Volume 192 — Missouri Reports

Louis City Circuit Court. — How. Warwick Hough, Judge. The defendant was entitled, as a matter of right, to file its motion for new trial, and in arrest, after the rendition of the judgment below, and to have such motions heard and determined. By striking these motions from the files, the learned judge below refused to hear them, and thereby denied the defendant the equal protection of the laws.

— Ho». W. L. Jarrott, Judge. (1) The parties alleged in the petition to have made the assessment and levy of taxes, to-wit, ‘‘the officers and agents of said State, county and township of Camp Branch of said county, ” had no legal power to make such assessment and levy of taxes on the land described in the petition.

<p>INTEREST: Judgment: New Trial: Appeal: Reversal. Where plaintiff obtained a verdict for personal injuries, and a motion for new trial was filed by defendant and granted, and plaintiff appealed, and the appellate court reverses the judgment setting aside the verdict and granting a new trial, and remands the cause with directions to enter judgment according to the verdict, with no further directions as to interest, the plaintiff is not entitled to have judgment as of date of the verdict, or to have a judgment for the amount of the vérdict with interest thereon from the date of the verdict, but is entitled only to a judgment for the sum named in the verdict, with interest thereon from the date the judgment was entered in accordance with the mandate.</p>

— lío». J. W. Alexander, Judge. Plaintiff’s suit having been brought more than ten years after the death of Mary McCully and more than three years after the death of David Graham, was barred by… Held: on every occasion where the question was squarely presented, that the husband’s right of possession prevented the married woman from having either right of possession or entry until coverture ceased and that she had ten years after her disability ceased in which to bring suit.

<p>APPELLATE JURISDICTION: Title to Real Estate: Lumber. Although title to real estate may be incidentally, collaterally or necessarily inquired into for the purpose of settling the issues involved, yet if the judgment rendered by the trial court may be satisfied by the payment of money without affecting the title, the appeal is to the proper court of appeals. So that, where the suit is for lumber cut by defendant from plaintiff’s lands, and defendant in its answer acknowledges it cut certain lumber off of a'certain tract of land, but does not know whether the land belongs to plaintiff or to another named person, and offers to pay the money into court for the proper owner, the title to the real estate will not be adjudicated by the judgment, and the appeal is not to the Supreme Court on that ground.</p>

— Hon. F. B. ' Bearing, Judge. Tire suit was against Louisia Bornemann and --Bomemann, lier husband, whereas her legal and correct name at the time was Louisia Schnitger the wife of Gr. Schnitger, and the summons by publication was against Bornemann. It will not be questioned that the court did not acquire jurisdiction of her first dead husband, nor as to her second husband who was not sued.

<p>Appeal from Jasper Circuit Court. — Hon. J. D. Perkins, Judge.</p>

— Ho». P. G. Stepp, Judge. The court erred in admitting extrinsic evidence to cure defective description in the assessment and back taxbill. An accurate description of land is necessary to a valid assessment of a tax thereon.

Transferred from Kansas City Court of Appeals. (1) Appellant, in Ms motion for new trial, assigned, among others, the following grounds therefor: “Because the instructions given by the court at the request of defendant are contrary to the Constitution of the State of Missouri.” Appellant, having thus presented to the trial court a question involving the construction of the Constitution of the State, placed the appellate jurisdiction of this case in the Supreme Court.

— Now. E. M. Hughes, Judge. (1) The decree directing the sale of all the land and destroying Turner’s title, as well as the title of the Helm infants, is outside of the scope of the pleadings. Schneider v. Patton, 175 Mo. 684. (2) The errors complained of, being apparent upon the face of the record, are reached by a writ of error.

— Hon. E. B. McKee, Judge. (1) After a will has been duly established and the capacity of testator shown by testimony of attesting witnesses, it devolves upon the plaintiff in a will contest case to prove by substantial evidence that when the testator made the will he did not possses the requisite mental capacity.

— IIon. John W. McElhinney, Judge. (1) Tke undenied and undisputed evidence in this case, in fact, the plaintiff’s own evidence, makes this a clear case of contributory negligence upon the part of plaintiff’s wife.

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) The court erred in not sustaining defendant’s instruction which prayed the court to declare at the close of plaintiff’s case that plaintiff cannot., recover on the pleadings and evidence in the case. The reason for this assignment of error is there was a failure of proof. It was the duty of the court to take the case from the jury. R. S. 1899, sec. 798.

Louis City Circuit Court . — Hon. II. D. Wood, Judge. (1) The court committed error in not holding that the judgment obtained againt the Ruby Trust Mining and Milliug Company in the suit wherein the company was garnished by plaintiff for the .alleged debt claimed to be due from said company to plaintiff’s judgment debtor, Dieckmann, was void, (a) Because tbe evidence showed conclusively that the judgment was void for want of jurisdiction over said Ruby Trust Mining and…

Louis City Circuit Court. — Sim Warwick Hough, Judge. (1) Plaintiff could only recover on the cause of action and for the negligence specified in his petition. Hutson v. Taylor, 140 Mo. 263; Barclay v. Railroad, 148 Mo. 124; Pryor v. Railroad, 85 Mo. App. 367; Raining v. Railroad, 137 Mo. 506; Hite v. Railroad, 130 Mo. 136. (2) The relation of passenger and carrier can he created only by contract, express or implied.

— Hon. Samuel Davis, Judge. (1) The answer converted this into an equitable proceeding for appellate purposes. Leavitt v. Taylor, 163 Mo. 170; Cox v. Sloan, 158 Mo. 429; Dunn v. McCoy, 150 Mo. 561. (2) Equity can not afford relief against the express clauses of forfeiture of the lease unless the lessor or plaintiffs were culpable. Ruddick v. Railroad, 116 Mo. 34; Village of Morgan Park v. Graham, 136 111. 524; Brink v. Steadman, 70 111. 243; Faylor v. Brice, 7 Ind.

Charles Circuit Court. — lío». E. M. Hughes, Judge. (1) The city has the right to determine, in the first instance, whether a street or sidewalk shall he made at all, and if so, when and in what manner, and to what extent and width. It need not improve the entire width; and it may conclude that a sidewalk in a particular locality is- not necessary. And of the necessity or expediency of exercising such power only the municipal assembly, not a court or jury, is to judge.

— Hon. Samuel Davis, Special Judge. (1) The bill is not such as addresses itself to “the forum of conscience. ’ ’ Newham v. Kenton, 79 Mo. 384; Southworth v. Hopkins, 11 Mo. 338; Brevator v. Creech, 186 Mo. 570. “In order to the exercise of such jurisdiction, it must appear that the contract to be performed is certain, and fair in all its parts, is for an adequate consideration, and capable of being performed.” Poster v. Kimmons, 54 Mo. 493.

— So». John W. McElhinney, Judge. (1) A judgment or decree which recites the findings of fact upon which, it is based must be such a judgment or decree as those facts justify.

— Ho». A. M. Woodson, Judge. (1) The act of the General Assembly (Laws 1899, p. 78) is void, because it authorizes the municipal assembly to create a valid lien upon property without any notice whatever to the party whose property is to be charged. Hunt v. Searcy, 167 Mo. 158; Delaney v. Police Court, 167 Mo. 667; State ex rel. v. Ashbrook, 154 Mo. 375. (2) Placing brick on the street is not a commencement of the work, and the contract negatives any such position.

<p>1. APPELLATE PRACTICE: New Objections. Objections to questions, whether they be hypothetical or otherwise, cannot be made for the first time in the appellate court. Where a specific objection was lodged below, appellant will be held to that specification on appeal; and a general objection below in a case where the evidence is competent for any purpose, cannot be given a specific turn or twist on appeal.</p> <p>2. EXPERT EXAMINATION: Opinions. It is competent to ask an expert whether or not the conditions of the injured person might have resulted from the injuries and accident outlined in the hypothetical questions. It is not for him to decide whether or not they did result from the accident. But where the cause of the injury is really not controverted and the subject-matter of the question is plainly directed to the ascertainment of a • fact peculiarly within the realm of expert knowledge, the expert may state whether or not the injuries received were a sufficient cause of the injured person’s physical condition.</p> <p>3. -: General Objection. A general objection that a question propounded to an expert was incompetent, irrelevant and immaterial, is too broad and indefinite to challenge the attention of the appellate court, if the evidence was competent for any purpose.</p> <p>4. -: -: Not Proper Hypothetical Question. The general objection made at the trial that a question asked an expert is “not a proper hypothetical question and is incompetent, irrelevant and immaterial,” cannot on appeal be enlarged into a specific objection that the question included matters not embraced within the pleadings,</p> <p>5. NEGLIGENCE: Collision of Cars: Defective Brake: Not Pleaded. Defendant’s street ear, on which plaintiff was a passenger, collided with a railroad engine at a crossing, and the petition charged that the defendant negligently failed to stop the car and to ascertain, by looking and listening, the approach of the railroad train. At the trial the defendant offered a witness who testified that the accident was due to a defective brake. Held, first, that it was not error to permit plaintiff on cross-examination to show that the witness was mistaken in saying the accident was the result of a defective brake; second, it was proper to extend that cross-examination to show, by indirection, the improbability of the brake’s being out of repair in the evening of the same day on which at noon the motorman had reported it defective; and, tMrcl, defendant cannot complain, since it brought forward that defense itself by introducing the witness and extracting from him the evidence of the defective brake, that plaintiff by his cross-examination had muddied the waters of justice with prejudice, in that the evidence tended to impress the jury with the idea that the defendant was knowingly using an unsafe ear to the jeopardy of its passengers.</p> <p>6. -: Speed of Trains: Ordinance as Defense: Not Pleaded. An ordinance regulating the speed of railroad trains, sought to be used by defendant street railway to show that the injury to the plaintiff passenger, caused by the collision between its car and the engine, was due to the railroad’s negligent running of its train at a rapid rate, need not be pleaded, in order to be competent evidence. In such case, the ordinance is sought to be used as an evidential fact, and evidential facts should not be pleaded. [Distinguishing Givens v. Van Studdiford, 86 Mo. 149. J</p> <p>7. -: -: -: Not Competent for Any Purpose. But the ordinance, in such case, is not competent for any purpose, if the motorman did not rely on the presumption that the railroad train would observe it, but, on the contrary, saw it in time to have avoided the collision, and, if he is to be believed, failed to do so because the brakes and other appliances were defective.. A mere presumption may not be indulged to establish a fact, when there is actual knowledge of the non-existence of the fact.</p> <p>8. -: Instructions: Injuries: Not Specifically Pleaded: Theory at Trial. Appellant cannot complain on appeal that the instructions concerning plaintiff’s injuries pointed to the evidence in the case and not to the petition and authorized the jury to allow plaintiff for injuries received in the accident without limiting his recovery to those specified in the petition, if both sides tried the case on the theory that other injuries present but not specifically pleaded were the natural results of the concussion pleaded. And the appellate court will not undertake to say whether or not the injuries shown were the natural result of those pleaded, if they were assumed by both sides at the trial to be.</p> <p>9. -: -: -: -: -: Change of Theory on Appeal. An appellant must lie in the bed he made for himself at the trial. Having chosen to put a certain interpretation on the pleading, he is bound by it on appeal.</p> <p>10. APPELLATE PRACTICE: Instructions: Injuries Not Specifically Pleaded: Material Error. Guided by the statute which prohibits the appellate courts from reversing a judgment unless error was committed against appellant materially affecting the merits of the action, the court will not reverse the judgment on the ground that the instructions on the point of injuries were broader than the petition, if to do so would be but to send the case bach for a new trial on the facts already fully disclosed.</p> <p>11. -: -: -: Variance, etc. Where there was no suggestion of variance in the trial court, no affidavit filed, and proof was offered without objection that plaintiff had received injuries which were not specified in the petition, the appellate court will not approve an assignment that the proof and instructions were broader than the petition. The court in such case will not deprive respondent of his judgment on the ground of incompleteness or imperfection of his pleadings, although, under the statute, after the proof was offered, he could have amended his petition to conform to the proof, but did not do so. This is the meaning of section 676, Revised Statutes 1899.</p> <p>12. -: -: Joint Tortfeasors: Contributing To Injury. Contributing to the injury on the part of a tortfeasor is, in the eyes of the law, the same as causing it. So that where plaintiff, a passenger on a street car, was injured by the collision of the car with a railroad engine at a crossing, and sued only the street railway company, charging that its negligence was the cause of his injuries, and the defendant tried to show that it was the negligence of the railroad in running its engine at a too rapid speed that caused the injury, it is not error to instruct the jury to find for plaintiff if the negligence of defendant contributed to the injury; that is, to find for him if the railroad train was run negligently and the street car was also run negligently, and the two acts of negligence combined to produce plaintiff’s injury.</p> <p>13. EXCESSIVE VERDICT: $7,500. The evidence leaves in doubt whether plaintiff’s most serious injuries, which were to the sight of one eye and the hearing of one ear, are permanent, and whether they will yield to. treatment which had never been tried. Held, that a verdict for $7,500 was too large by $2,500.</p> <p>14. -: Prejudicial Irrelevant Matters. At the trial questions directed to showing that a mob was after the motorman in charge of the street car which collided with a railroad engine and that he hid out and that fact was published in the newspapers, were repeated over and over again, but always excluded by the court. Held, that these questions were not reversible error, but were prejudicial nevertheless, and are to be considered in connection with the assignment that the verdict was excessive.</p>

— Ho». W. W.' Graves, Judge. (1) The deed from the minor, Kidwell, was not void, hut voidable only, and passed his title, subject only to be defeated by a timely disaffirmance by him or his heirs. Shipley v. Bunn, 125 Mo. 445. (2) The minor grantor ’s cause of action was to disaffirm the deed, and this cause of action accrued in 1882, when his grantee entered into the possession of the land.

Louis City Circuit Court.— Hon. Franklin Ferriss, Judge. (1) The stable built by Mrs. Tinker on lot 4 of the plat was a plain violation of the condition of the deed. It is not a residence worth $7,500, nor a residence in any sense within the terms of the deed. It does not front on Grand avenue, and said stable is not an appurtenance to a residence built on the lot in controversy, for the simple reason that no residence has been built on said lot.

Louis City Circuit Court . — Eon. D. D. Fisher, Judge. The court erred in sustaining plaintiff’s motion for a new trial, and in granting plaintiff a new trial of the cause. See. 2866, R. S. 1899; Pritchard v. Hewitt,. 91 Mo. 547; Leahy v. Davis, 121 Mo. 227; Dowd v. Air Brake Go., 132 Mo. 579; Railroad v. Judd, 20 Ky. L. 1978; 1 Joyce, Damages, secs. 511, 527; 2 Graham & Waterman on New Trials (2 Ed.), 451.

Louis City Circuit Court. — íío» John A. Blevins, Judge. (1) Our laws prescribing conditions upon which foreign corporations are authorized to transact business in this State do not render contracts void, made by a non-complying corporation, under the terms of which business is to be transacted in this State. R. S. 1899, secs. 1024-5-6; Chicago, etc., Co. v. Sims, 101 Mo. App. 578; Hogan v. City, 176 Mo. 149; Carson-Rand v. Stern, 129 Mo. 381; Ins.

— Row. J. L. Fort, Judge. (1) Appellants insist that at the date of the institution of the suit, judgment, execution and delivery of the tax deed by sheriff to respondent, George M. Johnson was a citizen of the State of Missouri. If so, he should have been proceeded against by summons and not by publication until a return of non est was had, or an affidavit that said George M. Johnson so concealed himself that the ordinary process of law could not be served upon him.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Defendant’s answer set np contributory negligence of plaintiff and it was error to give an instruction excluding this defense. Foster v. Guggemos, 98 Mo. 391; Holiday-Klotz v. Tie Co., 87 Mo. App. 167; Schmidt v. Railroad, 149 Mo. 269; Cameron v. Hart, 57 Mo. App. 142; Standfield v. Loan Assn., 53 Mo. App. 595.

— lion. Argus Cox, Judge. (1) The court should have given the instructions asked by defendants. They contained correct principles of law. The instructions asked by defendants and refused by the court covered the issues presented in the answer of defendants, while those given by the court only presented the same in part. (2) The court should have determined the rights of Mrs. Margaret J. Pippin. A court of equity will do, full and complete justice.

Louis County Circuit Court. — Now. John W. McElhinney, Judge. (1) The answer admitted every material fact necessary to establish a constructive trust, but set up certain facts by way of avoidance that if true would not change the relationship or status of the parties, nor excuse in law or equity the acts of defendant Kittlaus in violating his duty to his friend. If his conduct is conscionable in equity, we fail to see it. The court should have given judgment on the pleadings.

Prohibition. (1) The facts are admitted by the pleadings, hence, the court has only to pass upon a question of law.

Mandamus. (1) To wliat extent may sections 8251 et seq., be repealed as to corporations organized under them? The resolution of this question necessarily requires a consideration of the character of such corporations and the purposes for which they are authorized to be formed. Are they private or business corporations, or are they governmental or political corporations?

— Hon-. Hu-gli Dabbsr Judge. (1) Any influence, however exercised, which destroys free agency and substitutes the will of another for that of the person in whose name the act brought in judgment is done, is undue and wrongful. Dingman v. Routine, 141 Mo. 466. (2) The clause reserving the life estate in the deed does not make the conveyance a will. Likens v. Likens, 122 Mo. 279; Sneathen v. Sneathen, 104 Mo. 201; Allen v. DeGroodt, 105 Mo. 442.

— Hon. L. B.' Wood-side, Judge. (1) The court erred in refusing to make a finding of facts when requested by plaintiffs. Sec. 695, R. S. 1899; Hamill v. Talbott, 72 Mo. App. 22. (2) The court erred in not finding the facts as requested and in refusing declarations of law 2 and 3.

— No». Jas. E. Hazell, Judge. (1) At the time Randolph Pry executed the deed of trust under which defendant Woods claims, there was no suit pending that could affect his title. The writ of error subsequently issued was a new suit, and not a continuation of the foreclosure suit to reverse the judgment in which it was sued out. Macklin v. Allenberg, 100 Mo. 337; Macklin v. Smidt, 104 Mo. 361; Pierce v. Stinde, 11 Mo. App. 364.

<p>1. APPEAL: Filing Bill: Insufficient Recital in Abstract. A recital in the abstract “that plaintiff filed her bill of exceptions showing the above matters and things on the 11th of November, 1902, in accordance with the order of the court made and entered,” is a conclusion of law, and is not sufficient to show that the bill was filed within time permitted by the court, or that any permission was given by the court to file the same in vacation, or that the same was approved by the circuit judge, and on motion made by the opposite party the appeal will be dismissed.</p> <p>2. -: -: -: Filing Amended Abstract. Nor can the failure of appellant to comply with the statute and the rules of the court, which require an abstract to be served on respondent and be filed in this court thirty days before the case is set for hearing, be cured by serving on respondent and filing with- '• out leave three days before the case is set for hearing an additional abstract which shows that his bill of exceptions was filed within the time permitted by the court. [Distinguishing Lane v. Railroad, 132 Mo. 17.]</p>

— Hon. W. B. Teasdale, Judge. (1) (a) The verdict for one cent, and the one cent damages assessed, are the result of bias, passion and prejudice on the part of the jury, and said damages are grossly inadequate, unreasonable and absurd, (b). The verdict is arbitrary and is manifestly and clearly wrong.

Louis City Circuit Court. — How. H. D. Wood, Judge. The court erred in refusing the instruction in the nature of a demurrer to the evidence, offered by the defendant at the close of the plaintiff’s case, and renewed at the close of all the evidence in the case. The plaintiff’s husband was a man of mature years, in full possession of all his mental and physical faculties, well acquainted with the manner of operating cars at the place of the accident.

St. Louis City Circuit Court. — Son. Franklin Ferriss, Judge. (1) Tbe trial court cannot take judicial notice of tbe contents of tbe record of another ease pending before it, or decided by it; but sucb record must be introduced in evidence. Hence tbe court erred in sustaining defendant societies’ defense of res judicata, wbicb was done on tbe pleadings in tbis case and before any evidence was introduced. Adler v. Lang, 26 Mo.

— Hon. Henry G. Pepper, Judge. (1) This record will be searched in vain for a consideration that induced the giving of the declaration of sale, except indebtedness that was dne Mr. Boyd for interest… Held: in Missouri, that where a bank takes np a note, secured by deed of trust, to prevent foreclosure, retaining the note and mortgage as collateral security, as against the maker, the transaction is a purchase, with a right, on default, to foreclose the mortgage.

— No». John A. Eochaday, Judge. (1) There is no pretense that the injury was wantonly or willfully inflicted. Upon his own showing plaintiff was not entitled to recover and the court should have directed a verdict for defendant. Davies v. Railroad, 159 Mo. 1; Maxey v. Railroad, 113 Mo. 1; Jones v. Barnard, 63 Mo. .App. 501; Vogg v. Railroad, 36 S. W. 646; Evans v. Railroad, 178 Mo. 517.

— Hon. H. M. Ramey, Judge. (1) The jurisdiction of the justice of the subject-matter was special, and the law requires that the record made by that court in entering up a judgment in rem to disclose that jurisdiction; and will not permit property to be sacrificed to any such failure.

Quo Warranto. (1) The Act of 1893 makes the weighing of grain a part of the inspection of grain and requires that all grain which is “subject for inspection” and is inspected by State Inspectors, should be weighed by State weighmasters, whether such grain goes into or out of public or private warehouses or elevators, or is contained in “ears, barges, wagons or sacks.” Sec. 5632, R. S. 1889 (sec. 7650, R. S. 1899); sec. 5620, R. S. 1889 (sec. 7638, E. S. 1899); secs. 5657a,…

<p>1. ASSUMPSIT: When Action Will Lie. The action of assumpsit will generally lie whenever defendant has received money which in equity and good conscience he ought to pay over to plaintiff. The action, while maintainable 'at law, is of an equitable character, liberal in form and greatly favored by the courts as a remedy.</p> <p>2. -: -: Implied Promises to Pay. Although no express contract may exist between a city and the probate judge thereof, yet if it collects statutory fees pertaining to his office, it does so under an implied promise to account to him for so much thereof as it has received for his use.</p> <p>3. -: -¡Salaries Paid Clerk: Unconstitutional Statute. The Legislature enacted a law placing the probate judge of St. Louis upon a salary and requiring all the fees pertaining to the office to be turned into the city treasury. That law was held by the Supreme Court to be unconstitutional, but prior to that decision the city, believing the law valid and in reliance upon it, had collected $91,513.33 in fees, and in good faith paid out $42,499.68 to clerks in the probate judge’s office, and this last sum he sues for in assumpsit as for money had and received by the city. Held, that although the law which authorized the city to collect the fees and pay the clerk’s and the judge’s salaries out of the money so collected was unconstitutional and the same as if it had never been written, and plaintiff so held from the time he entered upon his duties, yet the law which provided for the election of a clerk and the appointment of assistants by the clerk was also unconstitutional; and as plaintiff made no effort to displace them, or replace them with others of his own appointment, but accepted of their services without advising them that they would not be paid and they with his knowledge and approval rendered the services, the law implied an agreement on his part to compensate them for the reasonable value of the services rendered; and as the city collected the fees in good faith and paid the clerks in reliance upon the validity of the law, and his office got the benefit of the services of the clerks so paid, and he would have been under obligation to pay them had the city not done so, he cannot recover.</p> <p>4. --: -: -: -: Waiver. The court will not permit a probate judge to reap all the benefits and rewards resulting to him from the labors of clerks and relieve himself of the burden of reasonably compensating them for the services done. And if the city, in reliance upon the validity of a statute authorizing it to do so, collects the fees pertaining to his office, and in the belief that it was its duty to compensate them for the services rendered, does so, although the Supreme Court subsequently declares the law invalid, and thereby, in consequence, reveals the fact that the duty was on the judge to collect the fees and compensate his clerks out of the money so collected, he will not be heard to ask that he be recompensed for the moneys thus paid 'to the clerks; but having, without objection or notice, accepted of the services of the clerks, he will be held to have waived any objection to the invalidity or unconstitutionality of the law in so far as it affected their right to their salaries.</p> <p>5. -: -: -: -: Silence: Counterclaim Asserted by City. The law and justice require something more than a mere passive policy of a probate judge who is receiving the services of clerks and approving of their appointment and work. And where his course has led the city to pay them, in the belief that he was not contesting its right to do so, although the statute under which it did so was invalid, the city will be permitted to set up as a counterclaim the amount paid by it to the clerks, when he comes into court asking that the city be compelled to pay to him the amount it had already paid to the clerks.</p> <p>6 -: -: -: -: Equity and Good Conscience: Tort: Mistake. Plaintiff’s claim to the fees being founded in equity and good conscience, he is required to do equity and allow the salaries which the city paid out for the performance of services upon which alone his claim for fees rests. On the other hand, there was nothing tortious in the conduct of the city or the clerks; they simply made the mistake of thinking it was their duty to obey an invalid statute passed with all the formalities required by the Constitution.</p> <p>7. -: -: -: -: Waiver. By electing to waive the tort and suing in assumpsit, the plaintiff has ratified the act of the city in receiving and holding the .fees for him, -and in the accounting he is chargeable with the fees paid out by the city to the clerks for their services in earning them.</p> <p>8. -: De Facto Officer: Right to Fees. An officer de facto can recover or be allowed the necessary expense of earning fees during his incumbency in derogation of the rightful officer. A fortiori, the city can be allowed the amounts paid out by it to the probate judge’s clerks in good faith in reliance upon the validity of a statute authorizing it to do so.</p>

Louis Court of Criminal Correction.— Hon. Hiram N. Moore} Judge. (1) Section 3021, Revised Statutes 1899, by its plain and unmistakable provisions, confers upon the Eixcise Commissioner the power to-revoke the license of any dramshop-keeper if, in his opinion, the- laws of the State have been violated. Higgins v. Talty, 157 Mo. 287.