Volume 36 — Missouri Appeal Reports

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. The statute of frauds, as amended by the act of 1887, cannot be invoked by defendant Scharff. This is not a proceeding by the vendee to enforce the contract against the vendor. It is now well settled that the signature of the party charged in the action satisfied the requirements of the statute. 3 Pars. Cont. 9, note “L”; Eenley v. Stewart, 5 Sandf. 101.

— Hon. J. F. Hale, Judge. The court erred in sustaining defendant’s motion and in dismissing plaintiff’s cause of action. The office of defendants was mainly ministerial, and if they were in this case acting judicially, this fact must be set up in an answer, and proven like any other defense ; so the court erred in sustaining the motion. 48 Mo. 253.

<p>Criminal Law: indictment : selling liquors without license. An indictment wherein the act charged is “that the defendant did unlawfully and wilfully sell intoxicating liquors in less quantity than five gallons, to-wit, one pint, without taking out or having a license as a dramshop keeper, or any legal authority to sell the same,” states no facts constituting a public offense. The indictment should charge that the defendant sold the liquor in less quantity than one gallon; and if it fails to do so, it is not aided by stating the sale of a less quantity under a videlicet. The indictment is equally bad under the law relating to merchants’ licenses, since it fails to negative the fact that the liquors were to be drank at the place of sale.</p>

<p>Appeal from, the Howell Circuit Court. — Hon. J. F. Hale, Judge.</p> <p>The court erred in overruling appellants’ demurrer a,nd motion to dismiss the respondents’ bill. There are no facts stated in the petition that would warrant equitable interposition. If the facts stated are true, plaintiffs had an adequate legal remedy at law. An injunction will not lie in this case. The property sought to be taxed is subject to taxation, and the tax is authorized by law. In case of Lester v. City of St. Louis, 47 Mo. 474, Judge Wag-nee uses this‘language : “ Courts of equity never allow relief by injunction to prevent the sale of personal property, but where real property is about to be sold by a municipal corporation for the payment of taxes or assessment, equity will interpose. The distinction lies in the fact that in the one case a full and complete remedy is furnished at law, while in the other a cloud is about to be cast over a land title, and the court interferes to prevent it. Burrow v. Davis, 46 Mo. 394; McPilce v. Pew, 48 Mo. 525 ; State v. Court, 51 Mo. 368 and 369. The temporary order of injunction was granted by the court, on the bare statements in the petition, without the same being, in any manner, verified or sworn to, and as the bill of exceptions shows, without even the hearing or introduction of any verbal or documentary evidence. The petition should have been dismissed and the temporary writ dissolved on appellants’ motion. High on Inj. [1 Ed.] secs 37, 929, 984, 987 and 1017; Whittelsey’s Prac., p. 157, sec. 136; Whittelsey’s Prac., p. 82, sec. 64; Green & Myers Mo. Plead, and Prac., p. 218, sec. 569, and p. 219, sec. 571.</p>

— Hon. W. JD. Hubbard, Judge.' The court below committed error : First.

Louis City Circuit Court. — Hon. George W. Lubke, Judge. On the bearing, the referee held that Reilly was a competent witness. Reilly was examined thoroughly as to the issue of partnership. The referee did not, .either daring the hearing, nor when the cause was submitted to him, suggest or intimate any change of his views on that question. The action of the referee, by which he excluded all of the testimony of Reilly, operated as a surprise on the plaintiff.

<p>Appeal from the Oregon Circuit Court. — Hon. J. P. Hale, Judge.</p> <p>There was no evidence authorizing a verdict against the defendant. And the verdict was against the evidence. Such being the case the demurrer to the evidence should have been sustained. It is charged in complaint that the hog was killed in Lynn township, but it does not appear in the transcript of the justice, nor does the evidence in the circuit coart show that M. W. Hearle, from whom the case was appealed, was a justice of the peace for Lynn township, or that the suit was brought in Lynn township. “ In an action before a justice of the peace for damages against a railroad company for the killing of stock, the statement must show in addition to other jurisdictional facts, that the animal whs killed in the same township in which the justice is a justice, or in an adjoining township.” R. S sec. 2839 ; Matson n. Railroad, 80 Mo. 229. “Actions before a justice of the peace, against a railroad for killing animals, must be brought in the township in which the injury occurred, or in an adjoining one. Where the transcript fails to show this, the defect is fatal, and the justice will be held to have acquired no jurisdiction.” Rohland v. Railroad, 89 Mo. 180. It is impossible to determine from the record in this case before whom or in what township this suit was' brought. Mitchell v. Railroad, 82 Mo. 106 ; Palmer ». Railroad, 21 Mo. App. 437 ; E llis v. Railroad, 83 Mo. 372 ; Wright v. Railroad, 25 Mo. App. 236 ; Vaughan v. Railroad, 17 Mo. App. 4. Where the proof showed merely in an action for double damages for the killing of plaintiff’s cow by the defendant’s locomotive or train of cars, under section 809, Revised Statutes, that the cow was found dead near the railroad track, bruised and so marked as to indicate that she had been struck with great force by some instrument, and there were, also, signs about the railroad ties indicating that the injury was inflicted on the track; but there was no proof that defendant was, at the time, operating said railroad, or that any train of cars or locomotive had passed over the road at that point at any time, held, that section 809 contemplates an actual collision of the railroad company’s cars or engine, with the animal; and so far as appears by the record, there was no substantial fact in evidence from which the jury might reasonably infer this important fact, essential to support the verdict, and that the demurrer to the evidence should have been sustained. Gilbert v. Railroad, 23 Mo. App. 65.</p>

— Hon. M. G. McGregor, Judge. The circuit court, under the pleading in this cause, had no jurisdiction of the subject-matter, but under the statute the justices of the peace in Newton county had exclusive, and not concurrent, jurisdiction with the circuit court over the cause, the amount in plaintiff’s petition and affidavit being therein alleged to be of less value than one hundred and fifty dollars, to wit, one hundred and- thirty dollars; and Newton county, Mo., having…

— Hon. J. P. Halts, Judge. The court erred in overruling defendant’s first demurrer to the evidence, the state having failed to make out a case,' or establish by the records of the county court of said county, that the local ,option law-had been adopted in Ozark county. The court also erred in permitting the prosecuting attorney to re-open the case after resting or closing.

<p>Jurisdiction: probate courts. A probate court has no jurisdiction-to determine the indebtedness to a deceased person’s estate of one of its distributees, and to set off the amount of such indebtedness, against such distributee’s share of the estate, in making an order of distribution.</p>

Petition for Habeas Corpus. On proof evident and presumption great. Ex parte Smith, 5 S. W. Rep. 99; Ex parte Bridewell, 57 Miss. 39. On res adjudícala. No writ of error can lie nor appeal, hence, no res adjudícala. Hurd on Habeas Corpus, 571 and 572. In this case the defendant Turner would not be entitled to bail under the Texas case cited by Judge Gantt.

<p>1. Practice, Trial: recovery on petition. A plaintiff must recover, if at all, on the cause of action stated in his petition, and not upon one which first appears in the reply. But if his recovery is based upon facts which have developed since the commencement of the suit, and are set up in the reply, and which are within the general scope of the petition and the relief prayed for, there need be no reversal on account of the stage at which such facts were pleaded. In such a case, the plaintiff’s recovery of costs should be limited to those arising subsequently to the pleading of the new matter.</p> <p>2. Equity: finding of facts. Upon an issue in an equity proceed" ing, whether anote under consideration has, or has not, been paid, when the only evidence of payment consists of a loose statement made by one of the joint holders to the effect that they had no further interest in the litigation, and, on the other side, it was proved by a detailed account of all the transactions involved, supported by unquestioned testimony, that a balance yet remained due and unpaid, the finding of payment by the trial court cannot be sustained on appeal, upon a fair review of the evidence.</p>

— How. E. M. Hughes, Judge. An agent of an administrator in the sale of property belonging to the estate cannot bind the administrator personally. It matters not what statements or representations were made by Harris, even as agent of defendants, as administrators they, defendants, are not liable. Blood v. French, 75 Mass. (9 Gray) 197. Wait’s Act. & Def. secs. 3 and 4, p. 478; Mechem on Agency, sec. 904, cites Blood n. French, supra; The Monte Allegre, 9 Wheat, 646.

<p>• Appeal from Greene Circuit Court. — Hon. W. D. ■ Hubbard, Judge.</p> <p>On the first assignment of errors we urge that as the defendant’s answer is a general denial only, it would not authorize a verdict assessing the value of the goods, the defendant,not having the possession. R. S., sec. 3854; Young v. Glasscock, 79 Mo. 574. As to the second error, we maintain that it was error to render judgment for the entire property or its value, for the defendant held only a lien as constable in favor of creditors, and was only entitled to so much of the property, or so much of its value as would be sufficient to pay off the creditors for whom he had levied writs of attachment against plaintiff’s vendor. Dilworth v. McKelvey, 30 Mo. 149 ; Fallon v. Manning, 35 Mo. 271; Gillham v. Kerone, 45 Mo. 487; Nelson v. Luchtemeyer, 49 Mo. 56 ; Boutelle v. Warne, 62 Mo. 350 ; Dougherty v. Cooper, 77 Mo. 535 ; Kerr v. Drew, 90 Mo. 147.</p>

<p>Appeal from the Pike Circuit Court. — Hon. E. M. Hughes, Judge.</p> <p>The railway was not required to fence its track at the point where the animals entered upon the track. The statutory rule is, that railroad companies are not required to fence their roads at public crossings, and this embraces highways de facto as well as de jure. Luckie v. Railroad, 76 Mo. 639 ; Brown v. Railroad, 20 Mo. App. 427; Ehret v. Railroad, 20 Mo. App. 258. Under section 809 of the Revised Statutes of Missouri, a railway company is not liable in double damages for cattle killed at the crossing of a private road. Walton v. Railroad, 67 Mo. 56; Sullivan v. Railroad, 72 Mo. 196. The court erred in giving the instructions asked by plaintiff. It should have appeared from the evidence, that the failure of the railway company to make or repair fences along its right of way, as required by law, was contributory to an injury to the animals on its track, or the plaintiff cannot recover. In other words, the animals must have entered at a point where a fence was required and was wanting or defective, and if the fence was, or was not, defective at that point its sufficiency or insufficiency at other points is wholly immaterial. Where the cattle come upon the track at one point and wander to another, whence they are killed, the necessity and sufficiency of the fence at the place of entry, and not the place of killing, determine the liability. Ehret v. Railroad, 20 Mo. App. 258; Cecil v. Railroad, 47 Mo. 246; Razor v. Railroad, 73 Mo. 471; Snider v. Railroad, 73 Mo. 463 ; Nance v. Railroad, 79 Mo. 197; Moore v. Railroad, 81 Mo. 502; Ward v. Railroad, 91 Mo. 170; Railroad v. Bennett, 19 Wis. 160; Bremmer v. Railroad, 61 Wis. 114.</p> <p>Respondent is entitled to recover notwithstanding he is not an adjoining nor a next adjoining land-owner. The evidence is conclusive that the cattle came upon the railroad track, not as trespassers from any adjacent fields, but from some point on the same public highway on which respondent’s farm is situated, by reason of a failure of the railroad company to separate such public highway from its track by a lawful fence. This duty to fence its road along the public highway exists in favor of every person whose animals come upon the track from the highway by reason of such failure to fence. Rozzelle v. Railroad, 79 Mo. 349; Rutledge v. Railroad, 78 Mo. 287; Morris v. Railroad,, 79 Mo. 370; Peddicord v. Railroad, 85 Mo. 160, and cas. cit.; Smith v. Railroad, 25 Mo. App. 113, and cas. cit. And it is the duty of the railway company to separate its track from the public highway by a lawful fence notwithstanding such highway may intervene between the track and inclosed. or cultivated fields. Robinson v. Railroad, 57 Mo. 494, and cas. cit. Defendant was required by law to fence its track where the same ran parallel or nearly so to the public road, though the right of way and track may have occupied some portion of the public road. Humes v. Railroad, 9 Mo. App. 588; Rozzelle v. Railroad, 79 Mo. 349 ; Ration v. Railroad, 14 Mo. App. 509 ; Rutledge v. Railroad, 78 Mo. 286; Union v. Railroad, 79 Mo. 370; R. S. 1879, 809. If defendant was legally bound to fence its road at the place of accident it was equally bound to construct and maintain cattle-guards sufficient to prevent animals from getting on the railroad. R. S. 1879, sec. 809.</p>

<p>Attachment s garnishee’s costs and expenses. A garnishee under attachment cannot recover by suit upon the attachment bond any expenses that might properly have been adjudged in his favor as costs in the garnishment proceeding, unless he shows that they were so adjudged.</p>

<p>Justices’ Courts : notice oe appeal. A notice of appeal from a justice of the peace which describes the judgment appealed from as having been rendered on June 31, 1887, when in fact it was rendered on June 4, 1887, is not a compliance with the statutory requirement of notice, and a judgment dismissing such appeal for want of legal notice is not erroneous.</p>

<p>Appeal from St. Louis City Circuit Court. — How. Leroy B. Valliawt, Judge.'</p> <p>(1) The court erred in giving the instructions asked by the plaintiff. There was no evidence of any maltreatment. The only evidence being the opinions of the plaintiff and the surgeon, that the mare died from overexertion caused by being overdriven. Yet instruction number 1 bases a recovery on either careless driving, or maltreatment. The mingling of a good ground of recovery, with one of which there is no evidence, is reversible error even if the jury are required by the instruction to find both grounds to be true in order to a recovery. It must be gross error to allow a recovery if either the good or the bad ground be found. So this court held in Little v. McAdaras, 29 Mo. App. 332. (2) The court erred in refusing to allow the witness, Kaiser, to testify as to the effect of such drives as defendants’ proof showed would have had on a horse in sound and healthy condition. (3) It was clearly error for the court to refuse the instructions asked by the defendants to the effect that if the mare in question was apparently in good condition when starting from the stable, but in fact she was in condition such that by ordinary driving sickness would be developed, and that sickness causing death was developed by ordinary driving, plaintiff ought not to recover.</p> <p>The evidence in this cause, which is very voluminous, goes to prove that the horse in dispute was over-driven or maltreated, and negligently treated while in the custody of defendants. The wording of the instruction is: “* * * That the defendants negligently, wrongfully, carelessly and excessively drove or maltreated said team of horses while in their possession, so that by reason thereof one of said horses died from the effects of such maltreatment.” The definition as given by Webster of “maltreat” is “to treatill,” “to abuse.” To drive a horse excessively is certainly a maltreatment of the horse. The evidence further established the fact to be that, notwithstanding they knew the horse was sick when within a mile of Marshall’s stable, they wrongfully and recklessly drove said horse five miles down to the residence of Mr. Lean, on Meramec street and five miles back to Marshall’s stable. This was not only “maltreatment,” but it was inhuman and brutal. The third error complained of in refusing an instruction offered by defendants is not well taken. There is no evidence anywhere in the record tending in any way to show or prove that at the time the team was delivered to the defendants the mare which died was in such condition “that ordinary driving would cause her to grow sick.” There being no evidence to sustain the instruction, it was properly refused. Bowen ». Railroad, 75 Mo. 426 ; Bonine v. City, 75 Mo. 437 ; Condon, v. Railroad, 78 Mo. 567.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. IX Hubbard, Judge.</p> <p>The acts of the plaintiffs after the adjustment of' the first loss in taking out new insurance in an amount fully covering their stock; the statement made to L. A. Newton and Gr. A. C. Woolley, by King, as sworn to by King, Newton and Woolley, that he did not consider the-old companies bound after the adjustment and settlement of March 16; the assent by King to the statement of Hubbard, one of the adjusters of the first loss, that it would be proper to surrender the policy, that there was a contract to release defendant’s policy, and the second insurance was placed on stock on that account; the testimony of Lamey that the agreement made at the adjustment of the first fire was that “all liability on all the-policies should end right here; ” the filing of suits against the new companies for the full amount of the second loss, with the subsequent agreement with those companies for continuing such suits until suits against the old companies.could be instituted and determined ; and, finally, the complete execution on March 20, of the agreement made at the first adjustment, and the full release and surrender of the policy to defendant in compromise settlement, — all prove conclusively that plaintiffs have no cause of action-against defendant. The compromise is further shown, by the acts of plaintiffs in taking out new insurance,, by their assenting to statements of others that there had been such an agreement, by executing and carrying out that agreement in surrendering policies of some of the-companies and giving the receipts in evidence. “ Where parties, by their acts, show their intention and the meaning of a contract, such construction should prevail over any other meaning and intention which might be given by a court.” Gas Light Co. ». City, 46 Mo. 127; Patterson v. Camden, 25 Mo. 21; Dobbins ». Edmunds, 18 Mo. App. 315. In an executory contract, where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no danger in the adoption of it by the court as the true one. Topliff v. Topliff, 122 U. S. 121 ; Chicago v. Shelden, 9 Wall. 54. The compromise agreement and receipt in evidence signed by plaintiffs was a contract and its execution being admitted, the plaintiffs are bound by its terms. Brown v. Railroad, 18 Mo. App. 574; Moore v. Henry, 18 Mo. App. 40; Miller n. Dunlap, 22 Mo. App. 101. The receipt signed by plaintiffs “is not amere acknowledgment of payment. So far as that, it is merely prima facie, but as the evidence of the contract between the parties it is as any other written agreement and cannot be contradicted by oral testimony. Carpenter v. Jamison, 6 Mo. App. 220; Carpenter v. Jamison, 73 Mo. 356; Chrisman r>. Hodges, 75 Mo. 413; Railroad v. Cleary, 77 Mo. 637 ; Koehrirüg v. Muemminghoff, 61 Mo. 407. Plaintiffs hold the benefit of their compromise settlement with defendant. They cannot maintain this action without first placing defendant in the position it held before the compromise. “ A compromise voluntarily made, without fraud or imposition, cannot be set aside however disadvantageous it may be. A person in interest compromising a suit cannot be relieved therefrom.” Steele v. White, 2 Paige, 478 ; 2 Lawyers’ Ed. N. Y. Ch’y., bot. p 995; Ins. Co. r>. Howard, 13 N. E. Rep. 103. Plaintiffs cannot, while retaining the benefit of their compromise agreement with defendant — $717.40—thus affirming the agreement signed by themselves, at the same time treat it as though it did not exist. They must first restore defendant to all its rights, as they existed before the compromise. Ins. Co. v. Howard, supra; McMichael v. Kilmer, 76 N. Y. 36; Gould v. Bank, 86 N. Y. 75; Kelly ». Kershaw, 14 Pac. Rep. 804.</p> <p>The trial court, sitting as a jury, found the contract to be as contended by King, and there is strong circumstantial evidence to sustain the verdict, and this court will not weigh the evidence, nor reverse the case simply because the judgment appears to be against the weight of the evidence. Price v. Brans, 49 Mo. 396; Pea v. Berguson, 72 Mo. 225; Myer v. McCabe, 73 Mo. 236 ; Gibson v. Railroad, 8 Mo. App. 486; Bank v. York, 89 Mo. 359; Brown v. Railroad, 50 Mo. 461 ; Johnson r. Building Co., 23 Mo. App. 546 ; Hulburt v. Jenkins, 22 Mo. App. 572. The court found the agreement to be that the policies should be cancelled only when payment was made. Payment was not made or tendered until after second loss. Therefore liability attached for second loss, and before any agreement on the part of plaintiff releasing said companies from the second loss is binding, there must be a consideration to sustain it. There was no such consideration, and the alleged releases do not purport to cover second loss, and the testimony proves that the money paid was the adjustment of the first loss, less two per cent. Ins. Co. v. Kelley, 24 Ohio St. 345; Runkle v. Ins. Co., 6 Fed. Rep. 148; Bank v. Hazard, 13 Johns. 353 ; 2 Pars. Cont., p. 618. The surrender and cancellation of the policy after loss does not destroy liability. 1 Wood Ins., sec. 113 ; Hollingsworth r. Ins. Go., 15 Gfa. 294; Van Vajkenberg v. Ins. Co., 51 N. Y. 465; Ins. Go. v. Stone, 3 Allen, 385. The acceptance of return premium and surrender of the policy after a loss does not release the insurers, even though both parties knew of the loss ; for from the time of the loss the insurer became an absolute debtor for the sum lost to the extent of the sum insured, from which liability he could not discharge himself by part payment. 1 Wood Ins., sec. 113, p. 291 ; VanValltenberg n. Ins. Co., 51 N. Y. 465. Action brought to recover the amount of a policy of insurance for fifteen hundred dollars — five hundred dollars on dwelling house; six hundred dollars on barn; four hundred dollars on produce therein. The barn and its contents were destroyed by fire. Defendant did not dispute the liability of four hundred dollars on produce and received a writing declaring that it was received in full satisfaction for the loss, and “ cancelling fifteen hundred dollars on said policy.” The court held that the payment formed no consideration for the discharge of the defendant from liability as to the barn. Pedfield v. Purchase Co., 56 N. Y. 358, spoken of in 1 Wood’s Ins., sec. 132. . The surrender, cancellation and release is no more than a receipt, but if it is a contract, as claimed by appellants in their brief, it is not a contract under seal, a technical release, and must therefore have a consideration to sustain it. The two fires were distinct, the losses were distinct, and the receipt of payment for one is only a receipt of part payment and does not satisfy the other.</p>

<p>Insurance: compromise on loss. The facts of this case, including the compromise settlement, are substantially identical with those in King v. JEtna Insurance Co., ante, p. 128, with a slight difference in the language of the,receipt given by the plaintiffs to the defendant. That paper, in the present case, did not recite that the policy was surrendered and cancelled “in compromise settlement.” The effective words used were, however, equally potent in execution of the agreement previously made, and as an estoppel against the plaintiffs from maintaining this action, and the result here must be the same.</p>

<p>Appeal from, the Dent Circuit Court. — Hon. C. C. Bland, Judge.</p> <p>Appellant suggested the death of Grant A. Kenamore, and asked that the respondent, G. R. Kenamore, administrator of Grant A. Kenamore, be made a party to the suit, and that he show cause why the action should not be revived against him as such. He acknowledged service of the writ upon him and made no objections thereto at the time. He subsequently took out letters upon the estate of Grant A. Kenamore, deceased, and evidently and presumptively appeared to the cause at the next term of the court (having then taken out letters upon the estate), or the judgment of revival of the suit against him, under the style of administrator of the estate of G. A. Kenamore, would not have been entered, and the cause continued. The court, entering the judgment, is one of general jurisdiction. All the authorities agree, that every presumption will be indulged in favor of the validity of its judgments. The form of its writs, judgments and entries, as shown by the transcript, are inartificial, rude and ill contrived, but we submit, the proceedings, show a legal and proper judgment, at least against the collateral attack of a dead man, through the attorneys that he employed in his lifetime. The appellant made every effort in his power to bring in the respondent, and was led to believe that he had appeared to the action, as it was his duty, and interest to do, to save the securities on the forthcoming bond, given by G. A. Kenamore. The order of dismissal is erroneous in abating the suit entirely. It will certainly survive as. to the securities on the forthcoming bond of Grant A. Kenamore, who it does not appear, are dead also. Farrell's Adm'r v. Braman's Adm'x, 25 Mo. 88.</p> <p>The death of the defendant was suggested in writing by plaintiff’s attorney, at the April term, 1886, and no scire facias or summons was ever issued against the administrator, and the third term of the court since the suggestion of death was made having elapsed, the cause abated and was properly stricken from the docket. 1 Gen. Stat. 1879, art. 8, pp. 624, 625. In all cases, where the representatives of a deceased party shall not be made parties according to the provisions of this, article, on or before the third term after the suggestion of the death of the party, the action shall abate as to-such party, and the interest of his representative or successor therein. Stat. 1879, sec. 3668, p. 625. No provisions are made for extending the term so limited under any circumstances; the statute is imperative, and though a party may have been misled as to the status-of his case, this does not alter the conditions. Rutherford v. Williams, 62 Mo. 252. And the result is the same, even though there is no administrator of the deceased. And there is no necessity for a motion to dismiss. Ranney v. Bostic, 15 Mo. 216. In an action of replevin, the suggestion on record of the death of defendant abates the action and it cannot be revived against the administrator. Rector, AdmW, v. Chevalier, 1 Mo. 345, side page (page 245 of combined vol. 1, 2 and 3). And this action can only survive by the operation of section 96, Statute, 1879. And can only survive against the administrator and therefore the summons to Gb R. Kenamore could have no effect for any purpose. The service of a summons on a party, in his individual capacity, gives the court no jurisdiction over him in a representative or official capacity. Blodgett v. Schaffer, 94 Mo. 652.</p>

<p>1. Damages: stock killed on railway : statement. A statement filed before a justice of the peace under Revised Statutes, section 809, is not defective or insufficient because it fails to allege that the plaintiff is the owner of land adjoining the railway, from which the ox strayed upon the track by reason of the defendant’8 failure to fence as required by law. It is only where the animal strays upon the track from an enclosed field, that the allegation of ownership must appear, and there is here nothing inconsistent with the conclusion that the railway passed through unenclosed lands.</p> <p>2. Damages: killing stock on railway: unenclosed lands. The law of this state allows cattle to run upon unenclosed lands, without regard to the ownership of such lands. And all the decisions which restrict the right of recovery to cases where the animal got upon the track from land owned by the plaintiff, are confined to those in which the lands adjoining the railway were enclosed.</p>

— Hon. H. C. O’Bryan, Judge. (1) Charles Swan having mortgaged the land in his lifetime his administrator could only sell the equity of redemption. Greenwell v. Heritage, 71 Mo. 439; Welt on v. Hall, 50 Mo. 296; Jackson v. McGruder, 51 Mo. 55; Grayson v. Weddle, 63 Mo. 523.

— Hon. John Gr. Wear, Judge. There can be no recovery in this case without proof of an actual collision, of which there is no evidence in this case. Lafferty v. Railroad, 44 Mo. 291; Hughes v. Railroad, 66 Mo. 325; Seibert v. Railroad, 72 Mo. 565 ; Halferty v. Railroad, 82 Mo. 98; Boggs v. Railroad, 18 Mo. App. 274; Hoslcins v. Railroad, 19 Mo. App. 96.

Francois Circuit Court.- — Hon. James D. Fox, Judge. The lien of a mechanic or material man, given by our statute, can only be waived in express terms. Peck v. Bridwell, 10 Mo. App. 527; .Todd v. Duncan, 9 Mo. App. 424; Jones on Liens, secs. 1520, 1521, et seq.; Grant v. Strong, 18 Wall. 624; Phillips on Mechanic’s Lien [2 Ed.] 274; Sodini v. Winter, 32 Md. 130 ; Crean v. McFee, 2 Miles, 217 ; Hartman v. Berry, 56 Mo. 491; Hayden ». Wulfing, 19 Mo.

— Hon. John Gf. Wear, Judge. The court should have sustained the defendant’s demurrer to the evidence introduced by the plaintiff, because it totally fails to sustain or justify a verdict in this case. There was no proof from which a jury could, with justice, find that the steer had been struck by the engine or train of cars of the defendant’s road. Ferris v. Railroad, 31 Mo. App. 122; F tannery v. Railroad, 23 Mo. App. 120.

Louis City Circuit Court. — Hon. James A. Seddon, Judges, It is contended that no bill of exceptions having been filed, and the motions themselves thereby made part of the record (the only method by which in the case at bar they could be made' such), and no exceptions to the action of the court upon them taken or saved, neither said motions, nor the action of the court thereon, are open to review here.

<p>Promissory, Note: surety: insufficient evidence. In the case of a promissory note signed by two joint makers, one of whom claimed to be only a surety for the other, and to have signed upon the representation and understanding "that another person there present was to sign, and did sign, as an additional surety, the evidence being found wholly inapt and insufficient to establish any of the facts thus alleged, there was no error in an instruction that the jury should find for the plaintiff, and there can be no appellate interference with a judgment rendered for the same party.</p>

<p>Justices’ Courts: requisites oe appeal. If it do not appear in the record of a ease which originated before a justice of the peace, that an appeal was granted or entered'in the docket of the justice, or that any affidavit or appeal bond was filed, or that the justice filed with the circuit clerk the original papers or process, there was nothing giving to the circuit court jurisdiction of the cause, and the appeal to this court must be dismissed.</p>

<p>Benevolent Association: forfeiture by member. The laws of a benevolent association and the pledge given by each member prohibited the use of “all intoxicating drinks,” and provided that “any member violating his pledge shall be by the very act suspended;” and that “the suspension shall work deprivation of all rights and claims of membership pending trial.” The application for membership contained a stipulation in these words: “ That my suspension or expulsion from, or voluntarily severing my connection with the order, shall forfeit the rights of myself and my family or dependents to all benefits and privileges therein.” A member held a certificate for the payment of two thousand dollars by the association to a beneficiary named therein, upon the death of the member, provided he was in good standing as such at the time of his death. The member drank whiskey on several occasions, but the fact was not known to the association until after his death. Held: The drinking of the whiskey by the member was a self-executing suspension of his membership, requiring no trial or adjudication of his expulsion, and was a deprivation of all rights, benefits and privileges pertaining thereto, so that the member was not in good standing at the time of his death, and there could be no recovery by the beneficiaries on the certificate.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.</p> <p>The court erred (1) in giving plaintiff’s first instruction, and (2) in refusing to give the refused instruction offered on behalf of defendant, and (3) in overruling the motion for a new trial. Wright v. Jacobs, 61 Mo. 22 ; Bank v. Armstrong, 62 Mo. 73 ; Moffatt v. Conklin, 35 Mo. 453; Camp v. Heelan, 43 Mo. 591 ; Fulkerson v. Thornton, 68 Mo. 468; Ely v. St. Louis, 77 Mo. 36; Brown v. Chicago, 80 Mo. 460, and cas. cit. ; Mansur 'o. Botts, 80 Mo. 658, and cas. cit.; Melvin v. St. Louis, 89 Mo. 107; Kennedy v. Kline, 19 Mo. App. 19; Rothschild v. Krensdorf, 21 Mo. App. 321; Storms v. White, 23 Mo. App. 34. As the evidence relative to the expense incurred and loss of time and wages sustained after the institution of the suit was irrelevant under the issues, the trial court erred in refusing to give defendant’s refused instruction withdrawing it from the consideration of the jury. The refusal to give that instruction shows conclusively that plaintiff’s instruction number 1 given was intended to, and did, embrace expenses and loss of time and wages which accrued after the suit was brought.' If, however, instruction number 1 was not intended to include these elements of damage, it was vague and misleading, and the refused instruction should have been given in connection with it so as to limit the damages to the issues upon that point. Inasmuch as a party must recover, if at all, on his right of action as it existed at the institution of the suit ( Tobin v. McCann, 17 Mo. App. 483; Worth v. Springfield, 22 Mo. App. 17), there is some doubt of plaintiff’s right to recover for damages resulting to him after the suit was brought, even if pleaded. The fact that there was evidence tending to show that damage accrued to plaintiff after the suit was brought does not alter the case, for he should have amended his petition by leave of court so as to make it conform to the evidence, before asking for the instruction covering the same. Budd v. Hoffheimer, 52 Mo. 297.</p> <p>The record in this case, although it does not contain all the evidence, shows that a verdict for plaintiff, for one thousand dollars, even, would not have been excessive. Such objections as defendant’s counsel made to the introduction or excluding of evidence at the trial he failed to save or set out in his motion as ground for a new trial. The only question therefore to be decided is, did the trial court err in refusing to give the instruction offered by the defendant. The law presumes damages, and dispenses with their averment, for bodily pain and suffering and mental suffering in an action for a personal injury. Wright v. Compton, 53 Ind. 342; 2 Sedg. Meas. Dam., p. 608 ; Curtis v. Rochester, 18 N. Y. 534. This action is brought by the person injured, and the petition contains all the necessary averments to entitle plaintiff to recover for all damages suffered by him as a direct and natural result of his injury. The wrongful act for which he sues was committed before suit was brought, and the injury is a continuing one. “ A personal injury from a single wrongful act is an entirety and affords ground for only one action. In that action recovery may be had for all damages suffered up to the time of the trial, and for all which are shown to be reasonably certain or probable to be suffered in the future.” 3 Suth. on Dam., p. 722; 2 Thompson on Neg. 1263; 1 Sedg. Meas. Dam. 204; McLaughlin v. City of Corry, 77 Penn. St. R. 109 ; Matteson v. Railroad., 62 Barb. 381; Elkhardt v. Ritter, 66 Ind. 136; Barbour Co. n. Horn, 48 Alb. 577; Ross v. Steamboat, 14 Iowa, 363 ; Eulsome v. Town of Concord, 46 Vt. 141 ; Daily v. Canal Co., 2 Ired. L. (N. C.) 222; Curtis r>. Railroad, 18 N. Y. 541 ; Puchet r. Smith, Sedgwick Leading Cases, p. 709 ; McLaughlin n. City of Corry, 77 Penn. St. R. 109. The allegations in plaintiff’s, respondent’s, petition are, that “plaintiff will be permanently injured and disfigured,” and that “said wounds are still open and unhealed and causing plaintiff great pain and anguish of body and mind.”</p>

<p>Appeal from the Jefferson Circuit Court. — Hon. John L. Thomas, Judge.</p> <p>The statement filed before the justice contains no statement of fact whatever. It wholly fails to state a cause of action, and the court erred in admitting any evidence under it, and in permitting plaintiff to file an amended statement in the circuit court. The amended statement is also insufficient. Swartz ®. Nicholson, 65 Mo. 508; R. S. 1879, sec. 2852 ; Sill ®. Ore & Steel Co., 90 Mo. 103; Weese v. Brown, 28 Mo. App. 521; Butts v. Phelps, 79 Mo. 302; Watkins v. Donnelly, 88 Mo. 322; Rems v. Laurme & Bro., 2 Mo. 207. There being no statement of a cause of action filed in the justice’s court, there was nothing which could be amended.. Gist v. Loring, 60 Mo. 487; Brashears v. Strode, 46 Mo. 221; Wébb v. Tweedie, 30 Mo. 488; McQuoid v. Lamb, 19 Mo. App. 153. The statement sued on before the justice was for $109.75; and judgment was rendered for that amount. The statement filed in the circuit court demands a different amount. “The same cause of action and no other” must be tried on appeal. Wheringer v. Ahlmyer, 23 Mo. App. 277-280; Webb v. Tweedie, 30 Mo. 491; R. S. 1879, sec. 3058.</p> <p>The instructions given by the court submitted the case to the jury upon the theory of a sale of property to the firm of Rathbun & Gilbert, and left it wholly to the jury to say whether the defendant George R. Rathbun was, in fact, a member of said firm, and instructed them that if they found he was not in fact a member of said firm their verdict must be for the defendant, unless they further found from the evidence in the cause that said George R. Rathbun by his acts, conduct, or declarations held himself out as one of the firm of Rathbun & Gilbert, and by such act, conduct, or declarations induced plaintiff to believe, and plaintiff did believe said George R. Rathbun was a member of said firm at the time he sold said meat to said firm, because of which said belief he gave credit to said firm, in which case said George R. Rathbun is liable for the same though he may not in fact have been a partner of said firm. But if you find said George R. Rathbun was not in fact a member of said firm, before you can make him liable for meat sold by plaintiff to said firm, you must first find from the evidence that said plaintiff did not know that he was not a member thereof, but on the contrary believed that he was, and credited him for such meat, and that this belief was induced by said George R. Rathbun by his acts, conduct, or declarations and unless you so find, your verdict must be for defendant George R. Rathbun. Schuler on Cont., pp. *76, 77 and 266 ; Addison on Cont., p. 699, *670; Tuttle v. Hoag, 46 Mo. 38.</p>

<p>1. Damages: railway injury : authority of employe. A petition, which states that the plaintiff, while a passenger on a moving railway train, was directed by the conductor, or some other employe of the defendant railway company, to jump off, on reaching his stopping place, and. that by reason of obeying such direction the plaintiff was permanently injured, is not open to fatal objection on the ground that it does not state that the ‘ ‘ other employe” was authorized by the defendant to give such directions to passengers. A railway carrier is bound to give its passengers reasonable warning and direction as to alighting from its trains, and the passenger is not bound to know at his peril the authority of the various servants of the company.</p> <p>2. Damages: railway injury: instruction. An instruction to the effect, that if, when the plaintiff hesitated to get off the platform of the moving car, the conductor or brakeman told him that he would not get hurt, and to hurry up and get off, and if the plaintiff thereupon, in obedience to such direction, undertook to jump off, and in doing so received the injuries complained of, then the verdict should be for the plaintiff, was erroneous, in that (1) it ignored the question whether the employe in giving the direction, was guilty of a want of reasonable care — in view of all the circumstances — which question was eminently one for consideration by the jury, and not for the court to determine. (2) It failed to submit to the jury the question whether the directions given by the employe were the cause of the injury.</p> <p>3. Damages: contributory negligence : instruction. An instruction which states proper hypotheses of fact upon which the plaintiff ought to recover, but which makes no reference to any hypothesis of contributory negligence — that being also an issue on trial — will not constitute a ground for reversal, if other instructions are given at the same time, which properly set forth the effect of that defense when sustained by the evidence.</p> <p>A Damages: act oe negligence not charged : instruction. An instruction which bases a right of recovery by the plaintiff upon the defendant’s act of negligence in failing to stop the train for the plaintiff to leave it, when no such act of negligence is charged in the petition, is erroneous.</p> <p>5. Damages: instruction. An instruction which directs a verdict for the plaintiff if the jury find, in effect, that the directions for getting off the train were given as alleged, and so that a man of ordinary reason would believe them to be intended as expressed, was erroneous, in that it withdrew from the jury the principal issues in the litigation.</p> <p>6. -. An instruction which authorizes the jury to include among the causes of damage “such other causes as would be just and proper” is erroneous, since it opens the way for an unlimited variety of causes suggested by the loose conceptions of the jury; but having no sanction in the rules of law. The measure of damages is a question of law, and is never to be submitted to the jury as a question of fact.</p>

<p>1. Evidence : declarations oe party. The declarations of a party-sprung upon him in a trial, without warning, furnish a very weak and doubtful species of evidence. It is of some evidentiary; value, however, and may suffice to take a case to the jury, when all the other evidence would be insufficient to do so without it.</p> <p>2. False Representations: instructions. On the trial of a counter-claim setting up false representations made by the plaintiff to the defendant’s injury, instructions to the effect that the evidence of such false and fraudulent representations must be “clear and convincing,” or of “the clearest character,” or must make the fact appear “ in the clearest manner,” was properly refused. While it is often said that, in order to justify equitable interposition on the ground of such representations, the court should be satisfied of their existence by the clearest evidence, and that they were made under such circumstances as show that the contract was founded on them, there is yet no warrant of law for advising the jury in such superlative terms as to the quantum or degree of proof necessary to make out an action or defense founded on deceit. It is sufficient that there is a preponderance of evidence, to the reasonable satisfaction of the jury.</p> <p>3. Deceit: instruction. In considering a counter-claim for a deceit touching the boundaries of land, an instruction that, “if defendant had opportunity to have ascertained by reasonable diligence the correct boundaries of said real estate, he cannot succeed in this case, unless it appears from the evidence that plaintiff used some fraud, artifice, trick, or deceit to throw him off his guard and prevent his making proper inquiries and research as to the boundaries,” was erroneously refused, and ought to have been given upon request of the plaintiff.</p> <p>4. Deceit: finding upon issue. Where the defendant claimed that he was damaged in the purchase of land by the plaintiff’s false representations of the boundaries, a general finding for the defendant is not responsive to the issues. The measure of damages is the difference between the real value of the land, and its value as represented.</p>

<p>1. Practice, Trial: motion to strikeout : amendment. A motion to strike out part of a petition should, be presented before an answer is filed. It comes too late when the case is called for trial. No rule of procedure cuts off an amendment of a pleading, otherwise proper, after the cause has been remanded, from, an appellate court.</p> <p>3. Plea of Privilege: service on non-resident. A plea of privilege, on the ground that the defendant was a non-resident, and was served with process when in attendance on the trial of a cause in the circuit court in this state, wherein he was the sole defendant, is not available after the defendant has appeared by counsel in the action ; has filed a demurrer to the. petition on grounds other than jurisdictional; has entered into a stipulation concerning steps in the cause; has appealed from a judgment against him and secured a reversal; and, after such reversal, and before answering an amended petition, has given notice to take depositions. All these facts were apparent on the record, requiring no issue, proof, or finding, and the plea might have been stricken out on motion. The waiver of privilege was a conclusion of law apparent on the record, and there was no error in refusing all instructions bearing on it.</p> <p>3. Ees Adjudieata: inconsistent, defenses. A defendant cannot rely on a former judgment as res adjudieata of the matter in issue, and at the same time insist that such former judgment was void. Neither of the two defenses can be properly accepted, since the party himself defeats either, by maintaining the other.</p> <p>4. Practice, Trial: reply filed after evidence closed. There was no error in a permission given the plaintiff to file a reply after the evidence on both sides was closed.</p> <p>G. Practice, Trial: statute of limitations. The plea of the statute of limitations may be effectually anticipated in a petition by an averment that, before the statute began to run, the defendant “ departed from and has ever since resided out of the state of Missouri, and still so resides,” if it inferentially appears from the pleading and evidence that the defendant was a resident of this state up to the time of such departure; and a defectiveness of averment in that particular will be cured by a verdict which sustains the inference.</p> <p>6. Practice, Appellate: error not prejudicial. It is not prejudicial error to give an instruction which assumes the existence of a fact not disputed, and which must have been found by the jury, if submitted to them. Such an error does not “materially” affect the merits of the action; and the appellate court is prohibited by statute from reversing a judgment on account thereof. ( Revised Statutes, section 3775.)</p>

— Hon. J. F. Hale, Judge. The amended answer of the defendant is uncertain, indefinite, ambiguous, and wholly fails to set up any facts that would constitute a defense to an action of covenant, either in law or equity.

Charles Circuit Court. — Hon. William W. Edwards, Judge. The plaintiffs’ petition, having failed to allege the obstruction or interference with either a public highway or a private way, did not state facts sufficient to constitute a cause of action. There was not sufficient evidence to show an adverse user, from which a dedication to the public could be presumed. Brinde v. Collier, 56 Mo. 161; Irwin v. Dixon, 9 How. 10; Dill. Mun.

— Host. H. C* O’Bryan, Judge. The indictment was insufficient to give the court jurisdiction. The act, known as the local option law, requires that the county court should give notice of the special election, by publication in some newspaper published in the county, for four consecutive weeks, the last insertion to be within ten days of the election. Acts of 1887, p. 179, sec. 3.

— Hon. W. D. Hubbard, Judge. The respondents would not be entitled to specific performance of the contract until they themselves had complied with such terms of contract as it was incumbent on them to perform. 3 Pars. Cont. [6 Ed.] pp. 406, 407, note k ; 5 Wait, A. & D., pp. 802, 803, 804; Waterman on Spec. Perl, p. 591, sec. 434. This strip of land is not included in the property given to the respondents by the appellants to sell.

— Hon. Thomas II. Bacon, Judge- The county court of Monroe county, Missouri, in April or May, 1867, established a public road along the section line by an order and judgment of said court, upon a petition and application therefor, and having once exercised its power it had no further power to establish another road on the same line. The lines of the old road might be changed by said court, but it could do no more.

— Hon. Rudolph Hirzel, Judge. The directors of a corporation which has become hopelessly insolvent, remaining in possession of corporate assets, are quasi trustees thereof for the equal' benefit of all the creditors. Mor. onCorp., sec. 581, 240; Sawyer v. Hoag, 17 Wall. (U. S.) 610; Thompson, Liability, etc., sec. 23, p. 397.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p> <p>A usage of trade or custom, to be valid, must be certain, uniform, general and reasonable. Ober v. Carson, 62 Mo. 209; Speyer v. Seun, 7 Mo. App. 256; Fitzsimmons v. Academy,' 10 Mo. App. 595; Cordon v. Livingston, 12 Mo. App. 267; Sill v. Morris, 21 Mo. App. 256; Ins. Co. v. Neuberger, 74 Mo. 167; Fitzsimmons v. Academy, 81 Mo. 37; Strong v. Railroad, 15 Mich. 220 (Judge Cooley’s able and exhaustive opinion); Lawson on Customs, sec. 10, pp. 32, 31, p. 62-3; sec. 44, p. 75. What is a sufficient usage to bind the parties, whether a given state of facts establishes a usage, is a question for the court; the reasonableness of an alleged custom or usage is a question of law for the court, and it is error to submit it to the jury. Lawson on Customs & Usages, sec. 60, p. 104 and cases cited; Bourke v. Eneeland, 4 Mich. 336; Mussey v. Bank, 9 Mete. 596 and 314; Randall v. Smith, 68 Me. 109 ; Bod-fish v. Fox, 23 Me. 97; Codman v. Armstrong, 28 Me. 97; Backing Co. v. Tilton, 87 111. 554; Strong v. Railroad, 15 Mich. 224. The court below erred in instructing the jury, as a matter of law (in the defendant’s second instruction given), that the defendant had a right to change the location of the advertising board, or to remove it altogether, and that such change and removal was not undue or improper interference with the plaintiff’s efforts to sell the property. The court similarly erred in instructing the jury, as a matter of law (in the third instruction, given for the defendant), “ that a withdrawal by the plaintiff of the property after the lapse of three years was not undue and improper interference on the defendant’s part.” It was for the jury to determine whether the withdrawal of the property, under the circumstances and at the time disclosed in the evidence, was or was not undue interference. The verdict should have been set aside, as being against the evidence. The plaintiff proved that he expended at least fifty dollars for advertising, and that he had the advertising board made and placed on the premises at his expense before the property was withdrawn from him (as testified by the defendant), and he was entitled to recover at least the expenditure, as a minimum quantum meruit. Attrill v. Patterson, 59 Md. 250; Simpson v. Lamb, 84 E. C. L. 603; Story on Agency, sec. 322. To this extent, at least, the plaintiff’s right to recover is a rule of law which can not be affected by custom. Walker v. Osgood, 98 Mass. 348; Raisin v. Olark, 41 Md. 158 ; 21 Am. Law Review, No. 5, pp. 806-7.</p> <p>It was not error in the court to refuse to declare, as matter of law, the custom, as proved, unreasonable. The instruction as to changing the location of the signboard, or removing it altogether, was proper. In authorizing plaintiff to sell her property defendant lost none of her rights of proprietorship, unless they were limited by the contract. There was no such limitation in the contract. Where an estate agent employed to sell at a given price succeeds in finding a purchaser, but the principal then declines to sell, the agent is entitled to sue for a reasonable remuneration for his services, and the amount of his commission on the price would seem to be the sum to which he is justly entitled. But if the authority is revoked before it is executed, and before a purchaser has been found, it does not follow that he is entitled to sue upon an implied contract for remuneration for his work and labor in endeavoring to find a purchaser. 1 Allison Contract [ Edson’s Am. Ed.] side p. 473, p. 681. This rule is consistent with the decisions of our supreme court in Tyler v. Parr, 52 Mo. 249, and Timberman v. Craddock, 70 Mo. 638. The right of the agent to be reimbursed upon the revocation of his authority depends upon the contract by which his services were retained,, and the custom and usage of the trade in which he is engaged. When an agent is employed to sell or let, on the terms that he is to be paid a certain percentage on the price or rent, the general understanding is that he takes his chance of a large remuneration, in case he finds a purchaser or tenant, but gets nothing if he fails in so doing. But if trouble and expense have been properly incurred by the agent in endeavoring to carry into effect the instructions of the principal, and the latter revokes the authority, and prevents the agent from reaping the expected reward, the principal is bound to remunerate him for his trouble and expense in the matter. 1 Allison Cont., side p. 473, p. 680. After a broker has been allowed a reasonable time in which to procure a buyer, and effect a sale, and has failed to do so, and the seller in good faith, and fairly, has terminated the agency and himself consummated a sale, the broker is not entitled to a commission on the sale, provided the efforts of the broker to make a sale prior to the revocation were not rendered a failure by the fault of the owner of the property. Oaty v. Foster, 18 Mo. App. 643.</p>

— Hon. Elliott M. Hughes, Judge. The contract relied on by the plaintiff was void because it was for the assignment of a lease of lands and was not in writing. R. S., sec. 2510. It-was also void because it was for the sale of a lease of lands for' a longer time than one year. It was also void because it could not be performed within one year. R. S., sec. 2513. Parol testimony should have been excluded, and the demurrer to the evidence sustained.

Louis City Circuit Court. — Hon. Siiepard Barclay, Judge. Ordinarily the plaintiff makes out a case by offering the benefit certificate which recites that the member was at the time of its issue in good standing, as this status once fixed is presumed to continue. Mulroy v. Knights of Honor, 2S Mo. App. 468; Ziegler v. Aid Ass'n, 1 McGrloin (La.) 284; Knights of Honor v. Johnson, 78 Ind. 110.

<p>Corporations: salaries must be fixed by corporate action. The compensation of the superintendent of a corporation, who is also a director, must be fixed by corporate action, a record of which should be made upon the books of the corporation.</p>

— Hon. John L. Thomas, Judge. A circuit court can not obtain jurisdiction of a cause by permitting an amendment on appeal from a justice showing jurisdictional facts. The statute requires the court to find the monthly value of the premises. R. S., sec. 2490; Feedler ». 8'chroeder, 59 Mo. 367 ; Jones v. Hart, 60 Mo. 857 ; Harwell v. Easton, 63 Mo. 449 ; Dean v. Holly, 27 Mo. 256 ; Grey v. Dry den, 79 Mo. 18.

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. . The court erred in admitting illegal evidence offered by plaintiff, and in excluding legal evidence offered by defendant. Stewart v. Sonneborn, 98 U. S. 195. The court erred in giving to the jury improper and illegal instructions at the instance of the plaintiff. Lenox v. Harrison, 88 Mo. 491; Fitzpatrick v. Railroad, 34 Mo. App. 280 ; Nichols v. Winfrey, 79 Mo. 551; Evans v. Railroad, 16 Mo.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. No appeal can betaken from an order of the county court vacating a road. St. Louis, ete., Co. v. Si. Louis, 92 Mo. 190. Such action of the county court can not be reviewed by any other court. Foster v. JDunldin, 44 Mo. 217; State v. County Court, 80 Mo. 500. The case is in all respects parallel with an application for a dram shop license.

— -Hon. Preston B. Dunn, Special Judge. The right to the “farm crossing” perished with the sale of the land on one side of the railroad. R. S., sec. 809. The decree is erroneous, in that it attempts to compel the railroad company to maintain what was a legitimate farm crossing as and for a mere private way, after its use as a farm crossing has ceased, without compensation. This would be taking private property for private way, and that, too, without compensation.

Francois County Circuit Court.— Hon. James D. Pox, Judge. The term “information” as used in tne constitution of 1875 is to be understood in its common-law sense, i. e.r a criminal charge exhibited by the attorney general or other proper officer. State v. Rockwell, 18 Mo. App. 395; State v. Sibecca, 76 Mo. 55 ; State v. Kelm, 79 Mo. 515 ; State v. Russell, 88 Mo. 648; Ex parte Thomas, 10 Mo. App. 24; 1 Bish. Crim. Proc., secs. 604, 611.

— Hon. Thomas H. Bacon, Judge. The court erred in overruling appellant’s motion to require respondent to make the second count of his petition more specific. R. S., secs. 3511, 3512. The court erred in permitting respondent to introduce evidence on the second and third count of the petition against the objection of appellant. R. S., secs. 3512, 3515 ; Ashby v. Winston, 26 Mo. 210 ; Games v. McCollough, 48 Mo. 318; Grove v. City of Kansas, 75 Mo. 672, p. 675 especially.

— Hon. John G. Wear, Judge. Under the pleadings and evidence in this case the plaintiffs made a prima facie case and were entitled to recover from the defendants the sum of $139.56, unless the prima facie case was overcome by a preponderance of the testimony. Murphey v. Murphey, 15 Mo. App. 600 ; Sappington v. Railroad, 14 Mo. App. 86. The burden of proving any fact lies upon the party who substantially holds the affirmative of the issue. Greenl.

Louis City Circuit Court — Hon, Leroy B. Valliant, Judge. “To sustain a plea of res adjudicata, there must be evidence to show that the matters in issue, and decided in the first suit, are the same as those presented for determination in the second.” The record from court room number 1 did not sustaiji the plea of the defendant, and the testimony of the defendant on that issue was in the plaintiff’s favor. Preem.

Louis City Circuit Court. — I-Ion. Shepard Barclay, Judge. Held: at the trial, that the assignee would not be allowed to show that the claimant, admitted to be merely an indorser, had actually paid but a small part of the claims. Bank v. Gilpin, 1 Del. Ch. 409; Ex parte Wildman, 1 Atk. 110; s. o., 2 Yes. Sr. 113; Ex parte Marshall, 1 Atk. 129; Howis v. Wiggins, 4 T. R. 714.

Louis City Circuit Court. — How. Leroy B. Valliawt, Judge. The respondent’s own evidence shows that he never was discharged by the appellant, but that he voluntarily abandoned the service and never thereafter tendered his services to appellant, and the instruction for non-suit should have been given at the close of respondent’s case. For the same reason this instruction should have been given at the close of the case.

<p>Appeal from, the Greene County Circuit Court. — Hon. W. D. Hubbard, Judge.</p> <p>The affidavit for attachment, though defective, is not void. It is amendable. Therefore it is sufficient to warrant the justice in issuing the writ of attachment. Hence the justice, by the levy of a writ of attachment based on this affidavit, acquired jurisdiction of the subject matter. R. S. 1879, sec. 445 ; Musgrove v. Mott, 90 Mo. 107; Burnett v. McQluey, 95 Mo. 230 (overruling Burnett n. McQluey, 78 Mo. 576, and Bray v. McClurg, 55 Mo. 128); Hardin v. Lee, 51 Mo. 241; Booth v. Rees, 26 111. 45; Moore v. Maude, 79 111. 391; Scribner v. Dietz, 98 Cal. 1. The writ of attachment is regular upon its face, and it appears a levy was made thereunder on the property described in the petition, for which this action is brought. Therefore the court acquired' jurisdiction of the subject matter. Massey v. Scott, 49 Mo. 278 ; Hardin v. Lee, 51 Mo. 241. Therefore the seizure was not a trespass. But even if there has been no sufficient publication, the court having acquired jurisdiction of the subject-matter, the judgment is valid and binding and can not be collaterally assailed. Massey v. Scott; Hardin r. Lee, supra. The appellant did not issue the writ; he did not direct the levy; he did not aid therein. He merely invoked the process of the court and invoked it by presenting a defective affidavit, and he can not be held liable as a trespasser or in conversion on account of the error or ignorance of the justice of the peace. 2 Add. Torts (Woods’ Ed.) 937, 1032; Nield v. Burton, 49 Mich. 53; Pigott v. Lilly, 55 Mich. 120; Wood v. Railroad, 52 Mich. 402.</p>

<p>Practice, Trial: new trial. A first new trial having been granted for errors of law, the trial court can not be prohibited from granting a second new trial on other grounds.</p>

1. Equity: jurisdiction of, to cancel special tax bills: adequate remedy at law. Equity will entertain jurisdiction of a bill to declare void and cancel certain special tax bills issued against certain lots of the plaintiff for their share of the cost of the construction of a certain district sewer. Such bills, though void, being an apparent lien on the land and thereby clouding plaintiff’s title, furnish ample ground for the interposition of equitable relief.

— Hon. Cyrus A. Anthony, Judge. Statement by the court. This action is based on a petition containing two counts, the first charging that defendant negligently caused and permitted fire to escape from one of its locomotive engines which was communicated to - and destroyed plaintiff’s hay and grass.

— Hon. J. M. Davis, Judge. (1)' The sole question in this case is whether or not the lien given to laborers who have performed labor upon the roadbed of any railroad company in this state by article 4, chapter 47, Revised Statutes, 1879, can be filed by an assignee of such laborer. It is settled law in this state that the lien can be enforced by the assignee after it has been filed by the laborer.

— Hon. O. M. Spencer, Judge.' Statement of the case. The plaintiff brought this suit in the circuit court of Buchanan county, on the fifteenth day of March, 1886, to recover of the defendant the sum of three hundred and seventy-five dollars. The defendant, at the time mentioned in the plaintiff’s petition, was engaged in the sale of farm implements and machinery in the city of St. Joseph, Missouri.

— Hon. O. M. Spencer, Judge. (1) This, action was for money had and received. Plaintiff’s own evidence shows credits voluntarily given by him to defendant, which credit is confirmed by the amount sued for in the petition, and this entitled defendant to the credit asked for in his second instruction, which was refused by the court. Shirts v. Overjohn, 60 Mo. 605. (2) Credits voluntarily given in a suit' are binding on the parties.

— Hon. Vinton Pike, Special Judge. Statement by the court. This is an action to recover damages from defendant for obstructing a natural water course, whereby plaintiff’s lands were flooded and her crops destroyed. The petition was in two counts, but as the court instructed the jury to find for defendant on the second, it will only be necessary to notice the first.

— Hon.. R. B. Vineyard, Special Judge. Statement of the case by the court. The facts, briefly stated, giving rise to this suit, are these: On November 8, 1886, Thomas A. Davis, a retail grocery merchant at St. Joseph, Missouri, was indebted in excess of his ability to pay, and among his creditors were the garnishees herein, Steele and Walker, and the plaintiff manufacturing company.

— Hon. Oliver M. Spencer, Judge. (1) The appellant, for reversal of this case, relies upon the recognition of elementary law and the application of well-established principles.

— Hon. W. I. Wallace, Judge. (1) It was the constable’s duty to obey the writ and not to decide the rights of property. State ex rel. v. Lang don, 57 Mo. 353 ; State ex rel. ». Koontz, 83 Mo. 323. (2) It is only where the husband has absconded or absented himself from his place of abode in this state — his family residence — that his wife may make claim under Revised Statutes, section 2348.

— Hon. W. I. Wallace, Judge.' (1) It is not contended either that the defendant was keeping a drug store or clerking in a drug store, nor that he was not a regular registered physician, and even if there was any dispute about the defendant being a regular registered and practicing physician, it could not be well questioned that he had a right to practice medicine without registering, he having proven that he had been practicing medicine in this state more than five years…

— Hon. M. G. McGregor, Judge. (1) It was error to admit the testimony of the witness, Gulick, as the evidence only consisted of declarations of the plaintiff in his own interest, and the conversation between Sloan and Mrs. Evans, and all that was done there, as testified to by the witness, was inadmissible, as it was not the best evidence and was irrelevant to the issues in this cause.

— Hon. M. Gr. McCregor, Judge. (1) The court should have admitted the transcript of record of the case of Bucles v. Moore, from the circuit court of'Warren county, Kentucky, as it tended to sustain the cause set out by appellant for attachment in this: That it showed that respondent was indebted over one thousand dollars, and also tended to show that respondent had fraudulently conveyed and assigned his property .and effects so as to hinder and delay his creditors.

— Hon. M. GK McGtregor, Judge. (1) The ninth and tenth instructions, as modified and given by the court of its own motion, submitted a question of law to the jury by authorizing a recovery on the finding that defendant had waived the necessity of making proofs of loss within thirty days without defining or explaining, in those or any subsequent instruction, what acts or omissions would constitute such waiver.

— Hon. J. M. Davis, . Judge. We contend that the court erred in overruling appellants’ motion to quash the amended writ of mandamus, for the following reasons, to-wit: (1) Because said amended alternative writ had no force and was null and void. Because the same was not signed by the judge of the court nor by the clerk thereof, and was not attested by the seal of the court. Const. Mo., art. 6, sec. 38.

— Hon. J. M. Davis, Judge. (1) There was eight hundred dollars other concurrent insurance in the Glen Falls Company and defendant is liable for no greater portion of the loss sustained, than four hundred dollars, the sum insured on it, bears to the whole amount of insurance on the property, and the court therefore erred in giving judgment for the full amount of the policy. See provisions of policy on this point.

— Hon. J. M. Davis, Judge. The referee in stating the account allowed every item of them in favor of defendant that had been sworn to and without their having been pleaded by him. The view taken of the law controlling this case by the referee was clearly wrong, He made his accounting upon the presumption that the burden of proof was on the plaintiff in all the parts of the case, and the same error was allowed by the court.

—Hon. D. A. DeArmond, Judge. (1) The demurrer to the evidence should have been sustained. The contract was an entirety and not severable. On the plaintiff’s own evidence, and admissions, the whole amount of hay was to be delivered before paid for, and no legal reason was given for his refusal to comply with the contract.

— Hon. H. P. White, Judge. (1) The charter of the City of Kansas does not authorize nor grant appellee power to impose a license upon ice dealers as such, and for that reason the ordinance read in evidence by appellee is void, in so far as it requires a license from ice dealers. The complaint, under which appellant was arrested, is void for these reasons; and the judgment should have been for appellant.

Court. — Hon. H. P. White, Judge. Statement of the case. On November 29, 1886, in the Jackson county crimina) court, Samuel O. Schaffer was indicted for embezzlement. He was arrested and arraigned on said day. He entered a plea of not guilty, and on the same day filed his affidavit for change of venue on account of the prejudice of Judge White.

— Hon. H. P. White, Judge. (1) The court was powerless to proceed to final judgment in said cause, because no information was filed against the… Held: that an information by the city attorney of the City of Kansas was necessary and must be signed by him in person. Second. That he could not adopt a complaint filed by another person, even though that person be a deputy. City of Kansas v. Flanagan, 69 Mo. 698. Cited the following authorities: Ooodson v. Railroad, 23 Mo.

— Hon. J. H. Slover, Judge. (1) (a) The first instruction given for plaintiff is erroneous. It assumes that defendant insured the house, and it further assumes that said house was a dwelling house. The first proposition defendant has been contesting all the way through the case and is still contesting, because if the warranties in the application and policy were not true, the policy did not attach and the house was not insured. Chrisman v. Ins. Co., 18 Pac. Rep. 466.

— Host. Turner A. G-ill, Judge. (1) By the written contract between John Thomson and the sewer pipe company, the company became obligated to deliver to Thomson the sewer pipe therein mentioned, and Thomson became obligated to pay the sewer pipe company therefor, according to the terms of said contract.

— Hon. J. H. Slover, Judge. The demurrer to the evidence of plaintiff should have been overruled by the court. 3 Pars. Cont. [ 6Ed.] mar. pp. 355-6; 2 Pars. Cont. 512-513 ; 3 Pars. Cont. *218, and authorities cited in note “ G” ; Fulkerson, n. Eads, 19 Mo. App. 620; Hays v. Belzell, 21 Mo. App. 679; Haynes v. QonneTly, 12 Mo. App. 595. The demurrer admits all alleged and proven facts and all that can be reasonably inferred from the pleadings and evidence.

— Hon. J. H. Slover, Judge. Statement of the case. The plaintiff sued the defendant before a justice of the peace for work and labor done on defendant’s farm, on a contract for hiring at the rate of eighteen dollars per month, alleging work for a period of two months and five and a half days, and that defendant was indebted to him therefor in the sum of $39.80. Plaintiff’s claim was based on a contract of general hiring for no definite time.

— Hon. J. H. Slover, Judge. (1) The court erred in giving instruction number 3 on behalf of respondent. Appellant could not become liable for the prosecution instituted against respondent by the city attorney, unless the same was commenced at his instance or request.

— How. Turwer A. Gill, Judge. (1) The plaintiff being employed as the agent of Allison, any contract which he may have afterward made with the defendants to receive pay as their agent is void as against public policy, unless Allison knew of and consented thereto. Mechem on Agency, sec. 972; Pitch on Real-Estate Agency, p. 30 ; De Stieger v. Hoilington, 17 Mo. App. 382; Rice v. Wood, 113 Mass. 133 ; Bollmanv. Loomis, 41 Conn. §81; Everhart v. Bearle, 71 Penn.

—Hon. J. H. Slover, Judge. (1) (a) Where the ultimate facts are manifestly all before the appellate court being established by undisputed and unimpeached evidence, including the testimony of the defendant, it appears as a matter of law that the finding of the trial court or verdict of the jury should have been in favor of the party against whom it was rendered, the appellate court, although it is an action at law, will set aside the judgment and remand the cause for a new…

— Hon. J. H. Slower, Judge. Statement of the case by the court. This is a suit on special tax bills, brought by the plaintiff as assignee of the contractor. Held: that a public officer, acting in the execution of a statutory power, must, in order to render his acts, as such, operative, show affirmatively that he has complied with the law.

it Court. — Hon. Tubneb A. Hill, Judge. The answer of the railroad company, garnishee, sets forth that the wages, sought to be sequestered by this proceeding, were earned in September, 1887, in the state of Texas, and were by contract payable there monthly, and were exempt by the laws of Texas from garnishment. The sworn answer of the garnishee makes a prima facie case and as there was no evidence produced by plaintiff overthrowing it, it must stand as true.

— Hon. Turner A. G-ill, Judge. (1) That a verdict and judgment whose effect is to take away the property of the citizen and pay nothing for it is contrary to law. City of Detroit ®. Daly, 87 N. W. Rep. 11; Watson ®. Harmon, 85 Mo. 443. (2) While a jury is entitled to test the facts before them in the light of their own knowledge and judgment, yet a verdict can not lawfully be rendered based upon facts not in evidence. Ottawa Gas Light Co. ®.

— Hon. Turner A. Gtill, Judge. (1) The court should have sustained the demurrer to the testimony at the close of plaintiff’s case, for the reason that it was not proven that defendant was operating the cars by which plaintiff claims to have been injured, at the time of the injury or at any time neither was this proof supplied by any testimony introduced by defendant. This was a material fact alleged in the petition, denied by the answer, and not proven.

Clair Circuit Court. — Hon. D. P. Steatton, Judge. (1) The paper offered in evidence by the defendants, and under which they seek to justify their action in tearing down the fence,. is neither an order of the county court or any process whatever, and could not protect them from the consequences of their trespass in tearing down plaintiff’s fence. (2) The court erred in refusing declarations of law asked by plaintiff' numbered 1, 2, 3, 4, 5 and 6.

— Hon. Turner A. Hill, Judge. (1) There is an absolute failure of proof on plaintiff’s part with respect to alleged facts, essential to his recovery, (a) The evidence fails to show, and inferentially negatives, the alleged fact, that the special tax paid by the plaintiff was a lien on the lot 21 at the time of the covenant on which plaintiff sues.

— Hon. J. H. Slovee, Judge. Statement of the case by the court. This is an action for breach of contract originally instituted and tried before W. B. Teasdale, justice of the peace in Jackson county. Defendant alleged in his answer filed before the justice that the same cause of action had before been •tried and determined before A. W. Allen, justice of the peace in the same county. The reply denied the fact stated in the answer.

Olair Circuit Court. — Hon. D. P Stratton, Judge. (1) The respondent relies solely and alone on the decision in Chamberlain v. Heard, 22 Mo. App. 416. That case was specifically called to the attention of the St. Louis court of appeals in Hazeltine v. Ausherman, 29 Mo. App. 451 and not regarded as a jurisdictional objection.

— Hon. D. P. Stratton, Judge, (1) It was not competent to prove by general reputation the ownership of the railroad. Railroad v. Smith, 76 Ala. 672 ; Armil r. Railroad, 70 Iowa, 130 ; Dr alter. Railroad, 70 Iowa, 59-62. (2) Neither was it competent to prove such ownership by the declarations of defendant’s employes. McDermot r. Railroad, 73 Mo. 516 ; Railroad r. School Dish, 96 Pa. St. 65.

— Hon. D. P. Stratton, Judge. Statement of the case by the court. It seems that plaintiffs are manufacturers and dealers in wind mills and fixtures, etc., at St. Louis, and defendant a farmer and stock raiser near Liberal, Barton county, Missouri.