CONSTITUTIONAL LAW-CONDEMNATION OF PROPERTY WITHOUT TRIAL.-An act amendatory of and supplemental to an act entitled "An Act Creating a Board of Police Commissioners," etc. (Sess. Acts 1867, p. 178.) Held void as being in conflict with §§ 17 and 18, art. 1, of the Constitution of 1865, which secures to each person the right of trial by jury and provides that in criminal cases the accused has the right to be heard by himself and his counsel, and shall not be deprived of life, liberty, or property, but by the judgment of his peers or the law of the land. The act in question empowers the Acting President of the Board of Commissioners, upon knowledge or information of the existence of any prohibited gaming-table or other gaming device kept or used in the City of St. Louis, to issue a warrant for its seizure, and when brought before him to have the same publicly destroyed, without providing for a trial to determine whether the property seized is in fact of the description designated in the act and condemned by law. Judgment aflirmed. Opinion by GANTT, J.—Lowrey v. Rainwater et al. RAILROAD NEGLIGENCE KILLING CHILD-CONTRIBU. TORY NEGLIGENCE OF DECEASED.-Where the deceased, a child of 12 years, stood upon the track of the railroad in the city of St. Louis, and disregarded the signals of danger until the fatal moment, her negligence contributed to the result; but the danger would have been within the control of defendant had the train not been running at a greater rate of speed than that prescribed by ordinance of the city (four miles an hour); hence the recklessness and misconduct of defendant was the immediate and direct cause of the death. The contributory negligence of the plaintiff, will not bar a recovery, if, notwithstanding that contributory negligence, defendant might, by the exercise of ordinary care, have avoided the infliction of the injury [citing, 50 Mo. 466]. This is the rule when plaintiff is an adult and the party injured. The ordinance regulating the speed of railroad trains within the city is a judicious one, and its violation places the defendant in the position of a wrongdoer [citing, 40 Mo. 506; 55 Mo. 482]. The instructions, taken together, properly present the law to the jury. Judgment aflirmed. Opinion by GANTT, J. Kempinger v. St. L. & I. M. R. R. Co.

MECHANICS' LIEN-AUTHORITY OF HUSBAND TO CONTRACT AS AGENT OF WIFE-AMOUNT FOR WHICH PROPERTY SUBJECT TO LIEN-PAYMENT BY OWNER AND NOTICE TO SUB-CONTRACTOR.-Where suit was brought by sub-contractor to enforce a lien against the property of a married woman, for materials furnished to build a house upon her lot, under a contract entered into by the husband, it appearing that the wife did not authorize the work, nor appoint her husband her agent to make the contract, and made no subsequent ratification other than an approval of the arrangement of the house: Held, that it was the contract of the husband made for himself. The husband, as such, had no capacity to fix the liability of the wife's estate by his contracts. Knowledge and approbation are merely prima facie evidence of authorization, and may be utterly defeated by direct testimony to the contrary. The -owner must participate either directly or indirectly in the contract which is to fix a mechanics' lien on his estate. [Citing 49 Ill. 116; Id. 53; 13 Ohio St. 131; 61 Mo. 578.] Held, further, that the original contractor cannot, by sub-contract, bind the estate of the owner with a lien for a greater sum than the original contract price; nor can the owner, by improvident payments and notice to the sub-contractor, to look to the original contractor for his pay, defeat the rights of the sub-contractor to his lien for materials furnished subsequent to such notice. Judgment reversed and cause remanded. Opinion by LEWIS, J.-Garnett v. Berry et al. FORFEITURE OF RECOGNIZANCE.-Defendant being in custody under indictment for a misdemeanor, gave a recognizance on September 27, 1875, conditioned that he should appear in proper person "on the first day of each and every term of the circuit court, to which the cause should be continued, and not depart thence without leave of court." On the 17th of April, 1876, at a term of said court, his recognizance was forfeited and capias issued, on which he was arrested April 18, 1876, and, subsequently being in court, he announced himself ready. The forfeiture was by consent set aside, a motion for that purpose having previously been overruled, the cause submitted to the court, both parties waiving a jury, defendant found guilty-motion in arrest overruled. Held, 1. That the appearance of defendant at the first term did not satisfy the conditions of the bond, which required his appearance at "each and every term to which the cause should be continued." The conditions are

CAN'T some one send us a joke? CURSED be the gold that gilds the straightened forehead of the professional juror!

WE have room for just a few more letters on the presidential question, say fifteen or twenty-in our waste basket. A VERY valuable work by Hon. John F. Dillon, Judge of the Eighth Judicial Circuit, is published in compact form by Jones & Co., St. Louis. It is a review of the law of municipal bonds, and discusses first the power to issue negotiable bonds, and, second, the means of enforcing payment. No one in the country is better able to speak with authority on these questions, and the work reviews with great care and with full citations the many judicial discussions bearing upon them. Quoting from this paper as to the magnitude of municipal indebtedness, and considering the danger of excessive issues and of repudiation, Judge Dillon proceeds to show that taxation is limited to public purposes, and what are such purposes; examines the two classes of municipal securities, the ordinary warrant, and the negotiable bond; treats of the implied power to borrow money; shows that want of power to issue bonds is always open as a defense; considers the different classes of bonds and the law affecting each, the conditions precedent to exercise of power, the estoppel of recitals, what constitutes completed subscription or valid contract to subscribe, registration of bonds, retrospective enactments, and laches, acquiescence and payment of interest, and retaining the stock on consideration as grounds of estoppel. In the second part, the mode of enforcing payment is examined in the same exhaustive manner. The volume is small; but, as the brief recital of topics shows, must be of the greatest value to investors. G. I. Jones & Co., St. Louis, are the publishers.-The Public (N. Y.)

Me

NOTWITHSTANDING we have had during the past year in St. Louis two disastrous savings bank failures, which have brought unspeakable misery into many households, yet a number of banks have declared such dividends as indicate a very satisfactory state of health in the banking business. Among these may be mentioned the following: Citizens' Savings Bank-cash dividends of $4 per share declared. Exchange Bank of St. Louis-dividends of 4 per cent. on capital stock, payable on demand. Continental Bank of St. Louis-semi-annual dividend of 4 per cent. on capital stock, payable on demand. Franklin Avenue German Savings Institution-dividend of 64 per cent., equal to $5 per share, to be credited to the capital. American Savings Bank-dividend of 6 per cent., payable on demand. Broadway Savings Bank-dividend of 10 per cent. out of the net earnings of the past six months to be credited to stock account, besides crediting $11,630 96 to surplus fund. chanics' Bank-semi-annual dividend of 3 per cent., free of all tax, payable on and after the 2d of January. Boatmen's Savings Bank-dividend of $5 per share out of net earnings, for past six months, payable on and after January 1. Jefferson Insurance Company-semi-annual dividend of 5 per cent. on capital stock, payable after January 1; balance of profits remaining to be credited to contingent fund. Merchants' National Bank of St. Louis-dividend of 31⁄2 per cent. on capital stock, free of all taxes, payable on demand, after placing 10 per cent, of net earnings to the credit of surplus fund. St. Louis National Bank-semi-annual dividend of 5 per cent., payable on demand. Marine Insurance Company-semi-annual dividend of 5 per cent. on the capital stock, payable on demand. Mullanphy Savings Bank-semi-annual dividend of 5 per cent., payable on and after January 10; the remainder of the profits of the last six months, amounting to $1,092 32, was placed to the credit of surplus fund. North St. Louis Savings Association-dividend of 10 per cent. on the capital stock out of net earnings for the last six months, placed to surplus and contingent fund; balance of earnings placed to credit of profit and loss account.

SAINT LOUIS, JANUARY 12, 1877.

CURRENT TOPICS.

The index of the last volume of THE CENTRAL LAW JOURNAL has been unavoidably delayed on account of the great amount of matter which it contains, We hope we shall be able to furnish it to our subscribers in a few days.

THE SCHEME AND CHARTER for the city of St. Louis, in the refusal of the Court of Appeals to grant a writ of prohibition, has reached another, and, we hope, a final stage. It will be remembered that during last summer an election took place, under power granted by the Constitutional Convention of Missouri, upon the adoption of a scheme separating the city of St. Louis from the county, for municipal purposes, and of a charter for the government of the new municipality. The proposed charter had been framed by a Board composed of leading freeholders of the city, and contained provisions rendering a higher qualification necessary for public office, making the embezzlement and dissipation of public funds more difficult and detection more sure, abolishing useless offices and consolidating necessary ones, securing greater capacity in public servants, restricting the spending of public moneys, and establishing improvements and safeguards in the administration of public affairs. We regarded, at the time, the proposal as having been carefully planned in the interest of honest, economic and efficient government, and the sentiment of the best class of citizens was decidedly in its favor. It was, however, unexpectedly defeated at the polls. The means which were employed to effect this result were afterwards brought to light upon an application to the Circuit Court for a recount, and an examination of the votes cast was had in pursuance to its order. It was then found that fraud had entered into the election to such an extent as not only to render the apparent result a false one, but to raise the presumption that the subsequent efforts of the opponents of the scheme to defeat it at all hazards were scarcely honest. The commissioners reported that the scheme and charter had been carried by a majority of honest votes, and the parties whose duty it was to certify this result were preparing to execute their functions when application was made to the Court of Appeals for a writ of prohibition. The judgment of that court was delivered on Monday last, denying the writ, and the prospect is that the separation of the city from the county will soon be an accomplished fact. In reviewing the contest which this project aroused, this fact is brought prominently forward, viz.: that whatever may be thought of such returning boards as those of Louisiana and South Carolina, such a board, acting under the diVol. 4.-No. 2.

important adjunct to honest government.

WE earnestly invite the attention of the Legislature of Missouri to the condition of the statutes of this state with regard to the duty of railroad companies to fence their tracks, and the liability of such companies for killing or injuring stock which stray upon their tracks where they are not fenced. The statute at present governing this question simply requires railroad companies to erect and maintain good and substantial fences on the sides of the road "where the same passes through, along or adjoining enclosed or cultivated fields, or unenclosed prairie lands, of the height of at least five feet," etc. 1 Wag. Stat., p. 310, § 43. The remaining portion of the statute defines the liability of such corporations for failure to perform this duty; and another statute (1 Wag. Stat. p. 520, § 5) again defines the liability of railroad corporations in such cases. These statutes are good enough, but for the fact that the duty of the railroad company to fence its track is limited to places where the same passes through, along or adjoining enclosed or cultivated fields or unenclosed prairie lands." This statute must have been enacted in the days of railroad-building, when the country was much more sparsely settled than now, and when it was the policy of the legislature to lay as few burdens upon railroad corporations as possible; but it is seen that it is utterly inadequate as a protection to farmers and stock-raisers against the killing of their stock by passing railway trains. Just why it should have been thought more necessary to fence in unenclosed prairie lands than unenclosed timber lands, can not be seen. Some of the most thickly populated portions of the state, as, for instance, the districts surrounding St. Louis, Jefferson City, Hannibal, Lexington and Boonville, consist chiefly of timber lands; and, unless railroad corporations are required by law to maintain on both sides of their track good and substantial fences through the open country in such districts, there is absolutely no protection to farmers and stockraisers against the killing and injuring of their stock upon such railroads. The statute resolves itself into a prohibition against people who are so unfortunate as to live where timber grows, from allowing their stock to run at large; while those who are so fortunate as to reside on the prairie are allowed this privilege. Cases have recently arisen where stock has been killed in the vicinity of St. Louis in a district so thickly settled that an accommodation passenger-train stops at fifteen stations in forty-five minutes; and yet, because the country on one side of the track was open timber, it has become a serious question whether the railroad people were liable for the killing of stock which strayed upon the track in consequence of their fence being down. In a state like Missouri, where great stretches of country are, and always will be, uncultivated, the policy of the law evidently is to permit stock to run at large

without hindrance, unless, perhaps, it may be found wise to restrain this right in certain thickly settled districts; a thing which was attempted by the recent stock law which the Supreme Court declared unconstitutional. This being the case, the duty of railway companies should be made imperative to fence their tracks at all places, except where the same are crossed by public highways, or where it is necessary for the accommodation of the public that the track should be left open, as in towns or around depot buildings.

HON. CELSUS PRICE, Superintendent of the Insurance Department of Missouri, has made, through the governor, to the legislature, certain recommendations for the amendment of the insurance laws, some of which, it would seem, deserve to be acted upon. He advises the abolishing of that part of the present law requiring him to make a demand for a special statement of the officers of an insurance company before he can proceed to the examination of such company. The reason that he gives for the proposed change is, that the necessity of making such a preliminary demand is an obstruction to the proper discharge of the duties of his office; and that the examination of a company, like that of a bank, should, to be effectual, be without warning;-a point which is obviously so well taken as to require no argument in its favor. Another recommendation is, that receivers of insurance companies appointed by the courts should be required to file with the insurance department duplicate copies of all reports which they may make to the courts appointing them. The reason advanced by the superintendent for this recommendation is that, as the law now stands, the department loses all control of the affairs of the insolvent companies after they pass into the hands of receivers. We regret that we can not see equal reasons in support of this recommendation. success which the insurance department has had since its origin in dealing with the affairs of insurance companies, and in exposing and repressing their frauds, peculations and maladministration, convinces us that, when the courts of law get control of such concerns, the public can safely leave them there without any assistance from the insurance commissioner. The St. Louis life insurance companies have, for the last seven or eight years, undergone a steady process of decomposition, accompanied by all the attendant stench, under the very nose of the insurance department. The public have been defrauded in the most shameful manner, and many a victimized policyholder would like to know, if any one can tell, what the office of superintendent of insurance in this state was created for.

The ill

Attention is further called to the fact that, during the past year, several insurance companies have been organized in compliance with the insurance laws of other states, and have applied for permission to do business here, which have been found to be unsound and fraudulent in their inception. The superintendent suggests as

a remedy that those portions of the insurance laws permitting the capital of insurance companies, which is paid in on their organization, to be invested in mortgages or deeds of trust on lands, be stricken out, and that companies be required, before going into operation, to have on hand the required capital actually paid in in cash, or invested in stocks or bonds of the United States or the State of Missouri. As Missouri state stocks are just now a first-class security, much beyond the average of real estate mortgages taken by new companies, this recommendation would seem to be a very reasonable and timely one. As it is, the superintendent states, companies can be organized and go into operation without one dollar in cash being paid in, and a wide door is left open for frauds similar to those perpetrated in other states, and, he might have added, similar to those perpetrated in this state. High estimates can be placed upon remote, unproductive and unsalable real estate, and mortgages upon them can be substituted for the cash capital required by law, without deduction. This, as we understand it, is precisely what the superintendent of insurance did when he substituted for securities previously held by the insurance department, a mortgage upon the building of the St. Louis Mutual Life Insurance Company in St. Louis, which investment does not, it is believed, pay much more thau the taxes and the office rent of the company. The superintendent desires to be understood as intending to provide simply against the substitution of real estate securities for cash capital required on the organization of these companies. Subsequent investments of earnings may be left to be made by the companies in bonds, mortgages or deeds of trust on real estate.

ONE of the curiosities of literature is a work entitled "The Law of Literature," by James Appleton Morgan (New York: Cockroft & Co.); and another will be found in his "Notes to Addison on Contracts," published by the same house. As for the Law of Literature," it has been laughed at so much, that one would think that the author would be glad never to hear of it again. If Mr. Morgan conceives that the few random and scanty notes to De Colyar have made the profession deeply in love with him, we venture to think that he over-estimates the ordinary force of human gratitude in a very extravagant manner. He seems to think, the only duty of an editor is to cite as many cases as possible. He scatters them at the bottom of his pages in the most prodigal fashion. There is neither choice, order, nor discrimination. His favorite way is after this style: "As to infancy —”; and here will follow the names of a hundred cases, taken apparently from the United States Digest, mere names of cases, and nothing else under heaven. As to whether they fit the text, he never stops to enquire. On page 386, vol. I., the author states the English rule that contracts between solicitors and clients for the purchase of property from the latter, are void; upon which the

see

editor cites some twenty or thirty cases, without explanation, not one of which supports the rule laid down. And so on all the way through. With a most astounding candor, he says in his preface that he aspires to quote as many cases as possible. He mentions no other object, and we can hardly suppose that he had any other. Whenever he adds anything to his heaps of cases, he betrays that charming ignorance of the simplest rules of English grammar that made his "Law of Literature " such delightful reading. Thus, in vol. I., p. 392, "The English statutes which forbade the purchase of a doubtful title by a stranger, of one not in possession, was re-enacted, &c. &c." Such instances are so frequent that one must conclude that it is well for the editor to stick to the names of cases. Whenever he leaves them, he gets all at once beyond his depth. As for the clearness of his style, the following is a pretty fair average specimen : "But where a ward who had a child by her guardian, and agreed to settle property upon it, it was held not to be per se void." Evidently it must have been the ward that settled the property; but whether it was the property or the child that was held not to be void per se, must remain an open question. The reader pays his money, and can take his choice. It would seem that the enterprising publishers having got Mr. Morgan and his office boy to wreck a copy of the United States Digest, might have gone farther, and hired a school-master to correct his English. As to his fidelity to the cases cited, the following summary of Kearney v. Taylor, 15 How. 494, must suffice for this time: "A sale at auction to an association, of which the auctioneer is himself a member, is void." Vol. 2, p. 9. We can easily imagine Mr. Morgan standing on one foot in his office whistling Yankee Doodle, and telling his office boy how to make these notes. We think that he has taken, on the whole, unnec

essary trouble in the matter. Instead of getting the names of the cases from the body of the digest, he might have cut them from some table of cases at random, with equally good effect. Let no one suppose, however, that we think hardly of Mr. Morgan. In this day of hard work he is setting a worthy example of the way of doing things with no trouble at all. We have even conceived an affection for him; an affection somewhat akin to that which Charles Lamb professed for the five foolish, but gay, good-hearted virgins who had no oil in their lamps. Besides all this, Addison on Contracts is so good a book that "The American Notes may be skipped, and still there will be enough to satisfy any reader who is not absolutely gluttonous; and it is always a relief to see Smith and Jones waltzing together at the bottom of a page, with a v. between them.

LIS PENDENS.

66

Lord Bacon's rule, that where one comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of the court, there, regularly the decree bindeth," is perhaps more perspicuously expressed by Chan

celor Kent, who says that "a lis pendens duly prosecuted, and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree."

This rule has been adopted by courts of chancery jurisdiction both in England and the United States. That the doctrine of lis pendens rests upon the presumption of notice, has been questioned in Newman v. Chapman, 2 Rand. 93, the Chancelor holding, for the reason that, in cases where it operates, it applies where there is no possibility of the purchaser whose interest is affected having notice of the pendency of the suit, that therefore it rests upon reasons of public policy, and not upon any presumption of notice. This reasoning may well be doubted. With equal propriety it might be applied to all the different kinds of constructive notice known to the law, by which persons, ignorant of certain facts, are as uniformly concluded from denying knowledge as though they had actual notice.

The mere fact that it would have been impossible, in the nature of things, for the purchaser to have had actual knowledge of the pendency of the suit, where he is bound by the decree, only tends to illustrate the conclusiveness of the presumption of notice. It is conclusive because those to be affected are not permitted to deny it. To allow them to show that actual notice was beyond their reach, would be to destroy the conclusive nature of the presumption. It is true that public policy dictates the rules of presumptive notice; but, after all, however inconsistent it may appear to hold a fact conclusively presumed which is beyond the range of possibility, the presumption which public policy demands remains. The question of its probability or possibility becomes irrelevant, and consequently never comes before the court. If the impossibility of actual notice were inherent in the nature of the proceeding by which the ignorant purchaser is charged, public policy would require no such rule. There would be a stronger reason for abandoning such a rule than for adhering to it. If suits were secretly prosecuted in tribunals whose records and proceedings were carefully concealed from the knowledge of all persons except those directly interested, courts of equity would never attempt to extend their decrees beyond the parties to the suit.

In applying this doctrine, some of the courts in this country have manifested an inclination to restrict its operation to suits affecting the title to real property. Winston v. Westfeldt, 22 Ala. 760; Murray v. Lilburne, 2 Johns. Ch. 441; McLaurine v. Monroe, 30 Mo. 462; Baldwin v. Love, 2 J. J.J Marsh. 489. But it can hardly be said to be well settled that it may not with equal propriety be applied to sales of chattels. In the case of Wotlington v. Hawley, 1 Desau. 167, a purchaser of securities, pendente lite, was held to be bound by the decree to the extent that he might be required to restore the securities and receive what he actually paid. It would seem that the same reason for holding the purchaser of real estate bound by

the decree of a court where the title was being litigated at the time of the purchase, would apply where the property transferred was personal instead of real, except in the case of negotiable paper. It is true, that the purchaser is less likely to undertake the investigation of records, to ascertain his grantor's title when he purchases chattels. The title to personal property prima facie accompanies the possession. Its ownership is not to such an extent the creature of municipal law as that of real estate. On the other hand, if movables might in all instances be safely transferred pendente lite, the purposes of the suit might be more easily defeated or delayed, than where the matter in controversy was the title to real estate. Manual possession of the thing being the object of the suit, the readiness with which the chattel might be transferred renders a decree for its delivery in specie sufficiently difficult of execution; and if actual notice of the pendency of the suit were required in order to charge the purchaser, the transitory nature of the property would render evasion of the law still easier of accomplishment.

The possible harshness of the operation of this rule, though frequently acknowledged by learned judges, has not deterred them from adhering to it as the only safe doctrine. Lord Hardwicke, in Garth v. Ward, 2 Atk. 174-5, says: "A decree dismissing a bill of redemption would operate equally in favor of the mortgagee against any person to whom the mortgagors should, during the pendency of that suit, convey, as against himself. So in the case of a mortgagor who comes here for redemption, if, during such suit, he should assign the equity of redemption, and, in the final hearing of the cause, there should be a decree against the mortgagor, will not the assignee of the equity of redemption be bound by this decree?"

* *

*

The above case is cited in Bishop of Winchester v. Paine, 11 Ves. Ch. 194. In the last mentioned case it was decided that where, during the pendency of a suit to foreclose a mortgage, the mortgagor executed a second mortgage upon the same premises, such subsequent mortgagee did not become a necessary party to the suit; and that, where the mortgagor died while the suit was still pending, it was not necessary, on reviving the suit against his representatives, to make parties of mortgagees or purchasers who became such after the original institution of the suit. Martin v. Stiles, cited in Bishop of Winchester v. Paine, supra, is perhaps as strong a case in favor of the doctrine as could well be imagined. There the bill was filed in 1640, and the case abated by death of one of the parties in 1648; the purchase was in 1651, and the bill of review filed in 1662. The decree-1663held that the apparent laches was excused by the wars prevailing at the time, and that the purchaser, while the suit was in abeyance, was bound. This matter was again before the court in Style v. Martin, 1 Ch. Ca. 150; but the result reached in the former case was left unchanged.

In the early English cases of Sorrel v. Carpenter, 2 P. Williams, 482, Worsley v. Earl of Scarboro,

3 Atk. 392, Walker v. Smallwood, Amb. 676, Lowther v. Carlton, 2 Atk. 242, Self v. Madox, 1 Vern. 459, Finch v. Newhaus, 2 Id. 216, it is uniformly held that every purchaser, pendente lite, even for a valuable consideration and without actual notice, will be bound by the decree, if the suit is one intended to affect the title to the property purchased, whether it be to charge it with debts, to foreclose a mortgage, or is a bill to establish a will and perpetuate testimony, or a proceeding by injunction, or otherwise. Garth v. Ward,

supra.

One of the earliest, if not the first, of the cases in which this doctrine was unequivocally adopted by our American courts, was that of Murray v. Ballou, 1 Johns. Ch. 566. In that case, the suit pending at the time of the purchase was against a trustee, charging him with breach of trust, praying that his authority as such might cease, and that he be enjoined from the sale or use of any lands or securities held by him in trust. Chancelor Kent, in deciding that the purchaser pendente lite was bound, seems to rest his adhesion to the doctrine of some of the early English cases, cited above, more upon the authority of precedent than upon principle. Still, his defense of the rule upon the ground of necessity indicates that, had the case been one of first instance, he would not have decided it differently.

Since the case of Murray v. Ballou, the English doctrine has become quite generally adopted throughout the United States, in courts of equitable jurisdiction, both State and Federal. It has, however, been carefully restricted in its application. Norton v. Birge, 35 Conn. 258; King v. Bell, 28 Id., 598; Ray v. Roe, 2 Blackf. 258; Green v. White, 7 Blackf. 242, 11 Ind. 443; Ferrier v. Buzick et al., 6 Ia. 258. It is held not to apply where the court has not jurisdiction of the thing. Carrington v. Brent's Heirs, 1 McL. 167; s. c. 9 Pet. 86. Nor until after the service of process, or publication of the orders. Fowler v Byrd, Hemst. 213; Metcalf et al. v. Smith's Heirs, 40 Mo. 572; Samuels v. Shelton, 48 Mo. 444; Bailey et al. v. McGinniss et al.,57 Mo. 362. Nor where the prosecution has not been constant and continued. Ferrier v. Buzick et al., supra; McGregor v. McGregor, 21 Ia. 441; Newman v. Chapman, supra; Watson v. Wilson, 2 Dana, 408; Herrington v. Herrington, 27 Mo. 560; Carter v. Mills, 30 Mo. 432; Hayden v. Bucklin, 9 Paige, 513; Clevenger v. Hill, 4 Bibb. 499; Ludlow v. Kidd, 3 Ham. 541. In the case last cited it was held that the suit was not pending between the time of dismissal and the filing of a bill of review.

In an action to rccover a slave from a purchaser pendente lite, it was held that, where the plaintiff in the original suit took judgment against the defendant for the value of the slave, on account of his having been sold, he could not recover from the purchaser. Taking judgment as for a conversion of the property was a recognition of the sale and a waiver of his claim for the thing. Smith v. Brown, 9 Leigh, 293. The lis pendens only af