Volume 134 — Missouri Appeal Reports

— How-. W. D. Bush, Judge. (1) The consideration of the lessee’s undertaking to pay rent is the quiet, peaceful and indisputable possession of the premises leased, and is in its nature a condition precedent to the payment of rent. If the lessor by any wrongful act disturbs that possession which he should protect and defend he thereby forfeits his right and the lessee may abandon the possession of the premises leased and thereby exonerate himself from liability to pay rent.

— Ron. Joshua W. Alexander, Special Judge. filed no briefs. (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. Quinn, 170 Mo. 176, 94 Mo. App. 59; State v. McCord, 106 S. W. 27. (2) The Local Option Law was regularly adopted by the qualified voters of Harrison county, prior to the sale of the liquor in question, and the court properly instructed the jury to that effect.

<p>1. MUNICIPAL CORPORATIONS: Defective Streets: Negligence: Evidence. Evidence held ample to support a finding of negligence on the part of the defendant city and of a want of contributory negligence on the part of the plaintiff.</p> <p>2. -:-: Instructions. Certain instructions when considered separately are not models, but as a series there is no doubt whatever that no ill effect was produced upon the jury.</p> <p>3. -: -: Notice. Held, on the facts there was no question of notice in the case.</p>

— Hem. George W. ~Wanamaker, Judge. (1) The hale of wire unnecessarily left lying in the highway by defendant’s employees was calculated to frighten horses of ordinary gentleness and was a nuisance, and defendants are liable for damages resulting to plaintiff by reason of the injury she received, resulting from the defendants unnecessarily leaving the wire in the highway. 15 Am. & Eng. Ency. of Law (2nd Ed.), 446. Ayer v. Norwich, 39 Conn. 376, 12 Am.

— No». William 0. Ellison, Judge. (1) No replication was filed by plaintiff in this case, and hence, the new matter set up in defendant’s answer was by'force of law admitted, and entitled the defendant to a judgment. Defendant raises this point in his motion for a new trial. Mullins v. Martins, 23 Mo. App. 543, R. S. 1899, sec. 607. (2) We wish to call special attention to section 897, Revised Statutes 1899.

— Son. Hugh Dabbs, Judge. (1) The court erred iu overruling the motion to compel plaintiff to elect on which cause of action set up in the petition he would go to trial. E. S. 1899, secs. 1103, 9554; Clancy v. Transit-Co., 192 Mo. 640; McHugh v. Railroad, 190 Mo. 85; Behen v. Railroad, 186 Mo. 430. (2) The court erred in overruling the defendant’s motion to strike out parts of the plaintiff’s petition. Low-enstein y. Railroad, 110 Mo. App. 689.

— Eon. George W. Wanamaher, Judge. (1) The Non-Forfeiture Statutes has no application to this case because the contract is an assessment contract in fact and not«an “ordinary life policy,” “limited life policy,” or “continued payment endowment policy,” which are the only contracts affected by the Non-Forfeiture Statute. Westerman v. Supreme Lodge, 196 Mo. 670, 94 S. W. 486.

— Hon. Ohesley A. Mosman, Judge. (1) The only issue in the case was whether the notches were worn so that they would not stay in place. The shifter to which the notches belonged was shown to the court below, and is seen by the court here. It is a physical demonstration that the notches were not in the condition the plaintiff alleged them to be.

— Hon. Hugh Dabbs, Judge. (1) The right of way license, was executed for a good consideration, was valid and binding, is not against public policy or void, and is such a contract as defendant railroad company has a right to enter into between itself and parties desiring to put buildings or do business upon its right of way, and has been upheld uniformly by the courts of this and other States. Insurance Co. v. Railroad, 94 Mo. App. 89; Insurance Co. v. Railroad, 94 Mo.

— Eon. Walter A. Powell, Judge. (1) The information wholly fails to charge any offense against the appellant, and the judgment thereon is a nullity. R. S. 1899, sec. 1617; R. S. 1899, sec. 2045; Stuart v. People, 4 Ill. 895; In re Reese, 107 Fed. 942. (2) The evidence wholly fails to sustain any charge of criminal contempt and the judgment is unsustained by any evidence. State v. Davis, 112 N. H. 349; Peacey v. Railroad, 162 Mo. 107; Kennedy v. Holliday, 105 Mo. 36.

— Eon. Chas. A. Den-ton, Judge. (1) The deposit on June 25, 1906, was a general deposit, and thereby the relationship of debtor and creditor became established between the Bates National Bank and B. T. Becker. Paul v. Draper, 158 Mo. 200; Kava-naugh v. Burk, 59 Mo. App. 1. c. 547; Bank v. Roll, 60 Mo. App. 585. (2) The deposit was not a bailment.

— Hon. Henry L. Mo-Gune, Judge. (1) The statute under which this action was instituted provides that “from the commencement of an action . . . the attorney . . . has a lien upon his client’s cause of action . . . which attaches to a verdict ... or judgment in his client’s favor, and the proceeds thereof in whosoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.” Laws 1901, p. 46. Curtis v. Railroad, 118 Mo.

— Hon. Frmicis H. Trimble, Judge. (1) The court erred in giving the peremptory instruction for plaintiff. The chattel mortgage to J. R. Ware did not show a superior outstanding title, because, it was recorded in the wrong county. Dry Goods Co. v. Daily, 198 Mo. 687; 6 Cyc., page 1084; Martin Perrin Merc. Co. v. Perkins, 68 Mo. App. 310; Buggy Co. v. Woodson, 59 M'o.. App'. 550; State ex rel. v. Stilington,. 51 Mo. App. 252.

— Hon. George W. Wcmamalcer, Judge. (1) The trial court erred in overruling appellant’s motions requiring plaintiff to elect and to Strike out. Mooney v. Kenneth, 19 Mo. 553; Otis v. Bank, 35 Mo.. 131; Soutinvorth Co. v. Lamb, 82 Mo. 248; State ex rel. v. Siegenhein, 103 Mo. 569; Christal v. Craig, 80 Mo. 367, 370; Kendrick v. Railroad, 81 Mo-. 521; Childs v. Railroad, 117 Mo. 437; McHugh v. Transit Co., 190 Mo. 94; Kern v. Pfaff, 44 Mo.

— No». John P. Butler, Judge. (1) The court erred in giving the instruction in the nature of a demurrer upon the first count at the close of all the evidence. There was evidence upon which to submit this count to the jury. (2) The plaintiffs had the right to have their case submitted to the jury upon both counts, the counts not being repugnant and stating the same cause of action upon different but consistent theories.

Louis City Circuit Court. — No». Jas. E. Withrow, Judge. (1) The statute relating to mechanic’s liens is highly remedial to its nature and should receive a liberal construction in favor of. the lienor. DeWitt v. Smith, 63 Mo. 263; Waldon v. Robertson, 120 Mo. 38; Hicks v. Scofield, 121' Mo. 381; O’Shea v. O’Shea, 91 Mo. App. 221.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) The original affidavit to the claim, in prohate court, the amended affidavit and the oral affidavit taken during the trial in circuit court were insufficient to give the court jurisdiction. They are not even a substantial compliance with the statute. It is not stated in any of them that the agent, Geo.

Louis City Circuit Court. — Eon. Matt. G. Reynolds, Judge. Tbe defendant’s evidence as to tbe razors being warranted by plaintiff was insufficient as a matter of law for tbe following reasons: 1. Tbe alleged warranty madé at tbe time of tbe alleged change of price from $4.10 to $4 per set was not established, because tbe warranty depends on a change in tbe contract which change could only have been made for a new consideration or by mutual consent.

Louis Court of Criminal Correction.— W. L. Fitzgerald, Judge. (1) The bond was invalid for any purpose under the terms of the judgment. The bond is conditioned for the surrender of Howard in execution in the court on a day named therein, but the court had no jurisdiction over his person under the judgment and the bond was void.

Louis Oity Circuit Court. — No». Chas. Claflin Allen, Judge. The finding and judgment should have been for defendants. 1. Because there was no negligence on the part of any one proven in this case which caused, or contributed to cause, the plaintiff to be injured. The undisputed facts show that the injury to plaintiff was the result of an unforeseen accident, for which nobody was liable.

<p>1. JUSTICES OF THE PEACE: Statement of Account. A statement of an account, in an action begun before a justice of the peace, which set out that the account was for the moving of so many cubic yards of earth at so much per yard at different dates, is a sufficient statement to bar another action.</p> <p>2. -: -: Amendment in Circuit Court. A statement of an account filed before a justice of the peace as follows: “To work done on Fort Smith & Western By. $1,600.70,” is sufficient to justify the circuit court on appeal in allowing an amendment under the provision of section 4079, Revised Statutes 1899.</p> <p>3. -: -: -: Changing Cause of Action. Where a statement was filed before a justice of the peace as a cause of action for work done during a certain year, it was not a change of the cause of action to .amend the statement in the circuit court by showing that the work was done the year prior thereto.</p>

— Hon. Henry 0. Riley, Judge. This agreement is in no sense ambiguous. Its meaning upon its face is so clear that he who runs 'may-read and understand. But even if it were ambiguous and uncertain and indefinite, as it is not, it must be, when construed, so construed as to be held most strongly against the maker, or him who. makes profert of it— verba fortius accipiunter contra proferentum.

Louis City Circuit Court. — Son. Darnel G-. Taylor, Judge. (1) It is a principle of law supported by a long line of authorities that where several parties have combined together for the same illegal purpose, any act done by one of them in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of the law, the act of all, and, therefore, proof of such act will be evidence against any of the others who were engaged in the…

<p>DIVORCE: Indignities: Discretion of Court. Where the evidence in an action for divorce showed that the husband was guilty of frequent and unreasonable outbursts of passion without provocation, that he was unwilling to work or support his wife and abandoned her, she was entitled to a divorce and her right did not rest in the discretion of the court.</p>

Louis City Circuit Court. — No». Jas. E. Withrow, Judge. (1) Where a statute imposes a penalty for the doing of an act, all contracts made in violation of that statute are void ; a penalty implies a prohibition. Downing v. Ringer, 7 Mo. 586; Rothwell v. Gibson, 121 Mo. App. 279; Miller v. Ammon, 145 U. S. 421; Building & Loan Ass’n v. Benson, 189 U. S. 408; Dudley v. Collier, 87 Ala. 431.

Louis City Circuit Court. — Ho». Jesse A. McDonald, Judge. The common rule invoked by plaintiff in this case is a strict one applicable only where the holding over is a wrongful one, in which event the landlord has the option to treat the tenant, so holding over, either as a trespasser or as a tenant for a term of similar duration.

Louis City Circuit Court. — Ho». Chas. Claflin Allen, Judge. (1) The trial court erred in holding that the defendants had a right to set off against their liability on its unpaid corporate stock owned by them the amounts which the corporation owed them for loans. The corporation being insolvent, and no longer a going concern, its assets consisting of these liabilities of stockholders, were a trust fund for all its creditors.

<p>EXEMPTIONS: Divorce and Alimony. The provisions of section 3159, Revised Statutes 1899, allowing certain exemptions from execution to a head of a family, do not apply to a judgment for alimony as an incident to a divorce in favor of the wife. Section 4327a, Annotated Statutes 1906, excepts from the exemption an execution upon such a. decree.</p>

Louis City Circuit Court.— Hon. Virgil Buie and Eon. Bobt. M. Foster, Judges. The proceedings fail to affirmatively show that the notice of intention to sue, was filed in the circuit clerk’s office, before suit was begun before the justice, and the filing of such notice before suit is commenced is jurisdictional. Ewing v. Donnelly, 20 Mo. App. 6; Schroeder v. Mueller, 33 Mb. App. 28; Wise v. Loring, 54 Mo. App. 264; R. S. 1899, sec. 3893; Cunningham v. Railroad, 61 Mo. 36.

Louis City Circuit Court. — Row. Chas. Claflin Allen, Judge. (1) The court erred in refusing to give, at the close of the case, an instruction in the nature of a demurrer to the evidence at the request of the defendant, (a) Because the evidence showed that the plaintiff was guilty of contributory negligence. Brocksmidt v. Railroad, 205 Mo. 444; Holland v. Railroad, 109 S. W. 22; McCauley v. Transit Co., 179 Mo. 583; Theobald v. Transit Co., 190 Mo. .435.

<p>1. COTENANTS: Accounting for Rents. Where one tenant in common occupies the whole estate without any claim on the part of his cotenants to be admitted into possession and without any hindrance to his possession, the occupying tenant is not liable to his cotenants in an action for accounting.</p> <p>2. -: -: Ouster. Where one of several tenants in common ousts his cotenants, he must account to them for their proportionate share of the rents and profits of the estate while he is in possession and they are out, and it is immaterial whether the premises were occupied by the tenant himself or leased to a stranger.</p> <p>3. -: -: -. In an action by several tenants in common against a cotenant, who had ousted them of possession, for an accounting of the rents and profits for a period of several years, in which action the defendant filed a set-oil for taxes paid during the period, and where a most favorable construction of the evidence shows that the portion of the rents received to which the plaintiffs were entitled exceeded their proportion of the taxes, a judgment for the defendant will he reversed.</p> <p>4. -: -: -: Paying Taxes. Where an occupying tenant who had ousted his cotenants paid taxes on the land while in his possession, he could ' recover the proportionate share of such taxes from his cotenants because such taxes were a lien against the land and the discharge of such lien inured to their benefit.</p> <p>5. -: -: -: Statute of Limitations. Where several tenants had been ousted by their cotenant, the Statute of Limitations began to run from that time against them in an action for an accounting for the rents and profits, so that they could not recover for the rents and profits, in such an accounting, which had accrued more than five years prior to the beginning of their action and after the ouster, provided the Statute of Limitations was pleaded; likewise the defendant in a set off for taxes paid could not recover for such taxes paid more than five years before the beginning of the suit.</p>

<p>Appeal from Greene Circuit Court. — No». J. T. 'Neville, Judge.</p>

<p>1. ACCIDENT INSURANCE: Contract: Construction: Negligence. Where the insured in an accident policy was injured by jumping off a car on which he was riding when danger of a collision was imminent, the liability of the insurer will be controlled by the law of contracts;-the doctrine of contributory negligence on the part of the insured will have no application.</p> <p>2. -: -: -: -. If the effect of an insurance contract is clear, it must he enforced as written without adding an increased liability by construction; though where the terms of the contract are of doubtful meaning, they will be construed most strongly against the company.</p> <p>3. -: -: -: “Getting Off Car.” A policy of insurance provided for a double indemnity against accidents to the insured while riding as a passenger upon certain mentioned vehicles, but a single indemnity only while “getting on or off.” The insured while riding on a trolley car, a vehicle mentioned in the policy, bn danger of a collision, jumped off and broke his leg in alighting upon the ground. Held, the company was only liable for a single indemnity because, within the meaning of the contract, he was getting off.</p>

<p>Appeal from St. Louis City Circuit Court. — No». Matt. G-. Reynolds, Judge.</p> <p>(1) The record may be corrected with .respect to mere matters of form without notice. 17 Ency. Plead. *and Practice, 7; Nave v. Todd, 83 Mo. 601; Dickey y. Gibson, 113 Cal. 601; Allen y. Bradford, 3 Ala. 281; Loring y. Groomer, 110 Mo. 632. (2) Courts take judicial cognizance of their records. State y. Jackson, 106 Mo. 174; State v. Ulrich, 110 Mo. 350. Where a motion to correct nunc pro tunc goes merely to a failure of the clerk to enter the judgment appearing upon the judge’s docket, such failure of the clerk is one of form only. Loring y. Groomer, 110 Mo. 632; Allen y. Bradford, 3 Ala. 281; Dickey y. Gibson, 113 Cal. 601; 17 Ency. Pleading and Practice 7, and cases cited.</p>

Louis City Circuit Court. — Hon. Chas. Glaflin Allen, Judge. (1) It is conceded that any departure from the contract by either of the principals without the consent of the surety releases the surety even though designed for his benefit. Burnes Est. v. Fidelity & Deposit Co., 96 Mo. App: 467; Warden v. Ryan, 37 Mo. App. 466; Lumber Co. v. Gates, 89 Mo. App. 201; Swazy v. Doyle, 85 Mo. App. 536.

<p>1. DIVORCE: Domicile of Plaintiff. Where a commercial traveler kept a room in the city of St. Louis, which place was the center of his activities, that was the place of his domicile, for the purpose of a proceeding for divorce.</p> <p>2. -: -: Publication. A divorce suit is a proceeding both in rem, and in personam, and in such suit a court by reason of the non-residence of the defendant, has no jurisdiction over the person of the defendant, hut has jurisdiction over the status of the other party and can proceed to annul that status upon service of defendant by publication.</p> <p>3. -: Evidence: Plaintiff as a Witness. While corroboration of the evidence of plaintiff in a divorce suit, when the other party does not appear, is always desirable and should be demanded, yet if the facts and circumstances are such as to satisfy the court of the truth of the plaintiff’s evidence and he makes out a clear" case, by his own evidence, entitling him to a divorce, he should not be denied a decree upon the sole ground that his evidence was not corroborated as to the acts charged in the petition.</p>

<p>Appeal from St. Louis City Circuit Court. — How. Wm. M. Kinsey, Judge.</p>

Louis City Circuit Court.— Eon. D. D. Fisher, Judge. (1) “If a lessor acquiesce in the tenancy by accepting rent of the premises after knowledge that a breach of condition has been committed, he will be presumed to have waived the forfeiture (Ireland v. Nichols, 46 N. Y. 413; McGlynn v. Moore, 25 Cal. 384; Coon v. Brickett, 2 N. H. 163), but to have that effect, it must be rent which became due after the breach.” Mart, on Conv., sec. 340; Co. Litt., 211b; Bleeker v. Smith;…

Louis City Circuit Court.— Eon. Jesse A. McDonald, Judge. (1) The testimony showed that there was either an omission, by the commissioner and the auctioneer, to state at the public sale the actual condition of the title, either through ignorance or forgetfulness, amounting to a mistake, or a suppression of the real facts; in either of which case a court will relieve a purchaser at a partition sale, it being shown, as in this case, that the purchaser would acquire an…

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The court erred in setting aside the decree of divorce granted the defendant herein on the ground that it had no jurisdiction of the cross-hill because it was improperly joined in issue. Plaintiff by answering the cross-bill waived all objections upon the joining of issues and was confined to the merits of the cause.

Louis City Circuit Court.— Hon. Matt. G. Reynolds, Judge. (1) Tbe demurrer to tbe plaintiff’s evidence, tbe peremptory instruction offered at tbe close of all tbe evidence, and defendant’s requested instruction 1, were all improperly refused. Tbe cause of action stated in the petition was unproven and disproven. Plaintiff was permitted to recover on a cause of action not pleaded.

<p>Appeal from St. Louis City Circuit Court. — Row. Walter B. Douglas, Judge.</p>

Erancois Circuit Court. — Eon. Chas, A. KÍUim\, Judge. (1) The petition in- an action in replevin must state that the plaintiff has a general or special property in the goods sued for; the mere allegation of his right to the possession of them, and of their •wrongful caption and detention by defendant will not snfficég A petition which fails to comply with this requirement is fatally defective, ever after verdict. Benedict )& Burnham Mfg. Co. v. Jones, 60 Mo.

<p>Appeal from St. Louis City Circuit Court.— Hon. Moses N. Sale, Judge.</p>

Louis City Circuit Court. — Eon. Daniel Q. Taylor, Judge. (1)Defendants bad shown all the diligence required and the default not being' chargeable to their want of diligence was good cause for the default and comes within the provisions of the statutes. R. S. 1899, sec. 3382; Hastings v. Hennessy, 52 Mo. App. 177. (2) An appellant will not lose his appeal for a fault due entirely to the neglect of an official. 2 Ency. PI. and Pr., p. 280; 2 Ency. PL and Pr., p. 345.

<p>1. MECHANICS’ LIENS: Original Contractor. A party furnishing material for a building is an original contractor within the purview of section 4207, Revised Statutes 1899, and such original contractor must file his account for a mechanic’s lien within six months after his indebtedness shall have accrued.</p> <p>2. -: -: Continuing Account. Where, in an account ior material furnished for a building, there was an interval of six months between the last item of the account and the one preceding, and where the evidence tended to show that the material furnished under the last item was for parts of the building called for in the plans and specifications, and that the building, after the next to the last item was furnished, was suspended in its construction on account of the cancellation of the building permit, and as soon as the building permit was reinstated, tbe last item was furnished, the account was a continuing one and the materialman could file his lien for his material furnished within six months from the date of such last item.</p> <p>3. -: -: -: Jury Question. And in such case where the evidence was conflicting as to whether the account was completed before the furnishing of the last item, or whether tbe last item was furnished on the continuing account, the question was for the jury.</p>

— No». J. L. Fort, Judge. (1) Every man is tbe judge of Ms own physical capacity, and if he injures himself by miscalculating this, or overstraining himself, and injury result therefrom;, he cannot recover damages from the employer for whom he voluntarily undertook to do such work. Havi-land v. Railroad, 172 Mo. 106; Leitner v. Grieb, 104 Mo. App. 173.

Louis Circuit Court. — Eon. Chas. Claflin Allen, Judge. (1) We admit that the proposition of law advanced in support of the first assignment of error of appellant is correct, but deny, that it has any application to the facts in this case, for the reason that 'defendant has expressly admitted that the letter of February 1, 1899, written by its agent, Thompson, was “an answer” to Eames’ letter to the vice-president of the defendant, hence has admitted that he was authorized…

Louis City Circuit Court. — Now. Jesse A. McDonald, Judge. (1) The curtesy estate of the husband was defined at common law to be “a freehold estate for the term of his natural life.” 1 Wash. Real Prop. (6 Ed.), sec. 313, p. 145; sec. 316, p. 145; Coke upon Lit., chap. 4, sec. 35; 2 Black, Com., 126; 1 Woerner, Adm. (2 Ed.), sec. 121, p. 296. (2) The estate by the curtesy is recognized also by the Revised Statutes 1899, and established by the decisions of this court.

Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge. (1) In tlie absence of an ordinance by the city of St. Louis on tbe subject the conviction herein cannot be sustained. State v. Hietzburg, 141 Mo. 375; State v. Tower, 185 Mo. 79; State v. Eyerman, 115 Mo. App. 660. (2) The instruction given by the court and known as number 4 is erroneous. Stetzler v. Railroad, 210 Mo. 704, 109 S. W. 666.

<p>Appeal from St. Louis City Circuit Court. — Ho». Róbt. M. Foster and Hon. Virgil Rule, Judges.</p>

Louis City Circuit Court. — Eon. Jas. E. WithrowJudge. (1) It is elemental law that a member of a fraternal beneficiary society, such as the plaintiff in this case, has a right to change the beneficiary at will. The beneficiary has no vested rights, even if she pays the assessments, and it is immaterial what relationship the beneficiary sustains to the member. The right of change is unrestricted, except by contract. 1. The right is conferred by statutes of this State.

Louis City Circuit Court. — Now. Bolt. M. Foster, Judge. Statement. — The action originated in the probate court of the city of St. Louis, and in due course was appealed to the circuit court of said city, where on a trial de novo to the court sitting as a jury, plaintiff recovered judgment. Defendant appealed to this court. Defendant,- Mary S. Eames, is the executrix of the estate of her deceased husband, Charles B. Eames, who died December 17, 1905.

<p>Appeal from Dent Circuit Court. — Hon, L. B. Woodside, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge.</p>

— Eon. David H. Eby, Judge. Appellant’s instructions numbers seven and eight should have been given. Under section 1102, Revised Statutes 1899; actual collision is not necessary to create liability as under section 1105 of said statute. The statutory signal not being given, appellant was induced to approach the crossing and was injured by his horse taking fright at the train, respondent became liable.

<p>APPELLATE PRACTICE: Abstract of Record: Rule of Court. Where a case is brought to the appellate court on long transcript and the appellant has furnished no abstract of the record as required by Rule 16 'which went in force August 1, 1908, the appeal may be dismissed.</p>

— Row. E. G. Riley, Judge. (1) No effort having been made by the telephone company to agree with the plaintiff railway company as to compensation for its property, or the right of the telephone company to occupy it, injunction was the proper remedy, and it should have been made perpetual. Lewis on Em.

— No». J. C. Sheppard, Judge. (1) The testimony fully shows that the only changes that the “building committee committee” permitted said contractor to make, were mere deviations in the matter of performance from the plans and specifications, after which the building should be fashioned, and that no new or additional terms and stipulations were added; the contract as far as completed was a “substantial” compliance with the contract as made.

Original Proceeding for Writ of Mandamus. (1) It was tbe duty of respondent, when tbe bill of exceptions was presented to bim to act, to sign it if tbe same was found to be correct; and it was equally bis duty if be thought the same was in any way imperfect to correct it and then sign it. He cannot be permitted to sacrifice the rights of litigants by his inaction. State ex rel. y. Field, 37 Mo. App. 93.

<p>Appeal from St. Louis City Circuit Court. — Eon. Jas. E. Withrow, Judge.</p> <p>(1) The compromise of a doubtful claim is a sufficient consideration for a promissory note. After a compromise has been entered into in good faith, the merits of the original' controversy are immaterial, in an action to enforce the satisfaction. 6 Am. and Eng. Ency. of Law (2 Ed.),.p. 714; 8 Cyc., pp. 517, 518; Draper v. Owsley, 15 Mo, 618; Stephens v. Spiers, 25 Mo. 386; Rawlins v. Rawlins, 102 Mo. 563; McCormack v. Railroad, 154. Mo. 191; Pickel v. Chamber of Commerce, 10 Mb. App. 191; Buffington v. Land Co., 25 Mo. App. 492; King v. Insurance Co., 36 Mo. App. 128; Marshall & Michel v. Larkin’s Sons, 82 Mo. App. 635; Supply Co. v. Meysenberg, 85 Mo. App. 337; Wonderly v. Christian, 91 Mo. App. 158; Slover v. Rock, 96 Mo. App. 335; Feeter v. Weber, 78 N. Y. 334; Dunbar v. Tirey (Tex.), 17 S. W. Rep. 1116; Bennett v. Paine, 5 Watts 259; Cobb v. Arnold, 8 Metcalf 403; Sentell v. Stark, 37 La. Ann. 679. (2) When the indorser of a promissory note tainted by usury becomes the maker of a note, given to discharge the one, usurious as between the original parties, the new note being executed at a lawful rate of interest find received in payment of the former, he cannot set up the usury of the original note as a defense to the collection of the note of which he is maker. Coleman v. Cole, 96 Mo. App. 22; Bank v. Iiottenstein, 89 Pa. St. 328; Craig v. Butler, 9 Mich. 2.1; Tenny v. Porter, 61 Ark. 329.</p> <p>(1) Either want of consideration or failure of consideration is a complete, defense to a note. R. S. 1899, sec. 645; Catterlin v. Lusk, 98 Mo. App. 188; Holmes v. Farris, 97 Mo. App. 315. The negotiable instrument act approved April 10, 1905, simply reenacted the common law, which it provided: “Section 29: Absence or failure of consideration is a matter of defense as against any person not a bolder in due course.” Laws Missouri 1905, p. 247; 4 Am. and Eng. Ency. Law (2 Ed.), p. 193; 8 Cyc., p. 31. (2) Tbe plaintiff is not a bolder in due course and took tbe note with notice that tbe defense of want of consideration could be made and took it subject to such defense. Laws of Missouri, 1905, pp. 249, 250; Clough v. Holden, 115 Mo. 336; Mayes v. Robinson, 93 Mo. 114. (3) Tbe note for which tbe note sued on was given bad been paid in full by payments, renewal fees and usurious interest. It could not be made tbe basis of a new note. It is not sufficient to support a new contract. Briscoe v. Kinealy, 8 Mo. App. 76; 7 Cyc., 718; Warren v. Whitney, 24 Me. 561; Phelps v. Bennett, 57 Me. 491; Smith v. Boruff, 75 Ind. 412; Pettyjohn v. Liedscher, 92 Ga. 149; Hancock v. Twyman, 19 Ky. Law 2006, 45 S. W. 68; Ingersoll v. Martin, 58 Md. 67; Brigham y.‘ Holden, 146 Mass. 259; Hale v. Rice, 124 Mass. 292; Mason v. Campbell, 27 Minn. 54; Grant v. Porter, 63 N. H. 229; Stafford v. Bacon, 1 Hill (N. Y.) 532; Sullivan v. Collins, 18 la. 228.</p>

Louis City Circuit Court. — Eon. Moses N. Bale, Judge. (1) On demurrer to evidence, plaintiff is entitled to have the facts viewed as favorably to Mm as the testimony permits, and to enjoy the benefit of every reasonable inference in his favor therefrom. Alcorn v. Railroad, 108 Mo. 81; Buck v. Railroad, 108 Mo. 179; Keown v. Railroad, 141 Mo. 86; Bank v. Simpson, 152 Mo. 638.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. The steps prescribed by the constitution and bylaws of the order were not taken before this action was brought, hence there can be no recovery. Poultney v. Buchanan, 31 Hun 54; Harrington y. Benevolent Assn., 70 Ga. 342; Smith y. Tribe No. 111.

Louis City Circuit Court. — Hon. Rolrt. M. Foster, Judge. It is tbe duty of tbe court to ascertain and interpret tbe meaning of written instruments as a matter of law, and tbis duty cannot be shifted to a jury. Ford v. Dyer, 148 Mo. 541. Parties under tbe law are left free to make their own contracts, and it is tbe duty of the court to interpret them. Walker v. Automobile Co., 124 M'o. App. 636; Loesch y. Casualty & Surety Co., 176 Mo. 669.

Louis City Circuit Court. — Eon. George E. Shields, Judge. The vice of this instruction is that it allows recovery by plaintiff for loss of earnings in the future, and expenses for medicines, surgical or medical attention or care, and hospital service in the future, when the plaintiff did not allege future loss of earnings, nor future expenses in his petition; nor was there any evidence tending to show that there would be any necessity for medical treatment, medicines or…

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. (1) The court erred in refusing to direct a non-suit and in refusing to give defendant’s instructions, in the nature of demurrers to the evidence, offered at the close of plaintiff’s case and at the close of all the evidence in the case.

Louis City Circuit Court. — Hon. Jas. H. Withroio, Judge. (1) A fraternal beneficiary society is a creature of tbe statute. It can exercise no powers except as conferred by statute, and a member is bound to take notice of all tbe limitations and restrictions found in tbe statute relative to contracts of this kind. Perbracbe v. Grand Lodge A. O'. U. W., 81 Mo. App. 268; Lister v. Lister, 78 Mo. App. 99; Montgomery v. Wbicbeck (N. D.), 96 N. W. 327.

Circuit Court. — Eon. Chas. D. Stewart, Judge. (1) The plaintiff has lost none of its rights by failure to appeal the attachment case. The garnishee was not a party thereto. The judgment is interlocutory, not final. The judgment was rendered on motion. There is no final disposition, or final judgment rendered in the attachment case, either on the plea in abatement or upon the merits. E. S. 1899, sec. 407; Ann. Stat. 497; Bank v. Thornburrow, 109 Mo.

Louis Court of Criminal Correction.— Hon. Ellison Á. Taylor, Judg'e. (1) Common law conspiracy is still punishable as a misdemeanor in this State, .despite the fact that the statute (R. S. 1899, sec. 2152), defines certain acts as conspiracies, because there is no provision in our statute containing “negative or- exclusive words.” Our statute “neither in terms abolishes the common-law offense, nor does it declare that- the cases enumerated shall alone constitute the…

<p>Appeal from Monroe Circuit Court. — Hon. David H. Eloy, Judge.</p>

— Hon. Ohas. D. Stewart, Judge. (1) The instructions numbered one, two and three, given on part of State, do not use the word beer, but words “intoxicating liquors,” and should not have been given. State v. Smith, 38 Mo. App. 618; State v. Hays, 36 Mo. 80.

— No». David H. Eby, Judge. (1) Under the code in this State the plaintiff is required to state only the facts and it does not matter how informally such facts are stated; how inartificially or even that they are stated in an involved manner, if the facts can be deduced from the statement and such facts constitute a cause of action. R. S. 1899, secs. 591, 610, 629; Pattison’s Code PL, secs. 179, 238, 346.

— Eon. David H. Eby, Judge. (1) We are aware that this court bag passed on tbe question of tbe effect of after-passed by-laws in tbe case of Ziminermann v. Supreme Tent K. M. of ■tbe World, 122 Mo. App. 591, and Lewine y. Supreme Lodge, 122 Mo. App. 547, but as we view tbe matter these cases can be clearly distinguished from tbe case at bar.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) It is the duty of an original or general contractor baying charge of the construction of an entire building, to exercise ordinary care in keeping the premises in a reasonably safe condition, so as to avoid injury to those who are rightfully there and engaged in work upon tbe building, though not employed by him, and a failure to exercise such care is negligence which will render such original contractor liable to…

<p>1. DIVORCE: Abandonment. In. an action for divorce brought by the wife on the ground of abandonment, the evidence is examined and held sufficient to show a case of abandonment, by the husband without good cause.</p> <p>2. -: Judgment: Res Judicata. In an action for divorce, a former judgment denying a decree in an action between the same parties, where the ground alleged was indignities, is not res judicata except to the extent that the indignities alleged in the former petition were not sufficient to warrant a decree.</p> <p>3. PRACTICE: Evidence Excluded: Failure to Set out What is Expected to Prove. The appellate court cannot review an alleged error based on the refusal of the trial court to hear evidence, where the record does not show what the party excepting expected to prove.</p> <p>4. DIVORCE: Abandonment. In an action for divorce on the ground of abandonment, where the conduct and the correspondence between the parties, after a dismissal of a former petition and cross bill for divorce between the same parties, showed the wife was willing to resume the marital. relation but the husband made unreasonable conditions and demonstrated his lack of a desire to live with her or affection for her, it was sufficient to make out a case of abandonment.</p>

<p>1. LIFE INSURANCE: Construction of Policy: Deduction for Debt: Ejusdem Generis. A life insurance policy provided that “any indebtedness to tlie association under any provision thereof or otherwise” should be deducted in any settlement of the policy or benefit thereunder. Under that provision, in an action on the policy, the company was entitled to a deduction for money advanced to the insured during his life. The rule of ejusdem generis does not apply in the construction of the expression “or otherwise,” but those words cover indebtedness other than balances on premiums and indebtedness growing out of the policy.</p> <p>2. -: -: --: Unambiguous Contracts. The contract being plain and unambiguous, it must be enforced according to the natural sense of the expressions used, and effect given to every part of it.</p> <p>3. -: -: -: Application of Statute. The provisions of section 7895, Revised Statutes 1899, to the effect that policies of insurance expressed to be for the benefit of the wife of the insured, shall inure to her benefit independent of the creditors of the husband, has no application to the construction of such contract.</p>

<p>1. LOCAL OPTION: Notice of Election: Order of Court. Under the provision of section 3029, Revised Statutes 1899, the notice of a local option election must be published in one newspaper for four consecutive weeks, the last insertion to be made within ten days next before the election is to be held, and “such other notice may be given as the county court ordering the election may think proper in order to give general publicity to the election.” This provision places the matter of giving other notice within the discretion of the county court.</p> <p>2. -:-:-: The county court in ordering a local option election ordered it published in three different weekly newspapers printed in the county, for four consecutive weeks. the last insertion to he within ten days next before the day of election. The notice was published as ordered in two of the designated newspapers, hut was published for only three weeks in the other newspaper designated. Held, the notice of the election was insufficient and the election held in pursuance of it was void; the county court, having decided in their discretion that it was necessary to publish it in three papers “to give general publicity to the election,” a strict compliance with the order was requisite.</p>

<p>APPELLATE PRACTICE: Bill of Exceptions. Where a bill of exceptions does not show a motion for new trial was overruled nor show any exceptions saved, the court cannot review the case upon its merits although the abstract and statement of appellant purport to show such matters.</p>

<p>CRIMINAL PRACTICE: Indictment: Selling Liquor: Naming Purchaser. An indictment for selling intoxicating liquors in violation of the Dramshop Act need not give the names of the purchasers of the liquor sold.</p>

<p>APPELLATE PRACTICE: Motion to Strike Out: Demurrer: Bill of Exceptions. A motion to strike out a pleading sometimes performs the office of a demurrer and in such case no bill of exceptions is necessary in order to have it reviewed, hut a motion to strike out, though it goes to the whole of the pleading, can not be treated as a demurrer where it raises an issue of law on some collateral matter. A motion to strike out an amended petition on the ground that it states a different cause of action from the original petition, cannot he reviewed unless incorporated in the hill of exceptions.</p>

— Eon. Ohesley A. Mosman, Judge.- (1) • The lien of an attorney upon a judgment recovered by him will be enforced according to the law of the State (Nebraska), when the judgment is sought to be collected. 13 Eng. Pleading and Practice, 151; McGinness v. Oar Co., 174 Mo. 225. (2) The statute did not deprive plaintiff, Dora J. Rowe, in said case of control over her own law suit of Curtis v. Railroad, 118 Mo. App. 351. filed argument.

<p>Error to Grundy Circuit Court. — -Hon. George W. yVanamalcer, Judge.</p> <p>(1) A fraternal beneficial association is not an insurance company. Theobald v. Supreme Lodge, 59 Mo. App. 87; Baltzell v. Modem Woodmen, 98 Mo. App. 153; M'orton v. Royal Tribe of Joseph, 93 Mo. App. 78; Herzberg v. Modern Woodmen, 110 Mo. App. 328; Westerman v. Supreme Lodge. K. P., 196 Mo. 670; Commonwealth v. Beneficial Assn., 137 Pa. St. 412; Masonic Aid Assn. y. Jones, 154 Pa. St. 99; Dickinson v. A. O. U. W., 159 Pa. St. 258; Knights Templar and Masons Life Indemnity Co. v. Berry, 50 Fed. 511; Baltzell y. Modern Woodmen, 98 Mo. App. 153. (2) The Legislature has not conferred on cities of the third class authority to impose a license tax on fraternal beneficial associations or their deputies. B. S. 1899, sec. 5857. Municipalities can only exercise such powers of taxation as are clearly conferred upon them by legislative act; such powers cannot be extended by construction, and the language of the act conferring the power must be strictly construed. Kansas City v. Thompson, 19 M'o. App. 523; 25 Am. and Eng. Ency. of Law, 482; St. Louis v. Laughlin, 40 Mo. 559; Cooley on Municipal Taxation (2 Ed.), page 574. (3) A license is a tax for the purpose of a revenue. St. Joe v. Ernst, 95 Mo. 360; Kansas City y. Crush, 151 Mo. 128. (4) If a doubt exists as to the right to tax the right does not exist. St. Louis y. Bell Tel. Co., 96 Mo. •623.</p> <p>(1) The occupation defendant was engaged in, in the city of Trenton was that of soliciting persons to take out what was called benefit certificates or insurance policies in his fraternal insurance order. The calling of an insurance contract fraternal beneficial or any other similar name does not make it any the less life insurance or remove the defendant from the operation of the ordinance. Logan y. Fidelity and Casualty Co., 146 Mo. 125; Herberg y. Brotherhood, 110 Mo. App. 329; Aloe v. Mutual Life Association, 164 M'o. 675; Baltzell v. Modern Woodmen, 98 Mo. App. 153. (2) It is not what a company calls itself that determines the kind of business it is engaged in, it is the manner in wbicb it conducts its business and the contract Avhich it enters into, that determines whether it is in the insurance business, or not. State ex rel. y. Merchants’ Exchange Society, 72 Mo. 146; Baltzell v. Modern Woodmen, 98 M'o. App. 153. (3) The Legislature has delegated to the city through its charter the authority to levy an occupation tax upon all persons soliciting insurance operating within the city limits. R. S. 1899, sec. 5857. The ordinance follows the statute and is leveled against the occupation. Revised Ordinances of 1905, sec. 357. (4) A plain distinction exists between a tax and a license. State v. Bixman, 162 Mo. 30; Harkreader v. Turnpike Co., 101 Tenn. 680, 49 S. W. 751; Railroad v. Harris,'99 Tenn. 684, 43 S. W. 115; Commonwealth v. Ellis, 33 N. E. 651; Provident Institution v. Mass., 6 Wall. (U. S.) 611; Savings Society v. Coit, 6 Wall. (U. S.) 594; 21 Am. and Eng. Ency. Law (2 Ed.), 816.- (5) Laws exempting persons or property from taxation are to be strictly construed, and the claimant of such an exemption must establish his right beyond a reasonable doubt. Fitterer v. Crawford, 157 Mo. 51; Washington University v. Rowse, 42 Mo. 308; St. Louis v. Ins. and Trust Co., 47 M'o. 150; Driving Park v. Kansas City, 174 Mo. 425.</p>

— Hon. J. V. 0. Karnes, Special Judge. (1) The original ordinance adopted the specifications on file with the city clerk and thereby they became a part of it and the ordinance should be construed as if they were embodied in it. Galbreath v. Newton, 30 M'o. App. 380; Dickey y. Holmes, 109 Mo. App. 721; Paying Co. y. Ullman, 137 Mo. 543.

<p>Appeal from Grundy Circuit Court. — Non. George W. Wanamalcer, Judge.</p> <p>filed argument.</p> <p>filed argument.</p>

— Eon. Earns L. Moore, Special Judge. (1) Plaintiff’s petition does not contain the proper subject-matter of an action on an open account.; but alleges payments on a debt after the debt had been paid off and extinguished. Plaintiff’s petition should have been held insufficient in not stating a cause of action; and defendant’s motion in the form of a demurrer to strike out should have been sustained. R. S. 1899, sec. 630; R. S. 1899, sec. 597.

- Shelton, Special Judge. -H@^n. Nat. M. (1) The conduct of the defendant in permitting the plaintiff to go ahead with the work after the contract time for completion did not operate either in law or in fact as a waiver of his right to recoup damages for thle delay. Grange Co. v. Gorman, 161 M'o. 203, and authors ties there cited.

— Hon. George W. Wanamalcer, Judge. (1) Section 4280, Revised Statutes 1899, provides that whenever a cause of action has been fully barred by the laws of the State, Territory or country in which it originated, said bar shall be a complete defense to any action thereon brought in any of the courts in this State can only apply to suits brought in this State when the statutes of the foreign State' bars the cause.

— Ho». Francis II. Trimble, Judge. (1') The return of the summons by T. L. McCar-' •thy, the constable, was conclusive as to the facts stated therein, and those facts could not. he contradicted by the defendant, except in an action for a false return. All of the declaration of law asked by plaintiff should have been given. State to use v. O’Neil, 4 Mo.

— Eon. Alonzo D. Burnes, Judge. (1) A note given to secnre tlie suppression, concealment of crime or dismissal of a criminal prosecution, whether the agreement be expressed or implied, is void and this although made for the amount of money embezzled. Summers v. Summers; 54 Mo. 343; Sprague v. Rooney, 104 Mo. 358; Eire Brick Co. v. Cook, 44 Mo. 36; Baker v. Farris, 61 Mo. 389; McCoy v. Green, 83 Mo. 632; Janis v. Roentgen, 52 Mo.

— Hon. W. D. Rush, Judge. (1) The court committed error in giving instruction V, Avhich told the jury that a petition for the paving of Corby street offered in evidence by defendant city, should not be considered by them as any evidence of an intention or desire on the part of plaintiff to have said street graded, except in so far as might be necessary tor prepare the surface of the street for the paving so that when the paving was laid the surface of the street would remain…

— Hon. Nat. M. Shelton, Judge. (1) The court erred in refusing defendant’s demurrer to the evidence at the close of plaintiff’s case, and in refusing defendant’s demurrer at the close of all of the evidence. We think that the. case is clearly covered by Wheat v. .St. Louis, 179 Mo. 572; Morrison v. Construction Co., 44 Wis. 405; Hays v. Railroad, 97 N. Y. 259.

— Eon. Chesley A. M osman, Judge. (1) Under the pleadings and evidence in this case the finding and judgment should have been for the plaintiff and the court erred in finding for the defendant'.

— Hon. John G. Park, Judge. (1) The defendant, having furnished reasonably safe means of access to its station, is not liable to the plaintiff, Avho did not use the means of access provided.

— Eon. James E. Goodrich, Judge. (1) The statutes governing Westport as a fourth-class city undoubtedly authorized and required a levy of the cost of a street pavement, by ordinance, against the abutting lands, before any taxbill was authorized to be issued or become a lien on any of such lands. R. S. 1899, secs. 5982, 5983, 5984; Westport y. Mastín, 62 Mo. App. 647; Westport y. Jackson, 69 Mo. App. 148.

— Hon. John G. Park, Judge. (1) Tbe evidence shows conclusively and without contradiction, that the board of public works did compute and apportion the assessment in the sewer district. Sheehan v. Owen, 82 Mo. 458; Cole v. Shrainka, 105 Mo. 311; Verdin v. St. Louis, 131 Mo. 135; Jaicks v. Merrill, 98 S.' W. (Mo.) 753; Dickey v. Porter, 101 S. W. (M’o.) 586. (2) The plans and specifications did adequately and sufficiently describe and provide for the work to he done.

<p>COMMON CARRIERS: Damaged Shipment: Duty of Consignee: Measure of Damages: Instructions. Plaintiff shipped to its own order with directions to notify B, two cars of oats. On reaching their destination B was promptly informed, hut neither he nor any other agent of the shipper appeared. The carrier held the oats for a month and turned them over to a commission house who found them in a damaged condition and sold them. Held, that the shipper was only entitled to recover the amount the oats sold for; and an instruction telling the jury to allow the market price of oats at the time of their arrival at destination was error, since there was no evidence as to their condition at that time as the shipper had failed in his duty promptly to inspect them.</p>

— Hon. George W. Wanamaker, Judge. filed argument. (1) The defendant negligently failed to keep a vigilant watch for plaintiff’s mother and this team. (2) The defendant negligently ran this automobile at an excessive rate of speed. Acts 1903, sec. 2, pp. 162, 163. (3) The defendant negligently failed to stop this automobile soon enough to prevent frightening these horses.

<p>1. PASSENGER CARRIERS: Ejectment of Passengers: Misplaced Ticket: Instructions. Where the passenger had misplaced his ticket an instruction directing the jury that if he told the conductor that he thought the agent had not given him the ticket and left the train at the conductor’s suggestion then the verdict should he for the defendant, is held defective since it did not cover the hypothesis that the conductor had been abusive and had with physical force accelerated defendant’s departure from the train whereby he fell and was injured, etc., since an instruction directing a verdict must cover all the facts and submit the whole case of both parties.</p> <p>2. -: -: Trespasser: Damages. (A carrier is not bound to carry a passenger without his producing and delivering his ticket, but the conductor should not be unreasonably peremptory but should give time to find the ticket,'ptherwise the ejectment would be wrongful and entitle the passenger to actual damages, and if accompanied with unnecessary force and abuse, or either, to punitive damages.</p> <p>3. -: -: Misplaced Ticket: Evidence: Baggage Check. A passenger who had misplaeed his ticket showed his baggage check to the conductor as evidence that he had a ticket. H>eld, this fact was admissible in evidence as a part of the res gestae and tended to show the conductor’s mind and characterize his act as well as to show the' status of the passenger.</p> <p>4. -: -: Punitory Damages: Evidence: Pecuniary Condition. Plaintiff’s pecuniary condition is admissible in an action for personal injury where the circumstances of the case authorize punitory damages.</p> <p>5. -: -: -: Instructions. Where a passenger is wrongly on the train and is rightfully ejected but with insult and abuse he is entitled to recover compensatory damages for his injured feelings but nothing in the way of punitory damages; and an instruction permitting the latter is error.</p>

— Hon. Henry L. UcOime, Judge. filed argument. The rule that a party cannot plead one cause of action and recover upon another, applies to the justice of the peace courts the same as to courts of record. Edmonds v. Albrecht, 42 Mo. App. 479; Penninger v. Reilley, 44 M'o. App. 255.

— Hon. William G. Ellison, Judge. (1) Plaintiff’s petition fails to state facts sufficient to constitute a cause of action against the defendant for the reason that there is no allegation that the alleged defect existed for such a length of time as to charge the city with notice and that after such notice, either expressed or implied, defendant had reasonable time to repair such defect before the alleged injury to plaintiff. Dogherty v. Kansas City, 105 Mo.

— Hon. Alonzo D. Burnes, Judge. (1) Where defendant signed an order -to purchase certain goods he was conclusively presumed to know the contents of the writing and conld not show that he did not read it and agree to it, after he had signed the same. (2) The party is bound to know the contents of a writing signed by him, and if he signed the same without reading it, or relied upon the representations of a stranger he is nevertheless bound by the .same.

<p>DIVORCE: Final Decree: Custody of Children: Modification: Statutory Construction: Hearing: Prohibition. Relator obtained a divorce as the innocent and injured party with, decree for the care and custody of her children. Later, and after her ‘remarriage, her former husband made application to have the decree modified as to the custody of the children and after one or more continuances the hearing was continued to a day fixed, but the order of continuance also transferred the custody of the children to the husband’s father. Held, the decree as to the custody of the children was final until modified after a hearing and so much of the order con-tinning the hearing as related to the custody of the children was beyond the jurisdiction of the court and proceedings thereunder could he restrained by prohibition.</p>

— Eon. John T. Moore, Special Judge. .'(T)j The indictment does not charge that the drinking was at or about defendant’s drugstore, and the. motion to quash should have been sustained. (2) Instruction 3 given for the State does not correctly state the law in regard to circumstantial evidence.

— Bon. Francis E. Trimble, Judge. (1) A man may be the head of a family within the meaning of section 3159, Revised Statutes 1899, though he has neither wife nor children. Wade v. Jones, 20 Mo. 75; State ex rel. v. Kane, 42 Mo. App. 286; Brown v. Brown, 68 Mo. 388; Whitehead v. Tapp, 69 Mo. 415; Grocery Co. v. Monroe, 142 M'o. 1. filed argument.