Volume 7 — Missouri Appeal Reports

<p>Error to St. Louis Circuit Court.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>McDermott v. Donegan, 44 Mo. 85 ; /Smith v. Heidecher, 38 Mo. 156 ; Funlchouser v. Fvelcmd, 3 Mo. App. 602 ; Wag. Stats., p. 666, sect. 17, p. 1019, sect. 36.</p>

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

Louis Circuit Court. The burden rested on respondent to prove, not only the contract as alleged, but also the authority of the agent, with whom he claimed to have made it, to make the contract on behalf of appellant. — Bank v. McKnight, 2 Mo. 42; Swearingen v. Knox, 10 Mo. 31; Soné v. Palmer, 28 Mo. 539 ; First National Bank v. Hogan, 47 Mo. 472 ; Wahrendorf v. Whitaker, 1 Mo. 205; Cravens v. Gillilan, 63 Mo. 28; Boogher v. Insurance Co., 6 Mo. App. 592.

<p>Error to St. Louis Court of Appeals.</p>

<p>1. Where an architect, under the expectation of being employed as superintendent, voluntarily draws plans, with the understanding that no charge is to he made for them, he cannot recover for the plans, if not employed as superintendent.</p> <p>2. To warrant a recovery for work done, there must be some evidence of a promise, either express or implied, to pay for the work.</p>

Louis Criminal Court. The declaration of the deceased, not being a part of the res gestas nor made in articulo mortis, was incompetent.— The State v. Simeon, 50 Mo. 370'; The Stale v. McCurran, 51 Mo. 160; McMillan v. The State, 13 Mo. 27 ; The State v. Dominique, 30 Mo. 585; The State v. Sloan, 47 Mo. 604; Ladd v. Gozzens, 35 Mo. 516 ; Brownell v. Railroad Go, 47 M'o. 239 ; The State v. Brown, 64 Mo. 371.

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

<p>Where the judge, in a criminal case, after the jury have retired, directs the marshal, in the presence of the prisoner and his counsel, to go and see if the jury want any further instructions, and the marshal returns and reports that the jury want no further instructions, but will report in a few minutes, and the jury shortly after return a verdict of guilty, this is no such communication between the judge and jury, while the latter are considering the case, as warrants a reversal. ,</p>

Louis Circuit Court. The bank is chargeable with fraudulent acts and representations done and made for the purpose of effecting the sale. —Bank v. Peck, 29 Conn. 384; Wannall v. Hem, 57 Mo. 478; Bank v. Gh'egg, 14 N. H. 331 ; Hatch v. Taylor, 10 N. H. 538.

Louis Circuit Court. The fact that the Council passed the ordinance was sufficient to show the necessity for the work. — Miller v. Anheuser, 2 Mo. App. 169 ; The Oity v. QSters, 36 Mo. 460. And there was no necessity for looking to the preamble. —Young v. The Oity, 47 Mo. 492 ; Townsend v. Hoyle, 20 Conn. 1-9.

Louis Circuit Court. A prohibition against keeping a milk dairy, being in restraint of trade, will be strictly construed. —Harrison v. Brooks, 20 Ga. 537 ; Trustees, etc. v. Lynch, 39 N. Y. 383. The general rule is that an injunction will not be 'granted where no injury is shown, and courts of equity will not, by-injunction, enforce a naked legal right. —Bosbyr. McKim, 7 Har. & J. 469 ; Railroad Oo. v. Guy on, 6 Bush, 486 ; Railroad Go. v. Baker, 27 N. J. Eq. 166.

<p>An injunction -will be granted to restrain tbe. owner and lessor of premises leased for ten years from erecting a building upon a portion of tbe leased premises in such a way as to seriously impair tbe lessee’s use of the property.</p>

Louis Circuit Court. It must appear that the defendant was in possession of the property at the time the action was commenced. — Davis v. Randolph, 3 Mo. App. 454; Wallace v. Brown, 17 Ark. 449; Hichey v. Hinsdale, 12 Mich. 99. A judgment for the value absolutely, or for the damages without assessment of the value, is not merely irregular, but is erroneous.— Wag. Stats. 1026, sect. 14; Phillips v. Milville, 17 N. Y. Sup.

<p>The measure of damages for the breach of an agreement to deliver a paid-up policy of insurance, where there is an existing risk and the premiums paid were eai'ned, is the value of the paid-up policy at the time of the demand and refusal, and interest.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>Fisher v. Hildreth, 117 Mass. 562; Humphreys v. Magee, 13 Mo. 435; McKee v. Manice, 11 Cush. 361; Richardson v. Kelly, 85 111. 491; McDonough v. Webster, 68 Me. 531.</p> <p>Hiclcerson v. Benson, 8 Mo. 11; Waterman v. Ruckland, 1 Mo. App. 45 ; Humphreys v. Magee, 13 Mo. 435 ; Johnston v. Russell, 37 Cal. 670.</p>

Louis Circuit Court. The name National Slipper Company either implies prima facie a corporation. (Aug. & Ames on Corp., 10th ed., sect. 635 ; Troy Congregational Soc. v. Perry, 6 N. H. 164, 165), or it implies prima facie an association of persons. — Williams v. Bank, 7 Wend. 542 ; Bank v. Stearns, 15 Wend. 316.

Louis Circuit Court. Without proof of an ordinance authorizing the contract, the tax-bill will not support a judgment. — Ilaegéle v. Mallinckrodt, 46 Mo. 577 ; Charter 1871, Art. VIII., sects. 7,. 15 ; Rev. Ord. 1877, pp. 99,101; Sess. Acts 1866, p. 298 ; Charter 1877, p. 98. .

Louis Circuit Court; It was error to allow consequential damages in this action. — Flaherty v. Taylor, 35 Mo. 447; Smith v. Way, 9 Alien, 472 ; Bennett v. Hood, 1 Allen, 47 ; Norton v. Doherty, 3 Gray., 372 ; Bwnett v. Smith, 4 Gray, 50. The bond taken by the officer protected him. — Bradley v. Holloioay, 28 Mo. 150 ; The State v. Watson, 30 Mo. 122. The verdict was informal and fatally defective. —Schweickhardt v. St. Louis, 2 Mo. App. 582.

Louis Circuit Court. The judgment is erroneous, — (1.) Because the agreed statement does not show, or tend to show that the strip referred to did not belong to the city ; and the burden was on defendants to show this. — Seibert v. Allen, 61 Mo. 482 ; Ess v. Bouton et al., 64 Mo. 106 ; Grimm v. Schickle, 4 Mo. App. 586 ; Schultze v. De Menilet al., 4 Mo. App. 595.

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

The joinder of two or more distinct offences in one countwill not be permitted.— The State v. Howe, 1 Rich. 260; Reed v. Parker, 1 Park. Cr. 481; United States v. Sharp, Pet. C. Ct. 131; The State v. Bridges, 24 Mo. 353 ; The Commonwealth v. Simonds, 2 Mass. 163. The information charged but one offence.— The State v. Hindman, 4 Mo. App. 582 ; The State v. Murphy, 47 Mo. 274.

<p>Appeal from St. Louis Circuit Court.</p> <p>The Circuit Court was the proper tribunal.— Groome v. Guinn, 43 Md. 572. Quo warranto was the proper proceeding. — McCrary on Elec. 264; Walker’s Am. Law, 556; 3 Bla. Comm. 263. The State ex rel. v. Fourley, 56 Mo. 113 ; The State ex rel. v. Kemp, 46 Mo. 528 ; Hunter v. Chandler, 45 Mo. 452 ; The State ex rel. v. Lingo, 26 Mo. 496 ; The State ex rel. v. Stewart, 32 Mo. 379 ; The State ex rel. v.- Lawrence, 38 Mo. 535. In such a proceeding the ballots may be examined. — The State ex rel. v. Sutton, 3 Mo. App. 388 ; Taylor v. Taylor, 10 Minn. 107 ; The People v. Jones, 20 Cal. 50 ; Calaveras County v. Brockway, 30 Cal. 325 ; The State v. Johnson, 17 Ark. 407 ; The People v. Seaman, 5 Am. Dec. 409 ; Attorney-General v. Barstow, 4 Wis. 567 ; 17 111. 167.</p> <p>Under sect. 3 of art. 8 of the Constitution,.the ballots cannot be counted except under such regulations as may be prescribed, and as no act under this provision has been passed, there is a casus omissus. — Stamps v. Bridwell, 57 Mo. 22 ; Ex parte Donaldson, 44 Mo. 149. The right to count and compare the ballots is to be given only in “ contested election ” cases, not in cases of “ quo luarranto. ” — The State ex rel. v.Eourley, 56 Mo. 113; The State ex rel. v. Vail,. 53 Mo. 97, 117, 118. In the Muncipal Assembly, the mayor, and the comptroller was vested the jurisdiction to try this case. —Rev. Stats., sect. 5494 ; Wag. Stats. 573. sect. 50. There being a tribunal wherein the contest of this election may be tried, namely, the Municipal Assembly of the City of St. Louis, that mode of trial is exclusive, and the relator here has on that ground also no right to go behind the respondent’s commission. —High on Rem, sect. 617 ; The State v. Marlow, 15 Ohio St. 114; The State v. Taylor, 15 Ohio St. 137 ; The State v. Buskirk, 43 Mo.—</p>

Louis Circuit Court. The reasons for the rule which at common law precluded the administrator from suing for property given by his intestate in fraud of his creditors were, first, that he was the representative only of his intestate, and, second, that creditors might sue the fraudhlent donee as executor de son tort. — Babcock v. Booth, 5 Hill, 181; 4 Bac.

Louis Circuit Court. Information which came to the defendant before causing the plaintiff’s arrest, whether true or false, was competent and material evidence.— 1 Greeul. on Ev., sect. 101; Barron v. Mason, 31 Vt. 189. The defendant should have been permitted to state fully what he told his counsel when seeking advice. — Sharpe v. Johnston, 59 Mo. 577 ; Hill v. Palm, 38 Mo. 13.

Louis Circuit Court. The decree upon which the defendant rests his case is void. — 2 Whart. on Ev., sect. 796 ; Bowden v. Fitch, 15 Johns. 121; Bowers v. Bowers, 19 Mo. 351; 58 Mo. 141; 47 Miss. 170; 39 Cal. 646 ; 42 Miss. 506 ; 41 Miss. 89 ; (Jóle v. Oole, 3 Mo. App. 571. Upon jurisdictional questions the record may be contradicted. — Egler v. 8tone, 59 Mr. 89.

Louis Circuit Court. The account filed was not a true account. — McWilliams v. Allen, 45 Mo. 474. The question as to whether the materials actually went into the building is one of fact, and will not be reviewed in an appellate court. —Davis v. Farr, 13 Pa. St. 167.

<p>A tenant’s obligation to pay rent arises from the covenants in his lease, and when he holds over by consent, his obligation continues as before. A change of ownership of the land does not, where there is no divestiture, enable the new owner to sue the tenant for rent accruing during the period of his ownership.</p>

<p>1. 'Where an ineligible candidate receives the highest number of votes, the votes cast for such person so far avail as to prevent the election of a qualified candidate who has received the next highest number of votes.</p> <p>2. Where the voter can make his vote eifective only by voting for an ineligible candidate, and thus securing a new election, at which the majority can elect, it cannot be assumed, nor upon grounds of public policy held, that the voter intended to throw away his vote.</p> <p>3. Though the fact that the candidate died on the morning of the election, before the polls were opened, is known to the voters and the judges of election, if the deceased receives the highest number of votes they avail to defeat the opposing candidate.</p>

Louis Circuit Court. “ In an action on a mechanic’s lien, the statutory averments are material; they are the essential facts that show the claim to be protected by the lien. ” —Peck v. Bridwell, 6 Mo. App. 451; Porter v. Tooke, 35 Mo. 107 ; Wilcox v. Keith, 3 Or. 372. An omission of such averments is not cured by verdict. — Langsdorf v. Sanger, 40 Mo. 164; Shaw v. Allen, 24 Wis. 563.

Louis Circuit Court. The court erred in permitting the case to go to the jury.

Louis Circuit Court. A voluntary payment, which one with full knowledge of the facts has made to the other, cannot be recovered back.

Louis Circuit Court. The contract was not executed until a divorce was obtained between the parties, and when an actual separation had taken place ; and when executed, the provisions thereof referred to the alimony and support of the wife, and were in all respects valid. — 2 Story’s Eq., sects. 1427,1428 ; Simpson v. Simpson, 4 Dana, 141; Wilson v. Wilson, 14 Sim. (in 37 Eng'.

<p>1. Property taxed for revenue may be also subjected to a license-tax.</p> <p>2. A hotel-license may be graduated by the number of rooms devoted to public accommodation; and it is not necessary, to justify the tax, that the num. her of rooms actually used should be proved.</p>

Louis Circuit Court. The indorser of a note is not discharged in consequence of discharging the maker, where it is done with the consent of the indorser. — Story on Bills, sect. 426., So, also, if the other parties concur in granting the delay, and in the agreement for that purpose, they can have no ground to complain that it is to their injury, for volenti non fit injuria. — Bayley on Bills (5th ed.), 340, 341, chap. 9 (1830) ; id. 359, 360, 364 (1836) ; Suckley v. Furse,…

Louis Circuit Court. A vote of a corporation, entered on their records and signed by the clerk, is a sufficient memorandum.— Tufts v. Mining Oo., 14 Allen, 407 ; Johnson v. Trinity Ohurch, 11 Allen, 123; Gha.se v. Lowell, 7 Gray, 33 ; Rhodes v. Qastner, 12 Allen, 130. Only the signature of the party to be charged is required.— Flight v. Holland, 4 Russ. 298; Shirley v. Shirley, 7 Blackf. 452 ; Glaison v. Bailey, 14 Johns. 484 ; Railroad Go. v. Evans, 6 Gray, 25.

Louis Circuit Court. In any event, the repovery must be limited to five years prior to the commencement of this action. —Morgans. Varíele, 8 Wend. 587 ; Johnson v. Smith’s Administrator, 27 Mo. 591; Keeton v. Keeton’s Administrator., 20 Mo. 538, 539, 541.

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

Louis Circuit Court. There is no evidence of any negligence on the defendant’s part causing the injury. —Meyer v. Railroad Go., 64 Mo. 542. The plaintiff was guilty of such contributory negligence as will prevent a recovery. —Artz v. Railroad Go., 34 Iowa, 153 ; Railroad Go. v. Miller, 25 Mich. 274 ; Meyer v. Railroad Go., 6 Mo. App. 27 ; Isabel v. Railroad Go., 60 Mo. 475 ; Harlan v. Railroad Go., 64 Mo. 480 ; 65 Mo. 22.

<p>1. If it clearly appears from the record in a former proceeding between the same parties what issues were therein determined, the question whether the issues in the pending action were passed upon in the former is a question of law.</p> <p>2. If the issue is in doubt, extrinsic and parol testimony may be introduced to determine the matter; and if this testimony is excluded, it is error to submit the question to a jury by instructions.</p> <p>3. That a judgment may be a bar, it must appear, either from the record of the former suit or by extrinsic evidence, that the issue in the pending action was raised and determined in the former suit.</p> <p>4. Where a release, absolute in its terms, but called by the parties a “ conditional release,” is executed in contemplation of a composition of creditors, it is competent to show by parol an express condition that all releases to be executed should be binding only in the event of all the creditors coming into the arrangement.</p>

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

<p>Wherp, under the city charter of 1870, an ordinance for the paving of one street is introduced, with the engineer’s estimate of the cost of the work indorsed thereon, and is subsequently amended so as to include the paving of other streets at an increased cost, and no other indorsement is made thereon, there can be no recovery on a special tax-bill issued under such ordinance.</p>

Louis Circuit Court. The sheriff should have retained the property until the claimants’ respective rights were determined. — Howard v. Clark, AS Mo. 344; Bradley v. Holloway, 28 Mo. 150 ; The State v. Farber, 37 Mo. 71. The property was partnership property, and not subject to exemption. —Massey v. Scott, 49 Mo. 278 ; Sheedy v. Bank, 62 Mo. 22 ; Perry v. Wilson, 63 Mo. 493. While the partnership exists, the creditors have no equity or lien at all. — Story on Part., sect. 358.

Louis Circuit Court. The creditor deals not on the credit of the corporators, and therefore the personal responsibility of stockholders is inconsistent with the nature of a body corporate. — Meyers v. Irwin, 2 Serg. & E. 371 ; Ang. & Ames on Corp. 31, note 4.

Louis Circuit Court. Where separate and distinct causes of action are blended in one count, the plaintiff should be compelled to elect.— Otis v. Bank, 35 Mo. 128. And the objection may be taken by motion in arrest. — Hoagland v. Railroad Go., 39 Mo. 457. The buildings were not impaired, and only nominal damages can be recovered. — Smith v. Washington, 20 How. 135 ; St. Louis v. Gurno, 12 Mo. 414; Imler v. Springfield, 55 Mo. 119.

Louis Circuit Court. Eepresentations as to the original cost of property under such circumstances, where there is no fiduciary relation between the parties, furnish no ground for rescission. —Holbrook v. Connor, 60 Me. 578 ; Hamer v. Cooper, 8 Allen, 334; Mooney v. Miller, 102 Mass. 202; Cooper v. Levering, 106 Mass. 79 ; New Phosphate Co. v. Brlanger, 4 Cent. L. J. 510.

<p>A. is responsible for the consequences of false representations made by him to B. and upon whicb O. acted to his loss, where it appears that A. intended that they should be communicated to O. and acted upon by him in the manner which occasioned the loss.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>Chapman v. Callahan, 65 Mo. 299 ; Crawford v. Lyle, 3 Mo. App. 585; Leach v. Kelly, 7 Barb. 466 ; Brownell v. Curtis, 10 Paige,-210; The State to use v. Rowse, 49 Mo. 593; Perry v. Calvert, 22 Mo. 361; Reid v. Mullens, 48 Mo. 344.</p> <p>Gates v. La-lo eaume, 19 Mo. 26 ; Wittmore v. Hastings, 51 Mo. 171 ; Valentine v. Becker, 43 Mo. 583; Bevins v. Bolton, 31 Mo. 443 ; Pope v. Pope, 40 Miss. 516 ; Mitchell v. Black, 6 Gray, 105; Sawyer v. Turpin, 1 Otto, 114.</p>

<p>Where property is seized on execution while in possession of the judgment debtor, and another claims the property by virtue of a livery-stable keeper’s lien, the officer properly sells it subject to the claim; he is not bound to demand a bond, and, in default thereof, deliver the property to the claimant.</p>

Louis Circuit Court. The court erred in overruling the appellant’s motion for a new trial.— Jaccard v. Davis, 43 Mo. 635 ; Phillips v. Phillips, 46 Mo. 607. On the general propositions in this case, and the liability of defendant, we refer to the following authorities. To show that there was a duty cast upon defendant to know the truth of this matter by his official relation to the subject-matter, see Wannall v. Keim, 57 Mo. 492.

Louis Circuit Cdurt. A judgment collusively or fraudulently procured should be set aside at the instance of the party against whom it was rendered. —Miles v. Jones, 28 Mo. 87 ; Mayberry v. McQlurg, 51 Mo. 256 ; Harris v. Tewell, 38 Mo. 424; The People v. Mayor, 19 Iiow. Pr. —; Gornweller v. Griffin, 9 Barb. 921; Lawler v. Mayor, 26 Barb. 262; Sullivan v. Burgess, 37 Mo. 300. A case where petition was filed to avoid a judgment for fraud. — Acock v. Acock, 57 Mo. 154.

<p>Arrear from St. Louis Circuit Court.'</p> <p>Wag. Stats. 281, sect. 10 ; Lessem v. Hereford, 44 Mo. 355.</p>

Louis Circuit Court. A resulting trust is created by operation of law. — Browne on Stat. Fr., sect. 89; 2 Sugden on Vend. 702, sect. 13. And cannot be established in favor of the husband by an oral agreement between him and his wife, the grantee. —Wag.

<p>1. The city of St. Louis, not being purely a municipal corporation, but having attributes of a county, the statute which provides that the tax-paying inhabitants of a county shall be competent as jurors in a case wherein the county is a part}', applies to it.</p> <p>2. The improper exclusion of a juror upon a challenge is not sufficient ground for a reversal, where it does not appear that the complaining party was prejudiced thereby.</p>

Louis Circuit Court. “The stable having been •erected upon posts set in the ground, and firmly spiked with iron spikes, by the tenant, was a fixture.” — Beckwith v. Boyce, 9 Mo. 556.

Louis Circuit Court. Under the facts in this case the plaintiff was not entitled to recover, there being no evidence of negligence. — Curtis v. Railroad Co., 18 N. Y. 534; Christie v. Gh'iggs, 2 Camp. 79; Stokes v. Salstonstall, 13 Pet. 192; Carpue v. Railway Co., 5 Ad. & E. (n. s.) 747 ; Laing v. Colder, 8 Barb. 479 ; Deyo v. Railroad Co., 34 N. Y. 9 ; Brehm v. Railroad Co., 34 Barb. 256 ; 12 N. Y. 236.

<p>1. .Courts of equity have jurisdiction to enforce, reform, or annul agreements between husband and wife concerning her separate estate.</p> <p>2. A conveyance by the wife of her separate estate to the husband, obtained through his false and fraudulent representations as to the eifect of the conveyance, is void.</p> <p>3. Fraud vitiates and annuls a conveyance obtained through its means, and equity will place the parties respectively in statu quo.</p>

Louis Circuit Court. A servant wrongfully discharged cannot wait until the end of tbe term for which he was hired, and recover for the whole time. - — Moody v. Leverich, 4 Daly, 401; McKeon v. Railroad Co., 42 Mo. 79 ; Ream v. Watkins, 27 Mo. 516. If discharged for cause, he is not entitled to any wages. — Posey v. Garth, 7 Mo. 94; Westberg v. City, 64 Mo. 502. The servant must possess the requisite skill and experience to enable him to perform his contract. — Frazer’sM. &.

Louis Circuit Court. The question of materiality is one of law, for the court.— The State ex rel. v. Dean, 40 Mo. 464; 2 Pars, on Con. 721. An alteration not material in law will not avoid a contract. — Briggs v. Glenn, 7 Mo. 573; Trigg v. Taylor, 27 Mo. 245 ; Ivory v. Michael, 33 Mo. 398 ; Oioings v. Arnot, 33 Mo. 406 ; Presbury v. Michel, 33 Mo. 542; Britton v. Dierker, 46 Mo. 591.

Louis Circuit Court. , The deposition offered was improperly allowed to be read. — Wag. Stats. 587, sects. 27, 28. The directors, in attempting to issue the bonds, exceeded their authority, and the bonds were not binding upon the corporation. — 1 Potter on Corp., sects. 85-92; Rev. Stats. 111. 1877, pp. 765, 766 ; Railway Go. v. Allerton, 18 Wall. 233; Rollins v. Glay, 33 Me. 139; Ang. & Ames on Corp., sect. 299 ; Kidman v. Bowman, 58 111. 444; Pitman v. Adams, 44 Mo. 578.

<p>Appeal from St. Louis Circuit Court.</p> <p>Testimony as to which of two writings indorsed upon a writ is the officer’s return is admissible. —Freem. on Ex., sects. 353, 358, 366, and cases cited ; Gwynne on Sheriffs, 452 ; Dalton on Sheriffs, 188, 189. Property must be attached in the garnishee’s hands. — Nowell v. Porter, 62 Mo. 311; Keane v. Banicing House, 4 Mo. App. 507. An executor is not liable to garnishment prior to the order of distribution. — Wag. Stats. 664, sect. 3 ; Drake on Attach., sect. 494-497 ; Freem. on Ex., sect. 131. In garnishment, the action abates upon the garnishee’s death. — Tate v. Morehead, 65 N. C. 681 ;■ Gushing v. Robertson, 10 Mo. 374.</p> <p>“ The return of a constable cannot be collaterally questioned, but is conclusive upon the parties to the suit.” —Reeves v. Reeves, 33 Mo. 28. Return may be amended. — Gorty v. Burns, 36 Mo. 194.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>A transfer of property by way of mortgage does not constitute an alienation.— Wood on Fire Ins. 546, sect. 318. The fact that the deed is byway of security only, may be shown by parol testimony. — Johnson v. Herston, 17 Mo. 58; Gutzweiler v. Lachman, 28 Mo. 434; Gaffney’s Assignee v. Signago, 1 Dill. 158. The creation of a mortgage or lien is not a breach of a condition against assignment or transfer of interest.— Wood on Fire Ins. 539, 545 ; Ayers v. Hartford Ins. Go., 21 Iowa, 193 ; Mt. Vernon Go. v. Insurance Go., 10 Ohio, 347. A conditional sale, although possession is given, is not alienation. — Bates v. Insurance Go., 1 Cin. Superior Ct. 523. Such a contract does not terminate the interest of the assured. — Jackson v. AEtna Ins. Go., 16 B. Mon. 242; Shepherd v. Union Ins. Go., 38 N. H. 232. A mortgage has an insurable interest, and unless specially prohibited, the execution of a second mortgage does not defeat the policy. — Conover v. Insurance Co., 1 N. Y. 290; AEtna Ins. Co. v. Tyler, 16 Wend. 385. Hence the execution and delivery of the deed of December 3, 1874, to secure a loan of $1,000, did not constitute a breach of the condition pleaded. An alienation, to produce a forfeiture, must be legal. A void conveyance does not affect the policy. —Wood on Fire Ins. 540, sect. 312 ; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6; Copeland v. Insurance Co., 6 Pick. 198. Policies of insurance are assignable without notice to the insurer, where there is a covenant to pay to the assured or his assignee. — 2 Duer on Ins., sect. 35 ; Mutual Protection Ins. Co. v. Hamilton, 5 Sneed, 269 ; Archer v. Manufacturing Co., 43 Mo. 434.</p> <p>An assignment procured by fraud is void. —May on Ins.> •sect. 385; Insurance Co. v. Mitchell, 48 Pa. St. 374; Hatties v. Insurance Co., 41 Me. 217. A transfer of the property is not of itself an assignment of the policy, and does not carry, the policy with it. — Cromwell v. Insurance Co., 39 Barb. 227 ; Smith v. Insurance Co., 50 Me. 96. An assignment after loss is not an assignment of the policy, but of a chose in action. — May on Ins., sect. 386, and cases cited. The execution and delivery of a quitclaim deed, though in trust, is an alienation. — Dad-mun Co. v. Insurance Co., 11 Mete. 429. The assignor had no insurable interest at the time of the fire, and it follows that appellants, as his assigns, have none. — Morrison’s Administrators v. Insurance Co., 18 Mo. 264; Howard v. Insurance Co., 3 Denio, 301; Fowler v. Insurance Co., 26 N. Y. 422; Cromwell v. Lisurance Co., 39 Barb. 233; Abbott v. Insurance Co., 30 Me. 414; Griswold v. American Central Ins. Go., 1 Mo. App. 97. The loss, if hny, was payable to the bank, only upon condition that the insured sustained loss, having fully kept his contract. — Tail-man v. Insurance Co., 29 How. Pr. 71.</p>

Louis Circuit Court. Presentment as well as demand must be pleaded. — Draper v. Glemens, 4 Mo. 52. The bank was not Kraft’s place of business, in the sense ‘that notice of protest left there with the cashier would fix a liability upon him as indorser. — Sanderson’s Administrator v. Reinstadler, 31 Mo. 483 ; Bailey v. Bank, 7 Mo. 467 ; Linville v. Welch, 28 Mo. 203 ; Klein v. Boernstein, 32 Mo .311.

<p>Where the contract is that goods sold by weight shall be paid for in cash on delivery, and some goods are delivered daily, the weight being taken on each delivery, that payment was not exacted on each delivery does not compel the seller to treat the several deliveries as part of one transaction; and that judgment had been recovered for goods delivered does not bar a recovery for goods previously delivered.</p>

<p>1. Where one permits distilled spirits to be removed from his distillery and sold in fraud of the revenue law, he cannot recover for the spirits thus sold.</p> <p>2. A particular sentence disconnected with its context, and in disaccord with the whole tenor of the testimony on the point, will not support an instruction based upon it.</p> <p>3. Where the plaintiff and his book-keeper shared the gains from the sale of' whiskey sold in fraud of the revenue, and the sales were effected through the book-keeper as agent of his employer, the knowledge of the agent was the knowledge of his principal, and the fact that the book-keeper was the more immediate participant in the fraud will not enable his partner in the transaction to recover his share of the illicit gains.</p>

<p>1. There can he no recovery, at the suit of the payee, upon a note given for a consideration which is a fraud upon other creditors of the maker.</p> <p>2. Where creditors sign an agreement to assign all their claims to a third person at an equal discount, the signature of one constituting an inducement for signing by the others, any secret consideration or prospect of advantage moving one, which is purposely concealed from the others, is a fraud upon such others.</p>

<p>1. The office of treasurer of St. Louis Oounty having been in 1876 abolished by the adoption of the Scheme and Charter, the treasurer became a mere custodian of the township school-funds in his hands, and his refusal to turn them over upon the joint demand of the School Board and the County Court cannot be justified on the ground that these agencies were about to divide the funds in a manner not warranted by law.</p> <p>2. The laws requiring warrants for official disbursements have no application to the duty of a retiring officer in turning over his charge to his successor.</p> <p>8. A treasurer’s bond which covers “ funds for school purposes belonging to the different townships, arising from whatever sources,” covers all school-funds, both county and township, which come into the treasurer’s hands, whether capital or increase.</p>

Louis Circuit Court. A single lien might, under the facts of this case, be filed against the whole tract of land and the houses thereon. — Meinholz v. Grodl, 4 Mo. App. 568. In this case, Thomas is estopped bjr his own acts from setting up that there is more than one lot of ground. — Garnhart v. Finney, 48 Mo. 455 ; Olendennin v. Purcell, 3 Mo. 230; Chouteau v. Goddin, 39 Mo. 229.

<p>1. The constitutional provision prohibiting the passage of any local or special law granting any special or exclusive right, privilege, or immunity, is not violated by a city ordinance, passed as a sanitary police regulation, granting the exclusive right to remove the carcasses of dead animals from the streets.</p> <p>2. The municipal authorities have the right to prescribe the terms upon which the streets may be used for the purpose of removing the carcasses of dead animals, and may confine such removal to a single agency, subject to their control.</p> <p>3. Injunction will lie to restrain the removal of such carcasses in violation of a city ordinance granting the exclusive privilege of removal to another.</p>

Louis Circuit Court. It was error to permit sect. 2 of chap. 24 of the Revised Ordinances to be read in evidence. — Henry v. Sprague, 11 R. I. 456; Kirby v. Boyton, 14 Gray, 249. Evidence of the custom of street-sprinklers not to visit their stop-boxes and standpipes after the sprinkling season had closed was improperly excluded. — Walsh v. Transfer Go., 52 Mo. 438 ; 2 Greenl. on Ev., sects: 248-252.

Louis Circuit Court. This was a suit in trespass and ejectment, involving a tortious act, and the wife could not be joined as a party with the husband without allegation or proof of separate act of trespass. — Meegan v. Gunsollis, 19 Mo. 418 ; Pash v. Hoplcins, 2 Bailey, 44 ; Estill et al. v. Fort, 2 Dana, 240 ; McEown et al. v. Johnson, 2 McCord, 254. The court may at any time before final judgment, in furtherance of judgment, amend any record, pleading, etc. Wag.

<p>Petition for habeas corpus.</p>

Louis Circuit Court. The instruction given by the court for plaintiff is erroneous, and illegally assumes that the judgment or decree of the Circuit Court is á personal judgment against a married woman, which it is not, and if it were it would be void. — /St. Louis v. Bernoudy, 43 Mo. 552 ; Higgins v. Pitzer, 49 Mo. 152; Fithian v. Monks, 43 Mo. 502. There was no breach of the bond.— Jenkins v. Hay, 28 Md. 547; Woods v. Fulton, 2 Har. & G. 71.

Louis Circuit Court. There never was a contract between defendant and the corporation, making defendant a stockholder. — Brewster v. Hartley, 37 Cal. 15; Seymour v. Sturgess, 26 N. Y. 134, 145 ; Pittsburgh, etc. R. Co. v. Gazzam, 32 Pa. 340.

<p>1. To charge a mechanic’s lien upon property, it must appear that the owner directly or indirectly contracted for the work; and where the wife is the owner, the mere fact that she knew of the improvement and subsequently signed a note with her husband for the work, is not proof of a contract on her part.</p> <p>2. In such a case, the question to be tried in an action to charge her property with a lien is not whether the contract was made with thé wife’s knowledge, but whether it was made with her consent and in her behalf.</p>

<p>1. Mere absence without being heard from for a period less than seven years will not authorize the public administrator to take charge of the estate of the absentee, without other evidence tending to show his death.</p> <p>2. If the administrator takes charge of the estate of an absent person, and in a proceeding to vacate the administration the absentee is shown to have been living within seven years, the administrator must rebut the presumption of life thus raised.</p> <p>3. A debtor of the estate has a right to move in the Probate Court to vacate the administration upon the estate of a man alive within seven years, and not known to be dead.</p> <p>4. An appeal lies from the action of the Probate Court refusing to revoke letters, or to vacate the administration where no letters are granted, as in the case of the public administrator.</p>

<p>1. "Where the workman’s contract is not with the owner, but with a subcontractor, the building cannot be bound by this contract for more than the reasonable value of the work done and materials furnished; and the lien-claim filed must set out the items, though the contract is for a gross sum.</p> <p>2. A lien claim must be substantially correct and sufificientG definite; a claim filed for an amount greatly in excess of the amount due is not a compliance with the statute.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>No limitation can prevail against the United States, nor against those holding the equitable title under it prior to the issuing of the patent.— Gibson v. Chouteau, 13 Wall. 92 ; Mellhinney v. Ficke, 61 Mo. 329 ; Miller v. Dunn, 62 Mo. 216. Title does not pass where no patent has issued.— Wilcox v. Jackson, 13 Pet. 499. The confirmation of 1816 was limited to the special claims enumerated. — St. Louis v. Laughlin, 49 Mo. 559 ; Gi'umley v, Webb, 44 Mo. 444. Where the confirmee is not in esse, the confirmation is a nullity. — Stubblefield v. Briggs, 2 Ohio St. 216 (citing Galloway v. Finley, 12 Pet. 264) ; Galtv. Galloway, 4 Pet. 345 ; McDonald v. Smalley, 6 Pet. 261.</p> <p>The effect of a confirmation by the act of April 29, 1816, was to pass the legal title, and no patent was necessary for that purpose. — Aubuchon v. Ames, 27 Mo. 92. An absent person is presumed to be alive until after the expiration of seven years.— Hancock v. Insurance Go., 62 Mo. 26. The act of 1816 embraced the legal representatives of claimants. — Hogan v. Page, 2 Wall. 605. A legislative grant need not use the technical terms required in a conveyance. —Rutherford v. Green, 2 Wheat. 198.</p>

Louis Circuit Court. “ Parties cannot be permitted to be silent, when their silence operates virtually as a fraud. Suppressio veri est suggestio falsi.” — Cecil, Admr., v. Tutt, 32 Mo. 462 ; Barron v. Alexander, 27 Mo. 530; McAdams v. Cotes, 24 Mo. 223; Anonymous, 67 N. Y. 598 ; Morgan v. 8kiddy, 62 N. Y. 326. The petition did not state facts showing fraud. — Solomon v. Richardson, 30 Conn. 369 ; Harman v. Dappenden, 1 East, 555 ; Ger-hard v. Bates, 20 Eng.

<p>Error to St. Louis Circuit Court.</p> <p>The fact that the State allowed and required the property to be assessed after forfeiture, was a waiver of the forfeiture. — Clarlc v. Strickland, 2 Curt. 439. But the lien would still remain in favor of the State.— Goddard v. Renner, 57 Ind. 532, 536 ; Wood v. Colvin, 5 Hill, 228; Bodine v. Moore, 18 N. Y. 347. The act of April 12, 1877, is not retroactive or retrospective. — The State ex rel. v. Hays, 47 Mo. 187 ; De Cordova v. Galveston, 4 Texas, 470 ; Carondeletv. Picot, 38 Mo. 125, 130 : Blackw. on Tax-Titles, 1; Cooley on Tax. 1; Cooley’s Const. Lim. 361, 362 ; Smith v. Byron, 34111. 364 ; Paschal v. Perez, 7 Texas, 365; Wood fin v. Hooper, 4 Humph. 13 ; Hope v. Johnson, 2 Yerg. 123 ; Wellshear v. Kelly, 8 Cent. L. J. 434. No statute of limitations can begin to run until a cause and right of action exists, and has accrued to some person who is capable of suing upon it. — Dillon v. Bates, 39 Mo. 292, 301; Wickersham v. Russell, 51 Pa. St. 71; Council v. Moyamensing, 2 Pa. St. 224. No action would lie for the recovery of unpaid taxes until such action should be or was given by statute. — Carondelet v. Bicot, 38 Mo. 125, 130; Brenchweh v. Drake, 31 Ohio St. 652. There can be no doubt as to the power of the Legislature to make changes in the Statute of Limitations. —Siebert v. Copp, 62 Mo. 182 Bigelow v. Bemis, 2 Allen, 496; Smith v. Morrison, 22 Pick. 430 ; Bingham v. Bigelow, 12 Mete. 268-273; Bradford v. Shine, 13 Fla. 393; Ang. on Lim. (6th ed.) 16, 17, and notes; Mayor v. Colgate, 12 N. Y. 152; Stephens v. St. Louis National Bank, 43 Mo. 389.</p> <p>The pecuniary demand of the State was extinguished and merged by the sale and forfeiture of the land involved, in October, 1869, and hence the State has no subsisting cause of action.— Acts 1865, pp. 161, 162 ; Blackw. Tax-Titles, 459. The act of 1877 created a new obligation, imposed a new duty, and took away a valid defence, and hence is unconstitutional. — Const. Mo., art 2, sect. 15; Insurance Co. v. Flynn, 38 Mo. 483,; Barton v. Watson, 49 Mo. 290; De Cordova v. Galveston, 4 Texas, 470. The action was barred by the statute. — St. Louis v. Newman, 45 Mo. 138; Wag. Stats. 917, sects. 8, 10, 33.</p>

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

<p>Appeal from St. Louis Circuit Court.</p> <p>The liability o'f the stockholder .becomes fixed when the execution against the corporation is returned nulla bona. — Nixon v. Green, 11 Exch. 550 ; McLaren v. Franciscas, 43 Mo. 452 ; Miller v. Go'eat Republic, 50 Mo. 55.</p>

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

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

<p>In a suit before a justice, where the plaintiff files a. statement showing a balance due on account, and on trial anew in the Circuit Court it appears that the balance was due on a note, and that the plaintiff had offered, at the trial before the justice, to return the note, the failure to file the statement is not ground for a dismissal of the suit, and the statement will warrant a recovery.,</p>

Louis Circuit Court. The validity of a transfer alleged to be fraudulent may be tried in a court of law in garnishment proceedings. —Lackland, v. Garesehé, 57 Mo. 267 ; Lee v. Tabor, 8 Mo. 322 ; Drake on Attach., par. 548. The creditor can only acquire such rights against the garnishee as the debtor had.— Weil v. Tyler, 38 Mo. 545. The statutes touching garnishment are not equitable, but legal, in their nature and procedure. — Lackland v. Garesehé, 56 Mo. 270.

<p>1. That the action upon a note was brought by the payee does not prove that the note had not been negotiated, and in the absence of any testimony tending to show the contrary it will be presumed that the judgment allowing statutory damages is supported by the evidence.</p> <p>2. In the absence of any objection to the petition, that it does not allege that the note had been negotiated is not fatal to a recovery of damages.</p>

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

Louis Circuit Court. The debt should be satisfied primarily out of any property in the possession of those who took by descent,, before resorting to those who took by purchase for value. Where a creditor may resort to two funds, a court of equity may, in the furtherance of justice, compel a resort to one fund. — Story’s Eq. Jur., sect. 559 etseq.; Latrobev. Tiernan, 2 Md. Ch. 474; Whittlesey v. Brohammer, 31 Mo. 99. At common law there is no such lien as plaintiff claims.

<p>Appeal from St. Louis Court of Criminal Correction.</p>

<p>Petition for habeas corpus.</p>

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

<p>Appeal from St. Louis Court of Criminal Correction.</p>

<p>1. Where the appellant fails to file a transcript of the record within the time prescribed by the statute, and the respondent flies a transcript and moves for an affirmance of the judgment, the motion will be sustained.</p> <p>2. There is no repugnancy between the constitutional provision that cases coming into the St. Louis Court of Appeals by appeal or writ of error shall be triable in fifteen days from the filing of the transcript, and the provision of the statute that if appellant fail to file his transcript fifteen days before the term to which appeal is taken, the respondent may produce a transcript and will be entitled to an affirmance.</p>

Louis Circuit Court. “The widow’s right is absolute, and vests immediately upon the death of her husband.” — Wag. Stats. 88, sects. 35-37 ; Hastings v. Meyers, 21 Mo. 519; Cummings v. Cummings, 51 Mo. 261; In re Klosterman, 6' Mo. App. 314. The balance of the proceeds of the fifty-foot lot, after paying the special debts, were assets in the hands of the executor. — Governor v. Chouteau, 1 Mo. 731; Wag. Stats. 95, sect. 12.

<p>"Where a trust fund has been by the trustee converted to his own use, if it can no longer be identified as a separate and independent fund or value, the right to follow the specific fund into the hands of the trustee’s administrator is gone.</p>

<p>1. A statute prohibiting the killing or having in possession certain game within a certain period of time, is not in violation of the Constitution of this State or of the United States.</p> <p>2. The statute is violated by having in possession the specified game within the prohibited period, without reference to when or where the game was killed.</p>

Louis Criminal Court.' The language used by counsel was a violation of all lawful privilege, directly calculated to prejudice the defendant, and is cause for a reversal. — Ferguson v. The State, 49 Ind. 33 ; The State v. Smith, 75 N. C. 306 ; The State v. Reilly, 4 Mo.

<p>Application for writ of prohibition.</p>

Louis Circuit Court. The payee or holder of a check cannot maintain a suit at law against a bank on which it is drawn, though presentation, has been made and payment demanded. — Garr v. Bank, 107 Mass. 47; Republic v. Millard, 10 Wall. 155 ; Gase v. Anderson; 23 La. An. 49 ; Chapman v. White, 2 Seld. 412; Loyd v. Mc-Caffrey, 46 Pa. St. 410, 414; Bullard v. Randall, 1 Gray, 605 ; Dane v. Bank, 13 Allen, 445 ; Ballou v. Boland, 14 Hun, 355; Dykers v. Leather Man.

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

<p>Appeal from St. Louis Court of Criminal Correction.</p> <p>Boards of health and city councils have power to condemn and order the removal of nuisances per se, or statutory nuisances, and in such cases their adjudication would simply follow the declaration of the common law or the statute. — Bates v. Columbia, 1 McArthur, 433; Everett v. City, 46 Iowa, 67; Schuster v. Board, etc., 49 Barb. 452; City v. Stern, 3 Mo. App. 484. But until the fact of a nuisance is established by proof, it would be wrong to restrain a lawful calling, even if it does or might offend the senses of some. — Ruff v. Phillips, 50 Ga. 133 ; Wood on Nuis. 13, sects. 6, 7. The declaration by the Board of Health that the thing complained of is a nuisance, is not conclusive and may be rebutted. — Welch v. Slowed, 2 Dougl. (Mich.) 339; Tates v. Milwaukee, 10 Wall. 497; Hutton v. City, 39 N. J. L. 130 ; Darst v. The People, 51 111. 286 ; Clark v. Mayor, 13 Barb. 39 ; Coe v. Schultz, 47 Barb. 69 ; Underwood v. Green, 42 N. Y. 142 ; 1 Dill, on Mun. Corp., sect. 309; Wood onNui-., sect. 738.</p> <p>It is the function of the Board of Health to determine whether a given business is carried on in such a manner as to be detrimental to the public health, and trial by jury in such cases is not essential. — St. Louis v. Stern, 3 Mo. App. 48.</p>

<p>An agreement that a case shall abide the decision of another case will not authorize the rendition of a judgment against the party against whom the decision is claimed to be, without notice to him.</p>

<p>1. That the examination of a long account may be involved for the purpose of establishing some issue in the case, does not make the case one to be referred without consent.</p> <p>2. The permission to refer the whole case without consent applies only where the determination of the matter in controversy involves the examination of long accounts between the parties, and the adjustment of the items thereof.</p>

<p>Appeal from St. Louis Circuit Court.</p> <p>The plaintiff has no right to claim indemnity of the administrator’s sureties for the wrong complained of, unless they can show an interest in the estate. —Holmes v. Cock, 2 Barb. Ch. 426, 429 ; Brandt on Surety. -640, sect. 502; Rowson v. Piper, 34 Me. 98 ; Williams on Ex. 536, note l. And it must be a vested, not a contingent interest. — Stevens v. Cole, 7 Cush. 467. The surety is bound only for the faithful performance of the duties of an administration. — Harkerv. Irrick, 10 N. J. Eq. 269 ; Cunningham v. Sonza, 1 Redf. 462. And only for the administration of such assets as the administrator had a right to receive. —Fletcher v. Sanders, 7 Dana, 345, 350 ; Blair v. Insurance Co., 10 Mo. 559.</p> <p>An administrator may bring an actiou of replevin.— Wcdton v. McDonald, 2 Mo. 48, 49 ; Ranney v. Thomas, 45 Mo. 112. And in the event of judgment against him, it must be de bonis teslatoris. — Wooldridge v. McDonald, 15 Mo. 470 ; The State to use v. Maulsby, 53 Mo. 500 ; Ross v. Allman, 60 Mo. 269. And such a judgment could not be proved against the estate. — Presbyterian Church v. McElhinney, 61 Mo. 540; Werneke v. Kenyon, 66 Mo. 275. But would be a demand for which the administrator’s sureties would be liable. — Dix v. Morris, 1 Mo. App. 93; Dix v. Morris, 66 Mo. 514. When a surety pays a debt of his principal, he becomes ipso facto entitled to all the benefits that the creditor may have been entitled to by virtue of collateral security. — Allison v. Sutherton, 50 Mo. 274. The order of the Circuit Court made upon the administrator to pay the plaintiff the amount he had paid to satisfy the judgment in the replevin case was imperative, and the disobedience of it a breach of the administration bond, and the sureties were concluded by this order. — The State v. Holt, 27 Mo. 340; Taylor v. Hunt, 34 Mo. 205 ; The State v. -Coste, 36 Mo. 437 ; Townsend v. Townsend, 60 Mo. 246 ; McCartney v. Qarneau, 4 Mo. App. 566.</p>

<p>Open and notorious possession under an unrecorded lease, without some evidence tending to show actual knowledge of the existence of the lease, will not authorize an inference that the plaintiff had notice of the defendant’s possession under the lease.</p>