Volume 128 — Missouri Appeal Reports

— Hon. Hat. M. Shelton> Judge. ■ (1) The court erred in refusing defendant’s instruction number one in the nature of a demurrer to the evidence at the close of all of the evidence in the case.

— Hon.. Louis Hoffman, Judge. (1) This is purely an action for money, had and received, and the question of an expressed trust is in no way involved. (2) Parties litigant are not allowed to assume inconsistent positions in court. . . Having elected to adopt a certain course of action, they will be confined to that course which they adopt. Bensieck v. Cook, 110 Mo. 173. A party is confined on appeal to the positions he took during the trial. Cady v. Coates, 101 Mo.

<p>1. MASTER AND SERVANT: Negligence: Increased Hazard: Contributory Negligence: Assumption of Risk. If a servant’s peril is increased by the master’s negligence and the servant knowing thereof continues in the employment, the question of contributory negligence arises and not the question of the assumption of risk; and an instruction in regard to the assumption of risk is held improper.</p> <p>2. MINES AND MINING: Evidence: Conclusion of Witness: Props: Collar Brace. Certain questions propounded to a witness are held improper since they call for the expression of the witness’s conclusion and not for an expression of his opinion; but he could properly testify to the effect of leaving out collar braces from props set up to support the roof.</p>

Louis City Circuit Court. — Eon. Daniel G-. Taylor, Judge. (1) There is included in the schedule description in the policy of “an apartment or flat lower, located on the first floor,” to-wit, appellant’s “dwelling house,” all the privileges, easements and appurtenances in any way belonging to the premises as incidental to the grant, because not expressly reserved and excepted from his lease.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) Where there are several deeds of trust covering the same property, and a sale is made under an intermediate deed, the surplus proceeds after satisfying the debt secured by the foreclosed deed must be applied on the junior and not on the senior deed. Holweg v. T-Ieitkamp, 20 Mo. 569; Forster v. Potter, 37 Mo. 534; Reed v. Mullins, 43 Mo. 306; Strawbridge v. Clark, 52 Mo. 21; Abbe v. Justus, 60 Mo.

Louis City Circuit Court. — Eon. Walter tí. Douglas, Judge. The court erred in refusing to give the peremptory instruction asked by defendánt at the close of plaintiff’s case, and erred in refusing to give the peremptory instruction asked at the close of the whole case. Wheat v. St. Louis, 179 Mo. 572; Coffee v.- Carthage, 186 Mo. 585; Jackson v. Kansas City, 106 Mo. App. 57; Churchman v. Kansas City, 44 Mo. App. 665; Strutt v. Railroad, IS App. Div.

Louis City Circuit. Court. — Eon. Matt. G. Reynolds, Judge. (1) Under a proceeding against a former executor for an accounting, the probate court has no power to adjudicate a question in the nature of a discovery of assets, which is a separate action, requiring a different procedure altogether from the other. R. S. 1899, secs. 74, 75, 76, 77, 78.

— Hon. Jas. D. Barnett, Judge. (1) The court resisted every effort of the defendant to establish the rental value of the lands either before or after the fire. Clark v. Banks, 6 Hous. 584; Sedgwick on Dam. (8 Ed.), secs. 70-72, 1022; Schlemmer v. Worth, 32 Mo. 206; Hughes v. Hood, 50 Mo. 350.

Louis City Circuit Court. — Han. Walter B. Douglas, Judge. (1) Defendants failed to comply with their contract to paint the twenty-five houses and for that reason, they were entitled only to such remuneration for their services as the benefit conferred upon plaintiff was¡ reasonably worth.

<p>Appeal from St. Louis City Circuit Court. — No». Wm. M. Kinsey, Judge.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) .

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) Plaintiff as the holder of a special judgment against the building is entitled to recover for its conversion. Hammond v. Darlington, 109 Mo. App. 333; Seidel v. Cornwell, 166 Mo. 51. (2) The destruction of the building by defendant, without anything more, amounted to a conversion. Bank v. Metcalf, 40 Mo. App. 494; Withers v. Bank, 67 Mo. App. 115; Everett v. Commission Co., 115 Mo.

— Eon. F. O. Johnston, Judge. (1) The city of Monett being a city of the third class had the right to pass ordinance No. 166 in question, taxing occupations and trades in addition to the ad valorem tax provided by ordinance 165 and the Hall Grocery Company acting through its manager F. M. Hall, was as much bound to pay the tax as any person or firm engaged in dealing in groceries and provisions in the city of Monett, which tax the facts show had not been paid in conformity…

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The demurrer to plaintiff’s evidence should have been sustained because there was a total failure of proof. (2) The demurrer should have been sustained for the further reason that the acts referred to in the testimony, are not the proximate cause of this damage. State v. Holman, 10 S. E. (N. C.) 758; State v. Ranken, 16 Am. 737.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. Held: over and again, that actual knowledge of an appeal being taken, even though appellee stands by and sees it perfected, in no way affects the necessity of giving the statutory notice. Evans v. Railroad, 58 Mo. App. 427; Hathaway v. Ry. Co., 94 Mo. App. 343.

— Hon. Robt. Lamar, Special Judge. The law is that where the special contract pleaded as the foundation of plaintiff’s right to recover is one of suretyship, wherein plaintiff declares that he performed each and every one of the conditions upon his part, he must show an exact compliance with all of said conditions or terms without departure therefrom, otherwise his proof fails and he cannot recover of the surety.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) The question involved in this case is whether the return of the writ by the sheriff was sufficient to give the court jurisdiction over the defendant. We submit that it does not. The return shows, upon its face, that service is sought to be had under section 7992, Revised Statutes 1899. To obtain jurisdiction, it is necessary that the return should show that “0.

— Hon. Robert Lamar, Special Judge. (1) In discussing this case we desire to start out by laying down the elementary principles of law.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) It is an illegal grant of corporate privileges which authorizes a set of individuals to engage in the practice of medicine, and proceedings quo uyarranto charging them Avitli an unlawful usurpation of corporate rights Avould prevail. This is conceded by respondents. Commonwealth ex rel. v. Alba Dentist Co., 18 Pa. Dis. 432; Mandeville v. Courtright, U. S. C. C. App. 142 Fed. 97; State ex inf. a7.

Louis City Circuit Court. — Son. Matt G. Reynolds, Judge. (1) The act of adjoining tenant under the same landlord, not the result of the landlord’s connivance, does not amount to a constructive eviction. Gray v. Gaff, 8 Mo. App. 329; Dimmock v. Daily, 9 Mo. App. 356; Witte v. Quinn, 38 Mo. App. 691; O’Neill v. Manget, 44 Mo. App. 279; 11 Am. and Eng. Ency.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. (1) The return of sheriff is conclusive only in collateral attack. Black on Judgts., sec. 324; Blythe v. Hinckley, 84 Fed. 240; Adams v. Hickman, 43 M'o. 168. (2) Judgment rendered on a false return may be attacked by motion to set aside made in court where rendered. Du Bois v. Clark, 12 Colo. App. 220; Bradley v. Welch, 100 Mo. 267; Craig v. Smith, 65 Mo. 538.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The petition states a cause of action. One of the grounds for divorce in this State is “Where defendant shall offer such indignities to the plaintiff as to render her condition intolerable.” R. S. 1899, sec. 2921. (2) Where the evidence establishes a statutory ground for . divorce, the trial court has no discretion and the divorce must be granted. Ullrey v. Ullrey, 80 Mo. App. 48; Kilpatrick v. Kilpatrick, 80 Mo.

<p>Opinion by Nortoni, J.</p> <p>1. CRIMES: Adultery. In tlie prosecution of a man and woman for tlie violation of section 2175, Revised Statutes 1899, an instruction which authorized a conviction if the two lived together and the man had a wife living, was erroneous in that it did not require a finding also that the wife living was not his codefendant.</p> <p>Dissenting Opinion by Goode, J.</p> <p>2. -: -: In such a case a failure to require the jury to find that the wife living of the man was not his codefendant, was not prejudicial, where it was conclusively shown and not contradicted that he was married at the time to another woman.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) It is immaterial whether or not the lease to complainant was cancelled. The question is as to possession — not as to right of possession. King’s ad. v. Gaslight Co., 84 Mo. 38; Van Stewart v. Miles, 105 Mo. App. 248; Harris v. Turner, 46 Mo. 439; Beeler v. Cardwell, 29 Mo. 74; Redman v. Perkins, 98 S. W. 1097; Meriweather v. Howe, 48 Mo.

Louis City Circuit Court. — Hon. Robt. M. Foster, Judge. (1) Tbe term “employee” as used in section D, under the rule of norchitur a sociis, is to be construed and limited by the words and phrases as used in section 4, called schedule, of “wages;” “trade or kind of business;” “manual classification;” “pay-roll;” “premium per rate of $100 for wages;” “galvanized iron cornice and wrought iron work;” and the word “compensation” as used in section D must be construed with the…

<p>Appeal from St. Louis City Circuit Court. — Hon. Ghas. Olaflin Allen, Judge.</p>

Louis Court of Criminal Correction.— Eon. W. A. Taylor, Judge. After reading the record in this canse, we would most respectfully call this court’s attention to section 17, article 2, as contained in our hill of rights.

Louis Court of Criminal Correction.— Eon. Wilson A. Taylor, Judge. A druggist who is also a licensed physician has a right to fill a prescription made by himself in good faitli as a needed medicine for a sick person.. State v. Carnahan, 63 Mo. App. 244; State v. Pollard, 72 Mo. App. 230; State v. Hensley, 94 Mo. App. 151.

Louis City Circuit Court. — Eon. George E. Shields, Judge. Statement. — On November 1, 1902, defendant bad a lease, to run about two years and two months, on premises No. 316 N. Main street, in city block No. 11, city of St. Louis.

Louis City Circuit Court, — Hon. Matt. G-. Reynolds, Judge. The court erred in sustaining plaintiff’s motion to set aside nonsuit, because the evidence charges plaintiff with contributory negligence. (a) This is true no matter if the defendant wag guilty of negligence in violating a statute. Green y. Railroad, 90 S. W. 805; Schmidt y. Railroad, 191 Mo. 215.

Louis City Circuit Court. — Hon Jesse A. McDonald, Judge. .Statement.' — Plaintiff is a Missouri corporation and maintains an office in the city of St. Louis. Defendants are residents of said city.

<p>Appeal from Knox Circuit Court. — Now. Chas. D. Steiowrt, Judge.</p>

—Hon. Thomas J. Scehorn, Judge. (1) A livery stable is not a nuisance per se. St. Louis v. Russell, 116 Mo. 248. (2) That plaintiffs have an adequate remedy at law if a nuisance should at any time be created in the conducting and carrying on of a stable. City Charter, sec. 3, art. Ill, page 22; Real Estate Co. v. St. Louis, 169 Mo. 227. (3) Before equity will grant injunctive relief it must appear that the injury or wrong is real or imminent — if it has not already begun.

— Hon. William B. Teasclale, Judge. (1) Tlie trial court committed error in permitting plaintiff and liis witness Ridenour to express an opinion as to the speed of the train. Muth v. Railroad, 87 Mo. App. 422. (2) The court should have directed a verdict for the defendant. Harlan v. Railroad, 65 Mo. 25; Railroad v. Henry, 76 Mo. 293; M'athiasv. Mayer, 90 Mo. 583. (3) Plaintiff was guilty of the grossest kind of contributory negligence.

— Hon. Ghesley A. Mosmxm, Judge. (1) The motion of the respondent is unauthorized by the law and states no ground for the relief sought, and the judgment thereunder is void and of no effect. Laws of Missouri, 1903, p. 74, amending section 5665, R. S. 1899; R. S. 1899, sec. 5666-5680; Bicldey v. Railroad, 68 Mo. App. 496; Stewart v. White, 98 Mo. 226; Nielder v. Holmes, 58 M'o. App. 119; Hilton v. St. Louis, 99 Mo. 208; St. Louis v. Meier, 8 Mo. App. 579.

— Eon. Joshua W. Alexander, Special Judge. (1) The statute requires that a notice of the election shall be published in a specified manner before a legal election can be held. Sec. 3029. Tbe entire record of tbe county court, certified by tbe county clerk, was offered in evidence by tbe 'defendant. It fails to show any publication of the notice, nor was there any other proof offered showing such notice.

— Hon. Henry L. MeCune, Judge. (1) The Supreme Court has exclusive jurisdiction in cases involving the construction of the Constitution of the United States or of this State. Art. 6, sec. 12, Constitution of Missouri, and sec. 5 of amendments thereto adopted November, 1884. State ex rel. v. Smith, 150 Mo. 75; Schuster v. Weiss, 39 Mo. App. 628; In Re Opening Essex Avenue, 44 Mo. App. 288; State ex rel.

John G. Park, Judge. (1) There is nothing mysterious about the lien of an ordinary judgment. It exists by virtue of statute and lasts for three years only unless void. R. S. 1899, secs. 3714, 3716. (2) And our courts apply the rule to an intermediate conveyance as well as an encumbrance. Christy v. Flanagan, 14 Mo.

— Hon. John G. Park, Judge. (1) The court erred in overruling the demurrer to the evidence. Plaintiff had alleged that his injuries were caused by panic-stricken passengers throwing, pushing and knocking him from the platform.- He had to recover on proof of these facts if at all.

— Hon. Alexander H. Waller, Judge. An instruction ignoring a portion of the case or which takes from the jury the principal issue in the case is erroneous. Turner v. Loler, 34 M'o. 461; Greer v. Parker, 85 Mo. 107; Bank v. Metcalf, 29 Mo. App, 395. (1) In the sale of personal property there is an implied warranty that it is reasonably suitable for the use and purpose for which it is sold and purchased. Birdsell Co. v. Keys, 99 Mo. App. 458; Brown v. Weldon, 27 Mo.

<p>Original Proceeding by Prohibition.</p> <p>(1) A certiorari proceeding is a civil suit within the meaning of section 818, Revised Statutes 1899. Woods v. Eckerle, 95 Mo. App. 384; Weston v. Charleston,. 2 Peters 464; Kohl v. United States, 91 U. S. 367; Upshur Co. v. Rich, 135 U. S. 467; McCullough v. Large, 20 Feb. 309; Hendrix v. Kellogg, 32 Ga. 435, 437. (2) The word ‘‘suit,” comprehends not only actions at law, but every judicial proceeding for the enforcement of a right. Bouvier’s Law Dictionary; Weston v. Charleston, 2 Peters 474; Ex parte Long, 108 U. S. 556; Haines v. Jamison, 39 U. S. 540; Roodhouse v. Briggs, 194 111. 435; McMann v. People, 50 111. 507; McCullough v. Large, 20 Fed. 309; State ex rel. v. Riley, 203 Mo. 175, 101 S. W. 567; R. S. 1899, sec. 1554. (3) The right fco review the action of the circuit court in certiorari proceedings by appeal has never been questioned in this State and the action of the trial court has been reviewed by appeal, without question, in the following cases: State ex rel. v. Barker, 170 Mo. 383; State ex rel. v. Barker, 170 Mo. 394; State ex rel. v. Fraker, 168 Mo. 445; Ward v. Board of Equalization, 135 Mo. 309; State ex rel. v. Springer, 134 Mo. 212; State ex rel v. Kansas City, 89 Mo. 34; State ex rel. v. Police Com., 88 Mo. 144; State ex rel. v. Court, 80 Mo. 500; State ex rel. v. Powers, 68 Mo. 320; State ex rel. v. Court, 67 Mo. 522; Britton v. Stebers, 62 Mo. 370; State ex rel. v. Dowling, 50 Mo. 134; Rogers v. Court, 60 Mo. 101; State ex rel. v. Court, 47 Mo. 594; Hill v. Young, 3 Mo. 337; State ex rel. v. Court, 100 Mo. App. 479; State ex rel. v. Jackson, 93 Mo. App. 516; State ex rel. v. Moore, 84 Mr. App. 11; State ex rel. McDavid, 84 Mo. App. 47; State ex rel. v. Williams, 70 Mo. App. 238; State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Schneider, 47 Mo. App. 669; Moore v. Bailey, 8 Mo. App. 156. The right of appeal from the final judgment of the circuit court exists in proceeding’s in certiorari. State ex rel. v. Springer, 134 Mo. 212; Hill v. Young, 3 Mo. 337; Board of Supervisors v. M'a-goon, 109 111. 142; Hyslop v. Finch, 99 111. 171; School Trustees v. School Directors, 88 111. 100; Morley v. Elkius, 37 Cal. 456; Swann v. Cumberland, 8 Gill (Md.) 150; Welch v. Wetzel Co., 26 West Va. 63; Edgerton v. Green Cove Springs, 1.8 Fla. 528; Dean v. Wilcoxen, 18 Fla. 531; LoAvndes Co. Corns, v. Barrie, 34 Ala. 461; Robens v. Yideto, 22 Mich. 240; Meade v. Steame Co., 43 Minn. 312; Johnson v. Hanna, 1 Wright (Ohio) 138; Lawson v. Scott, 1 Yerg. 92; 2 Spelling on Extr. Rem. sec. 2056. (4) Where the inferior court has jurisdiction of the certiorari proceedings, its action in such proceedings cannot be reviewed by a writ of certiorari from the higher court. Such action can be reviewed only on appeal or writ of error. Certiorari to certiorari does not exist where the inferior court has jurisdiction of such certiorari proceedings. State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Barker, 170 Mo. 390; Edgerton v. Greene Gove Springs, 18 Fla. 523; R. S. 1899, secs. 806, 1554; Snoddy v. Pettis County, 45 Mo. 361; State v. Yaughan, 83 Mo. App. 457; Kreyling v. O’Reilly, 95 Mo. App. 561; Railroad v. Powell, 104 Mo. App. 362. (5) The right to a change of venue exists in any civil suit. R. S. 1899, secs. 818, 819; State ex rel. v. Riley, 203 Mo. 175, 101 S. W. 567. It may be taken by any party in interest in certiorari proceedings. State ex rel. v. Court, 100 Mo. App. 479. (6) The writ of certiorari except in the cases specifically, provided by statute, is in the nature of a writ of error with this difference that it brings up only the record of the inferior tribunal for inspection, and the trial upon it, is a trial of questions jurisdictional in their nature and not a trial de novo except of such matters affecting the jurisdiction of the court. State v. Schneider, 47 Mo. App. 675; Adams v. Block, 63 N. J. Law 508, 44 Atl. 208; McAloon v. License Com., 22 R. I. 191, 46 Atl. 191; Ewing v. Hollister, 7 Ohio 140; Bridge Co. v. Magoon, 8 Me. 292; Levant v. Co. Oom’rs, 67 Me. 429. (7) Certiorari is in the nature of an appeal from the judgment and judicial determination of inferior tribunals and officers acting under statutory authority, or when the proceeding is not according to the common law. People v. Walter, 68 N. Y. 403; Stone v. New York, 25 Wend. 157; People v. Walter, 2 Hill. 9;. Lande v. Noble, 20 Johns. 80; Ex parte City of Albany, 23 Wend. 277; Hamilton v, Spiers, 2 Utah 225. (8) Persons who are parties to the record sought to he annulled, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties defendant. 4 Enel. PI. and Pr., 183 and authorities cited; 2 Spelling on Extr. Rem., 1977; 6 Cyc., 775; Com. v. Peters* 3 Mass. 229; Cornell v. Chandler, 11 Tex. 249. (9) While the officer or tribunal having custody of the record is1 often made a party defendant, it is not to be understood that he or it is always or even generally a necessary party and where certiorari is prosecuted in aid of an ejectment suit, the present owner should be a party to it, otherwise he cannot be bound by the proceeding, and certiorari in aid of habeas corpus should be 'directed to the officer having the prisoner in custody. 2 Spelling on Extr. Rem., 1984, 1988; Black v. Town of Brinkley, 15 S. W. 1030; Sammerman v. Borough of Wildwood (N. J.), 40 Atl. 1132; Com. v. Borough of Wildwood, 38 Atl. 22, 60 N. J. Law 365; State v. Washoe Co. Comrs., 23 Nev. 247, 45 Pac. 529; Griscom v. Gilmore, 15 N. J. Law (3 J. S. Green) 475; Connell v. Chandler, 11 Tex. 249; McFall v. Dover, 57 Atl. (N. J.) 136. (10) The fact that an appeal will lie in the proceeding sought to be restrained, is not ground for denying the writ of prohibition, where the” remedy by appeal-is inadequate or not sufficiently speedy. State ex rel. v. Allen, 45 Mo. App. 557; State ex rel. v. Fort, 107 Mo. App. 328; State ex rel. v. Guinnotte, 156 Mo. 513; Slate ex rel. v. Eby, 170 Mo. 497. (11) An appeal from a judgment of the circuit court annulling the license and the proceedings under which it was issued, does not operate as a supersedeas. State ex rel. v. Barnett, 110 Mo. App. 557, and authorities cited.</p> <p>(1) A county court or the justices thereof, where the circuit court issues a writ of certiorari, to the county court are not entitled, under the law, to a change of yerme. State ex rel. v. County Court, 100 Mo. App. 480; Squires y. Chillicothe, 89 Mo. 232; Levin y. Dills, 1? Mo. 64; Huthsing v. Maus, 36 M'o. 101; Norvell w-Porter, 62 Mo. 312; Ewing y. Brooks, 69 Mo. 49; Fields y. Maloney, 78 Mo. 175. (2) The right to a change of venue is purely statutory and exists only in those instances where statute confers such right. Cole y. Cole, 89 Mo. App. 228; Cottrell y. Wofford, 119 Mo. 408; State ex rel. v. Woodson, 86 Mo. App. 253; State v. Headrick, 149 Mo. 403. (3) The term “civil suit” only applies to any civil action within the meaning- of the code of practice even in its broadest sense, between private parties for private rights. State ex rel. v. Riley, 203 Mr. 175; Walker y. Ellis, 146 Mo. 327, 331, 332; Morris v. Lane, 44 Mo. App. 1. (4) We have no statute in this State regulating the practice on proceedings by certiorari, and are to look to the common law for a guide in such cases. Railroad y. State Board, 64 Mo. 308, 317 Mass. 564, 28 Wis. 271, 36 Iowa 15; State ex rel. v. Bennett, 102 Mo. App. 248; State v. Schneider, 47 Mo. App. 675; State ex rel. v. Patton, 108 Mo. 31; State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. Williams, 70 Mo. App. 242; State ex rel. v. Powers, 68 Mo. 323. (5) Writ of prohibition is not writ of right. It is a writ, the award of which is to be governed by the discretion of the court applied to the facts presented by the individual case. State ex rel. v. Levens, 32 Mo. App. 520, and cases cited; State ex rel. v. Seay, 23 Mo. App. 629, and cases cited; Davison v. Hough, 165 Mo. 1. c. 575; State ex rel. v. Riley, 203 Mo. 175. (6) Motion for judgment on the return in proceedings on an application for a writ of prohibition must be taken to admit all facts well pleaded in the return. State ex rel. y. Elkin, 130 Mo. 90; Wand v. Ryan, 166 Mo. 646. (!) The county justices can appeal in certiorari, and the following cases are taken to the higher courts in oertiorari on appeal. State ex rel. v. Campbell, 37 Mo. App. 338; State ex rel. v. County Court, 47 Mo. App. 647; State ex rel. v. Moore, 84 M'o. App. 11. (8) An application for a change of venue by “a nominal party” and not a party known to the writ of certiorari but a metre volunteer — an interloper — a mere friend to the county court in the proceeding is not entitled to a change. Buchan v. Brodwell, 88 Mo. 34.</p>

— Eon. Alomo D. Burne-s, Judge. • (1) This being a suit in equity, the court -will not declare a forfeiture of the franchises granted by respondent, for it is a well-settled and familiar doctrine that a court of equity never declares a forfeiture; when it interferes at all in a case of forfeiture, it is only to relieve against it, never to aid it. Messersmith v. Messersmith, 22 Mo. 369; Towne v. Powers, 81 Mo. 491; Eads v. Orcott, 79 Mo.

— Hon. Ghesley A, Mosman, Judge. (1) The court erred in its finding and decree. There was no substantial evidence to support the same. An examination of all the evidence shows that appellant was clearly entitled to the relief prayed for. The evidence established beyond controversy that respondent held the title to appellant’s property in trust for him and was to reconvey the same when requested.

— Hon. Joshua W. Alexander, Judge. (1) Appellant had a right in self-defense to strike first, and it is not assault to use force in self-defense. State v. McDonald, 67 Mo. 18; Morgan v. Durfee, 69 Mo. 475; Nichols v. Winfrey, 79 Mo. 547; 2 Bishop, New Criminal Law, sec. 37; State v. Eapp, 142 Mo. 447.

— Bon. William G. Ellison, Judge. (1) The notice of the meeting- of June 22, 1895, was given in strict compliance with the requirements of the statutes of our State and the by-laws of defendant association. R. S. 1889, sec. 2484. (2) The requirements as to the holding of this meeting contained in our statutes is merely directory.

— Eon. William G. Ellison, Judge. (1) The court erred in rendering judgment for the defendants and in overruling the plaintiffs’ motion for a new trial, holding as it did that the language of the thirteenth clause of the will effected an equitable conversion of the real estate therein mentioned into personal property and thus exempting it from the lien of plaintiffs in error’s judgment. Eneberg v. Carter, 98 Mo. 647.

— Hon. Hugh Dabbs, Judge. (1) The. motion to set aside the nonsuit and grant a new trial was not filed within the time required by the. statute. The nonsuit was entered April 25, 1906, and the motion for new trial filed May 1, 1906, on the sixth day after the nonsuit. R. S. 1899, sec. 803; Long v. Hawkins, 178 Mo. 103; St. Joseph v. Robison, 125 Mo. 1; St. Louis v. Boyce, 130 Mo. 572; Scullin v. Railway Co., 192 Mo. 1.

— Hon. William H. Martin, Judge. (1) James T. Atkinson, having entered into a contract with his daughter-in-law, Sarah O. Atkinson, for the benefit of the plaintiffs, the latter were entitled to enforce it.

— Eon. Henry L. MeCune, Judge. Tbe court erred in (a) admitting illegal, incompetent and hearsay evidence on tbe part of respondent, as to injuries not covered by her petition; (b) as to improvement of the street, subsequent to the date of the accident; (c) in permitting respondent’s doctor to testify to incompetent conclusions, based on her history of the case; (d) in excluding legal and competent evidence offered by defendant, and in so commenting on the same in the…

— Hon. B. G. Thurman, Judge. (1) One wbo purchases land from another who is in actual possession under a contract from one who has the legal title or who has notice of such contract, stands in the place of the one from whom he purchases and is bound by the provisions of the contract under which his vendor holds.

— Hon. Charles A. Denton, Judge. (1) A physician called to treat a patient is bound to use the ordinary skill and care exercised by his profession in the community where he practices — not the highest degree of skill and care known to his profession. Lawson v. Conway, 38 Am. St. 17; Forsee v. Gregory, 38 Am. St. 371; Pike y. Horsinger, 63 Am. St. 655; Sawdey y. Spokane & Co., 94 Am. St. 880; 14 Am. and Eng. Ency. of Law (1 Ed.), 80-82; 15 Am. and Eng.

— Eon. James E. 8lover, Judge. (1) As the plaintiff, for no fault of his;, was prevented by defendant from completing the performance of his contract, he is entitled to recover, on a quantum meruit, the reasonable value of his services. Turney v. Baker, 103 Mo. App. 390; Cann y. Bector, 111 Mo. App. 164; Dempsey v. Lawson, 76 Mo.

— Hon. John G. Park, Judge. (1) The respondent was guilty of negligence in placing and maintaining the water so near the track that it was dangerous to employees who in the performance of their duties might he struck by passing trains.

— Son. Alexander E. Waller, Judge. (1) The minute tbe defendant took his wife’s separate moneys and held them as his own without her written assent a cause of action accrued to the wife on account thereof and she was entitled to sue him either in equity or at law. R. S. 1899, sec. 4340; R. S. 1899, sec. 4335; Rosenberger v. Mallerson, 92 Mo. App. 27; Reed v. Painter, 145 Mo. 341; Woodward v. Woodward, 148 Mo. 241; Gordon v. Gordon, 183 Mo. 294; Beagles v. Beagles, 95 Mo.

— Eon. William E. ■ „ Martin, Judge. (1) Plaintiff seems to forget that this is but a simple action for an alleged failure, to keep' and carry out the terms of a contract of carriage. Deming v. Railroad, 80 Mo. App. 152; Marshall v. Railroad, 78 Mo. 610; Francis v. Transfer Co., 5 Mo. App. 7; Strange v. Railroad, 61 Mo. App. 586; Rawlings v. Railroad, 97 Mo. App. —; Connell y. Telegraph Co., 116 Mo. 34; Shellabarger v. Morris, 115 Mo. App. 570.

— Son. Wm. S. Martin, Judge. (1) Plaintiff being the transferee of negotiable paper, before maturity, is presumed to have acquired it in good faith, and the burden is on defendant to show the contrary. Oloud v. International B. & N. Co., 23 Mo. App. 319; Woolen Mills v. Meyers & Co., 43 Mo. App. 124; Bank v. Stanley, 46 M'o. App. 440.

— Hon. Henry M. Ramey, Judge. (1) Instruction A given by the court of its own motion by using the language “that the defendant did not set over to plaintiff one-half of the corn” intimates that there was an agreement to divide by rows and leads the jury to the conclusion that the rights of the parties are not to be governed by the written contract. Pugh v. Ayers, 47 M'o. App. 590.

— Hon,. William B. Teasdale, Judge. (1) Tbe court erred in overruling defendant’s demurrer to tbe evidence at tbe close of the trial. Even if tbe defendant bad been shown to be guilty of negligence, the plaintiff himself admitted that be could have stopped bis own car in time to have avoided tbe collision, and failed to do so. McGahan v. Transit Co., 100 S. W. 603. (2) The court erred in refusing defendant’s instruction number 3 as asked, and in modifying the same.

— Hon. Ohesley A. Mosman, Judge. . (1) The trial court erred in admitting over the objection and exception of appellant, evidence tending to prove contract alleged to have been entered into in November, 1904, for the rent of appellant’s farm to respondent for the fiscal year, 1905-1906, beginning March first. Briar v. Robertson, 19 Mo. App. 66; Beiler v. De-Voll, 40 Mo. App. 251; Butts v. Fox, 96 Mo. App. 437; Sharksv. Rhiel, 55 Mo. 97.

— Hem. Chesley A. Mosman, Judge. (1) It will he seen by referring to the authorities that the plaintiff did not comply with the law in any particular and that defendant could have received no benefit or protection whatever from the manner in which the transfer of the dramshop license was made, if made. Revised Ordinances, City of St. Joseph, 1897, chap. 25, sec. 6; Mitchell v. Branham, 104 Mo. App. 486.

— Hon. Ohesley A. Mosmcm, Judge, (1) The defendant claims that this action is barred by reason of the Kansas statute which it has pleaded and section 4280, Mo. Ann. Stat. 1906. Defendant assumes that the cause of action originated in Kansas and that it is fully barred by the laws of said State. (2) This is an action ex delicto and not an action ex contractu.

— Hon. Joshua W. Alexander, Judge. (1) The town of Gower being organized under chapter 91, article tí, of Revised Statutes 1899, has such power as the Legislature has granted to towns organized under that law. And among the powers conferred is that to regulate, license or prohibit dramshops within one-half mile beyond its limits. R. S. 1899, sec. 6010. This power to regulate, license and prohibit beyond the limits is a valid grant of power. Fredericktown v. Fox, 84 Mo. 59.

Platte Circuit Court. — Hon. Alonzo D. B urnes, Judge. (1) There is not a word or line of evidence of a settlement of the partnership affairs, in fact the testimony of all the witnesses, including the three partners and respondent, is agreed that there was not a settlement. This being true, an action at law could not be maintained and defendant’s demurrer at the close of the testimony should have been sustained.

— Hon. William O. Ellison, Judge. This instrument shows upon its face that it is given as a security for the debts therein mentioned. When the parol evidence of the circumstances under which it was executed is considered it is clear that it was intended as a security for a debt, and is not, and cannot be held to be an assignment under the statute. Crow v. Beardsley, 68 Mo. 435; Hargadine v. Henderson, 97 Mo. 375; In re Zwang, 39 Mo. App. 356; Buggy Co. v. Woodson, 59 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The court erred in refusing to give an instruction in the nature of a demurrer to the evidence asked for hy defendant, (a) Because the evidence to support the plaintiff’s contention is unreasonable, opposed to natural laws and is not entitled to any probative force. Champagne v. Haney, 189 Mo. 711; Sanguinette v. Railroad, 196 Mo. 466'; Barrie v. Railroad, 102 Mo. App. 9l; Spiro v. Railroad, 102 Mo.

Louis City Circuit Court. — Son. Moses N. Sale, Judge. (1) The issue of the certificate and Bange’s death were proven upon the trial and the same made a primafacie right of recovery in appellant. Mulroy v. Knights, 28 Mo. App. 468; Stewart v. Legion of Honor, 36 Mo. App. 319 ;'Forse v. Knights of Honor, 41 Mo-. App. 106; Mulroy v. Knights, 28 Mr. App. 468; Chadwick v. Triple Alliance, 56 Mo. App. 474.

<p>Appeal from St. Louis City Circuit Court. — Hon. Matt, (jf. Reynolds, Judge.</p>

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) The plaintiff in any action at law or in equity has the right, at any time before the cause is finally submitted to the jury or to the court, to take a nonsuit or dismiss his cause. And this is true even when the cause happens to be an appeal from the probate court to the circuit court. This right is given to appellant 42 Mo. App. 376; Lawrence v. S hr eve, 26 Mo. 492; Wood by section 639, Revised Statutes 1899.

<p>LIFE INSURANCE: Assessment Association: Readjustment of Assessments. Where the constitution and by-laws of a life insurance association upon the assessment plan empowered the board of directors to adjust calls and assessments, this authorized the board of directors to readjust the assessment upon members of the different classes, increasing the rate in an amount required to pay the cost of carrying the insurance of each class, taking into account the attained age instead of the entrance age of each member in one class in determining his assessment, and the fact that some classes were assessed upon the level plan and some were not, did not show an inequality in the assessment of the different classes nor make the association an ordinary life insurance company, there being no direct evidence that the readjustment discriminated against a member complaining of it.</p>

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) Instruction number 1 was erroneous because there was not a ray of testimony to the effect that there was a contract for the delivery of five hundred drums. Plaintiff’s own evidence tended to prove two entirely distinct and separate orders, made at different times and with different people.

Louis City Circuit Court. — Hon. J as. I'J. Withrow, Judge. The instructions in the nature of demurrers to the evidence asked by the defendant should have been given. Coal Co. v. St. Louis, 145 Mo. 651; Lightfoot v. Hurd, 113 Mo. App. 612; Andrews v. Stubbs C. Co., 100 Mo. App. 599; St. Joseph Sch. Bd. v. Hull, 72 Mo. App. 403; Adams v. Helm, 55 Mo. 468; Mills v. Summer, 53 Hun 392. Trial court did not err in overruling the demurrer to the evidence. 1.

Louis Oity Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The constitution of the Western Commercial Travelers’ Association does not provide for “blood relatives” as a class of beneficiaries, and therefore Mrs. Louisa H. Tennent was not a qualified beneficiary merely because she was the mother of deceased, because: (a) The association is not a “fraternal beneficiary association” as defined by the Missouri Statutes. Westerman v. Sup.

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) The court erred in permitting respondent to submit to the jury the testimony of Dr. Parrish, Jr., the husband of the chief beneficiary under the will of Mr. Imboden, deceased. 1 Greenleaf, Evid., sec. 341; Swift y. Martin, 19 Mo. App. 488; 30 A. & E. Ency. Law (2 Ed.), p. 943; Davis v. Wood, 161 Mo. 17; Sup. Council v. Bevis, 106 Mo. App. 435; Miller v. Slupsky, 158 Mo. 643.

Louis City Circuit Court. — Eon. Daniel Gr. Taylor, Judge. (1) In a suit before a justice by a foreign corporation, its statement which sets forth that it is such corporation should further aver permission of the State to maintain suits in Missouri, since such permission is jurisdictional and may be raised at any time, and is not waived by an appeal of the defendant and a failure to give notice of such appeal.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) Instruction number 4 given upon plaintiff’s request by the court, is erroneous. 1. It ignores material and controverted facts in the case. Bank v. Murdock, 62 M'o. 73. 2. It is unfair and misleading.

<p>1. FRAUDULENT CONVEYANCES: Mortgages: Beneficiaries not Named: Sum Secured not Mentioned. .A chattel mortgage whereby the mortgagor conveyed all his fixtures and stock in a saloon and butcher shop to a certain trustee for the benefit of a creditor, naming him, and “other creditors,” the other creditors not being named, nor the sum secured to any creditor stated, was fraudulent and void as to an attaching creditor.</p> <p>2. -: -: Merchandise Controlled by Mortgagor. Where such mortgage provided that the mortgagor should “retain possession of the said property1 with the full enjoyment of the same,” it was fraudulent and void for that reason, because it gave the mortgagor the power to sell his liquors in the regular course of business and appropriate the proceeds.</p>

Louis City Circuit Court. — Uon. Chas. Glaflin Allen, Judge. (1) The court erred in giving plaintiff’s instruction No. 2. Shanks v. Traction Co., 101 Mo. App. 703; Allen v. Transit Co., 183 Mo. 411; Sommers v. Transit Co., 108 Mo. App. 318.

<p>Appeal from Douglas Circuit Court. — Eon. John T. Moore, Judge.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Appellant did not have possession, actual or constructive, of the diamonds at any time after he had them set in a Anger ring and gave the ring to his wife, which was a few months after he got them and two years before this suit was brought. Both Dr. and Mrs. Neville as witnesses for plaintiff positively testify repeatedly that she alone owned and had possession of the ring from the time it was given her.

Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge. (1) The evidence for the State was sufficient to sustain the verdict of guilty. State v. Wellott, 54 Mo. 310; State v. Grannenmn, 132 Mo. 326; State v. Lipscomb, 52 Mo. 32; State v. Meek, 70 Mo. 355. (2) Tbe testimony offered by defendant as tending to show that tbe work and labor done by him on tbe Sunday in question was a work of necessity, was properly excluded.

<p>JUSTICES OF THE PEACE: Records: Minutes. Where the record of a justice of the peace consisted of minutes and memoranda rather than a full narrative of a proceeding, and where such minutes and memoranda showed that a judgment was rendered, giving the amount of the judgment and amount of costs, names of the parties, reciting that plaintiff and defendant appeared on a certain day and the defendant confessed judgment for the amount mentioned, this was sufficient to show a judgment and support a second judgment reviving the same.</p>

— Eon. David E. Eby, Judge. (1) It must be conceded that the appellant can not be held for the costs of the prosecution in this case unless his liability is fixed by some positive statute. No such liability existed at common law and the act of filing the complaint or making the affidavit on which the prosecution was based in this cause created no contractual liability. State v. Lavelle, 78 Mo. 104.

— Son Chas. D. Stem-art, Judge. (1) All previous agreements and negotiations between plaintiffs and defendant in relation to the transportation of the hogs in suit were merged in the written contracts for the transportation of said hogs executed in duplicate by plaintiffs and 'defendant.

<p>Appeal from St. Charles Circuit Court. — Eon. Jas. D. Barnett, Judge.</p>

— -Hon. David H. Eby, Judge. The circuit court shall exercise a superintending control over probate courts and all inferior tribunals in each county in their respective circuits. Sec. 28, art. 6, Constitution; State ex rel. v. Walker, 85 Mo. App. 251; 98 Am. St. Rep. 969; In re Switzer, 201 Mo. 87; Stewart v. Emerson, 70 Mo. App. 482.

— Hon. Chas. D. Btewart, Judge. (1) The court should have instructed the jury to find a verdict in favor of defendant, because the evidence showed that there was a safe way for plaintiff to perform the duty in which he was engaged and he voluntarily .chose a hazardous way in which to perform it. .Morris v. Railroad, 108 Fed. (C. C. A.), 747; Subtle v. Railroad, 144 Fed. (O. C. A.), 668.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. (1) The plaintiff made out a prima-faoie case and the court erred in sustaining defendants’ demurrer to the evidence offered by plaintiff. Carew v. Rutherford, 106 Mass. 1; March v. Bricklayers’ Union (Conn.), 4 L. R. A. 1198. (2) Procuring money from a man by threats to do harm to his business, is an actionable wrong and such money can be recovered in an action for money had and received.

<p>Appeal from Hannibal Court of Common Pleas. — Eon. David E. Eby, Judge.</p>

<p>1. REPLEVIN BOND: Order for New Bond: Relating Back. Where, in an action of replevin, a motion to compel the plaintiff to give a new bond, under section 4470, Revised Statutes 1899, was continued until a subsequent term when it was sustained, the motion did not relate back to the term at which it was filed so as to show that the court found the original bond to be insufficient at such prior term.</p> <p>2. -: Discretion of Sheriff. Under the provisions of section 4465, Revised Statutes 1899, the sheriff is not invested with discretionary powers in approving the bond offered by plaintiff in an action of replevin; he has no authority to take the property from the defendant and deliver to the plaintiff until the plaintiff shall deliver to him a bond executed by two or more sufficient securities to be approved by him.</p> <p>3. -: Evidence: Admissions. In an action against a sheriff on his official bond under section 4484, Revised Statutes 1899, in which the plaintiff alleged that the sheriff had taken property from him in an action of replevin and delivered it to the plaintiff in that action without requiring a bond with sufficient sureties, the fact that the sheriff joined in a motion to require the plaintiff in the replevin suit to given a bond for coses at the return term of such case was not an admission that the original delivery bond given in the replevin suit was insufficient so as to relieve the plaintiff of the necessity of proving it to be insufficient by affirmative evidence.</p>

<p>DIVORCE: Pleading: Residence in the State. A petition for divorce ■winch contains no averment that plaintiff had resided within the State one whole year next before the filing of the petition, or that the grievances complained of were committed within this State, or whilst one or both of the parties resided therein does not state a cause of action of which a court in this State has jurisdiction. [Section 2924', Revised Statutes 1899.]</p>