Volume 15 — Missouri Appeal Reports

<p>1. Murder—Instructions — Just Provocation.—In a trial for murder where the homicide is either murder in the first degree or justifiable homicide, and where there is no evidence of any provocation, that the trial court, in defining murder in the second degree, failed to define “just provocation,” is not ground for a reversal of the judgment.</p> <p>2. -Evidence. —It fully appearing that the defendant was employed as a cook at the time of the homicide, it is not error to exclude a question as to what kind of work she did, her character for industry or sobriety not having been attacked.</p> <p>3. -It is not error to exclude a question as to whether the witness saw the defendant at the place of the homicide, no time being designated.</p> <p>i. -Cross-Examination. — A defendant in a criminal case may, when he is a witness on his own behalf, be cross-examined as to any matter pertinent to the issue.</p> <p>-5. -Practice.—Improper testimony offered by the state in a criminal case should he excluded, though the objection to it he not made specifically.</p> <p>6. -Unless questions are clearly imperfinent and injurious to the defendant, the court is not bound to interrupt the cross-examination of a defendant who is a witness on his own behalf, when no objection is made by the defendant.</p>

<p>1. Contract of Hiring—Assignment. — A contract of hiring is personal in its nature and is not assignable.</p> <p>2. -A contract to serve a copartnership during a given period is dissolved by the death of one partner and the substitution of another during the term.</p> <p>3. -Rule of Construction. — The language of a written contract should be given such a reasonable interpretation as will give effect to the intention of the parties as is gathered from the writing itself.</p>

<p>1. Partition — Pinal Judgment — Appeals. — In partition proceedings the order of partition an'd sale is not a final judgment from which an appeal will lie.</p> <p>2. -Practice—New Trial. — In such a case where a motion for á new trial is duly made after the order of partition and sale, it is unnecessary, in order to save exceptions made at the trial, to renew the motion after the order confirming the sale is made.</p> <p>3. -Widow — Homestead. — That a widow resides, with her minor son, on property at the time of a proceeding in partition is not evidence thát the property is a homestead.</p> <p>4. -The widow’s removal from the land occupied by her husband at the . time of his death, does not destroy the homestead right of a minor child, nor vest him with a homestead right in property to which he may be removed.</p> <p>5. -Partition may be had before the decedent’s estate is settled if there is other property sufficient to pay his debts.</p> <p>6. -Pleadings — Husband and "Wipe. — An allegation that the widow-had elected to take a child’s share in the estate is good after judgment though it further appear that she was married at the time and it is not alleged that her husband joined in the declaration of election.</p> <p>7. -- An objection that there was no sufficient evidence that the property was insusceptible of division in kind can not be made for the first time on appeal. ,</p> <p>8 Practice—Objections must be Specific.—Appellate courts will not consider objections to evidence whioh were not specifically made at the the trial.</p> <p>9. Motions — Arrest — New Trial. —Motions for a new trial and in arrest of judgment must be made in four days after the trial,—not four days after final judgment.</p>

Louis Circuit Qpurt, Thayer, J. These proceedings being in invitum, no presumptions of jurisdiction are made. Every fact necessary to jurisdiction must affirmatively appear. — Kansas City K. JR. v. Campbell, 62 Mo. 585 ; Cole v. Cole, 3 Mo, App. 571; In re Burmeister, 56 How. Pr. 416. Where facts preliminary to an ordinance are required, their absence renders the ordinance void.

<p>1. Landlord and Tenant — Vendor and Vendee—Judgments.—If a tenant of a former owner refuse to attorn to the purchaser of the premises by paying the rent demanded in an action before a justice, the judgment will be for possession only.</p> <p>2. -Action on Appeal Bond. — If the judgment is for the plaintiff in the circuit court on appeal,.he may recover, in an action on the defendant’s appeal bond, the rent due at the time of, or accruing subsequent to, the appeal.</p> <p>3. - If there be a further appeal by the defendant, and the judgment is affirmed, the loss of rent pending that appeal is a part of the damages recoverable in an action on that appeal bond.</p> <p>4. -A sale of the leased premises by the plaintiff pending an appeal does not release the defendant from his obligation to pay rent, unless the vendee has claimed the rent which has accrued since the sale.</p>

Louis Circuit Court, Barclay, J. A judgment of non -suit after submission can not be rendered. — Rev. Stats., sects. 2984, 2987, 2988, 2990, 2991 and 3556. A dismissal after final submission is a bar to any further action. —/less v. Beckman, 11 Johns. 457 ; Blwell v. McQueen, 10 Wend. 522 j Peters v. Dairy, 3 E. D. Smith, 115 ; Young v. Bummell, 5 Hill, 60 ; Gillilan v. Pratt, 8 Abb. Pr. (n. s.) 14 ; Wells Res. Adj. 375. cited Flesh v. Christopher, 11 Mo. App. 483.

Louis Circuit Court, Lindley, J. The right to a change of venue does not rest upon the discretion of the court.— Gorpenny v. Seclalia, 57 Mo. 96; Darby v. Stark, 60 Mo. 51; Dunklin Go. v. Clark, 51 Mo. 60.

<p>1. Contracts — Breach — Sale by Grade. — In an action for a breach of contract for the delivery of a certain quality of grain, the purchaser need not show an inspection of the grain before shipment.</p> <p>2, Guaranty — Sales by Grade. — The sale of an article of merchandise which the purchaser has not seen, by a specific description known to the parties, implies a guaranty that, when delivered, the article will be of the particular description; but this guaranty has no reference to quality or value.</p>

<p>1. Practice—Presumptions.—The cause having been tried by the court without a jury, and no declarations of law having been asked or given, it will be presumed, on appeal, that the court entertained correct views of the law, and, if there is substantial evidence to support the judgment, it will be affirmed.</p> <p>2. Corporations — Stock — Presumptions.— The presumption is that a certificate of stock in the usual form is full paid, and a purchaser who takes it without notice is not liable to creditors if the company’s representations that the stock is full paid are false.</p> <p>3. -Liability op Stockholders — Surrender op Stock. — A stockholder who surrenders unpaid stock to the corporation is not liable thereon to a creditor of the corporation whose demand accrued after the surrender.</p>

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

Louis Circuit Court, Barclay, J. Although the premiums were voluntarily paid by the defendant-, they were paid with the consent and knowledge of the beneficiary, who must account for the money so paid out to her use.— 2 Phill. on Ins., sects. 1909, 1911 ; Spring v. Insurance Oo., 8 Wheat. 268 ; Moody v. Webster, 3 Pick. 424; Connecticut Insurance Co. v. Burroughs, 34 Conn. 305.

<p>1. Contracts—Interpretation. — The court, and not the jury, must interpret written contracts.</p> <p>2. -A qualified acceptance of a proposition made by letter does not bind the other party to the correspondence.</p> <p>3. Pleadings. — A petition which states a contract by way of inducement, and then declares upon a subsequent agreement based upon a condition not alleged to have been performed, states no cause of action.</p> <p>4. _ Practice. — A proviso in the nature of an exception embodied in a contract which constitutes the cause of action, must be set up in the petition and a liability consistent therewith shown.</p> <p>6. Practice — Bills op Exceptions. — Statements contained in a written opinion of the trial judge and set out in the transcript, do not thereby become a part of the record.</p>

<p>1. Evidence — Witnesses. — A child who is capable of receiving correct impressions of facts and of relating them truly, is competent to testify.</p> <p>2. - That a child otherwise competent, has never received religious instruction, does not disqualify him as a witness.</p> <p>3. Practice — Instructions.—If the instructions given are not set out in the bill of exceptions the instructions refused will not be reviewed on - appeal.</p> <p>4. -Demurrer to Evidence — Waiver. — The defendant waives his demurrer to the evidence by presenting his own case.</p> <p>6. Negligence—Contributory. — The negligence of the parents of a child who Í3 injured may be imputed to the child who, by reason of tender . years, can not be guilty of negligence.</p> <p>6. - Contributory negligence of the plaintiff will not prevent a recovery, if the defendant could, by the exercise of reasonable care, have seen the danger and avoided the injury.</p> <p>7. Practice — Infants — Next Eriend. — In an action by an infant, by next friend, want of evidence of appointment of the next friend can not be taken advantage of on appeal where it has not been specially set up in the answer or raised by demurrer.</p>

<p>1. Ordinances — Constitutional Law. — Proceedings had under an ordinance between the date of its passage and the date when it takes effect, are void.</p> <p>2. Notice — Special Taxes. — An ordinance requiring the board of public improvements to advertise the letting of contracts for public work is mandatory.</p>

Louis Circuit Court, Horner, J. No notice to obligors of order, to deliver the check to the sheriff, was required. — 1 Rev. Stats., tit. “Attachment,” sects. 421, 451, 452, pp. 66, 72; Weed v. Dills, 34 Mo. 483. The Hen of the attachment survived the execution of the bond by Fletcher, and attached to the check in his hands. — Drake Attachment (5th ed.), ch. 13, sect. 331; Evans v. King, 7 Mo. 411; Haber v. Klauberg, 3 Mo. App. 342.

Louis Circuit Court, Thayer, J. After a foreclosure of a mortgage an action may be brought on the secured note or bond for any remainder due. — Newaly. Wright, 3 Mass. 150; Amory v. Fairbanks, 3 Mass. 562 ; Westv. Ghamberlain, 8 Pick. 336 ; Jones onMort., sect. 950 ; Standish v. Vosberg, 27 Minn. 175. A second action may be brought upon a bond for a breach thereof not included in the former suit. — The State v. Morton, 18 Mo. 53.

Louis Circuit Court, Lubke, J. Under the charter and ordinances of the city of St. Louis, then in force, the relinquishment of Papin Street, by the Glasgows, in 1854, gave the city the same rights thereto as in case of ordinary streets, and among others the right to abolish the same. — Kimball v. Kenosha, 4 Wis. 321; Gray v. Iowa Land Go., 26 Iowa, 387.

<p>1. Special Juries — Challenges — Practice — New Trial. — A party can not make Ms challenge to an array of jurors for the first time in his motion for a new trial.</p> <p>2. - Objections to the officer who summons a jury must be made before the trial of the cause and can not be raised by motion for a new trial.</p> <p>3. Constitutional Law. — The statute which allows either party to have a special jury upon paying the cost thereof does not violate any provision of the constitution or of the bill of rights.</p> <p>4. -Such a statute is not void for a failure to prescribe the exact method of summoning the jury; the general law furnishes a sufficient guide as to that.</p> <p>5. -In summoning a special jury the sheriff is not bound to follow the rules and usages of the common law relating to the summoning of special or struck juries.'</p> <p>6. -The statute as to impannelling special juries is merely directory, and a violation of its provisions is not ground for a reversal of the judgment unless prejudice to the appellant is fairly inferable from the circumstances of the case.</p>

Louis Circuit Court, Thayer, J. Upon a fair construction of the statute relating to homestead, appraisers may be appointed and homestead set apart under a writ of attachment.— Vogler v.Montgomery, 54 Mo. 583 ; The State ex red. v. Diveling, 66 Mo. 379.

Louis Circuit Court, Adams, J. The sale was fraudulent per se, and was concealed from plaintiff and his grantors until March, 1880. The statute does not run in cases of concealed fraud.— Damschroeder v.. Thias, 51 Mo. 100 ; Blair v. Bromley, 2 Phil. 354; Martins. Smith, 1 Dill., 95.

The payment of the award under the statute is an actual payment to the owner when it is paid into court for his use. — Cooley Const. Lim. 702 ; Chambers v. Railroad, 10 Am. & Eng. R. Y. Cas. 376. And he may compel its payment to him by the clerk by mandamus. — Van Norman v. Jackson, 45 Mich. 204; Virginia v. Rivers, 100 U. S. 323; Freemont v. Crippen, 10 Cal. 211; High on Mandamus, sect. 17.

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

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

Louis Circuit Court,. Barclay, J. This being an action for assault, it abates on the death of defendant. — Rev. Stats. 1879, sects. 96 and 97 ; Stanley v. Vogel, 9 Mo. App. 98. And even after judgment and during appeal. —Taney v. Edwards, 27 Texas, 224. The instruction given by the court on its own motion was erroneous, because it referred the jury to the pleadings, to ascertain the issues. — Darsler v. Wixley, 32 Mo. 498; Mo.

<p>1. Common Carriers — Liability or. — A common carrier can not escape responsibility for the loss of freight, not caused by the act of God or the public enemy, by showing that it employed the means of transportation furnished to it by others.</p> <p>2; -Agency.—In the absence of contrary proof it will be presumed that the persons employing .the carrier acted as the agents of the owner in making the contract of carriage.</p> <p>3. -Pleadings. — Á petition containing facts sufficient to ñx a liability upon a common carrier at common law, is good after verdict.</p>

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

Louis Circuit Court, Adams, J. An agent is the employe of the company; a broker is the agent of the one soliciting insurance. — Butler v. Dorman, 68 Mo. 298. In cases where the writing only pi’ofesses to be, or in its nature is only a part of the entire transaction resulting in agency, then the writing does not bar proof of the other parts by parol.—Story’s Ag. (9th ed.), sects. 79, 80. The question of agency in this case was for the jury. — London Society v. Bank, 36 Pa.

Louis Circuit Court, Horner, J. The description in the deed is so uncertain as to render the deed void. — Campbell v. Johnson, 44 Mo. 247; Holme v. Shaufman, 35 Mo. 273; Bell v. Dawson, 32 Mo. 79. A grant of an easement can be made only by a person who has the entire interest in the soil. — Washburn, on Easements, p. 29, sect. 3 ; Bortmore v. Brenn, 3 Dow. & R. 145.

Louis Circuit Court, Adams, J. The plaintiff in replevin succeeds to the interest of the defendant in the property — his bond is substituted for the goods — Acker v. White, 25 Wend; 616. He could sell the property pending the replevin suit and give a good title. — Wells on Replevin, sects. 476-480.

Louis Circuit Court, Adams, J. The right to recover the excessive payments made by plaintiff to the defendant is sustained by the decisions ; the the payments are not considered by the courts as voluntary.— Railroad Go. v. Steiner, 9 Law & Eq. Rep. 39; G. & A. R. Go. v. G. W. R Go., 79 111. 121; Hays v. Pa. R. Go., 12 Fed. Rep. 309 and note; Nicholson v. G. W. R. Go., 5 C. B. (n. s.) 366.

Louis Circuit Court, Adams, J. The homestead estate is an entirety.

<p>1. Special Taxes — Sewers. —The acceptance of public work by the sewer commissioner is not a judicial act, and he may correct an erroneous decision with reference thereto made by him in consequence of a clerical error.</p> <p>2. -When, owing to a clerical error the plans under which sewer work is done does not conform exactly to the ordinance, is immaterial, if the work is done in conformity to the ordinance and to the intention of the parties; and valid tax bills may issue therefor.</p> <p>3. -Ordinances. — Under the charter of the city of St. Louis, where an ordinance providing for the building of a sewer is passed on the recommendation of the board of public improvements, it is immaterial that the petition therefor was not signed by a majority of the resident property holders.</p> <p>4. -Demand — Interest — Practice. — A demand before suit is not a condition precedent to a recovery on a special tax bill, but where no demand is made, interest runs only from the date of the suit.</p>

<p>L Motions — Bills of Exceptions — Stockholder. —A motion for execution against a stockholder is no part of the record unless made so by a bill of exceptions.</p> <p>2. -Practice. —A bill of exceptions must be signed at the term at which the motion for a new trial is overruled unless it is done by consent appearing of record.</p> <p>3. -Appeals. — An appeal, granted at a term subsequent to'the one at which the motion for a new trial was overruled, must be dismissed.</p>

Louis Circuit Court, Thayer, J. The court improperly amended the verdict. There was no judgmentas to one of the defendants.—2 Saund. (Eng.) 212, note 4; 2 Hill (N. Y.), 332 ; 48 Conn. 520 ; 45 Texas, 220-226 ; 2 Saund. 212 ; 5 Mass. 1; 1 Ld. Raym. 324, 600 ; 3 Mo. 39.0 ; 2 Mo. App. 571; affirmed, 7 Mo. App. 89 ; 17 Ga. 361; 12 111. 84 ; 37 111. 164 ; 2 Hill, 332 ; 4 Yeates (Penn.), 293 ; 2 Strange, 1089; .23 Mo. 389; 5 Mo. 51; 19 Mo. 442.

Louis Circuit Court, Thayer, J. The court erred in admitting in evidence the sheriff’s deed to John H. Bobb, based upon the sale of the property levied upon under the execution in the case of Lewis v. Bobb, because plaintiff is .estopped by the decree in partition in the case of Zelle v. Bobb from asserting any right, title, or interest as against the title vested in Cora B. Taylor to the land in question in the final decree in partition. — Murray v. Yates, 73 Mo. 13; Border…

<p>1. Notice. — The constructive notice of an adverse title to realty imparted, hy the records is not, under section 2259 of the statute, sufficient to preclude a recovery hy an occupant for improvements.</p> <p>2. -Positive knowledge and knowledge of facts which put a person upon inquiry, are hoth actual notice.</p> <p>3. -•Pbactice. — Questions of actual notice are for the jury.</p>

<p>1. Landlord and Tenant — Tenancy at Will — By Sum’erance — Notice to Quit, — A lease by a tenant at will is good as between the lessor and the lessee, but after the demise of the tenant at will, the relation of the demisee to the owner is that of a mere tenant at sufferance and he is not entitled to notice to quit.</p> <p>2. -The general rule that a tenant may not dispute the landlord’s title does not apply where the demisee of a tenant at will, after the latter’s death, attorns to the owner, and refuses to pay rent to the legal representatives of the tenant at will.</p> <p>3. Witnesses—Death oe the Other Party to Oontract. — To render a party to a contract incompetent as a witness, by reason of the death of the other party, he must be also a party in the suit in which he is offered as a witness.</p>

Louis Circuit Court, Horner, J. Any neglect of duty by a constable fixes his liability on his official bond, because the condition of the bond is broken. — Thompson on Exemption, sect. 878 ; The Commonwealth v. Stockton, 5 Mon. 192; Crocker on Sheriffs, sect. 864; The State etc., v. Pov>ell, 44 Mo. 436; The State, etc., v. Moore, 19 Mo. 369 ; The State, etc., v. ShacMett, 37Mo. 285 ; Rollins v. Duvall, 13. Mo. 437; Harris v. Hanson, 11 Mo. 246.

Louis Circuit Court, Lubke, J. It has been held that a broker may recover for his services and advances though rendered and made in wager contracts. —16 Cent. L. J., 225 •, Roundtrees. Smith, 2Sup. Ct.Rep. 680.

<p>1. Agency—Privity oe Contract. — A sub-agent has no right of action against the principal where the intermediate agent is an independent contractor.</p> <p>2. -Broker. — A broker, who receives business from another broker under an agreement to interchange business and to divide commissions, the forwarder being the guarantor of the order, can not recover commissions from the principal.</p>

<p>Criminal Law — Misdemeanor—Forcible Entry and Detainer. — Evidence that the defendant, with a stick in his hand, stood at the foot of the stairs on the premises and told the person who had, on the day before, been put in possession of the premises that he must not go upstairs and that he would not have the tenants interfered with, does not show such taking or keeping possession of the premises by actual force or violence, nor such putting in fear with a deadly or dangerous weapon, as will warrant a conviction on a criminal information for forcible entry and detainer.</p>

<p>1. Common Carriers — Passenger Tickets. — A railway company is not bound to carry the purchaser of a limited ticket only where such passenger pursues the journey continuously.</p> <p>2.-The holder of such a ticket is not, after beginning the journey, entitled to stop off at an intermediate- point and subsequently resume the journey.</p> <p>S. -Transfer of Train Check. — The purchaser of a “train cheek” issued to another person upon a limited ticket and expressed to be good only for a continuous passage, is not entitled to subsequently pursue the the joúrney begun by the purchaser of the ticket, though the check be offered for passage within the time limited thereon.</p>

Louis Circuit Court. In computing the time within which a motion for new trial must be filed “ Sunday or any other day, on which the court doth not sit, is not reckoned one of the four days.” —Tidd’s Practice (4th Am. ed.), side p. 903, and cases there cited ; National Bank of the Metropolis v. Williams, 46 Mo. 17, approved in Patchin v. Bonsack, 52 Mo. 433 ; Clerks’ Savings Bank v. Thomas, 2 Mo. App. 367.

<p>1. Descriptio Person.® — Trustee—Evidence.—Iflanguage appropriate to charge a trust fundís not used in the writing, the addition of the word “trustee” to the signature does not create a latent ambiguity for explanation of which oral testimony is admissible.</p> <p>2. - Nesotiaele Instruments. — One who executes a negotiable promissory note in the usual form, is personally liable thereon, notwithstanding he adds to his signature the words “trustee of A.”</p> <p>3. -Consideration. —An agreement giving six months’ time to pay a mature obligation of a trust estate is consideration sufficient to support a note made by the trustee in his own name for the amount due the estate.</p>

<p>1. Fraud — Evidence. — Fraud may be inferred from circumstances, without direct evidence.</p> <p>2. -In a proceeding the object of which is to show fraud in an assignment, the plaintiff may, for the purpose of showing fraud, introduce the books of his own witness who has denied the fraud, without violating the rule that he can not impeach his own witness, where the books are not introduced to contradict the witness’ statement as to their contents.</p> <p>3. Garnishments — Denial of Answer. — A denial of a garnishee’s answer is sufficient, if it states a cause of action under the rules applicable to a petition under the code.</p> <p>4. -Interpleader. — The statute in relation to bringing the claimant into court and requiring him to interplead in garnishment proceedings is directory merely.</p> <p>5. -Practice. — A garnishee who has not moved to have the claimant interplead can not defend on the ground that he may be compelled to pay the claim to both the execution creditor and to the claimant.</p> <p>3. -Sheriff’s Return — Satisfaction of Execution. — A sheriff’s return that he levied upon money claimed by a thirdperson, and that the plaintiff to whom the money had been paid, had given a forthcoming bond, should not be taken as an absolute satisfaction of the execution.</p> <p>7. -Practice. —Upon such a return, the court may refuse to make an order upon the garnishee in an alias execution upon the same judgment to pay into court the money found in his hands belonging to the defendant, until the right to the money levied upon shall be determined</p> <p>8. -It is error in such a case to arrest all proceedings in th* garnishment proceeding; but the verdict against the garnishee should be allowed to stand with leave to the plaintiff to move for an order on the garnishee to pay the money to him in case he should be compelled to refund the money seized under the execution.</p> <p>Res Judicata. — A question, in order to become res judicata, must be adjudicated in an action between the parties or their privies.</p>

Louis Circuit Court, Horner, J. The defendant is a public corporation, established to have charge of public education in the city- of St. Louis, and is composed of all free white persons residing therein. — 2 Eev. Stats., p. 1536, sect. 1.

Louis County Circuit Court, Edwards, J. At common law the owner is entitled to recover his land, without being subjected to the condition of paying for improvements made by an occupant without title*. — 1 Sedg. on Dam. (7th ed.) 246 (marg. p. 121); 2 Kent’s Com., side p. 335 ; Schlemmer v. Worth, 32 Mo. 208, 209. The administrator of the estate of D. M. Stump, deceased, is the only proper party to sue for and collect the assets of his estate.

<p>1. Malicious Prosecution.—That a prosecuting witness had stated to the prosecuting attorney all the facts within his knowledge concerning the transaction out of which the prosecution arose, will not avail as a defence to an action against him for malicious prosecution, unless such facts are shown to have been all that he could, by reasonable diligence, have ascertained.</p> <p>2. -That the prosecuting witness had cause to believe the accused guilty, and had stated all the facts to the prosecuting attorney, is not a defence to an action for malicious prosecution, if he, nevertheless, believed the accused to be innocent and caused his arrest for the purpose of injuring him.</p> <p>3. Instructions. — An instruction whose language is fairly susceptible of a meaning which assumes a state of facts as to which there is no substantial evidence, is erroneous.</p>

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>M. C. Craweord, of counsel: An acceptance by the assignee is as necessary to give validity to the assignment as is the delivery by the assignee. —Burrill on Assignments, 384; Jackson v. Phillips, 12 Johns. 418. No title vested in assignee until he had accepted the trust and given bond, and the appellant, by his attachment acquired a lien.— Crosby v. Hillyer, 24 Wend. 280; Pierrepont v. Manning, 2 Mich. 446, 462; Siggert v. Evans, 32 Eng. L. & Eq. 139.</p> <p>The title passed to the assignee upon the delivery of the deed of assignment and prior to the giving of bond by the assignee. —Freydendale v. Baldwin, 103 111. 328 ; Files v. Copeland, 53 Texas, 591; Fuller v. Hasbrook, 46 Mich. 81; Swait v. Thomas, 26 Minn. 81; Brennan v. Wilson, 71 N. Y. 502 ; Hardcastle v. Fisher, 24 Mo. 74; Wooster v. Stanfield, 11 Iowa, 128 ; Edmonson v. Harris, 2 Tenu. Ch. 435; Heckman v. Messinger, 49 Pa. St. 465. The appellant having proved his claim against the assigned estate, can not now attack the assignment. — Valentine v. Becker, 43 Mo. 583;' Gutzwiller v. Lackman, 23 Mo. 172; May v. Wannemaker, 111 Mass. 208; Chaffee v. Bank, 74 Me. 514.</p>

Louis Circuit Court, Barclay, J. The superintendent of a railway corporation is not authorized, by virtue of his position, to employ a physician at the expense of the company to attend a person injured by its cars.-—Brown v. Railroad, Co., 67 Mo. 122; Tucker v. Railroad Co., 54 Mo. 181; Stephenson v. Railroad Co., 2 Duer, 341; Cox v. Railroad Co., 3 Exch. 368 ; Mex/berry v. Railroad Go., 75 Mo. 492.

<p>1. Practice—Bill op Exceptions—Mandamus.—The judge of a trial court can not be compelled, by mandamus, to sign a bill of exceptions which he alleges to be untrue.</p> <p>2. -If the judge refuse to sign a bill of exceptions, the same may be signed by three bystanders.</p>

Louis Circuit Court, Adams, J. A statement of trespass quare clausum must describe the land with reasonable accuracy.— Cook v. Callaway, 1 Mo. 545; Donohoe v. Chappell, 4 Mo. 34; Burt v. Waine, 31 Mo. 296. Instructions not warranted by the evidence, are erroneous.— Franz v. Rilterbrand, 45.Mo. 121; The State v. Newkirk, 49 Mo. 85.

Louis Circuit Court, Horner, J. The tenant alone is liable for a nuisance on the rented premises. — City v. Raime, 2 Mo. App. 66; Norton v. Wiswall, 26 Barb. 618 ; Lowell v. Spaulding, 4 Cush. 277.

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

The services of a janitor are necessary to the business of the court, and when the services are performed at the' instance of the court, and the account therefor allowed by the court, the city auditor may be compelled to allow the demand. — Rev. Stats., sects. 1061, 1062; The State ex rel. v. Smith, 5 Mo. App. 427 ; The State ex rel. v. St. Louis, 42 Mo. 498. '

<p>1. Practice — Judgments — Scire Facias — Jury. — The defendant is entitled to a jury to try a proceeding by scire facias to revive a judgment.</p> <p>2. -Nul tiel Record. —In such a proceeding, the defendant is not entitled to have a plea of nwl tiel record tried by a jury, and the court properly defines the issues to be tried by the jury.</p> <p>3. -Pleadings. — In such a proceeding, the defendant can not plead matters which occurred prior to the date of the judgment.</p> <p>4. - Order on Publication. — An order of publication in such a case is sufficient if it states the nature of the cause, without stating the exact nature of the writ sued out.</p> <p>5. -The judgment being joint, the scire facias must also be joint, and if it is abated by order of the plaintiff as to one, must be continued as to the other defendants.</p> <p>6. -The plaintiff haying diligently prosecuted his action, the court may grant such continuances as may seem reasonably necessary to bring in such of the defendants as have not been served with process.</p> <p>7. Justices oe the Peace — Jurisdiction. — A justice has jurisdiction in actions on notes for three hundred dollars, exclusive of interest.</p> <p>8. -The rendition of an excessive judgment, by a justice, does not go to his jurisdiction.</p>

<p>1. Criminal Law — Lotteries. — One who establishes or aids in establish-• ing, or who advertises a lottery as a business, is guilty of a felony; one who merely advertises or sells tickets, or advertises the numbers drawn, is guilty of a misdemeanor.</p> <p>2. __ It is not necessary that one who advertises a lottery should be interested therein as a proprietor in order to constitute the offence a felony.</p> <p>3. _Evidence. —Illegal circulars and tickets may be used as evidence in the trial of such a case, though these documents have been illegally obtained from the accused.</p> <p>4* —— Such evidence will not be rejected on the ground that to permit its introduction would be to compel the accused to give evidence against himself.</p>

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>The act contains two separate and independent subjects, and is hence unconstitutional.— The State v. Persinger, 76 Mo. 346; Cooley’s Const. Lim. (5th ed.) 178; The People v. Paries, 58 Cal. 624; Huber v. The People, 49 N. Y. 132; Murphy v. The State, 73 Term. 373 ; The State v. Barrett, 27 Kan. 213; Antonio v. Gould, 34 Texas, 49 ; Stewart v. Father Matthew Society, 41 Mich. 67. It is also a local and special law. — The State, etc., v. Hermann, 75Mo. 340 ; Devines. Cooh County, 84 111. 590. The legislature has no power to interfere with the local self-government of the city of St. Louis.— The State v. Poioers, 68 Mo. 320 ; St. Louis v. Sternberg, 69 Mo. 289 ; The State v. Walsh, 69 Mo. 409 ; St. Louis v. Green, 70 Mo. 563 ; The State v. Mayor, 73 Mo. 435 ; St. Louis v. Knox, 74 Mo. 79 ; Ex parte Hollwedell, 75 Mo. 395 ; St. Louis v. Bicheson, 76 Mo. 470; St. Louis v. Bircher, 76 Mo. 431.</p> <p>The state legislature has power over all subjects on which its legislation is not prohibited. —15 N. Y. 303; 27 Barb. 593; 4 Mich. 244; 5 Mich. 257; 24 N. Y. 497, 504; 2 Park. Cr. 490; 15 La. Ann. 190; 18 Ind. 258 ; 17 Cal. 547 ; 17 Pa. St. 119 ; 19 Pa. St. 260; 52 Pa. St. 477; Cooley’s Const. Lim. 1868, pp. 173,174. Although the constitution of a state may recognize the municipal corporations of an important city by fixing the number of certain officers, and providing for their election, etc., yet this does not make the charter of the city a constitutional charter, conferring powers beyond the control of the legislature. —15 Md. '376 (1859 ) ; 4 Zabr. (24 N J. L.) 385 (1854); The People v. Draper, 15 N. Y. 561. The general assembly may modify their franchises, increase or diminish their corporate powers, amend their charters,enlarge or reduce their privileges,or annul their corporate existence, as, in its judgment the general good requires, and irrespective of consent or objections on the part of the inhabitants of the municipality. — 7 Wall. 1; 91 U. S. (1 Otto) 540; 27 Ark. 419; 42 Cal. 541; 51 111. 17; 31 Id. 58 ; 24 Iowa, 455,476 ; 37 Md. 180 ; 44 Mo. 504 ; 52 Mo. 351; 36 N. J. L. 273 ; 20 N. J. Eq. 360 ; 2 Brews. 599 ; 2 Abbott’s C. 1879, p. 399.</p>

Louis Circuit Court, Horner, J. There was no evidence of dispossession. — Thompson v. Sornberger, 59 111. 329. The description of the premises was insufficient.— Clark v. Gage, 19 Mich. 515; Orme v. King, 60 Ga. 524; Rammer v. Busse, 70 Mo. 465. There was no proof of an entry within the boundary lines described in the affidavit. — Cummins v. Scott, 20 Cal. 84.

<p>Appeal from the St. Louis Circuit Court, Horner, J.</p> <p>The testimony to prove the alleged signature was incompetent. — The State v. Scott, 45 Mo. 303; The State v. Clinton, 67 Mo. 383; Dow v. Spenny, 29 Mo. 387.</p> <p>Courts will never inquire whether a plaintiff sues for himself or as trustee for another, nor in the right of possession, unless in an allegation of malaftdes. — See 2 Dan. Neg. Inst. (3d ed.), sect. 1191, and the authorities there cited; Demuth v. Cutler, 50 Me. 300; Manufacturers’ Wat. Bank v. Thompson, 129 Mass. 438 ; Palmer v. Wassau Bank, 78 111. 380 ; It matters not that such nominal holder will receive the amount as trustee, agent, or pledgee. —Wicolayv. Fritschle, 40 Mo. 67; Wells v. Schoonover, 9 Heisk. (Tenn.j 805; King v. Fleece, 7 Heisk. (Tenn.) 274; Boyd v. Corbit, 37 Mich. 52; Bank of Charleston v. Chambers, 11 Rich. 657 ; Logan v. Cassell, 88 Pa. St. 288. Writings admitted to be genuine are competent as proof of a signature. — The State v. Clinton, 67 Mo. 385; The States. Tomjplcins, 71 Mo. 616.</p>

<p>1. Assignments — Proof of Claims — Discretion. — The determination of what is “good cause ” for admitting proof of a claim after the expiration of the time fixed by .notice for proving claims, is within the discretion of the assignee, where no prejudice to the estate results therefrom; and where there is no abuse of the discretion, courts will not interfere with its exercise by the assignee.</p> <p>2. -Practice—Trial on Appeal — Exceptions. — On appeal from such an allowance, proof of a reason for the failure to prove the claim within the specified time different from that proved before the assignee, if not objected to at the time, forms no ground for exception.</p> <p>3. -Notice. — That the notice sent by the assignee to a corporation creditor was mislaid and not brought to the attention of the proper officer of the corporation, may be “ good cause” for admitting the claim at any time before the final dividend.</p>

Louis Circuit Court, Barclay, J. Appellant’s attorney-had a right to make a peremptory challenge at any time before the jury were sworn to try the cause, or he had a right to change a peremptory challenge from one juror to another at any time before the jury were sworn. — Jackson v. Pittsford, 8 Blackf. 194; Hunter v. Parsons, 22 Mich. 96 ; Johns v. The People, 25 Mich. 500 ; Hendrick v. The Commonwealth, 5 Leigh (Va.), 708.

<p>1. Practice—Evidence. — The rejection of testimony, the exclusion of which can not prejudice the appellant, is not ground for the reversal of the judgment.</p> <p>2. -Expert Testimony. —Opinions of witnesses upon matters as to which expert testimony is improper, are properly excluded.</p> <p>3. -Opinions written by the editor of, and published in, a commercial paper, as to the state of the market, are inadmissible in evidence.</p> <p>4. Contracts — Manipulated Markets. — It will not be held, as matter of law, that prices produced by speculation in articles of trade, are unreal or fictitious prices.</p> <p>5. -Practice — Jury. — The question as to whether the prices at which settlements of contracts for the sale of grain on a given day, are fictitious, as based upon a manipulated market, or are true values for purposes of consumption or manufacture, is one for the jury.</p> <p>6. -A finding by a jury of the fact as to whether prices are true or fictitious, will not be disturbed on appeal upon the suggestion that it is contrary to the evidence, where there is any substantial evidence to support it.</p>

<p>1. Damages — Negligence—Quasi Public Place. — The occupier of a business house into which the public or the plaintiff is invited by the occupant to trade with him for their mutual benefit, is bound to keep the premises in a reasonably safe condition.</p> <p>2. --Evidence—Insteuctions.— Circumstantial evidence of permanent injury may warrant an instruction for damages on that theory, though the character of the injury and the extent to which it incapacitates the plaintiff to earn money, be not well defined.</p> <p>3. -New Tbial — Excessive Damages. — A new trial will not be granted on the ground that excessive damages have been awarded for a personal injury, unless the amount awarded shows passion or prejudice and a disregard-of the evidence on the part of the jury.</p>

<p>1. Practice—Bills oe Exceptions. —The respondent may, under the rule, take up his hill of exceptions setting out the evidence in full, where the appellant’s record states that evidence tending to prove the issue was introduced, and where the question as to the sufficiency of the evidence is raised, the two bills will be considered together.</p> <p>2. Foreign Statutes. — The statute of another state will be enforced in this state, where the policy of the two statutes upon the subject of the right of action is the same.</p> <p>3. -Negligence. — A statute of another state which gives a right of action to the personal representatives of the deceased against the person through whose wrongful act or default the death occurred, will be enforced in this state.</p> <p>4. -An action for damages for the death of a person, caused by the wrongful act or default of another, is remedial, not penal.</p> <p>■6. -Administration. — Money recovered in such an action is not general assets of the estate, and may be recovered by the administrator in Missouri, where the deceased resided at the time of his death.</p> <p>6. Master and Servant—Negligence.— A servant assumes the risk of patent defects in machinery upon which he is employed to work.</p> <p>7. -Evidence—Practice.—The burden is upon the defendant to show that the defect was latent, and not open to ordinary observation, where he has been constantly employed upon it for several days.</p> <p>8. -Res (¿estíe. —A declaration of the deceased, as to the cause of the injury made at the time and place thereof, is admissible as a part of the res gestee, in an action for damages for the death.</p>

Louis Circuit Court, Lubke, J. The complaint alleges that defendant obtained the possession by disseisin, but it does not allege that the plaintiff ever was in possession of the premises or that defendant disseised the plaintiff, both of which are necessary in this action.—Hatfield v. Wallace, 7 Mo. 112-; Warren v. Ritter, 11 Mo. 354; Spalding v. Mayhall, 27, Mo. 377 ; McCartney v. Alderson, 45 Mo. 35. The lease from Peck to Kelly did not vest the possession in Kelly.

<p>Lessor and Lessee—Equity — Contracts — Failure oe Aepaisers to Agree. — Under a contract whereby, after the first term, the rental value of the demised premises shall be fixed by two disinterested appraisers, the repeated failure of the appraisers appointed by the parties does not furnish ground for a bill in equity to have the valuation fixed.</p>

<p>1. ERAtrorLENT Assignments — Exemptions. — A deed of assignment is not void by reason of provisions therein -which reserve to the debtor property specifically exempt from execution under the statute, and $300 worth of other personalty to be selected after the assignment in lieu of personalty exempt from execution.</p> <p>2. Pbactics! — Variance.—The finding and judgment being clearly on the merits and substantially in accordance with the allegations, objections on the ground of variance come too late on appeal.</p> <p>3. -Appellate courts will not weigh evidence in law cases.</p>

<p>1. Equity — Lis Pendens — Personalty. — The doctrine of lis pendens applies to personalty except negotiable paper and ordinary articles of commerce sold in the usual way. Semble that it applies to a steamboat.</p> <p>2. -The doctrine can not be applied to purchases in good faith, where it does not appear that the property was within the jurisdiction at the time of, and since, the sale.</p> <p>S.-Decree — Jurisdiction. — Personalty having been bought pending litigation and without actual notice to the purchaser of the lis pendens, the sale made by the vendor to avoid the. decree may be set aside, but the court can not give judgment against the innocent purchaser for the amount of the original judgment to which it is sought to subject the personalty in question.</p>

<p>1. Damages. — The damages for the death of a child by the negligence of another, is fixed by statute at $5,000.</p> <p>2. -Erroneous Verdict. — A verdict, in disregard of the court’s instructions for $2,500, will not support a judgment in such a case.</p> <p>3. -Practice—New Trial — Arrest oe Judgment.— A judgment for $2,500, on such a state of facts, will be arrested on motion of the defendant.</p>

Louis Circuit Court, Thayer, J. A mere abandonment of the corporate enterprise does not of itself work a dissolution of the corporation.— Kansas, etc., Go. v. Sauer, 65 Mo. -279 ; Hill v. Fogg, 41 Mo. 563 ; State BanTc v. Robidoux, 57 Mo. 446. A contingent demand is really no demand until the contingency happens, and that the two years statute begins to run only on the happening of the contingency. — Greenabaum v. Flliott, 60 Mo. 25, 32; Barton v. Rutherford, 49 Mo. 255.