Volume 17 — Missouri Appeal Reports

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p>

<p>Appeal from the St. Louis County Circuit Court, Edwards, J.</p>

Louis Circuit Court, Thayer, J. Where there has been an account examined and accepted by both parties the account becomes an account stated. This may be implied from circumstances. Keeping it any length of time without objection' binds the debtor. — Brown v. Kimmel, 67 Mo. 431; Lockwood v. Thorne, 11 N. Y. 173.

<p>Appeal from the St. Louis Circuit Court, Barclay, J.</p>

<p>Appeal from the St. Louis Circuit Court, Lubke, J.</p>

<p>1. Criminal Law — Lotteries—Sufficiency of Proof. — Evidence that the defendant sold a piece of paper containing certain numbers and that immediately after, when arrested, he was engaged in writing corresponding figures in a memorandum hook, is not, in the absence of evidence that the paper represented a chance in a lottery, sufficient to support a conviction for selling lottery tickets.</p> <p>2. Judicial Notice. — Courts will not take judicial notice that playing “policy” is playing a game of chance.</p> <p>3. Appellate Practice. — "Where the evidence is insufficient to sustain a conviction, in a criminal case which is tried without error, the appellate court will reverse the cause and discharge the accused.</p>

<p>Appeal from- the St. Louis Circuit Court, Horner, J„</p>

Louis Circuit Court, Lubke, J. The insurer is responsible only to the extent of the interest of the applicant, and that must be shown at the trial. — Ayers v. Insurance Co., 17 Iow. 176-181; Tyler v. Insurance Co., 12 Wend. 513; Mers v. Insurance Co., 68 Mo. 127, 132; Wood, Ins., sects. 257, 258, 260, 281. Indefensibility of title is not the criterion of insurable interest. — Gaylord v. Insurance Co.. 40 Mo. 18, 17.

<p>Appeal from the St. Louis Circuit Court, Thayer, J.</p>

<p>Appeal from the St. Louis Circuit Court, Lubke, J.</p>

<p>Appeal from the St. Louis Circuit Court, Horner, J.</p>

<p>1. Criminal Law — Lotteries—Sufficiency of Proof. — Evidence that the defendant sold a paper containing certain figures, that he kept a memorandum of those figures in a book, that he had previously-been engaged in the lottery business, and that a paper was found in his pocket headed “Result of race 48”, is not sufficient to warrant a conviction for selling lottery tickets.</p> <p>2. —Judicial Notice. — Courts will not take judicial notice that “ policy ” is a species of lottery.</p> <p>8. — Appellate Practice. — The evidence being insufficient to sustain a conviction, the accused will be discharged on appeal, where the cause was fairly tried.</p>

<p>Appeal from the St. Louis Circuit Court, Horner, J.</p>

H. S. Kelley, Judge. Motion for rehearing denied. Statement of case by the court. This is an action of attachment.

H. Sí Kelly, Judge. . The facts sufficiently appear in the opinion of the court. I. The first instruction, as qualified by the court, does not correctly state the law.

F. M. Black, Judge. The facts sufficiently appear in the opinion of the court. I. The court erred in overruling.defendant’s objection to the introduction of any evidence under the. statement upon which plaintiff went to trial.

J. M. .Davis, Judge. Statement of case by the court: In January, 1880, the defendant, Bracken, was the owner and in possession of a stock of goods in the town of Carrollton, Carroll county. On the -29th day of that month he executed a chattel mortgage thereon to one John Strieker, to secure to him a debt of $533.70; which said mortgage was duly acknowledged and put to record of same date.

Error, to Jackson Circuit Court, Hon. P. M. Black,. Judge.' Statement of the case by the court. This is an action on a negotiable promissory note, executed by Thomas Knox, defendant’s intestate, in October, 1879, to one C. A. Wright, for the sum of $280, due-thirty days after date. The note, the day after its execution, was transferred by indorsement to one John K. Landis, who instituted this suit.

<p>Appeal from Jackson Circuit Court, Hon. F. S. Black, Judge.</p>

- Appeal from Pettis Circuit ’Court, Hon. John P. Stbothee, Judge. Statement of case by the court. This is a proceeding of condemnation, instituted in 1876, by plaintiff' against defendant for the purpose of opening!and extending “'South Main Street” in said plaintiff city.

. Davis, Judge. Statement of case by the court: This action was instituted before a justice of the peace,, in Grand River township, Livingston county, Missouri,, to recover the sum of $98.00 damages, as follows: For killing one cow, August 25th, 1881 . . . $18 00 For killing one steer, August 27th, 1881 ... 50 00 For killing one cow, September 12th, 1881... 30 00 Total..................• . . $98 00 That portion of the complaint which attempted to confer jurisdiction upon the…

J. B. Gantt, Judge. Statement of case by the court. This is an action of replevin for the recovery of the possession of two thousand bushels of corn matured on the stalk in the field, on certain described premises.' The case is tried upon the following agreed statement of facts. 1. That on the 80th day of June, 1869, one David Moore was the owner of the land on which the crop of corn in controversy was grown.

■ Appeal'from Daviess Circuit Court, Hon. John C. Howell, Judge.' The facts are sufficiently .stated in the opinion of the court. I. There was a complete failure of proof in this action; and for that reason the trial court should have directed the jury to find for the' defendant.

H. S. Kelly, Judge. Statement of the case by the court: This action was instituted in a justice’s court to recover damages alleged to have been .done plaintiff’s mule by the cars of defendant.

<p>Appeal from Holt Circuit Court, Hon. H. S. Kelley, Judge.</p>

<p>Judgment of the circuit court affirmed, because there is neither assignment of errors or briefs filed in this case by the appellant as by statute required.</p>

Turner A. Gill, Judge. The facts sufficiently appear in the opinion of the court. I. A person need not necessarily be a party to a suit in order to be concluded by the judgment. If the wife were present at the suit by her attorney, claiming the goods, and cross-examined witnesses in regard to the title, she 'should be concluded. — Haney v. Turner, 46 Mo. 444; Strong v. The Phoenix, 62 Mo. 289; Wood v. Has el, 63 Mo. 193; Landis v. Hamilton, 77 Mo. 555, aud cases cited. II.

F. M. Black, Judge. The facts sufficiently appear-in the opinion of the court. I. The court erred in overruling appellant’s motion in refusing to take said note into consideration in stating a partnership account between the parties in this suit.— Bindley on Partnership, vol. 2, p. 973. II. Hughes had enjoyed the full benefits of the partnership, though he had not paid the purchase price- of-his interest.

<p>1. Druggists, etc. — Sale oe Liquor by. — The act of March 26,1881, entitled “An act to regulate the sale of medicines and poisons by druggists and pharmacists,” repeals the Act of May 19, 1879, enitled, “An act to regulate the sale of intoxicating liquors by dealers in drugs and medicines; to define who shall be known in law as dealers in drugs and medicines, and to repeal an act entitled ‘An act to regulate the sale of intoxicating liquors by dealers in drugs and medicines, approved May 2, 1877.’ ’ — Following State v. Roller, 77 Mo. 126.</p>

James M. Davis, Judge. Statement of case by the court. This is an action to recover from the defendant, a railroad corporation of this state, damages for wrongfully ejecting the plaintiff from one of its freight trains on the 5fch day of August, 1881. The principal facts are, that the plaintiff resided at or near a station on defendant’s road in Livingston county, named Sampsfel.

J. M. Davis, Judge. ' The-facts appear sufficiently stated in the opinion of the court. . .. I. The case is brought here relying upon error in the giving of instructions, numbered 1, 2 and 3, to defendant.

Gr. H. Bubckhabtt, Judge. The facts are sufficiently stated, in the opinion of the Court. I. The appellate court bad no jurisdiction to try tbe cause at tbe first term after appeal, save at tbe demand or consent of appellee in said court, and tbe overruling of appellee’s application for a continuance, and tbe trial of tbe cause at said term, were erroneous. II.

F. M. Black, Judge. Statement of case by .the court: This is an action to recover damages against the defendant, a railroad corporation, for obstructing natural water courses, wkereby the plaintiff’s lands were flooded with water, and his crops destroyed.

F. M. Black, Judge. Statement of the case by the court. The petition sets forth that on the 6th day of November, 1873, and for a long time prior thereto, Richard L. Edgeworth and Margaret Edgeworth were the owners in. fee of certain described real estate.

Court, Hon. Noah. M. GfivAH, Judge. The facts sufficiently appear in the. opinion of the court, so far as necessary, to be stated. I. The letters written by plaintiff in error to R. Gr. Dun & Co, should have been admitted in evidence to show extent and scope of authority. ... II.

F. M. Black, Judge. Statement of the case by the court. This is a suit for personal injury.

Elijah Robinson, Judge. The facts sufficiently appear in the opinion of the Court. I. The court erred in admitting the testimony of plaintiff as to the prolapsus uteri; because .it was only a matter of opinion on her part.

J. O. Murray, Special Judge. The facts sufficiently appear in the opinion of the court. I. J. C. Murray acted as special judge on stipulation, to avoid an election of special judge. Where a change of venue is taken because of the prejudice of the judge, his having been of counsel, or for any cause, the case must be tried before some other circuit judge.

Ceo. W. Dunn, Judge. The facts sufficiently appear in the opinion. I. The main point relied upon in the court below, and upon which the circuit court held the1 petition defective, was that there was no consideration for the alleged undertaking. This would be conceded if this were an action ex contractu. II. Respondent admits by his demurrer: 1.

Tuenee A. G-ill, Judge. Statement of the case by the court: This is a suit brought for the value of two certain buggies, for the delivery of which to him, plaintiff claims defendant bound himself by an agreement between them, for the exchange of certain real estate and other property. “Plaintiff, to sustain the issues on his part, introduced evidence tending to show that he traded a hotel and the furniture therein to defendant, and that defendant agreed to trade him…

Gill, Judge. Statement of case by tlie court. This is a suit for money alleged to have been collected and received by defendant of James Mathews “to and for the use of these plaintiffs.” Plaintiffs were a firm doing business at Kansas City, Mo., under the style of the Kansas City Agricultural Implement Co. March 11, 1878, said Mathews executed his two negotiable promissory notes to said firm, under •said firm name, one due June 1, 1878, for $313.65, and the other (the one in…

Louis Circuit Court, Adams, ■ J. George D. Reynolds, for the respondent. It. must .appear by the evidence, . that the officers , of the defendant were entitled to make an-assessment in January ; that they did make it, in the manner provided by the law of the society; and that Agnew was lawfully notified of the assessment, or the pretended suspension is void. — ■Omlstead v. Farmers’ Mat. Ins. Co., 12 Ins. L. J. 763; Casner v. Farmers’ Mat. Ins. Co., 12 Ins.

Louis Circuit Court, Adams, J. A telegraph company is liable for an error in transmitting a dispatch, notwithstanding its blank contains a stipulation that, it will not be liable unless 'the message is ordered repeated, unless it makes affirmative proof that the error arose from causes beyond its control. — Tel. Co. v. Tyler, 74 Ill. 168; Tyler v. Tel. Co. 60 Ill. 421.

<p>1. Affidavits — Attorney and Client. — An affidavit to a complaint is not void because the notary before whom it is sworn to is the affiant’s attorney.</p> <p>3. -If no objection is made to such an affidavit on the grounds of public policy in the circuit court, it will not be held, on appeal, to vitiate the proceedings.</p> <p>3. -Notice — Service of. — The return of a private person of his service of a notice need not have his affidavit affixed thereto if he testify in open court to the truth of his return.</p>

Louis Circuit Court, Adams, J. Where the contract of sale is executory, and an immediate delivery, or inspection is not contemplated by the parties, there is an implied warranty on the part of the vendor that when delivered the article will be fit and suitable for the purpose for which it is sold. — Parsons’ Contracts, 7th ed. vol. 1, sect. 584, notes; Rodgers v. Niles, 11 Ohio 56; Chandler v. Lopus, Smith’s Leading Cases, vol. 1, pp. 340 and 314. • If he sells it for a…

Louis Court of Criminal Correction, Noonan, J. There is no such prosecuting officer in the city of St. Louis, -or state of Missouri, as acting assistant prosecuting attorney of the St. Louis ' court of criminal correction.

<p>Appeal from the St. Louis Court of Criminal Correction, Noonan, J.</p>

Louis Circuit Court, Lubke, J. A partner’s interest can not be reached by garnishment. — Fenton v. Bloclc, 10 Mo. App. 536. Where property has been fradulently conveyed, garnishment by a creditor, is a proper remedy to reach it. — Laolcland v. Garesche, 56 Mo. 367; Potter v. Stevens, 40 Mo. 591; Armstrong v. Tuttle, 34 Mo. 432; St. .Louis Brolcerage Co. v. Cronin, 14 Mo. App. 587. ...

Louis Circuit Court, Barclay, J. This cause is submitted on the authority of Kleinman v. Boernstein (32 Mo. 311); and Edwards y. Thomas (66 Mo. 468). The notary’s certificate is prima facie evidence of demand, protest, and notice. — Rev. Stat. sect. 2320; Bank v. Hatch, 78 Mo. 13-22; Bank v. Chambers, .14 Mo. App. 152.

Louis Circuit Court, Thayer, J. In this case,according, to the petition, the articles to be manufactured by plaintiff were to be finished and ready for delivery to the defendants, in the city of St. Louis, on or before the first day of November, 1882.

<p>Contracts — License.—A licensee who agrees to pay in advance a stip- . ulated price per month, “while he is taking stone from this quarry,” and pays for two months, but never enters upon the quarry, is not liable for any further sum.</p>

Louis Circuit Court, Horner, J. 'Á court of equity will not reform a deed, the mistakes of which “the parties thereto are ready and willing to correct.” — Laver v. Dennett, 109 U. S. 98. One who is not a grantee for value has no standing in equity as against an innocent third person. — Martin v. Jones, 72 Mo. 26 ; Fox v. Hall, 74' Mo. 317.

Louis Circuit Court, Horner, J. Garnishment “can not subject one to a recovery where the defendant in attachment could not recover.” — McPherson v. Railroad Co., 66 Mo. 103; National Bank v. Staley, 9 Mo. App. 146. Credits are not subject to garnishment if encumbered with a trust. — Lackland v. Oaresche, 56 Mo. 267; Fenton v. Block, 10 Mo. App. 538.

<p>Appeal from the St. Louis Circuit Court, Barclay, J.</p>

Louis Circuit Court, Thayer, J. An unequivocal promise to pay the note was not a ratification. — Middleton v. Railroad, 62 Mo. 579; Cravens v. GiTleland, 63 Mo. 28; Sauer v. Brinclcer, 77 Mo. 294. There was no estoppel. — Fuzz v. Burr, 7 Mo. App. 588. The acts of the defendant amounted to a ratification. — Hefner y. VandolaJi, 62 111. 483; Dow v. Spenney, 29 Mo. 286; BanJc v. Gay, 63 Mo. 33, 40.

<p>Appeal from the St. Louis Circuit Court, Bapglay, J.</p>

Louis Circuit Court, Horner, J. On appeal from the judgment of a justice, the circuit court can not render judgment against the surety on the appeal bond in an action of unlawful detainer. — Hulebt v. Nugent, 71 Mo.' 134.

<p>Criminal Law — Separate Information Against Co-Princtpals. — That another person had been tried for the same offense, under another information, is no defence to an action for an attempt to commit ’ an abortion.</p>

<p>Criminal Law — Arraignment. —If the record fails to show that defendant was arraigned, or fails to'show that any plea whatever was entered to the indictment, the error is fatal to any judgment rendered on the indictment; and, even if the defendant participates in the trial and consents to the empanelling of a jury to try the case, it isno waiver. “In all cases where a trial is required, and there is no confession of the allegations of the indictment, the court must enter a plea of not guilty.” This is indispensable to make up the issue upon which the defendant is tried. State v. Andrews, 29 Mo. 267; State v. Billings, 72 Mo. 662. While section 1845, Revised Statutes. Mo. 1879, was designed'to do away with unnecessary form, it does not do away with the issue to be' raised by an arraignment.</p>

H. S. Kelley, Judge. Tke facts sufficiently appear in the opinion of the court. I. The main point in this case is the construction of the written contract sued on.

Noah M. G-iv an, Judge. The facts sufficiently appear in the opinion of the court. I. • The amended statement does not state facts sufficient to constitute a case of action.

John P. Strother, Judge. Statement of case by tlie court. This action was instituted in a justice’s court, based on the following sta unent: Wabash, St. Louis & Pacific By. Co., in account with E. Gr. Loomis and Albert Loomis, partners under firm name of E. Gr. Loomis & Co., Dr.: January, 1882, To unreasonable delay in transporting and delivering 90 barrels of salt from Chicago, 111., to Lexington, Mo., to . damage of said E. Gr.

E. L. Edwards, Judge. The facts are sufficiently stated in the opinion of the court. I. The court erred in. the admission of evidence of plaintiff and others, as to the value of the hay, over the defendant’s objections. These witnesses possessed no legal knowledge of the value of the hay, and what they “thought” and “believed” it was worth was wholly incompetent.

Noah M. ■Givan, Judge. Statement of case by the court. This is an action to enforce a mechanic’s lien on a house and lot situate in the town of Holden, Johnson county. ‘The petition states, substantially, that in August, 1880, the defendant, Ira J. Bettes, was the owner of the house .and lot in question, and has ever since continued in possession thereof.

Geo. W. Duww, Judge. The facts sufficiently appear in the opinion of the court. I. In cases of this character when the contract is denied and the question is as to the contract having been made, no evidence can be received except such as the law requires, i. e., written evidence. — Wright v. Weeks, 25 N. Y. 153; Hook v. Turner, 22 Mo. 333; Wildbahn v. Róbideaux, 11 Mo. 660.

G-eo. W. Dunn, Judge. The facts appear sufficiently in the opinion of the court. I. The petition does not allege that defendant absented herself without reasonable cause. — Freeland v. Freeland, 19 Mo. 354. Defendant was not absent one whole year. Her return is prevented by this hasty proceeding. — Sect. 2174, Rev. Stat. Mo., 1879; Oilier - water v. Oillenwater, 28 Mo. 60. II.

Elijah Robinson, Judge. Statement of the case by the court. This was an action instituted before S. W. Bickley,. justice of the peace in Salt river township, Audrain county, Missouri, to recover the sum of $48.40, damages-on account of loss of two of plaintiff; ’s cattle out of a freight car, while in transit upon the railroad of defendant, between Centralia and St. Louis, in the month of October, 1881.

Noah M. Givan, Judge. The facts sufficiently appear in the opinion of the court. I. The second count of petition was abandoned at the trial and no evidence introduced thereon. •II.

Elijah Robinson, Judge. The facts sufficiently appear in the opinion of the court. I. Tlie husband was, in this case, the agent of the wife to put the land in the hands of an agent for sale. The evidence does not show that she directed him to put the land in hands of agent for sale; it shows conclusively that she assented to the sale, knowing that he had done so, ratifying his act and making it her act. II.

Hon. Gf. H, Burokhartt, Judge. Statement of the case by the court. This case originated before a justice of the peace.

Noah M.. G-ivah, Judge. The facts are sufficiently stated in the opinion. I. The court erred in overruling defendant’s motion to strike out the amended complaint and in refusing to dismiss the cause, for the paper filed before the justice did not state facts sufficient to constitute a cause of action nor did it comply with the statute. — Revised Statutes, 1879, sect. 2851; Brashears v. Strack, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508; Gist v. Loring, 60 Mo. 487. II.

<p>1. Evidence — Competency of — Testimony of Physical Facts not Confined to Experts. — A physical fact, manifested to the consciousness of the person testifying, is not so much a scientific question as not to permit the subject to speak of it, except she be an expert, and such a fact may be testified to by the subject of it as any other fact within the range of the senses. — Following Bragg v. Moberly, decided at present term.</p> <p>2. Negligence — Pleading—Sufficiency of Averment — In an action for negligence the petition need not specify the particular act complained of; but a general averment of negligence will be sufficient. Following Schieder v. R. R., 75 Mo. 295; and Maeh v. R. R., 77 Mo. 232.</p> <p>3. Evidence — Competency of — Distinction Between Testifying to a Fact from Consciousness, and,Characterising itPathologi Cally — There is a difference in testifying to a fact, manifested to the consciousness of the person testifying, which is within the competency of non-expert witnesses, and the determining of the character of a disease requiring scientific skill and experience to denominate it, which is usually a matter determinable by the evidence of expert or skilled witnesses, — the latter being a mixed question of law and fact. Per Philips, P. J., in separate opinion concurring in result.</p>

<p>Abatement — Death Pending Appeal — In an action for personal injuries, wherein the judgment is for the defendant, the death of the plaintiff pending his appeal, abates the action.</p>

<p>Practice — Affirmance with Damages. — The judgment on an appeal1 manifestly taken for delay, will be affirmed with ten per cent., damages.</p>

Louis Circuit Court, Adams, J. A proceeding by motion, against a stockholder, is not an independent proceeding, but a continuation of the suit to obtain satisfaction of the judgment against the bank.— Allen v. Benton, 9 Mo. App. Rep. 579 ; Allen v. Benton, 79 Mo. 179. The suit against the deceased abated and should have been revived. — Rutherford v. Williams, G2 Mo. 252.

<p>Appeal from the St; Louis Circuit Court, Lubke, J.</p>

The court had no jurisdiction. — Rev. stats, sect. 3481; Bank v. -Knox, 47 Mo. 333 ; Graham v. Ringo, 67 Mo. 324. A plea to the jurisdiction and an answer to the merits may be joined. —Byler v. Jones, 79 Mo. 261.

<p>Appeal from the St. Louis Court of Criminal Correction, Noonan, J.</p>

Louis Circuit Coitrt, Adams, J. A director dn a corporation has a right.to deal with such corporation in any way that a stranger may — St. Louis v. Alexander, 23 Mo. 527 ; Kitchen 'j. II. R., 69 Mo. 243 ; Roster v. MuTlanphy Planing Mill Co., 16 Mo. App. 150; Buell v. Buckingham, 16 Iowa 284; Burbank v. West Walker Ditch Co., 13 Nev. 431; Smith v. Skeary, 47 Conn. 54; Whitwell v. Wareer, 20 Vt. 444; Gordon. v. Preston, 1 Watts 387; Twin.Lick Oil Co. v. Marburg, 1 Otto 587.

Louis Circuit Court, Barclay. J. Defendant having tried to work a fraud on the statute, is estopped to claim that he did not succeed in doing so. — Lowell on Transfer of Stock, p. 88; Lindley on Partn., vol. I., p. 128 (top) ed. Ewell; Taylor v. Taylor, L. R. 10 Eq. 477; Bowden v. Johnson, 107 U. S. 261; Thompson on Stockholders, sect. 129 p. 150.

<p>Appeal from the St. Louis Circuit Court, Barclay, J,</p>

Louis Circuit Court, Adams, J. “When all the facts alleged in the complaint are conceded to be true, but they are not sufficient to constitute a case of action, the occurrence of a material fact after the service of the summons can not be incorporated in the complaint, and will not be of any avail in maintaining the action, because the bight oe action must be complete beeobe the suit is bbought.” — Wait’s Actions and Defences, vol. 1, sect. 7, page 41; McCullough v. Colby, 4…

Noah M. Givan, Judge. The facts sufficiently appear in the opinion of the court. I. This being a pure bonus, not a subscription to-stock, the contract must be complied with in every particular, or plaintiff cannot recover. The contract was not complied with by plaintiff, and defendants are not required to give reasons but may insist on the contract and nothing else. — Fenton v. Perkins, 3 Mo. 106 ; Chouteau v. Russell', 4 Mo. 553; State v. Daviess County Court, 64 Mo. 30. II.

F. M. Black, Judge. The facts sufficiently appear in the opinion of the court. Held: 58 Mo. 213 ; Christian v. Newberry, 61 Mo. 446 ; McDonald v. Hulse, 16 Mo. 503. ' Y. Depositing deed of trust in post-office is equivalent to delivery. — 2 Washb. Real Prop., 2d ed., p. 609. YI. The pleadings admit that the note was due and unpaid, and, beyond question, judgment should have been rendered for the amount of the debt.

Noah M. G-ivan, Judge. Same brief as in the case of some plaintiff v. R. A. & J. Atlcison, just decided, page 484. Same brief as in the case of same plaintiff v. R.A.& J. Atlcison, just decided, page.-.

Noah M. Civ an, Judge. I. Indorsed upon the contract in this case there is a stipulation for all steel rails. This was not complied with. There were one and one-half miles of iron rails until long after January 1, 1881, the time limited in the note. If the company need not complete the railroad with steel rails in the time limited, then it need not at all. It was not bound to do so at any other time. If it might omit one mile of steel rails it might omit ten miles’.

<p>Case Adjudged. — Cause submitted by agreement of parties, and leave to appellant to file brief and statement within ten days ; neither brief nor statement filed within said time, nor was there any assignment of errors. Held: that the law absolutely requires a statement and brief, and they cannot be dispensed with even by agreement. — Dike v. Frank, 52 Mo. 551; Snyder v. Hopkins, 39 Mo. 413.</p>

J. H. Siianklin, Special Judge. The facts sufficiently appear in the opinion of the court.

Circuit Court, Hon. B. J. Costeel, Special Judge. Statement of case by the court. This is an action to recover damages for injuries done by a collision with the defendant’strain of cars at a public road crossing.

G. D. Burgess, Judge. Statement of case by the court. On Nov. 30th, 1881, the plaintiff in this case brought suit against the defendant, by attachment, for the recovery of $1,200 due for goods sold by plaintiff to defendant in August, 1881. Under the writ of attachment, issued in this case, the sheriff levied upon and seized a large lot of boys’ and men’s clothing as the property of Goldenburg, at the time being in the possession of Charles B. Franke.

Louis Circuit Court, Babclay, J. “If a bond contain the names of other obligors and is delivered without the signature of all, the obligor must en-quire whether those who have signed consent to its being delivered without the signatures of others.” — State to use v. Potter, 63 Mo. 212, citing Fletcher v. Austin, 11 Vt. 447 ; Brown v. Balter, 64 Mo. 167; State ex rel. v. Modrel, 69 Mo. 152.

Louis Circuit Court, Barclay, J. An erroneous or irregular judgment can be corrected upon motion.— . Smith v. Best, 42 Mo. 188; Randolph v. Sloan, 58 Mo. 155; Phillips v. Evans, 64 Mo. 17.

Louis Circuit Court, Ltjbke, J. Possession is sufficient to enable one to maintain trover against any one except the rightful owner.— Vanzant v. Hunter, 1 Mo. 71; Tu/rleg v. Tucker, 6 Mo. 583 ; Sparks v. Purdy, 11 Mo. 222; McCandless v. Moore, 50 Mo. 511; Parker v. Rodes, 79 Mo. 91. After condition broken the title of mortgaged property is with the mortgagee. — Lacy v. Qiboney, 36 Mo. 320; Bowens v. Benson, 57 Mo. 26.

<p>1. Evidence — Corroborative—Agency.—Upon anissue as to whether a certain oral contract had been made, where the only direct evidence is that of the plaintiff and the defendant, who make conflicting statements, evidence that the defendant’s agents in the exercise of their duties had subsequently recognized and partly executed the contract, is relevant as tending to corroborate the plaintiff.</p> <p>g. Appellate Practice. — A judgment will not be disturbed, on appeal, unless error manifestly prejudicial to the appellant has been committed, where the jury in three successive trials have found for the-respondent the full amount claimed.</p>

<p>1. Criminal Law — Information.—A criminal information for selling an oleaginous imitation of butter must state that it was sold as an article of food.</p> <p>■2. Practice — Motion in arrest. — Errors which appear on the face of the record proper will be reviewed on appieal in a criminal action, without a motion in arrest having been filed.</p>

<p>1. Judgments — Scire Facias — Pleading.—A petition for scire facias to revive a judgment is not a required pleading nor the foundation of the action in such a proceeding.</p> <p>3.-Practice — Service of Writ — It is sufficient in a proceeding by scire facias to revive a judgment, to serve the writ by reading it to the person required to show cause.</p> <p>3.-Lien of Judgment — Appeal—Supersedeas.—The pendency of an appeal with supersedeas does not prevent the failure of the lien of the judgment by reason of the lapse of time, and hence it is no defence in a proceeding to revive the lien.</p>

<p>Appeal from tie St. Louis County Circuit Court, Edwards, J.</p>

<p>1. Constitutional Law — Criminal Law — Concurrent Remedies.— A criminal prosecution by information before a justice of the peace-is a remedy concurrent with an indictment returned in a court of record.</p> <p>2. Criminal Law — Wife Abandonment — Evidence.—'The record of a divorce proceeding by the husband against the wife is competent, in a prosecution for the abandonment of the wife, as tending to show the motives actuating the husband in abandoning his wife.</p> <p>3. -Practice — Instructions.—In such an action, evidence tending to show that the husband entered into the marriage for the purpose of avoiding a criminal prosecution for seduction and with the intention of abandoning his wife after the marriage, is improper unless its effect is limited, by an instruction, to the issue on trial.</p>

Louis Circuit Court, Adams, J. It was error iu the court below to refuse to permit appellants to show that the “Clark’s O. N'.

Louis Circuit Court, Lubke, J. This tenancy from the deceased owner was from month to month, not being in writing after 1881, and being in this city. — Revised Statutes, sect. 3078. The holding over after the end of the written lease of 1881, was ■only a tenancy from month to month. — Hammond v. Douglass, 50 Mo. 444.

<p>Attachment — Garnishment—Bailments—Sales.—The fraudulent vendee of the defendant in attachment can not be held in garnishment where the goods have been seized prior to the garnishment under an attachment by the same plaintiff in the hands of the defendant’s bailee who has advanced to him money thereon.</p>

Louis Circuit Court, Barclay, J. An employe, leaving before the end of his term without good cause, cannot recover. — Downs v. Smit, 15 Mo. App. 583 Harp v. Tyler, 73 Mo. 617; Henson v. Hampton, 32 Mo. 408; Aaron v. Moore, 34 Mo. 79 ; Teats v. Ballentine,. 56 Mo. 536.

<p>Appeal from the St. Louis Circuit Court, Thayeb, J.</p>

<p>Appeal from the St. Louis Circuit Court, Lubke J.</p>

<p>Appeal from the St. Louis Circuit Court, Lubke, J.</p>

<p>1. Appellate Practice — Bills op Exceptions. — Upon motion properly supported by affidavit showing that the record is not a transcript of the bill of exceptions signed by the trial court, an appellate court will order the clerk of the trial court to send up the original bill of exceptions.</p> <p>H. -Skeleton Bills op Exceptions. — If the original bill of exceptions shows that it was signed in skeleton, with the directions “ here insert evidence,” the transcript of evidence will not be considered on appeal.</p> <p>8. -If there is nothing before the court but the record proper and that does not disclose any fact justifying the appeal, the judgment will be affirmed with ten per cent, damages.</p>

Gr. H. Burcki-iartt, Judge. Statement of case by the court. Held: 58 Mo. 213. II. The judgment of 1865 is conclusive against Lawther as to his notice of lien for purchase money. — Ins. Go. v. Cravens, 69 Mo. 72; 1 Gfreeni. Ev. sect. 529 ; Rev. Stat., 1879, sect. 3554. It is not necessary that the judgment should find all the facts. — Erwin v. Brady, 48 Mo. 560 ; Judge v. Booge, 47 Mo. 544. III.

John P. Strother, Judge. The facts are sufficiently stated in the opinion of the-court.

<p>Divorce — Past Support op Child — Laches.—A divorce, with alimony in gross, and the custody of the child- having been granted the wife, a motion in the cause asking for an allowance for past expenditures for the child, filed by the wife five years thereafter, is properly overruled.</p>

Louis County Circuit Court, Edwards, J. The affirmance of the judgment of a justice is a judgment which can be set aside only within four days thereafter. — Milligan v. Dunn, 19 Mo. 644; Matthews v. Cook, 35 Mo. 289; Mareau v. January, 52 Mo. 523.

<p>Error to the St. Louis Circuit Court, Adams, J.</p>

Louis Circuit Court, Thayer, J. The court erred in admitting the thirty days» notice, and instructing the jury to find for plaintiff. —Ridgley v. Stillwell, 25 Mo. 570; Williams v. Deriar, 31 Mo. 1; Finney v. St. Louis, 39 Mo. 177; ■Grant v. White, 42 Mo. 285; Hammon v. Douglas, 50 Mo. 434. The ruling of the court in admitting the thirty days’ notice in evidence was not error.

Louis Circuit Court, Barclay, J. The petition does' hot state facts sufficient to entitle the plaintiffs to recover upon the contract. Bayse v. Ambrose, 32 Mo. 484; Yates v. Ballentine, 56 Mo. 530; JEyerman v. Cemetery, 61 Mo. 489; Wyman v. JLife Insurance Co., 4 Mo. App. 577.

<p>Assignments — Attachments—Comity.—•An assignment made in another state for the equal benefit of 'all creditors of the assignor, is operative upon property in this state, although such an assignment, if made in this state, would not, under the decisions of' such other state, operate upon property therein.</p>

<p>1. Mortgages and Deeds of Trust — Removal of Trustee. — A trustee appointed by tbe court on the ex parte application of the beneficiary in a deed of trust, may be removed, during the term, on the application, of any one interested in the subject matter of the trust.</p> <p>2. -It is a good cause for the removal of such a trustee that he is the confidential clerk of the person on whos.e application he was appointed.</p>

<p>Appeal from the Marion Circuit Court, Brace, J.</p>

Louis Circuit Court, Hobneb, J. In order to make a good and valid levy, the sheriff must have the goods and chattels under his view at the time of the levy. Sect. 2357 Rev. Stat. Mo. 1879; Afewman v. Hodlc, 37 Mo. 207; Douglass v. Orr, 58 Mo. 576 ; Gamp v. Chamberlain, 5 Denio 198-202. The mere seizure of the books of account and accounts does not alone operate to transfer the claims absolutely to the attaching creditor. Sects. 416, 427, 428, 429 Rev. Stat.