Volume 37 — Missouri Appeal Reports

— Hon. D. P. Stratton, Judge. (1) Attachment cannot be grounded upon an action ex delicto, except where the injuries sued for grow out of the commission of a felony or misdemeanor, or for the seduction of a female, and only in these excepted cases because clearly defined by statute to be basis of attachment. The case at bar is an action of libel, and the only ground of attachment, alleged by plaintiff’s affidavit, is the non-residence of the defendant.

— Hon. Andrew Ellison, Judge. Statement of the case. Until his death, in May, 1882, one Joseph McCalment resided, with his wife, Mary, and a son, Luther McCalment, on a farm in Putnam county, Missouri. Just before his death, it seems, the old man, Joseph McCalment, conveyed this land to the son, Luther, but shortly after such death, the remaining children, and heirs, by a successful suit in court, had this conveyance set aside.

— Hon. Andrew Ellison, Judge. (1)The circuit court erred in admitting in evidence the alleged statements oí F. H. Smith, agent for the David Bradley Manufacturing Company, as testified to by the plaintiff, J. L. Hawk. It had not been shown, and was not shown by the evidence, that Smith was authorized to make such statement on behalf of his employer.

— Hon. C. A. Anthony, Judge. (1) The court erred in admitting in evidence, over the objection of defendant, the copy of the alleged chattel mortgage purporting to have been executed on the twenty-second day of November, 1886, by Edmund Cooper. Sheldon v. Merrell, 13 W. Rep. 716 ; Bissell v. Pearce, 28 N. Y. 252; DeReisthal v. Walton, 8 At. Rep. 462 ; Jones Chat. Mort., sec. 274, p. 232; Gfreenl. on Ev. [14 Ed.] sec. 498, p. 593; Childress v. Cutter, 16 Mo. 24.

— Hon. Andrew Ellison, Judge. (1)' Exhibit “A” as a judgment is an anomaly under our Missouri practice, but as each state regulates its own practice and the manner and mode of confessing, rendering and entering judgments we must look to the law of Pennsylvania. The law is set out in plaintiffs’ petition.

— How. C. A. Anthony, Judge.' (1) The court erred in refusing instruction number 1, asked by the defendant, (a) Plaintiff in trover, through a verbal contract made in 1885, claims right of property in the fruit on the trees grown in 1887 on defendant’s orchard. This fruit being fructus naturalis the contract was for the conveyance of an interest in land, and to have been effectual must have been in writing and under seal. R. S. Mo., sec. 674; Deland v. Vanstone, 26 Mo.

— Hon. C. A. Anthony, Judge. (1) The court erred in assigning said demand to the fifth class. It should have been assigned to the sixth class, for the reason that said demand was not exhibited against said estate for allowance for more than one year after date of grant of letters of administration upon said estate. R. S. 1879, sec. 184, art. 9.

Original Proceeding. (1) Both of the orders of commitment annexed to .the return of the marshall ox Jackson county show that the imprisonment of complainant was for an alleged disobedience in not complying with the order or judgment of the circuit court removing him from his trust. Such non-compliance is alleged in the commitments to be a contempt. The petitioner avers that such non-compliance on his part is neither a contempt in law nor in fact.

Original Proceeding. (1) The order, judgment and decision of respondent of March 9, 1889, removing petitioner as assignee of J. H. Ramsey and ordering him to deliver the money and property of said estate to Wm. Allbritain, is such a final order or judgment as may be appealed from by petitioner.

<p>1. Practice, Appellate: weight of evidence. Although a case was tried before a court sitting as a jury, and the evidence in support of the theory of the appellant was strong, while that in support of the theory of the appellee was weak, an appellate court will not reverse the conclusion reached by the trial court, provided that each theory was supported by substantial evidence and was submitted upon proper declarations of law.</p> <p>2. Practice, Trial: instructions. An instruction which comments upon the evidence is properly refused, even when the cause is tried by the court sitting as a jury.</p>

. Hon. M. Gr. McG-regor, Judge. (1) A. N. Clark was married and resided in the neighborhood in which appellant was raised and has ever lived in this state, He went from this state more than nine years before his wife married the defendant, and he had never returned to this state nor been heard from. He was presumed to be dead and appellant had a right to act on that presumption. R. S. 1879, sec. 2330; Hancock, Adm'r, v. Ins. Co., .62 Mo. 31; Lancaster, Adm’r, v. Ins.

<p>The verification was not sufficient. The state constitution inhibits the seizure of any person upon warrant not “supported by oath or affirmation reduced to writing.” Section 1762, Revised Statutes, permits the prosecuting attorney to verify informations upon 1 ‘ information and belief.” The Session Acts of 1885, page 145, provide in reference to filing informations before justices of the peace,' but do not modify the verification required by section 1762, nor do they attempt in any way to prescribe the character of verification. Section 19, Revised Statutes, page 1514, attempts to authorize a prosecution in the St. Louis court of criminal correction upon an information filed by the prosecuting attorney without oath, or by any person upon oath that “he believes it to be true. ” This court has held in a number of cases that, under the aforesaid special statute, verifications of the character of the one under consideration were sufficient and legal. State v. Zeppenfeld, 12 Mo. App. 574; State v. Fitzporter, 17 Mo. App. 271; State v. Kaub, 19 Mo. App. 149. In the recent case of the State v. Bennett, reported in Southwestern Reporter under date of April 22, 1889, page 264, our supreme court holds that said special law is in conflict with the general law of the state and must fall before it; and that an information in the court of criminal correction must be verified as in other parts of the state. The verification of the Bennett information is identical with the one at bar. The St. Louis court of criminal correction is of inferior jurisdiction and purely a creature of the statute (2 R. S., p. 1510), andean only acquire and exercise its jurisdiction in the manner prescribed by statute. Hurd Hab. Corp., sec. 3, pp. 360, 361; Church, Hab. Corp., secs. 278, 285, 268, 358; State v. St. Louis, 1 Mo. App. 402; Jefferson Co. v. Cowan, 54 Mo. 234; Gibson r. Vaughn, 61 Mo. 418 ; Haggard v. Railroad, 63 Mo. 302; Ex parte Thomas, 10 Mo. App. 24. And if the law requires the warrant to be supported by oath, that must appear on its face before the court has jurisdiction. Church, Hab. Corp., sec. 285, p. 364, and citations. Also Ex parte Burford, 3 Cranch, p. 448; Stout v. Utah, 80 U. S. 513; Church, Hab. Corp., sec. 223; City of Kansas v. Flanagin, 69 Mo. 34; Ex parte Holdowell, 74 Mo. 402 ; Ex parte Thomas, 10 Mo. App. 24. Jurisdiction is always an open question, and one imprisoned by a court without it can always be relieved by habeas corpus. Church, Hab. Corp., sec. 222, and 240; R. S., sec. 2650; Ex parte Bethurum,. 66 Mo. 545; Ex parte Slater, 72 Mo. 102; Ex parte Crenshaw, 80 Mo. 447; Ex parte Boenninghausen, 91 Mo. 301. This court would have appellate jurisdiction of the case of petitioners, and therefore the objections to disposing of the question by habeas corpus do not apply as in the Boenninghausen case. Ex parte Boenninghausen, 21 Mo. App. 267; Ex parte Siebold, 100 U. S. 371.</p> <p>(1) The statute points out no particular form of verification. It simply says that the information shall be “supported by the affidavit.” The theory of petitioners then is that there is no affidavit supporting this information. But this position is not tenable. Here the ordinary and usual form of an .affidavit is used; the form which has been used from time immemorial, which has always been used in Missouri both in civil and criminal practice. It is a form which has been expressly upheld by this court, and has never been declared insufficient by the supreme court.' The affidavit in the Hayward case was upon “information and belief, and the information on which the Bennett case was decided does not appéar to have been verified at all. For the authority in the Bennett case is the opinion; and not promiscuous papers brought in by petitioners’ counsel. The words “according to his best knowledge and belief ” do not weaken it in the least. They do not raise the slightest doubt as to the affiant’s knowledge in the • premises, or that he makes the affidavit upon knowledge. On the contrary they state that the affiant has knowledge, and that he makes the affidavit upon that knowledge, and not upon information. (2) A court will not discharge a prisoner on a writ of habecus corpus, for error which can be reached by writ of error or appeal. In the matter of Toney, 11 Mo. Mo: 661; Ex parte Bithven, 17 Mo. 541; In re Truman, 44 Mo. 181; In re Harris, '47 Mo. 164; Ex parte Boennin 'ghausen, 91 Mo, 301; s. c., 21 Mo. App. 256; Ex parte Snyder, 29 Mo. App. 256; Platt v. Harrison, 6 Iowa, 79; In re Mary Eaton, 27 Mich. 1. Courts will not permit the writ of habeas corpus to perform the function of a writ of error. The statute expressly pro-' Mbits the discharge of a prisoner detained in custody by virtue of the final iudgment of any competent Court: R. S., sec. 2648.</p>

<p>Appeal from the Jefferson County Circuit Court. Hon. John L. Thomas, Judge.</p> <p>The instruction was erroneous in assuming that respondent had a right to retain sixty-five dollars for his fees, in the entire absence of any proof that he had at any time informed respondent that he claimed that amount or that the services were worth that amount, or any amount whatever. The only evidence on the point at all is the appellant’s testimony that the services were not worth what respondent charged. 8 Mrgess v. Crum, 29 Mo. App. 644; Brownfield v. Phoenix Ins. Co., 26 Mo. App. 390; Doty v. Steinberg, 25 Mo. App. 328.</p>

— Hon. W. D. Hubbard, Judge. There is no evidence to sustain the verdict. And the evidence clearly shows that Jones did not sell the land. Under a contract for commission for selling land, the agent is not entitled to compensation unless he was the efficient procuring cause of sale. McClave n. Paine, 41 How. Pr. 140; Earp v. Gumming, 54 Pa. St. 394; Wylie v. Marine Nat. Bank, 61N. Y. 415; Chandler v. Button, 5 Daly, 112; Ward v. Fletcher, 124 Mass. 224.

— Hon. W. I. Wallace, Judge. (1) The provisions of the lease that the furniture should be bound and subject to the payment of rent, renders it, in effect, a chattel mortgage to secure the rent. This was clearly the intent. Such contracts as this are sufficient to give an equitable lien having the same effect as a mortgage.' Mitchell v. Winslow, 2 Story, 630; Carter v. Holman, 60 Mo. 498; McQuie v. Peay, 58 Mo. 56; Blaclcburn v. Tweedie, 60 Mo. 505; Worley *.

<p>Criminal Law: plea of self-defense. When an assault is not due to premeditation or deliberation, but is the result of a sudden quarrel, and the aggressor is prosecuted, under Revised Statutes, section 1262, for a felonious assault with intent to kill, he is entitled to interpose acts done in self-defense, not as a complete defense to the prosecution, but to reduce the grade of the offense and in mitigation of the punishment.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. James A. Seddon, Judge.</p> <p>(1) It appearing upon the face of the deed that the grantor was permitted to sell the property conveyed, “in the ordinary course of trade,” and to pay over to the cestui que trust only the “net proceeds” and not the whole proceeds, the deed was void as being for the benefit of the grantor. Stanley v. Bunce, 27 Mo. 269; Billingsley v. Bunce, 28 Mo. 547; Wéber v. Armstrong, 70 Mo. 219; State v. Tasker, 31 Mo. 445; Reed v. Pelletier, 28 Mo. 173; White v. Graves, 68 Mo. 223; Dunlap v. O' Dena, 1 Rich. [S. 0.] 272; St. John v. Railroad, 22 Wall. 136; Fuller v. Miller, 105 Mass. 103; State v. Mueller, 10 Mo. App. 87. (2) The intention of this deed of trust was to give the defendant corporation the opportunity to compromise with its creditors, and for this purpose to hold the property free from the attacks of creditors, and the deed was therefore void. Reed v. Pelletier, 28 Mo. 177; Bullene v. Barrett, 87 Mo. 189; Petring v. Ohisler, 90 Mo. 656. (3) The chattel deed of trust was void for the reason that the notes attempted to be secured were without consideration being given for the debt of Webster, and not for the debt of the corporation. 2 Morawetz on Corp., sec. 792;N'umner v. Summers, 34 Mo. 346; Buckingham v. Fitch, 18 Mo. App. 99; Qordes v. Straszer, 8 Mo. App. 61. (4) The defendant corporation possessed no power to execute this deed of trust, conveying all of its property to parties who were not creditors of the corporation. Nat. Trust Go. v. Miller, 33 N. J. Eq. 155; Taylor on Corp. [2 Ed.] secs. 273 and 274; Wood’s Field on Corp. [2 Ed.] sec. 241, p. 386; Stark Bank v. Pottery Go., 34 Vt. 148; Smead v. Railroad, 11 Ind. 109; Jones v. Morrison, 31 Minn. 147. “After the insolvency of a corporation, although the legal ownership of the assets may continue as before, the beneficial interest of the stockholders clearly no longer exists. In equity, as well as at law, the beneficial interest therein belongs to the creditors. The capital is the fund they trusted, and to which, with the after-acquired property or assets of the corporation, they can look for indemnity. Both stand pledged for the payment of the corporation debts.” 2 Morawetz on Corp., secs. 788-792and 794; Taylor on Corp., secs. 654, 657; Nat. Trust Co. v. Miller, 33 N. J. Eq. 155; Roan v. Winn, 93 Mo. 509; Shickle v. Watts, 94 Mo. 417; Eyerman v. Krieelchaus, 7 Mo: App. 455; Chouteau v. Dean, 7 Mo. App. 214; Spurlock v. Railroad, 90 Mo. 207; Hutchison v. Oreen, 91 Mo. 375; Bent v. Hart, 10 Mo. App. 146; Single v. Hogan, 45 Mo. 110; Skrainka v. Allen, 7 Mo. App. 437; Thompson on Liability of Stockholders, sec. 10. (5) The court erred in refusing instruction number “8” declaring, that as Aehle was chosen a director of the defendant corporation, at the request of the Continental Bank, in whose employ he was, that the bank was charged with the notice of the financial condition of the defendant corporation, as well as with the character, of the indebtedness sought to be secured. Corbett v. Woodward, 5 Saw. 416; Jones v. Ark. M. A. Co., 38 Ark. 17 ; McLellan v. Board of Public Schools, 15 Mo. App. 362; Kitchen v. Railroad, 69 Mo. 226; Roan v. Winn, 93 Mo. 509; Leavitt v. LaForce, 71 Mo. 356; Packet Co. v. Davidson, 95 Mo. 473. (6) The case should be reversed for the reason that the court unreasonably restricted appellant’s examination of respondents’ witnesses, they being the real parties in interest. Smalley v. Hale, 37 Mo. 102. (7) • The action of the court in taking the instructions, and, after passing upon them, refusing to produce them for incorporation in the bill of exceptions, is such an error as will cause the reversal of the case. Cunningha/m v. Snow, 82 Mo. 593; Altiim v. Arnold, 27 Mo. 264; Easley 'v. Elliott, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Harrison v. Bartlett, 51 Mo. 170; Lawrence v. Shreve, 26 Mo. 492</p> <p>(1) The chattel deed of trust in this case is valid in law. While it provides that the mortgagor shall have the right to retain possession of the property before conditions broken, and sell in the usual course of trade, it requires the net proceeds of all property sold to be paid over to the mortgagees in satisfaction of their indebtedness. Metzner v. Graham, 57 Mo. 404; Hubbell v. Allen, 90 Mo. 576; Hughes v. Cory, 20 Iowa, 404; Jones on Chat. Mort., sec. 425. The rule in Hughes v. Cory, supra, is the general rule in Iowa, Kansas, Kentucky, Maine, Massachusetts, New Hampshire and South Carolina. See cases cited, Jones on Chat. Mort. [3 Ed.] note to secs. 388, 389, 390, 391, 393, 399 and 405. (2) The doctrine in seventeen states and territories (including Missouri) is that possession of mortgaged goods with power of disposal does not make the transaction fraudulent per se, but at most is only prima facie evidence of fraud, which is a question of fact for the jury under all the evidence and the circumstances of the case. Jones on Chat. Mort. [3 Ed.] secs. 415 and 397; Bank v. Bates, 7 Sup. Ct. R. [Sup. Ct. U. S.] 681; Henson v. Tootle, 72 Mo. 632. In the present case the finding of the court was in favor of the garnishee, and hence is conclusive as to the absence of such fraud in fact as will avoid the deed. Petring v. Ghrisler, 90 Mo. 654. (3) Where the mortgagee or his trustee in good faith takes possession of the property mortgaged prior to the levy of an attachment or service of garnishment, for the purpose of securing payment of his debt, and continues to hold possession up to the time of levy, he will be protected as against subsequent attaching creditors, even though the mortgage contains stipulations which render it void except as between the parties. Dobyns v. Meyer, 95 Mo, 132; Petring •». Ghrisler, 90 Mo. 654; Greeley v. Reading, 74 Mo. 309; Hash ». Horment, 5 Mo, App. 545; Cameron v. Marin, 26 Kas. 612; Jones, Chat. Mort., sec. 178. (4) The debt of the Continental Bank was originally incurred by W. H. Webster & Co., the immediate predecessor of the corporation known as the Webster Glass and Queensware Company. This corporation succeeded to all of the assets of the firm, and in law became responsible for all its liabilities. 2 Morawetz on Corp. [2 Ed.] sec. 791, and cases cited; Booth v. Bunce, 33 N. Y. 139. (5) Declarations of law in a case tried by a court without a jury are of but little use, except to show the theory on which the case was tried. Cooper v. Ord, 60 Mo. 420;' Schureman v. Railroad, 5 Mo. App. 570; Stone v. Pennock, 34 Mo. App. 544, “ Courts refuse to reverse judgments because of errors in giving or refusing instructions where they can see from the whole record that substantial justice has been done. 2 Thompson on Trials, sec. 2403; Williamson v. Drew, 9 Mó. App. 598.</p>

Court.— ■ Hon. H. C. O’Bryan, Judge.' (1) Defendant’s plea of “ satisfaction and payment” was intended doubtless to be a plea of accord and satisfaction, but does not amount to such inasmuch as it fails to allege plaintiffs agreed to accept the assignment' of the policy in satisfaction of their claim. 2 Parsons Cont. [ 6 Ed. ] 681; Shaw v. Burton, 5 Mo. 478.

— Hon. E. M. Hughes, Judge. (1) The burden of proof which the law imposes upon the proponents of a will in order to establish a prima facie case extends no further than to the making of the will, its attestation according to statutory requirements, and proof of the sanity of the testator by the attesting witnesses. Harris v. Hays, 53 Mo. 96; Rankin v. Rankin, 61 Mo. 295; 1 Jarmin, Wills, pp. 104, 5 and 7; Bailey’s Onus Probandi, 151 and 389; Jackson v. Hardin, 83 Mo. 182.

<p>1. Habeas Corpus: custody of child. The custody of a child should not be changed on habeas corpus during the pendency before another tribunal of a divorce suit which incidentally involves the question of such custody, and in contravention of the orders of such tribunal, unless it clearly appears that the child will sustain serious prejudice in its health or morals by remaining, even during the pendency of that suit, in the custody in which it is.</p> <p>2. -:--. In a proceeding on habeas corpus the interest of the child is the paramount consideration, and, within the years of nurture, the custody of the mother is presumptively better for the child than that of the father.</p>

<p>1. Practice, Appellate. This court will not disturb a finding of facts made by a trial court, sitting as a jury, if it be sustained by substantial evidence; nor will this court reverse the judgment of the trial court on the ground of error which is harmless.</p> <p>3. Damages : breach of warranty. When a tank, which is built ' to order and is not as warranted, bursts, and the bursting of it results not from defects covered by the warranty but from careless handling of it by the vendee, the damages thus occasioned cannot be recovered from the warrantor.</p>

<p>1. Appellate Practice: jurisdiction to grant alimony pendente lite. While this court cannot by an independent order enlarge or limit an allowance for alimony pendente lite, made by the circuit court, it may, in making a final decree of its own, granting a divorce to the husband, direct the payment of alimony as a condition to the entry of the decree.</p> <p>3. Divorce : alimony, pendente lite. Alimony pendente lite, in so far as it is granted to defray counsel fees and costs of suit, ceases at once upon the final ascertainment of the wife’s guilt; but such alimony, in so far as it is allowed for the support and maintenance of the wife, unless vacated or modified, continues until the actual dissolution, by a final decree of divorce, of the bonds of matrimony.</p>

— Hon. E. L. Edwards, Judge. (1) The indictment was insufficient, and the motion in arrest should have been sustained. (2) The first clause does not use the language of the statute which specifies the character of the acts constituting the offense of disturbing the peace. (3) The second clause specifies no acts constituting the offense. R. S. 1879, sec. 1527; State v. Bach, 25 Mo.

— Hon. E. M. Hughes, Judge. (1) The motion to dismiss should have been sustained, for the reason that the policy sued on was not filed. Rothwell v. Morgan, 37 Mo. 107; Railroad v. Knuds on, 62 Mo. 570. (2) The defendant’s objection to the introduction of any evidence in the case and its specific objection to the introduction of the policy should have been sustained. The policy was not on file and was not identified in any respect.

— Hon. G. D. Burgess, Judge. The following are plaintiff’s instructions one and two mentioned in the opinion: “1. The jury are instructed that it was the duty of the defendant to use all reasonable care and caution to provide for its employes good and well-constructed cars, adapted to the purpose for which they are used, and also to use all reasonable care and watchfulness in keeping said cars and the appliances and parts thereof in safe condition.

— Hon. O. M. S pen gee, Judge. (1) The first count in the petition in this case shows an action for an accounting between partners, although the prayer would seem to be in assumpsit. The allegations in the pleadings, and not the prayer for relief, determine the nature of the action; and under our statutes the court may give any. relief consistent with the allegations in the pleadings, without regard to what is asked for.

— Hon. ' Ben. E. Tubnek, Judge. (1) The petition does not state facts to entitle the plaintiffs to any relief. Injunction is always an auxiliary, restraining and preservative proceeding. The decree written by plaintiffs’ attorney in vacation is not binding as to the clause concerning costs. The usual presumption cannot be indulged for the facts are in evidence.

<p>1. Practice, Appellate. An objection to the ruling of a trial court in sustaining exceptions to a referee’s report, urged upon the ground that these exceptions were not filed within the time prescribed by the statute, cannot be reviewed on appeal, when neither the date of the filing of said report nor the date of the filing of such exceptions appears from the record by bill of exceptions.</p> <p>2. -. The minutes of the clerk, copied into the transcript and showing that such exceptions were not filed in time, are not a part of the record, and will not be noticed on appeal.</p> <p>3. Practice, Trial. Such objection comes too late, when not made in the trial court at the time of the filing of the exceptions to the referee’s report, but first presented by motion for a new trial after these exceptions are sustained.</p> <p>4. -: quantum meruit. A recovery cannot be had on an implied contract in opposition to an express contract in force, fixing the rights of the parties.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge,</p> <p>The transfer or assignment of judgment made to Dyer and Prank was a voluntary assignment within the meaning of the statute. Manny v. Logan, 27 Mo. 528; Mills v. Williams, 31 Mo. App. 447; Britton v. Lorenz, 45 N. Y. 51; Bonus v. Carter, 20 Neb. 566; Wallace v. Wainwright, 87 Pa. St. 263; Dickson v. Dawson, 5 Ohio St. 218; Nat. Bank v. Trust Co., 11 Phila. 510. Being so, it was void as against the plaintiffs and Kramer & Loth, who were attaching creditors, because it was neither recorded nor acknowledged as required by the statute. Hardman v. Bowens, 39 N. Y. 196; Britton v. Lorenz, 45 N. Y. 51; Adler ¶. Lange, 21 Mo. App. 519; Rindleman v. Willard, 15 Mo. App. 381, 382; Eppright v. Hiclcerson, 78 Mo. 485 to 487; Decombes v. Wood, 91 Mo. 196; Zimmerman v. Willard, 114 111. 364; Burrill on Assignments [ 5 Ed. ] p. 377, note 2; Maxwell on Statutes, p. 450; Endlichon Interp. of Stat., sec. 431. If the transfer to Messrs. Dyer and Frank be not an assignment within the purview of the statute, it is invalid under the evidence for two reasons, viz. : (1 ) Because there was no evidence of the existence of any indebtedness to the parties named therein (excepting of course Messrs. Dyer and Frank, whose claim has been paid, and Messrs. Kramer & Loth, who attached the fund). Crow v. Terns, 5 Mo. 484; Hughes v. Ellison, 5 Mo. 463; Brown ». Knox, 6 Mo., pp. 315, 316. (2) Because there was no acceptance by the beneficiaries prior to the garnishment. Ridge v. Olmstead, 73 Mo. 578; Gage v. Parry, 69 la. 605; Kelly v. Roberts, 40 N. Y. 432; Gibson v. Rees, SO 111. 399,' 401; Scott v. Percher, 3 Merivale, 651; Welch v. Sackett, 12 Wis. 243; Oxnard v. Blake, 45 Me. 602; Bell v. Bank, 11 Bush. 34.</p> <p>The process of garnishment cannot issue against the garnishee in this case, L. E. Green. He was a judgment debtor in a judgment against himself, obtained in the circuit court of the United States for the eastern district of Missouri. Waples on Attachment, p. 597. The judgment debtor L. E. Green in this case is one of the attaching creditors in this case being a partner of I. B. Rosenthal & Co., and is consequently suing himself, and this is not permissible. The assignment of the judgment to Dyer and Frank was not an assignment for the benefit of creditors under the voluntary assignment act of the state of Missouri. But if it .was, it seems to us, that is the end of the case. The parties mentioned in the assignment are presumed to have assented to it; there are no burdens attached to them, and, where there is no stipulation in an assignment for the benefit of creditors which is not for their benefit, their assent will be presumed. DuvalRaisin, 7 Mo. 449. It is not necessary to the creation of a trust in favor of any one that the party named in the trust should either be a party or assent to it. If the trust be for his benefit, the law presumes his assent to it till the contrary is shown. Burrill on Assignments, secs. 264, 351; Rindleman v. Willard, 15 Mo. 381, 382; Douglass v: Gissna, 17 Mo. App. 44; Baseomb v. Rainwater, 30 Mo. App. 433. If the instrument in question is a deed of assignment, then the plaintiffs have no right of attachment, unless there is actual fraud and their proper remedy as laid down in a number of Missouri cases is to come into the assignment and share pro rata with all other creditors. Grow v. Beardsley, 68 Mo. 435; Ilardcastle v. Fisher, 24 Mo. 70; Ring x. Ring, 12 Mo. App. 88; Sexton v. Anderson, 95 Mo. 373, p. 382; Mills v. Williams, 31 Mo. App. 447, 458, 460; Smith & Keating Go. ■ v. Thurman, 29 Mo. App. 187.</p>

Louis City Circuit Court. — Hon. ■ Daniel Dillon, Judge. (1) The fire clause in this lease should not be held' to mean a total destruction of the rented premises. May on Insurance [2 Ed.] sec. 421a. . “Total loss” means when the building has lost its identity and specific character as a building. The question as to the destruction of the leased premises should have been submitted to the jury. Flanders on Fire Insurance [2 Ed.] 605; BrinTcley v. Ins. Co., 9 Met. 195.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The contract, even if it were entered into by defendants, is illegal and void, and could not be enforced, being a Sunday contract. Wág. Stat., secs. 1578, 1580, 1508; Bernard v. Lupping, 33 Mo. 341; Quinn v. Railroad, 20 Mo. App. 453; Sheffield v. Balmer, 52 Mo. 474; De Forth v. Railroad, 52 Wis. 329; Robeson v. French, 12 Met. 25; Johnson v. Brown, 13 Kan. 529.

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p> <p>(1) The evidence in this case does not establish any contract between the parties to this suit. The mere proposal or order by one party to another, which is not accepted, constitutes no bargain between them. If the offer by a vendor be answered by a proposal to give a less sum, this amounts to a rejection of the offer, which is then at an end, and the party to whom the offer was made cannot afterwards bind tbe intended vendor by simply accepting the first offer, Benj. Sales [ Bennett’s Ed. ] sec. 39, and cases cited; Baker v. Johnson Co., 37 Iowa, 186; Alsberg, Jourdan & Co. n. Latta, 30 Iowa, 442; Hyde i. Wrench, 3 Beav. 336; 1 Pars. Cont. [a7 Ed. ] bot. p. 507; Jenness v. Iron Co., 53 Me. 20; Burmester v. Phillips, 25 Fed. Rep. 805; Snow v. Miles, 3 Cliff. 608; Brown v. Bice, 29 Mo. 322; Stitt v. Huidekoper, 17 Wall. 384; Schenectady Co. v. Holbrook, 101 N. Y. 45. (2) The only authority conferred upon appellant, under the correspondence read in evidence, was that of an agent for the purchase of the machines in controversy.</p> <p>(1) The evidence in the case establishes a contract between the parties to the suit. 1 Pars. Oont. [ 7 Ed. ] star p. 483; Stotesberg v. Massengale, 13 Mo. App. .221; Bruner v. Wheaton, 46 Mo. 367; Mfg. Go. v. Broderick, 12 Mo. App. 378. (2) The contract in question was a contract of sale and purchase, and nob that of principal' and agent.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Shepard Barclay, Judge.</p> <p>Under the evidence it must be declared as a matter of law that defendant’s name is an unlawful imitation of plaintiff’s name, and its use by defendant is unlawful. State ex rel. v. McCrath, 92 Mo. 355 ; Sanders v. Utt, 16 Mo. App. 324; Clenny v. Smith, 11 Jur. [N. S.] 964; Seed Co. v. Seed Co., 23 Mo. App.579 ; Guardian,etc., Co. v. Guardian,, etc., Co., 43 L. T. [N. S.] 791-3. The corporate name of the defendant company was adopted in violation of an express statute, and its nse may be enjoined at the suit of a private party. State ex rel. v. McGrath, 92Mo. 355; R.S. 1879, secs. 926, 957;Pom.’sEq. Jur., secs. 252, 1347, 1349; Overall v. Ruenzi, 67 Mo. 203, 207; Mathis v. Town of Cameron, 62 Mo. 504, 506; Hayden v. Tucker, 37 Mo. 214; Wood, Nuis. [2 Ed.] p. 904; High, Inj., secs. 897, 901, 907; Kerr, Inj. 475, et seq. An injunction will lie at the suit of the person injured, to prevent the use by another of generic terms or other names common to the public, for the fraudulent purpose of diverting his custom. Seed Co. v. Seed Co., 24 Mo. App. 579; Lee v. Haley, 5 Ch. App. Cases, 155; Glenny v. Smith, 11 Jur. [N. S.] 694; Boswell v. Mathie, 11 Sess. Cases [Rettie] 1072 ; Matsell v. Flanagan, 2 Abb. Pr. R. [N. S.] 459; Churton v. Douglass, 28 L. J. Ch. 841; Pierce v. Guitard, 8 Pac. Rep. 645, 647; Bouluois v. Peake, 13 Ch. Div. 513%/ Browne on Trade-Marks, secs. 34, 522; 3 Pom.’s Eq. Jur., sec. 1354; Marsh v. Billings, 7 Cush. 331. A corporation as well as an individual may be enjoined from the nse of a name where it appears that it is an unlawful infringement on the name used by or belonging to another, even if such name be its corporate name. State v. McGrath, 92 Mo. 355; High, Inj., sec. 5907 ; Ex parte Walker, 1 Tenn. Ch. 101; Holmes v. Holmes, 37 Conn. 279; Rubber Co. v. Mfg. Co., 22 Blatch R. 421; Morawetz, Priv. Corp. [2 Ed.] secs. 354, 1064; Wallace v. Loomis, 97 U. S. 154; Ins. Co. v. Heedles, 113 U. S. 580. The court found the issues joined in favor of the plaintiff, and it should have granted it substantial relief against the wrongful action of defendant. This it did not do. State v. McGrath, 92 Mo. 355 ; Guardian, etc., Co. v. Guardian, etc., Co., 43 L. T. [N. S.] 791; Devlin v. Devlin, 69 N. Y. 212; Glenny v. Smith, 11 Jur.- [N. S.] 694; . Lee v. Haley, 5 Ch. App. Cases, 135. There was conclusive evidence of positive fraud on the part of defendant in the use of its name, and much more of legal fraud. Matsell v. Flanagan, 2 Abb. Pr. [N. S.J 459; Kerr on Fraud & Mistake, pp. 16, 17, 25, 26, 55 ; 2 Pom.’s Eq. Jur., secs. 880, 888; Bank v. Crandall, 87 Mo. 212 ; Craft v. Day, 7 Beav. 89, 90; Pierce v. Quitará, 8 Pac. Rep. 645, 647; Rogers v. Rogers, 11 Fed. Rep. 441-42 ; Gray t. Pulley Co., 16 Fed. Rep. 499. The taxation of one-half the costs against plaintiff was improper and illegal. Guardian, etc., Co. v. Ins. Co., 43 L. T. 791-3; Hawkins v. Howland, 53 Mo. 328; Dupont v. McLaren, 61 Mo. 502.</p> <p>Two points are made in this case: First. That upon the merits of the case the judgment of the court below is erroneous. Second. That the action of the court in requiring each party to pay one-half the costs is erroneous. The law applicable to the questions arising under the first branch of the case is so well settled, and has been so many times affirmed in this .court, that extended argument to establish these propositions seems altogether unnecessary, if not entirely out of place. Almost all of the authorities now cited by appellant were brought to the attention of the court upon the first appeal. No new points are made in the present argument. The plaintiff must establish positive and actual fraud on the part of the defendant. This it has not done, and the circuit court has so found. The names used are not similar. ' State «.• • McGrath, 92 Mo.. 355 •, Glenny v. Smith, 11 Jur. [N. S.] 964 ; Boswell v. Mathie, 11 Ret: Sess. Cas. 1072; Sanders v. Uti, 16 Mo. App. 324; Lee t. Haley, 5 L. R. Ch. App. Cas. 135; Guardian, etc., Co. 'd. Guardian, etc., Co., 43 L. T. . [N. S.] 791; Article in 10 Cent. L. J. 461, 481. With respect to that portion of the decree which apportioned the costs between the parties, the plaintiff cannot be heard to complain. It is altogether untrue to say that by its judgment the court found all the issues in favor of the plaintiff. Upon the substantial issue in the case the finding was for the defendant. The authority of equity courts to apportion costs between the parties, according to the discretion of the court, had been long recognized prior to the time of the enactment of our statutes concerning costs. And this authority is sustained by Turner v. Johnson, 95 Mo. 431.</p>

<p>1. Mandamus, Right to. Mandamus will lie against a circuit, judge to require him to take bond from one, who was appointed clerk of his court on the resignation of the incumbent of the office, and commissioned as such by the governor of the state; and this is so notwithstanding that the clerk who resigned was suspended from office by the judge, and that the judge had appointed a temporary clerk prior to the appointment by the governor, and that the validity of the appointment by the governor was contested on this ground.</p> <p>2. -. Mandamus lies in such case not for the determination of the validity of the governor’s appointment, and the right of the appointee to the office, but for the purpose of enabling the appointee to qualify, and then enforce his title, if denied.</p>

<p>The statute (Session Acts, 1883, sec. 4. p. 87) provides that the petition therein required shall be hied in the office of the clerk of the county court, and by said clerk laid before the court at the first term thereafter. The same section provides that “all dramshop licenses issued contrary to the provisions of this section shall be void.” The county -court construed this statute to permit the granting of a license at. the same term and on the same day the petition was filed. The question thus determined by them was. a judicial question. State ex rel. v. BurckTiartt, -87 Mo. 537.. This construction by the county court was clearly erroneous, and its action was void. The affidavit of the applicant for license was no competent evidence of the sufficiency of the petition. The statute necessarily .imposes upon the court the duty of investigating and determining by competent proof whether the petition presented complies with its requirements. And. if it undertakes to determine this question arbitrarily and without any competent evidence its action is illegal, and will be reversed on certiorari. People v. Board of Police, 72 N. Y. 415, 445; s. c., 39 N. Y. 506; People v. Smith, 45 N. Y. 777; People v. Weygant, 14 Hun. 546; Williams v. People, 24 N. Y. 399; Berry v. Lowe, 10 Mich. 9; Hyde v. Nelson, lb. 35.7; State v. Police Comms., 14 Mo. App. 308.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Geo. W. Luuke, Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Yalriant, Judge.</p>

<p>Practice, Appellate. When the judgment of a circuit court is affirmed for failure of the appellant to file a transcript, as required, an affirmance with damages is not justifiable.</p>

Louis City Circuit Court. — IIon. Jas. E. Withrow, Judge. (1) The court erred in overruling defendant’s objections to the testimony of plaintiff as to the conversations had by him with the police captain. (2) The verdict is unsupported by the evidence, as it does not connect the appellant with the prosecution complained of, and the motion for a new trial should, therefore, have been sustained.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. The petition did not state a cause of action. (a) Because the special tax bill was not lawfully assignable by the quarry company to Bambrick. R. S. 1879, sec. 3462; McInerny v. Reed, 23 Iowa, 410.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The defense upon which defendant relies, and which arises out of the conceded state of facts in this case, is the change in the building contract after the execution of the bond, without assent on his part, by increasing the consideration to be paid the contractors, the principals in the obligation. A material and subsequent modification of the contract for which the bond is indemnity discharges the surety.

<p>1. Divorce, Ground for. Acts of cruelty need not be sufficient to endanger life in order to be ground for divorce as indignities rendering the plaintiff’s condition intolerable.</p> <p>2. Divorce: alimony. When awarded in gross and for the support solely of the wife, alimony should not ordinarily exceed one-half of the entire estate of the husband.</p>

<p>1. Bank Cheek: presumption regarding. A check is presumed, prima facie, to have been given for value.</p> <p>3. Evidence. An admission is not conclusive when there is no element of estoppel in the case.</p> <p>3. Instructions. An instruction not warranted by the evidence is erroneous.</p>

<p>Cruelty to Animals. Evidence that a horse was overdriven does not warrant a conviction under Revised Statutes, IRTO, section 1609, in the absence of proof, that the overdriving was wilful and not accidental.</p>

<p>1. Practice, Appellate. When a cause is transferred by the ' supreme court to one of the courts of appeals, the order of transfer must be treated as an adjudication that the court of appeals has exclusive jurisdiction of the appeal.</p> <p>3. Special Tax Bills: attachment in actions on. The remedy by attachment in actions against non-residents of the state being authorized by the charter of the city of St. Louis, a general writ of attachment may issue in such actions, and a special levy may be made under it on the property, against which the special tax bill is issued.</p>

Writ of Error to the St. Louis City Circuit Court.— Hon. Daniel Dillon, Judge. A correct interpretation of the contract precludes any recovery by the plaintiff below.

- -Hon. E. M.. Hughes, Judge. Although the defendant was legally incorporated,, and although the law, under which it was incorporated, authorized corporations organized thereunder to collect tolls, still the defendant never acquired any right whatever to erect toll gates and collect tolls on the old road bed of the “Hannibal, Ralls County and Paris Plank.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) If the board believed that the remonstrance was not signed by a majority of the owners of property, it was not necessary to give the remonstrance any notice.

Louis City Circuit Court. — Hon. Jas. E. Witheow, Judge. The court below found the motion to set aside the default and judgment a meritorious one. Its authoiity to impose terms on defendant is not arbitrary. The •statute says a default may be set aside before final judgment “upon such terms as shall be just” (R. S. 3676); and that after final judgment the court may grant a new trial and' “permit the pleadings to be amended on such terms as may be just.” R. S. 3704.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. The circuit court erred in holding that the writ of attachment was properly sued out in this case. Such a writ does not lie in aid of an action to charge the estate of a married woman, but only in actions wherein a personal liability exists. Gage v. Gates, 62 Mo'. 412 ; Williams v. Railroad, 8 Mo. App. 135 ; Bachman v. Lewis, 27 Mo. App. 81; Hoover v. Gibson, 24 O. S. 389 • 1 Wade on Att., d. 39.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. If the husband was properly a party in the first instance, then upon the divorce he was, as to the plaintiff’s rights in this action, civilly dead. Hunt r>. Thompson, 61 Mo. 148-51. But the right of action was in the plaintiff alone. Our laws regulating the rights of married women should be liberally construed. McCoy v. Hyatt, 80 Mo. 130; Harris v. Bohte, 19 Mo. App. 529; State v. Mertz, 14 Mo. App. 58.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The defendants waived their right to a trial of the plea in abatement, because the docket entry of the justice shows that no such plea was filed in the court, and the record in the circuit court shows that no such plea was filed in that court. The court below erred in instructing the jury to find for the defendants.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The instructions given for respondents do not correctly state the law. Respondents cannot refuse to receive the goods, even if tendered back to them in an unreasonable time, and thereafter sue for full value of the same.

— Hon. John ■ Gr. Wear, Judge. The only issue made by tbe pleadings was-: Had tbe plaintiffs performed tbeir part of tbe contract ? They :aver in tbeir petition that “they bave faithfully kept ■and fulfilled all tbe conditions and requirements in tbe said contract of insurance on tbeir part.” As to the .giving notice of tbe fire no point is made, appellant . admitting that it had due notice.

<p>Jurisdiction, Appellate. The city of St. Louis is a municipal subdivision of the state within the meaning of section 12, of article 6, of the constitution, and the supreme court has jurisdiction of an appeal in a case in which that city is a substantial party.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The statutes provide that “All instruments of writing made and signed by any person, or his agent, whereby he shall promise to pay to any other or his order, or unto bearer, any sum of money or property therein mentioned, shall import a consideration, and be due and payable as therein mentioned.” R. S. 1879, sec. 663.

Louis City Circuit Court. — Hon* D. D. Fisher, Judge. Plaintiff is entitled to substantial damages. Marlcel v. Tel. Co., 19 Mo. App. 80; Millihen v. Tel. Co., 18 N. E. Rep. 291; Tel. Co. v. Du Bois, 21 N. E. Rep. 4. The special damages alleged in the petition are the direct and proximate consequence of defendant’s breach of this dual obligation to plaintiff. Cases cited supra; Wadsworth v. Tel. Co., 86 Tenn. 695; Fraser v. Tel. Co., 4 South. Rep. 831; Alexander v. Tel.

<p> Original Proceeding by Rabeas Corpus. </p> <p>The court, being one of general jurisdiction, has the authority to commit for contempt, and the petitioner ought not to be discharged. R. S. 1879, sec. 2648 ; Ex parte McKee, 18 Mo. 599 ; Ex parte Goodin, 67 Mo. 647. The receiver is an officer of the court standing in the shoes of the sheriff in respect of the matter specially •entrusted to him by the court, and, by accepting which, he subjected himself to the full and complete jurisdiction of the court to make and enforce, as for contempt, obedience by him to all lawful orders of the court independent of any statute. Beach on Receivers, ■ sec. 291; Ex parte Crenshaw, 80 Mo. 447. It is not an imprisonment for debt simply because the order relates to money, which the receiver reports he has as such officer. Robert v. Stoner, 18 Mo. 447; Coughlin v. Ehlert, 39 Mo. 285 ; Ex parte Crenshaw, 80 Mo. 447.</p>

<p>1. Evidence: books ok account. Books of account of a party are not admissible in evidence in his favor, although supported by the suppletory oath of himself, or of the clerk who made the entries.</p> <p>S. - — ■—:-. Such books may be used as memoranda to refresh the memory of a witness, but the witness must, after his memory has been thus refreshed, testify from recollection independent of the entries.</p> <p>3. -. Where a party produces books or papers in court at the instance of the opposite party, he may put them in evidence, although he would not otherwise have been entitled to do so.</p> <p>4. Practice, Trial: instructions. Although it is not error to refuse an instruction, stating that a party having the burden of proof must satisfy the jury “ by a preponderance of evidence,” the unexplained use of this expression in an instruction, which is given, is not ordinarily prejudicial error.</p>

<p>Physicians’ Eight to Eeeover Compensation. The statutes restricting the right to practice medicine and surgery to registered physicians and surgeons, and requiring the filing of diplomas, apply to one who as a physician gives electric treatments; it is not necessary that one should administer internal remedies in order to practice medicine within the meaning of these statutes.</p>

<p>1. Administration: claims oe the united states. Under the federal statute the United States has the right to priority of payment, over other creditors, out of property of an insolvent estate which is not required for the payment of costs of administration, or of the widow’s dower or allowances, and which is not subject to liens.</p> <p>2. -. The claims of the United States must, if known to the administrator, be paid out of funds applicable thereto, without any allowance or classification thereof by the probate court, notwithstanding . that the statutes of the state contain no provision therefor.</p>

Louis City Circuit Court— Hon. Daniel D. Fisher, Judge. The evidence does not warrant”the submission of the question of the acceptance of the premises by the appellant as owner. Prentiss v. Warne, 10 Mo. 601 \ Clemens v. Bloomfield, 19 Mo. 118; Kerr v. Clarke, 19 Mo. 132; Quinnette v. Carpenter, .35 Mo. 502; Gunn v. Sinclair, 62 Mo. 327; Livermore v. Eddy's Adm'r, 33 Mo. 547.

<p>Garnishment. A debt due to a partnership cannot he reached by garnishment on a writ of execution against one of its members.</p>

<p>Appeal from the St. Louis City Circuit Court.— Hon. Daniel Dillon, Judge.</p> <p>The two papers, certified copies of which were filed with the justice, before suit brought, to-wit, the lien and the notice when and where suit would be brought, were ample and complete to make a “cause of action,” to give the justice jurisdiction, as required by the-statute of 1879, section 2874. Ewing v. Donnelly, 20 Mo. App. 6.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge.</p> <p>The court should have declared, as a matter of law, that the plaintiff! had been guilty of contributory negligence, and was not entitled to recover. Rootv. Car Co., 38 Mo. App. 199 ; Wilson v. Railroad, 33 Mo. App. 683; Hills v. Railroad, 31 A. & E. R. R. Cas. 108; Dargan v. Car Co., 36 A. & E. R. R. Cas. 149 ; Welch v. Car Co., 16 Abb. Pr. (N. S.) 353; Blum n. Car Co., 3 Cent. L. J. 591; Whitney v. Car Co:, 1 R. R. & Corp. L. J. 139.</p> <p>The only question raised by the appellant is that the placing of the clothing on the upper berth was contributory negligence, and that it matters not what may have been the negligence of appellant, no recovery can be had ; such is not the law. Scaling v. Car Co., 34 Mo. App. 39 ; Bevis v. Railroad, 36 Mo. App. 19</p>

<p>1. Charter Provision, Construction of. The provision of the charter of the city of St. Louis, providing that no bill should contain more than one subject, is intended to prohibit a practice of joining in the same bill incongruous subjects having no relation or connection with each other, and does not invalidate an ordinance which provides both for the grading and the paving of an alley.</p> <p>8. -. Nothing in said charter requires the municipal assembly of said city to fix the elevation of an alley before ordering its improvement.</p>

— Hon. Geo. T. White, Special Judge. No account or statement of cause of action was filed with the justice who tried the case, and, as… Held: time and again, that the name of a party could be changed, and that new parties could be brought in. Hause v. Duncan, 50 Mo. 453; Beatty & Weakley v. Hill, 60 Mo. 72. That you could amend from a stated to an ojien account. Newburyer v. Friede, 23 Mo. App. 631; Hanson v. Jones, 20 Mo. App. 595; Qullom ». Qundiff, 20 Mo. 522; Hanson ».

— Hon. E. L. Edwards, Judge. (1) The demurrer to the evidence should have been given. There was no« evidence sufficient to support a verdict, that the fire, which burned plaintiffs’ pasture, was started, or set out, by defendant’s engine. The most the evidence would justify the jury in doing, would be to guess, or presume, that the railway company’s engine may have set the fire out.

— Hon. E. L. Edwards, Judge. (1) (a) The first instruction for defendants is erroneous, in that it does not confine the value of the land taken to the market value. The damages to be awarded should be the market value of the property for any purpose for which it is' adapted, or forwhich.it may be used.

JEJrror to the Cole Circuit Court.— Hon. Andrew Ellison, Judge. The court erred in sustaining defendant’s objection to the introduction of testimony on the part of plaintiff, upon the grounds that the city was not the proper party to sue. Laws, 1872, p. 396, sec. 14; City of Jefferson n. Whipple,, 71 Mo. 519; City of Jefferson v. McCarty, 74-Mo. 55; City of Jefferson v. Mock, 74 Mo. 61; State ear rel. v. McDonald, 38 Mo. 529;* Slate r>.

— Hon. Gh H. Burckiiartt, Judge. (1) This agreement was an executory one, and, while it may not have been void under the statute of frauds by reason of section 3082, Revised Statutes, 1879, ■ had an entry upon said lands been had during intestate’s lifetime, was voidable by either party prior to such entry, and did become absolutely void upon intestate’s death prior to such entry. 1 Washburn, Real Prop. [4 Ed.] pp. 613 and 614, sec. 31, 32, 33.

— Hon. E. L. Edwards, Judge. (1) The clause in the contract which was admitted by the circuit court in evidence over the objection of the defendants provided that defendants should “excavate and remove the earth from the lower end of said pond to the extent of one acre, so as to deepen the bottom thereof sufficient to support fish therein the year round.” It is vague and uncertain in that specifications are omitted therefrom; that it is wanting in detail; that material…

— Hon. E. M. Hughes, Judge . (1) Plaintiff had neither the legal title nor right to possession, and he cannot recover in trover. Myers v. Hale, 17 Mo. App. 204.

— Hon. E. M. Hughes, Judge. Statement of the case by the court. This is an action on the warranty of the qualities of a jack sold by defendant to plaintiffs.

James M. Sandusky, Judge. (1) The court erred in instructing the jury to find for the plaintiff. The answers set up a complete defense to the action alleged in the petition, and every allegation in the answers is proved by the testimony of two witnesses.

— Hon. James M. Sandusky, Judge. (1) The court erred in giving instruction number 5, and not instructing the jury as to what would be a legal and valid transfer of the creamery stock, there being evidence to the effect that the sixty-three shares of stock was a part of the consideration of the note. Huff v. State, 4 S. W. Rep. (Tex.) 890; Blondeau ». Sheriden, 81 Mo. 545; Lumber Co. v. Warener, 93 Mo. 374. (2) Interpretation of a written contract is for the court.

— Hon. James M. Sandusky, Judge. Where the undisputed evidence shows that the distance between the cattle guard and the switch cannot be lessened without endangering the lives of the railroad company’s employes, the company is not required to fence, and is not liable for the killing of stock occurring there under section 809, Revised Statutes. Pearson v. Railroad, 33 Mo.

..Appeal from the Ray Circuit Court. — Hon. James M. Sandusky, Judge. Statement of the case. This is an action under section $09, Revised Stat- ■ utes, 1879, to recover damages for injuries to a crop of t corn done by stock escaping from defendant’s unfenced right of way.

<p>Railroads : fencing. The judgment in this case is affirmed on the authority of Shoiwell v. St. Joseph and St. Louis Railway Company, ante, p. 653.</p>

— How. Richard Field, Judge. Statement of the case. In 1881, one Joseph D. Sicher was the owner of a tract of land in the city of Sedalia, known as “Sicher’s Park,” on which there were at that time erected, and in existence, a certain hotel and other buildings, all constituting a part of the realty.

— Hon. Richard Field, Judge. (1) The petition does not state facts sufficient to show that the circuit court of Saline county had jurisdiction to hear and determine this suit, in that it does not state that plaintiff was a resident of the county of Saline at the time of the institution of this suit, nor does the whole record show that fact. It being a jurisdictional fact, its averment and proof was necessary. Cole v. Cole, 3 Mo. App. 571; Pate v. Fate, 6 Mo.

— Hon. C. D. Burgess, Judge. (1) The brakeman is presumed to understand the use of the apparatus with which he works. In this case he knew its condition and voluntarily, and without complaint or objection, and without disclosing the alleged defect to his employer, continued to use it. In so doing he assumed the risks incident to its use, and cannot recover. Covey v. Railroad, 86 Mo. 635; Hooper v. Railroad, 21 S. C. 541; Alexander v. Railroad, 25, Am. & Eng. Ry.

— Hon. M. G-. McGregor, Judge. (1) The finding of the jury, trying a case in replevin, must be as to the whole of the property replevied; and the verdict, where the property consists of a number of articles, may be in favor of plaintiff as to a part, and in favor of defendant as to a part, according to the rights of the respective parties, as disclosed by the evidence.