Volume 9 — Missouri Appeal Reports

<p>1. Attorney’s fees and other'expenses incurred by reason of injunction proceedings may, on dissolution of the injunction, be recovered as damages, whether they have been paid or not.</p> <p>2. Where a sale under a deed of trust upon premises worth less than the amount secured is enjoined, the jury, in assessing damages, may take into consideration rents collected pending the injunction, and thus lost to the mortgagee, where it appears that the loss of these rents is an actual damage to the mortgagee.</p>

Louis Circuit Court, Thayer, J. The transcript of the judgment sued on was not properly attested. — Wag. Stats. 598, sect. 51; Stephenson v. Banistor, 3 Bibb. 369 ; Kirkland v. Smith, 2 Mart. 497 ; Seltse v. Allison, 8 Geo. 201; Smith v. Bloggs, 1 Johns. Ch. 238. The court improperly excluded the testimony of the judge who presided at the former trial. — Coughlin v. Haeussler, 50 Mo. 126 ; Mathewson v. Sargent, 36 Yt. 142 ; Jaccard v. Anderson, 37 Mo. 94. 1 Greenl. on Ev.

<p>1. Each partner has an exquitable lien on the surplus assets of the firm for the purpose of satisfying any claim due him by the firm; and this lien extends to sums due the firm by its members.</p> <p>2. Creditors of a partner may reach his interest in the firm property, but cannot satisfy their demands out of his copartner’s interest.</p>

Louis Circuit Court, Adams, J. Appellant was entitled to a lien on the pictures for his services. —Story on Ag. (6th ed.), sects. 353, 354, 360, 365, 374, and cases cited. The “usage of trade” set up in respondent’s reply in this cause was not proved. — South-Western, etc., Go. v. Stanard, 44 Mo. 71, and cases cited.

The arrest was made by an officer while the plaintiff was engaged in the commission of an unlawful act. —Burns v. Brben, 40 N. Y. 463; Lark v. Bande, 4 Mo. App. 186; Wag. Stats. 462, sect. 56 ; p. 496, sect. 27. The arrest was justifiable. — Henry y'. Lowell, 16 Barb. 268. In an action in trespass for false imprisonment, it is not necessary to prove either malice or want of probable cause. — 2 Add. on Torts, 731.

Louis Circuit Court, Wickham, J. The petition states a good cause of action.— Loan v. Sinklan, 27 Mo. 308 ; Hart v. Hart, -41 Mo. 441; Hoy v. Hooker, 65 Mo. 17. There was evidence which entitled the case to go to the jury. — Flori v. City, 3 Mo. App. 236 ; 39 Mo. 156 ; Britton v. Turner, 6 N. H. 481 ; Lee v. Ashbrook, 14 Mo. 378. The amount of damages in such a case is a question for the jury. — Thompson v. Stevens, 71 Pa. St. 161; Cutter v. Powell, 2 Smith’s Ld. Cas. 87.

<p>1. Where a guardian neglects or refuses to pay the balance due the ward at his majority, the ward may at once bring suit on the guardian’s bond, without waiting for a final settlement.</p> <p>2. An annual settlement is not judicial in its character, and maybe reviewed in an action on the guardian’s bond, brought before final settlement.</p> <p>3. In such an action, where the guardian’s accounts are referred for reexamination, the referee may refuse to admit balances found in the guardian’s annual settlements as prima facie in his favor.</p> <p>4. Where one files in the Probate Court a receipt from himself as guardian, to himself as administrator, for a fund by the court ordered to be paid by himself as administrator, to himself as guardian, the receipt is competent in an action on his bond as guardian.</p>

<p>1. Courts will take judicial notice of the computation of time and of the coincidence of the days of the week with the days of the month.</p> <p>2. Where a case is submitted to a justice on Thursday the 23d, a judgment rendered on Monday the 27th is rendered within three days of the submission.</p>

Louis Circuit Court, Wickham, J. 'All the charter requires is that there shall be an estimate of the cost of the work proposed to be done. This, is construed to mean the cost of the work to be paid for by the city. — The /State ex rel. v. /St. Louis, 56 Mo. 277 ; PerIcinson v. Partridge, 3 Mo. App. 60. Estoppel in pais.— The People v. Council, 65 Barb. 9 ; Fletcher v. Holmes, 25 Ind. 469 ; Kellar v. Lafayette, 30 Ind. 194 ; DdlzeTl v. Odell, 3 Hill, 219.

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>Potter v. McDowell, 43 Mo. 93.</p> <p>He who seeks equity must do equitjL — Story’s Eq. Jur., sects. 64 e, 301; iSouthworth v. Hoplcins, 11 Mo. 331; Phillips y. Phillips, 50 Mo. 608 ; Mastín v. Halley, 61Mo. 202 ; Cassidy v. Met-calf, 1 Mo. App. 593. The appellants are estopped to deny the validity of their notes and mortgage. — Big. on Estop. 301; Freeman v. Auld, 44 N. Y. 55; Green -v.Eemp, 13 Mass. ,515 ; Dickson v. Anderson, 9 Mo. 156 ; Glamorgan v. Green, 32 Mo. 285 ; Durette v. Briggs, 47 Mo. 356 ; Cam v. Jackson, 1 Pet. 1. Stover had no notice of any equities claimed by plaintiffs. He purchased the notes and deed of trust before maturity, and for their full face value. Nothing short of mala fides in the holder can defeat his recovery. —Hamilton v. Marks, 63 Mo. 168 ; Goodman v. Simonds, 20 How. 343 ; iSa-ybel v. National Currency Bank, 54 N. Y. 288 ; Phelan v. Moss, 67. Pa. St. 59 ; Lake v. Reed, 29 Iowa, 258. That the broker had notice does not effect the purchaser with notice. —Storv on Ag., sect. 140 ; Story’s Eq. Jur., sect. 408.</p>

Louis Circuit Court, Lindley, J. A person holding property merely as bailee is not bound absolutely to deliver it upon demand by the true owner ; he may give a qualified refusal where there is a reasonable doubt as to the claimant’s title, and he is entitled to a reasonable opportunity to investigate. — Vaughan v. Watts, 6 Mee. & W. 492; Garroll v. Mix, 50 Barb. 212; Oreen v. Dunn, 4 Camp. 215 ; Alexander v. Southey, 5 Barn. & Aid. 247 ; Isaac v. Glark, 2 Bulst. 312 ; Garey…

<p>Appeal from the St. Louis Circuit Court, Adams, J.</p> <p>Bast v. Ketchum, 5 Mo. App. 433; O’Fallon Building Go. v. Rodrigues, 6 Mo. App. 576 ; Moore v. Damon, 4 Mo. App. 111.</p> <p>Braman y. Perry, 12 Pick. 118.</p>

Louis Circuit Court, Thayer, J. The defendant should have been allowed to explain the memorandum on the note. — O’ Neil v. Grain, 67 Mo. 250. The court erred in permitting an amended reply to be tiled after a trial. — Span-gel v. Beay, 47 Cal. 608; Ensworth v. Barton, 67 Mo. 623. The original reply was competent, as showing admissions. — Eowzelot v. Bawlings, 58 Mo. 75. Owens, etc., Go. v. Pierce, 5 Mo.

<p>Appeal from the St. Louis Circuit Court, Wickham, J.</p> <p>Covenant Ins. Co. v. Clover, 36 Mo. 392 ; Craig v. Smith, 65 Mo. 336.</p> <p>Swinney v. Watkins, 22 G-a. 570 ; Shorter v. Mims, 18 Ala. 638; Skidmore v. Bradford, 4 Pa. St. 296; Hendrickson v. Railroad, 34 Mo. 188 ; Merrick v. Merrick, 5 Mo. App. 123.</p>

Louis Circuit Court, Thayer, J. When the judgment which Gibson had paid was reversed, he was entitled to restitution from the surviving partner to whom he had paid it. — Raum v. Reynolds, 18 Cal. 275; Gott v. Powell, 41 Mo. 416. A final settlement is conclusive only as to matters comprehended in it. —The State v. Baldwin, 27 Mo.' 103; Fish v. Leighton, 44 Mo. 268 ; Probate Oourt v. Merriam, 8 Vt. 234.

Louis Circuit Court, Boyle, J. A fraudulent conveyance of any part of the debtor’s property will subject his effects to attachment. — Taylor v. Meyers, 34 Mo. 81.

<p>Appeal from the St. Louis County Circuit Court, Edwards, J.</p> <p>The intention of the testator governs in the construction of wills.— Turner v. Timberlake, 53 Mo. 371; Gaines v. Fender, 57 Mo. 346 ; Oarr v. Dings, 58 Mo. 406 ; Smith v. Hutchinson, 61 Mo. 83; Allison v. (Jlarey, 63 Mo. 279. This being a residuary bequest to a class of persons, — viz.: to. the children of his first wife, — the death of one of said residuary legatees before that of the testator, causes no lapse of said bequest, but the survivor answering the description of the class, takes the whole residue. — 2 Redf. on Wills, 175, sect. 30 ; Jackson v. Roberts, 14 Gray, 546 ; Schaffer v. Kettell, 14 Allen, 528.</p> <p>A legacy to two persons, one of whom dies before the testator, lapses and is distributed as in cases of intestacy. —Martin v. Lachasse, 47 Mo. 591; 2 Williams on Ex. 1083, 1084. Where the bequest is to several persons as tenants in common, thei’e is no right of survivorship. — 2 Eedf. on Wills, 168, sect. 17.</p>

<p>Where the question is as to whether a conveyance was voluntary, and there is some evidence tending to show a valuable consideration, it is error to so instruct as to leave the jury to conjecture from the evidence, as a matter of fact, what constitutes a valuable consideration.</p>

Louis Circuit Court, Boyle, J. The drawer of a check may countermand it. — Chase v. Alexander, 6 Mo. App. 510. The question of the custom or usage in such cases should not have been ignored in the instructions. — Barber v. Dispatch Co., 3 Mo. App. 377 ; Meyer v. Railroad, 45 Mo. 137.

<p>Where an officer goes out of the line of his official duty, and acts without the scope of his authority, this action, though done colore officii, is not a breach of his bond for the faithful performance of his duty.</p>

Louis Circuit Court, Thayer, J. A contract can be made by letters, and all letters of a correspondence relating to the same subject-matter are to be taken together in arriving at the intention of the parties. — Story on Con., sect. 386, and cases cited ; Esmey v. Gerton, 18 111. 483 ; Vernander v. Oodd, Turn. &B. 352. And these letters are to be construed the same as a formal agreement.— Kennedy v. Lee, 3 Mer. 441; 1 Greenl. on Ev., sect. 268, and cases cited.

<p>Appeal from the St. Louis Circuit Court, Adams, J.</p> <p>There can be no de facto officer without a de jure office. — Ex parte Snyder, 64 Mo. 59.</p> <p>The State ex ret. v. Sutton, 3 Mo. App. 402 ; Adams v. Lindell, 5 Mo. App. 202 ; Harbaugh v. Winsor, 38 Mo. 327 ; The State v. Douglass, 50 Mo. 593.</p>

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

Louis Circuit Court, Boyle, J. The fraud in the entry of satisfaction must be brought home to the purchaser, or the entry will protect him. —Vallé v. American, etc., Go., 27 Mo. 463. The assignee may protect himself by recording his assignment. —Bank v. Anderson, 14 Iowa, 544; Henderson v. Pilgrim, 22 Texas, 47,6. The note is governed by the law-merchant, and the mortgage by the law of real property. — Potter v. McDowell, 43 Mo. 93: Linvillev. Savage, 58 Mo. 248.

Louis Circuit Court, Boyle, J. A sale of personalty, unaccompanied by a visible and notorious change of possession, is void as to creditors of the vendor. — Claflin v. Rosenberg, 42 Mo. 439 ; Allen v. Massey, 17 Wall. 351 ; Bosse v. Thomas, 3 Mo. App. 472 ; Bishop v. O’ Connell, 4 Mo. App. 578 ; Lesems. Herriford, 44 Mo. 323 ; Wrights. McCormick, 67 Mo. 426. A subsequent change of possession will not validate the sale.— Chenery v. Palmer, 6 Cal. 119.

Louis Circuit Court, Thayer, J. The insolvency of a donor will not prevent him from making a gift equal in value to his exemption. — Thomp. on Home. & Ex., sects. 435, 437, 438, 738, 740. The grantee or donee of the property can make the same defence that the debtor could. — Bevin v. Hayden, 13 Iowa, 127 ; Godmon v. Smith, 17 lud. 152; Megehe v. Draper, 21 Mo. 510 ; Olay ton v. Kurtzeborn, 2 Mo. App. 335 ; Moxlyv. Bagan, 10 Bush, 156.

<p>1. A decree, declaring a marriage void on the ground of mental incapacity of one of the parties at the date of the marriage, should not be rendered except upon the clearest and most definite evidence.</p> <p>2. The testimony of a physician as to the insanity of a person whom he did not know at the time in controversy is entitled to but little weight.</p>

Louis Circuit Court, Lindley, J. This action arises out of contract, and survives.— JDoede v. Wiswall, 5 How. Pr. 132; Yevtore v. Wiswall, 16 How. Pr. 8 ; Posse v. Shipton, 8 Ad. & E. 963 ; Brotherton v. Wood, 3 Bro'd. & B. 54. The right of action for the recovery of damages for the loss of earnings, and for money expended by reason of the injury sustained, survives under the statute. —Wag.

Louis Circuit Court, Thayer, J. Ownership must be averred, and the mere allegation that plaintiff was entitled to the immediate possession is insufficient. — Pattison y., Adams, 7 Hill, 126 ; Bond v. Mitchell, 3 Barb. 304; Olark v. Skinner, 20 Johns. 465. “Every fact which the plaintiff must prove to maintain his suit is constitutive, in the sense of the Code, and must be alleged.”— Darby v. Gabanne, 1 Mo. App. 120; Pier v. Heinrichoffen, 52 Mo. 336.

Louis Circuit Court, Thayer, J. The bonds were issued January 1, 1866. At that date there had been no legislation to enforce the double-liability provision of the Constitution of 1865.

Louis Circuit Court, Thayer, J. Where the corporation does, or suffers to be done, that which has the effect to destroy the object for which it is created, this is equivalent to a surrender of its corporate franchise. — Moore v. Whitcomb, 48 Mo. 547; State Savings Instn. v. Kellogg, 52 Mo. 588. A single act of violation justifies a decree of forfeiture. — New Haven v. Banh, 31 Conn. 106. Illustrations. — The Commonwealth v. Banh; 28 Pa.

Louis Circuit Court, Wickham, J. When the debt is paid by the principal the surety is discharged, no matter where the money came from. — Brandt on Surety., sects. 292, 293 ; Burnet v. Courts, 5 Har. & J. 78 ; Brown v. Haggerty, 26 111. 469.

Louis Circuit Court, Thayer, J. The evidence was properly admitted under the pleadings, and the instructions based thereon should have been given. — Gorby v. Weddle, 57 Mo. 452 ; Schermerhorn v. Van Allen, 18 Barb. 29 ; Greenway v-. James, 34 Mo. 327. Under a general denial, only such questions of fact can be tried as are raised by the contradiction of the material allegations of the plaintiff's petition.— Northrup v. Insurance Go., 47 Mo. 435 ; Benedict v. Seymour, 6 How.

Louis Circuit Court, Adams, J. A married woman, without the consent of her husband, cannot create a trust in respect to either real or personal property owned by herself, except in the cases where she may devise or bequeath the same by will.— Perry on Tr., sects. 16, 32, 77, 83; Wag. Stats., chap. 94, sect. 13; Myers’ Supp. 269. The husband’s testimony was incompetent. — Paul v. Leavitt, 53 Mo. 595.

Louis Circuit Court, Thayer, J. Being an action by the receiver, in his own name, and for unliquidated damages, respondent cannot recover.— Manlove y>. Burger, 38 Ind. 211; Battle v. Davis, 46 N. C. 255 ; King v. Cutts, 24 Wis. 625 ; Freeman v. Winchester, 10 Smed. & M. 577 ; Yeager v. Wallace, 44 Pa. St. 294; Rev. Stats. 1879, sects. 427-431, 744, 745, 3660-3662, ,6043, 6044; Hannah v. Moberly Bank, 67 Mo. 678 ; The State to use, etc., v. Gambs, 68 Mo. 289.

<p>A transfer of stock not entered on the books of the corporation is not binding on the corporation.</p>

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

Louis Circuit Court, Boyle, J. “ When the law marshalls and distributes the individual and copartnership assets of the different members of a firm, it has respect to the several equities of the creditors of the firm, and of its individual members respectively. In that case, the copartnership assets are to be first applied to the payment of the firm debts, and the individual funds of the several partners to the payment of their separate individual debts.” — Pars, on Part.

Louis Circuit Court, Lindley, J. To warrant a recovery, fraud and falsehood should be alleged and proved as to material facts affecting the sale. — Terry v. Insurance Co., 3 Mo. App. 595 ; Graham v. Theis, 47 Ga. 479 ; Rice v. Carter, 11 Ired. L.'298. That the false representations were made with the intent to deceive, and were relied upon. —Brown-lee v..Hewitt, 1 Mo. App. 360 ; DunnY.

Louis Circuit Court, Lindley, J. The article complained of is a libel. The doctrine of construction mitiori sensu is completely exploded.— Fallenstein v. Booth, 13 Mo. 429; Johnson v. Dispatch Co., 2 Mo. App. 568; Turvill v. Dollaway, 17 Wend. 428.

Louis Circuit Court, Adams, J. In the absence of a special contract, the carrier is only liable for the carriage of the goods over his own route, and perhaps the safe storage and delivery to the next carrier. — Railroad Go. v. Manufacturing Go., 16 Wall. 318; Railroad Go. v. Pratt, 22 Wall. 123; Darling v. Railroad Go., 11 Allen, 295; Burroughs v. Railroad Go., 100 Mass. 26 ; Babcock v. Railroad Go., 49 N. Y. 491; Brintnall v. Railroad Go., 32 Yt. 673 ; Railroad Go. v.…

Louis County, Edwards, J. Ejectment is the proper remedy. — McCourtney v. Mathes, 47 Mo. 533; Pounds v. Dale, 48 Mo. 270 ; Mc-Cracken v. McCracken, 67 Mo. 591. The will of George Stephenson, deceased, contained a devise in . trust, which was void; he subsequently died intestate, and the land descended to his widow as his sole heir. — Schmucker v. Riehl, 61 Mo. 593 ; Judge v. Lackland, 3 Mo. App. 107.

<p>Appeal from the St. Charles Circuit Court, Edwards, J.</p> <p>Mayberry v. McGlurg, 51 Mo. 261; Beneclce v. Miller, 44 Mo. Ill; Miller v. Woodward, 8 Mo. 130.</p> <p>The State ex rel. v. Powell, 44. Mo. 436.</p>

<p>Appeal from the St. Louis Circuit Court, Boyle, J.</p> <p>The judgments were allowed in the Probate Court, and became preferred claims. — Prewitt v. Jewell, 9 Mo. 732. The appellant, as a judgment creditor, had a right to redeem. — Gray v. Shaw, 14 Mo. 346. A lien is not necessary to entitle a judgment creditor to redeem. — Merry v. Fremon, 44 Mo. 518; Allnut v. Leper, 48 Mo. 319. A trustee who releases the deed of trust divests himself of the legal title. — Gott v. Powell, 41 Mo. 416 ; Rutherford v. Williams, 42 Mo. 18.</p> <p>The trustee has no power to release the deed of trust unless satisfaction thereof has been received by him. — Ewing v. Shelton, 34 Mo. 518 ; Grove v. Robarás, 36 Mo. 523. Having lost his lien by his own laches, and having failed to take advantage of his remedy at law, the appellant cannot now invoke the aid of a court of equity. — Stevenson v. Saline, 65 Mo. 430; Wood v. Augustine, 61 Mo. 51; Jainey v. Spidden, 38 Mo. 402.</p>

<p>Service of a notice to terminate a tenancy, made by leaving a copy with a servant of the keeper of a boarding-house at which the tenant had resided and where his wife yet remained, is insufficient where it appears that by proper inquiry and reasonable diligence the tenant could have been found.</p>

Louis Circuit Court, Wick-ham, J. A general description by name or number will override a more particular description by metes and bounds. —Rutherford v. Tracy, 48 Mo. 325 ; Lodge v. Lee, 6 Cranch, 237 ; Keith v. Reynolds, 3 Greenl. 393 ; Jackson v. Barringer, 15 Johns. 471; Oooléy v. Warren, 53 Mo. 166. Grants are to be most strongly construed in favor of the grantees.

<p>Error to the Lincoln Circuit Court, Edwards, J.</p>

Louis Circuit Court, Ti-iayee, J. The demurrers to petition, and motion to make it more definite, upon being overruled, were excepted to vand made part of the record, and hence are not waived by defendants answering over. — Highley v. Koell, 51 Mo. 145 ; Baulsbury v. Alexander, 50 Mo. 142. Nor need it be mentioned in a motion for a new trial. —O’ Connor v. Koch, 56 Mo. 263.

Louis Circuit Court, Boyle, J. Where the officer fails to acquaint a married woman with the contents of the deed, and to take her acknowledgment of the same upon an examination separate and apart from her husband, the deed and acknowledgment are void. — Wannall v. Kem, 57 Mo. 478-; s. e. 51 Mo. 152; Wag. Stats. 935, sect. 14. A relinquishment of all her “ right, title, and interest” is not a relinquishment of her dower. —Wag.

Charles Circuit Court, Edwards, J. The assignee of an overdue note takes it subject to all the equities in favor of the maker against the assignor. — Livermore v. Blood, 40 Mo. 48 ; Ohappell v. Allen, 38 Mo. 213 ; Farris v. Catlett, 32 Mo. 469 ; Wheeler v. Barrett, 20 Mo. 573 %. Hippy v. Hippy, 46 Mo. 571. McPherson v. Meek, 30 Mo. 345 ; Johnson v. Beasley, 65 Mo. 250 ; Wevne v. Kenyon, 66 Mo. 275.

<p>1. Objections to an information presented in a motion to quash will not be considered, on appeal, unless renewed by motion in arrest.</p> <p>% To establish the offence of selling a lottery ticket it is sufficient to show that the paper was bought and sold as a lottery ticket.</p> <p>3. Evidence of the sale by the defendant of similar papers, and that such transactions always implied a lottery venture, is competent as tending to show the character of the ticket sold and the intent and understanding of the parties.</p>

Louis Circuit Court, Boyle, J. “1. The provision in the charter in regard to the manner of selecting its managers did not vest a right in the individuals who fnight own the stock that could not be changed by the State. 2. The constitutional amendment neither impaired nor destroyed the powers of the franchise : it merely gave additional protection to ownei’s of its stock, and provided an additional safeguard for citizens of the State who should deal with the institution. 3.

Louis Circuit Court, Thayer, J. “ Where carriers on connecting routes form associations and arrangements for the purpose of carrying goods or parcels through the whole line, they are beyond question partners, and each is responsible for any loss or injury to goods which may happen, in whatever part of the line it occurs.” — Goates v. United States Express Go., 45 Mo. 238-241; St. John v. Van Santvoord, 25 Wend. 660; Railway Go. v. McCarthy, 6 Otto, 258.

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

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>The Statute of Frauds must be pleaded. — Cahill v. Bigelow, 18 Pick. 372 ; Gist v. Fubank, 29 Mo. 248; Gardner v. Armstrong, 31 Mo. 539 ; Sherwood v. Saxton, 63 Mo. 84; Graff v. Foster, 67 Mo. 521. The telegraphic correspondence of the parties constituted a valid and binding contract. — Cunningham v. Ashbrook, 20 Mo. 556 ; Bass v. Walsh, 39 Mo. 197; Goddard v. Foster, 17 Wall. 142; Koehring v. Menninghoff, 61 Mo. 407. The principal’s name must be disclosed at the time of the contract in order to relieve the alleged agent. — Washy. Town, 5 Wall. 703 ; McLellan v. Parker, 27 Mo. 162; Thompson v. McCullough, 31 Mo. 225; Higgins v. Dellinger, 22 Mo. 299. The contract, being complete, was not affected by the subsequent acts of the seller. — Schuchardt v. Allens, 1 Wall. 369. The contract of sale carried with it an implied warranty that the bonds were genuine. — Utley v. Donaldson, 94 U. S. 46.</p> <p>The so-called contract is void under the Statute of Frauds. — Browne on Stat. Fr., sect. 505 ; Wildbakn v. Robidoux, 11 Mo. 660 ; Chapman v. Plummer, 1 Bos. & Pul. 252 : Waterman v. Meigs, 4 Cush. 497 ; Wright v. Dannah, 2 Camp. 203 ; Rlintz v. Swinney, 5 Esp. 267; Vredenburg v. Spooner, L. R. 1 Exch. 319 ; Bailey v. Ogden, 3 Johns. 399 ; Coddington v. Goddard, 16 Gray, 442, 443.</p>

Louis Circuit Court, Lindley, J. The act of 1875 extended the term of the defendant, as constable, two years longer. — The State v. Garesché, 3 Mo. App. 584. The Statute of Limitations does not begin to run against actions upon constables’ bonds until the constable’s successor is qualified. —Billion v. Walsh, 46 Mo. 492 ; Gilker Brown, 47 Mo. 105 ; The State v. Daniel, 6 Jones L. 444 ; Boiler v. The State,.20 Md. 169.

Louis Circuit Court, Adams, J. Courts of chancery will correct deeds which, by mistake or fraud, do not contain the contract of the parties. —Crum s. Loud, 23 Iowa, 219 ; Van Wagner v. Van Nostrand, 19 Iowa, 422; Loss v. Obey, 22 N. J. Eq. 54; Easton s. Easton, 37 N. J. L. 108. To prevent the effect of a fraud, equity will carry into effect the contracts of married women. —Class v. Warwick, 40 Pa. St. 140 ; Lamerón v. Jamison, 4 Mo.

<p>1. Under the Charter of the city of St. Louis, an ordinance empowering a committee of either house of the Municipal Assembly to send for witnesses and to compel the production of books and papers is not unconstitutional, as an assumption of judicial powers. .</p> <p>2. Under the authority given by such charter and ordinance, either house may punish for contempt any witness who refuses to produce books material to a pending inquiry, and properly called for in a subpoena duces tecum.</p> <p>3. A witness cannot justify a disobedience of a subpoena duces tecum on the ground that books or papers called for are his private property.</p> <p>4. A witness who is served with a subpoena duces tecum has no right to demand a declaration in the subpoena that the paper demanded is material to the investigation.</p> <p>5. The requirements of sect. 3645 of the Revised Statutes applies only to parties to the suit, and not to mere witnesses.</p> <p>6. The constitutional guaranties against unreasonable searches and seizures, and against depriving a citizen of life, liberty, or property, are no protection against punishment for contempt for refusing to obey a subpoena duces tecum issued under proper authority.</p> <p>7. The constitutional provision that the Charter and ordinances of the city of St. Louis shall be in “harmony with, and subject to the Constitution and laws of Missouri,” requires a substantial compliance with the laws and policy of the State, and not a minute agreement in every particular.</p>

Louis Circuit Court, Wickham, J. A judgment in partition establishes the title to the land which is the subject of pai’tition, and is conclusive upon all the parties to the ■record, and those claiming under them by title acquired subsequent to the commencement of the partition suit.— Forder v. Davis, 38 Mo. 107. The petition must show in plaintiff a legal title to the premises sought to be divided.— McCabe v. Hunter, 7 Mo. 355.

Louis Circuit Court, Adams, J. Interest is not chargeable as of course, but it depends upon the facts of each case. — Madden v. Madden, 27 Mo. 546 ; Glyce v. Anderson, 49 Mo. 43. Damages cannot be recovered against a defendant which the plaintiff could have avoided. — The State ex rel. v. Powell, 44 Mo. 440 ; Tlaysler v. Owen, 61 Mo. 274.

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

<p>Appeal from the St. Louis Circuit Court, Boyle, J.</p> <p>Thomp. on Home, and Ex., sects. 453-455; Vogeler v. Montgomery, 54 Mo. 584 ; Gasebolt v. Donaldson, 67 Mo. 311.</p> <p>/Slcouten v. Wood, 57 Mo. 383; Gragg v. Gragg, 65 Mo.-343; Plate v. Koehler, 8 Mo. App. 396; How v. Adams, 28 Yt. 544; Day v. Adams, 42 Yt. 510.</p>

<p>The statutory lien of innkeepers upon the wages of guests cannot he enforced by garnishment.</p>

Louis Circuit Court, Thayer, J. Sandfelder’s insolvency, shown by proof of the failure of his own firm and otherwise, is presumed to continue, in the absence of satisfactory evidence to the contrary. — Body v. Jewsen, 33 Wis. 402; 2 Whart. on Ev., sect. 1289; Metcalf v. Munson, 10 Allen, 491.

Louis Circuit Court, Thayer, J. By-laws, to be valid, must not be inconsistent with the general principles of the common-law as recognized in this State, nor contrary to general public policy or common right. — 3 Salk. 76; Williams v. Railroad Co., 28 Eng. Law &Eq. 439 ; Hayden v. Noyes, 5 Conn. 391; Taylor v. Griswold, 14 N. J. L. 222 ; Dunham v. Trustees, 5 Cow. 465 ; Piscataqua v. Carter, 20 N. H. 246 ; The State et al. v. Merchants’ Exchange, 2 Mo. .App. 101.

Louis Criminal Court, .Laugh-LIN, J. The court should have instructed for an accqui.ttal, (1) because the proof shows that the property in question was stolen from Thomas B. Hale, while the indictment charges that it was stolen from a person other than Thomas B. Hale. — The State v. Rea/cey, 62 Mo. 40; The State v. Shoemaker, 7 Mo. 178 ; The State v. Fnglish, 67 Mo. 136 ; The Stale v. Fay, 65 Mo. 490 ; The State v. Fisher, 58 Mo. 258 ; The State v. Hayes, 36 Mo. 80.

<p>An adjudication of the St. Louis Probate Court in the year 1876, upon the final settlement of an executor, declaring the balance due from him to the estate and making an order of final distribution, was effectual to create a lien upon the real estate of the executor, though not entered upon the abstract of judgments required by law to be kept in the office of the clerk of the Circuit Court.</p>

Louis Circuit Court, Adams, J. Where the owner covenants to keep the premises in repair, if he fails to do so he becomes liable, not only to his tenant for breach of contract, but to any third person who may be injured by reason of such defective repairs. — Payne v. Rogers, 2 H. Black. 350 ; Lowell y. Spaulding, 4 Cush. 277 ; Leslie v. Pounds, 4 Taun. 649.; Benson v. Suarez, 43 Barb. 408; Kastor v. JSfewhouse, 4 E. D. Smith, 20 ; Milford v. Holbroole, 9 Allen, 17 ; Gridley…

<p>Appeal from the St. Louis Court of Criminal Correction, Cady, J.</p>

Louis Circuit Court, Boyle, J. The petition does not state a cause of action. — Irvin v. JDevovs, 65 Mo. 625 ; Saxton v. Beach, 50 Mo. 488. The court below had no jurisdiction of the cause. — The State v. Campbell, 62 Mo. 585; Pate v. Pate, 6 Mo. App. 49 ; The State v. St. Louis, 67 Mo. 113 ; The State v. St. Louis, 56 Mo. 277 ; Sheehan v. Gleason, 46 Mo. 100 ; Haegele v. Mallinckrodt, 46 Mo. 577.

<p>1. Parties are, in the absence of fraud or treachery on the part of their attorney, bound by his acts or omissions.</p> <p>2. Where there has been an abuse of the discretion of the trial court in refusing to grant a continuance in a criminal case, the judgment will be reversed.</p>

<p>1. An indictment for perjury must set out the facts showing that the false statements were made as to matters material to the issue pending at the time.</p> <p>2. If the fact be a necessary link in the chain of evidence necessary to the determination of the main issue in the cause, it is material.</p> <p>3. In an indictment for perjury, that the oath charged to have been falsely made contains more than the assignment specifies is immaterial.</p> <p>4. That an instruction merely imposes an unnecessary burden on the prosecution is no ground for reversing the conviction.</p>

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>Kansas v. Sigement, 53 Mo. 177 ; Smith v. Ciarle, 44Mo. 58 ; Union Railroad v. Straube, 59 Mo. 362; Beardslee v. Morgner, 4 Mo. App. 144; Chase v. Alexander, 6 Mo. App. 510.</p> <p>Chase v. Alexander, 6 Mo. App. 510; Banle v. Bogy, 44 Mo. 13; Kimball v. Donald, 20 Mo. 577 ; Ford v. Angelrodt, 37 Mo. 50 ; 1 Sandf. 416 ; 3 Sandf. 257 ; 3 Comst- 243.</p>

<p>Appeal from the St. Louis Circuit Court, Wickham, J.</p> <p>The assignment in bankruptcy, having been made within four months after the filing of respondent’s bill, released the lien, if any was obtained by filing the bill. — See Bankrupt Act, sect. 14; Morgan v. Campbell, 22 Wall. 393 ; 1 Nat. Bank. Reg. 570 ; Horner v. Mallory, 31 Md. 478; Bump’s Bank. 473, sect. 5044.</p> <p>The bill was drawn under authority of the decision quoted below, and can be maintained. — Pendleton v. Perkins, 49 Mo. 565 ; Luthy v. Woods, 1 Mo. App.'171; Kent v. Curtis, 4 Mo. App. 126 ; Merry v. Fremon, 44 Mo. 518 ; Turner v. Adams, 46 Mo. 95 ; Beal v.. Me Vicker, 3 Mo. App. 592; Lackland v. Smith, 5 Mo. App. 162. Where default is made and not set aside, the defendant’s assignee can make no defence which the assignor could not have made. — Froust v. Bruton, 15 Mo. 621; Gilstrap v. Felts, 50 Mo. 432. In equity, the filing of a creditor’s bill creates alien. — Bank v. Schemmerhorn, 1 Clarke Ch. 299 ; 1 Paige, 637 ; Miller v. Sherry, 2 Wall, 249 ; Fuse v. Swanson, 7. Heisk. 324. Mesne process. — Bank v. Jaggers, 31 Md. 38. An assignee in bankruptcy is not entitled to take exempt property. —In re Hester, 5 Nat. Bank. Reg. 287. r</p>

<p>Appeal from the St. Louis Circuit Court, Adams, J.</p> <p>The trustee has the right to adjourn the sale in order to prevent a. sacrifice of the property to be sold. —Judge v. Beggs, 47 Mo. 545 ;• Graham v. King, 50 Mo. 22 ; Richards v. Holmes, 18 How. 143 ; Johnson v. King, 3 Ired. Eq. 336. A sale by a trustee will be set aside when the price is grossly inadequate.— Vail v. Jacobs, 62 Mo. 130; Wright v. Wilson, 2 Yerg. 294. When a trustee sells property in gross which is susceptible of division, and injurious results attend such sale, and the interests of the debtor are sacrificed thereby, the sale will be set aside.— Ohesley v. Ohesley, 54 Mo. 347 ; Kelley v. Hunt, 61 Mo. 463 ; Goode v. Gomfort, 39 Mo. 314; Tatum v. Holliday, 59 Mo. 422. A bare compliance with the condtions imposed by the terms of the power is not sufficient, and the sale will be set aside if not conducted with the utmost fairness, —15 111. 507 ; 14 Allen, 396; 3 Mete. 311; 106 Mass. 516.</p> <p>Taylor v. Elliott, 32 Mo. 172 ;■ Goode v. Gomfort; 39 Mo. 325 ; Powers v. Knuchoff, 41 Mo. 430; Garter v. Abshire, 48 Mo. 300 ; 51 Mo. 452 ; 52 Mo. 444.</p>

Louis Circuit Court, Boyle, J. There was no merger. — Atkinson v. Angert, 46 Mo. 515; Forbes v. Moffatt, 18 Yes. 384; Campbell v. Carter, 14 111. 286; Jarvis v. Frink, 14 111. 396. A party to a contract who is also a party to the suit is disqualified as a witness where the other party is dead. — Loker v. Davis, 47 Mo. 141; Granger v. Bassett, 98 Mass. 467; Lewis v. Weisenheim, 1 Mo.

Louis Circuit Court, Wickham, J. “If one is sued upon a covenant for rent, he may recoup for damages occasioned by a breach of other covenants in the same lease, though they are implied ones only.”— Mayor v. Mabie, 3 Kern. 151; Wright v. Litton, 38 111. 293; Wagner v. Dette, 2 Mo. App. 267 ; Green v. Bell, 3 Mo. App. 295.

Louis Circuit Court, Thayer, J. The conditions under which the authority of a special agent is to be exercised forms part of the authority itself, and must be strictly observed or the act of the agent is void. — Story on Ag., sects. 133, 324; Berry v. Anderson, 22 Ind. 36 ; White v. Langdon, 30 Yt. 599.

<p>The penalties for issuing insurance policies in foreign corporations after they have been excluded from the State, are visited upon the resident agent, and not upon the corporation.</p>

<p>1. An allegation that the plaintiff and the defendant “have had accountings and settlements ” is not an averment of an account stated.</p> <p>2. Evidence tending to show that the account was received and held by the defendant, who offered no objection to it, will not supply an omission to plead an account stated.</p>

<p>In equity, a married woman’s separate estate may be subjected to the payment of such damages as are the natural and legitimate result of her failure to perform her written agreement to purchase real estate.</p>

Louis Circuit Court, Boyle, J. A single demand cannot be split up and made the basis of two or more suits. — Wagner v. Jacoby, 26 Mo. 532; Miller v. Covert, 1 Wend. 487 ; Secor v. Sturgis, 16 N. Y. 554. A breach of a lease covenant to return the property constitutes but one and an indivisible demand. — Sir Moil Finche's Case, 2 Leon. 143; Stein v. Prairie Rose, 17 Ohio St. 472; Bancroft v. Winspear, 44 Barb.-209 : Logan v. Caffrey, 30 Pa. St. 106; Simes v. Za>ne, 24 Pa.

<p>Where an injunction is dissolved for want of equity in the bill, in the absence of any evidence that the defendant desired or instigated the institution of the suit, damages are properly assessed in favor of the defendant, though the plaintiff claims that he brought the suit because of statements of the defendant, which misled him.</p>

<p>Appeal from the St. Louis Circuit Court, Boyle, J.</p> <p>The note was dishonored at the time of its transfer. — Carl v. Brown, 2 Mich. 401; Banger v. Gary, 1 Mete. 373; Sylvester v. Grapo, 15 Pick. 92; Lozer v. Burkin, 7 Johns. 70; Herrick v. Wooberton, 41 N. Y. 581; Keyes v. Fenstermaker, 24 Cal. 331; Morey v. Wakefield, 41 Yt. 24. The indorsee occupies the same position as the payee, where he takes the note after it is due, and with full notice that it was made by the firm to one of its partners. — Simrall v. 0 ’Bannons, 7 B. Mon. 608; Hill v. McPherson, 15 Mo. 204; Sherwood v. Barton, 36 Barb. 284; Bavis v. Briggs, 39 Me. 304.</p> <p>Temple v. Seaver, 11 Cush. 314; Pitcher v. Barrows, 17 Pick. 361; Little v. Bogers, 1 Mete. 108; Thayer v. Buffum, 11 Mete. 398 ; Sidlin v. Williams, 11 Cush. 108; Davis v. Briggs, 39 Me. 304 ; Smith v. Lusher, 5 Cow. 688 ; Sherwood v. Barton, 36 Barb. 284; Ripp v. McOhesney, 66 111. 460.</p>

Louis Circuit Court, Lindley, J. In order to a recovery there must have been •a rescission, by placing the parties in statu quo. — Parker v. Marquis, 64 Mo: 35; Owens v. Rector, 44 Mo. 389; Jarrett v. Morton, 44 Mo. 275 ; Pearsall v. Chaffin, 44 'Pa.

<p>Appeal from the St. Louis Circuit Court, Lindley, J.</p> <p>Oorneli v. Partridge, 3 Mo. App. 575 ; Clark v. Brown, 22 Mo. 141; Kiley v. Oppenheimer, 55 Mo. 374; Rathbun v. Acker, 18 Barb. 393; McDermott v. Board of Police, 25 Barb. 635 ; Lowell v. Wentworth, 6 Cush. 221; Brewster v. Newark, 11 N. J. Eq. 114.</p> <p>Cornell v. Partridge, 3 Mo. App. 575; Leach v. Cargill, 60 Mo. 316 ; Rathbun v. Acker, 18 Barb. 393 ; McDermott v. Board of Police, 25 Barb. 646 ; Pearson v. Lovejoy, 53 Barb. 407 ; Brewster v. Newark, 11 N. J. Eq. 114.</p> <p>Hasset v. Rust, 64 Mo. 325 ; De Wilt v. Smith, 63 Mo. 263.</p>

Louis Circuit Court, Thayer, J. Under the Practice Act of this State, a defendant sued upon a contract is not permitted to set up, by way of defence thereto, as distinguished from counter-claim, a claim against the plaintiff for damages for a tort alleged to have been committed by plaintiff in respect of defendant’s property.— Rev. Stats, sects. 3521, 3522; Gordon v. Bruner, 49 Mo. 572 ; McAdow v. Boss, 53 Mo. 203 — 207.

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>The contract under consideration is one of life insurance.— The Commonwealth v. Wealherbee, 105 Mass. 149 ; Henning v. Insurance Co., 47 Mo. 426 ,- Kelsoll v. Tyler, llExch. 513 ;.Schenck’s Case, 44 Wis. 372 ; Commercial League v. The People, 90 111. 166 ; The State ex rel. v. Citizens’ Benefit Assn., 6 Mo. App. 163. In such a case, the policy vests in the beneficiary named ; and upon the death of the insured, though subsequent to that of the beneficiary, the latter’s administrator takes the fund. — Phoenix Ins. Co. v. Dunham, 46 Conn. 79; Gould v. Bmmerson, 99 Mass. 154 ; Succession of Kugler, 23 La. An. 455 ; Ruppert v. Union Mutual Ins. Co., 7 Robt. 156; Fraternal Mutual Life Ins. Co. v. Applegate, 7 Ohio St. 296.</p> <p>The constitution and by-laws of benefit associations constitute a contract between the association and its members. — Gundelach v. Association, 49 How. Pr. 192 ; Dietrich v. Association, 45 Wis. 83. The constitution and by-laws of this society having provided that the fund should, be paid to the legal representatives of a deceased member, upon the death of the beneficiary named, prior to the death of the member, the latter’s representatives take. — Fry v. Chicago, 73 111. 99; Allen v. Mutual Ins. Co., 2 Md. Ill ; United States v. Warner, 4 McLean, 463 ; Woodbury v. Berry, 18 Ohio St. 456 ; Tynan v. Walker, 35 Cal. 634; Alexander v. Worthington, 5 Md. 671; The State ex rel. v. Missouri Life Ins. Go., 44 Mo. 283 ; Swift v. Luce, 27 Me. 286 ; Bartlett v. Morris, 9 Port. 266 ; Gantwell v. Oioens, 14 Md. 215.</p> <p>The beneficiary named, having died before the insured, and the by-laws of the society having provided that the fund should be paid to the legal representatives of the deceased member, the contingent right arising from such nomination did not pass to the heirs of the person so named as beneficiary. — Mutual Ins. Go. v. Atwood, 24 Gratt. 508; Gambs v. Insurance Go., 50 Mo. 44; Kernan v. Howard, 23 Wis. 108.</p>

Louis Circuit Court, Wickham, J. A party having a mere contract for purchase cannot charge a building erected on the premises with a lien. — Hayes v. Fessenden, 106 Mass. 228 ; Metcalfe. Hunnewell, 1 Gray, 297 ; Squires v. Fithian, 27 Mo. 134; Hause v. Thompson, 36 Mo. 450. Even though he be in possession under such a contract. —. Tháxton v. Williams,. 14 Pick. 49 ; Calloway v. Freeman, 29 Ga. 408.

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p> <p>18 U. S. Rev. Stats., 183, sect. 17; Smith v. Krauslcopf, 20 N Y. (S. C.) 526.</p> <p>In re Bechet, 12 Nat. Bank. Reg. 201; Miller v. MacKenzie, 13 Nat. Bank. Reg. 496; Beebe v. Pyle, 71 N. Y. 21; Slater v. Jones, L. R. 8 Exchi 186; Bank v. Ryerson, 23 Iowa, 508 ; Galloway v. Snapp, 10 Reporter, 696.</p>

.Error to the St. Louis Circuit Court, Wickham, J. Probate Courts have no jurisdiction except as conferred by statute. — Powers v. Blakey, 16 Mo. 437 ; The State v. St. Louis, 38 Mo. 402. The court could only authorize the sale of the equity of redemption. — Wellon v. Hull, 50 Mo. 297 ; Jackson v. Magruder, 51 Mo. 55. Demand must be made. — Spaulding v. Suss, 4 Mo. App. 541.

Louis Circuit Court, Boyle, J. 3 Bla. Comm. 220, 221; Knox v. Mayor, 55 Barb. 404 ; Delaney v. Blizzard, 7 Hun, 7; Walker v. Walker, 51 Ga.' 22; Raband v. Frank, 7 Mo. App. 64; Hayden v. Tucker, 37 Mo. 214.. In cities, towns, etc., all tenancies are from month to month, unless there is a written contract, duly signed. Rev. Stats., sect. 3078. A tenancy from year to year is not a continuing tenancy, but recommences every year.

Louis Circuit Court, Boyle, J. The proceedings-, l'esulting in the allotment of the homesteads-are conclusive,, no objection or exception thereto having .been taken at the return term of the execution. — Barney v. Leeds, 54 N. H, 142 ; Thompson on Home. & Ex.,-sect. 667 ; Spoon v. Reidt 78 N. C. 245.

<p>1. A petition which states no cause of action is not aided by verdict.</p> <p>2. Bach count in a petition must state a cause of action; one count is not aided by another unless reference thereto is expressly made.</p>

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

Louis Circuit Court, Adams, J. A statement of two causes of action in one count is a defect of which advantage may be taken on motion in arrest of judgment. — Clark v. Railroad Co., 36 Mo. 215; McCoy v. Yager, 34 Mo. 134; Laveille v. Harrison, 30 Mo. 228 ; Mooney v. Kennett, 19 Mo. 551. Sureties on an indemnity bond are liable for trespass where an illegal levy is made. — Luébbering v. Oberkoetter, 1 Mo. App. 393 ; Peckham v. Glass Co., 7 Mo.

<p>1. In an application for mandamus to compel a trial judge to approve, and permit the filing of, an appeal-bond, the question of the sufficiency of the bond to operate as a supersedeas cannot be determined.</p> <p>2. Mandamus will lie to compel the trial court to allow to be filed an- appeal-bond where the sureties are sufficient, irrespective of the amount of the penalty named therein.</p>

<p>Appeal from the St. Louis Circuit Court, Boyle, J.</p> <p>A judgment against a married woman is a nullity. —Werneclce v. Wood, 58 Mo. 357 ; Gage v. Gates, 62 Mo. 412 ; Lincoln v. Rowe, 64 Mo. 138 ; Weil v. Simmons, 66 Mo. 617. The court had no jurisdiction over the property. —Hardin v. Lee, 51 Mo. 244; Freeman v. Thompson, 53 Mo. 194. A suit at law cannot by amendment be converted into a bill in equity. — Holden v. Vaughan, 64 Mo. 590 ; Saline v. Sappington, 64 Mo. 72; Henderson v. Dickey, 50 Mo. 165; Lumpkin v. Collier, 69 Mo. 170. The indebtedness created no charge upon the separate estate of the defendant. — Hooton v. Ransom, 6 Mo. App. 22 ; Kimm v. Weippert, 46 Mo. 532; Maguire v. Maguire, 3 Mo. App. 463. -</p> <p>The statute authorizing attachment gives that remedy to the plaintiff in “ any civil action.” — Livingston v. Story, 9 Pet. 632, 656 ; United States v. Cigars, 1 Woolw. 123; Rison v. Cribbs, 1 Dill. 181. The decree was in perfect accord with the law and the evidence. —Hash v. Horment, 5 Mo. 545 ; Hooton v. Ransom, 6 Mo. App. 19 ; Miller v. Brown, 47 Mo. 504 Be Baun v. Van Wagoner, 56 Mo. 347 ; Meyers v. Van Wagoner, 56 Mo. 115 ; Bale v. Robinson, 51 Yt. 20.</p>

Louis Circuit Court, Thayer, J. The receipts-of the premium of July 28, 1874, with notice that Mrs. Packard claimed to be sane, and that the relation of husband and wife between her and Theophilus Packard had not ceased, estops the defendant to plead these statements against plaintiff as a ground for avoiding the policy. — Wiele v. Germania Ins. Go., 26 Iowa, 9 ; Mershon v. national Ins.

<p>1. A carrier of passengers by street-cars must either wait a reasonable time for the passenger to be seated, or must start the car with a gradual motion.</p> <p>Where the oar is started with an unusual jerk which throws the passenger ag; ,_ist the car window and lacerates his hand, before he has time to be seated, and it appears that by a proper use of the reins and brake the car could be started without any jerk, this makes a prima facie case of negligence against the carrier.</p> <p>8. A general allegation of negligence is good after verdict.</p>

<p>Application for a writ of prohibition;</p>

<p>Error to the St. Louis Circuit Court, Boyle, J.</p> <p>The State ex rel. v. Sutton, 3 Mo. App. 388.</p>

<p>Error to the St. Louis Circuit Court, Lindley, J.</p>

<p>An executoiy contract founded upon personal trust and confidence is not assignable without the consent of the other party to it.</p>

Louis Circuit Court, Wickham, J. The debts of a debtor become a lien upon his real estate at his death, and 'his devisees take subject to the payment of such debts. —Rawle on Cov. 546; Watkins v. Holman, 16 Eet. 62; Hinton v. Whitehurst, 71 N. C. 66; Metcalf v. Smith, 40 Mo. 572.

<p>Error to the St. Louis Circuit Court, Boyle, J.</p> <p>Actual notice of the dissolution was necessary to relieve the retiring partner from liability. — Garter v. Whalley, 1 Barn. & Adol. 11; Williams v. Keats, 2 Stark. N. P. 290 ; Dolman v. Orchard, 2 Car. & P. 104 ; Parkin v. Garruthers, 3 Esp. 248 ; Pilis v. Bronson, 40 111. 455; Amidown v. Osgood, 24 Vt. 278; Gaar v. Huggins, 12 Bush, 259; Southern v..Grim, 67 111. 106; Speer v. Bishop, 24 Ohio St. 598 ; 'Donzelot v.- Rawlings, 58 Mo. 76. ■ ■</p> <p>The appellant was not of that class of persons entitled to notice of the- dissolution.— Whitman v. Leonard, 3 Pick. 177 ; Glapp v. Rogers, 12 N. Y. 283; Gaar v. Huggins, 12 Bush, 259.</p>

Louis Circuit-Court, Adams, J. The insane husband might execute a valid conveyance, .with his guardian’s consent. — Wag.- Stats. 715,-sect. 32; Darby v. Gabanné, 1 Mo. App. 126. A conveyance by the guardian under order of the court has the same effect as if made by the ward- while not under any disability. — Wag. Stats. 715, sect. 30. Attention is specially called to Gonnolly v. Branstler, 3-Ky. 702 ; Mc-Gullough v. Wilson, 21 Pa. St. 436 ;• Drake v. Glover, 30 Ala. 382.

Louis Criminal Court, Laughlin, J. It is error to instruct the jury that they have the right to disbelieve such as in their judgment are unworthy of'belief. — Thomp. on Charg. Jury, 61, sect. 88: Evans v. George, 80 111. 62; The State v. Elkins, 63 Mo. 159. When the words “material facts” are used in an instruction, they should be explained. — Bigby v. Insurance Go., 3 Mo. App. 603. The charge to the jury must be in writing. — Rev. Stats., sect. 1920.

<p>Error to the St. Louis Circuit Court, Thayer, J.</p> <p>Wright v. McCormic/c, 67 Mo. 426 ; Lessem v. Herriford, 44 Mo. 323 ; Claflin v. Rosenberg, 42 Mo. 439 ; Bishop v. O’ Connell, 56 Mo. 158; Bergert v. Borchert, 59 Mo. 80.</p>

Charles Circuit Court, Edwarjds, J. The purposes for which counties and cities may levy and collect taxes, and the time and manner in which property may be assessed and taxed by municipal authorities, are under the absolute control of the Legislature, and no city or county can acquire any vested right to any particular portion of its revenue, or to any particular assessment, or method of assessment, which cannot be controlled, modified, or taken- away by the Legislature. —…

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

Louis Circuit Court, Adams, J. The party must be owner or proprietor of land when material is furnished or work done. — Ph. on Liens, sect. '65 ; Porter v. Toolee, 35 Mo. 107. A vendee who holds under a contract that cannot be enforced is not such owner or proprietor. — Metcalf v. Hummed, 1 Gray, 297 ; Gray v. Carlton, 35 Me. 481; 14 Pick. 49 ; 3 Serg. & R. 541; 106 Mass. 228.

Louis Circuit Court, Lindley, J. The threat of unlawful imprisonment constitutes duress per minas. Lord Coke says the fear of imprisonment is enough. — 2 Inst. 433; Co. Lit. 253 b. And so the rule has been understood ever since that time.— Yin. Abr., tit. “Duress,” B, pi. 23; 2 Com. Dig., tit. “Pleader,’'’ W, pi. 20; Bac. Abr., tit. “Duress,” A; Chitty on Con. (ed. 1839) 168; 13 Me. 146; 17 Me. 338 ; 1 Cow. Tr. 264.

Louis Circuit Court, Wickham, J. One has the right to come into chancery for relief after judgment, upon equitable grounds, although they might have been taken advantage of at law. —Hampstead v. Watkins, 1 Eng. Law & Eq. 317 ; Dorsey v. Reese, 14 B. Mon. 156; Boyce v. Grundy, 3 Pet. 211; 2 White & Tudor Ld. Cas. 1, 2, 1361.