Volume 16 — Missouri Appeal Reports

Louis Circuit Court, Thayer, J. The main purpose of the act is to protect the officer from litigation, upon his procuring from the plaintiff in the execution or attachment an indemnity bond upon which the claimant may bring suit. — The State to use v. Lentzinger, 41 Mo. 498; The State v. Platt, 52 Mo. 466 ; Act of 1855 and Amendatory Act of 1859, 2 Rev. Stats. 1554 (Appendix).

Louis Circuit Court, Thayer, J. That which has legslative sanction can not be a public nuisance. — Orittenden v. Wilson, 5 Cow. 165; Fletcher, v. Railway Go., 25 Wend. 462; The State v. Western, etc., Go., 2 Johns. 283 •, People v. Platt, 17 Johns. 195; Wood on Nuisances,, sect. 757, and cases cited. There can be no question of the power to license brick-kilns. They are not a nuisance perse. — Wood on Nuisances, sect. 519, and cases cited.

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

Louis County Circuit Court, Edwards, J. Evidence to create a resulting trust must be clear, strong, and unequivocal. Mere preponderance will not suffice. — Ringo v. Richardson, 53 Mo. 385 ; Kennedy v. Kennedy, 57 Mo. 73; Thomas v. Chicago, 55 111. 403.

<p>1. Habeas Corpus — Jurisdiction. — Inquiry under a writ of habeas corpus is generally limited to the question as to whether the process under which the prisoner is held was issued by a court of competent jurisdiction and in a case allowed by law.</p> <p>2. --Contempt — Notice — Practice. — The court may issue an attachment for a person accused of contempt committed out of the presence of the court, without first making a preliminary order to show cause.</p> <p>S. -An attachment, which sets forth specifically the act charged as contempt of court, is such notice as will satisfy the statute.</p> <p>4. -In a proceeding by habeas corpus, it will not he presumed that the person accused of contempt will be punished without a fair hearing.</p> <p>5. - An attachment for contempt being regularly issued by the circuit court of one county against the sheriff of another county for refusing to execute the process of the court in his bailiwick, the prisoner will not be discharged under a writ of habeas corpus.</p>

<p>1. Officers — Suspension from Office. — The suspension from office of an officer by the tribunal before whom he is to be tried, pending his trial in due form upon charges a conviction of which would involve his dismissal from office, is not an arbitrary or improper exercise of authority.</p> <p>2. -Prohibition — Unreasonable Delay. — That thejorder of suspension intimates that the hearing of the charges will be postponed until a decision is reached in a mattter pending and which involves the nature and limitation of the jurisdiction of the tribunal over the officer, furnishes no ground for prohibition of the suspension or of the filling of the office pending the suspension.</p>

The charter of the St. Louis Gas-Light Company, in so far as it attempted to grant to that company the exclusive right irrevocable for fifty years, to manufacture and sell gas and gas-light to private consumers in the city of St. Louis, was void, because : 1.

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

Louis Circuit Court, Barclay, J. There may be an adoption by parol. — Hill v. Goumel, 1 Beav. 541; 53 Iowa, 146 ; 25 Ga. 612.

Louis Circuit Court, Lindley, J. . It is a legal consequence in every commercial partnership — every partnership engaged in buying, selling or exchanging, that each partner is the general agent of the firm ; and has power to act for it and bind it in all matters within the scope of the partnership business, and it is within the scope of such business to borrow money, to draw money, accept, or indorse bills of exchange or promissory notes.

<p>Ho-mestead — Appraisement — Execution — Motion to Quash. — Proceedings under a levy and appraisement having been suspended by the sheriff to await the action of the court in proceedings under section 2698 of the homestead act, such appraisement is not conclusive on the defendant who can show all the facts in the proceeding under said section, and a motion to quash the execution on the ground that the appraisement is erroneous is properly overruled.</p>

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

Louis Circuit Court, Barclay, J. The plaintiff can not recover on a case other than that made by the pleadings.— Dougherty v. Matthews, 35 Mo. 528; Faulkner v. Faulkner, 73 Mo. 327 ; Waldheier v. Railroad, 71 Mo. 514. The instrument set out in the defendant’s answer was executed by both parties, and the court properly refused to dismiss for failure to file it. — Bowling v. Iiax, 55 Mo. 446.

<p>1. Municipal Corporations — Police Power — Nuisance. — The charter of the city of St. Louis authorizes the regulation of livery stables, the designation of the places where, in future, they may be erected, and the prohibition of their erection at other places.</p> <p>2. -Ordinances. — An ordinance prohibiting the erection of a livery stable on any block of the city without the consent of the owners of one-half of the ground in any such block, is not an unreasonable exercise of the charter power. (Thompson, J., dissenting.)</p>

Louis Circuit Court, Barclay, J. The directors of a solvent corporation are trustees for the shareholders, and are subject to all the duties and disabilities of trustees. — McAllen v. Woodcock, 60 Mo. 174; Lingle v. Hogan, 45 Mo. 109 ; Bent v. Priest, 10 Mo. App. 543-547 ; Skrainka v. Allen, 7 Mo. App. 434 ; Brewster v. Stratman, 4 Mo. App. 41; Cumberland Goal Co. r. Sherman, 30 Barb. 553 ; Koehler v. Black River Falls Iron Co., 67' U. S. (2 Black) 715.

<p>1. Habeas Corpus — Infants — Practice. — The court, in habeas corpus directed to a private individual to produce the body of an infant, is bound to release the infant from improper restraint.</p> <p>2. -In such a case the court is not bound to place the child in the custody of any particular person, but will exercise its discretion looking to the child’s interest under all the circumstances.</p> <p>8. -In determining what the child’s interests are, the court looks only to its temporal welfare, and disregards all question of religion as affecting its spiritual interests.</p> <p>4. -In habeas corpus the court can not appoint a guardian, but in making a temporary disposition of the child, if its temporal interests will be as well conserved by giving it in charge of a person of the religious faith of its parents, it will be so disposed of.</p>

Louis County Circuit Court, Edwards, J. There is no allegation that the cattle strayed on the track because of a failure upon the part of defendant to fence its roadway. This is essential. — LucMe v. Chicago and Alton Ry. Co., 67 Mo. 245; Johnson v. St. L., K. G. The petition is good. — Rowland v. I. M. S. Ry. Go., 73 Mo. 619; Luclcie v. Railroad Go., 67 Mo. 245.; Cunningham v. Railroad Go., 70 Mo. 202 ; Schutte v. St. L.,I. M.& S. Ry. Go., 76 Mo. 324.

Louis County Circuit Court, Edwards, J. The clerk having entered up a judgment not rendered by the court, the entry may be so amended as to correspond to the facts even at a subsequent term. — Fletcher v. Coombs, 58 Mo. 430 ; Jones v. Hart, 60 Mo. 350 ; Balhins v. Rhodes, 76 Mo. 676 ; Woodridge v. Quinn, 70 Mo. 370.

Louis Circuit Court, Lubke, J. A defendant is not bound to answer a suit begun without the plaintiff’s authority. — Weeks on Attorneys, sect. 200. If the attorney, after a motion to dismiss is made, and after a reasonable notice of it, fails to show his authority the court shall dismiss the suit. —Weeks on Attorneys, sect. 214, p. 370; Turner v. Caruthers, 17 Cal. 433; McKernanv. Caruthers, 4 How. (Miss.) 333.

Louis Circuit Court, Lubke, J. The judgment in the suit to quiet title was improperly rejected when offered in evidence. —Strong v. Insurance Co., 62 Mo. 295.

<p>1. Contempt op Court. — It is contempt of court to refuse to obey any order of the court which it bas jurisdiction to make, irrespective of whether such order is erroneous.</p> <p>2. -Every court of record has the power to punish, by fine and imprisonment, wilful disobedience of any process issued or order made by it.</p> <p>3. -Mandamus. — A final order of eeurt refusing to punish a person guilty of wilful disobedience of its orders, can not be revised under a writ of mandamus.</p> <p>4. -Appeals. —In a remedial proceeding for contempt, an appeal will lie from a final order by which the court ends the proceeding and exhausts its jurisdiction..</p> <p>5. Mandamus. — Mandamus will not be awarded where there is an adequate remedy, by appeal or otherwise, open to the complaining party.</p> <p>6. -Mandamus will not lie to compel the circuit judge to issue its process commanding third persons to obey the decree of the circuit court, where the court has made a final order refusing such relief.</p>

Charles Circuit Court, Edwards, J. A claim of homestead exemption will not avail against the debts created prior to the acquisition of the land sued for. — Farra v. Quigly, 57 Mo. 289; Stivers v. Horne, 62 Mo. 473 ; Schindler v. Givens, 63 Mo. 395; Lincoln v. Howe,64 Mo. 138; The State ex rel. v. Liveling, 66 Mo. 375; Stanley v. Baker, 75 Mo. 60.

• Appeal from the St. Louis Court of Criminal Correction. Noonan, J. Wherever license fees are imposed for the main purpose of revenue they are in effect taxes. — Cooley Const. Lim., pars. 281, 495; Ward v. Maryland, 12 Wall. 418; The State v. Hoboken, 23 N. Y. L. 1869; Dill, on Mun. Corp., pars. 291, 295, 609 ; Glasgow v. Rowse, 43 Mo. 479; The Gity of St. Louis v. Spiegel, 75 Mo. 145.

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

Louis Circuit Court, Lind ley, J. Injunction will issue whenever a suit at law affords “ an unfair advantage ” to adverse party. — 57 Mo. 422 ; 51 Mo. 100. The bill is multifarious. — Mole v. Smith, Jac. Rep. 490-494; Bobb v. Bobb, 8 Mo. App. 257 ; Stallcup v. Garner, 26 Mo. 72; Robinson v. Rice, 20 Mo. 229 ; Maybury v. McClurg, 51 Mo. 256; Glark v. Cov. Mut. L. Ins. Go., 52 Mo. 272.

Louis Circuit Court, Barclay, J. The word “ package,’ as used in the bill of lading, is not applicable to corn in bulk. — McCoy v. Transportation Co., 42 Md. 499; Express Co. v. CrooTc, 44 Ala. 468 ; Bascowitz v. Express Co., 93 111. 523. A common carrier may, by contract, limit its common-law liability. — Read v. Railroad Co., 60 Mo. 199; Snyder v. Express Co., 63 Mo. 376.

<p>1. Scire Facias — Judgments. — A proceeding by scire facias to revive a judgment is an action, and tbe judgment therein is a new judgment.</p> <p>2. -Limitations. —A judgment in scire facias to revive a judgment operates to avoid tbe statute of limitations, which then Tuns from its date and not from that of the original judgment.</p>

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

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

Louis Circuit Court, Lubke, J. The revival of a judgment is not a civil action. — Humphreys v. Lundy, 37 Mo. 320. Upon filing transcript in circuit court, this court acquires jurisdiction, etc., and may set aside or modify the judgment (Bauer v. Bauer, 40 Mo. 61); and may quash the execution issued thereon. — Bain v. Ohrisman, 27 Mo. 293; The State v. Metzger, 27 Mo. 65 ; Ex parte James, 50 Mo. 280; Pratt v. Oanfield, 67 Mo. 48.

Louis Criminal Court, Van Wagoner, J. The indictment charges no crime; it does not sufficiently inform the defendant of the nature of the offense of which he is accused. It is an attempt at an indictment under section 1561, Revised Statutes 1879, but complies neither with the rules of criminal pleading at common law nor the requirements of that statute. — The State v. Helm, 6 Mo. 263 ; The States. Ross, 25 Mo. 426 ; The State v. Evers, 49 Mo. 542.

Louis Circuit Court, Lubke, J. The money deposted with the sheriff, not having been placed there virtute officii, was not in custodia legis, but was subject to garnishment.— Lightner v. Steinagel, 33111.510-517; Pierce v. Carleton, 12 111. 358; Wheeler v. Smith, 11 Barb. 348; King v. Moore, 6 Ala. 160.

Louis Circuit Court, Thayer, J. Under the circumstances given in evidence by Wherry, the note was taken out of the category of ordinary commercial paper. — Renshaw v. Wills, 38 Mo. 201; Third National Bank v. Lange, 51 Md. 138; Shaw v. Spencer, 100 Mass. 382; Duncan v. Jaudon, 15 Wall. 173-175.

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

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

Louis Circuit Court, Horner, J. Power to become a stockholder, ex vi termini, imports power to assume the liability of a stockholder. As applied to persons sui juris, the rule is that a subscription for stock or an acceptance of shares imports a promise to pay calls. — Thompson on Stockholders, sect. 105; Upton v. Tribilcock, 91 U. S. 48; /Sangerv. Upton, 91 U. S. 64; Brigham v. Mead, 10 Allen, 245.

Louis Circuit Court, The act of March 21, 1873, took effect ninety days after its passage, because no other time was therein appointed. — Wag. Stats. 1872, p. 894, sect. 4. It is not sufficient that certain parts of the act might bear a construction which would, taken separately, give those parts effect at an earlier period.

<p>Officers — Sheriff —Attachment—Indemnity Bonds — Damages — Trespass. — A sheriff who, under a writ of attachment seizes personalty which is claimed and a bond given under the act of 1855, and which is sold by order of court pending the attachment suit which, on trial, is dissolved, is not liable to the claimant for damages in trespass. The remedy is an action on the indemnity bond.</p>

Louis Circuit Court, Adams, J. Although the name as used by appellant is not strictly speaking a trade-mark, yet it comes within the rules applicable to-trade-marks and will be protected as such. — Gamble v. Stevenson, 10 Mo. App. 581; Filley v. Fassett, 44 Mo. 178; McCarthy v. Garnhart, 45 Mo. 595.

<p>1. Mechanic’s Liens —Fixtures. — Bolting cloth which is made to form a part of the essential machinery of a flouring mill may, when placed in the mill, be a part of the freehold and subject to a mechanic’s lien.</p> <p>2. -- Prior Incumbrances — Sales Thereunder. — Such a lien will attach only to the improvements, where the land has been sold under a prior incumbrance.</p>

<p>1. Administration — Administator Pendente Lite — Compensation.— An administrator pendente lite, is entitled to the same compensation as are other administrators for the performance of like duties.</p> <p>2 Extra Services — Attorneys’ Pees — Expenses. — Charges for extra services, attorney’s fees, and necessary expenditures, are not included in the statutory commissions allowed administrators.</p> <p>3. Attorney and Client. — That an attorney of an administrator, was also the attorney of a person contesting the will, is no objection to an allowance for his fee, where the administrator and the contestant were not parties to the same proceeding.</p>

<p>Error to the St. Louis Circuit Court, Barclay, J.</p> <p>A composition to be effectual as a discharge, must be carried out.— Clark v. White, 12 Pet. 191; Denny v. Merrifleld, 128 Mass. 229 ; In re Leipziger, 18 N. B. R. 267 ; In re Nigby, 20 Fed. Rep. 499; Robinson v. Clement, 73 Ind. 33; 8. P. Nationa, Bank v. Porter, 122 Mass. 308 ; Pierce v. Gilkey, 124 Mass. 300; Home Bank v. Carpenter, 129 Mass. 1. The composition is not effected as a discharge unless the amount agreed upon is actually paid.— In re Hurst, 3 Cent. L. J. 78 ; In re Reiman, 13 N. B. R. 133. Where there has been unreasonable delay there is no reason for sending the creditor into the court of bankruptcy for permission to proceed. The law does not pretend to take away the right to sue for a judgment on the original debt, and proving of claim is no bar to action in state court — Dingeev. Becker, 8 N. B. R. 508 ; Valpey v. Rea, 124 Mass. 99 ; Greenwald v. Appill, 17 Fed. Rep. 140 ; Seavey v. Beckler, 128 Mass. 471; Blagvil v. Hicks, 11 Phil a. 249.</p> <p>The plain, tiff’s remedy was by proper proceedings in the bankruptcy court — In re Bayley, 19 B. R. 77-78 ; In re Mickel, 19 N. B. R. 377 ; Defordv. Hewlitt, 18 N. B. R. 524.</p>

Louis Circuit Court, Horner, J. The proceeds of sale of the real estate with which the administrator charges himself, are not assets. The rents collected by him are strictly in the same category, since he is liable to the devisees for these rents. —Ferguson v. Carson, 13 Mo.

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

<p>1. Contracts — Mutuality Essential but may be Implied. — Although a contract in express terms is obligatory on one party only, yet if it appears therefrom, that the consideration upon which one party assumed an express obligation, was a corresponding obligation of the other party, such obligation of the latter will be implied.</p> <p>2. -Want or Consideration. — But when in a continuing contract the obligation thus to be implied is so vague and indefinite as to be incapable of enforcement, the express obligation fails for want of consideration.</p>

<p>1. Sales — Auctions—Privileges.—An auction sale of one lot of real estate with the privilege in the purchaser to take an additional lot is, when the purchaser exercises that privilege, a separate sale of each lot.</p> <p>2. -Vendor’s Optionor Redemption — Bonus—Contracts.—Under a provision, in a contract of sale at auction, that the vendor might redeem the property sold by paying a bonus of from seven to thirty dollars, the purchaser may demand the larger sum as a condition of redemption.</p> <p>3. -Speciric Perrormance — Tender.—In an action for the specific performance of a contract to convey real estate, where it clearly appears that a tender would have been unavailing, a tender of the purchase-money is unnecessary.</p> <p>4. Contracts — Construction or — Reservations.—Exceptions or reservations in an instrument of writing will be construed most strongly against the person making them, where, with equal reason, they admit of two constructions.</p>

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

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

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

<p>1. Administration — Costs. — An estate can not be charged with the costs of a proceeding begun by one whose administration of the estate was wholly without authority andyoid.</p> <p>2. — One -who, without legal authority, sues as administrator and fails to recover, is liable for the costs de bonis propriis.</p> <p>3. -Compensation. — An administrator’s compensation is not necessarily confined to the statutory commissions.</p> <p>é. -Judgments — Receiver. — An order appointing a receiver to take charge of property until the further order of the court, is not a final judgment.</p>

Louis Circuit Court, Thayer, J. Cross-walks are not the raised portions of the road way in a city, extending from corner to opposite corner, but are the areas of the roadway traversed by pedestrians when they cross a street in the prolongation of the sidewalk. — Blunt v. City of Janesville, 31 Wis. 648, 656, 662. A lot is not chargeable with the cost of curbing not done in front thereof. ■ — iSchenlyv. The Commonwealth, 36 Pa. St. 29, 60.

Louis County Court, Edwards, J. Recording being the act of an officer of the law — not of the person presenting the instrument for record — and the recorder, for St. Louis city and county being the de facto recorder for all the county until the official promulgation of the result of the election, his recording the deed in the city was the act of a de facto officer, of which the world must take notice and by which all persons are bound. —The State v. Douglass, 50 Mo. 593; Ex…

Louis Circuit Court, Adams, J. An appearance which is not general waives no right of the party thus appearing. — Smith v. Rollins, 25 Mo. 408; Pomeroy v. Betts, 31 Mo. 419; Lincoln v. Hilbus, 36 Mo. 149. The court acquired jurisdiction of the person. — Attains v. Borsiler, 46 Mich. 552; Murphy v. Winter, 18 Ga. 690; Wynn v. Kiser, 7 Blackf. 299 ; Vinal v. Gore, 18 W. Ya. 20; Govill v. Moffett, 7 Jones L. 381.

<p>Appeal from the St. Louis Criminal Court, Van Wagoner, J.</p> <p>The indictment is insufficient. — Wheat v. The State, 6 Mo. 455; The State v. Hogan, 31 Mo. 340; The State v. Jones, 68 Mo. 197; McGary v. The People, 46 N. Y. 153.</p> <p>The indictment is sufficient. —Rev. Stats., sect. 1283; The Slate v. Hayes? 78 Mo. 307; Regina v. Newhonlt, 12 Cox C. C. 148.</p>

Louis Circuit Court, Thayer, J. If tbe wife suffered such indignities as to render her condition intolerable she was justified in leaving him.

Louis Circuit Court, Thayer, J. The debtor need not abandon his domicile, but it is sufficient if he is beyond the reach of service of ordinary process, the statute is thereby interrupted. — Johnson v. Smith, 43 Mo. 499; Venuci v. Cademartori, 59 Mo. 352; Garth v. Robards, 20 Mo. 524; Miller v. Tyler, 61 Mo. 402.

<p>Landlord and Tenant — Waiver. — The tenancy being from month to month, the taking of the tenant’s negotiable note for rent in arrears and the acceptance of rent for subsequent months is a waiver of the right of the summary action under the statute for the arrears of rent.</p>

<p>Appeal from the St. Louis Circuit Court, Barclay, J.</p> <p>After the verdict has been received and the jury discharged, no amendment in substance is proper. — Wright v. Philips, 2 Greene, 191; Snell v. Navigation Go., 30 Me. 337. Whenever a plaintiff amends his declaration the defendant has an election to plead de novo. — Webb v. Wilkie, 1 Cairnes’ Rep. 104; Neidenberger v. Oampbell, 11 Mo. 357.</p> <p>The amendment was properly allowed. — Rev. Stats., sects. 3565, 3567, 3569; Bruner v. Marcum, 50 Mo. 405 ; Horskotte v. Menier, 50 Mo. 158 ; Jones v. Whilsett, 79 Mo. 188; Young v. Glascock, 79 Mo. 574.</p>

Louis Circuit Court, Barclay, J. The defendant was entitled to the possession of the property sued for, when suit was brought, by virtue of an express contract to that effect. — Wells on Replevin, sects. 39, 121, 122, 688; 2' Greenl. on Ev., sect. 640; Rich v. Ryder, 105 Mass. 306,. 310; Dilworth v. MeKelvy, 30Mo. 154; Boutelley. Warne,. 62 Mo. 353; Story on Bail., sects. 303, 422; Hazard v. Hall, 5 Mo. App. 584; 2 Pars, on Con.

Louis Circuit Court, Barclay, J, The construction of the building was such that all the machinery attached to it constitute fixtures for the furnishing of which a lien exists under the mechanic’s lien law of the state. —Kev. Stats., sect. 3175 ; Smith v. Phelps, 63 Mo. 585 ; Rodgers v. Crow, 40 Mo. 91; Fleitze v. Veakery, 3 Mo. App. 593 ; Seibal v. Siemon, 52 Mo. 363 ; O’Brien v. Hanson, 9 Mo. App. 545; Todd v. Duncan, 9 Mo.

Louis Circuit Court, Thayer, J. The defendants were not legally obligated to accept any of the goods which are sued for, inasmuch as more were sent and charged to them than they had purchased. — Levy v. v. Green, L. J. 28, Exch. 319; Rommel v. Wingate, 103 Mass. 327-330; Benj. on Sales (1883, Am. Note), sect. 531 et seq., and cases cited sect. 978 and sect. 1030.

Louis Circuit Court, Barclay, J. The burden of showing negligence is on the plaintiff. — Curran v. Warner, 86 N. Y. 153; Sher. & Bedf. on Neg., sect. 12, p. 14; 2 Thompson on Neg. 1175. When the negligence of the plaintiff is disclosed by his own testimony he can not recover. — Henry v. Railroad Co., 76 Mo. 288; Nolan v. ShicTcle, 69 Mo. 340, affirming 3 Mo. App. 300; O’Donnell v. Railroad Mo., 7 Mo. App. 190.

Louis Circuit Court, Thayer, J. That a portiou of the ground is used by the sexton of the cemetery association will not prevent an application thereto of the grant of exemption.— The State ex rel.-v. Powers, 10 Mo. App. 263; s. c. 74 Mo. 476; North, etc., Society v. Hudson, 12 Mo. App. 342. The ground is not used for cemetery purposes under a strict construction of the grant. — The People v. Cemetery, 86 111. 336 ; Mulroy v. Churchman, 52 Iowa, 238.

<p>1. Replevin — Pleading and Pbactice — Evidence. — In an action of replevin any fact which tends directly to disprove right of possession in the plaintiff may be shown under a general denial.</p> <p>2. -Fraudulent Conveyances. —In such an action, fraud in the acquisition of the plaintiff’s title may be proved by the defendant under the general denial.</p> <p>3. -Inadequacy of Price — Practice—In cases of conveyances affecting creditors, inadequacy of price coupled with circumstances of secrecy and concealment is sufficient to take the ease to the jury.</p> <p>4. Evidence — Practice. — The introduction of improper evidence which can not, under the circumstances of the case, prejudice the appellant, is not ground for a reversal.</p> <p>5. Notice. — He who has knowledge of facts sufficient to put him upon inquiry, is chargeable with notice of the facts which inquiry would have disclosed.</p>

Louis Circuit Court, Horner, J. An attachment bond is not assignable. — Eev. Stats., sects. 408, 409-The only person who can maintain an action on the bond is; the defendant in the suit in which the bond was given. — Davis v. The Commonwealth, 13 Gratt. 138; Rospelin v. Browndon, 7 La. 231; Edwards v. Turner, 6 Rob. (La.) 382.

Charles Circuit Court, Edwards, J. No person has the right to protect himself from a stream or water-course by throwing it on the lands of another, or, on the ground of self-protection, to prevent the waters of floods and freshets from flowing where they are accustomed to flow. — MeG or miele v. Railroad Go., 70 Mo. 359 ; Shane v. Railway Go., 71 Mo. 237 ; Mimicries v. Railroad Go., 72 Mo. 514; Ang. on W. C., sects. 108/, 108&; Bruson v. Railroad Co., 78 Mo. 514.

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

<p>Evidence — Agent’s Subsequent Declarations — Negligence.—In an action for damages for personal injuries occasioned by the negligence < f a railroad company, it is error to permit a witness to testify that, a few days after the injury, the conductor who had charge of the train at the time of the injury, said that the bell was not rung, and that the train was running at an excessive rate of speed.</p>

Louis Circuit Court, Horner, J. There must be averment and proof of performance, of a condition precedent appearing on the face of the cause of action. — Bayse v. Ambrose, 32 Mo., 484 ; Mier v. Heinrichschoffen, 52 Mo. 333 ; Stout v. St. Louis Tribune Oo., 52 Mo. 342 ; Breicheisen v. Ooffey, 15 Mo. App. 80.

Louis Circuit Court, Lubke, J. Where in a sut on a special tax bill, erroneously issued, there was judgment for the defendant, this is not a bar to a suit upon an amended tax bill afterwards issued by the city engineer for the same work. — Pendergast v. Richards, 2 Mo. App. 187 ; Riley v. Cramer, 51 Mo. 542; Eyermann v. Provenchere, 15 Mo.. App. 256. The first bill was a valid one so far as the merits of a controversy between plaintiff and defendants were concerned.

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

<p>1. Chattels — Possession Evidence oe Title. — That a man deposits money in a bank in Ms own name and draws it out on Ms personal check is prima facie evidence that the money is his.</p> <p>2. Fraudulent Conveyances. — An insolvent person may make a voluntary transfer of property to his wife which will be good as against subsequent creditors, unless it is made with the intent to hinder, delay, or defraud them.</p> <p>3. Instructions. — It is error to instruct the jury upon a hypothesis not warranted by the evidence.</p> <p>4. Evidence. —A jury can not find the existence of a fact merely because a discredited witness has testified to the non-existence thereof.</p>

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

<p>1. Instructions — Evtdhnoeí —False Testimony. — An instruction that if the jury believe that any witness has testified falsely to any material fact they may disregard his entire testimony, and which omits the elements of knowledge and willfulness, is erroneous.</p> <p>2. --A good affirmative defence being pleaded and supported by evidence, it is error to instruct the jury that they will find for the plaintiff if they believe the state of facts upon which his action is based, without adding the qualification, unless they believe that such affirmative matter of defence has been proved.</p> <p>3. -Practicb. — The error in giving such an instruction is not cured by the giving of a separate correct instruction as to the law governing such defence.</p>

<p>1. Contbacts. — Evidence. — A written proposition from one person is not admissible to prove a contract unless it has been accepted by the other person</p> <p>2. -Estoppel. — A person who is sui juris will not, in the absence of a fraud, be permitted to avoid his written obligation by. showing that he did not read it nor hear it read.</p> <p>3. -A written contract which embraces all the items of a proposition and adds others, merges the proposition in the contract.</p> <p>4. -Peactioe. — The written contract being undisputed, and there being no evidence of any other contract except the evidence of the prior proposition, it is error to submit to the jury the question whether there was more than one contract.</p> <p>5.- New Tbial. — A new trial should be granted by the trial court where the verdict is manifestly against the weight and the entire current of the testimony.</p>

<p>1. Attachment — Plea in Abatement — Instructions. — In the trial of a plea in abatement in attachment, it is not error to instruct the jury to, make a separate finding on each ground of attachment charged in the affidavit.</p> <p>2. -Verdict. — Under a separate finding for the plaintiff on all the grounds alleged, the verdict will not be disturbed if the finding as to some of the grounds is fully sustaimed by the evidence.</p> <p>3. -Ikstrtjotiohb. — An instruction on the whole case must be so framed as to include the points raised by the evidence of the other party, and if it fails to do so, the court may change it so as to make it apply to the entire case.</p>

<p>1. Pleading — Account Stated. — In an action on an account stated, the defendant’s assent to the settlement or balance stated must be averred.</p> <p>2. Contracts — Option — Wagers. — Contracts for the sale and purchase of commodities with an intention not to deliver the same, but to merely settle the differences in the fluctuations in the market price, are void.</p> <p>-3. -Evidence — Practice. — The evidence as to the legality of the transactions in controversy in this case is held to have been sufficient to take the case to the jury.</p>

<p>1. Instructions — False Testimony. — An instruction that if the jury believe that any witness has sworn falsely upon any material point they may disregard his entire testimony, omitting the element of wilfulness or knowledge, is erroneous.</p> <p>2. - Such an instruction is not harmless where there are two issues, one side of which is supported almost entirely by the evidence of one witness and on either of which a verdict might he rendered.</p>

<p>1. Back Taxes — Evidence. —A tax bill can not be excluded, in an action for back taxes, because it is signed by a deputy collector.</p> <p>2. -In such an action, it is competent to show that the person who signed the tax bill as deputy collector was in fact a deputy collector.</p> <p>3. -Parties. —It is not necessary to make parties to such an action persons who have acquired interests in the land subsequently to the assessment of taxes.</p> <p>4. -Practice — Papers Piled with Pleadings. — It is sufficient if the tax bills sued on are filed with the amended petition.</p>

<p>1. Appeals. — Cases pending on appeal in the St. Louis court of appeals at the passage of the act of March 4, 1885, in which the amount in dispute exceeded $2,600, are transferable, under the act, to the supreme court.</p> <p>2. -Constitutional Law. — The act of March 4, 1885, does not confer any power in excess of, and does not conflict with, the constitutional amendment of November 4, 1884.</p> <p>3. -Courts. — In the matter of the establishment, continuance, or discontinuance of its own courts each state is sovereign, and in establishing or discontinuing courts a state violates no provision of the constitution of the United States.</p>