Volume 4 — Missouri Appeal Reports

<p>Appeal from St. Louis Circuit Court.</p> <p>Tender. — McJilton v. Sawyer, 18 Mo. Ill; JBerthold v. Reyburn, 37 Mo. 586; Thayer v. Brocket, 12 Mass. 465; 1 Chitty’s Gen. Pr. 508 ; 2 Pars, on Con. 648. Measure of damages. — 4 Mo. 14; 30 Mo. 385, 406.</p> <p>Bills of exceptions. — The State v. Shebane, 25 Mo. 565 ; Blaclcenship v. North Missouri JR. Go., 48 Mo. 376. Rescission and tender.— Oasey v. Smales, 4 Mo. 77; Brown v. Alexander, 27 Mo. 430; Ferguson v. Oliver, 8 Smed. ife M. 332; Thornton v. Wynn, 12 Wheat. 192; Story on Con., sec. 977. Measure of damages. — White v. Salisbury, 33 Mo. 150 ; Story on Sales, 332.</p>

Louis Circuit Court. No privity of contract exists between the original insured and the reinsurer. — UerJcenrcith y. American Mutual Ins. Co., 3 Barb. Ch. 63 ; Carrington Ins. Co., 1 Bosw. 152. In an action against the reinsurer by the insurer, the former has the right to make the same defences which the latter could make against the original assured. — Eagle Ins. Co. v. Insurance Co., 9 Ind. 443 ; Yonkers Eire Ins. Co.v. Coffman, 6 Robt. 316; New York Central Ins.

<p>1. Where the question is between two execution creditors, one of whom claims title to certain property by virtue of a judgment good as against realty, and the other of whom claims title to the' property by virtue of a sale under a judgment good only as against personalty, the status of the property in dispute, whether real or personal, is not determined by the intent with which the owner of the property attached it to the freehold, or similar considerations applicable as between landlord and tenant, vendor and vendee, etc. Properly speaking, in this present case no question arises under the law of fixtures. Between these two third persons and the owner of the property there is no mutuality; and the principle which determines the character of the property is the elementary rule, Quicquid plantatur solo, solo cedit.</p> <p>2. Here the evidence clearly showed that the physical condition of the property in dispute was such as to make it a part of the realty. This being so, the alleged sale by the constable under the justice’s judgment conveyed no title to the plaintiff.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Coates v. United Slates Ex. Co., 45 Mo. 238; Wilcox v. Parmlee, 3 Sandf. 610; Nashua Loch Co. v. Railroad Co., 48 N. H. 339 ; Barton v. Wheeler, 49 N. H. 9 ; Bradford v. Railroad Co., 7 Rich. 201; Quinby v. Vanderbilt, 17 N. Y. 307 ; Chouteau v. Leach, 18 Pa. St. 224; Read v. St. Louis, etc., Ry. Co., 60 Mo. 199.</p>

Louis Circuit Court. The relation between a corporation and its president is that of cestui que trust and trustee. — Single v. Hogan, 45 Mo. 109 ; McAllen v. Woodcock, 60 Mo. 174. Such a president may not create such a. relation between himself and the trust property as ■ will make his interests antagonistic to that of his beneficiary. — Kockler v. Black River Go., 2 Black, 715; Covington & Lexington R. Go. v. Bowler's Heirs, 2 Cent. L. J. 598.

Louis Criminal Court. Deliberation and premeditation are necessary elements in tbe crime of murder in the first degree.— The State v. Hudson, 59 Mo. 135 ; The State v. Foster, 61 Mo. 549 ; The State y. Holme, 54 Mo. 153. There must be an intention to kill, to constitute the crime of murder in the second degree. — The State v. Underwood, ■57 Mo. 40. Malice. — 23 Mo. 325; Dozier v. The State, 26 Ga. 156 ; The Commonwealth v. Drew, 4 Mass. 391; Head v. The State, 44 Miss. 731.

Louis Circuit Court. : United States “five-twenty” bonds are negotiable.— Sybel v. National City Bank, .54 N. Y. 288; Spooner v.. Holmes, 102 Mass. 503. One who is in possession thereof, without title, may, by a transfer for value, pass to an innocent purchaser a perfect title. — Murray v. Lardner, 2 Wall. 121; Goodman v. Lemonds, 20 How. 364; Goodwin v. Roberts, 3 Cent. L. J. 621.

Louis Circuit Court. A contract of guaranty must be strictly construed. A surety cannot be charged beyond the precise terms of his contract. — Taylor v. McOlung, 2 Houst. 24; Taylor v. Wetmore, 10 Ohio, 490; Smith v. Montgomery, 3 Texas, 199; Stratton v. JRastall, 2 Term Rep, 366; Bacon v. Ohesney, 1 Stark.

<p>1. Equity will not presume a trust reserved in the grantor, hut the proof of it must he olear. The mere expectation of a grantor that the premises granted would he used for certain purposes will not he construed into a reservation of the premises to himself if it should be used for other and different purposes.</p> <p>2. Where a consideration is paid, and no uses are expressly reserved in the conveyance, the grantee will take the whole use.</p>

<p>Error to St. Louis Circuit Court.</p> <p>Party wall — Fitch v. Leamy, 9 Bosw. 530; Mas-son’s Appeal, 70 Pa. St. 26; O’Daniel v. Baker’s Union, 4 Houst. 503 ; Walls v. HawTcins, 5 Penn. 20 ; Shirred v. Cisco, 4 Sandf. 485. An action on the case in tort is the proper action. — Burnett v. Lynch, 5 Barn. & Cress. 602; Gorham v. Gross et al., 117 Mass. 442 ; Chamitter v. Robinson, 4 Excb. 169 ; Klander y. McGrath, 35 Pa. St. 128.</p> <p>Party-walls. — Orman y. Day, 5 Fla. 385; In-gles y. Bringhurst, 1 Dali. 341, 345 ; Gorham v. Gross et al., 117 Mass. 442. Joint owners of, are equally bound to repair. — Campbell y. Mesier & Dunstan, 4 Johns. Ch. 333 ; Winslow v. Fuhrman, 4 Am. Law Eec. 166. And if the wall, through negligence, becomes dangerous, the negligence is joint, not several. — Peyton et al. v. The Mayor, etc., 9 Barn. & Cress. 725 ; 1 Add. on Torts, 213.</p>

Louis Circuit Court. What constitutes a breach of promise to marry. — Roscoe’s Dig. Ev. 261; Gough v. Farr, 2 Car. & P. 631. Where there is evidence of a refusal to marry, the question is one for the jury. — Willard v. Stone, 7 Cow. 22; Hubbard v. Bonesteel, 17 Barb. 360; 2 Stark, on Ev. 942. Damages, mitigation, and aggravation.— Sutler v. Fschleman, 18 Ill. 44 ; D endow v. Vanhorn, 16 Iowa, 476 ; White v. Thomas, 12 Ohio St. 312.

Louis Circuit Court. A third party may bring an action on a promise made for his benefit by another. —Robbins v. Ayers, 10 Mo. 538 ; Meyer v. Lovell, 44 Mo. 328 ; Rogers v. Gosnell, 51 Mo. 466 ; 58 Mo. 589 ¿ Schuster v. Kansas Oity, etc., R. Go., 60 Mo. 290. Liability of the purchaser of mortgaged property to discharge the encumbrance, under stipulation in the deed. — Richardson v. Sanderson, 41 N. Y. 179 ; Burry.

Louis Circuit Court. Limitations ; the statute does not begin to run until the cause of action accrues.— JRobsuhl v. Lark, 35 Mo. 316. Breach of covenant of quiet .enjoyment. — Shelton v. Pease, 10 Mo. 473. Jurisdiction of justices of the peace.— Wilson v. Petty, 21 Mo. 417; Wilson v. Browning, 45 Mo. 475.

Louis Circuit Court. Estoppel. One having executed an appeal bond, is estopped to deny that an appeal has been taken. — Levi v. Dorn, 28 Ohio, 217 ; Love v. Rockwell, 1 Wis. 382, and cases cited; Morse v. Hudson, 5 Mass. 316; Grant v. White, 42 Mo. 290; The Peoffie v. Falconer, 2 Sandf. 81; Bates v. Williams, 43 Ill. 494; McNamee v. Moreland, 26 Iowa, 110.

<p>1. In an action against a corporation, brought by tbe president thereof, service upon the president and secretary is good, where there is no vice-president.</p> <p>2. Where the defendant, incorporated under the name of the “Phcenix Brewery Company, St. Louis, Mo.,” is sued as “Phcenix Brewery Company,’* there is no variance and no misnomer, the words “ St. Louis, Mo.,” being merely descriptive.</p> <p>S. In a proceeding by motion for execution against a stockholder (Wag. Stat. 291, sec. 13), the defendant cannot demand,a trial by jury as a matter of right.</p> <p>4. Where the plaintiff, a stockholder, has obtained judgment against the corporation, the question as to whether his stock has been paid up cannot arise upon his motion for execution against another stockholder.</p>

Louis Circuit Court. It is not necessary to secure a judgment against an insolvent debtor and have a nulla bona return to the execution before proceeding in equity. — Turner v. Adams, 46 Mo. 95 ; Pendleton v. Perkins, 49 Mo. 569 ; Luthy v. Woods, 1 Mo. App. 167; Beal v. McVicker, 3 Mo. App. 592. Equity jurisdiction. — 1 Story’s Eq. Jur., secs. 33, 60,80, 440 ; Dobyns v. McGeven, 15 Mo. 662 ; West v. Wagner, 3 Mo. 16.

The reply should have been stricken out. —Wag. Stat. 1017, sec. 15 ; 1 Chitty’s PI. 643-645 ; Suman v. Inman, 3 Mo. App. 596. Liability of a có-surety, and tbe measure of damages. — Wag. Stat. 1303, 1304, secs. 5-8 ; Labaumev. Sweeney, 17 Mo. 153 ; Doddv. Winn, 27 Mo. 501. When tbe liability of a surety to a co-surety accrues. — Singleton v. Townsend, 45 Mo. 379.

<p>Appeal from St. Charles Circuit Court.</p> <p>There must be some privity between plaintiff and defendant, and a consideration must pass. — Mellen v. Whipple, 1 Gray, 817; Field v. Orawford, 6 Gray, 116; Manny v. Frayser’s Administrators, 27 Mo. 419 ; Page v. .Bedcer, 31 Mo. 466 ; Bullard v. Bandall, 1 Gray, 605; Millard v. Baldwin, 3 Gray, 484. One cannot assign a part of a negotiable instrument.— Love v. Fairfield, 13 Mo. 300; Mandeville v. Welsh, 5 Wheat. 277; Burnett v. Crandall, 63 Mo. 410.</p> <p>A party for whose benefit a promise has been made for a good and sufficient consideration may sue upon it, though not privy to the contract in which the promise was made. — Banlc of Missouri v. Benoist, 10 Mo. 519 ; Bobbins v. Ayers, 10 Mo. 538. Parol testimony was admissible to prove the consideration, tbe contract not being within the statute of frauds. — Schuster v. Kansas City, etc., It. Go., 60 Mo. 290; Besshears v. Rowe, 46 Mo. 501; Holt v. DollarMcle, 61 Mo. 433 ; Rogers v. Beak, 51 Mo. 446 ; Rogers v. Gos-nell, 56 Mo. 589. Parol evidence is admissible to show assignment of interest in notes. — Boelca v. Huella, 28 Mo. 180; Willard v. Holes, 30 Mo. 142; Smith v. Sterrit, 24 Mo. 260.</p>

Charles Circuit Court. An agent cannot pledge the property of his principal for his own debt. —Benny v. Rhodes, 18 Mo. 147 ; Benny v. Pe-gram, 18 Mo. 191. Where a part of the consideration of a sale is illegal, the sale is void. —Peh v. Long, 40 Mo. 532 ; JSumner v. Bummers, 54 Mo. 340.

Louis Circuit Court. An agent whose duty requires the exercise of skill or discretion cannot delegate his authority. — Brown v. Railway Passenger Assur. Go., 45 Mo. 221; Grady v. American Central Ins. Go., 60 Mo. 116 ; Commercial Banlc v. Horton, 1 Hill, 501; Williams y. Woods, 16 Md. 220; Horton v. Ball, 43 Mo. 113. The signature “W., agent, per K.,” was sufficient to put the insured upon enquiry. — Bodine v. Exchange Fire Ins. Go., 51 N. Y. 117.

Louis Circuit Court. A claim cannot be split up into several actions, and a judgment concludes the rights of the parties as to the cause of action in the pleadings, whether it includes ths whole or only part of the demand. — 15 Am. Law Reg. 83 ; 33 Mo. 561; Kansas Gity Hotel Go. v. Sigement, 53 Mo. 176 ; Boofe v. Pacific B. Go., 33 Mo, 212 ; 35 Mo. 447 ; Union R. Go. v. Traube, 59 Mo. 355 ; Gosgrove v. Lebo, etc., R. Go., 50 Mo. 270.

<p>1. Wheré the value of the lots against -which assessments for public improvements are made is less than the amount assessed upon them, the enhanced value of the lots is nothing to the owner, and the benefits to him derived from such improvements are no greater than to any other citizen whose property is not assessed; such an assessment is unconstitutional and void.</p> <p>2. "Where a municipal government makes an assessment for local improvements exceeding in amount the value of the property assessed, such an assessment is in violation 6f the constitutional inhibition against the taking of private property for public use without just compensation, and is void; and the fact that such power is referred to the taxing power, and not to the power of eminent domain, does not make its exercise any the less unconstitutional.</p>

<p>Appeal from St. Louis Court of Criminal Correction.</p> <p>cited: City of St. Louis v. Laughlin, 49 Mo. 559 ; City of St. Louis v. Grone, 46 Mo. 574; 8 Kan. 82 ; 8 Ga. 23 ; 38 Ala. 156.</p> <p>cited: Glasgow v. Bowse, 43 Mo. 479 ; City of St. Louis v. Grone, 46 Mo. 574.</p>

Louis Circuit- Court. A ■ collecting agent must pay over the moneys he collects as soon as he receives them. — Lyle v. Murray, 4 Sandf. 593; Turney v. 'Gock-ran, 1 Watts & S. 119; Berry v-. Pierson, 1 Gill, 248 ; Lilly v. Hoyt, 5 Hill, 395 ; Green v. Johnson, 3 Gill & J. 395.

<p>Appeal from St. Louis Circuit Court.</p> <p>The right of a stockholder to enjoin the corporation. — Allen v. Gurtis, 26 Conn. 456 ; Dodge v. Wooley, 18 How. 341; Sears v. HotchJciss, 25 Conn. 171; Wiswell v. First Congregational Ohurch, 14 Ohio St. 40; Mandar son v. BanJc, 28 Pa. St. 379; Bag-shaw v. Railroad Go., 7 Hare, 114 ; Gentral BanJc v. Collins, 40 Ga. 582; Kean v. Johnston, 1 Stockt. 400; Simpson v. Westminster, 8 Hoffm. Land Cas. 717; Wright v. Oroville Mining Go., 40 Cal. 27; Beabody v. Flint, 6 Allen, 54 ; March v. Eastern R. Oo., 43 N. H. 532; Taft v. Harrison, 42 Hare, 489.</p> <p>A court of equity will not, on the ground of expediency, at tbe suit of a stockholder, render a decree virtually annulling the franchises of the corporation. — Fountain Ferry Go. v. Jewell, 8 B. Mon. 140; French v. Gifford, 30 Iowa, 148; Baker v. Backus, 32 Ill. 79 ; Folger v. Columbian Ins. Co., 99 Mass. 267; In Re Berry, 26 Barb. 55.</p>

Louis Circuit Court. To make the party making the charge to the officer liable,- it is not necessary that he should have requested the arrest. — Secor v. Babcock, 2 Johns. 203; Davis v. Noah, 2 Eng. C. L. 434; Milton v. Elmore, 19 Eng. C. L. 470; Morrey v. Miller, 3 Leigh, 561; Hicham v. Griffin, 6 Mo. 37; Both v. Smith, 41 111. 314; 8 Mo. 340; 48 Mo. 533.

Louis Circuit Court. Where the city neglects its duty, or where the whole proceeding by which the tax-bill is issued is void, the city is liable, though the contractor agreed to look to the tax-bill for payment.

<p>The common-law remedy ,for injuries .arising from an injunction is- not merged in the statutory remedy on the bond. ■■The common law gives no remedy for an'injury done by legal proceedings, except the process of the court is abused.. To,avail himself of.-his common-law remedy, the-plaintiff-must allege the injunetionas an ahuse.of the .process of the court, through malice . and without probable cause; otherwise, the remedy is on the bond.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Cook v. Decker, 63 Mo. 328; Garnhart v. Finney, 40 Mo. 449; Vaughn. Y. Schocke, 27 Mo. 290.</p>

Louis Circuit Court. The title to this bill passed to tbe Mechanics’ Bank bjr delivery, and it had a right to sue in its own name, without resorting to a court of equity or suing in the name of the payee, to its own use, as at common law. Boéka v. Huella, 28 Mo. 180 ; Willard v. Moies, 30 Mo. 142; Savage v. Severe, 11 Barb. 620 ; Du-gan v. United States, 3 Wheat. 172 ; Bank of United States v. United States, 2 How. 711.

<p>A marksman, to exhibit his skill as such, shot pigeons thrown up into the air. Held, that this did not violate the provisions of “An act for the prevention of cruelty to animals ” (Sess. Acts 1874, p. 112), which declares it an offence, etc., “needlessly to kill any living creature.”</p> <p>Ore motion for a rehearing: In interpreting a legislative act, the judicial question is, What application did the Legislature intend the words used to have ?</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Wag. Stat. 1007, sec. 7 ; The State to use v. Beldsmeier, 56 Mo. 226 ; Boe v. Thomas, 19 Mo. 618.</p> <p>cited : The State to use v. Beldsmeier, 56 Mo. 226 ; Thomas v. Warden, 17 Mo. 435 ; The State v. Moore, 61 Mo. 276.</p>

Louis Circuit Court. The material-man in this case could have no lien. — Porter v. Toll, 35 Mo. 107 ; Hause v. Thompson, 36 Mo. 450 ; Hause v. Oarroll, 37 Mo. 578; Bridioell v. GlarJc, 39 Mo. 170; Oollins v. Mott, 45 Mo. 102. That the material-man had a lien right, see Oollins v. Mott, 45 Mo. ‘ 100; Koenig v. Mueller, 39 Mo. 165 ; Bridwell v. Ciarle, 39 Mo. 170; Putnam v. Boss, 46 Mo. 337.

<p>The owner of a lot paid a special tas bill for water-pipe against it, and then sold the lot, with warranty, giving to the purchaser this special tax bill, with others. Afterwards the Legislature provided for refunding the special taxes paid for water-pipe, on presentation of the bills, to the persons who . had paid the taxes. The purchaser of the lot, without his vendor’s knowledge, endorsed upon the bill “R. is authorized to collect,” and signed thereto both his own name and that of his vendor, and through JR., his agent, presented the bill for repayment, and received the money. Seld, that the mere transfer of the tax bill, without an express understanding to that effect, passed no. title to the money payable thereon, and that in an action for money had and received to his use the vendor of the lot could recover this money from the vendee.</p>

Louis Circuit Court. An employer is not liable for damages to a servant, occasioned by the negligence of a co-servant while engaged in the same general employment. — McDermot v. Pacific R. Go., 30 • Mo. 115; Rollback v. Pacific R. Go., 43 Mo. 187; Gibson v. Pacific R. Go., 46 Mo. 163 ; Wigmore v. Jag, 5 Exch. 345.

Louis Circuit Court. Tbe act of February 22, 1875, under wbicb tbe proceeding was bad, does not provide for tbe extension of a street, and tbe court bad no power to assess appellant for any such purpose. — Smith v. City of Toledo, 24 Ohio St. 126. See Swan & S. Ohio Stat. 834. And tbe law providing, of attempting to provide, for such assessments must be construed stricti juris.

Louis Circuit Court. The custom of the defendant could not be shown to do away with the provisions of a contract. — 2 Pars, on Con. 59 ; Atkinson v. Allen, 29 Ind. 375 ; Raffert v. Scroggins, 40 Ind. 195; King v. .Enterprise Ins. Go., 45 Ind. 43. Where the insurer does nothing, up to the time of the death of the insured, to indicate that he considers the policy lapsed or commuted, it is then too late to insist upon a forfeiture.

If there is a doubt as to the constitutionality of the law, it must be upheld. — The State v.Oape Girardeau R. Go., 48 Mo. 468 ; Slade v. Jacob, 8 W. Va. 612; Attorney General v. Gity of Eau Olaire, 37 Wis. 400 ; McOormidc v. Alexander, 2 Ohio St. 75. As to when a law is or is not “local” or “ special.” — Gonner v. Mayor, 5 N. Y. 285 ; Phillips v. Mayor, 1 Hilt. 483 ; The People v. Stephens, 2 Abb. Pr.

Louis Circuit Court. It was error, and an abuse1 of the discretion of the court, to limit counsel in the argument to thirty minutes. — The State v. Linney, 52 Mo. 42; Trice y. Hannibal & St. Joseph R. Go., 35 Mo. 216; The State v. Page, 21 Mo. 257, Scott dissenting, p. 260. Only those errors to> which the attention of the court below was called in the motion for new • trial will be reviewed by an appellate court. — Lancaster, Admr., etc., v. Washington Ins.

Louis Circuit Court. Corporations, where not restrained by their charters, may adopt all reasonable modes in the execution of their business that a natural person may adopt in the doing of like business.

Louis Circuit Court. There must be an order •of court revoking the appointment of a female guardian; though she marry after her appointment, this will not of itself work a revocation. — 1 Williams on Ex. 488, 449; Post v. Ooult, 3 Mo. 36. The judgment of the Probate •Court could not be attacked collaterally. — Qraignon v. Astor, 2 How. 319 ; Voorhies v. Banle, 10 Pet. 449 ; Philadelphia, etc., R. Qo. v. Stimpson, 14 Pet. 448 ; Codee v. Halsey, 16 Pet. 87.

Louis Circuit Court. A vendor of laud conveyed by deed has a lien upon the land for the unpaid consideration, against vendee and purchasers from him with notice. — McLean v. McLellan, 10 Pet. 625 ; Diebler v. Boswiclc, 4 Blackf. 339; Watson v. Wells, 5 Conn. 468; Garson v. Green, 1 Johns. Ch. 308 ; Bagley v. Green-leaf, 7 Wheat. 46, 50 ; Davis v. Lamb, 30 Mo. 441.

Partition will not lie where defendant is in adverse possession.— Gravier y. Ivory, 34 Mo. 522. There was a misjoinder of causes of action. — Lambert v. Blumenthal, 26 Mo. 471; Lozier y. Johnson, 35 Mo. 326 ; Forder y. Davis, 38 Mo. 107 ; Shaw et al. v. Gregore, 41 Mo. 407. It was error to-allow plaintiff to annul his petition. — Big. on Estop. 578; Lodermund y. Olarlc, 46 N. Y. 354.

Louis Circuit Court. It was necessary that the survey be returned to the recorder of land titles before April 26, 1822, to effect an appropriation of the land. — Brodericlc v. Bagnell, 13 Pet. 436; Bector v. Ashley, 6 Wall. 142; Maclcay v. Bastón, 19 Wall. 619. The certificate of acknowledgment of a sheriff’s deed must be attested by a seal. — Allen v. Bing, 35 Mo. 216; Byan v. Oarr, 46 Mo. 484; Adams v. Buchanan, 49 Mo. 64 ; Harvey v. Bamsey, 49 Mo. 309.

<p>Where a city charter provides that no improvement shall be ordered “except by ordinance which shall set apart a specific appropriation for the work ordered,” a contractor cannot recover for work done under order of the city engineer, when he knew, or might have known, that the work was in excess of the appropriation therefor. Such charter provision was a fact of which the contractor was bound to take notice.</p>

Louis Circuit Court. A check is an appropriation of the fund. — Morrison v. McCartney, 30 Mo. 88 ; Chou-teau v. Rowse, 56 Mo. 67. An appropriation of the fund is an equitable assignment of it. — Danlclessen v. Brainard, 3 Daly, 183 ; Christmas v. Russell, 14 Wall. 69. And suit may be maintained on the check by the payee against the bank, without acceptance. — Roberts v. Corbin, 26 Iowa, ■315 ; Chicago, etc., Ins.

<p>Appeal from St. Louis Circuit Court.</p> <p>Rights of the mortgagee to rents after condition broken. — 1 Pow. on Mort. 171-175; 1 Hill, on Mort., sec. 28; Oakery. Pearsall, 6 Ala. 542; Smithy. Taylor, 9 Ala. 637; Hutchinson y. Peering, 20 Ala. 802, and cases cited; Masony y. United States Bank, 4 Ala. 735; Henshaw y. Wells, 9 Humph. 582 ; Johnston y. Jones, 9 Ad. & E. 809; Bab-cocky. Kennedy, 1 Yt. 457; Coote on L. & T. 519, 605; Taylor on L. & T., 6th ed., sec. 119 ; Honacker y. Shough, 55 Mo. 472. Subrogation. — McQueen y.Peay, 58 Mo. 56; Wolff y. Walter, 56 Mo. 295. The beneficiary in a deed of trust, who has obtained possession after condition broken, holds the title against the grantor in the deed until performance of the condition. — Johnston y. Houston, 47 Mo. 227.</p> <p>The mortgageor, until entry by the mortgagee, is entitled to the profits of the land. — Kennetty. Plumer, 28 Mo. 145; Wilder y. Houghton, 1 Pick. 88 ; Mayo v. Fletcher, 14 Pick. 525 ; McKirchenY. Haivley, 16 Johns. 290 ; Kieldv. Swan, 10 Mete. 113 ; Galveston R. Co. v. Cowdrey, 11 Wall. 483. Mortgagee cannot recover until demand. —Peters v. Ellcins, 14 Ohio, 345; Noyes v. Rich, 52 Me. 116; Rogers y. Humphreys, 4 Ad. & E. 315; Evans v. Eliot, '9 Ad. & E. 355 ; Kimbal y. Eoclcivood, 6 R. I. 138 ; Trent v. Hunt, 9 Exch. 21. The mortgagee must adopt the mode of enforcing his right of entry provided by the mortgage. — Gilman v. Telegraph Go., 1 Otto, 603; Douglas v. Gline, Cent. L. J., Oct. 14, 1876; American Bridge Go.y. Hil-derbach, 4 Cent. L. J. 367.</p>

. The city of St. Louis is not a county. — The State v. Merriman, 6 Wis. 14. Where a county is divided, that portion in which a county government is for the first time organized is the new county.— The People v. Maguire, 32 Cal. 140; Buclcingllouse v. Gregg, 19 Iud. 401; 9 Texas, 336; 12 Texas, 395 ; 25-Texas, 29 18 Mo. 566 ; 17 Mo. 576.

<p>A perpetual injunction was granted restraining H., a contractor, and the city of St. Louis, from opening and improving a proposed street, on the ground that the land to be taken for the street had never been dedicated to public use. A motion was made for a new trial, on the ground that the ordinance directing the work to be done had been subsequently repealed. Held, that the repeal of the ordinance was conclusive in favor of the injunction, and not a ground for dissolving the injunction.</p>

<p>Ereoe to St. Louis Circuit Court.</p> <p>cited: Youngblood y. Vastine, 46 Mo. 239; Callaway r. Vast, 50 Mo. 420; Story’s Eq. Jur., secs. 165, 176 ; Kerr on Fraud, 436 Rhodes v. Outcault, 48 Mo. 367 ; Bispham’s Eq., sec. 191.</p> <p>Deeds, mistake in, and correction. — Leitensdorfer v. Delphy, 15 Mo. 160; Hunt v. Rousmainer, 1 Pet. 13 Morgan v. Rouse, 53 Mo. 219 ; Rhodes v. Outcault, 48 Mo. 367; Young y. Coleman, 43 Mo. 179. Notice. — Kerr on Fraud, 419 ; Scliwiclcerath v. Coolcsey, 53 Mo. 75 ; Story’s-Eq. Jur., sec. 165 ; 12 Serg. & R. 389 ; Stoffel v. Schroeder, 62 Mo. 147 ; Mann v. J3esi, 62 Mo. 473 ; Major y. Burkly, 51 Mo. 227; Shumate v. Reavis, 49 Mo. 333; Bispham’s Eq., sec. 268 ; 2 Ld. Cas. in Eq. 127 ; Livermore y. Blood,. 40 Mo. 48; Haywood v. Insurance Go., 52 Mo. 81; 11 Wall. 365. There maybe an equitable defence to an action of ejectment. — Hayden v. Stewart, 27 Mo. 286; Tibeaw y. Tibeaw, 19 Mo. 78 ; Maguire v. Vice, 20 Mo. 429 ; Sutton v. Mason, 38 Mo. 120'; Canman v. Johnson, 20 Mo. 104; Moak’s Van Sant. PI. 587 ; Cythe v. LaFontaine, 51 Barb. 186. May ask for a correction of deed in defence. Sutton y. Mason, 38 Mo. 120; Gravy v. Goodman, 12 N. Y. 266 ; Phillips y. Graham, 17 N. Y. 271; Dobson v* Pierce, 12 N. Y. 156.</p>

Louis Circuit Court. A proceeding by scire facias to enforce against the surety on a bond a judgment against the principal is an action at law. — Milsap v. Wildman, 5 Mo. 428 ; Humphrey v. Lundy, 37 Mo. 323 ; JBently v. Levier, 1 Hempst. 249 ; Kelly on Scire Facias, 304, 378 ; The State v. Randolph, 22 Mo. 474, 483.

<p>ApplicatioN for quo warranto.</p>

<p>An information charging an offence, but not naming the person accused, is a nullity, and a defendant arrested upon a warrant issued under such information, upon his arraignment, is entitled to immediate release; and if his motion for dismissal be overruled, and he is held until a new information is filed, upon which he is convicted, such conviction will be set aside and the defendant discharged.</p>

<p>1. Where a life insurance policy, to be paid up in ten years, contained stipulations for the cash payment, by the insured, of certain quarterly premiums, and for the execution by him, to the insurer, of annual premium notes, the interest on which was to be paid annually; and provided that should default be made in the payment of any premiums, the insurer would pay-as many tenth parts of the sum insured as there had been complete annual premiums paid; held, that the payment of the notes was not neeessary to constitute, with the interest thereon, and the quarterly cash premiums,, the complete annual premiums; and the holder of the policy was entitled, on the death of the insured, to a paid-up policy for as many tenths of the-sum insured as there were annual premiums paid, without including in such, payments the annual premium notes.</p> <p>2. Where the premium note stipulates that a failure to pay interest thereon should forfeit the policy, but the policy provided that after a complete annual premium had been paid it should be non-forfeiting, courts will not permit the manifest intent of the parties, as declared in the policy, to be: defeated by this inconsistent expression in a collateral instrument.</p>

Louis Criminal Court. Where it appears that the defendant has been injured by a refusal to give time to procure a witness, this is ground for a reversal. — The State v. Klinger, 43 Mo. 130. A depart- ure from prescribed formalities in making up a jury-list is a ground for a new trial. —Holme v. The State, 54 Mo. 153. Embezzlement; criminal intent. — 1 Bishop’s Cr. Law, secs. , 286-288 ; Kelly’s Cr. Law, secs. 582, 601.

<p>The rights of a cheek-holder and of the hank are fixed when the check is presented for payment, and the hank has no right to pay or satisfy out of the fund thus appropriated other cheeks or demands subsequently presented, or demands which subsequently accrued to the hank or others; nor can the hank retain the money against the check-holder under claim of an equitable lien for a debt by the drawer, not yet matured.</p>

<p>The treasurer of a private corporation cannot he summoned as garnishee at the suit of a creditor of the corporation.</p>

Louis Circuit Court. cited : Stone v. Qorbett, 20 Mo. 350; Murray v. Sunderland, Mo. Sup. Ct. (not reported). Legislative intent. —Schultz v. Pacific R. Go, 36 Mo. 13 ; The State v. Jaeger, 63 Mo. 409. An action against the endorser is an action on the note. —Wag. Stat. 217, sec. 16 ; 2 Bouv. L. Die. 386 ; Story on Prom. Notes, 1st ed., sec. 4.

Louis Circuit Court. The devise of an estate with power of disposal will pass the fee. — Hazel v. Hogan, 47 Mo. 277 ; Pendleton v. Bell, 82 Mo. 100 ; Wommach v. Whitmore, 58 Mo. 456 ; Bryan v. Christian, 58 Mo. 102; Bubey v. Barnett, 12 Mo. 7 ; Turner v. Timberlahe, 53 Mo. 378. Upon the death of the wife the title passed to her heir at law. — Roberts v. Moseley, 51 Mo. 286; 2 Washb. on Real Prop., 3d ed., 461, sec. 45.

<p>A railroad corporation cannot, under the statute, purchase the subscription notes or obligations given by stockholders to another railroad corporation, and enforce them against the subscribers; and the fact that one railroad corporation has bought the road-bed of another railroad corporation, intending to complete the road, gives the purchaser no right to purchase-the vendor’s stock subscriptions and enforce them, against the subscribers-</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Trorlieht v. Weiz-enecher, 1 Mo. App. 482; Lightfoot v. Oolgin, 5 Munf. 42; Durvet v. Tyrer, 58 Mo. 551; Hornsey v. Casey, 21 Mo. 371; 14 Mo. 495 ; 16 Mo. 250.</p> <p>cited: Davis v. Davis, 8 Mo. 183; Stone v. Stone, 18 Mo. 389 ; Tuclcer v. Tuclcer, 29 Mo. 353, and 32 Mo. 464; Smith v. Fellows, 29 Ark. 62.</p>

Louis Circuit Court. A condition in a policy avoiding it if the property be sold is not bfoken by the sale of an interest in the property; the policy covers the interest remaining in the assured. — 8cardan v. Insurance Go., 4 Biss. 511; AEtna Ins. Go. v. Tyler, 16 Wend. 385 ; Insurance Go. v. Helfenstein, 40 Pa. St. 289 ; Ayers v. Insurance Go., 17 Iowa, 176; Mauley v. Insurance Go., 1 Lans. 20.

<p>Appeal from St. Louis Circuit Court.</p> <p>A judgment erroneous as to one defendant is erroneous as to both. — See Smith v. Rollins, 25 Mo. 408; Pomeroy y.Bets, 81 Mo. 419 ; Covenant Mutual Ins. Co. v. Clover, 39 Mo. 392; Farmers’ Panic, etc., v. Bayless, 41, 274. Corporations must have a name. —Ang. & Ames on Corp. 99 ; Smith’s Merc. Law, 133. Corporations can make no contracts éxcept such as-are either expressly provided for in their charter, or such as-are necessary to carry into effect their corporate powers. — Ang. & Ames on Corp., 11th ed., secs. 256, 239 ; Story on Con., sec. 394; Iiuggles v. Collier, 43 Mo. 375 ; Hannibal & St. Joseph R. Co. v. Marion County, 36 Mo. 294; City of St. Louis v. Weber, 44 Mo. 547 ; Blair v. Perpetual Ins. Co., 10 Mo'. 360. Estoppel. —Aug. & Ames on Corp. 239, at bottom.</p> <p>Estoppel. —United States Express Co. v. Bradbury, 34 Ill. 459 ; National Ins. Co. v. Bowman, 60 Mo. 252; Stod-dard v. Onondaga Annual Conference, 12 Barb. 573 ; East' River Banlc v. Rogers, 7 Barb. 493 ; Dutchess Cotton Man. Co. y. Davis, 14 Johns. 238. Agency. — Story on Ag.,. secs. 160, 161, 278, 291, 300.</p>

<p>1. In case of the death of the judge who tried the cause, his successor is not hound to grant a new trial for the sole reason that he did not preside at the trial; but where the agreed statement of facts, pleadings, instructions, and all things else necessary to a determination of the cause are as fully and completely before him as they were before his predecessor, he may sign a bill of exceptions.</p> <p>2. In an action on a special tax bill, where the work done is chargeable to contiguous lots, it is error to render judgment subjecting the lots collectively to the aggregate cost of the whole improvement.</p> <p>3. In such an action, where it is admitted that the defendant owns only an undivided half of the property sought to be charged with the work, and that another person named owns the other half, it is proper that such other person should be made a party defendant, and prudence requires that this, be done. *</p>

<p>1. A promissory note, endorsed by a firm, was protested for non-payment, and notices of protest to all parties concerned were delivered to a member oí tbe firm, whp, instead of mailing notice directly to a previous endorser, sent it to bis partner, residing in the same city as the previous endorser, in consequence of which the time of giving notice to the latter was double that of tbe due course of mail. Held, that the previous endorser was released.</p> <p>2. It is error to give declarations of law to the jury where there are no facts in evidence to which the law could apply.</p>

Louis Circuit Court. Jurisdiction may be en-quired into in an action on a foreign judgment. — Marks v. Fore, 51 Mo. 69; Eagar v. Stover, 59 Mo. 85; Thompson-v. Whitman, 18 Wall. 457 ; Knowles v. Gas-light and Colee-Co., 19 Wall. 59. The want of service may be shown by the-record. — Allen v. Blunt, 1 Blatchf. 480; Rangley v. Webster, 11 N. H. 304; The Commonwealth v. Blood, 97 Mass. 538.

Louis Court of Criminal Correction. ■ Municipal corporations cannot impose taxes unless authorized by the Legislature.— Const. 1875, art. 10, secs. 1, 10; Dill, on Mun. Corp., secs. 605, 606 ; Cooley’s Const. Lim. 517, 518. The power cannot be inferred. —Ruggles v. Collier, 43 Mo. 375 ; City of St. Louis v. Clemens, 43 Mo. 404; Hitchcock v. City of St. Louis, 49 Mo. 488 ; City of St. Louis v. Laughlin, 49 Mo. 559.

Louis Circuit Court. An injunction will not lie to stay an execution sale simply on the ground that it will pass no title, and may cast a cloud on the title of the true owner. — Dralce v. Jones, 27 Mo. 428; Kuhm v. McNeil, 47 Mo. 389.

Louis Circuit Court. Guaranty. — Rankin v. Ohilds, 9 Mo. 673; Central Savings-Bank v. Shine, 48 Mo. 456; 2 Pars, on Con. 18 ; 2 Story on Con., sec. 1123. When plaintiff sets up a contract in his petition, he cannot recover on a different contract, though it be set up in the defendant’s answer.- — Perry v. Barret, 18 Mo. 145. Pleadings ; departure. — The State v. Grimsley, 19 Mo. 177; Sterns v. Patterson, 14 Johns. 132; Palmer v. Stone, 2 Wilson, 96.

<p>Error to St. Louis Circuit Court.</p> <p>cited: Scudder v. Union National Bank, 2 Cent. L. J. 829 • Townsley v. Sumrall, 2 Pet. 176 ; Boyce v. Edwards, 4 Pet. 111.</p> <p>cited : Wag. Stat. 1012, sec. 2.</p>

Louis Circuit Court. A foreign administrator cannot sue on rights given by the statutes of another State. 3 Redf. on Wills, 25, note ; Richardson v. New York Central R. Co., 98 Mass. 85; Woodward v. Railroad Co., 10 Ohio (n. s.), 112; Needham v. Grand Trunk R. Co., 38-Yt. 394.

<p>1. An order dissolving an injunction and dismissing the hill is a final decree from which an appeal may he taken.</p> <p>2. It is no excuse or justification for failure to prosecute an appeal taken from such an order, that a motion for the assessment of damages upon the hond was subsequently made, and damages assessed by the trial court.</p> <p>•3. ’Where an appeal is perfected, the cause is pending in the appellate court, and no further order can he made in the cause by the trial court, unless it he an order vacating the appeal, made during the term.</p>

<p>1. Where one, at the very moment when he knows a train is expected to arrive, goes upon a railroad track in front of an approaching train, which, by the proper exercise of his faculties, he must have seen and heard, the mere fact that the locomotive bell was not sounded as required by law will not make the railroad company liable for any damages which may result.</p> <p>2. Where plaintiff seeks to hold defendant liable for an injury done, the burden is on him to show that defendant’s negligence was the direct and proximate cause of the injury; and where the undisputed evidence shows that, though defendant was negligent, the causes which operated directly to produce the injury complained of are attributable to the plaintiff himself, there can be no recovery.</p> <p>S. Where the issue made by the pleadings, and upon which the case was tried, was whether the injury was attributable to the failure of defendant to signal the approach of a train, and the undisputed evidence shows that it was not attributable to this cause, a verdict for plaintiff will be set aside as being without evidence to support it, though there be evidence tending to show that, but for the negligence of defendant in not reversing the engine, the injury might have been avoided.</p> <p>4. Under a general allegation of negligence plaintiff cannot recover. Where the proof docs not correspond with the allegations of the petition, plaintiff should ask leave to amend during the trial.</p>

Louis Circuit Court. Instructions as to murder in tbe second degree should have been given. — Wag. Stat. 1106, sec. 30 ; Hardy v. The State, 7 Mo. 609 ; The State v. Byrne, 24 Mo. 55 ; The State v. Bryant, 55 Mo. 75 ; Foster v. The People, 50 N. Y. 601. The possibility of prejudice through error of the court which tried “the accused is fatal to a judgment pronounced on a verdict of guilty. — The State v. Brown, 1 Mo.

<p>1. Where the owner knowingly permits a brothel to be established and maintained in his house, which adjoins a tenement of another, by reason of which the latter’s tenants leave, and his property is depreciated in value, the former is liable to the latter for the special damage thereby caused him, over and above the wrong and injury done to the general public.</p> <p>2. In such, a case the measure of damages is the difference in the selling value of the property and the loss of rent occasioned by such nuisance.</p> <p>3. In ascertaining these facts, all circumstances that would show a depreciation in value should be considered, and the damage recovered must be the actual depreciation shown to be caused by the existence of the nuisance.</p> <p>4. "Where it is shown that, after defendant’s house was occupied as a brothel, other houses of the same character were opened in the same neighborhood, so that the damage caused by others cannot be separated from that caused by defendant, he will be liable for all such damage, if the natural and probable consequence of his illegal act was to cause the injury complained of.</p> <p>5. It is ex-ror to give an instruction where there is no evidence in the case upon which to base it, though it be abstractly correct.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Keber v. Mercantile Banlc, ante, p. 195.</p> <p>cited: Gasper son v. sSproule, 39 Mo. 39 ; Mysenburg v. Schlujper, 48 Mo. 431.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: Kor veil v. jPorter, 62 Mo, 309 ; Moore v. Whitcomb, 48 Mo. 542; 45 Mo. 470 ; Moore v. Hamilton, 2 Gill, 429.</p>

<p>1. Where a cause is submitted to the court upon a statement -which not only-sets out the facts, but contains a clause which indicates the question submitted for decision, a determination of that question determines the cause, though other issues were made by the pleadings.</p> <p>2. A broker may recover his commissions for services rendered in finding a purchaser for certain goods, even though the contract of sale between the buyer and seller, made after the broker’s services were performed, was immoral and against public policy as a wager contract; nor is the question affected by the broker’s knowledge of the character of the contract, he not being a party thereto.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>cited: King v. Richer-man, 11 Gray, 480.</p> <p>cited: Presberry v. Presberry, 13 Allen, 281; Mason v. Finch, 1 Scam. 495 ; Childs v. Connelly, 9 Dana, 385.</p>

<p>A suit by attachment, instituted on a claim not due, must be dismissed where the issue on the plea in abatement is found for the defendant.</p>

Louis Circuit Court. The secured notes, were not paid. The acts of the parties did not constitute a payment. —Byles on Bills, 175 ; Pacific Banlc v. Mitchell, 9 Mete. 297 ; Chitty on Bills, 321; Dodge v. Freedman’s,. etc., Co., 3 Otto, 79 ; Harbeclc v. Vanderbilt, 20 N. Y. 395 ; Thompson r. Kellogg, 23 Mo. 284; Howard v. Jones, 33 Mo. 583 ; Appleton v. Kennen, 19 Mo. 637.

Louis Circuit Court. Where the word “may” is used in a statute, its ordinary meaning will be presumed to be intended, unless it would manifestly defeat the object of the provision. — Minor v. Mechanics’ Bank of Alexandria,A Pet. 64; NeuiYorlc & Frie R. Go. Y.Ooburn,. 6 How. Pr. 224; Gentler v. Hoioard, 9 Wis. 309 ; Wheeler v. Gity of Chicago, 24 Ill. 105 ; Williamson v. Anthony,. 47 Mo. 300.

Louis Circuit Court. Contracts between guardian and ward which are favorable to the guardian and injurious to the ward are presumptively void. — Garvin v. Williams, 44 Mo. 465 ; Ybsúi v. Laughran, 49 Mo. 594 ; Oadwallader v. West, 48 Mo. 483. A trustee cannot take beneficially, by gift or purchase, from the cestui que trust.— Perry on Tr., sec. 195; Coles v. Trecothick, 9 Ves. 234; Taylor v. Taylor, 8 How. 199 ; Bspy v. Lake, 10 Hare, 260.