular letter stating that the plaintiff had no right to make and sell the articles in which he dealt, and which charges that such statement was false and malicious, and made with the intent to injure the plaintiff, and that by reason thereof, the plaintiff’s customers had ceased to buy from him, thereby injuring and damaging him in his trade and business and property rights, states a good cause of action.</p>

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

Louis Circuit Court, Thayer, J. The petition does not state a cause of action. Its purpose is to restrain the tax collector from enforcing a tax-bill against real estate, on the alleged ground that the taxes included in the bill were illegally assessed. These averments furnish no ground for the interposition of a court of equity, and do not entitle plaintiff to relief by injunction. — Dorris v. Rosenblatt, 6 Mo. App. 601.

Louis Circuit Court, Boyle, J. If tb.e representations were calculated to deceive, and did, in fact, deceive, it matters not that they are susceptible of a construction which may be literally true ; they are only the more dangerous for that reason. But whether they were made with the intent that they should be understood in the sense which induced plaintiff to act, is a question of fact to be found by the court or jury.— Clark v. Dickson, C. P. 5 Jur.

Louis Circuit Court, Horner, J. Up to the moment-of the injury, the negligence of the plaintiff mingles, as an efficient and equally operating cause, with the negligence-of the defendant. — Rev. Stats., sect. 6971; O 'Donnell v. Railroad Go., 7 Mo. App. 190; Bueschinq v. Gas-Liqht Go., 73 Mo. 219. The fact that plaintiff was on the wrong side of the street will not prevent a recovery. — 1 Thomp. on Neg. 383 ; Jones v. Andover, 10 Allen, 20; ClayY.

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

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

Louis Circuit Court, Horner, J. The original pencil memorandum was not a sufficient memorandum to satisfy the statute of frauds, because it does not show that the contract between the parties was a contract of sale. — Lee v. Hill, 66 Ind. 474. Because it does not contain the names of both parties to the contract, and does notshow ( conceding the nature of the transaction) whether Wolfstein was buyer or seller.— Grafton v. Cummings, 99 U. S. 100; Brown on Stat. Fr.

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

<p>1. An attempt to commit robbery involves an attempt to commit the larceny involved in the robbery.</p> <p>2. The snatching of property from the person of another without violence and without putting the owner in fear is larceny and not robbery.</p>

<p>A third new trial may be granted where the misdirections of the trial court, have been followed by the jury to the prejudice of the losing party.</p>

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

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

Louis Circuit Court, Thayer J. Until the cause of action accrues, time is not, for any purpose, counted against it. Not the first any more than the second year from grant of letters, is or can be considered as commencing, until the •cause of action accrues. For these two years make np the special limitation, or statutory bar.

Louis Circuit Court, Adams, J. A clause in a receipt given by a common carrier for goods, exempting the common carrier from loss or damage* unless the claim therefor be made in writing within a certain specified time, is not in the nature of a condition precedent-to the right to recovery, which must be shown affirmatively to have been complied with before the action can be maintained. — Westcott v. Fargo, 61 N. Y. 551; Place v. Union Express Co., 2 Hilt. 19.

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

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

<p>A. agreed to pay B. a certain price per bushel for hauling all coal sold by A. to C. The court appointed a receiver who took'charge of O.’s business, and under order of court purchased coal of A. and employed him to do the hauling. Held, that on these facts, B. had no right of action against A. for a breach of his contract.</p>

<p>Appeal from the St. Louis Criminal Court, Laughlin, J.</p> <p>Improper language used by the prosecuting attorney in his argument is ground for a reversal. — The State v. Hopper, 71 Mo. 429 ; The State v. Mahley, 68 Mo. 319 ; The State v. Lee, 66 Mo. 167 ; The State v. Reed, 71 Mo. 200 ; The State v. Reilly, 4 Mo. App. 395. The attempted arrest and the killing of Coffey were not justifiable ; for he had the right to resist an illegal arrest, and the arrest was illegal, unless the officer had lawful authority to make it, and executed that authority in a proper manner, and Coffey was apprised of that authority. Unless these three things concur to legalize the arrest, the killing of the officer will be but manslaughter at the most. — Rev. Stats., sect. 1826 ; 1 Bishop’s Cr. Law (6th ed.), sect. 868, and cases cited; 2 Bishop’s Cr. Law (6th ed.), sect. 699 ; 1 Whart. Cr. Law (8th ed.), sect. 419; The State v. Roberts, 14 Mo. 144; The State v. Green, 66 Mo. 646. “Not only is it essential to the rights of the citizen that he shall be required to submit to arrest only when the official character of the demand is made known to him, but it is essential to the dignity of the state that its servants should be sheltered by these official prerogatives, only when they are acting legally, and give notice that they so act.” —1 Whart. Cr. Law (8th ed.), sect. 419; The State v. Roberts, 14 Mo. 144; The State v. Green, 66 Mo. 646; Yates v. The People, 32 N. T. 509; Logan v. The Oommomoealth, 38 Pa. St. 265; Johnson v. The State, 26 Texas, 117; Rafferty v. The People, 69111. 111.</p>

The circuit court has no power to set aside a verdict of its own motion. — Eev. Stats., sects. 3557, 3633, 3703, 3704 ; Battling v. Jamison, 44 Mo. 141; The State ex rel. v. Rombauer, 44 Mo. 595 ; Williams v. Court, 5 Mo. 248 ; Lloyd v. Bvinck, 35 Texas, 1. Mandamus is the proper remedy. —j2i7i v. Wilkins, 4 Mo. 86 ; Pratte v. Cabanne, 12 Mo. 194; Boyce v. Smith, 16 Mo. 317; Tile State ex rel v. Horner, 9 Mo. App. 307 ; Leaheyv. Dugdale, 41 Mo. 517.

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

<p>1. No interest passes under a will until the testator’s death.</p> <p>2. An alienation of devised property hy the testator during his life renders the will pro tanto void; and this, notwithstanding the statute concerning the revocation of wills.</p>

Louis Circuit Court, Horner, J. The indorsement and delivery of the receipts gave the bank full control of the goods, and gave it a possession sufficient to uphold the pledge.— Cochran v. Ripy, 13 Bush, 495 ; Gibson v. Bank, 11 Ohio St. 311; Comp v. Tuchels, 5 Reporter, 623 ; Carpenter v. Snelling, 97 Mass. 452; Macomber v. Parker, 14 Pick. 497 ; LicJcbarron v. Mason, 1 Smith’s Ld. Cas. 1084.

<p>1. Damages for physical suffering are not punitive but compensatory.</p> <p>2. In an action for damages for personal injuries the verdict will not be set aside as being excessive unless it is so clearly excessive as to indicate that the jury were actuated by passion or prejudice.</p> <p>3. In such an action begun by a married woman it is within the trial court’s discretion to allow the husband to be joined as a plaintiff during the trial.</p> <p>4. The husband may be so joined without amending the petition, if the defendant does not suggest such an amendment at the trial.</p> <p>6. The joinder of the husband at the trial in such a case does not render a continuance necessary, if the defendant does not claim a surprise.</p> <p>6. The failure to reswear the jury after a third person has been made a party plaintiff at the trial is not a sufficient reason for reversing the judgment, on appeal.</p> <p>7. A general judgment against a married woman is not necessarily void.</p> <p>8. A judgment may be rendered against a husband and wife jointly for a tort of the wife for which she and her husband are jointly liable.</p> <p>9. The negligence of a married woman in the management of realty the legal title to which is in a trustee for her sole and separate use, by reason of which another receives a personal injury, is her negligence and not that of her trustee.</p> <p>10. A judgment will not be reversed because of the trial court’s failure to give an instruction which was not asked.</p>

Louis Circuit Court, Boyle, J. By virtue of the statutory provision, section 598, Revised Statutes, a common •carrier that receives goods for transportation, marked to a certain point, is a carrier to that point. “ Whenever, by either the common law or the statute law of a state, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters, and can obtain…

Lonis Circuit Court, Horner, J. Telegraph poles erected on the streets by legislative and municipal authority are not nuisances. — 2 Dill, on Mun. Corp., sect. 698 ; Lackland v. Railroad Go., 31 Mo. 180; Porter v. Railroad Go., 33 Mo. 128 ; Atlantic, etc.,R. Go. v. St. Louis, 66Mo. 228 ; Randle v. Railroad Go., 65 Mo. 325.

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

Louis Circuit Court, Lindley, J. A proceeding to enforce the state’s lien for back taxes is not a proceeding in rem. — Rankin v. Chandler, 2 Brock. 125. The judgment in such a proceeding is binding only on the parties to the suit. — Hogan v. Smith, 11 Mo. App. 314. The beneficial owners must be made parties, and if not made so their interests will not pass under the execution sale. — Blackwell on Tax Tit. 631; Doyle v. Bank, 14 Ala. 622 ; Hopper v. Malleson, 16 N. J. Eq. 382.

<p>1. A memorandum of sale of real estate which consists of two papers must contain such a reference from one to the other as will serve to connect the two, and such as will conduct a searcher from one to the other with reasonable certainty.</p> <p>2. Schroeder v. Taaffe (11 Mo. App. 267) explained.</p>

<p>1. The publication of one copy of a newspaper within the jurisdiction is sufficient to complete the offence of publishing a libel.</p> <p>2. If the defendant causes a copy of a newspaper to be sent to the city where the person libelled resides, and the paper is read by persons into whose hands it thus comes, this is a publication of a libel.</p> <p>3. No inuendo is necessary to explain the word “defaulter,” used in a publication to express a disqualification for an office of trust.</p>

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

<p>1. At common law there can he no valid execution of a judgment in favor of one not in esse.</p> <p>2. Under the statute an execution can issue only in the name of the legal representatives of the deceased judgment creditor.</p> <p>3. An execution issued to the use of the assignee of one who was dead when the judgment was affirmed in his favor on appeal is properly quashed on motion. Thompson, J., dissenting.</p>

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

Louis Circuit Court, Horner, J. A vendor’s lien cannot be decreed for the payment of an. annuity, or for the enforcement of a contract to support a person. — Clarice v. Royle, 3 Sim. Ch. 449 ; Brawley v. Catron, 8 Leigh, 522; MeCandlish v. Keen, 13 Gratt. 615; Payne v. Avery, 21 Mich. 524; Arlin v. Brown,, 44 N. H. 102 ; Meigs v. Dimock, 6 Conn. 458 ; McKellip' v. McKellip, .8 Barb. 553.

<p>Appeal from the St. Louis Court of Criminal Correction, Cady, J.</p>

<p>1. There is an implied contract on the part of the owner to keep in readiness for the work a building of which he has possession, and upon which another person is, under contract, making improvements.</p> <p>2. One who, under a contract, is doing the ornamental wood-work in a building destroyed by fire while under control of the owner, may recover a quantum meruit for the work done prior to the time of the fire.</p> <p>3. An accidental fire is not the act of God or vis major excusing the performance of a contract.</p> <p>4. Section 667 of the Revised Statutes has no application to this case.</p>

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

Charles Circuit Court, Edwards, J. Owners of cattle are not required to keep them within an enclosure. — Kurtz v. Rolde, 7 Mo. App. 564. “.In Missouri there is no such thing as cattle trespassing on unenclosed lands.” — Kaes v. Railroad Co., 6 Mo. App. 397.

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