Volume 20 — Missouri Appeal Reports

Louis Circuit Court, Daniel Dillon, Judge. The interest of Thomas Dorris in the net income from rents and profits, being an equitable right conferred upon him by a volunteer and not out of his own property or by trusts of his own creation, are not subject to the payment of his debts, until they become Ms by reduction to possession so as to be Ms property. Mcllvaine v. Smith, 42 Mo. 45; Hardenbtcrgh v. Blair, 30 N. J. Eq. 645; Pom. Eq.

Louis Circuit Court, Amos M.. Thayer, Judge. A motion filed before the circuit court from which the execution issued, to suppress such execution, is the proper remedy in this-case. Const, of Mo., art.. 6, sect. 23; Dillon v. Rash, 27 Mo. 243; Bain v. Chrisman, 27 Mo. 293; Ruby v. Hannibal & St. Jo. R. R. Co., 39 Mo. 480; Caldwell v. Fea, 54 Mo. 55.

<p>1. Libel — Evidencie—Malice.—In. actions for libel, evidence of statements, oral or written, made by the defendant after the publication of the libel, is admisible on the question of malice in fact.</p> <p>2. - Punitive Damages. — Evidence which shows that the defendant could have ascertained from his own books of account that the statements published were false, justifies an instruction for punitive damages on the ground of gross carelessness or recklessness.</p> <p>• :3.--Excessive Finding — Appellate Practice. — In cases where there is no legal rule for the admeasurement of damages, appellate courts will not reverse the judgment on the ground of an excessive finding, unless it appears that the jury disobeyed instructions or acted from motives of passion or prejudice.</p>

Louis Circuit Court, Daniel Dillon, Judge. The petition did not state a cause of action. Campbell v. Lambert, 36 La. 35; Jones v. JDurgin, 16 Mo. App. 370 ; Breeiieisen v. Coffey, 15 Mo. App. 83. The word “agreed” means something; at any rate, where the defendant answers over, tendering an issue of fact, and the case proceeds to trial and verdict, it is too late to move in arrest on the ground that the petition showed no cause of action. Pieicering ¶. Tel.

<p>1, Corporations — Contracts—Agency.—The by-laws of a manufacturing corporation, providing that no officer can bind the corporation by the purchase of any article exceeding twenty-five dollars in value, is no defence to an executed contract of sale where the vendor had no notice of the limitation imposed by the by-laws.</p> <p>18,---Estoppel. — A corporation having availed itself of the benefits of a contract of purchase made on its behalf, by using the articles bought, is estopped from setting up the fact that the agent exceeded his powers in making the purchase.</p>

Louis Circuit Court, Shepard-Barclay, Judge. A conveyance by an insolvent debtor, whose effect is to hinder and delay creditors, is fraudulent as to such creditors. Burger't v. Borchert, 59 Mo. 80; State to use v. Kaicert, 2 Mo. App. 295; Shelley v. Boothe, 73 Mo. 74, 76. The verdict of the jury, after a considerable portion of the assigned property had been released and replevined, was largely in excess of the debt. McNichols v. Rubleman, 13 Mo.

Louis Circuit Court, Amos M. Thayer, Judge. “When an officer wrongfully exercises a right of dominion over personal property, he is guilty of a conversion. His liability for the conversion attaches at once, and can not be removed by any act of his unless by the assent of the ■owner of the property.” Ereem.

<p>1. Landlord and Tenant — Rent.—The rent for a farm is payable at the expiration of a year, in the absence of any contract fixing the time of payment.</p> <p>-Practice — Premature Action. — An action for rent brought before the rent is due is premature and should be dismissed.</p>

<p>Frivolous Appeals — Appellate Practice. — An appeal from a judgment on an account, prosecuted on the ground that the plaintiff and the defendant testified to an opposite state of things, is frivolous.</p>

Louis Circuit Court, W. H. Horner, Judge, There having been an express contract as to both the nature of the services and the price to be paid, it necessarily results that quantum meruit can not be maintained. In all such instances the action must be on the express contract. Andre v. Hardin, 32 Mich. 324; Friermuth v. Friermuth, 46 Cal. 42; Moore v. Nason, 48 Mich. 300; Walker v. Bietry, 24 La. Ann. 349; Bull v. SL Johns, 39 Gra. 78 ; Provost v. Carlin, 28 La.

<p>Agency — Contracts—Voluntary Associations. — A corporation organized and chartered for the purpose of holding title to a college building and property erected and maintained by a religious denomination, is bound by contracts made by the synod of the denomination for the erection of the building, the synod being a shifting, unincorporated body, -which, however, controls the corporation.</p>

Louis Circuit Court, George W. Lubke, Judge. Whatever personal property belonged to the wife before manage, is by the marriage • absolutely vested in the husband. 2 Bl. Com., Cooley’s ed. 433; 2 Kent, Com., 12 ed. 143; Woodford v. Stephens, 51 Mo.” 443 ; Walker v. Walker, 25 Mo. 367. Evidence of a separate estate must be clear, positive, and free from taint. Holthaus v. Hornbostle, 60 Mo. 440; Fisk v. Wright, 47 Mo. 351.

<p>Equity — Appellate Practice. — In actions in equity, where -there is no substantial evidence to support the judgment, it will be reversed, and judgment will be entered for the defendant.</p>

<p>Appeal from the St. Louis Circuit Court, Amos M. Thayer, Judge.</p>

<p>Appeal from the St. Lonis Circuit Court, G-eoege W. Ltjbke, Judge.</p>

<p>Motion to retax costs.</p>

<p>Motion to dismiss an appeal from the Washington County Circuit Court.</p>

<p>1. Fraudulent Con veyances — Debtor and Creditor. — It seems that, as affecting the rights of creditors, there is an essential difference between conveyances which are void because made to the grantor’s use, and those which are invalid as against creditors for want of registry.</p> <p>2. -Appellate Jurisdiction. — This difference having been hitherto unrecognized by the supreme court, the courts of appeals, being bound by the last decision of the supreme court, are not at liberty to draw the distinction.</p> <p>8.--Under authority of the last controlling decision of the supreme court (Gfreely v. Reading, 74 Mo. 809), which holds that the title and possession of a mortgagee who has taken, and who holds possession under a mortgage which is constructively fraudulent, is valid as to subsequently attaching creditors, this case is affirmed.</p> <p>4. Appellate Jurisdiction. — The courts of appeals will not sustain a motion for a re-hearing on the ground that its decision is in conflict with a controlling decision of the supreme court, unless it be shown, that such decision of the supreme court is the last controlling decision.</p> <p>6. -Where one of the judges of á court of appeals is of opinion that the decision of that court is in conflict with any decision of the supreme court which has not been expressly overruled, the cause may be certified to the supreme court for its final decision.</p>

Louis Circuit Court, Daniel Dillon, Judge. The petition declares on a contract in writing, alleged to be executed by the plaintiff under his hand as well as by the defendant under his hand; there is no averment of its being a sealed instrument, but the contract offered in evidence was not signed by the plaintiff at all, and purports to be a sealed instrument.

Louis Circuit Court, Geobg-e W. Lujbke, Judge. On the undisputed facts, as recited by the witnesses in regard to the allowance of interest and payment of the balance struck, plaintiff could not recover. Kinman v. Cannefax, 34 Mo. 147 ; Adams v. Helm. 55 Mo. 468.

Louis Circuit Court. Amos M. Thayer, Judge. An instruction which assumes the existence of evidence to establish a certain fact, when no such evidence was introduced at the trial, is erroneous. Gunn v. Railroad, 60 Mo. 405 y Singer n. Hudson, 4 Mo. App. 145.

<p>'Error, to the St. Louis. Circuit Court, Daniel Dillon, Judge.</p>

Louis Circuit Court, Shepard Barclay, Judge. The court erred in submitting the case to the jury without first making Hayden a party defendant. Hayden was one of the joint contractors and defendant, Wnlfing, had a right to have him joined as a defendant, so that a personal judgment might be had against him and execution returned before the lien could be enforced against the property; this request was properly in the answer. Putnam v. Boss, 55 Mo. 116; HorstJcotte ».

<p>1. Divorce — Alimony Pendente Lite. — A motion for alimony pendente lite maybe granted by an appellate court where the appellant has not means with which to prosecute her appeal, and the merits of the appeal are debatable.</p> <p>.2. -Practice. — On motion for alimony, pending the suit before an appellate court, the necessities of the wife, and the husband’s financial ability to pay, should both be considered.</p>

Louis Girouit Court, W. H„ Hoenee, Judge. Tie names must bear suoi a resemblance as is calculated to mislead the public generally. Tie resemblance must be such that ordinary persons proceeding with ordinary care would be deceived.. MóGartmey t>. Garnhart, 45 Mo. 593; High on Injunction, sects. 691, 1088; Gilman v. Hv/nneuoell, 122 Mass. 139 ; Wolfe v. Goulard, 18 How. Pr. 64; Singer Mffy Go. v. Wilson, 3. C. L. J. 706; GoTladay v. Baird, 4 Phila. 139 ; s. O. Cox Am.

Louis Circuit Court, George -W. Lubke, Judge. Where the property in specific chattels sold has passed unconditionally to the buyer, the law gives no right to rescind the contract in the absence of an express stipulation to-that effect. Walls v. Gates, 4 Mo. App. 4; Story, Sales, sect. 421;;Sedg., Dam. (7 Ed.) 605; Benj., Sales (1 Am. Ed.) sect. 888, and cases cited; 5 Wait, Act. and Del 610.

<p>Appeal from the St. Loins Circuit Court, Amos M. Thayer, Judge.</p>

<p>Appeal from the St. Louis Circuit Court, Amos M. Tiiayer, Judge.</p>

Turner A. Gill, Judge. Statement of case by the court. This is an attachment suit. Under the writ of attachment the sheriff seized as the property of the defendant, certain property in the hands of the interpleader.

A. J. Seay, Judge. The facts sufficiently appear from the opinion of the court. I. The petition specifically averred the execution ■and loss of two of the notes sued on. The answer denies the execution of said notes, and denies that they were ever in existence, but does not deny that they were lost. When plaintiffs proved their existence at one time, the court erred in requiring them to go further and prove loss, since that was not denied, nor in issue. II.

Upon bearing of petition for discharge, upon habeas corpits. Statement of case by the court. This is a proceeding under the habeas corpus act, in which the petitioner alleges he is illegally restrained of his liberty by Andrew J. Súber, at the city of Mexico, Audrain county, Mo. s The return made by Súber shows him to be street commissioner of Mexico, and that as such ‘.he has the petitioner in charge.

A. J Seay, Judge. Statement of case by the court. This suit was brought before a justice of the peace upon an ordinary account.

James M. Davis, Judge. Statement of case by the court. This is a suit in equity. The petition, omitting the-caption, is as follows: “Plaintiff says that about the fourteenth day of November, 1877, one E. D. McCray died at-Kingston, Caldwell county. That one Thomas J. Owen was appointed administrator of the estate of said' E. D. McCray by the probate court of Caldwell county.

Gr. D. Burgess, Judge. . . The facts sufficiently appear from the opinion of the court/ I. This is not a case of variance, but of failure of proof. There was no proof of the road, or of its locality. Wharton Cr. Evidence (8 Ed.) sect. 109 ; Kelley’s Criminal Law and Practice, sect. 182. The instructions ignore the issues. II. Defendant’s instruction in the nature of a demurrer to the evidence should have been given.

Gk D. Burgess, Judge. Statement of case by the court. This is an action on a policy of insurance. The petition is in the usual form. The first defence in the answer set up a statement in plaintiff’s application for insurance, that he was the owner of the ground on which the insured building stood, a provision in the policy sued on referring to this application and making it a warranty, and an allegation that plaintiff was not the owner of the ground.

Turner A. Gill, Judge. Statement of case by the court. This is an action of replevin. One Hedrick, of Independence, by written contract of purchase with plaintiffs, contracted for the purchase of a billiard table and furniture.

Joseph P. Grubb, Judge. The facts sufficiently appear in the opinion. I. This was a suit upon a promissory note, dated April 4, 1869, due six months after date. The petition was filed June 15, 1883. The answer sets out that the claim is barred by the statute of limitations. Judgment was rendered for plaintiff. Defendant claims a reversal of it, upon the grounds hereafter stated. II.

F. M. Black, Judge. Statement of case by tbe court. This is an action to recover for services alleged to bave been rendered defendant by plaintiff. Tbe petition contained two counts. Tbe first alleged that in January, 1882, tbe plaintiff made a voluntary assignment for tbe benefit of creditors to tbe defendant, as assignee, of a lot of goods in Kansas City.

GK I). Burgess, Judge. The case and facts are sufficiently stated in the opinion of the court. I. The petition and all the testimony show that if Mary E. Johnson had any interest in the property, it was undivided. In such case she could not alone maintain the suit. Bliss on Code Pleading, sects. 61, 62; 2 Barbour on Parties (2 Ed.), sect. 2, p. 266 ; Brown on Parties, 209 ; Little v. Harrington, 71’Mo. 391. This is an action in contract on the bond.

James M. Davis, Judge. Statement of case by the court. This is an action for divorce.

Turner A. Gill, Judge. Statement of case by the conrt. On tke first day of August, 1881, tke firm of Steifel & Ney, doing business in Kansas City, were largely indebted to various creditors, among whom were tke Bank of Kansas City, tke Ankeuser-Busck Brewing Company, of St. Lonis, and the firm of Wallwork & Harris, of Louisville, Ky.

<p>1. Landlord and Tenant — Continuance of Lease by Parol. — 'Where a store house was'leased, by contract in writing for three years, at a rental rate per month, payable monthly ; and at the end of the term, the parties, by parol, continued the term on the same condL tions, the tenancy was one from year to year, or from month to month, according to the time of the payment of the installments of rent. The same result is x»'acticallv reached by axsjilying to the transaction the provisions of section 3078, Revised Statutes.</p> <p>2. - Continuance by Implication. — Where the continuation of the lease from year to year, or month to month, arises on imxilication, the lessee, by holding over beyond the day when the term expires by the contract, is presumed to have made his .election to continue the lease on the same terms. So that he is bound for the whole month, whether he actually occupies or not. But if the lessee abandons the premises and the abandonment is acquiesced in by the lessor, this operates as a waiver of notice from the lessee.</p> <p>8. - Rent Reserved by Periods. — Where, by the contract the rent is reserved x>ayable yearly, half yearly, quarterly, or monthly, the rent accrues at the exxsiration of these jieriods only, and not de die in diem. In such cases no rent or comxiensation can generally be recovered for a xn-oportionable part of a less period, except under special circumstances, from which a new agreement to pay rent pro rata may be implied and found as a fact by the jury*</p>

Joseph P. G-rubb, Judge. The case and. facts are stated in the opinion of the court. I. The demurrer to the evidence should have been sustained. There was no proof of any negligence whatever •on the part of defendant. Lawson on Contract of Carriers, sect. 187, and cases cited. The contract was to transport the goods to Chicago; not to the store of the consignee. Ibid, sect. 248; Clark v. R. R., 64 Mo. 440 ; Sturgeon v. R. R., 65 Mo. 569 ; Cramer v. Express Co., 56 Mo. 524.

Joseph P. G-rubr, Judge. Statement of case by the court. John Saare, ten years of age, by his father as next friend, brought this suit to recover damages for his injuries, alleged to have been caused by the negligence of the driver of one of defendant’s horse cars. Defendant filed motion to make the petition more definite and certain. Which motion was overruled.

Joseph P. G-rubb, Judge. The case and facts are stated in the opinion of the court. I. Under the statute (section 809, Revised Statutes), defendant was not required to construct a fence between its right of way and that of the Hannibal & St. Joseph Railway Company. Sellable v. R. R., 69 Mo. 91; Walton v. R. R., 67 Mo. 56 ; R. R. v. Brown,' 23 HI. 94; 27 lb. 80, 48. The statute is penal, and should be strictly construed.

James M. Davis, Judge. The facts are stated in the opinion. I. The complaint does not state a cause of action, :at common law; and the obstructing of the public crossing or highway,«was not the proximate cause of the injury. Powell v. Devenney, 3 Cushing 301; SeJimidt v. R. R., 83 HI. 405; BoscTi v. R. R., 44 Iowa 402. II. The judgment should have been for defendant. 'There could be no recovery under the statute. Section 2124, Bev. Stat. ; Walton v. R. R., 67 Mo. 56.

Joseph P. Grubb, Judge. The case and facts are stated in the opinion of the court. I. The demurrer to the evidence should have been sustained. It was shown by the. testimony that the injury could not have been avoided. Upon such a state of ‘ facts, there could be no recovery upon the allegation of negligence in the management of the train. Wallace v. R. R., 74 Mo. 597; Bell v. R. R., 72 Mo. 61, and cases cited. II. The court admitted incompetent testimony.

Turner .A. G-ill, Judge. Statement of case by the court. This is an action brought by plaintiff to recover the •cost of lowering and relaying a water pipe of plaintiff’s in one of defendant’s public streets, made necessary by a change of the grade of said street.

Joseph P. Grubb, Judge. Statement of case by the court. This is an action by plaintiffs, who are husband and wife, upon a policy of insurance issued by defendant to the female plaintiff, insuring her against loss or damage by fire to her stock of wholesale and retail millinery goods. The petition is in two counts, there having been a loss by each of two separate and distinct fires.

Joseph P. Grubb, Judge. Statement of case by the court. This action was begun in the circuit court for the recovery, under section 809, Revised Statutes, of damages on account of the killing of four steers, the property of plaintiff. The petition stated a good cause of action. The evidence showed that there was no fence on the •east side of defendant’s railroad, north or south of the point where a certain public road crossed said railroad.

Hon. Turner A. Gill, Judge. Statement of case by tke court. This action was begun before a justice of the peace against Joseph Benoist and William Keene upon the following statement: “ The plaintiff states that on the-day of June, 1883, he was tenant, and occupier as such, of house number -, Missouri avenue, Kansas City, Missouri; that defendant, Benoist, was at the time before named owner of said house, and also of the land adjoining, east, upon which he and his…

Louis Circuit Court, W. H. Horner, Judge. The second defence averred that the agreement between Dodd, Shown & Company, and Woods was unlawful and void, while the third defence, rélied upon such agreement, although alleged to be void, as an accord and satisfaction. This is such inconsistency as the statute forbids. Rev. Stat., sect. 3523; Fugate v. Pierce, 49 Mo. 441, 449; McAdow v. Poss, 53 Mo. 203.

<p>1. Trial Practice — Opening Statement. — The trial court may permit the plaintiff, in his opening statement to the jury, to omit the reading of the pleadings.</p> <p>■2. Appellate Practice — Non-suit.—An appellate court will not reverse a judgment because of the trial court’s refusal to give an instruction of non-suit, where the record recites that the “plaintiffs introduced other evidence tending to establish the allegations in their pleadings. ”</p> <p>.8. -Instructions. — Under such a recital in the record, the appellate court will not review the action of the trial court, in refusing instructions limiting the jury to the consideration of particular facts.</p> <p>4. Trial Practice — Instructions.—It is error to single out particular-facts in evidence, which are not in themselves conclusive, and put the case to the jury upon them.</p> <p>:6. -Trustees — Personal Liability. — A legal owner of property as trustee under a will, who contracts debts in the management of it, is liable personally to a creditor irrespective of whether he acted as an individual or as trustee in creating the debt.</p>

Louis Circuit Court, Gteorg-e W. Lubke, Judge. The municipal assembly had no power to pass the ordinance bi question, since the mayor did not mention the subject aiatter of it in his message. St. Louis n. Withaus, 16 Mo. App. 247. The contract was improperly awarded. Addis v. Pittsburg, 85 Pa. St. 379 ; Bigler v. Mayor, 5 Abb. N. C. 51; Kneeland v. Milwaukee, 18 Wis. 411; Wells v. Burnham, 20 Wis. 112.

Louis Circuit Court, George W. Lubke, Judge. The validity of a sale depends upon the good faith of the vendee. He has the right to purchase goods although he is insolvent and knows himself to be insolvent. Bidault v. Wales, 19 Mo. 36: Redington v. Roberts, 25 Yt. 686; Rodman v. TTialheimer, 75 Pa. St. 232; Klopenstein v. Mulcahy, 4 Nev. 296; Morrill v. Blackman, 42. Conn. 324.

<p>Appeal from the St. Louis Circuit Court, George W. Lubke, Judge.</p>

Louis Circuit Court, Daniel Dillon, Judge. A sale of personal property, unless followed by an open and visible change of possession within a reasonable time, regard. being had to the situation of the property, is fraudulent and void as against creditors. Rev. Stat., sect. 2505; Claflin. v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 326. What is a reasonable time, is a question of law for the court.

<p>Appeal from the St. Louis Circuit Court, W. H. Hobneb, Judge.</p>

<p>1. Mechanic’s Liens — Parties.—In an action by a sub-contractor to enforce a mechanic’s lien it is sufficient if one of the original contractors is joined with the owner in the suit.</p> <p>2. -Variance. — In such a case there is no variance between a petition which alleges that the original contract was made with A, and proof that it was made with A and B.</p>

B. Woodside, Judge. The bond was sufficient. Bev. Stat., sect. 404. And bound the partnership which executed it. Terns v. Hughes, 10 Mo. .380. The affidavit was sufficient. Bev. Stat., sects. 403, 464. If the affidavit was insufficient the plaintiff should have been allowed to amend. Henderson v. Draee, 30 Mo. 358. The affidavit having been made by a stranger to the record, is insufficient. Bev.

D. Poster, Judge. If only a contract or an obligation, tbe defendants bad six days to plead, and final judgment rendered at tbe return term was error. First Nat. Banlc v. Marlow, 71 Mo. 618. Tbe note of a married woman, if genuine, is only evidence of ber intention to bind ber separate estate, and is fitly called an “engagement” or an “obligation.” And if sbe bad no separate estate it was void. Williams v. Jensen, 75 Mo. 681; Boatmen’s Sav. Banlc v. Collins, 75 Mo. 281.

<p>Appeal from the Laclede County Circuit Court, Ben. Y. Alton, Judge.</p> <p>The owner of cattle incurs no responsibility and is not guilty of any fault or negligence towards others by allowing the same to run at large, and the owner of fields with crops can only recover for damages done when he incloses his field with a legal fence. Gorman v. Railroad, 26 Mo.. 441; Moore v. White, 45 Mo. 206.</p>

<p>1. Appellate Practice — Appeals — Rule op Court. — Appellate courts may, in their discretion, continue the cause or dismiss the appeal, where the appellant fails to file a brief within the time pi .-..oribed by rule of court.</p> <p>2. -In such a case, where the appeal appears to be without substantial merit, it should be dismissed.</p>

<p>Appeal from the Lawrence County Circuit Court, M. Gr. MoGíregor, Judge.</p>

D. Foster, Judge. The petition •contains two distinct and independent causes of action, improperly united and commingled in one count. Bev. ,Stat., sect. 3512; Mooney v. Kennest, 19 Mo. 551; Mulholland v. Rapp, 50 Mo. 42. There is a material and fatal variance between the contract declared upon in the petition, and the contract offered in evidence. Franklin v. Globe Mutual Insurance Company, 52 Mo. 461; Harris v. Railroad Go., 37 Mo. 307; Steph. PL 84, 8th Am.

Louis Circuit Court, Daniel Dillon, Judge. The fact that the plaintiff had no’ license as a real estate agent is a question between him and the city, arid not between him and the defendant. Prietto v. Leíais, 11 Mo. App. 601.

<p>Appeal from the Lawrence County Circuit Court, M. G. McGregor, Judge.</p>

Louis Circuit Court, Amos M. Thayer, Judge. The fact of taking a deed of trust to secure an overdue note, which deed of trust is not enforceable for a definite time, will constitute an agreement for delay for such time as the deed of trust has to run, and will discharge a security on the note secured by such trust who was not privy to the taking of the same. Bmarr v. BcTmitter, 38 Mo. 481, 482; Roberts v. Moseley, 64 Mo. 507.

Wilson, Judge. The parties who made contracts with, did work for, and received the warrants from the Cape Pottery Company, issued in its corporate name, are estopped from denying its corporate existence. Herm. Estop., sects. 571-573-575; Ang. & A. Corp., sects. 635-638; Bailey v. Trustees, 12 Mo. 175; Ohio & Miss. Railroad Go. r. McPherson, 35 Mo. 13; Smith v. Heidecker, 39 Mo. 157; Kansas Gity Hotel Go. v. Harris, 51 Mo. 464; Farm. & Merch. Ins.

James-M. Davis, Judge. The case is stated in the opinion. 1. There was no demand made for the horse prior to the suit. Defendant had lawful possession, if any. II. The same rule governs in the lien of a livery man, nude: the statute, as in common law liens. When the lienor once loses possession of the property upon which he has his lien, he also loses his lien.

Gr. D. Burdess, Judge. The case is stated in the opinion. I. There was no implied warranty of the spool thread on the part of plaintiffs. Hilliard on Sales (2 Ed.) 244-257; By an v. Ulmer, Sup. Ct. Pa. July, 1885. II. Hassett was plaintiffs’ special agent, and the instructions asked by plaintiffs should have been given. Ayres n. Milroy, 53 Mo. 516; Ohouteau v. Filley, 50 Mo. 174; Wright v. Baldwin, 51 Mo. 269. . III.

Andrew Ellison, Judge. The case is stated in the opinion. I. The court erred in directing that there was no evidence that defendant assaulted plaintiff’s wife. It left out of view an assault by another who was acting at his instigation. II. Defendant’s second instruction was wrong, because defendant did not set up any matters in justification in his answer. £i Justification must always be specially pleaded.” ' 2 G-reenl. Evid. (14 Ed.) sect. 92; 1 Chitty Plead. (14 Am.

A. J. Seay, Judge. Statement of case by the court. D. C. Duncan, as administrator of the estate of John B. Cooper, deceased, sold certain real estate belonging to said deceased, pursuant to ■ the order of the probate court, for the payment of debts. James M. Cooper became the purchaser thereof at $2,625. He paid $1,200 of this amount, and died owing the balance. The plaintiffs are the administrators of his estate and were appointed in June, 1877.

Turner A. Gill, Judge. The case is stated in the opinion. I. Defendant, Metcalf, knowing that Brown claimed that there was an agreement between Miley and himself that Brown’s indebtedness to their firm was to be paid by setting off the amount Miley owed Brown against it; and that upon that representation Brown had become indebted to the firm; and not ever having disavowed such agreement, upon full knowledge of what Brown claimed, he thereby ratified Miley’s contract.

Turner A. Gill, Judge. Statement of case by the court. Plaintiffs, respondents here, obtained judgment in a justice’s court against one T. Stephenson, as the original contractor for the erection of a building. The defendant, D. P. Alderson, was the owner of the property, and- the judgment further enforced a mechanic’s lien against the property of Alderson for the payment of said debt, in favor of plaintiffs, as sub-contractors under Stephenson.

Tuknek A. G-ill, Judge. The case and facts are sufficiently stated in the opinion. I. Possession is only prima facie evidence of ownership, and it was the province of the jury to raise the presumption arising from the fact of possession, and it was error for the court to tell the jury that the fact of possession being proved, the law presumed the defendant to be the owner of the property in question. 2 Best on Evid. 589, and note; 28 Mo. 388. II.

Q-. Burokhartt, Judge. Statement of case by the court. This is an action of conversion. The petition is as-follows: “Plaintiff for his cause of action against defendant complains and alleges: That on the-day of-> 1883, he rented of defendant a certain building, situated on lots number twenty-three and twenty-four, in block number thirteen, in the original town of Moberly, Missouri, and occupied the same as a cigar store.

John P, Strother, Judge. Statement of case by the court. This is a petition for a private road-way. The petition to the county court is as follows: “Your petitioner states that he is an inhabitant of Saline county, state of Missouri. That he is the owner of the following described tracts of land, situated in said county, and upon which he now resides : (Here follows a description of the land).

John P» Strother, Judge. Statement of case by the court. This is an action in trespass, for the wrongful taking of goods alleged to be the property of the plaintiff, Mary E.,White, •‘whose husband, Everett White, is joined as co-plaintiff, as a formal party. The facts as disclosed at the trial are substantially as follows : The plaintiffs, were married in the state of Kentucky iu 1874, aud continued to live there until 1882, when they came to Sedalia, Mo.

Chas. H. 5. Goodman, Judge. Statement of case by the court. This case was tried in the circuit court upon an amended information, therein filed, charging that the defendant “ on the nineteenth day of October, 1883, at the said county of Gentry, did then and there unlawfully carry concealed upon and about his person a certain deadly and dangerous weapon, to-wit: a pair of metal knucks.” The defendant filed his motion to quash the amended Information, “for the reason that the…

Noah M. GI-ivan, Judge. The case is sufficiently stated in the opinion of the court. I. It is not disputed that defendant had, and carried' for a time, a concealed weapon. But the right to defend one’s person is a natural and fundamental right, and the right to bear’ arms in defence of one’s home., person and property, concealed or not concealed, is a constitutional right. Const. Mo. 1875, art. 2, sect. 17.

John E. Hyland, Judge. The case is sufficiently stated in the opinion of the court. I. In cases of written or printed libel the proof must agree with the indictment in every particular essential to the identity, and a variance in any of these particulars is .fatal. Greenl. Evid., sect. 167 (Ed. 1868); 1 Bishop Crim. Proc., sect. 530 (Ed. 1880). Neither “frod,” nor “frad,” is idem sonans with fraud, set out in the information.

Clair Circuit Court, Hon. C. Gr. Bukton, Judge. Statement of case by the court.

C. M. Wright, Special Judge. The case is sufficiently stated in the opinion of the court. I. The offence is charged to have been committed on September 20, 1883. The defendant demurred to the indictment upon the ground that it charged no offence. The demurrer was sustained and the slate appealed. II. The statute charged to have been violated is 5476, Revised Statutes. It is claimed that this was repealed by the act of 1881 (Laws 1881, p. 130).

Ben. Y. Alton, Judge. The case is stated, iu the opinion. I. There was no evidence whatever that the offence was committed in Polk county and judgment should have been arrested. State v. Babb, 76 Mo. 501; State v. Burgess, 75 Mo. 245 ; State v. Britton, 80 Mo. 60. II. The indictment is bad. It charges defendant with selling liquors, as a druggist, without a dramshop license, and without a prescription by a physician, neither of which was necessary.

<p>Appeal from Saline Criminal Court, Hon. John E. Ryland, Judge.</p>

James M. Davis, Judge. Statement of case by tbe court. The defendant was indicted for selling, in 1884, intoxicating liquors in less quantity than one gallon, to-wit, one-half pint of whiskey, “ without taking out or having a license as a dramshop keeper, or any other authority to sell the same.” The case was tried by the court sitting as a jury.

Joseph P. Grubb, Judge. The case and facts are sufficiently stated in the opinion. I. Duplicity is a substantial objection. Sect. 3530, Rev. Stat. Defendant had a right to be informed of the specific neglect, on account of -which a recovery against it was sought. Sects. 3529, 3531, Rev. Stat. ; Attebury v. Powell, 29 Mo. 429. II.

Ft.t.tatt Robinson, Judge. The case is sufficiently stated in the opinion of the ■court. I. Where the trial is by the court, and there is no dispute as to the facts, matters of law necessarily passed on by the court in arriving at its conclusion, are subjects of review in the appellate court, although no. instructions were asked or given. Walter v. Ford, 74 Mo. 195; Henry v. Bell, 75 Mo. 194.

G-eorge W. Dunn, Judge. The case and facts are sufficiently stated in the opinion. I. There wp-s no evidence upon which to predicate the first instruction given for plaintiff:, and it was calculated to mislead the jury. There is absolutely no evidence that the fence was defective, and the gate could not be considered as included in it. Lester v. It. It. (60 Mo. 265), would seem to be decisive of this point. II.

•Appeal from Clinton Circuit Court, Hon. G-eobge W. Dunn, Judge. The facts .are sufficiently stated in the opinion of the court • I. As the duty of caring for the animals, while in transit, was, by the special contract, assumed by plaintiff, the burden rested upon him to show that the loss resulted from the negligence of defendant.

Elijah Robinson, Judge. Statement of case by the court. This action was instituted before a justice of the peace in Audrain county, Missouri. Plaintiff filed the following complaint in the justice’s court: “The Wabash, St. Louis & Pacific Railroad Company to J. B. Gregory, Hr. “ To value of one cow, killed by train on said road, on May 12, 1883,. near the eastern part of Mexico, between mile posts number 107'and 108.

Andkew Ellison, Judge. Statement of case by the court. This is an action to recover damages against the tefendant — a railroad corporation — for delay in shipping M’tain hogs, the property of plaintiff.

<p>Error to Andrew Circuit Court, Hon. H. S. Kellet, .Judge.</p>

Noah M. Gtiyan, Judge. The case is stated in tlie opinion. I. The only act of negligence complained of by plaintiff is that of Neilson, the boss or foreman of a gang of men engaged in the repair of defendant’s track. They were fellow-servants, and in the absence of any negligence in the employment of said Neilson, defendant is not liable for any injury caused by his misfeasance. Ilohe v. II. B., 11 Mo.

Andrew Ellison, Judge. The case and facts are sufficiently stated in the opinion of the court. I. The petition is defective. The statute requiring, railroad companies to transport mixed live stock in the same car was not pleaded. Walthen v. Warner, 26 Mo. 146. No breach of duty on the part of defendant is averred. Field v. Railroad, 76 Mo. 616; Sess. Acts Mo. 1881, p. 82. II.

John P. Strother, Judge. The case is stated in the opinion. I. The court erred in admitting as evidence the deposition of Beebe. It is made np of hearsay evidence. He admits that of Ms own knowledge, he-don’t know how much wheat there was in the car. So, also, as to the deposition of Roach. The deposition showed that there was better evidence; “the best attainable evidence must be produced.” 1 Greenleaf on Evidence, sections 99, 82 ; Redfield’s 12th Ed. II.

James M. Davis, Judge. Statement of case by the court. This is an action for damages for the killing of the plaintiff’s cow, through the alleged-negligence of defendant’s servants and agents in running its “cars and locomotive. ’ ’ The evidence introduced by plaintiff tended to show that his cow was killed by one of defendant’s ■engines on the main track of its railroad within the switch limits of the town and station of Breckenridge ; that the cow went upon the track when…

Chas. Gi. Burton, Judge. The case is stated in the opinion. The court erred in setting aside the 'judgment for the defendant, entered upon the verdict of the jury. The issues were fairly presented and passed upon, and in setting aside the judgment the court usurped the province of the jury, and substituted its judgment for that of the jury.

Andrew Ellison, Judge. Statement of case by the court. This action was instituted in the circuit court of Macon county, Missouri, by Mary Thomas, a married woman, with her husband joined as a nominal plaintiff, as required by section 3468, of the Revised Statutes, to recover the sum of five thousand dollars damages for certain personal injuries alleged to have been received by said Mary-Thomas while a passenger upon one of defendant’s freight trains from Pry to Kirksville,…

G. Do Burgess, Judge. The case is stated in the opinion. I. Before defendant can be held guilty of negligence on account of defects in the sidewalk (not arising from their original construction), either express notice of the existence of the defect must be brought home to it, or it must be so notorious as to be observable by all. Donlin n. City of Clinton, 13 Iowa 399 ; Mayor, etc., AT. T. «. Sheffield, 4 Wall. (IJ.

<p>Appeal from Adair Circuit Court, Hon. Andrew Ellison, Judge.</p> <p>Statement of case by tlie court.</p> <p>This is an action begun in the circuit court for the recovery of the possession of certain personal property, consisting of a miscellaneous stock of goods.</p> <p>The defendant in his answer justified under two certain executions issued by a justice of the peace, by virtue of which he as constable ‘ ‘ did seize • and levy on said goods to satisfy said executions and costs, but at that time the sheriff of Adair county had said goods in his ■custody by reason of an attachment suit * * * and said seizure and levy made by defendant as constable was made subject to said attachment suit; that said attachment was dissolved and said goods were released by said sheriff, and this defendant then as said constable did proceed to sell said property for the purpose of satisfying said executions * * * and that before he could sell the same said goods were taken from him by writ of replevin in this suit.” The answer also alleged that the plaintiff and the defendant, in the executions, for the purpose of defrauding the latter’s creditors, and especially the plaintiff’s, in the executions conspired together, and made a pretended sale of the goods to the plaintiff. The reply admitted that the defendant was constable, and .admitted also that the sheriff was in possession of the goods on April 19, 1883, by virtue of the writ of attachment, and denied all other new matter. The plaintiff introduced evidence tending to show that he purchased the property in dispute on April 23, 1883, and took possession of it on the same day; that Johnson, the defendant in the executions, gave him the key to the store and put him in possession.</p> <p>The defendant offered the executions and the defendant’s returns thereon in evidence. The offer was ■denied by the court. On each execution was the same original return and to each execution was attached the same supplemental return. The returns were as follows;</p> <p>“constable’s return.</p> <p>“Served the within writ by levying on the goods and chattels of the defendant, as per exhibit marked and hereto annexed, subject, however, to an attachment in the hands of the sheriff of Adair county, Missouri, and I so declare to John Shaver, sheriff of Adair county's. Missouri, on the nineteenth of April, 1883.</p> <p>“E. Corbin, Constable.</p> <p>1 ‘ SUPPLEMENTAL RETURN.</p> <p>“I, Early Corbin, constable of Benton township,, in Adair county, Missouri, for a further and supplemental return to the command of this execution do say that on the nineteenth day of April, 1883,1, by virtue of' this execution, did seize and levy upon the goods and chattels of the defendant, George W. Johnson, as set-out and described in exhibit marked £ A’ and attached to this execution, subject, however, to an attachment in-favor of plaintiff 'against the defendant, George W. Johnson, that on which the sheriff of Adair county, Missouri, had seized and attached the goods described in said exhibit £A,’ and had said goods in his possession, that is, he had taken possession of said goods and locked them up in the store house of the defendant, and this relator, the constable aforesaid, could not get the' entire control of said goods as against the said sheriff, but he done all he could to hold said goods continuously that said attachment suit was dissolved and abated, and said goods were released from said attachment on the-day of April, 1883, and that the said constable' then took full possession and control of said goods, on the-day of April, 1883, and was about to advertise said goods and sell them to satisfy this execution, and that on-day of April, 1883, said goods were taken. from his possession by the sheriff of Adair county, Missouri, by virtue of a writ of replevin, wherein one Gibson Hombs is plaintiff, and this relator is .defendant; and further relator says he has not found any other-goods or chattels of defendant subject to levy and sale, under execution in Adair county, Missouri, and returna this writ nothing made thereon.</p> <p>££E. Corbin, Constable.”</p> <p>Costs of this execution as follows: For taking goods allowed by J. P., $7.50.</p> <p>The court gave the following instruction:</p> <p>“The jury are instructed that they must return a verdict for plaintiff in the following form, to-wit: We the jury find for the plaintiff and one cent damages for the unlawful taking and detention of the goods.”</p> <p>I. When fraud is charged in the pleadings, the failure to produce those as witnesses, who know all about the transaction, is always unfavorable to the party thus failing, and raises a presumption of fraud. Baldwin v. Whitcomb, 71 Mo. 568; Henderson v. Henderson, 65 Mo. 534; Cass Co. v. Oreen, 66 Mo. 498; Houts v. Shepherd, 79 Mo. 147.</p> <p>II. The executions should have been admitted in evidence. They were liens on the goods and chattels found in Adair county (sect. 3017, Rev. Stat.), and being liens, Hombs could not recover, until he either showed himself an innocent purchaser, or that the goods were exempt by law, neither of which could he do under the pleadings. The burden was on him to show the goods were exempt, he claiming to be a transferee of Johnson. Stone v. Spencer, 77 Mo. 356.</p> <p>III. The constable’s return was evidence of every fact that the law requires of him to state in his return, and is conclusive as to the parties to the action or their privies. Murfree on Sheriffs, sect. 868, and cases cited; Beeves v. Beeves, 33 Mo. 28. It is not claimed that while the sheriff had actual possession of the goods under the attachment that the constable could take them, but that he had the right to seize them after the attachment was ■dissolved, as he did do. Patterson v. Stephens, 77 Mo. 829, and cases there cited.</p> <p>IY. The constable should have been permitted to amend his return to conform to the facts, and the executions admitted in evidence. Murfree on Sheriffs, sect. 878.</p> <p>I. The evidence showed a sale by Johnson to plaintiff, and his possession of the store and property when the constable came there. This is certainly a prima, facie case of ownership. Smith v. Lydick, 42 Mo. 209.</p> <p>II. To constitute a valid levy of an execution there must be an actual seizure and taking possession of the property by the officer. Rev. Stat., sect. 2357; Douglass v. Orr, 58 Mo. 73.</p> <p>III. The property being in the hands of the sheriff under the attachment, was in custodia legis, and not subject to levy or sale under executions in the hands of the constable. Drake on Attachments, sect. 267 ; Freeman on Executions, sect. 135; Murfree on Sheriffs, sect. 532; Bates Co. BJc. v. Owen, 79 Mo. 429 ; State ex rel. v. Six, 80 Mo. 61.</p> <p>IV. The constable could not have made a valid levy, without first notifying defendant of the property exempt from execution under sections .2342, 2343, and 234f‘ of the Revised Statutes.</p> <p>V. The executions were not liens. (1) The property being in the custody of the law was not subject to execution, levy or sale. Sect. 3017, Rev. Stat. (2) Because at the time of the trial the executions had become dormant.</p> <p>VI. The motion to amend the constable’s return came too late. The court was not informed as to what amendment and constable did not offer to make any particular amendment. Allen ». Hanson, 44 Mo. 263; Simonons z>. Carrier, 68 Mo. 416.</p> <p>VII. Fraud will not be presumed. Henderson n. Henderson, 55 Mo. 555; Dallam v. Henshaw, 26 Mo. 533; Humbold v. .Parr, 51 Mo. 592; Chapmaoi v. Mellwrath, 77 Mo. 38.</p> <p>VIII. Exempt property may be sold unaffected by a lien. When sold, the purchaser would necessarily have the right to protect himself by showing it to be exempt. Buckley v. Wheeler, 52 Mich. 1; Emerson Baker, N. W. Rep. No. 5, December 5, 1885, page 503.</p>

Jambs M. Davis, Judge. Statement of case by tie court. This is an action to recover commission by a real estate broker. The evidence tended to show, on the part of plaintiff, that tke defendant was part owner of a mill at Breckenridge, Missouri, wkere both, parties reside; and tkat defendant placed tke same in plaintiff’s kands to sell for Mm on a commission. Tke plaintiff made diligent effort to effect the sale, by soliciting various parties to purchase.

NoahM. Gíivan, Judge. The case is stated in the opinion of the court. I. Where the property has been delivered to plaintiff in an action of replevin before a justice, and the cause is tried by a jury whose verdict is for defendant, with no finding as to the right of property or the value, and no damages are assessed, no action can be maintained against the sureties on the bond. (1) These matters are not open to inquiry in an action on the bond. White v. YanHouton, 51 Mo. 577.

G. D. Burgess, Judge. Statement of case by the court. The petition states that plaintiffs are husband and wife; that in January, 1875, one Clarkson executed to the plaintiff, Minnie Brown, his promissory note for the sum of $850 ; and that for the better securing the payment thereof he executed to one Brownlee a deed of trust on certain described lands in Linn county; that in January, 1877, the defendant, Kirk, bought said land of Clarkson, and by arrangement and agreement…

GL H. Burokhartt, Judge. Statement of case by the court. The petition in this case avers that the defendants, as partners, in consideration of a certain sum to be paid by plaintiff, agreed “to do all the brick and stone work in building the foundation and walls in a certain dwelling house plaintiff was erecting on Franklin street, in the city of Moberly, Mo.,” obligating themselves to furnish all material used in doing said work.

E. L. Edwards, Judge. The case is stated iu the opinion. I. The court erred in admitting the proposition to •do work, by the plaintiff, as the contract between the parties. Brown v. Bice, 29 Mo. 322; Hunt v. Johnson, 24 Mo. 509. II. The instructions given for plaintiff are misleading and erroneous. The writing is not designated, and was not binding upon defendants as a contract: Turner ». Baker, 42 Mo. 13; Weiland v. Weyland, 64 Mo. 168 j Hunt v. Johnson, supra.

Noah M. GrivAN, Judge. The case is stated in the opinion of the court. I. The right to alimony begins at the time suit is brought and remains with it until its final termination. .Sect. 2179, Rev. Stat. II.

Clair Circuit Court, Hon. Charles Gk Burton, Judge. Statement of case by the court.

James M. Davis, Judge. Statement of case *by the court. This is an indictment, under section 1590, Revised Statutes, for falsely and maliciously charging one Fannie White with fornication. The defendant was convicted, and sentenced to pay a fine of five hundred dollars. He has appealed to this court. The evidence tended to show that the defendant was either engaged to'he married to said Fannie, or had been paying her attention as a suitor.

Andrew Ellison, Judge. The case is stated iu the opinion. I. The demurrer should have been sustained. This case falls within the provisions of art. II., sect. 21, constitution of Mo. (1875). The party injured may resort to any common law action, which will afford him adequate and appropriate means of redress. Householder ». Kansas City, 83 Mo. 488. II.

<p>I. Negligence — Railroads—Damages—Evidence.—Evidence that the defendant’s train was running at a speed of about twenty miles an hour; that the plaintiff’s cow went upon the track at a town crossing, in full view of the train, and while it was about thirty yards distant; and that no bell was rung or whistle sounded, or effort made to stop the train, until immediately before the cow was struck by the train, is sufficient to take the question of negligence to the jury.</p> <p>8.---Practice. — The fact that there was no evidence that the ringing of the bell, the sojinding of the whistle, or other efforts to avoid the injury which might have been made, would probably have averted the accident, will not justify the court in talcing the case from the jury.</p> <p>3. -Instructions. — The giving of an instruction that if the injury was the result of the defendant’s actual negligence, and that if the defendant’s servants discovered the danger in time to avoid the injury, and that if it could have been avoided without imperiling the persons or property intrusted to the defendant for transportation, then the jury should find for the plaintiff, is not error for which the judgment should be reversed.</p>

<p>Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.</p> <p>The acceptance of the note of J. T. Hooker & Son. under the circumstances shown in the record, for the amount of the account sued on, does not conclude the appellant from holding the respondents liable as for goods sold and delivered, the note not having been paid, and respondents having received the goods with notice at the time of their purchase for their account. Pentz v. Stanton, 10 Wend. 278 ; 5 Taunt. 356 ; French v. Price, 24 Pick. 13. If the-agent’s authority is not clear, the purchase was after-wards ratified by respondents, by accepting the goods, after notice of this purchase. 6 Lans. 502; Watson Lidgelow, 47 Mo. 413. A party, dealing with an agent has a right to resort to his principal to compel performance of a contract entered into by the agent, with the authority and for the benefit of his principal, unless-credit was exclusively given to the agent. Pie Frog Woolen Qo., 8 Nat. Bk. R. 414. Whether credit is-given to agent or principal is a question of fact for jury. Little v. Stettheimer, 13 Mo. 572; Evans v. Bond, 15-Mo. App. 581. This is a proper case, under the evidence, in which the jury should have determined the question of fact — who was intended to be made responsible ? See, Qoleman v. First Nat. Banlc, 53 N. Y. 394 ; PPodgson v. Dexter, 1 Cranch, 363; Gill v. Brown, 12 Johns. 385; Bank v. Bank, 5 Wheat. 387 (18 TJ. S. Bk. 5, L. Ed-103) ; Hash v. Towne, 5 Wall. 703 (73 TJ. S. Bk. 18, L Ed. 530).</p> <p>Where a creditor, with the knowledge of the principal’s liability, sees fit to take the individual note of the agent, and does nothing to apprise the principal that he will be looked to for payment, this is equivalent to a discharge of the principal, as a matter of law. Ames Pack. & Prov. Go. v. Tucker, 8 Mo. App. 95 ; Addison v. Gandasequi, 2 Sm. Lead. Cas. *369 ; Paterson v. Gandasequi, 2 Sm., Lead. Cas. *860; Paige v. Stone, 10' Met. 169 ; Wilkins v. Reed, 6 Me. 220 ; French v. Price, 24 Pick. 22 ; Yiolett v. PowélV s Adm’r, 10 B. Mon. 347 Fordv. Williams, 21 How. 287 (62 U. S. Bk. 16, L. Ed. 36); Bush v. Devine, 5 Harr. (Del.) 375; Glealand v. Walker, 11 Ala. 1058 ; Thompson v. Davenport, 9 Barn- & C. 78, 86, 87; Hyde v. Paige, 9 Barb. 150. Where a vendor credits the agents of a disclosed principal, and the principal, after the credit given to his agent has expired, and before he is advised that the vendor intends to look to him for payment, makes a final settlement of his-account with his agent, the vendor can not subsequently look to the principal for the debt. Whart. Agen, sect-469 ; Story, Agen., sect. 449, 9 Ed.; Paley, Agen. 248;. Thompson'v. Davenport, 9 Barn. & Ores. 88, 89; Smythv. Anderson, 7 C. B. 21; Irvine v. Watson, L. R. 5 Q. BD. 102; Kymer v. Suwercropp, 1 Camp. 109; Heald v. Kenworthy, 10 Ex. 745.</p>

Louis Circuit Court, Shepard Barclay, Judge. “The plaintiff’sinstructions, numbers eleven and twelve, were proper,” and contained sound legal propositions.

H. Edwards, Judge. The circuit court erred in permitting appellee to read in evidence the recognizance, because it varies from the one recited in the order of forfeiture and scire facias, and because it is void on its face, for the reason it requires Miller to do an impossible thing, viz.: to appear before the circuit court of Newton county on the second Monday in February, 188%. 1 Pars. Cont. (5 Ed.) 459 ; 2 Id. (5 Ed.) 673 ; 1 Story, Cont.

L. Wilson, Judge. But if there be •any mistake, or omission, or acoident, or fraud, or undue advantage, by which the account stated is vitiated and the balance is incorrectly fixed, a court of equity will not suffer it to be conclusive on the parties, but will allow it to be opened and re-examined. 1 Story’s Equity .Jur. (5 Ed.) sect. 523 ; Adams Eq. (5 Am. Ed. sects.) 227-8, and side notes.

<p>1. Actions — Mistake—Debtor and Creditor. — An action at law wil lie to recover a balance found to be due upon the correction of a mistake made by the parties in a settlement between them.</p> <p>2. —■—• Practice — Evidence.—Such a recovery may be had upon showing a mistake apparent on the face of the stated account.</p> <p>3. -Implied Promise. — The law implies a promise to pay tha amount shown by the account to be due after the mistake apparent upon its face has been corrected.</p> <p>4. -Instructions. — In the absence of evidence to contradict the settlement and the mistake, the defendant can not complain of an instruction submitting to the jury the question as to whether he had agreed to pay, after his attention had been directed to the mistake.</p> <p>5. Evidence — Books of Account. — In an- action on a merchant’s account, where there has been an accounting and settlement between the parties on the basis of the merchant’s book entries, such entries are admissible as admissions of the defendant against his interest.</p> <p>6. -Amendments. — On appeal from a justice of the peace, the circuit court may permit an amendment of the “statement” which does not change the cause of action, even after the jury are instructed.</p> <p>7. Co-partnership — Agency.—The carrying on of business by an agent in his principal's name, the goods being owned by the latter, that the agent receives a share of the profits in lieu of a salary, where he does not share in the losses, does not make them partners as to an indebtedness for goods sold and delivered by the agent as such, and the right of action therefor is in the principal.</p>

<p>Damages — Evidence.—In an action for damages for the killing of a cow, evidence that the cow was given to the plaintiff by a third person, coupled with a request, that at a future time, the plaintiff give another cow to the plaintiff’s son, is sufficient evidence of ownership to support a judgment.</p>

C. Bland, Judge. A note does not extinguish the original demand or cause of action, without a special agreement to that effect. Steamboat v. Hammond, 9 Mo. 59 ; Same v. Lumm, 9 Mo. 64; Appleton v. Eennon, 19 Mo. 637; McMim'ay v. Taylor, 30 Mo. 263; Howard r>. Jones, 33 Mo. 583; Powell v. Qharless, 34 Mo. 485; Bloch v. Borman, 51 Mo. 31; Leabo v. Qoode, 67 Mo. 126; The Kimball, 3 Wall. 37-46 (70 U. S. bk 18, L. Ed. 50-54).

Louis Circuit Court, Shepard .Barclay, Judge. Instruction number four, given by the court, is inconsistent -with itself. If the contract was for the sale of wheat, as mentioned in the first part of the instruction, it could not he illegal, as stated in the last part of the same. Nor is it the province of the jury to say a contract is illegal. Plaintiff’s instruction on this point was the correct one .and ought to have been given.

<p>Appeal from the Gf-reene County Circuit Court, W. F. GI-eiger, Judge.</p>

Louis Circuit Court. Under the will, Junius Jacobs could not dispose of his interest in the rents and profits, in advance of their being paid over to him by the trustee; and his assignment of the saméis void. Dougal v. Fryer, 3 Mo. 40 ; Glamorgan v. Lane, 9 Mo. 447; Langdon v. Ingram's Guardian, 28 Ind. 360 ; Stewart v. Brady, 3 Bush. 623; 1 Wash. Real Prop. (4 Ed.) *54, sec. 45, el seq.; Blaelcstone Banlc v. Davis, 21 Pick. 42; Montague v. Crane, 12 Mo.

<p>Appeal from the Lawrence County Circuit Court, M. Gf. MoG-regor, Judge.</p>

<p>Criminal Law — Indictment.—Ad indictment which, follows the language of the statute and apprises the defendant of the offence of which he is charged, is sufficient,</p>

<p>Appeal from the St. Louis Circuit Court, George W. Lubkb, Judge.</p>

J. Wallace, Judge. Evidence is not admissible to prove a parol agreement, entered into either before or at the time of the signing and delivery of a written contract, which will contradict the terms thereof. Railroad Oo. v. Cleery, 77 Mo. 634 ; Longv. Railroad Go., 50 N. Y. 76 ; Belger v. Dinsmore, 51 N. Y. 166; Gollender v. Dinsmore-, 55 N. Y. 200; HincMey v. Railroad Go,., 56 N. Y. 429.

<p>Appeal from the Howell County Circuit Court, J. R. Wool side, Judge.</p>

<p>Legislative Powers — Railroads—Fences.—The power of the legislature of 1860 to contract the territorial limits of a town was absolute ; and when the limits were so abridged, a railroad company was bound to fence that portion of its road which ran through uninclosed fields thus thrown outside the new limits.</p>

County Circuit Court, John L. Thomas, Judge. Whether grounds within • switch limits are' or are not depot grounds, and the extent of depot grounds can only be determined by the convenience and judgment of the railroad companies, and the necessities of .the publie service. The above positions are dearly dedueed from the opinions of the supreme court on this much litigated and vexed question.

<p>1. Railroads — Double Damages — Fences—Statutes — Cumulative. Provisions. — The statutory provisions subjecting railroads to the-payment of double damages for injuries caused by stock breaking over the fence from the railroad’s right of way into adjacent fields and authorizing adjacent land owners to repair the fence at the cost of the railroad company are cumulative.</p> <p>2. -Appellate Practice — Presumptions.—Although the jury’s finding in such a case is in excess of. the amount claimed, an appellate court will not presume that the jury intended to find double damages, where the record recites that the verdict is supported by the evidence, and where the jury are limited by the instructions to single damages.</p>

G. McGregor, Judge. An appeal is exclusively a statutory proceeding; it is unknown to the common law. Being a statutory proceeding it can not be extended beyond the plain import of the statute granting it. Street v. Francis, 3 Ohio 277; S. P. 14, Mass., 420, 7 Pick. 321.

Brace, Judge. The judgment is void on the face of the record, because the summons was not served on the garnishee in the manner •required by law. Rev. Stat., sect. 2521; Haley v. Railroad, 80 Mo. 112. The appearance of the garnishee, both before the justice and in the court of common pleas, was special, and limited to the purpose of the motion, but •even though there had been an appearance of the appellant to the merits, it would not have cured the defective service.

Owen, Judge. To stay the running of the statute by a part payment, the payment must have been voluntary, and made under such circumstances as to indicate, upon the part of the debtor, a recognition of an unpaid balance which he was liable and willing to pay. Edw. B. & N. (2 Ed.) 641-2 ; Shoemaker v. Benedict, 11 N. Y. 185 ; Abb.

<p>Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.</p> <p>Replevin is the proper remedy to recover specific property. Herdic v. Young, 55 Pa. St. 176; Mennie v. Blake, 6 Ell. & B. (88 E. C. L.) 849; Hutchinson v. McOlellin, 2 Wis. 17; Wells on Replevin, sect. 38, p. 27. Plaintiffs, in their petition, failing to comply with section 3844, Revised Statutes of Missouri, and the property being in the sheriff ’ s hands under writs of attachment, this suit can not be maintained. Jordan v. Parker, 56 Me. 557; Dickson v. Culp, 9 Baxt. (Tenn.) 57. The Commercial Agency’s reports were not the reports of Leubrie Bros., and hence plaintiffs sold the goods to Leubrie Bros, on their own responsibility, and not on the strength of any false representations made by them. A party can not rescind a contract in part and affirm in part. He can not treat part of a contract as valid and rescind the rest. Bishop v. Stewart, 13 Nev. 25-41; Cassidy v. Metcalf, 66 Mo. 519 ; Estes v. Reynolds, 75 Mo. 565.</p> <p>The action of replevin can be maintained in Missouri without filing an affidavit, and without giving bond. The authorities cited by defendants do not sustain their proposition, and the Missouri cases (Gulathv. Waldstein, 7 Mo. App. 69,10 Mo. App. 586 ; Eads v. Stephens, 63 Mo. 92), are positive authority for the proceeding. The sheriff holding goods under writs of attachment against the fraudulent vendee has no other or greater rights than the vendee himself. If the action could be maintained against the vendee it can be maintained against him. Bidault v. Wales, 20 Mo. 546; Goodger v. Finn, 10 Mo. App. 230, and cases cited; Jordan v. Parker, 56 Me. 557; Donaldson v. Far-well, 93 U. S. 63; Landauer v. Goehr an, 54 Gfa. 533; Oswego Starch Factory v. Lendrum, 57 la. 573. See, also, Thomas v. Freligh, 9 Mo. App. 151. The reports of the mercantile agency on information furnished by the Leubries were made for communication to the mercantile world, and plaintiffs had a right to rely upon them as fully as if made to themselves directly by Leubrie Bros. Baton v. Avery, 83 N. Y. 31; Genesee Co. Sav. Bank v. Mich. Barge Co., 52 Mich. 164; Lindauer v. Hay, 61 la. 664. Concealment of insolvency by a purchaser who obtains goods without intending to pay for them, is a fraud and the property does not pass. Durell v. Haley, 1 Paige, 492; s. o., 19 Am. Dec. 444; Stewart v. Bmerson, 52 N. H. 301; Chaffee v. Fort, 2 Lans. 87. If purchaser has no reasonable expectation of being able to pay it is equivalent to an intention not to pay. Talcott v. Henderson, 31 Ohio St. 162; s. c., 27 Am. B. 501; Powell v. Bradlee, 9 Grill. & J. 220; Johnson v. Monell, 2 Abb. App. Dec. 470. Sale secured by fraudulent misrepresentations as to solvency works no change of property, although the fraud be not indictable. Cary v. Holailing, 1 Hill, 311; Nichols v. Michael, 23 N. Y. 264; Goulding v. Davidson, 26 N. Y. 606.</p>

<p>Appeal from the St. Lonis County Circuit Court, W. W. Edwabds, Judge.</p>

Benton, Special Judge. The count in the petition, the second then on trial, ought to have contained all the facts necessary to constitute a cause of action, and can not be aided by reference to the preceding, or any other count, in this petition for such facts. Section 121, Bliss on Code Pleading, section 24 ; Alexander v. Ltupe, 11 Mo. App. ; >597; Rev. Stat., sect. 3512, and note to Henderson v. Richey, 50 Mo. 161.

<p>Appeal from the Ripley County Circuit Court. John Gr. Wear, Special Judge.</p>

<p>Appeal from the Wayne County Circuit Court, John N. Wear, Judge.</p>