APPELLATE PRACTICE-Continued.

6. Equity Cases: Review of Evidence. In an action in equity, the
appellate court will review the evidence and determine the case
on the evidence, and is not bound by the finding of facts by the
trial court, that finding being of no force in an equity case. Strong
v. Sperling, 66.

7. Finding of Fact by Trial Court: Rule of Review. When the trial
court makes its finding of fact under the statute, that finding is
binding on the appellate court, if supported by any substantial
evidence. Griffith v. Mutual Protection League, 87.

8.

: Trial Practice: Finding of Fact by Trial Court: Failure
to Save Exceptions: Point Not Reviewable. Furthermore, there
being no objection or exception on the part of respondents to the
finding of the trial court, that defendant association was duly
authorized and empowered to do business in this State, etc., they
cannot avail themselves of this point on appeal. Ib.

9. Review: Pleading: Sufficiency of Petition: Presumptions. Where a
petition is not attacked below, either by demurrer or objection to
the introduction of evidence, as failing to state a cause of action,
every reasonable inference will be indulged in its favor on appeal,
and it will be held sufficient to support the judgment if by fair
intendment it impliedly states a cause of action. O'Hara v. Lamb
Construction Co., 292.

10. Instructions: Review: Harmless Error. And in such action the
giving of an instruction assuming the cable to be defective was
harmless, where the defective condition of the cable was not really
in dispute, but was admitted by defendant's manager in testifying
for defendant. Ib.

11. Rule of Review: Demurrer to Evidence. The appellate court in
passing upon the ruling of the trial court upon a demurrer to the
evidence, will view the evidence in the light most favorable to
plaintiff, giving plaintiff the benefit of every reasonable inference
that may fairly be drawn therefrom. Am. Auto Ins. Co. v. United
Railways Co., 317.

12. Judgments by Default: Opening up Same: Action of Trial Court:
Review. In matters of opening up defaults, a very large discretion
is vested in the trial court, and unless it appears to the appellate
court that that discretion has been abused, or that in exercising it
the law has been violated or departed from, the appellate court
will not interfere with the action of the trial court. State ex rel.
Christine et al. v. Taylor, 333.

13. Court of Appeals Follows Decisions of Supreme Court: Law of
Case: Champertous Contract. While it is true that the Supreme
Court held, when this case was before it, that the defense of
champerty was an affirmative defense which must be pleaded,
and that it had not then been pleaded, yet the opinion discloses
the fact that the Supreme Court did have before it the contract in
question and held that it was valid and not champertous, and the
Court of Appeals is bound to follow the decision of the Supreme
Court in its decision on it in this same case and so hold the con-
tract to be valid. Keleher v. Johnson, 344.

14.

-: Reference: Rule of Review: Compulsory Reference. In a
suit at law involving a long account, which would make it a case
for compulsory reference, the finding of the referee, when ap-
proved by the trial court, has the force and effect of a special
verdict of the jury, and is binding on appeal, if supported by
substantial evidence. Ib.

APPELLATE PRACTICE-Continued.

15. Duplicity: Motion to Strike out Petition: Review. A motion to
strike out the petition, on the ground of duplicity, does not fill
the office of a demurrer and is not subject to review in the ap-
pellate court as a matter arising on the face of the record proper.
State ex rel. Mosberg v. Owens et al., 468.

16. Same: Office: Not Reviewable as Demurrers.

A motion to strike
out a pleading on the ground of duplicity, cannot be put in the
same category as demurrers, and unless such motion is preserved
in the bill of exceptions and called to court's attention by a motion
for a new trial, an assignment of error based on a ruling on the
motion, is lost for appellate purposes. Ib.

17. Motion for New Trial: Assignments of Error in Giving and Refusing
Instructions: Requirements for Review. Assignments of error in a
motion for a new trial to the effect that the court erred in giving
improper and erroneous instructions over the objections of de-
fendant, and in refusing proper and correct instructions offered
by defendant, do not measure up to the requirements and are
insufficient to bring up for review on appeal the instructions given
or refused by the trial court. Probst v. St Louis Basket & Box
Co., 568.

18. Reversals. Even though errors were committed by the court below,
the appellate court will not reverse a judgment and remand a
cause where in no event could plaintiff recover. Locker v. New
York Life Ins. Co., 659.

In an

19. Notice Terminating Tenancy: Instructions: Harmless Error.
action for rent, where the landlord claimed the lease had been
extended, it was not reversible error for the court to have sub-
mitted to the jury the question as to whether lessee's letter was
a sufficient notice to terminate the tenancy under he facts.
Levering Inv. Co. v. Lewis, 679.

ATTACHMENTS.

Service of Process: Specially Appointed Constable not Authorized to
Serve Writ. A specially appointed constable cannot serve a writ
in attachment. Peter Hauptmann Tobacco Co. v. Unverforth, 482.

AUTOMOBILES.

See Street Railroads, 10, 11, 12.

BANKS AND BANKING.

1. Payment of Forged Checks: Liability as to Depositor. Where a
bank, for ten cents on $100, honored checks of a corporation's
branch manager, receiving credit daily by its correspondent in
another city for checks so drawn, law of liability as between
depositor and banker for payment of forged checks regulated
liability of bank to corporation. Cotton Oil Co. v. Bank of Steele,
180.

2. Same: Liability: Statute. Under Negotiable Instruments Law
(Rev. St. 1909, Sec. 10032), a bank is prima-facie liable to its
customer for moneys paid on a forged check, and the customer
need not charge negligence on the part of the bank. Ib.

3. Same: Negligence of Customer. A bank, sued by customer for
moneys paid on forged check, may plead negligence of customer
in defense.

Ib.

BANKS AND BANKING-Continued.

4. Same: Action: Instructions. In corporation's action against bank
to recover moneys paid out on forged checks, parties standing
in relation of banker and depositor, instruction as to corporation's
negligence being a defense, held all bank was entitlde to, in view
of facts and circumstances. Cotton Oil Co. v. Bank of Steele, 180.
5. Same: Negligence. To be defense to bank, which has paid
forged check, negligence of customer should be proximate cause
of forgery or payment, and not mere possible cause of forger's
getting possession of blank check. Ib.

6. Forgeries of Checks: Negligence.

Where a bank's customer is
directly connected with forgeries of checks paid by the bank,
or his negligence is directly connected therewith, he cannot re-
cover from the bank.

Ib.

7. Forgeries: Negligence. Where St. Louis gin company had branch
at Micola, and authorized manager to draw checks on nearby
bank, checks being forwarded to correspondent in St. Louis that
bank might be reimbursed, it was not negligence by ginning
company, in relation to forgery of checks, not to inspect them
when forwarded to St. Louis office. Ib.

8. Forfeiture of Interest: National Bank: Application of Payment.
Under U. S. Comp. St. 1916, Sec. 9759, providing national bank's
knowingly taking, receiving, etc., greater rate of interest than
allowed shall be deemed forfeiture of entire interest, though
usurious, is not so forfeited that debtor may not direct payment
to be applied on interest, or that bank may not, with his knowledge
and consent, apply payment on interest. Mitchell v. Joplin Nat.
Bank, 244.

9. Action to Recover Double Usurious Interest: Statute. Limitations
on plaintiff's cause of action against a national bank, under U. S.
Comp. 1916, Sec. 9759, to recover double usurious interest paid,
ran from date of payment. Ib.

10. Assets of Bank Impaired: Directors Paying in Sum to Replace:
Consideration. Where in the judgment of the clearing house of
bank, the bank's surplus as well as part of its capital was im-
paired, and the bank was notified that unless a specified sum of
money was immediately added to the assets of the bank, the right
to clear through such clearing house would be denied the bank,
with the result that the bank would have had to close its doors,
and thereupon plaintiff, with certain of his associate directors
of the bank, paid into the bank such sum of money, and in lieu
of which, certain assets were then by a resolution of the board
transferred to a trustee for the benefit of plaintiff and his associate
directors, such assets thereupon being charged off the books of
the bank, and no formal action on the part of the board of
directors of the bank having been taken agreeing to repay this
money if or when the bank should have earned it, and such sum
of money being necessary to prevent the bank from suspending,
which would have caused a financial loss to plaintiff and his as-
sociate directors, etc., held, that there was sufficient consideration
to support the transaction. Diebel v. Jefferson Bank, 541.

11. Same: Trustees. And, in such case, held, that plaintiff and his
associate directors could not recover the money paid into
the bank by them on the theory that they must be considered
trustees for the stockholders of the corporation and as such en-
titled to be indemnified against liabilities incurred or moneys
advanced as directors for the benefit of the corporation. Ib.

BILLS AND NOTES.

Interest. Where note contained promise to pay interest, but amount
was left vacant, six per cent should be allowed. Lillard v. Lierley,
140.

BILL OF SALE. See Evidence, 8; Frauds, Statute of; Replevin.

BOARD OF TRADE.

1. Sales: Intention of Parties: Contracts. In contracts for sales of
commodities in the future there must be an actual intention to
deliver or receive the commodity and not an intention simply to
settle the differences according to the fluctuation in the market
prices of such commodities, and although the transaction may
have been carried on under the guise of legitimate trade, it may,
nevertheless be shown to have been a gambling contract. Smith
et al. v. Bailey, 627.

2. Gambling Contracts: Intent of Parties: Statutes. Under sections
4780 and 4781, Revised Statutes 1909, the intent of either one of
the parties to the buying and selling of commodities for future
delivery to gamble on such transactions or to speculate on the
rise or fall of the market, is sufficient to and does render the con-
tracts therefor absolutely void, even so as to defeat the commission
of the broker, who was ignorant of the gambling intention of his
principal, notwithstanding the other party may be entirely in-
nocent and unaware of the first party's intention to gamble. Ib.
3. Instructions: Withdrawing Evidence from Jury. It was error to
refuse an instruction withdrawing from the consideration of the
jury evidence on an issue not pleaded in the answer. When it is
intended to rest a defense upon any fact not included in the al-
legations necessary to the support of plaintiff's case, it must be
set out specifically. Ib.

BONDS. See Appellate Practice, 3, 4, 5.

BREACH OF CONTRACT. See Contracts, 9, 10.

BROKERS. See Real Estate Agents.

Oil Broker: Kerosene: Ultimate Consumer: Explosion: Proximate Cause.
An oil broker in Missouri sold to an oil company in that State a
car of kerosene. The oil company sold a large quantity of it to
a retail merchant and the latter sold one gallon to a customer
who undertook to start a fire by pouring some of it over kindling.
The oil was not all kerosene but was largely gasoline and an ex-
plosion killed the purchaser. It was held that the negligence of
the original vendor (the oil broker) was the proximate cause of
the explosion. Kearse v Seyb et al., 645.

BUILDING CONTRACTS. See Contracts, 1; Damages, 1, 2, 3.
BULK SALES LAW. See Fraudulent Conveyances.

BURNING OF BUILDING. See Insurance, 13.

CARRIERS OF LIVE STOCK.

The well established

1. Public Service Commission: Reduced Rates.
rule in this State that a carrier may not limit its common-law
liability unless the contract is supported by the consideration of
a reduced rate or other consideration, has not been changed or
abrogated by the provisions of the Public Service Commission
Act requiring carriers to file schedules of tariffs with such com-
mission. Hull v. C. B. & Q. Ry. Co., 392.

CARRIERS OF LIVE STOCK-Continued.

2. Limitation of Liability: Consideration. Where a carrier has but
one regular rate applicable to a given class of property and that
rate is not a reduced or special one, it cannot escape liability for
negligence by reason of such rate. Hull v. C. B. & Q. Ry. Co., 392.

CARRIERS OF PASSENGERS.

CERTIORARI.

See Street Railroads.

Review: Scope and Extent. Proceedings in certiorari bring up the
record only, and matters not appearing therein cannot be con-
sidered or made grounds for quashing such record. State ex rel.
v. Brasher, 117.

CHAMPERTOUS CONTRACTS.

CHATTEL MORTGAGES.

See Appellate Practice, 13.

1. Conversion by Mortgagee. Although first chattel mortgage was
voidable, mortgagor could not recover against first mortgagee for
conversion of the property where at time of the conversion the
first mortgage had not been declared void, and the property was
turned over to the first mortgagee by a second mortgagee in
possession thereof under a valid mortgagee after condition broken
and while a balance was due on the second mortgage, under belief
that first mortgagee had prior lien; for, since such surrender
was not waiver of the second mortgagee's lien, the second mort-
gagee was the only one entitled to possession at that time. Cook
v. Smith, 218.

2. Action by Mortgagor After Condition Broken. Mortgagor of
chattels after condition broken is deprived of action of conversion
if mortgagee has possession under valid mortgage. Ib.
COMMISSIONS ON RENEWAL PREMIUMS. See Contracts, 14, 15,
16.

COMMON CARRIERS. See Carriers of Live Stock; Interstate Commerce.
Ex Delicto: Proximate Cause: Freight Charges: Cause of Action. Plain-
tiff, for the purpose of shipment, deposited a large grading machine
on defendant's right of way in Jackson County, Missouri. After
a length of time, plaintiff sold the machine to Hoy & Co. of Vin-
cennes, Indiana, and it was shipped over defendant's road as far
as East St. Louis and then delivered to a connecting carrier which
refused to deliver to Hoy & Co., until defendant's charges for
storage were paid. Hoy paid them under protest. No authority
was alleged from plaintiff to pay them. When Hoy & Co. came to
pay plaintiff the price of the machine it kept out the amount of
these charges and plaintiff allowed it to retain or deduct that
sum. Plaintiff then sued defendant to recover such charges. It
was alleged that the charges were illegal and wrongful. It was
held that there was no cause of action against defendant. Luck
Construction Co. v. Chicago & Alton Ry. Co., 450.

COMMON LAW.

Statutes: Statutes and Decisions of Other States: Pleading and Proof.
Statutes and decisions of the courts of other states must be
pleaded and proved in each case. Lillard v. Lierley, 140.

CONSIDERATION.

See Banks and

Banking, 10; Carriers of Live

Stock. 2; Contracts. 7.