Volume 25 — Missouri Appeal Reports

<p>1. Evidence — Inference.—If, from the facts proved, the jury may legitimately infer the existence of other facts, a finding based upon such inference can not be vacated on the ground that it is not supported by evidence.</p> <p>3, Practice — Conjecture.—A finding based upon- mere conjecture will be vacated as being wholly unsupported by evidence.</p> <p>B, -Replevin — Measure of Damages. — In an action of re. plevin, a finding of the value of the property, and an award of damages in a fixed sum for its detention, will be set aside, where there is no evidence of the value of the property, and where the extent of the damages suffered rests on mere conjecture.</p>

<p>1. Lessor and Sub-Lessee — Tort—Damages.—An action by a sub-lessee against a lessor for damages for injuries caused the former by the defective condition of the premises, can not be maintained if founded on a contract of the lessor with the lessee to keep the premises in repair.</p> <p>2. -Nuisance. — Such an action can be maintained only on the theory that the locus in quo was a dangerous nuisance, in permitting the continuance of which the lessor was guilty of a violation of his duties to the public.</p> <p>8. - Action. — A sub-lessee’s remedy for damages caused by the defective condition of premises which the original lessor had agreed to keep in repair, is against his irpmediate lessor and not against the original lessor.</p> <p>4. Practice, Appellate — Reversing Without Remanding. — An appellate court, in reversing a judgment, will not remand the cause where the pleadings and the evidence show that the plaintiff has no cause of action.</p>

<p>Appeal from the Stoddard County Circuit Court, John G. Wear, Judge.</p> <p>The amended petition substituted a different cause of action in the circuit court from that which was tried by the justice of the peace. Eev. Stat., sect. 3058; OlarTc v. Smith, 30 Mo. 498; Hansberger v. Railroad, 43 Mo. 196; Beattie v. Hill, 60 Mo. 71; Bandeen v. Railroad, 79 Mo. 278.</p>

E. Woodside, Judge. The affidavit was insufficient to give the circuit court jurisdiction of the cause of action and the judgment is void. The State v. Lawrence, 45 Mo. 492 ; Henderson v. Henderson, 55 Mo. 534; O'raves v. McHugh, 58 Mo. 499.

Gh McG-regoe, Judge. In order to authorize the justice to render judgment against the plaintiff for the costs, it must affirmatively appear that all costs then accrued must be paid at the time tender is made by depositing the money with the constable for the* plaintiff. Rev. Stat., sect. 2922. In order that a tender shall be operative and of full force after suit brought, the money must be paid into court for the sole use of the person to whom tender is made.

<p>Appeal from the McDonald County Circuit Court, M. G. McGregor, Judge.</p>

Wilson, Judge. The common law respecting dower proper, and its incidents, has been changed in this state, and is repugnant and inconsistent with the statute law. Rev. Stat., sects. 2186, 3117; Kelley’s Probate, 351; Bryant's. McQune, 48 Mo. 548. The life estate of the widow of William Williams, and the fee-simple title of his children to his real estate, vested immediately at his death. Rev. Stat., sect. 4003 ; Wommaclt r>. Whitmore, 58 Mo. 448.

Louis Circuit Court, Amos M. Thayer, Judge. The statute exempts property only from, attachment and execution. Rev. Stat., sects. 2343, 2346. The plaintiff’s insolvency can not protect him against a set-off in the hands of one whom he is himself suing. Field v. Oliver, 43 Mo. 200; Fulkerson v. Davenport, 70 Mo. 541; Temple v. Scott, 3 Minn. 419. A judgment can not be purchased and used as a counter-claim for the purpose of preventing a claim of exemption.

Circuit Court, How. Gr. D. Burgess, Judge. The case is stated in the opinion. I. Revised Statutes, section 2458, does not preclude the party claiming to have made written demand for possession from proving that such demand was made by evidence other than the officer’s return, or by affidavit to the return. That section only makes such .returns prima facie evidence of the facts therein stated.

C. H. S. Goodman, Judge. Statement of case by the court. This was an action, begun before a justice of the-peace, on an account, for the purchase price of a mowing machine. The defendants had judgment before the justice and the plaintiff appealed to the circuit court. In the latter court the case was tried by the court sitting as a jury. Henry T. Keown was doing business-alone in the town of Salem, under the firm name of H. T. Keown & Company.

Louis. Circuit Court, Daniel Dillon, Judge. In civil, as in criminal cases, fraud may be established by proof of a conspiracy between the defendant and others to defraud; and it is not necessary that proof of the conspiracy be first established before the admission of declarations of the conspirators, provided such conspiracy be after-wards proved. Miller v. Barber, 4 Cent.

F. Geiger, Judge. The property upon which the improvements were made is not described. MeQuinness v. Boyle, 128 Mass. 570; Stevens v. Lincoln, 114 Mass. 476; Foster v. Cox, 123 Mass. 45 ; Lemly v. Iron & Steel Co., 65 Mo. 546. It was error to include in the decree property which was no part of the curtilage. Chouteau v. Thompson, 2 Ohio St. 114 ; Banlces v. Cartes, 18 Conn. 348.

Cross-Appeals from the Greene County Circuit Court, W. F. Geiger, Judge. • Paxson was entitled to recover for the whole amount sued for as the real party in interest. Bliss on Code Pleading, sects. 45 and 51; Webb v. Morgan, 14 Mo. 428 ; Beattie v. Lett, 38 Mo. 596. If Paxson was not entitled to recover the defendant has waived the objection to the defect of the parties plaintiff by failing to take advantage of it by demurrer or answer.

Ti-iomas, Judge. Only in case of intestate, estates has the probate court power to make-orders appropriating the estate for the support of minor children. Rev. Stat., sect. 255; Richardson v. Frederitze, 35 Mo. 266. The administrator of the partnership can pay only partnership debts, and has no right to commissions thereon. Gregoi y v. Menefee, 83 Mo. 413. The payments to the widow were all erroneous. She had no claims in the partnership estate.

C. Bland, , Judge. The petition will not support the verdict. Bowie 'o. Kansas City, 51 Mo. 454. A defective pleading is aided if the adverse party answer in such manner that an omission or informality be expressly or impliedly supplied or rendered formal. Garth v. Caldwell, 72 Mo. 629. Exceptions not saved in the motion for a new trial will not be considered on appeal. Chapman *. White, 52 Mo. 179.

Louis County Circuit Court, W. W. Edwards, Judge. The answer of the defendant set up a counter-claim, which the replication denied, and on that issue there was no finding; the jury must find on all the issues. Jones v. Snedecro, 3 Mo. 275 (side p. 390); Predi v. Rogers, 5 Mo. 51. The counter-claim, under the pleadings, the evidence, and the instructions, presented an issue for the consideration of the jury, which they were in duty bound to respect.

F. Geiger, Judge. A debt paid through garnishment process can not be recovered again, and the courts of Kansas having jurisdiction their judgments are binding. Dole v. Boutwell, 1 Allen, 288; Foster v. Jones, 15 Mass. 185; Merriam v. Rundlett, 15 Pick. 512. The garnishment of the appellant in Kansas commenced long after the pendency of this suit, and being in another jurisdiction, constitutes no bar to the respondents’ recovery.

Theodore Brace, Judge. The writ should have been denied. A change of site of a graded school is not among the subjects of a popular vote. Rev. Stat., sects. 7031, 7146, .7153 ; Sess. Acts, 1881, p. 99 ; '.Sess. Acts, p. 1883, 185.

<p>Practice, Appellate — Motion pop. a New Trial. — A judgment for the defendant will be affirmed on appeal, if it can be sustained on any theory consistent with the pleadings and the evidence, in a cause tried by the court without a jury, no declarations of law being asked or given, and no motion for a new trial being filed.</p>

Thomas, Judge. An instruction which authorizes the jury to find for the plaintiff, in an action of slander, upon evidence of words spoken which are not actionable, is erroneous. Townshend, Slander, (3 Ed.) sect. 157; Franz n. HUderbrand, 45 Mo. 121. The petition embraces one cause of action. Lewis n. McDaniel, 82 Mo. 577; Burc7i n. Benton, 26 Mo. 161; Bennington -y. Meeks, 46 Mo. 217; Mix v. McQoy, 22 Mo. App. 488.

J. Wallace, Judge. It is error to give instructions which are ambiguous, equivocal, or misleading. TalboV s Ex'r v. Mearns, 21 Mo. 427; Belt «. Goode, 31 Mo. 128; Oróle v. Thomas, 17 Mo. 329; Anderson v. McPiTce, 86 Mo. 293. The verdict and judgment are not sustained by the law and the evidence, and the court erred in refusing to sustain the motions for new trial and in arrest. Gordon v. Parmelee, 2 Allen (Mass.) 212 ; Sanford®.

<p>Appeal from the Butler County Circuit Court, John G. Wear, Judge.</p>

Wear, Judge. The petition states several independent causes of action in one count or paragraph, and the court erred in overruling the defendant’s motion to require the plaintiffs to elect. Rev. Stat., sects. 3512, 3529 ; Bliss on Code Pleading, sect. 412 ; Pomeroy on Remedies and Remedial Rights, sect. 447; House v. Lowell, 45 Mo. 881; Ciarle? s Adrn?r v. Railroad, 36 Mo. 202; Bass v. Comstock, 38 N. Y. 21; Money v. Kennett, 19 Mo. 550; Childs v. Bank, 17 Mo. 213.

Wear, Judge. There was no evidence that the stock sued for in this case was rightfully in the pasture of the adjoining proprietor, which pasture was, by the evidence, shown to have been surrounded by a good and sufficient fence. Therefore, the railroad company owed no obligation to fence against stock of a stranger by keeping the railroad fence inclosing said pasture in repair.

<p>Appeal from tlie Wayne County Circnit Court, John G. Wear, Judge.</p>

<p>Habeas Corpus proceeding.</p>

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

Louis Circuit Court, ■ Shepard Barclay, Judge. The word “fruit,” in connection with the word “ vinegar,” can not be appropriated by one vinegar manufacturer to brand his goods, to the exclusion of other manufacturers or vendors of vinegar. Browne, Trade Marks, sect. 134; Phalon v. Wright, 5 Phila. 464 ; Canal Co. v. Ciarle, 13 Wall. 311; Re American Sardine Co., A Off. Gfaz. 495 ; Van Beil v. Prescott, 82 N. Y. 630 ; Pratt v. Farmer, 10 Off.

<p>1. Criminal Law — Concealed Weapons. — One who carries a pistol, concealed upon his person, as a weapon, is prima facie guilty of carrying, concealed, a dangerous and deadly weapon, contrary to the statute.</p> <p>2. -Exceptions — Who Not Within. — A justice of the peace, being without power to appoint a special constable to serve criminal process, the summoning, by such an appointee, of a person to assist in making an arrest will not authorize such a person to carry concealed weapons.</p> <p>2. -The exceptions to the statutory prohibition against the carrying of concealed weapons are exclusive, and a person carrying them must bring himself within the exceptions, although he is aiding in the arrest of a dangerous criminal.</p>

<p>Appeal from tlie Laclede County Circuit Court,, W. J. Wallace, Judge.</p>

Eyan, Special Judge. By that contract, the amount subscribed by the various persons became the property of the corporation, and the plaintiff had no interest in it, other than as a stockholder in the corporation ; hence, not the real party in interest, and can not maintain this action.

J. Wallace, Judge. A refusal to submit proper issues for special findings is error.

<p>Appeal from the Newton. County Circuit Court, M. G. McGregor, Judge.</p> <p>The cause of action stated is trespass: i. e., an unlawful and wrongful taking and conversion. The testimony shows a sale and delivery, by one of the partners, of partnership property. Browning v.. Walbrun, 45 Mo. 477 : Buffing-ton v. Railroad, 64 Mo. 246; Carson «. Cummings, 69 Mo. 325 ; Deickman v. McCormick, 24 Mo. 596.</p>

<p>1. Witnesses, Incompetency. — One of the original parties to a contract being dead, the other party thereto is incompetent as a witness in his own favor, regardless of whether he is a party to the suit.</p> <p>2. Negotiable Instruments — Requirements of. — A promissory note is negotiable by statute only, and, t© make it negotiable, and to entitle parties thereto to notice of dishonor, it must contain all the statutory requirements.</p> <p>3. -Evidence — Oral Testimony to Vary Written Contract. A note without date of payment is payable on demand, after delivery, and oral evidence is inadmissible to show a different date of payment.</p>

Louis Circuit Court, George W. Lubke, Judge. The testimony of the defendant establishes a sale on trial, and the law applicable to sales on trial is applicable to this case. The defendant testified: “The price agreed upon was twenty dollars apiece, or forty dollars for the two, if I' decided to keep them.” Quin v. Stout, 31 Mo. 161; Prairie Farmer Go. v. Taylor, 69 111. 440; Kahn v. Flabwide, 50 Wis. 235; Hunt v. Wyman, 100 Mass. 198 ; Gibson v. Vail, 53 VT. 476.

Louis Circuit Court, Amos M. Thayer, Judge. The corporation is not bound by the act of the agent or officer, unless he had power under the charter or by-laws to bind it. Fountaine v. Garmanthen, 5 Eq. 316 (Law Rep.); Martin ». Great Falls Mfg. Go., 9 N. H. 51; Hayden v. Middlesex, etc., 10 Mass. 403. If -the officers, whose appropriate business it is to make loans, make unlawful loans, the corporation is not bound by their acts. Life Ins. Go. v. Mechanic's Go., 7 Wend. 31.

<p>Appeal from the St. Louis Circuit Court, George W. Lubke, Judge.</p>

<p>1. Fraudulent Conveyances — Chattel Mortgages. — A chattel mortgage, executed for the purpose of hindering and delaying the mortgageor’s creditors, is void as to such creditors, although it secures a valid debt, and was made with the purpose, in part, of securing such debt in good faith.</p> <p>2. -Instructions. — Such a mortgage being attacked for fraud, an instruction that it is invalid, unless made for the sole purpose of aiding the debtor in placing the property beyond his creditors, reach, is erroneous.</p> <p>B. -Evidence — Declarations —Intention.—In a proceeding by attachment against mortgaged property, claimed by the mortgagees, evidence of the mortgageor’s declarations, made after the execution of the mortgage, as to the intent with which he executed it, are inadmissible as against the mortgagees.</p> <p>4. Instructions, Irreconcilable. — An instruction which is erroneous, as applied to the facts, is not cured by the giving, for the adverse party, of a correct instruction covering the same point, where the two are irreconcilable.</p>

Louis Circuit Court, Gteorg-e W. Lubke, Judge. The effect of turning over the property to Jacob Ambs, John H. Schroeder and others, was to hinder and delay the creditors of the corporation, and as such, authorized the Continental Bank to proceed by attachment. Reed ». Pelletier, 28 Mo. 173; Ryland v. Qollison, 54 Mo. 513. cited Forster v. Planing Mill, 16 Mo. App. 152.

Louis Circuit Court, Daniel Dillon, Judge. The court erred in its application of the law as decided in this case when here before. 0’Meara v. Oreen, 16 Mo. App. 118. All. are abutting owners, whose property lies between the termini mentioned in the ordinance, and contribute proportionally to the cost of the whole work. Eyermann r>. Hardy, 8 Mo. App. 311; Kemper r>. King, 11 Mo. App. 117.

<p>1. Contract — Attorney and Client. — The death of a client does not revoke an attorney’s authority to proceed, under a contract by which the attorney undertakes to prosecute to final adjudication a claim for an exclusively contingent compensation.</p> <p>2. --Administration. — Such a contract being entire, the administrator can not discharge the attorney without making the estate liable for the entire compensation stipulated for in the contract.</p> <p>3. ---The action having been begun prior to the client’s death, and prosecuted to a successful issue thereafter, the entire claim is provable against the estate.</p> <p>4. Instructions. — An instruction which assumes facts, which are conceded by all the testimony, is not, for that reason, erroneous.</p> <p>5. --Practice — Amendment.—A dismissal of a part of a claim, and a judgment for the balance, on appeal from the probate court to the circuit court, is not erroneous because such amendment was not sworn to.</p> <p>6. -Limitations. — The defence of the statute.of limitations can not be raised for the first time on appeal.</p>

Charles County Circuit Court, W. W. Edwards, Judge. The damages awarded can not be legally recovered in this action. The State to use v. McHale, 16 Mo. App. 479 The State to use v. Thomas, 19 Mo. 613; The State to use v. Beldsmeierr 56 Mo. 226 ; The State to use v. Stark, 75 Mo. 566.

E. L. Edwards, Judge. The case is stated iu the opinion. I. Upon the trial in the circuit court, the state offered evidence to impeach the character of defendant (who testified in his own behalf), by showing that in the community where he lived he sustained a bad reputation for honesty; and, upon this point, introduced, among other witnesses, one J. E. Wear, who, upon direct examination, testified to defendant’s bad reputation in said regard.

John P. Strother, Judge. The case is stated in the opinion. I. The court erred in striking out parts of defendant’s answer. Such parts constitute good matters of defence to the petition. Titus v. Inhabitants of North-bridge, 97 Mass. 258. II. Defendant was only required to keep such part of its street in repair as was necessary for the convenience of the traveling public.

Christopher T. Garner, Special Judge. The case is stated in the opinion, I. The court erred in giving the instructions prayed, by the plaintiff. Young v. Railroad, 79 Mo. 336; Welch v. Railroad, 20 Mo. App. 477. It is not proved, that, at any time after the engineer could see the cow, she was moving towards the track. But it is proved that she first went upon the track directly in front of, and only a few feet distant from the engine.

Noah M. Givan, Judge. The case is stated in the opinion. I. This action cannot be maintained in the name of a married woman as sole plaintiff. Rev. Stat. 1879, sect. 3468; Rodgers v. The Bank of Pike County, 69 Mo.. 560. II. Appellant’s objection to tile introduction of any evidence under the pleadings should have been sustained. State ex rel. d. Porter, 9 Mo. 356 ; Garland-'d. McCullough, 48 Mo. 318; Rodgers v. The Bank of Pike County, 69 Mo. 560. III.

G-eorge W. Dunn, Judge. The case is stated in the opinion. I. When suit is brought for double damages, it must be before the justice of the peace within the township where the injury occurred, or before some justice of an adjoining township. Rev. Stat. 1879, sect. 2839. This is a jurisdictional fact,' which must affirmatively appear of record, that the injury did occur in the township in which the justice before whom it is brought holds office.

John P. Strother, Judge. Statement of case by the court. On the twenty-ninth day of December, 1884, the plaintiff filed suit in attachment against the defendant Truxel. Under the writ, the sheriff, about noon of the third day of the next month, seized, as the property of Truxel two pianos, then in charge of the railroad agent, at the depot in the city of Sedalia.

Geo. W. Dunn, Judge. Statement of case by the court. The following statement is substantially as made by the parties themselves : The petition filed at the institution of the suit alleges that, in January, 1888, one Edwin C. Wright made and delivered to defendant two negotiable notes, one for twelve hundred dollars, and one for one thousand dollars ; that, about the same time, Wright and his wife executed and delivered to defendant a deed of trust on a house and three lots…

<p>Ebbob to the Saline Circuit Court, Hon. John P. '.Steothee, Judge.</p> <p>Statement of case by the court.</p> <p>This is an action to recover for loss sustained, alleged to be covered by the provisions of a policy of insurance. The policy is dated June 2, 1884. By its terms, it covered plaintiff’s mill stock, consisting of sacks, grain, flour and feed stuff, contained in plaintiff’s mill building. The fire Occurred during the life of the policy, by which the property insured was destroyed. The cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts :</p> <p>. ‘ ‘ For the purpose of a trial of the above case, at the present term of said court, the following statement is agreed upon as covering the facts in the case:</p> <p>■“ The defendant executed and delivered to the plaintiff the policy of insurance, the premium for which was paid by plaintiff, and which is in words and figures as follows:</p> <p>“Before the execution of said policy, and to procure the same from defendant, the plaintiff made and delivered to the defendant the written-and printed application referred to in the policy, which application is in words and figures as follows:</p> <p>“That, on the nineteenth day of June, 1884, the property alleged in the petition to have been destroyed by fire was so destroyed.</p> <p>“ That, on the seventh day of July, 1884, the plaintiff made and delivered to defendant formal proof of loss, as required by the terms of the policy.</p> <p>“ The defendant admits its liability to pay for all the property so destroyed, and mentioned in the petition, excepting the five thousand six hundred and seventy grain sacks branded ‘ Cole Bros. Com. Co.’ That the value of the property so destroyed, excepting the five thousand six hundred and seventy sacks, was $724.30, and that on the-day of-, 1884, defendant deposited with the clerk of this court, for use of plaintiff, said amount, with interest and costs accrued to that date.</p> <p>“The five thousand six hundred and seventy sacks were in the possession of the plaintiff, and in plaintiff’s mill, at the time said policy was issued, and at the time of the fire, and were destroyed by the fire.</p> <p>‘ ‘ That said sacks were in possession of the plaintiff, who had received them, in the year 1883, from the Cole Bros. Commission Company, of St. Louis, who were then the owners of them, and who leased them to the plaintiff under an agreement by which plaintiff was to pay said Cole Bros. Commission Company two cents per month rent for each of said sacks, for such time as plaintiff should keep them, which agreement further provided that plaintiff should pay the Cole Bros. Commission Company for all sacks which should not be returned to it by plaintiff, at their market value.</p> <p>“Under the contract, plaintiff paid the rent on the sacks to Cole Bros., up to the time of the fire, but said sacks were never returned ; since said sacks were so destroyed, the plaintiffs have settled with Cole Bros. Commission Company, and paid them for said sacks at eighteen cents each, which was their market value.”</p> <p>Written in the body of the policy was the following :</p> <p>“Application and survey number five hundred and eight, now on file in the company’s office, referred to, which is hereby made a part of this contract and warranty on the part of the assured.”</p> <p>The conditions of the policy were as follows:</p> <p>“Terms and conditions upon which this policy is issued.”</p> <p>Condition No. 1 provided as follows :</p> <p>“If an application, survey, plan or description of the property herein insured, is referred to in this policy, such application, survey, plan or description shall be considered a part of this contract and warranty, by the assured; * * * or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in the policy, * * * then, and in every such case, this policy shall be void.”</p> <p>“If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, * * * it must be so repi’esented to the company and so expressed in the written part of this policy ; otherwise the policy shall be void.”</p> <p>In the application was the following question and answer: “Is the ground, mill, machinery and stock in the mill, all owned exclusively by the applicant for this insurance ? ”’ Answer: “ Yes.’-’</p> <p>The whole controversy in this case is as to the liability of the defendant for the sacks contained in the mill and destroyed by the fire. On this issue the court declared the law as follows:</p> <p>“The court declares that, upon the pleadings and evidence in this case, there can be no recovery on account of the destruction of the five thousand six hundred and seventy sacks branded ‘ Cole Bros. Com. Co.,’ mentioned in the petition.”</p> <p>The plaintiff has brought the case here by appeal.</p> <p>I. The representation of plaintiff in applying for the policy, to the effect that the sacks in question were the* property of the plaintiff, is of no importance, unless it affected the risk, and such statement did not affect the risk in this case. Shultz v. Merchants Ins. Co., 57 Mo. 337.</p> <p>II. The interest of the assured is measured by the extent of his loss, in case of loss,, and if,, when the property is destroyed, he is the exclusive loser to the full extent of the value of the goods, then he is the exclusive owner, so far as the insurance contract is concerned.</p> <p>III. Under the contract with Cole Bros., plaintiff was the only one who could lose, by destruction of the goods, and was with reference to any loss the exclusive owner. 8haw v. Mtna Ins. Co., 49 Mo. 580 ; Gaylord v. Lamar. 40 Mo. 14.</p> <p>I. The plaintiff having made an application, which was referred to in the policy, the same by the terms of the policy became a part thereof and a warranty by the assured. The answer to the question in the application, “ Is the ground, mill, machinery and stock in the mill all owned exclusively by the applicant for this insurance ?” being, at the time, untrue, in point of fact, as to the 5,670 sacks, the warranty was broken, and as to those sacks the policy had no effect. Loehner v. Home Mutual Ins. Co., 17 Mo. 248; Mers v. Franklin Ins. Co., 68 Mo. 127 ; American Ins. Co. v. Barnett, 73 Mo. 364 ; Wood on Insurance [1 Ed.] sect. 137.</p> <p>II. The contract having provided that, ‘ ‘ if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, * * * it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void ; ” and also having provided that, “ if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy,” then and in that case the policy should be void ; and the plaintiff not having been the entire, unconditional, and sole owner of the 5,670 sacks, but having been in fact the lessee thereof, and the same not having been truly stated in the policy and expressed in the written part thereof, as to these sacks the policy was null and void. Mers v. Franklin Ins. Co., 68 Mo. 127; American Ins. Co. v. Barnett, 73 Mo. 364 ; Beithmueller v. Ins. Co., 20 Mo. App. 246; Adema v. Lafayette Ins. Co., 36 La. Ann. 660; Farmers & Drovers Ins. Co. v. Curry, 13 Bush, 312 ; Kibbe v. Hamilton Ins. Co., 11 Gray, 163 ; Southwichv. Atlantic Ins. Co., 133 Mass. 457; Bohrback v. Germania Ins. Co., 62 N. Y. 47 ; Lasher v. St. Joseph Ins. Co., 86 N. Y. 423 ; Agricultural Ins. Co. v. Mon-¿ague, 38 Mich. 548; Miller r>. Amazon Ins. Co., 45 Mich. 463; Waller v. Northern Assurance Co., 64 Iowa, 101; McCormick v. Ins. Qo., 66 Cal. 361.</p>

Circuit Court, Hon. James H. Slover, Judge. Tke case is stated in tlie opinion. I. Tke court erred in refusing to give tke instruction in tke nature of a demurrer to tke evidence. It was needful in order to establisk a lien against tke property of the Brundages that a contractual relation should be shown to exist between Mrs. Brundage, the owner, and Moore Brothers, the contractors. Horton r>. Railroad, 84 Mo. 602; Henry v. Riee, 18 Mo. App. 497; Oarnett v. Berry, 3 Mo.

George W. Dunn, Judge. The case is stated in the opinion. I. The court erred in giving the declaration of law prayed by the plaintiff, because: It does not require that the representations complained of should have been made with a fraudulent intent. This is the foundation and gist of an action for deceit. Cooley on Torts, 475 ; Griswold v. Sabin, 12 Am.

John P. Strother, Judge. The case is stated in the opinion. I. The justice has no jurisdiction, and, therefore, the circuit court could have none. BrasTiears v. Stock, 46 Mo. 221; Iba n. Railroad, 45 Mo. 469 ; Swartz v. Nicholson, 65 Mo. 508; Razor v. Railroad, 73 Mo. 471; Frederick r>. Tiffin, 22 Mo. App. 443. II. The circuit court erred in permitting plaintiff to amend.

Elijah Robinson, Judge. The case is stated in the opinion. I. The authority of the city of Mexico to make the assessment, and levy and collect the tax for which this suit was instituted, is contained in the first clause of section 1, of article 6, of the city charter, and reads as follows: “The city council shall have the power to levy and collect taxes upon all property, real and personal, taxable by law, for state purposes, except such as may be exempt by law, within the…

Louis Circuit Court, Amos M. Thayer, Judge. The indemnity bond given in this case is insufficient. St. Louis Dairy Co. r>. Sauer, 16 Mo. App. 6 ; Cochran *. Goddard, 27 Mo. 500. However temporary the conversion may have been, it will suffice to render the defendants liable, for a conversion which has once taken place can not be cured. Sparks v. Purdy, 11 Mo. 223; Duncan v. Stone, 45 Yt. 118.

Lonis Circuit Court, Daniel Dillon, Judge. The answers to the special issues are not signed by the foreman or by any other person. Sess. Acts, 1885, pp. 213, 214; Sage ». Brown,, 34 Ind. 469.

<p>Appeal from the St. Louis County Circuit Court, W. W. Edwards, Judge.</p> <p>The judgment does.not correspond with the description of the land in the complaint; the judgment is for eighty-five acres of the premises described in the complaint, but does not identify the eighty-five acres. The judgment could not be enforced, because the officer could not identify and locate it without extrinsic evidence. Glarlc v. Gage, 19 Mich. 507; Orme v. King, 50 Ga. 524; Lamme v. Buse, 70 Mo. 465. The interest of Adolphus Meier disqualified him as a witness. Sutton v. Shipp, 65 Mo. 297; Meier v. Thiemann, 90 Mo. 433.</p>

<p>1. Appeals — Attachment—Abatement.—In attachment, the defendant can not appeal until final judgment on the merits, but on such appeal he may have the action of the trial court,on the plea in abatement, reviewed, if exceptions thereto have been properly saved.</p> <p>3.--Writ oe Error. — Section 439, of the Revised Statutes, has provided for an appeal only, and the defendant cannot have the action of the trial court, on the plea in abatement, reviewed upon a writ of error sued out after his right of appeal has been barred by the lapse of time.</p>

D. Foster, Judge. The defendant testified that the contract for shipment of meal to the plaintiffs was made with their “traveling agent.” That agent was a competent witness, and the exclusion of the defendant’s testimony, even if made with the plaintiffs themselves, could not be sustained either by reason or authority.

Fox, Judge. The town of Lutesville was not incorporated until May, 1879, for the order attempting to incorporate it, in July, 1873, and offered in evidence by the plaintiff, is void upon its face, and should have been excluded. 2 Wag. Stat., 1872,. sect. 1, p. 1314; Kay ser r>. Inhabitants of Bremer, 16 Mo. 88.

<p>1. Railroads — Contracts, Personal — Right of Way — Free Pass. Under a grant of right of -way to a railroad company, over the grantor’s land, in consideration of a free pass to the grantor to travel over the road during his life, the consideration is a part of the purchase money, and the company remains personally responsible for its fulfillment.</p> <p>2. -Rights and Obligations or Purchaser or Road — Liens. The purchaser of such a road at a foreclosure sale, under a mortgage, is not liable in damages, in an action at law, for a failure to grant a free pass, although the land may remain subject to a lien to secure the performance of the condition of the grant.</p>

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

<p>1. Instructions — Evidence.—Instructions based upon hypotheses not founded on the evidence are erroneous.</p> <p>3. Excessive Verdict — Misconduct op Jury — Remittitur.—The rendering of a verdict which is grossly excessive, and which is unwarranted by any interpretation of the evidence, can not be cured by remittitur, and will be set aside.</p> <p>8. ---New Trial. — The total disregard by the jury of the evidence on one branch of the case will warrant the granting of a new trial.</p>

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

<p>Error to tlie Pike County Circuit Court, Elijah Robinson, Judge.</p> <p>A principal who is informed of an unauthorized act of his agent, must give notice of his dissent within a reasonable time or his assent will be presumed. 1 Wait’s Actions and Defences, 234; Botkin v. McIntyre, 81 Mo. 557; Pelkington v. Ins. Co., 55 Mo. 178; Wharton on Cont., sect. 6. There was no evidence that the transaction was a wager. Cockrell v. Thompson, 85 Mo. 510.</p> <p>The agent must implicitly and strictly obey the order of his principal. If he violates instructions, he does so at his peril. Lewin v. Dille & Avery, 17 Mo. 64; Railroad v. Stephens, 36 Mo. 150; 1 Parsons on Cont. 51; Butts v. Phelps, 79 Mo. 302; Greenleaf Evid., sect. 201, note 2; Story on Agency [9 Ed.] sect. 24, note 2, It was a clear case of gambling. Option deals have been declared to be “ merely this and nothing more.” Johnson v. Kaune et at., 21 Mo. App. 22; Cockrell v. Thompson, 85 Mo. 509; Williams v. Tiedeman, 6 Mo. App. 275; Waterman r>. BucJcland, 1 Mo. App. 45 ; Buckingham v. Fitch, 18 Mo. App. 91; Fareira v. Gabell, 89 Pa. St. 89.</p>

<p>1. Criminal Law — Indictment—De Facto Officers. — The failure of one duly appointed as prosecuting attorney pro tern, to qualify by taking the oath of office, is not ground for quashing an indictment signed by him.</p> <p>3. -Verdict, Juror’s Affidavit to Impeach. — Misconduct of the jury tending to impeach their verdict in a criminal case can not be shown by the affidavit of one of the jurors.</p>

Louis Circuit Court, George W. Lubke, Judge. Fisi-ier & Rowell, of counsel: The holder of a note is, prima facie, the owner, only when the note is made payable to “bearer,” or where the indorsement is admitted, or is -treated as having been proved. LaQTiance v. Loeblein, 15 Mo. App. 460; Orille v. Loxon, 7 Mo. App. 97. The indorsement of the payee must be duly proved to have been made. Union Savings Ass’n v. Diebold, 1 Mo. App. 323. The plaintiffs have no title as indorsees.

<p>1. Jurisdiction, Appellate — How Determined — Amount in Dispute. In ascertaining the jurisdiction of the appellate courts, where the judgment of the trial court is for the defendant, the amount in dispute is prima facie determined by the plaintiff’s right of recovery, as shown by his petition, at the date of the trial.</p> <p>2, -If it appears, from other parts of the record, by admissions, or otherwise, that the amount in dispute, at the date of the trial, is less than twenty-five hundred dollars, the court of appeals has jurisdiction, although the petition claims more than that sum, inclusive of interest, at the date of the trial.</p>

<p>’ 1. Practice — Objections to Evidence. — Objections to the atjmission of documentary evidence may be disregarded unless the particular defects be specifically pointed out.</p> <p>2. -Admissions. — Under evidence tending to show that the defendant admitted owing the plaintiff the debt sued for, an objection that the judgment is not supported by substantial evidence is frivolous.</p>

<p>Jurisdiction, Appellate. — The courts of appeals have no appellate jurisdiction of a cause to which a county is a party.</p>

Statement of case by the court. This action originated in a justice’s court. It was a proceeding by attachment under the landlord and tenant’s act.

E. L. Edwards, Judge. The case is stated in the opinion. I. “ Money placed by A. (Brenneisen) in the hands of B. (Walker), to be paid to C. (Whitlow), does not become C.’s (Whitlow’s) property, until he is advised of the deposit and consents to it.

Ben. V. Oltra, Judge. The case is stated in the opinion. I. The court erred in admitting in evidence the execution in case of Lathrop v. Burton & Mulkey.

E. L. Edwards, Judge. The case is stated in the opinion. I. The court gave four instructions at the instance of appellants ; in the fourth of which the jury were told that it was the duty of respondent “to keep his scales in a condition to weigh correctly.” In fact, the same doctrine was announced in the other three instructions.

A. J. Seat, Judge. The case is stated in the opinion. I. Plaintiffs ’ petition states a good cause of action. “ Such a reception of the price (of goods sold), refusal to deliver and- conversion of the goods constitute plenary-evidence of an implied promise to refund the price paid, and an action for money had and received is an appropriate remedy for the plaintiffs.” Nash v. Towne, 5 Wallace, 689, 702. So, the measure of damages is the price paid, with lawful interest. Nashv.

GK D. Burgess, Judge. Statement of case by the court. This suit was brought by plaintiffs in the circuit court of Chariton county, to compel defendant to render an account of rents and profits received, arising from his wrongful occupation of, and use of, lot one (1), in block seven (7), in Thompson’s addition to the city of Brunswick, and for all proper relief.

Eeeoe to Gasconade Circuit Court, Hon. A. J. Seat, Judge. The case is stated in the opinion. I. Plaintiff, by his admissions and testimony, had no claim against defendant and no interest in the result of the suit. He had contracted and agreed with his attorney, Pope, that he was to prosecute the suit, and to receive whatever he should recover as his fee — Renfro was not liable for the prosecution. This contract between Renfro and Pope was champertous.

Henry Lander, Special Judge. The case is stated in the opinion: I. The finding of the court is against the law. Rev. Stat., sect. 4942. II. The court erred in sustaining a demurrer to the evidence ; the petition more than satisfies the statutory • requirements, and the proof filled its full measure; the certified tax bill made out a prima facie case; the following authorities abundantly support our conclusion: Stifel v. Dougherty, 6 Mo. App. 441; Haegele v. Malinckrodt, 3 Mo.

Gr. D. Burgess, Judge. The case is stated in the opinion. I. The circuit court erred in sustaining the defendant's demurrer to the plaintiff' s evidence. The plaintiff acquired the actual possession of the land in question in the month of August or September, 1880, and had the same leased to tenants, who were in the actual possession under the lease as plaintiff’s tenants, when the defendant forcibly entered and took the possession.

John P. Strother, Judge. Statement of case by the court. This suit was begun before a justice of the peace. The plaintiff had judgment, and the defendants appealed to the circuit court. In the latter court, at the second term thereof after said appeal, the plaintiff filed a motion to dismiss the appeal, for the reason that the defendants had failed to give notice of the fact that an appeal had been taken, as required by statute. Rev. Stat., sect. 3055.

Gk D. Burgess, Judge. Statement of case by the court. The defendants, Samuel M. Jarvis and Rolan R. Conklin, were partners under the firm name of Jarvis, Conklin & Co., doing business at Kansas City, as loan brokers.

Geoege W. Dunn, Judge. The case and facts are stated in the opinion.

Joseph P. Grubb, Judge. . Statement of case by the court. The petition in this case contained two counts, but, as the plaintiff dismissed as to the second count, we are confined to the first count of the petition. The plaintiff, a stockholder in the defendant corporation, brought this action to recover Ms share of a dividend declared by the directors of the corporation, on the seventeenth day of July, 1882.

A. J. Seay, Judge. The case and facts are stated in the opinion.

Q-. D. Buegess, Judge. The case is stated in the opinion. I. The court erred in sustaining the demurrer to the petition. The suit was properly brought in the name of the State of Missouri to the use of Samuel E. Johnson, and it was unnecessary to make either the sheriff or Mary E. Johnson a party thereto.

Nat. M. Shelton, Special Judge. The case is stated in the opinion. I. The improper granting of new trial may be assigned for error. Blanchard v. Wolf, 6 Mo. App. 200 ; Fretwell v. Laffoon, 77 Mo. 26 ; The State v. Curtis, 77 Mo. 267. II. No diligence was shown ; the newly discovered evidence is merely cumulative. The State v. McLaughlin, 27 Mo. Ill; Fretwell r>. Laffoon, 77 Mo. 26 ; Snyder v. Burnham, 77 Mo. 52; Coolc v. Railroad, 56 Mo. 380 ; People v. Sup.

-Appeal from Johnson Circuit Court, Hon. Noah M. Hivan, Judge. Statement of case by the court. This suit was begun before a justice of the peace for the recovery of double damages for the killing of plaintiff ’s Berkshire sow by the defendant.

Hon. Gr. H. Burckhartt, Judge. The case and facts are stated in tlie opinion. I. The petition does not state a cause of action. Tt alleges the pen was unsafe, and that defendant knew it, but it nowhere alleges that the defects were unknown to plaintiff. II. The court erred in overruling the demurrer to evidence, since it showed no legal liability against defendant. III. The court erred in refusing the declarations of law asked by defendant.

E. L. Edwards, Judge. Statement of case by the court. This suit was begun before a justice of the peace for the recovery of damages on account of the killing of certain live stock, the property of plaintiff. There was a judgment, by default, against the defendant, in the justice’s court. The defendant, in due time, appearing for that purpose only, filed a motion to set aside the judgment by default. The motion being overruled the defendant appealed to the circuit court.

County Circuit Court, John G, Wear, Judge. The common law writ of quo toarranto does not exist in Missouri. It has been superseded, “ in consequence of the length of its process, by the speedier process of an information in the nature of a quo warranto.” Tomlin’s Law Dictionary, title, quo warranto; The State r. Ins. Co., 8 Mo. 330 ; The State r>. Stone, 25 Mo. 555 The State ex rel. v. Vail, 53 Mo. 97.

R. Woodside, Judge. The real party in interest must sue. Gardner v. Armstrong, 31 Mo. 535 ; Rev. Stat., sect. 3462. A final settlement of accounts between the parties is conclusive of the facts therein stated, and can not be contradicted by parol evidence. Olannengenv.

<p>Appeal from the St. Louis Circuit Court, Daniel. Dillon, Judge.</p> <p>If it appears on the face of the instrument, either expressly, or by necessary implication, that the grantor is to retain possession with a power of sale, the court will declare the deed to be void as a matter of law. Weber v. Armstrong, 70 Mo, 219 ; Stanley t>. Bunce, 27 Mo. 269; VoorMs v. Langs.idorf \ 31 Mo. 451; TTie State to use v. I'Oench, 31 Mo. 453 ; Reed v. Peletier, 28 Mo. 173. If made with intent to cheat, hinder, or delay creditors, the mortgage is void in toto. The State to use v. Jacobs, 2 Mo. App. 183 ; McPichols v. Rubleman, 13 Mo. App. 522; Herman on Chat. Mort. sect. 104, note 6; Cordes v. Straszer, 8 Mo. App. 61; Bump on Fraud. Conv., 487, 595, 613, and cases. The mortgage is a mere expression of confidence in the mortgageor. It was given to secure indefinite advances for an indefinite period of time. If good, the protection might be perennial. Its effect was to hinder and delay creditors, as shown by the following cases, which also answer the objection that record is notice. Notice of a void mortgage amounts to nothing. Robinson v. Elliott, 22 Wall. 513; Inre Manley, 2 Bond (Ohio), 261; Collins v. Meyers, 16 Ohio, 547; Freeman v. Rawson, 5 Ohio St. ; The State to use v. Miller, 10 Mo. App. 87. The filing of the appellant’s bill established a lien and priority. George v. Williamson, 26 Mo. 190; Jackson v. Robinson, 64 Mo. 292; Pieters ». Brackman, 11 Mo. App. 600, and cases; there cited. The assignee, having elected to ignore the appellant’s claim, has placed it beyond the power of the court to protect him, and he can consider it no hardship if he is compelled to defend himself, on the merits, in a suit by a claimant whom he, wilfully, refused to make a party to his bill of interpleader. Potter v. Stevens, 40 Mo. 597; Wilson v. Murphy et at., 45 Mo. 411: McKittrick v. Clemens, 52 Mo. 160; Groschke ». Bardenheimer, 15 Mo. App. 359.</p> <p>The plaintiffs were not judgment creditors of August Leisse, and, therefore, cannot bring a creditor’s bill. Dodd v. Levy, 10 Mo. App. 121; Grim v. Walker, 79 Mo. 335; Luthy v. Woods, 1 Mo. App. 167; Kent v. Curtis, 4 Mo. App. 121. The garnishment of the assignee, by Claes & Lehnbeuter, has priority over the plaintiff’s claim. Prichard r>. Toole, 53 Mo. 358; Talbot v. Harding, 15 Mo. 850 ; Jackman v. Robinson, ■64 Mo. 292 ; George v. Williamson, 26 Mo. 190 ; Zoll v. Soper, 75 Mo. 462. The mortgage to the International Bank was not fraudulent, in fact, or in law. Foster v. Reynolds, 38 Mo. 556 ; Ackerman v. Hunsicker, 85 N. Y. 43 ; Shir as v. Graig, 7 Cranoh, 35; Jones on Chat. Mort., sect. 95.</p>

Fox, Judge. The plaintiff’s character was notin issue, not having been attacked. The State v. Thomas, 78 Mo. 343 ; The State v. Cooper, 71 Mo. 436. The evidence of statements of the defendant, tending to show his animus was too uncertain as to time. Connei v. Bertelsman, 61 Mo. 118; Ringo v. Richardson, 53 Mo. 385; Johnson v. Quarles, 46 Mo. 423. Evidence by the plaintiff that he was not guilty of the offence of which he was charged was incompetent. Brennan v. Tracy, 2 Mo.

Louis County Circuit Court, W. W. Edwards, Judge. The plaintiff, being a contractor, must show a contract with the owner of the property, upon which the repairs were made, and there is a total absence of evidence as to both of these defendants. Sibley v. Casey, 6 Mo. 164; Hause 'o. Thompson, 86 Mo. 450; Hause v. Carroll, 37 Mo. 578; Br¿dwell n. Ciarle, 39 Mo. 170; Porter v. Toolee, 35 Mo. 107. The instructions were erroneous. Teats *. Ballentine, 56 Mo. 530; Eyerman r. Mi.

Louis Circuit Court, George W. Lubke, Judge. The agency of the wife, both before and after her marriage to the plaintiff, was properly proved — that is, by evidence other than her own. Williams v. Williams, 67 Mo. 661. See Starkie on Evidence [Sharswood ’ s 9 Ed. 124], where he says : “Where the party employed was the actual agent, who transacted the business of the principal, he was competent on the score of necessity.” Anri he cites the cases of Adams r>. Davis (3 Esp.

Louis Circuit Court, W. H. Hoenee, Judge. The demurrer to the evidence should have been sustained as to the second count; the allegations of the second count did not state facts sufficient to constitute a cause of action. Powell v. Bunger, 91 Ind. 64; Matlock v. Hawkins, 92 Ind. 225 ; SJiabut v. Railroad, 21 Minn. 502 ; Bailey v. Culver, 12 Mo.

The judgment of the justice is conclusive, against the constable, in this action. The State to use v. Miller, 48 Mo. 251; Yeoman v. Younger, 83 Mo. 424; Freeman on Judgments, sect. 272; Freeman on Executions, sects. 103 and 368. An •officer is bound to make search for property. Lowe r. Ownley, 49 Mo. 71. And could not refuse to levy because the plaintiffs would not give indemnifying bond on his mere verbal request. The State ex ret. r. Koontz, 83 Mo. 323.

E. Turnee, Judge. It was error to admit the plaintiff’s evidence of the agreement between himself, Sage, and Morris, in the defendant’s absence. It is hearsay. Reed v. Pelletier, 28 Mo. 173 ; Coble v. McDaniel, 38 Mo. 363 ; O' Neil v. Crain, 67 Mo. 250 ; Hambright v. Brockman, 59 Mo.' 52; The State v. Sutton, 64 Mo. 170 ; Darrett v. Donnelly, 38 Mo. 495. On the plaintiff’s own testimony at the last, it was an incomplete sale. Boutwell v. Warner, 62 Mo. 550.

<p>Appeal from the Knox County Circuit Court, Ben. B. Tubneb, Judge.</p> <p>The cause of action stated is barred in five years. Nev. Stat., sect. 3230. The mortgage is personal property, and, after default, is only security for the debt. Pease v. Dilot, 49 Mo. 124. An action to set it aside is one concerning personalty. Bobb v. Woodward,, 50 Mo. 95. This is an action for relief, on the ground of fraud, and accrued when the mortgage was recorded. Hunter n. Hunter, 50 Mo. 445 ; Thomas v. Matthews, 51 Mo. 107; Rogers v. Brown, 61 Mo. 187.</p>

<p>1. Attorney and Client — Trusts in Land. — An attorney who purchases, with his own means, lands at a mortgage sale, in favor of his client, with the understanding that he will hold the lands until he is reimbursed for his services and expenditures, no time of so holding being fixed, can not, by notice to his client, terminate this trust relation, so as to hold the lands for hisindividual benefit, after such notice.</p> <p>3. -If the attorney, after such notice, buys in a superior title, this title will enure to the benefit of his client, subject to a lien for expenditures, and when the proceeds of the property have fully reimbursed the attorney for all expenditures, the client is entitled to an account and re-conveyance.</p>

<p>1. Criminal Law — Information, Verification of — Practice, The verification of an information by a private person, according to his best knowledge and belief, is a sufficient verification under the special law applicable to the St. Louis court of criminal correction.</p> <p>2. -Several Offences in One Count. — An information, which embodies in one count several different, independent offences, is too indefinite, and is bad, although it follows the language of the stat ute, which groups them together in one section.</p> <p>3. - Indecent Conversation. — An information, which charges the defendant with indecent and offensive conversation, should, at least, state the conversation in substance.</p>

<p>Appeal from the St. Louis Circuit Court, G-eoege W. Lubke, Judge.</p> <p>cited Butler v. Cole (43 Me. 401), and Ingalls v. Bole (47 Me. 541).</p> <p>cited State Savings Association v. Kellogg (63 Mo. 544), and Thompson on Liability of Stockholders, 398.</p>

<p>Appeal from the St. Louis Circuit Court, George W. Lttbke, Judge.</p>

<p>Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.</p>

<p>Appeal from the St, Lonis Circuit Court, Amos M. Thayer, Judge.</p> <p>The promise must be distinctly collateral, to come within the statute. 3 Pars. Cont. 20; 2 Story Cont., sect. 1437. The promise sued on was original. Chase r. Day, 17 Johns. (N. Y.) 113 ; Flanders v. Orlino, 2 Duer, 206 ; Post n. Teohegan, 5 Daly (N. Y.) 216 ; Hartley v. Vassar, 88 111. 561; McCoffiee v. Pedcliff, 3 Rob. 445. The promisor had a direct interest in the matter concerning which the promise was made. Kelley v. Schupp, 60 Wis. 176.</p>

<p>Appeal from the St. Louis Circuit Court, GtEOrgb W. Lubke, Judge.</p> <p>The court erred in giving the instruction asked by the defendant. Steinecke x. Marx, 10 Mo. App. 581; Rothschild x. Frensdorf, 21 Mo. App. 318; Bury x. Wood, 17 Mo. App. 245; Bowen v. Railroad, 75 Mo. 426; Condon x. Railroad, 80 Mo. 567; Dunn x. Dunnaker, 87 Mo. 597; McCrory x. Anderson, 103 Ind. 12; Storms x. White, 4 West. Rep. 907 Sullixan x. Railroad, 4 West. Rep. 441; Rowling v. Mien, 5 West. Rep. 370.</p>

<p>Appeal from the St. Louis Circuit Court, George W. Lurke, Judge.</p>

<p>Appeal from the St. Louis Circuit Court, Shepaed Eabclay, Judge.</p>

Louis Circuit Court, Amos M. Thaler, Judge. The possession of the wife is the possession of the husband, and he is a necessary party to an action for the recovery of her lands. Gray v. Dry den, 79 Mo. 108; Mueller v. Kaessman, 84 Mo. 380 ; Gideon v. Hughes, 21 Mo. App. 530; Cooper v. Ord, 60 Mo. 420; Bledsoe r>. Sims, 53 Mo. 308; Kanaga ». Railroad, 76 Mo. 215.

John T. Chandler, Special Judge. The case is sufficiently stated in the opinion of the court. I. The amended petition alleges a separate estate in the property in respondent. The deed from Letton and wife to her shows that whatever interest she had was ordinary estate. At the date, therefore, of the alleged sale to Owens, she could have no agent as to the property. She could only bind it by an instrument under seal, duly acknowledged.

John P. Strother, Judge. Statement of case by tire court. This was an action by plaintiff for the recovery of various sums of money, lost by him on a certain foot race, amounting in the aggregate to the sum of nine hundred and fifty dollars.

John P. Strother, Judge. Statement of case by the court. This is an action on a promissory note, the petition being in the usual form. The note was payable to Crandall & Sinnett, called for eight hundred dollars, due in four months. Upon the back of the note was the following endorsement: “Pay to the order of J. C. Higgins, without recourse on me.

A. A Seay, Judge. This action was commenced in the Gasconade county circuit court by the relatrix, Paula Muehl, who' is .a minor under fourteen years of age, against the defendants, as school directors of the school district of Hermann, Gasconade county.

James H. Sloyer, Judge. Statement of case by the court. This was an action for the recovery of damages, on account of the plaintiff’s wrongful ejection from one of defendant’s trains of cars. The plaintiff entered the train at latan, one of defendant’s stations. The train was bound for Kansas City, and the plaintiff claims to have given the conductor a ticket for Kansas City.

tlie Madison County Circuit Court, James D. Fox, Judge. The Glen eral Assembly of Missouri may grant an exclusive ferry franchise. Challiss v. Davis, 56 Mo. 25; Alexandria Ferry Co. v. Wisch, 73 Mo. 655 ; Harrison v. The State, 9 Mo. 530. And this power may be conferred upon, and exercised by, municipal corporations. Minturn v. Larue, 23 How.

When the appeal was taken and the supersedeas bond given in the court below that court lost all control and jurisdiction over the case and had no power to make any orders therein except to correct its own record. DeKalb County v. Hickson, 44 Mo. 341 ; Bell v. Meek, 20 Mo. 358; Ladd v. Couzins, 35 Mo. 513; Stewart v. Stringer, 41 Mo. 400; The State v. Lubke, 15 Mo. App. 172.

<p>Appeal from the St. . Louis Circuit Court, Daniel Dillon, Judge.</p> <p>The laws of this state (except in special instances which tend to show the general rule) — Revised Statutes, section 709 — give no power to the directors to enact by-laws, and, without special authority, the power resides in the corporation— that is, in the members, not in the board of directors. Carroll v. Bank, 8 Mo. App. 253 ; Taylor on Corp., par. 582; Morton Gravel .Road Co. v. Wysoney, 51 Ind. 4. Shares of stock are personal property; the right of alienation is an inseparable incident, as between the parties to a transfer, and there is no implied power in a corporation to pass a by-law which creates a lien upon its shares, or in any way interferes with their transferability. Carroll v. Bank, 8 Mo. App. 249 ; O’Brienv. Cummings, 13 Mo. App. 199 ; Moore v. Bank, 52 Mo. 377 ; Mobile Ins. Co. v. Cullom, 49 Ala. 558; Driscoll v. Railroad, 59 N. Y. 96; Ballard v. Bank, 18 Wall. 589 ; Railroad v. Allerton, 18 Wall. 233. The defendant had notice of the pledge of the stock to the plaintiff, and was bound to respect the plaintiff’s equity, and could not, by giving F. H. Thomas & Company credit, after such notice, create a lien at the plaintiff’sexpense. Morawetz on Corp. [1 Ed.] par. 327 ; Jones on Pledges, par. 223; Bank of America v. McNeil, 10 Bush, 54; Conant v. Reed, 1 Ohio St. 298; Nesmith v. Bank, 6 Pick. 324. The knowledge of F. 0. Wellman, who was the president of the defendant at the time he pledged the stock for account of F. H. Thomas & Company, was the knowledge of the defendant. City of Columbus v. Phillips, 22 Mo. 86 ; Bank v. Levin, 6 Mo. App. 543 ; Bank v. Thomas, 2 Mo. App. 367-369 ; Hart v. Bank, 33 Yt. 252 ; Wade on Notice, par. 682, 683&, 688 -; Company v. Belsioorth, 30 Conn. 380; The Distilled Spirits, •11 Wall. 356; Rhodes v. Outcalt, 48 Mo. 370. Third persons are not bound to notice by-laws of a corporation. Angelí & Ames on Corp., par. 359 ; Ten Broek v. Boiler Compound Co., 20 Mo. App. 19. Wellman (by virtue of his office as president), was held out by the defendant to the public, as intrusted with the management of its affairs. Minor v. Bank, 1 Peters, 46-70. The declaration of F. O. Wellman, at the time he pledged the stock, on April 20, 1882, that it was free, was a waiver, on the part of the defendant corporation, of all right to claim a lien upon said stock, and the court erred in refusing to give the plaintiff’s instruction, to the effect that such facts constituted a waiver. Moore v. Bank, 52 Mo. 378; Morawetz on Corp, [2 Ed.] par. 207. And the fact that the ^admission was made in a private business transaction is immaterial. Bank v. Hunt, 76 Mo. 439 ; Bank v. Bank, 105 TJ. S. 217. The indorsement in blank, and delivery, by F. EL Thomas & Company, of the stock certificate, passed their title to the stock to the plaintiff. Bank v. Richards, 6 Mo. App. 461; 74 Mo. 77 ; Morawetz on Corp. (1 Ed.) par. 328; O’Brienv. Cummings, 13 Mo. App. 197. When a corporation wrongfully refuses to transfer stock, the assignee of the stock may treat such refusal as a conversion of the stock, and he is entitled to recover the full value of the stock at the time of such refusal. The rule of damages is the same, whether he holds the stock as owner or pledgee. Morawetz on Corp. (1 Ed.) par. 338 ; Jones on Pledges, par. 433; Carroll v. Bank, 8 Mo. App. 249-254; Moore v. Bank, 52 Mo. 379 ; Bank v. Richards* 6 Mo. App. 464; Insurance Co. v. Goodfellow, 9 Mo. 155 ; The State v. Rombauer, 46 Mo. 1.55.</p> <p>A corporation has the right to make regulations concerning transfers of stock and to retain a lien thereon for their own protection. Perpetual Insurance Co. v. Goodfellow, 9 Mo. 49 ; Bank v. Bank, 45 Mo. 513 ; Spurlock r>. Railroad, 61 Mo. 320; Kahn r>. Bank, 70 Mo. 262; Goddard v. Merchants' Exchange, 9 Mo. App. 290; s. o., 78 Mo. 609. The by-laws of the defendant corporation,, adopted at the meeting of April 18, 1882, were legally in force at the time of the transactions here in controversy. People v. Sterling Co., 82111. 457. The mere fact that a member of the firm of Thomas & Company 'held the position of president of the defendant corporation, does not charge the defendant with constructive notice of business transactions between the plaintiff and said firm. The question was one of fact, whether the defendant had actual notice' or knowledge. Innerarity v. Bank, 139 Mass. 332 ; Bank v. Schaumberg, 38 Mo. 228 ; Taylor on Corporations, 210 ; Story’s Agency, 140 ; Barnes v. Menton Gas Light Co., 27N. J. Eq. 33; Peckham n. Hemdren, 76 Ind. 47; Wicker-sham v. Zinc Co., 18 Kan. 481; Bank v. Samy, 82 N. Y. 291, 307; Bank v. Chase, 72 Maine, 226; Bank v. Christopher, 40 N. J. Law, 436 ; Bank v. Cunningham, 24 Pick. 270, 276 ; Bank v. Tinsley, 11 Mo. App. 501. For the purpose of this case, and to determine the plaintiff ’ s right of lien as against this defendant, the note and collateral agreement of October 1, 3884, must be taken as the basis of the plaintiff’s claim. All prior obligations of a similar nature, executed by Thomas & Company, were discharged and surrendered. Even a renewal of a note is a discharge of a prior one. Letcher v. Bank, 1 Dana (Ky.) 82; Slaymaker v. Gundaker, 10 Serg. & R. 75; Bank v. Croft, 3 McCord (S. C.) 522; Neff v. Clute, 12 Barb. (N. Y.) 466 ; Cormoall v. Gould, 4 Pick. 444.</p>

<p>1. Railroads — Damage to Cattle — Cause op Action. — The billing or injuring of a number of cattle at the same time by railroad cars constitutes but one cause of action, but when they are thus killed or injured • at different times, eacb - injury constitutes a separate 'cause of action.</p> <p>2. Appellate Practice — Remittitur.—The respondent may, on appeal, remit the erroneous part of a recovery and save a new trial, where the judgment is severable, a part being clearly right and a part erroneous.</p>

<p>Appeal from the Lawrence County Circuit Court, M. Q. MgG-begor, Judge.</p>

L. Thomas, Judge. The first count in the indictment, and the one upon which the defendant was tried, is bad, because it does not conclude, “against the peace and dignity of the state.” The State v. Lopez, 19 Mo. 254; The State v. Pembertony 30 Mo. 376; Const. Mo. art. 6, sect. 38.

<p>1. Criminal Law — Intoxicating Liquors — Druggist—A conviction for selling intoxicating liquor, as a druggist, can not be sustained without evidence tending to show, that the defendant is a druggist, that is, one “who shall have or maintain a store, and shall have complied with the law relating to merchants’ licenses.”</p> <p>2.--A physician who is licensed as a pharmacist or druggist, may, under the act of March 29, 1883 (Sess. Acts, 1883, sect. 4, p. 90), act in the double capacity of physician and salesman, under the restrictions therein provided.</p>

Louis Circuit Court, Leroy B. Yalliant, Judge. The barge was lost, within the meaning of the statute. Rev. Stat., sect.-6992 ; Collar & v. Eddy, 17 Mo. 356. And was in a perishable condition. Cohen’s Admiralty-Law, 39; The Saragossa, 1 Benedict 551; Holmes v. The Sloo%>, 1 Benedict, 81. The case presented by the petition is for alleged salvage services.

Arreal from the St. Charles County Circuit Court, W. W. Edwards, Judge. In order to sustain a suit on an attachment bond, it is necessary for the plaintiff to show that the attachment suit had been finally disposed of, adversely to the plaintiff in that suit. The State to use v. Williams, 48 Mo. 210; Drake on Attachment, p. 107, sect. 162a/ Nolle v. Thompson, 8 Met. [Ky.] 121.