Volume 14 — Missouri Appeal Reports

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

Louis Circuit Court, Thayer, J. Where bankrupt laws are in force, the public policy of the government is embodied in the provisions therein made for the surrender and distribution of the assets of insolvents ; and every contract and device intended to defeat the full and free operation of these provisions is illegal as against public policy. —JSTerot v. Wallace, 3 Term Rep. 17 ; Bell v. Liggett, 7 N. Y. 176; Downs v. Lewis, 11 Cush. 78; Dexter v. Snow, 12 Cush. 594; Austin…

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

Louis Circuit Court, Thayer, J. This is an action at law, in the strict sense of the term, under the statute, section 3562 (Harrington v. TJtterbach, 57 Mo. 519 and 521), and is distinct from an equitable action, examples of which are to be found in Taylor v. Ulrici (19 Mo. 89) and Pattison v. McOamant (28 Mo. 210).

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

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

<p>1. Husband and ‘Wife — Tenant by Curtesy. — During coverture, where issue is born alive of the marriage, the husband is not a tenant by the curtesy of his wife’s lands, but is seised only by right of his wife.</p> <p>2. -Seisin — Actions. — Their seisin is-joint, and if they are disseised they must jointly sue to recover possession.</p> <p>3. -The children in such a case, have no right of entry or of action upon the death of the wife, the husband surviving.</p> <p>4. -Limitations. • — Upon the death of the husband after the wife in such case, the children, though infants, must sue within such time as, rejecting the period during which the life estate of the father barred their right of entry, would be within twenty-four years from the beginning of the adverse possession of the defendant.</p>

<p>1. Husband and Wife — Actions — Parties. — In an action, on a constable’s bond, for an illegal levy upon tbe earnings of a wife and minor children whose husband and father had abandoned them, the husband is not a necessary party as a relator of the plaintiff.</p> <p>2. -Abandonment. —In such a proceeding it is immaterial that a judicial finding of abandonment and a decree for maintenance, under the statute, has'not been had.</p> <p>3. -Evidence. —Evidence of what the husband said at the time of leaving, as to his reason for leaving his family, is competent to show abandonment.</p>

<p>1. Nbw Trial — Practice. — Appellate courts -will not reverse a judgment for a refusal to" grant a new trial, unless the trial court has abused its discretion.</p> <p>2. -A new trial will not be granted because of remarks made by witnesses, out of court, in the hearing of the jurors, unless such remarks have an apparent tendency to prejudice the losing party.</p>

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

Louis Circuit Court, Thayer, J. The scale bill by which the plaintiffs-bought the logs in question became a part of the. contract of sale, so that defendants are bound by it, although not referred to in the memorandum or bill of sale.— Chapin v. Dobson, 78 N. Y. 74; Phelps v. Whitaker, 37 Mich. 72 ; Richards v. Fuller, 37 Mich. 161; Railroad Co. v. Walsh, 85 111. 58 ; Doulin v. Daegling, 80 III. 608; Greenleaf Er.

<p>Criminal Law — Instructions —Assault.—Evidence by a defendant on trial for an assault with intent to kill, that he did not intend to hurt or kill any one, warrants an instruction for a common assault, though the evidence is that he deliberately fired a pistol at a crowd of men, striking ■ and tearing the clothes of one of them.</p>

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

<p>1. Stockholders. — Shares of stock having, among other things, been allotted, under the statute, to a widow, out of her husband’s estate, and an order of distribution made and the estate settled, she having assented to the order and accepted a part of the property so allotted, became a stockholder and liable to a creditor of the corporation.</p> <p>2. --This liability attaches though she had not actually received the stock, and though there had been no transfer on the books of the corporation to her or to the administrator,</p> <p>3. -The creditor’s failure to prove up the claim, which had matured, against the deceased stockholder’s estate is no bar to an action against the distributee of the stock.</p> <p>4. -A creditor who first sues a stockholder does not thereby acquire an indefeasible priority.</p> <p>ñ. -That proceedings by other creditors against the stockholder are pending is no defence to the action.</p>

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

<p>1. Pleading — Practice. — An answer is a waiver of all merely formal defects in a petition which states a cause of action.</p> <p>2. -Corporations — Estoppel. — A corporation, by its answer and appearance to the merits, is estopped to deny its corporate existence.</p> <p>3. Negligence — Damages. — Evidence that a fire began on the defendant’s land just after the passage of its locomotive and spread to and burned the plaintiff’s property on adjoining land, makes a prima facie case.</p> <p>4. -Burden op Proop. — A prima facie case being made, the burden is on the defendant to show that the escape of sparks from the passing locomotive was not the result of its negligence.</p> <p>6. -Practice. — A prt'ima facie case being made by the plaintiff and the defendant having shown that its locomotive was of the most improved pattern, the question of negligence is for the jury.</p> <p>6. Instructions — Practice. — A cause will not be reversed for omission or defects in an instruction if they are supplied or corrected in other instructions, and the instructions given are fair, consistent, and not misleading.</p>

Louis Circuit Court, Adams, J. Article VIII., of chapter 21, of the Revised Statutes of Missouri, went into effect on August 18, 1879. The appellant never became a stockholder. — Beach v. Smith, 30 N. Y. 116; Excelsior Go. v. Strayner, 25 Hun, 91. The signing of the memorandum sued on did not create the liability of a shareholder. — Thomp. on Liab. of Stock., sect. 105 ; Mudgett v. Howell, 33 Cal. 25.

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

Louis Circuit Court, Thayer, J. Stock notes of insurance companies are not negotiable.— Stillwell v. Oraig, 58 Mo. 24; Schultz v. Sutter, 3 Mo. App. 137 ; 1 Wag. Stats., p. 744, sects. 19, 20. And the indorsement of them by the corporation would be a nullity.— Strauss v. Eagle Ins. Go., 5 Ohio St. 65; Story on Bills, sect. 79 ; Floyd’s Acceptances, 7 Wall. 666. If such stock notes are negotiable, they are so only under statutory limitations.— 1 Wag.

<p>1. ’ Equity Practice — Referees.—A referee’s findings of fact in an equity proceeding is not conclusive upon the trial, or the appellate, court.</p> <p>2. Corporations — Distribution of Assets. — After providing for the payment of its debts a corporation may distribute its assets among its shareholders.</p> <p>8.-Receivers — Equity. — Assets distributed to shareholders, subject to a pledge to secure creditors, belong, in equity, after the debts for which, the pledge is made are paid, not to the receiver of the corporation, but to the shareholders.</p> <p>4.-The debts of the corporation being paid, assets distributed among the shareholders subject to a pledge for the payment of the debts, can not be subjected to the payment of the costs of the receiver’s administration.</p>

Louis Circuit Court, Thayer, J. Want of' service of notice, or that appearance by attorney was-unauthorized, may be shown to impeach a foreign as well as domestic judgment. — Marx v. Fore, 57 Mo. 69. And. this can be done, even though the jurisdiction of the court, over the person appeared affirmatively from the record.— JEagler v. Stover, 59 Mo. 87 ; Gorbey v. Wright, 4 Mo. App. 443 ; UTapton v. Leaton, 71 Mo. 358.

Louis Circuit Court, Horner, J. The selling of the coupon ticket by the agent of the Mobile and Ohio Railway over its own line and that of defendant, and the other lines of railway to Niagara Falls and return, did not make the said railways joint contractors. — Furstenheim v. Railroad Oo., 9 Heisk. 852-858; Hood v. Railroad Oo., 22 Conn. 1; Knight v. Railroad Go., 56 Me. 235.

Louis Circuit Court, Boyle, J. When a judgment has been rendered against a party by default, and the court was laboring under a mistake of fact, the matter may be corrected under a writ of error coram nobis.— Craig v. Smith, 65 Mo. 536 ; Latshaw v. McNees, 50 Mo. 381 ; Groner v. Smith, 49 Mo. 318, 324; Exparte Page, 49 Mo. 219, 294; 2 Tidd Pr. 1136; Willins v. Wheeler, 8 How. Pr. 116. No person can be deprived of his property without due process of law. — Const.

Louis Circuit Court, Horner, J. The notary did not exercise due diligence. — Gilchrist v. Donnell, 53 Mo. 591; Wolff v. Burgess, 59 Mo. 583. The service of notice was insufficient. — Sanderson v. JReinstadler, 31 Mo. 483; Tang v. Dismer, 71 Mo. 453.

Louis Circuit Court, Boyle, J. There is no presumption of negligence against a common carrier by reason of the fact that a passenger is injui’ed on its conveyances.— Yerbes v. Packet Co., 7 Mo. App. 267. When the facts as to negligence are clear and undisputed, the court should declare to the jury the inference to be drawn from the facts. — Bell v. Railroad Co., 72 Mo. 41, •58. The court erred in refusing appellant Higgins a separate trial. — Bev.

Louis Criminal Court. Laughlin, J. The appellant is entitled to have his cáse reviewed upon a complete record. — The State v. Reed, 67 Mo. 36. The order calling in Judge Burton was proper and lawful under [Revised Statutes, section 1877, which repealed all acts inconsistent therewith. — The State v. Kring, 74 Mo. 612; The State v. Houser, 28 Mo. 233.

Louis Circuit Court, Horner, J. Broadhead & Hauessler, of counsel: If Hamer, Stewart & Burnside had any claim for the money advanced on the cattle in question and assigned it either in law or equity, such assignment is only an assignment of a chose of action and therefore the bank took just what rights the assignors, Hamer, Stewart & Burnside had in the matter, subject to all legal and equitable set-offs, Phelps & Price, or either of them might have against the assignors.

<p>1. Judgments beak Interest. —Every judgment in a civil action bears interest, though it be not therein expressed, at the rate which the cause of action bore.</p> <p>2. -Mandamus — Executions. — A judgment founded upon another judgment which bore ten per cent interest being paid with six per cent thereon, mandamus will lie to compel the clerk of the court to issue execution for the balance of four per cent.</p> <p>6. -Practice — Clerks. — The judgment being silent as to interest, it is the duty of the clerk to ascertain from the record the rate of interest which it bears.</p> <p>4. Administration — Judgments. — An order upon an administration by the probate court to pay over a sum of money is a judgment.</p>

<p>Appeal from the St. Louis Criminal Court, Laughlin, J.</p> <p>Deliberation can not be presumed, but must be proved. — Murray v. The Commonwealth, 79 Pa. St. 311. As to the test of sufficiency of pi’ovocation. —See 2 Bishop Cr. L., sect. 710 ; The State v. Will, 1 Dev. & Bat. 167 — 169. The instruction defining murder in the first degree is fatally erroneous. —The State v. Peyton, 12 Mo. App. 568; The State v. Rose, 12 Mo. App. 567; The State v. Ellis, 74 Mo. 207; The State v. Rotovshy, 74 Mo. 247.</p>

<p>In a prosecution for larceny from a dwelling house by entering at night and ransacking rooms of the upper stories while the owners were below, it is competent to show that the wagon into which the defendant jumped to drive away, and in which he was immediately arrested, contained at the time of the arrest a billy, a pistol, and an outsider.</p>

Louis Circuit Court, Adams, J. The common fields were a connected and continuous' series of lots, en masse, surrounded by a common fence.— Page v. Scheibel, 11 Mo. 187; Glasgow v. Hortez, 1 Black, 595. If the whole of the township was granted or disposed of by said act of congress, tbe plaintiff can not recover in this action. —Glasgow v.Hortez, 1 Black, 595 ; 2 How. 345, 375 ; Glasgow v. Lindell’s Heirs, 50 Mo. 70, 81; Glasgow v* LindelVs Heirs, 72 Mo. 443.

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

Louis Court of Criminal Correction, Cady, J. The city charter of St. Louis authorizes the mayor and assembly by ordinance to regulate and license all ferries into, or out of, or within the harbor, and to establish ferry rates. —2 Rev. Stat., p. 1585, sect. 26, par. 4.

<p>1. Constitutional Law — Ordinances. — Where the provisions of an ordinance are separable the whole will not be declared void because of the unconstitutionality of a part.</p> <p>2. -A municipal regulation requiring street railroads to make quarterly reports of the number of passengers carried is not void as being unreasonable or in restraint of trade, and does not violate article V. of the amendments to the constitution of the United States.</p>

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

Louis Circuit Court, Wickham, J. Although a creditor at large, who has commenced suit by attachment and levied on goods and chattels of his debtor, can not, beforejudgment has been obtained, have equitable relief as to fraudulent judgments against his debtor, or restrain the transfer of his property, as was held in Martin v. Michaels (23 Mo. 50); nor redeem land within the state from a mortgage executed by his debtor, as was held in Fisher v. Tollman (74 Mo. 39) — for the…

<p>1. Equity — Creditor’s Bill. — Certificates of membership in the Merchants’ Exchange of St. Louis are property, and (subject to the rules of the Exchange) are liable for the debts of the owner, and may, by creditor’s bill, be subjected to the payment of a judgment-creditor.</p> <p>2. -Injunction — Execution. — A debtor member of the Exchange may in a proceeding in which he and the Exchange are joined, be restrained from disposing of his certificate of membership, and may be compelled to transfer the certificate to such purchaser at sheriff’s sale as possesses the qualifications of membership in the Exchange.</p>

Louis Circuit Court, Barclay, J. A partial assignee can not recover on his fractional interest, without making his assignor a party. — Smith v. Gary, 2 Dev. & B. 42, 50. If, however, the debtor chooses to waive his right to resist the division of an entire demand, he may If an entire demand is split up into two or more parts, and a judgment obtained upon one part, it will constitute a bar as to the remainder. — Flaherty v. Taylor, 35 Mo. 447; Railroad v. Traube, 59 Mo. 355.

<p>Criminal Law — Misdemeanors.—The provisions or section 1356, of the Revised Statutes, apply to street cars.</p>

<p>Appeal from the St. Louis Circuit Court, Horner, J.</p> <p>If the statute providing for notice by means of publication is strictly followed, such service gives the court jurisdiction, and a judgment obtained on such a service is good and will not be set aside. — Freeman v. Thompson, 53 Mo. 183 ; The State ex rel. v. Sargent, 12 Mo. App. 228 ; Kane v. McGown, 55 Mo. 181; Wellshear v. Kelly, 69 Mo. 345 ; Freeman on Judgments, sect. 124. And under such a judgment a purchaser will be protected and his title sustained. — Freeman on Judgments, sect. 509 ; Reeve v. Kennedy, 43 Cal. 649.</p>

<p>Judgment Lieut — Appeal — Supeksedeas. — The taking of an appeal which operates as a supersedeas does not extend the lien of the judgment beyond the statutory period of three years.</p>

Louis County Circuit Court, Edwards, J. There must be a separate finding upon each issue. — Clark v. Railroad, 36 Mo. 215 ; The State ex rel. v. Dulle, 45 Mo. 270; Brownell v. Railroad, 47 Mo. 243. “Where the finding is a general one, it will raise a presumption that all the issues have been duly considered by the jury (Stout v. Calver, 6 Mo. 256) ; and where the finding is merely defective or imperfect, the judgment will not be reversed, unless a motion has been made in the…

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

Louis Circuit Court, Lindley, J. The plaintiff, by his-own act, has so mingled his lien claim with his claim fox-which he has no lien, that they can not be separated, and thereby he has deprived himself of the benefit of the law.—Blakey v. Blakey, 27 Mo. 39; Bader v. Bensberg, 6 Mo. App. 445; Kershaw v. Fitzpatrick, 3 Mo.

Louis Circuit Court, Boyle, J. Taking the goods out of bond and shipping them on an unbonded vessel constituted a conversion. — Ang. on Car., sects. 431-433. The acceptance of the wine “ for transportation in bond to St. Louis,” amounted to an express promise to so transport. — Story Eq. Jur., sect. 1041. The bill of lading is the representative of the goods. — Benj. on Sales, sects. 813 822, 864, note; 1 Sm. Ld. Cas. 400, 417, 421; Dav. Nat. Bank v. Homeyer, 45 Mo. 145.

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

Writ of Certiorari. In a proceeding by certiorari, the only question is, whether there is error in the record of the inferior tribunal brought up by the writ. Nothing outside of the record can be considered for the purpose of determining that question. — The State ex rel. v. Powers, 68 Mo. 823; Hannibal, etc., P. Co. v. State Board, 64 Mo. 308.

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

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

Louis Circuit Court, Horner, J. It was error to consider the deed of trust. — Chambers v. Carthels, 35 Mo. 374. If the plaintiff has an action it is not against this executor. — Whittelsy v. Brohammer, 31 Mo. 98; Sauer v. Griffin, 67 Mo. 654.

Louis Circuit Court, Horner, J. Foreign judgments are entitled to full faith and credit. — Bigelow Estop., 195,202, 204; Sweet v. Brackley, 53 Mo. 346; Christmas v. Russell, 5 Wall. 290, 304. This court can only inquire if that court had jurisdiction, and no further. — Flanagan v. Hutchison, 47 Mo. 237; Barney v. White, 46 Mo. 137. To constitute a •bar, the former judgment must have been upon the merits. — Packet Co. v. Sickles, 5 Wall. 592.

Louis Circuit Court, Adams, J. A tax sale of several lots in one proceeding is void. — Keene v. Barnes, 29 Mo. 377 ; State v. Richardson, 21 Mo. 420; Yankee's?. Thompson, 51 Mo. 234. If it appears that the law has not been strictly followed the tax deed conveys no title. — Donohoe v. Heidel, 33 Mo. 335; Dunlap v. Henry, 76 Mo. 106 ; Ewart v. Davis, 76 Mo. 129.

Louis Circuit Court, Thayer, J. All that is required of the creditor is to issue execution and to show that the corporation had no property— Turner v. Adams, 46 Mo. 95 ; Kent v. Ourtis, 4 Mo. App. 121, 128, 130; Thompson on Liab. Stock., sect. 320 ; Maries v. Hardy, 12 Mo. App. 595.

Louis Circuit Court, Barclay, J. cited Jones v. Water Co., 18 Gra. 539 ; Anderson v. Railroad (7o.,54N. Y. 334. Where' the judgment is evidently for the right party, and the appellant could but be a loser if he should be granted a new trial, the appellate court will not reverse the judgment. — Hedeclcer v. Ganzhorn, 50 Mo. 154. Even though errors were committed by the court below. — • Jackson v. Magrudder, 51 Mo. 55.

<p>1. Notice — Computation oe Time. — An advertisement published for the first time on May 14th for a sale on June 2d. is not made in compliance with the terms of a deed which requires twenty days’ notice to be given.</p> <p>2. Estoppel — Ejectment.—The rule that one who is in possession under the plaintiff can not dispute the plaintiff’s title in an action for possession, is held not to apply to this case for want of evidence of the plaintiff’s title or of the defendant’s .possession under him.</p> <p>8. Ejectment. —A plaintiff in ejectment can not recover on the weakness of the defendant’s title, but must rely on the strength of his own.</p>

Louis Circuit Court, Lindley, J. Lionberger was not the party in interest. — Rev. Stats., sect. 2462 ; Williams v. Whitlock, 14 Mo. 560 ; Walhomfectel v. JDobyns, 32 Mo. 310 ; Hutchins v. Weems, 35 Mo. 285 ; Burt v. Flournoy, 4 Mo. 116.

Louis Circuit Court, Lubke, J. The answer does not set up facts constituting a counter-claim. — Chaneboret v. Cagney, 10 Abb. Pr. 36; JEdgerton v. Page, 20 N. Y. 285. In pleading a counter-claim the defendant must allege the same facts he would be required to allege if he had himself been suing the plaintiffs. — Bliss on Code Pleading, sect. 367, and cases cited; Holzbauer v. Heine, 37 Mo. 444 ; Vassear v. Livingston, 13 N. Y. 252 ; Ritchie v. Haywood, 171 Mo. 362.

Louis Circuit Court, Adams, J. A mere subordinate employe can not bind the corporation which employs him, in all respects and at all times, by knowledge which he may acquire. — Maupin v. Mining Co., reported in addendum to Cent. L. J., of July 20, 1883; Wharton on Agency, sects. 178-673 ; Story oil Agency, sect. 140 ; Ang. & Ames on Corp., sect. 308.

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

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

Louis Circuit Court, Thayer, J. Knowledge that the bill was accepted for accommodation does not affect the right of the holder for value to recover from the acceptor.— Dan. Neg. Inst., sects. 790, 786, 1335, 1336, and cases cited, note 1; Story on Bills, sects. 191, 1Ü4, 253, 423 ; (Jromise v. Kellogg, 20 111. 13. No delay in proceeding against the drawer can affect tbe liability of the acceptor to the holder. —Miller v. Mellier, 59 Mo. 388; Dan. Neg. Inst., sects. 546, 1326.

Louis Circuit Court, Lubke, J. The lease does not contain a sufficient description to satisfy the statute of frauds.— Scarrittv. Church, 7 Mo. App. 174 ; Whelan v. Scullen, 102 Mass. 204; Ives v. Armstrong, 5 R. I. 567. Parol testimony was inadmissible for the purpose of locating the property. —King v. Wood, 7 Mo. 383 ; Schroeder v. Taaffe, 11 Mo. App. 267 ; Williams v .

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

<p>Equity — Iujunction'—Nuis ancr — Dram-shops. — Equity will not restrain the keeping of an unlicensed dram-shop, though the keeping of it is a public nuisance.</p>

<p>1. Divorce — Witnesses. — In an action for divorce the parties are not competent witnesses as to words spoken by one to the other while they were alone.</p> <p>2. -Practice. —The admission of incompetent testimony which is merely cumulative and which can not prejudice the appellant, is not cause for the reversal of a decree of divorce.</p> <p>3. -Evidence.— That a witness is permitted to testify as to the plaintiff’s character in respect of that wherein it was not attacked, may not furnish ground for a reversal.</p> <p>4. -Pleading and Prooe. — A defendant in a divorce proceeding can not prove indignities offered by the plaintiff unless they are pleaded.</p> <p>5. Practice — New Trial. — It is not an abuse of discretion to refuse a new trial asked because counsel refused to examine witnesses in attendance and whose testimony the client requested him to take.</p> <p>6. -Divorce. — Appellate courts will, in divorce proceedings, weigh the evidence taken at the trial, but will not reverse unless the decree is manifestly for the wrong party or clearly against the weight of the evidence.</p>

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

Louis Circuit Court, Adams, J. The burden was on the defendant to account for the injury. Schouler’s Bailments, 23-25; Bush v. Miller, 13 Barb. 481; Logan v. Matthews, 6 Barb. 417; Goodfellow v. Meegan, 32 Mo. 28; Wisner v. Chesley, 53 Mo. 547. The plaintiff must prove a prima faeia case of negligence. Perry v. Beardslee, 10 Mo. 574; Beardslee v. Perry, 14 Mo. 93; MeGarthy v. Wolff, 40 Mo. 523.

<p>1. Negligence — Damages. — There can be no recovery for an injury to which the plaintiff’s negligence directly contributed.</p> <p>2. Practice — New Trial. — The refusal to grant a new trial on the ground of newly discovered evidence is not ground for a reversal where it does . not appear that such evidence would probably change the result.</p>

<p>Contracts — Public Poltcx. — A contract whereby a person binds himself ' to refrain from competing for public work is void as against public policy.</p>

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

<p>Married Women— Witnesses. — In an action against the husband, the wife is not a competent witness, though her testimony is to the effect that the right is in her and not in the husband.</p>

<p>Evidence — Res Gestíe.— The question being as to whether there was a sale and purchase of a draft, statements of the indorser as to his intention in making the transfer, made without the indorsee’s knowledge, are inadmissible.</p>

<p>Application for certiorari.</p>

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

<p>1. Municipal Ordinances — Railroads. — A municipal requirement that all trains propelled by steam shall sound the hell and shall have a brakeman and a lookout thereon, is not void for unreasonableness.</p> <p>2. -That such a requirement applies to trains moving over grounds of the defendant, which are open to the public, does not involve any property rights nor exonerate the defendant from the duty of observing the regulation.</p> <p>3. --Police Power. — The city of St. Louis may, under its charter, pass such an ordinance as a police regulation.</p> <p>4. Railroads — Negligence — Damages. —A failure, in violation of municipal regulations, to keep a brakeman and a lookout on the train, which contributes directly to the injury, may render the defendant liable, not withstanding the plaintiff’s negligence in not looking for the train, if, by the observance of such regulation the accident could have been avoided.</p> <p>6. — It is negligence for a railroad company to send its detached cars, without a brakeman, over its own grounds which are open to the public, in the city of St. Louis,</p>

Louis Court of Criminal Correction, Noonan, J. Architects are not named in the enumeration of pursuits which are subject to be licensed.

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>Injunction will lie to restrain an interference with a right of way.— London M. W. JR. JR. v. Lancashire & Y. JR. JR. Co., 4 Eq. 178; Goodson v. Richardson, 9 Ch. 221; Allen v. Martin, 20 Eq. 465 ; Ardley v. Guardians of St. Paneras, 39 L. I. 871. The remedy must be sought while the work is unfinished, because when it has been once completed, the party must resort to an action of damages.— Fanors v. Van Littart, 1 Ra. Ca. 602 ; Drere v. Guest, 1 M. & C. 516; Moreland v. Richardson, 22 Beav. 604; Gamochanr. Norwich, 8. R. Co., 26 Beav. 171; Doran v. Carroll, 11 Ired. Ch. 379. The only counsel fees recoverable in any event are those necessarily incurred to secure a dissolution of the injunction already granted.— Bostmantel v. Stewart, 55 Cal. 115; Steele v. Thatcher, 56 111. 257; Hovey v. Rubber Tip Go.', 12 Abb. Pr. (n. s.) 360. Time lost in consultation with counsel are not proximate damages.— Center v. Hoag, 52 Vt. 401; Lange v. Wagner, 52 Md. 310; Campbell v. Metcalf, 1 Mont. Ty. 379 ; Brown v. Jones, 5 Nev. 374. Nor can any damages be recovered resulting from the fact that defendants were enjoined from committing a trespass — Jenkins et al. v. Park-hill, 25 Ind. 473, 479.</p> <p>“ An injunction should only be granted when the rights sought to be protected are clear, or at least free from reasonable doubt.” —Willard’s Eq. Jur. (Potter’s ed.) 342; Hill, on Inj. (3d ed.) 19; Washb. on Ease. (3d ed.) 700. “ He who seeks the interference of a court of equity must not come with unclean hands.” — Casseday v. Metcalf, 1 Mo. App. 593. An injunction is not issued by a court of equity as a matter of right, but as a matter of grace. And “ no injunction will be granted when it will operate oppressively, inequitably, or contrary to the real justice of the case.” — Hill on Inj. (3d ed.) 33; 2 Story’s Eq. Jur. (11th ed.), sect. 959, p. 169. An adverse user of the grounds "subject to the easement for the period of limitation destroys the easement — Washb. on Ease. (3d. ed.) 672. One can not claim a right, the enjoyment of which he has rendered impossible by his own act. — Taylor v. Hampton, 4McCord, 96.</p>

Louis Circuit Court, Adams, J. Evidence of the testimony of a witness before the justice is inadmissible on trial anew in the circuit court. — Phil. Ev., 215; 2 Starkie Ev. 894; Wilber v. Selden, 6 Cow. 162; Bergen v. The People, 17 111. 426. This firm was not a trading firm ; the paper involved here, is not a negotiable instrument, and is still in the hands of the original payee.

<p>1. Master and Servant — Contract or Hiring — Bar to Actions__A recovery by a servant for a breach of a contract of hiring, in an action brought before the termination of the period for which he was hired, is a bar to a subsequent action for a breach of the same contract.</p> <p>2. -- Damages. —1 In an action so brought after a wrongful discharge of the servant, the recovery is for damages and not for wages for constructive service.</p> <p>3. -* A servant can not, after his discharge, treat the contract as still subsisting, remain in voluntary idleness, and recover for constructive service.</p>

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

<p>Agency — Evidence.—Statements or declarations made by an agent while acting within his real or ostensible authority, are admissible as a part of the-res gestee.</p>

<p>1. Contract — Breach or — Damages. — In an action for a breach, of-a contract to erect a furnace “ in a good and workmanlike manner, and to guarantee the said furnace to work satisfactorily in melting iron,” the court properly rejects evidence that the furnace did not work to the plaintiif’s satisfaction.</p> <p>2. -Evidence. — Evidence of the cost of testing the furnace after its completion was properly refused, inasmuch as the cost of making the test was not to be paid for by the defendant.</p>

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

Louis Circuit Court, Thayer, J. The purpose of this bailment, being to play a game of chance for the ownership of property, is, within the meaning of section 1560 of the Revised Statutes of 1879, was a misdemeanor, and the court below erred in lending its aid to enforce an illegal act. — Hayden v. Little, 35 Mo. 418; Waterman v. Buchland, 1 Mo. App. 45.

Louis Circuit Court, Thayer, J The plaintiffs were entitled to a trial by jury, and the court erred in denying a jury trial. — Davis v. Morris, 36 N. Y. 569; Ragan v. McCoy, 29 Mo. 356; The State ex rel. v. Meagher, 44 Mo. 356; Peacock v. Nelson, 50 Mo. 256; Kitchen v. Railroad Co., 59 Mo. 514; Wolf v. Schafer, 4 Mo. App. 367 ; Pitcher v. Hennessey, 48 N. Y. 415.

Louis Circuit Court, Adams, J. The trunk was accepted as baggage for carriage. The mere receipt of it was an acceptance. — Prewitt v. Han. etc., R. R. do., 62 Mo. 527; Lauder v. Pacific R. R. Co., 50 Mo. 346. The conductor was chargeable with knowledge of the nature of its contents. Whart. on Ev.,sect. 1243; Whart. on Crim. Law, sect. 725. The defendant is accordingly liable for the loss in suit. — Boss v. Missouri, etc., Go., 4 Mo. App. 582; Stonemanv. Erie By.

<p>Apeal from the St. Louis Circuit Court, Thayer, J</p> <p>An attorney, by virtue of his retainer and general control over the cause, has the power to order briefs printed, and his client will be liable for the expense. — Weisse v. New Orleans, 10 La. Ann. 46; Weeks on Attorneys, 379 ; Wait’s Actions and Defences, 438. An attorney at law has authority, by virtue of his employment as such, to do, in behalf of his client, all acts, in or out of court, necessary or incidental to the presentation and management of the suit, which affect the remedy only, and not the cause of action. — Moulton v. RowTcer, 115 Mass. 40. For further illustrations of this rule see: Clark v. Randall, 9 Wis. 128; Nelson v. Cook, 19 111. 453; Gorham v. Gale, 7 Cow. 744; Union Bank v. Geary, 5 Pet. 113 ; Newberry v. Lee, 3 Hill, 523; Ostrich v. Gilbert, 9 Hun, 245; Jenny v. Delesdernier, 20 Me. 191. An attorney is vested with reasonable discretion in the selection and use of the means to accomplish the object of his employment; and if the means enployed are such as are customary or usual, or such as are proper under the circumstances of the case, the attorney will be held to have acted with reasonable discretion in the selection of such means, and his acts will be binding upon his client. —■ Bchoregge v. Bishop (Minn.), 13 N. W. Rep. 194.</p>

Louis Circuit Court, Lubke, J. It is necessary to the validity of partition sales, that there should be the utmost good faith on the part of all persons concerned. — Goode v. Grow, 51 Mo. 241; Stoffel v. Schroeder, 62 Mo. 149 ; Thornton v. Irwin, 43 Mo. 163 ; Grumieyv. Webb, 44 Mo. 448 ; Rea v. Gopelin, 47 Mo. 82.

Louis Circuit Court, Adams, J. It is immaterial, especially, as no point was made on it below, that plaintiff did not expressly declare what section she was proceeding under. Indeed, it is immaterial that she or her counsel may not have known. An erroneous theory, temporarily entertained, will not destroy a case, good on its facts. — Perry v. Turner, 55 Mo. 426 ; Voorhis v. Smith, Beggs & Co., 11 Mo. App. Ill; Benin v. Powell, 11 Mo.

Louis Circuit Court, Horner, J. The fact that the transaction being not merely malum prohibitum but against public policy bars the interpleader from equitable relief. — KitchenY. Greenubaum, 61 Mo. 116.

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

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