Volume 21 — Missouri Appeal Reports

Noah M. (vivan, Judge. Statement of case by the court. The defendant, Russell, under various writs of attachment issued at the instance of his co-defendants, in suits against the present plaintiff, David H. Cottrell, ¡and one Rand, as sheriff, levied on and seized certain property, which was the separate property of this plaintiff, Bessie M. Cottrell, the wife of David H. Cottrell. Bessie M. Cottrell made no claim, to Russell, to the ■property until after the levy.

Elijah Robinson, Judge. Statement of case by tlie court. In the spring of 1878 defendant commenced the location and construction of a railroad from Mexico to Kansas City. About March it commenced grading its road from Mexico, commencing at several points west of Mexico at the same time. The construction of the road was done by the Chicago & Alton Railway Company, under contract with defendant.

Andrew Ellison, Judge. The case is stated in the opinion. I. The charter of the City of Macon is a private act, and is not pleaded. Session Acts, 1872, 436; sect. 3549, Rev. Stat.; Hopkins v. Railroad, 79 Mo. 98; Apitz v. Ry. Co., 17 Mo. App. 419; Wisdom v. Ry. Co., 19 Mo. App. 324. II. The court admitted incompetent testimony (Apitz v. Ry. Co., supra), and excluded competent evidence. Meyers v. Railroad, 57 Iowa 555. III.

Turner A. Gíill, Judge. Statement of case by tbe court. Plaintiffs are husband and wife. Defendant was the owner of a grocery store in Kansas City, Mo., which he traded to plaintiff Hannah, for her house and lot in said city. The husband acted as agent for the wife in the negotiations for the trade, and assisted in running the store after the trade. The evidence was undisputed that plaintiff had no experience as a grocer.

James B. Gantt, Judge. Statement of case by the court. This action, begun before a justice of the peace, is-for the recovery of the sum of one hundred and sixteen ■f¡¡\ dollars, alleged to be due from the defendants to plaintiff as “profits on the sale of hogs made by plaintiff' on December 10, and by defendants sold for and on plaintiff’s account.” An appeal was taken to the circuit court.

Ben. V. Alton, Judge. Statement of case by the court. This suit was begun before a justice of the peace for the recovery of damages on account of the sale of diseased hogs by defendant to plaintiff. At the time of the service of the summons upon him, the defendant paid to the constable, who made said service, all costs-then accrued, together with thirteen dollars, directing, the constable to pay the same to the plaintiff.

F. M. Black, Judge. Statement of case by tbe court. Tke petition contains three counts. The first count is based on a contract, of date July 19, 1883, whereby the plaintiffs agreed to furnish and put in defendant’s dwelling house in Kansas City a furnace for heating it. The contract specified the quality and dimensions of the furnace, and its heating capacity.' The contract price, for which suit was brought, is nine hundred dollars.

Jas. B. Gantt, Judge. Statement of case by the court. This is an action of replevin, for the recovery of 7,515 railway ties. The usual delivery order was made, under which the sheriff took possession of the property and delivered it to plaintiff. The suit was begun against defendant Schall alone. His answer was á general denial, and further alleged that he was in possession of the ties as the agent and employe of Bancroft and McDaniel, the owners of the ties.

James M. Dayis, Judge. Statement of case by the court. One Smyzer was the tenant of plaintiff, and, as such, «owed the farm in flax seed.

Brace, Judge. The payment of interest in advance is not evidence of an agreement to extend the time of payment of a note, and, therefore, a surety will not be discharged thereby. St. Joseph Ins. Co. v. Hauck, 71 Mo. 465; Hosea v. Rowley, 57 Mo. 357; Coster v. Mesner, 58 Mo. 549; First Rat. Bank v. Leavitt, 65 Mo. 562. Payment of interest in advance is a good consideration for the extension of the time of payment of a note. Stillwell v. Aaron, 69 Mo. 539.

C. Bland, Judge. To justify an instruction of non-suit it is not sufficient that the evidence is weak; there must be no evdence. Routsong v. Railroad, 45 Mo. 236. If there is-any evidence it must go to the jury, however slight, and. whether direct or inferential. Emerson v. Sturgeon, 18 Mo. 170; Woods v. Insurance Co., 50 Mo. 112. The payment by the defendant is a condition precedent to the exercise of his right to determine the lease.

Thomas, Judge. The defendant had no notice of the conditions of the sale. Rev. Stat., sect. 2507. The deed of trust covered the machine as soon as it was placed in the factory. Wright v. Bircher, 72 Mo. 179; Railroad v. Cowdrey, 11 Wall. 459; Frank v. Playter, 73 Mo. 673; Rutherford v. Stewart, 79 Mo. 216. The title to the machine did not pass. Benj. on Sales, sect. 320; Dennefelser v. Weigel, 27 Mo. 45; Ridgeway v. Kennedy, 52 Mo. 24; 21 Am.

<p>1. Dramshops — Selling Liquor Without License — Agency—Evidence. — A sale of liquor by an employe is prima facie evidence of the liability of an unlicensed employer, but this may be rebutted by proof that the sale was made without the employer’s knowledge and in disobedience of his order.</p> <p>2. - Civil Actions — Evidence.—In civil proceedings by a town against an unlicensed vendor of liquors, where a number of actions are brought for successive violations of the law on successive days, proof of sales on the particular day charged is essential in each . case to a recovery, although the evidence is conclusive that the, law was violated on some days.</p>

D. Foster, Judge. The plaintiff in replevin must be the owner or entitled to the-immediate and exclusive possession of the thing in controversy. Melton v. McDonald, 2 Mo. 45; Pilkington v. Trigg, 28 Mo. 95; Cross v. Hulett, 53 Mo. 397. Mere naked possession is not sufficient. Gartside v. Nixon, 43 Mo. 138; Gray v. Parker, 38 Mo. 160; Morgner v. Biggs, 46 Mo. 65. The testimony concerning statements of the defendant’s son was hearsay. 1 Greenl. Ev., pt. 2, ch. 5, 114.

F. Geigeb, Judge. Courts ■of equity will, with great jealousy, protect a manufacturer or trader from unlawful competition in his business, and will override all technicalities to reach justice in a particular case. Ayres v. Meikle & Co., Pat. Off. Gaz. June 3, 1884, 1027; Williams v. Johnson, 2 Bosw. 1 Wamsutta Mills v. Allen, Cox’ s Manual, No. 660; Harrison v. Taylor, 11 Jur. (N. S.) 408; Morgan v. Schwackhoffer; Gambel v. Stephenson, 10 Mo. App. 581.

<p>Appeal from the Bipley County Circuit Court, John <Gr. Wear, Judge.</p> <p>The admission in the first count of a voluntary grant, of the right of way implies the grant of everything necessary and proper to the construction of the railway, including even the alleged violation of plaintiff’s proprietary rights set up in the petition. Rev. Stat. sect. 765; Pierce on Railroads, 132-134; Redf. on Railroads (5 Ed.) 235; Babcock v. Railroad, 9 Met. 553; Rorer on Railroads, 513; Railroad v. Ruggles, 7 Ohio St. 1; Harrison v. Railroad, 9 B. Mon. 470; Munkers v. Railroad, 60 Mo. 334. The second instruction refers the jury to the pleadings to find the issues, and the allegations of the petition so referred to are broader than the proof. Remmeler v. Shenuit, 15 Mo. App. 192; Edelman v. Transfer Co., 3 Mo. App. 505.</p> <p>Errors not complained of in the motion for a new trial will not be reviewed on appeal. Holladay v. Langford, 13 Mo. App. 594; Hildreth P. Co. v. Stokes, 14 Id. 591; Dailey v. Singer Mar'f'g Co., 14 Id. 597.</p>

Morrison, Special Judge. The court erred in permitting any evidence to be introduced to the jury of injuties to the plaintiff’s person resulting from a fall upon the trestle while walking back from the point to which he had been carried beyond his destination. Such injuries were not the natural, necessary, and proximate effect of the alleged breach of contract, but the result of pure accident. Pullman Pal. Car Co. v. Barker, 4 Col. 344; Lewis v. Railroad, 18 Am. & Eng. Ry.

Louis Circuit Court, George W. Lubke, Judge. If •we be correct in our interpretation of the legal effect of •the allegations contained in the plaintiff’s complaint, as originally framed, and as subsequently amended, the /circuit court had no jurisdiction of the cause of action as originally brought upon appeal, or of the cause of action as set out in the complaint, as amended. Rev. Stat., •sect. 2837, 3058. The amendment changed the cause of action.

Louis Circuit Court, George. W. Lubice, Judge. To maintain trover and conversion, the plaintiff must show that at the time of the conversion he had a special property in the goods converted, and the actual possession thereof, or the legal title thereto, and the right of possession. Parker v. Rodes, 79 Mo. 91; Stevenson v. Fitzgerald, 47 Mich. 166; Stephenson v. Little, 10 Mich. 433; Middlesworth v. Sedgwick, 10 Cal. 392; Sheldon v. Soper, 14 Johns. 352; 2 Greenl.

Brace, Judge. The consideration having all passed to the principal before its execution by the principal, and the note having been executed and delivered to the respondents by the principal as his sole and individual note, the appellant’s subsequent signing of said noteas surety at the respondents’ request, andón their presentation of said note for said purpose, was a signing without consideration, was nudum pactum. McMahan v. Geiger, 73 Mo. 145.

Louis Circuit Court, Amos M. Thayer, Judge. The omission to allege that “property is wrongfully detained,” is fatal upon motion in arrest or upon error. The gist of the action is the wrongful detainer. McDonald v. Walton, 2 Mo. 48. Again, the petition fails to describe the property. The property is described in an exhibit attached to the petition. Exhibits constitute no part of the petition. Peake v. Bell, 65 Mo. 224; Hogan v. Christy, 3 Mo.

Charles County Circuit Court, W. W. Edwards, Judge. The right of a head of a family to claim exemptions of property from seizure and sale under legal process is a personal privilege, and it can not be assigned. Osborne v. Schutt, 67 Mo. 712; Abernathy v. Whitehead, 69 Mo. 28; Terry v. Wilson, 63 Mo. 493. The head of a family can not claim exemptions out of proceeds of the property, but must claim them out of specific property, before sale, under process.

<p>1. Appellate Practice — Reversals.—A judgment will be reversed' for errors apparent on the face of the record proper, although the' evidence is not preserved in the bill of exceptions.</p> <p>2. Judgments — Excess Over Claim. — A judgment for one hundred and forty-seven dollars against the defendant and his surety on appeal from a justice, the penalty of the bond being seventy-five dollars, in a suit for a claim of ninety‘dollars, can not be allowed to stand.</p> <p>3. - Remittitur. — -In such a case a remittitur will not be per mitted in the apj>ellate court, but the cause will be remanded.</p>

Francois County Circuit Court, James D. Fon, Judge. The court erred in refusing the defendant’s demurrer to the evidence at the close of the plaintiff’s case, as the evidence showed that the cow got on the track over a switch which was being used by the company and its patrons, for the loading and unloading of granite, and other freight, and could not be fenced at that place without greatly incommoding both the railway company and the public, in the transaction of the…

<p>Appeal from the St. Francois County Circuit Court, James X). Fox, Judge.</p>

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

Statement of case by the court. This is an action, brought before a justice of the peace, for the recovery of damages on account of the killing by defendant of a certain heifer, the property of plaintiffs. The plaintiffs had judgment before the justice, and the defendant appealed to the circuit court. In the latter court the plaintiffs proved the killing of the heifer as alleged in the petition. The real controversy seems to have been as to the value of the heifer.

Andrew Ellison, Judge. Statement of case by the court. This is a.n action brought by the assignee of the Macon Savings Bank for the purpose of foreclosing a deed of trust, dated August 24, 1878, executed by the Missouri Coal & Mining’ Company, for the purpose of securing the payment of a promissory note for ten thousand dollars given by said company to the said Macon Savings Bank.

Gr. D. Burgess, Judge. The case is stated in the opinion.' I. A voluntary conveyance is prima facie evidence of an intent to defeat and defraud creditors, where the party making it, or procuring it made, is loaded with debt at the time. Holloway v. Milliard, 1 Maddock’s Rep. 225. II. The transfers, in this case, according to the evidence of the defendant, Avere merely colorable.

Charles The case is stated in the opinion. I. The defendant has no right to make a purchase of this character, except by ordinance. There was no ordinance passed here, and no attempt to pass any. Rev. Stat., sect. 5010; Dillon Mun. Corp. (3 Ed.) sects. 432, 309, 310. II. Uie board acted clearly without authority, and, therefore, could not bind the town. Johnson v. School Dist., 67 Mo. 319; Cheeny v. Brookfield, 60 Mo. 53; Dillon Mun. Corp., sect. 266. III.

G. IX Burgess, Judge. Statement of case by the court. The petition in this case is -substantially the same as. the petition in the case of Yocum v. Town of Trenton, 20 Mo. App. 498. The damages, for-the recovery of which this action is brought, are damages alleged to have been caused to the female plaintiff on account of the unsafe condition of the sidewalk on the west side of Oak street, a public street in said town.

Louis Circuit Court, Daniel Dillon, Judge. Even if the plaintiff’s son was lawfully on the defendant’s car, yet the judgment should be reversed for error in giving the plaintiff’s _instructions numbers four and seven. Fortune v. Railroad, 10 Mo. App. 252; Gerren v. Railroad, 60 Mo. 409; Insurance Co. v. St. Mary's Seminary, 52 Mo. 488-492; Clay v. Railroad, 17 Mo. App. 629.

<p>Appeal from the St. Lonis Circuit Court, W. H. Horner, Judge.</p> <p> Transferred to the Supreme Court. </p>

<p>Appeal from the Greene County Circuit Court, W. F. Geiger, Judge.</p>

Charles County Circuit Court, W. W. Edwards, Judge. There must be proof of the appointment of a next friend. Rev. Stat., sects. 3, 69, et seq.; Porter v. Railroad, 60 Mo. 162. The court gave improper instructions at the request of the plaintiff. Hoke v. Railroad, 11 Mo. App. 574; Lee v. Detroit B. & I. Works, 62 Mo. 565; Marshall v. Schricker, 63 Mo. 308; Rains v. Railroad, 71 Mo. 168; Weger v. Railroad, 55 Pa. St. 460; Keystone Bridge Co. v. Newberry, 96 Pa.

<p>Appeal from the St. Louis Circuit Court. W H. Horner, Judge.</p> <p>The cause should have been submitted to a jury. Const. Mo., chap. 2, sect. 28; Rev. Stats., sects. 3800, 3602. £cThe action is properly brought under the statute and the practice of this .state.” Rev. Stats., sect. 3511; Rutherford v. Williams, 42 Mo. 18 ; Alexander v. Relfe, 74 Mo. 495 to 521 ; Cadwailacler v. West, 48 Mo. 494 ; Davis v. Luster, 64 Mo. 45 ; McQlure v. Lewis, 72 Mo. 324-5 ; Dailey v. Jessup, 72 Mo. 145 ; Massey v. Young, 73 Mo. 270.</p> <p>If a jury is not demanded, and no exception is taken to the action of the ■court in trying the case without a jury, this court will presume that a jury trial was waived. The State v. Larger, ■45 Mo. 510; Henry v. Beers, 48 Mo. 366. Inequity cases it is better for the court to try the whole case than to submit issues of fact to the jury. Looker v. Davis, 47 Mo. 140 ; Hiekey v. Drake, 47 Mo. 369 ; Burt v. Rynex, 48 Mo. 309. The court is not bound to submit a question of fact to the jury. Lockwood v. Linsford, 56 Mo. 68. The verdict of a jury is not conclusive on the court in an ■equity case. Page v. Dixon, 59 Mo.. 43. An entry that the parties appeared and submitted the case for trial to the court is a sufficient entry to show a waiver of a jury. Bruner v. Marcum,, 50 Mo. 405 ; Tower v. Moore, 52 Mo. 118. Where parties comply with the terms of an agreement that could not have been enforced against them, they can not repudiate it and recover back the money paid upon it merely because it could not have been enforced (Mueller v. Wiebracht, 47 Mo. 468; Qlaflin v. McDonough, 33 Mo. 412), or if paid under a mistake of the law. Mutual Savings Institution v. Enslin, 46 Mo. 200 \ Wolfe v. Marshal, 52 Mo. 167. Usurious interest paid upon a note can not be recovered back and applied as-credits upon the note. Kirkpatrick v. Smith, 55 Mo. 389.</p>

<p>1. Evidence — Husband and Wife — Privileged Communications. — A paper, in the wife’s handwriting, found among her deceased husband’s papers, addressed “ to whom it may concern,” and which speaks of her husband in the third person and explains the cause of their separation, is not a privileged communication.</p> <p>2. Presumptions — Names.—Identity of name raises a presumption of identity of person, and it devolves upon him who denies the-identity to overcome this presumption.</p> <p>3. Administration — Widow—Dower.—The personal estate allowed' the widow out of her deceased husband’s estate under section 2189, of the Revised Statutes, is dower within the meaning of section 2204 which bars jointure and dower in cases where the wife has continued to live with an adulterer.</p> <p>4. —- Section 2204, of the Revised Statutes, does not apply to-cases where the wife, after the husband’s desertion of, and failure to provide for, her, and his pretended marriage with another, goes-away and lives with an adulterer.</p> <p>5. --Practice — Trial by Jury. — A petition by a widow for that portion of her husband’s estate to which she is entitled under section 2189, of the Revised Statutes, is triable by a jury, if one be-demanded, on trial ele novo,, in the circuit court, on appeal.</p> <p>6. - Instructions. — Either party is entitled to have appropriate-declarations of law given, in such a case, where the question is-•tried by the court without a jury.</p>

Louis Circuit Court, Amos M.. Thayer, Judge. “In order to charge-an attorney upon this ground, it must not only appear that there was an agreement to bring an action which was, in fact, groundless, but that it was agreed to bring-an action understood by both parties to be groundless, and brought as such.” Bielcnell v. Dorion, 16 Pick. (Mass.) 490.

Louis Circuit Court, George W. Lubke, Judge. The respondent was a guarantor, was liable to Nichols, and was an independent contractor between Nichols and the appellant. Hill ». Morris, 15 Mo. App. 324, 330, 331. The action on this contract to indemnify can not be sustained until the plaintiff has himself paid the loss. Hearne v. Keath, 63 Mo. 84; Hale v. Huse, 10 Gray, 99.

<p>1. Mortgages — Chattels.—A chattel mortgage valid when executed and delivered, does not become void because of any act or omission of one of the parties of which the other party has no knowledge.</p> <p>2. -Sales — Fraud—Attachment.—A sale of mortgaged property by the mortgagor and a conversion of the proceeds to his own use without the mortgagee’s knowledge or consent, does not invalidate a chattel mortgage under the terms of which the mortgagor is to remain in possession as the mortgagee’s agent, and will not give ground for an attachment of the goods.</p>

Habeas corpus is the proper remedy for the discharge of a. prisoner who has been convicted under an unconstitutional law. Ex parte Rollins, 20 Rep. 765; Cooley on Const. Lim. (4 Ed.) 481, *348, see Note 1; Ex parte Snyder, 64 Mo. 58; “The KuJclux” cases, 4 Sup. CL Rep. 153 ; People, v. Warden, 2 N. East Rep. 870 ; In re Wong Tung Quy, 6 Saw. 237. And it makes no difference whether the proceedings, if void, are civil or criminal. Ex parte Rollins, 20 Rep. 765.

H. S Kelley, Judge. The case and facts are stated in the opinion of the ■court. I. The court erred in overruling defendant’s demurrer to the evidence. The petition counts alone on a .special contract, not on the violation of any duty imposed by law upon defendant as a common carrier. Therefore, the law of common carriers is not applicable. 'The case is to be tested by the law of contracts and „agency applicable to all alike. Collier v. 8winney, 16 Mo. 484.

D. A. Harrison, Special Judge. Statement of case by the court; One Ed. Mattix departed this life, leaving defendant, his son, and interpleader, his widow. Plaintiff having a demand against defendant, brought suit by attachment before a justice of the peace against him, and attached as his property a gray mare, which, with some other-property, was left by Ed. Mattix at his decease, as is claimed by defendant and the interpleader.

James M. Davis, Judge. The case is stated in the opinion. I. For aught that appears, plaintiff, though not the owner of the sow, might have been entitled to her possession, and such possession would entitle him to’ possession of the shoats. Stewart v. Ball, 33 Mo. 154. II. Defendants claim the sow and pigs generally, and not upon the ground that the ownership of the pigs follows that of the sow, and the pleadings, nor evidence, raise no such issue as to the latter. III.

C. H. S. Goodman, Judge. The case is stated in the opinion. I. The motion to quash the indictment should have been sustained. The rules of criminal pleading require that every change should be so specific, certain and definite, as to inform defendant of the precise nature of the particular act for which he is called upon to answer. Wharton Crim. Plead. & Pract., sect. 220; Staten. Fisher, 58 Mo. 256; State n. Maupin, 57 Mo. 205; 1 hompson n. State, 16 Tex.

Hemet S. Kellet, Judge. Statement of case by the court. This is an action upon a contract, brought by the plaintiff, to recover damages resulting to him by reason of stock trespassing on his lands, in consequence of the failure of the defendant to maintain and keep in repair a certain fence.

' Thomas-E. Turney, Judge. The case is stated iu the opinion. I. Mrs. Fowler was not competent to testify to any portion of the conversation between McWilliams and her husband. Holman v. Backus, 73 Mo. 49. I. Granting that the testimony of Mrs. Fowler was improperly admitted, yet, if it was not a prejudicial error against appellant, it should not work a reversal of the case.

M. Gf. McGregor, Judge. The case is stated in the opinion. I. The indictment was drawn under section 1318, Revised Statutes, and the testimony was all to the effect that the mineral was washed out of an old pile of “tailings,” the most of which had been dug and mined from other lands than those of the smelting company, prosecutor.

<p>Practice — Affirmance—Failure to Prosecute Appeals — Case Adjudged. — It is the duty of appellants to prosecute their aj>peals with diligence, and to see that their transcript and causes are duly presented and pressed. They must not wait for the respondent to do that which they undertake and obligate themselves, by their appeal, to do. And where the appellant has been guilty of inexcusable neglect and delay, as in this case, the motion for affirmance of the judgment, in this court, will be sustained.</p>

Noah M. Otvaw, Judge. The case is stated in the opinion. I. The indictment is bad. It does not state any criminal offence. It does not specify any official act, which it was the duty of the defendant to perform ; nor that he had charge of any estate ; nor how he became invested with the office of public administrator. Commonwealth v. Bapp, 9 Watts 114. II. The duties of this office are ministerial, except, possibly, in administering an oath, and this is not alleged here.

D. Poster, Judge. The marshaling of assets is a well settled branch of equity jurisdiction,, but the rule'upon which it is based is never applied, “except when it can be done without injustice to the creditor or other party in interest having a title to the-double fund, and also without injustice to the common debtor.” Story’s Eq., Redfield’s Ed., sects. 558, 559, and 560 ; 2 Wasb. Real Prop.

<p>Costs. —An appellant who succeeds in modifying, to his advantage, the judgment appealed from, is entitled to recover the costs of the appeal.</p>

<p>Appeal from tlie Greene County Circuit Court, W. _F. Geiger, Judge.</p> <p>The instru-. ment did not show on its face whether it was part of the -contract of dissolution, or subsequent to that contract. Benson v. Peebles, 5 Mo. 132. Parol evidence is admissible in explanation of a written contract to show the situation of the parties, the object in view, and the consideration, but not to contradict or control the same. Lubhe v. Knapp, 79 Mo. 26; Baldwin v. Garter, 17 Conn. 20; Wilson v. Sroup, 2 Cowen 195; Brown v. Slater, 18-Ooan. 132. An answer must deny every allegation of the petition. Replies are governed by same rules as answers. Rev. Stat., sects. 3521-3526. “The court ■can not, by its instructions, change the issues presented by the pleadings.” Moffatt r>. Conklin, 35 Mo. 453. Facts not controverted in a previous pleading are to be taken as true in favor of the party pleading them, not .as a matter to be submitted to and found by the jury. Bartholow ®. Campbell, 56 Mo. 117; Butcher *. Death, 15 Mo. 271; Steil t>. Ackli, 15 Mo. 289. “ Whenever a ■defendant intends to rest his defence upon any fact which is not included in the allegations necessary for the support of the plaintiff’s case, he must set it out.” Northrup r. Insurance Co., 47 Mo. 435; Kersey r. Garton, 77 Mo. 645. Courts should not instruct juries to take for granted facts in issue. Chouquette v. Barada, 28 Mo. 491. The amended replication which the plaintiff filed at the close of the testimony, and in which, for the first time, he maintained fraud and misrepresentations, was not verified. Hence the execution was never denied. Muller v. Insurance Go., 45 Mo. 84.</p> <p>In the •case of Hensleer. Cannefax (49 Mo. 295), the allegations of new matter set up by the answer were not contradicted by replication, and the court below called attention to it by instructing the jury that such matters stood confessed, and must be taken by them as true. It appeared, as in this case, that testimony was introduced and witnesses examined on the very matters not denied by replication, and no replication was ever offered by the plaintiff, even after attention was called to it by the in structions of the court. The supreme court reversed the judgment, holding that under the circumstances no fili-ng of replication was required. And this case has been affirmed, frequently, since. See Howell v. Reynolds County, 51 Mo. 154; Insurance Co. v. Harlan, 72 Mo. 203; Maulkin v. Malcomb, 78 Mo. 551; Young v. Glasscock, 79 Mo. 580; Heath r>. Gaston, 80 Mo. 313.</p>

<p>1. Criminal Law — Highways —Indictment.—Obstructing a public highway is an indictable offence at common law, and an indictment, which is good at common law will be upheld, although it is not within the express terms of the statute.</p> <p>3. - The statute which prohibits tbe obstruction of a public highway in the manner therein specified, does not prevent the in dictment at common law of a person who obstructs a highway in a. manner other than that specified in the statute.</p> <p>3. -Statutes — Construction of. — The general clause of a stat ute which provides for the indictment of persons who “ shall obstruct such highway in any other manner,” after malring certain acts' indictable, is construed to mean “in any other manner ” which is indictable at common law.</p>

Louis Circuit Court, Daniel Dillon, Judge. The instructions offered by the defendant and refused by the court, should have been given, because there is evidence to support all of them. Cravens v. Gillidon, 63 Mo. 28, 33, referring to Nixon v. Palmer, 8 N. Y. 398; Mus. sick v. Railroad, 57 Mo. 134; The State v. Hollenscheidh. 61 Mo. 302. The only evidence produced in rebuttal by the plaintiff was his own declarations.

It is competent for a carrier to limit its common law liability, even on its own line, in case such limitations are reasonable. Snyder v. Express Co., 63 Mo. 376; Railroad v. Brvmley, 5 Lea (Tenn.) 401. The statute only makes the receiving carrier liable for the loss occasioned by the negligence of the connecting carrier. The negligence is a fact to be proved by the plaintiff by competent evidence.

<p>Appeal from the St. Louis Circuit Court, W. H. Horner, Judge.</p> <p>The court ■erred in admitting evidence of an alleged custom, or that it was always “customary, If there are old buildings on the lot to be removed by the contractor, to state this in .the specifications.” Had there been proper evidence to •establish a custom among contractors and builders, uniform, certain, and reasonable, it was not binding on plaintiff until some evidence tending to prove her knowledge of it had been offered. Walsh v. Mississippi Transportation Go., 52 Mo. 434. But such evidence did not tend to prove a custom, either uniform, certain, or reasonable. It relates merely to how parties usually make their contracts, and not to the interpretation or execution of them; and such a custom, if established, would not be reasonable. Ober v. Garson, 62 Mo. 209.</p> <p>That the evidence of custom was competent for the purpose for which we offered it, was manifest. Daniels v. Insurance <7o., IS Cush. 417; Paper Mill Qo. v. Parmer, 41 N. H. '389 ; Lawson on Ex. 73.</p>

Louis Circuit Court, Shepard Barclay, Judge. There is no ambiguity and nothing dubious upon the face of the instrument, and hence the instrument itself must be the only criterion of the intention of the parties. Redheffer v. Leathe, 15 Mo. App. 12; Chitty on Contracts, 74-84 ; Koehring v. Muemminghoff\ 61 Mo. 4Ó3.

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

Louis Circuit Court, W. H. Hobneb, Judge. Upon the evidence in the case, the plaintiff was not entitled to recover. There was no such actual change of possession as required by the statute, and the unbroken line of decisions thereon, beginning with Claflin v. Rosenberg (42 Mo. 439). See Bishop v. 0 ’ Connell, 56 Mo. 158; Stern v. Kenly, 68 Mo. 262; Mills v. Thompson, 72 Mo. 367; Franklin v. Qummersell, 11 Mo. App. 313.

Gr. H. Burckhaett, Judge. Statement of case by the court. Plaintiff sued defendant upon a promissory note, executed by defendant to EL R. Parsons & Company. This firm was composed of Arnold Davidson, EL R. Parsons. and William J. Slaughter. Davidson assigned his interest ip the note to Parsons and Slaughter, who are the plaintiffs.

Gr. W. Dunn,, Judge. The case is stated in the opinion. I. Defendant and plaintiff were partners. Wlien they dissolved defendant owed the firm $429.54, and ad.mitted it in his answer to this suit. But he claimed it was cancelled in a settlement between them, while plaintiff claimed the whole debt was due. According to the testimony the whole sum was due, or nothing was due. Yet the verdict was for two hundred dollars for the plaintiff.

F. M. Black, Judge. Statement of case by the court. This is an action to recover damages alleged to have been sustained by plaintiffs by reason of the false and fraudulent representations and assurances of defendant respecting the credit of one J. B. Isaacson.

Noah M. Giyan, Judge. The case is stated in the opinion. I. No motion, having been made before the justice to set aside judgment by default, plaintiff ’ s motion to dismiss appeal should have been sustained, as the appeal ■did not lie, and the circuit court had no jurisdiction. Sect. 3040, Rev. Stat. ; Graves v. Ry. Co., 18 Mo. App. «47. II.

John P„ Strother, Judge. Tlie case is stated in the opinion. I. In a suit on a note the only effect of the want of an affidavit to the answer, denying all the allegations of the petition, is that plaintiff may read the note in evidence without proof of its execution. Sect. 3653, Rev. Stat. But under such answer all other defences are open to defendant, as before the statute requiring the affidavit in order to put plaintiff to the necessity of proving execution of note.

George W. Dunn, Judge. The case and facts are stated in the opinion of the-court. I. The governing body of a city of the fourth class is the mayor and the board of aldermen (sect. 4940, Rev. Stat.) and their power over the streets is a legislative power, the necessity and expediency of the exercise of which they are the judges. 2 Hill. Mun. Corp. (3 Ed.) sect. 680, 686.

E. L. Edwards, Judge. Statement of case by the court. This is au action to recover damages occasioned by the wrongful act and conduct of defendant’s conductor toward the plaintiff, as a passenger on one of defendant’s passenger trains.

John P. Stbotiiee, Judge. Statement of case by the court. This is an action to recover single damages for killing plaintiff’s cow. Suit was begun in a justice’s court, and tried on appeal in the circuit court. The statement contained two counts. As the court directed a finding for the defendant on the first count, and the plaintiff recovered on the second, it is only necessary to consider the latter.

George W, Dunn, Judge. Statement of case by the court. This is an action instituted in a justice’s court, and tried, on appeal, in the circuit court. It is to recover damages for the killing of plaintiff’s cow by defendant’s train of cars.

Cooper Circuit Court, Hon. E. L. Edwards, Judge. Statement of case by the court. Plaintiff being a minor sues by Ms next friend.

John P. .’Strother, Judge. The case is stated in the opinion. I. Defendant’s objection to the introduction of any evidence, and its motion in arrest of judgment should! both have been sustained. The complaint does not allege that there was no fence, or that it was out of repair, at the place where the hog got on the right of way. No-place is referred to as having an insufficient fence, except where the hogs were killed. Elliot v. Railroad, 22 Mo. App.--; Manz r>.

Gr. H. Burckhartt, Judge. Tbe case and facts are stated in the opinion of the court. I. The charter of the city of Moberly gives no power to the council to pass the ordinance in question. Laws 1873, p. 328, subdiv. 18; lb. p. 329, subdiv. 23 ; 1 Bill. Mun. Corp. (3 Ed.) sects. 150, 345, 348; Corrigan v. Gage, 68 Mo. 541. II. Plaintiff had a right to the whole of the jive days to redeem. Brackett v. Brackett, 61 Mo. 223 ; Hart v. Walker, 31 Mo. 26.

Turner A. C-ill, Judge. Statement of case by the court. This suit was begun before a justice of the peace to recover the possession, of three cases of leaf tobacco, which had been shipped by plaintiffs from Erie, Pennsyl vania, to M. P. Troxel. No bond was given and the defendant retained possession’of the property. The case, on appeal to the circuit court, was tried by the court sitting a as jury.

E. M. Black, Judge. Statement of case by the court. This is an action against defendant, as a partner of the late firm of G-lessner & Ross, who were manufacturers of crackers, and to which firm plaintiff sold large quantities of flour. The defendant defended on the ground that the firm, was a limited partnership, under our statutes relating to that subject, duly formed, and that he was a special partner in said firm.

Louis Circuit Court, W. H. Horner, Judge. The appellant was entitled to a change of venue. Voigt v. Avery, 14 Mo. App. 48; Woodhull v. Kelly, 10 Bradw. 455; •Colvin v. Six, 79 Mo. 199 ; The state ex ret. v. Six, 80 Mo. 61. The admission of the plaintiff ’ s deeds was error.

<p>Appeal from the Crawford County Circuit Court.</p>

Louis Circuit Court, Amos M. 'Thayeb, Judge. The defence that the work was ordered and done as a sanitary measure requiring its immediate doing, should hare been considered. JEyerman v. Blalcely, 78 Mo. 145.

D. Foster, Judge. The defendant may show any circumstance in mitigation of the injury done by his trespass ; and the defendant having shot the plaintiff’s dog while he was ..worrying the defendant’s sheep, this fact, and the habits of the animal, are admissible in evidence for the defendant in the estimation of damages. 2 Greenleaf on Evid.

Louis Circuit Court, Amos M. Thayer, Judge. Agents can not delegate to third parties the powers conferred on them by their principals. Paul v. Edioards, 1 Mo. 30; Brown v. Insurance do., 45 Mo. 221; Essv. Truscott, 2 Mees. & W. 385; MeOlure v. Insurance Co., 4 Mo. App. 148.

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

<p>1. Criminal Law — Indictment—.Disturbing Religious Congregat tion. —An indictment, charging the defendant with having disturbed a religious congregation, must allege that the place where the congregation met was set apart for religious worship, and must describe the place with sufficient definiteness as to identify theoffence.</p> <p>2. -A failure to prove that the offence was committed in the county where the indictment was found is a fatal defect.</p>

<p>Appeal from the Wright County Circuit Court, W. .j. Wallace, J udge.</p> <p>Venue must be proved. The State v. Hartwell, 75 Mo. 251; The Slate v. Burgess, 75 Mo. 541; The State v. Hughes, 82 Mo. 88.</p>

I). Foster, Judge. The evidence shows conclusively that there had been no payment, except by the assignee of the judgment, and.that, at the request of the defendant in the execution. Freeman Ex., sects. 442, 8 and 4, and authorities cited; Freeman Judgments, sect. 478.

<p>1. Practice — Objections to Evidence. — Objections to documentary evidence which do not distinctly specify the grounds of objection, will be disregarded.</p> <p>2. Assignment — Subsequent Illegal Acts. — Illegal acts of parties to-a deed of assignment, after the execution of the deed, do not, a3 matter of law, render the deed void.</p> <p>3. -Evidence — Fraud.—Subsequent illegal acts of parties to a deed of assignment are proper to be submitted to the jury as evidence of fraudulent intent of the parties at the date of the execution of the deed.</p> <p>4. Practice. — A court sitting as a jury may properly refuse to instruct that the plaintiff is not entitled to recover, and yet find for the defendant.</p>

Louis Circuit Court, Shepard Barclay, Judge; The actual delivery of the account to the plaintiff, coupled with the allegation that the payment was for that and the bill, is an essential element of the assignment. Ford v. Angelrodt, 37 Mo. 50.

■ Appeal from the St. Louis Circuit Court, George W. Lubke, Judge. Mandamus ■will not lie to compel a corporation to issue stock certificates. The State ex rel. v. Rombauer, 46 Mo. 155 ; The State ex rel. v. Lublce, 15 Mo. App. 152.

<p>1. Justices — Jurisdiction.—A justice’s jurisdiction must appear on the face of the papers filed in the cause.</p> <p>2. - Presumptions — Appellate Practice. — On appeal from a judgment in a cause brought before a justice, where the justice’s jurisdiction does not affirmatively appear, an appellate court will not presume jurisdiction in favor of the judgment of the circuit court.</p> <p>8. Forcible Entry — Husband and Wipe. — In a possessory action for lands of which the wife is seized in fee, the right of possession being in the husband, he is the substantial party to the action, and may dismiss it without his wife’s consent.</p>

<p>1. Administration — Descents and Distributions — Chattels.—The succession of the personalty of a deceased person is governed by the law of his actual domicil at the time of his death.</p> <p>2. -Widow.- — Sections 268 and 269 of the Revised Statutes apply ' so as to permit the widow of a non-resident decedent from claiming, in an ancillary administration, in this state, the bounty allowed under sections 106 and 107.</p> <p>8. -Whatever rights the non-resident widow of a decedent may have m respect of the absolute allowance of personalty out of the estate must be sought under the law of the domicil of the deceased husband.</p> <p>4. - Quaere, whether such a widow, having been adjudged to be entitled to such an allowance, by the court of the domicil, can prove such a claim in the probate courts of this state as a preferred claim.</p>

‘Turner, Judge. The appeal is properly taken from the judgment on the plea in abatement. Knapp, Stout & Go. v. Joy, 9 Mo. App. 47; Davis v. Derry, 46 Mo. 449; Walser v. Haley, 61 Mo. 445. No appeal lies in this case. Rev. Stat., sect. 439; Walser v, Haley, 61 Mo. 445.

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

F. M. Black, Judge. Tke instruction referred to in the opinion, as excepted to, and, therefore, the only one noticed in the opinion, is as follows “In determining what is meant by the term merchantable measurement, ■ among persons dealing in the kind of lumber in question, you will include in that class of persons not only those who buy and sell, but, also, those who buy and manufacture the same.” I. It was improper to exclude the testimony of witnesses in regard to the…

GtEORGE W. Dunn, Judge. The case is stated in the opinion. I. The complaint does not state facts sufficient to constitute a cause of action. If framed for an unlawful detainer, under section 2420, Revised Statutes, it should allege a contract and state the time when the term expired. If for a wrongful entry and detainer, as provided for in the second clause of said statute, the entry must have been pleaded. In either case the time when the act was done should be stated.

Elijah Robinson, Judge. The case is stated in the opinion. I. The only issue made by the pleadings was the reasonableness of defendant’s fees as attorney. The reply set up no new matter. Norilvrup v. Insurance Co., 47 Mo. 435. II. The evidence did not support the instructions. There was no contract set up in the pleadings, and the action was on a quantum meruit.

Noah M. Givan, Judge. The case is stated in the opinion. I. The verdict is unjust and not justified upon the merits and law of the case. An action of this kind is founded upon contract. The contract, in this instance, should be the subscription list, but it is not given in evidence, nor is it accounted for as lost, or a certified copy introduced in its stead. 1 Wag. Stat., sect. 2, p. 333. II. The demurrer to the evidence should have been sustained.

John P. Strother, Judge. The case aud iacts are stated in the opinion of the ■court. I. The statement fails to allege a good cause of' action. The money was deposited in behalf of D. R. Francis ; and it does not appear that he assigned back .to plaintiff his interest thus conveyed. II. The allegations and proof do not correspond. III. The instructions for the plaintiff were all •wrong ; and in fact were not based on the evidence.

Noah M. Dtvan, Judge. This was a suit in equity. The petition stated, in ■substance, that plaintiff was the owner of certain lands (therein described) in Johnson county, Missouri, and on the twenty-second day of September, 1879, leased it to -defendants for a term of years, commencing on March 1, 1877, and ending March 1, 1885, in consideration of certain covenants contained in said lease.

Gr. H. Bubckhabtt, Judge. Statement of case by the court. This action was begun by plaintiff on a contract in the form of a promissory note, executed by defendant on September 9, 1880, for the sum of one hundred and sev■enty-five dollars, with interest, and also an attorney’s fee, if- suit should be brought thereon, payable to H. A. Pitts’ Sons Manufacturing Company, and assigned by the said payee to the plaintiff.

James B. ■Ctantt, Judge. Statement of case by the court. This action was brought against defendant as surety ■upon a bond in the penal sum of five hundred dollars, in which bond one George Warriner was principal.

James M. Davis, Judge. Statement of case by the court. The petition in this caséis as follows: “Plaintiff states that on or about the fifteeth day of March, 1879, he employed defendant to purchase for plaintiff’s use, an engine, boiler, and other milling machinery, from the Wardyke and Marmory Company of Indianapolis, Indiana.

On motion for affirmance of judgment, for failure to file transcript as by statute provided. The case and facts, and the grounds of the motion, ■and the grounds of resisting it, are stated in the opinion -Of the court.

E. L. Edwards, Judge. Statement of case by the court. The defendant was indicted for obstructing a public •road.

John P-Steothee, Judge. The case and facts are sufficiently stated in the opinion of the court'. I. The petition does not state a cause of action. It does not allege that the deceased minor son of plaintiffs was unmarried at the time of his death. Sects. 2121, 2122, 2123, Rev. Stat. The cause of action is wholly ■statutory, and the plaintiffs must, by the allegations of their petition, bring themselves within its terms.

Circuit Court, Hon. Geobge W. Dunn, Judge. Statement of case by the court. This suit was brought by the deceased, Geo. W. Field, to recover damages for the destruction of a growing crop of corn on his land. Said deceased had judgment in the circuit court, from which the defendant appealed to the supreme court. The judgment was reversed and the cause remanded,“for the reason that the petition did not state a cause of action. Field v. Railroad Co., 76 Mo. 615.

G-eorge W. Dunn, Judge. ¿Statement of case by the court. This suit was brought originally before a justice of jfche peace upon the following statement: “Plaintiff states that the defendant is a corporation duly * * * under the name and style of the Chicago, Rock Island & Pacific Railroad Company, and is the owner of that certain railroad which passes through the township of Preston, in the county and state aforesaid, known as the Chicago, Rock Island & Pacific Railroad…

Elijah Robinson, Judge. The case and facts are stated in the opinion of the court. I. The weight of the evidence is entirely with the appellant. The only evidence of alleged marriage with Gavin is presumptive evidence from uncertain representations and cohabitation, illicit in character, for a brief time, thirty years ago, and, giving force to the evidence, the weight of evidence is with appellant. II.

P. GS-eigeb, Judge. To the first amended petition the defendant filed an answer, and went to trial, and this was a waiver of any alleged departure in pleading so far as the first amendment was concerned. Scovillv. Glassner, 79 Mo. 449.

Pox, Judge. The individnal property of an individual partner must first be applied to the payment of his individual debts' before the creditors of a firm, of ■which the individual partner was a member, can, as to such firm debts, resort to such individual property or estate. Phelps v. McHeely, 66 Mo. 558-9 ; Matthews v„ Hunter, 67 Mo. 294-5 ; Hilliker v. Francisco, 65 Mo. 604-5 ; Ackley v. Staehlin, 56 Mo. 558 ; Flanagan íl Alexander, 50 Mo. 50; Price v. Hunt, 59 Mo. 263.

<p>Appeal from the Lewis County Circuit Court, Ben. E. Turner, Judge.</p>

Louis Circuit Court, Amos M. Thayeb, Judge. The answer of the jury to the first interrogatory is too uncertain to have any effect as a verdict. It expresses the belief of the jurors, but does not amount to a finding by the jury. Iloplcins v. Stanley, 43 Ind. 558 ; Housworth v. Bloomhuff', 54 Ind. 587; Davis v. Qity of Farmington, 42 Wis. 433; 3 Black. Com. 377; Qarroll v. Bohan,. 43 Wis. 218; Williams v. Willis, 7 Abb. Pr. 90; 3 Ciiitty Crim.

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

Benton, Special Judge. The amended petition is in effect a new action. Buel v. St. Louis Transfer Company, 45 Mo. .526; Scoville v. Glasner, 79 Mo. 449; Story’s Eq. PI. -sect. 904. The words wilfully, intentionally, wrongfully, or words of similar import should have been in the instruction. Schmidt v. Denmore, 42 Mo. 225 ; The State v. Newlcirlc, 49 Mo. 84. The defendants had a right under a general denial to attack the title set up by the plaintiffs.

R. Woodside, Judge. To render a witness incompetent, lie must have been both a party to the original contract or cause of action and a party to the suit in which his evidence is offered. Pomeroy was one, but not the other. Rev. Stat., sect. 4010 ; Angelí v. Hester, 64 Mo. 142 ; Loolcer v. Davis, 47 Mo. 145. By the common law the assignor was not excluded from testifying in behalf of his assignee. Porter v. Rea, 6 Mo. 57; McKinley v. Williamson, 23 Mo. 65; 1 Starkie on Evid.

F. Geigek, Judge. Fraudulent representations of the vendor of lands as to quality, quantity, situation and title thereof will entitle the vendee to relief. Holland v. Anderson, 38 Mo. 55; Malone v. Harris, 6 Mo. 451; Hall v. Clark, 21 Mo. 415. Fraudulent representations of facts regarding lands, which induce a party to purchase, will be held fraudulent in equity, however innocently made. QlasseoeTc v. Minor, 11 Mo. 655; Pomeroy v. Benton, .57 Mo. 531; Smith v. Bircher, 2 Mo.

<p>Appeal from tlie St. Louis Circuit Court, Shepard Barclay, Judge.</p> <p>If the plaintiff is a general creditor she should have presented her claim for allowance in the time prescribed by statute. Titterington v. HooJcer, 58 Mo. 593. If the plaintiff is a special creditor, and the time for proving claims against the estate has passed, she must proceed against the heirs. Anri as there are no heirs, the plaintiff can not recover at all. The devisees of Isaac Walker take their shares in the real estate discharged of the special debts of the testator. Sauer v. Griffin, 67 Mo. 657.</p> <p>The partition of lands among the heirs or devisees before final settlement does not withdraw them .from the reach of the administrator, for the payment of debts. Rev. Stat., sect. 146, et seq.; Shaw r. Nicholay, .30 Mo. 107; Oarsonr. Walker, 16 Mo. 87; Walker r. Dearer, 79 Mo. 673-4. The two years limitation under the administration law has no application to a case of this kind, where the demand did not accrue until after the lapse of two years. Chambers r. Smith, 23 Mo. 174. To the same effect are: Miller r. Woodward, 8 Mo. 169 ; Benton r. Rutherford, 49 Mo. 258 ; Finney r. The State, 9 Mo. 227 ; Sauer r. Griffim, 67 Mo. 654 ; Garesche v. Lewis, 15 Mo. App. 565, 570 ; Sturgeon r. Beckwith, cited in Metcalf r. Smith, 40 Mo. 575; Roycer. Burrell, 12 Mass. 395; Tenney r. Lasley, 80 Mo. 664.</p>