Volume 29 — Missouri Appeal Reports

<p>1. Practice — Case eor Interpleader — Allowance por Expenses. ' Where a party holds funds in which he claims no interest, and which are demanded of him by rival claimants, and. a serious doubt exists as to which claimant is entitled to them, such facts make a proper case for a bill of interpleader. In such a case, the party will be entitled to an allowance, as costs, for his expenses in maintaining the suit.</p> <p>2. Corporation, Foreign — Charter Powers — Judicial Recognition. — The charter of a foreign corporation empowers it “To accept and execute all such trusts of every description as may be committed to them by any person or persons whatsoever, or any corporation, or may be committed or transferred to them by order of the Supreme Court, or by a surrogate, or by any of the courts of record.” Held, that, under such powers, the corporation can, by appointment of the locally jurisdictional Supreme Court, act as a committee of the estate of a person adjudged, by the same court, to he an habitual drunkard ; there being nothing in other parts of the charter, or in controlling laws, which, by necessary implication, limits the grant. Held, further, that such an appointee will, by comity, be judicially recognized here, for the purposes of a proceeding affecting any property of the beneficiary within this state.</p> <p>3. Evidence — Not Material, When. — It appearing that the decree entered in this case is eminently just and proper upon the facts shown ; and that it makes the same disposition of the fund which the beneficiary appellant desires to make of it, it is not material to inquire whether evidence ought to have been admitted, tending to show the beneficiary’s present capacity to manage his own affairs.</p>

Louis Circuit Court, Hon. Gteobge W. Ltjbke, Judge. Notice of appeal not having been given to appellant at least ten days before the December term, appellant was entitled to a dismissal of the appeal, and the court erred in overruling her motion to dismiss. Rev. Stat., 1879, sec. 3057. Plaintiff' waived the notice required by statute by a voluntary appearance in the circuit court to the case upon its-merits.

Louis Circuit Court, IIon. Daniel Dillon, Judge. A guaranty that the contractor should furnish materials, etc., at Ms own cost and charges is not a guaranty against lien claims for materials furnished under subcontracts ■with the contractor. The liability of a surety cannot be extended beyond the plain terms of his contract, nor by implication. The Singer v. Hibbs, 21 Mo.

Louis Circuit Court, Hon. Shepard Barclay, Judge. The making of an invalid confession of judgment and procurement of an invalid levy thereunder upon his goods by a debtor, affords ground for attachment. Field v. Liverman, 17 Mo. 218 ; Bullene v. Smith, 73 Mo. 161, 162. The next proposition is that a disposition of property by a debtor, which is constructively fraudulent, is a ground for attachment equally as well as a disposition which is fraudulent in fact.

<p>Appeal from the St. Louis Circuit Court, Hon. Leroy B. Yalliant, Judge.</p> <p>The verdict in this case was grossly excessive, unwarranted by any interpretation of the evidence, and could not be cured by remittitur. Doty v. Steinberg, 25 Mo App. 328; Koeltz v. Bleckman, 46 Mo. 320. There is no evidence to sustain" a verdict for the conversion of the property in controversy by either appellant or any of its officers. 2 Greenl. on Evid., sec. 642 ; Rand v. Oxford, 34 Ala. 476; Allen v. McMonagle, 77 Mo. 478; McCormack v. Gilliland, 76 Mo. 655; Koch v. Branch, 44 Mo. 542 ; Huxley v. Hartzell, 44 Mo. 370 ; O’ Donoghue v. Corby. 22 Mo. 393; Sparks v. Purdy, 11 Mo. 219 ; Hiemitz v. Agricultural & Mech. Ass’n, 5 Mo. App. 59; Thorogood v. Robinson, 6 Q. B. [Adol. and Ell.] 769. Respondent could recover only for conversion, if at all, in this case. Duncan v. Fisher, 18 Mo. 403 ; McCormack v. Gilliland, 76 Mo. 655; Kennedy v. Pruitt, 24 Mo. App. 414. The court erred in excluding the records of appellant (Rev. Stat. 1879, secs. 760, 936), and, although excluded, being preserved in the record, they are entitled to the same consideration here as if admitted. Martin v. Bonsack, 61 Mo. 556, 558-9 ; Rev. Stat. 1879, sec. 929. If any of the officers of appellant converted this property, and were attempting at the time to act for appellant, such act was ultra vires, and appellant cannot be held liable for it. Worley v. Columbia, 88 Mo. 106; Rowland v. City, 75 Mo. • 134; Thomson v. City, 61 Mo. 282; Cheney v. Inhabitants, 60 Mo. 53; Green’s Brice’s Ultra Tires [2 Ed.] 550, 362, 363;' Cooley on Torts, 119 ; Morawetz on Corporations [2 Ed,] secs. 392, 393, 580, 581, 730. If an officer of appellant had been attempting to hold this property for a debt due to it by Briggs, this would simply have been an illegal act on his part (Hensley v. Hartzell, 44 Mo. 372), and appellant would not have been liable for it. Sullivan v. Railroad, 88 Mo. 169.</p> <p>“Where the sum recovered as damages was reduced by remittitur to an amount satisfactory to the judge who tried the cause, this court will not interfere.” Lloyd v. Railroad, 53 Mo. 509 ; Sharpe n. Johnston, 76 Mo. 660 ; Cook ». Railroad, 63 Mo. 397. “A bailee or agent of another, who, after being- apprised of the rights of the real owner, retains possession of the property, or of the proceeds of its sale, and refuses to deliver the same to such owner, is .guilty of conversion.” Dusky v. Rudder, 80 Mo. 400. “Any wrongful taking or assumption of a right to control or dispose of property, constitutes a conversion. Any wrongful act which negatives, or is inconsistent with, the plaintiff’s right, is per se a conversion.” Allen 'o. McMonagle, 77 Mo. 478 ; Rembaugh v. Phipps, 75 Mo. 422 ; Ireland -o. Horseman, 65 Mo. 511; O’ Donoghue v. Corby, 22 Mo. 393; Koch v. Branch, 44 Mo. 542; Culbertson v. Hill, 87 Mo. 553. The doctrine of ultra mres has no application in this case. 2 Waite’s Actions and Defences, 337; Cooley on Torts, 119, 121; Boone on the Law of Corporations, sec. 78, notes, and cases cited ; 1 Addison on Torts, 1118, 1119. “Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra mres has no application.” Bank v. Graham, 100 U. S. 702; Woodward v. Railroad, 85 Mo. 142 ; Boogher v. Ins. Co., 75 Mo. 319 ; Alexander v. Relfe, 74 Mo. 495; Johnson r. Dispatch Go., 65 Mo. 539; Perkins v. Railroad, 55 Mo. 201. The instructions of both appellant and respondent, when considered as an entirety, give the whole law of the case. McKeon u. Railroad, 43 Mo. 405.</p>

Andrew Ellison, Judge. The case is stated in the opinion. I. The court erred in overruling defendant’s objection to any evidence on plaintiff’s part. The complaint did not state facts sufficient to constitute a cause of action under the “statute.

Chas. H. S. Goodman, Judge. Tlie case is stated in the opinion. I. The court erred in refusing to direct the jury to find for the defendant. The petition does not state facts sufficient to constitute a cause of action. Rev. Stat. sec. 809; Laws of Mo. 1881, p. 79; Evans v. Railroad, 62 Mo. 57; White v. Qhaney, 20 Mo. App. 397. And the evidence fails to sustain some of the averments in the complaint.

Turner A. Gill, Judge. Statement of case by tbe court. Tins is an action to recover damages arising from the negligence of defendant in carrying a carload of chickens shipped by plaintiffs over the defendant railroad from Kansas City to Denver, Colorado.

Turner A. Gill, Judge. The case is stated in the opinion. I. The defendant’s objections to the introduction of any evidence should have been sustained. There is no allegation in the petition that, at the place where the injury occurred, the defendant might or could have fenced. It is necessary to allege this in order to state a .causé of action under section 2124, Revised Statutes. .iQlarlcson ®. Railroad, 84 Mo. 583; Edwards ®. Railroad, 66 Mo. 567; Wymore ®.

Ciiables Gr. Bubton, Judge. Statement of case by the court. This was an action for the recovery of damages caused to plaintiff’s land, crops, and grass, etc., by overflow, occasioned, as alleged, by the defendant’s negligence. The negligence charged is in the construction and maintenance of the approaches to the railroad bridge of defendant across the Marmaton river in Yernon* county.

James II. Slover, Judge.' Statement of case by the court. ■ This is an action for personal injuries received by plaintiff while a passenger on one of defendant’s passeiu ger trains.

James II. Sloyer, Judge. The case is stated, in the opinion. I. The ordinance complained of. violates the contract between plaintiff and defendant in section 5, ordinance 24,154, that “ all alterations or amendments be general and-binding on all other street railways in the city and those owning and operating the same, whether corporation or natural person.” Const. Mo., art. 2, sec. 15 ; State v. Miller, 66 Mo. 342.

Andrew Ellison, Judge. ' Tlie case is stated in tlie opinion. I. This suit was commenced before a justice of the peace in Sullivan county, Missouri, on the- day of May, 1885, and judgment rendered against defendants, who appealed therefrom to the circuit court of said county.

W. I. Wallace, Judge. Tlie case is stated in the opinion. I. The petition containing no sufficient averments of the conditions precedent to right of recovery the court erred in admitting any testimony in the case after defendant objected on that ground. Facts must be stated as they exist and show a legal canse of action. State to use v. Matson, 38 Mo. 489 ; Link v. Vaughan, 17 Mo. 585. II.

Charles W. Sloan, Judge. Judge Hall, being of opinion that the first paragraph of this opinion is in conflict with the holding of the Supreme Court in Chouteau v. Allen,, the causéis certified to the Supreme Court. The case and facts are stated in the opinion of the , court. I. The court erred in taking the case from the-jury; a demurrer to the evidence admits every reasonable inference which a jury might make from the facts adduced.

C. A. Anthony, Judge. Statement of case by the court. This is an action of replevin to recover the possession of a crop of corn standing in the field. The controversy grew out of the following state of facts: In June, 1886, Hunter & Brother, who are defendants herein, recovered judgment in a justice’s court against John C. Hunt, A. L. Hunt, and W. T. Hunt, for $182.12.

Andrew Ellison, Judge. The case aud facts are stated iu the opinion of tlie court. I. The court erred in overruling plaintiff’s motion for a new trial and in arrest. Welsh v. McAllister, 13 Mo. App. 89; 2 Sedgwick on Damages [7 Ed.] 66 ; 38 Wis. 300 ; 40 N. T. 551; Railroad v. Ashcraft, 48 Ala. 15; 26 Wis. 648; 2 Thomp. on Neg., sec. 58, p. 1266; Field on Dam., sec. 886 ; Reid v. Ins Oo., 58 Mo. 421; State v. Alexander, 66 Mo. 163-4 ; Edens v. Railroad, 72 Mo. 212.

D. P. Stratton, Judge. Statement of case by the court. This suit is brought to require defendant to render an account of his stewardship as plaintiff’s attorney in legal matters in which she had theretofore employed him. The judgment was for defendant, and plaintiff appeals.

Jas. B. Gantt, Judge. The case and facts are stated in the opinion of the-court. I. The court committed error in sustaining defendants’ demurrer to the plaintiff’s evidence. The plaintiff’s evidence showed : (1) That plaintiff was sheriff of Johnson county. (2) That as such sheriff, he had levied on the property in dispute, under a -legal writ of attachment against one G. T. Williamson. (3) That he took possession under his levy.

C. A. Anthony, Judge. The case is stated in the opinion. Held: under certain limitations, that when a trial is proceeded with as if a certain issue were made in the pleadings, it is too late, after verdict, to raise the objection that the issue was not made in the pleadings.” Young v. Glasscock, 79 Mo. 579 ; Edmonson v. Phillips, 73 Mo. 58; Smith v. Lindsey, 89 Mo. 76; Coffin Co. v. Rubleman, 15…

Charles G. Burton, Judge. . The case and facts are stated in the opinion of the court. I. An insolvent debtor cannot, under pretense of paying his debts, assign more property than is reasonably sufficient for that purpose. McÑichol r. Richter, 18 Mo. App. 515. How much stronger is the rule when, as in this case, he assigns all his property. All the cases limit the right to prefer creditors, with the qualification that he convey a reasonable amount of property.

George W. Dunn, Judge. ■ The case and facts, as set up in the petition, are stated in the opinion of the court; I. The appellants insist that… Held: in relation to real estate, that a mortgage, irregularly and incompletely executed on account of the omission of material requisites necessary to a good legal instrument, created an equitable mortgage or lien in' equity for the benefit of the creditor, and maintained the distinction between a statutory mortgage and an equitable…

James B. Gantt, Judge. Statement of case by the court. This was a suit for the specific performance of a contract. The petition alleged that the defendant was the president and manager of a certain corporation known as The Blue Grass Bitters Company, and was also the ■owner of a large amount of the capital stock of said company.

Joseph P. Gbubb, Judge. Statement of case by the court. Tlie petition in this case is as follows : “ For amended petition herein, plaintiff states that, at the January term of this court, 1878, four suits were pending herein, wherein the Chouteau Insurance Company was plaintiff; one against this plaintiff as defendant, one other against one Rufus K. Ford as defendant, one other against Rice D. Gilkey and John J. Abell as defendants, and one other against John J. Abell and…

Charles The case is stated in the opinion. I. The issues in this cause arise out of the action of the circuit court in refusing to sustain the motion for an affirmance of the judgment of the justice of the peace, and in overruling the motion for a new trial. The motion for an affirmance of the judgment of the justice of the peace, as well as that for a new trial, should have been sustained. Bev. Stat., p. 511, secs. 3055, 3056, 3057.

Cyrus A. Anthony, Judge. The case is stated in the opinion. I. The court erred in refusing to give the instruction in the nature of a demurrer to the evidence, asked by the defendant at the close of plaintiff’s evidence. The contract between Smith, defendant’s grantor, and plaintiff was a personal undertaking upon the part of Smith, and would not be binding upon Price, unless he undertook and promised or assumed Smith’s obligation to keep it.

G. D. Burgess, Judge. Statement of case by the court. This case, which was begun June 2, 1883, was tried on the third count of the petition, the other counts having been dismissed.

Andrew Ellison, Judge. The case is stated in the opinion. I. The referee found and so reported that 130,748-brick were furnished by the firm of Elson & Deeper to-the firm of Elson, Wagner & Ager, and used in the construction of the Marshall building and the school building, for which nothing was paid. But the referee- . made no finding as to whether or not Deeper should be allowed anything for his half ' interest in said brick.

Joseph P. G-rubb, Judge. The case is stated in the opinion. I. In this case the plaintiff sues as administrator, but failed to file with the note a statement showing that he was administrator. Wait’s Law & Prac. 313; Murray v. IlendricJcson, 6 A. B. B. 96 ; 1 Boswell, 635. There is a distinguishable difference between a case instituted by the assignee of a note, and the case at bar. The assignee, by becoming the owner of the note, becomes the owner of the cause of action.

Petition for writ of habeas corpus. The case is stated in the opinion. I. Habeas corpus is the proper remedy where the error is patent on the face of the record. Ex parte Page, 49 Mo. 291; Ex parte Toney, 11 Mo. 662.

H. C. O’Bbyan, Judge. Tlie court should have directed the jury to return a verdict for the defendant, as requested by defendant’s demurrer to the evidence at the close of the testimony introduced by the plaintiff. 72 Ala. 112; Hiclcey v. Railroad, 14 Ala. 429; Railroad v. Jones, 95 U. S. 439; Quinn v. Railroad, 51 111. 495; Railroad v. IJoosey, 6 Am. & Eng.

<p>Practice — Motion eor New Trial, When Necessary__The objection, that there was an insufficiency of evidence to warrant the judgment rendered, cannot be considered on appeal, when no motion for a new trial was filed in the court below. A motion in arrest does not reach the objection.</p>

Robert L. Wilson, Judge. R. B. Oliver and J. W. Limbaugii, for the appellants : This is an' action at law and defendants were entitled to a jury. Peacoclc, Adm'r, n, Helson, 50 Mo. 256; Ragan v. McCoy, 29 Mo. 357; Smith v. Beef Canning Co., 14 Mo. App. 522; s. o., affirmed, 74 Mo. 154; Rev. Stat., 1879, sec. 3600. The notes and deed of trust executed at the same time to secure them are to be 'construed together. They form parts of the same transaction.

<p>Appeal from the Howell Circuit Court, Hon. John F. Hale, Judge.</p>

Thomas H. Baoon, Judge. Without express authority given in its charter, the respondent could not pass or enact any valid ordinance establishing a legal license tax for keeping and using a buggy or carriage for private use within its limits. St. Louis v. Oreen, 7 Mo. App. 468. The city charter of the respondent gave no such authority, either expressly or by any permissible legal implication. St. Louis v. Or one, 46 Mo. 574; St. Louis v. Woodruff, 4 Mo. App. 169.

William W. Edwards, Judge. The plaintiff in error was not the constable at the time the attachment suit was commenced, did not serve the writ in the case, and denies in his testimony that any demand was ever made upon him for the money collected of the garnishee.

Louis County Circuit Court, Hon. William W. Edwards, Judge. This is a special judgment against the property of one of the defendants to enforce a mechanic’s lien, when the record shows that no mechanic’s lien was offered in evidence and there was no evidence tending to' establish any lien, or any steps taken to enforce a mechanic’s lien against the property.

<p>Appeal from the St. Louis Circuit Court, Hon. James A. Seddon, Judge.</p> <p>A wife forfeits her right to support by abandoning the husband. Williams v. Prince, 3 Strob. 493; Angelo v. Angelo, 81 111. 255 ; Allen v. Aldrich, 29 N. H. 73; Brown v. Patton, 3 Humph. 137. Or dwelling separate from him without his consent or fault. Bchindel v. Bchindel, 12 Md. 314; Rutherford v. Ooxe, 11 Mo. 353; Thorne v. Kathan, 51 Vt. 523. She cannot maintain a suit for maintenance and support when she is in fault. Angelo ®. Angelo, 81 111. 251; Boggess v. Boggess, 4 Dana, 307. Or if she left him without proper cause. Slade v. Slade, Dud. (Ga.) 165; Carr v. Carr, 22 Grat. 168. When one party terminates the cohabitation by desertion, the other is not bound to take any steps to restore it. Ford v. Ford, 10 N. E. Rep. 475.' If a wife leaves her husband and his home, and goes and continues to reside elsewhere, this is, prima facie, an abandonment on her part, and the burden of proof is upon her to show that her,going away was not voluntary, but that she was compelled to go by his treatment or command. StarTcey v. StarTcey, 21 N. J. Eq. 135. Abandonment without good cause, and refusal to provide for and support a wife, is good ground for a decree of maintenance. Hooper v. Hooper, 19 Mo. 355; Miller v. Miller, 14 Mo. App. 420 ; Cannon v. Cannon, 17 Mo. App. 294. “ So long as the husband has committed no breach of matrimonial duty, he is under no obligations to provide the wife a separate maintenance, and she cannot claim it on the ground of her own misconduct. ’ ’ Bishop on Marriage and Divorce, 564. It is against good morals, against public policy and the best interests of society, to enable a wife, for every imaginary, trivial cause to abandon her husband and require him to support her elsewhere. Thorne v. Kathan, 51 Vt. 523 ; Sehindel n. Sehindel, 12 Md. 314; Boggess v. Boggess, 4 Dana, 307.</p> <p>The whole question at issue was one of fact, to be passed on by the trial court, who saw the parties and the witnesses, and heard the evidence. The facts were passed upon and judgment rendered. .There was ample evidence to support the finding, under section 3283, Revised Statutes, 1879.</p>

<p>Appeal from the St. Louis Circuit Court, Hon. James A. Seddon, Judge.</p> <p>A writ of mandamus will not issue merely to permit a stockholder to gratify an idle curiosity in the examination of corporate records, but the stockholder must allege and prove that he has some specific interest at stake rendering the inspection necessary, or some beneficial purpose for which the examination is desired. High on Ex. Rem., sec. 310, p. 240 ; People v. Walker, 9 Mich. 329; Hatch v. City, 1 Rob. (La.) 470 y King.v. Merchant Tailors'1 Co., 2 Barn. & Aid. 115; People v. Ben. Ass’n, 98 111. 635 ; Slate ex rel. v. Piad, 26 Mo. App. 500; State ex rel. v. Mfg. Co., 21 Mo. App. 526. The ■court erred in refusing to quash the service of the writ upon O’ Hay and in granting a peremptory writ of mandamus. The writ must be served upon the officer of the corporation who has power and whose duty it is to execute it, and against whom an attachment to enforce obedience may issue. High on Ex. Rem., sec..442; Tapping on Mand., 315; Mayor v. Lord, 9 Wall. 409; People v. Common Council, 3 Keyes, 81; Com. Hig. “Mandamus;” Tapping on Mandamus, 341; Queen v. Ledgard, 1 Q. B. 616 ; Hillon on Mun. Corp., secs. 701-704 ; People v. Hayt, 66 N. Y. 606. A peremptory writ will not issue where it will be fruitless. Commonwealth ex rel. v. Supervisors, 29 Pa. St. 121; Moses on Mandamus, 200. If there is any other specific or adequate remedy at law mandamus will not lie; it only lies to prevent.an irreparable injury, or one which cannot be redressed at law. Moses on Mandamus, 177; State ex rcl. v. Pombauer, 46 Mo. 155.</p> <p>The relator’s proper remedy in this matter was an action of mandamus, and the alternative writ, which is the declaration as well as the writ (Hambleton O. Dexter, 89 Mo. 188), makes out a sufficient cause of action. People O. Throop, 12 Wend. 183 ; People «. Pacific Mail, 50 Barb. 280; People «. Pailroad, 18 N. Y. 1; High on Extra. Leg. Rem., sec. 308; Cotheal O. Brouwer, 5 N. Y. 562; Brouwer v. Cotheal, 10 Barb. 216; Codcburn O. Banlc, 13 La. Ann. 290. The law and the right are imperative upon the court. Moody O. F leming, 4 Ga. 117; People v. Waters, 22 How. Pr. (N. Y.) 291. The English cases show that the courts of that country uniformly enforce by mandamus the right of a stockholder to inspect the corporate books. Angelí & Ames on Corp., sec. 707. Mandamus will properly lie where the relator has a specific right and the law has provided no other specific remedy. State v. McAuliffe, 48 Mo. 113; Dionklin v. District Court, 23 Mo. 449 ; State O. County Court, 41 Mo. 225; Commonwealth v. Pittsburg, 34 Pa. St. 496. “ Where a statute imposes a specific duty, either in express terms or by a fair and reasonable implication, and there is no other specific and adequate remedy, a mandamus may be awarded to compel performance of the duty.” People O. Ins. Co., 19 Mich. 392; People v. Mayor, 10 Wend. 395; King O. Pailroad, 2 B. & A. 646 ; Ottawa O. The People, 48 111. 239. And mandarnos will lie although the relator may have his action for damages. State O. Pyan, 2 Mo. App. 303 ; Codcbtorn O. Bank, 13 La. Ann. 291; People O. Taylor, 30 How. Pr. 78 ; State O. Pailroad, 2 Cent. Rep. (N. J.) 726 ; People O. Taylor, 1 Abb. Pr. (N. S.) 200 ; 30 How. Pr. 78 ; Buck O. City of Lockport, 6 Lans. (N. Y.) 251. It was not necessary that there should have been a positive refusal of the company to exhibit the books; it was enough if there was an unreasonable delay and a manifest intention not to comply with, the law. Cleveland v. Board of Finance, 38 N. J. Law, 259 ; Commonwealth v. Pittsburg, 34 Pa. St. 496; Regina v. Kendall, 1 Ad. & El. (N. S.) 386; Townsend v. McTver, 2 S. C. 44. The award of the writ is an exercise of judicial discretion which cannot be reviewed on appeal. Qriffin v. Veil, 56 Mo. 310 ; EidermiTler v. Kump, 61 Mo. 340; Moody v. Fleming, 4 Gfa. 115 ; Hand v. Freund, 17 Mo. App. 618. There is nothing prerogative about the writ of mandamus, it is simply an action at. law in cases where it is the appropriate remedy. Kentucky v. Denison, 24 How. 66; People v, Lewis, 28 How. Pr. (N. Y.) 159, 470. The proceeding was properly brought against the company itself. High Ext. Leg. Rem., secs. 315 to 322®, inclusive; sec. 517®. The statute requires the “corporation” to keep the books in question open at all times for the inspection of stockholders during business hours, for thirty days prior to an election of directors. Russell v. Columbia, 74 Mo. 490; 2 Dill. Mun. Corp., sec. 1027. The service of the. alternative writ was properly made. People v. Pearson, 4 111. 274 ; State v. Jones, 1 Ired. 129. In this case the defendant appeared and pleaded to the merits, thereby waiving his motion to quash the service and all objections as to the service. People v. Pearson, 4 111. 274; State v. Jones, 1 Ired. 129; Dunklin Co. v. Clark, 51 Mo. 60; Highley v. Hoell, 51 Mo. 145; Ware v. Johnson, 55 Mo. 500 ; Fuller v. Trustees, 6 Conn. 544; Edwards v. United States, 103 U. S. ,471; McBane v. People, 5(J 111. 503; Rex v. Mayor of New York, 5 T. R. 74. The sheriff’s return was conclusive evidence of the facts therein recited, and could not be impeached, as was sought to be done by the company, or O’Day in his motion to quash. Heath v. Railroad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316 ; Sams v. Armstrong, 8 Mo. App. 573 ; Phillips v. Evans, 64 Mo. 17; Rippstein v. St. Louis, 57 Mo. 86 ; State v. Sappington, 68 Mo.‘ 454. It was immaterial for what purpose the relator wished to examine the books, for the statute gave him the unqualified right. People v. Throop, 12 Wend. 185 j Gotheal 'o. Brouwer, 5 N. Y. 566; Brouwer v. Gotheal, 10 Barb. 216; Moody v. Fleming, 4 Gfa. 115. The stockholder if he wishes may take copies of the books. Gotheal v. Brouwer, 5 N. Y. 562; Brouwer v. Gotheal, 10 Barb. 216; People v. Throop, 12 Wend.-183 ; People ?>. Pacific Mail, 50 Barb. 280. The offer to purchase relator’s stock was a piece of impertinence. The law gives no railway corporation the right of eminent domain over the stock of its stockholders. State v. McAuliffe, 48 Mo. 113 ; People v. Ins. Go., 19 Mich. 392 ; Goclcburn v. Banlc, 13 La. Ann. 291; State v. Railroad, 2 Cent. Rep. (N. J.)726; Silverthorne v." Railroad, 33 N. J. L. 377.</p>

Louis Circuit Court, Hon. Shepard Barclay, Judge. There was no evidence upon which the case could properly go to the jury, and defendant’s instruction for non-suit should have been given. The certificate on which plaintiff’s right of action is bottomed, distinctly provides that the sum of three thousand dollars shall be paid out of the mutual aid fund.

Louis Circuit Court, Host. Shepard Barclay, Judge. The alternative writ is the first pleading in a mandamus proceeding, and must state facts in an issuable form which show that the relator is entitled to the relief which he asks. State • ex rel. v. Governor,. 39 Mo. 388 ; State ex rel. v. Everett, 52 Mo. 89; ITambleton's Adm)r v. Town of Dexter, 89 Mo. 188.

<p>Appeal from the St. Louis Circuit Court, Hon. Daniel Dillon, Judge.</p> <p>The petition d.oes not state facts sufficient to constitute a cause of action. It is not alleged that the appellant had notice of the defective condition of the privy-seat, and did not make the necessary repairs within a reasonable time after such notice. Wolcott v. Sullivan, 6 Paige, 117; Plow v. Staff, 9 Mo. App. 309. The evidence utterly fails to prove the allegation upon which the whole cause of action’ rests, namely, that the appellant agreed to keep the premises in repair. Wehrman v. Priest, 12 Mo. App. 577. Upon the whole case, the jury ought to have been instructed to return a verdict for the appellants. The evidence, both in the case of the respondents and that of the appellants, shows that the respondent, Little, was herself guilty of gross carelessness. Nolan ©. SMcJde, 3 Mo. App. 300; s. o., 69 Mo. 336.</p>

<p>Appeal from tlie St. Louis Circuit Court, Hon. Shepard Barclay, Judge.</p> <p>The court erred in refusing instruction ££B” asked for by defendant, and in giving instruction number one, of its own*motion. Hassett v. .Rust, 64 Mo. 325; Glass v. Galvin, 80 Mo. 297; Evans v. Railroad, 16 Mo. App. 525. There was nothing to connect the society with the act of the president. Therefore, if there can be any action at all upon this account, our statute in express terms fixes the liability upon the officer individually. Rev. Stat., sec. 721.</p> <p>A corporation is. an artificial person, and can only act and speak through its agents and servants. Wood’s Field on Corporations (2 Ed.) sec. 283, and note 4; Haleck v. Railroad, 57 Mo. 17. The defendant seems to rely on the Revised Statutes of 1879, section 721, which refers to stockholders, and could have no application whatever to this case.</p>

Turner A. Gill, Judge. Statement of casé by the court. This is an action to recover rent alleged to be due on a written contract of lease. The lease was for one year, from May 1, 1884, at an annual rent of one thousand dollars, payable in monthly instalments. This action is to recover for the last sis months of the year.

John E. Ryland, Judge. The case is stated in the opinion. I. This proceeding was bottomed on section 6964, of the Revised Statutes of Missouri: “If any person shall wilfully or knowingly obstruct any public road * * * he or they shall each pay a fine of not less than twenty dollars, to be recovered by indictment or information before a justice of the peace.” 2 Rev. Stat., p. 1371; Laws 1883, sec. 33, p. 165; Laws 1887, .sec. 36, p. 254. II.

Turner A. Hill, Judge. The case is stated in the opinion. I. The court erred in sustaining the plaintiff’s motion to strike out all of the special defences set up in the amended answer, and in striking out and not allowing defendant to plead the same. Stewart v. City of C Unton, 79 Mo. 611; Heth v. City of Fond du Lao, 63 Wis. 228; Waters v. Village of Bay View, 61 Wis. 642. IT. The court erred in giving the plaintiff’s first instruction.

<p>1. Rules of Court — Purpose of, and Their Effect. — Rules of court for purposes of procedure, and calling and hearing of causes, etc., 'are essential to the conduct of causes, and the disposition of business in the courts. And such rules, if not inconsistent with the statute, have the force and effect of law for the government of attorneys and court. And attorneys, likewise, have the right to rely upon what the judge says, in term time, as to the status of a cause on his docket. These rules and usages may be established in a controversy by the affidavit of some member of the bar familiar with the fact.</p> <p>2. - Practice — Irregular Proceedings of the Court. — It is irregular for a court to take up a case in the absence of the attorney, without notice to him of the change, where the case has been adjourned for the term, or has otherwise been disposed of for the term, without giving notice to the attorney of the change of programme. In such case the judgment should be set aside as against the practice of the court, without any showing of merits being required. (Ellison, J., dissents).</p>

Charles AY. Sloan, Judge. The case is stated in the opinion. I. The petition fails to state facts sufficient to constitute a cause of action, in this: It shows that the plaintiffs, at the date of sale of the cattle by appellants, had neither the right of possession nor the ownership of said cattle.

Cyrus A. Anthony, Judge. The case is stated in the opinion. I. The trial court erred in sustaining plaintiffs’ motion to strike out the second count of defendant’s .answer; such a counter-claim has been sustained. Weber v. How, 36 Mich. 150. This count alleged a contract made in Iowa; the motion confessed the fact; hence, the law of Iowa must govern this contract. Story •Coni.

Andrew Ellison, Judge. Statement of case by tlie court. This suit was upon the following instrument: “Macon, Mo., Sept. 5, 1873. “ On or before Dec. 30, 1873, for value received, I promise to pay Melone & Epperson the sum of $130.00, with interest at 10 per cent., and all cost that may accrue and that has accrued, on a certain promissory note dated Sept. 30, 1872, signed by John P. Sidell and John P. Powell, for $130.00, and due Dec. 30, 1872, in favor of Melone & Epperson ;…

Turner A. G-ill, Judge. Statement of case by the court. This was a suit by attachment instituted on a contract by which the defendant agreed to pay the plaintiffs a commission of two and one-lialf per cent, if they sold, or found a purchaser of, his land at twenty thousand dollars.

Andrew Ellison, Judge. The case and facts are stated in the opinion of the court. I. All the allegations of the petition, as respects the accumulation of brine upon and near defendant’s track, alleged as negligence, causing the injury complained of, are insufficient to constitute a cause of action. Grafton v. Railroad, 55 Mo. 580.

Louis Circuit Court, Hon. George W. Lubke, Judge. (1) The appellant is entitled to have the moneys he assisted Craig to raise applied to the purpose for which he consented to assist him in getting the money. (2) The individual debt of Craig, on account of the exchange of mills, had been settled and paid by the real estate notes; and that account having been closed, could not have been re-opened, in fraud of the appellant’s rights and interests.

John L. Thomas, Judge. (1) The court erred in admitting in evidence, at the instance of plaintiff, the words on the back of the note, “ The E. M. Birdsall Co.,” “E. B. Mosher, Secy.” Edwards on Bills and Promissory Notes (1 Ed.) 83. (2) The court erred in permitting plaintiff to read in evidence the deposition of E. B. Mosher, to establish his authority to endorse the note for the E. M. Birdsall Company.

<p>Replevin — Affidavit.—An action of replevin may be maintained without the statutory affidavit. The absence or insufficiency of such an affidavit raises no question of jurisdiction.</p>

<p>Appeal from the Webster Circuit Court, Hon. W. I. Wallace, Judge. ■ t</p> <p>“The answer of defendant in a suit by attachment, containing matters- of defence to the action, as well as denial of the truth of the facts stated in the affidavit, must be construed as an answer in bar, and thereby precludes the party from trying the issue tendered in abatement.” Cannon v. McManus, 17 Mo. 345; Fordyce v. Hathorn, 57 Mo. 120 ; Hatry v. Sherman, 13 Mo. 547. The- pretended plea in abatement does not deny the allegation of the affidavit to the fact that the rent is due and unpaid, which was a cause of itself for attachment. Chamberlain v. Heard, 22 Mo. App. 416; Rev. Stat., sec. 3091. And it, therefore, stands confessed as true, and entitled plaintiff, on the pleading and record, to judgment. Rev. Stat., sec. 3545; Henry t>. Rice,. 18- Mo. App. 508 ; Byington v. Hogan, 58 Mo. 509; Bartholow v. Campbell, 56 Mo. 117. A motion for judgment on the pleadings has the effect of a demurrer. Limngood », Show, 10 Mo. 276. The court erred in giving the instructions asked by the-respondent. Chamberlain v. Heard, 22 Mo. App. 416. The court erred in giving instructions of its own motion.. Rev. Stat., secs'. 3083, 3091; 22 Mo. App. 416. This attachment was only on the crop grown on the demised premises, and defendant could not remove any of it without paying the rent therefor. McLean v. McLeanr 10 Bush [Ky.] 168; 22 Mo. App. 416. Plaintiff was entitled to judgment on the attachment on the face of the affidavit and amended plea in abatement, without any evidence. Rev. Stat., secs. 3545, 3083, 3091. Evidence must correspond with the allegations, and be confined to the points in issue. Haseltine v. Ausherman, 87 Mo. 410 ; State v. Roberts, 62 Mo. 390 ; Khen v. Vineyard, 38 Mo. 447; Eddy v. Baldwin, 32 Mo. 363; Currie u. Lowe, 32 Mo. 203; Bruce v. Sims, 34 Mo. 246. It was the legal duty of defendant to tender the rent to plaintiff instead of denying it, and on this state of facts the attachment would lie. Fordyce v. Hathorn, 57 Mo. 120; Foylor v. Meyer, 34 Mo. 81.</p> <p>When a case has been tried, and reversed and remanded for a new trial, and upon a new trial it is tried according to the mandate of the appellate court, it certainly ought to be affirmed upon a second appeal. Bank v. Taylor, 62 Mo. 328; Chamber's Adm'r v. Smith's Adm'r, 30 Mo. 156; Overall, Adm'r, v. Ellis, 38 Mo. 209. The affidavit does not authorize an attachment at all. There is no averment in the affidavit, as required by the statute, that plaintiff “believes unless an attachment issue he will lose his rent.” Chamberlain v. Heard, 22 Mo. App. 422. Appellant makes a point here, but did not before make it in the court below, to-wit, that, as the affidavit alleges that the “rent is due and unpaid,” and that allegation is not denied, plaintiff is entitled to judgment. The court never passed upon it, never was called upon to pass upon it, and its attention was never called to the point by motion for new trial or otherwise, and it is too late to raise it here, Piotnam v. Railroad, 22 Mo. App. 589 ; Fox v. Young, 22 Mo. App. 388 ; Lancaster, Adm'r, v. Insurance Co., 62 Mo. 121; State ex rel. v. Rucker, 59 Mo. —; Wolff v. Walter, 56 Mo. 292; Qorman, Adm'r, v. Aust, 55 Mo. 163; Curtis v. Curtis, 54 Mo. 351; Carver v. Thornhill, 53 Mo. 283.</p>

O. IT. Travers, Special Judge. The bond sued on was taken in excess of the amount prescribed by statute, and hence void. Laws of 1883, sec. 2, p. 87; United States n. Gordon & Shopper d, 1 Brock. 190. Statutory bonds must be strictly construed and strictly pursued. 3 Call. 421; 2 Chitty’s ■Pleading, 478; Penlen v. Bur son, 1 Lord Raymond, 349 ; Collins v. Blantern, 2 Wilson, -347; Morange r. Boughton, 21 .Wendell, 57; Williams ¶. Sheeley, 2 Oregon, 144.

John Gf. Wear, Judge. •(1) The amended statements were departures one from the other, and the last was an abandonment of the original one, and a new cause of action in itself. (2) The non-suit taken was voluntary and unnecessary, and ought not to have been set aside. Eev. Stat., sec! 3556, and note (w) of cases, 32 Mo. 542 ; 57 Mo. 329 ; 21 Mo. 93 ; 54 Mo. 415; 60 Mo. 17. (3) The withdrawal of the submission to the j'ury, by the circuit court, was without warrant.

<p>1. Criminal Law — Indictment.—An indictment which recites that two defendants “feloniously, on purpose, and wilfully, with a deadly and dangerous weapon, to-wit, a knife, which they, the said Thomas Grimes and James Grimes, each then and there had and held in each of their hands, did then and there make an assault, etc.,” is not open to the objection that it charges an impossibility.</p> <p>2. -Grades of Crime. — A common assault is a lesser offence than a felonious assault, within the meaning of Revised Statutes, sections 1202 and 1265.</p> <p>3.--- Verdict. — A verdict which declares the defendant “guilty of common assault,” under an indictment for felonious assault, without a specific statement that he is not guilty of felonious, assault, is in effect an acquittal of the higher offence charged, in conformity with Revised Statutes, section 1655.</p>

<p>Error to the Cape Gfirardeau Court of Common Pleas, Hon. Robert L. Wilson, Judge.</p> <p>The allowance of the note against Yollmers’ estate.wasa judgment tobe entered of record. JRev. Stat., sec. 192; Dullard v. Hardy, 47 Mo. 403 ; Kennerly v. Shepley, 15 Mo. 640 ; McKinney v. Davis, 6 Mo. 501. And the note as against Yollmers became merged in the judgment. Goddard v. Williamson, 72 Mo. 131; Leech v. Asher, 20 Mo. App. 656 ; Stewart v Vernon County, 64 Mo. 408. The petition charges that Henry Yollmers and Frank Unnerstall, under the name of Franz Unnersoll, executed and delivered the note, etc. If the unusual allegation (etpraeterea nihil) in this petition, as to this fact, is such as to require an affidavit in order to make a complete denial,, still the failure to do so admits only the execution ; all other advantages under his plea are still open to defendant. Bates v. Hinton, 4 Mo. 78 ; Payne v. Snell, 4 Mo. 238 ; Snowden v. McDaniel, 7 Mo. 313 ; State v. Ferguson, 9 Mo. 288.</p> <p>No-declarations of law having been asked or given, the presumption is, that the court, sitting as a jury correctly assumes the law and that its findings of fact are in accordance therewith. DeLaureal v. Kemper, 9 Mo. App. 77. Though the allowance of said demand against the estate of Yollmers may be a judgment, yet still it was only such as to Y ollmers or his estate, and did not affect the right of the claimant to sue and obtain a judgment against the surviving obligor. Eev. Stat., sec. 659. Payment of a portion of the debt by the personal representative of one of the obligors in a promissory note, or similar obligation before the expiration of the statutory period, would prevent the operation of the statute against the co-makers,' as effectually as a part payment by the deceased would, had he been living. Cotmty of Vernon v. Steioart, 64 Mo. 608 ; Leech v.. Asher, 20 Mo. App. 656. The defendant being charged with the execution of the instrument sued upon, does not deny the-execution under oath; the execution of it, therefore, stands confessed. Rev. Stat., sec. 3653.</p>

Louis Circuit Court, Hon. Daniel Dillon, Judge. The court erred iu admitting in evidence the subcontractor’s notice, because it failed to state the names of the persons or firm from whom the debt of plaintiffs was due. Rev. Stat., sec. 3190. Nór can this requirement be frittered away by loose construction. Ryan v. Kelley, 9 Mo. App. 398. The giving of a proper notice is a jurisdictional fact essential to a recovery by plaintiffs. Hewett x>. Truitt, 23 Mo. App. 443.

Louis Circuit Court, Hon. Leroy B. Valliant, Judge. This action will lie for a wrongful conversion of stock. State ex rel. n. Rombauer, 46 Mo. 155. A transfer of stock on the books of a corporation is a complete assignment in itself, and includes and takes the place of manual delivery of the certificate. White, Ex'r, n. Salisbury, 33 Mo. 150; Qhouteau Spring Go. v. Harris ; 20 Mo. 382 ; Ins. & Trust Go. v. Able, 48 Mo. 137.

<p>1. Damages — Contributory Negligence. — An attempt to alight from a moving railway train, whereby personal injury ensues, is not in itself conclusive evidence of contributory negligence ; but the existence of contributory negligence in so doing must be determined by the surrounding facts, in each particular case.</p> <p>2. -Weight oe Evidence. — Although it may be conceded, in a given case, that the evidence greatly preponderates against the plaintiff on the question of contributory negligence in alighting ■ from a moving train, yet, if there is also substantial testimony tending to show thht the defendant’s train did not halt long enough to enable the plaintiff to alight with safety, a finding for the plaintiff cannot be disturbed on account of such preponderating evidence, unless there is a strong legitimate inference of prejudice or mistake on the part of the jury.</p> <p>3. Practice — Instructions.—Instructions given may, when standing alone, be subject to the criticism that they state to the jury principles of law, and not their proper application to the facts in controversy ; and yet there will be no ground for complaint, if they are supplemented by explanations which correctly apply the principles to the facts.</p>

Louis Circuit Court, Hon. Georg-e W. Lubke, Judge. It is the duty of the common carrier to transport its passengers with safety, if that result can be obtained by the exercise of the utmost human skill, foresight, and diligence. Story on Bailments, sec. 601; Demon v. C hanslor, 68 Mo. 340 ; Gilsinn v. Railroad, 76 Mo. 282; Leslie v. Railroad, 88 Mo. 50 ; Hipsley v. Railroad, 88 Mo. 348.

Louis Circuit Court, Hon. Daniel Dillon, Judge. In Ballou v. Oile, 50 Wis. 614, the court, in denying the right of an administrator to a similar fund, says of mutual benefit societies, “the court should construe its rules and regulations liberally to effect its benevolent purposes, and should not construe them so as to defeat that purpose, if their language admits of any other reasonable construction.” Finn v. Lewis, 81 Mo. 259.

George W. Lubke, Judge. The note offered in evidence is made payable at the Mullanphy Savings Bank, while the one declared on does not mention' any place of payment; the allegata and probata, therefore, do not correspond. And so with the proof of demand, the proof, and the finding of the court is, that no demand was made on John Sharkey, as averred, but on the cashier of the bank. Price v. Railroad, 72 Mo. 423; Faulkner v. Faulkner, 73 Mo. 327.

<p>1. Court Records — Judicial Notice. — An appellate court will take judicial cognizance of its own record in the same cause on a former appeal.</p> <p>2. Judge, Disqualification of — How Continued. — When the disqualification of the regular judge to try a cause is once made to appear on the record, his judicial power becomes null as to any order or proceeding that might thereafter pertain to the same cause ; including the execution of a mandate directed to his court from a superior judicial authority.</p> <p>8. Special Judge — Duration of Authority. — A special judge duly appointed to try a cause in place of the disqualified regular judge, will continue in authority as to all matters arising in that cause until its final determination, unless superseded by another special or regular judge, not under disqualification.</p>

<p>.1. Practice — Account—Instrument of Writing. — A suit charging the defendant for the manufacture of certain articles, some of which were ordered in writing and the others verbally, an itemized account of the whole being filed with the petition, is not a suit founded upon an instrument of writing, and the written order need not be filed with the petition.</p> <p>2.--Decision oe Jury Question by the Court. — Where the contention was as to whether an agreement between the parties was independent and complete in itself, or was in continuance of previous communications which were mutually understood to be referred to and included, the question was a proper one for the jury, and the court did not err in refusing to decide it by excluding evidence of such previous communications.</p> <p>3. Contract — Oeeer to Deliver. — The duty of offering to deliver to the defendant the articles contracted for, is dispensed with when the plaintiff has informed the defendant of their readiness for delivery, and asked for instructions, which the defendant refused to give , or when the defendant has placed himself in a position from which it clearly appears that the offer would be refused.</p> <p>A.---Measure oe Damages. — Where a party has contracted to receive and pay for certain articles to be manufactured for him, the measure of damages, upon his breach of the undertaking, is not the full value or contract price of the articles refused, but the actual loss of profits sustained by the other party, or the difference between the market value of the articles and the price agreed to be paid by the purchaser.</p> <p>5. Instructions — Comment on Evidence. — Expressions in an instruction which amount to an unwarranted comment on the evidence should be avoided, even if they are not clearly prejudicial. (Per Rombauer, J.)</p>

<p>Appeal from the St. Louis Circuit Court, Hon. Shepard Barclay, Judge.</p> <p>The court committed error in admitting an abandoned answer made by the defendant in another suit. Whittlesey’s Mo. Prac. 289 ; Corley v. McCabe, 9 Mo. App. 68Brecltenlcamp v. Reese, 3 Mo. App. 585; Machine Co. v. Bierce, 5 Mo. App. 575; Brown v. Fedor, 7 Wend. 301. The third instruction is clearly erroneous and practically nullifies the effect of instruction numbered five, given at the instance of defendant. It tells the jury, in effect, that if the representations made by -plaintiff’s architect concerning the strength of the then unfinished building in controversy, made in plaintiff ’ s presence and hearing, was an expression of opinion, as contradistinguished from a statement of fact, then the defendant is not estopped from claiming damages, even though the defendant subsequently made the subtenant lease to the Compton Lithograph Company upon the strength of such representation or opinion. Justice v. Town of Lancaster, 20 Mo. App. 559; Union Savings Association v. Kehlor, 7 Mo. App. 158; Taylor v. Saugrain, 1 Mo. App. 312; Rice v. Croffman, 46 Mo. 434.</p> <p>The court did not err in admitting in evidence the original and amended answers, in the case of Compton Lithograph Co. v. St. Louis Type Foundry. Dowzelot v. Rawlings, 58 Mo. 75, 77; Turner v. Baker, 64 Mo. 231, 245; Filis v. Jameson, 17 Me. 235; Cragin v. Carleton, 21 Me. 492 ; Wells v. Compton, 3 Rob. 171-182; Tiley v. Cowling, 1 Ld. Raym. 744; 1 Gfreenleaf on Evid., secs. 186, 195, 205, 527a; Priest v. Way, 87 Mo. 28, 32, 33. The mere expression of an opinion by plaintiff, or his architect (if speaking for him), concerning the strength of the building, would not be binding on plaintiff and create an estoppel, as claimed by counsel. - Hammers-lough v. Kansas City Ass'n, 79 Mo. 85-6; Walsh v. Morse, 80 Mo. 568, 573 ; Caldwell v. Henry, 76 Mo. 254, 260 ; Dunn v. White, 63 Mo. 181, 185. No man can set ■up the conduct of another as an estoppel where he knew or had the same means of knowledge as to the truth of the statement as the other party. Spurlock ». Sproule, 72 Mo. 510; Bales v. Perry, 51 Mo. 453 ; Douglass v. Cissna, 17 Mo. App. 44, 62, 63; 31 Pa. St. 334. The case, tried below,. was dependent on questions of fact. The testimony on nearly all the material points was contradictory, and the verdict of the jury upon these disputed facts will not be disturbed by this court. Blenney v. Railroad, 87 Mo. 635-642; Rosecrans r. Railroad, 83 Mo. 678-682-683; Meyers v. Union Trust Co., 82 Mo. 237-241; Gape Girardeau Co. v. Bruitil, 51 Mo. 144; Moore v. Pieper, 51 Mo. 157; Broion v. Railroad, 13 Mo. App. 465-6; Hill v. Sutton, 8 Mo. App. 353-356 ; Hitchler v. Yoelker, 8 Mo. App. 492-3.</p>

Louis Circuit Court, Hon. George W. Lubke, Judge. In order to avoid the effect of section 2514, of the Revised Statutes of 1879, there must be, not only a delivery and receipt of the goods, but there must always be an acceptance by the vendee. Benjamin on Sales (4 Am. Ed.) sec. 139 and note 1; Kirby v. Johnson, 22 Mo. 354; Lovelace v. Stewart, 23 Mo. 384; Harvey v. Butchers’ Ass’n, 39 Mo. 211; Delventhal v. Jones, 53 Mo. 460; Benjamin on Sales (4 Am.

<p>Application for a writ of prohibition.</p> <p>Even if it did appear from the alternative writ that this court conld not have appellate jurisdiction of the cause below, this is not a proceeding to prohibit the prosecution of that cause. The Supreme Court has often intimated that, in such cases as the present, the proper course is to first apply to the court of appeals. In the case of Bennett v. MeOaffery, 28 Mo. App. 220, this court took jurisdiction of the cause, which was an application to the circuit court to compel a justice of the peace to certify a cause up to that court because the title to realty had been put in issue. Even if it did appear from the alternative writ that the cause was not one triable by a jury, it does not appear that it is not one in which an accounting would have to be taken, and, therefore, a referee selected from the' inhabitants of the city of St. Louis. The alternative writ shows that this action was commenced on January 20, 1888, and, therefore, returnable to the February term of the circuit court. The writ further shows that said cause was .assigned to Room 1, and no steps taken therein up to the time of this application, except to overrule the first .application for a change of venue ; that the plaintiffs in the suit prevented Catherine Ward from doing anything further therein by engaging her in a negotiation for a .settlement; that, as soon as this was broken off, she next morning presented this application for a change of venue. The writ shows that the respondent did consider this application, and overruled it on the ground that it was not presented in time. He must, therefore, have decided that it was properly presented to him. Moreover, a reading of the section of the statute referred to shows that it refers only to cases in which a change of venue from the city of St. Louis is asked on the ground of some objection to two or more of the judges of the circuit court. The application here in question was made in accordance with the act of February 8, 1881, which governs this matter.- Session Acts of 1881, pp. 176, .177. ,</p> <p>This court will not interpose by writs of this character in causes wherein the court of appeals has - not appellate jurisdiction. State v. Seay, 23 Mo. App. 623. The relator here makes no allegations from which it can even be presumed that the cause in question is one within the jurisdiction of this court. The writ does not disclose that the cause, wherein the application for change of venue was made, was one triable by a jury ; this fact must affirmatively appear,' for if the cause was in equity and not for jury trial no change of venue on the ground of undue influence over the inhabitants should have been granted. Lee v. Smith, 84 Mo. 304. The law requires that the application be made as soon as practicable after receiving information of the undue influence complained of. A party cannot be permitted to oust the court of jurisdiction after having voluntarily accepted it, after knowledge of the undue influence. State ex rel. v. Maylock, 82 Mo. 455. Whether the application was made as soon as practicable after information was received is a question resting in the sound discretion of the trial court. State ex rel. v. Maylock, sv/pra. Section 8 of the laws relating to St. Louis circuit court, as-compiled in 2 Revised Statutes, of 1879, p. 1505, makes provision for changes of venue from that court. Doubtless some of the provisions of this section are modified by section 3742 of Revised Statutes, 1879, as amended by the act of February 8, 1881 (Laws of 1881, p. 176), but not with respect to the provision that “every application, for change of venue shall be made to said' circuit court at general term.” This court, with respect to the action of trial courts upon applications for change of venue, and this court and the Supreme Court, witlr respect to other matters reviewable upon appeal, have' declined to interfere by writs of prohibition or mandamus. Ex parte Chambers, 10 Mo. App. 240, and oases there citen; State ex rel. «. Lubke, 15 Mo. App. 152 ; s. o., 85 Mo. 338; State ex rel. v. Megown, 89 Mo. 156 ; Bowman's case, 67 Mo. 146.</p>

E. L. Edwards, Judge. The case is stated in the opinion-. I. Upon the first error assigned the trial court was clearly wrong, in refusing to “restore plaintiffs to all they had lost” by reason of the erroneous judgment. II.

Turner A. GtIll, Judge. The case is stated in the opinion. I. Before any suit can be maintained for a lien, Stevens, the contractor, should have been made a party defendant. The contract is that he, Stevens, should furnish all the materials, and do all work which might be necessary for the completion of the house. Rev. Stat., sec. 3180. II.

Cyrus A. Anthony, Judged Statement of case by the court. This is an action by which plaintiff seeks to hold defendant liable as an executor de son tort. 1. The petition charges that, on the twenty-fourth day of March, 1880, one B. W. Ross executed his note to R. H. Russell for one hundred and seventy-five dollars, due in one year, with jilaintiff and J. D. Gfoodpasture as sureties, with ten per cent, interest, to be paid, annually. 2.

E. L, Edwards, Judge. The case is stated in the opinion. I. Rankin and Fairley were not partners within the meaning of the law. Clifton v. Howard, 89 Mo. 192; Hewberger v. Friede, 23 Mo. App. 631; Priest v. Chouteau, 12 Mo. App. 252; Ashley v. Shaw, 82 Mo. 76; Bonnet v. Harshe, 67 Mo. 170; Musser v. Brinlc, 68 Mo. 242; s. oM 80 Mo. 350 ; Reilly v. Reilly, 14 Mo. App. 63 ; Cramer v. Bachman, 68 Mo. 310. IT.

Gh I). Burgess, Judge. The case is stated in the opinion. I. The paper purporting to be a certified copy of an “annual exhibit,” should have been excluded.

The case is stated in the opinion. I. Appellant had the right to pass the ordinance, and impose a license upon appellee’s avocation. Rev. Stat., sec. 4644.

. A. J. SEAy, Judge. The case is stated in the opinion-. To sustain a reversal in this case the court is cited to the following authorities : Rudolph v. Landwerlin, 92 Ind. 38; School v. Shaw, 100- Ind. 271; Balter v. Oily, 62 Wis. 146 ; Swineford v. Baker, 44 Wis. 291; Wolfe v. Minnis, 74 Ala. 389; Tucker v. Henniker, 41 N. H. 322; State v. Smith, 75 N. G 307; Dennis v.. Phillips, 63 N. C. 56 ; Goble v. Goble, 79 N. C. 590 ; Ilennies v. Vogel, 7 Cent.

Cyrus A. Anthony, Judge. The case and facts are stated in the opinion of the court.

GK II. Burokhartt, Judge. Statement of case by the court. This is a' proceeding to subject certain personal property, as the separate property of the defendant, Alice, to tlie payment of two promissory notes executed by her, with, her ’husband, W. N. Brockenbrough, and EL W. Yancey as sureties to the plaintiff.

Gr. H. Burckhartt, Judge. The case is stated in the opinion. I. The indictment in this case is based on section 2, page 90, Laws of 1883, concerning druggists. It is substantially in the language of the statute, and is sufficient. State v. Smith, 24 Mo. App. 413 ; State •». Hedrick, 20 Mo. App. 629 ; State r>. Bohem, 61 Mo. 82; State v. James, 63 Mo. 570 ; State v. Goss, 74 Mo. 593 ; State v. Adcock, 65 Mo. 590; State v. Mohr, 68 Mo. 304 ; State v. Walker, 24 Mo.

RicharbField, Judge. The case and facts are stated in the opinion. I. The petition does not state facts sufficient to constitute a cause of action, as it fails to show that the agreement set up was violated. Scott ,v. Robarás, 67 Mo. 289 ; Minor v. Rogers Goal Go., 25 Mo. App. 84. II. The instruction given to plaintiff is not the law of this case. It declares a wrong measure of damages.

Henry S. Kelley, Judge. The case is stated in the opinion. I. The finding and the report of the referees is insufficient, and not in conformity with the order of the court referring the case. The account, as stated by them, is not a full one, but only partial, and none of the issues made by the pleadings are found by them. The account shows that it is erroneous upon its face, especially in failing to allow interest appearing to be due defendant. II.

E. L. Edwaeds, Judge. The case is sufficiently stated in the opinion of the court. Held: and it is the general rule in such cases. It is the general rule in such cases. Kamericlc v. Qastleman, 23 Mo. App. 481; Watson v. Harmon, 85 Mo. 443. Cases cited by appellants were suits upon contracts and governed as to interest by section 2773, Revised Statutes. VII.

James M. Davis, Judge. Statement of case by the court. This is a bill in equity to reform a fire insurance policy, and for judgment for the amount of loss sustained by the assured.

Cybus A. Anthony, Judge. The case is stated in the opinion. I. Instruction number one, on behalf of the defendants, ought not to have been given, because: (1) It submitted to the jury issues not made by the pleadings.