Volume 37 — Minnesota Reports

The plaintiff, as administrator of the estate of Sophia Cournoyer, deceased, brought this action in the district court for Kandiyohi county, to recover the possession of certain land in that county, alleged to have been owned by the deceased at the time of her death. The defendant claims title under a sale of the land made by the guardian of Sophia Cournoyer in the year 1863. The action was removed for trial to Ramsey county, and there tried by Simons, J., without a jury.

Plaintiffs brought this action in the district court for Ramsey county, to recover arrears of rent on a written lease made by plaintiffs to defendant Glenn, the other defendants being guarantors of the performance by Glenn of the covenants of the lease. The lease was for a period of five years from February 1, 1883, at a rental of $90 per month.

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried by Lochren, J., without a jury. cited Dambmaim v. Schulting, 75 N Y. 55; Anderson v. Weiser, 24 Iowa, 428; Fox v. Mackreth, 2 Bro. C. C. 400, 420; Morgan v. Elford, L. B. 4 Oh. Div. 352.

Appeal by defendants from an order of the district court for Henne-pin county, Young, J., presiding, vacating a levy and sale under execution and a satisfaction of the judgment in this action.

The plaintiff, as treasurer of Scott county, brought these actions-in the district court for that county, to recover damages alleged to-have been sustained by reason of the appeals taken by the defendants Weibeler and Bowler from orders denying their applications for-injunctions in actions brought by them to restrain the plaintiff from proceeding to collect personal taxes.

Ejectment. Defendant (impleaded with Charles W. Hobart) appeals from an order of the district court for Hennepin county, Rea, J., presiding, refusing a new trial.

The attorney general having filed an information in this court, to ascertain by what warrant the respondents claim to exercise corporate powers under the name of “The Single Men’s Endowment Association of Minnesota,” the respondents answered, setting out the alleged articles of incorporation and the amendments thereto recited in the opinion, under which they claim the right to exercise corporate powers. The matter was heard upon the information and answer.-

In each of these actions the defendant appeals from a judgment of ;the municipal court of St. Paul in a prosecution for violating a city •ordinance. In each case the defendant was arrested upon a warrant issued by the clerk of the court in the name of the judge of the court and under its seal, upon a complaint sworn to before the clerk. The •defendants, having been tried and convicted, moved in arrest of judgment upon the ground that the court had no jurisdiction.

The defendant was convicted in the district court for Cottonwood’ county on an indictment for selling intoxicating liquors without a license. Upon the trial before Perldns, J., it appeared that the sale • was made in the village of Windom. The action was certified to this court under Gen. St. 1878, c. 117, § 11.

The plaintiffs purchased of the defendant (a corporation) a harvester and binder, with the agreement that if the machine did not work well, the plaintiffs might return it and rescind the sale. Upon the purchase the plaintiffs paid part of the price in cash, and gave their notes for the balance. Afterwards the defendant sold, transferred and indorsed the notes, before maturity, to a third person, who has recovered judgment upon them.

<p>Municipal Corporations — Powers — License Fee not a Tax. — "Whenever a municipal corporation is authorized to regulate a subject, and to require those who do any act to obtain a license or permit, it may charge the person procuring the same a reasonable fee to cover the labor and expense of issuing sucli license or permit. Such a fee is not a tax.</p> <p>Same — Graduated Fees for Building Permits. — The amount of fee for a “building permit” may, under the charter and ordinances of the city of St. Paul, be graduated according to the estimated cost of the building,, which estimate of cost is to be furnished by the applicant to the building, inspector.</p>

Appeal by defendant from an order of the district court for Otter Tail county, Collins, J., presiding, refusing a new trial. cited Lang don v. Richardson, 58 Iowa, 610, (12 N. W. Eep. 622.)

Plaintiffs brought this action in the district court for Sherburne -county to determine adverse claims to real estate. The defendants •Sylvester Kipp and Orrin Kipp answered, alleging title in themselves acquired under the tax sale made under Laws 1881, c. 135.

Quo warranto. Upon the return of the writ the matter was heard upon respondent’s demurrer to the information. Held: on March 8, 1887, in the borough of Belle Plaine, at the place designated, prior to the passage of the act of 1887, for the holding of the-annual election of the town, and at such town meeting an election was. held, at which the respondent was elected to the office of town clerk; that a portion of the voters of the town, residing…

Appeal by defendants from an order of the municipal court of Min-, leapolis, refusing a new trial. The action was brought against four lefendants as partners as “Pence Opera House Company,” to recover ’or services rendered by the plaintiff as an actress under a written jontract.

Appeal by defendant from an order of the district court for Ram•sey county, Simons, J., presiding, overruling a demurrer to the complaint. cited Gatlin v. Fletcher, 9 Minn. 75 (85;) Schurmeier y. Johnson, 10 Minn. 250 (319, •322;) Hill v. Edwards, 11 Minn. 5 (22;) Berthold v. Fox, 13 Minn; •462 (501;) McKusick y. County of Washington, 16 Minn. 135 (151;) First National Bank y. National Marine Bank, 20 Minn. 49 (63;) •City of Winona y. Thompson, 24 Minn. 199; Jaggar v.…

Appeal by the railway company from an order of the district court-for Rock county, Perkins, J., presiding, refusing a new trial in condemnation proceedings.

Appeal by defendants from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint.

<p>Appeal by defendants from an order of the municipal court of Minneapolis, refusing a new trial.</p>

The plaintiff brought this action in the district court for Bamsey county, to recover half of the profits made upon the purchase and resale of certain real estate, it being alleged in the complaint that the plaintiff and the defendants entered into an agreement to purchase the land in question, the title to be taken in the name of the defendant Anton Jordan, the plaintiff and the defendants each to furnish one-half of the necessary money, and each to have one-half of the…

In a former action between these defendants as plaintiffs and this plaintiff (a corporation) as defendant, the then plaintiffs had a verdict, and the then defendant appealed to this court from an order refusing a new trial, and the order was reversed. Paulson v. D. M. Osborne é Co., 35 Minn. 90.

Appeal by defendant from an order of the district court for Le Sueur county, Macdonald, J., presiding, refusing a new trial after a verdict of $3,000 for plaintiff.

On May 1, 1877, the auditor of Nobles county sold and assigned to one Henry D. Winters a certificate of tax sale made to the state in 1875. This tax sale was afterwards declared void in an action-tried in the district court for Nobles county.

Plaintiff brought this action before a justice of the peace of Scott county, to recover the value of a cow alleged to have been killed by the negligence of the defendant. The defendant appealed upon questions of law to the district court, where the judgment of the justice was affirmed by Edson, J., with double costs. Defendant appeals from the judgment of the district court.

Appeal by defendant from an order of the district court for Henne-pin county, Lochren,. J., presiding, refusing a new trial.

Action to determine adverse claims to land in Kanabec county, brought in the district court for that county, and tried by Crosby, J., ■without a jury. The facts found are, in substance, as follows: On September 19, 1870, one George W. Nesbitt entered the land in question at the land-office at Taylor’s Falls, and received the receiver’s receipt.

Appeal by defendant from an order of the municipal court of Minneapolis,. overruling a demurrer to the complaint. The action is brought to recover for the taking and conversion, by the defendant, of certain personal property. The complaint sets out the interest of the plaintiff as that of a mortgagee, a copy of the mortgage being attached, and the certificate of acknowledgment being as stated in the opinion.

Contract of Sale — “ Conveyance.” — A contract for the sale of real estate is a “conveyance,” within the meaning of the statute. Plaintiff brought this action in the district court for Ramsey county, to determine the adverse claims of the defendant to certain land. In his answer the defendant alleged that the plaintiff had contracted in writing to sell the land to him, and offered to perform.

Appeal by defendant from a, judgment of the district court for Scott county, where the action was tried by Macdonald, J., without a jury-.

<p>XTegotiable Instrument — ■ Indorsement —Defences—Partnership.— Defendant made his promissory note to J., by whom it was indorsed before maturity to Wilcox, who indorsed it to plaintiff, by whom this action is brought upon it. Upon the theory that the note fell due while in Wilcox’s hands, and before its indorsement to plaintiff, defendant undertakes to defeat the action by setting up a claim against Wilcox on account of unsettled partnership business between them, as the result of which he claims Wilcox will, upon accounting and settlement, owe him a balance. Held, that the defendant cannot, at any rate, be allowed to thus set up said matter without any accounting between him and Wilcox, and that he cannot have such accounting unless Wilcox is made a party to the proceeding in which it is sought.</p>

Plaintiff brought this action in the district court for Hennepin county, to recover damages for being forcibly ejected from the defendant’s train under the circumstances stated in the opinion. Upon the trial, before Rea, 3., and a jury, when the plaintiff rested, the action was dismissed on defendant’s motion. Plaintiff appeals from an order refusing a new trial.

Plaintiff brought this action in the district court for Otter Tail county, to recover $80.50, the value of goods alleged to have been sold and delivered to the defendant. The answer alleges the oral agreement recited in the opinion, and that the goods in question were furnished thereunder, and that plaintiff failed to perform the agreement.

Appeal by plaintiff from an order of the district court for Polk county, sustaining a demurrer by defendants Brunelle and wife to the complaint, which alleges, in substance, the following facts: On March 28, 1881, one Hubert St. Arnault was the owner of two 80-acre tracts of land, and mortgaged them to Hammond and Bush, the mortgage being duly recorded on March 29, 1881.

Appeal by defendants from an order of the district court for Fillmore county, Farmer, J., presiding, refusing a new trial. The action was brought on the official bond of defendant Langum, as sheriff.-

Action of unlawful detainer in the municipal court of St. Paul. Appeal from the judgment directing the issuance of a writ of restitution. The complaint merely alleged that plaintiff is the owner and entitled to the possession of the premises described, and that the defendants are illegally and unlawfully in possession, and illegally, unlawfully, and forcibly detain the same.

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried before Lochren, J., and a jury.

The plaintiffs brought this action in the district court for Winona county, to recover rent due upon the lease described in the opinion, and to enforce a lien for the payment of the same upon the personal property in the possession of the defendant Hannibal Choate, as as-signee of the defendant Ressler.

Plaintiff brought this action in the district court for Ramsey county, to recover the amount of a check which he alleges that he delivered to the defendant, and which he alleges the defendant had cashed but refuses to'give the plaintiff credit for it.

The defendant was incorporated on March 27, 1884. The plaintiff was one of the promoters and organizers of the defendant, and became an incorporator, stockholder, director, and officer. On June 26, 1884, he sold his stock, and ceased to have any interest in the defendant. On January 16, 1884, the plaintiff purchased certain real and personal property used in the business of laying down concrete pavements, giving back a mortgage for part of the purchase-money.

The insolvent was supposed to have been organized as a manufacturing corporation, under the provisions of Gen. St. 1878, c. 34, §§ 120-143, and did business as such, and incurred large indebtedness. The certificate provided for in Gen. St. 1878, c. 34, § 128, was not verified. In all other respects the requirements of the statute were complied with.

Appeal by plaintiffs from an order of the district court for Bamsey county, Simons, J., presiding, granting a new trial, after a verdict for plaintiff.

Plaintiffs brought this action in the district court for Otter Tail county, to recover for goods alleged to have been sold and delivered to'defendant. The action was tried, without a jury, before Baxter, J., who ordered judgment for defendant. Plaintiffs appeal from an order refusing a new trial.

Quo warranto to ascertain by what authority an association styling itself the “American Life Association” assumes to act as, and exercise the powers of, a corporation.

Plaintiff brought this action in the district court for Ramsey county, for specific performance of an agreement of which the following is a copy, viz.: “Real Estate Conteaot of Sale. “$75.00.

Appeal by defendant from an order of the district court for Waseca county, Buckham, J., presiding, refusing a new trial after a verdict for plaintiff.

Appeal by defendant from an order of the district court for Henne-pin county, Lochren, J., presiding, refusing a new trial, after a verdict for plaintiff. Lusk é Bunn, for respondent, cited May v. Western Assur. Co., 27’ Fed. Eep. 260; Bodine v. Exr.umge Fire Ins. Co., 51 N. Y. 117,123;. McGraw v. Germania Fire Ins. Co., 54 Mich. 145; Schomer v. Hekla Fire Ins. Co., 50 Wis. 575; Insurance Co. v. Folsom, 18 Wall. 237,. 251; Hallock v. Ins.

Plaintiff brought this action in the district court for Hennepin •county, to enjoin a sale upon execution under the circumstances recited in the opinion. Defendants appeal from an order by Rea, J., .granting plaintiff’s motion for judgment upon the pleadings. cited, among other cases,' Harris v. Frank, 29 Kansas, 200.

Appeal by plaintiff from a judgment of the district court for Le Sueur county, where the action was tried before Macdonald, J., and a jury, and a verdict directed for defendant.

Appeal by plaintiff from an order of the municipal court of Minneapolis, vacating and setting aside the service of the summons herein upon the defendant. It appeared that the defendant was at the time of the service a resident of the state of Iowa, but came into this state for the sole purpose of attending and testifying as a witness on a trial in the municipal court of Minneapolis, and was in actual attendance upon that court when the summons in this action was served.

Plaintiff brought this action in the district court for Murray county, to recover for services alleged to have been performed at the request of the defendant, and, upon the trial before Perkins, J., and a jury, had a verdict for $1,311. Defendant appeals from an order refusing a new trial.

Appeal by defendants from an order of the district court for Ramsey county, Brill, J., presiding, overruling their joint demurrer to the complaint.

Appeal by defendant from an order of the district court for Good-hue county, McGluer, J., presiding, refusing a new trial, after a verdict for plaintiff.

Appeal by plaintiff from an order of the district court for Hennepin county, Rea, J., presiding, sustaining the demurrer of the defendant ■Couch to the complaint.

Appeal by defendant from an order of the district court for Hen-nepin county, Young, J., presiding, refusing a new trial.

The defendant James Thompson, being the owner of the premises described in the complaint, on October 28, 1880, mortgaged them to one Easton, to secure the payment of $6,000, and the mortgage was duly recorded on October 30, 1880. Thereafter the mortgage was duly assigned to the defendant John M. Thompson, as trustee for Sarah Thompson. Sarah Thompson died intestate on October 6, 1886, leaving her surviving seven children, one of whom is the defendant James Thompson.

Appeal by defendants from an order of the district court for Scott county, Macdonald, J., presiding, vacating a judgment entered upon default, and allowing the defendants to answer, upon the conditions recited in the opinion. A former appeal in this action is reported in 35 Minn. 191.

Plaintiff brought this action, in 1884, in the district court for Sib-ley county, against Philip McGrann and Honora McGrann, his wife, to enforce specific performance of a contract for the conveyance of land.

Plaintiffs brought this action in the district court for Sibley county,, to determine the adverse claims of the defendants to certain lands. The action was tried before a referee, who found that the plaintiffs-.are the owners of the lands, having acquired title thereto under the tax sale under Laws 1881, c. 135, and that the defendants have no right or title thereto, and directed judgment accordingly.

The plaintiff brought this action in the district court for Otter Tail county to recover damages for the alleged conversion of two horses by the defendant. Upon a trial before Baxter, J., and a jury, the plaintiff had a verdict, and he appeals from an order granting a new trial.

<p>Appeal by defendant from an order of the district court for Henne-pin county, Rea, J., presiding, refusing a new trial.</p>

The plaintiff, suing for himself and all other citizens and taxpayers of the town of Taylor’s Falls, brought this action in the district court for Chisago county, to restrain the defendant Fox from enforcing a judgment obtained by him by default against the town of Taylor’s Falls, and to restrain the town and its officers from paying such judgment, and from paying the defendant Fox anything upon the alleged contract upon which the judgment was rendered, the complaint…

Action in the district court for Hennepin county upon a promissory note made by defendant. Plaintiff appeals from an order by Young, J., refusing a new trial, after a verdict for defendant.

Appeal by the defendant the Northern Pacific Bailroad Company from an order of the district court for Steams county, Collins, J., presiding, refusing a new trial.

The plaintiff brought this action in a justice’s court, upon the contract set out in the opinion, and recovered judgment. The defendant appealed, upon questions of law and fact, to the district court for Le Sueur county, where the action was tried before Macdonald, J., without a jury, and judgment directed for plaintiff. Defendant appeals from an order by Edson, J., refusing a new trial.

Appeal by defendant from an order of the district court for St. Louis county, Stearns, J., presiding, refusing a new trial. Defendant’s fourth, fifth, and seventh requests for instructions to the jury, which were refused by the trial court, and which are referred to in the opinion, are as follows: “Fourth.

Ejectment. Appeal by plaintiff from an order of the district court for Houston county, Farmer, J., presiding, overruling a demurrer to a counterclaim set up in the answer.

Plaintiff brought this action in the district court for Washington county, to obtain a partition of certain real estate owned, as alleged in the complaint, by the plaintiff and the defendants Hamilton, Orff, and Boughton as tenants in common.

Appeal by plaintiff from an order of tbe district court for Blue Earth county, Severance, J., presiding, sustaining a demurrer to the complaint.

The St. Paul & Northern Pacific Railway Company presented its petition to the district court for Ramsey county, alleging that it is a corporation invested with power to construct a railroad from Brain-erd to Mankato by way of Minneapolis and St. Paul; that it has constructed its railroad from Brainerd to a point in the city of St. Paul about 200 feet southerly of Seventh street and immediately adjacent to the westerly side of the right of way of the St..

Appeal by defendant from an order of the district court for Polk county, Stearns, J., presiding, refusing a new trial after a verdict for-' plaintiff.

An application was filed in this court, in each of the above-entitled matters, setting out the following facts, viz.: The respondents Francis B. Bailey and Stephen Mahoney were elected respectively judge .and special judge of the municipal court of Minneapolis, at an election held on the first Tuesday in April, 1883, for the term of four years and until their successors should be elected and qualified.

Plaintiff brought this action in the district court for Swift county, •to determine the title to certain land. The action was submitted upon stipulated facts, which are in substance stated in the .opinion, and judgment was directed by Brown, J., in favor of plain.tiff, from which judgment defendant appeals.

Appeal by defendant Berryhill from a judgment entered upon his default in the district court for Ramsey county, Wilkin, J., presiding. A statement of the case will be found in the report of a former appeal, 36 Minn. 117.

Appeal by plaintiff from an order of the district court for Nicollet •county, Webber, J., presiding, reversing a judgment of a justice’s •court.

Appeal by defendant Fitzgerald from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial.

Plaintiff brought this action in the district court for Hennepin -county, upon certain drafts or bills of exchange alleged to have been accepted in writing by the defendant. Upon the trial bfefore Rea, J., and a jury, a verdict was directed for plaintiff. Defendant appeals .from an order refusing a new trial.

Appeal by plaintiffs from an order of the district court for Henne-pin county, Young, J., presiding, refusing a new trial. cited Kipp v. Fullerton, 4 Minn. 366, (473;) Reynolds v. La Crosse, etc., Co., 10 Minn. 144, (178, 186;) Gemmell v. Rice, 13 Minn. 371, (400;) Paine v. Mooreland, 15 Ohio, 436, 444, (45 Am.

Plaintiff brought this action in the district court for Hennepin county, to recover for the alleged conversion by defendant of logs and timber wrongfully cut and removed from land alleged to belong to the plaintiff. The answer denied plaintiff’s ownership of the land or of the logs and timber.

In laying out a highway between the towns of Beaver and Le Roy a portion of plaintiff’s land was taken, and the supervisors in their order and determination refused to allow him any damages, upon the ground that the benefits equalled the damages. Plaintiff appealed to the district court for Fillmore county, where a trial was had before Farmer, J., and a jury, and the plaintiff had a verdict of $100. The defendants appeal from an order refusing a new trial.

The Cedar Rapids, Iowa Falls & Northwestern Railway Company appealed to the district court for Rock county from an award of commission ers appointed in proceedings to condemn land of the respondents for the use of the railway company. A trial was had before Perkins, J., and a jury. The railway company appeals from an order refusing a new trial.

Plaintiff brought this action in the district court for Rice county, to restrain the defendants from enforcing a judgment rendered in an action to enforce a mechanic’s lien. The action was submitted to the court, Buckham, J., presiding, upon an agreed statement of facts, and judgment was directed for plaintiff. From this judgment the defendants appeal.

Plaintiff brought this action before a justice of the peace, to recover damages for the alleged unlawful occupation and use of a part of his land by defendant. The answer was a general denial. A trial was had and judgment rendered for plaintiff. Defendant appealed, upon questions of law alone, to the district court for Nicollet county, where the judgment was reversed by Webber, J. Plaintiff appeals from the judgment of reversal.

The defendant was tried and convicted, in the district court for Hennepin county, on an indictment for “the crime of publicly selling property upon Sunday,” and appeals from an order by Rea, J., refusing a new trial.

Appeal by defendant Herriott from a judgment of the district court for Polk county, where the action was tried before Stearns, J., and a jury. The action is brought upon notes made in the name of Kimberly & Herriott. The defendant Herriott only was served with summons.

The plaintiffs brought this action in the district court for Waseca ■county, against Nils P. Hansen and G. B. Buckman, to compel the delivery to plaintiffs by defendant Buckman of a deed executed by defendant Hansen and his wife. The action was tried before Buck-ham, J., and judgment directed and entered for plaintiffs, from which the defendant Hansen appeals. ;

Plaintiff brought this action in the district court for Yellow Medicine county, to recover for the alleged conversion of wheat-. The answer denied plaintiff’s ownership and set out that the defendant, as. sheriff, had levied upon and sold the wheat under an execution against: one James Allen.

The plaintiff brought this action in the district court for Washington county, to recover the proceeds of logs of plaintiff, which had been received by defendant from the Bt. Croix Boom Corporation, and by him sold. The action was tried before McCluer, J., without a jury, and judgment ordered for plaintiff. Defendant appeals from an order refusing a new trial.

Appeal by defendant from an order of the district court for Wadena •county, Baxter, J., presiding, refusing a new trial.

The plaintiff, claiming to be the owner of an undivided one-twelfth of certain land in Eamsey county, brought this action in the district court for that county, to determine the adverse claims of the defendant thereto. The action was tried before Simons, J., without a jury, and judgment directed for plaintiff. Defendant appeals from an order refusing a new trial. The probate court had no jurisdiction to appoint Hoyt an administrator, and he never became such administrator.

Appeal by plaintiff from an order of the district court for Mower county, Farmer, J., presiding, dismissing an appeal by plaintiff from a judgment rendered in a justice’s court, upon the ground that the court did not have jurisdiction of the person of the defendant. cited Atwood v. Landis, 22 Minn. 558; Lyons v. Rafferty, 30 Minn. 526; Elliott v. Hart, 7 How. Pr. 25; Crandall v. Beach, 7 How.

Appeal by plaintiffs from an order of the district court for Houston county, Farmer, J., presiding, refusing a new trial.

Appeal by Maurice Auerbach and others from an order of the district court for Bamsey county, ¡Simons, J., presiding, denying their petition for the appointment of a receiver of the insolvents Walker, Judd & Yeazie, upon the ground that the petitioners are not creditors of the insolvents.

The firm of Bristol & McArthur made an assignment for the benefit of creditors, under the provisions of Laws 1881, c. 148, to A. M. Peabody. At the time of the assignment, on August 28, 1885, the insolvents were occupying premises under a lease which by its terms would not terminate till 1890. The lessor, Amherst H. Wilder, filed with the assignee a claim against the insolvents for the rent to accrue under the lease for the full term, amounting to over $15,000.

Appeal by plaintiff from a judgment of tbe district court for Morrison county, where the action was tried before Collins, J., without a, jury. upon the question of tbe validity of a printed signature to a summons, cited Ames v. Schurmeier, 9 Minn.. 206, (221;) Farmers', etc., Trust Co. v. Dickson, 9 Abb. Pr. 61; Hamilton v. State, 103 Ind. 96; Morey v. Morey, 27 Minn. 265; Holmes. v. Campbell, 12 Minn, lél, (221;) Feller v. Clark, Sty Minn. 338, (31.

Appeal by defendant from an order of the district court for Scott county, Macdonald, J., presiding, refusing a new trial, the defendant having been convicted of obstructing a public highway. „

Plaintiff brought this action in the district court for Freeborn county, to recover the possession of personal property. The defendant for answer alleged that the property in question belonged to one Frederick Tunell, who had transferred it to plaintiff to defraud his creditors, and that the defendant as sheriff had levied upon it under executions against Frederick Tunell. The action was tried before Farmer, J., and a jury, and plaintiff had a verdict.

Plaintiff brought this action in the district court for Wadena county, for specific performance of an oral agreement for the sale of real property. The action was tried before Baxter, J., and judgment directed and entered for defendant, from which the plaintiff appeals.

The plaintiffs, who are the owners of land fronting on Pleasant -avenue in the city of St. Paul, brought this action in the district ■ court for Eamsey county, to restrain the St. Paul City Railway Company and the other defendants, who are its officers and agents, from laying and operating a street railway on Pleasant avenue.

The plaintiff, a citizen, freeholder, and tax-payer of the county of Lac qui Parle, brought this action in the district court for that county, o restrain the. defendants, who are the county officers, from removing the county-seat from Lac qui Parle to Madison. A temporary writ of injunction was granted by a court commissioner.

The plaintiffs, tax-payers of Murray county, brought this action in the district court for that county, to restrain the defendants, who are the county officers of the county, from taking proceedings for the holding of an election for the removal of the county-seat, in accordance with the provisions of Laws 1885, c. 272. The defendants appeal from an order by Perkins, J., overruling a demurrer to the complaint.

The plaintiff (a corporation) brought this action upon two notes, ■each for $130, which had been given by the defendant for part of the purchase price of a harvesting-machine. The answer admitted the making of the notes, and set up as a counterclaim damages for breach of warranty made upon the sale of the machine. The action was tried in the district court for Faribault county, before Severance, J., and a jury, and defendant had a verdict for $5.

Plaintiff brought this action in the district court for Ramsey county, to recover damages for the libel alleged to be contained in the following article published by the defendant, viz.: “But Mr. Donnelly is no exception to the rule that in the great majority of cases libel suits for pecuniary damages are only brought •against reputable newspapers by the meanest sort of scallawags, shysters, and adventurers.

Plaintiff brought this action in the district court for McLeod county, to reform and foreclose a mortgage. Certain issues of fact, involving the questions whether the defendant B. S. Lewis purchased the premises in controversy in good faith and without notice of plaintiff’s mortgage, and whether J. Y. Y. Lewis acted as agent for B. S. Lewis in such purchase, were submitted to a jury, who found in favor of plaintiff.

Appeal by plaintiff from a judgment of the district court for Clay county, where the action was tried before Collins, J., without a jury.. 0. Mosness, for appellant.

Appeal by plaintiff from an order of the district court for Waseca county, Buckham, J., presiding, sustaining a demurrer to the amended complaint. The decision on a former appeal in this action will be found in 35 Minn. 493.

The plaintiffs brought these actions m the district court for Hen-nepin county, to recover damages for personal injuries alleged to have been occasioned by the unsafe and dangerous condition of a street-railway track belonging to the defendant railway company, whereby the plaintiffs, while driving in the streets of Minneapolis in a buggy,, were thrown-therefrom and injured.

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, refusing a new trial, a verdict having been directed in favor of the defendant.

Appeal by defendants from an order of the district court for St. Louis county, Start, J., presiding, (acting for the judge of the 11th district,) overruling a demurrer to the complaint.

Appeal by defendant Pennington from an order of the district court for Pine county, Crosby, J., presiding, overruling a demurrer to the complaint, which alleged substantially these facts, viz.: The plaintiffs rendered labor and services for the defendant the Heath Lumber Manufacturing Company, between April 1, 1885, and August 1, 1885, in and about the business of carrying on and operating a sawmill and the manufacture of lumber, for the agreed sum of $48.

The plaintiff brought this action in the district court for Hennepin county, upon an insurance policy issued by the defendant, the property insured having been destroyed by fire.

The plaintiff brought this action in the district court for Otter Tail county upon a promissory note made by the defendant Charles J. Sawbridge, the payment of which was guarantied by the defendant O’Brien. The action was tried before Baxter, J., and a jury, and a verdict directed for plaintiff. Defendant O’Brien appeals from an order refusing a new trial. cited Nelson v. Munch, 28 Minn. 314; Hummel v. Beardsley, 31 Minn. 314; Newcomb v. Raynor, 21 Wend. 108, (34 Am.

The plaintiff was injured while in the employment of the defendant, and engaged, with others, in operating a pile-driver, and brought this action in the district court for St. Louis county to recover damages for such injury. The action was tried before Start, J., (acting for the judge of the 11th district,) and a jury, and plaintiff had a verdict for $4,000. Defendant appeals from an order refusing a new' trial.

Appeal by plaintiff from an order of the district court for Hennepin county, Rea, J., presiding, granting a new trial, after a verdict for plaintiff.

Appeal by defendant from a judgment of the district court for Hen-nepin county, where the action was tried before Lochren, J., and a jury, and a verdict of $2,958 rendered for plaintiff.

Appeal by plaintiff from an order of the district court for Hen-nepin county, Young, J., presiding, overruling a demurrer to the answer.

Quo warranto, to ascertain by what authority the respondent assumes to perform the duties of assessor in the village of Gaylord, in the town of Dryden, in Sibley county, the relator claiming to be the duly-elected and qualified assessor of such village.

Appeal by defendant from an order of the district court for Blue Earth county, Severance, J., presiding, granting a new trial, the action having been dismissed by the court when plaintiff rested her case.

Appeal by plaintiffs from an order of the district court for Bamsey county, Brill, J., presiding, sustaining the demurrers of the defendants to the complaint.

The plaintiff (a corporation) brought this action upon two promissory notes amounting to $175, made by the defendants.

The plaintiff brought this action in the district court for Mower county, against the defendants as surviving partners of the banking firm of Smith, Wilkins & Easton, upon a certificate of deposit in the following form, viz.: “MoweR County Bane, Austin, Minn., March 29, 1876. “L. S. Mitchell, Esq., has deposited in this bank seven hundred fifty and no-100 dollars, payable to the order of himself, in current bank notes, on the return of this certificate properly indorsed,…

Appeal by defendants from an order of the district court for Hen-nepin county, Young, J., presiding, refusing a new trial. The action was tried by the court, and judgment directed for plaintiff.

In proceedings in the district court for Hennepin county, to enforce payment of taxes delinquent on the first Monday of January, 1886, against lands in that county, the defendant Bartleson appeared and answered, as owner of certain lots in Minneapolis, alleging that a certain special assessment for the construction of a sidewalk in front of such lots was invalid, for the reason (among others alleged) that it was levied under a law (Sp.

Appeal by defendants from an order of the district court for Otter Tail county, Collins, J., presiding, refusing a new trial, after a verdict of $750 for plaintiff.

The defendant erected a telegraph pole in a public street in St, Paul, on land owned in fee by the plaintiff subject only to the public-street easement, and on this pole strung telephone wires, without-plaintiff’s consent or 'payment of compensation to him. Plaintiff thereupon brought this action in the district court for Bamsey county, for damages and an injunction.

Appeal by defendant from an order of the district court for Bamsey county, Simons, J., presiding, overruling a demurrer to the complaint, the allegations of which are, in substance, as follows: The plaintiffs, Louis E. Allen, Charles B. Frey, and Julius Adams, are officers and members of the Cigar-Makers’ Protective Union, No. 98, of the State of Minnesota, a branch and member of the Cigar-Makers’ International Union of America, composed of local union societies, and bring…

The defendant was indicted, tried, and convicted in the district •court for Hennepin county, of the crime of maiming another, and appeals from an order by Young, J., refusing a new trial.

Appeal by defendant from an order of the district court for Henne-pin county, Rea, J., presiding, refusing a new trial, after a verdict for .$2,500 for plaintiff.

Appeal by defendant from an order of the district court for Free-born county, Farmer, J., presiding, denying its motion to require the complaint to be made more definite and certain.

Proceedings by habeas corpus, begun in this court, to obtain the custody of an infant child. The return to the writ, among other matters, sets out proceedings by habeas corpus instituted in the district court for Scott county, by the relator Emma C. Lembke, in which were involved and determined the questions sought to be raised here. The answer to the return admits the proceedings in the district court for Scott county.

Certiorari, to review the proceedings of the council of the village-of Lamberton, in Redwood county, in reeanvassing the votes cast at an election under the local-option law. Upon the return the respondent moved to quash the writ.

The plaintiff brought this action in the district court for Ramsey “This agreement, made and entered into this 7th day of October, 1886, by and between Lyman C. Dayton and May I. Dayton, his wife, of the city of Aberdeen, Dakota territory, parties of the first part, and F. D. Hager, president of the St. Paul Land Company, and representing the said company, party of the second part, wit-nesseth that the said parties of the first part agree to sell and convey by good and…

Action for slander. Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried before Jiea, J., and a jury, and plaintiff had a verdict of $750. ■

<p>Pleading. — Matters in abatement may be united with other defences in the-same answer.</p> <p>Same — Defence of Prior Action Pending — Dismissal—Reply.—Upon a plea or answer showing the pendency of a former suit between the same parties for the same cause, it is competent for the plaintiff to dismiss the-first suit, and to set up such dismissal in his reply, which will constitute a good answer to such plea.</p>

Appeal by defendants from an order of the district court for Dakota county, refusing a new trial, after a trial before Crosby, J., and verdict for plaintiff.

Appeal by defendants from an order of the district court for Le Sueur county, Edson, J., presiding, refusing a new trial.

Upon the petition of the relators an alternative writ of mandamus was issued from the district court for Le Sueur county, directed to the defendant, Joseph Eachac, the register of deeds of that county, and requiring him to permit the relators, during reasonable office hours, to have free and unobstructed access to the records in his office which are not for the time being in use by him, and to permit the relators to make all necessary examinations of such records, and to…

Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial. When plaintiff parted with his report after presentation of his bill and the promise of defendant’s agent, Postleth waite, to pay the same, there was an account stated, and a right of action vested in plaintiff, which could only be destroyed by a release, or by receipt of something in satisfaction of the wrong.

Appeal by defendant from an order of the district court for McLeod county, Edson, J., presiding, refusing a new trial, after a verdict for plaintiff.

The plaintiff appeals from an order of the district court for Bam-sey county, Simons, J., presiding, refusing to vacate an order sustaining a demurrer to the complaint and to grant a new trial. The respondent moved to dismiss the appeal.

Appeal by defendant from an order of the district court for Fillmore county, Farmer, J., presiding, refusing a new trial, after a verdict for plaintiff. upon the point that the contract to convey was delivered, cited 3 Washb. Beal Prop. 294; 20 Cent. Law Jour. 44, note 6; Hatch v. Hashins, 17 Me. 391; Souverbye v. Arden, 1 John.

Appeal by defendant from an order of the district court for Hen-nepin county, Lochren, J., presiding, refusing a new trial after a verdict of $500 for plaintiff.

<p>Appeal by defendant from a judgment of the municipal court of Duluth, where the action was tried without a jury.</p>

Appeal by defendant from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial, after a verdict for plaintiff.

Appeal by the defendants Edward P. Brooks and Helen H. Brooks, (impleaded with Theodore G. Huntington,) from an order of the district court for Hennepin county, Lochren, J., presiding, sustaining a demurrer to their separate answer.

Tbe plaintiff brought this action in the district court for Rice county, to recover the sum of $6,666.67 deposited by it with the defendant as recited in the opinion, alleging that L. Z. Rogers, mentioned in the opinion, did not deliver to defendant the conveyance provided for in the receipt, on or before March 15, 1885.

Plaintiff brought this action in the district court for Clay county, to recover the possession of a horse. The action was tried before Baxter, J., and a jury, and plaintiff had a verdict. Defendant appeals from the judgment entered thereon.

The plaintiff brought this action in the municipal court of Minneapolis, to recover for services rendered the defendants under a written contract. The action was, tried without a jury, and judgment directed for the plaintiff. Among other defences the defendants pleaded as a bar to this action a former recovery by the plaintiff upon the same contract.

Negotiable Instruments — Indorsement by Corporation — Presumption of Authority. — Under Gen. St. 1878, c. 73, § 89, the possession of a note by an indorsee purporting to be indorsed by a corporation is prima facie evidence that it was so indorsed, without proof that the person who made it had authority to do so.

Habeas corpus, directed to the respondent Nils M. Holm, sheriff of Meeker county, with an ancillary writ of certiorari, directed to A. T. Xoerner and James B.'Atkinson, justices of the peace, to bring up the record of the proceedings upon which the relator was committed to the custody of the respondent Holm. Upon the returns the respondent moved to quash the writs.

The defendant was arrested upon a complaint charging him with having made an assault upon one Roberts, with intent to do great bodily harm, and was brought before a justice of the peace of Good-hue county for examination. Upon the examination the defendant filed with the justice an affidavit, as provided for in Gen. St. 1878, c. 65, § 20, and demanded that the proceeding be transferred to another justice of the peace.

Appeal by defendant from an order of the district court for Dodge -county, Buckham, J., presiding, refusing a new trial, after a verdict of $1,500 for plaintiff.

Appeal by plaintiffs from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial.

Plaintiff brought this action in the municipal court of Stillwater, to recover a balance due for services rendered. The action was tried by the court without a jury, and judgment directed for plaintiff. The ■defendant appeals from an» order refusing a new trial.

Plaintiff brought this action.in the district court for Clay county, to recover the possession of real estate. Upon the trial before Stearns, J., and a jury, evidence of the matters contained in the separate answer of the defendant Hattie Czizek was, upon plaintiff’s objection, excluded, upon the ground that the matters therein pleaded were not sufficient to constitute a defence to the action.

Plaintiff brought this action in the district court for Hennepin county, to recover the value of stone removed from a street in the city of Minneapolis, the plaintiff being the ownér of the land abutting upon that portion of the street from which the stone was taken, and the stone having been taken by contractors engaged in grading the street under a contract with the city.

Appeal by defendant from an order of the district court for Anoka county, Lochren, J., presiding, refusing a new trial, after a verdict for plaintiff.

Quo warranto. The information and answer show the facts recited in the opinion. The purposes of the respondents’ association, as set out in their articles upon'their attempted incorporation in 1883, were “to endow children under 12 years of age with a' fund to become theirs at .age, and'to afford mutual protection and relief to parents and others against the embarrassments often met in furnishing a more complete education to children.”

Plaintiff brought this action in the district court for Olmsted county, upon two promissory notes, one of which was signed by the defendants Severt Olson and Knut Thoe, and by one Fladigal, as makers, in the usual manner, and the other was signed by the defendants Olson and Thoe, and by one Gulson, as makers, in the usual manner.

The defendant was indicted in the district court for Hennepin county, and, upon a trial before Young, J., and a jury, was convicted of selling uninspected illuminating oil.

Habeas corpus, with an ancillary writ of certiorari, to bring up the record from the district court for Eamsey county. It appears from the writs and returns that the relator is in the custody of the respondent, who is sheriff of Eamsey county, under and by virtue of a warrant of arrest and extradition issued by the governor of this state, upon the requisition of the governor of Kansas.

At the general election held in November, 1886, James A. Quinn and James C. Markoe were opposing candidates for the office of coroner of Eamsey county. The board of canvassers found that Markoe had received the highest number of votes, and duly declared him to be elected. Quinn served notice of appeal to the district court, where the contest was tried and a recount made before Simons, J., who found that Quinn received the highest number of votes and was duly elected.

Appeal by defendant from an order of the district court for Wadena county, Stearns, J., presiding, refusing a new trial, after a verdict for plaintiff.

A. P. Orton appealed to tbe district court for Sherburne county from an order of the supervisors of the town of Haven laying out a highway, and appeals to this court from an order of the district court, Baxter, 3., presiding, dismissing the appeal.

The plaintiffs in this action are “The Trustees of the East Norway ^Lake Norwegian Evangelical Lutheran Church of Kandiyohi County, Minnesota,” and “The Trustees of the West Norway Lake Norwegian Evangelical Lutheran Church of Kandiyohi County, Minnesota,” and they brought the action in the district court for Kandiyohi county, to recover the possession of certain real property detained by the defendant, and of which the plaintiffs allege that they are the joint owners.

Peter Albert was appointed administrator of the estate of Ole Emerson Yolof, deceased, by the probate eourt of Otter Tail county. F. H. Lake filed a claim against the estate, which was disallowed by the probate court. Thereupon Lake made, served, and filed in the probate court a notice of appeal to the district court.

Appeal by defendant Gill from a judgment of the district court for Hennepin county, where the action was tried before Rea, J., without a jury.

Appeal by defendants from an order of the municipal court of Minneapolis, refusing a new trial after a verdict for plaintiff.

Plaintiff brought this action in the municipal court of Minneapolis, to recover the value of personal property, including a building, alleged to have been unlawfully converted by the defendant.

The plaintiff appeals from an order of the district court for Le Sueur county, Edson, J., presiding, refusing to allow or settle a proposed case. It appears from the record that judgment was entered in favor of the defendants, in the form recited in the opinion, on July 6, 1886, and it does not appear that the costs were ever inserted in the judgment. This appeal was taken on January 17,1887. Be-spondents move to dismiss the appeal.

The plaintiff brought this action in the district court for Otter Tail county, to recover for the alleged unlawful conversion of wheat. A jury was waived, and the action tried by Baxter, J., who ordered judgment for plaintiff, from which judgment the defendant appeals.

<p>Fraud — Misrepresentations to Third Person. — Where false and fraudulent representations are made to one person, with the expectation andpur-pose that they should be communicated to another, and they are so communicated to and acted on by him to his prejudice, the result of the fraud must be deemed to have been contemplated by the party making such representations, and he is liable therefor.</p> <p>Same — Unlawful Means to Lawful End. — The law will not lend its sanction to an act, otherwise lawful, which is accomplished by unlawful means.</p> <p>Jurisdiction Obtained by Fraud — Appearance — Answer — Waiver.— Where the service of process, as an attachment against the property of a non-resident, is procured by fraudulent devices, the court, on the discovery thereof, will refuse to exercise its jurisdiction, and turn the plaintiff out of court; and the facts disclosing the fraud may be set up by answer. An appearance by an answer which simply sets up facts showing want of jurisdiction, and protests against its exercise, and claims no other right, is not such an appearance as waives the objection.</p>

Appeal by plaintiff from an order of the district court for McLeod county, Macdonald, J., presiding, sustaining a demurrer to the complaint, the grounds of demurrer being (1) that the complaint does not state facts sufficient to constitute a cause of action, and (2) that several causes of action are improperly united.

Appeal by the defendant John Frazer from an order of the district court for Stearns county, Collins, J., presiding, refusing a new trial. The assignments of the accounts referred to in the opinion were indorsed upon the accounts, and were in the following form: “For value received I hereby sell, assign, transfer, and set over unto Middleton Reid, his heirs or assigns, the above and foregoing bill of account, and guarantee the same to be true and good. Dated January 17,1887.

<p> Quo warranto. </p>

Appeal by plaintiff from an order of the district court for Mille Lacs county, Collins, J., presiding, refusing a new trial.

Appeal by Alclis 0. Brainerd, intervenor, from an order of tbe district court for Otter Tail county, Baxter, J., presiding, sustaining a. demurrer to tbe complaint of intervention.

Appeal by defendant from an order of the district court for Waseca county, Buckham, J., presiding, refusing a new trial, after a verdict of $5,000 for plaintiff.

Appeal by defendant from an order of the district court for Le Sueur county, Edson,J., presiding, overruling a demurrer to the complaint. The facts set out in the complaint are, in substance, as follows : The plaintiff is a constable in Le Sueur county, and, as such constable, 'travelled 800 miles in pursuit of a criminal, for the purpose of arresting him upon a warrant issued by a justice of the peace and delivered to the plaintiff to be executed.

The defendant was tried, with two others, in the district court for Dakota county, before Crosby, J., on an indictment for murder in the first degree, and was found guilty of manslaughter in the first, degree. He appeals from an order refusing a new trial.

The plaintiff, who is a resident freeholder and tax-payer of the village of Sauk Eapids, brought this action in the district court for Bén-ion county, to restrain the defendants, who are the officers of the village of Sauk Eapids, from issuing the bonds provided for in Sp. Laws, 1887, c. 137. A demurrer to the complaint having been overruled •by Collins, J., judgment was entered for plaintiff, from which the de.fendants appeal.

Appeal by defendant from an order of the district court for Earn--sey county, Wilkin, J., presiding, overruling a demurrer to the complaint.

Appeal by defendant from an order of the district court for St. Louis county, Start, J., presiding, (acting for the judge of the 11th district,) refusing a new trial, after a verdict of $2,000 for plaintiff.

Replevin. The action was brought in the district court for Ramsey ■county, and tried before Kelly, J., and a jury, and plaintiff had a verdict, the jury assessing the value of the property at $158. De-iendants appeal from an order refusing a new trial.

Appeal by plaintiff (a corporation) from an order of the district-court for Grant county, Baxter, J., presiding, refusing a new trial,, after a verdict for defendant.

Appeal by defendant from a judgment of the district court for Chippewa county, Brown, J., presiding, affirming a judgment of a justice of the peace. The action wa,s brought to recover the value of services rendered, the plaintiff suing as an infant, by his next friend.

Plaintiff brought this action in the district court for Wilkin County, -to recover possession of certain personal property, alleging its value to be the sum of $600.

The plaintiff brought this action in the district court for Pope-county, to recover for the alleged conversion of wheat by defendant,, the sheriff of that county. The defendant justified the taking under writs of attachment against the property of one Thomas McDonald,, and denied plaintiffs title. The action was tried before Baxter, J.,, and a jury, and plaintiff had a verdict. Defendant appeals from an. order refusing a new trial.

Plaintiffs brought this action in the district court for Otter Tail county, to recover damages for alleged trespass committed by the defendant in cutting down and removing timber from the lands of the plaintiffs. The summons and complaint were personally served upon the defendant, on November 17,1883.

Plaintiff brought this action in the municipal court of Duluth, to recover for hay alleged to have been unlawfully taken and converted ■by the defendant. The action was tried, without a jury, by the court, who found that the defendant had taken and converted hay of the plaintiff of the value of six dollars, and directed judgment for $18, and disbursements. Defendant appeals from the judgment.

Appeal by the defendant from an order of the district court for Winona county, Start, J., presiding, refusing a new trial, after a verdict assessing plaintiff’s damages at $2,900.

Appeal by plaintiff from a judgment of the district court for St. Louis county, where the action was tried by Stearns, J., upon stipulated facts. cited Eaglesfield v.. Marquis of Londonderry, 4 Ch. Div. 693; 2 Pomeroy, Eq. Jur. §§ 842, 849; Broughton v. Hutt, 3 De Gex & J. 501; Cooper v. Phibbs, L. E. 2 H. L. 149; Lansdowne v. Lansdowne, Mosely, 364, 2 J. & W. 205; Reynell v. Sprye, 8 Hare, 222; Blakeman v. Blakeman, 39 Conn. 320; Evants v. Strode, 11 Ohio, 480, (38 Am.

The plaintiff brought this action in the district court for Blue Earth ■county, to recover.! 150, the value of a horse delivered by plaintiff to ■defendant for transportation, and whose death, as alleged in the complaint, was occasioned by the defendant’s negligence.

In February, 1887, the defendants, partners as Beede & Bray, made a voluntary assignment to Henry P. Herring for the benefit of their creditors, under the provisions of the insolvency act of 1881. Thereafter the plaintiff brought this action in the district court for Hennepin county, and garnished the assignee.

Appeal by plaintiffs from a judgment of the district court for Hen-nepin county, where the action was tried before Rea, J., without a jury. Upon defendant’s motion, before answering, the court struck out of the complaint the allegations as to inadequacy of price and of the failure to file an affidavit of costs and disbursements.

The plaintiff brought this action in the district court for Hennepin county, to restrain the defendant, who is clerk of such district court, from entering certain judgments in the judgment-book, and appeals from an order by Lochren, J., refusing a temporary injunction.

The plaintiff brought this action' in the district court for Nobles county, to recover the bounty provided for in Laws 1871, c. 30, for the planting and growing of trees. The action was tried by Perkins, J., without a jury, and judgment directed for defendant, from which the plaintiff appeals.

Appeal by defendant from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial.

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, refusing a new trial.

The plaintiff, as indorsee, brought this action in the district court for Winona county, upon a promissory note, against the maker, the indorsers, and the guarantors of payment. The defendants who were sued as guarantors alone answered, and the issues thus made were tried by Start, J., without a jury. Upon the facts found, judgment was directed for the answering defendants. Plaintiff appeals from an order refusing a new trial.

This action was brought in the district court for Hennepin county, and tried by Hicks, J., who ordered judgment for plaintiff for $12.63, the amount of his taxed costs, and $200, the amount of the attorney’s fees paid by him, in the former action brought against him by one Cobb, which is mentioned in the opinion. The defendants appeal from an order refusing a new trial. among other cases, cited Trap-nail y. McAfee, S Met. (Ky.) 34; State v. McHale, 16 Mo.