Volume 3 — Missouri Appeal Reports

<p>1. An administrator has no interest in the real estate of his intestate heyond a naked power to sell or lease, under direction of the Probate Court, for the payment of debts. But, if he leases the land without proper authority, the rents received will be assets in his hands.</p> <p>2. A surviving partner administering the partnership effects occupies a twofold relation to the realty belonging to the partnership estate: first, as a trustee, holding the beneficial interest for payment of the partnership debts; and, second, as co-tenant with the heir of the deceased partner, holding the title subject to the trust. In the first capacity he must account for all receipts and disbursements in his settlements before the Probate Court. In the second, the Probate Court has no jurisdiction over him. If, therefore, he leases the land under order of the Probate Court, or there be partnership debts unpaid for which the personal assets are insufficient, the surviving partner must account in his settlements for rents received. But, if he leases without such order, and the rents are not required for the partnership debts, his accounting will he with the heir only. If the share of the deceased partner be required for payment of his individual debts, his administrator may interpose against the heir, and incorporate such share with the assets of the estate in his hands.</p>

<p>Under the City Charter of 1870, where the police justice of the city of St. Louis was suspended by the mayor for misdemeanor in office, and tried and acquitted as provided by law, and another appointed to perform his functions, who acted as police justice daring his suspension, the police justice was entitled, on acquittal, to receive his salary for the period during which he was suspended.</p>

<p>1. "Where a guardian, after his ward becomes of age, makes a settlement with him concerning the ward’s estate, which settlement shows an indebtedness of the guardian to the ward, and is filed in, and approved by, the Probate Court, such settlement is an admission of indebtedness on the part of the guardian, and is evidence, but not conclusive, against the guardian’s sureties.</p> <p>2. Where, in such case, the property of the ward is an individual interest in his father’s estate, in which dower has not been assigned his mother, no abatement can be made from the rents of such estate on account of the dower, in a suit on a bond of the guardian to the use of the ward.</p>

<p>1. "Where a tenant of two adjoining lots, owned "by different lessors, divides them, for convenience in cultivation, by a fence not on the true division line, and afterwards purchases the lot thus enlarged, his occupancy of the ground taken from the other lot cannot be set up as an adverse possession under the statute of limitations.</p> <p>2. An agreement between adjoining owners, fixing their common boundary, will be enforced by the courts, whether proved inferentially by long acquiescence, or directly by expressed understanding.</p> <p>8. Testimony on both sides of an issue of fact having'been heard by a jury, and the law fairly presented to them in instructions, their finding will not be disturbed.</p>

<p>1. A voluntary appearance cures all defects of process, and defendant, after appearing and defending generally, cannot deny the jurisdiction of the court over his person.</p> <p>2. In an action against a common carrier for the conversion of a part of goods shipped as first-class freight, hut which were proved to be double first-class, the defendant is entitled, to receive double rates, and to be credited therefor.</p> <p>3. In an action against a common carrier, for conversion, plaintiff is entitled to the value of the goods converted, at the point of destination.</p> <p>4. A classification of freight, with a view to escape the payment of the proper rate, by the consignor, will not disable the consignee, to whom the goods belong, from maintaining an action for conversion against the carrier. The payment or tender of the proper rate, where another rate has been received, is not necessary to the maintenance of an action for conversion.</p> <p>6. "Where a number of common carriers combine under a name, for the purpose of carrying freight for hire along the route of all, an action for conversion may be maintained against them jointly or severally; and, to maintain an action against one, it is not necessary to prove that the goods were lost while in his possession, nor to prove a special contract with him for their carriage.</p> <p>6. Where A ships goods, securely boxed, to he delivered to B, and a part only are delivered, the presumption is that the loss occurred while the goods were in the carrier’s possession.</p>

<p>1. A party haying acquired title through fraud on the part of his grantor, he being cognizant of the facts, cannot maintain his title in a court of equity.</p> <p>2. Where it is sought to sustain a sale of property belonging to minor heirs, under proceedings set on foot, with a view of purchasing himself, by one who stands in loco parentis, and who, being guardian ad litem, employs counsel on both sides, and finally becomes the purchaser, the property must he shown to have brought something more than half its value.</p> <p>3. A misdescription in the sheriff’s advertisement of the property to he sold under a decree in partition vitiates the sale, and is a defect which cannot he cured except by new advertisement and sale.</p> <p>4. It is not error to strike out matter in an answer which could have no influence in the decision of the cause.</p> <p>5. Appellate courts have no power to render judgment on claims accruing since the rendition of the judgment b.elow.</p>

<p>1. To sustain a condemnation of property for public use there must be an attempt by the party exercising the right of eminent domain to come to an agreement with the property holder before instituting proceedings to condemn.</p> <p>2. The first award, if regular, fixes the value of the property condemned, and,. unless the object for which the property was taken be abandoned, is binding, and is a bar to any subsequent action to condemn the same property for the same use.</p> <p>3. An objection to the form of the action was properly overruled on authority of Soulard v. City of St. Louis, 36 Mo. 546, and Jamison v. City of Springfield, 53 Mo. 224.</p> <p>4. It is not in accordance with the spirit of the constitutional provision concerning taking private property for public use that the State or its agents may pronounce a piece of property necessary or unnecessary, according to the terms upon which it is possible to acquire it.</p>

<p>1. A city ordinance, passed in pursuance of a charter authority, is not necessarily invalid because it omits some of the details of method or procedure mentioned in the charter.</p> <p>2. It is competent for the General Assembly to invest the authorities of a municipal corporation with power to preserve the public health, and to prevent or abate nuisances; and where the subject-matter of an adjudication of nuisance by such authorities is a prim8,-faa^e nuisance, or a nuisance per se, such adjudication is conclusive. '</p> <p>3. Trial by jury is not essential, on constitutional grounds,' to a method of ascertaining the existence of a nuisance.</p> <p>4. "When a business officially declared to be a nuisance has been discontinued, the owner of the property used in such business is not entitled to compensation therefor as for property taken for public use.</p>

<p>An adjustment of a loss between the assured and an officer of the insurer does not create an estoppel against the defense, in an action on the policy, that the conditions of the policy had been forfeited so as to discharge the insurer from liability.</p>

<p>I. The Charter of the city of St. Louis, of March 4, 1870, requires plans, profiles, and estimates of the cost of street improvements to be submitted to the City Council, in cases where the city is to bear any part of the cost thereof, before the passage of the ordinance providing for such improvements. Held, that where this is not done the ordinance is void, and a recovery cannot be had against private property charged under such ordinance with a part of the cost of such improvements.</p>

<p>1. 1. B. received an order for goods from H. H., whom he did not know, dated at St. O., a town of 8,000 inhabitants. Upon consulting a mercantile directory, I. B. ascertained that a saloon-keeper of good mercantile repute, named H. H., resided there, whereupon he sent the goods, by the defendant, a common carrier, to “H. H., St. 0., Mo.; ” also a bill of lading and a bill for the goods, by mail, to same address. By the bill of lading, if the goods were not removed within twenty-four hours after arrival at St. 0., defendant was liable only as a warehouseman. At the date of these transactions there were two men in St. 0. calling themselves H. H. — tile saloon-keeper, and a stranger who had been there but a short time. On the arrival of the goods the defendant notified the saloon-keeper H. H. of their arrival, who said he had not ordered them, and would not receive them. The goods were removed to the warehouse of defendant. Bomdays afterward the stranger H. H. claimed the goods. Defendant’s agents refused to deliver them, although they had heard of him as about opening a store there. He produced the bill of lading for them and delivered it to defendant’s agents, who took his receipt for the goods and delivered them to him. He appeared in St. 0. about a week or ten days befoi-e this, registered his name as H. H., at a hotel, rented a store by that name, and employed carpenters to fit it up, who went to work there. He sold part of the goods, shipped the remainder to himself at another point, and left St. 0. The goods were not paid for. I. B. sued the defendant for the value of the goods, alleging a misdelivery. Held, that there was no misdelivery, and that L B. could not recover; that the liability of defendant was that of a warehouseman; that there was an exercise of due diligence; and that the plaintiffs were guilty of negligence in not more particularly describing the business or address of the person to whom they intended to sell.</p> <p>2. A warehouseman who uses due diligence is not liable to the consignor as for a conversion, in case of misdelivery, where the misdelivery is superinduced by the laches of the consignor, and the question of diligence is one for the Dry.</p>

<p>1. In Missouri a railroad company, when engaged in the business of carrying cattle, is a common carrier.</p> <p>2. The duties of a common carrier do not originate in contract; and, where his liability has been limited by contract, it is not necessary, in an action against the carrier, to sue on the contract, but it is incumbent upon him to show how far his liability was limited by such contract.</p> <p>3. The liability of a common carrier cannot be so limited by contract as to shield him, where the loss was occasioned by his negligence; and, upon the question of negligence, the burden of proof is upon the carrier.</p>

<p>1. The M. N. Bank received a dispatch from another bank requesting the payment of $500 to J. H. B. A person called upon L. S., introduced himself as J. H. B., and asked to be identified at the M. N. Bank. L. S. recognized him as a person whom he had met at W. as an employee of the mercantile house of M. & “W., but did not recollect his name, and this person exhibited to him what purported to be a 'dispatch addressed to J. H. B., which stated that the M. Ñ. Bank would pay him $500; whereupon L. S. sent his bookkeeper to the bank to identify him as J. H. B. The bank paid him the money." He was not J. H. B. L. S. had no interest in the matter. The M. N. Bank sued L. S. for the recovery of the $500. Seld, that upon these facts the bank was not entitled to recover of L. 8.</p> <p>2. If a person states what he knows to be untrue, or makes an assertion as to the truth or falsity of which he knows nothing whatever, and so induces another to act to his prejudice, a fraud, in law, is committed; but, though the representation made is false, if the person making it had reason to, and did, believe it true, he has incurred no liability, for he has been guilty of no deceit, and the gist of the action is fraud.</p>

<p>Where property pledged to secure a debt is sought to be recovered by replevin, and judgment is for defendant for the money value of the property pledged, and is paid, the judgment being for more than the plaintiff’s debt, the defendant holds the remainder of the money recovered, after satisfying his claim, to the use of plaintiff.</p>

<p>1. Where it appears from the record of a former suit between, the same parties, introduced in evidence under a plea of res adjudicada, that the subject-matters in present controversy were material issues in the former cause, and their adjudication was necessary to its determination, oral testimony as to what were the issues in the former case is incompetent, and it is not error to exclude it. Parol testimony cannot be admitted to contradict the record.</p> <p>2. Bjectment will lie against a city by the owner of property wrongfully taken for a street.</p> <p>3. In ejectment it is not necessary to ask any specific relief, but, if a specific sum is demanded, a greater amount cannot be given without an amendment before verdict.</p>

<p>1. An instrument purporting to convey real estate, an inspection of which does not disclose that it is void, hut which is really so, constitutes a cloud upon-the title which courts of equity will remove.</p> <p>2. Where the contrary is not shown, the person having the exclusive legal title to real estate is presumed to he in possession.</p> <p>8. Courts of equity cannot set aside the probate of a will, but may declare the will, as probated, void.</p>

<p>1. Until the inferior court has been asked in some form, and without avail, to refrain from proceeding with the trial of a cause, or to dismiss the same, a superior court will not entertain an application for a writ of prohibition.</p> <p>2. An officer can be required to certify to such facts only as are within his official knowledge.</p> <p>3. Section 21 of article 9 of the Constitution, providing for the filing of a certificate by the mayor of the city of St. Louis and the presiding justice of the County Court of the county of St. Louis, necessarily implies the duty of an examination as to the facts to be certified. A certificate made by the clerk of the County Court of the facts required by that section would be a nullity.</p> <p>4. Until the result of an election has been certified by the proper officer there can arise no case of a contested election.</p> <p>5. “Where the question before the superior court is one of rightful or usurped jurisdiction about to be assumed by the inferior court, it cannot be determined by the allegations in the pleadings, but the proposed action of the court is the test.</p> <p>6. Mandamus will lie -to compel the proper officer to certify the result of an election, but not to accomplish the purposes of a contested election.</p> <p>7. Mandamus will not be refused because there might, under some other remedy, be an incidental determination of the right asserted, but followed by a judgment incapable of enforcing such right.</p> <p>Per Bakbwell, J., dissenting. 1. The certificate of the clerk of the-County Court of the facts required to be certified, by section 21, article 9, of the Constitution, was p-ima facie evidence of the result of the election, and rendered an examination of the ballots and poll-books, and a certificate by the mayor and presiding justice, unnecessary.</p> <p>2. Mandamus will not lie to determine the result of a contested election, under cover of an application to compel an officer to certify the result of an election.</p> <p>3. In a mandamus proceeding, where issues of fact are to be tried, the trial is by jury; the evidence is viva voce, and it must fully support the issues raised, and none other.</p> <p>4. In a mandamus proceeding the jurisdiction of the court to command the execution of the particular act or duty made the subject-matter of the writ must be clear.</p> <p>5. In a mandamus proceeding to compel certain officers to certify the result of an election, the court has no power to appoint other persons commissioners to examine the ballots and poll-books, and report thereon, and such officers are in no way hound by such report when made.</p> <p>6. Parties making an application for a writ of prohibition cannot be affected by any action of the respondents in the proceeding sought to be prohibited, where such applicants were not parties to that proceeding.</p> <p>7. Prohibition will lie to arrest proceedings where the court, though rightfully entertaining jurisdiction, has exceeded its legitimate powers.</p>

<p>1. A corporation, under the statute of Missouri, has the power to make assignment of its property and effects.</p> <p>2. A corporation may make an assignment of a call already due on a stock note, but cannot commit to an assignee the discretion of making future calls on the stock notes of its members.</p>

<p>Appeal from St. Louis Circuit Court.,</p> <p>cited: Harlow v. Sass, 38 Mo. 34; Drake on Attach. 615, 620, 622, 624, 625, 628, 637, 639, 647, 648, 650, 656; Merchants’ Bank of Cleveland v. 0. & S. Ins. Co., 1 Disney, 469 ; 2 Pars, on Con. 767 ; Sturdevant v. Tuttle, 22 Ohio, 111.</p>

<p>1. The limitation imposed upon the mayor and Council of the city of St. Louis, hy the 5th-subdivision of section 1, article 3, of the Charter of 1870, was not affected hy the reenactment in the amendments passed in 1874. Sess. Acts, 1874, p. 363.</p> <p>2. A city may he enjoined and restrained from establishing a grade and doing work upon a street, if the proposed grade and doing work would not he beneficial to the public, hut would render the street impassable, and the place to which it leads inaccessible.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Phosphate of Lime Co. v. Green, Law Rep. 7 C. P. 43; Zabriskie v. Hackensack, etc., R. R. Co., 3 C. E. Green, 78; Sharon Canal Co. v. Fulton Bank, 7 Wend. 412; Smith v. Smith, 3 Desau. 557 ; In re Bridgeport Old Brewery Co., Law Rep. 2 Ch. 191; Gross’ Stat.,111. 1818-1869, 2d ed., 95, 451-457 ; Rev. Stat. 111. 1874, pp. 294, 295 ; Caldwell v. City of Alton, 33 111. 416 ; Trustees v. McConnell, 12 111. 140 ; Mclntire v. Preston, 5 Gilm. 60; Town v. Metzger, 21 111. 205 : Illinois, etc., College v. Cooper, 25 111. 148 ; Metropolitan Bank v. Godfrey et al., 23 111. 579, 602, 603, and notes; Marine Bank of Chicago v. Ogden, 29 111. 248 ; Pierce v. Madison, etc., R. R. Co., 21 How. 441 ; Whittenton Mills v. Upton, 10 Gray, 582 ; Susquehanna, etc., Co. v. Bonham, 9 Watts & S. 27; Solomons v. Laing, 12 Beav. 339 ; s. c., 12 Beav. 377; Abbott v. American, etc., Co., 33 Barb. 578 ; The Central R. R. Co. v. Collins, 40 Ga. 582; Sears v. Hotchkiss, 25 Conn. 171; Black v. Delaware & Raritan Canal Co., affirming Kean v. Johnson, 9 C. E. Green, 455 ; Goodin v. Cincinnati, etc., Canal Co., 18 Ohio St. 169; Rollings v. Clay, 33 Me. 139 ; Railway Co. v. Allertou, 18 Wall. 233; Eidman et ál. v. Bowman, 58 111. 444; Miners’ Ditch Co. v. Zellerbach, 37 Cal. 543 ; Imperial Bank of China v. Bank of Hindustan, Law Rep. 6 Eq., 91, 100; Clinch v. Financial Corporation, Law Rep., 5 Eq. 450, 464; s. c., on appeal, Law Rep. 4 Ch. 117, 120 ; Alabaster’s Case, In re Commercial Bank, Law Rep. 7 Eq. 273; Treadwell v. Salisbury, etc., Co., 7 Gray, 393; Hodges v. N. E. Screw Co., 1R. I. 347 ; 3 Kent, 12th ed., 67, and cases cited ; Vernon v. Manhattan Co., 17 Wend. 526 ; s. c., 22 Wend. 183 ; Watkinson v. Bank of Pennsylvania, 4 Whart. 482; Pope v. Rieley, 23 Mo. 185 ; Pars, on Part. 419 ; Peabody v. Flint, 6 Allen, 52, 57; Spackman v. Evans, Law Rep. 3 H. L. 233, 234; s. c., Law Rep. 4 Ch. 117 ; Ex parte Morgan, IMac. & G. 225 ; In re Magdalena Navigation Co., Johns. 690 ; In re Empire Assurance Corp., Dougans’ Case, Law Rep., 8 Ch. 540 ; Pycroft v. Pycroft, 2 Sm. & G. 326 ; Scott v. Becher, 4 Price, 346; Palin v. Gathercole, 1 Coll. 565; McKay v. Chiles, 5 Mon. 259 ; Payne v. Wallace, 6 Mon. 381; Porter v. Scobie, 5 B. Mon. 387; Lampton v. Usher’s Heirs, 7 B. Mon. 57 ; Fishback v. Williams, 3Bibb, 342 ; Clarke v. Lyon Co., 7 Nev. 75 ; Bruner v. Wheaton, 46 Mo. 363 ; Joint Stock Discount Co. v. Brown, Law Rep. 3 Eq. 140; s. c., Law Rep. 8 Eq. 381; Hilles v. Parrish, 1 McCart. 380; Marsh v. Eastern R. R. Co.,.40 N. H. 548 ; 43 N. H. 515 ; Ramsey v. Gould & Fisk, Law, et al., 57 Barb. 399 ; Ilea h v. Erie R. R. Co., 8 Blatchf. 347, and cases cited ; Brewer v. Boston Theater Co., 104 Mass. 378 ; 2 Joyce on Inj. 1274; Service v. Castaneda, 9 Jur. (o. s.) 367 ; Bramwel'l v. Halcomb, 3 Myl. &Cr. 740, 741; Mosely v. Mosely, 9 W. &R. 531; High on Inj., sec. 980 ; Rossv. Gordon, 2 Munf. 289 ; Hoffman v. Marshall, 1 J. J. Marsh. 64; Oelrichs v. Spain, 15 Wall. 231; Honey v. Rubber Tip Co., 12 Abb. Pr. 360; Bank of New Orleans v. Toledan, 20 La. An. 571; Dyke v. Dyer, 14 La. An. 701; Dunn v. Davis, 37 Ala. 95; Bullock v. Ferguson, 30 Ala. 227 ; McDaniel v. Crabtree, 21 Ark. 431; Sturgis v. Knapp, 33 Yt. 486 ; Wallis v. Dilley, 7 Md. 237 ; Hale v. Meegan, 39 Mo. 277; Uhrig v. St. Louis, 47 Mo. 528; Jenkins v. Parkhill, 25 Ind. 473; Wilson v. McEvoy, 25 Cal. 169; Pradera. Grimm, 28 Cal. 11; Allen v. Brown, 5 Laus. 511; Langworthy v. McKelvey, 25 Iowa, 48; Hill, on Inj. 99, secs. 53, 54; 11 Paige, 223; 1 Barb. Ch. 613 ; 54 111. 334; Collins v. Sinclair, 51 111. 328 ; Wag. Stat. 1030, secs. 11, 13, 14.</p> <p>cited: Seargent v. Webster, 13 Mete. 497 ; Buel v. Buckingham, 16 Iowa, 284; Revere v. City of Boston, 15 Pick. 363; Binney’s Case, 2 Bland, 142; Town, etc., v. Bank, etc., 2 Dougl. (Mich.) 530; Reynolds v. Comrs., etc., 5. Ohio St. 113; Barry v. Exchange, 1 Sandf. 280; Treadwell v. Salisbury, 7 Gray, 393 ; Stevens v. Hill, 29 Me. 133 ; Merrick v. The Bank, etc., 8 Gill, 59 ; Hodges v. The Screw Co., 1 R. I. 347; Durfee v. The Old Colony, etc., 5 Allen, 230; Gregory v. Patchet, 33 Beav. 595 ; Kent v. Jackson, 14 Beav. 384; Gray v. Chapin, 2 Russ. 126 ; Samuel v. Holliday, Woolw. 415 ; Graham v. Burkenhead, 2 Mac. & G. 158; High on Inj. 457, sec. 771; Hodgsson v. Powis, 1 DeG. M. & G. 12; Flooks v. London, etc., 1 Eng. Law & Eq. 12; Abb. on Corp. 780, sec. 108; Hodges v. New England, 3 R. I. 9 ; Toch v. Adams, 10 Cush'. 252; Floyt v. Thompson, 19 N. Y. 207 ; Woodbury v. The Proprietors, etc., 6 Yt. 528; Woolworth v. Farmers, etc.; 16 Wis. 629 ; McPherson v. Ohio & MississippiR. R. Co., 35 Mo. 13 ; Galveston R. R. Co. v. Lowdry, 11 Wall. 459.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Townsh. on S. & L. 90, sec. 52 ; Iioveys v. Rubber-tip Pencil Co., 33 N. Y. 522; Kerr on Inj. 2, 487; Brandreth v. Lance, 8 Paige, 24; Dixon v. Holden, Law Rep. 7 Eq. 488 ; Clover v. Roydon, Law Rep. 17 Eq. 190; Law J. 43 Eq. 665 ; Hill, on Inj. 568, note; Springhead Spinning Co. v. Riley, 37 Law J. 889 ; Prudential Assurance Co. v. Knott, Law Rep. 10 Ch. 142 ; Fisher v. Apollinaris Co., Law Rep. 10 Ch. 297 ; Flemming v. Newton, 1 H. L. Rep. Cas. 363; Rollins v. Hints, 13 Eq. App. 355; Axmann v. Land, 18 Eq. App. 330.</p> <p>cited: Kerr on Inj. 2; 1 Joyce ou Inj. 715; High on Inj., sec. 669; Hill, on Inj., 3d ed., 553, sec. 71; Brandreth v. Lance, 8 Paige, 24 ; Clark v. Freeman, 11 Bevan, 112; Prudential Assurance Co. v. Knott, Law Rep. 10 Ch. 142 ; Mulkern v. Ward, Law Rep. 13 Eq. 619 ; Clover v. Roydon, Law Rep. 17 Eq. 190 ; Fisher v. Apollinaris Co., Law Rep. 10 Ch. 297 ; Hammersmith Skating Rink Co. v. Dublin, etc., 2 Law & Eq. Rep. 192 ; Const. 1865, art. 1, sec. 17; Const. 1865, art. 2, sec. 14; Cooley’s Const. Lim., 3d ed., 420 et seq.; Thursby v. Mills, 11 How. Pr. 116; Hill, on Inj. 34, sec. 43; Story’s Eq., 10th ed., sec. 959 a.</p>

<p>1. Under an act approved March 18,1871, entitled ‘ ‘An act authorizing the formation of union depots and stations for railroads in cities of this State,” held, that by the proclamation of the policy of the State therein — that all railroads entering a city should find a terminus at one common center — the State gave, by the strongest and most necessary implication, the means to the accomplishment of that end.</p> <p>2. One Jessup purchased, under a deed of trust, the road and franchises of the North Missouri Railroad Company; respondent filed articles of association and became a body corporate, and purchased the North Missouri railroad and franchises from Jessup. Among these franchises was the right to construct lateral or branch roads to any point. Respondent acquired the right from the city of St. Louis to pass from west to east through the city to the Union Depot, and proceeded to construct a branch road from Ferguson’s Station, on the line of said road, to the Union Depot in said city. Held, that it had the right to do this, and, the policy of the State having been declared by the act of March 18, 1871, she could not object on the ground that respondent was usurping powers not granted by the State.</p>

<p>1. A husband, as such, has no power, by a building contract, to create a liability of his wife’s estate to a mechanic’s lien. He can do so only as her agent.</p> <p>2. To subject an estate to a mechanic’s lien, through the intervention of any person other than the owner, such other person must not only have assumed, to act for the owner, but must have been authorized to do so, either by previous appointment or by subsequent ratification. The mere knowledge and approbation of the owner do not amount to either appointment or ratification.</p> <p>3. Authorization or ratification of a contract to build a house on the wife’s lot will not be presumed from the fact that the house was to be a residence for the wife and children, with the husband.</p> <p>4. A mechanic’s lien cannot be given to sub-contractors for an amount greater than the contract price of the whole work. But a sub-contractor cannot be deprived of his lien rights because the builder has been paid in full; and voluntary payments by the owner to the builder will not be considered, as against the claim of a sub-contractor.</p>

<p>1. In an action on a life insurance policy which contained a provision that, in case of failure to pay the annual premiums on the days mentioned in the policy, the policy should cease and determine, and the insurance company should not be liable; where the insurer issued a circular declaring that it had made its policies now in force non-forfeiting, by extending the full amount of the insurance over such period of time as the premium reserve or the value of the policy would pay for, applied as a single premium for temporary insurance; and where these circulars were, in various ways, distributed among policy-holders and others, and kept for distribution upon the counter over which the insured paid the premiums; held, that these facts were sufficient to sustain a finding by the jury that the insured had notice of the contents of such circular, and was thereby induced to omit the payment of the last premium due on the policy, and that if the insured had notice of the contents of the circular, and acted • thereupon, the insurer was estopped to set up the non-payment of the last premium, and the provision of the policy relating to non-payment and forfeiture, as a defense to the action.</p> <p>2. An erroneous instruction, given at the instance of respondent, which works an injury to him, but not to appellant, is not a ground for a reversal.</p>

[The same attorneys appeared and the same authorities were cited in this case as in the case of Barnes et al. v. Gottschalk et al., ante, p. 109.]

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: City v. Tiefel, 42 Mo. 578; The State v. Matthews, 44 Mo. 523; The State v. Miller, 45 Mo. 495; Ensworth v. Allen, 46 Mo. 454; Fletcher v. Peck, 6 Crunch, 87; Dartmouth College v. Woodward, 4 Wheat. 625 ; The State v. Cape Girardeau & State Line R. R. Co., 48 Mo. 468; The State v. Clark, 54 Mo. 17 ; Shewalter v.Pimer, 55 Mo. 218 ; Orr v. How, 55 Mo. 328; McPike v. Alimón, 51 Mo. 551; Webster v. Blouut, 39 Mo. 500; Tasques v. Richardson, 19 Mo. 96 ; 1 Ter. Laws Mo. 47, sec. 8, p. 138, sec. 56, p. 423, sec. 2; Acts 1815, p. 414, sec. 58 ; Springer v. McSpadden, 49 Mo. 299.</p> <p>cited: Const. Mo., art 4, sec. 32; The State v. Saline County Court, 51 Mo. 377; Fowle v. City of St. Joseph, 37 Mo. 228; The People v. Hadden, 3 Denio, 226 ; Sedgw. on Stat. & Const. Law, 2d ed., 271-275 ; Benjamin v. Benjamin, 1 Seld. 383 ; Acts 1873, p. 48, sec. 13 ; Jones v. Carter, 56 Mo. 403 ; Long v. Higginbotham, 56 Mo. 245 ; Springer v. McSpadden, 49 Mo. 299 ; 1 Ter. Laws Mo. 348, secs. 8, 9, p. 350, sec. 18, p. 414, sec. 58, p. 423, sec. 2, p. 444, sec. 3; Geyer’s Dig. 49, 119,122, 128,404; Speck v. Wohlien et al., 22 Mo. 314; Wolff & Speck v. Wohlien, 33 Mo. 124; Bishop v. Schnaider, 46 Mo. 472; Musick v. Barney, 49 Mo. 458; Joeckel v. Easton, 11 Mo. 125; Bennett v. Iiollman, 44 Miss. 323; The State v. Auditor, 41 Mo. 25; Routsong v. Wolf, 35 Mo. 174.</p>

<p>1. In an action for damages against a municipal corporation it is not error to introduce as testimony ordinances which establish defendant’s possession and control of the house by the falling of which plaintiff was injured.</p> <p>2. Where the roof of a market-house, by the falling of a part of which plaintiff was injured, was one connected frame, it is not error to admit evidence of notice to defendant of the unsafe condition of another part.</p> <p>3. The contributory negligence of the husband will not bar the action of the wife, she being the injured party. His negligence cannot be imputed to</p> <p>4. "Where there is any evidence to sustain the affirmative of an issue, it is error to take the cause from the jury.</p> <p>5. A cause will not he reversed because of a refusal to give an instruction which has been substantially given in other instructions.</p>

<p>1. So much of the act of March 5, 1869, amendatory of acts establishing a Court of Criminal Correction in St. Louis County, as prescribes a punishment different from that prescribed by the general law is unconstitutional; and where a person is imprisoned by the St. Louis Court of Criminal Correction upon a conviction, under the general law, and is released on habeas corpus, by a judge of the Circuit Court, such release is void; and the prisoner may properly be taken in custody under the original commitment.</p> <p>2. "Where the unconstitutional portion of an. act may he stricken out, and leave a complete enactment capable of being enforced, the whole will not he declared void because of the unconstitutionality of a part.</p>

<p>1. A transfer by the directors of one insurance company of its entire property to another company is void as to dissenting policy-holders, and no action will arise for any breach of the policy by reason of such transfer.</p> <p>2. “Where judgment is rendered in the court below upon an agreed statement of facts and admissions by the parties, all presumptions are in favor of the validity of the judgments, and the burden is upon appellants to show that the judgment is erroneous.</p>

<p>An action for damages against a municipal corporation will not lie because a sewer became insufficient to carry off an increased volume of water which the grading of a certain street caused to accumulate, where there is neither negligence nor carelessness in the execution of the work.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 735, sec. 13, p. 738, sec. 1, p. 753, sec. 41; Sess. Acts 1869, pp. 27, 40 ; The State v. Matthews, 44 Mo. 524-530.</p> <p>cited : Wag. Stat., ch. 76, art. 2, secs. 1, 41.</p> <p>cited: The State v. Lawrence, 45 Mo. 492; Batchelor v. Bess, 22 Mo. 402; Sess. Acts 1861, p. 158; The State ex rel. v. Woodson, 41 Mo. 231; Story’s Eq. PL, sec. 10; Mays v. Biggs et ux., 3 Head, 38.</p> <p>cited: Eithian v. Monks, 43 Mo. 502.</p>

<p>In an action for damages on account of an excavation, where a want of care and skill is charged and denied, it must he proved. Negligence cannot he inferred from the facts of the excavation and the injury, where the injury might have happened without the excavation.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Chase v. Heaney, 7 C. L. N. 166 ; Watson v. Muirhead, 57 Pa. St. 161; Calder v. Chapman, 2 P. F. Smith, 359; Dos-well v. Buchanan, 3 Leigh, 381; 2 Smith’s Ld. Cas., 7th ed., 701; Chauvin v. Wagner, 18 Mo. 552 ; Gibson v. Chouteau, 39 Mo. 556 ; 1 Hill, on Mort., secs. 2, 3 ; Ersldne v. Townsend, 2 Mass. 495 ; Woodruff v. Robb, 19 Ohio, 217; Collier v. Gamble, 10 Mo. 470; 2 Am. Law Reg. (n. s.) 655, and cases ; Bogy v. Shoab, 13 Mo. 379, 380 ; Frink v. Darst, 14 111. 308, 309 ; Clark v. Baker, 15 Cal. 612; Way v. Arnold, 18 Ga. 181; Fail-cloth v. Jordan, 18 Ga. 350; Gochenour v. Mo wry, 33 HI. 331.</p> <p>cited: Rawle on Cov. Tit. 410, 412, note 27 ; 3 Washb. on Real Prop., 3d ed., 102, side p. 475, and cases cited, p. 110, side p. 480; Cocker v. Prince, 31 Me. 177; McCusker v. McEvoy, 9 R. I. 528; Carver v. Jackson ex dem. Astor et al., 4 Pet. 85, 86 ; Evans v. Labaddie, 10 Mo. 425 ; Jones v. Kearney, 1 Dr. & War. 159 ; Pierce v. Emery, 32 N. H. 484; Bailey v. Trustees, etc., 12 Mo. 175 ; Wag. Stat. 1351, sec. 3; Bogy v. Shoab, 13 Mo. 365; Jecko v. Hume, 45 Mo. 167; Clark v. Marshall, 39 Mo. 429; 2 Smith’s Ld. Cas. 638, and cases oited; Butcher v. Rogers, 60 Mo. 239.</p>

<p>1. In an action by an executor for rent due under a lease, the lessee may recoup on account of damages for breach of a covenant to repair.</p> <p>2. The fact that the covenant to pay rent and the covenant to repair are separate and distinct covenants does not affect the right of the lessee to recoup.</p> <p>3. A lessee cannot be deprived of his right to recover damages caused by the dilapidation of the leased premises because he did not himself repair, where the lessor had covenanted to repair.</p> <p>4. The measure of damages for a breach of a covenant by the lessor to repair is the proximate and unavoidable injury to the lessee consequent upon the breach.</p>

<p>1. Under section 1, article 12, of the Charter of the city of St. Louis, the city is liable for damages sustained by owners of real estate upon which permanent buildings have been erected, by any change of the grade of any street upon which the real estate fronts. By ordinance the grade of a street was changed, by which plaintiff’s property was damaged. Held, that the change was within the corporate powers of the city, made by authority of officers having charge of that department, and impliedly ratified by the corporate authorities; hence valid, and the city was liable.</p> <p>2. Where a change of grade has been made, by which the plaintiff’s property was damaged, to entitle him to recover it is not necessary that the work of grading shall have been completed. It is enough if he has been injured by the work done.</p> <p>3. Under section 3, article 3, of the City Charter, in order to give validity to a special ordinance which is in conflict with a general ordinance, the general ordinance must be first repealed. But the rule does not apply where both ordinances are special. A special ordinance may, by implication, be repealed by the effect of a subsequent special ordinance in conflict with it.</p>

<p>1. An action for damages alleged to have been caused by the negligence of a master in failing to supply suitable material and properly construct a scaffold cannot be maintained unless the plaintiff prove that there were defects either in the material or in the construction, that defendant knew of such defects, and that plaintiff was not aware of them prior to exposing himself to the danger.</p> <p>2. If the person injured was fully aware of the hazard before the accident, or was guilty of negligence himself, he cannot recover.</p> <p>3. In the absence of proof, negligence will not be presumed in an action for injuries alleged to have been caused by the negligence of another.</p> <p>4 Where the facts, being admitted, are not sufficient, together with the inferences which a jury might legally draw, to support a verdict, on a demurrer to the evidence judgment will be given for defendant, unless plaintiff takes a nonsuit.</p>

<p>Section 67, p. 160, of the Acts of 1874, does not deprive a county, as mortgagee, of the right of foreclosure given all mortgagees, under section 1, p. 963, Wagner’s Statutes.</p>

<p>1. A county is a quasi corporation, capable of suing and being sued; and may purchase and hold real estate.</p> <p>2. A county may maintain ejectment for lands which it owns and of which it is entitled to possession; and where it holds lands to the use of a township it may maintain ejectment in its name to the use of the township.</p>

<p>1. The amended charter of the Pacific Railroad Company gave the right to construct a road “ from the Mississippi River, or any point in the city of St. Louis,” and its charter required that its roads should lpe commenced within seven years and completed within ten years thereafter. The company chose the point at which it would commence, and built its road westward from that point. Held, that, having maintained that location for twenty years, it could not then change its terminus; and that, having failed to build its branch roads within the time prescribed, it could not build a branch road to continue from its terminus eastward to the Mississippi River, nor treat a track laid between these points as a mere switching or spur track.</p> <p>2. A public highway is the property of the people of the whole State, and may be disposed of by their representatives at their pleasure. The Legislature may authorize the building of a railroad 'over and along the streets of- a city, but the city whose streets are thus taken may regulate and control the operation of such road within its limits.</p> <p>3. Since the adoption of the Constitutions of 1865 and 1875, the Legislature of Missouri has no power to grant to an individual or corporation the right to construct or operate a railroad within any city without first obtaining the ' consent of the local authorities.</p> <p>4. A railroad company cannot accept a license from a municipal corporation and operate its road thereunder, and then, after having delivered possession to its licensor treat it as a trespasser.</p> <p>5. The parties to an action which was dismissed by plaintiff before final judgment are not concluded by the record therein.</p>

<p>1. The St. Louis Circuit Court, at general term, upon appeal from special term, may give such judgment as the special term ought to have given.</p> <p>2. A plat filed in. the recorder’s office by the owner of the ground, showing the bloclts and streets and having a certificate thereto declaring the plat and the allotment of streets as therein laid off to be binding upon the parties filing the plat, and upon their heirs and assigns forever, constitutes a complete dedication of the streets shown in the plat.</p> <p>3. The provisions contained in Session Acts 1866 (Adj. Sess.), p. 296, and Session Acts 1867, p. 74, do not require that the process by which the engineer reaches the amount of the assessment shall appear upon the face of the special tax bill, but the mode of computation, and every other step leading to the assessment, may be inquired into by the property-owner in his defense against the claim. Carroll v. Eaton, 2 Mo. App. 479, reviewed.</p>

<p>1. Though a contingent interest in an estate is not generally transferable in law; yet where it is assigned for a valuable consideration, when it becomes vested, a court of equity may compel the vendor to make a conveyance of it pursuant to his agreement.</p> <p>2. The deed of an heir, for a valuable consideration, of all her right, title, and interest in and to the real estate, in possession and in expectancy, of the estate of her father, also all other real estate of which he died seized, which she might inherit, would pass such interest.</p> <p>3. ’Where a woman executes a deed as a feme sole, there being no evidence that she was a feme covert, the fact that she was described in her father’s will as H. D., wife of L. D., will not raise a presumption that she was married at the date of the execution of the deed.</p>

<p>1. The jurisdiction of a State court in attachment cases is not ousted by proceedings in bankruptcy unless properly pleaded in the State court.</p> <p>2. A State court will not take judicial notice of proceedings in the Federal courts.</p> <p>3. A bond given under section 48, page 90, Wagner’s Statutes, dissolves an attachment, but a bond given under section 24, page 186, does not.</p>

<p>1. Section 4, page 5S9, Wagner’s Statutes, will not be construed to mean tbat the widow shall take a child’s portion of the personalty owned by the husband at his death, discharged of his debts, although said section omits mention of such debts.</p> <p>2. The policy of the law does not favor the exhaustion of a decedent’s estate for the benefit of the widow or children, to the prejudice of creditors, and where the statute does not clearly imply or express such intent it will not be presumed.</p>

<p>1. An execution creditor acquires a lien on the property levied on, hy virtue of the levy; and subsequent proceedings in bankruptcy against the execution debtor in no way affect the rights of the execution creditor.</p> <p>2. A State court has no power to order its sheriff to deliver to an assignee in bankruptcy of an execution debtor the proceeds of a sale made under an execution issued by it.</p> <p>3. The United States Courts have no power to interfere with property in the possession of an officer of a State court, acting under its orocess and within its jurisdiction.</p> <p>4. An officer who, rightfully and under proper process, obtains possession of the properly of a judgment debtor, and who, though under order of his own court, on the application of a stranger to the proceedings, delivers to such stranger the proceeds of a sale of such property, does so on his own responsibility. The court has no power to make such an order.</p>

<p>1. The plaintiff has the right to prove any material fact put in issue hy the answer.</p> <p>2. A contract to carry goods and deliver them to the consignee at N. cannot be made to bind the carrier to deliver them at A., because the goods were addressed to the consignee at A., nor because the consignee was described as being at A.</p> <p>3. If a common carrier receives goods and contracts to deliver them to the consignee, the burden of showing such delivery is upon the carrier.</p>

<p>1. A certificate of deposit which does not contain the words “for value received” is not a negotiable instrument under the statute, but title to it will pass by indorsement and delivery, or by delivery, in case of an indorsement in blank, yet the transferee takes it subject to all equities.</p> <p>2. 'Where one indorses in blank, and delivers, as collateral, to a bank a nonnegotiable chose in action, upon the face of which is indorsed a notice that it is subject to certain claims, the indorser is not estopped to assert his title as against the purchaser or pledgee thereof, who has taken it from the bank for a valuable consideration and without actual notice.</p> <p>3. Where the cashier of a bank gives a fraudulent and worthless check, and takes up collateral securities therewith, such transaction effects no legal re-transfer of the securities.</p>

<p>Where a later and general clause in an insurance policy refers to a former and more specific one, and the later one is to be construed, it must be done by the light of the clause to which it refers.</p>

<p>1. A fair, uncolored account of the whole proceedings had in public, before a court or public magistrate, is a privileged communication, whefher the proceedings be preliminary, ex ¡parte, or otherwise; but there must be so much publicity in the proceedings as is implied in a submission with a view to judicial-action.</p> <p>2. A publication of the contents of a petition for divorce which, though filed, has not been presented to a court at any sitting, with a view to judicial action, is not a privileged communication, especially if it makes statements of a kind which would disgrace or degrade, or imputes a crime to, plaintiff. Such a publication raises a legal presumption of malice.</p> <p>3. The mere fact that a paper has been “filed” in the office of a clerk of a court will not make the publication of its contents a privileged communication.</p> <p>4. In an action for libel, where the principal issue is upon the question of malice, it is error to instruct the jury that, “if they believe that the proceedings, an account of which was published by defendant, had taken place so long before the publication that it had ceased to be an item of current news, they will find for plaintiff.”</p>

Quo warranto information. On-November 30, 1875, the Constitution of Missouri, which was adopted in Convention, August 2, 1875, went into effect. Held: as usual, independently of the Scheme and Charter, Justice Speck, among the other officers so elected, taking his seat as justice of the old County Court. The making of the certificate by the mayor of the city and Justice Speck, as presiding justice of the County Court, is then alleged.

<p>1. Under section 18, article 8, St. Louis Charter of 1870, it is not necessary to the validity of an ordinance which provides for the improvement of a number of streets that a separate estimate and a separate appropriation be made for each street.</p> <p>2. The city engineer is required to indorse upon the ordinance the cost of the work to be paid for by the city only, and not the cost of that to be done at the expense of property-holders.</p> <p>Per Bakewull, dissenting. — Under section 18, article 8, St. Louis Charter of 1870, the city engineer is required to indorse upon the ordinance the cost to be borne by the property-holder as well as that to be borne by the city.</p>

<p>In an action to compel specific performance of a lease-covenant to renew, where the renewal clause stipulates that the rent for the new term shall be a per cent, of the value of the leased premises, such value to be determined by arbitration, and the lessor refuses to arbitrate, a court of equity will not compel him to do so; but will hear evidence, and, upon the case made, decree specific performance of the contract in its essential particulars.</p>

<p>1. Possession under a certificate of confirmation which requires a survey, in order to attach to any specific tract or lot, will not support the defense of limitation, unless such survey be made more than ten years prior to the-commencement of the suit.</p> <p>2. The proviso in the 1st section of the act of Congress approved June 13, 1812, is not to be construed as depriving a previous confirmee of any benefit of the act itself. Its whole purpose is to prevent any interference, by-the provisions of the act, with rights acquired under a previous confirmation.</p> <p>3. The testimony taken before the commissioners for ascertaining and adjusting the titles and claims to lands in the Territory of Louisiana, is admissible to show the location and boundaries of the land by them confirmed.</p> <p>i. A certificate of confirmation granted by tbe Board of Commissioners is competent testimony to prove tbe facts — if therein recited — of inhabitation and cultivation on and before December 20, 1803, under the acts of Congress of 1805, 1807, and 1812.</p> <p>5. Where the testimony tended to show facts which would constitute a confirmation by the act of June 13, 1812, it was erroneous to refuse instructions founded on the hypothetical sufficiency of such a confirmation to sustain the defense of limitation.</p> <p>6. Quan'e, whether a survey, having been approved by the surveyor general, can be afterwards annulled by that officer.</p>

<p>1. An individual may be prosecuted criminally for a libel upon a business corporation, without an allegation that the corporation has been injured thereby.</p> <p>2. In an action for criminal libel, counts for distinct offenses may be joined in the same information, and the defendant sentenced for more than one offense at the same time; but there should be separate findings, and the judgment should apply each penalty to its own offense.</p> <p>3. Where the judge who tries a cause dies after a motion for a new trial has been overruled, but before the bill of exceptions has been signed and before the time allowed for filing the same has expired, the succeeding judge should grant a new trial.</p>

<p>1. A notice of final settlement of an estate published in English in a German newspaper is not a legal notice.</p> <p>2. A final settlement, without legal notice, has the effect of an annual settlement only, and an order of distribution thereon concludes no one, and has not the force of a judgment; but the administrator is still subject to the orders of the Probate Oourt, and a creditor may still subject the realty to the payment of his debt.</p> <p>8. In a proceeding in equity to set aside a final settlement and subject the real estate of deceased to the payment of debts, the widow, who takes part of the real estate under the will, as well as the heirs, should be made a party; if the proceeding is merely to set aside the final settlement, the administrator alone should be made a party defendant.</p>

<p>1. To enable plaintiff to maintain an action for the recovery of specific personal property, the defendant must be in possession thereof at the commencement of the action.</p> <p>2. Where the petition alleges that the defendant is in possession, and the proof shows the contrary, there is such a variance between the allegations and the proof as disables plaintiff from recovering.</p>

<p>1. A nunc pro tuna order extending the lien of a judgment to a married woman’s separate estate, made after the lapse of several terms of court, and without notice to the opposite party, is illegal, and will be set aside in a proceeding instituted for that purpose.</p> <p>2. Where there is a written contract, in order to bind the separate estate of a married woman it must appear from the contract itself that she intended that it should be bound. Such intent cannot be proved by oral testimony.</p>

<p>1. When, after proper proceedings, under article 5 of Wagner’s Statutes, page 326, to condemn private property for railroad purposes, the assessed value of the land condemned has been paid to the clerk of the court, the agents and servants of the corporation may enter upon the land and construct the road without being guilty of a violation of section 26, page 495, of Wagner’s Statutes.</p> <p>2. In an action against the agents and servants of such corporation, under section 26, page 495, of Wagner’s Statutes, it is error for the court to exclude the record of the proceedings to condemn, offered in evidence by defendants.</p>

<p>1. A pleading is bad which states conclusions of law, or which draws legal inferences from stated facts, and such statements and inferences will be stricken oat on motion.</p> <p>2. The fact that the vendor, at the time of making the sale, knew that the vendee intended to use the thing sold for immoral or illegal purposes, is no bar to an action to recover its value.</p> <p>3. If the vendor, in making a sale, violated a positive law, although in relation to the revenue, the law will not aid him to recover the price of the articles sold.</p>

<p>1. In an action for the claim and delivery of specific personal property, the petition need not allege everything required to he stated in the affidavit.</p> <p>2. "Where, in such a proceeding, defendant makes a general denial of title in plaintiff, he may justify under legal process against the rightful owner.</p> <p>8. A sale of personal property, unaccompanied by a change of possession, .is void as to creditors of the vendor, both prior and subsequent.</p> <p>4. Where the jury returns an informal verdict, it is not error for the court to suggest a correct form, conforming to the obvious intent of the jury.</p>

<p>One having surveyed, marked, and staked off ice, unappropriated by another, upon a navigable river, and having expended money to preserve it and make it valuable for use, and as a commercial commodity, has a possession sufficient to support an action for trespass.</p>

<p>Error to St. Louis Circuit Court.</p> <p>cited : Warner et al. v. Martin, 11 How; 1 Pars. on Con., 5th ed., 94-96 ; Beach v. Forsyth, 14 Barb. 499 ; Benny v. Rhodes, 18 Mo. 191.</p> <p>cited: Pars, on Con. 78; Dunn v. Wright, 51 Barb. 250; Paley on Ag. 825 ; 2 Kent’s Com. 632 ; Storey on Sales, sec. 93 ; Kingsley v. Davis, 104 Mass. 178; Conklin v. Leeds, 58 111. 178; Kack v. Willie, 63 111. 144; Benning v. Rhodes, 18 Mo. 147 ; Dallum v. Renshaw, 26 Mo. 535 ; Caldwell v. Stephens, 57 Mo. 589 ; Haley v. Merriam, 7 Cush. 242; Chitty on Con. 225 ; Gardner v. Allen’s Admrs., 6 Ala. 189 ; Baxter v. Duren, 29 Me. 434.</p>

<p>1. To entitle one to recover the contract price of goods alleged to have been sold and delivered, there must, at least, be shown an intention on his part to relinquish all further claim as owner, and an intention on the part of defendant to assume ownership with all its liabilities.</p> <p>2. ’Where one sells wood which is in a general pile, not measured, identified, and set apart, but where the vendor merely notifies the vendee that the wood is at the place of delivery, but' continues to sell wood from the same general pile to other parties, that is not such a delivery as will enable him to recover the contract price, although the vendee may have taken and paid for a part of the wood.</p>

<p>1. A common carrier may by contract restrict his liability as an insurer, but he cannot by contract change the rule of evidence as to the burden of proof of negligence.</p> <p>2. Where goods are lost by a common carrier, whatever contract he may have made with the owner, the presumption of law is that they were lost by his fault, and unless this presumption be rebutted by testimony he must pay their value.</p> <p>8. The duties of a common carrier do not originate in contract, and while acting as a common carrier he will be held to that degree of responsibility which the law imposes upon him as such, and will notbe permitted to assume the position of an ordinary bailee or of a private carrier.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited : Dassler v. Wisley, 32 Mo. 498; The Missouri Coal Oil Co. v. Hannibal & St. Joseph R. R. Co., 35 Mo. 84; Kennedy v. North Missouri R. R. Co., 36 Mo. 350 ; McPheeters v. Hannibal & St. Joseph R. R. Co., 45 Mo. 22; Mueller etal.v. Putnam Fire Ins. Co., 45 Mo. 84; Perkins v. Missouri, Kansas & Texas R. R. Co., 55 Mo. 201.</p> <p>cited: Malecek v. Tower Grove & Lafayette R. R. Co., 57 Mo. 21; Buckley v. Knapp, 48 Mo. 162 ; Picket v. Crook, 20 Wis. 358 ; Wallace v. The Mayor, 2 Hilt. 440; Perkins v. Missouri, Kansas & Texas R. R. Co., 55 Mo. 201; Gillett v. Missouri Valley R. R. Co., 55 Mo. 315 ; Belknap v. Boston & Maine R. R. Co., 49 N. H. 358..</p>

<p>Where a vendor of real estate, at the time of sale, took notes of the husband of the vendee, and also took a mortgage on the land sold, which he foreclosed, and took possession of the land, claiming title under the foreclosure, in the absence of any agreement that the implied or equitable lien was not waived, and where there is nothing to show a reliance upon such lien, a vendor’s lien cannot be maintained, even where, owing to the carelessness or ignorance of the vendor’s agents, the security taken is almost worthless.</p>

<p>1. Where a court of equity enforces the equity of a wife to a separate provision out of property which was hers before, or which accrued to her during, coverture, it proceeds upon the theory that the property belongs to the wife, and not to the husband, with whose property equity will not, in such case, interfere.</p> <p>2. Where, by a decree in equity, the husband and wife are to receive certain proportions of a fund arising from the sale of land belonging to the wife, during their “joint lives,” that period is, in contemplation of law, reached when the wife has seemed a divorce, as completely as if the husband had died.</p>

<p>1. Where the duty of a ministerial officer is plain and unequivocal, courts will, at the instance of one who has a right to have the duty performed, issue a writ of mandamus to compel him to do it; but where there is a doubt as to the right or power of the officer to perform the alleged-duty, the writ will be denied.</p> <p>2. Where a question of fact is involved in a mandamus proceeding, which must be decided before the duty of a ministerial officer can be ascertained, the officer will be compelled to solve the question if he can, but, where he is powerless to command evidence necessary to a correct solution of the question, courts will make a judicial examination and ascertain the fact for him.</p> <p>8. Where, in a mandamus proceeding, the relator alleges it to be the duty of the canvassing officer to make and certify a certain return as the result of an election, and the officer makes return to the alternative writ that the poll-books now show a result different from that alleged, but that he has reason to, and does, believe that the figures on the poll-books showed, when returned to his office, the result alleged by relator, and that since coming into his hand certain figures have been changed and altered so as to give the opponent of relator a majority of votes, and that he is about to certify 'the result as now shown by the poll-books, contrary to his belief as to the fact, courts will make an examination and ascertain the fact, and compel him to make a certificate in accordance therewith.</p>

<p>1. A special tax bill is merely prima-faeie evidence, does not determine the rights of the parties, and any statements made therein are subject to rebuttal.</p> <p>2. It is not the duty of the city engineer, under section 12, page 480, Session Acts of 1870, in making out a special tax bill for the construction of a sewer, to give upon the face of the bill a detailed description of the methods by which he proceeded, the process of computation, or to state what he did in the language of the statute, and negative its exceptions; but, if the computation or method of assessment is not according to the statute, the defendant may show it.</p> <p>3. The amount assessed against a lot as a special tax for the construction of a sewer must be in that proportion to the whole charge which the area of the lot charged bears to the area of the whole sewer district.</p>

<p>1. Where a widow has instituted suit for damages for the killing of her husband, within the time allowed by statute, but has suffered nonsuit, she may begin anew, although more than six months have elapsed since the killing.</p> <p>2. Where the evidence of contributory negligence, in an action for damages, is insufficient to authorize the court in taking the case from the jury, and the jury have made a finding upon the facts, the appellate courts will not weigh the evidence.</p>

<p>1. A clause in an insurance policy, to title effect that the policy should not be binding until the payment in cash of the first premium, is waived by the insurer taking the note of the insured, and permitting the delivery of the policy Oefore the maturity of the note.</p> <p>2. On a demurrer to the evidence the court may draw such reasonable inferenees from the whole testimony and the manner of testifying as a jury might fairly draw.</p> <p>3. A party cannot place himself in a situation from which his intent to make a present agreement may be inferred without accepting the legal consequences of that situation; and where, upon all the evidence, the conduct of the party is equivocal, it is for the jury to judge.</p>