Volume 39 — Missouri Appeal Reports

— How. R. H. Field, Judge. (1) The first question presented by this record is : Was any proper suit commenced against defendant Elizabeth Boese on said tax bill in September, 1885? Bid the court obtain jurisdiction of her person, her husband not having been joined as a defendant, as required by the statutes? R. S. 1879, sec. 3468. The wife is not sui juris, and the law requires her husband to be brought before the court to protect her interest. Latshaw r>.

— Hon. R. H. Field, Judge. (1) Instruction number 2 given for respondent submits to the jury the question of whether a sale had taken place, when it should have been determined by the court from the written contract of sale and the undisputed evidence of delivery. It asks the jury to find for the respondent on a state of facts not supported by the evidence. Knoop v. Bis. Co., 26 Mo. App. 303; Williams .v. Evans, Adm'r, 29 Mo. 201 ; Hatch v. Bailey, 12 Cush.

Clair Circicit Court. — Hon. D. P. Stratton, Judge. (1) Fraud in a civil suit may be established in the minds of the jury by a preponderance of testimony. It is not, as is the case in criminal prosecutions, for obtaining goods under false pretenses, to be established beyond a reasonable, substantial doubt. Eames v. Morgan, 37 Ill. 160, 162, and cases cited; 18 Mo. WOWS. Erhart v. Estill, 6 Mo. App. 9, 10.

— How. Andrew Ellison, Judge. (1) The trial court erred in permitting plaintiff to introduce ordinance number 50, entitled, “An ordinance in relation to sidewalks,” as said ordinance did not mention street crossings and did not pretend to regulate the dimensions or mode of constructing-same, and the only effect that the reading of said ordinance could have was to mislead the jury.

<p>1. Master and. Servant: materiality of evidence. When the discharge of a servant is justified on the ground of his having insulted customers, and evidence is produced tending to show insults by him to certain customers, evidence of proper demeanor on his part towards others is immaterial, either as evidence in chief or in rebuttal. •</p> <p>3. Misappropriation as G-round for Discharge. When a servant, without his master’s authority or consent, takes and appropriates to his own use goods and money of the master, the fact that he charges himself therewith on the master’s books does not take away the master’s right to discharge him.</p> <p>3. Practice, Appellate : presumption that ERROR is prejudicial. Error is presumed to have been prejudicial, unless it is affirmatively shown to have been harmless.</p> <p>4. Instructions: not prejudicial. The fact that the use of the word “plaintiff” instead of “defendant” renders an- instruction unintelligible, as it reads, is no ground for reversal, when the use thereof is an obvious mistake, and the instruction, taken in connection with others given on the same subject, could not have misled the jury.</p>

<p>Appeal from the Jefferson Circuit Court. — How. J. L. Thomas, Judge.</p>

<p>Dramshops : instructions. An instruction is erroneous and prejudicial, if it authorizes a conviction for the selling of liquor without license, whether the liquor was intoxicating or not, and whether it was sold by the defendant or another, who is not shown to have sustained any legal relationship to the defendant.</p>

<p>Criminal Law: carrying congealed weapons. The carrying of a' pistol, not for use as a weapon, but only for the purpose of delivering it to the owner of it, is not criminal.</p>

<p> Original petition for writ of prohibition. </p>

<p>Appeal from, the Texas Circuit Court. — How. 0. C. Bland, Judge.</p> <p>It devolves on tbe state, to prove tbe venue wbicb, in tbis case, it fails to do. State v. Miller, 71 Mo. 89; State v. Hughes, 71 Mo. 633;. State v. McGinnis, 74 Mo. 245; State v. Babb, 79 Mo. 366; State v. Hughes, 82 Mo. 86; State 'o. Quaite, 20 Mo. App. 405; State v. McKay, 20 Mo. App. 149.</p>

— Hon. J. F. Hale, Judge. There was no proof that the plaintiff was an owner of land adjoining the railway track, where his animal was killed. That proof was essential to a recovery. Ferris v. Railroad, 20 Mo. App. 122. It was not shown by competent proof that Dry Creek and Hutton Valley townships adjoin. This was a jurisdictional fact, and could only be established by record evidence, that is, evidence of the record of the establishment of the township. This was not done.

<p>1. Criminal Law: adultery, etc. Lewd and lascivious cohabitation on the part of persons, both of -whom are unmarried, is criminal, when open and gross, but such cohabitation between persons, one or both of whom are married, but not to each other, is criminal, whether open and notorious or not.</p> <p>2. -: -: evidence oe marriage. When, in case of an indictment for lewd and lascivious cohabitation, it is essential to establish that the defendant was a married person, there must be direct evidence of his marriage; mere matter of repute, or testimony derived therefrom, will not suffice as evidence of a marriage.</p>

<p>Criminal Law: practice: arraignment. When the trial is had before the court sitting ás a jury, the fact that the prisoner was arraigned after some of the evidence had been received will not invalidate the conviction of the prisoner.</p>

— How. H. C. O’B by AN, Judge. An endorser, after tlie dishonor of a note, when there has been no demand of payment and no notice of non-payment, may bind himself by a subsequent promise to pay¡ But the plaintiff must go further and prove knowledge on the part of the defendant of the fact that the plaintiff had not made demand of payment at the maturity of the note. 1 Parsons on Notes and Bills, pp. 442, 594, 601, 622, 624, 625, 626; Salisbury v. Renecke, 44 Mo. 554; Wilson…

— Hob. J. P. Hale, Judge. It was not shown by competent proof that Willow Springs township and Hutton Yalley township are adjoining townships. The townships were created by order of the county court entered of record. R. S. 1879, secs. 7426, 7427. Oral testimony was therefore incompetent, and there was no evidence of the fact in question, except the oral testimony of the clerk of the county court. Nor was there any evidence that W. W. Tucker was a justice of either township.

<p>1. Mechanic’s Lien: evidence oe waiver. While a mechanic’s lien may be waived, the intention to waive it must be clearly manifested.</p> <p>2. Law and Fact: waiver. The question of waiver ordinarily is one of intention and one of fact; if it dexiends upon the interpretation of a writing, it is one of law only when the writing is free from ambiguity.</p> <p>3. Fractice, Appellate: error resulting from appellant’s action. When the appellant by his course of action leads the trial court into error, he cannot complain of the ruling. Thus when the question is one' of waiver, dependent upon the interpretation of a writing, and the trial court at the instance of the appellant holds that the question is one of law, but further holds that the writing does not amount to a "Waiver, the appellant cannot on appeal complain of this ruling, if the writing reasonably admits of the construction placed upon it; for, if the writing is ambiguous, the question of waiver was one of fact for the jury, and the appellant is precluded from so claiming.</p>

Louis Oity Circuit Court. — Hon. Daniel D. Fisiier, Judge. (1) The court erred in giving instructions which imposed no duty on the respondent to notify the bank of the alleged forged endorsements on the checks or to object to them until he actually knew that the endorsements were forged, and also in refusing to give instructions asked for by the appellants imposing a duty on respondent of diligence in discovering the forgery of endorsements, and notifying the bank of such…

Louis City Circuit Court. — Hour. Daniel Dillon, Judge. The shipper may sue ex delicto, as did plaintiff, and when he showed delivery of the goods to defendant and failure to receive, and a loss of them, he made out a prima facie case, and it was for defendant to set up a special contract, prove it and bring himself within the terms of it under the laws of Illinois. Bams v. Bailroad, 89 Mo. 350; Ciarle v. Bailroad, 64 Mo. 446; Lawson on Carriers, sec. 245.

<p>1. Railroads: silling stock : phesumptions. In the absence of direct proof upon the subject, the presumption is that an animal came upon the railway track at a point where the railway company was required to fence, but failed to do so, if the evidence shows that the animal was injured at such a point.</p> <p>2. -: --: NON-ADJOINING OWNERS. When stock gets upon the railroad track at a point where the track runs through unenclosed lands which are not fenced, as required by law, proof that the land of the owner of the stock adjoins or is next adjoining to the railway is not essential.</p> <p>8. Justices of the Peace : evidence oe eight to office. When the record recites that the person, before -whom a cause was commenced, was a justice for a specified township, such recital is sufficient proof that such person held that office.</p>

<p>Criminal Law: INTERPRETATION of provision for forfeiture. When used in criminal law to denote a punishment for a statutory-crime, the meaning of the word “forfeit” is equivalent to that of “fine.” Accordingly a provision for a forfeit, in such case, authorizes the imposition of a fine, and imprisonment for nonpayment of it.</p>

<p>Appeal from the Lawrence Circuit Court. — Hon. M. Gr. MoGtRegor, Judge.'</p>

<p>Appeal from the Butler Circuit Court. — IIoN. J. Gr. Wear, Judge.</p> <p>The defendant was under no obligation himself to offer a license in evidence, or himself to show a state of facts existing at the time alleged, that would exonerate him from the crime laid to his charge. The defendant may not be required to testify. R. S. 1889, sec. 1919; State v. Cohn, 9 Nevada, 179; Brandon v. The People, 42 N. Y. 265; State v. Clinton, 67 Mo. 380-92. The verdict was not supported by the testimony, and the evidence was not sufficient to warrant the finding of the pry.</p>

— Hon. J. L. Thomas, Judge/ An information cannot be based upon the affidavit of a person who is not a competent witness to the facts stated in the affidavit, and the affidavit must show knowledge of such facts by tile witness. State v. Shaw, 26 Mo. App. 383; State v. Hayward, 83 Mo. 288. The information does not purport to be the official act of the attorney. Sess. Acts, 1885, p. 146; State Harris, 30 Mo. App. 82; State v. Fletchall, 31 Mo. App. 299.

Louis Criminal Court. — How. Gr. S. Yaw W ago wee, Judge. ’ The verdict and judgment cannot stand, because there is no legal evidence that the Missouri Pacific Railroad Company , is incorporated, as alleged in the indictment. R. S. 1879, sec. 1915; State v. Cheek, 63 Mo. 364.

— Hon. W. D. Hubbard, Judge. The statute does not denounce the mere putting of a pistol into one’s pocket for a single moment. It is the pernicious habit or purpose of going about secretly-armed that the law condemns. The crime of carrying concealed weapons implies some continuity of purpose and action.

Louis City Circuit Court. — Hon. Daniel D. Fisi-ier, Judge. f (1) The evidence did not show a delivery of the goods to Moll before the deed of assignment; hence the title passed to the assignee. (2) The court erred in refusing to instruct the jury that the conveyance to Moll was invalid, if made with the intent to prevent the property transferred from going into the hands of the assignee.

— How. Tnos. EL Bacon, Judge. The instruction given by the court at the instance of the plaintiff on the subject of the tender was proper. 3 Sharswood’s Black. Com., p. 304, note; Kitchen v. Ciarle, 1 Mo. App. 435. And the instruction given •for the defendant on the same subject was, accordingly, erroneous. The court also erred in holding that the payment of money to the clerk of the circuit court of Ralls county entitled the defendant to a judgment for costs.

- — lion. Rudolph TIirzel, Judge. The chattel mortgage, under which respondent claimed the goods attached in the hands of Wehrmann, on its face contemplated that the mortgagee should continue in possession of the mortgaged property and nse the same as his stock in trade, and that whatever goods, in the course of the business, should be brought into the stock should be subject to the mortgage.

Hon. Maukioe Ckamek, Judge. (1) Mrs. O’Donoghue, widow of appellant’s intestate, is a competent witness for her husband’s estate as to the facts coming to her knowledge after her husband’s death. Scroggin v. Holland, 16 Mo. 419; Stein v. Weid-man's Adm'r, 20 Mo. 17; Sherwood's Adm'r v. Hill, 25 Mo. 391.

<p>Criminal Law: compensation bob boabd burnished to peisonbbs. When a jailor furnishes board to prisoners he, and not the sheriff of the county, is entitled to the sums allowed therefor by the county court.</p>

Charles Circuit Court. — Host. W. W. Edwards, Judge. (1) The trial court erred in overruling the plaintiff ’ s motion to strike out part of the defendant’s answer. The notes were subject to thé same set-offs and defenses in Mrs. Watson’s hands as they would have been between the original parties. Story on Prom. Notes [3 Ed.] sec. 190, p. 224; 1 Daniel on Neg. Inst., secs. 769, 780 and 781; Morrow v. Bright, 20 Mo. 300; Brant’s Will, 40 Mo. 277, 278.

<p>Appeal from the Monroe Circuit Court. — lion. Thos. H. BacoN, Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hon. Dahied D. Eisher, Judge.</p>

— IIon. T. A. Lowe, Special Judge. A gift, unaccompanied by a delivery of tbe property, cannot be enforced against tbe donor; there must be an actual delivery if possible. The acts done and all tbe circumstances in this case do no.t amount to a delivery. Wiley v. Backus, 52 Iowa, 401; Medloeh v. Powell, 96 N. C. 499; Atkins v. Hulse, 62 Mo. 577; Flanders r>. Blandy, 45 Ohio St. 108; Brewer v. Harvey, 72 Ala. 176; Martin o. Smith, 25 W. Va. 579; Young v. Young, 80 N. Y. 422.

<p>Appeal from the Butler Circuit Court. — IIou. J. P. Lane, Special Judge.</p>

<p>Appeal from the Butler Circuit Court. — IIon. John Gf. Weak, Judge.</p>

<p>Appeal from the Butler Circuit Court. — How. John G. Weak, Judge.</p>

— Hon. Jno. G. Wear, Judge. If Miller could have maintained the action, so can plaintiff, as his grantee. R. S., sec. 2453; Kelly v. Claney, 15 Mo. App. 519; Kean v. Kolkschrinder, 21 Mo. App. 538. And plaintiff’s deed from O. P. Miller and wife was and is proper evidence to show plaintiff’s rights, under his derivative title, to maintain this, action (Revised Statutes, section 2457), and it was error in the court to exclude it upon the objection of defendant.

— Hon. J. F. Hale, Judge. It was held in case-of Simmons p. Railroad, 19 Mo. App. 542, that, “a garnishee /can exonerate himself from further expense or trouble by paying the money or surrendering the property to the constable as provided in Revised Statutes, sections 2550 and 2551.

<p>1. Pleading: waiver Off condition. The waiver of conditions in an insurance policy may he shown in evidence under pleadings averring a performance of such conditions.</p> <p>2. Fire Insurance : waiver oe prooes. An absolute denial of liability, made by the insurer to the insured while the right to furnish proofs of loss is undetermined, constitutes a waiver of the right to such proofs.</p> <p>3. -:-. The right to proofs of loss may be waived otherwise than by an absolute denial of liability by the insurer, or a distinct recognition of liability without regard to the delivery of such proofs; there may be a shuffling, tricky or evasive course of conduct on the part of the insurer, amounting neither to such absolute denial nor to such distinct recognition of liability, which would lead a reasonably prudent man to believe that proofs of loss are not to be required.</p> <p>4.-:-. The fact that an adjuster of the insurer visited the place of fire and offered to settle the loss with the insured upon a certain basis, which offer was rejected by the insured, does not establish a waiver of the right of the insurer to proofs of loss.</p> <p>5. Practice, Trial: instructions not warranted by the evidence. It is error for the trial court to give an instruction, which is based upon a hypothesis of fact, in support of which there is no evidence.</p>

<p>Appeal from the Ripley Circuit Court. — Hon. John Gr. Weae, Judge.</p>

<p>Appeal from the Greene Circuit Court. — IIoN. W. D. Hubbard, Judge.</p> <p>There is nothing in this case to show that the assignment of the fee was a conditional payment, or a payment in any sense, but on the contrary it was in the nature of a collateral security till collected and applied by defendant under the terms of the contract between plaintiff and defendant. Appleton v. Kinnon, 19 Mo. 637; Howard ». Brannock, 33 Mo. 583; Holmes ». Lykins, BO Mo. 399; Leabo v. Goode, 67 Mo. 126; Miles v. Robinson, 80 Mo. 47; Oommiskey v. McPike, 20 Mo. App. 82; Bertiaux v. Dillon, 20 Mo. App. 603; Watson v. Waller, 23 Mo. App. 263; Bank v. Petterman, 21 Mo. App. 512. And even if the contract alleged had been a conditional payment, as respondent refused to deliver up the notes to plaintiff, or otherwise account for them on demand before a suit was brought, he impliedly admitted by such act that they were not paid, and is estopped from relying on his own wrong. Gnel v. Railroad, 82 Mo. 653; Holmes v. Lykins, supra.</p> <p>In this case, it is alleged that a judgment was assigned to the defendant to be collected in payment of the notes. When the money was collected on the judgment, that ipso facto was payment, and * the notes became extinguished. This would have been true in the absence of any agreement. But, to make it all the stronger, it is alleged that it was agre,ed that this should be payment. 2 Dan. Neg. Inst. [3 Ed.] sec. 1259; Jones on Pledges, sec. 551; Geffeken v. Slinger-land, 1 Bosw. 449.</p>

<p>1. Debtor and Creditor: novation. If a contract is made between two persons, whereby the one for a valuable consideration assumes and agrees to pay a certain debt owing by the other, the holder of the claim thus assumed may, though not a party to the contract, recover the amount of the claim from the person assuming it.</p> <p>2. Pleading Misnomer. A person sued by a wrong name should appear to the action by his correct name.</p> <p>3. Evidence; admissibility of secondary evidence. When an instrument in writing is neither within the jurisdiction of the court nor within the control of either of the parties to the suit, secondary evidence of its contents is admissible.</p> <p>4. -: admissibility of pasol evidence. When a part only of a contract has been reduced to writing, oral evidence is admissible to show the residue of the contract.</p>

— How. E. M. Hughes, Judge. Conditions subsequent can only be reserved for the benefit of the grantor and his heirs, and no other person can take advantage of a breach of them, nor can the grantor or his heirs devise or convey them in any manner.

— How. GJ-. D. Burgess, Judge. • (1) All tbe instructions, given on bebalf of the plaintiff, ignore the issue of contributory negligence made by the pleadings, and are otherwise misleading. These instructions do not fairly present the law of the case. West v. Martin, 31 Mo. 375; Oeiselman v: Scott, 25 Ohio .Stat. 86; Stillson v. Railroad, 67 Mo. 671; Davis v. Spicer, 27 Mo. App. 279. (2) Defendant’s fifth and sixth instructions should have been given.

— Host. J. H. Slover, Judge. (1) Griffin Reno having no interest in the subject of matter of the controversy, and not being the agent of his wife, was not a competent witness to testify in her behalf. R. S. 1879, sec. 4014; Paul v. Leavitt, 53 Mo. 595 ; Hearle v. Krulin, 65 Mo. 202 ; Wood v. Bradley, 76 Mo. 23 ; Joyce v. Bronsen, 73 Mo. 28 ; White v. Chaney, 20 Mo. App. 389; Brownv. Kirie, 20 Mo. App. 524.

— Hon. Richard Field, Judge. (1) At the time the deed of trust was made from Sturgess to Vanstone as trustee for Crum, the wheat in controversy was in esse, — it had a “potential existence.” Sturgess was in the actual possession of it, and in possession of the land upon which it was grown, until it was harvested and removed from the land. It was, therefore, a proper subject of sale or mortgage, at the time the deed of trust was made.

J. M. Davis, Judge. (1) The only question to be determined in this case is one of jurisdiction. If the town of Carrollton, under its special charter (which is declared to be a public act, see Session Acts, 1871, page 148), had the sole and exclusive power over dramshops and tippling-houses, then it will be, we think, conceded that the grand jury had no authority to return this indictment, and the plea in abatement filed herein should have been sustained.

Avpeal from the Qaldwell Circuit Court. — Hon. J. M. Davis, Judge.' A construction of the following words in tlie respondent’s right-of-way deed is the matter in issue for this court to determine. The words “and he hereby releases all damages and claims thereto to all his other lands by reason of, or occasioned by, the location, construction and operation of a railway over and upon the premises hereby conveyed,” means something, and was inserted in the deed for a purpose.

— Hon. J., IT. Slover, Judge. (1) The court erred in giving the first and second instructions asked by plaintiff, in that such instructions ignore the element of contributory negligence as a matter of consideration for the jury, although the answer sets up such negligence by way of defense, and although there was evidence, introduced by plaintiff herself, from which the jury might fairly have found such negligence on her part, or, at least, tending to show such negligence on…

— Hon. D. P. Stratton, Judge. The personal dower allowed the widow under sections 107 and 108, Revised Statutes, cannot be allowed out of the proceeds of the sale of real estate, but must come out of the personal property on hand at the death of the husband. Browry v. Barber, 68 Mo. 155. (1) The inventory and appraisement, filed by the administratrix, amounted to $260.85.

— Hon. D. P. STRATTON, Judge. In 1883 .the trustees of the village of Schell City ordered a village fire engine of defendant, L. M. Rumsey Manufacturing Company, a corporation doing business in -St. Louis, Missouri, the price of which was eight hundred and three dollars.

— Hon. D. P. STRATTON, Judge. (1) The theory, upon which part payment is permitted to have the effect of taking a debt out of the statute of limitations, is that it is a recognition by the debtor of the continued existence of the debt, and of its obligatory character. Beck r>. Haas, 31 Mo. App. 183; Leach v. Asher, 20 Mo. App. 656; Blair *. Lynch, 11 N. E. Rep. 949; Wood on Lim. of Action, sec. 104; BmitK s Adm'r v. Irwin, 37 Mo. 169.

— Hon. D. P. STRATTON, Judge. (1) Parol evidence will not be received for the purpose.of engrafting additional stipulations or conditions upon a written contract which-is complete in itself. Pearson v. Carson, 69 Mo. 55(1; Hair Co. n. Walmsley, 32 Mo. App. 115. (2) The debtor has the first right to apply payments, and, if he does not exercise the right, the creditor may make the application to any indebtedness he may choose. Poiolson v. Collier, 18 Mo. App. 583.

Clair Circuit Court. — Hoisr. D. P. Steatto'N, Judge. (1) It is needless to cite authorities in support of the familiar proposition that an in j unction will not be granted where there exists an adequate remedy at law.

— Hon. D. P. Stratton, Judge. The petition in this case does not state facts sufficient to constitute a cause of action. (1) In this there can be no such incorporation as the “Village of Jerico Springs” under the laws of this state. R. S. 1879, sec. 5004, art. 6; State ex rel. v. Matson, 38 Mo. 489.

— Hon. I). P. Stratton, Judge. (i) The circuit court ought to have given the defendant a decree of divorce upon his cross-bill. Its allegations constituted new matter, which, not having •been replied to, stood admitted, and it was, therefore, admitted that the plaintiff had abandoned him, without reasonable cause, for more than one year, which, under the statute, would entitle him to a divorce. R. S., secs. 3545, 3525 and 2174.

— How. Awdrew EllisoN, Judge. Appellants contend that, under the evidence, the court should have found the issues for defendants and rendered judgment tliereon.

— Hon. Andrew Ellison, Judge. (1) The court erred in entertaining testimony to support the indictment on part of the state against the objection of defendant. (2) The court erred in not sustaining defendant’s demurrer to the testimony of the state. , The eyidence disclosed no offense committed by defendant. State v. Ebert, 40 Mo. 187; State v. 'Bruner, 17 Mo. App. 274; State v. Sellner, 17 Mo. App. 16.

— Hon. C. H. S. Goodman, Judge. (1) The respondent should have been required at the beginning to show when the credit in dispute was made, and that it was made at a time when it would have been against Waters’ interest to make it or to have it made, or that it was made by or with the consent of Schwyhart and Henry Roberts or one of them. Goddard v. Williamson’s Adm’r, 72 Mo. 131, and other authorities there cited. Loewer v. Haug, 20 Mo.

— Hon. C. II: S. Goodman, Judge. (1) Defendants’ demurrer to plaintiff-’s testimony, page 19, should have been given. Unless there was a breach of the bond, plaintiff was not entitled to recover.

—Hon. Cyrus A. Anthony, Judge. (1) The court erred in refusing instruction number 7, asked by appellant. R. S. 1879, secs. 2596, 2597, 5812 and 5833. (2) The court erred in giving instruction number 2, for respondent, on the question of ratification. It was not pleaded, neither did the principal have any knowledge of the act, or receive any benefit therefrom. Webb v. Ailing ton & Anderson, 27 Mo. App. 559, 571.

— How. ’ Cybus A. Anthony, Jtidge. (1) Can the lien, or right in the nature of a lien, secured to creditors by section 2353 of the Revised Statutes, be waived ? If so, has it not been waived in this case ? Shelley v. Boothe, 73 Mo. 74; Holmes r. Braidwood, 82 Mo. 610 ; Singer r. Goldenburg, 17 Mo. App. 549; Wagon Worlcs v. Carman, 109 Ind. 31; Berlin r. O'Neill, 6 Daly, 305; Luddenr. Hazen, 31 Barb. 650.

<p>Appeal from the Warren Circuit Court. — Hon. W. W. Edwards, Judge.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p>

Charles Circuit Court. — Hon. W. W. Edwards, Judge. The petition of the plaintiff does not state facts sufficient to constitute a cause of .action. It does not allege that the final settlement of the administrator was procured by fraud. Pinal settlements of administrators will not be set aside except for fraud. The fraud must be actual. A mere mistake is not sufficient; and the fraud must be both alleged and proven, neither of which was done in this case.

— Hon. W. D. Hubbard, Judge. In an action brought by a husband and wife, which affects the interests of the wife’s real estate, the husband is not disqualified as a witness. His marital right in the property gives him such an interest as entitles him to testify on his own behalf. It is not material that his testimony will necessarily affect his wife’s interest. Steffen v. Bauer, 70 Mo. 399. He was competent to testify.

<p>1. Forcible Entry and Detainer: burden or proof. When the plaintiff founds his case on the charge that the defendant is in possession of the land sued for as tenant of his grantor, and that such tenant’s term has expired, it is incumbent on the plaintiff to show that, at the date of the conveyance of the land to him, the defendant held the land as such tenant; and his recovery must be limited to such land, as to which he establishes such tenancy.</p> <p>2. -: equitable defense. The fact that, during the term and prior to the conveyance of the land to the plaintiff, the plaintiff ’s grantor had contracted to sell the land to the defendant, is no defense to an action for unlawful detainer, the tenant’s remedy, if the plaintiff acquired the property with notice of the contract, being in equity.</p> <p>3. -: amendment OF complaint. The complaint in an action for unlawful detainer may be amended in the circuit court by enlarging the claim for damages.</p>

<p>Appeal from the Greene Circuit Court. — Hon. W. D. Hubbard, Judge.</p> <p>The assignment statute declares that every voluntary assignment of property by a debtor in trust for his creditors shall be for the benefit of all the creditors of the assignor in proportion to their respective claims; and also declares that all stipulations in any such instrument granting preferences shall be void. R. S. 1889, sec. 424. The attempt to give preferences does not avoid the instrument. By force of the statute the conveyance enures to the benefit of all the creditors; and it will be enforced under the statute. Crow v. Beardsley, 68 Mo. 435; Douglass v. Oissna, 17 Mo. App. 44. The conveyance made by Zwang to respondent Wolf, as trustee, possesses all the qualities of a conveyance in trust to raise funds to pay debts. This is its paramount purpose. Its character in this regard is clearly distinguishable from a mortgage. It appropriates the property conveyed to the immediate payment in weekly instalments of the debts intended to be preferred and not yet due; and it contains no clause of defeasance, except as to the property “unsold” after the maturity of these debts. Nowhere upon the face of the instrument does it purport in express language to be a security. In its essential features, showing an appropriation of assets to pay existing debts, it is like the instrument reviewed and held an assignment by the Kansas City Court of Appeals in Mills v. Williams, 31 Mo. App. 447. The prime purpose of these transactions will be understood to have been a desire to raise funds to pay creditors. Clapp v. Nordmeyer, 25 Fed. Rep. 71; Freund «. Yeagerman, 26 Fed. Rep. 812. The judgment should be reversed with directions to require respondent to answer the petition, or give bond.</p> <p>By decisions in the Kansas City Court of Appeals and the supreme court of this state, the difference between a chattel mortgage and an assignment has become thoroughly fixed and outlined. A deed of assignment is a transfer of property, for the purpose of raising a fund to pay debts without an equity of redemption. The title to the property passes to the assignee and beyond the control of the debtor. A mortgage is a conveyance or pledge of property to secure a debt or debts, and is in its nature conditional, there remaining in the debtor a right of redemption, or reversion on the payment of the debt. Imp. Qo. v. Thurman, 29 Mo. App. 187; Mills v. Williams, 31 Mo. App. 448; Hargadine v. Henderson, 97 Mo. 375. An instrument intended as a mere security will be upheld as such, although it may provide for an immediate possession being taken by the mortgagee. The conveyance in Hargadine v. Henderson, and in the following cases so provided, but were nevertheless held to be mortgages : Gage v. Oheseboro, 5 N. W. Rep. 881; Hembree v. Blaclcburn, 19 Pac. Rep. 74. An express provision of defeasance is not necessary and essential to characterize an instrument as a mortgage. If from its nature, either standing alone or read in the light of surrounding circumstances, it appears to have been given as a security it must so be considered. Hargadine v. Henderson, 97 Mo. 375.</p>

<p>Criminal Law : adultery. Proof that a married man occasionally had sexual intercourse with an adult female, residing with him as a servant, is not sufficient to warrant a conviction under Revised Statutes 1879, section 1541, for lascivious cohabitation, in the absence of evidence that the parties dwelt together for the uurDose of having illicit sexual intercourse.</p>

<p>Appeal from the St. Charles Circuit Court. — Hon. W. W. Edwards, Judge.</p>

<p>Appeal from the Howell Circuit Court. — How. J. P. Hale, Judge.</p>

<p>Error to the Barry Circuit Court. — ITok. W. P. G-eig-er, Judge.</p> <p>The probate court has jurisdiction over “appointment of guardians and curators of minors and persons of unsound mind.” Const. Mo., art. 6, sec. 34; 1 R. S. 1879, sec. 1176; Wells on Jurisdiction of Courts, sec. 272. The probate court has jurisdiction, on information given, to inquire into the insanity of any person in the county, and, if he be found insane, has jurisdiction over his person and his estate. 2 R. S. 1879, chap. 116. The terms “guardian-of the estate,” and “curator of the estate” are identical. In this state the guardian of the estate is called the curator. This suit was properly brought in the name of the insane person by his guardian. R. S. 1879, sec. 5804. The action of the court in appointing a guardian or curator cannot be questioned collaterally.</p> <p>The statutes provide for the appointment of a guardian of the person and estate of an insane person. 2 R. S. 1879, chap. 116, sec. 5791. This statute is mandatory and must be strictly complied with. State ex rel. v. Baird, 47 Mo. 304. The words “guardian” and “curator” are not identical and are not used interchangeably in the statutes of this state. 2 R. S. 1879, chap. 116, secs. 5799, 5833; chap. 37, secs. 2561, 2569, 2578. This suit is in the name of the insane person by his curator and this is wrong. Reed v. Wilson, 13 Mo. 23; 2 R. S.. 1879, chap. 116, sec. 5804. The probate court is authorized to appoint a curator of the estate of a non-resident lunatic. R. S. 1879, secs. 5833, 5834.</p>

<p>1. Criminal Law: local option law: indictment. An indictment for a violation of the act of the legislature approved April 5, 1887, commonly known as the local option law, need not recite in detail the manner in which that law was adopted, but the adoption of the law is sufficiently pleaded, if the indictment states that it had been duly adopted, and was in force at the place and time at which the offense is laid.</p> <p>3. -: -: REQUISITES OE RECORDS OE COUNTY COURT. In a prosecution for a violation of that law the presumption is conclusive that the petition, on which the county court acted, contained sufficient signatures, and it is not necessary that the records of the courts should show that the petition had been signed by the requisite number of qualified voters.</p> <p>8. -:-:-. Nor is it necessary that the records of the county court should show an adjudication by the court that the law had been adopted. The statute only contemplates that the clerk of the court should cast up the votes in compliance with the law governing general elections, and should make a statement to the court of. the result, and that this statement of the result should be entered upon the records.</p> <p>4.-•:-: legality of election. An election under the local option law is not illegal, because held within sixty days of a general school election, required to be held on the first Tuesday in April; the inhibition of the local option law, against the holding of an election under it within sixty days of a general election, must be construed, under Revised Statute, 1879, section 8126, to have reference only to the biennial general election on the Tuesday succeeding the first'Monday in-November.</p> <p>5.-:-: law and fact. Whether the local option law has ■ been adopted, is a question of law for the court.</p> <p>6. - — :-: evidence of adoption of law. In such a proceeding the state, prima facie, establishes the adoption of the law by ( evidence of the records of the county court showing the result of the election as required by the local option law, and by evidence showing that the result of the election has been published in compliance with the requirements of the statute.</p>

<p>Case determined on the authority of State v. Searcy, ante, p. 393.</p>

— Host. H. C. O’Bryan, Judge. (1) The defendant was indicted and convicted for a violation of the local option law. The indictment does not allege that the notice of the election was published for “four consecutive weeks” or twenty-eight days, the last insertion being “within ten days next before such election.” (2) The evidence develops the fact that the appellant sold as a merchant. If there was any violation at all, it was punishable under the merchant’s act.

<p>1. Pleading: issue of fraud under general denial. When an'' interplea in an attachment suit avers a transfer of the property in question by the attachment defendant to the interpleader prior to the levy thereon, a general denial is insufficient to present the claim that the transfer was fraudulent as to the creditors of the attachment defendant.</p> <p>S. Practice, Appellate: exclusion oe cumulative evidence. The exclusion of evidence is not ground for reversal, when it' is merely cumulative, and only tends to establish a fact conceded by the party against whom it is offered.</p> <p>3. Evidence: competency op declarations op assignor. The declaration of the assignor of an account, made after the assignment of the account, and to the effect that he was entitled to collect it, is not competent evidence against the assignee of the account in a proceeding between the assignee and creditors of the assignor involving the bona fides of the assignment; and this is so, though the assignor, at the time of the declaration, have in his possession a copy of the account.</p> <p>4. Practice, Trial:'instructions. The refusal of an instruction is not error, when the hypothesis embodied in it is submitted to the jury in another instruction given by the court.</p>

— Hon. J. L. Thojvtas, Judge. The court erred in not sustaining the defendant’s demurrer to the testimony, at the close of the evidence introduced by the plaintiff. MeDermot v. Railroad, 73 Mo. 517; Stephens v. Railroad, 86 Mo. 221. (2) The order of Ross Quinley, by a wave of the hand, was not such an order as justified the'plaintiff to put himself into known danger.

— Hon. W. D. Hubbabd, Judge. The motion to retax is sufficient. It is the proper form of relief. When the pleader sets ont plainly and distinctly the relief to which he claims he is entitled, his pleading is sufficient without incorporating therein all the evidence he intends to introduce at the trial. It is only necessary to allege what is necessary to be proven in order to make a prima facie case in the absence of objection by proper motion before the trial. Crane r>.

<p>Appeal from the St. Charles Circuit Court.— Hon. W. W. Edwards, Judge.</p> <p>There has been no dedication of the strip, thirty-five feet, four inches wide, by ninety-five feet, six inches long, between the two lots to the public, or to respondent’s use, either as an alley or otherwise. Beclcer v. City of Sí. Charles, 37 Mo. 13; City of St. Louis v. University, 88 Mo. 155; Bailey v. Culver, 12 Mo. App. 175; Ogden v. Jennings, 62 N. Y. 526. Under the evidence, there has been no such injurious invasion of respondent’s rights, conceding it to have any, to the portion of the strip enclosed, as to justify the granting of the mandatory injunction prayed for here. King v. McCully, 38 Penn. 76. There must be a substantial injury, not trivial; or simply an inconvenience. Fort v. Groves, 29 Md. 188; Green v. Oalcs, 17111. 249.</p> <p>The deeds from Francis A. Morris and wife to Eugene Gauss and Robert P. Farris, respectively, on March 4, 1867, established or created the alley between the two lots conveyed. Carlin v. Paul, 11 Mo. 32-34; Beclcer v. St. Charles, 37 Mo. 18-19; Thurston v. St. Joseph, 51 Mo. 512; Washburn on Easements, p. 170 and 172; Bailey v. Culver, 12 Mo. App. 175. ■ The plaintiff is as much entitled to the free, unobstructed use of the alley in question, as an alley, as it is to its adjoining lot. Thurston v. St. Joseph, 51 Mo. 512; Laclcland v. Railroad, 31 Mo. 181.</p>

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

— How. O. M. Spencer, Judge. (1) 2 Morawetz, 774 and 772; Hotel Co. v. Hunt, 57 Mo. 126; Road Co. v. Climms, 16 Mo. 359; State ex rel. v. Kupferle, 44 Mo. 154. (2) Tbe election of directors in excess of the number mentioned in the charter would simply be a violation of a provision or condition incorporated therein for the benefit of the stockholders, and not for the protection of the people of the commonwealth.

— I-Ion. O. M. Spencer, Judge. (1) Evidence that John P. Hax voted for the defendant’s salary, when the record made by defendant as secretary, and approved at a subsequent meeting of the directors, shows that he did not, should not have been admitted. HawTcshaw v. K. of H, 29 Fed. Rep. 770; s. o., 24 C. L. J. 129.

— IToisr. R. H. Field, Judge. (1) The jurisdiction of justices’ courts is defined and limited by the terms of the statute creating these courts, and they have no jurisdiction beyond what the statute expressly confers upon them. Where there is any doubt on the subject, the jurisdiction should be denied. State ex rel. ». Hopkins, 87 Mo. 519.

— Hon. R. H. Field, Judge. (1) (a) The court erred in refusing to permit defendant, on cross-examination of the plaintiff, George E. Wallich, to examine said Wallich as to whether he had not sued once himself for the same one hundred dollars in controversy in this suit. The evidence was competent to identify the parties to that suit, which was a matter in issue. It was also competent as a cross-examination of said Wallich.

— How. R. H. Field, Judge. This is a suit for divorce. Plaintiff, a resident of Kansas City for more than four years prior to the filing of his petition, an honest, industrious meat and produce dealer, married his wife in Philadelphia in October, 1877, and lived with her until August, 1880; his business then became so poor, and she (a daughter of rich parents), much dissatisfied ; he, therefore, went West to better his condition, she agreeing to follow him; prior to this…

— IION. R. H. Field, Judge. (1) The plaintiff, though in possession,■ had'no lawful right to the possession. He, therefore, cannot maintain this action.

— HoN. R. H. Field, Judge. Statement of the case by the court., “This was an action under section 809, Revised Statutes, 1879, to recover double damages for the value of a horse belonging to plaintiff, and alleged to have been killed by defendant’s trains on August 17, 1888. The animal was found dead on the side of the track of the railroad running through plaintiff’s farm, at a farm crossing.

— Hon. E. M. Hughes, Judge. (1) ■ Section 3596, Revised Statutes: Forcing a party to trial when the opposite party admits that the witness would “-swear to the facts set out” is unconstitutional. Const. Mo., sec. 30, art. 2; State v. Berldey, 92 Mo. 41; Eisner v. Sup. Lodge, 11 S. W. Rep. 991; s. o., 98 Mo. 640.

<p>1. Contract: lease of ABSTRACT books : construction. Where a lease of a set of abstract books required the lessee to keep said books posted up to the date of its expiration iñ a business-like manner, but sets out no other mode of doing such work, small memorandum books used in this work of posting by the lessee for taking memoranda from the county records in the recorder’s office to be entered in the abstract books in the lessee’s office, do not become a part of said abstract books, nor become at the end of the term the property of the lessor.</p> <p>‘ 2. Practice: paeol evidence : conflict of. Conceding, in this case, a right to any evidence outside the written contract, which seems to be complete in itself, as such evidence, consisting mainly of the differing opinions of witnesses, was passed upon by the trial court, an appellate court cannot review the finding.</p>

Court. — Hon. Richard Field, Judge. The court having passed on the law in this case when it was here at the March term, 1888, in the style of Sturgess v. Crum upon the authorities then cited, we call attention to said decision with the authorities therein cited as being the law of governing in this case.

— Hon. J. M. Davis, Judge. (1) Justices of the peace can only act in the manner, and at the time, authorized by law. It has been held that a justice of the peace cannot make a nunc pro tunc entry. Norton v. Porter, 63 Mo. 345.

— IIoN. J. H. Slover, Judge. (1) Against the objection of the defendant the plaintiff was permitted to prove its account thus: Question: “I will ask you to look at this account, and state whether or not it is correct? Answer: “Yes, it is correct,” witness declaring he knew nothing about the correctness of the account, except as the contractors’ balance appeared on plaintiff’s books. This was improper. 1 Greenl. Ev., sec. 440; Anderson v. Volmer, 84 Mo. 403.

<p>Appeal from the Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p> <p>(1) The note having fallen due on July 22, and so remaining past due until August 8, the title to the property, and the right to the possession, passed absolutely to the mortgagee. Robinson v. Campbell, 8 Mo. 616 and 366; Dean v. Davis, 12 Mo. 117; Lacy v. Giboney, 36 Mo. 320; State ex rel. v. Adams, 76 Mo. 612; Beckman v. Tootle, Hanna & Co., 19 Mo. App. 596; State to the use v. Carroll, 24 Mo. App. 361; Jackson v. Cunningham, 28 Mo. App. 354; Jones on Chattel Mortgages, secs. 454, 634, 635 and 636. And that such title and right to possession was not returned or restored to the defendant by the extension of time on the note from August 8 to August 22, and, hence, the plaintiff had a right to take possession on August 22. Bowens v. Benson, 57 Mo. 26. (2) That the agreement to insure the goods was violated and, under the expression in the mortgage, “or any agreement in this mortgage broken,” such neglect to insure worked a forfeiture of defendants’ right to. the possession, and, hence, the plaintiff was authorized to take possession on August 22. Budding-ton r. Mastbrook, 17 Mo. App. 578-580. (3) If it be conceded that the plaintiff was not entitled to the possession, on the twenty-second of August, because the note was not past due until the twenty-third of August, and because no other cause of forfeiture had occurred, yet this case must be reversed, because the rule of damages, as laid down in the court’s instructions, given for the defendant, is incorrect. At the time of the trial, the defendant had suffered the debt to go past due, and so forfeited all her right to the property, and all her right to damages, except for the use of the goods for one day, the time between the time the suit was brought (August 22) and the time the note was past due (August 23). And the value of the use of the goods for that one day not having been proven, the defendant, at most, on undisputed facts, was only entitled to a judgment for nominal damages, and for costs. Dodd, Brown & Co. v. Wilson, 26 Mo. App. 462; Boutell n. Warne, 62 Mo. '354; Dülwortliy v. McKelvey, 30 Mo. 153; Dougherty n. Cooper, 77 Mo. 528; Kerr v. Dreto, 90 Mo. 148; Krei v. Vogel, 40 Mo. 149; Cilham ». Kerone, 45 Mo. 487. (4) The judgment, for three hundred dollars is not sustained by the evidence. (5) The debt fell due the next day after the suit was commenced; hence the plaintiff had a right, under the mortgage, to sell the property, at the time, and in the manner, he did sell it, and, out of the proceeds, to pay his debt, and deliver to the defendant only the surplus, over the debt and costs; and the court’s instruction, number 2, should not have been given. The property having sold for less than the debt and costs, the judgment could only be for a nominal amount, even if no forfeiture had occurred at the time of the commencement of this suit. Dodd, Brown & Co. v. Wilson, 26 Mo. App. 462.</p> <p>(1) The mortgagee has no right to possession of the mortgaged goods until condition broken. Sheble v. Curdt, 56 Mo. 437; Barnett v. Timberlake, 57 Mo. 499; Jones on Chattel Mort., sec. 428. (2) By the agreement of August 8, the terms of the original contract, as embodied in the note and mortgage for a legally sufficient consideration, were modified and changed and the “time of payment of the note and the mortgage * * * extended to the twenty-second day of August, 1877.” The maker had all the day of August 22 in which to pay the note even without grace. Oreeley v. Thurston, 4 Gfreenl. 479; BanJc v. Winn, 40 Me. 62. (3) But the note extended was entitled to grace and was not due till August 25. 1 Daniels Neg. Ins. [3 Ed.] sec. 613; Brotan v. Shock, 27 Mo. App. 354; Turk -y. Stahl, 53 Mo. 437; McCoy v. Farmer, 65 Mo. 249. (4) An extension of the note for a valuable consideration saves the concjitions of the mortgage, and until expiration of the extension the mortgagee has no right of possession. Baxter v. Spencer, 33 Mich. 325; Flanders v. Bar stow, 18 Me. 357. (5) The agreement of August 8, “extending the note and mortgage,” effectually estops plaintiff from taking possession of the mortgaged goods until the period covered by that agreement has expired. Bigelow on Estoppel [4 Ed.] p. 634; Longfellow v. Moore, 120 Ill. 287; Hooker v. Hubbard, 102 Mass. 239. (6) In the clause, with reference to insurance, it is expressly stipulated that the only right of the mortgagee in case no insurance was made by the mortgagor is to “insure said chattels and the premium money so paid shall become due on demand and this mortgage stand as security therefor.” The expression of one right or remedy excludes all others. 2 Parsons on Contracts [7 Ed.] p. 646, star p. 516 and authorities cited. (7) Depreciation in value of the property occasioned by the taking and detention thereof is a proper element of damage. Chapman v. Kerr, 80 Mo. 158; Pope v. Jenkins, 30 Mo. 528; Mix v. Kepner, 81 Mo. 93. (8) The value of the reasonable use and'service of the property during the time it is detained is another element of damage. Burkholder ®. Rudrow, 19 Mo. App. 60; Milling Co. v. Walsh, 24 Mo. App. 97. (9) The judgment of the circuit court will not be reversed even though plaintiff is entitled to deduct from the value of the goods the amount of the note. This court will only direct a remittitur of the just amount. Dodd, Brown & Co. v. Wilson, 26 Mo. App. 462. But the amount of the note should not be deducted from the judgment in this case. The goods belong to Helen Dawson, a married woman.. The suit was instituted before a justice of the peace. No judgment on a contract can be obtained against a married woman at law, nor can her contract be enforced at law either directly or indirectly. Hooton v. Ransom, 6 Mo. App. 19; Alexander «. Tydick, 80 Mo. 341.</p>

— Hon. D. P. STRATTON, Judge. (1) In the absence of express agreement the tenant is liable for damages to premises caused by his negligence — that is from the lack of ordinary care. 1 Taylor, Landlord and Tenant [8 Ed.] sec. 343. (2) An express covenant to repair or do any other thing to the demised premises is binding under all circumstances. 1 Taylor, Landlord and Tenant [8 Ed.] secs. 357, 360; Holbroolc v. Chamberlain, 116 Mass. 155.

— Host. D. P. Stratton, Judge. (1) Filing the amended petition in this cause amounted to an abandonment of the cause of action stated in the original petition, and defendant’s motion to strike out should have been sustained. Parker ©. Rhodes, 79 Mo. 88. (2) There was a defect of parties in this action, as shown by the testimony.

— How. Chas. H. S. Goodmaw, Judge. Statement of the case by the court. ■ This was a proceeding begun in the Daviess circuit court by scire facias upon a forfeited recognizance in which the state is seeking to collect the amount thereof from appellants, the surety thereon.

— How.. Chas. H. S. Goodman, Judge Statement of the case by the court. This is an action of replevin, instituted ■ by plaintiff Poe to recover of defendants, Stockton and Duperow, a stock of watches, jewelry, etc., formerly held and owned by plaintiff at his store at Stanberry, Missouri, and which it is claimed was procured by defendants by means of a fraudulent exchange for alleged patent-right interests held and claimed by one G-.

— HoN. Cyrus A. Akthoky, Judge. (1) The court erred in admitting the testimony oí John D. Dopf to prove the publication of notice of letters, and of so-called notice to unknown heirs, and in .admitting him to read the notices from the files of the “Atchison County Journal,” for the reason that such notices were never filed in the probate court, and never became a part of its records as required by the statute. R. S. 1889, secs. 38, 89 and 90.

<p>Appeal from the Monroe Circuit Court. — Hoe. Thos. H. Bacoh, Judge.</p>

<p>1. Criminal Law: infoemation. In general it is sufficient in an information to charge the offense in substantially the words of the statute. If, however, the offense is specified, prefatory or introductory words, characterizing the defendant’s action as having been unlawful, wilful, malicious and contemptuous, are to be considered in the determination of the sufficiency of the charge.</p> <p>3. -:-: EIGHT Off ASSISTANT PROSECUTING ATTOENEY TO ACT. Under the act of March 27, 1885, an assistant prosecuting attorney has authority to file an information in the same manner, and to the same extent, as the prosecuting attorney. And it is not permissible, for the purpose of overthrowing a.n information filed by him, to show that the prosecuting attorney was not prevented from acting by reason of his absence or sickness, or of his being otherwise engaged in the discharge of his duties.</p> <p>3. -: ->-. An information verified by an assistant prosecuting attorney according to his best knowlege and belief, though not sufficient in itself, is sufficient when accompanied by the affidavit of si third person setting forth, without qualification, the offense in sufficient terms to comply with the provisions of the statute. . (R. S. 1879, sec. 1763.)</p> <p>Appeal from the Lawrence Qircuit Qourt. — Hon. M. Gfí / McGrREGOR, Judge.</p>

<p>Appeal from the Howell Qireuit Court. — Hon. J. F. Hale, Judge.</p>

<p>Appeal from the St. Louis City Circuit Court. — Hoil Jacob Kleih, Judge.</p> <p>(1) Plaintiff had a perfect remedy at law by writ of mandamus to restore him to membership, and injunction does not lie. Bisbee on Produce Exchanges, p. 67; High on Injunctions, secs. 4, 1194; Fisher v. Board of Trade, 80 Ill. 85; Baxter v. Board of Trade, 83 Ill. 146; Stur-'gess v. Board of Trade, 86 Ill. 441; Goddard v. Merchants ’ Exchange, 9 Mo. App. 290. (2) The province of the writ of injunction is- to prevent an anticipated or threatened action, and not to rescind that which is consummated. The injunction in this case does not restrain a threatened injury, but seeks to restore plaintiff to membership by undoing what has been already done. Under the rule in force in this state this is not the province of the writ of injunction. Railroad v. Reynolds, 89 Mo. 146; McPilce v. Pew, 48 Mo. 525; Towne v. Bowers, 81 Mo. 496; Bailey v. Wade, 24 Mo. App. 186;. Railroad v. Maddox, 92 Mo. 469; Humphreys v. Milling Bo., 10 S. W. Bep. 147. That mandamus is the proper remedy for restoration from corporate disfranchisement, see Stately. Cham, of Com. Ml Wis. 63; High on Ex. Bern;, sec. 291, et seq.; State ex rel. v. Merchants’ Exchange, 2 Mo. App. 96. Injunction will not lie in this case, see Gregg v. Medical Society, 111 Mass. 185. Plaintiff’s petition discloses that he has a perfect and adequate remedy at law by an action for damages even if the fine of fifty dollars was illegally imposed upon him; in that his payment thereof to prevent suspension would not be a voluntary payment, and that an action will lie for recovery of such payment. Westlalce v. City of St Louis, 77 Mo. 47; Humphreys v. Milling Co., supra. (3) Upon the merits, as correctly held by the court below, the board of directors had express authority under the proviso of rule 4, section 8, of the exchange, to adopt' the regulation prohibiting smoking between one o’clock and 1:15 o’clock p. m., and the same was a reasonable and proper regulation, in violating which plaintiff was guilty of corporate misconduct, which subjected him to corporate discipline. Ryan v. Carter, 93 U. S. 78; U. S. v. Church, 36 Fed. Bep. 303; Minis v. United States, 15 Peters, 445. (4) The refusal of plaintiff to pay the fine, thus lawfully imposed upon him for corporate misconduct, was in itself corporate misconduct, for which he was rightfully, after due hearing, suspended pending such refusal to pay. Erd v. Aid & Relief Ass ’ n, 34 N. W. Bep. 555.</p>

<p>1. Practice, Appellate: non-prejudicial error. The giving of an erroneous instruction is not ground for the reversal of the judgment appealed from, when, under the undisputed facts, the appellee is entitled to the judgment recovered by him.</p> <p>2. Common Carriers: telegrams. Under Revised Statutes, 1879, section 883, a telegraph company operating a telegraphic line in this state is liable for the prescribed penalty.of one hundred dollars for the failure to transmit a message, received by it with payment of its charges therefor; it is not necessary that the failure should be due to partiality or bad faith on its part.</p> <p>3. --: -: sabbath breaking. It is no defense that the message was delivered to the telegraph company on a Sunday for transmission, when the sending of it is an act of necessity or of charity; and the sending of it is such an act, when it is sent from a husband to his wife, and its purpose is to explain a protracted absence of the former from home, and to announce the time of his return.</p> <p>4. -:-:-. The delivery of such telegram for transmission on a Sunday is not rendered illegal by the fact that the sender could as well have sent it on the preceding Saturday, but, through inadvertence, failed so to do.</p>

<p>Appeal from the St. Louis City Circuit Court. — How. Jacob Kleie, Judge.</p>

<p>Appeal from the SI. Louis County Circuit Court. — How. W. W. Edwards, Judge.</p>

<p>Jurisdiction: appellate. Whenever the record in any case fairly , presents a constitutional question, it is the duty of this court to certify the cause to the supreme court, although this court may be of opinion that the question is without merit.</p>

<p>Appeal from the St. Louis City Circuit Court. — How. Daniel Dillon, Judge.</p> <p>The provisions of the mortgage show an intention to dispense with a receiver or the possession, in order to entitle the mortgagee to the rents; show an assignment of the rents and 'income as a' part of the mortgagee’s security, and show an agreement for the payment of rents before sale by the mortgagor, in liquidation of the debt thereby secured, in any of which cases all the law requires of the mortgagee, in order that he may avail himself of the rents, is simply a demand therefor. Sav. & Trust Co. v. S heppard, 127 U. S. 494; Bow v. Railroad, 124 U. S. 653; In re Life Ass’n, 96 Mo. 636; White v. Wear, 4 Mo. App. 342. There was a privity of contract in the following clause made by the mortgagor with the mortgagee for the benefit of the present and future tenants, by reason of which the mortgagee was entitled to the rents by simple demand; and there was also an equitable assignment of the fund or rent to the mortgagee, with power to collect, in the following clause of the contract. Jones on Mortgages, secs. 737, 777; Russell v. Allen, 84 Mass. 44; Kimbal n. Lockwood, 6 R. I. 138; Pomeroy’s Eq. Juris., secs. 1270, 1280, 1283, 1284; Walker v. Mauro, 18 Mo. 564; Kimball v. McDonald, 20 Mo. 577; Kdgell v. Tucker, 40 Mo. 526; Pullman v. Railroad, 5 Biss. 247; R. S. 1879, sec. 3947. If the prior mortgagee had been allowed to avail himself of the rents, the value of the real estate would have been swollen for the benefit of the second mortgagee and mortgagor. Hellwig v. Heitcamp, 20 Mo. 564; Jones on Mortgages, sec. 1688. The existence of prior mortgages assigning the rent cannot justify respondent’s refusal of appellant’s demand; appellant was entitled notwithstanding to collect the rents. Jones on Mortgages, sec., 1524; Ranney v. Peyser; 83 N. Y. 1; Miltenberger v. Railroad,, 106 U. S. 286.</p> <p>If respondent has any right of action for said rents at all, he has a complete and adequate remedy at law. Burgess v. Kattlemen, 41 Mo. 482; Langdon v. Buell, ■9 Wend. 80; Montgomery v. Kerr, 1 Hill (S. C.) 291. The assignment of the rents under prior deeds of trust, and the existence of a matured indebtedness thereunder, operated as a bar to any right to, or recovery of, said rents by appellant. The ownership of and right to said rents became vested in the trustee, or beneficiary under said prior deeds of trust, as soon as default was made in the payment of the indebtedness intended to be secured thereby. Robinson v. Campbell, 8 Mo. 365, 615; Lacey v>. Giboney, 36 Mo. 322; Shéble v. Curdt, 56 Mo. 438; Barnett v. Timberlake, 57 Mo. 501. The assignment of rents under the deed of trust of March 12, 1887, to Wm. P. Smith, trustee, was subordinate and subject to the assignment of said rents made under the said prior deeds of trust, and was not, and did not, become operative, during the period in which said rents were collected and received by respondent. Until default, the mortgagor and assigns were entitled to the possession of the mortgaged real estate, and so long as the mortgagee refrained from taking possession he had no right to the rents and profits received by the mortgagor or respondent, as the owner of the equity of redemption. In re Life Ass’n, 96 Mo. 632; Kennett v. Plummer, 28 Mo. 145; Mayo v. Fletcher, 14 Pick. 525; Crosby v. Hanloro, 21 Maine, 499; Man. Corp. v. Marvin, 15 Mass. 268; Gibson v. Farley, 16 Mass. 280; Bank v. Reed, 8 Pick. 459; Norwich v. Hubbard, 22 Conn. 587; 2 Jones on Morfc., secs. 1120, 670. The mortgagor or his assigns cannot be made to account for the rents for the time past. 1 Hill on Mort. [4 Ed.] 156. The mortgagee never having taken actual possession, or entered for condition broken, the mortgagor, or purchaser of the equity of redemption, owned the estate, and had a right to lease and collect the rents as owner, so long as he was allowed to remain in possession. White v. Wear, 4 Mo. App. 341; Railroad v. Gowdry, 11 Wall. 482; GiTlman v. Tel. Go., 91 U. S. 603; Douglas v. Gline, 12 Ky. 608.</p>

<p>Practice, Appellate: equity suits. In an action in chancery, it is the duty of this court to look into the evidence, and determine from it the rights and liabilities of the parties as to all matters forming the subject of investigation.</p>

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

<p>1. Lease: RECORDING-. A lease of land, whatever its terms, affects real estate, and a mortgage of it must be recorded in the county in which the land lies.</p> <p>2. Mortgage: recording. When a mortgage conveys both a leasehold interest in lands and personalty, and the mortgagor resides in the county in which the land lies, the recording of it in a volume used for recording conveyances of real estate is sufficient.</p> <p>S. --: sufficiency of description of property. The description in a chattel mortgage of the property conveyed must be such that a third person can, by its aid and with such inquiries as the instrument itself suggests, identify the property conveyed. And held that a description- of the property as a specified number of mules on certain designated premises is not, as a matter of law, so indefinite as not to bind subsequent purchasers.</p>

<p>1. Husband and Wife: chabge op separate estate oe marpjed woman. A charge upon the separate estate of a married woman in realty can be effected by her oral contract.</p> <p>2. -:-. A married woman can by her contract only charge a separate estate held by her at the date of such contract, or the subsequent substitute therefor; and a decree charging her separate estate with a debt is not warranted, if the evidence fails to show that she held any separate estate at the time of the contraction of the debt; and this is so, though such debt was contracted for the rendition of services in the acquisition of a separate estate by her.</p>

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. The court committed an error in not sustaining the plaintiff’s motion for a judgment by default against the garnishee on the ground that the verification of the answer of the garnishee was insufficient.

<p>Pleading: action for settlement of partnership affairs. One partner cannot maintain an action against his ,copartner for a settlement of the partnership business and an accounting, without showing that some one, either he or the creditors of the firm, will be benefited thereby. Petition in question held insufficient on demurrer.</p>

<p>1. Practice, Appellate : exclusion of evidence. In order to put a trial court in the wrong for ruling out a question or a tender of proof, the question or the tender must be so framed as to show its materiality.</p> <p>3, Malicious Prosecution. It is no defense to an action for malicious prosecution, that the prosecution complained of was based on an invalid information.</p>

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The justice has no right to set aside a non-suit taken voluntarily. R. S. 1879, sec. 2949; Hannibal v. Robinson, 27 Mo. 396; Weeks v. Elter, 81 Mo. 377; Downing v. Garner, 1 Mo. 751. Nor does the appearance of the parties at a subsequent trial confer jurisdiction of the subject-matter upon the justice. • Downing r>. Garner, supra; Cason v. Tate, 8 Mo. 45; Semple v. Thomas, 10 Mo. App. 457.