Volume 103 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) The instruction numbered six, being the second of the series given for the plaintiff, is erroneous; it instructs the jury that they, “must believe from a preponderance or greater weight of the evidence, that that the plaintiff negligently attempted to alight’ from the defendant’s ear before it came to a stop at Broadway and Olive streets.” This entirely ignores the plea of contributory negligence pleaded by the…

Louis City Circuit Court, — Hon. D. G. Taylor, Judge. (1) The keeping of a dramshop is not a right but a privilege to be granted only under the strict provisions of the statute. Austin v. State, 10 Mo. 591; State v. Holt Co. Ct., 39 Mo. 521. (2) There is no authority vested with jurisdiction to issue license until a majority of the qualified persons sign petition. R. S. 1899, sec. 2997. (3) The excise commissioner must investigate qualifications of signers.

Louis City Circuit Court. — No». J. B. Kinealy, Judge. (1) Defendant’s objection to tbe introduction of any evidence under plaintiff’s petition should have been sustained,, for tbe reason that said petition does not state facts sufficient to constitute a cause of action. While it is of course true'that joint tortfeasors are jointly and severally liable, it is also true, equally, of course, that such liability only attaches where the wrong is, in fact, joint.

Louis City Circuit Court. — Sow. Bobt. M. Foster, Judge. (1) The lessor and lessee having agreed on terms for a new lease, and said new agreement not having provided for the removal of the improvements, under the terms of the original lease the right to remove ceased. Williams v. Lane, 62 Mo. 66. (2) The lessee and his assignee having abandoned the premises and improvements thereby lost the right to remove same. Loughran v. Ross, 45 N. T. 792; Davis v. Moss, 38 Pa.

Louis City Circuit Court. — How. J. A. Blevins, Judge. (1) An action for money paid by one for another can only be maintained .when the payment was made pursuant to a request, express or implied, so that either an express or implied promise to repay can be predicated thereon. 4 Waite’s Actions and Defenses, 449; 2 Ency. PL and Pr., 1012; Meier v. Meier, 15 Mo. App. 68; Camfield v. Gilbert, 4 Esp. 221; Spurrier v. Elder-ton, 5 Esp. 3.

Louis City Circuit Court. — Ho». Daniel G. Taylor, Judge. (1) The affidavit to the petition for divorce was sufficient to authorize service of the summons on William P. Hedrix, in New Mexico. R. S. 1899, sec. 575'; Coombs v. Crabtree, 105 Mo. 292. Besides, it could not be collaterally attacked. Burnett v. McCluey, 92 Mo. 230.

'Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) The only question involved in this case is whether or not an appellant is required to give any notice of appeal when an appeal is taken from the judgment of a justice of the peace to the circuit court in eases of unlawful detainer brought under chapter 29, article 2 of Revised Statutes of 1899. The appellant contends that no such notice is required.

Louis City Circuit Court. — Bow. Daniel D. Fisher, Judge. (1) The court erred in modifying instruction No. 1 offered by appellant and in refusing to give said instruction as offered, (a) Because respondents pleaded an express promise of appellant to pay for the alleged extra services, and the said instruction as modified, permitted respondents to recover upon an implied promise. Planing Mill v. Brundage, 25 Mo. App. 271; Clark v. Kane, 37 Mo.

Louis City Circuit Court. — Row. Bobt. M. Foster, Judge. (1). The petition is fatally defective. It fails to state the value of ownership of the property insured. A petition for a recovery of a loss under a fire insurance policy must state the ownership of the insured property by the plaintiff at the time of the fire and the value of the property destroyed. Story v. Ins. Co., 61 Mo. App. 534; Harness v. Ins. Co., 62 Mo. App. 254; Scott v. Ins. Co., 65 Mo.

St. Louis City Circuit Court. — Eon. Warwick Hough, Judge. (1) The owner of premises is only required to exercise ordinary care to prevent injury to one entering the premises upon his invitation.* He is not liable if injury happens, even though he exercised ordinary care. O’Donnell v. Patton, 117 Mo. 12; Eisenberg v. Railroad, 83 Mo. App. 85; Welch v. McAllister, 15 Mo, App. 492.

Louis City Circuit Court . — Hon. Franklin Ferriss, Judge. (1) No exception to the overruling of defendant’s motion for á. new trial being shown by the record, there is nothing before this court for review. (2) The referee’s findings of fact stand as the verdict of a jury, and will not be reviewed on appeal. Tufts v. Latshaw, 172 Mo. 359. Especially is this true where the testimony before the referee is not set out in appellant’s abstract. Roth v. Continental Wire Co., 94 Mo.

Louis City Circuit Court. — Eon.J.B. Kinealy, Judge. (1) The court erred in giving instruction No. 1 for the plaintiff. This instruction singles out certain facts and tells the jury if they find these facts to be true, then as a matter of law, they shall find for the plaintiff. Such instructions are erroneous. Chappell v. Allen, 38 Mo. 213; Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 Mo. 91; Meyer v. Eailroad, 45 Mo. 137; Koenig v. Life Assn., 3 Mo.

Louis City Circuit Court.— Hon. D. D. Fisher, Judge. (1) Service of process upon an officer of a foreign corjooration temporarily within the State, whether upon the business of the corporation or not, will hind the corporation. Pope v. Terre-Haute Co., 87 N. Y. 137; Hiller v. Railroad, 70 F. Y. 223; Porter v. Sewall (N. Y.), 23 Abb. N. Cas. 233; Shickle Co. v. Willy Constr. Co., 61 Mich. 226; Bank v. Bench, 80 Mich. 242; Klopp v. Crestón City, 34 Neb. 808; Guersey v. Ins.

Louis City Circuit Court. — Horn. D. G.. Taylor, Judge. ■ (1) Section 4464, Revised Statutes 1899, provides that when claim for delivery of personal property is duly made and bond given, the property shall be taken out of the possession of the defendant. That is the specific mode of procedure at the time of the claim for personal property is made.

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) As between landlord and tenant, the question of whether trade fixtures become part of realty or remain chattels and removable by tenant is most liberally construed in favor of the tenant. 13 Am. and Eng. Eney. of Law (2 Ed.), p. 639; Kerr v. Kingsbury, 39 Mich. 150; Morrison v. Sohn, 90 Mo. App. 76; Tyler v. White, 68 Mo. App. 607; Cohen v. Kyler, 27 Mo. 122.

<p>Appeal from St. Louis City. Circuit Court. — Eon. John A. Blevins, Judge.</p> <p>(1) Instruction No. 3 was erroneous in itself and was inconsistent with No. 2, given at request of defendant. Peary v. Eailroad, 162 Mo. 101; Withing v. Or: chard, 101 Mo. 640; Hadley v. Orchard, 77 Mo. App. 147; Wellite v. Bich, 142 Mass. 360; Hemsxnann v. Hurd, 62 N. Y. 448. (2) The court erred in allowing Dr. J. W. Vaughn and Dr. W. W. Vaughn to answer the hypothetical-questions asked them and in refusing.to strike out the answer of the former, which stated that plaintiff’s alleged condition as to being round-shouldered was due to the injuries alleged to have been received, and that the indications are that the condition will increase. State v. Taper, 148 Mo. 235; Hayberg v. Henske, 153 Mo. 75. (3) Instruction No. 4 was error because there was no proper allegation, nor competent evidence, of loss of earnings prior to the trial. Nor that there would be in the future, directly caused by the alleged injuries and because it assumed a disability to attend to business. Paquin v. Eailroad, 90 Mo. App. 129; Pryor v. Eailroad, 85 Mo. App. 368, 372; Boss v. Kansas City, 48 Mo.. App. 449; Nixon v. Eailroad, 41 Mo. '440; G-oodheart v. Eailroad, 177 Pa. St. 1; Masterson v. Mt. Vernon, 58 N. Y. 396.</p> <p>Cited Malloy v. Eailroad, 73 S. W. 159; Clark v. Eailroad, 127 Mo. 197.</p>

<p>Appeal from St. Louis City Circuit Court. — £fo%. II. D. Wood, Judge.</p> <p>(1) The court erred in its instructions. Mensi v. Osborn, 5 Mo. 544; Wilson v. Houston, 13 Mo. 140; Dorsey v. Watson, 14 Mo. 59; Clayton v. Phipp, 14 Mo. 554. (2) The court erred in refusing instruction offered by plaintiff. Klosterman v. Kage, 39 Mo. App. 60; Banking Co. v. Blell, 56 Mo. App. 410. (3) The acts and promises of the defendant justified plaintiff in believing that demand and notice were unnecessary. Tailer v. Furnishing Goods Co., 24 Mo. App. 420.</p> <p>(1) A valid agreement by the mortgagee with the grantee of the mortgagor to extend the time of payment made without consent of the mortgagor discharges the latter, and this doctrine is supported by the great weight of authority. Wyman v. Jones, 58 Mo. App. 313; Nelson v. Brown, 140 Mo. 580; Donovan R. E. Co. v. Clark, •84 Mo. App. 163. (2) Where the holder of a note releases the maker such rule operates as a discharge of all subsequent parties thereto, including the indorser thereon. And whether or not the indorser assents to the discharge is of no consequence. Brown v. Croy, 74 Mo. App. 465; Eggeman v. Henschen, 56 Mo. 123; Bank v. Sehumucker, 7 Mo. App. 171. (3) If proper steps are not taken to fix the liability of an indorser, and thus convert his conditional liability into an absolute agreement, he is discharged, unless, with a full knowledge of all the facts of his release, he promises to pay the debt, pr does acts from which such promises can be clearly and unmistakably inferred. Faulkner v. Faulkner, 73 Mo. 327. (4) Acting' as agent of the grantee of the mortgagor, who has become primarily liable for the payment of the note, by an indorser, and thereby aid in collection of the interest for the holder, does not waive protest or revive liability. Wilson v. Houston, 13 Mo. 150; Isham v. MeClure, 58 Iowa 515. (5) Evidence of waiver of protest must be clear and distinct, and will be strictly construed. Faulkner v. Faulkner, 75 Mo. 327; Freeman v. 0 ’Brien, 38 Iowa 406.</p>

Louis City Circuit Court.— Eon. Warivick Hough, Judge. (1) One .who pays the debt of another without the knowledge or request of that other, is a volunteer, and as such, in the absence of an assignment of the claim to him, is not entitled to subrogation or indemnity.

Louis City Circuit Court. — fío». Franklin Ferriss, Judge. • (1) The court erred, in instructing the jury to find. interest against the defendant, if its verdict be for plaintiff. State ex rel. v. Hope, 121 Mo. 34; Carson v. Smith, 133 Mo. 607; Meyer v. Ins. Co., 69 S. W. 639 ; Creve Coeur Ice Co. v. Tamm, 90 Mo. App. 202; R. S. 1899, see. 2869.

Louis City Circuit Court, — Hon. D. D. Fisher, Judge. (1) The item of plaintiff’s statement which he ■elected to stand on states no cause of action against defendant, because it does not aver the facts constituting and essential to a rescission of the contract between plaintiff and defendant, in that it omits to allege a tender back of property sold within a reasonable time after a discovery of the alleged defect. Tower v. Pauly, 51 Mo.

<p>APPELLATE PRACTICE: Criminal Practice: Verdict. When a jury, in a criminal case, has found the defendant guilty and there is substantial evidence in support of that finding, the appellate court has no authority to disturb that finding, on the ground that it is against the weight of evidence.</p>

Louis Court of Criminal Correction.— Hon. L. A. Steber, Judge. (1) The indictment is sustainable under either section 2105, section 2118, or sections 2751 and 7256, Revised Statutes 1899. (2) The contention as to misjoinder in official delinquency is not borne out by common-law decisions. Regina v. Atkinson, 2 Lord Raymon 1248; Lake’s case, 3 Leon 26.8. (3) The indictment is sufficiently full and definite to inform the defendants of the offense wherewith they stand charged.

<p>Petition for Writ of Habeas Corpus.</p> <p>Cited In re Davis, 38 Kan. 408; In re Cnbberly, 39 Kan. 291; In re Huron, 48 Pac. 575; Church, on Habeas Corpus (2 Ed. 1893), sec. 327, and cases cited; In re Haclmey, 24 N. Y. 74; Ex parte Fisb, 113 U. S. 713; Church, on Habeas Corpus (2 Ed. 1893), sec. 319, p. 448; Ex parte Krieger, 7 Mo. App. 367.</p>

Charles County Circuit Court. — Row. Elliott M. Hughes, Judge. (1) The demurrer to the plaintiff’s evidence should .have been sustained. Held: in the following cases: Gratiot v. Railroad, 116 Mo. 454; Sullivan v. Railroad, 117 Mo. 222; Hutchinson v. Railroad, 161 Mo. 254; Weller v. Railroad, 164 Mo. 199.

•Appeal from Johnson Circuit Court. — Row. W. L. Jarrott, Judge. (1) Neither the animal here sued for, nor the judgment in favor of Bowring for $225, is specifically exempt from execution, and hence such an exemption could not pass from Bowring to W. J. Hollis, by assignment, so as to destroy the existing equitable, as well as common-law and statutory, right of set-off in plaintiff’s favor. State v. Jungling, 116 Mo. 162.

— -How. J. D. Perkins, Judge. (1) While a single circumstance may have little strength in itself, yet fitting in with other circumstances the whole may supply, oh common principles of induction, the presumption of the most important facts. Mos-by v. Com. Co., 91 Mo. App. 500; Bradstreet Co. v. Gill, 2 L. R. A. 406. (2) Place was entitled to pay for his services. It was an obligation from the principal to her agent.

— So». Hugh Dabbs, Judge. (1) The general allegations of, negligence and of defects in appliance are overcome and nullified by a specific, allegation of the defect. Conway v. Railroad, 24 Mo. App. 238; MeManamee v. Railroad,135 Mo. 447; McCarty v. Rood Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 75; Brown v. L. & L. Co., 65 Mo. App. 166; Bohn v. Railroad, 106 Mo. 434.

— Row. E. P. Gates, Judge. (1) Defendant’s counterclaim is an action for damages for fraudulent representations. He alleges (a) certain representations made by plaintiff, (b) that tbey were false, (c) that plaintiff knew at the time he made them that said representations were false, (d) that he made them for the purpose of inducing plaintiff to buy a worthless cement and (e) that defendant relied upon said' representations and bought the cement to his damage.

— Hon. James Gibson, Judge. (1) It is well in undertaking to interpret any statute to have, in mind the legislation preceding the enactment of the law and the conditions which brough it about. Miller v. Gordon (1902), 70 S. W. 269. (2) Principles of interpretation, the intent. St. Louis v. Lane, 110 Mo. 254; State v. Bennett, 102 Mo. 371; State ex rel. v. Heman, 70 Mo. 451. (3) Laws are to be construed so as to avoid absurdities. In State v, Marshall, 48 Mo.

— How. W. B. Teasdale, Judge. (1) The court erred in overruling the demurrer to the evidence. This contract certainly comes within the provisions of section 3418, Revised Statutes 1899, and in order to be binding, must have been in writing, and signed by the parties to be charged thereby. The telegrams heretofore referred to consisted merely of a proposition on one side, and a conditional acceptance on the other, which conditions were never complied with.

<p>Appeal from Adair Circuit Court. — Ho». Nat. M. Shelton, Judge.</p> <p>(1) The demurrer to the evidence should have been sustained. Ehret v. Railroad, 20 Mo. App. 251; McIntosh v. Railroad, 26 Mo. App. 377; Summers v. Railroad, 29 Mo. App. 41; Brassfield v. Patton, 32 Mo. App. 577; "Wasson v. McCook, 80 Mo. App. 488; Snider v. Railroad, 73 Mo. 465; Nance v. Railroad, 79 Mo. 196; Moore v. Railroad, 81 Mo. 499; Vineyard v. Railroad, 80 Mo. 92; Box v. Railroad, 58 Mo. App. 368; Railroad v. Kavanaugh, .163 M6. 54. (2) The instructions given by the court, at the request of plaintiff, were erroneous. McAtee v. Valandingham, 75 Mo. App. 45; Keithley v. Southworth, 75 Mo. App. 442.</p> <p>(1) The law will imply constructive notice of such defect to the' defendant company and hold it liable for the killing proven. Clardy v. Railroad, 73 Mo. 576; Case v. Railroad, 75 Mo. 668; Biniker v. Railroad, 83 Mo. 660; Ridenour v. Railroad, 81 Mo. 227; Laney v. Railroad, 83 Mo. 466. (2) For a railroad to neglect to discover a defect existing for a week or more with respect to a gate at a farm crossing, will ordinarily render it liable for injury ensuing therefrom. Horton v. Railroad, 26 Mo. App. 348; Railroad v. Harris, 54 111. 530; Morrison v. Railroad, 27 Mo. App. 431. (3) The rule as to reasonable time in which to repair does not apply where the company never had a lawful gate or fence. McMillan v. Railroad, 70 Mo. App. 568; Morrison v. Railroad, 79 Mo. 367; Duncan v. Railroad, 91 Mo. 67; Miller v. Railroad, 56 Mo. App. 77. (4) There is sufficient evidence in the record that the gate was open through the negligence of the defendant in not discovering and removing the snow which for two weeks or more obstructed the closing of the gate. Ridenour v. Railroad, 81 Mo. 231; Goodrich v. Railroad, 151 Mo. 222. (5) Grates are a part of the fence and it is the defendant’s statutory duty to keep them in repair, which necessarily includes the duty to keep them safely and securely closed. The care required of railroads in keeping up^ fences and gates is not limited to ordinary care. West, v. Railroad, -26 Mo. App. 344; Woods v. Railroad, 51 Mo. App. 500; Rutledge v. Railroad, 78 Mo. 286; Hamilton v. Railroad, 87 Mo. 89. (6) Plaintiff was not required to'prove the point of entry upon defendant’s road by direct evidence, nor the killing by an eyewitness. Such might be manifestly impossible, and in this case-was so. Mayfield v. Railroad, 91 Mo. 300; Glee v. Railroad, 80 Mo. 283; Freet v. Railroad, 63 Mo. App. 554;, Rutledge v. Railroad, 78 Mo. 287; Rozzelle v. Railroad, 79 Mo. 350; Morris v. Railroad, 79 Mo. 371; Emerson v.. Railroad, 35 Mo. App. 628.</p>

— Eon. P. C. Stepp, Judge. (1) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to the evidence asked at the close of plaintiff’s evidence and of all the evidence, for plaintiff not only failed to -prove the defendant was guilty of negligence, as he was bound to do before he could recover, but on the contrary his evidence, as well as defendant’s, showed that the skids were a proper appliance and in good repair, that there was no danger…

— How. Nat. M. Shelton, Judge. (1) The bill is prima facie evidence of the regularity of the proceedings for such special assessment of the validity of the hill, of the doing of the work and of the furnishing of the materials charged for and of the liability of the property to the charge stated in the bill. Sec. 5858, chapt. 91, art. 4, R. S. 1899; Moherly v. Hogan, 131 Mo. 19.

— Hon. P. G. Stepp, Judge. (1) A vendor’s lien, for failure of title, can not exist where there is an exchange of lands, and nothing more. Where anything is taken in satisfaction of the price, although payment is not positively made, the vendor’s implied lien does not exist. 28 Am. and Eng. Ency. Law, 156, 164, 185, 188, 193; Adams v. Cowherd, 30 Mo. 460; 2 Story on Equity (13 Ed.), sec. 1223; Willard v. Vandusen,-32 Barb. 92; Shelly v. Estes, 83 Mo.

— How. P. G. Stepp, Judge. (1) The failure to record a chattel mortgage, does not render it a nullity; it is nevertheless valid between the parties thereto, their executors, administrators, heirs and assigns. Bennett v. Robinson, 19 Mo. 654; Johnson v. Jeffries, 30 Mo. 423; Bank v. Bell, 2'Mo. App. 102; Henrich v. Wood, 7 Mo. App. 236; Crawford v. Harter, 22 Mo. App. 631; Drew v. Drum, 44 Mo. App. 25; Yette v. Lenori, 42 Mo. App. 217; Mead v. Maberry, 62 Mo. App. 557.

Circuit Court. — Hon. J. II. Slover, Judge. (1) The statute applicable to this case is that which was in force in 1880, when the judgment was rendered. This statute is section 3251 of the Revised Statutes of 1879, which is the same as section 6796 of the Revised Statutes of 1889. Cranor v. School District, 151 Mo. 119; MeFaul v. Haley, 166 Mo. 56. (2) This statute was first enacted in 1835 and is not a statute of limitation, but is one establishing a rule of evidence.

Appeal, from Holt Circuit Court-.— Hon. Gallatin Craig,, Judge. (1) The plaintiffs were in the actual and peaceable possession of the lands sued for at the time defendant Endicott entered. He entered against their will and retained the possession against their will and after he had been notified by plaintiffs to quit the possession of the premises and after demand made by plaintiffs.

- — How. Samuel Davis, Special Judge. (1) This action being upon a notary’s bond against the sureties alone, is barred by the statute (R. S. 1899, sec. 8836), which provides that no suit shall be instituted against any such notary or his sureties more than three years after such cause of action accrued. (2) The cause of action accrued when the wrong was done, viz., October 24, 1899. State ex rel. v. Stonestreet, 92 Mo. App. 214.

— Hon. Gallatin Craig, Judge. (1) Because Bob Taylor, the tenant, to .whom the guardian and curator, E. J. Kellogg, leased the twenty acres for the year 1899, was and is insolvent will not excuse defendant for not collecting said rent, because the law is that every landlord has a lien upon the crops grown on the demised- premises in any year for the rent that shall accrue for such year, and such lien'shall continue for eight months after such rent shall become due and…

— lion. Alonso D. Burnes, Judge. (1) It is not allowable to decree alimony pendente lite before tbe marriage has been proved. Wagner v. Wagner, 6 Mo. App. 1. c. 572; Brown on Diyorce, 260; Wilson v. Wilson, 49 Iowa 546; York v. York, 34 Iowa 530; 2 Am. and Eng. Ency. of Law (2 Ed.), page 103. Bishop on Marriage and Divorce, 570. (2) There must be a showing of probable cause for divorce before alimony is allowed. Isbell v. Weiss, 60 Mo. App. 56; McLoskey v. McLoskey, 68 Mo.

— Row. A. D. Burnes, Judge. (1) In this and similar eases the administrator, and he alone, is the proper party to collect, preserve, administer and distribute the assets of estates of deceased persons, notwithstanding agreements to the contrary made by a debtor of the estate with the heirs or distributees thereof. Bartlett v. Hyde, 3 Mo. 490; State ex rel. v. Moore, 18 Mo. App. 406; McMillan v. Wacker, 57 Mo. App. 220; Jacobs v. Maloney, 64 Mo. App. 270.

— How. J. W. Alexander, Judge. (1) The court committed error in refusing to give the demurrers to the evidence requested by the defendant. There was no negligence proven against the defendant, but the evidence shows that it was the plaintiff’s own negligence and want of care, in driving out of the roadway on the sidling, slippery ground, that caused the accident. Guffey v. Railroad, 53 Mo. App. 462; Holt v. Railroad, 84 Mo. App. 443; Hyseff v. Swift, 78 Mo.

— Hon. J. IF. Alexander, Judge. ’(1) The demurrer of the defendant to plaintiff’s petition admits to be .true, all facts therein which are well and properly pleaded, and denies only its sufficiency in law. Shields y. Johnson Co., 144 Mo. 76; Butler v. Lawson, 72 Mo. 227; Goodson v. Goodson, 140 Mo. 215; Verdin v. St. Louis, 131 Mo. 26; Dodson v. Lomax, 113 Mo. 555.

— Row. Henry M. Barney, Judge. (1) Final settlements are only conclusive of matters adjudicated therein, and as it is admitted that the remainder in the homestead and dower was not sold by the administrator, there was no adjudication as to this asset. Nelson v. Barnett, 123 Mo. 564; Woerner, Administration, p. 1128; Bramell v. Adams, 146 Mo. 86.

— Be».’A. ill.. Woodson, Judge. (1) Where no demurrer is filed and no objection is-made to the petition until the trial is on, the objection comes too late, if by construing the petition then as stating what the evidence tends to prove the petition states a cause of action. Beilly v. Cullem, 159 Mo. 322. (2) Defective allegations in petition may he cured hy defendants answering to the merits if the evidence is sufficient to prove necessary allegations.

W. K. James, Judge. (1) The petition does not state a cause of action. It fails to allege that plaintiff’s assignor had an interest in the property described. It does not allege whát the value of the property or interest was (if she had an interest), or that if had any value. The property was not a building. It was an incomplete structure. Story v. Ins. Co., 61 Mo. App. 534; Green v. Ins. Co., 69 Mo.

— So». J. D. Perkins, Judge. (1) The ordinance introduced in evidence in this case consisted of a number of typewritten sheets of legal' cap paper fastened together at the top with ordinary paper fastenings and was not in possession of any one having the proper custody of same, and contained no signatures, no certificate, no date and was not sealed with the seal of the city, and was not a printed copy and' did not purport to be published by the authority of the city, nor was…

Jackson Circuit Court. — How. John W. Henry, Judge. (1) The contract ran from August 18, 1887, to September 7, 1887. If plaintiffs had any cause of action it arose September 7, 1887, and was barred March 25,1893, when this suit was brought. Brady v. St. Joseph, 84 Mo. App. 399; Carr v. Thompson, 67 Mo. 472-476; R. S. 1899, sec. 4271.

— Eon. J. E. Slover, Judge. The trial court erred in rendering judgment for plaintiff in this cause. The evidence presented at/the trial brings this case clearly within the mandatory and prohibitive terms of sections 1025 and 1026 of the Revised Statutes, 1899, and the rule so clearly enunciated by this court in its construction of said sections. Williaras v. Scullin, 59 Mo. App. 30; Ehrhardt v. Robertson Bros., 78 Mo. App. 404.

— So». Gallatin Craig, Judge. (1) The court committed error in refusing to give the demurrers to thé evidence offered by the. defendant at the close of plaintiff’s evidence. Yarnell v. Eailroad, 113 Mo. 570; Eoddy v. Eailroad, 104 Mo. 234; Barney v. Eailroad, 126 Mo. 372; Eine v. Eailroad, 88 Mo. 392; Loring v. Eailroad, 128 Mo. 349; Powell v. Eailroad, 59 Mo. App. 626; Eailroad v. Mendoza, 60 S. W. 327; Skipton v. Eailroad, 82 Mo.

— flo». John A. Hockaday, Judge. (1) The allegations of plaintiff’s complaint are that “On March 1, 1902, he had the legal right to the possession of, etc.” His own testimony shows that he had not only sold most of this land to McClane and Castleman before the institution of this suit, but that he executed and delivered deeds to the purchasers, which deeds were filed and recorded on February 8th, and February 11th respectively.

— Now. John A. Hochaday, Judge. (1) The finding of the court is not supported by the evidence and is in direct conflict with the declaration of law given in behalf of the defendant. It stands established by the solemn admission of the plaintiff in open court that it did not keep its road in good repair from Ripley street eastward to the corporate limits of the city of Columbia.

— Son. J. W. Alexander, Judge. (1) Both counts in the statement were fatally defective, so far as the gate was concerned. If the plaintiff was not an adjoining landowner, and no such allegation was made, he could not maintain this action on account of the gate not being equipped with a latch and hook as provided by section 1105 of the statute. For that reason all evidence as to the manner in which the gate was constructed should have been excluded.

<p>APPELLATE PRACTICE: Third Appeal: End of Litigation. Where ■ a case after two appeals has been exceptionally well tried, the maxim, 'interest reipuhlicae ut sit finis litium, requires the judgment to he affirmed on the third appeal.</p>

— Ho». Nat. M. Shelton, Judge. (1) It is a well-settled principle that where a depositor in a bank is indebted to the bank by bill, note or other indebtedness the bank has the right to apply sq much of the funds of the depositor as may be necessary to satisfy the same. Morse on Banks and Banking, sec. 559; Bolles on Banks and Dep., sec. 403; Park Bank v. Herman Schneidermeyer, 62 Mo. App. 183; Bank v. Hughes, 17 Wend. 94; 'Marsh v. Bank, 34 Barb. 228.

— How. J. D. Perkins, Judge. (1) The plaintiff is not entitled to recover in this case, because, if we accept the theory of plaintiff that the act of Freeman, the ground boss, caused the rock to roll down upon the plaintiff, then Freeman at that time was not representing the master, but doing the work as a fellow-servant. Richardson v. Mesker, 72 S. W. 506, 171 Mo. 666; Hawk v. McLeod Lumber Co., 166 Mo. 129; Schaub v. Railway, 106 Mo. 88; Bane v. Irwin, 72 S. W. 525 (Mo.

— Hon. W. W. Graves, Judge. (1) This at most is hut an executory agreement to sell. Where there is only an agreement to sell and the sale is not executed, an action for the possession can not be maintained, the proper remedy would be an action for damages. Boutelle v. Warne, 62 Mo. 350. (2) As a complainant must be entitled to the immediate and exclusive possession of the property claimed, one joint owner of personal property can not maintain replevin against his co-owner.

— Ho». A. M. Woodson, Judge. (1) Defendant being a foreign fraternal benefit society can not avail itself of tbe defense of suicide. Secs. 1396 and 1408, E. S. Mo. 1899; Kern v. Legion of Honor, 167 Mo. 471. (2) Sucb was the law prior to tbe act of 1897. Laws 1899, p. 132; Secs. 2823 and 2824, E. S. 1889; Kern v. Legion of Honor, 167 Mo. 471.

— Hon. J. W. ■ Alexander, Judge. (1) The loan made to plaintiff in this case was usurious. The board of directors of defendant had a fixed minimum premium. There was no competitive bidding among the borrowers seeking loans. The bids were made against the directors, who hid for the sole purpose of getting a higher premium for their money, in other words to extort usury from the borrower. R. S. 1899, sec. 2812; Moore v. Bldg. Assn., 74 Mo. App. 468; Brown v. Archer, 62 Mo.

— Hon. George F. Longan, Judge. (1) The court erred in finding for plaintiff. The scheme adopted of disposing of the lots by auction, or rather of selling the right to a preference at auction, to the highest bidder, thus requiring the subscriber to pay a bonus for his lot in addition to the price agreed upon in his contract, did not constitute a method of assigning the lots under1 the contract, but was an entire' change of the contract.

— How. W. B. Teasdale, Judge. We cité the following authorities upon the issues in this cause: Lee v. Gas Co., No. 5594, K. C. Court of Appeals, Jan. term, 1902, (not yet reported); Watson v. Coal Company, 52 Mo. App. 366; Shea v. Eailroad, 76 Mo. App. 29. (1) It is the duty of the master to exercise ordinary care to provide the servant a reasonably safe place in -which to work, and reasonably safe appliances with which to work. Welden v. Eailroad, 67 S. W. 698, 93 Mo.

— Hon. George F. Longan, Judge. (1) The suits brought by the curator to enforce the collection of the balance due from Sneed, the former curator, was a useless expenditure of money. Sec. 3530, R. S. 1899. (2) The circuit court erred in charging-up to the appellant’s estate the expenses that Stella Courtney’s estate should have borne in the two law suits. (3) The court erred in allowing Messrs.

— Hon. E. P. Gates, Judge. (1) Instruction No. 4, given by the court at the instance of the plaintiff, which concluded by instructing the jury to find for the plaintiff upon the facts therein stated, and which wholly ignored the defense, was error. Carder v. Primm, 60 Mo. App. 423; Linn v. Massillion, 78 Mo. App. Ill; Orscheln v. Scott, 79 Mo. App. 534; Desnoyer v. Lisman, 85 Mo. App. 340.

— Hon. Hugh Dabbs, Judge. (1) The laborers of defendant, were preferred creditors, and ought to he first paid in full before any other creditors. R. S. 1899, sec. 3167.

— Hon. W. K. James, Judge. (1) A discharge in bankruptcy releases a “bankrupt from all of his provable debts, except such as . . . have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.” U. S. Bankruptcy Law 1898, chap. 3, sec. 17.

— How. J. W. Alexander, Judge. (1) The testimony in the case showed that the discharges from said sewer of the foul matter and water on the land of the defendants created a nuisance tq the great damage and injury of the defendants’ land, preventing them from having the nse of the same for their stock, and that the said discharges depreciated the value of their land. It was a private and public nuisance and should have been abated.

— Ho». Alonzo D. Burnes, Judge. (1) There was no evidence that plaintiff was ever in possession of the east half of the land. The most claimed by him is that he planted the crop there. Merely planting the field while Sills was in the actual occupancy of the land, though done with his consent,' was not a possession of it.

— Hon. Alonso D. Burnes, Judge. (1) Plaintiff was estopped from denying that land was sold for right-of-way and from claiming that his “roadway” was to be other than a crossing over defendant’s tracks. Lajoye v. Primm, 3 Mo. 529; Dickson v. Anderson, 9 Mo. 156; Glamorgan v. Green, 32 Mo. 285; Durette v. Briggs, 47 Mo. 356; Moses v. Dock Co., 84 Mo. 242; Whyte v. St. Louis, 153 Mo. 80; Wolff v. Loan Ass’n, 67 Mo. App. 678.

— Hon. George F. Longan, Judge. (1) The taxbill sued on is void because the city council did not declare by ordinance or otherwise, that in its judgment the general revenue fund of the city was not in a condition to warrant an expenditure therefrom, for bringing the street to the established grade. Carthage v. Badgley, 73 Mo. App. 123; Kolkmeyer & Co. v. City of Jefferson, 75 Mo. App. 678; Wheeler v. Poplar Bluff, 149 Mo. 36; Poplar Bluff v. Hoag, 62 Mo.

— How. John A. HocJcaday, Judge. (1) The court erred in overruling defendant’s motion to quash the information filed in said cause by the city attorney. Buggies v. Collier, 43 Mo. 353. (2) In the cases of Thompson v. Boonville, 61 Mo. 282, Matthews v. Alexandria, 68 Mo. 110, it is held that a city council can not delegate a duty plainly and expressly devolved upon them to the mere discretion and caprice of a single individual.

Louis City Circuit Court. — Row. Warwick Hough, Judge. STATEMENT. Garrison avenue, in the city of St. Louis, runs north and south. Dickson street runs east and west and crosses Garrison avenue. There is a street railway in both streets and a curve in their intersection on which cars travelling south on Garrison avenue may turn east into Dickson street.

Louis City Circuit Court. — Now. Jesse A. McDonald, Judge. (1) No error was committed by the court in the admission of plaintiff’s evidence. The defendant offered no evidence. (2) The verdict under all the humiliating and outrageous circumstances of this case, which stand uncontradicted and practically admitted, is reasonable and just, and the action of the trial court in sustaining the motion for new trial on the ground that the verdict was excessive, was purely arbitrary.

Louis City Circuit Court. — Row. R. D. Wood, Judge. (1) The motion to require the plaintiff to elect on which count he would proceed should have been sustained. Roberts v. Railroad, 43 Mo. App. 289. (2) The first instruction given for the plaintiff is erroneous. It is simply holding the defendant liable for a mistake of the plaintiff — a mistake none of the other fifteen men standing there made — and which the .defendant in no manner induced.

— Now. J. T. Neville, Judge. This suit having been brought by the wife of the deceased more than six months after his death, it was necessary for the plaintiff to prove that the deceased left no minor child or children surviving him. R. S. 1899, secs. 2864 and 2866; McIntosh v. Railway, 103 Mo. 133; Booker v. Railway, 91 Mo. 90.

Louis City Circuit Court. — lion. H. D. Wood, Judge. (1) That portion of the building ordinance of the .city of St. Louis providing that whenever an excavation to the bottom of a footing for a business building is carried to a greater depth than fifteen feet below the curb level, it shall be the duty of the person making or causing said excavation to be made to preserve any contiguous legal wall or walls from injury and sustain, protect and underpin the same is invalid, for…

Louis City Circuit Court . — Eon. S. P. Spencer, Judge.' (1) The petition fails to state a cause of action, in that it fails to aver that plaintiff’s son was her'servant, and also fails to allege her special damages. Dunn v.' Eailroad, 21 Mo. App. 202; Schwartz v. Eailway, 46 Mo. App. 380; Matthews v. Eailway, 26 Mo. App. 84.

(1) The only cause of action attempted to he pleaded in the petition is the supposed negligence of defendant in allowing plaintiff’s wife to alight from a moving car after its motion had become so reduced as. to be imperceptible; coupled with the declaration that in so permitting the lady to alight defendant violated an ordinance of the city forbidding conductors to allow women and children to leave street cars while the same are in motion: In his opening statement to the…

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) Before a valid contract of insurance is made the premium to he paid must he agreed upon. Worth v. Ins. Co., 64 Mo. App. 583; Wood on Fire Ins., 2d Ed., vol. 1, p. 21. (2) Stipulations attached to a policy, when delivered, and appearing on its face are taken as-embraced in and constituting part of the policy if they appear anywhere on its face, though not written in the body. Crigler v. Ins. Co., 49' Mo. App. 11.

Louis City Circuit Court. — Eon. D. D. Fisher, Judge. (1) A transcript of all the proceedings had before the justice, together with all documents filed with him, in this case, on or before October 24,1901, would fail to show the filing of any affidavit for appeal or any recognizance or that any order allowing appeal had been made by the justice.

Louis City Circuit Court. — Row. Warwick Ilough, Judge. . (1) A plaintiff or defendant who testifies as a witness in his own behalf is conclusively bound by his deliberate admissions from the witness stand. In determining their effect, the strongest admission will be taken as true. Cogan v. Railway, 73 S. W. 738; Shirts v. Overjohn, 60 Mo. 305.

Louis Circuit Court. — Eon. D. D. Fisher, Judge. (1) The demurrer to plaintiff’s evidence should have been sustained.

Louis City Circuit Court. — Hon. J. R. Kinealy, Judge. (1) The demurrer of the defendant to the plaintiff’s evidence should have been sustained. The plaintiff was running across the track a sufficient distance in advance of the car to have enabled him to cross in safety but for the misfortune of his having fallen. He 1 ‘ stumbled on the track” and could not get up before he was struck.

Louis City Circuit Court. — Row. D. G. Taylor, Judge. (1) The demurrer to the evidence should have been sustained. It is undisputed that had the plaintiff’s son, or his fellow-servant Davis, looked or listened, they could have seen and heard the approaching car and avoided the injury. Moore v. Railway, 75 S. W. 676; Moss v. Traction Co. (S. C. Pa.), 1 Am. Neg. Rep. 520.

Louis City Circuit Court. — How. Daniel G. Taylor, Judge. Held: that the defendant had not used such care and skill. (2) All the questions arising on this record became res acljudicata by the previous decision of this court, and are not subject to be determined again and may not be again investigated. Carey v. West, 165 Mo. 452; Lawson v. Spencer, 90 Mo. App.'514; Livingston v. Allen, 87 Mo.

Louis City Circuit Court. — Nora. N. D. Fisher, Judge. (1) (a) Plaintiff himself clearly testified that he had worked for defendants constantly and daily for three months, saw all the machinery at work, oiled the shafting on .the planer where he was hurt, had been to school, could read and write, and had worked for other people for some time before the accident.

Louis City Circuit Court. — Ho». Warwick Hough, Judge. (1) When one is known to be alive at a certain time there is a presumption of tbe continuance of Ms life after that period which must be overcome by some sort of proof. Hancock, Admr., v. Life Ins. Co., 62 Mo. 26; Lancaster, Admr., v. Life Ins. Co., 62 Mo. 121.

Louis City Circuit Court . — Hon. Jesse A. McDonald, Judge. (1) The court erred in rejecting appellant’s expert evidence tending-to show (a) what would he a suitable exhaust apparatus for the purpose of removing dust from the appellant’s sand-blast room; (h) the reasons why respondent’s fan and piping were unfit for such purpose; and (c) the proper and usual construction of a fan, piping and apparatus for such purpose.

Louis City Circuit Court. — Now. E. B. Wood, Judge. (1) There is no evidence to sustain the verdict, (a) Because there is no proof that H. IT. Williams was legally adjudicated a bankrupt, there being no evidence in the record that the judge was absent from the district or the division of the district in which the petition was pending. Bankruptcy Act, chap. 4, sec. 18. Or even that the petition had been referred to the referee by the clerk of the court.

Louis City Circuit Court. — Ro». H. D. Wood, Judge. (1) The verdict is against the evidence. This case was one for the court, and not for the jury. The court should have sustained a demurrer to the evidence. Fowler v. Randall, 73 S. W. 931 (Mo. App.); Van Lien v. Scofield Mfg. Co., 14 Abb. Pr. N. S. 74. (2) Even though the druggist had been negligent in selling carbolic acid instead of arnica, that sale was not the proximate cause of the injury.

Louis City Circuit Court. — Now. J. B. Kinealy, Judge. (1) Having offered an instruction of nonsuit at the close of plaintiffs’ case, which the court refused to give, and having offered a peremptory instruction to find fon defendant at the close of the case, and having duly preserved the point, we are entitled to a review by the court of the whole evidence in the case.

<p>Appeal from St. Louis City Circuit Court.— Hon. Warwick Hough, Judge.</p> <p>Broughton v. Summer, 80 Mo. App. 386; Supreme Conclave Royal Adelphia v. Capella, 41 Fed. Rep. 1; Isgrigg v. Schooley, 125 Ind. 96; Grand Lodge v. Reneau, 75 Mo. App. 402; Scott v. Provident M. R. Assn., 63 N. H. 556; Bacon on Life Insurance, vol. 1, sec. 308; Hofman v. Grand Lodge, 73 Mo. App. 56; Andras v. Ins. Assn., 168 Mo. 151.</p> <p>(1) It is a part of the member’s contract with the association that his designation of a person other than his “heirs-at-law in accordance with the law of descent and distribution” shall be made on the-third day after he becomes a member between the hours of 9 and 11 a. m., on the book known as the “Death Benefit Record,” and that.this designation shall bear the attestation of the secretary and the seal of the association. These rules form a contract between the parties and prescribe a method of distribution of the benefit fund. Bacon on Benefit Assn., vol. 1, p. 426, sec. 236; Colman v. Supreme Lodge, 18 Mo. App. 195; Hammerstein v. Parsons, 29 Mo. App. 509. (2) A member of the society has no interest in the fund, but has simply a power of appointment. It is therefore not a power in trust which can be executed by a court of equity. Keener v. Grand Lodge, 38 Mo. App. 543; Masonic Benefit Association v. Bunch, 109 Mo. 560; Bacon on Benefit Societies, sec. 337, p. 430, vol. 1; Sugden on “Powers,” vol. 1, p. 299. (3) The contract of a member, as culled from parts of the constitution as above quoted, shows that the contract of his membership is in writing, and to allow parol evidence as to whom the member intended to' designate as a beneficiary, would not only be contrary to the constitution, which provides a method as to how the power shall be executed in the designation of a beneficiary, but would also violate the rule that no parol evidence can be shown to modify or change a written contract. Eastman v. Association, 62 N. TI. 557; Elliott v. Webdeed, 94 N. O. 115; Bacon on Benefit Societies, vol. 1, p. 432, sec. 339, and vol. 2, p. 935, sec. 464. (4) Under the constitution and by-laws a member can not designate a beneficiary by will, and therefore, neither the general devise to the wife or the residuary clause of the will would carry the benefit to his wife. Mut. Benefit Soc. v. Clendenin, 44 Md. 430; Legion of Honor v. Perry, 140 Mass. 580; Presbyterian Assessment Fund v. Allen, 106 Ind. 593; Arthur v. Odd Fellows’ Ass’n, 39 Ohio State 557; McClure v. Johnson, 56 Iowa 620. (5) The words, “heirs-at-law in accordance with the law of descent and distribution” when applied to personal estate, mean next of kin, and a husband or widows are excluded. R. S. 1899, sec. 2908; Bacon on Benefit Societies, sec. 260, vol. 1, p. 502; Loes v. Ins. Co., 41 Mo. 538; Supreme Council L. of H. v. Neidelet, 81 Mo. App. 598. (6) Courts of equity will not assist where there has been no exercise of a power, or where the exercise is discretionary, or where the interest or estate has been limited over in default of an exercise or an attempted exercise of the power. Nor will courts of equity assist in any event except where the defective exercise goes to the form merely and not to the substance. What defects will be aided? Am. Freehold Land Mortgage Co. v. Walker, 31 Fed. Rep. 103. Where its exercise is discretionary : M'arkey v. Langley, 92 U. S. 142; Proctor v. Hyre, 122 Mass. 525. There will be no aid in the non-execution of a power. Wilkinson v. Gentry, 13 Iowa 157; Lippincott v. Stokes, 6 N. J. E. 122.</p> <p>STATEMENT.</p> <p>The plaintiff, a beneficial society, incorporated un- ■ der the) laws of the State of Missouri, and especially an act of the general assembly, entitled “An act authorizing the formation of a police relief association in any city having over ' one hundred thousand inhabitants, ’ ’ approved March 12, 1881, (Laws of Missouri, 1881, p. 87 ) paid into court the amount of mortuary fund, accruing* upon decease of Michael Tierney, by virtue of his membership in the plaintiff association, and obtained an order of interpleader by defendants, the rival claimants to said fund, who interposed their respective rights thereto in pleadings following:</p> <p>“Now, at this day, come defendants Wm. Tierney and Ellen Tierney, Wm. Tierney, administrator, of the estate of Mary Tierney, deceased, of the city of St. Louis, Missouri; Mary E. Rust, of Manchester, New Hampshire; Mark Tierney and Patrick Tierney, of County G-alway, Ireland, and for answer to the petition of -interpleader filed herein, say that they admit that the plaintiff St. Louis Police Relief, Association, is a corporation, and as such a beneficiary society, incorporated under the laws of the State of Missouri, and especially under an act of the General Assembly of the State of Missouri, entitled, ‘An act authorizing the formation of a police relief association in any city having over one hundred thousand inhabitants’, approved March 28, 1881, and other acts, amendatory thereto, as averred in said petition.</p> <p>“These defendants further admit that the plaintiff’s charter, constitution and by-laws contain the rules governing its relation to its members, and that no certificate of membership, or beneficiary certificate, or - policy is issued by it; that section 1 of article 2 of its charter states the object of its formation to be for the purpose of creating a fund for the purpose of affording relief to such members of the association as may become sick, disabled, incapacitated by long years of service; and second, for the purpose of aiding the families of police officers who-may die while members in good standing of said association, as averred in said petition.</p> <p>“These defendants further admit that by section 4 of article 7 of plaintiff’s constitution, provision is made for death benefits as follows:</p> <p>“ 4 Section 4. — Death. Whenever any member of the police force, who is a member of this association, shall die, the sum of two thousand dollars shall be paid, within thirty days after his demise, to such person or persons as he may have designated in the books of the association. If he shall have failed to designate, it shall be paid to his heirs-at-law, in accordance with the law of descent and distribution. If he shall have failed to designate and has no heirs-at-law, it shall then revert to the association.’</p> <p>“As averred in said petition.</p> <p>“These defendants further admit, as averred in said petition, that section 2 of article 1 of the plaintiff’s constitution, provides that membership in the plaintiff’s said association shall' terminate whenever an individual member shall cease to be a member of the police force of the city of St. Louis.</p> <p>“These defendants further admit, as averred in said petition, that one Michael Tierney was appointed a member of the police force of the city of St. Louis on the twenty-first day of August, 1899, and that he was on the twenty-fifth day of April, 1900, duly elected a member of the St. Louis Police Relief Association, plaintiff herein, and that he died on the nineteenth day of May, 1901, while a member in good standing of the said police relief association, and while a member of the police force; and that at the time of the death of the said Michael Tierney he left surviving, as heirs-at-law under the statute of descent and distribution of the State, of Missouri, no child or children, but his father, Mark Tierney and a brother, Patrick Tierney, of County G-alway, Ireland; his mother, Mary Tierney, of the same place, who has since deceased, and upon whose estate William Tierney, of the city of St. Louis, has qualified as administrator, and who is a defendant herein; that the said Michael Tierney also left him surviving a sister, Mary E. Eust, of the city of Manchester, in the .'State of New Hampshire, and William Tierney and Ellen Tierney, brother and sister, of the city of St. Louis, Missouri, defendants herein.</p> <p>“These defendants further admit that they have' made demand upon the said St. Louis Police Eelief Association for the benefit accorded to the said Michael ‘Tierney, as a member thereof, for the sum.of two thousand dollars, and that they claim to own the same, and .are entitled to receive the same under and by virtue of the constitution and by-laws of the said association.</p> <p>“And these defendants further admit that the said Michael Tierney left him surviving his wife, Margaret Tierney, and that she departed this life on or about, to-wit : the eighth day of November, 1901, and that there’.after, on, to-wit: the twelfth day of November, 1901, .a certain instrument, purporting to be the last will and testament of the said Margaret Tierney was probated in the probate court of ,the city of St. Louis, Missouri, .and that on said date the defendant William Hannon was duly appointed administrator of the estate of the :said decedent, Margaret Tierney, and duly qualified as .administrator cum testamento annexo; that thereafter, to-wit, on the twenty-first day of December, 1901, a suit, ■contesting the said will, was filed in the circuit court of the city of St. Louis, and letters of administration granted to said William Hannon were by the said probate court revoked, and the defendant, Garrard Strode, was appointed administrator pendente lite of the estate ■of the said Margaret Tierney, deceased, and that the •said defendant Garrard Strode is now in charge of the said estate of Margaret Tierney, deceased, as such administrator.</p> <p>“And these defendants further answering, say that they deny each and every other allegation in said petition contained not herein specially admitted, or any knowledge or information thereof.</p> <p>“And further answering, these defendants say that the said Michael Tierney did not, in accordance with section 5 of article 1 of the constitution of the said plaintiff association, designate a person or persons on the books of said association as beneficiary or beneficiaries of said relief fund between the hours of 9 and 11 a. m., on the third day after the said Michael Tierney had become admitted to the membership of said association, as provided in said section 5 of article 1 of said constitution of said association; that by said section 5 of article 1 of said constitution, it is provided that when an applicant is admitted to membership he shall call at the office of the association between the hours of 9 and 11 a. m. on the third day after he has been admitted to membership, and designate on the ‘Death Benefit Record’ the disposition of his death benefit fund; and, further answering, these interpleaders say that in default of him (the said member) so designating a person or persons upon the said ‘Death Benefit Record,’ as aforesaid, the said death benefit fund will be paid to his heirs-at-law, in accordance with the law of descent and distribution.</p> <p>“Further answering, these interpleaders say that never at any time after August 21, 1899, when the said Michael Tierney again became a member of said police force of the city of St. Louis, and a member of said St. Louis Police Relief Association, did he designate his wife, Margaret Tierney, as beneficiary of said relief fund, and never intended to exercise the power of appointing said relief fund for the use of the said Margaret Tierney, but intended always that the same should be carried by the provisions of the contract, as detailed ’in section 4 of article 7 of the constitution, wherein it is provided that if the member of said association failed to designate in the manner and form as provided by said section 5 of article 1 of the constitution, the funds shall pass to, and vest in the heirs-at-law under the statute of descent and distribution of the State of Missouri.</p> <p>“Further answering, these interpleaders say that they are the heirs-at-law under the statute of descent and distribution of the State of Missouri, and that, by virtue of said contract or provisions of said section 5 of article 1, and section 4 of article 7 of the constitution and bylaws, they are entitled to the said fund, and claim the same.</p> <p>“Wherefore defendants pray the honorable court for an order, directing the clerk of this court, or custodian of said fund, to turn over .the same to the said defendant, and to that end and purpose that these defendants may have judgment therefor; and these defendants further pray that such other orders, judgments and decrees in the premises as may be just and proper, and for this they will ever pray.”</p> <p>“Now at this day comes defendants Garrard Strode, administrator pendente lite of the estate of Margaret Tierney, deceased, and William Hannon, administrator cum testamento afinexo of the estate of Margaret Tierney, deceased, of the city of St. Louis, Missouri, and for answer to the petition of interpleader, 'and to the answer of William Tierney, Ellen Tierney, Mary E. Rust et al. filed herein, say that they admit that the plaintiff, St. Louis Police Relief Association is a corporation, and as such a beneficiary society incorporated under the laws of the State of Missouri, and especially under an act of the General Assembly of the State of Missouri, entitled ‘An Act authorizing the foundation of a police relief association in any city having over one hundred thousand inhabitants,’ approved March 28, 1881, and other acts amendatory thereto, as averred in said petition. These defendants further admit that the plaintiff’s charter, constitution and hy-laws contain the rules governing its relation to its members and that no certificate of membership or beneficiary certificate or policy is issued by it. These defendants further admit that by section 4 of article 7, of plaintiff’s constitution, provision is made f„or death benefits as follows:</p> <p>“ ‘ Section 4. — Whenever any member of the police force who is a member of this association shall die, the sum of two thousand dollars shall be paid within thirty days after his demise to such person or persons as he' may have designated in the books of the association. If he shall have failed to designate, it shall be. paid to his. heirs-at-law in accordance with the law of descent and distribution.’</p> <p>“Defendants Garrard Strode, administrator pendente lite of the estate of Margaret Tierney, deceased,, and William Hannon, administrator cum testamento■ annexo of. the estate of Margaret Tierney, deceased, further admit, as averred in said petition, that Michael Tierney died on the nineteenth day of May, 1901, while a member in good standing of said police relief association, and while a member of the police force, and that, at the time of the death of said Michael Tierney, he left, surviving him, as heirs-at-law under the statute of descent and distribution of the State of Missouri, no child or children. And these defendants further admit that the said Michael Tierney left him surviving his wife, Margaret Tierney, and that she departed this life on or about the eighth day of November, 1901, and that thereafter, to-wit: on the twelfth day of November, 1901, a certain instrument purporting to be the last will and testament of said Margaret Tierney was probated in the probate court of the city of St. Louis, and that on said date the defendant William Hannon was duly appointed administrator of the estate of said decedent, Margaret Tierney, and duly qualified as administrator cum testamento annexo; that thereafter, to-wit: on the twenty-first day of December, 1901,.a suit contesting the said will was filed in the circuit court of the city of St. Louis, and letters of administration granted to said William Hannon were by the said probate court revoked, and the defendant Garrard Strode was duly appointed administrator pendente Me, in the estate of said Margaret Tierney, deceased, and that said Garrard Strode is now in charge of the estate of said Margaret Tierney as snch administrator.</p> <p>“These defendants, Garrard Strode, administrator pendente Me of the estate of Margaret Tierney, deceased, and William Hannon, administrator cum testamento annexo of said estate, further answering, state that article 2 of section 1 of the charter of the St. Louis Police Relief Association thus states the objects of its organization:</p> <p>“ ‘Section 1 . — Objects. The objects for which the association is formed are to create a fund for (1) the purpose of affording relief to such members of the association as may become (a) sick (b) disabled (c) incapacitated by long years of service (2) aiding the families of police officers who may die while members in good standing of the association.’</p> <p>“And these defendants, further answering, state that Michael Tierney was appointed a member of the police force of the city of St. Louis on the twenty-third day of April, 1889, and was duly elected a member of the St. Louis Police Relief Association on the fourth day of August, 1890; and they further state that said' Michael Tierney, on the nineteenth day of August, 1892, duly designated his said wife, Margaret, Tierney, as his beneficiary upon the books of the St. Louis Police Relief Association, in accordance with the constitution and by-laws of said association.</p> <p>“And these defendants state that subsequent to the time of the re-election of the said Michael Tierney to membership in the said St. Louis Police Relief Association, on the twenty-fifth day of April, 1900, on various occasions, the exact dates being to these defendants unknown, the said Michael Tierney ratified the said above designation of his wife, Margaret Tierney, as his beneficiary of the said death benefit fund, and adopted the said designation of August 19, 1892, as his designation of beneficiary under his renewed membership in said association. And these defendants state that the said Michael Tierney did legally and lawfully designate the said Margaret Tierney, his wife, as his lawful beneficiary of the said death benefit fund of said association; and that upon his decease, as aforesaid, the said Margaret Tierney was entitled, as said beneficiary, to the whole of said fund of $2,000, as provided in section 4 of article 7 of the constitution of said association and that defendant Garrard Strode administrator pendente lite of the estate of said Margaret Tierney, is now entitled as such to said fund and to the fund now deposited with the clerk of this court. And these defendants state to the court that defendants William Tierney, Ellen Tierney and Mary E. Rust, Mark Tierney, Patrick Tierney and William Tierney, administrator of the estate of Mary Tierney, have no right, title or interest in the said death benefit fund and in the fund deposited in this court, and that their alleged claim is a void and empty pretense.</p> <p>“And further answering, these defendants state that they have no knowledge or information as to the legal heirs of the said Michael Tierney under the statute of descent and distribution of the State of Missouri.</p> <p>“And further answering, these defendants say that they deny each and every allegation in said petition contained, and in the answer of William Tierney, Ellen Tierney, Mary E. Rust, William Tierney, administrator of the estate of Mary Tierney, deceased; Mark Tierney and Patrick Tierney, not herein specifically admitted.</p> <p>“These defendants state that they have repeatedly demanded of the plaintiff association the said sum of $2,000, which is due the estate of said Margaret Tierney, but said association has refused and still refuses, to pay the same to them or either of them.</p> <p>“Wherefore, these defendants pray this honorable court for an order directing the clerk of this court, or the custodian of the said fund, to turn over the same to Garrard Strode, administrator pendente lite of the estate of Margaret Tierney, deceased and to that end and purpose that defendant Garrard Strode, administrator pendente lite may have judgment therefor, and these defendants further pray for such other orders, judgments and decrees in the premises as may he just and proper.”</p> <p>The cause was submitted to the jury upon testimony, oral and documentary, accompanied by an agreed, statement of facts substantially the following:</p> <p>1. That Garrard Strode, public administrator, city of St. Louis, as such is in charge as administrator pendente lite of the estate of Margaret Tierney, deceased, and William Hannon is administrator cum testamento annexo of estate of Margaret Tierney, deceased, and William Tierney is administrator of estate of Mary Tierney, deceased.</p> <p>2. The plaintiff, The St. Louis Police Relief Association, is a corporation organized under the provisions of Article X, of Chapter 21 of the Revised Statutes of Missouri, 1879, and of an act of the General Assembly of the State of Missouri, entitled, “An act authorizing the formation of a police relief association,” etc., approved March 18, 1881. That a true copy of the constitution and by-laws of said association is herewith appended and marked “Exhibit A,” and made a part hereof.</p> <p>That by section 1 of the constitution and by-laws of said St% Louis Police Relief Association,- it is provided that “the following persons shall be eligible to membership in this association: All persons who were, on the twenty-eighth day of February, 1900, members in good standing of this association, the chief of police, assistant chief of police, chief of detectives, assistant chief of detectives, inspectors, secretary to the chief, superintendent of the Bertillion system, superintendent of stables and electrical servers, captains, lieutenants and sergeants of police, detectives, patrolmen and probationary policemen of the police force of the city of St. Lonis. ’ ’ That among the provisions in the constitution and by-laws are the following:</p> <p>"Section '2. — Termination of. Individual membership herein shall terminate whenever (one) the individual shall cease to be a member of the police force of the city of St. Louis (two) the individual shall refuse for three calendar months to pay an assessment, except as provided by article 2.</p> <p>“Section 5. — Designation of Beneficiary. When an applicant is admitted to membership, he shall call at the office of the association between the hours of nine and eleven a. m., on the third day after he has been, admitted to membership, and designate on the death benefit record the disposition of his death benefit. Provided, that a member may change his beneficiary by notifying the secretary in writing of his desire to do so, and designating the change desired.</p> <p>“Section 4 of Article I. — Death. Whenever any member of the police force, who is a member of this association, shall die, the sum of two thousand dollars shall be paid within thirty days after his demise to such person- or persons as he may have designated <on the books of the association. If he shall have failed to designate, it will be paid to his heirs-at-law, in accordance with the law of descent arid distribution. If he shall have failed to designate, and has no heirs-at-law it shall then revert to the association.”</p> <p>3. That one Michael Tierney became a member of the police force of the city of St. Louis on April 23, 1889, and on August 4, 1890, said Michael Tierney was. admitted as a member of the said St. Louis. Police Relief Association, and thereafter, to-wit: August the nineteenth, 1892, duly designated his wife, Margaret Tierney, on the death benefit record of said association as the person to whom the death benefit provided by said association should be made payable upon, the death of Michael Tierney, said designation taking place by the sáid Michael Tierney writing the name of Margaret Tierney in a book entitled “Death Benefit Record,” in a column which was headed by the word “Beneficiaries,” and June 30, 1897, the said Michael Tierney resigned from the police force of the city of St. Louis;</p> <p>4. That said Michael Tierney, August 21, 1899, again became a member of the police force of the city of St. Louis, and thereafter, to-wit, August 25,1900, said Michael Tierney became a member of the St. Louis Police Relief' Association, and that he did not sign the death benefit record in accordance with section 5, above quoted, after his re-admission to the St. Louis Police Relief Association.</p> <p>That the St. Louis Police Relief Association had no certificate of membership or beneficiary certificates and, upon an officer of the said police force becoming a member of the association, he would write in a book kept for-that purpose, designated as “Death Benefit Record,” at the'head of which appears the word “Beneficiaries,” the name or names of the person or persons to whom he intended the beneficial fund payable at his death.</p> <p>5. That Michael Tierney departed this life May 19, 1901, leaving him surviving as his heirs-at-law, the following named persons:</p> <p>William Tierney, Ellen Tierney, his brother and sister, of St. Louis, Missouri; Mark Tierney, his father, and Patrick Tierney, his brother, of County Galway, Ireland, and his mother, Mary Tierney, since deceased, and upon whose estate William- Tierney, of the city of St. Louis, has duly qualified as administrator, and Mary E. Rust, a sister, of Manchester, State of New Hampshire ; that said Michael Tierney left no children or' descendants him surviving, but left a widow, Margaret Tierney, who departed this life about the eighth day of November, 1901, and of whose estate said Garrard Strode, public administrator of the city of St. Louis, is in charge as administrator pendente lite, and of which said William Hannon, administrator cum testamento annexo of the estate of Margaret Tierney, was in charge, bnt whose authority has' been suspended by reason of the contest of her said will.</p> <p>6. That at the time of the death of the said Michael Tierney, May 19, 1901, he was a member in good standing of said St. Louis Police Relief Association, and was also a member of the police force of the city of St. Louis.</p> <p>The court ordered payment of the fund to William and Ellen Tierney. William Tierney, administrator of Mary Tierney, and Mary E. Rust and Mark and Patrick Tierney; and defendants, Strode, administrator p. 1. of Margaret Tierney and Hannon, administrator c. t. a. of Margaret Tierney, have appealed.</p>

Louis Court of Criminal Correction.— Hon. Wm. C. Jones, Judge. (1) The indictment maybe placed either under R. S. 1899, sec. 2346, or sec. 2105. Preferably the latter, but one of the two must apply. (2) The indictment may .best be assigned to section 2105, which is not a penalty 'clause. The duty here is imposed by the implied prohibition of the charter. (3)' ;The indictment sufficiently charges “corruption,” if it be necessary.

Louis City Circuit Court. — Row. J. A. McDonald, Judge. (1) Whatever defenses the National Surety Company may have had originally, if any, were waived by the conduct of the company, and the defendants are es-topped from setting up any such defenses at this time. Nolan v. Johns, 108 Mo. 431; Freeman on Judgments, (4 Ed.), sec. 180; James v. Life Association, 148 Mo. 1; Nickell v. Ins. Co., 144 Mo. 420; M., K. & T. Trust Co. v. German National Bank, 77 Fed. 117; 23 C. C. A. 65.

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) It is well-settled law that a written, instrument failing to express the intention of the parties will be reformed. Gillespie v. Moon, 2 Johns, C. 585; Glass v. Hubbert, 102 Mass. 41; Leitensdorfer v. Welphy, 15 Mo. 427; Page v. Higgins, 5 L. R. A. 152; Henderson v. Beasley, 137 Mo. 199; Fruin v. Crystal R. Co., 89 Mo. 397; Barlow v. Elliott, 56 Mo. App. 374; Lymann v. Campbell, 34 Mo. App. 213.