Volume 2 — Missouri Appeal Reports

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 4 Bl. Com. 135 ; Chitty on Con. (5th Am. ed.) 675 ; Evans •v. Bell, 6 Dana, 179; Wilhite v. Eoberts, 4 Dana 172; Cain v. Warford, 33 Md. 23; Mahoney v. Bergin, 41 Cal. 423 ; Hoyt v. Thompson, 1 Seld. 347 ; Bayard v. McLane, 3 Harr. (Del.) 139; Major v. Gibson, 1 Patt. & H. 48; Tapley v. Coffin, 12 Gray, 420; Huffman v. Vallejo, 45 Cal. 564 ; Martin v. Clark, 8 E. I. 389 ; Northcraft v. Martin, 37 Mo.' 361.</p> <p>cited: Stanleys. Jones, 7 Bing. 369 ; Thurston v. Percival, 1 Peck, 415; Lathrop v. Amherst Bank, 9 Mete. 489 ; Bird v. Odam, 9 Ala. 755 ; Halloway v. Lain, 7 Port. 488 ; Key v. Vattier, 1 Harry, 58 ; Loffutt v. Jelly, 22 Md. 471; Boardman v. Thompson, 35 Iowa, 487 ; Grill v. Levy, 61 C. B. (n. s.) 72 ; Underwood v. Reby, 19 Wis. 412; Baker v. Lane, 14 Wis. 131; Croly v. Ross, 13 Ind. 201; Elbeck v. McLelland,. 17 Aa. 206.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: India Association v. Rock, 14 La. An. 168 ; Stanton v. Allen, 5 Denio, 485; Crawford v. Wick, 18 Ohio St. 203; Hilton v. Eckersby, 6 El. & Bl. 47-66; Horner v. Graves, 7 Bing. 743 ; Alger v. Thatcher, 17 Pick. 51.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Stone v. Powell, 5 Mo. 435 ; Wag. Stat, 831, sec. 10.</p>

<p>By the Court. — 1. It is not competent, in a divorce suit, to show the general reputation of the husband or wife for good temper, or the reverse.</p> <p>2. Where the ground of divorce is that the defendant offered such indignities to plaintiff as to render her condition intolerable, and the evidence shows harsh language and refusal to speak, continued for several weeks, this court will not interfere with the action of the trial court in refusing to grant a divorce.</p> <p>By Judge Baxewell. — In proceedings for divorce it is not competent for the husband or wife to testify to private conversations held between themselves.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Amis v. Steamboat Louisa, 9 Mo. 621; Gleim v. Steamer Belmont, 11 Mo. 112 ; Clark v. United Ins. Co., 7 Mass. 365 ; Williard v. Millers’, etc., Ins. Co., 24 Mo. 561; Buchanan v. Ocean Ins. Co., 6 Cow. 318 ; Ridyard v. Phillips, 4 BlatchL 443; Lord v. Neptune Ins. Co., 10 Gray, 109; Davy v. Hallett, 3 Caine, 16; Forbes v. Aspinwall, 13 East, 327; Watson et al. v. Ins. Co. of South America, 3 Wash. 1; McGaw v. Ocean Ins. Co., 23 Pick. 405; 2 Ph. on Ins. 20-21; 2 Pars. Mar. Law, 69.</p> <p>cited: Thewing v. Ins. Co., 10 Gray, 457; Lord v. Neptune Ins. Co., 10 Gray, 113; American Ins. Co. v. Curtis, 4 Wend. 45 ; 15 Mass. 324; Tenscolt v. Christie, 2 Brod. & B. 320; Davidson v. Willasey, 1 M. & S. 321; Warre v. Miller, 7 D. & R.; s. c., 4 B. & C. 538; Devaux v. J’Anson, 7 Scott, 507; In re Clark, 3 B. R. 123; Samson v. Barton, 4 B. R. 1; Foster v. Hackley, 2 B. R. 131; Manson v. Horrick, 100 Mass. 323.</p>

<p>"Where the intestate employed attorneys to bring a suit which was pending at the time of his death, and then revived in the name of his administrator, held, in a suit against the attorneys for the proceeds of. the suit collected against them, that they could not offset their claim for professional services rendered to the intestate during his life-time, hut were entitled to recover, as a set-off, the reasonable value of the services rendered to the administrator in prosecuting the suit after the intestate's death.</p>

<p>1. Where a juror is objected to as prejudiced, and qualifies himself under the-statute and is accepted by the judge presiding on the trial, this court will not interfere..</p> <p>2. Where a full panel of eighteen jurors was called, where only one juror is challenged by one of the parties, even though the court improperly refused' a challenge for cause, no prejudice can arise to the party challenging, and the appellate court will not interfere.</p> <p>3. The question in cases of liability of the master for the acts of the servant is not, whether the act of the servant is negligent or willful, but whether it is done whilst engaged in the master’s business, and within the scope of the servant’s employment. •</p> <p>4. Damages which give merely a full, round compensation for the injury done are not punitive.</p> <p>6. Negligence of the plaintiff which does not directly contribute to the injury will not relieve the defendant from the consequence of negligence on his • part which is the direct cause of the injury.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Dascomb v. Buffalo & Lake Shore R. R. Co., 27 Barb. 221; Herring ■v. Wilmington & Raleigh R. R. Co., 10 Ired. 407; Spofford v. Harlow, 3 Allen, 179 ; Boland and wife v. Missouri R. R. Co., 36 Mo. 492; Callahan v. Warne, 40 Mo. 136 ; Pittsburgh v. Evans, 53 Penn. 255 ; Shear. & Redf. on Neg. (3d ed.), sec. 86, p. 128, sec. 99 ; Hill, on Torts (4th ■ed.), 463; Id. (2d ed.) 460, 461; McDermott v. Pacific R. R. Co., 30 Mo. 117 ; Devitt v. Pacific R. R. Co., 50 Mo. 305; Honder v. Baltimore R. R. Co., 32 Md. 411; Smith v. City of St. Joseph, 45 Mo. 449 ; Walsh v. Mississippi Tr. Co., 52 Mo. 488; Wyatt v. Citizens’ R. R. Co.* 55 Mo. 485.</p> <p>cited: Walsh v. Mississippi Tr. Co., 52 Mo. 434; Smith v. City of St. Joseph, 45 Mo. 449 ; Wyatt v. Citizens’ R. R. Co., 55 Mo. 485.</p>

<p>Appeal from St. Louis Circuit Court,</p> <p>cited : Wag. Stat. 80, secs. 63, 64; Wag. Stat. 104, sec. 15, p. 81, sec. 66; Kidd w. Chapman, 2 Barb. 422; Taylor v. Woods, 36 Mo. 73-79; Grimes, Admr., v. Bush, 16 Ark. 647; Perry v. West’s Admr., 40 Miss. 233; Williamson v. Anthony, Admr., 47 Mo. 299 ; Bryan v. Manday, 17 Mo. 556 ; Van Saun v. Farley, 4 Daly, 165 ; Elliott v. Cook’s Admr., 13 Wend. 35; Cullanan v. McClure, 47 Barb. 206 ; Brodrick v. Smith, 3 Lans. 26 ; Little v. Little, 36 N. H. 224.</p> <p>cited: Wag. Stat., •secs. 52-64, pp. 78-80; Wag. Stat., secs. 15-19, pp. 104, 86; McCluny v. Sillman, 3 Pet. 270; Miller v. Janney’s Exr., 15 Mo. 268.</p>

<p>An acknowledgment of notice' of transfer, signed in blank by the warehouseman on a warehouse receipt — the name of the transferee being omitted— will hold the signers to every responsibility as bailees of the transferee, whose name may be afterwards inserted, whether in fact known to them, as such or not.</p>

<p>1. Shares of stock in a corporation are goods, wares,- and merchandise, within the meaning of the statute of frauds, so as to require a note or memorandum in writing to validate a sale.</p> <p>2. A having purchased shares of B, an agreement that the transaction shall be considered as canceled cannot be made the foundation of an action by A against B, as for a resale of the shares to B.</p>

<p>1. When premises are occupied by a tenant, an agent of the owner cannot be proceeded against under a municipal ordinance for failing to remove a nuisance therefrom.</p> <p>2. The tenant’s possession and control of leased premises are inviolable by the landlord or his agent, except for purposes pertaining to the preservation of the freehold.</p> <p>8. Power given by charter to the mayor and council of the city of St. Louis “ to provide by ordinance for the abatement of nuisances and the preservation of the public health,” will not sustain an ordinance made under color thereof, or authorize an interpretation of such an ordinance to an effect which would be in violation of the laws of the State.</p>

<p>3. It appears that, under “ An act to authorize the formation of railroad associations, and to regulate the same,” approved December 13, 1855, it was competent to organize a street railway company in the city of St. Louis. But, in any event, such a company having been constituted under the forms prescribed in said act, an act of the General Assembly, approved January 16, 1860, recognizing the corporate organization, and defining its powers, etc., was effectual to place the existence of the corporation beyond question. Such an act was not “retrospective in operation.”</p> <p>:2. Section 3 of an act of the General Assembly provides: “No street railway shall hereafter he constructed * * * nearer to a parallel road than the third parallel street from any road now constructed, or which may hereafter he constructed, except the roads hereinbefore mentioned.” Held, that the true interpretation permits the construction of a railway nearer than the third parallel street from one of “the roads hereinbefore mentioned;” hut forbids such construction within that distance from any other.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Bayley on Bills, 37, sec. 15 ; Carter v. McClintock, 29 Mo. 464; Parsons’ Merc. Law (1st ed.), 85, note 2; Woodford v. Darwin, 3 Yt. 82; Story on Part., secs. 140, 142, 147, 148;. Wag. Stat. 1374, sec. 7 ; Snyder v. Raab, 40 Mo. 167.</p> <p>cited : Wag. Stat. 851, sec. 23, p. 1043, sec. 28, p. 1374, sec. 7; Haggerty v. Morrison, 59 Mo. 324; Carpenter v. Turrell, 100 Mass. 450 ; Diepenbrock v. Shaw, 21 Mo. 122; Sutter v. Streit, 21 Mo. 159 ; Farrar v. Finney, 21 Mo. 569 ; Wilcoxson v. McBride, 23 Mo. 404; Ellis v. Andrews, 25 Mo. 327 ; Gale v. Foss, 47 Mo. 276.</p>

<p>1. An agreement whereby a corporation collecting tbe lawful fees due to certain officers is to retain part, thereof, in consideration of forbearance of efforts to procure a repeal of tbe law by wbicb tbe offices were created, is void.</p> <p>2. If a corporation, collecting fees for tobacco inspectors, collect more than is allowed by law, and pay over the same, such over-payments cannot be set up as a counter-claim in a suit for fees collected and not paid over.</p> <p>3. A counter-claim founded on quantum meruit, with a detailed account of items and separate charges, is not sustained by proof of a special contract fixing a lumping compensation for all the items together.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Ericksonv. Nesmith, 4 Allen, 236 ; Andrews v. Callender, 13 Pick. 490.</p> <p>cited: Kritzcas v. Woodson, 19 Mo. 327 ; Ochiltow v. Iowa R. R. Co., 54 Mo. 113; Cable v. McCune, 26 Mo. 371; Blair v. Rankin, 11 Mo. 440.</p> <p>cited: Dresser v. Ainsworth, 9 Barb. 619 ; Bell on Sales, 95, in 49 Law Lib. 50; 1 Washb. on Real Prop. (1st ed.) 2, sec. 4, book 1; Aldrich v. Parsons, 6 N. H. 555; Osgood v. Howard, 6 Greenl. (Me.) 452 ; Russell v. Richardson, 1 Eairf. 431-433 ; Wills v. Bannister, 4 Mass. 515 ; Doty v. Gorham, 5 Pick. 487 ; Ashnum v. Williams et al., 8 Pick. 402 ; Vanness v. Packard, 2 Pet. 137; Hines v. Ament, 43 Mo. 300 (Bliss, J.) ; Bircher v. Parker, 43 Mo. 451; Bircher v. Parker, 40 Mo. 120 ; Sweetman v. Prince, 26 N. Y. 232, 233 ; Bust v. Dewey, 31 Barb. 543; Payne v. Rodden, 4 Bibb, 304; 2 Story on Sales, sec. 367 ; Funk v. Cresswell, 5 Clarke (Iowa), 88; Rawle on Cov. 250; Crittenden v. Posey, 1 Head, 311; Noel v. Wheatley, 30 Miss. 181; Arthur v. Moss, 1 Oreg. 193; Armstrong v. Percy, 5 Wend. 535; Dickson v. Desire’s Admr., 23 Mo. 166 ; Tong v. Matthews, 23 Mo. 437; Foster v. McO’Biennis, 18 Mo. 91;. 3 Bl. Com., side p. 154; 1 Wag. Stat. 180, par. xiv., sec. 1; 1 Bouv.L. Die., title Debt; 1 Burr. L. Die., title Debt; Commonwealth v. Jailer, 4 Serg. & K. 506 ; Gray v. Bennett, 3 Mete. 526; State Savings Assn. v. Kellogg, 52 Mo. •583; Carver v. Braintree Mfg. Co., 2 Story, 432; Mill Dam and Foundry Co. v. Hovey, 21 Pick. 417 ; Haynes v. Brown, 36 N. H. 545 ; Gray v. Bennett, 3 Mete. 526; Provident Saving Inst. v. Jackson Place Skating and Bathing Kink, 52 Mo. 552, 557; Hawthorne v. Calef, 2 Wall. 10; Corning v. McCullough, 1 N. Y. 47; Morris v. Wrenshall, 34 Md. 492 ; Perry v. Turner, 55 Mo. 428.</p>

<p>cited: Bryan, u. Pike Benevolent Society, 8 Watts &■ 5. 247; B & W. S. Society v. Vandyke, 2 Whart. 309 ; Ang. & Ames on Corp. (6th ed.), secs. 415-418; lb. (9th ed.), secs 415-418, 441-449, and notes; Ex parteLong, 29 Eng. Law & Eq. 194; Queen v. Evans, 3 El. & Bl. 362 ; Green’s Brown’s Ultra Vires, 44, 45, and notes ; High on Rem. 206, sec. 292, p. 208, sec. 295, and note; Wag. Stat. 1037, sec. 22, ch. 110; Society of Visitation v. Commonwealth ex rel., 52 Penn. 125 ; 23 Mo. 449 ; 27 Mo. 225; High on Rem. 211, secs. 301, 302, p. 212, sec. 302,. and note.</p> <p>cited: Jaccard v. Anderson, 32 Mo. 188; State ex rel. v. Everett, 52 Mo. 95 ; Stephen’s PI. 143; Harper v. Major of New York, 17 Wend. 199 ; People ex rel. v. Mayor of New York, 7 How. Pr. 81; Taylor v. Griswold, 2 Green L. 223; King-v. Liverpool, 2 Burr. 731; King v. York, 5 Durnf. & E. 76 ; King v. Hereford, 6 Modern, 309 ; Ang. & Ames on Corp. (9th ed.), sec. 7 ; lb., secs. 410, 432 ; State ex rel. v. Chamber of Commerce, 20 Wis. 63; People v. Medical Society of Erie, 24 Barb. 570 ; Fawcett v. Charles, 13 Wend. 473 Commonwealth v. Guardians of Poor, 6 Serg. & K. 469; State ex rel. v. Georgia Medical Society, Am. Corp. Cases,. 328; Evans v. Philadelphia Club, 50 Pa. St. 107-115; King v. Feversham, 8 T. R. 352-356 ; Farmers’ Loan Co..' v. Carroll, 5 Barb. 613-649 ; Toler v. Hayden, 18 Mo. 399 ;-. Walt v. Huse, 38 Mo. 210 ; Berch v. Schneider, 27 Mo. 101; McCloon v. Beattie, 46 Mo. 391; King v. Doncaster,. 2 Burr. 738; People v. St. Francis Society, 24 How. Pin 218 ; Carter v. Sanderson, 5 Bing. 79 ; Scriveners’ Co. v. Brooking, 2 Gal. & Dav. 419 ; Dunham v. Rochester, 5 Cow. 462; Kennebec R. R. Co. v. Kendall, 31 Me. 470 ;. Cartan v. Father Matthew Society, 3 Daly, 20; Perry on Tr. (1st ed.), secs. 411 — 491; State v. Burkhardt, 59 Mo. 75 ; State v. Lafayette County, 41 Mo. 545 ; Commonwealth v. St. P. Society, 2 Binn. 441,.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Plumber v. Guthrie, 76 Pa. St. 455 ; Turner v. Kerr, 44 Mo. 429 ; Brant v. Robertson, 16 Mo. 129; Sharkey v. Sharkey, 47 Mo. 543;. Holmes v. Parish, 9 Mo. 201; Davis v. Clay, 2 Mo. 161; DesLoge v. Banger, 7 Mo. 327 ; Tibeau v. Tibeau, 22 Mo. 77 ; Wag. Stat. 281, sec. 10.</p>

<p>Appear from St. Louis Circuit Court.</p> <p>cited : North Missouri E. E. Co. v. Lackland, 25 Mo. 533 ; North Missouri E. E. Co. v. Eeynal, 25 Mo. 534; Hill v. Gibbs, 5 Hill, 58; Stevenson v. Cofferin, 20 N. Y. 151; Add. on Torts, 67; Twist v. Benton, 15 Mo. 619; St. Joseph v. Hamilton et al., 43 Mo. 282 ; Eogers v. Hug, 44 Mo. 116; Dill. on.Mun. Corp., sec. 474; Laughlin v. Municipality, etc., 5 La. An. 504; State v. Grover, 19 Md. 375; 31 Pa. St. 19; Graff v. Mayor of Baltimore, 10 Md. 554.</p> <p>cited: Sedgw. on Dam. (6th ed.) 125; 1 Eedf. on Eys. 245, ch. 11, p„ 277, et seq.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Westervelt v. Plaff, 2 Sandf. Ch. 103; Murray v. Ballou, 1. Johns. Ch-566 ; Baird v. Corwin, 17 Pa. St. 462 ; Stern v. Epstin, 14 Eich. on Eq. 5 ; Gradlebaugh v. Pritchett, 8 Ohio St. 650 ; Church v. Church, 3 Sandf. Ch. 437, 438 ; Loomis v. Eiley,. 24 Ill. 310; Eabb v. Aiken, 2 McCord Ch. 125; Wag. Stat. 839, secs. 13, 14; Id. 840, sec. 3; Youngman v. Elmira E. E. Co., 65 Pa. St. 287 ; Partridge v. Luce, 36 Me. 16; Steel v. Taylor, 1 Minn. 278 ; Johnson v. Payne, 1 Hill, 113; Codevise v. Gelston, 10 Johns. 520-522 ; Garvin v. Garvin, 1 Eich. (n. s.) 55, 62; Simmons v. Simmons, Harp. Eq. 256; Averill v. Loncks, 6 Barb. 478; Sweet v. Jacocks, 6 Paige, 362 ; He La Yergne v. Everton, 1 Paige, 183; Spray v. Eodman, 43 Iud. 228, 229.</p> <p>cited: Eeinhardt v. Wendeck, 40 Mo. 579 ; Wag. Stat. 1034, sec. 6, p. 1050, sec. 9 ; Papin v. Blumenthal, 41 Mo. 439 ; Harwood v. Kirby, 1 Paige, 469; Lewis v. Atkinson, 15 Iowa, 361; Sebring v. Mesereau, 9 Cow. 344; Swartz v. Dryden, 25 Mo. 574; Wag. Stat. 972; secs. 41, 42, 53; Penn. Gerard v. Farmers’ Bank, 77 Pa. St. 388; 2 Yeates, 324-329 ; Garvin v. Garvin, 1 Eich. 55; Cradlebaugh v. Pritchett, 7 Ohio, 651; Finlay v. Babin, 12 La. An. 236 ; Dunlop’s Law7 of Penn. 562, sec. 49 ; Eabb v. Aiken, 2 McCord Ch. 124, 125 ; Carlton v. Felder 6 Eich. on Eq. 60 ; Swan’s Eev. Stat. of Ohio, 592, secs. 9, 10, p. 680, sec. 444; Averillv. Loncks, 6 Barb. 478; Purdy v. Doyle, 1 Paige, 558; De La Yergne v. Everton, 1 Paige, 183.</p>

<p>1. “Where a committee of a corporation are authorized, “by a resolution of the directors, to make collections due the corporation, they may institute proceedings to collect, in the name of the corporation, against an individual, without an order specifying the mode of collecting that particular indebt ■ edness, or without any more particular authority with reference thereto.</p> <p>2. Neglect to choose officers of a private moneyed corporation does not work a dissolution of the corporation. The acts of the officers holding over are valid.</p> <p>3. In an action on a penal bond, judgment may be entered for the amount of the bond, with interest from the date of suit.</p> <p>4. “Where a corporation is, by its charter, authorized to make an usurious contract, and where no instruction as to usury was asked or given the jury, and where usury was not pleaded, a verdict will not be disturbed because the evidence discloses usury.</p> <p>5. An entry of judgment on the assessment of damages by a jury in a suit upon a penal bond, which is not in the proper form for such a judgment, cannot be amended by a subsequent entry of judgment, the court taking the cause as then submitted, without having made any order whatever regarding the first entry; and on appeal both judgments will be set aside for irregularity.</p>

<p>1. From July 4, 1865, to November 1,1870, no corporation could be created in. Missouri, the stockholders of which were not liable for the debts of the-corporation so far as those debts did not exceed the full par value of the-stock by them respectively held.</p> <p>2. The constitutional amendment adopted in November, 1870, did not have-the effect of impairing an obligation incurred by a stockholder prior to-that date.</p>

<p>A memorandum, made by the sheriff, acting as trustee under a deed of trust, of a sale of a leasehold, setting forth the description, terms of sale, date, and name of purchaser, is competent evidence in a proceeding to charge, as assignee of the lease,'the party named in such memorandum. It tends to show a contract of sale.</p> <p>(On motion for rehearing.) The sheriff, in such a case, sells as sheriff, not as auctioneer; and a memorandum, made on the day of the sale, and shortly after it, if otherwise sufficient, will satisfy the statute of frauds. This memorandum need not he made by the deputy who makes the sale.</p>

<p>A public school building, erected and used exclusively for the purposes of public education, is not subject to a mechanic’s lien for materials furnished the contractor.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Remsen v. Graves, 41 N. Y. 471; Erwin v. Downs, 15 N. Y. 575; Nightingale v. Withington, 15 Mass. 272.</p> <p>cited: Byles on Bills (4th ed.), 123; Story on Prom. Notes (6th ed.), 124, sec. 117; Nutwell v. Tongues’ Lessee, 22 Mich. 419.'</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Asbury v. McIntosh, 20 Mo. 278 ; Whittelsey’s Pr. 592 ; Zurnwalt v. Zurnwalt, 3 Mo. 269 ; Harrison v. Nixon, 9 Pet. 484; Martin v. Kanons, 2 Abb. Pr. 392; Matter of Bristol, 16 Abb. Pr. 397 ; Anderson v. Jones, 11 Iowa, 11; Philips v. Shelton, 6 Iowa, 545 ; Thompson et al. v. Cox, 8 Jones L. 311; Dunlap v. Commonwealth, 2 Call, 284; .Beazley v. Prentiss, 13 Smed. & M. 97; Kelly’s Probate Guide, 374; Schouler’s Dom. BeL 464 ; State to use v. Boland et al., 23 Mo. 95 ; Mitchell v. Williams, 27 Mo. 399; Brent v. Grace’s Admr-., 30 Mo. 256; Withers et al. v. Hickman et al., 6 B. Mon. 295 ; Matter of Bostwick, 4 Johns. Ch. 100; 16 Ind. 97 ; Smith’s Appeal, 30 Penn. 397 ; Stewart et al. v. Caldwell et al., 54 Mo. 537.</p> <p>cited: Wag. Stat. 120, secs. 3, 6, p. 65, sec. 81, p. 681, sec. 48 ; Mo. Stat. (1855) 125, sec. 325, and note a; Mitchell v. Williams, 27 Mo. 95 ; State to use v. Boland, 23 Mo. 397; Galloway v. Woods, 31 Mo. 351.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Stagg v. Linnepelter, 59 Mo. 336, 339, 340; Barrett v. County Court of Schuyler County, 44 Mo. 197 ; Kilgore v. Bulkley, 14 Conn. 362; Miller v. Austin, 13 How. 218; Bank of Orleans w. Merrill, 2 Hill, 295 ; -Lindsay v. McClellan, 18 Wis. 481; Morse on Banking, 52; 1 Pars..on Notes & Bills, 26;, Edw. on Bills (2d ed.), 380 ; Wag. Stat. 216.</p> <p>cited: Wag.. Stat. 216, sec. 15 ; Miller v. Austen, 13 How. 218; Cate v. Patterson, 25 Mich. 191; Blood v. Northrup, l.Kan. 28 ;, Drake v. Maride, 21 Ind. 433; Laughlin ,v. Marshall, 19 Ill. 390 ; Hunt v. Divine, 37 Ill. 137; Patterson v. Poindexter, 6 Watts & S. 227.</p>

<p>1. “Where the testimony on opposite sides of a material issue is flatly contradictory, the finding of the jury is conclusive, and cannot be reviewed by an appellate court.</p> <p>.2. Evidence of former transactions by an agent, similar to the one in controversy, is admissible as tending to show the extent of his authority, when there is other evidence tending to prove that such transactions were known and approved by the principal at the time of their occurrence.</p> <p>•3. A letter written by the principal, declaring that the agent was invested with certain powers, is proper evidence against the principal to that effect, although not addressed to the adverse party in the cause.</p> <p>4. If a principal knowingly allow his agent to indorse and discount notes, taken in the course of business, with the name of the principal, and take no steps to make known that the agent has no authority so to do, he will be liable on an indorsement so made by the agent.</p> <p>5. It was not erroneous to refuse an instruction to the effect that “ authority given to an agent to discount at one place, or with one person, does not imply the authority to discount at another place, or with another person,” when the only tendency of the testimony, if any, was to prove a general authority to discount at all places and with all persons, as occasion might require.</p>

<p>1. Where the city charter provides that the council shall construct sewers where they deem, it necessary, the passage of an ordinance to construct a sewer is conclusive as to the necessity for the sewer.</p> <p>2. The fact that a portion of the sewer connecting it with the main sewer runs through property of defendant not condemned for sewer purposes is no bar to a recovery on the special tax hill against defendant for the portion of the sewer built on that part of his premises which had been regularly condemned.</p>

<p>1. The executor of a deceased person may, especially with the sanction of the Probate Court, make a valid contract for the extension of the time of payment of a debt owing by decedent, and a contract that, in consideration of the payment of interest by the executor, an extension of time for the payment will be given by the creditor, is valid.</p> <p>2. There may be circumstances vrtách will render something less than an absolute strict compliance with the requirements of the statutes a sufficient exhibition of a demand for allowance against the estate of deceased.</p>

<p>1. A conveyance which is not invalid on account of fraudulent intent of the parties to hinder or delay creditors, may yet be so because made to the use of the grantor. Hence; it is error to instruct a jury that, if no such fraudulent intent exist, a deed is not void, as being made to the use of the grantor.</p> <p>2. A parol agreement between the parties, contemporaneous with the execution of a trust deed or mortgage of merchandise, that the grantor may retain the stock and continue to sell in the course of trade, will vitiate the deed, as being made to the use of the grantor, with like effect as if such agreement appeared on the face of the instrument.</p> <p>S. A suit on account of the taking of personal property held under a deed cf trust is rightly brought in the name of the trustee.</p> <p>4. The better method of proving the value of personal property is by the statements of competent witnesses who can tell what it ought to bring in the market. But, if such testimony be not at hand, proof of a public sale of the property, actually made under legal procedure, may be admitted for the purpose.</p> <p>5. The court cannot declare in an instruction what articles were sold, or not sold, at a public sale.</p>

<p>1. Where, in a suit on special tax bill erroneously issued, there was judgment for defendant, this is not a bar to a suit upon an amended tax bill after-wards issued by the city engineer for the same work.</p> <p>2. Where the contract on which the tax bill is issued embraces work outside the sewer district, the city engineer can compute the whole cost of so much of the sewer as was within the district, assess it as a special tax, and issue tax bills against the respective lots in the district.</p> <p>3. A personal judgment cannot be entered against any one on a special tax bill, but an executor entitled to the possession of real estate is a proper party to a suit on a special tax bill aifecting such estate.</p>

<p>1. Where the evidence is conflicting and is submitted to the jury with proper instructions, the verdict will not be disturbed by an appellate court— appellate courts will not weigh evidence.</p> <p>2. An instruction that, where defendant alleged a settlement, the burden is upon him of proving such settlement by a preponderance of testimony is not erroneous.</p> <p>■3. The testimony of experts as to the signature of K. to a paper is evidence from which the jury may determine whether the paper was executed by K.</p> <p>4. A receipt in full, executed by plaintiff, is prima facie evidence of a settlement and payment in full.</p> <p>•5. Affidavits in support of a motion for a new trial on account of newly-discovered evidence will be disregarded if they show that nothing but gross negligence prevented the party from knowing, before the trial, the matters alleged to be newly discovered.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited : Ohio & Mississippi R. R. Co. v. McPherson, 35 Mo. 13; Camp v. Bryne, 41 Mo. 529; 2 Cranch, 449; St. Louis Mutual Fire Ins. Co. v. Boeclder, 19 Mo. 135; Redf. on Rys., secs. 47, 49, 53, 54; White Mountain Roadv. Eastman, 34 N. H. 124 ; Ang. & Ames on Corp., secs. 635, 636 ; Upton v. Hansborough, 3 Biss. 417; National Park Bank v. Nichols, 2 Biss. 146 ; Boland v. Whitman, 33 Ind. 65 ; Central Plank Road Co. v. Clemens, 16 Mo. 359 ; Stanton v. Wilson, 2 Hill, 154; Chester Glass Co. v. Dewey, 16 Mass. 94; Sawyer v. Hoag, 17 Wall. 610 ; State v. Kupferle, 44 Mr. 154; New Haven & Derby R. R. Co. v. Chapman, 38 Conn. 56 ; Schaeffer v. Missouri Home Ins. Co., 46 Mo. 248.</p> <p>cited: Old-town & Lincoln R. R. Co. v. Yeazie, 39 Me. 572; Ang. & Ames on Corp. 66, sec. 83, p. 537, sec. 531, p. 829, sec. 779 ; Fire Department v. Kip, 10 Wend. 266 ; First Baptist Society v. Rapalee, 16 Wend. 605 ; Central Plank Road Co. v. Clemens, 16 Mo. 359 ; Ohio & Mississippi R. R. Co. v. McPherson, 35 Mo. 13 ; Smith v. Heidecker, 39 Mo. 157 ; Welland Canal Co. v. Hathaway, 8 Wend. ,483, 484 ; Kansas City Hotel v. Harris, 51 Mo. 465 ; Camp v. Bryne, 41 Mo. 535; Bales v. Perry, 51 Mo. 449, 453; Columbia Bottom Levee Co. v. Meier, 39 Mo. 57; Rockville & Washington Turnpike Road v. Yan Ness, 2 Cranch, 449 ; Moore et al. v. Whitcomb, 48 Mo. 546 ; Powell v. North Missouri R. R. Co., 42 Mo. 65.</p>

<p>cited:' Tison v. La Beaume, 14 Mo. 198 ; Stevens v. Spiers, 25-Mo. 386; Kerr on Fraud, 95; Havenden ón Fraud, 105 ; White & Tudor Ld. Cas. 151, 152 ; Carter v. Ashire, 48 Mo. 300; McCormack v. Malin, 5 Blackf. 509 ; Shelly v. Nash, 3 Madd. Ch. 127.</p> <p>cited: Kerr on Fraud (1st ed.), 186; Holmes v. Fish, 9 Mo. 211; Chouteau v. Nuckolls, 20 Mo. 447, sec. 5 ; Parkerv. Hannibal & St. Jo. R. R. Co., 44 Mo. 421; Cadwallader v. West, 48 Mo. 494 ; Wagner v. Phillips, 51 Mo. 117 ; Durfee v.. Moran, 57 Mo. 379; Glasscock v. Minor, 11 Mo. 657 ; Buford v. Caldwell, 3 Mo. 335; Holland v. Anderson, 38 Mo. 59 ; Soulard v. Peck,,49 Mo. 479 ; Parmelee v. Cameron, 41 N. Y. .392.</p>

<p>1. A motion to suppress or exclude a deposition for want of notice of the taking of it, made for the first time at the trial of a cause, the deposition having been on file for more than nine months, and'there being a rule of court requiring that all exceptions for such cause should have been filed more-than six months before, was properly overruled.</p> <p>2. A motion, made for the first time during the trial, to dismiss a suit for want of security for costs was properly overruled.</p> <p>•3. Where the petition charges fraud in fact in respect of a deed, and the deed is fraudulent in law, the evidence as to fraud in fact being conflicting, and the finding of the court is for the plaintiff generally, there is no reason for saying that there is a want of correspondence between the allegations and the proofs.</p> <p>4. A deed is fraudulent and void as to creditors, and will he presumed to have been contrived with that intent, 'if, by its terms, the property is left in the hands of the grantor with power of sale.</p>

<p>1. T. accepted bills of exchange in W.’s favor, for which W., by a contemporaneous written agreement, promised to advance a certain sum to T., through the latter’s agent. W. advanced only part of the money promised ; but T., being induced to believe that all had been advanced to his agent, caused the bills to be paid in full. Held, in a suit by T. for the balance not advanced by W., and for damages, that although fraud was charged against "W. in collecting the whole amount of the bills, yet the action was based on the written contract, and was, therefore, not barred by the statutory limitation of five years. ■</p> <p>2. No assignment from an agent is necessary to enable the principal to sue upon a contract made for his benefit by the agent.</p> <p>3. Where the parties, in a settlement, have agreed upon the value in United States currency of a certain sum in foreign money, no further evidence is necessary to enable the jury to make a like estimate, in readjusting the settlement to the rights of the parties, and in ascertaining what.amount was overpaid.</p> <p>4. When the statute of limitations is pleaded against a set-off or counter- ' claim, the time must be computed from the commencement of the suit, and not from the filing of the answer.</p> <p>6. A jury cannot properly allow interest from a date prior to that from which the party claims it in his pleading.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Hurck v. Erskine, 50 Mo. 119, 2d par.; State v. Newkirk, 49 Mo. 472; Gale v. Grimes, 9 Ind. 143; Carney v. Emmons et al., 9 Wis. 118 ; Beebe w. Bank of New York, 1 Johns. 529; Byland v. Callison, 54 Mo. 514; Herrington v. Hei-rington, 27 Mo. 560; Pepper v. Carter, 11 Mo. 540; Eddy v. Baldwin, 23'Mo. 588; Allen v. Berry., 50.Mo. 90; Ames v. Gilmore, 59 Mo. 538 (syllabus), 5.50; Howe v. Colby, 19 Wis. 583.</p> <p>cited: Hurck v. Erskine, 50 Mo. 119 ; McKey v. Underwood, 47 Mo. 187.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : 1 Greenl. on Ev. (7th ed.) 52, sec. 41; Wag. Stat. 1012, sec. 1; 1 Chitty’s PI. 413 ; Childs v. The Bank, 17 Mo. 213 ; Mooney v. Ken-nett, 19 Mo. 551; Clark v. Hannibal & St. Jo. R. R, Co., 36 Mo. 202 ; Brownell v. Pacific R. R. Co., 47 Mo. 239 ; City of St. Louis to use v. Allen, 53 Mo. 44.</p> <p>cited: Ahern v. Collins, 30 Mo. 145; Schwart v. Naylor, 2 Duer, 678 ; Richardson v. Farmer, 36 Mo. 35; Jones v. Louderman, 39 Mo. 287; Kercheval v. King, 44 Mo. 401; Hay v. Short, 49 Mo. 139 ; Hapgood v. McKoon, 49 Mo. 77 ;' Poe v. Dornec, 48 Mo. 441; 8 Ohio St. 293; Rowland v. Phalon, 1 Bosw. 43; Fugate v. Glasscock, 7 Mo. 577; Coll, on Part., sec. 245 ; Johnson v. Armdall, 34 Mo. 339 ; Dillard v. Noe, 3 Ark. 449 ; Deery v. Cray, 5 Wall. 796 ; City of Alleghany v. Nelson, 25 Penn. 332; Byrd v. Blusing, 11 Ohio St. 362 ; Phillips v. Jordan, 3 Stew. 38 ; Nelson v. Brownlee, 24 Ark. 587; Anderson v.. Copie, 26 Ind. 329 ; Fankbonner v. Fankbonnér,'20 Ind. 62; Thorn v. Watson, 10.111.'26; Smith ’v. Erer, 21 Ala. 38; Hathaway v. Jones, 21 Ark. 109; •Sheperd v. Bank of Missouri, 15 Mo. 141; Payne v. Collier, •6 Mo. 321; Ramsey v. Gross, 9' Gill, 56 ; Buckner v. Bush, 1 Duv. 394; Currens v. Radcliff, 9 Iowa, 309 ;' Gi’anger v. Buck, 3 Iowa, .570.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Rain v. Hixie, 2 Hilt. 311; Williams v. Woodard, 2 Wend. 487 ; Provost v. Cal-den, 2 Wend. 617 ; Carter v. Hammett, 12 Barb. 253; Grant v. White, 42 Mo. 290, 291; Rector.v. Rankin, 1 Mo. 371; Armstrong v. Wheeler, 9 Cow. 88 ; Taylor v. iZepp, 14 Mo. 482 ; Major v. Rice, 57 Mo. 384 ; Willison v. Walkins, 3 Pet. 43 ; Brown v. Brown, 30 N. Y. 540 ; Allen v. Sales, 56 Mo. 28 ; Wag. Stat. 88, secs. 33, 34, 35 ; Gunn v. Sinclair, 52 Mo. 327.</p> <p>cited: 1 Washb. on Eeal Prop. 444, sec. 4; 1 Wag. Stat. 655, sec. 2 ,* Quackenboss v. Clark, 12 Wend. 555 ; Bagley v-. Freeman, 1 Hilt. 176.</p>

<p>Appeal from St Louis Circuit Court.</p> <p>cited: Gordon v. Bruner, 49 Mo. 570; Wag. Stat. 911, sec. 20; Deaffin v. Bonville, 8 Mo. 395 ; Gautner v. Kemper et al., 58 Mo. 570 ; Benny v. Rhodes, 18 Mo. 147 ; 9 Wheat. 737 ; 1 Story’s Eq. 459.</p> <p>cited; Wag. Stat. ■911, sec. 20.</p>

<p>1. Where an insurance company has so dealt with the insured as to induce a belief that the clause of forfeiture for non-payment of interest on a premium note will not be insisted upon, there will .be no forfeiture if" payment be tendered within a reasonable time.</p> <p>2. But, where no tender of the interest is made for three months, and the insured dies without having made a tender, the clause of the forfeiture will be enforced.</p>

<p>Appeal from Sfc. Louis Circuit Court.</p> <p>cited: Willi v. Peters,. 11 Mo. 395; Sheppard v. Martin, 31 Mo. 492; Harley v. McAuliff, 24 Mo. 85; Sweeney v. Mines, 31 Mo. 240 ; Walker v. Northern C. M. Co., 5 De Gk, M- & Gk 629;; Wag. Stat., ch. 85, sec. 32.</p>

<p>1. Gross misconduct of a financial agont, in the matter of keeping accounts, forfeits all right to compensation.</p> <p>2. Where a referee finds as a fact that a financial agent has grossly neglected his duty by failure to keep proper accounts and vouchers, it is error to allow him his salary.</p>

<p>1. The payee and holder of a note, indorsed in full to a third party, is not on that account obliged to prove ownership of the note.</p> <p>2. Where no issue of usury, or no usury has been found, it is prefectly immaterial, as affecting plaintiffs’ right to recover the full amount due on a note and costs, what the evidence may show as to the amount of interest paid or agreed upon.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 2 Greenl. on Ev., secs. 60, 61; Story on Ag., secs. 45-50, 73, 140;: Cobbs v. Lunt, 4 Greenl. 503; Dow v. Greene, 16 Barb. 72; Olcott v. Tioga R. R. Co., 27 N. Y. 546; Hoyt v„ Thompson’s Exr.,- 19 N. Y. 208, 219; Bank of United States v. Dandridge, 12 Wheat. 64, 70; Barbour v. Watts,. 2 A. K. Marsh. 290 ; Pike v. Dyke, 2 Greenl. 213 ; Story V. Gowan, 18 Me. 174 ; Taylor v. Whiting, 2 B. Mon. 268 ;: Phillips v. Greene, 5 T. B. Mon. 344; Orr v. Foote, 10 T. B. Mon. 387; 2 Ph. on Ev. (5th Am. ed.) 632-739, note' 514; Exchange Bank v. Montieth, 17 Barb. 171; North River’Bank v. Aymer, 3 Hill, 262, 272; Farmers &. Mechanics’ Bank v. Butchers & Drovers’ Bank, 14 N. Y, 623; Griswold v. Haven, 25 N. Y. 595, 599, 602, 603 ; New York & Now Haven R. R. Co. v. Schuyler, 34 N. Y. 30, 66 ; Smith v. Clark County, 54 Mo. 58, 77 ; 1 Pars, on Notes & Bills, 108 ; Bank of Bengal v. Maolead, 7 Moo. P. C. C. 35; Bank of Bengal v. Fagan, 7 Moo. P. C. C. 61; North River Bank v. Aymar, 3 Hill, 262, 266, 267; Mechanics’ Bank v. New York Railroad, 13 N. Y. 623; Id., 16 N. Y. 125, 131, 135, 136; Griswold v. Haven, 25 N. Y. 595 ; Exchange Bank v. Montieth, 26 N. Y. 505; State of Illinois v. Delafield, 2 Hill, 159; Westfield Bank v. Cornen, 37 N. Y. 320 ; Bird v. Daggett, 97 Mass. 494; Madison & Indianapolis B. B. Co. v. Norwich Savings Soc., 14 lud. 457 ; De Yoss v. Bichmond, 18 Gratt. 338; 2 Kent’s Com. (12th ed.) 621, note; Fairlie v. Hastings, 10 Yes. 123, 126, 127; 1 Ph. on Ev. (5th Am, ed.) 507, 508, 516; Perkins v. Burnet, 2 Boot, 30; 1 Greenl. on Ev., secs. 27, 41, 208, 217 ; Graff v. B. S. B. B. Co., 31 Penn.-496; Kerr on Fraud, 111, 238, 239, 256 ; Wilson v. Fuller, 3 Q. B. 77; Goodman v. Simmons, 20 How. 343, 362-367; 1 Story’s Eq., sec. 400, a; 1 Pars, on Notes & Bills, 260, 477, 502; Perkins v. Challis, 1 N. H. 254; Story on Prom. Notes, secs. 197, 310 ; Hamilton v. Marks, 52 Mo. 78-80 ; Horton v. Bayne, 52 Mo. 531; Lemoine v. Bank of North America, 1 C. L. J. 529 ; 1 Pars, on Con. 71, 253 ; Bank of Columbia v. Lawrence, 1 Pet. 578; Lewiston Falls Bank v. Leonard, 43 Me. 157; Sanderson v. Beinstadler, 31 Mo. 483 ; Bank of Columbia v. Lawrence, 1 Pet. 578 ; Williams v. United States Bank, 2 Pet. 96, 101; Edson v. Jacobs, 14 La. 494 ; Jones v. Mancker, 15 La. 51; Lord v. Appleton, 15 Me. 270; Commercial Bank v. Gove, 15 La. 113; Bank of United States v. Merle, 2 Bob. (La.) 117 ; Jacobs v. Turner, 2 La. An. 964; Hazard v. Treadwell, Stra. 506 ; Spencer v. Wilson, 4 Munf. 130 ; Story on Part., sec. 16 ; Pope v. Bisley, 23 Mo. 186 ; Edw. on Bills (2d ed.), 612 ; Bank of Utica v. Phillips, 3 Wend. 408 ; Bank of Utica v. Davidson, 5 Wend. 587 ; Union Bank of Tennessee v. Govan, 10 Smed. & M. 334; Cocke v: Bank of Tennessee, 6 Humph. 51; Dabney v. Stidger, 4 Smed. & M. 749 ; Fourth Nat. Bank v. Henschen, 52 Mo. 207 ; Coll, on Part., secs. 195, 384, 601, 603; Greeley v. Wyeth, 10 N. H. 16; Barbour v. Watts, 2 A. K. Marsh. 290; Pike v. Dyke, 2 Greenl. 213 ; Story v. Go wan, 18 Me. 174 ; Phillips v. Green, 5 T. B. Mon. 344 ; Weidler v. Farmers’ Bank of Lancaster, 11 Serg. & B. 134 ; Bowt’s Admr. v. Kile’s Admr., 1 Leigh, 216, 223, 224; 1 Ph. onEv. (5th Am. ed.) 619, 620, 732, 736-738; Hayward v. National Ins. Co., 52 Mo. 181; Mechanics’ Bank v. Schaumberg, 38 Mo. 228.</p>

<p>1. B. subscribed to the stock of a joint stock company, on condition that the capital stock should be $150,000; no calls to be made until $100,000 had. been subscribed. -Held, that he was liable to call when $100,000 had been subscribed, the company having organized under a certificate fixing the capital stock at $150,000.</p> <p>2. One having, by mistake, signed an alphabetical list of subscribers to the company instead of the stock-subscription book of the companj^, who afterwards votes as a stockholder, is estopped to deny his subscription to the stock of the company.</p>

<p>1. An intent to hinder., delay, or defraud creditors is sufficient to invalidate a mortgage. It is not necessary that there he also combination and confederation between the mortgagor and mortgagee.</p> <p>2. It is error to instruct that, in order to render a mortgage void, there must have been an intent to “hinder, delay, and defraud creditors.” The word “or” should be used, instead of “and.” Such error is not cured by another instruction to the effect that an intent to “hinder and delay” will suffice.</p> <p>3. Where part only of certain mortgaged property is taken in execution against the mortgagor, and the mortgagee gives notice of his claim, stating the value of all the property, whereupon the officer takes an indemnifying bond, reciting the value according to the notice, the obligors in the bond are not estopped by such recital, but may show that the property taken was of less value.</p> <p>4. A constable having sold mortgaged property under execution, and paid the proceeds to the mortgagee, it was erroneous to exclude evidence of such payment, for the defense, in an action by the mortgagee for damages resulting from the seizure and sale.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: McCullough v. Moss, 5 Denio, 566, 567 ; First Nat. Bank v. Hogan, 47 Mo. 472; Dabney v. Stevens, 46 How. Pr. 340, 341; Brown v. Donnell, 49 Mo. 421; Morford v. Farmers’ Bank, 26 Barb. 568 ; Hall v. Auburn Turnpike Co., 27 Cal. 257 ; Bank of Genesee v. Patchin Bank, 13 N. Y. 309 ; Hamilton v. Marks, 52 Mo. 78 ; Farmers & Mechanics’ Bank v. Empire Stone Dressing Co., 5 Bosw. 289 ; Central Bank v. Empire Stone Dressing Co., 26 Barb. 23; Noble v. Walker, 32 Ala. 456; Mauldin v. Branch Bank, etc., 2 Ala. 502; Central Bank of Brooklyn v. Barnabas Hammett et al., 50 N. Y. 158; Overton v. Hardin, 6 Coldw. 377; Stall v. Catskill Bank, 18 Wend. 478; Hendril v. Berkowitz, 37 Cal. 119 ; Eichards v. Darst, 51 Ill. 140; Thomas v. Alton, 5 Mo. 534.</p> <p>cited: Moss v. Averall, 10 N. Y. 449-453 ; Mclntire v. Preston, 10 Ill. 48.</p>

<p>1. The St. Louis Laud Commissioner, having allowed an appeal from his decision, refused to make and certify a transcript of the proceedings, without prepayment, by the party appealing, of the cost of making said transcript. Held, that mandamus was the proper remedy to compel his official action — Wagner’s Statutes, page 849, section 10, which provides for rule and attachment against a justice of the peace refusing to allow an. appeal, having no application to such a case.</p> <p>'2. When an appeal is taken from a decision of the land commissioner, it is his duty to make and certify, on demand, a transcript of his proceedings, without charge.</p> <p>•3. Respondent made return to an alternative writ of mandamus ; the relator did not traverse or plead to the facts alleged in the return, but demurred; the return was declared insufficient in law, and the demurrer sustained. Held, that there was no foundation for an action for false return,-and damages could not be assessed upon motion.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Webb et al. v. Morgan etal., 14 Mo. 428 ; Harvey v. Dutcher, 15 Mo. 89 ; Miles v. Taylor, 19 Mo. 468; Meier v. Leiter, 21 Mo. 112 ; Dillon v. Bates, 39 Mo. 292 ; 'Nicholas v. Fritschle, 40 Mo. 67; Wag. Stat. 1000, sec. 3, 1068, sec. 35.</p>

<p>1. It is error to compel a defendant to elect between two defenses, when both may be true. Such election can be compelled only when, if one defense be true, the other must necessarily be false.</p> <p>2. The rule that a grantor in a fraudulent deed can have no relief against the effect of his own conveyance has no application to a conveyance made without any fraudulent design, and because of a misapprehension by the grantor concerning his legal rights.</p> <p>3. -Effect given by the Court of Appeals to preponderance of evidence in a chancery case.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Edwardson v. 'Garnhart, 56 Mo. 81; Wag. Stat. 1041, sec. 18 ; Swift v. Wells, 2 How-. Pr. 79 Miller y. Hooker, 2 How. Pr. 171; Stewart v. Elwele, 3 Code R. 139 ; McCullough v. Brodie, 11 How. Pr. 346; s. c., 6 Deni.o, 659 ; .Harris v. Mead, 16 Abb. U. S. 257 ; Dickinson v. Mitchell, 19 Abb. U. S. 286.</p> <p>cited: Williams v. Allen, ■45 Mo; 573 ; Whitswell v. Willard, IMetc. (Ky.) 216 ; Silmeer v. Redfield, 19 Wend. 21; McMaster v. Booth, 2 Code R. Ill; Martin v. Hall, 26 Mo. 389 ; Robson v. Jones, 33 Tex.'324; Fitzgerald v. Hayward et al., 50 Mo. 516; Martin v. Hall, 26 Mo. 386; Edwardson v. Garnhart, 56 Mo.'81; Sambler v. Mechanics’ Fire Ins. Co., 1 Hall, 560; Bowman v. Sheldon, 1 Duer, 607.</p>

<p>1. "Where a lot of bagging in a warehouse was purchased, paid for, set apart to the purchaser, and marked with his name, the transfer of ownership was complete, notwithstanding a refusal by the vendor’s clerk to allow a removal from the warehouse until the return of his absent employer— especially when it appears to have been a constant practice of the vendor to keep bagging on storage, for purchasers, after having sold it to them.</p> <p>2. Under such circumstances a replevin suit by the purchaser is no evidence to disprove his possession and ownership, in favor of a seizure under replevin by a third party against the vendor. The purchaser’s possession and ownership may be complete, as against a stranger, although a subject ’of controversy between him and his vendor.</p> <p>3. The statutory bond in a replevin proceeding is no protection to the officer against the claims of persons having no interest in the controversy. The officer seizing the property of a stranger, and delivering it to the plaintiff, does so at his peril.</p> <p>4. The plaintiff in a replevin suit is jointly liable with the officer for a trespass committed in executing the process.</p>

<p>'The execution debtor, if the head of a family, has a right to select what property he will hold exempt from execution, over and above apparel and household furniture to the value of $100; and if the property so selected is not valued on appraisement at over $300,, it is the duty of the constable to release it. The constable cannot proceed to sell property so claimed until he has had it appraised.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Story on Ag., secs. 239, 343 ; Billings v. Morrison, 7 Cal. 171; Pittsburg R. R. Co. v. Gazzom, 32 Pa. St. 340; Bliss on Ins. 420, sec. 261, p. 464, sec. 296; Evans v. United States Life Ins. Co., 10 N. Y. 587; Bartholomew v. Merchants’ Fire Ins. Co., 25 Iowa, 507; Plabts v. Merchants & Manufacturers’ Ins. Co., 38 Mo. 248; Wall v. Home Fire Ins. Co., 36 N.Y. 157.</p> <p>cited: Bevin v. Connecticut Mutual Life Ins. Co., 23 Conn. 254; Geib v. Ins. Co., 1 Dill. 449 ; Viele v. Germania Ins. Co., ,26 Iowa, 9; Ins. Co. v. Wilkinson, 13 Wall. 223, 233 j Baubie v.'-ZEtna Ins. Co., 2 Dill. 158, 159; Thompson v. St. Louis'Mutual Life Ins. Co., 52 Mo. 473; Bliss on Ins., sec. 307 ; Crawshaw v. Sumner, 56Mo. 517 ; Chisholm v. National Capitol Life Ins. Co., 52 Mo. 217.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Glamorgan v. Greene, 32 Mo. 285 ; Dickson v. Anderson, 9 Mo. 156; Lajoye v. Primm, 3 Mo. 530, 368 ; Durella v. Briggs, 47 Mo. 356 ; Joeckel v. Easton, 11 Mo. 118; St. Johns v. Roberts, 31 N. Y. 441; Big. on Estop. 459, 460.</p> <p>cited : Ayers v. Milroy, 53 Mo. 516 ; Mayors v. McMilly, 7 Heisk. 294; Flagg v. Palmyra, 33 Mo. 440; Henderson*?;. Bondurant, 39 Mo. 369, 374; Lovett v. Adams, 3 Wend.' 380; Mercer County v. Hasket, 1 Wall. -92; Merriam v.. Rockwood, 47 N. H. 81; Gaalor v. Matthews, 5 La. An. 496 ; McComas v. Greene, 6 La. An. 121; Pelcher v. Kerr, 7 La. An. 144.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Cronan v. Cot-ting, 104 Mass. 245 ; Lemcke v. Booth, 47 Mo. 385; Chapman v. Forsyth, 2 How. 202.</p> <p>cited : Stokes v. Mason, 10 R. I. 261; Bump. (7th ed.) 638; In re Patterson, 1 Bank Reg. 58; 2 Ben. 155; In re J. R. Pettes, 2 Bank Reg. 155 ; In re Seymour, 1 Bank Reg. 7 ; In re Kimbal, 6 Blatchf. 292; In re Robinson, 6 Blatchf. 253; Whittaker v. Chapman, 4 Am. Law Times, 92 ; Warner v. Crankhite, 2 C. L. J. 773; Lemcke v. Booth, 47 Mo. 385.</p>

<p>1. A submission to a majority of five arbitrators will support an award by four, where only four heard the case, when both parties were present at the'hearings, and no objection was made until after the award. Such an award'can be enforced by motion under our statute.</p> <p>2. Where the parties had-rested-their case, and the arbitrators, on notice to . both sides, reopened the matter for further testimony, this will not invalidate the award.</p> <p>3. Where the arbitrators were under the submission to comply with the bylaws of a certain association, and violated these by-laws in not entering in a proper book a summary of the controversy and the grounds of their' award, held, that such neglect did not invalidate the proceedings.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: Benny v. Khodes, 18 Mo. 147; Droffin v. Booneville, 8 Mo. 395 ; Chaney v. Kichardsou, 34 Mo. 370 ; Heitz v. Cohen et al., 29 Ill. 313 ; 1 Scam. (Ill.) 196; 36 Ala. 482; United States v. Kirkpatrick, 9 Wheat. 737 ; United States v. Wardell, 5 Mason, 82 ; Stamford Bankw. Benedict, 15 Conn. 437 ; Stone v. Seymore et al., 15 Wend. 19 ; Briggs v. Williamson, 2 Vt. 283 ; New March v. Clay, 14 East, 239 ; Manyette v. White, 2 Stark. 101. *</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Northamton v. Mississippi Valley Ins. Co., 47 Mo. 444; Walled v. Parker, 6 Wend. 616; Woodhull v. Holmes, 10 Johns. 231; DeBaum v. Atchison, 14 Mo. 543 ; Mechanics’ Bank v. State Board, etc., 10 Wall. 646 ; Patter v. Dillon, 7 Mo. 228 ; Farmers & Mechanics’ Bank v. Butchers & Drovers’ Bank, 14 N. Y. 623, and 16 N. Y. 125 ; Smith v. Clark & Co., 54 Mo. 58; State of Illinois v. Delefield, 2 Hill, 159 ; Gullick v. Glover, 33 N. J. L. (400) 463; McFarlands. Bellews, 49 Mo. 311; Alexander v. Harrison, 38 Mo. 258 ; Story on Ag., secs. 55, 59, 87, 92, 104; Weaver v. Ogle-tree, 39 Ga.l>86; The State v. Homes, 17 Mo. 379 ; Chappell •v. Allen, 38 Mo. 213; Rose v. Spies, 44 Mo. 20; National Bank v. Currie, 44 Mo. 91 ; Meyer v. Pacific R. R. Co., 45 Mo. 137; Mead v. Brutherton, 30 Mo. 201; Exchange Bank v. Monteith, 36 N. Y. 505 ; New York & New Hampshire R. R. Co. v. Schnyder et al., 34 N. Y. 30; Magee v. Badger, 34 N. Y. 247; Grisnole v. Haven, 25 N. Y. 602.</p> <p>cited: Wag. Stat. 1059 ; National Bank of the Metropolis v. Williams, 46 Mo. 17 ; Wenst v. Schroeder, 40 Mo. 602.</p>

<p>1. All persons following tlie occupation of carrying goods by land or water are common carriers.</p> <p>2. A common carrier, by special contract, can limit his liability at common law; but, notwithstanding the special contract, he remains a common carrier with his common-law liability restricted, in so far as it may be lawfully restricted by the contract.</p> <p>3. A clause in a contract between an express company and a shipper stated that goods shipped are of the value of $50, unless their value should be inserted in the contract, and that the company, in case of loss, would not be liable for more than $50 unless the value was so inserted, and the value of the goods was not inserted. Held, that this did not relieve the company from liability for the full value of the goods if lost through its fault, and that a presumption of negligence arose from the mere fact of loss.</p> <p>4. A common carrier may, by contract, restrict his liability as an insurer, but he will not be permitted to assume the position of an ordinary bailee; the law still holds him to a higher degree of care than that required of a private carrier, and the rule as to the burden of proof still prevails; and, if the goods are lost, whatever may have been the agreement with the shipper, the law will presume that they were lost through the fault of the carrier, unless the carrier show the contrary. 5. As the law compels the carrier to take goods for transportation, it may be difficult to see what consideration there is to support a contract for a release of the carrier from responsibility, yet it is a matter with which the courts can no longer deal.</p>

<p>1. A statement, filed in the Circuit Court, which declares that A had made- and delivered his negotiable promissory note, promising to pay to thecognizor, six months after date, $8,750, for value received, etc., which was. indorsed by the cognizor, and B, C, D, and B, and then held by B, and which was protested for non-payment, and was due and unpaid, is not. sufficient, under sections 21, 22, Article 11, Wagner’s Statutes, 1055, to warrant the court in rendering judgment against the cognizor by confession.</p> <p>2. The other creditors of the cognizor have an interest in knowing whether the; note, in its origin, was business or accommodation paper; whether it was-indorsed by the cognizor for value or for accommodation; whether it was indorsed befox-e or after maturity, whether due notice of its dishonor was-given by the holder, and upon what tei-ms the holder took it. A statement which is silent on all these heads is not a compliance with the letter or spirit of the statute.</p>

<p>1. A. filed a plat dedicating to public use the streets shown thereon, so far as they were on his own land. He subsequently acquired that part of the land shown on the plat which belonged to others when the plat was filed, and thereafter returned for taxation so much of it as was not in the streets shown in the plat, describing it as bounded by these streets, and in such manner as to render his description unintelligible except by reference to this plat. Held, that this was evidence tending to show a dedication good on general legal principles.</p> <p>2. (On application for an appeal.) On authority of Haegele v. Mallinekrodt, held, that the title to real estate is not involved in this action, and an appeal to the Supreme Court will not lie.</p>

<p>"Where a trespass has been willfully committed, and persisted in after earnest remonstrance, with circumstances of aggravation, it is not error to instruct the jury that they are at liberty to give exemplary damages.</p>

<p>1. Affirming Russum v. St. Louis Mutual Life Insurance Company, supra.</p> <p>2. Courts of justice cannot relieve parties from the consequences of their own neglect to perform the contract which they seek to enforce against others..</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Shear. & Redf. on Nog., sec. 423.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Kives v. Plankpoad Co., 30 Ala. 92; Jenkins v. U. T. K. Co., 1 Caines’ Cas. 86 ; Fiser v. M. & T. R. R. Co., 32 Miss. 359 ; Highland Turnpike Co. v. McKee, 11 Johns. 100; Graham T, Co. v. Hurtin, 9 Johns. 218; Hibernia T. Co. v. Henderson, 8 Serg. & K. 219.</p> <p>cited : Wag. Stat., p. 322, sec. 2; Daly v. Timón, 47 Mo. 516; West. Boatman Bank Assn. v. Kribben, 48 Mo. 37 ; Wight v. Shelby R. R: Co., 16 B. Mon. 4; Lowe v. E. & K. R. R. Co., 1 Head, •659 ; LaGrange Plank-road Co. v. Mays, 29 Mo. 64; Piscat-aqua F. Co. v. Jones, 39 N. H. 491; Smith v. Plank-road Co., 30 Ala. 650; Cunningham v. Edgefield, 2 Head, 23;-Yicksburg S. & T. R R. Co. v. McKean, 12 La. An. 638 ; M. & O. R. R. Co. v. Cross, 20 Ark. 454, White Mountain R,. R. Co. v. Eastman, 34 N. H. 141; Mann v. Cooke, 20 Conn. 178; Ogilvie v. Knox Ins. Co., 22 How. 380; Shaeffer v. Home Ins. Co., 46 Mo. 248; Wag. Stat. 270, sec. 9 ; Prov. Savings Inst. v. Jackson Place Skating and Bathing Rink, 52. Mo. 552; Mann v. Pentz, 2 Sandf. Ch. 257; Slee v. Bloom, 19 Johns. 456; Wood v. Dummer, 3 Mason, 308 ; Sawyer v. Hoag, 17 Wall. 610 ; Upton v. Hansborough, 5 C. L. N. 242,- Upton, Assignee, v. Trebilcock (U. S. S. C., Oct. T., 1875), 8 C. L.^N. 65 ? Webster v. Upton, Assignee (U. S. S. C., Oct. T., 1875), 9 C. L. N. 1835.</p>

<p>1. A sued several defendants jointly in ejectment, setting up separate holdings. He'was ordered to elect against whom he would proceed, and did so, dismissing as to the others, and saving no exceptions to the order. Afterwards he became a nonsuit on another matter, which was set aside-by the court in general term. Held, that, upon the cause being remanded to special term for trial, it was not competent for A to proceed against, those defendants as to whom he had dismissed before becoming nonsuit.</p> <p>2. A cohabited with B, and a child, C, was horn of this intercourse. He subsequently married D, to whom a child was born, who survived D, but died in infancy. Afterwards A resumed his intercourse with B, living with her-until his death, acknowledging the child, C, as his, but no marriage ceremony of any kind took place between them at any time. D died seized of' real estate, and the descendants of 0 claimed it as the heirs of A, alleging that A inherited it from his deceased child by D. Held, 1. That 0 was a bastard child of A. 2. That nothing was done which legitimized O. 3. That the descendants of 0 could not claim title as the heirs of A.</p> <p>3. If a right of action to recover real estate accrued to a person under disability after February 2, 1847, then such person’s right of action is forever barred, if suit be forborne for twenty-four years, notwithstanding such disability.</p> <p>4. If such disability continue for ten years or more, but less than twenty-four-years, during which time suit is forborne, and, upon the removal of the disability, three years in addition elapse without suit, the bar is complete.</p> <p>6. It is error to instruct a jury as to the effect of adverse possession without, also instructing them as to what constitutes adverse possession.</p>

<p>1. A and B were co-executors of O. Money came into the hands of A, which he temporarily committed to B, taking his note, by which B promised to pay the amount to A, with interest. Held, that in a suit on the note it was no defense that the money belonged to the estate of C.</p> <p>2. If interest be paid within ten years on a note which had been due for more than that period, the bar of the statute of limitations is thereby avoided.</p>

<p>1. Where one having a judgment which is a lien on real estate suffers the. property’ to be sold under a deed of trust which was a prior lien, without getting out execution on his judgment, and the trustee under the deed of trust pays the surplus in his hands, after satisfying the notes, to the grantor in the deed of trust, the judgment creditor cannot recover in an, action against the trustee, though he had notice of the judgment.</p> <p>2. Where the land is sold under a prior incumbrance, the lien is gone.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited: 38 Mo. 489 ; 52' Mo. 118, 119 ; 11 How. Pr. 11; Burdyne v. Mackey, Exr., 7 M. R. P. 374 ; Aubuchon v. Lory, 23 Mo. 99 ; Chamber’s. Adrar, v. Wright’s Heirs, 40 Mo. 482; Bagnall et al., 13-Pet. 447 ; State v. Metzger, 26 Mo. 95 ; 43 Mo. 196; 45' Mo. 289 ; Hall’s Heirs v. Hall, 47 Ala. 290.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Todd v. Germania Ins. Co. ; Lubenstein v. JEtna Ins. Co., 45 Ill. 303; Moadinger v. Mechanics’ Ins. Co., 2 Hall, 490 ; Tesson v. Atlantic Ins. Co., 40 Mo. 33; Hutchinson v. Western Ins. Co., 21 Mo. 97 ; Deitz v. Mound City Ins. Co., 38 Mo. 93 ; Barrett •v. Union Ins. Co., 7 Cush. 175; Lee v. Howard Ins. Co., •3 Gray, 583.</p> <p>cited: Hayward v. National Ins. Co., 52 Mo. 181; Pelldngton v. National Ins. 'Co., 55 Mo. 172; Bussell v. State Ins. Co., 55 Mo. 585.</p>

<p>1. Evidence may be introduced to show that the date of a judgment is erro, neously entered on the docket of a justice of the peace.</p> <p>.2. Where an appeal was taken on the day judgment Was entered, but by mistake of the justice the judgment was entered as if rendered two days before the appeal, and leave was granted in the Circuit Court to have the certificate of the justice made to conform with the facts, it is error to dismiss the appeal for want of prosecution until the cause has been regularly reached for trial in the order of the docket, and an opportunity given to appellant to show the true date of the judgment.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : St. Louis v. Clemens, 43 Mo. 395 ; Ruggles v. Collier, 43 Mo. 353 ; Sheehan v. Gleason, 46 Mo. 100; Kefferstein v. Knox, 56 Mo. 186; McGrath v. Clemens, 49 Mo. 552; Browne on Stat. Er., sees. 511, 518.</p> <p>cited : Boyce v. Christy, 47 Mo. 70 ; Wyman v. Cory, 48 Mo. 346.</p>

<p>Error to St. Louis Circuit Court.</p>

<p>One who takes negotiable paper before maturity, as security for an antecedent, debt, holds it subject to the equities between the original parties.</p>

<p>Appeal from St. Lonis Circuit Court.</p> <p>cited: Blossom v. Yan Court, 34 Mo. 390 ; McClaren v: Sheble, 45 Mo. 130.</p>

<p>Plaintiff obtained judgment against township board of education, as trustee to. use of sub-district No. 3, on suit commenced under school law of 1870. Before judgment the school law of 1874 was enacted, vesting the title to the school property, formerly held by the township board as trustee off sub-district No. 3, in district No. 6, which was incorporated for that purpose, and succeeded to all the rights and property of sub-district No. 3. JHeld, that mandamus would lie to compel the board of directors off district No. 3 to direct their clerk to draw his warrant on the county treasurer, in favor of plaintiff, for the amount of said judgment and costs..</p>

<p>1. Where a representation is made of a material fact, which was understood at the time and accepted as a warranty, this is sufficient to hold the vendor, though in good faith and innocently mistaken.</p> <p>2. Where a petition sets out a representation and affirmation of certain facts, on the faith of which plaintiff received certain notes, this is sufficient to hold defendant as warrantor. No particular phraseology need be set out or proved; nor need the pleader charge in terms that defendant warranted the truth of his statements.</p> <p>3. Where defendant sold certain real estate notes, indorsing them without recourse, and saying they were well secured and first liens on real estate, and the notes were accepted by plaintiff on the faith of these representations, held, that defendant was liable as warrantor.</p>

<p>1. In case of proceedings in the General Court of St. Louis, of date 1806, everything found in the office of the clerk, with the papers, and manifestly relating to the case, is a part of it; and ail such papers and entries purporting to prove the record of the cause, though not signed by the presiding judge, are admissible to prove what was done during its progress.</p> <p>'2. After the lapse of seventy years the issuing of necessary process and service will be presumed, to support a judgment of that antiquity.</p> <p>3. In case of a sheriff’s deed, seventy years old, though the record of the deed does not show a seal, yet where the deed has been followed by undisturbed possession a seal will be presumed.</p>

<p>Appeal from St. Louis Circuit Court.</p>

<p>1. In an action for malicious prosecution, the issue is, not whether the plaintiff was guilty of the crime for which he was prosecuted, but whether the plaintiff had probable cause to believe him so. It is not error to refuse testimony'offered to show the plaintiff’s intent in committing the acts alleged against him.</p> <p>2. The question of probable .cause does not depend so much upon the real facts as upon the honest belief of the party prosecuting. Innocence of the suspected party is not necessarily inconsistent with an honest belief of his guilt. ...</p> <p>3. Tho- question whether a publication calculated to affect the value of the stock in a banking corporation,, and so to operate upon its business reputation, is libelous or not, cannot be determined by an examination of the assets and liabilities of the corporation. The true test is to be found in the market value of the stock. . ,</p> <p>4. In an action for malicious prosecution, it is not error to reject proofs of the plaintiff’s good reputation when his character has not been assailed in the trial.</p> <p>b. Although the court may properly inform the jury whether certain facts do or do not constitute probable cause for a prosecution, yet an instruction offered which states the facts partially, omitting some which should be' considered in connection with those stated, and declaring that the facts stated do not amount to probable cause, is properly refused.</p> <p>-6. In Missouri, libel is a criminal offense. ■</p> <p>7. Where words, which on their face appear harmless, have a covert meaning, implying an injurious effect, the libel maybe as complete as if it were apparent in the common acceptation of the words.</p> <p>■8. A corporation may be the subject of a criminal libel.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Union Saving Assn. v. Edwards, 47 Mo. 445 ; Covenant Mutual Life Ins. Co. v. Clover, 36 Mo. 392 ; Ingraham v. Maine Bank, 13 Mass. 208 ; Cook v. The State, 13 Ind. 154; Moss v. The State, 10 Mo. 338, and cases cited; Kitson v. Julian, 82 E. C. L. (4 El. & Bl.) 853 ; Bigelow v. Bridge, 8 Mass. 275 ; Fell'on Guard, and Sur. 126 ; also p. 129, note 1; Amherst Bank v. Root, 2 Mete. 540 ; Kingston Mutual Ins. Co. v. Clark, 33 Barb. 201, and cases cited in note a, p. 504 of Fell on Guard, and Sur. (3d. ed.); Wag. Stat. 330, sec. 3; Lexington, etc., R. R. Co. v. Elwell, 8 Allen, 371; Chelesford v. Demarest, 7 Gray, 1; State Treasurers. Mann, 34 Yt. 376.</p> <p>cited : Orear v. Clough, 52 Mo. 57 ; Lewis v. Nichols, 26 Mo. 279 ; Peters v. St. Louis & Iron Mountain R. R. Co., 59 Mo. 406; Feedler v. Schroeder, 59 Mo. 564; Scott v. Niles, 40 Yt. 574; 4 Greene (Iowa), 439, 442; Craig v. Barber, 1 Col. 172; 5 Ark. 518 ; Roberts v. Townhall, 46 Ill. 66 ; 29 Wis. 669, 419; 48 Barb. 132; 42 Ala. 491; 4 Denio, 245; Mackey v. Underwood, 47 Mo. 182; Morse on Bank. 316.</p>

<p>1. When one negotiates through a real estate broker for the purchase of a lot, the transaction, if completed, includes two contracts: one made with the vendor, and another with the broker for his compensation. A suit by the broker is not an attempt to enforce a contract made by defendant with a third party.</p> <p>2. W. employed C. & R. to purchase a lot for him upon certain terms, stipulating that the compensation of the latter was to be deducted from the purchase money going to the vendor, and was in no event to be paid by W. Held, that W. would be liable, nevertheless, to C. & E. for their proper fees, in case of a violation of the contract by W. in refusing to take the property.</p> <p>S. Where, at the time of making an alleged contract, one of the parties was, by reason of the excessive use of intoxicating liquors, “ in such unsound mental condition that he was wholly void of judgment and discretion,” no contract, in contemplation of law, was in fact made, and evidence to that effect is admissible under the general issue.</p>

<p>1. Where goods are to be transported by water, and, owing to the stage of the river, cannot be taken by water to their destination, the carrier is not bound to forward them overland; and, if there has been no want of diligence, is not answerable for delay if the goods finally arrive safely.</p> <p>2. Evidence that no boats arrived at the point of destination of the goods-during the season is competent, as tending to show that the default was not occasioned by the negligence of the carrier.</p> <p>3. The time granted for argument is a matter within the discretion of the trial court; and this court will not interferí unless it is clear that that discretion, has been abused.</p>

<p>1. The relation existing between a bank and its depositor on current account is that of debtor and creditor. Accordingly, where a bank held a note against a depositor at the time of his death, which was larger in amount than the sum on deposit, the bank might present its claim in the Probate Court and have a balance struck between the two demands. The allowance thus entered is res adjudicata, and is conclusive against an action by the administrator to recover the money on deposit.</p> <p>2. The credit entered by the bank, of the sum deposited, on its demand against the estate was not a voluntary credit, but was compulsory, under the statutory oath of the claimant.</p>

<p>1. A printing and publishing corporation may be held liable in a civil action for libel. • • '</p> <p>:2. To publish in writing an expression of belief that one ;has committed a felony is actionable per se; .and the fact that the reasons-for the belief are also given will not affect the question, unless those, reasons explain ' away the charge. ' ' ' • ' ’ ' '</p> <p>.3. The words “H. B. J.. who-disgraced the office now filled1 by N. C. B., was once .accused of stealing a stud-horse,. He sued,the party of accusers, and at the trial a verdict was brought in for defendants, thus virtually-saying that he did steal the horse.” He Id, libelous.,</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Rev. Ord.,:ch. 13, Art. 3,. séc. 2.</p> <p>cited : Adams v. Carlisle, 21 Pick. 146 ; Holmon v. Townsend, 13 Mete. 297; Horton v. Ipswick, 12 Cush. ,488 ; Tuttle v. ...Holyoke, & Gray, -447 ; Seads v. Dennis, 105 Mass. 310; .James v. San Francisco, 6. Cal. 528 ; .Barry v. City of St. Louis, 17 Mo. 121; Green v. Portland, 32 Me. 431; Murphy v. Chicago, 29 Ill. 279.</p> <p>cited: Barry v. City of St. Louis, 17 Mo. 121; Morgan v. Bow- „ man, 22 Mo. 538 ; Darnstadter v. Moynehan,.27 Mich. 188 ; Barbour v. White, 37 Ill. 1.64 ; Wood et al. v. McGuire, 17 Geo. 361.</p> <p>cited: Blake-v. City of. St. Louis, 40 Mo. 569 ; Basset v. City of St. Joseph,'53 Mo. 290 ; Winship v. Enfield, 42 N. H. 197 ; Market v. City of St. Louis, 56 Mo. 18'9.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: 1 Greenl. on Ev. (7tli ed.) 596-597, Secs. 458, 459; 1 Wag. Stat. 120, sec. 8; Coughlin v. Haeussler, 50 Mo. 128 ; McLean v. Thorp, 3 Mo. 215; Poe v. Domic et al., 54 Mo. 124; Stanton v. Ryan, 41 Mo. 510; Baker v. Kennett, 54 Mo. :92; Ford v. Phillips, 1 Pick. 202; Smith v. Mayo, 9 Mass. 84; Curtin v. Patton, 11 Serg. & R. 307; Hinsby v. Mar-gar ity, 3 Barr, 428. ; '</p> <p>cited: Greenl. on Év., sec. 457 ; Poe et al. v. Domic et al., 54 Mo. 124 ; Looker v. Davis et al., 47 Mo. 143 ; Highley v. Barron, 40 Mo. 106 ; Stiles v. Smith, 55 Mo. 363.</p>