Volume 129 — Missouri Reports

— Hon. W. W. Wood, Judge. (1) A judgment in ejectment against one not in possession is erroneous if not void. R. S. 1889, sec. 4633; Insurance Co. v. Cummings,13 Mo. App. 76; s. c., 90 Mo. 267; Shaw v. Tracy, 95 Mo. 531; LaRivierie v. Tracy, 97 Mo. 84; Tyler on Ejectment, p. 472.

<p>1. Practice: instructions: demurrer. The court should not give instructions based on allegations of the petition when no legal proof has been offered to sustain them. In such case, the court should direct the finding of the jury by mandatory instruction.</p> <p>2. Easement: damages: drainage. In an action for damages caused, by defendant by damming a ditch running across his land and used by plaintiff to drain his land, it must be shown, in order to recover, that an easement had been created either by direct deed of grant in favor of plaintiff or his grantor, or some servitude imposed by grant on the lands of defendant and in favor of plaintiff, or that plaintiff or his grantors had obtained a prescriptive right to the use of the ditch by long enjoyment of the easement claimed, under circumstances which raise an implication of title originally acquired by grant.</p> <p>S. License: right to enter upon land op another: drainage: revocation. A parol agreement giving the right to enter upon defendant’s land to construct and maintain a ditch for the drainage of water from plaintiff’s land is a mere license, revocable by defendant, and the damming of the ditch by the latter would constitute a revocation.</p> <p>4. -: -: revocation: easement. The long exercise of a mere right or privilege of the use by one person in, over or across the land of another will not create an easement therein, or burden the estate used in favor of the claimant, owner or estate benefited "by the use. Such use may amount to a mere license that may be revoked at the pleasure of the licensor, regardless of the length of time the privilege had been enjoyed.</p> <p>E. Easement: user: limitations. An easement in the estate of another can only be created by actual user, when such use has been open, adverse, exclusive, and uninterrupted for ten consecutive years.</p>

— Hon. Rudolph Hiezel, Judge. (1) Evidence of a gift does not support an- allegation of a transfer for valuable consideration. Hall v. Knappenberger, 97 Mo. 509. (2) An allegation that the owner of a negotiable note, “for a good and valuable consideration by indorsement, in writing, assigned, transferred and delivered” the note to plaintiff, is an allegation of a transfer for a valuable consideration.

— Hon. D. W. Shackleford, Judge. (1) Wherever it is the duty of the trial court, upon a proper request in a criminal case, to instruct the jury upon any material question of law arising on the evidence, it is equally obligatory upon it of its own motion to instruct the jury upon such matter, whether requested to do so or not. State v. Taylor, 118 Mo. 154.

— Hon. Reuben E. Ron, Judge. (1) To say that if plaintiff did not complain he was guilty of contributory negligence, and if he did complain he must have known and therefore assumed the risk, is to put the plaintiff through an ordeal but no trial. It is good provincial logic but nowise tolerable fallacy. Keegan v. Cavanaugh, 62 Mo, 230.

<p>1. Railroad: servants: safety of place fob work: negligence. A servant familiar with an elevated railroad track and voluntarily electing to work thereon can not recover of the company, for injuries received in falling therefrom, on the ground that it was not a reasonably safe place on which to work.</p> <p>2. -: -: OBSTRUCTION ALONG track: negligence. A railroad employee who is thrown down and injured from stepping on a grain door left along its track can not ^recover from the company, in the absence of any proof that the door was placed there by someone for whose acts the defendant would be liable or in the absence of evidence that the company had knowledge of the obstruction or by the exercise of ordinary care could have discovered it.</p> <p>3. -:-: independent contractor: negligence. A railroad company is required to keep its road track and yards in a reasonably safe condition for its employees and it can not avoid responsibility by letting out a part of its duties as a common carrier to an independent contractor.</p>

<p>Appeal from Jackson Circuit Court. — Hon. James Gibson, Judge.</p> <p>(1) The advertisement of sale sufficiently described the property. Newman v. Jackson, 12 Wheaton, 571; Schochv. Birdsall, 48 Minn. 441; Wilson v. Page, 76 Maine, 279; Dickenson v. Small, 64 Md. 395; Jackson v. Harris, 3 Cow. 241; Judd v. O’Brien, 21 N. T. 186; Colcord v. Bettinson, 131 Mass. 233; Beading v. Waterman, 46 Mich. 107; Nau v. Brunette, 79 Wis. 664; Loveland v. Clark, 11 Col. 265; Streetor v. Testy, 151 Mass. 291; Powers v. Keuckhoff, 41’ Mo. 425; Sumrall v. Chaffin, 48 Mo. 402; Stephenson v. January, 49 Mo. 465; Gray v. Shaw, 14 Mo. 341; Beatiev. Butler, 21 Mo. 313. (2) There is no evidence of the amount due on the note and the decree of the court is founded on a guess. (3) The decree is also erroneous because it finds a tender had been made to the defendant.</p> <p>(1) The sale under the trust deed was void because the advertisement did not describe the land to be sold. The language of the notice can not be held to describe a lot in Howard’s second addition. See Revised Statutes, 1889, section 7093. Wolff v. Ward, 104 Mo. 127. (2) The amount due on the note was capable of accurate computation. (3) A valid tender of the remainder due on the note was twice made. A tender to the president and cashier of the bank was sufficient. 7 Wait’s Actions and Defenses, p. 582. A tender before suit is not required to entitle plaintiff to his right to redeem.</p>

(1) The evidence in this case fails to show title in the plaintiff to the strip of ground in controversy. (2) The defendant’s road had been constructed and in operation more than two years before the time when plaintiff company undertook to cross. A court of equity will not try the question of title between two claimants to real estate nor will it oust one and put the other in possession. 1 Am. & Eng. R. R. Cases, page 12; People v. Simondson, 10 Mich. 335.

— Hon. Richard Field, Judge. (1) The weight of the evidence at the trial was with the plaintiff, and the court erred in dismissing plaintiff’s petition. (2) Under the pleadings and evidence, the plaintiff is entitled to judgment and decree for specific performance of the contract. Pomeroy on Specific Perf. of Contracts, sec. 46. (3) Part performance takes the case out of the statute of frauds; and the admission of the contract by the defendant’s answer has the same effect.

<p>1. Accident Insurance: action on policy: burden qe prooe. Where, in an action on a policy insuring against death from suchaeci dental injuries as shall be visible on the body, it is shown that deceased was found mangled on a railroad track, without any evi dence disclosing how the accident occurred, the burden of proof is on defendant to show that the death resulted from a violation of some of the conditions of the policy specially pleaded as a defense.</p> <p>2. -: -: deceased: presumption as to care. The law presumes, in the absence of evidence to the contrary, that the deceased was in the exercise of due care, and this presumption is not rebutted by the unexplained fact that he was found injured on a railroad track.</p> <p>3. Practice: instructions: waiver. Defendant can not complain, of an instruction given for plaintiff as ignoring facts tending to establish the defense when the theory of the defense was clearly brought out by the instructions afterward given at defendant’s reguest.</p> <p>4. Accident Insurance : policy: “roadbed.” A space of ten feet between railroad tracks is not the “roadbed” within the meaning of a poliey of accident insurance which provides that it does not insure against accidents “on a railroad bridge, trestle or roadbed.”</p>

— Hon. J. H. Slover, Judge. (1) There was no variance at all between the allegations and the proof, because there was sufficient evidence tending to show the conspiracy alleged. Peterson v. Speers, 29 Pa. St. loc. cit. 491; State v. Wolcott, 21 Conn. loc. cit. 281; Mussel Slough Case, 5 Fed. Rep. 680; 2 Wharton’s Evidence [3 Ed.], sec. 1205; Biehl v. Ass’n, 104 Ind. 73; Keeley v. State, 55 N. Y. 566; Bloomer v. State, 48 Md. 525; Schultz v. Christian, 9 Mo.

— Hon. Richard Field, Judge. (1) The trial court committed error in not removing the directors of the coal company as prayed for by plaintiffs. (2) Dealings such as presented in the case at bar will be jealously scrutinized when questioned and a court of equity will make directors account to the corporation for all profits made in the use of the corporate property or caused to be diverted from its treasury.

— Hon. Argus Cox, Judge. (1) This case should be simply reversed. The respondent has no standing in court and demurrer to the evidence ought to have been sustained. Respondent’s evidence showed a conveyance to husband and wife which constitutes an estate in entirety. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Modrell v. Biddle, 82 Mo. 31; Corrigan v. Tiernay, 100 tied to the possession during their joint lives.

<p>1. Deed of Trust: foreclosure sale: emblements. A deed of trust to secure a loan provided that the grantor became tenant of the trustee until there should be a sale, in event of default. The grantor leased the land for a year and his lessee paid the rent in full; but, before the close of his term, the creditor proceeded to have the land sold to pay the secured debt; the purchaser at the trustee’s sale at once claimed the crops then growing on the land, but the lessee gathered them, before quitting possession. In an action for the value of the crops, between the purchaser and the lessee, it was held that the former could not recover.</p> <p>2. -: NOTICE OF SALE: COMPUTATION OF time. A notice of a trustee’s sale, to occur June 18, was published in a.weekly news paper from May 19 to June 16, inclusive, and it was held a compliance with the requirement in a deed of trust for an advertisement of such sale for thirty days.</p> <p>3. -: -. The printer’s affidavit of publication of notice of a trustee’s sale omitted to mention the first publication, but proof thereof was otherwise given on a trial of title. The omission does not vitiate the sale.</p> <p>4. -: -: computation of time. The time within which an act is to be done under a statute is computed by excluding the first day and including the last, unless the latter be Sunday, and unless a different intent is manifested. This rule should be applied to contracts where the parties have indicated no other meaning.</p> <p>5. -: foreclosure sale: “courthouse door.” A deed of trust required a sale thereunder to be held “at the door of the courthouse in the county,” etc. There were two courthouses in the county in question; a sale at the one located at the county seat was held valid.</p> <p>6. Practice: reply: waiver. Where parties have tried a cause on the circuit as though new matter in an answer was at issue, it is too late on appeal to urge that the new matter was admitted by failure to reply.</p> <p>7. Appellate Practice: instructions. The facts, disclosed by plaintiff’s personal evidence and by his documents, show that he has no right of action, and there was a finding for defendant. The rulings on instructions are then immaterial.</p> <p>8. Constitution: supreme court jurisdiction: title to real estate. Where the result of a litigation may depend on a question of the validity of a trustee’s sale of real estate, and that issue is presented on appeal, as it was in the trial court, the cause involves title, and comes within the constitutional jurisdiction of the supreme court, although the question was decided in favor of the respondent in the circuit court.</p> <p>9. Notice by Publication: stare decisis. The rule stare decisis should be strictly observed in applying the law touching the giving of notices by publication.</p>

— Hon. W. S. Herndon, Judge. (1) Damages for mortification, shame, disgrace and dishonor were not recoverable under the allegation in the petition of damage to reputation. Moffat v. Conklin, 35 Mo. 453; Camp v. Heenan, 43 Mo. 591; Bankv. Murdoch, 62 Mo. 70; Waddingham v. Hulett, 92 Mo. 528; Mays v. Pryce, 95 Mo. 604. (2) The use of the term “substantially those words” in the instructions given was error.

<p>1. Justice’s Judgment: dismissal of appeal: execution. Where an appeal is taken to the circuit court from a justice’s judgment, and the appeal is afterward dismissed for failure to give an additional appeal bond, the justice's judgment becomes valid, and will support an execution sale based on a transcript of the original judgment, filed in the circuit clerk’s office, although the transcript was filed before the appeal was dismissed.</p> <p>2. -: execution: notice. No notice to defendant in an execution based on a justice’s transcript is necessary where defendant does not reside in the county when the process issues.</p> <p>3. Constitution: jurisdiction of supreme court: "title to real estate.” An appeal to review action of a circuit court, setting aside an execution sale of land, involves title to real estate within the meaning of the constitution, defining the jurisdiction of the supreme court.</p> <p>4. Appeal: order setting aside execution: statute. An appeal will lie from an order setting aside a sale on execution, under the act of 1891 (Laws, 1891, p. 70), as it is a "special order after judgment” in the cause.</p> <p>5. Practice: revie-jv of rulings: exceptions. . Necessary exceptions for reviewing rulings of the trial court must be taken immediately upon the rulings; but it is sufficient if the recitals of the bill show, by fair inference, that the exceptions were so taken.</p> <p>6. Bill of Exceptions.' A hill of exceptions should receive a reasonable construction, and the substance of its recitals have effect.</p> <p>7. Execution: presumption. An execution should be regarded as properly issued until the contrary appears.</p>

— Hon. D. W. Shackleford, Special Judge. (1) The indictment is fatally defective because it fails to conclude 1 ‘against the peace and dignity of the state,” as required by the constitution of the state. Constitution, art. 6, sec. 38; State v. Stacy, 103 Mo. 11; State v. Pemberton, 30 Mo. 376; State v. Lopes, 19 Mo. 254; Williams v. State, 27 Wis. 402; Lemons v. State, 4 W. Ya. 755; 10 Am. & Eng. Encyclopedia of Law, p. 513, et seg.

<p>l. Constitution: enjoyment op lies, liberty and property: coincident rights. The constitutional guarantee of the enjoyment of life, liberty and property carries with it, as its natural and necessary coincident, all that effectuates and renders complete the full and unrestrained enjoyment of the right guaranteed.</p> <p>2. -: -: contract. The constitutional guarantee of the enjoyment of the right of property includes the right to acquire property by labor and by contract and of terminating a contract at pleasure, being civilly liable for any unwarranted termination.</p> <p>3. -: -. Depriving an owner of property of one of its essential attributes is depriving him of his property within the meaning of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law.</p> <p>4. -: -: law of the land: due process of law. The “law of the laud” and “due process of law” are legal equivalents, and the constitutional guarantee that no one shall be deprived of life, liberty or property without due process of law means that their enjoyment shall be controlled by the general rules which govern society, and not that anything which passes under the form of an enactment shall be considered the law of the land.</p> <p>5. -: -: due process of law: employer and employee: labor unions: COERCION. The act of March 6, 1893 (Laws 1893, p. 187) prohibiting an employer or other person exercising authority over certain employees from contracting with the latter to withdraw from any trade or labor union or other lawful organization, or to refrain from joining such organization or from attending any lawful meeting or assemblage and forbidding an attempt, by any means, to compel or coerce any employee into withdrawing from any lawful organization, is violative of section 30 of article 2 of the constitution of Missouri and the fifth amendment to the constitution of the United States, declaring that no one shall be deprived of life, liberty or property without due process of law, and of section 1, article 14 of the constitution of the United States forbidding that any state deprive any person of life, liberty or property without due process of law.</p> <p>6. -: -: -:-:-:-. Said act is unconstitutional upon the ground of being class legislation, inasmuch as it does not relate to all workingmen, but only to those who belong to some lawful organization or society.</p> <p>7. -: legislation: police regulation. Rights guaranteed to a. citizen by the constitution can not be abridged by legislation under the guise of a police regulation.</p>

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Plaintiff is a purcliaser for value because the discount of the note operated an extension of the time of payment of the debt caused by the overdraft. Cass County v. Oldham, 75 Mo. 52; Martin v. Nixon, 92 Mo. 26; Deere v. Marsden, 88 Mo. 512; Napa Valley Wine Co. v. Binehart, 42 Mo. App. 172. (2) It operated an extension, though not expressly stipulated.

— Hon. H. C. Riley, Judge. (1) In ejectment plaintiffs must recover on the strength of their title and must show title. Duncan v. Able, 99 Mo. 188; Marvin v. Elliott, 99 Mo. 616; Foster v. Evans, 51 Mo. 39. (2) Plaintiffs must show that •county owned land and had the right to issue patents. R. S. 1889, secs. 6464, 6513 and 6514. Stephenson v. ■Stephenson, 71 Mo. 127; Cramer v. Keller, 98 Mo. 279; Funkhouser v. Peck, 67 Mo. 19; Jasper County v. Wodlow, 82 Mo. 172.

— Hon. D. P. Stratton, Judge. (1) A party can not sue on one contract and recover on another. Broning v. Walburn, 45 Mo. 477; Smith v. Shell, 82 Mo. 215; Crum v. Cummings, 69 Mo. 325; Feurth v. Anderson, 87 Mo. 354; Sisneyv. Arnold, 28.Mo. App. 568. (2) A suit brought by a party upon a contract made for his benefit by one assuming to act as his agent, is a ratification of the contract and is equal to a previous authorization.

<p>1. Executory Contract: partnership: dissolution: repudiation. Where an executory contract is made between an individual and a partnership composed of two others, and one of the parties withdraws from the partnership, thereby dissolving it, it is for the party contracting with the firm to say whether or not the contract shall proceed to completion, it appearing that it rested upon grounds of personal trust and confidence.</p> <p>2. -: -: -: practice: pleading: estoppel. In an action upon a contract, made by an individual with a firm composed of two others, by one member of the firm to whom the contract has been assigned after the dissolution of the partnership, the defendant will not be estopped to repudiate the contract upon the ground that he recognized its existence after the dissolution, where the petition does not allege that he so recognized it after the dissolution, and after receiving notice of the same.</p>

1. Attorney: disbarment: supreme court. A proceeding to disbar an attorney for professional misconduct in the supreme court may be instituted therein on the relation of the attorney general. 2. -: -: mutilation of record.

Proceeding to Disbar. The trial of Joseph Howell, indicted for murdering Nettie Hall, in Linn county, Missouri, on the nineteenth of January, 1889, and matters… Held: that this was a sufficient fraud or deceit to authorize the attorney’s disbarment. Bice v. Comm., 18' B. Mon. 472. An attorney who deceives the court by bringing a collusive suit on a fictitious note to enable a creditor to escape bankruptcy, is subject to disbarment. In re Nathby, 14 Cent. L. J. (Cal.) 90.

— Hon. W. M. Robinson, Judge. (1) The plaintiff having acquired the note in suit before maturity as collateral security for a debt of over $6,000 is a holder for value. Fitzgerald v. Barlcer, 96 Mo. 665, and authorities cited therein; Banlcv.Holland, 38 Mo. 49; Deere v. Marsden, 88 Mo. 512; Crawford v. Spencer, 92 Mo. 498. (2) In the case at bar the defendant by retaining the property for which the note was given has waived any fraud of the payee in obtaining it.

Louis City Circuit Co'mt. — Hon. Daniel Dillon, Judge. (1) The demurrer to the original petition should have been overruled. Gregory v. McCormick, 120 Mo. 657; Burnett v.' Crandall, 63 Mo. 410. (2) The motion to strike out the amended petition should have been overruled. Scovillev. Glasner, 79 Mo. 449; Lumpkin v. Collier, 69 Mo. 170; Lottman v. Barnett, 62 Mo. 159; Barnes v. Prewitt, 28 Mo. App. 163; R. S. sec. 2088; Association v. Dubach, 82 Mo. 475.

— Hon. John A. Hockaday, Judge. (1) Parts of fractional quarter of section 4, township 48, range 15, were never submerged, and when the water receded from the submerged portion the rest of it, with all accretions thereto, could be identified and its boundary ascertained. Buse v. Bussell, 86 Mo., 209; Murly v. Norton, 100 N. Y. 426; Grould on Waters [2 Ed.], sec. 158; Cooley v. Golden, 117 Mo. 48; St. Louis v. Ruts, 138 U.. S. 245.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The court properly overruled the motion for a nonsuit and declarations of law numbers 1 and 5 of the defendant, whereby the defendant claimed a right under the terms of the contract in evidence to terminate the contract at its own volition. Defendant can not violate a contract, and then to avoid liability assert it abrogated it. Murray v. Kansas City, 47 Mo. App. 105.

— Hon. B. E. Tubneb, Judge. (1) Service on the mayor and the clerk, and certain other persons, is not a compliance with this statute. “The service of a summons on a party in his individual capacity gives the court no jurisdiction over him in his representative capacity.” Doering v. Kenamore, 36 Mo. App. 150; Blodgett v. Schaffer, 94 Mo. 652. (2) Notice as required by the statute must be given in appeals in condemnation proceedings. Klein v. Railroad, 30 Minn. 451.

— Hon. D. P. Stratton, Judge. (1) The first count of the petition fails to state a cause of action, pleads only a legal conclusion. Pier v. Heinrichoffen, 52 Mo. 336;- Waldhier v. Railroad, 71 Mo. 516; Harrison v. Railroad, 74 Mo. 369; Nichols v. Larhin, 79 Mo. 271; Gurley v. Railroad, 93 Mo. 450. (2) The court should have sustained a demurrer to the evidence on the first count.

' — Hon. W. S. Herndon, Judge. (1) “Words in general are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be… Held: that the heirs of E were entitled collectively to one-sixth of the residue. Balcom v. Hayes, 96 Mass. 204; Bassets v. Granger, 100 Mass. 348.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The act of April 21, 1891, known as the foreign corporation law, is highly penal and must be strictly construed. State to use v. Railroad, 19 Mo. App. 104; Paris hv. Railway, 63 Mo. 284; State v. Bryant, 90 Mo. 534. (2) The agreed facts show no failure “to comply with the conditions of this law” or no fa.ilure “to comply with this act.” Livingstonev.

<p>1. Supreme Court: jurisdiction: constitution. The supreme court has no appellate jurisdiction of a mere pecuniary sum where it does not affirmatively appear that the amount in dispute exclusive of costs exceeds the sum of $2,500.</p> <p>2. -: -: -: title to land. Where there are two claimants to the fund paid into court in a condemnation proceeding, the title to land is not involved so as to give the supreme court appellate jurisdiction.</p>

Louis County Circuit Court. — Hon. Rudolph Hibzel, Judge. (1) The court erred in refusing defendant a continuance on the ground of surprise and in not granting defendant a new trial for the same reason. Upon the introduction by plaintiff of testimony tending to show epilepsy, defendant promptly made known its surprise and asked the court for time to prepare and call counter proofs. Albert v. Teller, 31 Mo.

— Hon. Richakd Field, Judge. (1) The plaintiff having failed to give any proof of the appointment and consent of the next friend to act as such and the point having been saved by a demurrer to the evidence, the judgment will have to be reversed. Porter v. Railroad, 60 Mo. 160; Sherman v. Railroad, 72 Mo. 62. (2) The court erred in refusing at the close of the evidence for the plaintiff, and at the close of all of the evidence to instruct a verdict for the defendant.

— Hon. D. W. Shackleford, Judge. (1) The trial court erred in /'sustaining the demurrer to the evidence; under the statutes of this state, the will was sufficiently proven. R. S. 1889, sec. 8870. The signature of the testator by mark was a good execution of the instrument, both under the statute of wills and the statute of frauds. Calleit v. Callett, 55 Mo. 330; 2 Green. Ev., sec. 674; 1 Green. Ev., see. 272; 1 Woerner, Law of Administration, sec. 39.

— Hon. James M. Sandusky, Judge. (1) The instruction number 14 given by the court of its own motion was clearly erroneous. Knowledge obtained privately by a director in a bank can not be imputed to the bank, unless it is shown to have been communicated to the bank. Johnston v. Shortridge, 93 Mo. 227; Hyde v. Larkin, 35 Mo. App. 365; Savings Ass’n v. Printing Co., 25 Mo. App. 642; Bank v. Schaumberg, 38 Mo. 228; Hayward v. Ins. Co., 52 Mo. 189.

<p>1. County School Commissioner: quo warranto: information: demurrer: appellate practice. Where, in. the proceeding, in the nature of a quo wa/rranto, founded on an alleged intrusion into the office of county school commissioner, defendant fails to stand on his demurrer, which was a general one, he can, on appeal, only urge objections to the information going to the cause of action.</p> <p>2. -:-:-:-. An information is sufficient, in such case, as against a general demurrer, which charges that defendant, on a designated date, unlawfully intruded himself into and usurped said office of county school commissioner and now claims to hold it and to rightfully perform its duties by virtue of his election, at which time he did not hold a certificate entitling him to teach in the public schools of the county.</p> <p>3. Evidence: appellate practice: harmless error. Error, in the admission of evidence, purely technical and not affecting the merits of the case, is not sufficient ground for a reversal of the judgment.</p> <p>4. County School Commissioner: quo warranto: information. In an information in a quo warranto proceeding to test defendant’s right to the office of school commissioner, evidence that defendant accepted a commission as such officer issued pursuant to an election, that he demanded the books and other effects of the office from the relator, that he furnished the county court a list of names from which to select institute examiners, together with the fact that in:his answer he claimed to hold the office, sufficiently shows relator’s interest in the office and defendant’s intrusion.</p> <p>5. County School Commissioner, Qualifications of: teacher’s certificate. Under Revised Statutes, 1889, section 8028, one must, when elected, have a teacher’s certificate in order to qualify him to hold the office of county school commissioner.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. • (1) The evidence does not sustain the finding of the referee and the judgment of the court. (2) The court erred in the admission of improper evidence offered by plaintiff, i. e., that of Collins, Roberts, and transcript in Malone v. Collins. Bank v. Outhwaite, 50 Mo. App. 124. (3) The court erred in the exclusion of proper evidence offered by defendant, i. e., the letters of Collins.

Louis City Circuit Court. (1) Defendant acquired, under city ordinance number 15377, no right or authority to construct its tracks on Hall street, so as to obtain a monopoly of the use of the street and so as to destroy the same for the purposes for which it was dedicated, to wit, for the use of the public generally.

— Hon. B. E. Turner, Judge. (1) The petition does not allege that plaintiff was the owner of the stock at the time of the fire. This was a necessary allegation. Defendant’s objection to any evidence under the petition should, therefore, have been sustained, and for the same reason its demurrer to the evidence should have been sustained. Summers v. Ins. Co., 53 Mo. App. 521; Ins. Co. v. Creton, 98 Pa. St. 451; Gere v. Ins. Co., 67 Iowa, 272; Grant v. Ins. Co., Law Can. 128.

<p>1. Corporation: special charters: construction. Charters obtained under special legislative grants will, in case of doubt, be construed most strongly against the grantees.</p> <p>2. Business Corporations: charters: unlimited duration. The policy of Missouri as indicated by its general legislation is unfavorable to the unlimited duration of purely business corporations, and all doubts in corporate charters should be resolved against such an intention.</p> <p>3. -: -: -: statute. Revised Statutes, 1855, page 369, section 1, declared that every corporation "should havé succession by its corporate name for the period limited in its charter, and where no period is limited, for twenty years.” The act of the legislature of February. 20,1865, incorporating the Kansas City Gaslight and Coke Company, provided that the company should have perpetual succession and that it should have exclusive right to manufacture gas and coke in the city for thirty years. Held, that, the term “perpetual succession” was intended to confer continuous succession so long as the corporation continued in existence and not to define its duration, and therefore the corporation ceased to exist at the end of thirty years.</p>

— Hon. D. W. Shackleford, Special Judge. Held: the act of 1872 to be unconstitutional and invalid for the reasons hereinafter given. (2) The title of the act of 1872 was as follows: “An act to better define the boundary lines between New Madrid, Scott, Stoddard and Wayne counties.” The title only indicated that the act was to “better define” — not to change the boundaries.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The action of the court, in making the order of reference to this referee, was in derogation of the statute, unauthorized and void, and conferred no power or authority upon the referee. R. S. 1889, secs. 461, 462. Denny v. Manhattan Co., 2 Hill, 220; Caulk v. Blythe, 55 Mo. 293; Walton v. Walton, 17 Mo. 376.

— Hon. James D. Eox, Judge. (1) Upon this record it seems to be clear that the defendant acquired title to the property in dispute by limitation. Tiedeman on Real Property, p. 326, sec. 326; Bush v. White, 85 Mo. 339; Scruggs ,v. Scruggs., 43 Mo. 359; Musich v. Barney, 49 Mo. 464; Rogers v. Brown, 61 Mo. loe. cit. 159; 4 Kent's Com. [Ed. 1868], top page 186, side page 187, side page 190; 3 Washburn on Real Property [5 Ed.], p. 337; Lewis v. Schwenn, 93 Mo. 26.

— Hon. E. L. Edwaeds, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. (2) Plaintiff’s evidence failed to make out a case, and the demurrer to the evidence should have been sustained. (3) The plaintiff and the person who threw the message and lump of coal from the train were fellow servants, and even if the latter was negligent plaintiff can not recover. Eor this reason the court erred in giving the plaintiff’s second instruction.

-ABO'S. B. E. Turner, Judge. (1) The making of the last will similar to the first indicates that the insane delusion was continuous. Rucas v. Parsons, 27 Gra. 593; Bitner v. Bitner, 65 Pa. St. 347.

— Hon. W. M. Robinson, Judge. The ordinances called for in the opinion are as follows: ORDINANCE NO. 35. “Be it ordained by the] board of aldermen of the city of Aurora, as follows: “Section 1. Held: as provided by said ordinance,' as it appears by the returns of the judges and clerks thereof, duly returned and certified as follows: In the First ward the total number of votes cast amounted to three hundred and fifty-four.

Mandamus. (1) The right to a mandamus is based upon the fact that the dissenting judge deemed the majority decision to be contrary to prior decisions of this court. That fact being established, the right to the writ is absolute.

<p>1. Pleading: petition: waiver: objections on appeal. A defendant by pleading to the merits waives all merely formal defects of the petition, and can raise no objections thereto on appeal except that It fails to state a cause of action or that the court has no jurisdiction of the subject-matter of the suit.</p> <p>2. Appellate Practice: estoppel: negligence. Where, in an action for personal injuries received by plaintiff while in the defendant’s sei’vice, both parties try the case on the theory that the injury was caused by defective machinery and not by the negligence of a fellow servant, the judgment will not be reversed on the ground that the injuries sued for were caused by the conduct of the fellow servant.</p> <p>3. -:-: instructions. An appellant will not be heard to complain of an instruction as erroneous where it invited the error complained of.</p> <p>4. -: inconsistency in petition: waiver. An objection, if available at all, that the petition states two inconsistent grounds of recovery should be raised by a motion requiring plaintiff to elect, otherwise it will not be considered on appeal.</p> <p>5. -: evidence: verdict. The supreme court will reverse a judgment on the ground of the insufficiency of the evidence to sustain the verdict only where there is no substantial evidence to support it.</p> <p>6. Negligence: personal injury: proximate cause. Where, in an action for injuries caused by being struck by a stick thrown from a machine, there is evidence that plaintiff, prior to the accident, had no symptoms of consumption and that this disease afterward attacked him, and several physicians testify that the disease could probably be attributed to such injury, the question whether the blow was the proximate cause of the disease is properly submitted to the jury.</p> <p>7. -: -: -: expert witness. One who has practiced as a physician for twenty-five years is competent to testify as an expert in such case that the blow could have caused the pulmonary trouble, though he states that he is not a specialist in the treatment of consumption.</p>

— Hon. James D. Eox, Judge. (1) “The necessity,. expediency, or propriety of exercising the power of eminent domain, and the extent and manner of its exercise, are questions of general public policy and belong to the legislative department of the government. They have nothing to do with the question of what constitutes a public use.” Lewis on Eminent Domain, sec. 162; State ex rel. v. Engelmann, 106 Mo. 628; Dickey v. Tunis on, 27 Mo. 373; Uoimty Cou/rtv.

<p>1. Criminal Practice: disqualification of regular judge: judge OF ANOTHER CIRCUIT CALLED IN: POWERS OF LATTER: STATUTE. Where a judge, who is disqualified, under Revised Statutes, 1889, section 4174, from trying a criminal cause in which his son is the defendant, requests, under Revised Statutes, 1889, section 4178, without ordering the election of a special judge, the judge of another circuit to try the case, and such other judge appears in court on the day named and accepts the appointment, he becomes vested for the trial of the cause with all the powers and duties of the circuit judge of the circuit, and can not be divested of his authority by any subsequent action of the regular judge, or by the election of a special judge thereafter.</p> <p>2. -: -: -: record recitals. ■ It is not necessary for the record in such eases to recite the fact that the regular judge is of the opinion that no suitable person can be elected special judge before he requests the judge of the other circuit to try the cause in which the former is disqualified.</p> <p>3. -: -: -: jurisdiction. Where the judge of the other circuit responds to the request to try the cause in which the regular judge is disqualified, the jurisdiction of the former attaches from the time of his appearance until the final determination of the cause.</p> <p>4. -: -: -: supreme court: prohibition. The supreme court will, by the writ of prohibition, prevent the regular judge and a special judge subsequently elected, from interfering with the exercise •of his rightful powers by the judge of another circuit so requested by the regular judge to try a cause in which the latter is disqualified.</p>

— Hon. J. H. Sloven, Judge. (1) If upon the pleadings and evidence the plaintiff could not recover, then the plaintiff was not entitled to a new trial on account of errors occurring during the trial, and the court below was in error in granting a new trial.

<p>1. Practice: contract of renting: petition: answer: statute of frauds. In an action for rent, where the petition sets forth a eon-tract of renting at a monthly rental in advance, and the entry and occupation of the premises hy the defendants, and the answer neither denies the contract nor admits it, and pleads the statute of frauds, the statute can not he availed of as a defense upon the trial.</p> <p>2. -: parol contract: performance: statute of frauds. The complete performance of a contract, not in writing, by one contracting party preeludes the other from interposing the statute of frauds as a defense to an action upon it.</p> <p>3. -: parol lease: performance: statute of frauds. Where the lessor completely performed the contract on his part by putting the lessee in possession, and the latter voluntarily quit before the expiration of his term, he can not defeat an action for rent for the remainder of the term upon the ground that the contract was within the statute of frauds and the lessor could have expelled him by giving him thirty days’ notice.</p> <p>4. Lease .under Seal: agent: ratification: statute of frauds. A lease, under seal, executed by one purporting to be the agent of the owner, may be ratified by the latter so as to take it out of the statute of frauds, such statute not requiring a lease to be under seal.</p> <p>5. -: -: -: -. Putting the lessee in possession by the owner, in such case, and the acceptance of rent by the latter in conformity with the terms of the lease constitute ratification.</p> <p>6. Lease: possession of lessee: estoppel. A lessee who enters into possession under a lease and enjoys the advantages conferred by its terms, will be estopped from denying its validity, although it be ' formally invalid.</p> <p>7. -: notice of intention to quit. A lessee of land from tenants in common must serve notice of his intention to quit on each of the lessors.</p> <p>8. -: -: service by mail. Notice to quit served on the lessor by the lessee by mailing a stamped letter to the former is sufficient, but where there is no evidence that the letter so mailed was stamped, it will not constitute prima facie evidence of service of notice.</p> <p>9. -: -: SUBLETTING PART of premises. A lessee who sublets a portion of the leased premises can not quit by surrendering possession of the part retained, so as to escape payment of rent for the whole.</p> <p>10. -: -: -. Notice to quit, served on the subtenant by the lessee, in this ease held insufficient.</p> <p>11. -: SUBLETTING PART OF PREMISES: AGREEMENT BY SUBTENANT to pay rent. Agreement by a subtenant to pay rent to the landlord will not exonerate the tenant from payment of rent for the part of the premises sublet, unless the landlord accepted the subtenant as his tenant.</p>

<p>Appeal from Jackson Circuit Court. — Hon. John W. Henry, Judge.</p> <p>(1) The garnishee, the Missouri, Kansas & Texas Railway Company, is not liable to garnishment on account of articles delivered to it for transportation. Hutchison on Carriers [2 Ed.], secs. 402, 403; Waples on Attachment, 601; Bates v. Railway, 60 Wis. 289; Railroad v. Coll, 48 111. 402; Painter v. Railroad, 15 Neb. 394. (2) The title to the property and the right to receive delivery may be transferred by an assignment of the bill of lading. The carrier can not know where the bill of lading is, and therefore can not know how to answer. (3) If it is the meaning of the Missouri statute on garnishments, that a common carrier is liable to garnishment on account of property delivered to it for transportation from one state to another, then the statute is' void as being a regulation of interstate commerce.</p> <p>(1) The appellant was subject tp garnishment under the express provisions of the statute. R. S. 1889, sec. 543. See, also, Adams v. Scott, 104 Mass. 164. (2) The evidence shows that the car of lard in controversy was garnished in Jackson county and while the car was in the railroad yard at Kansas City. Appellants cases are not applicable. (3) In Bates v. JRailroad, 60 Wis., the facts were -undisputed and showed that the goods when the garnishment was served were not in the state of Wisconsin where, the .suit was brought, but were in the state of Illinois. The next case cited, Bailroad v. Cobb, 48 111. 402, is not in point, because in this case the goods were in transit to such an extent that they were at the time of the service of the garnishment in a different county from the one in which the suit was brought. In Painter v. Bailroad, 15 Neb. 394, the question decided was as to the right ofjstoppage in transit.</p>

JError to Cape Girardeau Circuit Court. — Hon. H. C. O’Bryan, Judge. (1) The insurance on the life of John H. Clark was procured by his wife, Caroline, and by the terms of the policy as well as under the provisions of section 15, chapter 115, General Statutes, 1865, the proceeds were payable to her. The heirs of the husband had no interest in the fund. G. S. 1865, p. 464, sec. 15; 2 Wag.