Volume 13 — Missouri Appeal Reports

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

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

<p>. 1. Subscriptions. — Persona making bonus subscriptions to a corporation not in being at tbe time, are liable for the payment of sueh subscriptions when the corporation is formed, and the work for the doing of which the corporation is formed is begun.</p> <p>2, Consideration.— The mutual promises of the subscribers form the consideration for such a contract, and it is immaterial that the subscriptions were made payable to a third person.</p>

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

<p>Appeal from the St. Louis Circuit Court, Adams, J.</p> <p>The beneficiaries under this will were not competent to prove the will.— Hoddix v. Hoddix, 5 Litt. 202; Scales v. Desha, 16 Ala. 303. The presumption of sanity prevails even in the probate of a will. — McClintock v. Curd, 32 Mo. 421; 1 Redf. on Wills, 40; 1 Jar. on Wills, 104, 111; McDaniel v. Orosby, 19 Ark. 545; Sables v. Houston, 33 Ala. 563; Thompson v. Kymer, 65 Pa. St. 368.</p> <p>Beneficiaries under a will are thereby rendered incompetent as witnesses to establish the will. — Garvin v. Williams, 50Mo. 206 ; Gamasche v. Gambs, 52 Mo. 287 ; Harris v. Hays, 53 Mo. 90. The burden of proof is on the defendant, in a proceeding contesting a will, to establish a valid will.— Harvey v. Sullens, 56 Mo. 372 ; Lamb v. Helm, 56 Mo. 420; Benoist v. Murrin, 58 Mo. 307.</p>

Louis Circuit Court, Boyle, J. “A creditor having recovered judgment against his debtor and a surety separately, the surety satisfied the… Held: that the judgment so assigned might be enforced by the surety.” — Glason v. Morris, 10 Johns. 524. “When a surety pays a judgment against himself and the principal, he has a right to have it assigned to him, and to use it as a subsisting judgment against the principal.” — Goodyear v. Watson, 14 Barb. 481; McDougald v. Dougherty, 14…

<p>Ejectment — Execution — Bents and Profits — Injunction. — The plaintiff may have execution for the damages and rents and profits awarded him in an action of ejectment, notwithstanding proceedings are begun by the defendant in possession to restrain the plaintiff from taking possession of the land until the improvements claimed to have been made by the defendant have been ascertained.</p>

<p>1. Homestead. —There may be a homestead in a life estate.</p> <p>2. -Dower.— A widow may acquire a homestead out of a dower interest before the dower has been set apart.</p> <p>3. -Exemptions. — Such a homestead is not subject to attachment or to the levy of an execution on an indebtedness which accrued prior to the setting apart of the dower.</p> <p>4. Exemptions — Head oe a family. — A widow, living in her own house with only her servants, is not the bead of a family within the meaning of the statute.</p>

<p>Appeal from the St. Charles Circuit Court, Edwards, J.</p> <p>Lewis v. St. Charles County, 5 Mo. App. 227 ; Schircker v. Ridingsf 65 Mo. 208 ; Gausen v. Buck, 68 Mo. 545 ; Lawler v. Burt, 7 Ohio St. 340.</p> <p>Briggs v. Penniman, 8 Cow. 387 ; Baker v. Backus, 32 Ill. 79; Sherman v. Smith, 20 Ill. 350; Tarbett v. Page, 24 Ill. 46 ; Mathews v. Albert, 24 Md. 527 ; Stanley v. Stanley, 26 Me. 191; Spear v. Crawford, 14 Wend. 20; Lewis v. St. Charles County, 5 Mo. App. 225.</p>

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

<p>1. Municipal Corporations — Wharfage. — The right of a municipal corporation owning a wharf to charge and collect wharfage is a right of property, and not a right of sovereignty.</p> <p>2. — A municipal corporation cannot collect wharfage for goods landed beyond its wharf in times of high water.</p>

<p>Application for mandamus.</p>

Louis Circuit Court, Horner, J. Plaintiff alleged no trespass upon his lot. His action is solely for damages for removal of lateral support. He had no right of support for his buildings, or the pressure thereof. He claimed no easement.

Louis Circuit Court, Lindley, J. Possession is actual or constructive. It follows the title, and, unless actual adverse possession, is shown, the lawful possession is presumed to be and is with the owner of the title. — Turner v. Baker, 64 Mo. 245; Moore v. Perry, 61 Mo. 174. A suit in ejectment must be in the name of the holder of the legal title; a cestui que trust cannot maintain ejectment. — Baker v. Nall, 59 Mo. 265.

Louis Circuit Court, Adams, J. When a partnership is dissolved by mutual consent, and some months after-wards one of the former partners .dies, the remaining former partner does not thereby become the “surviving partner” of the firm.

<p>1. Negligence. — There is no comparative negligence in this state.</p> <p>2. Practice — Misconduct of Jury. — A judgment rendered on a verdict which clearly indicates that the jury acted from prejudice or passion will he reversed on appeal.</p> <p>3. -Damages. — A verdict for nominal damages, where the plaintiff was seriously injured by the defendant’s negligence, will be set aside on appeal.</p>

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>The court committed error in refusing to allow the defendant to file the answer which he tendered. — Schlidker v. Gordon, 74 Mo. 534. The defendant was entitled, at his election, to have his damages assessed by a jury. — Const., Art. II., sect. 21; Rev. Stats., sect. 892.</p>

<p>1. Principal and Surety — Practice. — A surety on a note secured by a mortgage cannot compel the holder to exhaust the other security before proceeding against him.</p> <p>2. -Subrogation. —A surety who pays his principal’s debt is subrogated to the creditor’s liens and rights of action against the principal debtor’s property.</p>

<p>Appeal from the St. Louis Circuit Court, Boyle, J.</p> <p>The defendant can make the same defence against the plaintiffs that he could make against the bank in a suit by it against him. — Weil v. Tyler, 38 Mo. 545. And can, in this action, set up all defences against the plaintiff which would have been good against the bank. — Firebaugh v. Stone, 36 Mo. 111. The answer of the garnishee must stand until overcome by evidence. — Holton v. Railroad Co., 50 Mo. 151.</p> <p>A garnishee cannot avail himself of a set-off which he acquired after garnishment. — Drake on Attach., sect. 687 ; Repfy v. Reppy, 46 Mo. 571.</p>

Louis Circuit Court, Thayer, J. There is no right of action against the defendants. The facts stated con stitute no liability, either at common law or under sectioi 27, Article XII., of the constitution. — Fusz v. Spaunhorst 67 Mo. 256; Duffy v. Byrne, 7 Mo. App. 417; Mer chants’ BanJo v. Bliss, 35 N. Y. 412; Brinham v. Wei lensburg Goal Go., 11 Wright, 43.

<p>Error to the Lincoln Circuit Court, Robinson, J.</p>

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

Louis Circuit Court, Ltndley, J. Injunction will not lie to restrain a court from doing that which on ac~ count of want of jurisdiction would be a nullity. — Sayre v. Tompkins, 23 Mo. 443; The State v. Railroad Go., 32 Mo. 496. The petition fails'to allege what defence he has, if any, to the bill sued on. — Smith v. D’Lashmutt, 4 Mo. 103; Duncan v. Gibson, 45 Mo. 352.

Louis Circuit Court, Horner, J. Parol evidence is admissible to explain or contradict the receipt. — 1 Greenl. on Ev., sect. 305, and cases cited ; Weatherford v. Farrar, 18 Mo. 474. Where the receipt was given by mistake, the mistake maybe shown to destroy the effect of the receipt. — Fuller v. Crittenden, 9 Conn.” 406; Boulware v. Bank, 12 Mo. 542.

Louis Circuit Court, Boyle, J. The evidence fails to show the debtor’s insolvency. — Durgy v. O'Brien, 5 Cent. L. J. 147; Rogers v. Thomas, 20 Conn. 54; 1 Pars, on Con. 595, 596. The laches of the vendor deprives him of the right of stoppage in transitu. — Oalahan v. Bab-cock, 21 Ohio St. 281; Martin v. Fritch, 6 Wend. 103.

Louis Circuit Court, Horner, J. The only contract between plaintiff and defendant was the one in writing: and when that was shown to exist, all evidence as to what was said between the parties at the time the contract was executed, was improper.— Murdock v. Ganahl, 47 Mo. 135; O’Bryan v. Kinney, 74 Mo. 125. The instructions are conflicting and inconsistent. — Modiselt v. MePike, 74 Mo. 648 (affirming Thomas v. Bobb, 45 Mo. 384); Kernocher v. O’Bannon, 56 Mo. 289.

<p>1. Corporations. —A. substantial compliance with conditions attached to a grant of corporate franchises is all that is required.</p> <p>2. Capital Stock. —The statutory requirement that one-half of the capital stock “ has been actually paid up in lawful money of the United States ” is substantially complied with, if the corporation has property whose market value is greater than the par value of the stock.</p> <p>8. -Quo Warranto — Evidence. — In quo warranto to forfeit the franchises of a private corporation, the court may consider testimony tending to show that one of the corporators procured the commencement of the proceeding in bad faith and for his private purposes.</p>

Louis County Circuit Court, Edwards, J. A voluntary deed is fraudulent and void as to existing creditors, when made with intent to hinder, delay, or defraud such creditors. — Bump on Fr. Conv. 281; Potter v. McDowell, 31 Mo. 62. Evidence to create a resulting trust must be clear, strong, and unequivocal, and such as to leave no room for reasonable doubt.

<p>Error to the Lincoln Circuit Court, Robinson, J.</p>

Louis Circuit Court, Boyle, J. “In respect to the time of delivery the defendant was responsible only for due diligence, and was only bound to transport and deliver the goods in a reasonable time, and without unnecessary delay.”— Clark v. Railroad Co., 39 Mo. 190 (citing Parsons v. Hardy, 14 Wend. 215).

<p>1. Practice — Bill or Exceptions — Motion for a New Trial — Continuance.— An appellate court will not consider a bill of exceptions filed at the third term after the trial, where neither the consent of the parties nor a continuance of the motion for a new trial appears.</p> <p>2. -Presumptions. — An appellate court will not presume, in support of a bill of exceptions, that the motion for a new trial was continued for the three terms intervening between the filing and the overruling of it.</p>

Louis Circuit Court, Boyle, J. The concurrence or acquiescence of the husband was necessary to the validity of the compromise agreement. — Rev. Stats., sect, -; Tyler on Infancy, 319, 320. The limitation ofthe attorney’s authority to eífect a settlement should have been permitted to be shown. — Davidson v. Dozier, 23 Mo. 387: Grum-ley v. Webb, 48 Mo.. 562 ; Waldon v. Bolton, 55 Mo. 405 ; Spears v. Ledergerber, 56 Mo. 465.

<p>1. Administration — Assignment on Patents. — It is competent for an order of distribution by the probate court to direct the administrator to assign in writing the estate’s interest in a patent.</p> <p>2. -Notice — Widow — Selection of Personalty — Sale to Administrator.— The statutory provision that the widow shall make her selection of personalty before the sale does not apply where she has no notice of the sale and where the administrator is the purchaser.</p> <p>8.-Selection of Personalty Sold to Administrator. — Where the administrator, without notice to the widow, purchases property which she has a right to choose as her own, she will, in the absence of laches on her own part, or of the intervention of the rights of third persons, be allowed to make her selection out of the property sold to the administrator.</p>

<p>1. Insurance — Judgment Creditors — Order or Payments — Liens.— A judgment creditor who has no Hen upon the property of the defendant, an insurance company, and who had not issued execution when “ winding-up ” proceedings were begun against the company, has no right to have his judgment paid out of funds of the defendant in court.</p> <p>2. -Priority. — Under such a state of facts the judgment creditor has no right of priority over other creditors of the company.</p>

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

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

<p>1. Corporations — Alienation op Stock. — The right of alienation is an inseparable incident to the ownership of stock.</p> <p>2. -By-Laws. — A sale and delivery of stock passes title, though not made in conformity with the corporation by-laws.</p> <p>3.-Chaster Provisions. — A provision in articles of incorporation which is not responsive to any provision of the statute relating to corporations, has not the effect of a charter provision imposed by statute.</p> <p>4. -Transfer op Stock. — A provision in articles of incorporation that no stockholder shall hold more than one hundred shares does not invalidate a transfer of stock, made in good faith, to one who already holds one hundred shares.</p>

Louis Circuit Court, Adams, J. A check is an absolute appropriation of so much money as is named therein, in the hands of the drawer’s banker, to the holder of the check. — Morrison v. McCartney, 30 Mo. 187 ; Chouteau v. Rowse, 56 Mo. 67 ; Roberts v. Carlin, 26 Iowa, 315 ; Bell v. Alexander, 21 Graft. 6; German Savings Assn. v. Adae, 1 McCrary, 502; Fogarties v. Bank, 12 Rich. 518 ; Munn v. Birch, 25 Ill. 35 ; Fourth National Bank v. City National Bank, 68 Ill. 398 ; Union…

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

<p>1. Taxes — Charitable Institutions. — A gift designed to promote the public good by the encouragement of learning, science, and the useful arts is a charity, and if it is administered in accordance with such a design is used for charitable purposes and is exempt from taxation.</p> <p>2. -Exemptions — Constitutional Law. — It was competent for the legislature, under the constitution of 1875, to arrest proceedings to collect taxes imposed after 1875 upon property which the legislature had, under this constitution, exempted from taxation.</p> <p>3.-Where the legislature exempts from taxation a class of property and makes no provision for the collection of taxes already assessed against it, such taxes so assessed cannot be collected after the exemption is declared.</p>

<p>1. Contract by Letter. — An offer by letter and an unconditional acceptance thereof constitute a contract.</p> <p>2. Unconditional Acceptance. — A request, contained in a letter of acceptance, that the proposer take certain action, does not necessarily render the acceptance conditional.</p> <p>3. Agency. — One who contracts to do business in the name of and through another is bound by the acts of such other.</p>

Louis Circuit Court, Lindley, J. Where some general principle of law has been manifestly decided incorrectly the first time, or injustice to the rights of the parties would be done by adhering to the first opinion, the same case may be open for re-examination.— Chambers v. Smith, 30 Mo. 156; Boone v. Shackleford, 66 Mo. 493.

Louis Circuit Court, Lindley, J. The probate court has exclusive original jurisdiction in the probate of wills, and until it has in term passed oh a will there exists no right to a contest. — Banks v. Banks, 65 Mo. 432 ; Crea-sey v. Alderson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310.

<p>Appeal from the St. Louis County Circuit Court, Edwards, J.</p> <p>Oral testimony to prove facts for which the law provides a record is incompetent. —Gen. Stats. 1865, p. 105, sect. 51. Taxes become an incumbrance when assessed, and from the date of the assessment, for the payment of which the owner at that time becomes liable. — Blossom v. Van Court, 34 Mo. 390. A covenant against incumbrances is broken, if at all, the moment it is made, and the remedy thereon is then complete.— Collier v. Gamble, 10 Mo. 470; Moselyv. Hunter, 15 Mo. 330 ; Kellogg v. Malin, 62 Mo. 429 ; 3 Washb. on Beal Prop. 495.</p> <p>The statute of limitations does not begin to run upon a breach of covenant against incumbrances until substantial injury has been done. — Hickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 178; Maguire v. Biggin, 44 Mo. 512. So that no such right accrued, as would start the statute to running in this case, even though the action be for breach of seisin, until White had paid the money for the taxes. — See also Frink v. Beilis, 33 Ind. 135 ; Martin v. Baker, 5 Blatchf. 232 ; McCrady v. Brisbane, 1 Nott & M. 104.</p>

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>The circuit court erred in trying the case de novo. Its jurisdiction was limited to either affirming the judgment of the justice or dismissing the appeal. —Rey. Stats., sects. 1000, 2487, 2488 ; Feedler v. 8chroeder, 59 Mo. 364. The damages claimed in the petition were laid at $100. The damages allowed by the court amounted to $210. This was error. — Wright v. Jacobs, 61 Mo. 23; Feedler v. Schroeder, 59 Mo. 364; Moore y. Dixon, 50 Mo. 424 ; Rev. Stats., sect. 3683.</p>

Louis Circuit Court, Adams, J. Defendantwas only liable for damages occasioned by its negligence or want of care in transporting tbe freight over its own road. No evidence of such want of care or negligence was given.— Coates v. Express Co., 45 Mo. 238 ; Vail v. Railroad Co., 63 Mo. 230; Snider v. Express Co., 63 Mo. 376; Crover Machine Co. v. Railroad Co., 70 Mo. 672 ; St. Louis Ins. Co. v. Railroad Co., 13 Cent. L. J. 468.

Louis Circuit Court, Boyle, J. The failure on the part of a common carrier to carry and deliver goods intrusted to it for carriage is a tort. —Levering v. Union T. SI. Go., 42 Mo. 88; Thurman v. Wells, 18 Barb. 500; Emigh v. Railroad Co., 4 Biss. 114; Bliss on Code Pl., sect. 14; Sawyer v. Railroad Go., 27 Yt. 370. And the right of action is not assignable. — Thurman v. Wells, 18 Barb. 500; Smith v. Kennett, 18 Mo. 154; Wallen v. Railroad Co., 74 Mo. 521; 1 Pars, on Con.

<p>1. Receivers— Powers of. — A receiver appointed to take charge of a part. nership estate has no power to transfer to a firm creditor a secured note, not inventoried, in satisfaction of the firm’s indebtedness to the transferee.</p> <p>2. Foreclosure Sale — Deed of Trust. — In such a case, a foreclosure sale, by the transferee, of the deed of trust given to secure the note, gives the purchaser thereat no title.</p> <p>8. Merger. — The owner of a note and the deed of trust by which it is secured has no estate in the land, and his subsequent acquirement of the fee through a sheriff’s deed, does not merge the estates.</p>

<p>1. Service or Summons — Sherdt’s Return. — Two returns of summons, made on the same day,one showing service by copy, and the other showing personal service, are, not inconsistent, and they show personal service.</p> <p>2. Judgments — Collateral Attack. — The judgment of a court which had jurisdiction of the subject-matter and of the person, cannot be impeached in a collateral proceeding.</p> <p>3. -That the tax-bill sued on in a former suit was void and did not authorize the judgment, does not go to the jurisdiction, and cannot avail in a collateral proceeding.</p>

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

Louis Circuit Court, Horner, J. The defendant, who was one of five purchasers of the franchises of a corporation, received certain shares of the stock of the corporation, which were issued to him as “ full paid” stock, but for which he had paid nothing. He afterwards surrendered this stock to the corporation, and the shares thus surrendered were issued by the corporation, for value, to bona fide subscribers.

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

<p>1. OFFICERS — Notice — Presumptions. — The fact that money is deposited in bank by a county treasurer raises no presumption that it belongs to the county.</p> <p>2. -Descriptio Person.». — That the words “,county treasurer” are added to a depositor’s name on his checks and pass-book does not give notice that the depositor holds the fund as such treasurer.</p> <p>3. Notice. — One who has notice of such facts as put him upon inquiry ii bound by every fact which an inquiry would have disclosed.</p> <p>4. -Practice. —The question of notice is one for the jury.</p>

Louis Circuit Court, Adams, J. The appellant was entitled to compensation as trustee, arid allowance for expenses and liabilities, as a matter of law. — Goode v. Comfort, 39 Mo. 313 ; Carter v. Ashire, 48 Mo. 300; Chesley v. Chesley, 49 Mo. 540; Gale v. Mensing, 20 Mo. 461. The appellant was entitled to compensation by the express stipulation of the trust-deed. — 2 Perry on Trusts (2d ed.), sect. 906.

Louis County Circuit Court, Edwards, J. The deed of the husband to his wife is not only absolutely void, but void on the face. — White v. Wager, 25 N. Y. 328; Ransom v. Ransom, 30 Mich. 328. The deed in itself is no more valid or operative in equity than in law. — Loomis v. Brush, 36 Mich. 40. In the absence of a cross bill, chancery could not, under any circumstances, recognize in her the right she seeks to enforce. — Walker v. Walker, 25 Mo. 367, 375.

Louis Circuit Court, Boyle, J. An indefinite hiring is a hiring at will; and a hiring at so much a year is an indefinite hiring. This rule is inflexible, and, if applied to this case, shows that plaintiff never was hired for the definite period of one year. — Wood on Master and Servant, 271-274, sect. 134. Plaintiff in his reply did not justify his acts, but denied them.

Louis Circuit Court, Lindley, J. The plaintiff in this case has the same rights, and no other, as has the Broadway Savings Bank. — Harris v. Babbitt, 4 Dill. 185. The doctrine in respect to defacto cashiers or officers can only be invoked when the public are concerned ; it has only reference to public officers. — (Jur-rie v. Mutual Association, 4 Hen. & Munf. 346.

Louis County Circuit Court, Edwards, J. There is no office of “ collector ” in the county of St. Louis. — The State ex rel. v. Watson, 71 Mo. 470. The statute relating to the collection of revenue must be strictly construed. — Blackwell on Tax Tit. 147. The sheriff was a party to the suit and could not serve the process. — Rev. Stats., sect. 3894.

Louis Circuit Court, Thayer, J. Parol evidence, showing the instruments never had any legal existence, either by reason of fraud or want of consideration, is admissible. — 1 Greenl. on Ev., sect. 284; Perry v. Central 8. B. Co., 5 Coldw. 138; Bride v. Brick, 98 U. S. 516; Black v. 8hreve, 2 Beas. 455 ; Grierson v. Mason, 60 N. Y. 394.

Louis Circuit Court, Lindley, J. The law of 1877 for the collection of delinquent taxes provides for a proceeding in personam, and not in rem. — Rev. Stats., sects. 6836, 6837, 3465,3466, 3499,3500; Gritchell v. Kreidler, 12 Mo. App. 497 ; Hogan v. Smith, 11 Mo. App. 314; Waples on Proceedings in Rem, 3, 329, 343.

<p>1. Presumption or Death. — In the absence of any fact except that of the absence of a person for seven years without having been heard from, the presumption is that such person died on the last day of the seven years.</p> <p>2. Evidence of Death. — That presumption may he rebutted by proof of facts tending to show that death occurred at an earlier period.</p> <p>3. Limitations — Benevolent Societies. — A widow’s cause of action for money payable to her by a benevolent society on proof of her husband’s death, is within the statutory limitation of five years.</p> <p>4. -On such a cause of action the statute begins to run from the day on which the widow could make the demand payable by presenting proper proofs of her husband’s death.</p>

Louis Circuit Court, Adams, J. From the time the sheriff levied the execution on the property in question, he became quasi the agent of the defendant for the sale of the stock. Between the purchaser and the defendant in the execution the law raises a contract of sale the same as if made with himself. — McKnight v. Gordon, 13 Rich. 222. A sheriff, in making a sale under an execution, acts as the ministerial officer of the law and not as the organ of the court.

Louis Circuit Court, Horner, J It was the plaintiff’s duty, when he walked upon said track, to look constantly both before and behind him, in order to see that the track was clear. — Fletcher v. Railroad Go., 64 Mo. 484; Morris & Essex R. Go. v. Haslon, 4 Vroom, 149 ; Runyan v. Central R. Go., 1 Dutch. 357 ; Chicago, etc., R. Go. v. Still, 19 Ill. 508 ; North Penn.

<p>Contract against Public Policy. — A contract between two persons to refrain from bidding against each other at a judicial sale, and that one should bid in the property and each should pay one-half of the purchase-money, is against public policy, and will not be enforced.</p>

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

Louis Circuit Court, HorNER, J. From its own construction of the deeds in evidence it was the duty of the court to declare, as a matter of law, what the boundaries of the Baccanné tract were : — Whit-telsey v. Kellogg, 28 Mo. 407 ; Doe v. Paine, 4 Hawks, 64; Magee v. Hallett, 22 Ala. 699 ; Burnett v. Thompson, 13 Ired. 379.

Louis Circuit Court, Horner, J. Allowances iu the probate court are evidences of judgments rendered by a court of record, in the hands of parties in whose favor they were rendered. Such judgments are made assignable by statute, and the legal title thereto passes to the assignee. At common law, such assignments were not recognized. — Barden v. Savage, 1 Mo. 560. Such allowances are judgments.,— Rev. Stats. 1865, chap. 123, sect. 9.

Louis Circuit Court, Adams, J. Under the Missouri law, the homestead law is an exemption from attachment and execution when used as ahorne. — Rev. Stats. 451, sect. 2691. The homestead exemption is a right — an immunity from attachment and execution at the hands of creditors only — but is not an estate. — Black v. Outran, 14 Wall. 463; Hewett v. Templeton, 43 Ill. 367 ; Turner v. Bennett, 70 Ill. 263; Robinson v. Baker, 11 N. W. Rep. 410.

<p>1. Special Tax-Bills. — A special tax-bill made out against a lot in the city of St. Louis for its proportionate share of the cost of the street improvement, is not void because the work was not let out in one entire contract. Bakewell, J., dissenting.</p> <p>2. -Official Succession. — Where a tax-bill for work actually done is void for informality, and it afterwards becomes the duty of another officer to issue tax-bills, he may issue a valid tax-bill in place of the void one.</p>

Louis Circuit Court, Horner, J. The burden of showing circumstances that would justify or excuse the nondelivery of the goods is on the carrier. — Story on Bail., sect. 574, note 7 ; Levering v. TJ. T. & 1.

<p>1. Back Taxes — Fees ox Coixectoe and Attobnet. — The fees of the collector and his attorney in an action to collect unpaid taxes, may not exceed four per cent and ten per cent, respectively, of the sum actually collected.</p> <p>2. Notion to Retax Costs — Notice. — Failure to give formal notice of a motion to retax costs is immaterial where the opposite party has actual notice, is present at the hearing of the motion, and is not prejudiced by the failure to give formal notice.</p> <p>8. -Pabtibs. — Bondholders who are to receives pro recta share of the tax collected are parties in interest and may move to retax costs where excessive fees have been taxed.</p> <p>4. -Practice. — In case of an abuse in the taxation of costs in a suit for delinquent taxes, any attorney, though not representing any party, may move to retax the costs, or the court may retax them of its own motion.</p> <p>6. Back Taxes — Practice. —Money realized from the sale under execution of property for the payment of taxes should be applied first, to the payment of the costs, then to the commissions of the collector and his attorney, and the remainder paid into the treasury.</p>

Louis Circuit Court, Gottschalk, J. The assessments, levies, and sales, being in the name of Thomas, were nullities, and the failure of Anderson to pay them constituted no breach of his covenants. — Eev. Stats. 1865, p. 100, sect. 13 ; Abbott v. Lindenbower, 42 Mo. 162 ; Hume v. Wainscott, 46 Mo. 145 ; Abbott v. Doling, 49 Mo. 302.

Louis Circuit Court, Lindlet, J. Under the pleadings and proofs the court should have accorded to the defendant the instruction for… Held: also, that in order to terminate its liability as insurer for unclaimed baggage, the carrier, after a reasonable time for a passenger to receive and remove it has expired, must store the baggage, after which the liability is only that of warehouseman. — Barlholomewv. Railroad Go., 53 Ill. 227 ; Redmond v. Steamship Go., 46 N. Y. 583.

Louis County Circuit Court, Edwards, J. If the plaintiff performed the services with the expectation of receiving pay therefor, she is entitled to recover. — Dougherty v. Whitehead, 31 Mo. 255. After a part settlement of accounts, either party may enforce any claim not included in the settlement. — Gramly v. Webb, 44 Mo. 444; Vedder v. Vedder, 1 Denio, 257 ; Mills v. Geron, 22 Ala. 669.

Louis Circuit Court, Adams, J. It thus appearing, from the plaintiffs’ evidence, that the injury complained of was the result of the “ act of God,” as the proximate cause, the defendant was entitled to a verdict. — 2 Thomp. on Neg. 1227, note 2 ; Harris v. Paclcivood, 3 Taunt. 264; Beardslee v. Richardson. 11 Wend. 26; Browne v. Johnson, 29 Texas, 43; Larnt v. Railroad Co., 46 N. Y. 271; Jaclcson v. Railroad Co., 23 Cal. 268; Whart. on Neg., sects. 129, 661; Livzey v.…

Louis County Circuit Court, Edwards, J. “If the construction was that which was best adapted for those purposes, in known practical use, at the time the alleged cause of action arose, the duty of the company was performed.” —Fremantle v. Railway Co., 10 C. B. 95 ; F.& B. Turnpike Co. v. Railroad Co., 54 Pa. St. 342; Thomp. on Neg. 155; Reed v. Morse, 34 Wis. 315.

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

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

Louis Circuit Court, Thayer, J. The plaintiff, as owner of the fee of the street, had a common-law right, in the absence of any prohibitory city ordinance, to excavate the sidewalk and build the walls and sidewalk for basement purposes. — Fisher v. ThirTeell, 21 Mich. 1; McCarthy v. Syracuse, 46 N. Y. 194; Dubuque v. Mahoney, 9 Iowa, 450; Bliss v. Ball, 99 Mass. 597; White v. Godfrey, 97 Mass. 572 ; Lafayette v. Blood, 40 Ind. 62 ; Philadelphia v. Presbyterian Board, 9…

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

<p>1. Lis Pendens. — Creditor's Bill. —The filing of a creditor’s bill, -without service of summons, does not create a lis pendens or an equitable levy.</p> <p>2. Exemptions. —A creditor of a bankrupt debtor cannot take property claimed and allowed as exempt by the law of the debtor’s domicile, because of the debtor’s failure to answer an action in which he is not served.</p>

<p>1. AbobtioN — Manslaughter. —It is error to instruct the jury that if the defendant, by using an instrument to destroy an unborn child, killed the mother, he is guilty of manslaughter in the first degree if the child was not quick, and of manslaughter in the second degree if the child was quick.</p> <p>2. -Prior to 1879, the killing of the mother in an attempt to commit abortion was not manslaughter unless the child was quick.</p> <p>8. -The word “quick” is used in the statute in its common-law sense, to denote a definite period of pregnancy.</p> <p>4. -Indictment. — An indictment for the killing of a mother in an attempt to commit an abortion must charge that the mother was “ quick with child.”</p> <p>6. Jurisdiction on St. Louis Criminal Court. — The St. Louis Criminal Court has no jurisdiction to try indictments for misdemeanors.</p>

<p>1. Consignor and Consigner — Common Carrirr. — A contract of sale being rescinded by the consignee’s refusal to receive the goods because not delivered in time, the consignor, as the owner, may sue the carrier for failure to deliver.</p> <p>2.-Notice. — • A common carrier by rail is not bound to give notice te the consignee of the arrival of goods which arrive within the usual time.</p> <p>3. Presumptions — Foreign Laws. — The presumption is, in the absence of proof, that the law of a sister state is the law of the forum.</p>

<p>1. Practice — Bnx or Exceptions. —Motions for new trial not made apart of the bill of exceptions will not be considered on appeal, though they are copied into the transcript.</p> <p>2.-In such a case the appellate court will consider only errors which appear on the record proper.</p> <p>8.-Jurisdiction. — A Defendant who appeals from the judgment of a justice of the peace thereby submits to the jurisdiction of the circuit court, for all purposes.</p>

Louis Circuit Court, LiNlley, J. Although the form of the contract to buy or sell for future delivery is on its face legitimate, the intent to bet or wager on market fluctuations by settlement of differences only, without delivery, is illegal, and against public policy. —Waterman v. BucTcland, 1 Mo. App. 45; Williams v. Tiedemann, 6 Mo. App. 269.

Louis Circuit Court, HorNEr, J. A creditor, after notice of his debtor’s intent to hinder, delay, or defraud his other creditors, cannot make further advances to his debtor and take property therefor from this debtor; such a transfer of property is fraudulent as against other creditors. — Arnholt v. Hartwig, 73 Mo. 485.

Louis Court of Criminal Correction, Noonan, J. The municipal assembly of the city of St. Louis, under its present charter, has no power to pass ordinances inconsistent with the laws of the state, and no power to disregard the regulations and exemptions prescribed by general law before the adoption. of the city charter in respect to stréet railroads. — St. Louis R. Go. v. South St. Louis JR. Go., 72 Mo. 67; St. Louis R. Go. v. Northwestern R. Go., 69 Mo. 65.

<p>After the death of the maker of certain notes secured hy a deed of trust there was a default in the payment of the notes and a sale of the property by the trustees, at which the owner of the notes became the purchaser, and under which he went into possession. The amount of the principal note was not realized at the sale and the payee assigned the same for collection, the assignee to pay the expenses of collection, and to retain one-half the amount collected. The assignee employed the trustees, who were attorneys, to make the collection, they to receive a percentage as compensation. Several years afterwards, the payee of the notes discovered that the foreclosure sale was void, because of a failure to comply with the terms of the deed of trust in the matter of the advertisement of sale, and thereupon, under his direction, the trustees resold the property under the deed of trust. The advertisement complied with the terms of the deed of trust but did not state who was the grantor therein. The maker’s estate was insolvent, and his widow and minor child applied for an injunction to restrain the sale, or the removal of the trustees and for an accounting: Held, that the bill contained no equity; that the first sale was no cloud upon the title; that the second advertisement was sufficient; that the mortgagee in possession not having refused to account, there was no ground for the appointment of a receiver; that the trustees were not interested in the trust debt, and properly, upon learning of their mistake, reassumed their duties as trustees.</p>

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

Louis Circuit Court, Lindley, J. It is well settled law, that when a person, who is put to an election or selection under a will, once makes a valid selection or election under and by virtue of the terms thereof, with a full knowledge of the facts and rights to which the person put to his selection was entitled, he is forever bound and concluded by such election. — 2 Redf. on Wills (3rd ed.), 362 ; Winton v.-, 21 Beav. 447 ; Sanger v. Wood, 3 Johns. Ch. 421.

Louis Circuit Court, Boyle, J. However erroneous the order appointing the receiver, however improvident any order of the court in reference to his acts or authority, these orders must stand, and be respected and obeyed until set aside by a direct proceeding for that purpose.

<p>1. Homestead. —A widow wlio had joined with her husband in a deed of trust cannot have homestead in the proceeds of a foreclosure sale, remaining after satisfying the debt.</p> <p>2. Jurisdiction. — The probate court haa no power to render a decree in equity assigning dower or homestead in land, or in money regarded as land, for equitable purposes.</p> <p>8. — The circuit court cannot, in the exercise of original jurisdiction, assign dower in the personalty of an estate; nor can the parties confer such power.</p>