Volume 23 — Missouri Appeal Reports

John P. Strother, Judge. Statement of case by the court. On May 16, 1883, Baggs & Smiley were running a saloon in Higginsville, Missouri, known as the Marble Hall; there was no other sign on the building. On that •day Isaac H. Reed bought out the saloon stock and fixtures of Baggs & Smiley.

James-M. Davis, Judge. Statement of case by the court. This action was originally begun beforo a justice of the peace, on an account, in words as follows : “Nancy M. Perkins and Wm. Wilmott in account; with Wm. L. Lightfoot, Dr., Nov. 30, 1883, to 7-¡- days work as brick mason, at $4 per day,............$30.00.” On the back of the account there was this endorsement: “Without recourse, I assign within account to William Lightfoot.

George W. Dunn, Judge. ■ Tbe case is stated in the opinion. I. The court erred in permitting evidence of Chute to be read to the jury, against defendant’s objection. Appleby v. Brook, 76 Mo. 314 ; State v. Erb, 74 Mo. 205; State v. Klinger, 46 Mo. 229 ; Byern v. Donnell, 80 Mo. 335; Pidcock v. Porter, 68 Pa. St. 342. The court erred in permitting evidence as to damage to the colt by reason of the killing of its dam.

Charles G. Burton, Judge. Statement of case by the court. The petition charges that in 1862, one Washington Adamson delivered to defendant certain vouchers held by him on the government of the United States for horses •sold by Adamson to said government, calling for the sum of four hundred dollars, and that defendant agreed and undertook to collect the same for Adamson ; and that •defendant did collect the same. That Adamson died intestate in the year 1863.

James M. Davis, Judge. The case is stated in the opinion. I. The refusal of instructions asked by defendant was erroneous. They complied, substantially, with all iihe requirements of the stray law. Rev. Stat., sects. 7333-7336. II. The law presumes that every man has a lawful fence around his field. Since this is the requirement of the law, the burden of proof is not on defendant to show it. III.

Circuit Court, Hon. . Noah-M. G-ivan, Judge. The case is stated in the opinion. I. -In the absence of proof of the statutes of Nebraska, where the common law was in force, courts will presume the existence of the common law in that state, and that it is the same as that of our own. White-v. Chaney, 20 Mo. App. 389 ; Flats v. Mulhall, 72 Mo. 522; Golds oil v. Chat. Bank, 80 Mo. 631; Charlotte Chouteau, 16 Mo. 102.

Gf. H. Burgess, Judge. 1. It does not appear that any exception was taken or saved to any ruling or order of the trial court in this case. There is, therefore, no question presented for decision. Bulé fifteen of this court; St. Joseph v. En-worth, 65 Mo. 628; Jacleson v. Railroad, 80 Mo. 147; Bradley, ele., Mfg. Co. v. Bean, 20 Mo. App. 111. ■

<p>1. Judgment—Motion for Satisfaction— Conclusiveness of as to Parties—Case Adjudged.—Where, ini an action of replevin, judgment was rendered for the defendant for the value of the property, this was a solemn adjudication that the damages awarded to defendant were owing and belonged to him. A motion at law, for satisfaction of such judgment, as in this case, on the ground that another party was equally interested in it, and had a right to collect it, is inconsistent with the judgment, and should be denied.</p> <p>2. -Interest in Judgment—Character of Proceedings Asserting it.-—Even if such interest in a judgment exists in fact, ashy virtue of being a partner with the party recovering it, the methods resorted to in this proceeding are not admissible. After the collection of judgment there might be an equitable proceeding, as for an adjustment of partnership accounts. But no such equitable matters are cognizable under a motion like this, on the law side of the court.</p>

.James M. Davis, Judge. Statement of case by the court. This is an action to recover damages for failure of defendant, a railroad corporation, to carry hogs of the plaintiff according to contract. The petition charged that the defendant, in March, 1882, agreed with plaintiff to ship a car load of hogs for him from Norborne, Carroll county, to East St. Louis, over its road, consigned to plaintiff’s agent at said destination.

James M. Davis, Judge. Statement of case by tbe court. Tbis is an action begun in tbe Carroll circuit court against tbe defendant, a railroad corporation, to recover damages for tbe injury to two borses, a buggy and harness, tbe property of plaintiff. Tbe petition alleges that the accident occurred in tbe town of Norborne, a municipal corporation, in Carroll county.

Noah M. Givan, Judge. The- case is stated in the opinion of the court. I. To make defendant liable for double damages, the injury must have been inflicted by defendant while running or operating its railroad with engines or cars, and that the injury was by actual contact. Sect. 809; Rev. Stat. ; Lafferty v. Railroad, 44 Mo. 291; Hughes v. Railroad, 66 Mo. 325; Seiber v. Railroad, 72 Mo. 565. II.

Noah M. Hitan, ■Judge. Statement of case by the court. This was an action upon two promissory notes made by the defendants and payable to R. B. Harwood, the plaintiff’s intestate. . The petition was in two counts. The answer to both •counts was the same.

Davis, Judge. Statement of case by the court. The appellant has filed in this court the following abstract of the record in this case : “ This was an action instituted in the circuit court of Carroll county, Missouri, to recover the sum of two hundred and twenty dollars on account of damages alleged to have been sustained by plaintiff by reason of the negligent delay of certain live stock belonging to him while in transit npon defendant’s railroad, between Kansas City,…

Turner A. Hill, Judge. Statement of case by tlie court. . On and prior to January 1, 1882, the plaintiffs and one Samuel B. Barker, were partners, doing business' under the firm name of Henry, Barker & Coatsworth. •On January 1, 1882, Barker retired from the firm, and assigned all his interest in the account sued on to the plaintiffs, who continued the business of the firm under the firm name of Henry Brothers & Coatsworth. Prior to Barker’s retirement, the firm of Henry,.

Chas H. S. Goodman, Judge, The case is stated in the opinion. I. The demurrer was not too late. Actions ex contractu and ex delicto could not be united, under the code, in the same petition ; and a, motion at the close of plaintiff ’ s evidence to compel him to elect was not too late. South-worth Go. n. Lamb, 82 Mo. 242; sect. 3572, Kev. Stat. II. The contract admitted in evidence was at variance with the allegations in the petition and should have been excluded.

Noah M. Gfivan, Judge. The case and facts are stated in the opinion. I. The sale of the property was clearly within the exception of section 2505, Revised Statutes. The instrument was recorded within a reasonable time, and the recording of it obviated the necessity of any change in the possession. Bishop v. McConnell, 56 Mo. 158. II.

Henry S. Kelley, Judge. Statement of case by the court. This was a controversy between the respondent and the appellants, who were all attaching creditors of Win. Young, The controversy was submitted to the court on the following agreed statement of facts : “Come now the parties hereunto and state to the court, that on the twenty-sixth day of June, 18S3, before one A. Gf.

Noai-i M. Hi van, Judge. Statement of case by the court. This is a proceeding of garnishment on execution, against Hall, as garnishee of Love. A general execution was issued from the circuit court, on May 9, 1881, in favor of the plaintiffs against Love, and on May 10, 1881, Hall was summoned as garnishee on said execution, to appear at the June term, 1881, to answer interrogatories.

George W. Dunn, Judge. , The case is stated in the opinion. I. The first instruction given for plaintiff was error. It left the jury to conjecture what acts or omissions constituted negligence. Re Witt v. Railroad, 50 Mo. 302 ; Rams v. Railroad, 71 Mo. 164; Goodwin v. Railroad, 75 Mo. 73 ; Yarnall v. Railroad, 75 Mo. 575. ■ II. The third, instruction for plaintiff was also error. It declared, in effect, that proof of the injury raised a presumption of negligence.

Ebbob to Jackson Circuit Court, Hon. E. M. Black, Judge. Statement of case by the court.

James M. Davis, Judge. Certified to Supreme Court of this state as provided. in section six of the constitutional amendment creating the Kansas City court of appeals. Judge Hall, being of •opinion that the conclusion reached by the majority of the court is in' conflict with the decision in Nall v. Railroad, 59 Mo. 112, and that said decision has not been ■directly overruled. • Statement of case by the court.

The purchaser '¡oí the land took it discharged of the trust. 2 Story Eq. ■Jur., sect. 1127; Ciarle v. Ilosenthall, 47 Miss. 434; Elliott v. Merryman,Barnard Ch. R. 78 ; Foster v. Craig, 2 Dev. & Bat. 209. The trust in this case is both for the payment of debts and the plaintiff’s legacy, a mixed trust, and the purchaser of the realty is not bound to see to the application of the purchase money. Shaw v. Borror, 1 Keen R. 559, 574 to 576 ; 2 Story’s Eq.

Ben. E. Turner, Judge. The holder of perfected negotiable paper, which has been altered by raising the amount, can not recover. Greenfield Banlc v. Stowell, 123 Mass. 203 ; Knoxville Baltic v. Glarlc,. 51 Iowa, 264; Haslcell v. Champion, 30 Mo. 136 ; Robinson v. Berryman, 22 Mo. App. 509. He who enables another to commit a wrong, is liable for the consequences.

Louis County Circuit Court, Elijah Robinson, Special Judge. Alex. Martin, for the appellant: Habitual drunkenness produced by opium is within the spirit of the statute. Barter v. Barter, 14 Laws Rep. 375. Habitual drunkenness produced by opiates is an indignity for which a divorce may be granted.' Kimpf v. Kimpf., 34 Mo. 211. tion produced by the use of opiates does not constitute drunkenness within the meaning of the statute. Comp. Laws Conn. 378-9.

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

<p>Aprecíate Practice.—A cause having been tahen by writ of error from the trial court to the supreme court on the ground that it involved a constitutional point, and thence transferred to the court of appeals, the latter court will treat such transfer by the supreme court ar equivalent to a decision by said court that the case did not involve a constitutional question.</p>

<p>1. Railroads—Negligence—Practice.—In. an action against a railroad company for damages for killing cattle at a iioint not on, or in the immediate vicinity .of, a public road crossing, but at a point where the railroad company is not required to fence its right of way, the plaintiff must show that the defendant’s negligence was the cause of the accident. -</p> <p>2. --Failure of Proof.—In such a case, evidence of a-failure to ring the bell or blow the whistle in approaching a public road crossing at a considerable distance from the place of the accident is not such proof of ’ negligence as will warrant a verdict for the plaintiff.</p>

Appear from the Clarke County Circuit Court, Ben. E. Turner, Judge. The lease in question did not give the plaintiff possession. Miehan v. Walsh, 6 Mo. 346. The plaintiff must have bona fide peaceable possession of the premises, and not a mere sham. DeGraw v. Prior, 60 Mo. 56; Fd wards v. Gary, 60 Mo. 572. The title and right of possession is not sufficient. Beeler v. Gar dwell, 29 Mo. 72. Possession merely to gain some advantage at law is not bona fide.

<p>Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.</p>

<p>1. appellate Procedure—Assignment oe Errors.—In the absence of a formal assignment of errors, and where the appellant’s brief assigns but one error, the appellate court will determine only the question raised by such assignment of error.</p> <p>'2, -Instructions will not be reviewed on appeal where the record does not show that exceptions were saved to the giving thereof.</p>

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

E. Turner, Judge. There is a verdict on the first count of the plaintiff’s petition, none on the second, and a general judgment on the petition for the plaintiff, which is erroneous. Bricker n. Railroad, 83 Mo. 391; Biglow v. Railroad, 48 Mo. 510; Hickman v. Byrd, 1 Mo. 495.

A bill of exceptions does not become part of the record until it is both signed and filed and the filing comprehends something more than a mere endorsement on the bill to that effect. There must be a proper entry by the clerk on the record. Fulkerson v.. Fonts, 55 Mo. 301 ; Johnson v. Hodges, 65 Mo. 589 Pope v. Thompson, 66 Mo. 661; McGrew v. Foster, 66 Mo. 30; The State r>. Grant, 76 Mo. 95 ; Lafolette v. Thompson, .83 Mo. 199 ; Dinwiddie v. Jacobs, 82 Mo. 195.

James B. Gantt, Judge. The case is stated in the opinion. I. The court erred in sus baining defendant’s demurrer to the evidence, and withdrawing the case from the jury. Moberly v. Railroad, 17 Mo. App. 518; Cannon v. Jfoore, 17 Mo. App. 92 ; Brink v. Railroad, 17 Mo. App. 177 ; Peart v. Railroad, 19 Am. & Eng. Railroad Cases, 233; Johnson v. Railroad, 77 Mo. 546 ; 80 Mo. 335. II.

E. L. Edwards, Judge. The case and facts are stated in the opinion. I. The petition shows upon its face that defendant did not erect the embankment and railroad track complained of, but took possession of said Missouri, Kansas and Texas railroad long after the same was erected. Under these circumstances the petition was fatally defective in not averring that plaintiff notified defendant of such obstruction. Dickson ®. Railroad, 71 Mo. 575 ; . Wayland v. Railroad, 75 Mo. 548.

Geo. W. Dunn, Judge. • Statement of case by the court. This was an action by plaintiffs, who were husband and wife, for the recovery of damages sustained by the wife by reason of the defendant’s failure to erect and maintain a good and sufficient crossing as required bj law where the defendant’s railroad crossed a certain described public road. The plaintiffs’ evidence tended' to show that the crossing was unsafe and dangerous.

James B. Gantt, Judge. Statement of case by the court. This is an action to recover damages for personal injuries. The defendant is a corporation. The plaintiff was working as a miner in one of defendant’s coal shafts.

Turner A. GriLL, Judge. Statement of case by tbe court. Tbis is an action to recover of tbe defendant compensation for water furnished it by plaintiff between tbe first day of July, 1880, and tbe first day of January, 1881, for tbe use of certain designated school buildings situate within the corporate limits of the city.

Court, Hon. James M. Davis, Judge. Statement of case by tlie court. This was an action for the recovery of damages on account of injuries to the plaintiff alleged to have been caused by the negligent failure of defendant to keep the sidewalk on one of its streets in a reasonably safe condition. The street in question was and had been for many years in constant and general use. Upon the street near the place of the accident was the post office.

Charles Gí. Burton, Judge. In a suit to recover a wager on an election, the petition must state the particulars of the transaction. Sybert ■». Jones, 19 Mo. 86. The petition in this case does not state any of the particulars. It does not state whether the bet was that Fox would be elected or defeated, and if so to what office. Neither is the matter at all elucidated by the evidence. ' The. motion for new trial, and in arrest, ought to have been sustained.

F. M. Black, Judge. • Statement of case by the court. The plaintiff kept a hotel in Kansas City. The defendant, Acheson, boarded there with his family under a special contract with the plaintiff from March 1, 1883, to November 15, 1883, at which last date the defendant owed on account thé sum of $368.75.

Lords Circuit Court, Shepard Barclay, Judge. The sale and delivery, before maturity, of notes secured by a deed of trust in the nature of a mortgage, carries with it, an assignment of the real estate security, which, in equity, is a mere incident of the debt‘secured. Logan v. Smith, 62 Mo. 455 ; Goodfellow ». Stillwell, 78 Mo. 17; Jeer dens v. Sehrimpf, 77 Mo. 383, p. 385 ; Lee v. Clark [Sp. Ct. Mo.] 1 S. W. Rep. 142.

the St.. Louis Circuit Court, Daniel Dillon, -Judge. . , Affirmed. The court on the case as' a whole’should have sustained the defendant’s motion for judgment non obstante ver edicto. Powell v. Railroad, 76 Mo. 85 ; Borgraefe ®. Knights, 22 Mo. App. 127 ; Slaybaek v. Girkhardt, 1 Mo. App. 333 ; Maser v. Ins. Co., 2 Mo. App. 408; Baton v. Knights, 22 Cent. L. J. 560 ; St. Patrick v. Me Vey, 92 Pa. St. 510.

<p>1. Appellate Procedure—Weight oe Evidence—In actions at law, appellate courts will not weigh the evidence where there is substantial evidence to suppoit the verdict.</p> <p>2. -Instructions.—An instruction which is correct as applied to the merits of the controversy, will not be declared erroneous because it is inartiñcially drawn.</p>

Louis Circuit Court, Daniel Dillon, Judge. The cause of action known as “account stated,” is an independent and distinct cause of action. Cape Girardeau v. Kimmel, 58 Mo. 83; Brown v. Kimmel, 67 Mo. 430 Ward v. KarreTly, 9 Mo. App. 370; Kent v. Highleyman, 17 MO. App. 9. The circuit court erred in permitting plaintiff to file the amended statement upon the-trial. Murphy v. Bedford, 18 Mo. App. 279 ; Newman, v. Kenton, 79 Mo. 385. The amendment was properly made.

Louis Circuit Court, Amos M„ Thayee, Judge. A person other than the defendant in a writ of attachment whose - property is wrongfully taken thereunder, may maintain an action against the plaintiff in the attachment suit, if he directed or assented to the wrongful levy, to recover the damages sustained. Buck n. ColbatJi, 5 Wall. 334'; Lamon ®. Feusier, 111 U. S. 19; Perrin v. Clajlin, 11 Mo. 13; Tose r>. Woods, 34 Hun [N. Y.] 447; McDaniel v. Gardner, 34 La. An. 341.

E. Turner, Judge. It was not necessary to present the claim against the decedent’s estate. Sauer v. Griffith, 67 Mo. 654. The action is properly brought against the heirs direct, and they are liable to the extent of the assets descended. Wallcer v. Heavier, 79 Mo. 664; Miller v. Bledsoe, 61 Mo. 96. They are liable pro rata. Metcalf v. Smith, 40 Mo. 572.

Louis Circuit Court, Daeiel Dillon, Judge. The report which, the sheriff makes under such orders of sale is like Ms return on an order of sale in a partition case, or on an execution, or any other process of court. And when such return is made, the statute of limitation is put in motion. Th,e State ex rel. v. Lidwell, 11 Mo. App. 567; Kirie «•. Sportsman, 48 Mo. 383.

Louis Circuit Court, George W. Lujbke, Judge. Actions ex' contractu and ex delicto can not be joined in the same petition. Phillips r>. Flynn, 71 Mo. 424; Sumner v. Tuclc, 10 M. A. 269; Threman v. Goodnight, 17 M. A. 429. The misjoinder is an irregularity which does not go to the jurisdiction. Southworth r>. Lamb, 82 Mo. 247. The circuit court properly permitted the dismissal of a part of its cause of action. Transier ®. Railroad, 54 Mo. 191.

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

Louis Circuit Court, Amos M. Tiiayer, Judge. The evidence discloses that S. B. Pike & Co. were only factors of George W. Capen, and as sucji he had no authority to sell goods for the account of his principal which had not been consigned to him. Wharton on Agency and Agents, sect. 735 ; Story on Agency, sect. 28, and note 165 [8 Ed.] 1 Benjamin on Sales, sect. 244; Edwards on Factors and Brokers, sects. 1 and 97. There was no contract, under the statute of frauds.

Louis Circuit Court, George W. Lubke, Judge. The landlord ’ s promise to repair the premises after the tenant has entered is without consideration and void. Taylor, L. & T., sect. 329; Sibley v. Telford, 48 Me. 316. The tenant is bound to keep the demised premises in repair. Taylor, L. & T., sect. 327; Val v. Weld, 17 Mo. 232; Griffith v. Lewis, 17 Mo. App. 614. Dockery was bound, as a landlord, to make repairs, the tenancy being from month to month. Griffith v. Lewis, 17 Mo.

Louis Circuit Court, W. H. Horner, Judge. The sale was good under the statute of frauds, because of the delivery of a part of the goods sold. RieJeey v. Tenbroeclc, 68 Mo. 563. The evidence was properly admitted. Wernwag v. Railroad, 20 Mo. App. 473. Under the evidence there was no sale in bulk.

Thater, Judge. The respondent could only recover on the ground that he acquired the note, bona fide, for val ue, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity. Daniel on Neg. Inst., sects. 812, 819 ; Johnson v. McMiorry, 72 Mo. 278 ; Hamilton v. Maries, 63 Mo. 167. He took the nore in bad faith. Barr •». Balcer, 9 Mo. 850 ; JSdwards r>. Thomas, 66 Mo. 47; Cass Co. r>.

E. Turner, Judge. Property levied upon, being a homestead, was exempt from sale under this execution. Rev. Stat., sect. 2639 ; Sess. Acts, 188.1, 140. The sheriff should have given the appellant an opportunity, after seizing the lands, to designate the part claimed as a homestead. Rev. Stat, sect 2690. The appellant had a right to claim his exemptions at any time before sale. State ex ret. v. JSmmerson, 74 Mo. 607.

Circuit Court, Hon. M. G. McGregor, Judge. Tbe case is stated in tbe opinion. I. The finding npon the issue presented by the defendant and submitted by the court to the jury, should-have been direct and positive. Morrow n. Commissioners, 21 Kas. 484. II. The court erred in refusing to require the jury: to find specifically upon the issue submitted. Railroad n. Perry,-34 Kas. 483 ; Bolder r: Ranch Co., 31 Kas. 502; Morrow v. Commissioners, supra. III.

Andrew Ellison, Judge'. Statement of case by the court. - This was an action instituted before a justice of the peace of Liberty township, Schuyler county, for the recovery of damages caused by the killing of a horse. From a judgment rendered in the justice’s court in favor of the plaintiff, the defendant took an appeal to the circuit court. In the circuit court the case was tried de novo.

Chas. H. S. Goodman, Judge. The case and facts are stated in the opinion. I. Only one item remaining unadjusted between them, one partner may sue his co-partners at law therefor. Buclcner v. Bees, 34 Mo. 337; Bussell v. Grimes, 46 Mo. 410; Bethel v. Banlcin, 57 Mo. 466. Such an action also lies on the express promise evidenced by the note sued on. Crate v. Bininger, 45 N. Y. 545; Venning v. Luclcie, 13 East. 7.

Andrew IEllison, Judge. Statement of case by the court. The petition in this case alleged that the plaintiff was in possession,, as owner in fee-simple, of sixteen acres of land described in the petition to which the defendants made some claim, and asked that the defendants be summoned to show cause why they should not bring an action to try their title. ' The preliminary order was issued, and the defendants filed their answer, in which they denied the allegations of the…

E. L. Edwards, Judge. The case is stated in the opinion. I. We had the right, to make the showing which was made as to the return of the officer. It comes undei the head of what is termed a writ of error eoram nobis. Foney v. State, 11 Mo. 85; Callaway v. Nefering, 1 Mo. 223; Conway v. Ferry, 26 Kansas, 472; Powell v Gott, 13 Mo. 460; Pickett v. Legwood, 7 Peters (U. S.) 140 ; Exparte James Boy, 57 Mo. 231; Nelsonv.

E. L. Edwards, Judge. Statement of case by the court. This was a prosecution by information of the prosecuting attorney, verified by the oath of one James Wilkerson, instituted in the circuit court against the defendant, in 1885. James Wilkerson, in 1872, was convicted in the circuit court of Cole county of grand larceny, and was sentenced to imprisonment for two years in the penitentiary.

G-. H. Bhrokhartt, Judge. The case and facts stated in the opinion. I. Defendant was not liable to plaintiff, under section 809, Revised Statutes, for the loss of his mule. Fences are required for the benefit and protection of the adjacent land owner alone: Berry v. Railroad, 65 Mo. 172; Harrington v. Railroad, 71 Mo. 384; Peddicord v. Railroad, 85 Mo. 160. II.

C. Hamaiond, Special Judge. The case and fact are stated in the opinion. IJ. The trial court should have directed a finding lor the defendant, even on testimony of plaintiff’s own witness. Maher n. Railroad, 64 Mo, 267; Zimmerman v. Railroad, 71 Mo. 476 ; YarnaTl v. Railroad, 75 Mo. 575 : Rowell v. Railroad, 76 Mo. 80 ; Riñe v. Railroad,. 88 Mo. 395; O’ Donnell v. Railroad, 7 Mo. App. 190; 1 Thump. Neg. 450. II.

Circuit Court, Hon. Turner A. Gill, Judge. The case and facts are stated in the opinion. The court erred in giving instructions for plaintiff against defendant’s, objection, and in refusing instructions offered by defendant. I. The instructions asked for by defendant and refused by the court, all, in effect, declared as matter of law, that plaintiff was guilty of contributory negligence in being on the platform when the train was in motion.

Gr. H. Burckhartt, Judge. The case is stated in the opinion. I. It was- the duty of the administrator to furnish all the necessary labor and care to preserve the estate, .and to make report to probate court at its next meeting, ;and upon his application the court had authority to order an appropriation for payment of the ’ same. Sect. 100, Rev. Stat. And the court may order all further labor -to be done which may be necessary for the preservation of the estate.

Charles Gr. Burton, Judge. Statement of case by tbe court. This was an action for tbe conversion of tbe following personal property: “One fifteen-ball Brunswick pool table and sixteen pool balls, one Brunswick billiard table and twenty-two cues, and four billiard balls, one ice chest, one bar aud counter, glassware, fixtures and bottles, and tw.o chandeliers, one hanging lamp, four bracket lamps, one mirror, seven pictures, nine chairs, two bar or movable lamps undone…

E. L. Edwards, Judge. Tlie case is stated in the opinion. I. There is no evidence to sustain the verdict. There was no proof of sale of liquor by defendant. II. The instruction given for the state was not law. There was no evidence that any one acted as barkeeper for defendant. Instructions must be based upon the evidence. Again there is no evidence that the indictment was ever filed. III.

C. H. S.. Goodman, Judge. Statement of case by the court. This was an action of slander. The petition was in three counts. The plaintiff dismissed as to the third count, and the jury found for the plaintiff on the first count only. The defamatory words charged in the first-count of the petition to have been spoken of the plaintiff by the defendant, were: “I will not keep him, (meaning the plaintiff), all summer, for I have to watch. my pocket book too close.

F. M. Black, Judge. Statement of case by the court. This was an action against the defendant as a common carrier of passengers. The petition alleged that the defendant as such carrier received the plaintiff as a passenger, together with one valise as baggage, to be Safely carried to Liberty, Missouri, and that the baggage was to be there delivered to the plaintiff.

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

Louis Circuit Court, W. H. Hobneb, Judge. There is no privity of contract between the appellant and the respondent. The appellant owed the respondent nothing. Donnelly v. Hudson, 13 Mo. App. 15. The indebtedness of the appellant to the company matured at once upon the company’s dissolution, and upon the maturity of the indebtedness, the statute of limitations began to run in the appellant’s favor, as to his liability therefor.

<p>Garnishment—Conditional Contracts—Burden of Proof.—In garnishment proceedings, in order to render the garnishee liable on a conditional promise, the plaintiff must show both the promise and. the fulfillment of the condition:</p>

Louis Circuit Court, Shepard Barclay, Judge. The mortgageor was to remain in possession and conduct the business which rendered the mortgage void. Sheppards v. Turpin, 3 Gratt. 373 ; White v. Graves, 68 Mo. 220 ; Goddard v. Jones, 78 Mo. 518 ; Stanley v. Bunce, 27 Mo. 269 ; Billingsley v. Bunce, 28 Mo. 547 ; The State v. Mueller, •10 Mo. App. 87.

Lonis Circuit Court, Amos M. Thayeb, Judge. Any act done at the defendant’s request, and for his convenience, or to the inconvenience - of the plaintiff, would be sufficient to support a promise by the defendant. Given v. Corse, 20 Mo. App. 132; 1 Parsons on Cont. [7 Ed.] 473 ; Burr v. Wilcox, 13 Allen, 273 ; Stiluoell v. Aaron, 69 Mo. 545.

Louis Circuit Court, Shepard Barclay, Judge, The sheriff, under his attachment against Alexe, had no right to enter the plaintiff’s premises and take possession of the plaintiff ’ s goods, or exclude the plaintiff from the possession of the premises in question. Smith on Sheriffs, 257; Perry v. Carter, 42 Yt. 50 ; Dams v. Stone, 120 Mass. 228; Williams v. Powell, 101 Mass. 467.

Louis Circuit Court, Daniel. Dillon, Judge. With full knowledge of the services rendered, in the trial of his case, Crawford had no right to be-silent. Banlc v. Gay, 63 Mo. 33. In support of the-plaintiff’s instructions, we rely upon well established, principles of agency, and upon the following authorities : Holmes v. The Board of Trade of Kansas City, 81 Mo. 137; McCrary r>. RuddicJc, 33 ia. 521; Scott v. Railroad, 86 N. Y. 200; Fister v. La Rue, 15 Barb. 324.

Louis Circuit Court, Daniel Dillon, Judge. Alexe having made the purchase by means of fraudulent ^representations, and without intending to pay for the goods, plaintiffs might within a reasonable time after ■coming to a knowledge of their rights and of the facts .affecting those rights, elect whether to affirm or to rescind the sale. Cox v. Montgomery, 36 111. 396 ; Manahan v. Noyes, 52 N. II. 232.

<p>Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge.</p>

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

<p>1. Mechanic's Liens—Sub-contractors—Notice.—It is essential to a. sub-contractor’s recovery against the contractor and the owner, that he should show service, upon the owner, of notice of his intention to lile a lien, within the time required by statute, and the owner's . absence from the state will not excuse a faihu-e to do so.</p> <p>2. - Pleadings—Alternative Pleas.—In pleading statements-in the alternative each of the alternatives must state a legal cause .of action or defence, and if either of the statements is insufficient in law-the entire plea is defective.</p>

<p>1. Foreign Judgment—Pleading and Evidence.—The provisions of the federal statutes on that subject do not exclude the common law-method of proving foreign judgments.</p> <p>2. Pleading—Jurisdiction, How Pleaded—It is sufficient under the statute, in pleading the judgment of a court of special jurisdiction, to state that jurisdiction has been duly conferred, without stating the facts.</p>

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

<p>Appeal from Henry Circuit Court, Hon. J ames B. Gantt, Judge.</p> <p>The case is stated in the opinion.</p>

E. L. Edwards, Judge. Statement of case by the court. This action was begun before a justice of the peace upon an information charging the defendant with the commission of a certain misdemeanor.

G-. D. Burgess. Judge. I. The statement of plaintiffs’ cause of action alleges that they bought the timber of Dennis, but that it was on defendant’s land, and as it does not allege that it was Dennis’ timber, and as it was on defendant’s land, the presumption is that it was defendant’s timber, and. the statement did not state facts sufficient to constitute-' a cause of action against defendant.

E. L. Edwards, Judge. The case is stated in the opinion. I. The instructions given for plaintiff were erroneous, and submit issues which were not raised. There was no allegation of fraud or false representations in the petition. Smith v. Sims, 77 Mo. 274; Parker v. Marquis, 64 Mo. 38. The petition shall contain a plain and concise statement of the facts constituting a cause of action without unnecessary repetition. Sect. 3511, Rev. Stat.

TurneeA. Gill, Judge. The case is stated in the opinion. I. The court erred in not sustaining the demurrer to the evidence. It appeared that an alteration was made in the order after its acceptance by the company, at plaintiff’s suggestion, and there was no evidence of the-knowledge of it by the company until after suit brought, or that the company ratified it. This made the order a-nullity and no recovery could be had on it.

James B. Gantt, Judge. The case is stated iu the opinion. I. The court erred in striking out the amended' answer of defendants, Shobe and Johnson, and the separate answer of Johnson. Sects. 3521, 3522, Rev. Stat.; Ashby v. dhaw, 82 Mo. 76 ; Dyas v. Hanson, 14 Mo. App. 363. The insolvency and non-residence of plaintiff alleged in the answer and admitted by the motion, afforded sufficient grounds for entertaining the answer' as an equitable set off.

E. L„ Edwards, Judge. ‘Statement of case by the court. ' This is an action in trespass, for wrongfully entering the close of plaintiff, and the consequent loss of a crop of corn standing in the field. The petition alleges that the plain fciff rented from the defendant, Castleman, certain lands for the year, beginning March 1, 1884, and ending March 1, 1885.

G-eorge W. Dunn, Judge. Statement of case by the court. The plaintiff in this suit was the defendant in the •case of Robinson v. Musser, reported in 78 Mo. 153. In that case the plaintiff therein, in accordance with the ■order of the circuit court to that effect, gave a bond, in the usual form, with the defendants in the present case us sureties, to secure the payment of all costs that might be adjudged against the plaintiff in that said case.

Noah M, Givan, Judge. Statement of case by the court. This was an action by the plaintiff, as administrator of the estate of Wm. F. Rogers, against the defendant, as administrator of the estate of Thos. J. Rogers, on a promissory note executed by Thos. J. Rogers and payable to William F. Rogers. This proceeding was instituted in the probate court, where the plaintiff had judgment:, from which the defendant appealed to the circuit court. William F. Rogers and Thos.

F. M. Black, Judge. The case is stated in the opinion. I. The draft in suit is a bank check and not a bill of exchange. 2 Daniel on Negotiable Instruments, sect. 1566; Bank v. Coates, 3 McCrary, 9; Veazie Bank v. Winn, 40 Maine, 60. II.

Noaii M. Givan, Judge. Statement of case by tbe court. This is an action by tbe parent, Jobn Soldanels, to recover damages for tbe loss of tbe services of his minor child, consequent upon injuries sustained while-in tbe employ of tbe defendant, a railroad corporation, in switching trains in its yard at Pleasant Hill.

James H. Sloyer, Judge. The case is stated in the opinion. I. The motion for a continuance ought not to have been sustained, and defendant compelled, when ready for trial, to submit to a continuance or to admit the affidavit in evidence. 31 Mo. 462; 28 Mo. 341. II. The court erred in instructing as to the measure of damages, and is in contradiction of instruction given ' by the court at request of defendant. III.

G. D. Burgess, Judge. Statement of case by the court. This action was begun before a justice of the peace. The statement or petition was in two counts.

Louis Circuit Court, Daniel Dillon, Judge, An agreement to compromise and adjust an undisputed indebtedness by the acceptance of unsecured notes by the debtor for a less amount than that due, is void for want of consideration. Line n. Nelson, 33 N. J. L. 358 ; 6 Wait’s Actions and Defences, 409; BrooTc r>. Moore, 67 Barb. 394; Curran v. Hummel, 118 Mass. 482; Harriman v. Harriman, 12 Gray, 341.

Louis' Circuit Court, Daniel Dillon, Judge. (1) The account filed as the basis of the lien is defective; it is not a “just and true account,” as required by the statute. Rev. Stat., sect. 3176; Nelson v. Withrow, 14 Mo. App. 270, 276, liar. 2 ; Eclgar r. Salisbury, 17 Mo. App. 271; Kershaw r>. Fitzpatrick, 3 Mo. App. 575; Mtcrphy Murphy, 22 Mo. App. 18 ; Sdiulenburg v. Hawley, 6 Mo. App. 34; Kling r. Mo. Ry. Const. Co., 7 Mo.

Louis Circuit Court, George W. Lubke, Judge. • The act of March 18, 1874, was omitted from the revision of 1879. Torny’s Note to Rev. Stat. 51. And it was not kept specially in force by the scheme and charter, article 2, section 22, Revised Statutes, 1879, page 1581. v The act of 1874 never was repealed, and its omission from the Revised Statutes, 1879 is not a repeal by implication. Sedgwick Stat. and Const. Law, 127.

Louis Circuit Court, Shepard Barclay, Judge. The cost of improvement can be assessed upon the property 'only to the extent that it is specially benefited. 2 Bill. Mun. ■Corp. [3 Ed.] 756, 759; Neenan v. Smith, 50 Mo. 525 ; Newby v. Platte Co., 25 Mo. 271 ; Garret v. St. Louis, ■25 Mo. 511; Zoeller v. Kellogg, 4 Mo. App. 153. The reconstruction of both Seventh street and Clark avenue is part of one general plan of street reconstruction.

Louis Circuit Court, Amos M. Thayer, Judge. All that was relevant was the amount of the judgments and the date of the confessions, and the parties’ statements therein contained were immaterial and irrelevant. Foster n. Nowlin, 4 Mo. 1; McMahan v. Geiger, 73 Mo. 145 ; Freeman on Judgments. The point is not made in the motion for a new trial, and this court will not consider the objection when urged here for the first time. Daily v. Singer Mctnfg. Qo., 14 Mo.

Louis Circuit Court, W. H. •Horner, Judge. There was -nothing unlawful in the agreement. Lehnsdorf v. Shields, 13 Mo. App. 487. Where the contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. Armstrong v. Toler, 11 Wheat. 279 ; Buckingham n. Fitch, 18 Mo. App. 99.

Louis Circuit Court, Shepard Barclay, Judge. A corporation, as well as an individual, may be enjoined from the ■use of a name where it appears that it is an unlawful infringement on the name used by or belonging to another, even if such name be its corporate name. 1 High on Injunctions, sect. 5907; Ex parte Walker, 1 Tenn.

Louis Circuit, Court Amos M. Thayeb, Judge. Contracts for personal services are entire, and can not be apportioned. The obligations of the parties are reciprocal. Garp v. Tyler, 78 Mo. 617; Forms v. Smit, 15 Mo. App. 583 ; Hanel v. Freund, 17 Mo. App. 620; Henson ». Hampton, 32 Mo. 408; Arnold «. School Fist., 73 Mo. 226; Plummer v. Frost, 81 Mo. 425. The company had no right to discharge the plaintiff, except for cause.

Louis Circuit Court, Shepard Barclay, Judge. A contra•diction between two instructions, so far from correcting >the evils of either, multiplies them both. Turner v. Babb, 45 Mo. 387; Henshen v. O'Bannon, 56 Mo. 289 ; Goetz v. Railroad, 50 Mo. 472; The State v. Mitchell, •64 Mo. 191; The State v. Hauert, 2 Mo. App. 295; Stevenson v. Hancock, 72 Mo. 614; Price v. Railroad, 77 Mo. 512; The State v. Simms, 68 Mo. 309; Staples v. -Town of Canton, 69 Mo. 594.

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

Louis .Circuit Court, Amos M. Thayer, Judge. If possession of personalty, on which there is a lien, is temporarily parted with and another lien attaches meanwhile, the-former does not revive against the latter. Schoul. Pers. Prop. 497; Godin v. Lond. As. Co., 1 Burr. 4S9 y Spring v. Ins. Co., 8 Wheat. 268.

Louis Circuit Court, Daniel Dillon, Judge. The act of 1875, now section 3296, of the Revised Statutes, 1879, abrogated the common law liability of the husband for the ante-nuptial debts of the wife. Howarth v. Warmser, 58 111. 48; Martin v. Robson, 65 111. 129 ; s. o. 16 Am. Rep. 578; Haight v. Mo Veagh, 69 111. 627; Biery v. Ziegler, 93 Pa.

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

Louis Circuit Court, Amos M. Thayer, Judge. “ The law never-implies what the parties never intended; never raises a promise in such circumstances.” BanJc v. Aul, 80 Mo. 200 ; Morris v. Barnes, 35 Mo. 412; Hurt v. Hurt, 41 Mo. 441. “ When services are rendered and received, without any expectation of payment no claim can be preferred therefor.” Morris v. Barnes, 35Mo. 412. “If one claims a lien on a horse for board, and the horse is not in his possession, he can not obtain…

This court has jurisdiction. In re McDonald, 19 Mo. App. .532.

Louis Circuit Court, Shepard Barclay, Judge. A justice has no jurisdiction of actions involving unsettled partnership accounts. Smith v. Smith, 33 Mo. 557; Bond v. Bemis, 55 Mo. 524. The amendment changed the cause of action, and was, therefore, improper. Rev. Stat., sects. 3058, 3060; Webb r. Sweedie, 30 Mo. 488; Freimuth v. Rupp, 8 Mo. App. 387; Harris », Railroad, 37 Mo. 307; Waldhier v. Railroad, '71 Mo. 514.

The commissioner’s appraisement is conclusive after the lapse of the term of court, and can not be set aside except for fraud or mistake. Thompson on Homesteads, sects. 667-8 ; Barney v. Leeds, 54 N. H. 128; Freeman on Judgments, sect. 531. The plaintiff by participating in the sale, receiving a part of the ■Sale, etc., is estopped, from questioning the validity of the homestead proceedings. Austin v. Loring, 63 Mo. .19 ; Slogel v. Murdock, 65 Mo. 522.

<p>1. Practice—Instructions.—Instructions as to facts not in issue are properly refused-</p> <p>'s. - Definitions.—The meaning of words in ordinary, or in commercial use, need not be defined in instructions.</p>

Louis Circuit Court, Shepard Barclat, Judge. The contract is an entirety, and is not to be treated as a succession of contracts, each item furnishing a separate and distinct cause of action. Railroad v. Levy, 17 Mo. App. 1308, and cases cited ; 2 Parsons on Contracts [5 Ed.] 517.

Louis Circuit Court, Daniel Dillon, Judge. The plaintiff had a right to sue for each month’s rent separately, as each constituted and was ground for a separate cause of action, after it was due and earned, but could not be recovered for as a money demand until earned, although payable in advance by terms of contract. Bridle v. Gran,, 42 Mo. 359; Wagner ■». Jacoby, 26 Mo. 532.

Louis Circuit Court, Daniel Dillon, Judge. The circuit court did not acquire jurisdiction over the defendant or the subject matter of the action. Fithianv. Monies et at., 43 Mo. 515; Bliss v. Smith, 78 111. 359; • Drake on Attachments, sect. 474. The judgment against the defendant was irregular and void for want of jurisdiction of the subject matter; it was the duty of the garnishees to resist a judgment; against them for a debt which was not the subject of garnishment.

<p>1. Witness—Impeachment of—Practice—Evidence.—The question as to whether a witness has been successfully impeached is one of' fact, and, where there is substantial evidence on each side, is not reviewable on appeal.</p> <p>2. Practice—Affirmance with Damages.—In an action oh a written promise to pay, an appeal which brings up for review questions of fact only will not be considered as having merit, and the judgment will be affirmed with ten per cent, damages.</p>

1 Appeal from the St. Louis Circuit Court, Daniel Dillon, Judge. The defendant, in a replevin' suit, who fails to have his damages assessed in that suit, can not maintain an action against the plaintiff and his sureties on the replevin bond for damages. White v. Van Houten, 51 Mo. 577; Hohenthals v. Watson, 28 Mo. 360 ; Farley v. Bryant, 34 Mo. 512 ; Boutell v. Warne, 62 Mo. 350 ; Dougherty v. Cooper, 77 Mo. 535.

Louis Circuit Court, George. W. Lubke, Judge. Under evidence-showing’ that the injury and the negligence had no connection the court will direct a verdict for the defendant., Dunn v. Railroad, 21 Mo. App. 188. The master is not an insurer, and he is bound only to ordinary care in providing machinery for his employes.