Volume 37 — Missouri Reports

Charles Circuit Court. I. Dick, conveying at a time when he was the owner of the whole of lot 18, Boone’s survey, through which Eighth street, when ablished, had to he located, by a deed of trust to King, trustee, that part of said lot 18 lying west of Eighth street, hereafter to be opened, and bounding the land so conveyed on the east by Eighth street, so mentioned, thereby reserved and dedicated the land required for Eighth street to the public in the event of sale under…

Charles Circuit Court. The petition was as follows: “William H. Smith and E. Leona Smith, by John M. Keithly, their guardian; Woodford Keithly and Mary M. Keithly, his wife, plaintiffs, v. Raphael Denny, Lawrence Eisher, Raphael Denny, executor of Rachel Denny, Raphael Denny, and Martina Denny, administrators of John Denny, defendants. — In the Circuit Court of St. Charles county, May term, 1865. “ Plaintiffs by leave of court file their amended petition, and state that…

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

<p>1. Insurance — Policy—Deviation— Warranty. — A time policy was issued upon a steamboat, which excepted the navigation of certain waters. After the issue of the policy, the boat made a trip upon the forbidden waters, and returned safely to port, and while in port was subsequently destroyed by fire. Held, that by the terms of the policy the insurance of the boat, while navigating the permitted waters, did not constitute a warranty, but only an exception to the perils insured against, and that the insurers were liable upon their policy.</p>

St. Louis Court of Common Pleas. I. The petition wholly fails to state a cause of action against the appellants. If they are to be held as endorsers of a negotiable note, the petition should allege that the note endorsed by them was “ for value received, negotiable and payable without defalcation.” Or if they are held as assignors of a non-negotiable note, the petition should state facts constituting their liabilities as such.

Louis Land Court. This was á petition, the object of which was to obtain a decree for the cancellation of certain conveyances of real estate, and to recover the possession of the property and have the title decreed to plaintiff.

<p> Appeal from, St. Louis Court of Common Pleas. </p>

Louis Circuit Court. The petition alleges, 1. That the defendant is the owner and in possession of a certain lot particularly described. 2. That the City of St. Louis, by authority of ordinance 4517, (not set out nor described or cited in any way,) contracted with said Lohrum for the macadamizing of a street, for the improvement of said street, in front of and adjoining defendant’s property. 3.

Louis Court of Common Pleas. This was an action brought by plaintiff against defendants on a bill of exchange or draft for $387.47, drawn by one Charles W. Wernz on the defendants.

Louis Criminal Court. While the indictment contains thirteen counts, the 1st, 2d, 3d, 8th, 11th and 12th counts were withdrawn from the jury ; the 4th, 5th, 6 th and 10th counts contain the same material averments, all charging a joint receiving of the stolen property by three different persons, varying only in the allegation of the ownership of the property without naming the thief; the 7th and 13th counts contain a joint charge' of receiving property which had' been…

William Penix, on 28th June, 1862, executed to the relators (who are the respondents here ) a mortgage with power of sale (filed for record July, 1862), conveying certain real estate and personal property, therein described, to secure debts due from him to some of said mortgagees, and to indemnify certain of them as his sureties.

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

Petition for Mandamus. I. The State Auditor is a ministerial officer, and has no discretion in the performance of a ministerial duty fixed by law. (13 Barb. 86; People ex rel. Stewart v. Newell.) II. The Auditor is required to audit and adjust all claims against the State, and when so audited and adjusted to draw a proper warrant upon the Treasurer for the payment of the same. (R. C. 1855, p. 1540, § 4.) III.

Louis Court of Common Pleas. I. An issue in pleading can be made only by the averment of a fact by the plaintiff and the denial thereof by the defendant. The testimony of witness King must have been taken on an issue thus formed, to be admissible after his death on the second trial below.

<p> Error to St. Louis Court of Common Pleas. </p>

<p> Appeal from St. Louis Circuit Court. </p> <p>I. Smith having failed to carry out his contract, the plaintiff cannot recover on the same, and in support of this position the appellant invokes the familiar principle of law that “ where a party enters into a contract which is entire for the sale and delivery of property at a specified price, a full performance on his part is a condition precedent to his right of action against the vendee for the price of any part of the property delivered under the contract.” (McKnight v. Dunlap, 4 Barb. 44, and cases there cited ; Paige v. Orth, 5 Den., N. Y. 406; Oakley v. Merton, 1 Kern., N. Y.25.)</p> <p>In our State the same doctrine has been applied to contracts for labor and service. (Schnerr v. Lemp, 19 Mo. 40, & Aaron v. Moore, 34 Mo. 79.) Smith had* agreed to furnish ice from May until the end of December, and having failed to do so the appellant contends that he cannot recover for any part of the ice furnished, although it was accepted by the defendant.</p> <p>rII. But if it be said that by Sander’s default in not paying the ice bill for June, when presented to him on the 8th of July, he first violated the contract and thereby placed it in Smith’s power to abrogate the contract altogether, we reply that Smith by accepting the part payments afterwards, and especially by continuing to furnish ice as before, waived the right reserved to him by the contract, and having once waived it, he cannot afterwards take advantage of the defendant’s laches. “ A right once waived is gone forever, and therefore after the waiver the parties stood in the same relation as though no default had ever occured.”</p> <p>The evidence fully sustains the allegations of the petition, and shows that respondent delivered the ice called for, and at the prices agreed upon, until appellant failed to pay for it as he was bound to do. The contract being thus broken by the appellant, the parties were at liberty to make any other or further agreement they chose. There is no pretence that the ice was not furnished as charged; the appellant only complains that he had to pay more for a part of it than originally agreed upon. For this he has no one to blame but himself; and even of this he cannot complain, because the evidence shows that he accepted it at the advanced price, and that such price was customary and usual. The judgment, therefore, should be affirmed, with damages.</p>

<p> Appeal from St. Louis Law Commissioner's Court. </p>

Louis Lmd Court. Defendant and one Hutton, on July 21, 1851, received a lease for ten years of a lot in the city of St. Louis, from the-trustees of Sarah Orme. Subsequently plaintiffs became the owners of the premises, and at the expiration of the lease re-let the premises, by parol, to defendant for one year, upon the same terms with the written lease.

Louis Court of Common Pleas. I. It appeared in evidence that the plaintiffs could have no persona standi in judicio, being public enemies, and the first instruction should have been given. (1 Gall. 366 ; U. S. v. 127 pkgs., 11 Am. L. Reg., 2 N. S., 419 ; -U. S. v. 100 bbls.',12 Am. L. R.; 3 N. S., 735 ; Mrs. Alexander’s cotton, 2 Wall.

<p> Appeal from, St. Charles Circuit Court. </p> <p>Plaintiff asked the following instructions:</p> <p>1. Peaceable possession of personal property is prima facie evidence of ownership, and in this case can only be rebutted by proof of title in the defendant himself. Evidence, therefore, tending merely to show that the colt in controversy belonged to some third person, not a party to this suit, cannot avail the defendant as a defence or justification of his taking the property out of plaintiff’s possession.</p> <p>2. If it appear from the evidence that the colt in controversy was in the peaceable possession of plaintiff for about twelve months, as of his own property, and that defendant, without the knowledge or consent of plaintiff, took possession of the same, and kept it until taken from him by legal process in this case, then the jury will find for the plaintiff, unless it is proven to their satisfaction by the evidence that the colt belonged to defendant.</p> <p>Defendant asked the following instructions:</p> <p>1. If the jury believe from the evidence that the horse in controversy is the same colt that came to plaintiff’s as a stray, the fact that he. took up said colt, and fed him for a year or so, does not give him any'title or right to the possession of said colt.</p> <p>2. Where the plaintiff sues for an animal, he must show title in himself to such animal, or that he is lawfully entitled to the possession thereof: and if the horse in controversy came into plaintiff’s possession when a colt, and did not then belong to plaintiff, and was a stray, plaintiff acquired no title or right to the possession of said colt under the stray law, though he may have nursed and fed said colt, and kept him up for a year or more, unless he has shown an exact compliance with the provisions of the law both as regards his own action and that of the justice of the peace before whom the colt was appraised; and in order to give him title or right to possession as a stray, he must show that when he took up the animal, if between the first of April and the first of November, it was found within his lawful enclosure; and if it was not taken up between these dates, then he must show that it was found on his plantation; that he was a householder, and that within ten days after he took it up he went before a justice of the peace of St. Charles county and made oath that it was taken up on his plantation, and that the marks and brands had not since been altered to his knowledge; that at least two disinterested householders took an oath that they would fully, fairly and impartially appraise the same; that they did appraise the same, and that their appraisement embraced a description of the size, color, sex, age, marks and brands of said stray, and that the justice of the peace entered the said description on his stray book; that the plaintiff, or justice, within fifteen days after such appraisement, delivered or caused to be delivered to the clerk of the County Court of St. Charles county a copy of such entry in his stray book; that plaintiff, immediately after the appraisement, caused a notice to be set up at three of the most public places in the township in which the stray was posted, containing a copy of the entry in the justice’s stray book. If plaintiff has not shown an exact compliance with and performance of the above requirements, he has no right to the possession of the horse or colt in controversy, and you will find a verdict for the defendant.</p> <p>3. If this horse is not the colt that plaintiff had possession of, you will find for defendant; and even if it is the same colt that plaintiff had and fed for some time as a stray, you will find for defendant, unless plaintiff has proven that he had the same appraised and posted in accordance with law.</p> <p>4. It is not necessary for the defendant to show that he is entitled to the possession of the horse sued for, but it is necessary for the plaintiff to prove that he is entitled to the possession of said horse; and if he has not proved his right to the possession of the horse, you will find for the defendant.</p> <p>Which the court refused to give, to which refusal the defendant excepted; and the court of its own motion gave the following:</p> <p>“ The jury are instructed that the burden of proof as to the right of possession is on the plaintiff; and unless the jury are satisfied from the evidence in the case that the defendant took the property in controversy from the possession of the plaintiff without his consent or knowledge, they will find for the defendant.”</p> <p>To which defendant excepted.</p> <p>I. The 1st and 2d instructions given for plaintiff are correct. (2 Greenl. § 618; 2 Hill. Torts, 1-13, 32; Criner v. Pike, 2 Head, Tenn. 398; Reader v. Moody, 3 Jones’ Law, 372; Gardiner v. Thibodeaux, 14 La. An. 732.)</p> <p>II. The 3d instruction given for plaintiff is correct. (1 Phil. Ev., C. H. & E. 453, 461-2; Ray.v. Bell, 24 111. 444, 452; Cafferata v. Cafferata, 23 Mo. 235.)</p> <p>III. The 1st, 2d and 3d instructions asked for by defendant were properly refused ; they assumed that the plaintiff could not maintain his action unless he had, under the provisions of the stray law, or otherwise, perfected a title in himself which would be good not only against the defendant, but against all the world. (See authorities above cited.)</p> <p>IY. As to the 4th instruction, the one given by the court of its own motion supersedes it, giving the law correctly to the jury in plainer and more comprehensive terms.</p>

<p> Appeal from Franklin County Circuit Court. </p>

Charles Circuit Court. I. The court erred in refusing to grant a new trial on the showing made of material mistake in the witnesses McKinney and Speed. The appellant was entitled to have his case tried with the full benefit of their corrected testimony. All the requisites of an application for new trial on that ground are presented in the affidavits, and it was the imperative duty of the court to set aside the verdict. (1 Gra. & Wat.

I. Only a single issue was presented by the pleadings in this case. The only material part of the defendant’s answer was the denial that the plaintiff’s intestate had made the deposit in question, and the court erred in refusing plaintiff’s instructions first asked for, raising this point. The remainder of the answer has reference to -a deposit alleged to have been made by the plaintiff of his own money and in his own right.

<p> Error to the Moniteau Circuit Court. </p>

I. The judgment of the court is in contravention of a public statute, and is void. 1. To sustain the proposition that the judgment is contrary to law, reference is made to the ordinance of the Constitutional Convention of this State, commonly known as the vacating ordinance, passed March 17, 1865. By this ordinance the office of sheriff of Lafayette county was vacated on the 1st day of May, 1865.

<p> Petition for Mandamus. </p>

This was an action in the nature of a trespass, brought by Stucker against Duncan, to recover damages for timber cut on certain tracts of land described in his petition. Duncan answered denying the trespass, and set up title in himself to the said land, described as the N.W. £ of the N.W. £ of sec. 15, the S.W. £ of the- S.W. £ of sec. 10, and the S. £ of the S.E. £ of sec. 9, all in township 46, range 8 west.

■ The only question arising on the record is as to the notice required by section 46 of the “Act to regulate executions.” (R. C. 1855, p. 746.) Under the facts of this case, was such notice necessary ? The said section was evidently intended for the protection of defendants, who owned lands in counties other than that in which judgment was rendered. It was to prevent property being sold secretly and at a sacrifice, without the knowledge of debtor defendants.

This is a suit in attachment on a promissory note for $2,000', dated September 20, 1847, and payable six months after date, signed by J. C. Irwin, S. EL Woodson and S. S. Bartleson.

<p> Petition for Mandamus. </p>

<p>1. Securities — Contribution.—The makers of a promissory note who hare signed the same as securities are liable to the holder for the full amount o£ the note. Secs. 7 & 8 of R. C. 1855, p. 1456, apply only to eases where one security is sued by his co-security.</p>

An attorney is not liable for money collected until demand made upon him.

This was an action instituted in the Circuit Court for Greene county, by respondent against appellant, on two promissory notes, on which Bailey alleged in his petition a partial payment had been made, but that Kimbrough had obtained possession of the notes by fraud, and wrongful and fraudulent representations, &e., and claimed judgment for the balance of the principal and interest due on said notes.

Plaintiff asked the following instructions, to-wit: 1. The court instructs the jury, that a constable is liable on his bond if he fail to make return of execution according to the command thereof, and is also liable if he makes a false return. 2.

This was an action commenced in the Greene Circuit Court by Gibson against Jno. Lair and C. B. Holland. The petition set forth that Lair in the year 1860, being the owner of certain real estate in Greene county, sold the same to plaintiff Gibson for $350, and executed and delivered to plaintiff a contract in writing whereby he covenanted to convey said land to plaintiff on payment of said sum.

<p>1. Criminal Practice — Indictment—Merchant.—An indictment -which charges the defendant with unlawfully dealing, as a merchant, at his place, &e., without having a license, &c., by selling, &c., although informal, is good upon motion to quash, as the defect does not affect the substantial rights of the defendant. (State v. Cox, 32 Mo. 566.)</p>

Greene County Probate and Common Pleas . Court. The-court erred in setting aside the judgment. The record shows service on the respondent by delivering copy of the petition and writ to him October 6, 1862.

The first declaration of law asked by defendant was based on, and in conformity to, the evidence adduced, and is but an embodiment of the 53d section of the “ Act concerning evidence” (R. O. 1855, p. 732).

<p>1. Equity — Injunction—New Trial. — A party who has failed to make his defence to a suit at law, and seeking the interposition of a court of equity, must show some substantial ground of relief which will bring the case under some head of equitable jurisdiction; such as fraud of the opposite party, uncontrollable accident, or mistake, unmixed with negligence or fault on his part. (Matson v. Eield, 10 Mo. 100.)</p>

Appeal- from Christian' Circuit Court. ■ This is a proceeding'by á surety, who claims to have paid the judgment, to enforce contribution from a co-surety, through an execution issued on that judgment in favor of the credit- or. The answer (joint answer of all the defendants) admits that Cummins, one of- the three sureties, is the assignee of the judgment, and that the amount thereof is justly due him.

I. Both plaintiff and defendant claim title through Alfred J.Moore. The time of the sheriff’s sale of the hotel is admitted. The principle that a sheriff cannot sell personal property without a seizure and taking it into possession is too well settled to admit of doubt. (Yeddell v. Barnes, 15 Mo. M3; 2 Bac. Abr. 734; 9 East. 474; B. C. 1855, p. 753, § 74; Carpenter v. Stillw.ell, 1 Kern. 73.) II.

This suit is a proceeding commenced by injunction in the Callaway Circuit Court by Hayden against Tucker, to restrain a nuisance. A temporary injunction was applied for and granted.

<p>1. Crimes — Malicious Trespass — Evidence.—Upon the trial of an indictment for unlawfully and maliciously taking down and removing a house, evidence that the defendant removed the house at the request of one who occupied and had apparent control of the premises is admissible to rebut the malicious intent. (E. C. 1855, p. 584.)</p> <p>2. Crimes — Malicious Trespass. — Although the defendant may have taken down and moved a dwelling-house without authority, a malicious intent must be proven, and is not to be presumed from the want of authority.</p>

The rule of law that strictly construes the powers granted to a corporation, and requires all acts to be done in strict conformity with the provision of the act conferring the power, does not apply the construction of the ordinances passed by such corporation, and acts done by its officers in carrying out and executing a general power clearly granted, where the manner of the execution of the power is left to the discretion of the corporation.

On the 19tli day of August, 1862, respondents commenced suit in the Circuit Court of Buchanan county, to recover the sum of 115,000 for injuries which Amanda, wife of Orlando Sawyer, received on the night of the 8d of September, 1861.

<p> Appeal from Livingston Circuit Court. </p>

Petition for Mandamus. I. That the return of the defendant shows no legal cause for refusing to sign said bond ; and said return admitting the truth of the facts in the petition, the writ of mandamus… Held: except by relying upon the number of votes polled at said special election as compared with the number of votes polled at the general election for city officers immediately preceding. III.

I. The court improperly overruled the objection of defendants to Hart’s deposition. (Caldwell v. Garner, 31 Mo. 138 ; Parrish v. Frampton, 32 Mo. 397; Bruce to use, &c.,v. Sims et al., 34 Mo. 246; R. C. 1865, § 6, pp. 1577-8.)' II. The court improperly overruled defendants’ objections to Hooper’s deposition. (See authorities above cited.) III.

The plaintiff and appellee cannot recover in this case. The suit is brought on the collector’s bond, and the sureties cannot be made liable in such case unless it is upon a breach of some specific condition or requirement of the bond. In this case, both by the law and by the conditions contained in the bond, as well as by the process or tax book placed in his hands, the collector was required to levy and collect the taxes therein assessed and set forth.

<p> Appeal from Linn Circuit Court. </p>

I. An action does not lie for a reasonable exercise of one’s right, though it be to the injury of another. (Philad. &■ Read. R.R. Co. v. Yeiser, 2 Am. R.R. Cas. 325, and authorities there cited; s. c. 8 Barr, 366; Burroughs v. Housat. R.R. Co., 2 Am.

<p>Practice — Jury—Constitution.—In trials at common law in courts of record, the parties are entitled to a jury of twelve men as a matter of constitutional right, and any consent to waive this right .must be entered of record. If such consent do not appear of record, the party may avail himself of the objection by motion in arrest of judgment.</p>

<p> Appeal from, Sullivan Circuit Court. </p>

<p>Estoppel — Judgment—Practice.— If a judgment be erroneous or irregular, it must be reversed or vacated in a direct proceeding instituted for that purpose. In a suit upon the judgment, its conformity to law cannot be inquired into.</p>

<p>Practice — Demurrer.—An instrument of writing sued upon, and filed with the petition, constitutes no part of the pleading, and cannot be considered in determining the sufficiency of the pleadings.</p>

I. This suit is not based upon any statute to- recover any penalty; it does not purport to be. It totally fails to show any cause of action under any statute. It is not alleged that appellant is even a corporation of this State. This it is necessary to do, in order to show a cause of action, where none existed at common law.

I. The tax deed, read in evidence by Taylor, as the basis of his adverse possession, only related from the time of its date, 6th August, 1853, and not from the time of the sale recited therein (Darrah v. Yeal, 19 Mo. 331). The suit being commenced 13th July, 1862, ten years did not elapse. II.

<p> Appeal from Buchanan Comity Covimon Pleas Court. </p>

If language is used which has a technical or local or provincial meaning which is not understood by the court, or when words have a particular meaning when used in connection with a particular kind of transaction, the court should admit parol evidence to apply or explain the particular words used. (1 G-reenl.

I. The court improperly refused to give the third and fourth declarations of law asked by defendant. (R. O. 1845, pp. 716-17; R. O. 1855, p. 1048 ; Acts 1856-7, pp. 77-8.) II. This is a suit in fact for a debt founded on a liability other than a judgment of a court of record, and is governed by the statute of limitations of 1845. The act of 1855 concerning justices’ courts does not apply.

The petition was as follows : “Plaintiff states that on the 6th day of June, A. D. 1865, at the county of Worth aforesaid, the defendant, in the presence and hearing of divers citizens of said county, maliciously spoke of and concerning plaintiff the following false and slanderous words, that is to say: “I (meaning the defendant) was yesterday insulted by a bushwhacker, and James W. Curry (meaning plaintiff) was the man.’ ‘ A bushwhacker insulted me (meaning defendant), and…

<p>Practice — Pleading—Elections.—A petition in a suit against the judges of an election precinct for wrongfully refusing the plaintiff’s vote, must set out the faets.which give the plaintiff a cause of action, and show how he was entitled to vote, by stating the qualifications which gave him the right.</p>

<p>Bailment — Damages.—The owner of a slave may recover damages of a bailee, for an injury done to the slave by an inhuman and cruel beating, in consequence of which the slave returned to his master before the time for which he had been hired had expired.</p>

I. The court improperly excluded the proofs offered by plaintiff. (10 U. S. Statutes at Large, 8; Greenl. Ev. §§ 484-6.) II. It made at least a prima facie case of title in fee to the land in suit. (Acts of 1857, Adj. Sess., 54.) III. The statute of limitations did not commence running against plaintiff until the selection of land was affirmed by the Secretary of the Interior.

The court erred in refusing to set aside the verdict and grant a new trial, because one of the jury had, prior to the trial, expressed the opinion that appellant was guilty of the crime charged against him, and that he should be punished therefor, and upon his voir dire swore that he made no such expression ; and because the verdict of the jury was glaringly against the evidence in the cause, and manifestly against the law.

The statutes of Kentucky, relied on by the plaintiffs, and which were read in evidence, were only intended to cause the slaves of a married woman, owned by her at the time of her marriage, or which came to her by gift, devise, &c., during coverture, to be held and taken to be real estate for certain specific purposes ; that is, “ that no slave shall be liable to the debts of her husband, or be attached, levied on, or sold for his debts,” &c. It was not intended that the wife…

I. The first cause attempted to be set up by the defendant, as a cause of quashing the indictment, is not sufficient, for the reason it does not distinctly specify the grounds of objection to the indictment. (R. C. 1855, p. 1176, § 24.) II. It is not necessary that an indictment for administering medicine to a pregnant woman, to procure an abortion, should specify or describe the kind, quality, or quantity of the medicine charged to have been administered.

<p> Appeal from Ray Circuit Court.. </p>

<p> Appeal from Buchanan Circuit Court. </p>

The petition sot forth a contract made with plaintiff by defendants for the building of a church, alleged the performance of the contract, the acceptance of the work, and the amount due thereon; and then alleged, that more than three months before the commencement of this action, he gave the said defendants notice in writing that he would proceed to enforce his lien, by the sale of said church property, as is provided in said contract heretofore mentioned, for the purpose of…

The petition stated that defendant, by his deed of mortgage, conveyed to Charles Haley a tract of land — describing it — upon which stood a steam saw and grist mill, with boilers, machinery, &g., to secure a debt due to said Charles Haley, and that said deed contained a power of sale by said mortgagee, in default of payment.

The indictment charged that the defendant, with a certain knife, of the length of six inches, which he, the said Willis B. Ray, in his hand… Held: and which was then and there a deadly weapon, and held feloniously, did assault one Elihu Rowin, and him, the said Elihu Rowin, then and there, with the knife aforesaid, feloniously did wound, contrary to the form of the statute, &c. This is a case where the defendant was, at the September term, A. D. 1864, of the Worth Circuit…

<p>Criminal Practice — Demurrer.—A demurrer, or motion to quasli an indictment, must specify the grounds of objection. (JR. C. 1855, p. 1176, § 24.)</p>

I. It is no reason to authorize a court to quash an indictment that the defendant was a soldier in the army of the United States at the time of his being indicted. A soldier is as much subject to civil law as a civilian, upon the principle that the military is, and in all cases, and at all times, ought to be in strict subordination to the civil power. II.

The indictment should either have stated facts sufficient to show whether it was intended to charge defendant for selling liquor without giving the bond required by the law concerning dramshops, (R. C. 1855, p. 648, § 8,) or whether it was for failing to give the bond required under the act to tax and license merchants, (R. C. 1855, pp. 1073-7, §§ 1-4 & 22,) or wlietheivit was for selling liquors without giving the bond required by the law of 1861, entitled “ An act to…

PlaintifF sold to defendant a tract of land and received in payment shares of stock in a land association, regularly incorporated, known as the Central City Land Company. The. stock was taken at its value in the market at the'time. There was no charge or evidence of any fraud or misrepresentation made by the defendant as to the value of the stock. Subsequently the stock became worthless.

The indictment charges the defendant with but one of-fence, which was the feloniously stealing, taking, and carrying away of the property of different persons at the same time and place. The circumstances of several ownerships of the property does not increase or mitigate the offence. (Sutton v. State, 7 Mo. 55.) And the stealing of several articles of property at the same time and place, constitutes but one offence. (7 Mo. 55.)

Louis Land Court. This was an action by appellants to annul certain deeds, and for possession of 471 arpens of land in St. Louis county, being U. S. survey No. 141, in the name of John Graham. Graham conveyed the land to his daughter, Margaret Graham, by deed dated March 28,1812.

<p> Appeal from the St. Louis Land Court. </p> <p>This was a suit to enforce the specific performance of a contract for the sale of a tract of land in St. Charles county.</p> <p>The petition stated that on October 6th, 1867, he sold to the defendant a tract of land in the Portage des Sioux common fields, part of lots 122, 123,124,125, and 126, and then describing the same by courses and distances, and containing 159 44-100 acres ; that by the terms of sale, $2,500 were to be paid in cash, $2,500 on October 1, 1858, and'$2,500 on October 1, 1859, the deferred payments to bear interest from October 6, 1857 ; that defendant paid $2,600 in cash ; that it was agreed that as soon as a survey could be made, plaintiff should make and deliver a sufficient deed with covenants of warranty, and that defendant should give his notes for the deferred payments, secured by deed of trust; that plaintiff gave defendant a receipt setting forth the terms of sale ; that .plaintiff tendered defendant a bond for a deed, which defendant refused ; that defendant took possession of said land in October, 1857, and has retained the same; that defendant refused to make the deferred payments; that he tendered defendant a deed with warranty ; that he brought into court a deed dated August 13, 1861; and praying judgment for $5,000, with interest from October 6, 1857, and that said judgment be enforced by a sale of the land.</p> <p>This suit was commenced August 15, 1861. The defendant filed liis answer, at the September term of the court, denying that he bargained for the land as described in the petition, and alleging that the plaintiff, representing that he had good title to the farm then claimed by him, and that said farm contained 160 acres, and that he knew that by a survey made only 27 acres were under the waters of lake Marais Temps Clair; that he did bargain for said farm at the sum of $7,500, and paid $500 cash, and that he was to pay $2,000 on October 1, Í857, when plaintiff was to give him a good warranty deed, securing an indefeasible title in fee simple, and defendant was to give his notes ; that by the contract there were to be but 27 acres in the lake, whereas there were 44 acres under the waters of said lake; he denied that plaintiff tendered a bond for a deed ; denied that he was to give a deed of trust; denied that plaintiff tendered a deed conveying title ; and denied that the plaintiff had the title to convey ; alleged that the contract on his part was verbal, not witnessed by any writing signed by him ; specified the defects of title ; alleged that he had made valuable improvements ; and prayed judgment for the $2,500 paid, with interest, and for the value of the improvements ; and offered to surrender possession upon being paid.</p> <p>By consent of parties, the venue was changed to the St. Louis Land Court, in which the defendant filed an amended answer, setting forth the same matters, and pleading the statute of fraud expressly, and claiming its benefit, offering to surrender possession,-and praying that the value of his improvements be set off against rents and profits; that he might have judgment for the $2,500 paid, and interest, and that the land might be sold to pay the same.</p> <p>At the trial in the Land Court, plaintiff called from defendant’s possession, and read in evidence, a receipt given by him to defendant, dated August 31,1857, stating: “ Received of A. C. W. $500 in part pay of my farm, which I have this day sold him for $7,500, to give possession October 1, 1857, upon his paying $2,000, and giving his notes with interest, when I am to give him a general warranty deed, retaining a lien for the notes.”</p> <p>Plaintiff also gave parol testimony as to the contract of sale; proved a tender of the deed dated August 13,1861, on August 14, 1861.</p> <p>Defendant then proved the defect of the title to part of the land, in the heirs of Whittley, and showed from the record of a suit of one St. Louis v. Luckett, that he knew of the defects. He also offered testimony to show that by the contract there were to be but 27 acres in the lake ; and proved the value of his improvements. The title to the Clement lot, No. 125, had been made good since the sale. In rebuttal, plaintiff offered evidence as to the conversation at the time of the sale; then read a deed from the heirs of Samuel Whittley, dated June 29,1860, conveying the Whittley lot, No. 122 ; an act February 10, 1864, (Sess. Acts, 1863-4, p. 279,) authorizing Adeline Whittley, a minor, to make the deed ratifying the previous deed in which she had joined ; a deed from said Adeline Whittley, dated April 16, 1864, but a few days before the trial; a deed from Wm. A. Whittley, dated December 9,1863.</p> <p>Thomas Whittley, the confirmee of lot 122, died 1816, leaving issue, 1, Paul; 2, Nancy, wife of John Patton; 3, Samuel, who left issue, Angelina, wife of Austin A. Clark; Mary, wife of S. J. Melvin ; William A., and Adeline. Patton and wife, and the issue of Samuel Whittley, all joined in the deed of June 29, 1860.</p> <p>Paul Whittley died about 1836, leaving a widow. At the sale, plaintiff did not have the Clermont title, but had procured it before the trial.</p> <p>I. That the appellant was entitled to have the land with a good and complete title, was decided in the former case between the same parties — 31 Mo. 54. (Washington et al. v. Ogden, 1 Black., U. S., 540.) The plaintiff did not at the trial show a perfect title. As Paul Whittley took by descent one-third of the Whittley lot, his widow, there being no issue, took one-half of his real estate absolutely. (R. C. 1835, p. 228, § 3.) The words of the Code are, “ shall be entitled,” not “ shall be endowed,” as in the first section, and to that interest her heirs are entitled if she be dead. There is no evidence of any administration, nor of any will.</p> <p>II. Defendant may insist upon the statute of frauds, although he confess the contract as stated. (R. C. 1855, p. 1238, § 47; R. C. 1855, p. 807, § 5 ; Notes to Lester v. Foxcraft, 1 Wh. & Tud. L. C. Eq. 567, 573; 2 Sto. Eq. § 757; Moore v. Edwards, 4 Yes. 23; Cooth v. Jackson, 6 Yes. 12; Rowe v. Teed, 15 Yes. 375 ; Sir Wm. Grant’s opinion in JBIagden v. Bradbear, 12 Ves. 471; Whitbread v. Brockhurst, 1 Bro. Ch. 407 ; Whitehurst v. Bebis, 2 Bro. Ch. 569 ; Hook v. Turner, 22 Mo. 333, 335.)</p> <p>The defendant denies the contract, as alleged, and charges that there were to be but 27 acres in the lake, whereas there were 44 acres of land which were of no value to the defendant.</p> <p>The receipt given by plaintiff requires parol proof to identify the land, and the contract could not on that memorandum be enforced as against him. (King v. Wood, 7 Mo. 389; Falman v. Dent, 3 Due. 395 ; Abel v. Radcliffe, 13 J. R. 297 ; Blagden v. Bradlee, 12 Ves. 466.) And as the'defendant denies the contract as alleged, if it be enforced at all it must be enforced as he states it.</p> <p>III. The decree is erroneous in requiring the whole of the unpaid purchase money, with interest from October 1, 1857, to be paid instanter, and that the land be sold immediately.</p> <p>The charge of interest for the whole period since the sale was erroneous. If vendee offer to rescind on getting back liis money, he need not pay interest. (Rutledge v. Smith, 1 McCord. Ch. 399, interest refused until title tendered; Osborne v. Bremas, 1 Dessauss. 486; Wightman v. Reeside, 2 Dessauss. 578.)</p> <p>The judgment of the court treats this case as if it were a suit at law upon an executed contract for the purchase money, whereas it is a bill in equity to compel the specific performance of an executory contract, the terms of which the defendant denies as alleged, and sets up a variation. He does not even confess the contract as alleged, but varies it; and the plaintiff does not accept the contract as varied, and pray-it to be enforced as claimed by defendant, but demands that his own claim be enforced.</p> <p>The plaintiff does not offer to do equity ; he claims a legal right, which it is shown he does not have.</p> <p>17. The submissions of the answer do not bind the defendant when the plaintiff amends his bill. (Ld. Abingdon v. Butler, 1 Ves. 206, 210.) They could only be binding when the defendant varies the contract, and submits to perform it as varied, and does not rely upon the'statute. If the plaintiff amend and accept the contract as defendant offers to perform it, it would then be too late for the defendant, in his answer to the amended bill, to insist upon the statute. That would only be in cases where the plaintiff accepted, as was the case in Spurrier v. Fitzgerald, 6 Yes. 548,-and then the defendant could not deny, his submission. But that is not this case. (Burgess v. Wheate, 1 Ed. Ch. 24 ; 15 Yes. 353; Roberts v. Massey, 13 Ves. 561.)</p> <p>I. The plaintiff exhibited at the trial below a perfect title to the land contracted for. The only objection raised against it by'appellant is, that the dower right of Paul Whittley’s widow is outstanding in her heirs. But it does not appear that dower was ever assigned to her. Consequently she had no descendible estate ; none that either she or her heirs could ever maintain ejectment upon, or that could even be sold under execution. (Waller v. Mardus, 29 Mo. 27.)</p> <p>There was, therefore, no title outstanding in the heirs of Paul Whittley’s deceased widow. The statute (R. C. 1835, p. 228, § 3,) treats of the right of the widow as widow and dowress, and not as an heir.</p> <p>II. While it may be admitted that a defendant can insist on the statute of frauds, and at the same time admit the existence of the contract as stated, yet it by no means follows that he may in the same breath claim the benefit of the statute and the benefit of the contract. This would be, as the defendant has attempted to do in this case, claiming a specific execution, or damages for the non-performance of an absolutely void contract, which never had any legal existence at all. But this proposition was disposed of in a former case about the same subject matter. (Luckett v. Williamson, 31 Mo. 54.) It can make no difference whether the contract in question be that alleged by the plaintiff, or one which the defendant sets up in his place. The principle is the same.</p> <p>Respondent insists farther that defendant was precluded by the evidence from setting up the statute of frauds. The contract was executed by the vendor’s delivery of possession. (Sug. Vend. 84 ; Bean v. Tallé, 2 Mo. 109, [135] ; Oharpiot v. Sigerson, 25 Mo. 63, 65 ; Young v. Montgomery, 28 Mo. 604.)</p> <p>III. All the points made by appellant on the subject of interest proceed upon the following assumptions, viz : 1. That the contract as stated by plaintiff, was disproved on the trial; 2. That the contract as stated by defendant, was established by the evidence; 3. That the defendant never was in default, but the plaintiff having forfeited his contract, the defendant had the right to offer to rescind, etc.</p> <p>It has long been settled that failure of title is no breach of a contract for a warranty deed, nor even of the warranty itself, unless there has been an actual eviction under the superior title. (Shelton v. Pease, 10 Mo. 473, 482 ; Streeter v. Henley, 1 Car., Ind., 401; Greenby v. Wilcocks, 2 Johns. 1; Kent v. Welch, 7 Johns. 258.)</p> <p>IY. The act of the Legislature authorizing Adeline Whittley to make a deed was constitutional and valid. There was no retrospective feature in it whatsoever, unless it was in the recitals- certainly none in the enactment. In the case of Routsong v. Wolf, (35 Mo. 174,) there were two acts of Assembly involved. One undertook to legalize a deed previviously executed which was void when made ; the other authorized an infant to make a . deed in futuro. The court held that the former act was retrospective and void, but did not so decide as to the latter. If a party comes recentó facto to ask for a specific perform anee, the suit is treated with favor by a court of equity. (Sto. Eq. Ju. ubi supra.)</p> <p>III. In the case at bar, there has been no change of circumstances affecting the character or justice of the contract, which could give defendant cause to complain against the specific performance of a contract sought for by himself, by which he is morally as well as legally bound, and which he has enjoyed the fruit of.</p>

Louis Court of Common Pleas. I. The first instruction given for the defendant was erroneous, because not warranted by the evidence, nor by the statute. The evidence showed that Campbell, the president of the bank, was on a visit to St. Louis, and made a loan to Conant, and took his note, endorsed by George Pegram. This was the only loan proven ever to have been made in this State by the bank, and Campbell had no office or place of business in this State.

Louis Land Court. This was an action of ejectment against Simon to recover possession of lots 179, 180 and 181 in the common of Carondelet south of the river Des Peres. Davis appeared as landlord of defendant, and filed an answer denying the title of plaintiffand the unlawful withholding possession of the premises, and set up title in himself by virtue of adverse possession of so much of said lands as were within the Martigny survey.

Louis Circuit Court. The plaintiff sued the defendants, as assignors of a note, as follows: 13,150. Oquaka, III., October 13,1859. One year after date, I promise to pay to the order of P. Chouteau, Jr., & Co., at their office in St. Louis, Mo., thirty-one hundred and fifty dollars, value received. S. S. Phelps. [Endorsed.] Pay to the order of Alexander J. P. Garesché, executor of Victoire Labadie, deceased. P. Chouteau, Jr., & Co., by Wm. Moffitt.

Louis Circuit Court. The Circuit Court CQnstrued the endorsement as an absolute promise, on the part of Hickman, to .pay, at the end of two years, without demand and notice at the expiration of four months, or at the expiration of two years, and without any prosecution of a suit against Pearson, or proof that a suit would have been unavailing.

<p>Courts — Jurisdiction. — The Law Commissioner’s Court of St. Louis county has no jurisdiction in actions to enforce liens against real estate. (City to use, &c., v. Rudolph, 36 Mo. 465.)</p>

Louis Circuit Court.. The contract of insurance is a contract strictissimi juris. (1 Phil. Ins. 231.) It will embrace no other property than that'described. In this case, the insurance is upon a “ brick building, occupied as a wholesale and retail grocery store.” It is not contended that a change in the building was caused by the assured, or indeed that there was any change or alteration in the building at all.

Louis Law Commissioner’s Court. The judgment of the Law Commissioner’s Court is ashed! to-be set aside as being entirely without evidence to support it. That this court will set aside a judgment that has been rendered without evidence to support it, has been decided by this court in the cases of Morris v. Burnes’ adm’rs, 35 Mo. 412, and Heyneman v. Garneau, 33 Mo. 565.

Louis Circuit Court. The cause came to an issue on the amended petition and answer.

<p>Practice — Pleading—Counter-claim.—An answer of defendant, setting up an account of payments made by defendant to plaintiff, &c., is not a counterclaim, and is not confessed by the plaintiff’s failing to file a replication; it is a plea of payment in bar of the action.</p>

Louis Cowt of Common Pleas. I.The paper purporting to be a copy of a written submission and award was not competent and admissible evidence, and should have been excluded for the following reasons: 1. Held: if there was in the submission no provision for entering judgment on the award, then there was 310 remedy to enforce it but an action at law. To the same effect are the rulings in 5 Wend. 519-20 ; 9 J. R. 212 ; 20 Barb. 484.

<p>Practice. — Judgment affirmed under the peculiar circumstanees.</p>

<p> Appeal from, St. Louis Court of Common Pleas. </p> <p>I. The defendant, as administrator of the estate of Henry Golberg, was entitled to the possession of the note, and had a right to apply its proceeds to the payment of the debts of the firm of Koelils & Golberg.</p> <p>II. Admitting, for the sake of argument, that the defendant was not legally entitled to the possession of the note, and that it was delivéred to him by mistake, it appears that plaintiff acted with full knowledge of all facts, and therefore is not entitled to relief from a mistake of law. (Chit. Cont. 490-1; 2 Greenl. Ev. § 123, n. 8; Tyler v. Smith, 18 B. Mon. 793 ; Marietta v. Slocumb, 6 Ohio, n. s., 471; Snelson v. State, 16 Ind. 29 ; Bond v. Coats, 16 Ind. 202; 5 Taunt. 143; 9 Cow. 674; Brumaghin v. Tillinghast, 18 Cal. 165 ; Garrison v. Tillinghast, 18 Cal. 404.)</p> <p>III. The plaintiff obtained no title to the note by the assignment of Bredow, made on the 14th of January, 1860. The plaintiff, finding it impossible to recover from the defendant money paid under a supposed mistake of law, undei’takes to recover from the defendant as the assignee, uxxder Bredow, of the note in question.</p> <p>a. Nor woxxld it help the plaintiff’s case if it appeared from the evidence that he has a good cause of action, although different from the one set forth in his petition. (Link v. Vaughn, 17 Mo. 585 ; Butcher v. Death, 15 Mo. 271; Beck v. Ferrara, 19 Mo. 30 ; Payne v. Clax’k, 19 Mo. 152; Duncan v. Fisher, 18 Mo. 403 ; Perx-y v. Barrett, 18 Mo. 140.)</p> <p>b. And the same rule applies, although the plaintiff and defendant agx’eed ixpon the facts in the case, the caxxse beixxg submitted on the petition, answer and facts agreed upon. (Chouquette v. Barada, 23 Mo. 331.)</p> <p>c. Bredow could not have sued the plaintiff for money had and received to his use because the plaixxtiff had refused to pay over to him. (Hall. v. Marston, 17 Mass. 560-3.) He had to sxxe for a wrongfxxl coxxversion. The plaintiff now claims as assignee of Bredow, and stands in his shoes; hence it caix no more sue for money had and received than Bredow could.</p> <p>I. On the facts stated in the agreed case, it simply amounts to this: .that defendant has collected the px’oceeds of a note, of which the plaintiff is the owner, and refuses, on demand made, to pay over the money. It is a clear case of money had and received to the plaintiff’s use. (Chit. Contr. 606, & n. 1) No express privity of contract is necessary between plaintiff and defendant, nor is it material that in fact the defendant received the money with intent to appropriate it to his own purposes, supposing he had a right to do so ; it is enough that he has another’s money, which he has not a right conscientiously to retain. (Mason v. Waite, 17 Mass. 560-3 : Hall v. Marston, 17 Mass. 575-9.) No privity necessary, and the action may be maintained though the note be given up under a mistake, or “an unfounded belief of payment.” Eagle Bk. v. Smith, 5 Conn. 71; Dickson v. Cunningham, Mar. & Yerg. 203-221 ; Ely v. Wolcott, 4 Allen, 506 — though acknowledged in a bill of sale to have been received.</p> <p>II. It was decided in Bredow v. Mut. Sav..'Inst., 28 Mo. 181, that Enslin, adm’r of Golberg, had no title to the note, or the proceeds.</p>

Louis Land Court. The proceeding in partition -was void. This was a proceeding under the act of 1885, R. C., similar to the provisions of the present law. The parties interested all joined; there was but one attorney for all; the three minors appear by their curator Beckwith. This was no suit, not even a proceeding in partition.

<p>1. Cñmes — Larceny.—Larceny is the -wrongful or fraudulent taking and carrying away of the personal property of another, from any place, with a felonious intent to convert the same to the taker’s use, and make it his own, without consent of the owner.</p> <p>2. Crimes — Larceny— Evidence. — The possession of stolen property recently after its loss, is presumptive evidence of guilty possession, and if unexplained by attending circumstances, or the character of the possessor or otherwise, is taken as conclusive.</p> <p>3. Criminal Practice — Counts.—It is within the discretion of the court to compel the prosecutor to elect upon which of several counts he will submit the cause to the jury.</p>

Louis Criminal Court. The court erred in refusing to allow defendant to prove that Josephine Cissna, the witness, was an inmate of a bawdy-house for the last seven years, and that she was then the inmate of a bawdy-house. This inquiry bore directly upon the present character and moral principles of the witness, and was therefore essential to the due estimation of her testimony by the jury. Learned judges have been disposed to allow it.

<p> Appeal from St. Louis Court of Common Pleas. </p> <p>This action was instituted to recover damages for alleged carelessness of the Western Union Telegraph Company in transmitting a dispatch for plaintiff, from St. Louis to New York city. It was admitted on the record that the defendant was a duly incorporated'company, doing business under the “Act concerning telegraph companies” (R.- C. 1855, ch. 156). The answer denies carelessness on the part of defendant, and sets up a failure of the plaintiff in complying with the published regulations of the company, which, among other things, require the sender of an important message to pay an additional price of one-half the usual rates for repeating the same. The answer also sets out the published regulations of the company, and charges that the plaintiff had full knowledge of said regulations, and contracted with reference to the same.</p> <p>Plaintiff’s knowledge of these regulations was admitted on the trial.</p> <p>On the day previous to the transmission of the message in question, Messrs. McAndrew and Wann, of New York, telegraphed the plaintiff as follows:</p> <p>“September 17,1862.</p> <p>“Shall we forward salt by steam or sail on Lake ? Can buy same quanity of each in time. Not much change in freight since you were here. Reply at once.</p> <p>(Signed) McAndrew & Wann.”</p> <p>In reply, the plaintiff sent the dispatch in question, to-wit:</p> <p>“St. Louis, September 18, 1862.</p> <p>“ Ship by sail .immediately. Take 5,000 Liverpool, thfee thousand Turk’s Island.</p> <p>(Signed) John Wann.”</p> <p>When this dispatch reached McAndrew & Wann in New York, it 2’ead : “Ship by rail immediately,” etc. That is, the word “ rail ” was substituted for the word “ sail ” in the original dispatch.</p> <p>On the following day,.McAndrew and Wann telegraphed plaintiff as follows :</p> <p>“ September 19,1862.</p> <p>“ Have bought 5,000 Liverpool, one twelve half and three thousand Turk’s. About 75 four months, forwarding by rail to Chicago.</p> <p>(Signed) McAndrew & Wann.”</p> <p>Five days after this last dispatch, plaintiff telegraphed McAndrew & Wann as follows:</p> <p>“ St. Louis, September 24,1862.</p> <p>“ Don’t ship any salt by railroad and steam, only canal and lake.</p> <p>(Signed) John Wann.”</p> <p>The only evidence introduced, on the trial, to sustain the charge of carelessness of the company was, that, in the message as delivered in New York, the word “rail” was substituted in the place of the word “ sail ” in the original one. On the other hand, it was in evidence that the plaintiff did not reply to the dispatch of McAndrew & Wann of the 19th September, advising him of the shipment “ by rail to Chicago,” until the 24th September, and that plaintiff’s dispatch of the 18th September (the one in question) was not properly responsive to the question of his correspondents in New York — “Shall we forward by steam or sail on Lake ?” The defendant proved by experts, that the telegraph apparatus used by the company in transmitting the dispatch was in complete order; that the system used by said company was the one known as Morse’s system, and the most perfect in use, and that the employees of the company who acted as operators were skilful and experienced.</p> <p>'"It was admitted as proved that the ordinary price for said dispatch to New York, (11.92,) was paid on delivery, but not the additional price for repeating the dispatch (which would be 96 cents additional).</p> <p>The main question in the case arose on instructions given and refused. The one given at the instance of the plaintiff is as follows:</p> <p>“The jury are instructed that defendants are responsible as common carriers, for any negligence or carelessness in copying or transmitting the plaintiff’s message, and are responsible for such damages as plaintiff may have suffered, if any, by reason of defendants having carelessly or negligently transmitted such message, and the defendants are not excused from their said responsibility though the plaintiff may have had notice of the terms claimed by the defendants, as set forth on the tops of the papers used by them in the writing and sending of dispatches.”</p> <p>The defendants’ instructions, being the converse of this, were refused.</p> <p>The jury found for the plaintiff, and judgment was rendered against defendants for $1,085-44.</p> <p>I. The court below clearly erred in declaring the law. The defendant was not a common carrier, or liable as such. Telegraph companies come neither within the terms or meaning of the rule. They carry no goods. They have no lien, for freight; they have possession of nothing which they can convert to their own use. They have no means of ascertaining the value of the dispatch, or whether it has any value or not. It may have no general value, and still have great value to the parties interested. It may be in cypher and unintelligible to the employees of the company, and yet be worth a million to the parties. They have no right to demand a disclosure of its nature or importance. They have none of the general rights of carriers. (Jones on Bail., App. p. 24 et seq.; Edw. on Bail. 353; Sto. on Bail. § 15, pp. 566-7.)'</p> <p>They are not eo nomine classed among bailees of that description. The contract locatio operis mercium vehendarum cannot in the nature of the case appertain to them. (2 Kent, 599.)</p> <p>The language of all the books unites in describing the common carrier as one who carries goods, and has the custody of goods ; has a special interest in the goods carried ; has a lien on the goods for freight, and may sell the goods to satisfy his lien. (Chit, on Oar. 15.)</p> <p>In consideration of these peculiar rights, he was originally held to the strictest account, even as an insurer against inevitable accident. (1 Term, 33 ; 4 Dougl. 287 ; 3 Esp. 131.)</p> <p>More modern cases have relaxed the rule so far, that it has been said they have unsettled the law on the subject. (Walk. Am. Law, 453 & note ; 1 Am. L. Reg., 65 et seq.; 4 Sandf. R. 136.)</p> <p>Courts have not only relaxed the rule, but have restricted it in its application. Hence the better opinion seems to be, “ that the strict rule of the common law liability being harsh, courts will not extend the rule when the reason for it has failed.” (2 Peters, S. O. 150.) Hence it does not extend to carrying passengers (ibid) ; nor to' carrying baggage beyond an ordinary amount (9 Wend. 85); nor to express ¿companies (19 Barb. 577 ; 5 Sandf. R. 180; 18 Barb. 500 ; | 24 Barb. 533; 2 Duer, 471) ; nor to wharfingers (7 Cow. 1497); nor to forwarders ('8 Hill, N. Y. R. 158; 4 Dumf. <& East, ’ 583 ; 8 Cow. 223 ; 2 Smith [E. D.] 195 ; 12 Johns. 232.)</p> <p>So we find, so far as the subject has undergone direct judicial investigation, the weight of authority is largely against applying the common carrier liability to telegraph companies. (Birney v. York & W. P. Tel. Co., 18 Md. 341, [ 1862] ; Camp v. W. U. Tel. Co., 1 Metcalf, R. 164; Shields v. Wash. Tel. Co., 9 W. Law Jour. 283; McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180; Drybup^y. N. Y. & W.' P. Tel. Co., 35 Penn. 298.) \</p> <p>This last case was one based on the misfeasance, of an agent of the company and not strictly in point, but Judge Woodward, in delivering the opinion, cites the Camp case (1 Mete. R. 164), and distinguishes it from the case before him, and without dissenting from the doctrine of that case, holds this language : “Though telegraph companies are not, like carriers, insurers for the safe delivery of what is entrusted to them, their obligations, so far as they reach, spring from the same sources — the public nature of their employment, and the contract- under which the particular duty is assumed.”</p> <p>[a.] The only adjudicated case directly holding telegraph companies liable as comnon carriers, it is believed, is the case of Parks v. Alta Cal. Tel .Co. (13 Cal. R. 422.) This case was decided in 1859, and has no reference to previous adjudications — nor does it seem to be well considered. No reference appears to have been made to the Cal. statute on the subject, either by counsel or court.</p> <p>On the other hand, both the Birney (Md.) and the Camp (Ky.) cases appear to have been ably argued by counsel, and well considered by the courts'. The English authority above ■ cited (38 Eng. L. & Eq. 180) has reference mainly to the construction of the statute (16 & 17 Yic. C. 103) which required the telegraph company to “ receive and send messages, subject to reasonable regulations to b(-.\adopted by the company and the question in that case was, whether the regulations of the company were reasonable. The court decided in the affirmative. In arriving at that conclusion, the several judges compared the liability of telegraph companies to that of common earners, and asserted that even common carriers might limit their liability by reasonable regulations. Our statute is in terms more favorable to the company than the English statute. It requires the company “ to receive and transmit ” only upon payment or tender of the usual charge, according to the regulations of the company.” (R. O. 1855, p. 156.)</p> <p>[6.] In a recent Canadian case, it was held that the telegraph company was not liable for transmission of a message beyond their line, although they had received payment therefor, on the ground that they had limited their liability by notice. (Stevenson v. Montreal Tel. Co., 16 Upper Can. 530.)</p> <p>[c.] In another case, it was held that the same company were not liable to damages for failure to deliver a message; to another company to be forwarded, for the purpose of accepting a proposed contract, on the ground that no legal contract could be created in that way. (Kinghorne v. Montreal Tel. Co., 18 U. C. 67.) If contracts can be created in this way, they are certainly distinguishable from those made by mail. (Trevor v. Wood, 41 Barb. 255.)</p> <p>[ii.] It has long since been held that tlie carrier of the mails is not liable as a common carrier. And as it was said' by the eminent judges in the celebrated postoffice case of Lane v. Cotton (1 Salk. 17 ), that “ its office is for intelligence and not for iásurance”; so we say of the telegraph, “ its- office is for intelligence and not for insurance.”</p> <p>II. But the court below clearly erred in assuming, in. the instruction given, that the defendant could not limit its liability, and by refusing the instructions moved by the defendant on this point. The law is now well settled that even''' a carrier may limit his liability, either by express Contract or notice brought home to the party. (8 How, 344 ; Ang. Com. Car. 223 et seq.; Edw. on Bail. 472-83 ; 4 Sandf. 136; 6 Barb. 344; 9 Wend. 85; 23 Yt. 206; Walk. Am. Law, §> 182, p. 453, & note 3 ; 2 Oomst. 210 ; 9 Barb. 191.) The ! doctx-ine of these cases can no longer be sxxccessfully contro-j verted. - x</p> <p>III. The court bolow erred in assessing the damages at $1,085.44.</p> <p>The pi'oper rule of damages in such cases is, “ that only such damages are recoverable as may reasonably be supposed to have been in contemplation of the parties at the time they made the contract, as a probable result of the breach of it.” (Hadley v. Baxendale, 9 Exch. R. 341; Griffixx v. Colver, 2 Smith, 16 N. Y. 489.) As there was no disclosure in this case of the nature or importance of the message, the only damages that coxxld reasonably have entered into the contemplation of both parties at the time of the contract was the axnount paid for its transmissioxi. (Landsberger v. MagíxeticTel. Co., 32 Bai’b. 532 ; Shields v. Wash. Tel. Co., 9 W. Law Jour. 283.)</p> <p>IY. The coux’t below erred in refusing the second instruction moved by defendant. There was evidence of laches on the part of the plaintiff: 1. In not sending an intelligible reply, responsive to the inquiry of his correspoxxdents at New York; 2. In ixot replying at once to the telegram of his correspondents, dated September 19, advising lxim of their “ having forwarded by rail to Chicago.” This he failed to do until September 24. There is no law better settled than that if the plaintiff’s negligences contributed to the injury complained of, he cannot recover. (2 Taunt. 314; 4 Car. & Payne, 554 ; 34 Mo. 55.)</p> <p>If the appellant is to be held as an insurer, as is contended by the opposing counsel, the company will of course be forced, in self-defence, to charge the additional rate of insurance in all cases, whether the message be one of importance or not. This burden, then, will fall on the public at large, instead of falling where it should, to-wit, on him who sends an important message. While, therefore, the settling of the question involved, on sound principles of law, is important to the appellant, it is of still greater importance to the general public.</p> <p>Prom the three instructions given to the jury, it appears that the question was put distinctly to the jury, upon the ground that the defendants were guilty of negligence and carelessness, or want of ordinary care and diligence in transmitting the message. There is no question of “ limitation of liability,” or “terms,” in the case. In their “terms,” the defendants do not undertake to exempt themselves from the responsibility of ordinary care. They only say they will not be responsible for mistakes; that is, such mistakes as ordinary care and diligence cannot guard against. The law does not allow these defendants (if they would) to protect themselves from the consequences of negligence in transmitting messages. The case finds that the defendants are a corporation under the statutes of this State. (R. C. 1855, p. 1519.) Though there is some difference in the authorities as to whether these companies are subject to all the liabilities of common carriers, we think the weight of authority is, that they are, and that the reason of the thing is to the same effect. But there is no intimation in any of-them, that they are not responsible when guilty of negligence, and many of them refer to that point as too plain to be talked about.</p> <p>The instruction asked by defendant, and refused, as to the right to limit their liability, was properly refused, because it was an immaterial issue, and was not before the jury in that shape, as the whole question was put upon the ground of negligence, and all the advantage the defendant could have from the knowledge the plaintiff had of their “ terms,” was given to them by the last instruction given to the jury at defendants’ request.</p> <p>Common carriers cannot limit their liabilities by notice, but may by special contract. (11 N. Y. 484, Dorr v. N. J.' & N. Y. S. N. Co.)</p>

Louis Land Court. This suit was instituted by petition in ejectment, filed September, 1863, to recover possession of a lot of ground on Stoddard avenue, in the city of St. Louis. The original answer put in issue the allegations of the petition.

Louis Circuit Court. There can be but little doubt that the assignment operated to transfer the lease to Summers, and still less doubt that Summers as assignee accepted the lease and actually occupied the premises under it.

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

<p>1. Assignments — Mortgage—Deed of Trust. — A conveyance of property to trustees to sell, to pay the debts of the grantor, without condition, is an assignment for the benefit of the creditors named and preferred.</p> <p>2. Frauds — Assignments,—In general, a party may assign his property as he pleases; but where there are numerous creditors, he cannot use an assignment as a means of preserving his property from the lawful actions and demands of his creditors. An assignment made with intent to delay, hinder or defraud creditors, is fraudulent. Where such intent appears upon the face of the instrument, it will be declared void, as a matter of law. The essence of the fraud consists in the fact, that the deed is not made in good faith for the payment of honest debts, but for the advantage of the grantor, and for the purpose of postponing and defeating the just claims of creditors.</p> <p>3. Assignments — Preferences.—An assignor may make preferences, by making a partial assignment for the benefit of particular creditors, but in so doing the assignment must be made for the genuine purpose of paying honest debts, and not for the use and benefit of the grantor, nor to hinder, delay and defraud other creditors.</p>

<p>Trespass — Damages — Attachments. — Where several attachments are successively levied upon goods not the property of the attachment debtor, the attachment creditors are not joint trespassers, and are not liable to contribution as such (R. C. 1855, p.649); but where several creditors, thus attaching, were sued as joint trespassers, and judgment recovered, the judgment is conclusive as to their liability to contribution.</p>

Louis Circuit Court. The Southern Hotel Company was summoned as garnishee upon execution in favor of plaintiffs, of McBride & Thorn-burg (a firm composed of Joseph H. McBride and Joseph W. Thornburg), on November 13,1862. At the return of the ft. fa., the plaintiffs filed fifteen special interrogatories to be answered by the garnishee, inquiring. into all of the transactions between the garnishee and defendants.

Louis Court of Common Pleas. The appellant insists that the well recognized principles of the common law, that the interest of the mortgagor in goods and chattels mortgaged by him cannot be seized under a writ of attachment, or sold under execution, are not at all applicable to the case of stocks or shares in incorporated companies; such shares and stocks could not, at common law, be sold under execution.

<p>Note — Consideration—Contract.—In a suit by payee upon a note given for goods sold, the maker may show in a defence of failure of consideration, that the goods were not as described and warranted at the sale, or that they were worthless for the purposes for which they were sold.</p>

Louis Court of Common Pleas. This is an action brought, under the statute, by the plaintiff, to recover the sum of five thousand dollars, on account of the death of. her husband, caused, as is… Held: that the court below had erred in undertaking to determine, by instruction, what was misconduct or negligence. It was very properly held, that this was a question peculiarly within the province of the jury; but this was the only question decided by the court.

Louis Court of Common Pleas. There was no contract, express or implied, to pay for any services rendered, or any evidence to make a contract.

<p> Appeal from the St. Louis Land Court. </p>

<p>Equity — Trustee—Agent.—A. being indebted to B. by nóte, as security for its payment transferred to B. a note of C.’s for a larger amount, secured by a deed of trust upon land, and the deed of trust itself. The note of C. not being paid, B. had the land sold by the trustee, and purchased at the trustee’s sale. This land B. subsequently sold for an amount more than sufficient to pay the note of A. Held, that, in collecting the collateral note, B. was acting as the agent of A., and was subject to all rights and disabilities incident to that character, and could not, under the circumstances, speculate for his private gain, to the prejudice of his principal.</p>

Louis Court of Common Pleas. ■ I. That the note first given was in every sense a partnership debt will not be disputed. It was not a joint debt of the two partners, but a debt of the firm as such. The holder of that note was entitled to all the rights of a creditor of the firm not only as against the two partners individually, but as against the partnership assets eo nomine.

Louis Land Court. I. The plaintiff having given in evidence the judgment and execution in the case of James A. Monks v. Isaac T. Green and Franklin Weston, and also the sheriff’s deed dated February 8, 1860, to the defendant, it was not competent for the plaintiff’ to give evidence tending to prove that said judgment had been satisfied before the sheriff’s sale of the property in question to the defendant. .

<p>Time — Mechanics’ Liens. — A sub-contractor’s notice of lien given on the 15th February, and a lien filed on the 25th February, is given ten days before the filing of the lien, as Required by the statute. The first day must be excluded, and the last included, in computing time within which an act is to be done — R. C. 1855, p. 1027, § 22.</p>

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

Louis Land Court. The defendant in error in this case is not entitled to a lien against the property of the plaintiff in error, Carroll: 1. For there was no contract between him and Carroll, the owner of the land.

Louis Court of Common Pleas. Demurrer to a petition. The petition is as follows: ■ County of St. Louis, ss. — The plaintiff, by leave of court, comes and files this his third amended petition, and states ■that one Amos Stoddard died intestate in the year 1813, seized in fee simple of three hundred and fifty arpents of land in the county aforesaid, being a Spanish concession to' one Mordecai Bell, who conveyed the same to James Mackey, who conveyed the same to the said Amos…

Louis Land Court. In this case, the petition set forth that on the 10th March, 1860, Pierre Berthold executed to Juliette Y. Eeyburn his promissory negotiable note for $7,000, and also six interest notes, each for $350 — the first payable in three years aftér date, and the interest notes at intervals of six months, and all bearing interest after maturity at ten per cent, per annum ; that, to secure the payment of these notes, Amedée Berthold executed a deed of trust,…

Louis Circuit Court. The repealing clause in the act of February 14, 1857, is a limited one ; it expressly excepts such parts of former acts as are not contrary to, or inconsistent with, the provisions of this act. The remedy afforded by the 10th section of the act of 1855 is the only express provision of law for cases of this kind.

<p>Highways — Dedication.—To constitute a dedication of a highway by the'making of a plat, the plat must be acknowledged and recorded in the manner provided for town plats — R. C. 1855, p. 1535. To constitute a dedication by user, there must be an intention to dedicate on the part of the owner, with such acceptance or user by the public, for such a length of time, that the public accommodation or private rights would be materially affected by an interruption of the enjoyment, though for less than twenty years.</p>

<p>Judgment — Estoppel.—A party who has recovered personal property hy judgment in a suit in replevin, cannot be sued in trespass by the defendant for the wrongful taking of the same property.</p>

<p>Praettce — Pleading—Note.—A petition upon á note by an endorsee must allege the endorsements by which the plaintiff claims title. The note and its endorsements are no part of the petition, and cannot be.made such by reference thereto.</p>